Agenda packet — Mayor and City Council, December 6, 2023 (part 5 of 6)

ATTACHMENT A
ITD RATE SHEET – EXTERNAL CUSTOMERS
2023-24 Approved Rates
Service Service Description
Business Solutions Development
Business Solutions Labor
Services
Hourly labor programming services for the development, enhancement and maintenance of business solutions on a variety of hardware and software platforms.

Computer Operations
CPU Usage Access to applications and processing of data on the enterprise server.

Network Labor Services Hourly labor services for Local Area Network and Wi-Fi services. Includes labor services to connect a location to the Wide Area Network (WAN) via the Internet and to connect a site to the County’s WAN.

Customer is responsible for all costs related to circuit installation, ongoing circuit charges, and office cabling.

Payroll System Services (EMACS) Maintenance, support, and enhancements of the EMACS system and infrastructure.

Virtual Private Network (VPN) Access for a single user to remotely connect to the wide area network.

Geographic Information System
Aerial Imagery Augments and enhances GIS data visualization tools, applications and solutions developed for County departments and the public.

Telecommunication Services
Public Safety Communications Services:

Dispatch Console Access,
Maintenance, and Replacement
Repair, maintenance, programming, and replacement of Motorola radio dispatch console equipment.

Pager Access Access for a single pager to connect to the County's Digital Paging System.

Radio Access and Maintenance Access for a single radio connected to the County's Public Safety Radio frequencies and repair and maintenance of that radio or radio's accessories, excluding batteries; covers normal wear and tear.

Radio Labor Services Hourly labor services for installation and repair of radio and other related equipment in vehicles, not including materials; or escort of other government agencies to County communication sites to access their equipment.

Radio Mobile Data Access Access and maintenance for radio modems in vehicles.

Telephone Services:

Dial Tone Single line telephone services. Includes voicemail, local, long distance, Telephone Service Specialist consulting services, and software changes.

Telecommunication Labor
Services – Normal Hours
Hourly labor services for telephone, data, cabling, repair, and other specialized services – Normal Hours (Monday through Friday, 7:00 am – 5:00 pm, excluding weekends and holidays).

Telecommunication Labor
Services – After Hours
Hourly labor services for telephone, data, cabling, repair, and other specialized services – After Hours (Monday through Friday, 5:00 pm – 7:00 am, and all weekends and holidays).

All Funds
Parts and Materials Parts and Materials provided per customer request.

Service 2023-24 Rate Charge Measurement
Business Solutions Development
Business Solutions Labor Services $128.21 Per hour
Computer Operations
CPU Usage $99.63 Per CPU hour
Network Labor Services $96.84 Per hour
Payroll System Services (EMACS) $6.99 Per payroll warrant Virtual Private Network (VPN) $3.46 Per VPN/month
Geographic Information System
Aerial Imagery Cost Pass Through Per customer
Telecommunication Services
Public Safety Communications Services:

Dispatch Console Access, Maintenance, and Replacement $693.48 Per console/month Pager Access $16.22 Per pager/month
Radio Access and Maintenance $53.58 Per radio/month
Radio Labor Services $88.97 Per hour
Radio Mobile Data Access $103.58 Per modem/month
Telephone Services:

Dial Tone $31.23 Per phone/month
Telecommunication Labor Services – Normal Hours $95.56 Per hour Telecommunication Labor Services – After Hours $110.52 Per hour All Funds
Parts and Materials
Actual cost plus 15%
processing and
handling Per order

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ATTACHMENT B

PUBLIC SAFETY COMMUNICATIONS SERVICES
I. SERVICES UNDER THIS ATTACHMENT
This Attachment B is applicable for Public Safety Communications services which consist of the following services as defined in Attachment A, “ITD Rate Sheet – External Customers”, and as further defined within this Attachment B:

Dispatch Console Access, Maintenance, and Replacement
Pager Access
Radio Access and Maintenance
Radio Labor Services
Radio Mobile Data Access
II. SAN BERNARDINO COUNTY PUBLIC SAFETY COMMUNICATIONS SYSTEM ACCESS The San Bernardino County (County) Public Safety Communications System, hereinafter called “System”, is composed of two components known as the backbone and field equipment. The Backbone is defined as a portion of the System that provides the means by which dispatch centers, public safety locations, mobile radios, and portable radios communicate with each other through voice transmission. It is composed primarily of fixed relay equipment and associated centralized dispatch and control equipment, including Radio Mobile Data Access modems owned and maintained by the County. Field Equipment is defined as that portion of the System that uses the Backbone for communications and consists primarily of local dispatch equipment, mobile radios, and portable radios. a) System Purpose and Objective
The primary purpose of the System is to serve the County and accommodate participation by public safety and local governmental agencies in the County. Secondarily, other governmental and safety related non-governmental users may be allowed access to the System as conditions warrant and as provided for by this Contract. During a disaster, public safety users will receive priority in all areas, based entirely on emergency response responsibilities and access to the System by non-public safety users may be limited or suspended.
b) Backbone Operational Policies
Public safety and local governmental users shall have operational priority over all other users. In the case of a disaster, public safety users affected by the disaster shall have operational priority over all other public safety users, with County public safety users afforded the highest priority.

County has the final authority, at all times, to exercise discretionary control over the Backbone, and to otherwise manage Backbone traffic to ensure the ability of immediate-need public safety agencies to effectively communicate and for the overall benefit of all Backbone users. EXCEPT FOR GROSSLY

NEGLIENT ACTS OR OMISSIONS IN EXERCIZING ITS AUTHORITY UNDER THIS SECTION, THE COUNTY WILL HAVE NO LIABILITY WHATSOEVER FOR SYSTEM ALLOCATION DECISIONS.

c) Backbone Modification (Post Backbone Implementation) (i) The County may determine that Backbone modification is needed from time to time to meet the changing needs of County and/or users.
(ii) Costs for Backbone modifications made after the execution of this Agreement shall be assessed as follows:
(a) If the modification benefits all users, each user will bear the pro rata cost of the modification based on the user’s derived benefit. Derived benefit shall be determined as a percentage based on the number of units that are in service by each end user divided by the total units being serviced by the Backbone infrastructure at the time the modification is made.

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(b) If the modification improves service only for users in a definable local area, all users in such definable local area, and participating in and receiving direct benefit from the modification, shall share the costs for its implementation, operation, and maintenance equally. (c) If the modification only applies to a specific subset of users, the subset of users that caused the modification shall share the costs of the modification its implementation, operation, and maintenance equally.
(d) if the modification is requested by, and benefits only Customer, Customer shall bear the entire cost of the modification, its implementation, operation, and maintenance. (iii) Customer acknowledges and agrees that the County is the sole decision-maker in determining the allocation of costs for all Backbone modifications.
d) Field Equipment
(i) Customer shall, at Customer’s expense and future financial liability, purchase and maintain its own Field Equipment.
(ii) Customer shall, at Customer’s expense, expand or modify existing Customer structures, facilities, or dispatch centers as required to support the installation of Customer’s Field Equipment. (iii) Customer is solely responsible for ensuring that the Field Equipment is compatible with the System.
e) Related Non-Governmental Users
(i) At times, Customer’s non-governmental users may have a need to communicate with public safety/local government services during emergencies, or in their daily support of public safety/local government services. Where it is not in conflict with Federal Communications Commission (FCC) Regulations or other laws, and subject to approval by County, Customer’s non-governmental users may be allowed to have Backbone access. However, Customer’s non-governmental use of the Backbone for day-to-day operations shall be on a non-interfering, prioritized basis, and subject to channel loading limits, as determined by County.
(ii) County shall be responsible for coordinating Backbone access and implementing terms and conditions of such use, including one-time and recurring costs to be paid by new users. (iii) County shall monitor non-governmental users of the Backbone. If the needs of public safety/local government expand to the point of competition with non-governmental use of the Backbone, Customer’s non-governmental users may be required by the County to terminate their use of the Backbone.
(iv) Customer’s non-governmental users will be removed in reverse order of their entry into the System, i.e., the last user to enter the System will be the first user to be removed unless any other Customer’s non-governmental user voluntarily relinquishes access. (v) County will provide Customer ninety (90) days prior written notice of termination of access to allow Customer’s non-governmental users to remove their equipment or transfer their operations to another communications system. At the expiration of the notice period, the Customer’s non- governmental users will be denied access to the System. f) Backbone Ownership
It is understood that County has ownership of the Backbone, and upon any termination of this Agreement by County or by Customer, any and all rights, title, and interest in the Backbone shall remain with the County.

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III. PUBLIC SAFETY RADIO AND EQUIPMENT MAINTENANCE SERVICES The County Innovation and Technology Department (ITD) offers a number of radio and equipment maintenance services to public safety and local governmental agencies in the County of San Bernardino, as well as other governmental and safety-related non-governmental users. Services provided under this Contract consist of Public Safety Radio, Backbone radio equipment maintenance, radio, mobile/portable radio equipment maintenance, Mobile Data Access Modems maintenance, public safety radio dispatch equipment maintenance, and radio battery replacement.
a) County Responsibilities in Providing Maintenance Services If providing maintenance services to Customer, ITD:
(i) Will maintain sufficient spare mobile radios to temporarily replace equipment that is removed from service for maintenance reasons;
(ii) Will remove, reinstall, and maintain Customer-owned radios or other covered equipment that has become defective from normal wear and usage, as solely determined by ITD, and perform repairs at ITD or elsewhere as determined by ITD;
(iii) Will provide a two-hour response time from notification for problems with radio dispatch equipment and Backbone radio equipment, and reasonable response time during normal County work hours on normal County business days for maintenance of Mobile Data Access Modems, and mobile/portable radios with afterhours service available at premium rates; (iv) Reserves the right to subcontract for all or part of services; (v) Assumes no liability for equipment failure in the field, or for any adverse consequences caused by such failed equipment;
(vi) Assumes no liability for failure to provide or delay in providing services, under this Agreement. b) County Services Provided on a Time and Materials Basis (i) Service required due to Customer abuse or abnormal wear; (ii) Service to correct attempts by Customer or unauthorized third parties to repair or modify equipment;
(iii) Facility electrical problems at Customer location(s) or vehicle electrical problems; (iv) Services in addition to those identified above, to the extent feasible and cost-effective, as determined by ITD;
(v) Program or re-program radios at Customer’s request or in response to abnormal wear and usage, except for County-originated systems reconfigurations;
(vi) Replacement of accessories and consumable items, including batteries, antennas, and microphone cords;
(vii)Radio reactivations are processed within 5 business days after the request is received and are billed for each serial number reactivated at one-half of the Board-approved hourly rate in effect at the time reactivation is ordered.
c) Customer Responsibilities
Customer shall procure its own Field Equipment and shall:

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(i) Provide ITD with model and serial numbers of all equipment to be covered under this Contract. (ii) Designate an individual as the single point of contact for maintenance coordination. (iii) Coordinate and schedule service requirements with ITD reasonably in advance whenever possible. (iv) Advise ITD of all radio relocations or reassignments within their fleet, within 24-hours of relocation or reassignment.
(v) Have sole responsibility to maintain a current inventory of its Field Equipment using the System and to approve and validate billing of that inventory. Customer must notify ITD in writing when any Field Equipment is no longer in use by Customer, including notification of damaged, lost, or stolen Field Equipment. ITD will continue to bill Customer until notification is received, and Customer remains responsible for payment of charges for such Field Equipment. If Customer identifies discrepancies between billing and its inventory, a dispute notice should be sent by e-mail to [email protected] along with a justification and related documentation. If ITD determines that a charge was billed incorrectly, ITD will issue the applicable credit on the next monthly billing cycle.

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ATTACHMENT C

WIDE AREA NETWORK SERVICES
I. SERVICES UNDER THIS ATTACHMENT
This Attachment C is applicable for Wide Area Network (WAN) services which consist of the following services as further defined in this Attachment C:

WAN Access
•Includes WAN monitoring and threat detection
WAN Setup
Circuit/s
II. SERVICES TO BE PROVIDED
The County agrees to provide Customer WAN connectivity to the County’s telecommunication network for the purpose of accessing computer information systems managed by the County as authorized by the data owner department, including WAN connection, configuration, installation of a router at the Customer location and overall circuit and router maintenance including monitoring of network communication and cyber threat detection with a two-hour response time from the County if notified of a problem or incident affecting services. Specific charges are set forth in this Attachment C.

The connection will be located at:
710 North D. Street
San Bernardino, CA 92401
III. SERVICE CONDITIONS
a) ITD reserves the right to subcontract for all or part of Services. b) Authorized applications under this Contract are on file with ITD and are subject to change during the term of this Contract. ITD and the Customer will work together to ensure the Customer has access to authorized applications as needed.
c) ITD assumes no liability for failure to provide or delay in providing Services under this Contract. d) Customer is responsible for the costs of the data circuit. County owns the data circuit. The County will order the circuit, monitor it, and will work with the vendor providing the circuit to resolve any problems. The costs for the circuit are included in this Attachment C and will be billed monthly by ITD.

There is no billable data circuit associated with this/these connection(s). The location(s), identified in Section II above, has/have cabling (i.e., fiber or copper) that can be used for the connectivity eliminating the need for a data circuit.
e) ITD will provide coordination for data communications problems, including problem isolation and resolution from the County Central Computer or County’s WAN to the last component of ITD-supplied equipment. Coordination includes working with all necessary vendors in an effort to restore normal data communications in a timely manner. Reporting, tracking, and diagnosing of problems related to Customer supplied equipment and software is the responsibility of the Customer. f) Customer is responsible for the coordination of the isolation and resolution of all problems involving hardware and software not supplied by ITD.
g) ITD will coordinate a pre-installation site survey identifying all necessary pre-installation site requirements. This service will be limited to the definition of those requirements and the ordering of the data communications or WAN circuits, modems, and WAN equipment (e.g., routers). The Customer will be responsible for making all site preparations prior to the installation of data

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communications or WAN service.

IV. RATES AND PAYMENT TERMS
The payment terms for WAN services are outlined in Section H “Fiscal Provisions” of the Contract.

Additionally, the following rates apply to WAN services:
a) WAN Access, including WAN monitoring and threat detection, is provided to Customer at no monthly cost.
b) WAN Setup is a one-time cost to connect to the WAN and is provided to Customer at time and materials, at the current Network Services Labor rate (see Attachment A “ITD Rate Sheet – External Customers”) and for the actual cost of the network equipment. c) WAN Maintenance is provided to Customer at time and materials, at the current Network Services Labor rate (see Attachment A “ITD Rate Sheet – External Customers”) and for installation labor and the actual cost of any network equipment that needs replacement.

If applicable, the cost for your replacement equipment is as follows:

Qty Function Make and Model Part Number Current Price
1 County Radio 800 Mhz
connection
Cisco ISR 4221 w/Security
License
ISR4221/K9 (SEC) $1871.00
1 County CLETS access Cisco ISR 4221 w/Security
License
ISR4221/K9 (SEC) $1871.00
d) Circuits are provided to Customer, if applicable, at the monthly cost as identified by the telephone company at the time this Contract is executed. Section III.d. “Service Conditions” of this Attachment identifies if this service and cost is applicable.

If applicable, the cost for your Circuit/s are listed as follows:

Serial Number: [#] Cost: [$]
V. CUSTOMER RESPONSIBILITIES
a) Except to the extent caused by County’s breach of the Contract, (a) Customer is responsible for all activities that occur through Customer’s WAN access, regardless of whether the activities are authorized by Customer or undertaken by Customer, Customer’s employees or a third party (including Customer’s contractors, agents or end users), and County is not responsible for unauthorized access to Customer’s account.
b) Customer is responsible for taking appropriate action to secure, protect and backup Customer information and data.
c) Customer is responsible for its account information, passwords and other login credentials and must notify County immediately of any known unauthorized possession or use of Customer’s credentials.

Customer shall not: (i) make WAN access available to any third party not authorized or as otherwise contemplated by the Contract; (ii) send or store code that can harm or result in damage to the WAN (including but not limited to malicious code and malware); (iii) willfully interfere with or disrupt the integrity of the WAN or the data contained therein; (iv) attempt to gain unauthorized access to the WAN or its related system or networks; (v) use the WAN to provide services to third parties except as expressly permitted by the Contract; (vi) use the WAN in order to cause harm such as overload or create multiple agents for the purpose of disrupting operations of a third party; or (vii) perform or disclose any security testing of the WAN.

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: December 6, 2023
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager
Darren Goodman, Chief of Police
Department: Police
Subject: Technical Revision for the Purchase of Cellular Site Simulator Equipment (All Wards)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt resolution 2023-185 authorizing:

1. The City Manager to execute a goods purchase agreement between the City of San Bernardino and Tactical Support Equipment.

2. The Director of Finance and Management Services to issue a Purchase Order to Tactical Support Equipment in an amount not exceeding $687,000.

Executive Summary
During the original purchasing process, staff identified a bidding error invalidating the initial RFQ. Tactical Support Equipment (TSE) was the winning bidder for the second RFQ Process. After the bid was awarded to TSE, one of the competing vendors challenged the bid process. The Finance Department resolved the challenge by rescinding the bid award and issuing a new request for proposals (RFP). TSE won the bid once again. Staff requests that the Mayor and City Council authorize the execution of a goods purchase agreement with TSE and issuing of a purchase order.

Background
The City was awarded $400,000 in Urban Area Security Initiative (UASI) grant funding to purchase a Cellular Site Simulator and $25,000 for an appropriate transport vehicle. The City is obligated to cover any remaining balance. In June of 2022, the City conducted an open bid solicitation process to purchase Cellular Site Simulator equipment. Tactical Support Equipment (TSE) was the best option bidder based on equipment availability and lowest cost. On November 16, 2022, the Mayor and City Council adopted Resolution 2022-239, approving the Cellular Site Simulator Usage and Privacy Policy and a purchasing agreement between the City of San Bernardino and TSE. The Agency Director of Administrative Services was authorized to transfer

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$460,000 from the Asset Forfeiture Fund into the General Fund to cover the City’s portion of the equipment cost. During purchasing, staff discovered TSE did not include sales tax in their winning bid. Consequently, The City conducted a new open bid solicitation in March 2023. Once again TSE was selected as the winning bidder. TSE is a wholesale vendor and does not pay state sales taxes, so the City agreed to pay the State upon purchasing the equipment. The Mayor and City Council adopted Resolution 2023-133 approving the purchase of the Cellular Site Simulator.

Discussion
After the purchase was approved by the Mayor and Council, a competing vendor challenged the bidding process, causing the Finance Department to resolve the dispute by rescinding the second bid award to TSE and holding a new bid solicitation. The bid solicitation was opened on October 23, 2023, and TSE was selected again as the bidder who submitted the most qualified proposal. TSE remains a wholesale vendor and cannot pay the State sales taxes, so the City will pay the sales taxes directly to the State upon purchase. The cost to be paid to TSE is $687,000 and the sales tax to be paid to the State is $60,112.50, bringing the total cost of the purchase to $747,112.50. 2021-2025 Strategic Targets and Goals
The request to spend grant funds to purchase cellular site simulator technology aligns with the following strategic targets and goals: 3.c. Improved Quality of Life: Evaluate and enhance the quality of public safety services.

Fiscal Impact
There is no General Fund Impact. There is sufficient funding appropriated in FY 23/24 operating budget for this item.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt resolution 2023-185 authorizing:

1. The City Manager to execute a goods purchase agreement between the City of San Bernardino and Tactical Support Equipment.

2. The Director of Finance and Management Services to issue a Purchase Order to Tactical Support Equipment in an amount not exceeding $687,000.

Attachments
Attachment 1 Resolution 2023-185
Attachment 2 Goods Purchase Agreement
Attachment 3 Second Resolution 2023-133
Attachment 4 Second Goods Purchase Agreement
Attachment 5 Original Resolution 2022-239
Attachment 6 Original Goods Purchase Agreement Ward:

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All Wards
Synopsis of Previous Council Actions:

December 1, 2021 Mayor and Council adopted resolution 2021-283 accepting 2020 UASI grant funds
November 16, 2022 Mayor and Council adopted Resolution 2022-239 approving the purchase of cellular site simulator equipment and the adoption of a cellular site simulator usage and privacy policy August 16, 2023 Mayor and Council adopted Resolution 2023-133 authorizing the purchase of cellular site simulator equipment

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Resolution No. 2023-185
Resolution 2023-185
December 5, 2023

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RESOLUTION NO. 2023-185

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

AUTHORIZING THE CITY MANAGER TO EXECUTE A

GOODS PURCHASE AGREEMENT BETWEEN THE CITY

OF SAN BERNARDINO AND TACTICAL SUPPORT

EQUIPMENT, AND THE DIRECTOR OF FINANCE AND

MANAGEMENT SERVICES TO ISSUE A PURCHASE

ORDER TO TACTICAL SUPPORT EQUIPMENT IN AN
AMMOUNT NOT EXCEEDING $687,000.

WHEREAS, the City of San Bernardino was awarded $425,000 in grant funds for the FY2020 Urban Area Security Initiative Grant; and
WHEREAS, the City proposed and received approval to use $400,000 of the Urban Area Security Initiative grant funds for the purchase of a cellular site simulator in support of the goal of preparing for, preventing, and responding to security threats to the region; and WHEREAS, the City adopted a Cellular Site Simulator Usage and Privacy Policy; and WHEREAS, RFP 23-34A was issued requesting proposals for the purchase of cellular site simulator technology and the winning bidder was Tactical Support Equipment, at a cost of $687,000; and
WHEREAS, there are sufficient funds in the Fiscal Year 2023/24 Adopted Budget to complete the purchase.

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

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Manager is hereby authorized to execute a goods purchase agreement, attached hereto as Exhibit “A,” between Tactical Support Equipment, Inc. and the City of San Bernardino, supplanting Section 2 of the previously adopted Resolution 2023-133.

SECTION 3.The Agency Director of Administrative Services is authorized to issue a purchase order to Tactical Support Equipment, Inc. in an amount not to exceed $687,000, supplanting Section 3 of the previously adopted Resolution 2023-133.

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Resolution No. 2023-185
Resolution 2023-185
December 5, 2023

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SECTION 4.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 5.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 6. 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 6th day of December 2023.

Helen Tran, 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. 2023-185
Resolution 2023-185
December 5, 2023

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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. 2023-185, adopted at a regular meeting held on the 6 th day of December 2023 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 ____________ 2023.

Genoveva Rocha, CMC, City Clerk

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CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this 6th day of December, 2023, by and between the City of San Bernardino, a charter city and municipal corporation organized under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and TACTICAL SUPPORT EQUIPMENT, INC. a CORPORATION with its principal place of business at 4039 Barefoot Rd, Fayetteville, NC. 28306 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

A. “Goods” means all machinery, equipment, supplies, items, parts, materials, labor or other services, including design, engineering and installation services, provided by Supplier as specified in Exhibit “A,” attached hereto and incorporated herein by reference.

B. “Delivery Date(s)” means that date or dates upon which the Goods is to be delivered to City, ready for approval, testing and/or use as specified in Exhibit “B.” Section 2. MATERIALS AND WORKMANSHIP.

When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval. Machinery, equipment or material installed in the Goods without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the question of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods. Material samples will be submitted at City’s request.

Section 3. INSPECTIONS AND TESTS.

City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements or specifications contained in Exhibit “A,” then without prejudice to any other rights or remedies, City may reject the Goods or exercise any of its rights under Section 4.C. The inspection, failure to make inspection, acceptance of goods, or payment for goods shall not impair City’s right to reject nonconforming goods, irrespective of City’s failure to notify Supplier of a rejection of nonconforming goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming goods after rejection or acceptance thereof.

Section 4. WARRANTY.

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that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

B. Supplier further warrants that all machinery, equipment, or process included in the Goods will meet the performance requirements and specifications specified in Exhibit “A” and shall be fit for the purpose intended. City’s inspection, testing, approval, or acceptance of any such machinery, equipment, or process will not relieve Supplier of its obligations under this Section 4.B.

C. For any breach of the warranties contained in Section 4.A and Section 4.B, Supplier will, immediately after receiving notice from City, at the option of City, and at Supplier’s own expense and without cost to City:

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

If City selects repair or replacement, any defects will be remedied without cost to City, including but not limited to, the costs of removal, repair, and replacement of the defective Goods, and reinstallation of new Goods. All such defective Goods that is so remedied will be similarly warranted as stated above. In addition, Supplier will repair or replace other items of the Goods which may have been damaged by such defects or the repairing of the same, all at its own expense and without cost to City.

D. Supplier also warrants that the Goods is free and clear of all liens and encumbrances whatsoever, that Supplier has a good and marketable title to same, and that Supplier owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Supplier agrees to indemnify, defend, and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.

E. In the event of a breach by Supplier of its obligations under this Section 4, City will not be limited to the remedies set forth in this Section 4, but will have all the rights and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.

Section 5. PRICES.

Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.

Section 6. CHANGES.

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for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.

Section 7. PAYMENTS.

A. Terms of payment are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall not constitute acceptance of Goods.

B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progress Milestones are met. Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of payment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice.

Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.

C. Payments otherwise due may be withheld by City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge other obligations. If the causes for which payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

5. Delivery of an affidavit listing all persons who might otherwise be entitled to file, claim, or maintain a lien of any kind or character, and containing an averment that all of the said persons have been paid in full.

If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

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for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progress Milestone by City will not constitute a waiver, release or discharge of any claims or demands which City then has, or can subsequently acquire, against Supplier, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.

Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement. The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or at law, Supplier shall pay City the sum of 10 % of the purchase cost per item of Goods for each calendar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.”
B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so that City can maximize the efficient completion of such project(s).

Section 9. TAXES.

A. Supplier’s payment of sales and use tax is not required for due to the following:

1. Supplier is not installing the equipment; installation is being performed by a 3 rd party.

2. The city is responsible for the cost of removal equipment and re-installation cost.

3. Tactical Support Equipment (TSE) will cover cost of shipping equipment back if any repairs are required.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City.

Supplier shall have no power or authority by this Agreement to bind City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

Unless otherwise specified, Supplier must obtain City’s written permission before subcontracting any portion of the Goods. Except for the insurance requirements in Section 13.A, all subcontracts and orders for the purchase or rental of supplies, materials or equipment, or any other part of the Goods, will require that the subcontractor be bound by and subject to all of the terms and conditions of the Agreement. No subcontract or order will relieve Supplier from its obligations to City, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind City.

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Section 12. TITLE AND RISK OF LOSS.

Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

A. Supplier shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence or willful misconduct of Supplier, its officials, officers, employees, agents, subcontractors and subconsultants arising out of or in connection with the Goods or the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses except such loss or damage which was caused by the sole negligence or willful misconduct of the City.

B. Supplier’s defense obligation for any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents, or volunteers shall be at Supplier’s own cost, expense, and risk. Supplier shall pay and satisfy any judgment, award, or decree that may be rendered against City or its officials, officers, employees, agents, or volunteers, in any such suit, action, or other legal proceeding. Supplier shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

1. Commercial General Liability Insurance, of at least $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;

2. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, of at least $1,000,000 per accident for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);

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3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

5. If Supplier is also the manufacturer of any equipment included in the Goods, Supplier shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.

6. Privacy/Network Security (Cyber Liability), of at least $1,000,000 per occurrence and aggregate for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to the City.

B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage. The policies required under this Section shall give City, its officials, officers, employees, agents or volunteers additional insured status. Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any additional insureds shall not be called upon to contribute to any loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as additional insured pursuant to this Agreement.

C. Insurance Carrier. All insurance required under this Section is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City.

D. Evidence of Insurance. Supplier shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

E. Subcontractors. All subcontractors shall meet the requirements of this Section before commencing work. In addition, Supplier shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

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tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any manner connected with the Agreement (such liens or claims referred to as “Claims”); and Supplier, subcontractor and suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim and Supplier, subcontractor and suppliers agree that this provision waiving the right of Claims will be an independent covenant.

B. Supplier will save and hold City harmless from and against any and all Claims that may be filed by a subcontractor, supplier or any other person or entity and Supplier will, at its own expense, defend any and all actions based upon such Claims and will pay all charges of attorneys and all costs and other expenses arising from such Claims.

Section 16. TERMINATION OF AGREEMENT BY CITY.

A. Should Supplier at any time refuse or fail to deliver the Goods with promptness and diligence, or to perform any of its other obligations under the Agreement, City may terminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier. In such event City may obtain the Goods by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for that purpose, may take possession of all materials, machinery, equipment, tools and appliances and exercise all rights, options and privileges of Supplier. In such case Supplier will not be entitled to receive any further payments until the Goods is delivered. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City.

B. City may, for its own convenience, terminate Supplier’s right to proceed with the delivery of any portion or all of the Goods by written notice to Supplier. Such termination will be effective in the manner specified in such notice, will be without prejudice to any claims which City may have against Supplier, and will not affect the obligations and duties of Supplier under the Agreement with respect to portions of the Goods not terminated.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

3. Deliver only such portions of the Goods which City deems necessary to preserve and protect those portions of the Goods already in progress and to protect material, plant and equipment at the Goods site or in transit to the Goods site.

D. Upon termination pursuant to Section 16.B, Supplier will be paid a pro rata portion of the compensation in the Agreement for any portion of the terminated Goods already delivered, including material and services for which it has made firm contracts which are not canceled, it being understood that City will be entitled to such material and services. Upon determination of the amount of said pro rata compensation, City will promptly pay such amount to Supplier upon delivery by Supplier of the releases of liens and affidavit, pursuant to Section 7.C.

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Section 17. FORCE MAJEURE
A. Supplier shall not be held responsible for failure or delay in shipping nor City for failure or delay in accepting goods described herein if such failure or delay is due to a Force Majeure Event.

B. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Supplier and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

C. In the event of any such excused interference with shipments, City shall have the option either to reduce the quantity provided for in the order accordingly or to exercise its right of cancellation as set forth in this Agreement.

Section 18. MISCELLANEOUS PROVISIONS.

A. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address or at such other address as the respective parties may provide in writing for this purpose:

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Michele Mahan, Lieutenant
With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
Tactical Support Equipment, Inc.:
4039 Barefoot Rd
Fayetteville, NC. 28306
Attn: Carl Beene, President
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

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B. Assignment or Transfer. Supplier shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasonably withheld. Provided, however, that claims for money due or to become due Supplier from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

E. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

F. Governing Law. This Agreement shall be governed by the laws of the State of California.

Venue shall be in San Bernardino County.

G. Attorneys’ Fees and Costs. If any action in law or equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party shall pay its own attorneys’ fees.

H. Interpretation. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.

I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

J. Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party.

K. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

N. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relative to the Goods specified herein. There are no understandings, agreements, conditions, representations, warranties or promises with respect to this Agreement, except those contained in or referred to in the writing.

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O. Electronic Signature. 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. [SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO
AND TACTICAL SUPPORT EQUIPMENT, INC.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF SAN BERNARDINO
APPROVED BY:

Charles Montoya
City Manager
ATTESTED BY:

Genoveva Rocha
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

TACTICAL SUPPORT EQUIPMENT,
INC.

Signature
Name
Title

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Exhibit A
Goods Specifications
A.Background
The City of San Bernardino Police Department is a full-service law enforcement agency that provides policing services to over 217,000 residents and covers 62 square miles. The Police Department provides both patrol and investigative services to the community. Some of the specialty investigative services are performed by personnel assigned to the Special Enforcement Bureau, Homicide Unit, and Crimes against Persons Unit. The members of these units are highly trained and conduct complex investigations into incidents involving homicides, major assaults, human trafficking, kidnapping, child abuse, and rape.

The City of San Bernardino has historically been identified as suffering from a high violent crime rate. In an effort to better respond to the problem of violent crime, the Department constantly seeks new methods or technological solutions to improve policing services and investigative outcomes. The Police Department is currently seeking cell site simulation technology in an effort to improve investigative outcomes and give law enforcement personnel equipment that will aid in the quick apprehension of suspects involved in violent criminal behavior.

Requirements

1. Main Base Station:

The main base station must allow authorized investigators the ability to locate cellular devices after a search warrant or a court order has been issued for the use of the device in compliance with California State law.

The main base station must provide a direct finding component and software along with including all of the necessary power amplification, filtering, cabling, antennas, and mounting/rack systems required for the correct installation and function of the equipment and offer a means of protection for the device. The base station device must be capable of transmitting on a minimum of eight frequency bands simultaneously, and any combination of technologies, with the ability to add additional frequencies if needed.

The main base station must also have a mobile workstation capable of displaying and rendering maps. This workstation must be wired via USB and/or Ethernet cables to the device itself, provide wireless connectivity (wireless card), have and advanced video graphic card, and a backlit keyboard function to operate during low light situations. The workstation must also have a platform that will allow it to be mounted into a vehicle.

All features must operate in conjunction with the primary system and provide accurate, real time, locations of the target cellular device without manipulation of the device. To allow investigators to locate the target device and location, the system’s direct finding components and software must work with the main base station and provide a direction of the targeted device in relation to the primary device.

The workstation (computer) must be powerful enough to accommodate having multiple programs open and used at any one time without crashing or requiring an unscheduled restart of the system. These programs will include mapping software, user GUI for the high-power base station, internet browsers for email updates, and the direct find software.

2. Secondary Portable System:

They system must also include a secondary, handheld, portable device to act in conjunction with the main base station. This device should aid in direction finding of cellular devices and include the appropriate mapping and control software. This device should also include a display device loaded with direction finding

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software.

3. Training:

Should include the cost of training up to five members of the police department in the use of both the main base station and the secondary portable system.

4. Performance Bond:

Must include the cost of a performance bond.

5. 5G:

The devices must be equipped to operate in both 4G and 5G bandwidths.

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Exhibit B
Delivery Schedule
Location:

San Bernardino Police Department
710 N D Street
San Bernardino CA 92401
All deliveries should be made Monday through Thursday
between the hours of 7:00 a.m. to 5:00 p.m.

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/ No
Exhibit C
Fee Schedule
VENDOR NAME: Tactical Support Equipment, Inc
ADDRESS: 4029 Barefoot Road Fayetteville, NC 28306
PHONE: 910-425-3360
The undersigned, hereby declare that they have carefully examined the location of the proposed work, familiarized themselves with the local conditions affecting the cost of the work, and have read and examined the terms and conditions for the following Project:

CELLULAR SITE SIMULATOR
The undersigned, hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project in strict accordance with the Vendor Price List for the ELECTRONICALLY SUBMITTED TOTAL VENDOR PRICE LIST.

Item No. Description Quantity Unit Cost Total Amount
1 Main Base Station Cost 1 $360,000.00 $360,000.00
2 Secondary Portable Device Cost 1 Included Included
3 5G Capability Cost 1 $252,000.00 $252,000.00
4 Training Cost 1 Included Included
5 Annual Maintenance/Subscription Fees 3 years
included
0 0
6 Performance Bond 1 $75,000.00 $75,000.00
7 Additional Costs (Explain in attachment)
8 Taxes (8.75%) – Taxes are to be paid by the
City of San Bernardino and not included in
the total vendor price.
1 $60,112.50 $0
TOTAL VENDOR PRICE $687,000.00
Total Number of Additional Pages: 0
Are there any other additional or incidental costs, which will be required by your firm in order to meet the requirements of the Technical Specifications? Yes
If you answered “Yes,” please provide detail of said additional costs:
(circle one)

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1 Please indicate any elements of the Technical Specifications that cannot be met by your firm.

Given the fact that TSE is not installing the equipment, and this is being performed by a 3rd party, the customer will be responsible for any costs associated with the removal of the equipment and re-installation costs. TSE will cover the cost of shipping the gear back for repair.

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Resolution No. 2023-133
Resolution 2023-133
August 16, 2023

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RESOLUTION NO. 2023-133

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

AUTHORIZING THE CITY MANAGER TO EXECUTE A

GOODS PURCHASE AGREEMENT BETWEEN THE CITY

OF SAN BERANRDINO AND TACTICAL SUPPORT

EQUIPMENT, AND THE AGENCY DIRECTOR OF

ADMINISTRATIVE SERVICES TO ISSUE A PURCHASE

ORDER TO TACTICAL SUPPORT EQUIPMENT IN AN
AMOUNT NOT EXCEEDING $687,000.

WHEREAS, the City of San Bernardino was awarded $425,000 in grant funds for the FY2020 Urban Area Security Initiative Grant; and
WHEREAS, the City proposed and received approval to use $400,000 of the Urban Area Security Initiative grant funds for the purchase of a cellular site simulator in support of the goal of preparing for, preventing, and responding to security threats to the region; and WHEREAS, the City issued an RFQ requesting bids for the purchase of cellular site simulator technology and the winning bidder was Tactical Support Equipment, at a cost of $687,000; and
WHEREAS, there are sufficient funds in the Fiscal Year 2023/24 Adopted Budget to complete the purchase.

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

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Manager is hereby authorized to execute a goods purchase agreement, attached hereto as Exhibit “A,” between Tactical Support Equipment and the City of San Bernardino.

SECTION 3.The Agency Director of Administrative Services is authorized to issue a purchase order to Tactical Support Equipment in an amount not to exceed $687,000, supplanting Section 3 of the previously adopted Resolution 2022-239.

SECTION 4.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

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Resolution No. 2023-133
Resolution 2023-133
August 16, 2023

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the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 6. 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 16th day of August 2023.

Hellen Tran, 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. 2023-133
Resolution 2023-133
August 16, 2023

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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. 2023-133, adopted at a regular meeting held on the 16th day of August 2023 by the following vote:

Genoveva Rocha, CMC, City Clerk

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CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this 16th day of August, 2023, by and between the City of San Bernardino, a charter city and municipal corporation organized under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and TACTICAL SUPPORT EQUIPMENT, a CORPORATION with its principal place of business at 4039 Barefoot Rd, Fayetteville, NC. 28306 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

Section 3. INSPECTIONS AND TESTS.

Section 4. WARRANTY.

A. Supplier warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by City as required for final payment under Section 7. Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

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1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

Section 5. PRICES.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications. If such changes affect the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.

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Section 7. PAYMENTS.

Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

E. Acceptance by Supplier of payment of the final Progress Milestone payment pursuant to Section 7.D will constitute a waiver, release and discharge of any and all claims and demands of any kind or character which Supplier then has, or can subsequently acquire against City, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progress Milestone by City will not constitute a waiver, release or discharge of any claims or demands which City then has, or can subsequently acquire, against Supplier, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.

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Section 8. SCHEDULE FOR DELIVERY.

Section 9. TAXES.

A. Supplier’s payment of sales and use tax is not required for due to the following:

1. Supplier is not installing the equipment; installation is being performed by a 3 rd party.

2. The city is responsible for the cost of removal equipment and re-installation cost.

3. Tactical Support Equipment (TSE) will cover cost of shipping equipment back if any repairs are required.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City.

Section 11. SUBCONTRACTS.

Section 12. TITLE AND RISK OF LOSS.

Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods

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which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

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F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

A. Supplier, subcontractors and suppliers will not make, file or maintain a mechanic’s or other lien or claim of any kind or character against the Goods, for or on account of any labor, materials, fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any manner connected with the Agreement (such liens or claims referred to as “Claims”); and Supplier, subcontractor and suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim and Supplier, subcontractor and suppliers agree that this provision waiving the right of Claims will be an independent covenant.

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Section 16. TERMINATION OF AGREEMENT BY CITY.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

Section 17. FORCE MAJEURE
A. Supplier shall not be held responsible for failure or delay in shipping nor City for failure or delay in accepting goods described herein if such failure or delay is due to a Force Majeure Event.

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purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

Section 18. MISCELLANEOUS PROVISIONS.

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Michele Mahan, Lieutenant
With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
Tactical Support Equipment:
4039 Barefoot Rd
Fayetteville, NC. 28306
Attn: Carl Beene, President
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

B. Assignment or Transfer. Supplier shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasonably withheld. Provided, however, that claims for money due or to become due Supplier from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

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F. Governing Law. This Agreement shall be governed by the laws of the State of California.

Venue shall be in San Bernardino County.

I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

O. Electronic Signature. 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. [SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO

AND TACTICAL SUPPORT EQUIPMENT
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF SAN BERNARDINO
APPROVED BY:

Charles E McNeely
Interim City Manager
ATTESTED BY:

Genoveva Rocha
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

TACTICAL SUPPORT EQUIPMENT
Signature
Name
Title

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Exhibit A
Goods Specifications
A.Background
The City of San Bernardino Police Department is a full-service law enforcement agency that provides policing services to over 217,000 residents and covers 62 square miles. The Police Department provides both patrol and investigative services to the community. Some of the specialty investigative services are performed by personnel assigned to the Special Enforcement Bureau, Homicide Unit, and Crimes against Persons Unit. The members of these units are highly trained and conduct complex investigations into incidents involving homicides, major assaults, human trafficking, kidnapping, child abuse, and rape.

Requirements

1. Main Base Station:

2. Secondary Portable System:

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3. Training:

Should include the cost of training up to five members of the police department in the use of both the main base station and the secondary portable system.

4. Performance Bond:

Must include the cost of a performance bond.

5. 5G:

The devices must be equipped to operate in both 4G and 5G bandwidths.

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Exhibit B
Delivery Schedule
Location:

San Bernardino Police Department
710 N D Street
San Bernardino CA 92401
All deliveries should be made Monday through Thursday
between the hours of 7:00 a.m. to 5:00 p.m.

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/ No
Exhibit C
Fee Schedule
VENDOR NAME: Tactical Support Equipment, Inc
ADDRESS: 4029 Barefoot Road Fayetteville, NC 28306
PHONE: 910-425-3360
The undersigned, hereby declare that they have carefully examined the location of the proposed work, familiarized themselves with the local conditions affecting the cost of the work, and have read and examined the terms and conditions for the following Project:

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1 Please indicate any elements of the Technical Specifications that cannot be met by your firm.

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Resolution No. 2022-239
Resolution 2022-239
November 16, 2022

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RESOLUTION NO. 2022-239

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

APPROVING THE CELLULAR SITE SIMULATOR USAGE

AND PRIVACY POLICY AND AUTHORIZING THE

AGENCY DIRECTOR OF ADMINISTRATIVE SERVICES
TO AMEND THE ADOPTED FY2022/2024 BUDGET BY
$460,000, AND ISSUE A PURCHASE ORDER TO TACTICAL

SUPPORT EQUIPMENT IN AN AMOUNT NOT TO
EXCEED $860,000.

WHEREAS, the City of San Bernardino was awarded $425,000 in grant funds for the FY2020 Urban Area Security Initiative Grant; and
WHEREAS, the City proposed and received approval to use $400,000 of the Urban Area Security Initiative grant funds for the purchase of a cellular site simulator in support of the goal of preparing for, preventing, and responding to security threats to the region; and WHEREAS, RFQ F-22-73 was issued requesting bids for the purchase of cellular site simulator technology and the winning bidder was Tactical Support Equipment, at a cost of $848,786; and
WHEREAS, there are sufficient funds in the Asset Forfeiture Fund to supply the remaining balance and contingency of $460,000 and complete the purchase; and WHEREAS, the Police Department has created a written policy that will serve as a guide regarding the proper circumstances and requirements for use of cellular site simulator equipment.

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

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Manager is hereby authorized to execute a goods purchase agreement, attached hereto as Exhibit “A,” between Tactical Support Equipment and the City of San Bernardino.

SECTION 3.The Agency Director of Administrative Services is authorized to amend the Adopted FY2022/2024 budget by $460,000 and issue a purchase order to Tactical Support Equipment in an amount not to exceed $860,000.

SECTION 4. The Cellular Site Simulator Usage and Privacy Policy is adopted as the guiding policy regarding the use of cellular site simulator equipment by police personnel.

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Resolution No. 2022-239
Resolution 2022-239
November 16, 2022

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SECTION 5.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 16th day of November 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. 2022-239
Resolution 2022-239
November 16, 2022

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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. 2022-239, adopted at a regular meeting held on the 16th day of November 2022 by the following vote:

Genoveva Rocha, CMC, City Clerk

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1 CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this _____ day of __________, 2022, by and between the City of San Bernardino, a charter city and municipal corporation organized under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and Tactical Support Equipment Incorporated, a North Carolina corporation with its principal place of business at 4039 Barefoot Rd, Fayetteville, NC 28306 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval.

Machinery, equipment or material installed in the Goods without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the question of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods. Material samples will be submitted at City’s request.

Section 3. INSPECTIONS AND TESTS.

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2 rejection or acceptance thereof.

Section 4. WARRANTY.

A. Supplier warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s vehicle warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by City as required for final payment under Section 7. Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

E. In the event of a breach by Supplier of its obligations under this Section 4, City will not be limited to the remedies set forth in this Section 4, but will have all the rights

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3 and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.

Section 5. PRICES.

Unless expressly provided otherwise, all prices and fees specified in Exhibit “B,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications.

If such changes affect the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.

Section 7. PAYMENTS.

A. Terms of payment, are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall not constitute acceptance of Goods.

B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progress Milestones are met.

Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of payment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice. Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.

C. Payments otherwise due may be withheld by City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge taxes or other obligations. If the causes for which

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4 payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement.

The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule.

B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in

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5 scheduling the delivery so that City can maximize the efficient completion of such project(s).

Section 9. TAXES.

A. Supplier agrees to timely pay all sales and use tax (including any value added or gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local taxing authority on the ultimate purchase price of the Goods provided under this Agreement.

B. Supplier will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors. Supplier will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.

C. All other taxes, however denominated or measured, imposed upon the price of the Goods provided hereunder, will be the responsibility of Supplier. In addition, all taxes assessed by any taxing jurisdiction based on Supplier property used or consumed in the provision of the Goods such as and including ad valorem, use, personal property and inventory taxes will be the responsibility of Supplier.

D. Supplier will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Supplier hereunder.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City. Supplier shall have no power or authority by this Agreement to bind City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

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6 Section 12. TITLE AND RISK OF LOSS.

Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Goods. However, Supplier will be liable for any loss or damage to the Goods and/or the materials caused by Supplier or its subcontractors, their agents or employees, and Supplier will replace or repair said Goods or materials at its own cost to the complete satisfaction of City. Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

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7 1. Commercial General Liability Insurance, of at least $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage. The policies required under this Section shall give City, its officials, officers, employees, agents or volunteers additional insured status. Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, self- insurance or other coverage maintained by the City or any additional insureds shall not be called upon to contribute to any loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as additional insured pursuant to this Agreement.

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8 D. Evidence of Insurance. Supplier shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

Section 16. TERMINATION OF AGREEMENT BY CITY.

If City’s cost of obtaining the Goods, including compensation for additional managerial

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9 and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

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10 thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

Section 18. MISCELLANEOUS PROVISIONS.

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Lieutenant Michele Mahan
With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
SUPPLIER:

Tactical Support Equipment Inc.
4039 Barefoot Road
Fayetteville, NC 28306
Attn: Carl Beene
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

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11 C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

F. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

O. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered

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12 as an original signature for all purposes and shall have the same force and effect as an original signature
P. Federal Requirements. When funding for the Goods is provided, in whole or in part, by an agency of the federal government, Supplier shall also fully and adequately comply with the provisions included in Exhibit “D”, attached hereto and incorporated herein by reference (the “Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON FOLLOWING PAGE]

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13 SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO

AND TACTICAL SUPPORT EQUIPMENT INC
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF SAN BERNARDINO
APPROVED BY:

Robert D. Field
City Manager
ATTESTED BY:

Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

SUPPLIER

TACTICAL SUPPORT EQUIPMENT
INC.

Signature
Name
Title

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14 Exhibit A
Goods Specifications
[ATTACHED]

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15 Exhibit B
Delivery Schedule
Equipment shall be delivered to the San Bernardino Police Department at 710 N. D Street, San Bernardino, CA 92401 within 180 days of issuance of a purchase order.

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16 Exhibit C
Fee Schedule
[ATTACHED]

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17 Exhibit D
Federal Requirements
In addition to the terms and conditions outlined by the Agreement, Supplier must comply with the following:

1. Supplier must comply with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."

2. Supplier shall comply with the with the Davis-Bacon Act (40 U.S.C. 276a to 276a- 7) as supplemented by Department of Labor regulations (29 CFR Part 5).

3. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Supplier must comply with the Copeland “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR Part 3, “Suppliers and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The City shall report all suspected or reported violations to the responsible federal contracting officer.

4. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) — If applicable, Supplier must comply with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327–333), as supplemented by Department of Labor regulations (29 CFR Part 5). Under Section 102 of the Act, each Supplier is required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 11/2 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic is required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

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18 5. Rights to Inventions Made Under a Contract or Agreement —If the Federal award meets the definition of "funding agreement" under 37 CFR § 401.2 (a) and the Supplier wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.

6. Clean Air Act (42 U.S.C. 7401 et seq.), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), as amended — Supplier shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (41 U.S.C. 7401 et seq. ), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq. ), Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), as amended. City will report violations to the responsible federal contracting officer and the Regional Office of the Environmental Protection Agency (EPA).

7. Supplier must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

8. Debarment and Suspension (Executive Orders 12549 and 12689) — Contract awards shall not be made to parties listed on nonprocurement portion of the General Services Administration's Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs in accordance with Executive Orders 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235),“Debarment and Suspension.” This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than Executive Order 12549. Suppliers with awards that exceed the small purchase threshold

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19 must provide the required certification regarding its exclusion status and that of its principals.

9. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) — Supplier shall comply with the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Under the Amendment each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C.1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the City.

10.Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment — Supplier is prohibited from: (1) Procuring or obtaining; (2) extending or renewing a contract to procure or obtain; or (3) entering into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, this prohibition also extends to video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities) as well as telecommunications or video surveillance services provided by such entities or using such equipment. In addition, this prohibition also extends to telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

11.Domestic Preference — As appropriate and to the extent consistent with law, the Supplier shall, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). For purposes of this section: (1) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through

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20 the application of coatings, occurred in the United States and (2) "Manufactured products" means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: December 6, 2023
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Ernesto Salinas, Deputy Director of Operations
Department: Public Works
Subject: Five-Year Capital Project Needs Analysis for FY 2024/25 to FY 2028/2029 for Measure I Expenditures (All Wards)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023-187 approving the Five-Year Capital Project Needs Analysis (FY 2024/2025 through FY 2028/29) for Measure I Expenditure.

Executive Summary:

Adoption of Resolution No. 2023-187 will approve the Five-Year Measure I Capital Needs Analysis (CPNA), which identifies project funding needs by fiscal year. The CPNA includes the anticipated funding sources, funding amounts and project phasing for eligible projects. This information is needed from each local agency to assist SBCTA staff in preparing an overall capital needs and cash flow analysis for the Valley Major Street Program. The resolution is required to participate in the Valley Major Streets Program. The projects identified in the Resolution have been previously identified in the City’s Capital Improvement Program and will not impact the General Fund.

Background
In November 1989, voters approved Measure I that authorized the San Bernardino County Transportation Authority (SBCTA) to impose a one-half of one percent retail transaction and use tax. This tax was applicable throughout the County for a period of 20 years beginning April 1, 1990, and extending to March 31, 2010, and is commonly known as the 1/2-Cent Sales and Road Tax (Measure I). In November 2004, voters approved an extension of the 1/2-cent sales tax for an additional 30 years from April 1, 2010, through March 31, 2040.

Measure I provides funding for the Valley Major Streets Program for regional arterial projects that have been identified in the SBCTA Nexus Study and are included in the City's Regional Traffic Circulation System Master Facilities Plan and Impact Fee Program. To participate in the Valley Major Street Program, each agency must annually adopt a Five-Year CPNA, which identifies project funding needs by fiscal year.

The CPNA includes the anticipated funding sources, funding amounts, and project

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phasing for eligible projects that were included in the SBCTA Nexus Study. This information is needed from each local agency to assist SBCTA staff in preparing an overall capital needs and cash flow analysis for the Valley Major Street Program.

Discussion
The projects listed in the proposed FY 2024/2025 through 2028/2029 CPNA for the City of San Bernardino have previously been identified in the City's Capital Improvement Program and are included in the adopted Master Facilities Plan for the Regional Circulation System Impact Fee (Development Impact Fee).

The key difference between this Program and the Measure I Five-Year Plan is that the projects listed in the CPNA are those select projects that qualify for and intend to use funding from the Measure I Valley Major Street Program, along with matching funds collected from new development through the City's Regional Circulation System Impact Fee. The Regional Circulation System Impact Fee was adopted in anticipation of this program, and to satisfy the requirement that the new development pay its fair share toward regional improvements funded by the Measure I Valley Major Street Program.

Only projects that will use Valley Major Street Program funds are required to be included in the CPNA.

The four projects listed below are recommended for inclusion in the CPNA. Each project has already been previously approved by the City Council and is either in design or construction. Up to 67.6% of the project cost will be reimbursable to the City though the Measure I Valley Major Street Program funding.

1. Mt. Vernon Bridge Replacement Project (SS04-012)

2. State Street, Phase 1, 16th Street to Base Line Street (SS04-009)

3. 40th Street Widening from Johnson Street to Electric Avenue (SS04-014)

4. “H” Street Widening from 40th Street to Kendall Drive (SS04-152). 2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No. 1f: Improved Operational & Financial Capacity - Create an asset management plan. This project will contribute to financial stability by creating an asset management plan that will aim to minimize risks and project costs and continue to monitor and evaluate project strategies.

Fiscal Impact
There is no fiscal impact to the General Fund for this action.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023-187 approving the Five-Year Capital Project Needs Analysis (FY 2024/2025 through FY 2028/29) for Measure I Expenditure.

Attachments
Attachment 1 Resolution No. 2023-187
Attachment 2 Project Location Maps

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Ward:

All Wards
Synopsis of Previous Council Actions:

October 21, 2020 Resolution 2020-258 adopted Capital Project Needs Analysis for FY 2021/22 – FY 2025/26
July 21, 2021 Resolution 2021-179 adopted Capital Project Needs Analysis for FY 2022/23 – FY 2026/27
August 17, 2022 Resolution 2022-184 adopted Capital Project Needs Analysis for FY 2023/24 – FY 2027/28

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Resolution No. 2023-187
Resolution 2023-187
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RESOLUTION NO. 2023-187

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

ADOPTING THE FIVE-YEAR CAPITAL PROJECT NEEDS
ANALYSIS (FY 2024/2025 THROUGH FY 2028/2029) FOR

MEASURE I EXPENDITURES

WHEREAS, San Bernardino County voters approved passage of Measure I in November 2004, authorizing the San Bernardino County Transportation Authority to impose a one-half of one percent retail transactions and use tax applicable in the incorporated and unincorporated territory of the County of San Bernardino; and

WHEREAS, revenue from the tax can only be used for transportation improvement and traffic management programs authorized in the Expenditure Plan set forth in Ordinance No. 04-01 of the Authority; and
WHEREAS, the Strategic Plan requires each local jurisdiction applying for revenue from certain Measure I Programs to annually adopt and update a Five-Year Capital Project Needs Analysis; and
WHEREAS, the projects listed in the proposed FY 2024/2025 through 2028/2029 CPNA for the City of San Bernardino have previously been identified in the City's Capital Improvement Program and are included in the adopted Master Facilities Plan for the Regional Circulation System Impact Fee (Development Impact Fee).

WHEREAS, the following four projects are recommended for inclusion in the CPNA:

1. Mt. Vernon Bridge Replacement Project (SS04-012).

2. State Street, Phase 1, 16th Street to Base Line Street (SS04-009).

3. 40th Street Widening from Johnson Street to Electric Avenue (SS04-014).

4. “H” Street Widening from 40th Street to Kendall Drive (SS04-152).

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

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Council hereby adopts the five-year capital projects needs analysis (FY 2024/25 through FY 2028/29) for Measure I expenditure attached hereto as Exhibit A.

SECTION 3.That the 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

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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 4.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 5. 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 6th day of December 2023.

Helen Tran, Mayor
City of San Bernardino
Attest:
__________________________________
Genoveva Rocha, CMC, City Clerk
Approved as to form:
_________________________________
Best Best & Krieger LLP
City Attorney

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Resolution No. 2023-187
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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. 2023-187, adopted at a regular meeting held on the 6 th day of December 2023 by the following vote:

Genoveva Rocha, CMC, City Clerk

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Exhibit A
Capital Project Needs Analysis

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Nexus Project CostDev. Loan?No5-Year Advance?YesPublic Share:67.6%Dev. Share:32.40%Project InformationPhaseFunding PRIOR* FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 FUTURE PA&EDTotal Cost: $0.00Fund Type:MSI Arterial $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - PS&ETotal Cost:$435,000.00Fund Type:MSI Arterial $ 240,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 195,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - ROWTotal Cost: $0.00Fund Type:MSI Arterial $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - CONSTTotal Cost:$8,500,000.00Fund Type:MSI Arterial $ 5,746,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 2,754,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - Reference: Measure I Policies 40005 and 40006 *Prior should identify any expenses incurred in prior years that have not yet been reimbursed by SBCTA including anticipated FY 2023/2024 expenses.

Capital Project Needs AnalysisCity of San BernardinoValley Arterial Sub-ProgramState Street Extension - Phase I - Baseline Street to 16th StreetCurrent Total Project Cost Estimate:$0.00Total Measure I Request:$5,986,000.00(Summation of Measure I)Comments:

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Nexus Project Cost8,500,000$ Dev. Loan?No5-Year Advance?YesPublic Share:67.6%Dev. Share:32.40%Project InformationPhaseFunding PRIOR* FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 FUTURE PA&EDTotal Cost:$103,000.00Fund Type:MSI Arterial $ 70,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 33,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - PS&ETotal Cost:$626,000.00Fund Type:MSI Arterial $ 423,500.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 202,500.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - ROWTotal Cost:$2,306,000.00Fund Type:MSI Arterial $ 746,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 1,560,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - CONSTTotal Cost:$7,941,560.00Fund Type:MSI Arterial $ 1,275,000.00 $ - $ - $ - $ 866,560.00 $ 3,380,000.00 $ - DEV FEE $ 500,000.00 $ - $ - $ - $ 300,000.00 $ 1,620,000.00 $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - Reference: Measure I Policies 40005 and 40006 *Prior should identify any expenses incurred in prior years that have not yet been reimbursed by SBCTA including anticipated FY 2023/2024 expenses.

Comments:

Capital Project Needs AnalysisCity of San BernardinoValley Arterial Sub-Program40th Street Widening from Johnson Street to Electric AvenueCurrent Total Project Cost Estimate:$0.00Total Measure I Request:$6,761,060.00(Summation of Measure I)

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Nexus Project Cost7,500,000$ Dev. Loan?-Select Yes/No-5-Year Advance?-Select Yes/No-Public Share:67.6%Dev. Share:32.40%Project InformationPhaseFunding PRIOR* FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 FUTURE PA&EDTotal Cost:$25,500.00Fund Type:MSI Arterial $ 17,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 8,500.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - PS&ETotal Cost:$210,500.00Fund Type:MSI Arterial $ 130,500.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 80,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - ROWTotal Cost:$1,190,000.00Fund Type:MSI Arterial $ 450,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 740,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - CONSTTotal Cost:$6,124,000.00Fund Type:MSI Arterial $ 676,000.00 $ - $ - $ - $ 800,000.00 $ 2,704,000.00 $ - DEV FEE $ 324,000.00 $ - $ - $ - $ 324,000.00 $ 1,296,000.00 $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - Reference: Measure I Policies 40005 and 40006 *Prior should identify any expenses incurred in prior years that have not yet been reimbursed by SBCTA including anticipated FY 2023/2024 expenses.

Comments:

Capital Project Needs AnalysisCity of San BernardinoValley Arterial Sub-ProgramH Street Widening from 40th Street to Kendall Drive Current Total Project Cost Estimate:$0.00Total Measure I Request:$4,777,500.00(Summation of Measure I)

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Nexus Project Cost288,000,000$ Dev. Loan?-Select Yes/No-5-Year Advance?YesPublic Share:67.6%Dev. Share:32.40%Project InformationPhaseFunding PRIOR* FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 FUTURE PA&EDTotal Cost:$5,714,962.00Fund Type:MSI Arterial $ 227,853.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 237,109.00 $ - $ - $ - $ - $ - $ - HBP $ 4,647,825.00 $ - $ - $ - $ - $ - $ - RXR $ 602,175.00 $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - PS&ETotal Cost:$321,201.00Fund Type:MSI Arterial $ 100,000.00 $ - $ - $ - $ - $ - $ - DEV FEE $ 170,201.00 $ 17,000.00 $ 17,000.00 $ 17,000.00 $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - ROWTotal Cost:$78,381,300.00Fund Type:MSI Arterial $ - $ - $ - $ - $ - $ - $ - DEV FEE $ 62,250,798.00 $ - $ - $ - $ - $ - $ - HBP $ 8,065,251.00 $ - $ - $ - $ - $ - $ - RXR $ 8,065,251.00 $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - CONSTTotal Cost:$27,311,572.00Fund Type:MSI Arterial $ 1,015,013.00 $ 2,320,195.00 $ 6,615,969.00 $ 1,292,395.00 $ - $ - $ - DEV FEE $ 538,000.00 $ 700,000.00 $ 880,000.00 $ 550,000.00 $ - $ - $ - OTHER $ 13,400,000.00 $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - - Select Fund - $ - $ - $ - $ - $ - $ - $ - Other: ______ $ - $ - $ - $ - $ - $ - $ - Reference: Measure I Policies 40005 and 40006 $0.00Total Measure I Request:$11,571,425.00
Capital Project Needs AnalysisCity of San BernardinoValley Arterial Sub-ProgramMt. Vernon Bridge ReplacementCurrent Total Project Cost Estimate:
*Prior should identify any expenses incurred in prior years that have not yet been reimbursed by SBCTA including anticipated FY 2023/2024 expenses. (Summation of Measure I)Comments:

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ATTACHMENT NO. 2

PROJECT LOCATION MAPS
State Street Extension Phase 1

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40th Street from Johnson Street to Electric Avenue
H Street from Kendall Drive Street to 40th Street

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Mt. Vernon Viaduct Bridge between 2nd Street and 5th Street

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: December 6, 2023
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Ernesto Salinas, Deputy Director of Operations
Department: Public Works
Subject: Award of Agreement for Construction of Nicholson Neighborhood Park Improvements (Ward 6)
Recommendation:

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

1. Approve the award of an Agreement with Urban Habitat in the amount of $8,147,197.56 for Nicholson Neighborhood Park Improvements (Project); and

2. Authorize the project construction, construction contingencies, and construction management costs in the total amount of $ $9,437,197.56 for construction of the Project; and

3. Authorize the City Manager or designee to execute all documents with Urban Habitat; and

4. Authorize the City Manager or designee to expend the contingency fund, if necessary, to complete the project.

Executive Summary:

Awarding the Agreement for construction of the Nicholson Park Improvements Project would allow the construction of park amenities, returning the park to a safe and an attractive condition. The Agreement would allow the City to issue Urban Habitat a Notice to Proceed, initiating the process to construct the park improvements. The agreement will include Urban Habitat’s base bid construction cost of $8,147,197.56. Additional funds are recommended for construction contingencies and construction management costs for a total of $1,290,000. The total cost of construction, construction management, and construction contingencies is $9,437,197.56.

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Background
Nicholson Neighborhood Park, located at 2737 West 2nd Street, is a City-owned

9.52-acre park facility that includes recreational amenities and a community center building. The recreational area of the park currently consists of two baseball diamonds with a concession/score keeper area (restroom included), a community garden, outdoor basketball court, picnic shelter, 10 picnic tables, two barbeque grills, a playground area, restrooms, and parking lot. While the park area continues to see some general community use, the community center building has been closed for programming for several years due to financial challenges.

Over the past several years, Nicholson Neighborhood Park has become a target for vandalism due to the lack of programmed activities at the site. Many of the supporting outbuildings, irrigation, and lighting systems have been damaged beyond repair.

During preparation of the FY 2020/21 Capital Improvement Program (CIP), staff recommended rehabilitation of the park to return the property to a safe and attractive condition. Restoration of the park and its amenities will assist in drawing positive activities back to the area and restore recreational opportunities for the surrounding neighborhood.

On June 24, 2020, the Mayor and City Council approved Resolution No. 2020-128 adopting the City’s Annual Operating Budget for Fiscal Year 2020/21. The budget included CIP Project PR21-006 for Nicholson Neighborhood Park Improvements (“Project”). Funding to support the Project has been established in the amount of $1,000,000 in Community Development Block Grant (CDBG) funding and $150,000 in Meadowbrook Insurance Claim funds, for a total Project budget of $1,150,000.

On March 3, 2021, the Mayor and City Council adopted Resolution No. 2021-37 approving award of a Design Services Agreement with RHA Landscape Architects - Planners, Inc. for the Nicholson Park Improvements in the amount of $215,295.

On February 2, 2022, the Mayor and City Council adopted Resolution No. 2022-26 allocating $8,850,000 in American Rescue Plan Act (ARPA) funds to complete the project.

On August 3, 2022, the Mayor and City Council approved Amendment No. 1 to the Professional Design Services Agreement with RHA Landscape Architects - Planners, Inc. adding extra design services in the amount of $197,250 and increasing the purchase order to a total amount not-to-exceed $412,545 for the preliminary design of Nicholson Park.

On August 2, 2023, the Mayor and City Council approved Amendment No. 2 to the Professional Design Services Agreement with RHA Landscape Architects – Planners, Inc. adding extra design services in the amount of $47,300 and increasing the purchase order to a total amount not-to-exceed $459,845 for the preliminary design of Nicholson Park.

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Discussion
The Project was advertised for public bidding on August 8, 2023, on PlanetBids, the City website, and in the San Bernardino Sun on August 10 and 17, 2023.

Six sealed bids were received, and opened on August 31, 2023, as follows:

Bidder City Base Bid
Urban Habitat La Quinta $8,147,197.56
Act 1 Construction Norco $8,582,096.00
Horizons Construction Orange $9,410,465.00
PUB Construction Diamond Bar $9,816,284.58
H&H General Contractors Orange $11,613,630.00
Kasa Construction Chino $12,055,500.00
Staff has reviewed all bid packages and determined that Urban Habitat of La Quinta, California, is the lowest responsible and responsive bidder with a total base bid amount of $8,147,197.56.

In addition to these construction costs, staff anticipates the need for a construction contingency amount to provide for any unforeseen work, and construction management costs. The cost of these items is $1,290,000.00.

The total cost of construction, construction management, and construction contingencies is $9,437,197.56. Funding for the Project was previously established in FY 2020/21 CIP budget in the CDBG and Liability Insurance funds, in addition to the allocation of ARPA funds in FY 2021/22. The total amount available for the construction phase of the Project is $9,540,155.
2021-2025 Strategic Targets and Goals
Authorizing the execution of this agreement aligns with Key Target No. 4: Economic Growth & Development. The additional amenities to Nicholson Neighborhood Park will improve community participation for new recreational activities and provide a safe and well-maintained community park.

Fiscal Impact
There is no General Fund impact associated with this action.

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

1. Approve the award of an Agreement with Urban Habitat in the amount of $8,147,197.56 for Nicholson Neighborhood Park Improvements (Project); and

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2. Authorize the project construction, construction contingencies, and construction management costs in the total amount of $ $9,437,197.56 for construction of the Project; and

3. Authorize the City Manager or designee to execute all documents with Urban Habitat; and

4. Authorize the City Manager or designee to expend the contingency fund, if necessary, to complete the project.

Attachments
Attachment 1 Contract for Construction with Urban Habitat Attachment 2 Bid Tabulation
Attachment 3 Location Map
Ward:

Ward 6
Synopsis of Previous Council Actions:

April 15, 2020 Mayor and City Council approved the City's FY 2020/21 CDBG Action Plan.

June 24, 2020 Mayor and City Council adopted Resolution No. 2020-128 approving Capital Improvement Program FY 2020/21.

March 3, 2021 Resolution No. 2021-37 adopted agreement with RHA Landscape Architects - Planners, Inc. to provide the design services for the Nicholson Neighborhood Park.

February 2, 2022 Mayor and City Council adopted Resolution No. 2022-26 assigning American Rescue Plan (ARP) funds in the
amount of $8,850,000 to the Nicholson Park Project in lieu of future grant funding.

August 3, 2022 Amendment No. 1 to agreement with RHA Landscape Architects - Planners, Inc. to provide additional design services for the Nicholson Neighborhood Park.

August 2, 2023 Amendment No. 2 Agreement with RHA Landscape Architects – Planners, Inc. for Nicholson Park Design

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00 52 13 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. [***INSERT***] is made and entered into this 6 day of December, 2023 by and between the CITY OF SAN BERNARDINO , with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, sometimes hereinafter called the “City” and Urban Habitat, sometimes hereinafter called “Contractor.”
WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:

ARTICLE 1. SCOPE OF WORK.

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

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

ARTICLE 2. TIME FOR COMPLETION.

Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 260 calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

ARTICLE 3. CONTRACT PRICE.

The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of eight million one hundred forty-seven thousand one hundred ninety-seven Dollars and fifty-six Cents ($8,147,197.56). Payment shall be made as set forth in the General Conditions. The City will pay to Contractor compensation based upon the prices set forth in the Bid Schedule.

ARTICLE 4. LIQUIDATED DAMAGES.

Contractor acknowledges that the City will sustain actual damages for each and every Day completion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages.

Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $1,500 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the -1-

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Contract. This Section does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor's default, from terminating the Contractor.

ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.

The “Contract Documents” include the following:

Notice Inviting Bids
Instructions to Bidders
Bid Forms
Bid Acknowledgement
Bid Schedule
Bid Guarantee
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor DIR Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
Contract for Construction
General Conditions
Special Conditions
Specifications
AddendaConstruction Plans and Drawings and Addenda
Applicable Local Agency Standards and Specifications, as last revised Reference Specifications
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.

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

ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.

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

ARTICLE 7. INDEMNIFICATION.

Contractor shall provide indemnification and defense as set forth in the General Conditions. -2-

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ARTICLE 8. PREVAILING WAGES.

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

ARTICLE 9. FALSE CLAIMS.

Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees. Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.

CITY OF SAN BERNARDINO Urban Habitat
[IF CORPORATION, TWO SIGNATURES,

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

Charles A. Montoya
City Manager
By:

Its:

ATTEST:

By:

Printed Name:

Genoveva Rocha, CMC, City Clerk
By:

Its:APPROVED AS TO FORM:

Printed Name:

By:

Best Best & Krieger LLP
City Attorney
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
(CONTRACTOR’S SIGNATURE MUST BE

NOTARIZED AND CORPORATE

SEAL AFFIXED, IF APPLICABLE)

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

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally , who proved to me on the basis of satisfactoryappeared 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
Corporate Officer

DESCRIPTION OF ATTACHED DOCUMENT


Title(s) Title or Type of Document
Number of Pages
Partner(s) Limited
General




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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00 61 13 – BOND FORMS
Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the CITY OF SAN BERNARDINO , with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, (hereinafter referred to as the “City”) has awarded to _________________________, (hereinafter referred to as the “Contractor”) an agreement for Contract No._________, (hereinafter referred to as the “Project”).

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

NOW, THEREFORE, we, ______________________, the undersigned Contractor and ________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ 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 Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

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

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by the City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s -6-

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

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

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

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

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

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

Signer is representing:

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

Signer is representing:

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

END OF PERFORMANCE BOND
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Payment Bond (Labor and Materials).

KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the CITY OF SAN BERNARDINO , with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401 (hereinafter designated as the “City”), by action taken or a resolution passed ___________________ , 20_____, has awarded to ________________________ hereinafter designated as the “Principal,” a contract for the work described as follows: Contract No.____________ (the “Project”); and WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ 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 Civil Code Section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

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

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or -11-

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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 claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or the City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.

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

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

Signer is representing:

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

Signer is representing:

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

END OF PAYMENT BOND
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00 72 00 – GENERAL CONDITIONS
ARTICLE 1 -TERMS; DEFINITIONS

1.1 Defined Terms
A. Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1. Act of God – An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.

2. Addenda -- Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.

3. Additional Work -- New or unforeseen work will be classified as “Additional Work” when the Engineer determines that it is not covered by the Contract.

4. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.

5. Bid -- The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other terms for the Work to be performed.

6. Bid Guarantee -- The Bid Bond, cashier’s check, or certified check to be made by the Bidder, which is to accompany the Bid as a guaranty of good faith to enter into a written contract.

7. Bidder -- The individual or entity who submits a Bid directly to the City.

8. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.

9. Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price and/or Contract Times as the result of a Contractor-claimed change to the Work. This term may also be referred to as a Change Order Proposal (“COP”), or Request for Change (“RFC”).

10. City’s Representative – The Director of Public Works, and acting through properly authorized agents, such as the Engineer or such other agents acting within the scope of the particular duties entrusted to them. Also sometimes referred to as the “City’s Representative” or “Representative” in the Contract Documents. The terms the City and Owner may be used interchangeably
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11. Claim -- A demand or assertion by the City or Contractor seeking an adjustment of Contract Price or Contract Times, 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.

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

13. Contract Documents -- The documents listed in Section 00 52 13, Article 5 of the Contract for Construction. Some documents provided by the City to the Bidders and Contractor, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.

14. Contract Price -- Amount to be paid by the City to the Contractor as full compensation for the performance of the Contract and completion of the Work, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.

15. Contract Time -- The number of days or the dates stated in the Contract Documents to: achieve defined milestones, if any; and to complete the Work so that it is ready for final payment.

16. Contractor -- The individual or entity with which the City has contracted for performance of the Work.

17. Contractor’s Designated On-Site Representative -- The Contractor’s Designated On-Site Representative will be identified by the Contractor and shall not be changed without prior written consent of the City.

18. Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by Contractor at the time it submitted its bid or entered the Contract. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.

19. Daily Rate -- The Daily Rate stipulated in the Contract Documents as full compensation to the Contractor due to the City’s unreasonable delay to the Project that was not contemplated by the parties.

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

21. 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 -16-

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inspection, reference standard, test, or approval referenced in the Contract Documents.

22. Demobilization -- The complete dismantling and removal by the Contractor of all of the Contractor’s temporary facilities, equipment, and personnel at the Site.

23. Drawings -- That part of the Contract Documents prepared by of the Engineer of Record which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor Submittals are not Drawings as so defined.

24. 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.

25. Engineer -- Whenever not qualified, shall mean the City Engineer or the Engineer authorized to act for and in behalf of the City, acting either directly or through properly authorized agents, such agents acting severally within the scope of the particular duties entrusted to them.

26. Force Majeure Event -- An event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

27. Hazardous Waste -- The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time, or any substance or material identified as hazardous under any state or federal statute governing handling, disposal and/or cleanup of any such substance or material, whichever is more restrictive.

28. Holiday – Holidays occur on:

New Year’s Day - January 1
President’s Day – Third Monday in February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
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Christmas Eve – December 24
Christmas Day - December 25
Day After Christmas – December 26
New Year’s Eve – December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.

29. Notice of Award -- The written notice by the City to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, the City will sign and deliver the Contract.

30. Notice of Completion -- The form which may be executed by the City constituting final acceptance of the Project.

31. Notice to Proceed -- A written notice given by the City to Contractor fixing the date on which the Contractor may proceed with the Work and when Contract Times will commence to run.

32. Project -- The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part.

33. Record Drawings – The record set of as-builts prepared by the Contractor during the Work in accordance with the requirements of the General Conditions.

34. Recyclable Waste Materials -- Materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include, but are not limited to, asphalt, concrete, brick, concrete block, and rock.

35. Sample -- A physical example furnished by the Contractor to illustrate materials, equipment or workmanship; to establish standards by which the Work will be judged.

36. Schedule of Submittals -- A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.

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

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

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applied to the Work, and certain administrative requirements and procedural matters applicable thereto.

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

41. Subcontractor -- An individual or entity other than a Contractor having a contract with any other entity than the City for performance of any portion of the Work at the Site.

42. Submittal -- Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.

43. Successful Bidder -- The responsible Bidder submitting a responsive Bid to whom the City makes an award.

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

45. Underground Facilities -- All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.

46. Unit Price Work -- Work to be paid for on the basis of unit prices as provided by the Contractor in its Bid or as adjusted in accordance with the Contract Documents.

47. Warranty -- A guarantee provided to the City by the Contractor that the Work will remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this state, whichever is longer.

48. Work -- The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.

1.2 Terminology.

A. The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.

1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition.
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2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

4. Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.

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

ARTICLE 2 -PRELIMINARY MATTERS

2.1 Delivery of Contract Documents
A. Within ten (10) Days after receipt of the Notice of Award and before the City will execute the Contract, the Contractor shall furnish and file with the City a signed Contract and the necessary Performance Bond, Payment Bond, and Certificates of Insurance and Endorsements, as well as any other documents specified in the Contract Documents.

2.2 Bonds
A. Contractor shall submit the bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Procedure section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to the City conditioned upon the faithful performance by the Contractor of all requirements of the Contract Documents. Each of the bonds shall be in a sum no less than one hundred percent (100%) of the Contract Price. Bonds shall be delivered to the City within ten (10) Days after receipt of the Notice of Award and before execution of the Contract by the City.

2.3 Evidence of Insurance
A. Prior to commencing any Work but no later than ten (10) Days after receipt of the Notice of Award, the Contractor shall submit or cause to be submitted any and all Certificates of Insurance and Endorsements, showing that the Contractor has the required insurance, to the attention of the City. Such insurance is to be provided at the sole cost and expense of the Contractor. No Work shall be performed until all of the required insurance has been received and approved.
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2.4 2.5
Execution of the Contract
A. Upon receipt of the required Contract Documents, the City will execute the Contract, establishing the Effective Date of the Contract.

Contractor’s Failure to Perform
A. Should Contractor fail to comply with timelines provided above, the City shall retain the right to enforce and collect on the Contractor’s Bid Guarantee, rescind award to the Contractor and award the Contract to the next lowest responsive, responsible bidder as determined by the City. If the City elects to accept bonds and insurance submitted late, the Contract Times will begin to run as of the date stated in the Notice to Proceed. However, the number of days beyond the original ten (10) Days it took to receive the properly executed Contract and related items may be deducted from the Contract Times.

2.6 2.7

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

Work shall commence within ten (10) Days of the date stated in the Notice to Proceed.

The Contract Times begin to run on the date specified in the Notice to Proceed. No Work shall be done at the Site prior to the issuance of the Notice to Proceed.

Copies of Documents
A. Contractor will be furnished, free of charge, five (5) copies of the Contract Documents. Additional copies may be obtained at cost of reproduction. Contractor shall maintain a clean, undamaged set of Contract Documents, including Submittals, at the Project site.

Substitution Requests, Schedule of Submittals, and Schedule A. Substitution Requests. Within fifteen (15) Days after Notice of Award (unless otherwise specified in the Contract Documents), Contractor shall provide all substitution requests as further described in Section 00 72 00, Article 6.5.

B. Schedule of Submittals. Within five (5) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), Contractor shall submit to the City a Schedule of Submittals that conforms with the requirements of Section 00 72 00, Article 5.21.

C. Schedule. Within ten (10) days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), the Contractor shall submit a construction schedule that conforms with the requirements of Section 00 72 00, Article 8.2.

2.9 Preconstruction Conference; Designation of Authorized Representatives.

A. Before any Work at the Site is started, a conference attended by the City, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules -21-

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referred to herein, procedures for handling Submittals and Shop Drawings, processing applications for payment, and maintaining required records.

B. At this conference the City and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party.

2.10 Subcontractor Mobilization Meeting.

A. Prior to the start of each major Subcontractor’s Site Work, the Contractor, the involved Subcontractor, and Engineer shall attend a pre-start meeting to discuss the schedule, coordination, procedures, and other administrative issues.

2.11 Authority of Board; Engineer
A. The Board has the final authority in all matters affecting the Work. Within the scope of the Contract, the Engineer has the authority to enforce compliance with the Contract Documents. The Contractor shall promptly comply with instructions from the Engineer.

B. The decision of the Engineer is final and binding on all questions relating to:

1. quantities;

2. acceptability of material, equipment, or work;

3. execution, progress or sequence of work;

4. interpretation of the Plans, Specifications, or other Contract Documents; and

5. Any other areas specifically identified in the Contract Documents or under the law.

C. Compliance with instructions from the Engineer shall be a condition precedent to any payment under the Contract, unless otherwise ordered by the Board.

2.12 Mobilization
A. When a Bid item is included in the Bid Schedule for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific bid item will be included in the progress estimate. When no bid item is provided for mobilization payment for such costs will be deemed to be included in the other items of the Work.

B. Payment for mobilization based on the lump sum provided in the Bid Schedule, shall constitute full compensation for all such Work. No payment for mobilization will be made until all of the listed items have been completed to the satisfaction of the Engineer. The scope of the Work included under mobilization shall include, but shall not be limited to, the following principal items:
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1. Obtaining and paying for all bonds, insurance, and permits.

2. Moving on to the Project Site of all Contractor’s plant and equipment required for the first month’s operations.

3. Installing temporary construction power, wiring, and lighting facilities, as applicable.

4. Establishing fire protection system, as applicable.

5. Developing and installing a construction water supply, as applicable.

6. Providing and maintaining the field office trailers for the Contractor, if necessary, and the Engineer (if specified), complete, with all specified furnishings and utility services.

7. Providing on-site sanitary facilities and potable water facilities as specified per Cal- OSHA and these Contract Documents.

8. Furnishing, installing, and maintaining all storage buildings or sheds required for temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer’s specified storage requirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and for all security.

9. Arranging for and erection of Contractor’s work and storage yard.

10. Posting all OSHA required notices and establishment of safety programs per Cal- OSHA.

11. Full-time presence of Contractor’s superintendent at the job Site as required herein.

12. Submittal of construction schedule as required by the Contract Documents.

ARTICLE 3 -CONTRACT DOCUMENTS; INTENT

3.1 Examination of Drawings, Specifications, and Site of Work A. Examination of Contract Documents; Site. Before commencing any portion of the Work, Contractor shall again carefully examine all applicable Contract Documents, the Project Site, and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shall immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict, or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any Subcontractor proceed with Work if uncertain as to the applicable requirements.
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B. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict, or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work.

C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish.

D. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all Applicable Laws, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.

3.2 Intent of Contract Documents
A. The Contract Documents are complementary; what is required by any one will be binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to the City.

B. The Contractor shall furnish, unless otherwise provided in the Contract Documents, all materials, implements, machinery, equipment, tools, supplies and labor necessary to the prosecution and completion of the Project.

C. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in these General Conditions.

D. 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.

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

3.3 Reference Standards.

A. Standards, Specifications, Codes, Laws, and Regulations.

1. Reference to federal specifications, federal standards, other standards, specifications, manuals, or codes of any technical society, organization, or association, or to Applicable Laws, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of opening of Bids (or on the Effective Date of the -24-

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Contract if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.

2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of the City, Contractor, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to the City, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.

3.4 Reporting and Resolving Discrepancies; Order of Precedence.

A. Reporting Discrepancies.

1. The Contract Documents are intended to be fully cooperative and complementary.

Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to the City any conflict, error, ambiguity, or discrepancy which Contractor discovers, should have discovered, or has actual knowledge of, and shall obtain a written interpretation or clarification from the City before proceeding with any Work affected thereby. If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (i) any Applicable Law, (ii) any standard, specification, manual, or code, or (iii) any instruction of any Supplier, then Contractor shall promptly submit a written Request for Information (RFI) to the City.

Contractor shall not proceed with the Work affected thereby (except in an emergency) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in the Contract Documents, and any Work performed by Contractor before receipt of an amendment or supplement shall be at Contractor’s own risk.

B. Order of Precedence.

1. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:
a. Permits from other agencies as may be required by law b. Change Orders, most recent first
c. Contract
d. Addenda, most recent first
e. Special Conditions
f. Specifications
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g. Construction Plans and Drawings(Contract Drawings)
h. General Conditions
i. Instructions to Bidders
j. Notice Inviting Bids
k. Contractor’s Bid (Bid Forms)
l. Standard Specifications for Public Works Construction “Greenbook” latest edition (Sections 1-9 Excluded)
m. Applicable Local Agency Standards and Specifications n. Standard Drawings
o. Reference Documents

2. With reference to the Drawings the order of precedence shall be as follows:
a. Figures govern over scaled dimensions
b. Detail drawings govern over general drawings
c. Addenda/Change Order drawings govern over Drawings
d. Contract Drawings govern over Standard Drawings
e. Contract Drawings govern over Shop Drawings

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

3.5 Amending and Supplementing Contract Documents.

A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by Change Order or written amendment to the Contract duly executed by the parties.

B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized at no cost to the City, by one or more of the following ways:

1. The City’s review of a Submittal, Shop Drawing, Sample or substitution request without exception (subject to the provisions of the Contract Documents); or

2. The City’s issuance of a response to an RFI.

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3.6 Reuse of Documents.

A. Contractor and any Subcontractor or Supplier shall not:

1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer of Record or its consultants, including electronic media editions; or

2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of the City and Engineer of Record and specific written verification or adaptation by Engineer of Record.

B. The prohibitions of this Article will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes.

ARTICLE 4 -INDEMNIFICATION; INSURANCE

4.1 Indemnification
A. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials, officers, agents, employees, and representatives, and each of them from and against:

1. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers.

2. Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements.

3. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor; -27-

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4. Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.

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

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

4.2 Insurance
The Contractor shall obtain, and at all times during performance of the Work of Contract, maintain all of the insurance described in this Article. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required hereunder. Contractor shall not allow any Subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Article. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause. Contractor shall furnish the City with original certificates of insurance and endorsements effective coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms acceptable to the City. All certificates and endorsements must be received and approved by the City before Work commences.

A. Additional Insureds; Waiver of Subrogation. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its subcontractors’ policies of Commercial General Liability and Automobile Liability insurance using, for Contractor’s policy/ies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage, including completed operations), and, for subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, all available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder. All insurance coverage maintained or procured pursuant to this Contract shall be endorsed to waive subrogation against the City, its -28-

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officers, officials, agents, employees or volunteers or shall specifically allow Contractor - or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to the City prior to commencement of work.

B. Workers’ Compensation Insurance. The Contractor shall provide workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Site, and, in case of any sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code.

The Contractor shall file with the City certificates of his insurance protecting workers.

Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.

C. Employer’s Liability Insurance. Contractor shall provide Employer’s Liability Insurance, including Occupational Disease, in the amount of at least one million dollars ($1,000,000.00) per person per accident. Contractor shall provide the City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.

D. Commercial General Liability Insurance. Contractor shall provide “occurrence” form Commercial General Liability insurance coverage at least as broad as the most current ISO CGL Form 00 01, including but not limited to, premises liability, contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured against another. Policy limits shall not be less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be paid in addition to the limits.

1. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess -29-

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of such coverage, nor shall it limit Contractor’s indemnification obligations to the City, and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law.

2. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.

3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property.

4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.

5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.

E. Automobile Liability Insurance. Contractor shall provide Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, one million dollars ($1,000,000) per accident for bodily injury and property damage.

Such insurance shall provide coverage with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible, in a form and with insurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.

F. Contractor shall require all tiers of Subcontractors working under this Contract to provide the insurance required under this Article unless otherwise agreed to in writing by the City. Contractor shall make certain that any and all Subcontractors hired by Contractor are insured in accordance with this Contract. If any Subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.

G. Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, if Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits -30-

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maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

H. Form and Proof of Carriage of Insurance

1. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VII. Insurance deductibles or self- insured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.

2. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, officers, agents, employees, and volunteers.

3. The Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate the Contract or stop the Work in accordance with the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until the City has been furnished original Certificate(s) of Insurance and certified original copies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Article. The original endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf.

4. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or self-insured retentions or self-insured programs shall not be construed as contributory.

5. The City reserves the right to adjust the monetary limits and types of insurance coverages during the term of this Contract including any extension thereof if, in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.
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6. Contractor shall report to the City, in addition to the Contractor’s insurer, any and all insurance claims submitted by the Contractor in connection with the Work under this Contract.

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

ARTICLE 5 -CONTRACTOR RESPONSIBILITIES; REGULATORY REQUIREMENTS

5.1 Applicable Laws
A. Contractor shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work. Except where otherwise expressly required by Applicable Laws, neither the City nor the City’s Representative shall be responsible for monitoring Contractor’s compliance with any Applicable Laws. If Contractor performs any Work knowing or having reason to know that it is contrary to Applicable Laws, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work.

5.2 Permits and Licenses
A. Permits and licenses necessary for prosecution of the Work shall be secured and paid for by Contractor, including, but not limited to, excavation permit, 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 the City, unless otherwise specified in the Contract Documents.

B. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the specifications, drawings, or by governing authorities, except for such off-site inspections delineated as the City’s responsibility pursuant to the Contract Documents.

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

5.3 Taxes
A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Laws of the place of the Project which are applicable during the performance of the Work. In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may create a possessory -32-

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interest subject to personal property taxation for which Contractor will be responsible.

5.4 Traffic Control
A. Traffic control plans, if required, shall be prepared at Contractor’s expense. Traffic control shall be performed at Contractor’s expense in accordance with the requirements of the City and/or the local agency with jurisdiction. Costs for traffic control plans, implementation of traffic control, or traffic signal services required by the City shall be included in the Contractor’s Bid.

B. All warning signs and safety devices used by the Contractor to perform the Work shall conform to the requirements contained in the State of California, Department of Transportation’s current edition of “Manual of Traffic Controls for Construction and Maintenance Work Zones” or to the requirements of the local agency. The Contractor shall also be responsible for all traffic control required by the agency having jurisdiction over the Project on the intersecting streets. Contractor must submit a traffic control plan to the agency having jurisdiction over the Project for approval prior to starting Work.

C. The Contractor’s representative on the site responsible for traffic control shall produce evidence that he/she has completed training acceptable to the California Department of Transportation for safety through construction zones. All of the streets in which the Work will occur shall remain open to traffic and one lane of traffic maintained at all times unless otherwise directed by the agency of jurisdiction.

Businesses and residences adjacent to the Work shall be notified forty-eight (48) hours in advance of closing of driveways. The Contractor shall make every effort to minimize the amount of public parking temporarily eliminated due to construction in areas fronting businesses. No stockpiles of pipe or other material will be allowed in traveled right-of-ways after working hours unless otherwise approved by the Engineer.

5.5 Safety
A. Contractor shall be solely responsible for all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety laws. Contractor shall comply with all Applicable Laws relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property.

B. The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical services for its employees in accordance with California Code of Regulations, Title 8, Section 1512. The Contractor shall submit -33-

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an Illness and Injury Prevention Program and a Project Site specific safety program to the City prior to beginning Work. Contractor shall maintain a confined space program that meets or exceeds the City’s standards. Contractor needs to make themselves aware of the City’s safety policies and procedures, and shall meet or exceed all City standards in areas where the City must enter to perform inspections.

C. Hazard Communication Programs. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Applicable Laws.

5.6 Hazardous Materials
A. The City shall not be responsible for any Hazardous Waste brought to the site by the Contractor. If the Contractor: (i) introduces and/or discharges a Hazardous Waste onto the site in a manner not specified by the Contract Documents; and/or (ii) disturbs a Hazardous Material identified in the Contract Documents, the Contractor shall hire a qualified remediation contractor at Contractor’s sole cost to eliminate the condition as soon as possible. Under no circumstance shall the Contractor perform Work for which it is not qualified. The City, in its sole discretion, may require the Contractor to retain at Contractor’s cost an independent testing laboratory.

B. If the Contractor encounters a Hazardous Waste which may cause foreseeable injury or damage, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (iii) notify the City (and promptly thereafter confirm such notice in writing).

C. Subject to Contractor’s compliance with this Article 5.6(B), the City shall verify the presence or absence of the Hazardous Waste reported by the Contractor, except as qualified under Article 5.6(A) and Article 5.6(B) in the event such material or substance is found to be present, verify that the levels of the hazardous material are below OSHA Permissible Exposure Levels and below levels which would classify the material as a state of California or federal hazardous waste. When the material falls below such levels, Work in the affected area shall resume upon direction by the City.

D. Contractor shall indemnify and hold harmless the City from and against claims, damages, losses and expenses, arising from a Hazardous Waste on the Project Site, if such Hazardous Waste exceeded OSHA Permissible Exposure Levels or levels which would classify the material as a state of California or federal hazardous waste, and was either i) shown on the Contract Documents or information available to bidders; or (ii) brought to the site by Contractor. Nothing in this paragraph shall obligate the Contractor to indemnify the City in the event of the sole or active negligence or willful misconduct of the City, its officers, agents, or employees.

5.7 Sanitary Facilities.

A. Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall comply with local codes and ordinances. Toilets shall be placed inside sealed secondary -34-

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containment devices installed on a flat, level surface. Accumulated liquids in the secondary containment devices shall be properly removed and legally disposed without spillage onto the ground. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washing facilities shall be maintained in a sanitary condition at all times. Use of toilet and hand washing facilities in the Work under construction shall not be permitted.

Any other sanitary facilities required by Cal/OSHA shall be the responsibility of the Contractor.

5.8 5.9
Dust Control
A. Contractor, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminous treatment or similar methods, will be permitted.

Air Pollution Control
A. Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.

B. Without limiting the foregoing, Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (CARB). Contractor shall specifically be aware of the application of these limits and requirements to "portable equipment", which definition includes any item of equipment with a fuel-powered engine. Contractor shall indemnify the City against any fines or penalties imposed by the air quality management district, CARB, or any other governmental or regulatory agency for its violations of Applicable Laws as well as those of its subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in the Contract Documents.

5.10 Water Quality Management and Compliance
A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Work. The Contractor hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.

B. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 13000 et seq.); the -35-

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California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California State Water Resources Control Board Order Number 2009-0009-DWQ (NPDES Permit No. CAS000002), as amended by Order Numbers 2010-0014-DWQ, 2012-0006-DWQ, and any subsequent amendment to or renewal thereof, State Water Resources Control Board Order No. 2013-0001-DWQ (NPDES Order No. CAS000004), Santa Ana Regional Water Quality Control Board No. R8-2010-0036 (NPDES No. CAS618036), and any amendment or renewal thereof.

C. Contractor shall comply with all conditions of the State Water Resources Control Board (“State Water Board”) National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity (“Construction General Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale.

Contractor shall comply with the lawful requirements of the City, and any other applicable municipality, drainage district, or other local agency with jurisdiction over the location where the Work is to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

D. Unless otherwise specified in the Special Conditions or other portion of the Contract Documents, the City has not prepared a Storm Water Pollution Prevention Plan (“SWPPP”) or other storm water compliance plan for the Project Site. Contractor shall be responsible for filing the Notice of Intent (“NOI”) and for obtaining coverage under the Construction General Permit. This includes filing all necessary documentation including the Permit Registration Documents (“PRDs”) through the Stormwater Multiple Applications and Report Tracking System (“SMARTS”); preparing and implementing a SWPPP for the Work site; implementing all other provisions, and monitoring and reporting requirements required by the Construction General Permit; and providing a Qualified SWPPP Developer (“QSD”) and Qualified SWPPP Practitioner (“QSP”), as necessary for all Work site activities, including but not limited to preparation and submittal of all reports, plans, inspections, and monitoring information in compliance with the Construction General Permit. All submittals shall be coordinated with the City’s Legally Responsible Person and Authorized Signatory as those terms are defined in the Construction General Permit.

Before any NOI, PRD, SWPPP, or other Construction General Permit-related document may be submitted to the State Water Board or implemented on the Project site, it must first be reviewed and approved by the City and/or City’s designee.

Contractor shall include all costs of compliance with specified requirements in the Contract Price.

E. The City retains the right to develop its own documentation for the Project site, including but not limited to the SWPPP, and in the alternative may require Contractor to adopt and implement portions of the City developed SWPPP. The City expressly reserves the right to procure coverage under the Construction General Permit for the Work site if Contractor fails to draft satisfactory PRDs or SWPPP or otherwise fails to proceed in a manner that complies with the requirements of the Construction General Permit. The City additionally reserves the right to hire additional contractors to maintain compliance at the Work site. Whether Contractor has adequately -36-

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maintained compliance with the Construction General Permit shall be the City’s sole determination. Any costs incurred by the City in procuring coverage under the Construction General Permit, or drafting and/or implementing a SWPPP for the Work site shall be paid by Contractor.

F. Notwithstanding the above, for those Work 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 Construction General Permit, the Contractor shall be responsible for preparing and implementing an Erosion and Sediment Control Plan in accordance with State Water Resources Control Board Order No. 2013-0001- DWQ (NPDES Order No. CAS000004) and any amendment to or renewal thereof.

G. Failure to comply with the Construction General Permit, laws, regulations, and ordinances listed in this Article is a violation of federal and state law.

Notwithstanding any other indemnity contained in these Contract Documents, Contractor agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, fees, costs, expenses, or losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the Permit, laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.

H. The City reserves the right to defend any enforcement action or civil action brought against the City for Contractor’s failure to comply with any applicable water quality law, regulation, or policy. Contractor hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and any relevant enforcement entity.

5.11 Environmental Quality Protection
A. The Contractor shall comply with all requirements of applicable federal, state, and local environmental rules and regulations. Any infractions of said rules and regulations by the Contractor during the term of the Contract, which result in penalties, will be the responsibility of the Contractor. The City operates under a number of environmental permits issued by various agencies. If due to an action, inaction, or negligence by the Contractor, the City becomes subject to non- compliance penalties, the cost of such penalties shall be borne by the Contractor.

B. The Contractor shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work.

Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours. Upon completion of the Work, and following removal of construction facilities and required cleanup, land used for construction purposes and not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.
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C. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, the Contractor shall notify the City 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 two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Work as a result of a siting will be pursuant to the Contract Documents. Any costs or delays incurred by City or the Contractor due to unreasonable or false notification of an endangered plant or animal will be borne by the Contractor.

D. If, in the performance of the Work, Contractor should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Contractor shall notify the construction/archeological monitor and/or the City 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 the construction/archeological monitor and/or City within two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource. If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or re-sequence and/or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Should the presence of cultural resources be confirmed, the Contractor will assist the City Representative and the construction/archeological monitor in the preparation and implementation of a data recovery plan. The Contractor shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents. Should Contractor, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. The Contractor shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. Contractor shall be required to pay for unauthorized damage and mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.

5.12 Excessive Noise
A. Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by Cal/OSHA. Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements.
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B. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.

5.13 Diversion of Recyclable Waste Material
A. In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversion ordinances. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by the City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.

5.14 Inspector’s Field Office.

A. If required by the City, the Contractor shall be responsible for providing the inspector’s field office. The office shall be a substantial waterproof construction with adequate natural light and ventilation by means of stock design windows. Door shall have a key type lock or padlock clasp. The office shall have heating and air conditioning and shall be equipped with a telephone, a telephone answering machine, an ability to connect to the internet, and a fax machine at Contractor’s expense. The field office shall be provided within 20 Days of the Notice to Proceed.

B. A table satisfactory for the study of plans and two chairs shall be provided by Contractor. Contractor shall provide and pay for adequate electric lights, local telephone service, and adequate heat and air conditioning for the field office until authorized removal.

5.15 Contractor’s Supervision.

A. Contractor shall continuously keep at the Project site, a competent and experienced full-time Project superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to make decisions on behalf of the Contractor. Contractor shall continuously provide efficient supervision of the Project.

5.16 Workers.

A. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her.

B. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Project. -39-

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5.17 Independent Contractors.

A. Contractor shall be an independent contractor for the City and not an employee.

Contractor understands and agrees that it and all of its employees shall not be considered officers, employees, or agents of the City and are not entitled to benefits of any kind normally provided employees of the City, including but not limited to, state unemployment compensation or workers’ compensation. Contractor assumes full responsibility for the acts and omissions of its employees or agents related to the Work.

5.18 Verification of Employment Eligibility.

A. By executing the Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors, sub-subcontractors and consultants to comply with the same. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of the Contractor or its Subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.

5.19 Labor.

A. Hours of Work

1. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Contractor stipulates that eight (8) hours of labor shall constitute a legal day’s work. The time of service of any worker employed at any time by the Contractor or by any subcontractor on any subcontract under this Contract upon the Work or upon any part of the Work contemplated by this Contract is limited and restricted to eight (8) hours during any one calendar day and 40 hours during any one calendar week, except as hereinafter provided.

Notwithstanding the provisions herein above set forth, work performed by employees of Contractor in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one- half times the basic rate of pay.

2. The Contractor and every Subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed in connection with the Work or any part of the Work contemplated by this Contract. The record shall be kept open at all reasonable hours to the inspection of the City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.

3. The Contractor shall pay to the City a penalty of twenty-five dollars ($25.00) for each worker employed in the execution of this Contract by the Contractor or by -40-

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any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.

4. Any work necessary to be performed after regular working hours, or on Saturdays and Sundays or other holidays, shall be performed without additional expense to the City.

5. If Contractor gives notice of an inspection pursuant to the Contract Documents, the City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m. Monday through Friday. Requested inspections before or after this time will be charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two (2) Days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits subject to city/county ordinance.

6. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project Site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on City-observed Holidays, unless otherwise approved by the City:
a.
b.
c.
d.

Powered Vehicles
Construction Equipment
Loading and Unloading Vehicles
Domestic Power Tools
B. Payroll Records; Labor Compliance

1. Pursuant to Labor Code section 1776, Contractor and all subcontractors shall maintain weekly certified payroll records, showing the names, addresses, Social Security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by them in connection with the Work under this Contract. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate. Contractor shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.

2. In accordance with Labor Code section 1771.4, the Contractor and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on the specified interval and format prescribed by the DIR, which may include electronic submission. Contractor shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. -41-

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3. Any stop orders issued by the DIR against Contractor or any Subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any Subcontractor.

4. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.

5. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.

6. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, the City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor awarded the Contract or performing the Contract shall not be marked or obliterated.

7. In the event of noncompliance with the requirements of this Article, the Contractor shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying in what respects the Contractor must comply with this Article. Should noncompliance still be evident after such 10-day period, the Contractor shall pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payment then due.

8. The responsibility for compliance with this Article shall rest upon the Contractor.

C. Prevailing Rates of Wages

1. The Contractor is aware of the requirements of Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since this Project involves an applicable “public works” or -42-

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“maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the prevailing rate of per diem wages which are on file at the City’s Administration Office and shall be made available to interested parties upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.

2. The Contractor shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the DIR for such work or craft in which such worker is employed for any public work done under the Contract by it or by any Subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.

3. Contractor shall post, at appropriate conspicuous points on the Project Site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.

D. Public Works Contractor Registration

1. Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR.

Contractor shall maintain a current registration for the duration of the Project.

Contractor shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all Subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

E. Employment of Apprentices

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2. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.

3. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.

F. Nondiscrimination/Equal Employment Opportunity

1. Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law.

G. Debarment of Contractors and Subcontractors

1. Contractors or Subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

5.20 Subcontracts.

A. Contractor agrees to bind every Subcontractor to the terms of the Contract Documents as far as such terms are applicable to Subcontractor’s portion of the Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City.

B. The City reserves the right to accept all subcontractors. The City’s acceptance of any Subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents.
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C. Prior to substituting any Subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.

5.21 Progress Meetings
A. The Contractor shall schedule and hold regular progress meetings at least weekly and at other times as requested by Engineer or as required by progress of the Work.

The Contractor, City, and all Subcontractors active on the Site shall attend each meeting. Contractor may at its discretion request attendance by representatives of its Suppliers, manufacturers, and other Subcontractors. The City will preside at the progress meetings and will arrange for keeping and distributing the minutes. The purpose of the meetings is to review the progress of the Work, maintain coordination of efforts, discuss changes in scheduling, and resolve other problems which may develop. During each meeting, the Contractor shall present any issues which may impact its progress with a view to resolve these issues expeditiously.

5.22 Submittals
A. Schedule of Submittals. Within five (5) Days after the Notice to Proceed (unless otherwise specified in the Contract Documents), Contractor will prepare and deliver a Schedule of Submittals to the City that has been fully integrated with the progress schedule and identifies each Submittal required by the Contract Documents as well as the date on which Contractor will deliver each Submittal to the City. Each Submittal must be delivered to the City at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. The Contractor is responsible for any schedule delays resulting from the Submittal process.

B. Submittal Procedures.

1. Contractor will follow the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:
a. Submittals must be transmitted electronically.
b. Transmittals will be sequentially numbered. Contractor to mark revised Submittals with original number and sequential alphabetic suffix. c. Each Submittal will identify the Project, Contractor, Subcontractor and Supplier, pertinent Drawing and detail number, and Specification Section number appropriate to Submittal.
d. By transmitting a Submittal, Contractor certifies it has reviewed and approved each Submittal, verified products required, field dimensions, adjacent construction Work, and that coordination of information is according to requirements of the Work and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completed Work.
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f. When Submittal is revised for resubmission, Contractor shall promptly address the City’s comments and resubmit. Contractor shall identify changes made since previous submission.
g. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractor has, in writing, called the City’s attention to such deviations at time of submission and the City has taken no exception to the deviation. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for errors in Shop Drawings.
h. Submittals not required by the Contract Documents or requested by the City will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by the City. Delays resulting from incomplete Submittals are not the responsibility of the City. j. Contractor shall not be entitled to any extension of the Contract Times as a result of the Submittal process.
k. Contractor shall allow a minimum of 20 workin for review of Submittals unless otherwise specified in the Contract Documents.

2. Where a Submittal, Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to the City review and approval of the pertinent submittal will be performed at the sole risk and expense and responsibility of Contractor.

C. Schedule Milestone for Submittals. Contractor must submit all Submittals required by the Contract Documents in accordance with the Schedule of Submittals. If Contractor fails to submit the Submittals in accordance with the Schedule of Submittals, Contractor will be solely liable for any delays or impacts caused by the delayed Submittal, whether direct or indirect. Contractor will be liable for the time calculated from the date the Submittal is due until the date a compliant Submittal is made. A compliant Submittal will be one that is complete and satisfies the requirements of the Contract Documents.

5.23 Shop Drawings and Sample Submittal Procedures.

A. Before submitting each Shop Drawing or Sample, Contractor shall have:

1. Reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents;

2. Determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;
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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 Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

B. With each Submittal, Contractor shall give the City specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample Submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to the City for review and approval of each such variation.

C. Shop Drawings.

1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show the City the services, materials, and equipment Contractor proposes to provide and to enable the City to review the information for assessing conformance with information given and design concept expressed in Contract Documents.

2. When required by individual Specification sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing components shown on Shop Drawings. Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by authorities having jurisdiction.

3. Shop Drawings for steel structures shall consist of shop details, erection and other working Drawings showing details, dimensions, sizes of members and other information necessary for the complete fabrication and erection of the metal work.

4. Shop Drawings of concrete structures shall consist of such detailed drawings as may reasonably be required for the successful prosecution of the Work and which are not included in the Drawings furnished by the Engineer. These may include drawings for false work, bracing, centering and form work, masonry layout diagrams, and diagrams for bent reinforcement.

5. Contractor shall make revisions and provide additional information when required by authorities having jurisdiction.

D. Samples. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enable the City to review the submittal for assessing conformance with information given and design concept expressed in Contract Documents. Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.

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

2. The City review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.

3. The City’s review and acceptance shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample.

F. Resubmittal Procedures. Contractor shall make corrections required by the City and shall return corrected Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by the City on previous Submittals.

5.24 Record (“As-Built”) Drawings.

A. The Contractor shall maintain one record set of Contract Documents at the Site or digitally in an acceptable format. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Drawings. For all Projects involving the installation of any pipeline, Contractor shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations. Said Drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. Any required as-built drawings of civil engineering elements of the Work shall be prepared by a registered civil engineer.

B. These master Record Drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders, shall be maintained up-to-date during the progress of the Project. Red ink shall be used for alterations and notes.

Notes shall identify relevant Change Orders by number and date. Record Drawings shall be accessible to the Engineer at all times during the construction period.

Failure on the Contractor’s part to keep Record Drawings current could result in withholding partial payment.

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information submitted by the Contractor will be assumed to be correct, and the Contractor shall be responsible for, and liable to the City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.

D. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete the Record Drawings shall be included in Contractor’s bid and distributed in the Bid Schedule. No additional compensation shall be made to the Contractor for this Work.

5.25 Layout and Field Engineering.

A. The Contractor shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work, and all necessary surveys to compute quantities of Work performed.

5.26 Separate Contracts and Cooperation.

A. Separate Contracts. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work and shall properly connect and coordinate its Work with theirs. To ensure proper execution of its subsequent Work, Contractor shall immediately inspect work already in place and shall at once report to the Engineer any problems with the Work in place or discrepancies with the Contract Documents.

B. Cooperation. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the City in prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project.

Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously. The City shall not be responsible for any damages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project Site.

5.27 Work Site.

A. Limitation of Use of Site and Other Areas. Rights-of-way, easements, or rights-of- entry for the Work will be provided by the City. Unless otherwise specified in the Special Provisions, the Contractor shall make arrangements, pay for, and assume all responsibility for acquiring, using, and disposing of additional work areas and facilities temporarily required. The Contractor shall indemnify and hold the City harmless from all claims for damages caused by such actions. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws, and -49-

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shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.

B. Site Maintenance. During the progress of the Work, Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to Applicable Laws. The Contractor shall furnish trash bins for all debris from construction. All debris shall be placed in trash bins daily. Forms and false-work that are to be re-used shall be stacked neatly concurrently with their removal. Forms and false-work that are not to be re-used shall be disposed of concurrently with their removal.

C. Cleaning. Prior to Completion of the Work, Contractor shall clean the Site and make it ready for utilization by the City. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents.

5.28 Utility Usage.

A. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor.

Contractor shall provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points on the Work where the utility is needed. Upon completion of the Work, Contractor shall remove all temporary distribution systems. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Work, including but not limited to startup and testing required in the Contract Documents. All permanent meters installed shall be listed in the Contractor’s name until the Work is accepted. For Work to be performed in existing City facilities, Contractor may use the City’s existing utilities, provided such use is reasonable under the circumstances. If Contractor uses the City utilities, it will not need to compensate the City for reasonably consumption of utilities, but Contractor will be responsible for any excessive, unreasonable or wasteful utility usage. Amounts due the City under this section may be deducted from progress payments.

5.29 Protection of Work and Property.

A. The Contractor shall digitally record video and take photographs of the Project site and adjacent improvements in a manner and quality that clearly depicts the existing condition of the Project Site and adjacent improvements immediately prior to the start of Work (minimum 1080p video and 4MP photo). All videos and photographs shall be date and time stamped. The Contractor shall submit the video and photos in digital format on a memory stick before the commencement of Work, along with a map outlining the route and locations of the videos and/or photographs. The Contractor shall be responsible for all damages to persons or property that occur as a result of the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by the City. All Work shall be solely at the Contractor’s risk. -50-

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B. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction.

C. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.

D. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations. Contractor shall:

1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.

2. Provide substantial barricades around any shrubs or trees indicated to be preserved.

3. Deliver materials to the Site over a route designated by the City.

4. Provide any and all dust control required and follow the applicable air quality regulations as appropriate. If the Contractor does not comply immediately with a notice from the City or a public agency responsible for air quality, the City shall have the authority to provide dust control and deduct the cost from payments to the Contractor.

5. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City.

Contractor shall not unreasonably encumber the Site with its materials.

6. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to the City, at no cost to the City.

7. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City.

8. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.

9. At the completion of work each day, leave the Work and the Site in a clean, safe condition.
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10. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with the City’s written approval. Any request for approval to reduce or restrict access to residences and business must be submitted to the City at least seven (7) Days in advance, and the City may issue or withhold approval in its sole discretion.

E. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor.

F. Should damage to persons or property occur as a result of the Work, Contractor shall promptly notify the City, in writing. Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired. The City shall be entitled to inspect and copy any such documentation, video, or photographs.

G. Contractor shall maintain all investigation documentation including video and/or photographs for a minimum of four (4) years following completion of the Project.

5.30 Emergencies.

A. In emergencies affecting the safety or protection of persons or the Work or Property at the Site or adjacent thereto, the Contractor, without special instruction or authorization from the City or the Engineer, is obligated to act to prevent threatened damage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby.

ARTICLE 6 -MATERIALS; INSPECTION

6.1 Access to Work.

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

6.2 Materials.

A. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities whatsoever necessary to execute and complete this Contract within the Contract Time. Unless otherwise specified, all materials, parts, and equipment furnished by the Contractor in the Work shall be new, the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.
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B. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.

C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. Materials shall be stored on the Project Site in such manner so as not to interfere with any operations of the City or any independent contractor.

D. Contractor shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or performing any Work, and the City shall not be liable for Contractor’s failure to so. Except for an adjustment to Unit Price Work for item overruns and underruns in accordance with the Contract Documents, no additional compensation, over and above payment for the actual quantities at the prices set out in the Bid Schedule, will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Plans and in the Specifications. Any difference therein shall be submitted to the Engineer for consideration before proceeding with the Work.

6.3 Test and Inspections.

A. Inspection and Testing of Work and Materials

1. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority requires any part of the Work to be tested or approved, Contractor shall provide the Engineer at least two (2) working days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection.

Required certificates of inspection (or similar) shall be secured by Contractor.

Costs for City testing and inspection shall be paid by the City. Costs of tests for Work found not to be in compliance shall be paid by the Contractor.

2. The Contractor shall pay for the cost of any minimum “show up” costs of a materials testing technician that was called for by the Contractor but ultimately the Contractor work was not ready for the inspection. Any such costs shall be deducted from any amounts due to the Contractor.

3. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at the Contractor’s cost in compliance with the Contract Documents.

4. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor.

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employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.

5. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.

B. Testing of Materials

1. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work.

2. If the manufacture of materials to be inspected or tested will occur in a plant or location greater than sixty (60) miles from the City, the Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.

3. Unless otherwise specified in the Special Provisions, all initial testing and a reasonable amount of retesting will be performed under the direction of the Engineer, and at no expense to the Contractor. The Contractor shall notify the Engineer in writing, at least 15 days in advance, of its intention to use materials for which tests are specified, to allow sufficient time to perform the tests. The notice shall name the proposed supplier and source of material. If the notice of intent to use is sent before the materials are available for testing or inspection, or is sent so far in advance that the materials on hand at the time will not last but will be replaced by a new lot prior to use on the Work, it will be the Contractor's responsibility to re- notify the Engineer when samples which are representative may be obtained.

4. A Certificate of Compliance shall be furnished to the Engineer prior to the use of any material or assembled material for which these Specifications so require or if so required by the Engineer. The Engineer may waive the materials testing requirements and accept a Certificate of Compliance. Material test data may be required by the Engineer to be included with the submittal. Materials used on the basis of a Certificate of Compliance may be sampled and tested at any time. The submission of a Certificate of Compliance shall not relieve the Contractor of responsibility for incorporating material into the Work which conforms to the requirements of the Contract Documents, and any material not conforming to the requirements will be subject to rejection by the Engineer whether in place or not.

5. Copies of mill certificates of composition and quality of all component materials (reinforcing steel, structural steel, lumber, etc.) incorporated in the construction of the Work shall be provided to the City at the time of delivery. City shall retain the right to reject any raw material not provided with a mill certificate at the time of delivery.
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6. If, after incorporating such materials into the Work, it is found that sources of supply that have been approved do not furnish a uniform product, or if the product from any source proves unacceptable at any time, the Contractor shall furnish approved material from other approved sources. If any product proves unacceptable after improper storage, handling or for any other reason it shall be rejected, not incorporated into the Work, and shall be removed from the Project Site all at the Contractor’s expense.

6.4 Requests for Substitutions.

A. For the purposes of this provision, the term “substitution” shall mean the substitution of any material, method or service substantially equal to or better in every respect to that indicated in the Standard Specifications or otherwise referenced herein.

B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that is described in the Notice Inviting Bids that designates certain products, things, or services by specific brand or trade name.

C. Unless specifically designated in the Special Conditions, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such specifications shall be deemed to be used for the purpose of facilitating the description of the material, process, or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless otherwise stated, offer for substitution any material, process, or article which may be substantially equal to or better in every respect to that so indicated or specified in the Contract Documents. However, the City has adopted uniform standards for certain materials, processes, and articles.

D. The Contractor shall submit substitution requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) calendar days after award of Contract. Provisions regarding submission of substitution requests shall not in any way authorize an extension of time for the performance of this Contract. If a substitution request is rejected by the City, the Contractor shall provide the material, method or service specified herein. The City shall not be responsible for any costs incurred by the Contractor associated with substitution requests. The burden of proof as to the equality of any material, process, or article shall rest with the Contractor. The Engineer has the complete and sole discretion to determine if a material, process, or article is substantially equal to or better than that specified and to approve or reject all substitution requests.

E. Substantiating data as described above shall include, at a minimum, the following information:

1. A signed affidavit from the Contractor stating that the material, process, or article proposed as a substitution is substantially equal to or better than that specified in every way except as may be listed on the affidavit.

2. Illustrations, specifications, catalog cut sheets, and any other relevant data required to prove that the material, process, or article is substantially equal to or better than that specified.
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3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.

4. Information detailing the durability and lifecycle costs of the proposed substitution.

F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result in rejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.

G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because of Contractor’s failure to provide substitution requests at the time and in the manner described herein.

H. The Contractor shall bear the costs of all the City work associated with the review of substitution requests.

I. If substitution requests approved by the Engineer require that Contractor furnish materials, methods or services more expensive than that specified, the increased costs shall be borne by Contractor.

ARTICLE 7 -SUBSURFACE AND PHYSICAL CONDITIONS; UTILITIES

7.1 Soils Investigations.

A. When a soils investigation report for the Site is available, such report is provided for informational purposes only. Any information obtained from such report as to subsurface soil condition, or to elevations of existing grades or elevations of underlying rock, is approximate only and is not guaranteed. Contractor acknowledges that any soils investigation report (including any borings) was prepared for purposes of design only and Contractor is required to examine the Site before submitting its Bid and must make whatever tests it deems appropriate to determine the condition of the soil.

7.2 Ownership of Site Materials Found.

A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials developed or obtained in the excavation or other operations of Contractor or any of its Subcontractors in the performance of the Contract, and the right to use said items in carrying out the Contract, or to dispose of same, is hereby expressly reserved by the City. Neither Contractor nor any of its Subcontractors nor any of their representatives or employees shall have any right, title, or interest in said materials, nor shall they assert or make any claim thereto. Contractor will, as determined by the City’s Representative, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided the City shall have the right to use or consume these materials without payment to a third party.
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7.3 Existence of Utilities at the Work Site.

A. Existing Utilities

1. The location of known existing utilities and pipelines are shown on the Plans in their approximate locations. However, nothing herein shall be deemed to require the City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the site of the project can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the Site of the Project.

2. The City will assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are not identified by the City in the Contract Documents or which cannot reasonably be inferred from the presence of other visible facilities.

B. Utility Location

1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which have been marked by the respective utility owners and which the Contractor believes may affect or be affected by the Contractor’s operations. The Contractor shall not be entitled to additional compensation nor time extensions for work necessary to avoid interferences nor for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this Article.

2. The locating of utilities shall be in conformance with Government Code Section 4216 et seq. except for the City’s utilities located on the City’s property and not on public right-of-way.

3. A “High Priority Subsurface Installation” is defined in Government Code Section 4216 (j) as “high-pressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”

4. A “Subsurface Installation” is defined in Government Code Section 4216 (s) as “any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewer lines, nonpressurized storm drains, or other nonpressurized drain lines.”

5. Pursuant to Government Code Section 4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not more than 14 Days before performing any excavation. The date of the notification shall not count as part of the two-working-day notice. Before notifying the appropriate regional notification center, the Contractor shall delineate the area to be excavated. The Contractor shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. The Contractor -57-

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shall furnish to the Engineer written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.

6. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit and in accordance with Government Code Section 4216.4 if the excavation within the “tolerance zone” of a subsurface installation. The Engineer shall be given notice prior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.

7. The Contractor's attention is directed to the requirements of Government Code Section 4216.2 (c) which provides: “When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities required to verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation and the information the operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” The Contractor shall notify the Engineer in advance of this meeting.

C. Utility Relocation and Repair

1. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, the Contractor shall notify the Engineer in writing. The Engineer will supply a method for correcting said interferences in accordance with the responsibilities of this section and Government Code Section 4215. To the extent any delay is caused thereby, Contractor shall submit a notice of delay within five (5) Days of discovery of the circumstances giving rise to the delay in accordance with Article 9.1 Change Orders and Time Extensions.

2. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, the Contractor shall call 911 emergency services.

3. The City will compensate the Contractor for the costs of locating and repairing damage not due to the failure of the Contractor to exercise reasonable care, and for removing or relocating such main or trunk line utility facilities not indicated in the Contract Documents with reasonable accuracy, and for the cost of equipment on the Project necessarily idled during such work. The payment for such costs will be made as provided in Article 9.1 Change Orders and Time Extensions. The Contractor shall not be assessed liquidated damages for delay in completion of the -58-

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Project, when such delay is caused by the failure of the City or utility company to provide for removal or relocation of such utility facilities. Requests for extensions of time arising out of utility relocation or repair delays shall be filed in accordance with Article 9.1 Change Orders and Time Extensions and Article 9.3 Time for Completion and Liquidated Damages.

4. The public utility, where it is the owner of the affected utility, shall have the sole discretion to perform repairs or relocation work or permit the Contractor to do such repairs or relocation work at a reasonable price. The right is reserved to the City and the owners of utilities or their authorized agents to enter upon the Work area for the purpose of making such changes as are necessary for the rearrangement of their facilities or for making necessary connections or repairs to their properties.

The Contractor shall cooperate with forces engaged in such work and shall conduct its operations in such a manner as to avoid any unnecessary delay or hindrance to the work being performed by such forces and shall allow the respective utilities time to relocate their facility.

5. When the Contract Documents indicate that a utility is to be relocated, altered or constructed by others, the City will conduct all negotiations with the utility company and the work will be done at no cost to the Contractor, unless otherwise stipulated in the Contract Documents.

6. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractor’s responsibility and it shall make arrangements and bear all costs for such work.

D. Construction at Existing Utilities

1. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Contractor shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Contractor to determine the actual locations of, and make accommodates to maintain, all utilities.

2. Before any utility is taken out of service, permission shall be obtained by the Contractor from the owner. The owner, any impacted resident or business owner and the City Representative will be advised of the nature and duration of the utility outage as well as the Contractor’s plan for providing temporary utilities if required by the owner. The Contractor shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Work, and the Contractor shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities.

3. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in Contractor’s bid and distributed in the schedule of pay Items. No additional compensation shall be made to the Contractor for this work. -59-

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7.4 Trenches
A. Trenches Five Feet or More in Depth.

1. Contractor shall submit to the Engineer at the preconstruction meeting, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of caving ground during the excavation of any trench or trenches five feet or more in depth. If such plan varies from shoring system standards established by the Construction Safety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations. The Contractor shall designate in writing the “competent person” as defined in Title 8, California Code of Regulations, who shall be present at the Work Site each day that trenching/excavation is in progress. The “competent person” shall prepare and provide daily trenching/excavation inspection reports to the Engineer.

Contractor shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench/excavation permit.

B. Excavations Deeper than Four Feet.

1. If the Work involves excavating trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly within three (3) Days, and before the excavation is further disturbed, notify the City in writing of any of the following conditions:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
b. Subsurface or latent physical conditions at the site differing from those indicated.
c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract.

2. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, shall issue a Change Order under the procedures described in Article

9.1 Change Orders and Time Extensions.

3. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. Contractor shall retain any and all rights provided -60-

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either by contract or by law which pertain to the resolution of disputes and protests between the parties.

ARTICLE 8 -PROSECUTION OF THE WORK

8.1 Contractor’s Means and Methods.

A. Contractor is solely responsible for the means and methods utilized to perform the Work. In no case shall the Contractor’s means and methods deviate from commonly used industry standards.

8.2 Construction Schedule.

A. General Requirements. The schedule shall be prepared in a Critical Path Method (“CPM”) format and in an electronic scheduling program acceptable to the City and as specified in the Contract Documents. Contractor shall deliver the schedule and all updates to the City in both paper and electronic form. The electronic versions shall be in the format and include all data used to prepare the schedule. Copies are not acceptable.

B. Schedule. The receipt or approval of any schedules by the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project.

Contractor’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract Time. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the City.

C. Schedule Contents. The schedule shall allow enough time for inclement weather.

The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities. The schedule shall include appropriate time allowances and constraints for submittals, items of interface with Work performed by others, and specified construction, start-up and performance tests. All float shall be owned by the Project. Schedules indicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the schedules are reviewed and/or accepted by the City. For purposes of determining Liquidated Damages, the Contract Time shall control and may only be altered by a duly authorized Change Order.

D. Schedule Updates. Contractor shall continuously update its construction schedule.

Contractor shall submit an updated and accurate construction schedule to the City:
(1) prior to the start of construction, if there are any changes to the initial schedule; (2) with each progress payment request; and (3) whenever requested to do so by the City. The City may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule. Upon the City’s request, Contractor shall submit any schedules or updates to the City in the native electronic format of the software used -61-

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to create the schedule. Contractor shall also submit schedules showing a two-week detailed look-ahead at weekly meetings conducted with the City. The two-week look- ahead schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Work within the Contract Time, and it shall clearly state the number of staff to be used on each daily segment of the Work.

E. Acceptance. Acceptance of the schedules by the City will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve Contractor from Contractor’s full responsibility therefor.

F. Recovery Schedule.

1. Should any of the following conditions exist, City may require Contractor 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 allotted Contract Time:
a. The Contractor's monthly progress report indicates delays that are, in the opinion of City, of sufficient magnitude that City questions the Contractor's ability to complete the Work;
b. The schedule shows the Contractor to be thirty (30) or more days behind the critical path at any time during construction;
c. The Contractor desires to make changes in the logic or the planned duration of future activities of the schedule which, in the opinion of City, are major in nature.

2. The recovery schedule shall include proposed revisions to the Construction Schedule, demonstrating how Contractor intends to achieve all contractual milestones including Contract completion within the allotted Contract Time. The submittal shall include a narrative describing the actions planned by the Contractor to recover the schedule.

3. Contractor shall submit the Recovery Schedule within seven (7) Days of City’s request. If Contractor 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 Contractor, and Contractor shall only be entitled to non-compensable adjustments to Contract Times. If Contractor is responsible for the delay, this provision will not limit or affect Contractor'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.

4. Contractor 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. -62-

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Regardless of whether City directs Contractor to prepare a recovery schedule pursuant to this Section, Contractor shall promptly undertake appropriate action at no additional cost to City to recover the schedule whenever the current construction schedule shows that the Contractor will not achieve a milestone and/or complete the Work within the allotted Contract Time.

8.3 Time for Completion and Liquidated Damages
A. Time for Completion. The time for completion set forth in Article 2 of the Contract for Construction shall commence: (1) on the date stated in the Notice to Proceed, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City’s receipt or acceptance of the Contractor’s proposed earlier completion date. Any difference in time between the Contractor’s early completion and the Contract Time shall be considered a part of the Project float. Contractor shall not be entitled to compensation, and the City will not compensate Contractor, for delays which impact early completion. Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date.

B. Liquidated Damages. If the Work is not completed within the Contract Time(s), it is understood that the City will suffer damage. In accordance with Government Code section 53069.85 and Public Contract Code section 7102, being impractical and infeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each calendar day of delay until the Work is fully completed. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.

C. Inclement Weather. Contractor shall abide by the Engineer’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. Contractor shall not be entitled to reverse liquidated damages for time extensions resulting from inclement weather.

D. Extension of Time. Contractor’s entitlement to an extension of the Contract Time is limited to a City-caused extension of the critical path, reduced by the Contractor’s concurrent delays, and established by a proper time impact analysis. Contractor shall not be charged liquidated damages because of any delays in completion of the Work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor (or its Subcontractors or Suppliers). The City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. Contractor shall not be entitled to an adjustment in the Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. -63-

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E. Reverse Liquidated Damages. Consistent with Public Contract Code Section 7102, Contractor will be compensated for damages incurred due to unreasonable delays to the critical path for which the City is responsible. The parties agree that determining Contractor’s exact delay damages are and will continue to be impracticable and extremely difficult. As such, for each calendar day in excess of the time for completion set forth in Article 2 of the Contract for Construction, the City shall pay to the Contractor the sum stipulated in the Contract per day. Such amount shall constitute the only payment allowed for any City-caused delays and shall necessarily include all overhead, all profits, all administrative costs, all bond costs, all labor, materials, equipment and rental costs and any other costs, expenses and fees incurred or sustained as a result of such delays. Contractor shall not be entitled to reverse liquidated damages for any change in the Work in which Contractor is compensated for overhead and profit through a change in Unit Price Work or a Change Order resulting in a lump sum or allowed mark-up for the additional Work.

The amount of reverse liquidated damages shall be reduced by Contractor’s concurrent delays.

F. Force Majeure. In accordance with subparagraphs “D” and “E” above, the Contractor shall not be charged liquidated damages, and the City shall not be responsible, for any delays resulting from a Force Majeure Event. If a delay to the critical path results from a Force Majeure Event, the Contractor will be entitled to a time extension but will not receive an adjustment to the Contract Price or any other compensation. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays.

G. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.

H. Procedure for Time Extensions and Delay Damages. Contractor shall not be entitled to any extension of time or any reverse liquidated damages unless Contractor properly notices the delay and adjustment to compensation and requests a Change Order in accordance with Article 9.1 Change Orders and Time Extensions.

Contractor’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of Contractor’s right to a time extension or reverse liquidated damages.

8.4 Contractor’s Responsibility for Work.

A. Until the acceptance of the Work by the Engineer as evidenced in writing, it shall be under the charge and care of the Contractor. The Contractor shall take every necessary precaution against injury or damage to any part thereof by the action of the elements or from any cause whether arising from the execution or non-execution of the Work. The Contractor shall rebuild, repair, restore and make good at its own expense all injuries or damages to any portion of the Work before its completion and acceptance. In the event of damage proximately caused by an Act of God, as -64-

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defined by Section 7105 of the Public Contract Code, the City will pay for repair or restoration to damaged Work in excess of 5% of the total Bid.

8.5 8.6
Occupancy.

A. The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract.

Securities for Money Withheld
A. Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may request the City to make retention payments directly to an escrow agent or may substitute securities for any money withheld by the City to ensure performance under the contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a state or federally chartered bank as the escrow agent who shall return such securities to Contractor upon satisfactory completion of the contract. Deposit of securities with an escrow agent shall be subject to a written agreement substantially in the form provided in section 22300 of the Public Contract Code.

8.7 The City’s Right to Suspend/Terminate the Contract
A. Suspension of Work by the City

1. The City 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 Contractor. Such notice of suspension of Work will designate the amount and type of plant, labor, and equipment to be committed to the Project during the period of suspension.

Contractor shall use its best efforts to utilize its plant, labor, and equipment in such a manner as to minimize costs associated with suspension.

2. Upon receipt of any such notice, Contractor shall, unless the notice requires otherwise:
a. Immediately discontinue Work on the date and to the extent specified in the notice;
b. 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;
c. Promptly make every reasonable effort to obtain suspension upon terms satisfactory to the City’s Representative of all orders, subcontracts, and rental agreements to the extent they relate to performance of Work suspended; and
d. Continue to protect and maintain the Work including those portions on which Work has been suspended.
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3. Except as provided by this Article, as full and complete compensation for such suspension, Contractor shall be granted an adjustment in the Contract Price based on a negotiated daily rate that reflects the Contractor’s actual costs associated with the demobilized condition of the Site 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 Contractor's non-compliance with the requirements of the Contract.

B. Termination for Cause by the City:

1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will insure its completion within the time specified by the Contract Documents, or any extension thereof, or fails to complete such Work within such time, or if the Contractor should be adjudged a bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or the Contractor or any of its subcontractors should violate any of the provisions of this Contract, the City may serve written notice upon the Contractor and its surety of the City's intention to terminate this Contract. This notice of intent to terminate shall contain the reasons for such intention to terminate this Contract, and a statement to the effect that the Contractor's right to perform this Contract shall cease and terminate upon the expiration of ten (10) Days unless such violations have ceased and arrangements satisfactory to the City have been made for correction of said violations.

2. After expiration of the ten (10) Day period, the City may terminate the Contract by providing a Notice of Termination to the Contractor. The City may take over and complete the Work by any method it may deem appropriate, including enforcement of the Project performance bond. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Work. If the City takes over the Work, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Site.

3. Upon termination, Contractor shall not be entitled to receive any further payment from the City, except for Work which was duly performed prior to the effective date of the Notice of Termination. Contractor shall submit an invoice for final payment within thirty (30) Days of the effective date of the Notice of Termination. The City may withhold from final payment up to 150% of any disputed amounts, including any amounts which may be necessary to repair defective Work, complete unfinished Work, or are otherwise occasioned by Contractor’s failure to perform its duties under the Contract.

C. Termination for Convenience by the City:

1. The City may terminate performance of the Work called for by the Contract Documents in whole or, from time to time, in part, upon ten (10) Days written notice if the City determines that a termination is in the City's interest. -66-

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2. The Contractor shall terminate all or any part of the Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.

3. After receipt of Notice of Termination, and except as directed by the City's Representative, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this termination for convenience clause, immediately proceed with the following obligations:
a. Stop Work as specified in the Notice.
b. 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.
c. Leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Document is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety.
d. Terminate all subcontracts to the extent that they relate to the portions of the Work terminated.
e. Place no further subcontracts or orders, except as necessary to complete the continued portion of the Contract.
f. Submit to the City's Representative, within ten (10) Days from the effective date of the Notice of Termination, all of the usual documentation called for by the Contract Documents to substantiate all costs incurred by the Contractor for labor, materials and equipment through the effective date of the Notice of Termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the contractor is authorized under the Contract documents to incur, shall: (1) be submitted to and received by the Engineer no later than 30 Days after the effective date of the Notice of Termination; (2) describe the costs incurred with particularity; and (3) be conspicuously identified as “Termination Costs occasioned by the City's Termination for Convenience.” If the City rejects any costs, Contractor shall be deemed to waive the rejected costs unless Contractor files a Claim within thirty (30) Days of the rejection pursuant to Article 9.2.
g. Contractor shall be entitled to receive only the amounts payable under this Article, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits. The provisions in this Article are in addition to and not in limitation of any other rights or remedies available to the City.
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4. Termination of the Contract shall not relieve surety of its obligation for any just claims arising out of or relating to the Work performed.

5. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated.

6. If the City terminates Contractor for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically be converted to and treated as a termination for convenience. In such event, Contractor shall be entitled to receive only the amounts payable under this section, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.

8.8 Completion and Acceptance of Work
A. Final Inspection. Upon written notice from Contractor that the entire Work is complete, the Engineer will promptly make a final inspection with the City and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.

B. Final Acceptance. The acceptance of the Work on behalf of the City will be made by the Engineer. Such acceptance by the City shall not constitute a waiver of defects. After Contractor has, in the opinion of the Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, Record Documents, and other documents required by the Contract Documents, the City shall execute a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted.

8.9 Warranty and Guaranty of Work.

A. Contractor hereby warrants that materials and Work shall be completed in conformance with the Contract Documents and that the materials and Work provided will fulfill the requirements of this Warranty. Contractor hereby agrees to repair or replace, at the discretion of the City, any or all Work that may prove to be defective in its workmanship, materials furnished, methods of installation or fail to conform to the Contract Document requirements together with any other Work which may be damaged or displaced by such defect(s) within a period of one (1) year (or as otherwise indicated in the Contract Documents or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) from the date of the Notice of Completion of the Project without any expense whatever to the City, ordinary wear and tear and unusual abuse and neglect excepted. Contractor shall be required to promptly repair or replace defective equipment or materials, at Contractor’s option. All costs associated with such corrective actions and testing, including the removal, replacement, and -68-

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reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor.

B. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected Work. The reinstatement of the one (1) year warranty shall apply only to that portion of work that was corrected. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. In the event of Contractor’s failure to comply with the above-mentioned conditions within ten (10) Days after being notified in writing of required repairs, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder immediately upon demand.

C. In addition to the warranty set forth in this Article, Contractor shall obtain for the City all warranties that would be given in normal commercial practice and assign to the City any and all manufacturer’s or installer’s warranties for equipment or materials not manufactured by Contractor and provided as part of the Work, to the extent that such third-party warranties are assignable and extend beyond the warranty period set forth in this Article. Contractor shall furnish the City with all warranty and guarantee documents prior to final acceptance of the Project by the City as required.

D. When specifically indicated in the Contract Documents or when directed by the Engineer, the City may furnish materials or products to the Contractor for installation.

In the event any act or failure to act by Contractor shall cause a warranty applicable to any materials or products purchased by the City for installation by the Contractor to be voided or reduced, Contractor shall indemnify the City from and against any cost, expense, or other liability arising therefrom, and shall be responsible to the City for the cost of any repairs, replacement or other costs that would have been covered by the warranty but for such act or failure to act by Contractor.

E. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property.

F. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary Work. If the Contractor fails to promptly remedy any defect or damage, the City shall have the right to replace, repair or otherwise remedy the defect, or damage at the Contractor’s expense.

G. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.

H. Acceptance of Defective Work.
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1. If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to the City’s evaluation of and determination to accept such defective Work and for the diminished value of the Work. If any acceptance of Defective Work occurs prior to release of the Project retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by the City. If the acceptance of defective occurs after release of the Project retention, an appropriate amount will be paid by Contractor to the City.

I. The City May Correct Defective Work

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

2. In connection with such corrective or remedial action, the City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, take possession of Contractor’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which the City has paid Contractor but which are stored elsewhere. Contractor shall allow the City, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable the City to exercise the rights and remedies to correct the Defective Work.

3. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by the City correcting the Defective Work will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and the City shall be entitled to an appropriate decrease in the Contract Price. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of defective Work.

4. If the Change Order is executed after all payments under the Contract have been paid by the City and the Project Retention is held in an escrow account as permitted by the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of Retention to be paid to the City. If the Change Order is executed after release of the Project retention, an appropriate amount will be paid by Contractor to the City. Contractor shall not be allowed an extension of -70-

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the Contract Times because of any delay in the performance of the Work attributable to the City correcting Defective Work.

J. Nothing in the warranty or in the Contract Documents shall be construed to limit the rights and remedies available to the City at law or in equity, including, but not limited to, Code of Civil Procedure section 337.15.

ARTICLE 9 -CHANGE ORDERS; DISPUTE RESOLUTION

9.1 Change Orders and Time Extensions
All changes to the Contract, including compensation increases and time extensions, shall be through a written Change Order in accordance with this Article. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and Contractor’s compensation and the time for completion shall be adjusted accordingly. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the original Contract. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve the Contractor from the obligation to proceed with performance of the Work, including Additional Work, promptly and expeditiously.

Any alterations, extensions of time, Additional Work, or any other changes may be made without securing consent of the Contractor’s surety or sureties.

A. Change in Contract Procedures

1. City Directive. The City may direct changes in the Work by delivering a written directive. To the extent the work directive results in a change to compensation or time, Contractor must timely request a Change Order and comply with all Change Order procedures in accordance with this Article. Notwithstanding issuance of a work directive, Contractor’s failure to timely request a Change Order shall constitute a waiver by Contractor of any adjustment to compensation or time extension for Work performed under the directive. The City shall not be liable to Contractor for Work performed or omitted by Contractor in reliance on verbal orders.

2. Contractor’s Notice of Change/Delay. If Contractor intends to initiate a Change Order Request, then Contractor shall provide the City with written notice of the underlying facts and circumstances that gave rise to the proposed change within the following times:
a. If due to unknown subsurface or latent physical conditions, within three (3) days from the discovery date or prior to the alterations of the conditions, whichever is earlier.
b. If due to a Force Majeure Event, as soon as reasonably practicable under the conditions, which shall be no longer than three (3) days from the date the Contractor discovers that the Force Majeure Event gives rise to a change, unless that the conditions are such that notice within three (3) days is not possible or practicable.
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c. If due to any other matter that may involve an adjustment to the Contract Time or the Contract Price, within seven (7) days from the discovery date.

To be considered valid and complete, the notice of change/delay shall include a general statement of the circumstances giving rise to the notice of change/delay and a reasonable order of magnitude estimate of the additional costs and/or time. If the circumstances give rise to both a cost adjustment and time extension, Contractor shall submit the notice of change and notice of delay concurrently.

3. Request for Change in Compensation and/or Extension of Time. Contractor shall submit a Change Order Request for any adjustment to Contractor’s compensation and/or any extension of time. The Change Order Request shall be made prior to incurring any expense and within fourteen (14) Days from either Contractor’s notice of change/delay or the City’s directive ordering the change. The Change Order Request shall include all of the following information (unless inapplicable to the change):
a. A detailed description of the circumstances giving rise to the request;
b. A complete itemized cost proposal, including itemized pricing for first tier Subcontractors;
c.
d.

Supporting documentation for all costs;
A time impact analysis showing the impact of the delay to the critical path to completion;
e. 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
f. Certification to the accuracy of the Change Order Request under penalty of perjury.

The time impact analysis shall be in the critical path method format and shall show the sequencing of all critical and non-critical new activities and/or activity revisions affected by the delay, with logic ties to all affected existing activities noted on the schedule.

The City may demand, and Contractor shall provide, any additional information supporting the Change Order Request, including but not limited to native electronic format version of schedules and time impact analyses. Contractor shall provide the requested additional information within five (5) Days of the request.

For any costs or information that cannot be determined at the time Contractor submits the Change Order Request, Contractor shall submit to the City notice of the costs or information and all -72-

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supporting documentation within five (5) Days of when the costs or other information become subject to determination.

4. City’s Final Decision on Change Order; Ordered Changes. If the City denies the Change Order Request or disagrees with the proposal submitted by Contractor, it will notify the Contractor, and the City will provide its opinion of the appropriate price and/or time extension. If no agreement can be reached, the City shall have the right to order the Work performed on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City shall also have the right to order changes in the Work to be performed promptly by the Contractor on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City’s determination shall become final and binding if the Contractor fails to submit a Claim in writing 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.

5. Contractor’s Waiver of Further Relief. CONTRACTOR’S FAILURE TO PROVIDE

A COMPLETE AND TIMELY NOTICE OF CHANGE/DELAY AND/OR CHANGE

ORDER REQUEST, OR TO COMPLY WITH ANY OTHER REQUIREMENT OF

THIS ARTICLE, SHALL CONSTITUTE A WAIVER BY CONTRACTOR OF THE

RIGHT TO A CONTRACT ADJUSTMENT ON ACCOUNT OF SUCH

CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER RECOURSE

OR RECOVERY BY REASON OF OR RELATED TO SUCH CHANGE BY

MEANS OF THE CLAIMS DISPUTE RESOLUTION PROCESS OR BY ANY

OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER
APPLICABLE LAWS.

Contractor recognizes and acknowledges that timely submission of a formal written notice of change/delay and Change Order Request, whether or not the circumstances of the change may be known to the City or available to the City through other means, is not a mere formality but is of crucial importance to the ability of the City to promptly identify, prioritize, evaluate and mitigate the potential effects of changes. Any form of informal notice, whether verbal or written (including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logs or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.

6. Change Order Format
a. 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.
b. The City may designate the forms to be used for notices, requests, and Change Orders. If so designated, Contractor may only use such forms. Contractor -73-

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shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order. No Claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The Contractor may not change or modify the City’s Change Order form in an attempt to reserve additional rights.

B. Determining Adjustments to Compensation.

1. Limitation on Costs. Contractor shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article. The 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.

2. Unit Price Change Orders. When the actual quantity of a Unit Price Work item varies from the Bid Schedule, compensation for the change in quantity will be calculated by multiplying the actual quantity by the unit price. This calculation may result in either an additive or deductive Change Order. Bid items included on the Bid Schedule may be deducted from the Work in their entirety without any negotiated extra costs. Because Unit Price Work includes overhead and profit as determined by Contractor at the time of its Bid submission, no mark up or deduction for overhead and profit will be allowed.

3. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by the Contractor and the City.

4. Time and Materials Change Orders. The City may direct the Contractor to proceed with the Additional Work with payment to be made on the basis of actual cost of the labor and materials required to complete the Additional Work. If the Project is federally funded, a time and materials Change Order shall only be issued after a determination that no other Change Order is suitable and the Change Order shall include a ceiling price that the Contractor exceeds at its own risk.

5. Federally Funded Projects. For any change in price to the Contract, general and administrative expenses shall be negotiated and must conform to the cost principles set forth under at 2 C.F.R. Part 200, subpart E, and profit shall be negotiated as a separate element of the cost. To establish a fair and reasonable profit, consideration must be given to the complexity of the Additional Work to be performed, the risk borne by the Contractor, the Contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.

6. Allowed Costs. Estimates for lump sum quotations and accounting for time-and- material work shall be limited to direct expenditures necessitated specifically by the change and shall be segregated as follows:
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a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the 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 would increase the Additional Work cost will not be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.
b. Materials. The cost of materials reported shall be at the lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials costs shall be based upon supplier or manufacturer’s invoice.
c. Tool and Equipment Use. Regardless of ownership, the rates to be used in determining equipment use shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed.

The Contractor shall furnish cost data supporting the establishment of the rental rate. The rental rate to be applied for use of each items of equipment shall be the rate resulting in the least total cost to the City for the total period of use. The City shall 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.
(i) 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.
(ii) 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. (iii) Before construction equipment is used on any Additional Work, the Contractor shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to the City, in duplicate, a description of the equipment and its identifying number. (iv) 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. d. 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:
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(i) “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and Subcontractors at cost only, without mark-up.

Contractor shall provide the City with documentation of the costs, including but not limited to payroll records, invoices, and such other information as the City may reasonably request.
(ii) For Work performed by the Contractor’s forces the allowed mark-up shall not exceed fifteen (15%) percent of labor costs, ten percent (10%) of material costs, and ten percent (10%) of the cost of tools and equipment use.
(iii) For Work performed by a Subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the Subcontractor’s Net Cost of the Work to which the Contractor may add up to five percent (5%) of the Subcontractor’s Net Cost.
(iv) For Work performed by a sub-subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the sub- subcontractor’s Net Cost for Work to which the Subcontractor and Contractor may each add up to an additional five percent (5%) of the Net Cost of the lower tier subcontractor.
(v) 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.
(vi) Calculation of the mark-up will be subject to the limitations above and to calculation as further detailed in (b)(B)(5) above.
e. Documentation of Time-and-Material Costs.
(i) T&M Daily Sheets. Contractor must submit timesheets, materials invoices, records of equipment hours, and records of rental equipment hours to the City’s for an approval signature each day that Work is performed on a time-and-material basis. The Engineer’s signature on time sheets only serves as verification that the Work was performed and is not indicative of the City’s agreement to Contractor’s entitlement to the cost.
(ii) T&M Summary Sheet. Contractor shall submit a T&M Summary Sheet, which shall include total actual costs, within five (5) Days following completion of Additional Work on a time-and-material basis.

Contractor’s total actual cost shall be presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and any other costs, along with documentation supporting the costs.

Contractor’s failure to submit the T&M Summary Sheet within five (5) Days of completion of the Additional Work will result in Contractor’s -76-

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waiver for any reimbursement of any costs associated with the Additional Work.
f. Excluded Costs. The following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by the Contractor’s mark-up, shall not be allowed costs and shall not be included in any lump sum proposals or time-and-materials invoices:
(i) Overhead Cost. Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by Contractor whether at the Site or in Contractor’s principal office or any branch office, material yard, or shop for general administration of the Work;
(ii) Office Expenses. Expenses of Contractor’s principal and branch offices;
(iii) Capital Expenses. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Additional Work and charges against Contractor for delinquent payments;
(iv) Negligence. Costs due to the negligence of Contractor or any Subcontractor or Supplier, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property;
(v) Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of Contractor;
(vi) Administrative Costs. Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
(vii)Anticipated Lost Profits. Expenses of Contractor associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
(viii) 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;
(ix) Special Consultants and Attorneys. Costs of special consultants or attorneys, whether or not in the direct employ of Contractor, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the Additional Work.
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(x) 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.
(xi) Compliance with Federal Cost Principles. If the Project is federally funded, any costs that are not allowable, reasonable and allocable to the Project, under generally accepted accounting principles and the applicable federal requirements.

9.2 Procedure for Resolving Claims.

Contractor shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 9.1, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely request a change to the time for completion or Contractor’s compensation, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the claim under the Contract or at law.

A. 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.

B. Claims. For purposes of this Article, “Claim” means a separate demand by the Contractor for:

1. An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City;

2. Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or

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

C. Filing Claims. Claims governed by this Article may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor’s request for a change has been denied in whole or in part.

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

D. Documentation. The Contractor shall submit all Claims in the following format:

1. Summary description of Claim including basis of entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made

2. List of documents relating to Claim:
a.
b.
c.
d.
e.

Specifications
Drawings
Clarifications (Requests for Information)
Schedules
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
E. City’s Response. Upon receipt of a Claim pursuant to this Article, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 Days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed -79-

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portion of the Claim will be processed and made within 60 Days after the City issues its written statement.

1. If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City’s governing body does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) Days following the next duly publicly noticed meeting of the City’s governing body after the 45-Day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.

2. Within 30 Days of receipt of a Claim, the City may request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City’s written response to the Claim, as further documented, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.

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

G. Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.

1. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.

2. For purposes of this Article, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an -80-

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independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Article.

3. Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.

4. The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.

H. Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation.

For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.

I. 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.

J. Government Code Claim Procedures.
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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 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.

2. In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for Additional Work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City.

3. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Price for Additional Work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the City.

4. A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.

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

ARTICLE 10 - MEASUREMENT; PAYMENT

10.1 Cost Breakdown.

A. Lump Sum Work.

1. Contractor shall furnish on forms approved by the City within ten (10) Days of the Notice to Proceed, a schedule of values allocating the entire Contract Price to the various portions of the Work and prepared in such a form and supported by such data to substantiate its accuracy as the Engineer may require. This schedule of values, unless objected to by the Engineer, shall be used as a basis for reviewing the Contractor’s applications for payment. Contractor shall submit the schedule of values prior to submitting its first application for payment, and the City will not issue any payment until it receives and approves the schedule of values.

B. Unit Price Work.
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1. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work multiplied by the estimated quantity of each item as indicated in the Contract. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and or profit for each separately identified item.

2. Unless otherwise specified, payment will be based on the actual quantities of Work as verified and approved by the Engineer, based on the price per unit as set forth in the Bid.

3. The City or Contractor may initiate a Change Order or Change Order Request to adjust the Contract Price in accordance with Contractor Documents based on actual quantities of Unit Price Work. The City or Contractor may make a claim for an adjustment in the Unit Price in accordance with the Contract Documents if:
a. the quantity of any item of Unit Price Work performed by Contractor differs by twenty-five percent (25%) or more from the estimated quantity of such item indicated in the Contract; and
b. there is no corresponding adjustment with respect to any other item of Work; and
c. Contractor believes that Contractor is entitled to an increase in unit price as a result of having incurred additional expense or the City believes that the City is entitled to a decrease in unit price and the parties are unable to agree as to the amount of any such increase or decrease.

10.2 Progress Estimates and Payment.

A. By the tenth (10th) Day of the following calendar month, Contractor shall submit to Engineer a payment request which shall set forth in detail the value of the Work done for the period beginning with the date Work was first commenced and ending on the end of the calendar month for which the payment request is prepared. Contractor shall include an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid. Contractor shall include any amount earned for authorized Additional Work. Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project.

B. From the total thus computed, a deduction shall be made in the amount of five percent (5%) for retention, except where the City has adopted a finding that the Work done under the Contract is substantially complex, and then the amount withheld as retention shall be the percentage specified in the Notice Inviting Bids. From the remainder a further deduction may be made in accordance with Section C below.

The amount computed, less the amount withheld for retention and any amounts withheld as set forth below, shall be the amount of the Contractor’s payment request. -83-

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C. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in its judgment may be necessary to cover:

1. Payments which may be past due and payable for just claims against Contractor or any Subcontractors for labor or materials furnished in and about the performance of work on the Project under this Contract.

2. Defective work not remedied.

3. Failure of Contractor to make proper payments to his Subcontractor or for material or labor.

4. Completion of the Contract if there is a reasonable doubt that the Work can be completed for balance then unpaid.

5. Damage to another contractor or a third party.

6. Amounts which may be due the Count for claims against Contractor.

7. Failure of Contractor to keep the Record Drawings up to date.

8. Failure to provide update on construction schedule as required herein.

9. Site cleanup.

10. Failure to comply with Contract Documents.

11. Liquidated damages.

12. Legally permitted penalties.

D. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion with the exception of subsections (C)(1), (3), and (5) of this Article, which must be retained or applied in accordance with applicable law. In so doing, the City shall be deemed the agent of Contractor and any payment so made by the City shall be considered as a payment made under contract by the City to Contractor and the City shall not be liable to Contractor for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render Contractor a proper accounting of such funds disbursed on behalf of Contractor.

E. Upon receipt, the Engineer shall review the payment request to determine whether it is undisputed and suitable for payment. If the payment request is determined to be unsuitable for payment, it shall be returned to Contractor as soon as practicable but not later than seven (7) Days after receipt, accompanied by a document setting forth in writing the reasons why the payment request is not proper. The City shall make the progress payment within 30 Days after the receipt of an undisputed and properly submitted payment request from Contractor, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8132. The number of days available to the City to make a payment without incurring -84-

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interest pursuant to this paragraph shall be reduced by the number of Days by which the Engineer exceeds the seven (7) Day requirement.

F. A payment request shall be considered properly executed if funds are available for payment of the payment request and payment is not delayed due to an audit inquiry by the financial officer of the City.

G. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.

10.3 Final Acceptance and Payment
A. Following the City’s acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request. The City shall have the right to adjust any estimate of quantity and to correct any error made in any estimate for payment.

B. When the Work has been accepted there shall be paid to Contractor a sum equal to the Contract Price less any amounts previously paid Contractor and less any amounts withheld by the City from Contractor under the terms of the Contract. The final five percent (5%), or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of substantially complete, shall not become due and payable until as required by Public Contract Code section 7107. If the Contractor has placed securities with the City as described herein, the Contractor shall be paid a sum equal to one hundred percent (100%) of the Contract Price less any amounts due the City under the terms of the Contract.

C. Unless Contractor advises the City in writing prior to acceptance of the final five percent (5%) or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of completion, or the return of securities held as described herein, said acceptance shall operate as a release to the City of all claims and all liability to Contractor for all things done or furnished in connection with this Work and for every act of negligence of the City and for all other claims relating to or arising out of this Work. If Contractor advises the City in writing prior to acceptance of final payment or return of the securities that there is a dispute regarding the amount due the Contractor, the City may pay the undisputed amount contingent upon the Contractor furnishing a release of all undisputed claims against the City with the disputed claims in stated amounts being specifically excluded by Contractor from the operation of the release. No payments, however, final or otherwise, shall operate to release Contractor or its sureties from the Faithful Performance Bond, Labor and Material Payment Bond, or from any other obligation under this Contract.

D. In case of suspension of the Contract any unpaid balance shall be and become the sole and absolute property of the City to the extent necessary to repay the City any excess in the cost of the Work above the Contract Price.

E. Final payment shall be made no later than 60 Days after the date of acceptance of the Work by the City or the date of occupation, beneficial use and enjoyment of the Work by the City including any operation only for testing, start-up or commissioning accompanied by cessation of labor on the Work, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8136. -85-

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In the event of a dispute between the City and the Contractor, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount.

F. Within ten (10) Days from the time that all or any portion of the retention proceeds are received by Contractor, Contractor shall pay each of its Subcontractors from whom retention has been withheld each Subcontractor’s share of the retention received. However, if a retention payment received by Contractor is specifically designated for a particular Subcontractor, payment of the retention shall be made to the designated Subcontractor if the payment is consistent with the terms of the subcontract.

ARTICLE 11 - MISCELLANEOUS

11.1 Patents.

A. Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers harmless from liability of any nature or kind of claim therefrom including costs and expenses for or on account of any patented or unpatented invention, article or appliance manufactured, furnished or used by Contractor in the performance of this Contract.

11.2 Document Retention & Examination
A. In accordance with Government Code section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment.

B. Contractor shall make available to the City any of the Contractor’s other documents related to the Project immediately upon request of the City.

C. In addition to the State Auditor rights above, the City shall have the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the modification in order to evaluate the accuracy and completeness of the cost or pricing data at no additional cost to the City, for a period of four (4) years after final payment.

11.3 Notice.

A. All notices shall be in writing and either served by personal delivery or mailed to the other party. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to the City shall be addressed to the City as designated in the Notice Inviting Bids unless the City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) Days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party. -86-

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11.4 Notice of Third Party Claims
A. Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely notification of the receipt of any third-party claims relating to the Contract.

The City is entitled to recover reasonable costs incurred in providing such notification.

11.5 State License Board Notice
A. Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

11.6 Assignment of Contract
A. Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of interest of any or all of this contract without the prior written consent of the City. Any assignment or change of Contractor’s name of legal entity without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.

11.7 Change In Name And Nature Of Contractor’s Legal Entity.

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

11.8 Prohibited Interests
A. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the project, shall be or become directly or indirectly interested financially in the Contract.

11.9 Controlling Law
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be governed by the law of the State of California excluding any choice of law provisions.

11.10 Jurisdiction; Venue
A. Contractor and any subcontractor, supplier, or other person or organization performing any part of the Work agrees that any action or suits at law or in equity arising out of or related to the bidding, award, or performance of the Work 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.

11.11 Cumulative Remedies.

A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, by special warranty or guarantee, or by other provisions of the Contract Documents.

The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.

11.12 Survival of Obligations.

A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.

11.13 Headings.

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

11.14 Assignment of Antitrust Actions
A. In accordance with §7103.5(b) of the California Public Contract Code, Contractor and Subcontractors must conform to the following requirements:

1. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or Subcontractor offer and agree to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under §4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract.

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11.15 All Legal Provisions Included
A. Contractor shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms. References to specific laws, rules or regulations in this Contract are for reference purposes only, and shall not limit or affect the applicability of provisions not specifically mentioned. If Contractor observes that drawings and specifications are at variance therewith, he shall promptly notify City in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in Work. If Contractor performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to City, he shall bear all costs arising therefrom.

B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA laws, rules and regulations. Contractor shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.

C. Contractor acknowledges and understands that, pursuant to Public Contract Code section 20676, sellers of "mined material" must be on an approved list of sellers published pursuant to Public Resources Code section 2717(b) in order to supply mined material for this Contract.

D. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Work, shall be or become directly or indirectly interested financially in the Contract.

E. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or inserted in improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in Contract Price or extension in Contract Times, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.
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EXHIBIT A

NOTICE INVITING BIDS & INSTRUCTIONS TO BIDDERS
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00 11 16 – NOTICE INVITING BIDS
NOTICE IS HEREBY GIVEN that the CITY OF SAN BERNARDINO, with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401 ("City") invites and will receive electronic Bids up to but not later than 2:00 p.m. on Thursday, August 31, 2023 via Planetbids (https://pbsystem.planetbids.com/portal/39495/bo/bo-search), for the furnishing to City of all labor, equipment, materials, tools, services, transportation, permits, utilities, and all other items necessary for Nicholson Neighborhood Park Improvements (the “Project”). At said time, Bids will be publicly opened and read aloud via ZOOM at the Public Works office located at 201 North “E” Street 2nd floor, San Bernardino CA 92401. Click on the link below to join this Bid Opening. Bids received after the said time shall be returned unopened. Bids shall be valid for a period of 90 calendar days after the Bid opening date.

Teams Link for the bid opening:
https://www.microsoft.com/en-us/microsoft-teams/join-a-meeting?rtc=1 Meeting ID: 259 402 555 145
Passcode: PpTrq5
The work to be done consists, in general of demolition, grading, drainage, concrete paving, asphalt paving, fencing, ballfield renovations, new play area, existing restroom renovation, new pre-fab restroom / snack bar / storage building, site furnishings, basketball surfacing, shade structures, electrical, lighting, planting, and irrigation.

Bids must be submitted on City’s Bid Forms. Bidders may obtain a copy of the Contract Documents from Planetbids portal at:
(https://pbsystem.planetbids.com/portal/39495/bo/bosearch). To the extent required by section 20103.7 of the Public Contract Code, upon request from a contractor plan room service, City shall provide an electronic copy of the Contract Documents at no charge to the contractor plan room.

It is the responsibility of each prospective Bidder to download and print all Bid Documents for review and to verify the completeness of Bid Documents before submitting a bid. Any Addenda will be posted on Planetbids. It is the responsibility of each prospective Bidder to check Planetbids on a daily basis through the close of Bids for any applicable Addenda or updates. City does not assume any liability or responsibility based on any defective or incomplete copying, excerpting, scanning, faxing, downloading or printing of the Bid Documents. Information on Planetbids may change without notice to prospective Bidders. The Contract Documents shall supersede any information posted or transmitted by Planetbids.

Each Bid shall be accompanied by cash, a certified or cashier’s check, or Bid Bond secured from a surety company satisfactory to the City, the amount of which shall not be less than ten percent (10%) of the submitted Total Bid Price, made payable to 290 North D Street, San Bernardino, CA 92401 as bid security. The bid security shall be provided as a guarantee that within ten (10) days after City provides the successful bidder the Notice of Award, the successful Bidder will enter into a contract and provide the necessary bonds and certificates of insurance. The bid security will be declared forfeited if the successful Bidder fails to comply within said time. No interest will be paid on funds deposited with City.

The successful Bidder will be required to furnish a Faithful Performance Bond and a Labor and Material Payment Bond each in an amount equal to one hundred percent (100%) of the Contract A-2

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Price. Each bond shall be in the forms set forth herein, shall be secured from a surety company that meets all State of California bonding requirements, as defined in California Code of Civil Procedure Section 995.120, and that is a California admitted surety insurer.

Pursuant to Section 22300 of the Public Contract Code of the State of California, the successful Bidder may substitute certain securities for funds withheld by City to ensure its performance under the Contract.

Pursuant to Labor Code Section 1773, City has obtained the prevailing rate of per diem wages and the prevailing wage rate for holiday and overtime work applicable in San Bernardino County from the Director of the Department of Industrial Relations for each craft, classification, or type of worker needed to execute this contract. A copy of these prevailing wage rates may be obtained via the internet at: www.dir.ca.gov/dlsr/
In addition, a copy of the prevailing rate of per diem wages is available at City’s Public Works Department and shall be made available to interested parties upon request. The successful Bidder shall post a copy of the prevailing wage rates at each job site. It shall be mandatory upon the Bidder to whom the Contract is awarded, and upon any subcontractors, to comply with all Labor Code provisions, which include but are not limited to the payment of not less than the said specified prevailing wage rates to all workers employed by them in the execution of the Contract, employment of apprentices, hours of labor and debarment of contractors and subcontractors.

Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No Bid will be accepted, nor any Contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. In bidding on this Project, it shall be the Bidder’s sole responsibility to evaluate and include the cost of complying with all labor compliance requirements under this contract and applicable law in its Bid.

Unless otherwise provided in the Instructions for Bidders, each Bidder shall be a licensed contractor pursuant to sections 7000 et seq. of the Business and Professions Code in the following classification(s) throughout the time it submits its Bid and for the duration of the Contract: Class A or appropriate class licenses.

Substitution requests shall be made within 35 calendar days after the award of the Contract.

Pursuant to Public Contract Code Section 3400(b), City may make findings designating that certain additional materials, methods or services by specific brand or trade name other than those listed in the Contract Documents be used for the Project. Such findings, if any, as well as the materials, methods or services and their specific brand or trade names that must be used for the Project may be found in the Special Conditions.

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City shall award the contract for the Project to the lowest responsive, responsible Bidder as determined by City from the Base Bid alone. City reserves the right to reject any or all Bids or to waive any irregularities or informalities in any Bids or in the bidding process.

All questions should be submitted 10 calendar days prior to the bid opening on Planetbids portal at: https://pbsystem.planetbids.com/portal/39495/bo/bo-search

END OF NOTICE INVITING BIDS
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00 21 13 – INSTRUCTIONS TO BIDDERS
ARTICLE 1. SECURING DOCUMENTS
Bids must be submitted to City on the Bid Forms which are a part of the Contract Documents for the Project. Contract Documents may be obtained from as specified in the Notice Inviting Bids.

Prospective Bidders are encouraged to telephone in advance to determine the availability of Contract Documents. Any charge for the Contract Documents is stated in the Notice Inviting Bids.

City may also make the Contract Documents available for review at one or more plan rooms, as indicated in the Notice Inviting Bids. Please Note: Prospective Bidders who choose to review the Contract Documents at a plan room must contact City to obtain the required Contract Documents if they decide to submit a Bid for the Project.

ARTICLE 2. EXAMINATION OF SITE AND CONTRACT DOCUMENTS
At its own expense and prior to submitting its Bid, each Bidder shall visit the site of the proposed work and fully acquaint itself with the conditions relating to the construction and labor required so that the Bidder may fully understand the work, including but not limited to difficulties and restrictions attending the execution of the work under the Contract. Each Bidder shall carefully examine the Drawings, and shall read the Specifications, Contract, and all other documents referenced herein and made part of the Contract Documents. Each Bidder shall also determine the local conditions which may in any way affect the performance of the work, including local tax structure, contractors’ licensing requirements, availability of required insurance, the prevailing wages and other relevant cost factors, shall familiarize itself with all federal, state and local laws, ordinances, rules, regulations and codes affecting the performance of the work, including the cost of permits and licenses required for the work, and shall make such surveys and investigations, including investigations of subsurface or latent physical conditions at the site or where work is to be performed as may be required. Bidders are responsible for consulting the standards referenced in the Contract Documents. The failure or omission of any Bidder to receive or examine the Contract Documents, forms, instruments, addenda, or other documents, or to visit the site and acquaint itself with conditions there existing shall in no way relieve any Bidder from any obligation with respect to its Bid or to the Contract and no relief for error or omission will be given except as required under state law. The submission of a Bid shall be taken as conclusive evidence of compliance with this Article.

ARTICLE 3. INTERPRETATION OF DRAWINGS AND DOCUMENTS
Prospective Bidders unclear as to the true meaning of any part of the Drawings, Specifications or other Contract Documents may submit a written request for interpretation. The prospective Bidder submitting the request is responsible for prompt delivery. Interpretation of the Drawings, Specifications or other Contract Documents will be made only by a written Addendum duly issued and a copy of such Addenda will be mailed or delivered to each prospective Bidder who has purchased a set of Contract Documents. The City will not be responsible for any other explanation or interpretations of the Contract Documents. If a prospective Bidders becomes aware of any errors or omissions in any part of the Contract Documents, it is the obligation of the prospective Bidder to promptly bring it to the attention of the City.

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ARTICLE 4. PRE-BID CONFERENCE
No pre-bid conference will be held.

ARTICLE 5. ADDENDA
The City reserves the right to revise the Contract Documents prior to the Bid opening date.

Revisions, if any, shall be made by written Addenda. All Addenda issued by the City shall be included in the Bid and made part of the Contract Documents. Pursuant to Public Contract Code Section 4104.5, if the City issues an Addendum which includes material changes to the Project less than 72 hours prior to the deadline for submission of Bids, the City will extend the deadline for submission of Bids. The City may determine, in its sole discretion, whether an Addendum warrants postponement of the Bid submission date. Each prospective Bidder shall provide the City a name, address, email address, and facsimile number to which Addenda may be sent, as well as a telephone number by which the City can contact the Bidder. Copies of Addenda will be posted on Planetbids without charge to all parties who have obtained a copy of the Contract Documents and provided such current information. Please Note: Bidders are responsible for ensuring that they have received any and all Addenda. To this end, each Bidder should check Planetbids portal for updates to verify that it has received all Addenda issued, if any, prior to the Bid opening. The Bidder shall indicate the Addenda received prior to bidding in the space provided in the Bid Form. Failure to indicate all Addenda may be sufficient cause for rejecting the Bid.

ARTICLE 6. ALTERNATE BIDS
If alternate bid items are called for in the Contract Documents, the time required for completion of the alternate bid items has already been factored into the Contract duration and no additional Contract time will be awarded for any of the alternate bid items. The City may elect to include one or more of the alternate bid items, or to otherwise remove certain work from the Project scope of work. Accordingly, each Bidder must ensure that each Bid item contains a proportionate share of profit, overhead, and other costs or expenses which will be incurred by the Bidder.

ARTICLE 7. COMPLETION OF BID FORMS
Bids shall only be prepared using copies of the Bid Forms which are included in the Contract Documents. The use of substitute Bid Forms other than clear and correct photocopies of those provided by the City will not be permitted. Bids shall be executed by an authorized signatory as described in these Instructions to Bidders. In addition, Bidders shall fill in all blank spaces (including inserting “N/A” where applicable), and initial all interlineations, alterations, or erasures to the Bid Forms. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms nor make substitutions thereon. USE OF BLACK OR BLUE INK, INDELIBLE PENCIL, OR A TYPEWRITER IS REQUIRED. Deviations in the Bid Forms may result in the Bid being deemed non-responsive.

ARTICLE 8. MODIFICATIONS OF BIDS
Each Bidder shall submit its Bid in strict conformity with the requirements of the Contract Documents. Unauthorized additions, modifications, revisions, conditions, limitations, exclusions or provisions attached to a Bid may render it non-responsive and may cause its rejection. Bidders shall not delete, modify, or supplement the printed matter on the Bid Forms, or make substitutions thereon. Oral, telephonic and electronic modifications will not be considered.

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ARTICLE 9. SUBCONTRACTORS
Bidder shall set forth the name, address of the place of business, contractor license number, and public works contractor registration number of each subcontractor who will perform work, labor, furnish materials or render services to the bidder on said contract and each subcontractor licensed by the State of California who, under subcontract to bidder, specially fabricates and installs a portion of the Work described in the Contract Documents in an amount in excess of one half of one percent (0.5%) of the total bid price, and shall indicate the portion of the work to be done by such subcontractor in accordance with Public Contract Code Section 4104. Notwithstanding the foregoing, if the work involves the construction of streets and highways, then the Bidder shall list each subcontractor who will perform work or labor or render service to the Bidder in or about the work in an amount in excess of one-half of one percent (0.5%) of the Bidder’s Total Bid Price or $10,000, whichever is greater. If a Bidder fails to specify a subcontractor or if a Bidder specifies more than one subcontractor for the same portion of work, then the Bidder shall be deemed to have agreed that it is fully qualified to perform that portion of work and that it shall perform that portion itself. Substitution of listed subcontractors shall only be permitted in accordance with Public Contract Code Section 4107.

ARTICLE 10. LICENSING REQUIREMENTS
Pursuant to Business and Professions Code Section 7028.15 and Public Contract Code Section 3300, all Bidders must possess proper licenses for performance of this Contract. Subcontractors must possess the appropriate licenses for each specialty subcontracted. Pursuant to Business and Professions Code Section 7028.5, the City shall consider any Bid submitted by a Bidder not currently licensed in accordance with state law and pursuant to the requirements found in the Contract Documents to be nonresponsive, and the City shall reject the Bid. The City shall have the right to request, and Bidders shall provide within ten (10) calendar days, evidence satisfactory to the City of all valid license(s) currently held by that Bidder and each of the Bidder’s subcontractors, before awarding the Contract.

Notwithstanding anything contained herein, if the Work involves federal funds, the Contractor shall be properly licensed by the time the Contract is awarded, pursuant to the provisions of Public Contract Code section 20103.5.

ARTICLE 11. BID GUARANTEE (BOND)
Each Bid shall be accompanied by a Bid Bond secured from a surety company satisfactory to the City, the amount of which shall not be less than ten percent (10%) of the Total Bid Price, made payable to City of San Bernardino, 290 North :D” Street, San Bernardino, California 92401 as a bid security. Bidders must provide a copy of the bid bond electronically and send the original bond via mail or delivered, by the due date of the bid to the Public Works office located at 201 North “E” Street, 2nd floor, San Bernardino California 92401.

Personal sureties and unregistered surety companies are unacceptable. The surety insurer shall be California admitted surety insurer, as defined in Code of Civil Procedure Section 995.120. The bid security shall be provided as a guarantee that within ten (10) Days after the City provides the successful Bidder the Notice of Award, the successful Bidder will enter into a Contract and provide the necessary bonds and certificates of insurance. The bid security will be declared forfeited if the successful Bidder fails to comply within said time, and the City may enter into a Contract with the next lowest responsive responsible bidder or may call for new Bids. No interest shall be paid A-7

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on funds deposited with the City. The City will return the security accompanying the Bids of all unsuccessful Bidders no later than 60 calendar days after award of the contract.

ARTICLE 12. IRAN CONTRACTING ACT OF 2010
In accordance with Public Contract Code Section 2200 et seq., the City requires that any person that submits a Bid with the City of one million dollars ($1,000,000) or more, certify at the time the Bid is submitted that the person is not identified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person engaging in investment activities in Iran described in subdivision (a) of Public Contract Code Section 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.

The form of such Iran Contracting Certificate is included with the Bid Forms and must be signed and dated under penalty of perjury.

ARTICLE 13. NONCOLLUSION DECLARATION
Bidders on all public works contracts are required to submit a declaration of noncollusion with their Bid. This form is included with the Bid Forms and must be signed and dated under penalty of perjury.

ARTICLE 14. PUBLIC WORKS CONTRACTOR DIR REGISTRATION CERTIFICATION Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No Bid will be accepted, nor any Contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the Bidder, and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project. To this end, Bidder shall sign and submit with its Bid the Public Works Contractor DIR Registration Certification on the form provided, attesting to the facts contained therein. Failure to submit this form may render the bid non-responsive. In addition, each Bidder shall provide the registration number for each listed subcontractor in the space provided in the Designation of Subcontractors form.

ARTICLE 15. BIDDER INFORMATION AND EXPERIENCE FORM
Each Bidder shall complete the questionnaire provided herein and shall submit the questionnaire along with its Bid. Failure to provide all information requested within the questionnaire along with the Bid may cause the bid to be rejected as non-responsive. The City reserves the right to reject any Bid if an investigation of the information submitted does not satisfy the City that the Bidder is qualified to properly carry out the terms of the Contract.

ARTICLE 16. WORKERS' COMPENSATION CERTIFICATION
In accordance with the provisions of Labor Code Section 3700, Contractor shall secure the payment of compensation to its employees. Contractor shall sign and file with the City a Workers' Compensation Certificate prior to performing the work under this Contract. The form of such Workers' Compensation Certificate is included as part of the Bid Forms.

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ARTICLE 17. SIGNING OF BIDS
All Bids submitted shall be executed by the Bidder or its authorized representative. Bidders may be asked to provide evidence in the form of an authenticated resolution of its Board of Directors or a Power of Attorney evidencing the capacity of the person signing the Bid to bind the Bidder to each Bid and to any Contract arising therefrom.

If a Bidder is a joint venture or partnership, it may be asked to submit an authenticated Power of Attorney executed by each joint venturer or partner appointing and designating one of the joint venturers or partners as a management sponsor to execute the Bid on behalf of Bidder. Only that joint venturer or partner shall execute the Bid. The Power of Attorney shall also: (1) authorize that particular joint venturer or partner to act for and bind Bidder in all matters relating to the Bid; and (2) provide that each venturer or partner shall be jointly and severally liable for any and all of the duties and obligations of Bidder assumed under the Bid and under any Contract arising therefrom. The Bid shall be executed by the designated joint venturer or partner on behalf of the joint venture or partnership in its legal name.

ARTICLE 18. SUBMISSION OF SEALED BIDS
Once the Bid and supporting documents have been completed and signed as set forth herein, they shall be submitted electronically on Planetbids portal at https://pbsystem.planetbids.com/portal/39495/bo/bo-search. No oral or telephonic bids will be considered. No forms transmitted via the internet, e-mail, facsimile, or any other electronic means will be considered unless specifically authorized by the City as provided herein. Bids received after the time and day set for the receipt of Bids shall be returned to the Bidder unopened.

Only where expressly permitted in the Notice Inviting Bids may bidders submit their bids via electronic transmission pursuant to Public Contract Code sections 1600 and 1601. Any acceptable method(s) of electronic transmission shall be stated in the Notice Inviting Bids. The City may reject any Bid not strictly complying with the City’s designated methods for delivery.

ARTICLE 19. OPENING OF BIDS
At the time and place set for the opening and reading of Bids, or any time thereafter, each and every Bid received prior to the time and day set for the receipt of Bids will be publicly opened and read. The City will leave unopened any Bid received after the specified date and time, and any such unopened Bid will be returned to the Bidder. It is the Bidder’s sole responsibility to ensure that its Bid is received as specified. Bids may be submitted earlier than the date(s) and time(s) indicated.

The public reading of each Bid will include the following information:

The name and business location of the Bidder.

The nature and amount of the bid security furnished by Bidder.

The Bid amount.

Bidders or their representatives and other interested persons may be present at the opening of the Bids. The City may, in its sole discretion, elect to postpone the opening of the submitted Bids.

The City reserves the right to reject any or all Bids and to waive any informality or irregularity in A-9

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any Bid.

ARTICLE 20. WITHDRAWAL OF BID
Any Bid may be withdrawn either personally or by written request, incurring no penalty, at any time prior to the scheduled closing time for receipt of Bids. Requests to withdraw Bids shall be worded so as not to reveal the amount of the original Bid. Withdrawn Bids may be resubmitted until the time and day set for the receipt of Bids, provided that resubmitted Bids are in conformance with the instructions herein.

Bids may be withdrawn after Bid opening only by providing written notice to the City within five (5) working days of the Bid opening and in compliance with Public Contract Code Section 5100 et seq., or as otherwise may be allowed with the consent of the City.

ARTICLE 21. BIDDERS INTERESTED IN MORE THAN ONE BID
No Bidder shall be allowed to make, file or be interested in more than one Bid for the same work unless alternate Bids are specifically called for. A person, firm or corporation that has submitted a sub-proposal to a Bidder, or that has quoted prices of materials to a Bidder, is not thereby disqualified from submitting a sub-proposal or quoting prices to other Bidders or from simultaneously submitting its own Bid as a prime contractor.

ARTICLE 22. SUBSTITUTION OF SECURITY
The Contract Documents call for monthly progress payments for the Work completed. The City will retain a percentage of each progress payment as provided by the Contract Documents. At the request and expense of the successful Bidder, the City will substitute securities for the amount so retained in accordance with Public Contract Code Section 22300.

ARTICLE 23. PREVAILING WAGES
The City has obtained from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract. These rates are available at the Office of City Engineer, 201 North “D” Street, San Bernardino of the City or may be obtained online at http://www.dir.ca.gov. Bidders are advised that a copy of these rates must be posted by the successful Bidder at the job site(s).

ARTICLE 24. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS In accordance with the provisions of the Labor Code, 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 Sections 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 to a debarred subcontractor by the Contractor for the Project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

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ARTICLE 25. INSURANCE REQUIREMENTS
Prior to commencing work, the successful bidder shall purchase and maintain insurance as set forth in the General Conditions.

ARTICLE 26. PERFORMANCE BOND AND PAYMENT BOND REQUIREMENTS The successful Bidder will be required to furnish a Labor and Material Payment Bond and a Faithful Performance Bond each in an amount equal to one hundred percent (100%) of the contract price. Each bond shall be secured from a surety company that meets all State of California bonding requirements, as defined in California Code of Civil Procedure Section 995.120 and is admitted by the State of California. Each bond shall be accompanied, upon the request of the City, with all documents required by California Code of Civil Procedure Section 995.660 to the extent required by law. All bonding and insurance requirements shall be completed and submitted to the City within ten (10) Days from the date the City provides the successful bidder with the Notice of Award.

ARTICLE 27. SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES Contractor and its subcontractors performing work under this Contract will be required to pay California sales tax and other applicable taxes, and to pay for permits, licenses and fees required by the agencies with authority in the jurisdiction in which the Work will be located, unless otherwise expressly provided by the Contract Documents.

ARTICLE 28. FILING OF BID PROTESTS
Bidders may file a “protest” of a Bid with the Office of the City Engineer, 290 North “D” Street, San Bernardino, California 92401. In order for a Bidder’s protest to be considered valid, the protest must:

A. Be filed in writing within five (5) calendar days after the bid opening date or any City determination or recommendation regarding the Bidder’s bid; B.

Clearly identify the specific irregularity or accusation; Clearly identify the specific City staff determination or recommendation being protested; Specify in detail the grounds for protest and the facts supporting the protest; and Include all relevant, supporting documentation with the protest at time of filing.

If the protest does not comply with each of these requirements, the City may reject the protest without further review.

If the protest is timely and complies with the above requirements, the City Engineer, or other designated City staff member, shall review the protest, any response from the challenged Bidder(s), and all other relevant information. The City Engineer will provide a written decision to the protestor.

The procedure and time limits set forth in this Article are mandatory and are the sole and exclusive remedy in the event of a Bid protest. Failure to comply with these procedures shall constitute a A-11

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failure to exhaust administrative remedies and a waiver of any right to further pursue the Bid protest, including filing a Government Code Claim or legal proceedings.

ARTICLE 29. BASIS OF AWARD; BALANCED BID
The City shall award the Contract to the lowest responsible Bidder submitting a responsive Bid.

The lowest Bid will be determined on the basis of the Total Base Bid Price.

The City may reject any Bid which, in its opinion when compared to other Bids received or to the City’s internal estimates, does not accurately reflect the cost to perform the Work. The City may reject as non-responsive any Bid which unevenly weights or allocates costs, including but not limited to overhead and profit to one or more particular bid items.

ARTICLE 30. AWARD PROCESS
Once all Bids are opened and reviewed to determine the lowest responsive and responsible Bidder, the City Council may award the Contract. The apparent successful Bidder should begin to prepare the following documents: (1) the Performance Bond; (2) the Payment Bond; and (3) the required insurance certificates and endorsements. Once the City notifies the Bidder of the award, the Bidder will have ten (10) days from the date of this notification to execute the Contract and supply the City with all of the required documents and certifications. Once the City receives all of the properly drafted and executed documents and certifications from the Bidder, the City will issue a Notice to Proceed to that Bidder.

ARTICLE 31. EXECUTION OF CONTRACT
As required herein the Bidder to whom an award is made shall execute the Contract in the amount determined by the Contract Documents. The City may require appropriate evidence that the persons executing the Contract are duly empowered to do so. The Contract and bond forms to be executed by the successful Bidder are included within these Contract Documents and shall not be detached.

ARTICLE 32. QUESTIONS
Questions regarding this Notice Inviting Bids may be directed via Planetbids (https://pbsystem.planetbids.com/portal/39495/bo/bo-search). No members of the City’s staff or City Council should be contacted about this procurement during the bidding process. Any and all inquiries and comments regarding this Bid must be communicated through Planetbids, unless otherwise instructed by the City. The City may, in its sole discretion, disqualify any Bidder who engages in any prohibited communications.

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EXHIBIT B

URBAN HABITAT BID SUBMITTAL

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EXHIBIT C

FEDERAL REQUIREMENTS
The requirements for the following funding sources are included in this section.

1. Community Development Block Grant (CDBG)

2. American Rescue Plan Act (ARPA)

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COMPLIANCE WITH AMERICAN RESCUE PLAN ACT (ARPA)

CORONAVIRUS LOCAL FISCAL RECOVERY FUND (CLFRF) FEDERAL GUIDELINES

USE OF ARPA CLFRF AND REQUIREMENTS
This Contract may be funded in whole or in part with funds provided by the American Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLT0628 and Assistance Listing Number (formerly known as a CFDA number):

21.027, and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertaining to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to the ARPA requirements shall be returned or repaid to the City or County. Any funds paid to Contractor i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to have been misused; or iii) that are determined to be subject to a repayment obligation pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements of section 603 of the Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).

Contractor agrees to comply with the following:

A. In accordance with Title 2 Code of Federal Regulations (C.F.R.) Section 200.322, the non-Federal Contractor should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award. For purposes of this section: “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. “Manufactured products” means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

B. In accordance with Title 2 C.F.R. Section 200.471, costs incurred for telecommunications and video surveillance services or equipment such as phones, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in Title 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); (ii) Telecommunications or video surveillance services provided by such entities or using such equipment; and (iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation,

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reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the prohibition under Public Law 115-232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.

C. A non-Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

D. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

E. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C.

Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).

F. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient must comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.

G. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non-Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under Title 40 U.S.C. Section 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of Title 40 U.S.C. Section 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to health or safety. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

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H. Davis-Bacon Act, as amended (40 U.S.C. Sections 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. Sections 3141-3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal contractor must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal Contractor must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (29 C.F.R. Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal contractor must report all suspected or reported violations to the Federal awarding agency. i. The Contractor and all Subcontractors and Sub-subcontractors are required to pay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and California wage decisions. See Section 3.10.6 “Prevailing Wages” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage determinations which are on file with the City and are available to any interested party on request. The higher of the two applicable wage determinations, either California prevailing wage or Davis-Bacon Federal prevailing wage, will be enforced for all applicable work/services under this Contract.

I. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by Title 41 U.S.C. Section 1908, must address administrative, contractual, or legal remedies in instances where Contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

J. All contracts in excess of $10,000 must address termination for cause and for convenience by the non- Federal Contractor including the manner by which it will be effected and the basis for settlement.

K. Equal Employment Opportunity. Except as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted construction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 C.F.R. Section 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause and all legal requirements and include the equal opportunity clause in each of its nonexempt subcontracts. i. The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken

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pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:

During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or

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purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

L. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data; Required Expenditure Report Data; and Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available to County, State or Federal governments upon request.

M. Data Submission Requirements - Contractor agrees to furnish data to the County upon request, per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.

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N. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to the City upon request, per County, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and project evaluation by the City.

O. Contractor shall comply with Title 2 Code of Federal Regulations Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 Subpart F (audit requirements), as these sections currently exist or may be amended. The use of funds must also adhere to official federal guidance issued or to be issued on what constitutes an eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agrees to comply with all official guidance regarding the ARPA CLFRF. Contractor also agree that as additional federal guidance becomes available, an amendment to this Contract may become necessary. If an amendment is required, Contractor agrees to promptly execute the Contract amendment.

P. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements for records). Such documentation shall be produced to City upon request and may be subject to audit.

Unless otherwise provided by Federal or State law (whichever is the most restrictive), Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by City or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the City, the State or the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by City.

Q. Contractor shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and other allowable expenditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20 th day of the following month.

R. Contractor shall cooperate in having an audit completed by City, at City’s option and expense. Any audit required by ARPA CLFRF and its regulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.

S. Contractor shall repay to City any reimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opportunity for Contractor to respond to and/or resolve the findings.

Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due City within one hundred twenty (120) days of audit findings, or within such other period as may be agreed between both parties or required by the ARPA CLFRF, City reserves the right to withhold future payments due Contractor from any source under City’s control.

T. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions as may be otherwise provided by Treasury. Subpart F – Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply.

U. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.

V. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.

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W. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (nonprocurement), Title 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to Title 2 C.F.R. Part 180 and Treasury’s implementing regulation at Title 31 C.F.R. Part 19.

Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 C.F.R.

Section 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at Title 2 C.F.R. Part 180 that implement Executive Orders 12549 (3 C.F.R. Part 1986 Comp., p. 189) and 12689 (3 C.F.R. Part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

X. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.

Y. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.

Z. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.

AA.Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. Sections 4601- 4655) and implementing regulations.

BB.Applicable Federal environmental laws and regulations.

CC.Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s implementing regulations at Title 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
ii.
iii.
iv.

The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability.

Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.

The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. Sections 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.

DD.Contractor understands that making false statements or claims in connection with the ARPA funded activities is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

EE. Any publications produced with ARPA funds must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number SLT-0628 awarded to San Bernardino County by the U.S. Department of Treasury.”

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FF. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is being encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles.

GG. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.

HH.As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor assures that it:
i. Ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at Title 31 C.F.R.

Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda and/or guidance documents. ii. Acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations.

Contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful access to its programs, services, and activities. Contractor understands and agrees that meaningful access may entail provide language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication.
iii.
iv.

Agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services, and activities.

Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.

II. The City must include the following language in every contract or agreement subject to Title VI and its regulations:
“The sub-grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or nation origin (42 U.S.C. Section 2000d et seq.), as implemented by the Department of the Treasury’s Title VI regulations, Title 31 C.F.R. Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C.

Section 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, Title 31 C.F.R. Sections Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
JJ. Contractor shall cooperate in any enforcement or compliance review activities by the City, and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.

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KK.Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c), regulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.

LL. City has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.

MM. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the City is obligated with the Department of the U.S. Treasury, whichever is later.

NN.Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R.

Section 200.112.

OO. In accordance with Title 41 U.S.C. Section 4712, subrecipient or Contractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.

The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congress or a representative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of Justice or other law enforcement agency; (vi) A court or grand jury; or (vii) A management official or other employee of Recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct. Subrecipient or Contractor shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

PP. City and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Exhibit conflict with any other terms in the Contract, the terms in this Exhibit shall control.

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EXHIBIT D

PLANS, DRAWINGS, AND SPECIFICATIONS
The following plans, drawings, and specifications are incorporated herein by reference as if set forth in their entirety:

1. Nicholson Park, Park Improvement Plans

2. Specifications for City of San Bernardino Parks Improvement Plan for Nicholson Park

3. Nicholson Park Technical Specifications

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Quantity Unit Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price 1 Mobilization LS 1 55,827.71$ $55,827.71 395,000.00$ $395,000.00 275,000.00$ $275,000.00 357,000.00$ $357,000.00 655,000.00$ $655,000.00 1,200,000.00$ $1,200,000.00 2 Clearing and Grubbing, Tree Removal and Other Items for Demolition Unclassified Excavation and Unclassified Fill per project plans and specs. LS 1 79,486.73$ $79,486.73 160,380.00$ $160,380.00 183,000.00$ $183,000.00 209,797.00$ $209,797.00 290,000.00$ $290,000.00 455,500.00$ $455,500.00 3 Project Construction Sign EA 1 2,843.56$ $2,843.56 2,500.00$ $2,500.00 1,900.00$ $1,900.00 2,380.00$ $2,380.00 2,000.00$ $2,000.00 1,500.00$ $1,500.00 4 Furnish, install, and maintain all traffic control, detour sign, striping, fencing and safety measures to perform work, including traffic control and/or construction phasing plan.

LS 1 10,647.30$ $10,647.30 80,000.00$ $80,000.00 40,420.00$ $40,420.00 214,200.00$ $214,200.00 363,000.00$ $363,000.00 25,000.00$ $25,000.00 5 SWPPP, Erosion & Dust Control LS 1 55,623.05$ $55,623.05 30,000.00$ $30,000.00 11,760.00$ $11,760.00 23,800.00$ $23,800.00 103,000.00$ $103,000.00 30,000.00$ $30,000.00 6 Demolition: Demolish and remove and dispose of the following existing concession/scorekeepers/storage buildings, concrete paving, concrete curbs, concrete gutters ,asphalt paving wall and footing, chain link fencing and footing, chain link backstop and footings, ball field infields, picnic tables, BBQ, benches, trash receptacles, sign and footing, Monument sign, trees, shade structure and footing, bleachers, scoreboard, guardrail, planters, flagpole and footing, light poles and footings, sports lighting poles and footings, power poles and footings, misc. electrical, turf and irrigation, vehicular fence, catch basin, gates, bollards and footings per the project plans and specifications.

LS 1 210,040.93$ $210,040.93 239,000.00$ $239,000.00 310,650.00$ $310,650.00 217,353.50$ $217,353.50 403,000.00$ $403,000.00 650,000.00$ $650,000.00 7 Grading: Remove and grade soil as needed for ADA accessibility, new parking lot, play area, new concrete walkways, concrete paving, ballfields, picnic shelters, restroom/concession building, site furnishings, drainage, landscaping and other
improvements per the project plans and
specifications.

LS 1 192,773.38$ $192,773.38 342,000.00$ $342,000.00 493,280.00$ $493,280.00 177,905.00$ $177,905.00 370,000.00$ $370,000.00 475,000.00$ $475,000.00 8 Provide drainage for the complete park site per the project plans and specifications. LS 1 427,316.96$ $427,316.96 459,796.00$ $459,796.00 618,460.00$ $618,460.00 785,043.00$ $785,043.00 1,029,000.00$ $1,029,000.00 925,000.00$ $925,000.00 9 Provide 4” concrete paving per the project plans and specifications LS 1 239,720.71$ $239,720.71 620,658.00$ $620,658.00 668,170.00$ $668,170.00 597,365.72$ $597,365.72 626,000.00$ $626,000.00 600,000.00$ $600,000.00 10 Provide and install park walkway light poles, fixtures, wire, pull boxes, footings and associated electrical per the project plans and specifications. LS 1 378,360.80$ $378,360.80 171,000.00$ $171,000.00 297,316.00$ $297,316.00 281,633.75$ $281,633.75 588,000.00$ $588,000.00 220,000.00$ $220,000.00 11 Provide and install electrical distribution system, main switchboard, Musco 10-year warranty control links system and associated electrical per the project plans and specifications.

LS 1 186,079.08$ $186,079.08 482,500.00$ $482,500.00 118,927.00$ $118,927.00 281,633.75$ $281,633.75 706,000.00$ $706,000.00 110,000.00$ $110,000.00 12 Provide and install 6’ tubular steel fencing with a mow curb below per the project plans and specifications LF 910 286.40$ $260,624.00 195.00$ $177,450.00 244.00$ $222,040.00 259.81$ $236,429.56 260.00$ $236,600.00 245.00$ $222,950.00 13 Provide and install 4’-0” tubular steel fencing on seat wall per the project plans and specifications LF 213 234.46$ $49,939.98 431.00$ $91,803.00 216.00$ $46,008.00 232.05$ $49,426.65 210.00$ $44,730.00 550.00$ $117,150.00 14 Provide and install 12’ wide tubular steel double swing gates per the project plans and specifications EA 3 5,908.63$ $17,725.89 7,833.00$ $23,499.00 6,216.00$ $18,648.00 12,685.40$ $38,056.20 9,000.00$ $27,000.00 8,000.00$ $24,000.00 15 Provide and install 6’ wide tubular steel gates per the project plans and specifications EA 1 5,706.42$ $5,706.42 4,254.00$ $4,254.00 5,474.00$ $5,474.00 7,348.25$ $7,348.25 5,000.00$ $5,000.00 4,500.00$ $4,500.00 16 Provide and install 6’-6” accent pilasters per the project plans and specifications EA 26 5,024.98$ $130,649.48 7,000.00$ $182,000.00 5,537.00$ $143,962.00 8,639.40$ $224,624.40 6,300.00$ $163,800.00 11,000.00$ $286,000.00 17 Provide and install accent wall at the entry per the project plans and specifications LF 207 387.79$ $80,272.53 700.00$ $144,900.00 432.00$ $89,424.00 669.97$ $138,683.79 400.00$ $82,800.00 500.00$ $103,500.00 18 Provide and install picnic tables per the project plans and specifications EA 11 2,954.74$ $32,502.14 2,900.00$ $31,900.00 3,657.00$ $40,227.00 4,767.14$ $52,438.54 4,200.00$ $46,200.00 4,500.00$ $49,500.00 19 Provide and install accessible picnic tables per the project plans and specifications EA 7 2,431.52$ $17,020.64 3,200.00$ $22,400.00 4,072.00$ $28,504.00 4,767.14$ $33,369.98 4,150.00$ $29,050.00 3,500.00$ $24,500.00 20 Provide and install drinking fountain including waterline and drain per the project plans and specifications EA 2 6,597.04$ $13,194.08 12,500.00$ $25,000.00 14,700.00$ $29,400.00 23,804.76$ $47,609.52 80,000.00$ $160,000.00 8,500.00$ $17,000.00

BID TABULATION

1. BID TABULATION
PROJECT NAME: [ENTER PROJECT NAME]
PROJECT NO: [ENTER PROJECT NO]
Bid Item and Description
Apparent Low Bidder 1
Urban habitat
Apparent Low Bidder 5
H&H General Contractors, Inc.

Apparent Low Bidder 2
Act 1 Constructoin PUB Construction, Inc.

Apparent Low Bidder 4 Apparent Low Bidder 6
KASA Construction, Inc.

Apparent Low Bidder 3
Horizons Construction
U:\Temp Docs\Nicholson Park Improvements\Nicholson Park Impr. BID ANALYSISBID TABULATION 1 of 3

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Quantity Unit Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price

BID TABULATION

1. BID TABULATION
PROJECT NAME: [ENTER PROJECT NAME]
PROJECT NO: [ENTER PROJECT NO]
Bid Item and Description
Apparent Low Bidder 1
Urban habitat
Apparent Low Bidder 5
H&H General Contractors, Inc.

Apparent Low Bidder 2
Act 1 Constructoin PUB Construction, Inc.

Apparent Low Bidder 4 Apparent Low Bidder 6
KASA Construction, Inc.

Apparent Low Bidder 3
Horizons Construction
21 Provide and install chain link gates 8’ tall by 10’ wide at ballfields per the project plans and specifications EA 2 4,341.85$ $8,683.70 2,400.00$ $4,800.00 4,235.00$ $8,470.00 5,295.50$ $10,591.00 2,800.00$ $5,600.00 18,000.00$ $36,000.00 22 Provide and install 6’ benches per the project plans and specifications EA 13 1,935.15$ $25,156.95 2,750.00$ $35,750.00 4,225.00$ $54,925.00 5,274.08$ $68,563.04 4,900.00$ $63,700.00 4,200.00$ $54,600.00 23 Provide and install trash receptacles per the project plans and specifications EA 8 3,319.64$ $26,557.12 1,500.00$ $12,000.00 1,503.00$ $12,024.00 2,177.70$ $17,421.60 2,150.00$ $17,200.00 1,500.00$ $12,000.00 24 Provide and install trash recycle receptacles per the project plans and specifications EA 3 1,525.97$ $4,577.91 1,500.00$ $4,500.00 1,703.00$ $5,109.00 7,153.09$ $21,459.27 2,650.00$ $7,950.00 2,000.00$ $6,000.00 25 Provide and install BBQ grill and coal receptacles per the project plans and specifications EA 4 1,336.16$ $5,344.64 1,850.00$ $7,400.00 2,350.00$ $9,400.00 3,094.00$ $12,376.00 1,500.00$ $6,000.00 1,300.00$ $5,200.00 26 Provide and install bike rack per the project plans and specifications EA 2 1,658.12$ $3,316.24 1,900.00$ $3,800.00 3,130.00$ $6,260.00 2,023.00$ $4,046.00 2,200.00$ $4,400.00 1,700.00$ $3,400.00 27 Provide and install exercise stations per the project plans and specifications EA 5 11,936.98$ $59,684.90 10,300.00$ $51,500.00 12,179.00$ $60,895.00 28,429.10$ $142,145.50 12,000.00$ $60,000.00 12,500.00$ $62,500.00 28 Provide and install 6” concrete mow curb per the project plans and specifications LF 460 19.28$ $8,868.80 8.00$ $3,680.00 62.10$ $28,566.00 45.70$ $21,020.16 55.00$ $25,300.00 35.00$ $16,100.00 29 Provide and install Mile Marker Signs per the project plans and specifications EA 2 1,358.12$ $2,716.24 1,200.00$ $2,400.00 640.00$ $1,280.00 595.00$ $1,190.00 700.00$ $1,400.00 1,200.00$ $2,400.00 30 Provide and install park monument signs per the project plans and specifications EA 2 22,643.97$ $45,287.94 42,000.00$ $84,000.00 38,870.00$ $77,740.00 33,911.72$ $67,823.43 20,000.00$ $40,000.00 30,000.00$ $60,000.00 31 Provide and install playground equipment with integrated shade per the project plans and specifications LS 1 669,894.77$ $669,894.77 738,298.00$ $738,298.00 598,386.00$ $598,386.00 963,036.00$ $963,036.00 640,000.00$ $640,000.00 650,000.00$ $650,000.00 32 Provide and install poured in place playground safety surfacing per the project plans and specifications LS 1 201,870.25$ $201,870.25 180,000.00$ $180,000.00 238,790.00$ $238,790.00 225,669.22$ $225,669.22 225,000.00$ $225,000.00 225,000.00$ $225,000.00 33 Provide and install concrete play area curb per the project plans and specifications LF 370 7.44$ $2,752.80 25.00$ $9,250.00 71.30$ $26,381.00 72.83$ $26,946.36 71.00$ $26,270.00 30.00$ $11,100.00 34 Provide and install play area light poles, fixtures, conduit, wire, and pull boxes per the project plans and specifications LS 1 173,673.81$ $173,673.81 36,000.00$ $36,000.00 163,524.00$ $163,524.00 281,633.73$ $281,633.73 40,000.00$ $40,000.00 95,000.00$ $95,000.00 35 Provide and install parking lot concrete driveway approaches, curb and gutter, 6” concrete curb, 36” wide longitudinal gutter and concrete curb ramps per the project plans and specifications
LS 1 190,522.97$ $190,522.97 191,725.00$ $191,725.00 37,777.00$ $37,777.00 303,617.79$ $303,617.79 97,000.00$ $97,000.00 385,000.00$ $385,000.00 36 Provide and install parking lot striping per the project plans and specifications LS 1 5,271.00$ $5,271.00 4,200.00$ $4,200.00 12,880.00$ $12,880.00 14,994.00$ $14,994.00 5,000.00$ $5,000.00 5,100.00$ $5,100.00 37 Provide and install 6’ concrete wheel stops per the project plans and specifications LS 1 868.36$ $868.36 700.00$ $700.00 10,235.00$ $10,235.00 1,190.00$ $1,190.00 800.00$ $800.00 1,000.00$ $1,000.00 38 Provide and install traditional SSTD truncated Domes per the project plans and specifications LS 1 5,064.47$ $5,064.47 5,000.00$ $5,000.00 10,350.00$ $10,350.00 5,950.00$ $5,950.00 6,000.00$ $6,000.00 33,000.00$ $33,000.00 39 Provide and install disabled and EVCS parking lot signs and stall signs per the project plans and specifications LS 1 1,116.48$ $1,116.48 975.00$ $975.00 4,025.00$ $4,025.00 1,190.00$ $1,190.00 4,600.00$ $4,600.00 2,200.00$ $2,200.00 40 Provide and install parking light poles, fixtures, wire, conduit, and pull boxes per the project plans and specifications LS 1 167,347.12$ $167,347.12 110,000.00$ $110,000.00 193,256.00$ $193,256.00 281,633.73$ $281,633.73 171,000.00$ $171,000.00 120,000.00$ $120,000.00 41 Provide and install 6’ concrete paving in front of the trash enclosure per the project plans and specifications SF 855 6.97$ $5,959.35 15.00$ $12,825.00 13.00$ $11,115.00 54.89$ $46,934.97 26.00$ $22,230.00 40.00$ $34,200.00 42 Provide and install covered trash enclosure per the project plans and specifications LS 1 131,701.56$ $131,701.56 84,630.00$ $84,630.00 95,200.00$ $95,200.00 129,234.00$ $129,234.00 164,000.00$ $164,000.00 110,000.00$ $110,000.00 43 Provide and install parking lot pipe gates per the project plans and specifications EA 4 8,956.60$ $35,826.40 1,640.00$ $6,560.00 10,867.50$ $43,470.00 4,442.27$ $17,769.08 2,000.00$ $8,000.00 2,400.00$ $9,600.00 44 Provide and install Small Ballfield including but not limited to fencing, backstop, dugouts, gates, benches, shade covers, bat rack, home plate, pitching rubber, bases, lining system, bleacher seating with shade, foul poles, infield mix, irrigation, sod, scoreboard and maintenance period per the project plans and specifications
LS 1 554,941.91$ $554,941.91 577,010.00$ $577,010.00 575,510.00$ $575,510.00 348,938.94$ $348,938.94 520,000.00$ $520,000.00 650,000.00$ $650,000.00 45 Provide and install small field light poles, fixtures, wire, conduit, and pull boxes per the project plans and specifications LS 1 461,476.12$ $461,476.12 150,000.00$ $150,000.00 367,296.00$ $367,296.00 281,633.73$ $281,633.73 215,000.00$ $215,000.00 350,000.00$ $350,000.00 U:\Temp Docs\Nicholson Park Improvements\Nicholson Park Impr. BID ANALYSISBID TABULATION 2 of 3

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Quantity Unit Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price Unit Price Total Price

BID TABULATION

1. BID TABULATION
PROJECT NAME: [ENTER PROJECT NAME]
PROJECT NO: [ENTER PROJECT NO]
Bid Item and Description
Apparent Low Bidder 1
Urban habitat
Apparent Low Bidder 5
H&H General Contractors, Inc.

Apparent Low Bidder 2
Act 1 Constructoin PUB Construction, Inc.

Apparent Low Bidder 4 Apparent Low Bidder 6
KASA Construction, Inc.

Apparent Low Bidder 3
Horizons Construction
46 Provide and install 300’ ballfield including but not limited to fencing, backstop, dugouts gates benches, shade covers, bat rack, home plate, pitching rubber, bases, lining system, bleacher seating with shade, foul poles, infield mix, irrigation, sod, scoreboard and maintenance period per the project plans and specifications
LS 1 690,550.93$ $690,550.93 338,155.00$ $338,155.00 658,225.00$ $658,225.00 309,939.07$ $309,939.07 630,000.00$ $630,000.00 675,000.00$ $675,000.00 47 Provide and install 300’ ballfield light poles, fixtures, wire, conduit, and pull boxes per the project plans and specifications LS 1 498,691.94$ $498,691.94 360,000.00$ $360,000.00 399,235.00$ $399,235.00 281,633.73$ $281,633.73 470,000.00$ $470,000.00 465,000.00$ $465,000.00 48 Provide and install new basketball surfacing, striping, backboards and goals per the project plans and specifications LS 1 17,776.76$ $17,776.76 14,900.00$ $14,900.00 56,760.00$ $56,760.00 374,850.00$ $374,850.00 28,000.00$ $28,000.00 15,000.00$ $15,000.00 49 Provide and install all materials needed to renovate the existing restroom, including all utilities per the project plans and specifications LS 1 352,268.52$ $352,268.52 265,600.00$ $265,600.00 178,850.00$ $178,850.00 297,500.00$ $297,500.00 327,000.00$ $327,000.00 190,000.00$ $190,000.00 50 Provide and install new pre-fab snack bar, restroom, and equipment room building including all utilities per the project plans and specifications LS 1 699,147.18$ $699,147.18 850,869.00$ $850,869.00 887,200.00$ $887,200.00 4,760.00$ $4,760.00 977,000.00$ $977,000.00 850,000.00$ $850,000.00 51 Provide and install trees, turf, shrubs and groundcover plantings (include weed abatement & soil preparation and 90-day plant establishment maintenance period, per project plans & specifications
LS 1 372,022.69$ $372,022.69 247,050.00$ $247,050.00 381,170.00$ $381,170.00 238,000.00$ $238,000.00 409,000.00$ $409,000.00 600,000.00$ $600,000.00 52 Provide and install wood chip mulch min. 3 inches deep on exposed planting areas per the project plans & specifications LS 1 25,713.68$ $25,713.68 29,935.00$ $29,935.00 13,121.00$ $13,121.00 55,036.31$ $55,036.31 46,000.00$ $46,000.00 35,000.00$ $35,000.00 53 Provide & install complete irrigation system per project plans & specifications LS 1 226,188.68$ $226,188.68 452,544.00$ $452,544.00 520,470.00$ $520,470.00 961,459.31$ $961,459.31 400,000.00$ $400,000.00 725,000.00$ $725,000.00 54 California Edison, Cable, and Telephone Misc. work and connection LS 1 20,000.00$ $20,000.00 20,000.00$ $20,000.00 20,000.00$ $20,000.00 20,000.00$ $20,000.00 20,000.00$ $20,000.00 20,000.00$ $20,000.00 Apparent Low Bidder
1 Apparent Low Bidder
2 Apparent Low Bidder 3 Apparent Low Bidder
4 Apparent Low Bidder 5 Apparent Low Bidder 6
$8,147,197.56 $8,582,096.00 $9,410,465.00 $9,816,284.58 $11,613,630.00 $12,055,500.00 $8,147,197.56 $8,582,096.00 $9,410,465.00 $9,816,284.54 $11,613,630.00 $12,055,500.00 $0.00 $0.00 $0.00 $0.04 $0.00 $0.00
A1
Provide and install hexagon 40’ picnic shelter with lights per the project plans and specifications vide and install rectangular 20’ x 40’ picnic shelter with lights per the project plans and specifications.

LS 1
105,161.45$ 105,161.45$ 250,800.00$ 250,800.00$ 134,600.00$ 134,600.00$ 186,963.28$ 186,963.28$ 175,000.00$ 175,000.00$ 250,000.00$ 250,000.00$ A2 Provide and install rectangular 20’ x 40’ picnic shelter with lights per the project plans and specifications. LS 1
75,781.30$ 75,781.30$ 161,000.00$ 161,000.00$ 121,480.00$ 121,480.00$ 268,003.47$ 268,003.47$ 160,000.00$ 160,000.00$ 200,000.00$ 200,000.00$ A3 Provide and install shade sails over benches per the project plans and specifications LS 1
59,042.36$ 59,042.36$ 74,986.00$ 74,986.00$ 62,000.00$ 62,000.00$ 214,216.66$ 214,216.66$ 80,000.00$ 80,000.00$ 75,000.00$ 75,000.00$ A4 Provide and install shade cover over bleachers per the project plans and specifications LS 1
244,643.24$ 244,643.24$ 103,501.00$ 103,501.00$ 122,130.00$ 122,130.00$ 214,216.66$ 214,216.66$ 296,000.00$ 296,000.00$ 275,000.00$ 275,000.00$ A5 Provide and steel trellis over park entry gates per the project plans and specifications LS 1
260,499.13$ 260,499.13$ 248,000.00$ 248,000.00$ 78,287.00$ 78,287.00$ 214,216.66$ 214,216.66$ 180,000.00$ 180,000.00$ 225,000.00$ 225,000.00$ $745,127.48 $838,287.00 $518,497.00 $1,097,616.73 $891,000.00 $1,025,000.00 $8,892,325.04 $9,420,383.00 $9,928,962.00 $10,913,901.31 $12,504,630.00 $13,080,500.00

BID RANKING

TOTAL BID AMOUNT INDICATED BY BIDDER

TOTAL BID AMOUNT CALCULATED BASED ON UNIT PRICES

CALCULATION CORRECTIONS TO BID AMOUNT SUBMITTED BY CONTRACTOR BASED ON CALCULATED

BID AMOUNT
ADDITIVE ALTERNATE #1
ADDITIVE ALTERNATE # TOTAL
BASE BID + ADDITIVE ALTERNATVE TOTAL
U:\Temp Docs\Nicholson Park Improvements\Nicholson Park Impr. BID ANALYSISBID TABULATION 3 of 3

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Nicholson Park

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: December 6, 2023
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Suzie H. Soren, Director of Human Resources
Department: Human Resources
Subject: Appointing an Interim Director of Public Works, Operations and Maintenance (U)
Recommendation:

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

1. Adopt Resolution No. 2023-189 appointing Lynn C. Merrill as Director of Public Works, Operations and Maintenance (U) on an interim basis; and

2. Approve Retired Annuitant Employment Agreement.

Executive Summary
To ensure the continuity of operations in the Public Works, Operations and Maintenance Department while the recruitment for the Director of Public Works, Operations and Maintenance (U) is underway, it is recommended that the City retain the services of Mr. Lynn C. Merrill, a California Public Employees Retirement System (CalPERS) retiree, to serve as Director of Public Works, Operations and Maintenance (U) on an interim basis.

Background
On September 15, 2023, a vacancy occurred for the position of Director of Public Works, Operations and Maintenance (U) for the City of San Bernardino. The City Manager reached out to Mr. Merrill due to his high level of knowledge, skills, and abilities to perform the job duties until the recruitment for the Director of Public Works, Operations and Maintenance (U) concludes and a regular appointment is made.

Prior to his retirement, Mr. Merrill held the position Director of Public Services (U) with the City of San Bernardino. Mr. Merrill has over 45 years of public and private sector Packet Page. 1024
experience in Public Works, Streets, Sewers, Water Utility, Facilities and Fleet operations. Mr. Merrill’s employment terms will comply with all applicable statutes and regulations regarding the hiring of a retired annuitant. As such, the City Manager is recommending approval of the attached resolution.

Discussion
State and federal laws provide specific employment restrictions for retirees who return to work with an employer in the same public retirement system from which they receive a benefit.

Mr. Merrill’s appointment is eligible for the “vacant position” employment option under the CalPERS retired annuitant rules, which provides for an appointment to an interim position by the governing body as authorized by Government Code section 21221(h), the Mayor and City Council must make the appointment and approve the employment agreement by resolution. In addition, an appointment under Section 21221(h) requires the City to be actively pursuing a permanent replacement. The City is presently in the process of selecting a recruitment firm to assist with the recruitment for a permanent Director of Public Works, Operations and Maintenance (U). The City will continue to abide by Section 21221(h) and will take further steps to actively recruit for a permanent Director of Public Works, Operations and Maintenance (U). The interim appointment will end when the regular replacement for the vacant position of Director of Public Works, Operations and Maintenance (U) for the City commences their employment or, if earlier, the date that this appointment is terminated by the City or the selected candidate.

In accordance with applicable law, the proposed contract limits the number of hours which may be worked in any fiscal year to 960 hours. Further, the compensation paid to retirees cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate. For the position of Interim Director of Public Works, Operations and Maintenance (U), that rate is $106.36 (i.e., $18,436.18, which is both the top step for the Director of Public Works, Operations and Maintenance (U) position on the approved salary schedule, divided by 173.333).

Lastly, in accordance with the applicable law, the employment agreement does not provide for any other benefit, incentive compensation in lieu of benefits, or any other form of compensation in addition to this hourly pay.
2021-2025 Strategic Targets and Goals
Approving an employment agreement with Interim Director of Public Works, Operations and Maintenance (U) aligns with Goal No. 2b: Focused, Aligned Leadership and Unified Community by building a culture that attracts, retains, and motivates the highest quality talent.

Fiscal Impact
Sufficient funding is included in the FY 2023/24 Adopted Budget.

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

1. Adopt Resolution No. 2023-189 appointing Lynn C. Merrill as Director of Public Works, Operations and Maintenance (U) on an interim basis

2. Approve Retired Annuitant Employment Agreement.

Attachments
Attachment 1 Resolution 2023-189;
Attachment 2 Exhibit A – Retired Annuitant Employment Agreement
Ward:

All Wards
Synopsis of Previous Council Actions:

N/A

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Resolution No. 2023-188
Resolution 2023-189
December 6, 2023

Page 1 of 4 ends

Mayor and City CouncilDecember 6, 2023

Mayor and City Council
December 6, 2023