End of Lease: Under the IPA, Lender will release its security interest when paid in full.
Expenses: Each party will be responsible for their own closing costs.
Escrow Account: Available upon request.
Documentation: The Proposal is subject to credit and documentation approvals. The City is an existing client of BAPCC, and this opportunity has been successfully prescreened. A cross-default with other BAPCC exposure will be required.
Opinion of Counsel: If credit requires a tax opinion, Borrower agrees to work with bond counsel. The opinion will be at Lender’s cost, if needed.
Market Disruption: Notwithstanding anything contained herein to the contrary, in the event any material change shall occur in the financial markets after the date of this Proposal, including, but not limited to any governmental action or other event which materially adversely affects the extension of credit by banks, leasing companies or other lending institutions, the Lender may modify the indicative pricing described above.
USA Patriot Act
Compliance: Borrower acknowledges pursuant to the requirements of the USA Patriot Act, as amended from time to time (including as amended by the USA Freedom Act of 2015) (the "Patriot Act"), the Lender is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Lender to identify the Borrower in accordance with the Patriot Act.
Proposal
Expiration: This Proposal will expire on June 30, 2025, and may be re-issued at the Lender’s discretion.
4.B.1.a
Packet Pg. 256 Attachment: Term Sheet (Approval of Financing for Certain Water System Improvements) The transaction described in this document is an arm’s length, commercial transaction between you and Banc of America Public Capital Corp or one of its subsidiaries or affiliates (collectively, “BAPCC”) in which: (i) BAPCC is acting solely as a principal (i.e., as a lender or lessor) and for its own interest; (ii) BAPCC is not acting as a municipal advisor or financial advisor to you; (iii) BAPCC has no fiduciary duty pursuant to Section 15B of the Securities Exchange Act of 1934 to you with respect to this transaction and the discussions, undertakings and procedures leading thereto (irrespective of whether BAPCC or any of its affiliates has provided other services or is currently providing other services to you on other matters); (iv) the only obligations BAPCC has to you with respect to this transaction are set forth in the definitive transaction agreements between us; and (v) BAPCC is not recommending that you take an action with respect to the transaction described in this document, and before taking any action with respect to the this transaction, you should discuss the information contained herein with your own legal, accounting, tax, financial and other advisors, as you deem appropriate. If you would like a municipal advisor in this transaction that has legal fiduciary duties to you, you are free to engage a municipal advisor to serve in that capacity. __________________________________________________________________________________ 15-Year Amortization Schedule
20-Year Amortization Schedule
4.B.1.a
Packet Pg. 257 Attachment: Term Sheet (Approval of Financing for Certain Water System Improvements) The transaction described in this document is an arm’s length, commercial transaction between you and Banc of America Public Capital Corp or one of its subsidiaries or affiliates (collectively, “BAPCC”) in which: (i) BAPCC is acting solely as a principal (i.e., as a lender or lessor) and for its own interest; (ii) BAPCC is not acting as a municipal advisor or financial advisor to you; (iii) BAPCC has no fiduciary duty pursuant to Section 15B of the Securities Exchange Act of 1934 to you with respect to this transaction and the discussions, undertakings and procedures leading thereto (irrespective of whether BAPCC or any of its affiliates has provided other services or is currently providing other services to you on other matters); (iv) the only obligations BAPCC has to you with respect to this transaction are set forth in the definitive transaction agreements between us; and (v) BAPCC is not recommending that you take an action with respect to the transaction described in this document, and before taking any action with respect to the this transaction, you should discuss the information contained herein with your own legal, accounting, tax, financial and other advisors, as you deem appropriate. If you would like a municipal advisor in this transaction that has legal fiduciary duties to you, you are free to engage a municipal advisor to serve in that capacity.
Municipal Advisor Registration Rule Statement:
This Proposal is submitted in response to your Request for Proposal – 2025 Installment Purchase Agreement dated March 4, 2025. The contents of this proposal and any subsequent discussions between us, including any and all information, recommendations, opinions, indicative pricing, quotations, and analysis with respect to any municipal financial product or issuance of municipal securities, are provided to you in reliance upon the exemption provided for responses to requests for proposals or qualifications under the municipal advisor rules (the “Rules”) of the Securities and Exchange Commission (240 CFR 15Ba1-1 et seq.).
The Staff of the SEC’s Office of Municipal Securities has issued guidance which provides that, in order for a request for proposals to be consistent with this exemption, it must (a) identify a particular objective, (b) be open for not more than a reasonable period of time (up to six months being generally considered as reasonable), and (c) involve a competitive process (such as by being provided to at least three reasonably competitive market participants) or by being publicly posted to your official website. In submitting this Proposal, we have relied upon your compliance with this guidance.
In submitting this Proposal, we are not undertaking to act as a “municipal advisor” to you or any other person within the meaning of the Rules. In connection with this Proposal and the transactions described herein, we are not subject to, and we hereby disclaim, any fiduciary duty to you or to any other person. We understand that you will consult with and rely on the advice of your own municipal, financial, tax, legal and other advisors as and to the extent you deem necessary in connection with your evaluation of this Proposal and the transactions described herein.
4.B.1.a
Packet Pg. 258 Attachment: Term Sheet (Approval of Financing for Certain Water System Improvements) STATE OF CALIFORNIA ) RESOLUTION NO. 4069
COUNTY OF RIVERSIDE ) ss
CITY OF SAN JACINTO )
A RESOLUTION OF THE CITY OF SAN JACINTO,
CALIFORNIA, APPROVING AN INSTALLMENT
PURCHASE AGREEMENT, WITH RESPECT TO
FINANCING IMPROVEMENTS TO THE WATER SYSTEM
IN AN AMOUNT NOT TO EXCEED $9,500,000 AND OTHER
MATTERS PERTAINING THERETO
WHEREAS, the City of San Jacinto (the “City”) is authorized by the laws of the State of California to acquire, design, and construct improvements to the City’s water system (the “Water System”); and
WHEREAS, the City has heretofore undertaken the acquisition, design and construction of improvements to the Water System (the “Project”); and WHEREAS, the City and the City of San Jacinto Public Financing Authority (the “Authority”) have determined that it would be in their best interests to provide for the financing (the “Financing”) of the Project by entering into the Installment Purchase Agreement dated as of April 1, 2025, by and between the City and the Authority (the “Agreement”); and
WHEREAS, the Authority will enter into an Assignment Agreement dated as of April 1, 2025 (the “Assignment Agreement”) with Banc of America Public Capital Corp. (the “Assignee”) pursuant to which the Authority will assign its interests in the Agreement to the Assignee which in turn will provide the funding for the Project; and WHEREAS, the City, the Authority, the Assignee and Argent Institutional Trust Company (“Escrow Agent”) will enter into the Escrow and Account Control Agreement dated the closing date (the “Escrow Agreement”) pursuant to which the Escrow Agent will hold the funds deposited in the escrow account established under the Escrow Agreement (the “Project Fund”); and
WHEREAS, the City has determined that the Financing should be offered for private placement and have received a term sheet from the Assignee and that such Financing will bear interest at a fixed rate; and
WHEREAS, Section 5852.1 of the Government Code of the State of California (“Section 5852.1”) provides that the City obtain from an underwriter, municipal advisor or private lender and disclose, in a meeting open to the public, prior to authorization of the Financing, good faith estimates of: (a) the true interest cost of the installment payments made pursuant to the Agreement (the “Installment Payments”), (b) the finance charge of the Agreement, meaning the sum of all fees and charges paid to third parties, (c) the amount of proceeds of the Agreement received less the finance charge described above and any reserves or capitalized interest paid or funded with proceeds of the Agreement and (d) the sum total of all Installment Payments calculated
4.B.1.b
Packet Pg. 259 Attachment: Resolution No. 4069 (Approval of Financing for Certain Water System Improvements) 2 to the final Installment Payment Date (as defined in the Agreement) plus the fees and charges paid to third parties not paid with the proceeds of the Agreement; and WHEREAS, in accordance with Section 5852.1, the City has obtained such good faith estimates from Fieldman, Rolapp & Associates, Inc., its municipal advisor, and such estimates are attached hereto as Exhibit A; and
WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and delivery of the Agreement and the Escrow Agreement do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized to execute, enter into and perform the Agreement and Escrow Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN
JACINTO RESOLVES AS FOLLOWS:
SECTION 1. Approval of Installment Purchase Agreement. The Agreement, which provides generally for (i) the resale of the Project by the Authority to the City, (ii) the purchase by the City from the Authority of the Project, and (ii) the payment by the City to the Authority of the Installment Payments in amounts which will be sufficient to pay the principal of and interest owing to the Assignee, is hereby approved and any of the City Manager, the Deputy City Manager and Finance Director of the City (together, the “Authorized Officers”) are each individually authorized to execute, acknowledge and deliver said agreement on behalf of the City in substantially the form hereby approved with such changes therein as the officer executing the same may approve, such approval to be conclusively evidenced by the execution and delivery thereof.
SECTION 2. Approval of Escrow Agreement. The Escrow Agreement, which provides the terms and conditions pursuant to which the Project Fund is held, is hereby approved and any of the Authorized Officers are each individually authorized to execute, acknowledge and deliver said agreement on behalf of the Authority in substantially the form hereby approved with such changes therein as the officer executing the same may approve, such approval to be conclusively evidenced by the execution and delivery thereof.
SECTION 3. Financing Terms. The financing terms presented to the City by the Assignee are approved as follows: maximum principal amount of financing is $9,500,000; maximum interest rate with respect to the financing is 4.50%, except in the event of default, or if interest payable on the Agreement is determined to be taxable, such rate may increase as agreed upon in the Agreement, and maximum term for the financing is 20 years.
SECTION 4. Requisitions. The Authorized Officers, or any one of them, are hereby authorized and directed to execute one or more requisitions authorizing the
4.B.1.b
Packet Pg. 260 Attachment: Resolution No. 4069 (Approval of Financing for Certain Water System Improvements) 3 payment of costs of preparing and delivering the Financing from the proceeds of payment by the Assignee.
SECTION 5. Appointment of Professionals. The City hereby authorizes and approves the following professionals to provide services in connection with the Financing: Fieldman, Rolapp & Associates, Inc., as municipal advisor, Best Best & Krieger LLP, as special counsel, Oppenheimer & Co., Inc., as placement agent, and Argent Institutional Trust Company, as escrow agent, and the Authorized Officers are hereby authorized to enter into agreement with said firms in connection with their providing services with respect to the Financing.
SECTION 6. Other Acts. The Authorized Officers are hereby authorized and directed, jointly and severally, to do any and all things, to execute and deliver any and all documents, which in consultation with the staff and the City’s legal counsel they may deem necessary or advisable in order to consummate the Financing, or otherwise to effectuate the purposes of this Resolution, and any such actions previously taken by such officers are hereby ratified and confirmed.
SECTION 7. Effective Date. This Resolution shall become effective on the date on which it is adopted.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the 15th day of April 2025 by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
CITY OF SAN JACINTO:
______________________________
Valerie Vandever, Mayor
ATTEST:
______________________________
Julia Espinoza, City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
______________________________
Craig Hayes, City Attorney
4.B.1.b
Packet Pg. 261 Attachment: Resolution No. 4069 (Approval of Financing for Certain Water System Improvements) 4 CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE) ss
CITY OF SAN JACINTO)
I, Julia Espinoza, City Clerk of the City of San Jacinto, DO HEREBY CERTIFY that the foregoing Resolution 4069 was passed, approved, and adopted at the Regular Meeting of the San Jacinto City Council held on the 15th day of April 2025 by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
WITNESS MY HAND AND OFFICIAL SEAL this 15th day of April 2025 _____________________________
Julia Espinoza, City Clerk
4.B.1.b
Packet Pg. 262 Attachment: Resolution No. 4069 (Approval of Financing for Certain Water System Improvements) 24438.70027\43324553.4
A-1
EXHIBIT A
SB 450 Good Faith Estimates
Set forth below are good faith estimates of Fieldman, Rolapp & Associates, Inc., the City’s municipal advisor, as required under Section 5852.1 of the California Government Code (the “Code”) for the Installment Purchase Agreement to finance the acquisition, design and construction of certain improvements to City of San Jacinto’s water system. a) The true interest cost of the installment payments is at 4.32%, calculated as provided in Section 5852.1(a)(1)(A) of the Code.
b) The finance charge of the Installment Purchase Agreement, including all fees and charges paid to third parties, is estimated at $97,000. c) Proceeds of the Installment Purchase Agreement received by the City of $9,097,000 less the finance charges set forth in (b) above, is equal to $9,000,000. d) The total payment amount calculated as provided in Section 5852.1(a)(1)(D) of the Code is estimated at $13,577,580.
The foregoing are estimates and the final costs can vary from the estimated amounts set forth above.
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Packet Pg. 263 Attachment: Resolution No. 4069 (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
INSTALLMENT PURCHASE AGREEMENT
Dated as of April 1, 2025
by and between
CITY OF SAN JACINTO PUBLIC FINANCING AUTHORITY
and
CITY OF SAN JACINTO
Relating To
CITY OF SAN JACINTO
$9,097,000
2025 INSTALLMENT FINANCING
(WATER SYSTEM IMPROVEMENTS)
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Packet Pg. 264 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
TABLE OF CONTENTS
Page
-iARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1.1. Definitions.............................................................................................................. 1 Section 1.2. Liability of City Limited to Net Revenues ............................................................ 7 Section 1.3. Benefits of Installment Purchase Agreement Limited to Parties........................... 7 Section 1.4. Successor Is Deemed Included in all References to Predecessor .......................... 7 Section 1.5. Waiver of Personal Liability.................................................................................. 7 Section 1.6. Article and Section Headings, Gender and References......................................... 8 Section 1.7. Partial Invalidity..................................................................................................... 8 Section 1.8. Exhibits.................................................................................................................. 8 ARTICLE 2
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of the City........................................ 8 Section 2.2. Representations, Covenants and Warranties of the Authority ............................. 11 ARTICLE 3
TERMS OF AGREEMENT
Section 3.1. Purchase of Project and City; Risk of Loss. ........................................................ 12 Section 3.2. Security Interest ................................................................................................... 13 Section 3.3. Repayment of the Project by the City; Event of Taxability................................. 14 Section 3.4. Substitution of the Project.................................................................................... 15 Section 3.5. Term..................................................................................................................... 15 Section 3.6. Payments Generally ............................................................................................. 15 Section 3.7. Taxes.................................................................................................................... 15 Section 3.8. Conditions Precedent. .......................................................................................... 15 Section 3.9. Nature of City’s Obligations................................................................................ 17 Section 3.10. Revenue Fund; Pledge of Net Revenues.............................................................. 19 Section 3.11. Project Fund......................................................................................................... 20 ARTICLE 4
COVENANTS OF THE CITY
Section 4.1. Reports and Notices. ............................................................................................ 21 Section 4.2. Existence as City.................................................................................................. 22 Section 4.3. Change in Business.............................................................................................. 22 Section 4.4. Liens against the System...................................................................................... 22 Section 4.5. Insurance .............................................................................................................. 23 Section 4.6. System Maintenance ............................................................................................ 24 Section 4.7. Against Sale or Other Disposition of the System ................................................ 24 Section 4.8. Eminent Domain Proceeds................................................................................... 24 Section 4.9. Amounts of Rates, Fees and Charges; Financial Covenants................................ 25 Section 4.10. Enforcement of and Performance Under Parity Obligations............................... 25
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Packet Pg. 265 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
TABLE OF CONTENTS
(continued)
Page
-iiSection 4.11. Collection of Charges, Fees and Rates ................................................................ 26 Section 4.12. Against Encumbrances......................................................................................... 26 Section 4.13. Execution of Parity Obligations........................................................................... 27 Section 4.14. Conditions for Entering into Parity Obligations.................................................. 27 Section 4.15. Tax Covenants. .................................................................................................... 28 Section 4.16. Reconstruction of System; Application of Insurance Proceeds........................... 29 Section 4.17. Records and Accounts.......................................................................................... 29 Section 4.18. Collection of Charges .......................................................................................... 29 Section 4.19. Against Competing Utility................................................................................... 29 Section 4.20. Compliance with this Installment Purchase Agreement ...................................... 29 Section 4.21. Observance of Laws and Regulations.................................................................. 30 Section 4.22. Budget.................................................................................................................. 30 Section 4.23. Inspection............................................................................................................. 30 Section 4.24. Further Assurances and Other Information.......................................................... 30 Section 4.25. Delivery of Original Documents.......................................................................... 30 Section 4.26. No Public Registration......................................................................................... 30 Section 4.27. Indemnity for Taxes............................................................................................. 31 Section 4.28. ERISA.................................................................................................................. 31 ARTICLE 5
EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default and Acceleration of Installment Purchase Agreement............ 32 Section 5.2. Application of Funds Upon Acceleration or Event.............................................. 34 Section 5.3. Other Remedies of the Authority......................................................................... 36 Section 5.4. No Remedy Exclusive.......................................................................................... 36 Section 5.5. Agreement to Pay Attorneys’ Fees and Expenses ............................................... 36 Section 5.6. No Additional Waiver Implied by One Waiver................................................... 36 Section 5.7. Prosecution and Defense of Suits ........................................................................ 37 ARTICLE 6
PREPAYMENT OF AGREEMENT
Section 6.1. Optional Prepayment ........................................................................................... 37 Section 6.2. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain................................................................................................................. 37 Section 6.3. Effect of Prepayment ........................................................................................... 38 ARTICLE 7
MISCELLANEOUS
Section 7.1. Notices ................................................................................................................. 38 Section 7.2. Assignment by the Authority............................................................................... 39 Section 7.3. Assignment by the City........................................................................................ 40 Section 7.4. Amendment of this Installment Purchase Agreement ......................................... 40
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Packet Pg. 266 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
TABLE OF CONTENTS
(continued)
Page
-iiiSection 7.5. Binding Effect...................................................................................................... 40 Section 7.6. Severability .......................................................................................................... 41 Section 7.7. Net-Net-Net Parity Obligation............................................................................. 41 Section 7.8. Further Assurances and Corrective Instruments.................................................. 41 Section 7.9. Execution in Counterparts.................................................................................... 41 Section 7.10. Applicable Law and Venue.................................................................................. 41 Section 7.11. Captions............................................................................................................... 41 Section 7.12. USA Patriot Act Notice ....................................................................................... 41 Section 7.13. Costs and Expenses.............................................................................................. 42 Section 7.14. Indemnification .................................................................................................... 42 Section 7.15. Waiver of Jury Trial............................................................................................. 42 EXHIBIT A – Description of Project ........................................................................................A-1 EXHIBIT B – Schedule of Installment Payments .....................................................................B-1 EXHIBIT C – Form of Investor Letter ......................................................................................C-1 EXHIBIT D – Form of Final Acceptance Certificate................................................................D-1 EXHIBIT E – Form of Notice of Acknowledgment of Assignment ......................................... E-1
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Packet Pg. 267 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
1 INSTALLMENT PURCHASE AGREEMENT
THIS INSTALLMENT PURCHASE AGREEMENT (this “Installment Purchase Agreement”), dated for convenience as of April 1, 2025, is by and between City of San Jacinto Public Financing Authority, a joint powers authority duly organized and existing under the laws of the State of California (the “Authority”), and the City of San Jacinto (the “City”), a municipal corporation duly organized and existing under the laws of the State of California; WITNESSETH:
WHEREAS, the City desires to enter into this Installment Purchase Agreement for the purpose of financing the acquisition, design and construction of certain improvements to the City’s water system (the “System”) as identified in Exhibit A attached hereto and incorporated herein by reference (the “Project”); and
WHEREAS, in order to finance the Project, the Authority has agreed to sell the Project to the City as provided herein for $9,097,000 and the City will acquire the Project from the Authority and obligate itself to make installment payments in the amounts and on the dates set forth in Exhibit B attached hereto (the “Installment Payments”); and
NOW, THEREFORE, in consideration of the above premises and of the mutual covenants hereinafter contained and for other good and valuable consideration, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND EXHIBITS
SECTION 1.1. Definitions. All capitalized terms used in this Section 1.1 shall for all purposes of this Installment Purchase Agreement have the meanings herein specified or as hereinafter defined.
“2015 Installment Sale Agreement” means that certain Installment Sale Agreement #15- 103, dated as of July 7, 2015 by and between the City and Municipal Finance Corporation, as such agreement was originally executed and as it may from time to time be amended or supplemented, and assigned to City National Bank pursuant to Section 4.9 thereof. “Acquisition Amount” means $9,097,000.
“Acquisition Period” means the period ending five (5) business days prior to April [22, 2028], (or such later date as may be mutually agreed upon by the Assignee and the City). “Assignee” means Banc of America Public Capital Corp, and its successors and assigns.
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Packet Pg. 268 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
2 “Assignment Agreement” means the Assignment Agreement dated April 1, 2025 by and between the Authority and the Assignee, as supplemented, amended, modified or restated from time to time.
“Authorized Investments” means any of the following, but only to the extent that the same are acquired at fair market value, which at the time of investment are legal investments under the laws of the State of California for the moneys proposed to be invested therein:
(a) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America; (b) obligations of any of the following federal agencies which obligations represent full faith and credit of the United States of America, including: (i) Export-Import Authority; (ii) Farm Credit System Financial Assistance Corporation, (iii) Farmers Home Administration; (iv) General Services Administration; (v) U.S. Maritime Administration; (vi) Small Business Administration; (vii) Government National Mortgage Association (GNMA); (viii) U.S. Department of Housing & Urban Development (PHA’s); (ix) Federal Housing Administration and (x) Federal Financing Authority; (c) senior debt obligations rated “Aaa” by Moody’s and “AAA” by S&P issued by the Federal National Mortgage Association or the Federal Home Financing Mortgage Corporation, senior debt obligations of other government-sponsored agencies, obligations of the Resolution Funding Corporation (REFCORP) and senior debt obligations of other government sponsored agencies;
(d) U.S. dollar denominated deposit accounts, federal funds and banker’s acceptances with domestic commercial banks (including the Authority and its affiliates) which have a rating on their short term certificates of deposit on the date of purchase of “P-1” by Moody’s and “A-1” or “A-1+” by S&P and maturing no more than 360 days after the date of purchase, provided that ratings on holding companies are not considered as the rating of the bank;
(e) commercial paper which is rated at the time of purchase in the single highest classification, “P-1” by Moody’s and “A-1+” by S&P, and which matures not more than 270 days after the date of purchase;
(f) pre-refunded municipal obligations defined as follows: Any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state which are not callable at the option of the obligor prior to maturity or as to which irrevocable instructions have been given by the obligor to call on the date specified in the notice; and (i) which are rated, based upon an irrevocable escrow account or fund (the “escrow”), in the highest rating category of Moody’s and S&P or any successors thereto; or (ii)(A) which are fully secured as to principal and interest and prepayment premium or redemption premium, if any, by an escrow consisting only of cash or obligations described in paragraph (a) above, which escrow may be applied only to the payment of such principal of and interest and prepayment premium or redemption premium, if any, on such bonds or other obligations
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Packet Pg. 269 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
3 on the maturity date or dates thereof or the specified prepayment date or redemption date or dates pursuant to such irrevocable instructions, as appropriate, and (B) which escrow is sufficient, as verified by a nationally recognized Independent Certified Public Accountant, to pay principal of and interest and prepayment premium or redemption premium, if any, on the bonds or other obligations described in this paragraph on the maturity date or dates thereof or on the prepayment date or redemption date or dates specified in the irrevocable instructions referred to above, as appropriate;
(g) the Local Agency Investment Fund maintained by the State of California; and
(h) the California Asset Management Program.
“Business Day” means any day other than a Saturday or Sunday or a day on which (i) banks located in Denver, Colorado or Los Angeles, California are not required or authorized to remain closed, and (ii) the New York Stock Exchange is not closed; and (iii) the Authority and Federal Reserve Banks are not closed.
“City” means City of San Jacinto, a municipal corporation duly organized and existing under the laws of the State of California.
“Closing Date” means April [22], 2025.
“Contract(s)” means any instrument pursuant to which a Parity Obligation is issued. “Contract Payment Date” means any date on which Contract Payments are scheduled to be paid by the City under and pursuant to the Parity Obligations and includes each Installment Payment Date under this Installment Purchase Agreement. “Contract Payments” means the payments scheduled to be paid by the City under any Contract and pursuant to the Parity Obligations, which payments are secured by a pledge of Net Revenues on a parity with this Installment Purchase Agreement. “Contract Rate” means the rate identified as such in the Schedule of Installment Payments. “Costs of Issuance” means all items of expense directly or indirectly payable by or reimbursable to the City and related to the authorization, execution, sale and delivery of this Installment Purchase Agreement any Parity Obligations, including but not limited to any costs, fees and charges for preparation and execution of this Installment Purchase Agreement or any Parity Obligations and any other cost, charge or fee incurred in connection with the delivery of this Installment Purchase Agreement or such Parity Obligations. “Default” means any event or circumstance which, passage of time or the giving of notice or, following the applicable cure period or any of the foregoing, would constitute an Event of Default.
“Escrow Account” means the Escrow Account established and held pursuant to the Escrow Agreement.
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Packet Pg. 270 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
4 “Escrow Agent” means Argent Institutional Trust Company, a Florida trust company, and any successor escrow agent.
“Escrow Agreement” means that certain Escrow and Account Control Agreement dated April [22], 2025 by and among the Authority, the City, the Assignee and the Escrow Agent as supplemented, amended or restated from time to time and pursuant to which the Project Fund will be held.
“Event of Default” means any of the events of default as defined in Section 5.1. “Finance Director” means the City’s finance director.
“Financing Documents” means this Installment Purchase Agreement, the Assignment Agreement, the Escrow Agreement and any and all other documents from time to time evidencing, securing, or delivered to the Authority in connection with, this Installment Purchase Agreement. “Fiscal Year” means each twelve-month period during the Term of this Installment Purchase Agreement, commencing on July 1 in any calendar year and ending on June 30 in the next succeeding calendar year, or any other twelve-month period selected by the City as its fiscal year period.
“Governmental Authority” means any governmental or quasi-governmental entity, including any court, department, commission, board, bureau, agency, administration, central bank, service, district or other instrumentality of any governmental entity or other entity exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative powers or functions of or pertaining to government, or any arbitrator, mediator or other person with authority to bind a party at law.
“Independent Certified Public Accountant” means an independent certified public accountant or any firm of certified public accountants appointed by the City. “Installment Payment Date” means each date upon which Installment Payments are due and payable as set forth on Exhibit B hereto.
“Installment Payments” means all payments required to be paid by the City on any date under this Installment Purchase Agreement and pursuant to Section 3.3 and 3.6, including any prepayment thereof pursuant to Section 6.2 or 6.3 and includes all amounts as specified in the Schedule of Installment Payments, consisting of a principal component and an interest component, and in all cases sufficient to repay such principal component and interest thereon at the applicable Contract Rate (or Taxable Rate if then in effect).
“Installment Purchase Agreement” means this Installment Purchase Agreement, dated as of April 1, 2025, between the Authority and the City.
“Maintenance and Operation Costs” means the reasonable and necessary costs and expenses paid by the City for maintaining and operating the System, including but not limited to the reasonable expenses of management and repair and other costs and expenses necessary to maintain and preserve the System in good repair and working order, and including but not limited
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Packet Pg. 271 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
5 to administrative costs of the City attributable to the System and the financing thereof, including salaries and wages of employees, payment to employees retirement system (to the extent paid from Revenues), overhead taxes (if any), fees of auditors, accountants, attorneys or engineers and insurance premiums along with all other reasonable and necessary costs of the City but in all cases excluding depreciation, replacement and obsolescence charges or reserves therefor and excluding amortization of intangibles or other bookkeeping entries of a similar nature. “Material Adverse Change” means an event or occurrence which adversely affects in a material manner (a) the assets, liabilities, condition (financial or otherwise), business, facilities or operations of the City or the System, (b) the ability of the City to carry out its business in the manner conducted as of the date of this Installment Purchase Agreement or any other Parity Obligation or to meet or perform its obligations under this Installment Purchase Agreement, any other Financing Document or any other Parity Obligation on a timely basis, (c) the validity or enforceability of this Installment Purchase Agreement, any other Financing Document or any other Parity Obligation, or (d) the exclusion of the interest component of the Installment Payments or any other Parity Obligation, as applicable, from gross income for federal income tax purposes or the exemption of such interest for state income tax purposes. “Maximum Annual Debt Service” means, as of the date of any calculation, the maximum sum obtained for the current or any future Fiscal Year during the Term of this Installment Purchase Agreement by totaling the aggregate amount of (1) the Installment Payments coming due in such Fiscal Year, and (2) the principal and interest coming due and payable in such Fiscal Year on any Parity Obligations, including the principal amount coming due and payable by operation of mandatory sinking fund redemption. There shall be excluded from such calculation any principal of and interest on the Installment Payments and any Parity Obligations which have been defeased or discharged, or for the payment of which a security deposit has been posted. In determining the debt service on Parity Obligations for which interest is calculated at a variable interest rates, such Parity Obligation shall be assumed to bear interest at a fixed interest rate equal to the highest variable rate borne over the preceding 24 months by outstanding variable rate debt of the City, or, if no such variable rate debt is at the time outstanding, by variable rate debt for which the interest rate is computed by reference to an index comparable to that to be utilized in determining the interest rate for the Parity Obligation proposed to be issued. With respect to any Parity Obligation that is a tax incentive bond (such as a Build America Bond), such interest shall be equal to the net interest paid by the City after taking into account any anticipated payments to be received by or on behalf of the City from the United States of America. “Net Proceeds” means any insurance proceeds or condemnation award paid with respect to the System, if any, remaining after payment therefrom of all expenses incurred in the collection thereof.
“Net Revenues” means for any period, an amount equal to all of the Revenues received during such period, minus the amount required to pay all Maintenance and Operation Costs becoming payable during such period.
“Parity Obligations” means all other bonds, notes, installment sale agreements, installment purchase agreements, leases, or other obligations of the City, payable from and secured by a pledge of and lien upon any of the Net Revenues incurred on a parity with the Installment Payments,
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6 issued in accordance with Section 4.14 hereof, and includes but is not limited to the 2015 Installment Sale Agreement and this Installment Purchase Agreement. “Person” means any individual, corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, unincorporated association or government (or any agency, instrumentality or political subdivision thereof). “Project” means the equipment, fixtures and other goods and property listed in the Exhibit A hereto and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to this Installment Purchase Agreement. “Project Costs” means the total cost of the Project, including related soft costs such as freight, installation and taxes and other capitalizable costs, and other costs incurred in connection with the acquisition, installation and/or financing of the Project. “Project Fund” means the Escrow Account.
“Resolution of Issuance” means Resolution No [PFA-02] adopted on April 15, 2025. “Revenue Fund” means the fund established under Section 3.9 and held by the City for the receipt and deposit of Revenues.
“Revenues” means all income, rents, rates, fees, charges and other moneys derived from the ownership or operation of the System, including, without limiting the generality of the foregoing, (1) all income, rents, rates, fees, charges, business interruption insurance proceeds or other moneys derived by City from the sale, furnishing and supplying of the water or other services, facilities, and commodities sold, furnished or supplied through the facilities of or in the conduct or operation of the business of the System, plus (2) the earnings on and income derived from the investment of such income, rents, rates, fees, charges, or other moneys, including City reserves, plus (3) the proceeds of any stand-by or water availability charges collected by City, but excluding in all cases customer deposits, connection fees, development impact fees or any other deposits or advances subject to refund until such deposits or advances have become the property of City. “Schedule of Installment Payments” means the schedule set forth in Exhibit B. “Subordinate Obligations” means all obligations of the City that are subordinate in all respects, including priority and payment and enforcement, to the Installment Payments and payments required under Parity Obligations.
“System” means the existing facilities and property owned or operated by the City in connection with the water supply services of the City, together with all extensions thereof and improvements thereto hereafter acquired, constructed or installed by the City. For the avoidance of doubt, the term System is synonymous with the definitions of “Enterprise” under the 2015 Installment Sale Agreement.
“System Obligation” means any long-term obligation of the City payable from and/or secured by (in whole or in part) any of the Revenue Fund (or any portion thereof) or any Revenues
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Packet Pg. 273 Attachment: Installment Sale Agreement (Approval of Financing for Certain Water System Improvements) 24438.70027\43315153.6
7 (or any portion thereof), including this Installment Purchase Agreement and all other Parity Obligations and Subordinate Obligations.
“Taxable Rate” means, 5.5142%.
“Tax Code” means the Internal Revenue Code of 1986, as amended. Any reference herein to a provision of the Tax Code shall include all applicable temporary and permanent regulations promulgated under the Tax Code.
“Term of this Installment Purchase Agreement” or “Term” means the time during which this Installment Purchase Agreement is in effect, as provided in Section 3.4.
SECTION 1.2. Liability of City Limited to Net Revenues. Notwithstanding anything to the contrary contained in this Installment Purchase Agreement, the City shall not be required to advance any money derived from any source of income other than the Net Revenues, for the payment of the principal of or interest or prepayment premiums, if any, on the Installment Payments or for the performance of any covenants herein contained, nor for the maintenance and operation of the System from any source of income other than the Revenues. The City may, however, advance funds for any such purpose so long as such funds are derived from a source legally available for such purpose without incurring any indebtedness. The Installment Payments and any prepayment premiums upon the prepayment thereof shall be payable exclusively from the Net Revenues only as provided in this Installment Purchase Agreement. The credit of the City is not otherwise pledged for the payment of the Installment Payments or interest thereon. The principal of and interest on the Installment Payments and any prepayment premiums upon the prepayment thereof shall not be payable from or secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the City or any of its income, receipts, or revenues, except the Net Revenues pledged to the payment thereof as provided in this Installment Purchase Agreement.
SECTION 1.3. Benefits of Installment Purchase Agreement Limited to Parties.
Nothing contained herein, expressed or implied, is intended to give to any person other than the City and the Authority any right, remedy or claim under or pursuant hereto. Any agreement or covenant required herein to be performed by or on behalf of the City shall be for the sole and exclusive benefit of the Authority.
SECTION 1.4. Successor Is Deemed Included in all References to Predecessor.
Whenever the City is named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in the City, and all agreements and covenants required hereby to be performed by or on behalf of the City shall be assumed fully by and will bind and inure to the benefit of the successors thereof whether so expressed or not.
SECTION 1.5. Waiver of Personal Liability. No member of the City Council and no officer, agent, or employee of the City, or of any department or agency thereof, shall be individually or personally liable for the payment of the principal of or interest on this Installment Purchase Agreement, but nothing contained herein shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law or hereby.
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8 SECTION 1.6. Article and Section Headings, Gender and References. The headings or titles of the several articles and sections hereof and the table of contents appended hereto shall be solely for convenience of reference and shall not affect the meaning, construction or effect hereof. Words of any gender shall be deemed and construed to include all genders. All references herein to “articles,” “sections” and other subdivisions or clauses are to the corresponding articles, sections, subdivisions or clauses hereof; and the words “hereby,” “herein,” “hereof,” “hereto,” “herewith” and other words of similar import refer to this Installment Purchase Agreement as a whole and not to any particular article, section, subdivision or clause hereof.
SECTION 1.7. Partial Invalidity. If any one or more of the agreements or covenants or portions thereof required hereby to be performed by or on the part of the City shall be contrary to law, then such agreement or agreements, such covenant or covenants or such portions thereof shall be null and void and shall be deemed separable from the remaining agreements and covenants or portions thereof and shall in no way affect the validity hereof; but the Authority shall retain all the rights and benefits accorded to it under any applicable provisions of law.
SECTION 1.8. Exhibits. The following Exhibits are attached to, and by reference made a part of this Installment Purchase Agreement:
Exhibit A: Description of the Project.
Exhibit B: Schedule of Installment Payments.
Exhibit C: Form of Investor Letter to be executed by the Assignee.
ARTICLE 2
REPRESENTATIONS, COVENANTS AND WARRANTIES
SECTION 2.1. Representations, Covenants and Warranties of the City. The City represents, covenants and warrants to the Authority as follows:
(a) Installment Purchase Agreement. Each representation and warranty and all information set forth in this Installment Purchase Agreement, each other Financing Document and/or any other document submitted in connection with, or to induce the Authority to enter into this Installment Purchase Agreement is correct in all material respects as of the Closing Date. (b) Due Organization and Existence. The City is a municipal corporation and political subdivision of the State of California, duly organized and existing under the laws of the State of California, with full power and authority to enter into this Installment Purchase Agreement and each other Financing Document and conduct its business. (c) Authorization. The laws of the State of California authorize the City to enter into this Installment Purchase Agreement and each other Financing Document and to enter into the transactions contemplated hereby and thereby, and to carry out its obligations under this Installment Purchase Agreement and each other Financing Document and the City Council has duly authorized the execution and delivery of this Installment Purchase Agreement and each other Financing Document.
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9 (d) Conflicting Agreements. Neither the execution and delivery of the this Installment Purchase Agreement or any other Financing Document nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which the City or any of its property is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrances whatsoever upon any of the property or assets of the City, other than as set forth herein. (e) Consents and Approvals. All consents, approvals, authorizations, orders, licenses or permits of any Governmental Authority, legislative body, board, agency or commission having jurisdiction of the matter, that are required for the due authorization by, or that would constitute a condition precedent to or the absence of which would materially adversely affect the making or accepting of this Installment Purchase Agreement and the execution, delivery of and performance of any Financing Document by the City have been duly obtained (except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of this Installment Purchase Agreement, as to which no representation is made).
(f) Budgets; Full Disclosure. All budgets, projections, feasibility studies, and other documentation submitted by the City to the Authority in connection with, or to induce the Authority to enter into, this Installment Purchase Agreement and the other Financing Documents to which it is a party are based upon assumptions that are true and correct, and as of the Closing Date, no fact has come to light, and no event has occurred, that would cause any assumption made therein to be misleading or untrue. Neither this Installment Purchase Agreement or any other Financing Document nor other certificate, statement, agreement, or document furnished to the Authority in connection with this Installment Purchase Agreement or any other Financing Document (a) contains any untrue statement of a material fact, or (b) fails to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. The City is not aware of any Material Adverse Change that has not been disclosed in writing to the Authority. (g) Accurate Financial Information. Each submission of financial information or documents relating to the City will constitute a representation and warranty by the City that such information and documents (a) are true and accurate in all material respects, and (b) do not fail to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. (h) System Condition. The System reasonably meets present demand in all material respects, is constructed in a good and professional manner, is in good working order and condition, and complies in all material respects with all applicable law. (i) Rate Matters. The City’s rates for the provision of water have been approved, if applicable, by any and all necessary governmental regulatory authorities, including, without limitation, each public service commission or public utilities commission that may have jurisdiction over the operations and rates of the City. Further, to the City’s actual knowledge there is no pending or threatened proceeding before any Governmental Authority, the objective
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10 or result of which is or could be to materially reduce or otherwise materially adversely change any of the City’s rates for the provision of water services, or otherwise have a material adverse effect on the condition, financial or otherwise, operations, properties, or business of the System. (j) Litigation. There is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, is pending for which the City has been served or, to the City’s actual current knowledge, threatened against the City: (i) in any way affecting the existence of the City or in any way challenging the respective powers of the several offices or the titles of the officials of the City to such offices; (ii) affecting or seeking to prohibit, restrain or enjoin the making, execution or delivery of this Installment Purchase Agreement or the other Financing Documents or the application of the proceeds of this Installment Purchase Agreement or the other Financing Documents; (iii) in any way contesting or affecting, as to the City, the validity or enforceability of this Installment Purchase Agreement or the other Financing Documents; (iv) in any way contesting the powers of the City or its authority with respect to the adoption of Resolution of Issuance, or the execution and delivery of this Installment Purchase Agreement or the other Financing Documents; or (v) in any way contesting or challenging the consummation of the transactions contemplated hereby or thereby or that might materially adversely affect the ability of the City to perform and satisfy its obligations under this Installment Purchase Agreement or the other Financing Documents; nor to the best of the City’s knowledge is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the proceedings authorizing this Installment Purchase Agreement or the other Financing Documents or the performance by the City of its obligations hereunder or thereunder, or the authorization, execution, delivery or performance by the City of this Installment Purchase Agreement or the other Financing Documents.
(k) Valid and Binding Obligation. This Installment Purchase Agreement and each of the Financing Documents is a valid and binding obligation of the City enforceable in accordance with its terms.
(l) Pledge and Other Liens. The pledge in Section 3.9(b) of this Installment Purchase Agreement constitutes a lien on and a pledge of all Net Revenues and there are no other liens on the Net Revenues as of the Closing Date except those in favor of the 2015 Installment Sale Agreement on a pari passu basis with this Installment Purchase Agreement. (m) Due Execution. The City has duly authorized and executed this Installment Purchase Agreement and the other Financing Documents in accordance with the laws of the State. (n) No Default Event of Non-Appropriation. The City is not in default and has not failed to appropriate funds required under the terms, conditions or provisions of any agreement or instrument to which the City has issued debt or payment obligations in the past ten years. (o) Outstanding Parity Obligations. The City has not issued or incurred any obligations which are currently outstanding having any priority in payment out of the Revenues or the Net Revenues over the payment of the Installment Payments as provided herein. As of the date of this Installment Purchase Agreement, the 2015 Installment Sale Agreement constitutes the only outstanding Parity Obligations. Other than the lien granted to the 2015 Installment Sale
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11 Agreement on a pari passu basis with this Installment Purchase Agreement, the City has not granted any lien in the Net Revenues or the Project that would be senior in priority to, or pari passu with, the first priority lien granted to the Authority on the Net Revenues and the Project under this Installment Purchase Agreement.
(p) Project Representations.
i. The City has complied and will comply with such procurement and public bidding requirements as may be applicable to the acquisition and construction by the City of the Project.
ii. During the Term, the Project will be used by the City only for the purpose of performing essential governmental or proprietary functions of the City consistent with the permissible scope of the City’s authority. The City does not intend to sell or otherwise dispose of the Project or any interest therein prior to the last Installment Payment scheduled to be paid hereunder.
iii. The City has an immediate need for the Project and expects to make immediate use of the Project. The City’s need for the Project is not temporary and the City does not expect the need for any item of the Project to diminish during the Term. iv. The City is the fee owner of the real estate where the Project is and will be located (the “Real Property”) and has good and marketable title thereto, and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such Real Property. In the event any lien, encumbrance, restriction, asserted encumbrance, claim, dispute or other issue exists or arises with respect to the City’s legal title to or valid and marketable, beneficial use and enjoyment of the Real Property or impairs or adversely impacts Authority’s right, title or interest in the Project or any of Authority’s rights or remedies under this Installment Purchase Agreement with respect to the Project (each of the foregoing referred to as a “Real Property Issue”), City will take all steps necessary to promptly quiet, resolve and/or eliminate such Real Property Issue to the satisfaction of Authority and ensure that City and Authority have adequate access to and use of (including beneficial use and enjoyment of) the Real Property for all purposes of the Project contemplated herein and City shall ensure that its fee interest in the Real Property and Authority’s right, title or interest in the Project and rights or remedies under this Installment Purchase Agreement with respect to the Project remain free and clear of Real Property Issues.
SECTION 2.2. Representations, Covenants and Warranties of the Authority. The Authority represents, covenants and warrants to the City as follows:
(a) Due Organization and Existence. The Authority is a joint powers authority organized and existing under the laws of the State of California. (b) Authorization. The Authority is authorized to enter into this Installment Purchase Agreement and each other Financing Document to which it is a party and the transactions contemplated hereby and thereby, and the Authority has duly authorized the execution and delivery of this Installment Purchase Agreement and each other Financing Document to which it is a party.
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12 (c) No Violations. Neither the execution and delivery of this Installment Purchase Agreement nor any other Financing Document to which it is a party nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Authority is now a party or by which the Authority or its property is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the Authority. (d) Litigation. To the best knowledge of the Authority, there is no pending or threatened action or proceeding against the Authority or for which the Authority has received actual notice before any court or administrative agency which will materially adversely affect the ability of the Authority to perform its obligations under this Installment Purchase Agreement or any other Financing Document to which it is a party.
(e) Investor Letter. The Authority will cause the Assignee to deliver to the City on the Closing Date a certificate or letter substantially in the form set forth in Exhibit C attached hereto, and will abide by all transfer restrictions herein and therein.
ARTICLE 3
TERMS OF AGREEMENT
SECTION 3.1. Purchase of Project and City; Risk of Loss. (a) The Authority agrees to provide funds, in a single advance on the Closing Date solely through proceeds received from the Assignment Agreement, in the Acquisition Amount to the City via wire transfer, as set forth in written instructions provided by the City, for the City to acquire property and easements which are necessary for the acquisition, construction and/or installation of the Project and for the acquisition, construction and/or installation of the Project.
The Authority hereby appoints the City as its agent to carry out all phases of the acquisition, design construction, installation and/or equipping of the Project and the City, as agent of the Authority, assumes all rights, duties, responsibilities and liabilities of the Authority regarding the acquisition, design, construction, installation and/or equipping of the Project. Title to the Project, and each and every portion thereof shall vest in the City upon the acquisition, design and construction thereof; provided, however, the City shall be subject to the payment of Installment Payments as described under this Installment Purchase Agreement and any other amounts due hereunder, to the remedies of the Authority in the Event of Default as provided in Article 5 hereof. The City, as agent of the Authority, may enter into any purchase order, construction management agreement, architecture or engineering contract or construction contract required for the design, acquisition, construction, installation and completion of the Project. The Authority hereby assigns to the City all rights and powers to enforce such purchase orders or contracts as are required for design, acquisition, construction, installation, purchase and completion of the Project, which enforcement may be by auction at law or in equity; provided that the assignment made by the Authority herein shall not prevent the Authority, or its assignee, from asserting any rights or remedies legally available to it. Any appointment of the City as agent of the Authority is limited solely to the extent required under applicable law to render enforceable this Installment Purchase Agreement and to
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13 enable the City to acquire, construct, own and operate the Project, but shall not operate to bind or obligate the Authority for any purpose whatsoever. The City shall not represent to any person that it is acting as agent for the Authority.
(b) Risk of Loss. Whether or not covered by insurance or self insurance, the City hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any persons or property arising from the Project from any cause whatsoever, and no such loss of or damage to or liability arising from the Project shall relieve the City of the obligation to make the Installment Payments or to perform any other obligation under this Installment Purchase Agreement. Whether or not covered by insurance or self insurance, the City hereby agrees to reimburse the Authority and the Assignee (to the fullest extent permitted by applicable law, but only from legally available funds) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by the Authority or the Assignee, regardless of the cause thereof and all expenses incurred in connection therewith (including, without limitation, counsel fees and expenses, and penalties connected therewith imposed on interest received) arising out of or as a result of (a) entering into this Installment Purchase Agreement or any of the transactions contemplated hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery, acceptance, rejection, storage or return of any item of the Project, (c) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Project resulting in damage to property or injury to or death to any person, and/or (d) the breach of any covenant of the City under or in connection with this Installment Purchase Agreement or any material misrepresentation provided by the City under or in connection with this Installment Purchase Agreement. The provisions of this Section 3.1(b) shall continue in full force and effect notwithstanding the full payment of all obligations under this Installment Purchase Agreement or the termination of the Term of this Installment Purchase Agreement for any reason. (c) Disclaimer of Warranties. The Authority and Assignee make no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for particular purpose or fitness for use of any of the Project, or any other warranty or representation, express or implied, with respect thereto and, as to the Authority and the Assignee, the City’s acquisition of the Project shall be on an “as is” basis. In no event shall the Assignee be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Installment Purchase Agreement, the Project or the existence, furnishing, functioning or the City’s use of any item, product or service provided for in this Installment Purchase Agreement.
SECTION 3.2. Security Interest. As additional security for the payment and performance of all of the City’s obligations hereunder, the City hereby grants to Assignee as assignee of the Authority (a) a first priority security interest in the Project, together with all replacements, repairs, restorations, modifications and improvements thereof or thereto and all accessories, equipment, parts and appurtenances appertaining or attached to any of the Project, and all substitutions, renewals, or replacements of and additions, improvements, accessions and accumulations to any and all of such Project, together with all the rents, issues, income, profits, proceeds and avails therefrom, (b) first priority security interest constituting a first lien on moneys and investments held from time to time in the Project Fund, (c) a first priority security interest constituting a first lien on the Revenue Fund and Net Revenues on a parity basis with the other Parity Obligations, (d) a first priority security interest constituting a first lien on all accounts,
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14 chattel paper, deposit accounts, documents, instruments, general intangibles and investment property (including any securities accounts and security entitlements relating thereto) evidenced by or arising out of or otherwise relating to the foregoing collateral described in clauses (b) and (c) above, as such terms are defined in Article 9 of the California Commercial Code, and (e) any and all proceeds of any and all of the foregoing, including, without limitation, insurance proceeds (collectively, the “Collateral”). The City authorizes the Assignee to file (and City agrees to execute, if applicable) such notices of assignment, chattel mortgages, financing statements and other documents, in form satisfactory to the Assignee, which the Assignee deems necessary or appropriate to establish and maintain the Assignee’s security interest in the Collateral, including, without limitation, such financing statements with respect to personal property and fixtures under Article 9 of the California Commercial Code and treating such Article 9 as applicable to entities such as City. Notwithstanding the foregoing or anything herein to the contrary, the Authority acknowledges and agrees that its security interest in the Project may be subordinated to the rights of the holders of the Parity Obligations, and it shall not exercise any remedies with respect to its security interest in the Project if doing so would impair the operation of the System or any part thereof necessary to secure adequate Net Revenues for the payment of the interest on and principal of the Parity Obligations, or which would otherwise impair the rights of the holders of Parity Obligations with respect to the Net Revenues or the operation of the System.
SECTION 3.3. Repayment of the Project by the City; Event of Taxability. (a) The City hereby agrees to purchase from the Authority the Project at a purchase price equal to the Acquisition Amount together with interest on the unpaid principal balance of the Acquisition Amount, payable in Installment Payments, payable on each Installment Payment Date as set forth in Exhibit B. If any Installment Payment or other amount payable hereunder is not paid within ten (10) days of its due date, the City shall pay an administrative late charge of five percent (5%) of the amount not timely paid or the maximum amount permitted by law, whichever is less. (b) Upon the occurrence of an Event of Taxability, the interest component of Installment Payments and any charge on Installment Payments or other amounts payable based on the Contract Rate shall have accrued and be payable at the Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for federal income tax purposes (which retroactive date shall be the earliest date as of which the interest component of any Installment Payment is deemed includable in the gross income of the owner or owners thereof for federal income tax purposes, which may be earlier than the date of delivery of such determination by the Internal Revenue Service), and the City will pay such additional amount as will result in the owner receiving the interest component at the Taxable Rate.
For purposes of this Section, “Event of Taxability” means the circumstance of the interest component of any Installment Payment paid or payable pursuant to this Installment Purchase Agreement becoming includible for federal income tax purposes in an owner’s gross income as a consequence of any act, omission or event whatsoever, including but not limited to the matters described in the immediately succeeding sentence, and regardless of whether the same was within or beyond the control of the City. An Event of Taxability shall be presumed to have occurred upon (a) the receipt by the Assignee or the City of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency or other written correspondence which legally holds that the interest component of any Installment Payment is includable in the
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15 gross income of the owner thereof; (b) the issuance of any public or private ruling of the Internal Revenue Service that the interest component of any Installment Payment is includable in the gross income of the owner thereof; or (c) receipt by the Assignee or the City of a written opinion of a nationally recognized firm of attorneys experienced in matters pertaining to the tax exempt status of interest on obligations issued by states and their political subdivisions, selected by the Assignee and acceptable to the City, to the effect that the interest component of any Installment Payment has become includable in the gross income of the owner thereof for federal income tax purposes.
For all purposes of this definition, an Event of Taxability shall be deemed to occur on the date as of which the interest component of any Installment Payment is deemed includable in the gross income of the owner thereof for federal income tax purposes.
SECTION 3.4. Substitution of the Project. The City may substitute other property or components of the Project, but only if the City first obtains the prior written consent of the Assignee in its sole and absolute discretion, which consent shall not be unreasonably withheld, and files with the Authority a statement of the City which:
(a) identifies the property, facilities or combination thereof, to be substituted and the components of the Project that they will replace; and
(b) states that the estimated costs of the substituted property, facilities or combination thereof is not less than the cost of the components of the Project being replaced; and (c) states that such substitution will not adversely affect Net Revenues or otherwise result in a Material Adverse Change.
SECTION 3.5. Term. The Term of this Installment Purchase Agreement shall commence on the Closing Date, and shall end on the date upon which all Installment Payments and all other sums due to the Authority and the Assignee hereunder shall be paid in full.
SECTION 3.6. Payments Generally. The Authority has assigned its right to receive payments hereunder to the Assignee. Payments shall be made on or prior to each Installment Payment Date by wire transfer in immediately available funds to the Assignee in accordance with written instructions provided by the Assignee to the City. Any such written instructions shall be provided by the Assignee to the City at least five days prior to the first Installment Payment Date provided that any failure of the City to receive written instructions shall not delay, impair or eliminate the City’s obligation to timely pay Installment Payments.
SECTION 3.7. Taxes. Any payment by the City to the Authority will be made net of any taxes (other than income and similar taxes imposed on or measured by the Authority’s overall net income). The City shall be responsible for the payment of all such taxes.
SECTION 3.8. Conditions Precedent.
The Authority’s obligation to extend financing under this Installment Purchase Agreement is subject to the condition precedent that the Authority receive, in form and substance satisfactory to the Authority, each of the following:
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16 (a) Installment Purchase Agreement. A duly executed copy of this Installment Purchase Agreement and all instruments and documents contemplated hereby and thereby. (b) Evidence of Authority. Such certified board resolutions, certificates of incumbency, and other evidence that the Authority may require that this Installment Purchase Agreement, all instruments and documents executed in connection herewith have been duly authorized and executed.
(c) Insurance. Such evidence as the Authority may require that the City is in compliance with Section 4.5 below.
(d) Consents and Approvals. Evidence as the Authority may require that all regulatory and other consents and approvals referred to in Section 2.1 have been obtained and are in full force and effect.
(e) Opinions of Counsel. The City shall provide (i) an opinion of special counsel regarding the validity of this Installment Purchase Agreement; (ii) the entering into and performance of the Financing Documents by the City and the execution and delivery of this Installment Purchase Agreement and the incurrence of debt thereunder complies in all respects with the limitations and restrictions set forth in all of the Contracts and Parity Obligations including the 2015 Installment Sale Agreement; (iii) this Installment Purchase Agreement establishes a first lien on and pledge of the Net Revenues and other funds pledged thereby for the security of the Installment Payments and other amounts payable under this Installment Purchase Agreement, on a parity with the 2015 Installment Sale Agreement and any other Contract or Parity Obligation including issued in accordance with the terms of the Installment Purchase Agreement; (iv) this Installment Purchase Agreement establishes a first lien on and pledge of the Net Revenues and other funds pledged thereby for the security of the Installment Payments and other amounts payable under this Installment Purchase Agreement, on a parity with the 2015 Installment Sale Agreement and any other Contract or Parity Obligation including issued in accordance with the terms of the Agreement; (v) the City has duly and validity adopted Resolution No. [___] on April 15, 2025 (“Resolution”) at a meeting of the City Council that was duly noticed and held and at which a quorum was present and acting throughout in accordance with the law of the State of California that are applicable to the City, and such Resolution authorizes the execution and delivery of the Financing Documents and is in full force and effect and has not been modified, amended or rescinded; and (vi) the portion of Installment Payments designated as interest is excludable from gross income for Federal income tax purposes under Section 103 of the Code and is exempt from State of California personal income taxes; and such interest is not a specific item of tax preference for purposes of the federal alternative minimum tax; and (vii) the tax-exempt status of interest on the interest component of Installment Payments under State laws. (f) Opinion of City Attorney. An opinion of City Attorney to the City to the effect that (i) the City is duly organized, validly existing, and in good standing under the laws of the State, (ii) the City has duly received all requisite approvals and has the legal power to enter into and perform under the Financing Documents, (iii) all proceedings of the City necessary to be taken in connection with the authorization, execution, delivery and performance of the Financing Documents have been duly taken and all such authorizations are presently in effect, (iv) the Financing Documents have been duly executed and delivered by the City and each constitutes the valid and binding obligation
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17 of the City enforceable against the City in accordance with its terms, except as enforceability may be limited: by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or affecting the rights of creditors generally and by general equitable principles which may limit the right to obtain the remedy of specific performance of obligation other than the obligation to pay money, and (v) the execution, delivery, and performance by the City of the Financing Documents does not as of the date of the opinion: (a) violate any provision of any law, rule or regulation, any judgment, order or ruling of any court or governmental agency, articles of organization, articles of incorporation, other charter documents, bylaws or operating agreement, as applicable, of the City, or any agreement, indenture, mortgage, or other instrument to which the City is a party or by which the City or any of its properties or the System is bound; or (b) be in conflict with, result in a breach of, or constitute with the giving of notice or passage of time, or both, a default under any such agreement, indenture, mortgage, or other instrument; (vi) no consent, permission, authorization, order or license of any governmental authority is necessary in connection with the execution, delivery, performance, or enforcement of the Financing Documents, except such as have been obtained and are in full force and effect; and (vii) the authorization, approval, execution and delivery of the Financing Documents and all other proceedings of the City relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, procurement and public bidding laws and all other applicable State or Federal laws; (viii) to the best of such counsel’s knowledge, there are no actions, suits, or proceedings affecting the City or any of its assets pending or threatened before any governmental entity which: (a) if adversely decided could have a material adverse effect on the City’s condition, financial or otherwise, operations, properties or business, or on its ability to perform its obligations under the Financing Documents; (b) could adversely affect the transactions contemplated by the Financing Documents or the pledge of Net Revenues to repay Installment Payments and other amounts payable under this Installment Purchase Agreement on a pari passu basis with the 2015 Installment Sale Agreement and any other Contract or Parity Obligation or the security interest of Assignee or its assigns, as the case may be, in the Project, the Project Fund or other Collateral thereunder; or (c) seeks to rescind, terminate, modify, or suspend any consent, permission, authorization, order or license of any governmental authority referred to above.
SECTION 3.9. Nature of City’s Obligations.
(a) Special Obligation. The City’s obligation to pay the Installment Payments is a special obligation of the City limited solely to the Net Revenues and all amounts on deposit in the Revenue Fund and the Project Fund. Under no circumstances is the City required to advance moneys derived from any source of income other than the Net Revenues and other sources specifically identified herein for the payment of the Installment Payments, and no other funds or property of the City are liable for the payment of the Installment Payments. Notwithstanding the foregoing provisions of this Section, however, nothing herein prohibits the City voluntarily from making any payment hereunder from any source of available funds of the City. (b) Obligations Absolute. The obligations of the City to pay the Installment Payments from the Net Revenues and to perform and observe the other agreements contained herein are absolute and unconditional and are not subject to any defense or any right of setoff, counterclaim or recoupment arising out of any breach of the City or the Authority of any obligation to the City or otherwise with respect to the System, whether hereunder or otherwise, or out of indebtedness
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18 or liability at any time owing to the City by the Authority. Until such time as all of the Installment Payments have been fully paid or prepaid, the City:
(i) will not suspend or discontinue payment of any Installment Payments; (ii) will perform and observe all other agreements contained in this Installment Purchase Agreement; and
(iii) will not terminate this Installment Purchase Agreement for any cause, including, without limiting the generality of the foregoing, the occurrence of any acts or circumstances that may constitute failure of consideration, eviction or constructive eviction, destruction of or damage to the System, sale of the System, the taking by eminent domain of title to or temporary use of any component of the System, commercial frustration of purpose, any change in the tax or other laws of the United States of America or the State of California or any political subdivision of either thereof or any failure of the Authority to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Installment Purchase Agreement. (c) Protection of Rights. If the Authority fails to perform any such agreements on its part, the City may institute such action against the Authority as the City deems necessary to compel performance so long as such action does not abrogate the obligations of the City contained in the preceding subsection (b). The City may, however, at the City’s own cost and expense and in the City’s own name or in the name of the Authority prosecute or defend any action or proceeding or take any other action involving third persons which the City deems reasonably necessary in order to secure or protect the City’s rights hereunder, and in such event the Authority will (upon reasonable notice, and at the sole expense of the City) cooperate fully with the City to the extent reasonably necessary and take such action reasonably necessary to effect the substitution of the City for the Authority in such action or proceeding if the City shall so request. (d) Budget and Appropriation of Installment Payments. During the Term of this Installment Purchase Agreement, the City shall adopt all necessary budgets and make all necessary appropriations of the Installment Payments from the Net Revenues. In the event any Installment Payment requires the adoption by the City of any supplemental budget or appropriation, the City shall promptly adopt the same. The covenants on the part of the City contained in this subsection (d) shall be deemed to be and shall be construed to be duties imposed by law, and it shall be the duty of each and every public official of the City to take such actions and do such things as are required by law in the performance of the official duty of such officials to enable the City to carry out the perform the covenants and agreements in this subsection (d). (e) The City agrees that it will perform and comply with each and every covenant and agreement required to be performed or observed by it each Contract and each other Parity Obligation. All events of default and remedies contained in each Contract and each other Parity Obligation, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety (amended to also take into account this Installment Purchase Agreement and all of the obligations of the City and Installment Payments and other amounts payable under this Installment Purchase Agreement) all of which shall be deemed to be made for the benefit of the Assignee and shall be
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19 enforceable against the City (the “Incorporated Provisions”). To the extent that any such Incorporated Provision permits the City or any other party to waive compliance with such provision or requires that a document, opinion or other instrument or any event or condition be acceptable or satisfactory to the City or any other party, for purposes of this Installment Purchase Agreement, such provision shall be complied with unless it is specifically waived by the Assignee in writing in its sole and absolute discretion and such document, opinion or other instrument and such event or condition shall be acceptable or satisfactory only if it is acceptable or satisfactory to the Assignee which shall only be evidenced by the written approval by the Assignee of the same in its sole and absolute discretion. No termination or amendment to any Incorporated Provision or release of the City made pursuant to any Contract or any other Parity Obligation, shall be effective to terminate or amend such Incorporated Provisions or release the City with respect thereto in each case as incorporated by reference herein without the prior written consent of the Assignee in its sole and absolute discretion. The City shall continue to observe the Incorporated Provisions for the benefit of the Assignee until the termination of such Parity Obligation or payment in full of the applicable Contract. All such Incorporated Provisions shall be in addition to the express covenants contained herein and shall not be limited by the express covenants contained herein nor shall such Incorporated Provisions be a limitation on the express covenants contained herein. (f) In the event that the City shall, directly or indirectly, enter into or otherwise consent to any instrument which such instrument provides any Person with different or more restrictive covenants, different or additional events of default and/or greater rights and remedies with respect to any System Obligation or other instrument or all or any portion of the Revenues, Net Revenues or all or any portion of the System than are provided to the Assignee in this Installment Purchase Agreement, the City shall provide the Assignee with a copy of each such instrument and such different or more restrictive covenants, different or additional events of default and/or greater rights and remedies shall automatically be deemed to be incorporated into this Installment Purchase Agreement and the Assignee shall have the benefits of such different or more restrictive covenants, different or additional events of default and/or greater rights and remedies as if specifically set forth herein. The City shall promptly enter into an amendment to this Installment Purchase Agreement to include different or more restrictive covenants, different or additional events of default and/or greater rights and remedies; provided that the Assignee shall have and maintain the benefit of such different or more restrictive covenants, different or additional events of default and/or greater rights and remedies even if the City fails to provide such amendment.
The City will preserve and protect the security of the Parity Obligations and the rights of the Assignee and the other owners of the Parity Obligations, and will warrant and defend their rights against all claims and demands of all persons. From and after the execution and delivery of this Installment Purchase Agreement, this Installment Purchase Agreement shall be incontestable by the City.
SECTION 3.10. Revenue Fund; Pledge of Net Revenues.
(a) Revenue Fund; Receipt and Deposit of Net Revenues. There has heretofore been established a special fund known as the “City of San Jacinto Revenue Fund,” which fund is the same fund as the Revenue Fund described in Section 3.8 of the 2015 Installment Sale Agreement and which fund shall continue to be held and maintained by the City so long as this Installment Purchase Agreement and any Parity Obligations are outstanding. All of the Net Revenues and all
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20 amounts on deposit in the Revenue Fund are hereby irrevocably pledged to the punctual payment of the Installment Payments and any Parity Obligations. The Net Revenues and such other funds may not be used for any other purpose so long as any of the Installment Payments and any Parity Obligations remain unpaid; except that out of the Net Revenues there may be apportioned such sums, for such purposes, as are expressly permitted by this Section 3.10. In accordance with Section 5451 of Title 1, Chapter 5.5 of the California Government Code, this pledge shall constitute a first and exclusive lien on the Net Revenues and such other moneys for the payment of the Installment Payments and any Parity Obligations in accordance with the terms hereof and the terms of the instruments authorizing the issuance of any Parity Obligations. The City shall deposit all Revenues as and when received by it in the Revenue Fund and the City agrees and covenants that all Revenues deposited by it in the Revenue Fund will be accounted for through and held in trust in the Revenue Fund for the benefit of the Authority and for the benefit of the owners of any Parity Obligations on a pari passu basis. The City shall withdraw from such Revenue Fund and transfer to the Authority an amount of Net Revenues equal to the aggregate amount of the Installment Payment when and as the same becomes due and payable. In addition, the City shall withdraw from such fund or funds such amounts of Net Revenues at such times as required to pay the principal of and interest on any Parity Obligations and otherwise comply with the provisions of the instruments authorizing the issuance of any Parity Obligations. (b) Pledge of Net Revenues. All the Net Revenues are irrevocably pledged by the City to the punctual payment of the interest on and principal of and prepayment or redemption premiums, if any, on the Installment Payments and the payment of any other Contract Payments on a pari passu basis, subject to the provisions permitting the application thereof for the purposes and on the conditions and terms set forth in this Installment Purchase Agreement. This pledge shall constitute a first lien on the Net Revenues and such other money for the payment of the Installment Payments and the payment of any other Contract Payments, in accordance with the terms of this Installment Purchase Agreement and any Parity Obligations. The principal of and interest on the Installment Payments and any prepayment premiums upon the prepayment thereof shall not be payable from or secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the City or any of its income, receipts, or revenues, except the Net Revenues and the portion of the Project pledged to the payment thereof as provided in this Installment Purchase Agreement.
(c) Other Uses Permitted. The City shall manage, conserve and apply the Net Revenues in such a manner that all deposits required to be made under the preceding paragraph will be made at the times and in the amounts so required. Subject to the foregoing sentence, so long as no Default has occurred and is continuing hereunder or would result therefrom, the City may at any time and from time to time use and apply Net Revenues for (i) the acquisition and construction of improvements to the System; (ii) the prepayment of this Installment Purchase Agreement or Parity Obligations; or (iii) any other lawful purpose of the City.
SECTION 3.11. Project Fund. Subject to the terms and conditions of this Installment Purchase Agreement, the Authority shall cause the Assignee to provide the Acquisition Amount and deposit the Acquisition Amount in the Project Fund under the Escrow Agreement. The Assignee’s approval of disbursement of funds under the Escrow Agreement is contingent on the City’s compliance with the terms and conditions of this Installment Purchase Agreement and the Escrow Agreement. When amounts are requested from the Project Fund, the City shall promptly
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21 execute and deliver Disbursement Requests to the Assignee pursuant to the Escrow Agreement for the purpose of effecting disbursements from the Project Fund to pay (or reimburse) Project Costs for the Project so acquired and installed. In connection with the execution and delivery by the City to Assignee of the final Disbursement Request, the City shall deliver to Assignee a “Final Acceptance Certificate” in the form attached hereto as Exhibit D. Assignee shall not have any responsibility to pay amounts for any Project Costs or Costs of Issuance with respect to the Financing Documents or the Project that individually or collectively exceed the Acquisition Amount.
ARTICLE 4
COVENANTS OF THE CITY
SECTION 4.1. Reports and Notices.
(a) Annual Financial Statements. No later than 270 days after the end of each Fiscal Year commencing with Fiscal Year 2024/25 the City shall deliver to the Authority audited financial statements of the City prepared in accordance with the accounting standards set forth by the Government Accounting Standard Board. Such financial statements will: (1) be audited by Independent Certified Public Accountants selected by the City; and (2) be accompanied by a report of such accountants containing an opinion. Notwithstanding the foregoing, if audited financial statements are not available within such 270 day period, the City shall provide to the Authority a statement to that effect together with unaudited financial statements reasonably acceptable to the Authority, and shall thereafter provide to the Authority its audited financial statements within 30 days of the City Council meeting at which such audited financial statements are received by the City Council of the City.
Each such audit, in addition to whatever matters may be thought proper by the accountant to be included therein, shall include a summary statement showing the amount of Revenues and the amount of all other funds collected which are required to be pledged or otherwise made available as security for payment of principal of and interest on the Parity Obligations (including the Installment Payments), the disbursements from the Revenues and other funds in reasonable detail. The City shall also provide the Assignee with the City’s approved operating budget for each Fiscal Year within 30 days of approval by the City Council. Any reports required to be delivered to the Assignee may be provided via electronic mail or through the Municipal Securities Rulemaking Board Electronic Municipal Market Access website. The City further agrees to provide such additional information to the Assignee as Assignee may from time to time reasonably request. Credit information relating to the City may be disseminated among Assignee and any of its affiliates and any of their respective successors and assigns. (b) Notice of Default. Promptly after becoming aware thereof, the City shall provide to the Authority notice of the occurrence of an Event of Default, including, without limitation, any error in the City’s financial information previously provided to the Authority and the occurrence of any breach, default, event of default or event that, with the giving of notice and/or the passage of time and/or the occurrence of any other condition, would become a breach, default or event of default under this Installment Purchase Agreement.
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22 (c) Notice of Certain Events. The City shall provide to the Authority (1) notice at least 30 days prior thereto, of any change in the principal place of business of the City or the office where its records concerning its accounts are kept; and (2) all other notices required to be provided hereunder.
SECTION 4.2. Existence as City. The City shall continue to municipal corporation under the laws of the State of California during the term of this Installment Purchase Agreement.
SECTION 4.3. Change in Business. The City shall not, without the prior written consent of the Assignee, engage in any business activities or operations substantially different from or unrelated to the City’s present business activities or operations.
SECTION 4.4. Liens against the System. The City shall keep the System and the Project free of all levies, Liens, and encumbrances except those created by this Installment Purchase Agreement. With respect to the System, the City shall not, without the prior written consent of the Assignee, create, incur, assume, or allow to exist any mortgage, deed of trust, pledge, lien (including the lien of an attachment, judgment, or execution), security interest, or other encumbrance of any kind upon any of the System’s property, real or personal (collectively, “Liens”). The foregoing restrictions will not apply to:
(a) Liens in favor of the Authority and the Assignee under the Financing Documents;
(b) Liens for taxes, assessments, or governmental charges that are not past due; (c) pledges and deposits under workers’ compensation, unemployment insurance, and social security laws;
(d) pledges and deposits to secure the performance of bids, tenders, contracts (other than contracts for payment of money), and like obligations arising in the ordinary course of business as conducted on the date hereof;
(e) Liens imposed by the law in favor of mechanics, material suppliers, warehouses, and like persons that secure obligations if such Lien is being diligently contested in good faith for a period of thirty days, and the City has posted a bond or posted cash collateral for the full amount of such claim;
(f) easements, rights-of-way, restrictions, and other similar encumbrances that, in the aggregate, do not materially interfere with the occupation, use, and enjoyment of the property or assets encumbered thereby in the normal course of business or materially impair the value of the property subject thereto;
(g) purchase money Liens to secure indebtedness permitted hereunder so long as such security interest is subordinated and subject in all respects to the terms of this Installment Purchase Agreement and the Contracts and Parity Obligations and all rights of the Assignee and the other holders of the Parity Obligations, and the secured party shall not exercise any remedies with respect to its security interest if doing so would impair the operation of the System or any part thereof necessary to secure adequate Revenues or Net
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23 Revenues for the payment of the interest on and principal of the Parity Obligations (including this Installment Purchase Agreement), or which would otherwise impair the rights of the holders of Parity Obligations (including the Assignee) with respect to the Revenues or Net Revenues or the operation of the System; and/or (h) Liens relating to Parity Obligations issued in compliance with the provisions of Section 4.14 hereof if such Liens equally and ratably secures all of this Installment Purchase Agreement and the Parity Obligations; and/or (i) existing liens as of the Closing Date and disclosed to the Authority and Assignee in writing prior to the Closing Date and which do not adversely affect the value of, or materially impair, the operation, use or Revenues of the System.
SECTION 4.5. Insurance. The City shall maintain insurance with reputable and financially sound insurance companies or associations, including self-insurance to the extent customary, acceptable to the Authority in such amounts and covering such risks as are usually carried by companies engaged in the same or similar business and similarly situated, and make such increases in the type or amount of coverage as the Authority may reasonably request. All such policies insuring any collateral for the City’s obligations to the Authority will have additional insured, mortgagee and lender’s loss payee clauses or endorsements, as applicable, in form and substance satisfactory to the Authority. At the Authority’s request, the City agrees to deliver to the Authority such proof of compliance with this section as the Authority may require.
The City shall at all times maintain with responsible insurers all such insurance on the System as is customarily maintained with respect to works and properties of like character against accident to, loss of or damage to the System. The City shall also maintain, with responsible insurers, worker’s compensation insurance and insurance against public liability and property damage to the extent reasonably necessary to protect the City, the Authority and the Assignee.
Any insurance required to be maintained hereunder may be maintained under and in accordance with a joint exercise of powers agreement, and may be maintained by the City in the form of selfinsurance or in the form of participation by the City in a program of pooled insurance.
The City shall during the Term of this Installment Purchase Agreement, maintain or cause to be maintained liability insurance naming Assignee and its assigns as additional insured that protects Assignee from liability with limits of at least $5,000,000 per occurrence for bodily injury and property damage coverage (such liability insurance coverage may be in a combination of primary general liability and/or excess liability umbrella coverage), and in all events issued in form and amount satisfactory to Assignee and by an insurance company that is authorized to do business in the State and having a financial strength rating by A.M. Best Company of “A ” or better; and worker’s compensation coverage as required by the laws of the State. In the event the City is permitted, at Assignee’s sole discretion, to self-insure, the City shall provide to Assignee a selfinsurance letter in form and substance satisfactory to Assignee. The City shall furnish to Assignee evidence of all such insurance or self-insurance coverage described in this Section throughout the Term of this Installment Purchase Agreement. The City shall not cancel or modify such insurance or self-insurance coverage in any way without first giving written notice thereof to Assignee at least thirty (30) days in advance of such cancellation or modification.
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24 SECTION 4.6. System Maintenance. The City shall maintain in good repair, working order and condition (ordinary wear and tear excepted) in accordance with the general practice of other businesses of similar character and size, the System, and make all alterations, replacements, and improvements thereto as may from time to time be necessary in order to ensure that its properties remain in good working order and condition. The City agrees that at the Authority’s request, which request may not be made more than once a year, the City will furnish to the Authority a report on the condition of the City’s property prepared by a professional engineer satisfactory to the Authority.
SECTION 4.7. Against Sale or Other Disposition of the System. The City will not sell or otherwise dispose of the System or any part thereof essential to the proper operation of the System or that would have a Material Adverse Change on the Net Revenues received or receivable by the City, unless the Installment Payments and the Parity Obligations have been fully paid or provision has been made therefor. The City will not enter into any lease or agreement which impairs the operation of the System or any part thereof necessary to secure adequate Net Revenues for the payment of the interest on and principal of, prepayment premium and redemption premiums, if any, on the Installment Payments and the Parity Obligations, or which would otherwise impair the rights of the Authority or the owners of the Parity Obligations with respect to the Net Revenues or the operation of the System or the tax-exempt status of the interest component of Installment Payments.
The City covenants that neither the System as a whole or substantially as a whole nor any property that is a part thereof which is essential to its proper operation or to the maintenance of the Revenues shall be mortgaged or otherwise encumbered, sold, leased, pledged or disposed of. The Revenues shall not be mortgaged, encumbered, sold, leased, pledged or disposed of or used or have any charge placed thereon except as authorized by the terms of this Installment Purchase Agreement. The City further covenants that it will not enter into any agreement or transaction, including one leasing, selling or otherwise disposing of nonessential property included as part of the System, which impairs the operation of the System or any part of the System necessary to secure adequate Net Revenues (or any portion thereof) to pay all Installment Payments and all Parity Obligations and any other System Obligations, or which otherwise would materially impair the rights of the City with respect to the Net Revenues (or any portion thereof) or the operation of the System (or any portion thereof).
SECTION 4.8. Eminent Domain Proceeds. If all or any part of the System shall be taken by eminent domain proceedings, the net proceeds shall be used as follows:
(a) Except as provided herein, the City covenants that the System will not be encumbered, sold, leased, pledged, any charge placed thereon, or otherwise disposed of, as a whole or substantially as a whole if such encumbrance, sale, lease, pledge, charge or other disposition would materially impair the ability of the City to pay the Installment Payments or the principal of or interest on any Parity Obligations, or would materially adversely affect its ability to comply with the terms of this Installment Purchase Agreement or the instruments authorizing the issuance of any Parity Obligations. The City shall not enter into any agreement which impairs the operation of the System or any part of it necessary to secure adequate Net Revenues to pay the Installment Payments and any Parity Obligations, or which otherwise would impair the rights of the Authority with respect to the Net Revenues. If any substantial part of the System is sold, the payment therefor
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25 must either (x) be used for the acquisition or construction of improvements and extensions or replacement facilities or (y) be applied to prepay or redeem the Installment Payments and any Parity Obligations, on a pro rata basis, in the manner provided herein and in the instruments authorizing such Parity Obligations.
(b) Any amounts received as awards as a result of the taking of all or any part of the System by the lawful exercise of eminent domain, if and to the extent that such right can be exercised against such property of the City, shall either (x) be used for the acquisition or construction of improvements and extension or replacement facilities of the System, or (y) be applied to prepay or redeem the Installment Payments and any Parity Obligations, on a pro rata basis, in the manner provided herein and in the instruments authorizing such Parity Obligations.
SECTION 4.9. Amounts of Rates, Fees and Charges; Financial Covenants. (a) Rates, Fees and Charges. The City will, at all times while any of the Installment Payments remain outstanding, fix, prescribe, revise and collect rates, fees and charges for the services and facilities furnished by the System during each Fiscal Year and manage the operation of the System for each Fiscal Year so as to yield Revenues at least sufficient, after making reasonable allowances for contingencies and errors in the estimates, to pay the following amounts during such Fiscal Year in the following order of priority:
(i) All current Maintenance and Operation Costs;
(ii) The interest on and principal of and prepayment premium (if any) the Installment Payments and the payments for the Parity Obligations, without preference or priority;
(iii) All payments required for compliance with the terms of this Installment Purchase Agreement and each other Parity Obligation, including without limitation, any obligation to maintain a reserve fund at a certain level, collectively, on a parity basis; (iv) All payments to meet any other obligations of the City which are charges, liens or encumbrances upon, or payable from, the Revenues; and (v) To the extent all of the foregoing amounts have been paid and no Event of Default or Default has occurred, payments with respect to the Subordinate Obligations and any other System Obligations as they become due and payable. (b) Debt Service Coverage Ratio. The City will fix, prescribe, revise and collect rates, fees and charges for the services and facilities furnished by the System during each Fiscal Year that are sufficient to yield Net Revenues so that at the end of each Fiscal Year of the City, commencing with the Fiscal Year ending June 30, 2025, the Debt Service Coverage Ratio (as defined below) for such Fiscal Year is not less than 1.20 to 1.00. For purposes hereof, the term “Debt Service Coverage Ratio” means, for such Fiscal Year, the ratio of: (i) Net Revenues for such Fiscal Year; to (ii) Maximum Annual Debt Service for such Fiscal Year.
SECTION 4.10. Enforcement of and Performance Under Parity Obligations. The City shall enforce all material provisions of any contracts to which it is a party, an assignee,
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26 successor in interest to a party, or third-party beneficiary, in any case where such contracts provide for water to be produced, transmitted and distributed by the System or provide for payments or services to be rendered to the City. Further, the City will comply with, keep, observe and perform all material agreements, conditions, covenants and terms, express or implied, required to be performed by it, contained in all contracts affecting or involving the System, to the extent that the City is a party thereto.
SECTION 4.11. Collection of Charges, Fees and Rates. The City will have in effect at all times rules and regulations requiring each customer to pay the applicable charges, fees and rates and providing for the billing thereof. In each case where such bill remains unpaid in whole or in part after it becomes delinquent, the City will take necessary actions to enforce the collection procedures contained in the rules and regulations.
SECTION 4.12. Against Encumbrances. The City will not mortgage or otherwise encumber, pledge or place any charge or lien upon the System or any of the Revenues or Net Revenues except as provided in this Installment Purchase Agreement and will not issue any obligations secured by or payable from Net Revenues on a parity with, or senior to, the Installment Payments and Parity Obligations.
The City further covenants that the City shall not issue or incur any Subordinate Obligation unless:
(a) Net Revenues, calculated on sound accounting principles, as shown by the books of the City for the latest Fiscal Year or any more recent twelve (12) month period selected by the City ending not more than sixty (60) days prior to the adoption of the resolution approving the instrument pursuant to which such Subordinate Obligation is issued or incurred, as shown by the books of the City shall, after deducting all amounts required for the payment of Installment Payments and all Parity Obligations, have amounted to at least 1.00 times the sum of the maximum annual debt service on all Subordinate Obligations and System Obligations outstanding immediately subsequent to the incurring of such additional obligations. (b) The City must be in compliance with all covenants set forth in this Installment Purchase Agreement and each other Parity Obligation and Contract and System Obligation (including, but not limited to, covenants relating to the issuance of Subordinate Obligations taking into account such proposed Subordinate Obligations) and no Default or Event of Default shall have occurred or be continuing.
(c) The Subordinate Obligations must provide that:
(i) The proceeds of such Subordinate Obligations must be applied to the acquisition, construction, improvement, financing or refinancing of additional facilities, improvements or extensions of existing facilities within the System, or otherwise for facilities, improvements or property which the City determines are of benefit to the System, or for the purpose of refunding any Parity Obligations and Subordinate Obligations in whole or in part, including all costs (including costs of issuing such Subordinate Obligations and including capitalized interest on such Subordinate Obligations during any period which the City deems necessary or advisable) relating thereto;
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27 (ii) Interest on such Subordinate Obligations must be payable no more frequently than any Installment Payment Date (and not on any additional dates); and (iii) The principal of such Subordinate Obligations must be payable on no more frequently than any Installment Payment Date (and not on any additional dates) in which principal is payable on Installment Payments.
(d) The City shall notify the Assignee in writing of the issuance of Subordinate Obligations and provide the Assignee with evidence of satisfaction of the requirements of this Section 4.12 and to the extent the requirements of this Section 4.12 are satisfied connection with such issuance of Subordinate Obligations, the City shall not be required to obtain the consent of the Assignee required pursuant to Section 7.3 in connection with the issuance of such Subordinate Obligations.
SECTION 4.13. Execution of Parity Obligations. The City may at any time execute any Parity Obligations the Contract Payments under which are payable on a parity with the Installment Payments; provided, that such Parity Obligations meet the conditions and requirements for the issuance of Parity Obligations under Section 4.14 below.
SECTION 4.14. Conditions for Entering into Parity Obligations. The City may at any time enter into a Parity Obligation payable from the Net Revenues and secured by a lien and charge upon the Net Revenues equal to and on a parity with the lien and charge securing this Installment Purchase Agreement, but only subject to specific conditions precedent, which are summarized below:
(a) The City is not in default under the terms of this Installment Purchase Agreement and the City shall be in compliance with all agreements, conditions, covenants and terms contained in this Installment Purchase Agreement (including, without limitation, the provisions of Sections
4.9 and 4.11) and in each other Parity Obligations required to be observed or performed by it, and a certificate signed by the Finance Director to that effect shall have been filed with the Assignee (this condition shall not apply where the purpose of a Parity Obligation proposed to be issued is to cure such non-compliance, provided that the certification shall identify such noncompliance and state that the issuance of such Parity Obligations and application of the proceeds thereof will cure such noncompliance).
(b) The execution of the Parity Obligation shall have been duly authorized pursuant to all applicable laws.
(c) The Net Revenues for the most recent Fiscal Year for which audited financial statements are available shall have produced Net Revenues equal to at least one hundred twenty percent (120%) of the Maximum Annual Debt Service as calculated taking into effect of such Parity Obligation and a certificate signed by the Finance Director with supporting calculations based on the audited financial statements demonstrating such compliance delivered to Assignee to that effect shall have been filed with the Authority; provided, that in the event that all or a portion of such Parity Obligation being entered into is for the purpose of refunding and retiring any outstanding Parity Obligation, interest and principal payments on the Parity Obligation to be so
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28 refunded and retired from the proceeds of such Parity Obligation being issued shall be excluded from the foregoing computation of Maximum Annual Debt Service. (d) The Contract Payment Dates for any Parity Obligations shall be:
(i) for interest payments, payable no more frequently than semiannually on any Installment Payment Date (i.e. February 7 and August 7, and not on any additional dates); and
(ii) for principal payments, payable no more frequently than semiannually on any Installment Payment Date (i.e. February 7 and August 7, and not on any additional dates).
(e) The City shall notify the Assignee in writing of the issuance of Parity Obligations and provide the Assignee with evidence of satisfaction of the requirements of this Section 4.14 and to the extent the requirements of this Section 4.14 are satisfied connection with such issuance of Parity Obligations, the City shall not be required to obtain the consent of the Assignee required pursuant to Section 7.3 in connection with the issuance of such Parity Obligations.
SECTION 4.15. Tax Covenants.
The City hereby covenants that, notwithstanding any other provision of this Installment Purchase Agreement, it will make no use of the proceeds of this Installment Purchase Agreement or of any other amounts, regardless of the source, or of any property or take any action, or refrain from taking any action, that would cause this Installment Purchase Agreement to be “arbitrage bonds” within the meaning of Section 148 of the Tax Code.
The City will not use or permit the use of either System or any portion thereof by any person other than a governmental unit as such term is used in Section 141 of the Tax Code, in such manner or to such extent as would result in the loss of exclusion from gross income for federal income tax purposes of the interest payable pursuant to this Installment Purchase Agreement under Section 103 of the Tax Code.
The City will not make any use of the proceeds from this Installment Purchase Agreement or any other funds of the City, or take or omit to take any other action, that would cause the obligation provided herein to be “federally guaranteed” within the meaning of Section 149(b) of the Tax Code or “private activity bonds” within the meaning of Section 141 of the Tax Code. To that end, so long as the Installment Payments are unpaid, the City, with respect to such proceeds and such other funds, will comply with all requirements of such Sections and all regulations of the United States Department of the Treasury issued thereunder and under the Tax Code to the extent such requirements are, at the time, applicable and in effect.
The City shall promptly file or cause to be filed an information report for the Installment Payments in compliance with Section 149 (e) of the Tax Code.
The City has complied with the Tax Code, with respect to this Installment Purchase Agreement, and the City shall not knowingly take or omit to take any action that, under existing
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29 law which may adversely affect the exclusion from gross income for federal income tax purposes, or the exemption from any applicable State tax of the interest on Installment Purchase Agreement.
SECTION 4.16. Reconstruction of System; Application of Insurance Proceeds. If any useful portion of the System shall be damaged or destroyed, the City shall, as expeditiously as possible, continuously and diligently pursue or cause to be pursued the reconstruction or replacement thereof, unless the City shall file with the Authority a written certificate of an engineer qualified to render such certificate to the effect that such reconstruction or replacement is not in the best interests of the City and the Authority. All amounts collected from insurance against accident to or destruction of any portion of the System shall be used to repair or rebuild such damaged or destroyed portion of the System or if determined not to repair or rebuild such portion and in any event to the extent not so applied, must either (a) be used for the acquisition or construction or improvements and extensions or replacement facilities or (b) be applied to prepay or redeem the Installment Payments and any Parity Obligations, on a pro rata basis, in the manner provided in this Installment Purchase Agreement and the 2015 Installment Sale Agreement and in any other instruments authorizing such Parity Obligations. The proceeds of any insurance paid on account of such damage or destruction, other than business interruption loss insurance or public liability insurance, shall be deposited by the City in a special account, held in trust by the City, and made available for, and to the extent necessary applied to, the cost of such reconstruction or replacement, if any and applied pursuant to this Section. Pending such application, such proceeds may be invested by the City in investments permitted by Section 53601 of the California Government Code which mature not later than such times as shall be necessary to provide moneys when needed to pay such cost of reconstruction or replacement. Any balance of such proceeds of insurance not required by the City for the purposes aforesaid shall be deemed Revenues.
SECTION 4.17. Records and Accounts. The City covenants and agrees that it shall keep proper books of record and accounts of the System, separate from all other records and accounts, in which complete and correct entries shall be made of all transactions relating to the System, the Revenues and the Net Revenues. Said books shall at all reasonable times be subject to the inspection of the Authority and the Assignee.
SECTION 4.18. Collection of Charges. The City covenants and agrees that, except to the extent that the City is required under agreements and/or contracts existing on the effective date of this Installment Purchase Agreement, no water service from the System may be furnished or rendered to the United States of America, the State, or any private corporation or person free of charge, or for consideration lower than that charged other persons for similar service in accordance with the City’s regulations. The City covenants that it shall maintain and enforce valid regulations for the payment of bills for water service and wastewater treatment and disposal service.
SECTION 4.19. Against Competing Utility. The City will not acquire, construct, operate or maintain, and will not, within the fullest scope of its lawful powers, permit any other private or public corporation, political subdivision, district or agency, or any person whomsoever to acquire, construct, operate or maintain any water system, sewer system or sewer utility in an area presently served by the System.
SECTION 4.20. Compliance with this Installment Purchase Agreement. The City will faithfully observe and perform or cause to be faithfully observed and performed all the
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30 covenants, conditions and requirements of this Installment Purchase Agreement, and will not suffer or permit any default to occur hereunder. The City will not do or permit anything to be done, or omit or refrain from doing anything, in any case where any such act done or permitted to be done, or any such omission of or refraining from action, would constitute an Event of Default hereunder. Upon request by the Authority, the City shall provide a written certificate of the City to the effect that it is in compliance with all covenants, conditions and requirements of this Installment Purchase Agreement, other than those expressly waived by Authority.
SECTION 4.21. Observance of Laws and Regulations. The City will well and truly keep, observe and perform or cause to be kept, observed and performed all valid and lawful obligations or regulations now or hereafter imposed on it by contract, or prescribed by any law of the United States, or of the State, or by any officer, board or commission having jurisdiction or control, as a condition of the continued enjoyment of any and every right, privilege or franchise now owned or hereafter acquired and enjoyed by the City, including the City’s right to exist and carry on business as a water district, to the end that such rights, privileges and franchises shall be maintained and preserved, and shall not become abandoned, forfeited or in any manner impaired.
SECTION 4.22. Budget. The City hereby covenants to take such action as may be necessary to include all Installment Payments and all other amounts due hereunder in its annual budget and to make the necessary annual appropriations for all such Installment Payments and all other amounts due hereunder. The covenants on the part of the City herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be the ministerial duty of each and every public official of the City to take such action and do such things as are required by law in the performance of such official duty of such officials to enable the City to carry out and perform the covenants and agreements on the part of the City contained in this Installment Purchase Agreement.
SECTION 4.23. Inspection. Permit the Authority or its agents, upon reasonable notice and during normal business hours or at such other times as the parties may agree, to inspect and visit any of its properties, examine and make excerpts from its books and records, and to discuss its business affairs, finances and accounts with its officers, directors, employees, and Independent Certified Public Accountants and to conduct reviews of any collateral.
SECTION 4.24. Further Assurances and Other Information. From time to time and at its expense, execute and deliver such documents and do such other acts and things as the Authority in its sole discretion may deem necessary or advisable from time to time in order to more fully carry out the provisions and purpose of this Installment Purchase Agreement, including delivery of such other information regarding the condition or operations, financial or otherwise, of the City as the Authority may from time to time reasonably request, including, but not limited to, copies of all pleadings, notices and communications referred to in Section 4.1 herein.
SECTION 4.25. Delivery of Original Documents. The City shall deliver to the Authority the original executed versions of this Installment Purchase Agreement, the Financing Documents and the certificates, instruments and documents required to be executed hereunder.
SECTION 4.26. No Public Registration. Without the prior written consent of the Assignee, this Installment Purchase Agreement shall not be (i) assigned a rating by any credit
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31 rating agency, (ii) registered with The Depository Trust Company or any other securities depository, (iii) offered pursuant to any type of offering document or official statement or (iv) assigned a CUSIP number.
SECTION 4.27. Indemnity for Taxes. At all times the City shall indemnify and hold and save the Authority and the Assignee harmless from and against any and all actions or causes of action, claims, demands, liabilities, loss, damage or expense of whatsoever kind and nature incurred by the Authority as a result of the non-payment of any documentary stamp tax, intangible tax, interest or penalties associated therewith or any other local, state or federal assessment required to be paid, but not paid in conjunction with the indebtedness evidenced by this Installment Purchase Agreement. The City agrees to pay to the Authority and the Assignee, their successors and assigns, all sums of money requested by the Authority or the Assignee hereunder within ten days of such request, which the Authority or the Assignee will or may advance, pay or cause to be paid, or become liable to pay, on account of or in connection with failure to pay as required by the regulations of the Governmental Authority so imposing said payment. The Authority and the Assignee will be entitled to charge for any and all disbursements made by it in good faith, under the reasonable belief that it or the City is or was liable for the amount so assessed. Any default by the City in making any payments required under this covenant will constitute a payment Event of Default under this Installment Purchase Agreement and the Authority or the Assignee may, at its option, declare the entire amount of principal plus accrued interest thereon due and payable without notice or demand.
The parties to this Installment Purchase Agreement contemplate that the Project will be used for a governmental or proprietary purpose of the City and that the Project will therefore be exempt from all property taxes. If the lease, sale, purchase, operation, use, possession or acquisition of the Project or the System is nevertheless determined to be subject to taxation, the City shall pay when due all sales and other taxes, special assessments, governmental and other charges of any kind that are at any time lawfully assessed or levied against or with respect to the Project or the System, the Installment Payments or any part of either thereof, or which become due during the Term of this Installment Purchase Agreement, whether assessed against the City, the Authority or Assignee. The City shall pay all utility and other charges incurred in the operation, use and maintenance of the Project and the System. The City shall pay such taxes, assessments or charges as the same may become due. The City shall pay the fee charged by the California Debt and Investment Advisory Commission with respect to this Installment Purchase Agreement pursuant to Section 8856 (or any successor provision) of the California Government Code. The obligation of the City under this Section 4.27 shall survive termination of this Agreement.
SECTION 4.28. ERISA. The City and its subsidiaries, for so long as this Installment Purchase Agreement remains outstanding, will remain in compliance in all material respects with the applicable provisions of ERISA, the failure to comply with which has or may have a material adverse effect on the City.
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32 ARTICLE 5
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default and Acceleration of Installment Purchase Agreement. Any of the following events shall constitute an event of default:
(a) Events of Default.
(i) If default shall be made in the due and punctual payment of the interest component of Installment Payments payable pursuant to this Installment Purchase Agreement or with respect to any Parity Obligation when and as the same shall become due and payable; or
(ii) If default shall be made in the due and punctual payment of the principal component of Installment Payments of or prepayment premium, if any, on or of any sinking fund installment pursuant to this Installment Purchase Agreement or with respect to any Parity Obligation when and as the same shall become due and payable, whether at maturity as therein expressed, by declaration or otherwise; or
(iii) If default shall be made by the City in the observance or performance of any of the other agreements, conditions, covenants or terms on its part contained in this Installment Purchase Agreement, and such default shall have continued for a period of thirty (30) days after the City shall have been given notice in writing of such default by the Authority, which may give notice in its discretion; provided, that such default shall not constitute an Event of Default if the City shall commence to cure such default within such thirty (30)-day period and thereafter diligently and in good faith shall proceed to cure such default within a reasonable period of time but not later than an additional thirty (30) days; or
(iv) If the City shall file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the City, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, or if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the City or of the whole or any substantial part of its property; or
(v) Any representation or warranty made or deemed to be made by or on behalf of the City in this Installment Purchase Agreement or any other Financing Document or in any certificate, financial or other statement furnished by or on behalf of the City to the Authority pursuant hereto or thereto shall prove to have been inaccurate, misleading or incomplete in any material respect when made; or
(vi) Any material provision of this Installment Purchase Agreement or any other Financing Document shall at any time for any reason cease to be the legal, valid and binding obligation of the City or the Authority or shall cease to be in full force and effect,
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33 or shall be declared to be unenforceable, invalid or void, or the validity or enforceability thereof shall be contested by the City or the Authority, or the City or the Authority shall renounce the same or deny that it has any further liability hereunder or thereunder; or (vii) Dissolution, termination of existence, insolvency or business failure of the City; or
(viii) Any court of competent jurisdiction with jurisdiction to rule on the validity of any provision of this Installment Purchase Agreement shall find or rule that this Installment Purchase Agreement is not valid or not binding on the City; or (ix) The City should, after any applicable grace period, breach or be in default under the terms of this Installment Purchase Agreement or any other agreement between the City and the Authority or any affiliate of the Authority; or (x) A judgment, decree, or order for the payment of money will have been rendered against the System which has a material adverse effect on the City and either: (1) enforcement proceedings will have been commenced; (2) a lien prohibited by this Installment Purchase Agreement will have been obtained; or (3) such judgment, decree, or order will continue unsatisfied and in effect for a period of 30 consecutive days without being vacated, discharged, satisfied, bonded, or stayed pending appeal; or (xi) This Installment Purchase Agreement or any Schedule ceases to be legal, valid, binding and enforceable against the City or is in any way terminated (except in accordance with its terms) or becomes or is declared ineffective or inoperative; or (xii) The City has a Material Adverse Change; or
(xiii) Any default occurs (i) under any Parity Obligations or Subordinate Obligations instrument or any other System Obligation; or (ii) any other agreement for borrowing money, lease financing of property or otherwise receiving credit under which the City is an obligor if such default (A) arises under any other agreement for borrowing money, lease financing of property or provision of credit provided by Assignee or any affiliate of Assignee, or (B) arises under any Parity Obligation or Subordinate Obligation instrument or any other System Obligation under which there is outstanding, owing or committed an aggregated amount in excess of $100,000.00; or (xiv) the City fails to maintain insurance required under Section 4.5 hereof, or (iii) observe and perform any covenant, condition or agreement on its part to be observed or performed under Sections 4.4, 4.7, 4.8, 4.9, 4.12, 4.14, 4.16 and/or 6.2 hereof; or (xv) The City shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of the City, or of all or a substantial part of the assets of the City, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable Federal bankruptcy law, or (v) be subject to any liquidation, readjustment, reorganization, moratorium or insolvency proceeding; or
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34 (xvi) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator for the City or the System or of all or a substantial part of the assets of the City or the System.
(b) Remedies on Default. Whenever any Event of Default shall have happened and be continuing, the Authority shall have the right, at its option upon notice to the City, to declare the unpaid aggregate principal components of the Installment Payments as identified on Exhibit B hereto, and the interest accrued thereon, to be immediately due and payable, whereupon the same shall immediately become due and payable.
The Authority shall also have the right, at its option upon notice to the City, to (i) apply to and obtain from any court of competent jurisdiction such decree or order as may be necessary to require officials of the City to charge and collect rates for services provided by the City and the System sufficient to meet all requirements of this Installment Purchase Agreement, (ii) take whatever action at law or in equity as may appear necessary or desirable to collect the Installment Payments then due or thereafter to become due during the Term of this Installment Purchase Agreement, or enforce performance and observance of any obligation, agreement or covenant of the City under this Installment Purchase Agreement, subject to the following paragraph, (iii) Assignee may terminate the Escrow Agreement and apply any proceeds in the Project Fund to the Installment Payments scheduled to be paid hereunder, and (iv) Assignee may take whatever action at law or in equity as may appear necessary or desirable to enforce its rights under the Escrow Agreement or as a secured party in any or all of the Project or the Escrow Account; and/or Assignee may exercise any and all rights and remedies conferred under any Parity Obligation or Contract, including any Incorporated Provision.
Notwithstanding any provision of this Installment Purchase Agreement, the City’s liability to pay the Installment Payments and other amounts hereunder shall be limited solely to Net Revenues as provided in Article 3 hereof. In the event that Net Revenues shall be insufficient at any time to pay the principal and interest on the Installment Payments in full, the City shall not be liable to pay or prepay such delinquent Installment Payments other than from Net Revenues.
In addition, the City shall be liable for, and hereby agrees to pay, all legal costs and expenses, including court costs, incurred by the Assignee in the enforcement of any of the remedies listed above or any other remedy available to the Assignee.
SECTION 5.2. Application of Funds Upon Acceleration or Event. Following an Event of Default, the City shall cause all Net Revenues to be applied to the payment of the principal of and interest then due on the Parity Obligations including this Installment Purchase Agreement (upon presentation of the Parity Obligations to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) as follows:(a) Unless the principal of all of the Parity Obligations including this Installment Purchase Agreement shall have become or have been declared due and payable,
FIRST: To the payment to the persons entitled thereto of all installments of interest then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the
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35 payment thereof ratably, according to the amounts due thereon, to the persons entitled thereto, without any discrimination or preference; and
SECOND: To the payment to the persons entitled thereto of the unpaid principal of any the Parity Obligations including this Installment Purchase Agreement which shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by such Parity Obligations including this Installment Purchase Agreement, and, if the amount available shall not be sufficient to pay in full all such Parity Obligations, together with such interest, then to the payment thereof ratably, according to the amounts of principal due on such date to the persons entitled thereto, without any discrimination or preference; and additionally once delinquent payments are paid ratably, as follows:
(b) There shall be created in the Revenue Fund a separate principal and interest subaccount (each a “Principal and Interest Subaccount”) for each Parity Obligation (including this Installment Purchase Agreement) and there shall be transferred, on the last day of each calendar month, from Net Revenues in the Revenue Fund, and credited to the respective Principal and Interest Subaccount, an amount equal to the sum of:
(i) one-twelfth (1/12) of the principal coming due on the next succeeding Contract Payment Date for each Parity Obligation for which principal is scheduled to be paid on an annual basis (including this Installment Purchase Agreement); (ii) one-sixth (1/6) of the principal coming due on the next succeeding Contract Payment Date for each Parity Obligation for which principal is scheduled to be paid on a semiannual basis;
(iii) one-twelfth (1/12) of the interest coming due on the next succeeding Contract Payment Date for each Parity Obligation for which interest is scheduled to be paid on an annual basis; and
(iv) one-sixth (1/6) of the interest coming due on the next succeeding Contract Payment Date for each Parity Obligation for which interest is scheduled to be paid on a semiannual basis (including each Installment Payment Date for this Installment Purchase Agreement); until the amount available in the respective Principal and Interest Subaccount shall equal the principal or interest, as applicable, payable on the next succeeding Contract Payment Date. (c) If the principal of all of the Parity Obligations including this Installment Purchase Agreement shall have become or have been declared due and payable, Net Revenues shall be applied to the payment of the principal and interest then due and unpaid upon such Parity Obligations including this Installment Purchase Agreement, with interest on the overdue principal at the rate borne by such Parity Obligations including this Installment Purchase Agreement, and, if the amount available shall not be sufficient to pay in full the whole amount so due and unpaid, then to the payment thereof ratably, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Parity Obligation over any other Parity Obligation, according to the amounts due respectively for principal and interest, to the persons entitled thereto without any discrimination or preference.
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36 Notwithstanding anything in any other instrument to the contrary, following an Event of Default, no portion of any Net Revenues shall pay any amounts on any Subordinate Obligations or other System Obligations other than Parity Obligations including this Installment Purchase Agreement until all Parity Obligations including this Installment Purchase Agreement have been paid current and all Events of Default have been fully cured.
SECTION 5.3. Other Remedies of the Authority.The Authority shall have the right:
(a) by mandamus or other action or proceeding or suit at law or in equity to enforce its rights against the City or any director, officer or employee thereof, and to compel the City or any such director, officer or employee to perform and carry out its or his duties under the agreements and covenants required to be performed by it or him contained herein; (b) by suit in equity to enjoin any acts or things that are unlawful or violate the rights of the Authority; or
(c) by suit in equity upon the happening of an Event of Default to require the City and its City Council, officers and employees to account as the trustee of an express trust.
SECTION 5.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Installment Purchase Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority to exercise any remedy reserved to it in this Article 5 it shall not be necessary to give any notice, other than such notice as may be required, in this Article 5 or by law.
SECTION 5.5. Agreement to Pay Attorneys’ Fees and Expenses. In the event either party to this Installment Purchase Agreement should default under any of the provisions hereof and the non-defaulting party should employ attorneys (including in-house counsel) or incur other expenses for the collection of moneys or the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the defaulting party agrees that it will on demand therefor pay to the non-defaulting party the reasonable fees of such attorneys (including the allocable cost of in-house counsel) and such other expenses so incurred by the non-defaulting party.
SECTION 5.6. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Installment Purchase Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder.
A waiver of any default or breach of duty or contract by the Authority shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract. No delay or omission by the Authority to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any such default or breach of duty or
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37 contract or an acquiescence therein, and every right or remedy conferred upon the Authority by law or by this article may be enforced and exercised from time to time and as often as shall be deemed expedient by the Authority. If any action, proceeding or suit to enforce any right or exercise any remedy is abandoned or determined adversely to the Authority, the City and the Authority shall be restored to their former positions, rights and remedies as if such action, proceeding or suit had not been brought or taken.
SECTION 5.7. Prosecution and Defense of Suits. The City shall promptly, upon request of the Assignee, from time to time take or cause to be taken such action as may be necessary or proper to remedy or cure any defect in or cloud upon the title to the System whether now existing or hereafter developing and shall prosecute all such suits, actions and other proceedings as may be appropriate for such purpose.
ARTICLE 6
PREPAYMENT OF AGREEMENT
SECTION 6.1. Optional Prepayment. From and after the date specified (if any) in the Schedule of Installment Payments (the “Prepayment Option Commencement Date”), on the Installment Payment Dates specified in the Schedule of Installment Payments, upon not less than forty-five (45) days prior written notice, and upon payment in full of the sum of all Installment Payments then due plus the then applicable Prepayment Price, which may include a prepayment premium on the unpaid Outstanding Balance as set forth in the Schedule of Installment Payments plus all other amounts then owing hereunder.
After payment of the applicable Prepayment Price and all other amounts then owing hereunder in accordance with this Section 6.1 of this Installment Purchase Agreement, Assignee’s security interests in and to the Project will be terminated and the City will own such Project free and clear of Assignee’s security interest in such Project.
SECTION 6.2. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain. All amounts collected from insurance against accident to or destruction of any portion of the System shall be used to repair or rebuild such damaged or destroyed portion of the System, or if determined not to repair or rebuild such portion and in any event to the extent not so applied, must either (a) be used for the acquisition or construction or improvements and extensions or replacement facilities or (b) be applied to prepay or redeem the Installment Payments and any Parity Obligations, on a pro rata basis, in the manner provided in this Installment Purchase Agreement and the Installment Purchase Agreement authorizing such Parity Obligations. Any such prepayments shall be done on a pro-rata basis with all Parity Obligations.
Except as provided herein, the City covenants that the System will not be encumbered, sold, leased, pledged, any charge placed thereon, or otherwise disposed of, as a whole or substantially as a whole if such encumbrance, sale, lease, pledge, charge or other disposition would materially impair the ability of the City to pay the Installment Payments or the principal of or interest on any Parity Obligations, or would materially adversely affect its ability to comply with the terms of this Installment Purchase Agreement or the instruments authorizing the issuance of any Parity Obligations. The City shall not enter into any agreement which impairs the operation
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38 of the System or any part of it necessary to secure adequate Net Revenues to pay the Installment Payments and any Parity Obligations, or which otherwise would impair the rights of the Assignee with respect to the Net Revenues. The City shall not sell any substantial part of the System without the prior written consent of the Assignee. If any substantial part of the System is sold, the payment therefor must either (a) be used for the acquisition or construction of improvements and extensions or replacement facilities or (b) be applied to prepay or redeem the Installment Payments and any Parity Obligations, on a pro rata basis, in the manner provided herein and in the instruments authorizing such Parity Obligations.
Any amounts received as awards as a result of the taking of all or any part of the System by the lawful exercise of eminent domain, if and to the extent that such right can be exercised against such property of the City, shall either (a) be used for the acquisition or construction of improvements and extension or replacement facilities of the System, or (b) be applied to prepay or redeem the Installment Payments and any Parity Obligations, on a pro rata basis, in the manner provided herein and in the instruments authorizing such Parity Obligations.
SECTION 6.3. Effect of Prepayment. In the event that the City prepays all the Installment Payments in full and all other sums due to the Authority hereunder in full pursuant to Article 6, the City’s obligations under this Installment Purchase Agreement shall thereupon cease and terminate, including but not limited to the City’s obligation to pay Installment Payments under this Installment Purchase Agreement.
Mandatory prepayment of unexpended proceeds is provided as follows:
(a) Any funds not applied to Project Costs and remaining in the Project Fund on the earliest of (i) the expiration of the Acquisition Period, (ii) the date on which the City delivers to the Assignee the executed Disbursement Request to effect the final disbursement to pay (or reimburse) Project Costs from the Project Fund or (iii) a termination of the Project Fund as provided in the Escrow Agreement shall be applied by Assignee on each successive Installment Payment Date thereafter to pay all or a portion of the Installment Payment due and owing in the succeeding twelve (12) months and any remaining amounts shall be applied by Assignee as prepayment to the applicable unpaid principal component of Installment Payments owing hereunder in the inverse order of the Installment Payment Dates at a price of 100% of such prepaid principal component plus accrued interest thereon to the prepayment date. (b) In connection with any partial prepayment of Installment Payments, Assignee shall prepare a new Schedule of Installment Payments reflecting the application of such prepayments in the inverse order of the Installment Payment Dates and deliver the same to the City, which shall be binding, absent manifest error.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Notices. All written notices to be given under this Installment Purchase Agreement shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by telecopier or other form of telecommunication or electronic mail, at
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39 its number set forth below. Notice shall be effective either (a) upon transmission by telecopier or other form of telecommunication, (b) 48 hours after deposit in the United States of America first class mail, postage prepaid, or (c) in the case of personal delivery to any person or electronic mail, upon actual receipt. The Authority and the City may, by written notice to the other party, from time to time modify the address or number to which communications are to be given hereunder.
If to the Authority, as follows:
City of San Jacinto Public Financing Authority
595 S San Jacinto Avenue
San Jacinto, CA 92583
Attn: Executive Director
If to the City, as follows:
City of San Jacinto
595 S San Jacinto Avenue
San Jacinto, CA 92583
Attn: City Manager
SECTION 7.2. Assignment by the Authority. The Authority’s rights under this Installment Purchase Agreement, including the right to receive and enforce payment of the Installment Payments to be made by the City under this Installment Purchase Agreement and security interest in the Project shall be assigned to the Assignee. Assignee’s right, title and interest in and to this Installment Purchase Agreement, the Installment Payments and any other amounts payable by the City hereunder, the Escrow Agreement, its security interest in the Project (collectively, the “Assigned Rights”), may be assigned and reassigned by Assignee at any time, in whole or in part, to one or more assignees or sub assignees without the necessity of obtaining the consent of the City; provided, that any such assignment, transfer or conveyance (i) shall be made only to investors each of whom the Assignee reasonably believes is a “qualified institutional buyer” as defined in Rule 144A(a)(1) promulgated under the Securities Act of 1933, as amended, or an “accredited investor” as defined in Section 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended, and in either case is purchasing the Assigned Rights (or any interest therein) for its own account with no present intention to resell or distribute such Assigned Rights (or interest therein), subject to each investor’s right at any time to dispose of the Assigned Rights (or any interest therein) as it determines to be in its best interests, (ii) shall not result in more than 35 owners of the Assigned Rights or the creation of any interest in the Assigned Rights in an aggregate principal component that is less than $100,000 and (iii) shall not require the City to make Installment Payments, to send notices or otherwise to deal with respect to matters arising hereunder or under the Escrow Agreement with or to more than one Servicer (as such term is defined below), and any trust agreement, participation agreement or custodial agreement under which multiple ownership interests in the Assigned Rights are created shall provide the method by which the owners of such interests shall establish the rights and duties of a single entity, trustee, owner, servicer or other fiduciary or agent acting on behalf of all of the assignees (herein referred to as the “Servicer”) to act on their behalf with respect to the Assigned Rights, including with respect to the exercise of rights and remedies of Assignee on behalf of such owners upon the occurrence of an Event of Default under this Installment Purchase Agreement.
Unless to an affiliate controlling, controlled by or under common control with Assignee, no assignment, transfer or conveyance permitted by this Section 7.1 shall be effective as against the City until the City shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, that if such assignment is made to a bank or trust company as trustee or paying agent for owners of certificates of participation, participation interests, trust certificates or partnership interests with respect to the Installment Payments payable under this Installment Purchase Agreement, it shall thereafter be sufficient that the City receives notice of the
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40 name and address of the bank, trust company or other entity that acts as the Servicer. During the Term of this Installment Purchase Agreement, the City shall keep, or cause to be kept, a complete and accurate record of all such assignments in form necessary to comply with Section 149 of the Code. The City shall retain all such notices as a register of all assignees and shall make all payments to the assignee or assignees or Servicer last designated in such register. The City shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right the City may have against Assignee. Assignments in part may include without limitation assignment of all of Assignee’s security interest in and to the Project and all rights in, to and under this Installment Purchase Agreement related to such Project, and all of Assignee’s security interest in and to the Collateral, or all rights in, to and under the Escrow Agreement. Upon any assignment the Authority shall provide the City a written notice of such assignment naming the assignee. If Assignee notifies the City of its intent to assign this Installment Purchase Agreement, the City agrees that it shall execute and deliver to Assignee a Notice and Acknowledgement of Assignment substantially in the form of Exhibit E attached hereto within five (5) business days after its receipt of such request. The City acknowledges and agrees that the Authority has entered into the Assignment Agreement with Assignee concurrently with this Installment Purchase Agreement pursuant to which the Authority has assigned its rights and obligations under this Installment Purchase Agreement to the Assignee.
The Authority or any assignee has the right to make additional assignments of its rights and obligations under this Installment Purchase Agreement, but the City shall not be required to pay more than a single payee, regardless of the number of assignees, and no such assignment will be effective as against the City unless and until the City consents to such assignment. The City shall pay all Installment Payments hereunder under the written direction of the Authority or the assignee named in the most recent assignment or notice of assignment filed with the City. During the Term of this Installment Purchase Agreement, the City shall keep a complete and accurate record of all such notices of assignment.
SECTION 7.3. Assignment by the City. None of the City’s right, title, and interest in, to and under this Installment Purchase Agreement or any portion of the Project, the Escrow Agreement, the Escrow Account or the other Collateral may be assigned, encumbered or subleased by the City for any reason, and any purported assignment, encumbrance or sublease without Assignee’s prior written consent, which consent shall not be unreasonably withheld, shall be null and void. In connection with any such assignment by the City, the City shall provide the Authority with an opinion of bond counsel that the assignee is legally obligated to pay all Installment Payments and other sums hereunder and to satisfy all of the obligations of the City under this Installment Purchase Agreement and the other Financing Documents, and that such assignment shall not adversely affect the exclusion of interest payable pursuant to this Installment Purchase Agreement from gross income for federal income tax purposes and the exemption of such interest for State of California income tax purposes.
SECTION 7.4. Amendment of this Installment Purchase Agreement. This Installment Purchase Agreement may be amended only in writing by the City and the Authority with the prior written consent of the Assignee.
SECTION 7.5. Binding Effect. This Installment Purchase Agreement shall inure to the benefit of and shall be binding upon the Authority and the City and their respective successors
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41 and assigns. The Assignee is deemed to be a third-party beneficiary of this Installment Purchase Agreement.
SECTION 7.6. Severability. In the event any provision of this Installment Purchase Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
SECTION 7.7. Net-Net-Net Parity Obligation. This Installment Purchase Agreement shall be deemed and construed to be a “net-net-net” contract, and the City hereby agrees that the Installment Payments shall be an absolute net return to the Authority, free and clear of any expenses, charges or set-offs whatsoever.
SECTION 7.8. Further Assurances and Corrective Instruments. The Authority and the City agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for carrying out the expressed intention of this Installment Purchase Agreement. The City will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Installment Purchase Agreement, and for the better assuring and confirming unto the owners of the Parity Obligations the rights and benefits provided herein and in the Parity Obligations.
SECTION 7.9. Execution in Counterparts. This Installment Purchase Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
SECTION 7.10. Applicable Law and Venue. This Installment Purchase Agreement shall be governed by and construed in accordance with the laws of the State of California. The parties hereto consent and submit to the jurisdiction of the State and venue in any state or Federal court of such State of California in Riverside County for the purposes of any suit, action or other proceeding arising in connection with this Installment Purchase Agreement, and each party expressly waives any objections that it may have to the venue of such courts.
SECTION 7.11. Captions. The captions or headings in this Installment Purchase Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Section of this Installment Purchase Agreement.
SECTION 7.12. USA Patriot Act Notice. The Authority hereby notifies the City that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify, and record information that identifies the City in accordance with the USA Patriot Act. The City covenants and agrees it will not, and agrees to cause each of its subsidiaries not to, at any time, directly or indirectly be (a) a person with whom the Authority is restricted from doing business under any Anti-Terrorism Law, (b) engaged in any business involved in making or receiving any contribution of funds, goods or services to or for the benefit of such a person or in any transaction that evades or avoids, or has the purpose of evading or avoiding, the prohibitions set forth in any AntiTerrorism Law, or (c) otherwise in violation of any Anti-Terrorism Law (the City will and will cause each of its subsidiaries to provide to the Authority any certifications or information that the
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42 Authority requests to confirm compliance by the City and its subsidiaries with any Anti-Terrorism Law). “Anti-Terrorism Law” means any law relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act, the laws comprising or implementing the Authority Secrecy Act, and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control, as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced.
SECTION 7.13. Costs and Expenses. To the extent allowed by law, the City agrees to pay all reasonable out-of-pocket costs and expenses (including the fees and expenses of counsel retained or employed by the Authority) incurred by the Authority and any participants of the Authority in connection with the origination, administration, collection and enforcement of this Installment Purchase Agreement, including, without limitation, all costs and expenses incurred in obtaining, perfecting, maintaining, determining the priority of, and releasing any security for the City’s obligations to the Authority, and any stamp, intangible, transfer or like tax incurred in connection with this Installment Purchase Agreement or the recording hereof or thereof.
SECTION 7.14. Indemnification. To the extent allowed by law, the City indemnifies the Authority, the Assignee, its affiliates and its and their respective officers, directors, employees, agents and advisors (each an “Indemnitee”) against, and holds each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including fees and expenses of employed or retained counsel) incurred by any Indemnitee or asserted against any Indemnitee by any third party arising out of or as a result of (a) the execution or delivery of any Financing Document, (b) the acquisition, construction, ownership, operation and all other matters relating to, the acquisition, construction, ownership, operation and all other matters relating to the Project and the System or the grant of agency made by the Authority under Section 3.1 hereunder, the performance or nonperformance by the City of its obligations under any Financing Document or the consummation of the transactions contemplated thereby, including the use of the proceeds therefrom, (c) breach of representations, warranties or covenants of the City under this Installment Purchase Agreement, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, including any such items or losses relating to or arising under environmental laws or pertaining to environmental matters, regardless whether any Indemnitee is a party thereto; provided that such indemnity will not, as to an Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the active negligence or willful misconduct of such Indemnitee. The obligation of the City under this Section
7.14 shall survive termination of this Agreement.
SECTION 7.15. Waiver of Jury Trial. To the extent allowed by law, the City and the Authority each hereby irrevocably waives any right it may have to a trial by jury in connection with any action directly or indirectly arising out of or relating to this Installment Purchase Agreement and any other Financing Document. Each party hereto (i) certifies that no representative, administrative agent or attorney of any other person has represented, expressly or otherwise, that such other person would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Installment Purchase Agreement by, among other things, the mutual waivers and certifications in this section. If the waiver of jury trial contained herein is unenforceable for any reason, then the parties hereto agree that the court shall, and is hereby directed to, make a general reference
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43 pursuant to California Code of Civil Procedure Section 638 to a referee to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision.
SECTION 7.16. Electronic Signatures. The Financing Documents may be executed and delivered by facsimile signature or other electronic or digital means (including, without limitation, Adobe’s Portable Document Format (“PDF”)). Any such signature shall be of the same force and effect as an original signature, it being the express intent of the parties to create a valid and legally enforceable contract between them. The exchange and delivery of the Financing Documents and the related signature pages via facsimile or as an attachment to electronic mail (including in PDF) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes. Notwithstanding the foregoing, at the request of either party, the parties hereto agree to exchange inked original replacement signature pages as soon thereafter as reasonably practicable.
(Signature page follows)
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S-1
IN WITNESS WHEREOF, the Authority has caused this Installment Purchase Agreement to be executed in its corporate name by its duly authorized officer, and the City has caused this Installment Purchase Agreement to be executed in its name by its duly authorized officer, as of the date first above written.
CITY OF SAN JACINTO PUBLIC FINANCING
AUTHORITY
By: ______________________________________
Robert Johnson, Executive Director
ATTEST:
By: _______________________________
Julia Espinoza, Secretary
CITY OF SAN JACINTO
By: ______________________________________
Robert Johnson, City Manager
ATTEST:
By: _____________________________
Julia Espinoza, City Clerk
-Signature PageInstallment Purchase Agreement
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A-1
EXHIBIT A
DESCRIPTION OF THE PROJECT
The Project consists of improvements to the City’s Grand Well, located at 906 Industrial Way. Improvements will be constructed that will equip the Grand Well with a 600-horsepower motor and pump capable of delivering 2,500 gallons per minute. Additionally, the existing treatment plant and clarifier tank adjacent to the well will be demolished and will be replaced with a new clarifier tank that expands the existing clarifier pit and a new treatment plant facility. The Project will also involve installing all necessary electrical components for the well, treatment plant, and existing booster pumps. Further improvements will be made to the existing water reservoir, along with security enhancements to the well site.
The Project is located on Assessor Parcel Number: 435020029 Legal description of site: 3.41 ACRES M/L IN POR LOT 154 MB 008/357 SD SAN JACINTO RANCHO Lot 154 Subdivision Name SAN JACINTO RANCHO Acres 003.41 M/L Lot Type Lot RecMapType Map Book Recorded COCode SD Map Plat B 008 Map Plat P 357 Portion Lot Portion.
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B-1
EXHIBIT B
SCHEDULE OF INSTALLMENT PAYMENTS
Date
Funding/Outstanding
Balance
Principal
Component
Interest
Component
Installment
Payment
Prepayment
Price
Apr-22-25 $9,097,000.00 N/A
Aug-07-25 $8,911,000.00 $186,000.00 $114,632.81 $300,632.81 N/A Feb-07-26 $8,726,000.00 $185,000.00 $192,495.42 $377,495.42 N/A Aug-07-26 $8,574,000.00 $152,000.00 $188,499.05 $340,499.05 N/A Feb-07-27 $8,422,000.00 $152,000.00 $185,215.55 $337,215.55 N/A Aug-07-27 $8,263,000.00 $159,000.00 $181,932.04 $340,932.04 N/A Feb-07-28 $8,104,000.00 $159,000.00 $178,497.33 $337,497.33 N/A Aug-07-28 $7,939,000.00 $165,000.00 $175,062.61 $340,062.61 N/A Feb-07-29 $7,773,000.00 $166,000.00 $171,498.28 $337,498.28 N/A Aug-07-29 $7,601,000.00 $172,000.00 $167,912.35 $339,912.35 N/A Feb-07-30 $7,427,000.00 $174,000.00 $164,196.80 $338,196.80 N/A Aug-07-30 $7,247,000.00 $180,000.00 $160,438.05 $340,438.05 N/A Feb-07-31 $7,066,000.00 $181,000.00 $156,549.69 $337,549.69 N/A Aug-07-31 $6,877,000.00 $189,000.00 $152,639.73 $341,639.73 N/A Feb-07-32 $6,689,000.00 $188,000.00 $148,556.95 $336,556.95 N/A Aug-07-32 $6,493,000.00 $196,000.00 $144,495.78 $340,495.78 N/A Feb-07-33 $6,296,000.00 $197,000.00 $140,261.79 $337,261.79 N/A Aug-07-33 $6,091,000.00 $205,000.00 $136,006.19 $341,006.19 N/A Feb-07-34 $5,886,000.00 $205,000.00 $131,577.78 $336,577.78 N/A Aug-07-34 $5,672,000.00 $214,000.00 $127,149.37 $341,149.37 N/A Feb-07-35 $5,458,000.00 $214,000.00 $122,526.54 $336,526.54 N/A Aug-07-35 $5,235,000.00 $223,000.00 $117,903.72 $340,903.72 $5,235,000.00 Feb-07-36 $5,011,000.00 $224,000.00 $113,086.47 $337,086.47 $5,011,000.00 Aug-07-36 $4,778,000.00 $233,000.00 $108,247.62 $341,247.62 $4,778,000.00 Feb-07-37 $4,545,000.00 $233,000.00 $103,214.36 $336,214.36 $4,545,000.00 Aug-07-37 $4,301,000.00 $244,000.00 $98,181.09 $342,181.09 $4,301,000.00 Feb-07-38 $4,058,000.00 $243,000.00 $92,910.20 $335,910.20 $4,058,000.00 Aug-07-38 $3,804,000.00 $254,000.00 $87,660.92 $341,660.92 $3,804,000.00 Feb-07-39 $3,550,000.00 $254,000.00 $82,174.01 $336,174.01 $3,550,000.00 Aug-07-39 $3,285,000.00 $265,000.00 $76,687.10 $341,687.10 $3,285,000.00 Feb-07-40 $3,020,000.00 $265,000.00 $70,962.57 $335,962.57 $3,020,000.00 Aug-07-40 $2,744,000.00 $276,000.00 $65,238.04 $341,238.04 $2,744,000.00 Feb-07-41 $2,467,000.00 $277,000.00 $59,275.89 $336,275.89 $2,467,000.00 Aug-07-41 $2,178,000.00 $289,000.00 $53,292.13 $342,292.13 $2,178,000.00 Feb-07-42 $1,889,000.00 $289,000.00 $47,049.16 $336,049.16 $1,889,000.00 Aug-07-42 $1,587,000.00 $302,000.00 $40,806.18 $342,806.18 $1,587,000.00 Feb-07-43 $1,286,000.00 $301,000.00 $34,282.37 $335,282.37 $1,286,000.00 Aug-07-43 $972,000.00 $314,000.00 $27,780.17 $341,780.17 $972,000.00 Feb-07-44 $657,000.00 $315,000.00 $20,997.14 $335,997.14 $657,000.00 Aug-07-44 $328,000.00 $329,000.00 $14,192.51 $343,192.51 $328,000.00 Feb-07-45 $0.00 $328,000.00 $7,085.46 $335,085.46
$9,097,000.00 $4,461,171.22 $13,558,171.22
Contract Rate. The Contract Rate is 4.3204% per annum.
Prepayment Option Commencement Date. For purposes of Section 6.1 of the Installment Purchase Agreement, the Prepayment Option Commencement Date is August 7, 2035.
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C-1
EXHIBIT C
FORM OF INVESTOR LETTER
LENDER’S CERTIFICATE
CITY OF SAN JACINTO
INSTALLMENT PURCHASE AGREEMENT
(the “Obligation”)
In connection with that certain Installment Purchase Agreement dated April 1, 2025 (the “Obligation”) entered into by the City of San Jacinto (the “Issuer”) and City of San Jacinto Public Financing Authority (the “Authority”), Banc of America Public Capital Corp, as assignee of the Authority (the “Lender”), the Lender hereby states:
1. The Lender has knowledge and experience in financial and business matters relating to the Obligation and is capable of evaluating the merits and risks of the Obligation and is able to bear the economic risks thereof.
2. The Lender has made such investigation of the financial information provided by the Issuer as the Lender, in the exercise of its business judgment, considers appropriate under the circumstances. In making its decision to acquire the Obligation, the Lender has relied on the accuracy and completeness of information provided by the Issuer. The Lender has not required the Issuer to deliver any offering document in connection with the issuance of the Obligation.
3. The Lender is aware that investment in the Obligation involves various risks, that the Obligation is not a general obligation of the Issuer, and that payment of the Obligation is secured from Net Revenues of the City’s System as described in the Installment Purchase Agreement and related Financing Documents identified therein.
4. Neither the Lender nor any of its affiliates is acting as a fiduciary for the Issuer or in the capacity of broker, dealer, underwriter, or municipal advisor with respect to the Obligation.
Neither the Lender nor any of its affiliates has provided or will provide any financial, legal, tax, accounting or other advice to the Issuer with respect to the Obligation; it being understood that the Issuer has sought and obtained and will obtain such advice (including as it relates to structure, timing, terms, and similar matters) with respect to the Obligation from its own advisors (and not the Lender or any of its affiliates) to the extent that the Issuer desired or desires to obtain such advice.
5. The Lender acknowledges that the Obligation is not being qualified under the Trust Indenture Act of 1939, as amended, and the Obligation is not being registered in reliance upon the exemption from registration under Section 3(a)(2) of the Securities Act of 1933, as amended, and that neither the Issuer nor bond counsel shall have any obligation to effect any such registration or qualification.
6. The Lender is not acting as a broker or other intermediary and is advancing funds for the financing of the Acquisition Amount and acquiring the Obligation as an investment for its
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own account and not with a present view to a resale or other distribution to the public. The Lender understands that the Obligation may not be transferred except in compliance with applicable federal and state laws.
7. The Lender is an “accredited investor” within the meaning of the Securities Act of 1933, as amended, and Regulation D thereunder.
DATED April __, 2025
BANC OF AMERICA PUBLIC CAPITAL CORP[
By:
Name:
Title:
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EXHIBIT D
$9,097,000
CITY OF SAN JACINTO PUBLIC FINANCING AUTHORITY
2025 INSTALLMENT FINANCING
(WATER SYSTEM IMPROVEMENTS)
FINAL ACCEPTANCE CERTIFICATE
Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-031-07-05
Hunt Valley, MD 21031
Attn: Contract Administration
The undersigned hereby states and certifies:
(i) that she is the duly appointed, qualified and acting Finance Director of the City (the “City”) and as such she is authorized to sign a written certificate of the City; (ii) that, pursuant to Section 3.11 of the Installment Purchase Agreement as defined below, the final Disbursement Request has been submitted by the City and the City delivers to the assignee Assignee a this Final Acceptance Certificate as of the date set forth below; (iii) All of the Project has been delivered, installed, is operating in a manner consistent with the manufacturer’s intended use and has been inspected and finally accepted for all purposes by the City and title thereto has transferred to the City and any security interest of each vendor, manufacturer, or supplier therein has been released;
(iv) The City has conducted such inspection and/or testing of the Project as it deems necessary and appropriate in order to determine the Project’s capability and functionality in order to accept such Project and hereby acknowledges that it accepts the Project for all purposes; (v) The City is currently maintaining the insurance coverage required by Section 4.5 of Installment Purchase Agreement;
(vi) The City hereby reaffirms that the representations, warranties and covenants contained in the Installment Purchase Agreement are true and correct as of the date hereof; (vii) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default exists at the date hereof; and
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(viii) No Material Adverse Change has occurred since the date of the execution and delivery of the Installment Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Installment Purchase Agreement, dated as of April 1, 2025, by and between the City of San Jacinto Public Financing Authority, a joint powers authority duly organized and existing under the laws of the State of California, and the City of San Jacinto, a municipal corporation duly organized and existing under the laws of the State of California, as supplemented and amended.
Date: __________
CITY OF SAN JACINTO
_______________________
Finance Director
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EXHIBIT E
$9,097,000
CITY OF SAN JACINTO PUBLIC FINANCING AUTHORITY
2025 INSTALLMENT FINANCING
(WATER SYSTEM IMPROVEMENTS)
NOTICE OF ACKNOWLEDGEMENT OF ASSIGNMENT
[The City of San Jacinto Public Financing Authority][Banc of America Public Capital Corp] (“Assignor”) hereby gives notice that it has assigned and sold to _________________________ (“Assignee”) all of the Assignor’s right, title and interest in, to and under the Installment Purchase Agreement dated as of April 1, 2025 (as supplemented and amended, the “Agreement”), by and between the Assignor and the City of San Jacinto (“City”), together with all exhibits, schedules, addenda and attachments related thereto, and all certifications and other documents delivered in connection therewith, all of the Assignor’s right, title and interest in Installment Payments and other amounts due under the Agreement, all of the Assignor’s right, title and interest in the Project (as defined in the Agreement), and all of the Assignor’s right, title and interest in, to and under the Escrow and Account Control Agreement dated as of April 22, 2025 (the “Escrow Agreement”) by and among the City, the Assignor, [City of San Jacinto Public Financing Authority][Banc of America Public Capital Corp] and Argent Institutional Trust Company, as Escrow Agent, together with the Project Fund and other Collateral (collectively, the “Assigned Property”). Each capitalized term used but not defined herein has the meaning set forth in the Agreement.
1. The City hereby acknowledges the effect of the assignment of the Assigned Property and absolutely and unconditionally agrees to deliver to Assignee all Installment Payments and other amounts coming due under the Agreement in accordance with the terms thereof on and after the date of this Acknowledgment.
2. The City hereby agrees that: (i) Assignee shall have all the rights of Assignee under the Agreement and all related documents, including, but not limited to, the rights to issue or receive all notices and reports, to give all consents or agreements to modifications thereto, to receive title to the Project in accordance with the terms of the Agreement, to declare a default and to exercise all rights and remedies thereunder in connection with the occurrence of an Event of Default; and (ii) the obligations of the City to make Installment Payments are payable from Net Revenues and the obligations of the City to perform and observe the other covenants and agreements contained in the Agreement shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense.
3. The City agrees that, as of the date of this Notice and Acknowledgment of Assignment (this “Acknowledgement”), the following information about the Agreement is true, accurate and complete:
Number of Installment Payments Remaining________________ Amount of Each Installment Payment $_______________
Total Amount of Installment Payments _______________
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Remaining $_______________
Frequency of Installment Payments ________________
Next Installment Payment Due ________________
Funds Remaining in Project Fund $_______________
4. The Agreement remains in full force and effect, has not been amended, no Event of Default (or event which with the passage of time or the giving of notice or both would constitute an Event of Default) has occurred thereunder.
5. Any inquiries of the City related to the Agreement and any requests for disbursements from the Project Fund, if applicable, and all Installment Payments and other amounts coming due pursuant to the Agreement on and after the date of this Acknowledgment should be remitted to Assignee at the following address (or such other address as provided to the City in writing from time to time by Assignee):
[Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-031-07-05
Hunt Valley, MD 21031
Attn: Contract Administration]
[____________________________
_____________________________]
The undersigned officer of the City acknowledges that it has received the Authority’s written notice of an assignment under the Installment Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Installment Purchase Agreement, dated as of April 1, 2025, by and between the City of San Jacinto Public Financing Authority, a joint powers authority duly organized and existing under the laws of the State of California, and the City of San Jacinto, a municipal corporation duly organized and existing under the laws of the State of California.
Date: __________
CITY OF SAN JACINTO
_______________________
Finance Director
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Assignor: [City of San Jacinto Public Financing Authority][Banc of America Public Capital Corp]
By: _________________________________
Name: ___________________________
Title: ___________________________
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2327575
ESCROW AND ACCOUNT CONTROL AGREEMENT
This ESCROW AND ACCOUNT CONTROL AGREEMENT (this “Agreement”), dated as of April 22, 2025, by and among Banc of America Public Capital Corp, a Kansas corporation (together with its successors and assigns, hereinafter referred to as “Assignee”), City of San Jacinto, a municipal corporation existing under the laws of the State of California (hereinafter referred to as “City”), the City of San Jacinto Public Financing Authority, a joint powers authority duly organized and existing under the laws of the State of California (the “Authority”) and Argent Institutional Trust Company, a Florida trust company (hereinafter referred to as “Escrow Agent”).
Reference is made to (a) that certain Installment Purchase Agreement dated as of April 1, 2025 between Authority and City (as supplemented, amended or restated, the “IPA”) relating to the financing the acquisition, design and construction of certain improvements to the City’s water system (the “System”) as identified in Exhibit A attached thereto (the “Project”) and the sale by the Authority and acquisition by the City of the Project in exchange for installment payments; and (b) that certain Assignment Agreement dated as of April 1, 2025 between Authority and Assignee (as supplemented, amended or restated, the “Assignment Agreement”), pursuant to which Authority has assigned to Assignee all of its rights under the IPA including all of its rights in the Project and rights to receive installment payments to be paid by the Authority under and pursuant to the IPA. It is a requirement of the IPA and the Assignment Agreement that the Acquisition Amount in the amount of $9,097,000 be deposited into a segregated escrow account under terms satisfactory to Assignee, for the purpose of fully funding the IPA, and providing a mechanism for the application of such amounts to the acquisition of and payment for the Project and the Costs of Issuance (as defined in the IPA).
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Creation of Escrow Account.
(a) There is hereby created an escrow fund to be known as the “City of San Jacinto 2025 IPA Escrow Account” (the “Escrow Account”) to be held by the Escrow Agent for the purposes stated herein, for the benefit of Assignee and City, to be held, disbursed and returned in accordance with the terms hereof.
(b) City may, from time to time, provide written instructions for Escrow Agent to use any available cash in the Escrow Account to purchase any money market fund or liquid deposit investment vehicle that Escrow Agent from time to time makes available to the parties hereto. Such written instructions shall be provided via delivery to Escrow Agent of a signed and completed Escrow Account Investment Selection Form (such form available from Escrow Agent upon request). All funds invested by Escrow Agent at the direction of City in such short-term investments (as more particularly described in Escrow Agent’s Escrow Account Investment Selection Form) shall be deemed to be part of the Escrow Account and subject to all the terms and conditions of this Agreement. If any cash is received for the Escrow Account after the cut-off time for the designated short-term investment vehicle, the Escrow Agent shall hold such cash uninvested until the next Business Day. “Business Day” means a day other than a Saturday,
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Sunday or legal holiday, on which banking institutions are not closed in Chicago, Illinois, San Jacinto, California or New York, New York. In the absence of written instructions from City (on Escrow Agent’s Escrow Account Investment Selection Form) designating a short-term investment of cash in the Escrow Account, cash in the Escrow Account shall remain uninvested and it shall not be collateralized. Escrow Agent shall have no obligation to pay interest on cash in respect of any period during which it remains uninvested. City shall be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that they comply with federal, state and local laws, regulations and ordinances governing investment of such funds and for providing appropriate notice to the Escrow Agent for the reinvestment of any maturing investment. Accordingly (and, with respect to the Escrow Agent, provided that the Escrow Agent has acted pursuant to the written instruction of the City), none of the Escrow Agent, Authority nor Assignee shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment of all or any portion of the moneys on deposit in the Escrow Account, and City agrees to and does hereby release the Escrow Agent, Authority and Assignee from any such liability, cost, expenses, loss or claim. Interest on the Escrow Account shall become part of the Escrow Account, and gains and losses on the investment of the moneys on deposit in the Escrow Account shall be borne by the City. The Escrow Agent shall have no discretion whatsoever with respect to the management, disposition or investment of the Escrow Account. The Escrow Agent shall not be responsible for any market decline in the value of the Escrow Account and has no obligation to notify Assignee, Authority and City of any such decline or take any action with respect to the Escrow Account, except upon specific written instructions stated herein. For purposes of this Agreement, “Qualified Investments” means any investments which meet the requirements of California Government Code Sections 53600 et seq.
(c) Unless the Escrow Account is earlier terminated in accordance with the provisions of paragraph (d) below, amounts in the Escrow Account shall be disbursed by the Escrow Agent in payment of amounts described in Section 2 hereof upon receipt of written instruction(s) from Assignee, as is more fully described in Section 2 hereof. If the amounts in the Escrow Account are insufficient to pay such amounts, City shall provide any balance of the funds needed to complete the acquisition of the Project. Any moneys remaining in the Escrow Account on or after the earlier of (i) the expiration of the Acquisition Period or (ii) the date on which City executes a Final Acceptance Certificate shall be applied as provided in Section 4 hereof. (d) The Escrow Account shall be terminated at the earliest of (i) the final distribution of amounts in the Escrow Account, (ii) the date on which City executes a Final Acceptance Certificate or (iii) written notice given by Assignee of the occurrence of an Event of Default under the IPA. Notwithstanding the foregoing, this Agreement shall not terminate nor shall the Escrow Account be closed until all funds deposited hereunder have been disbursed. (e) The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the receipt of such moneys, instruments or other documents received by it as the Escrow Agent, and for the disposition of the same in accordance
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herewith. Notwithstanding and without limiting the generality of the foregoing, concurrent with the execution of this Agreement, City and Assignee, respectively, shall deliver to the Escrow Agent an authorized signers form in the form of Exhibit A-1 (City) and Exhibit A-2 (Assignee) attached hereto. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the parties or by a person or persons authorized by the parties. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an authorized representative with the following caveat, to the extent permitted by law, City and Assignee agree to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission given by each, respectively, provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that deliberate forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an authorized person due to Escrow Agent’s good faith determination that such forbearance is in the best interests of the Parties shall not be deemed in and of itself to constitute gross negligence or willful misconduct.
In the event conflicting instructions as to the disposition of all or any portion of the Escrow Account are at any time given by Assignee and City, the Escrow Agent shall abide by the instructions or entitlement orders given by Assignee without consent of the City. (f) Unless the Escrow Agent is guilty of gross negligence or willful misconduct with regard to its duties hereunder, City agrees to and does hereby release and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement; and in connection therewith, does to the extent permitted by law, indemnify the Escrow Agent against any and all expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceeding or resisting any claim. (g) If City and Assignee shall be in disagreement about the interpretation of the IPA, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an appropriate civil action including an interpleader action to resolve the disagreement. The Escrow Agent shall be reimbursed by City for all costs, including reasonable attorneys’ fees, in connection with such civil action, and shall be fully protected in suspending all or part of its activities under this Agreement until a final judgment in such action is received.
(h) The Escrow Agent may consult with counsel of its own choice (which counsel shall have experience and knowledge with respect to escrow agreements similar to this Agreement) and shall have full and complete authorization and protection with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by the gross negligence or willful misconduct of the Escrow Agent or its counsel.
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(i) City shall reimburse the Escrow Agent for all reasonable costs and expenses, including those of the Escrow Agent’s attorneys, agents and employees incurred for non-routine administration of the Escrow Account and the performance of the Escrow Agent’s powers and duties hereunder in connection with any Event of Default under the IPA or in connection with any dispute between Assignee and City concerning the Escrow Account. (j) The Escrow Agent or any successor may at any time resign by giving mailed notice to City and Assignee of its intention to resign and of the proposed date of resignation (the “Effective Date”), which shall be a date not less than 60 days after such notice is delivered to an express carrier, charges prepaid, unless an earlier resignation date and the appointment of a successor shall have been approved by the City and Assignee. After the Effective Date, the Escrow Agent shall be under no further obligation except to hold the Escrow Account in accordance with the terms of this Agreement, pending receipt of written instructions from Assignee regarding further disposition of the Escrow Account.
(k) The Escrow Agent shall have no responsibilities, obligations or duties other than those expressly set forth in this Agreement and no implied duties, responsibilities or obligations shall be read into this Agreement.
Section 2. Acquisition and Installation of Project.
(a) Acquisition Contracts. City will arrange for, supervise and provide for, or cause to be supervised and provided for, the acquisition of the Project, with moneys available in the Escrow Account. City represents the estimated costs of the Project are within the funds estimated to be available therefor, and Authority and Assignee make no warranty or representation with respect thereto. Authority and Assignee shall have no liability under any of the acquisition or construction contracts. City shall obtain all necessary permits and approvals, if any, for the acquisition, equipping and installation of the Project, and the operation and maintenance thereof.
Escrow Agent shall have no duty to monitor or enforce City’s compliance with the foregoing covenant.
(b) Authorized Escrow Account Disbursements. It is agreed as between City and Assignee that disbursements from the Escrow Account shall be made for the purpose of paying (including the reimbursement to City for advances from its own funds to accomplish the purposes hereinafter described) the cost of acquiring the Project and the Costs of Issuance. (c) Requisition Procedure. No disbursement from the Escrow Account shall be made unless and until Assignee has approved in writing such requisition. Prior to disbursement from the Escrow Account there shall be filed with the Escrow Agent a requisition for such payment in the form of Disbursement Request attached hereto as Schedule 1, stating each amount to be paid and the name of the person, firm or corporation to whom payment thereof is due. All disbursements shall be made by wire transfer. The Escrow Agent is authorized to obtain and rely on confirmation of such Disbursement Request and payment instructions by telephone call-back to the person or persons designated for verifying such requests on Exhibit A-2 (such person verifying the request shall be different than the person initiating the request). The Assignee and City hereby confirm that any call-back performed by Escrow Agent to verify a disbursement instruction pursuant to a Disbursement Request submitted pursuant to this Section 2(c) before
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release, shall be made to Assignee only and Escrow Agent shall have no obligation to call-back City.
Each such Disbursement Request shall be signed by an authorized representative of City (an “Authorized Representative”) and by Assignee, and shall be subject to the following conditions, which Escrow Agent shall conclusively presume have been satisfied at such time as a requisition executed by City and Assignee is delivered to it:
1. Delivery to Assignee of an executed Disbursement Request in the form attached hereto as Schedule 1;
2. Delivery to Assignee of copies of invoices (and proofs of payment of such invoices, if City seeks reimbursement) and bills of sale therefor or other evidence of title Project transfer, and release by Vendor of any security interest, therefor as required by the IPA and any additional documentation reasonably requested by Assignee; and
3. The disbursement shall occur during the Acquisition Period.
City and Assignee agree that their execution of the form attached hereto as Schedule 1 and delivery of the executed form to Escrow Agent confirms that all of the requirements and conditions with respect to disbursements set forth in this Section 2 have been satisfied.
Section 3. Deposit to Escrow Account. Upon satisfaction of the conditions precedent specified in the IPA and the Assignment Agreement, Assignee will cause the Acquisition Amount to be deposited in the Escrow Account. City agrees to pay any costs with respect to the Project in excess of amounts available therefor in the Escrow Account.
Section 4. Excess Proceeds in Escrow Account. Upon receipt of written instructions from Assignee including a representation that one of the following conditions has been satisfied (upon which representation Escrow Agent shall conclusively rely), any funds remaining in the Escrow Account on or after the earliest of (a) the expiration of the Acquisition Period, (b) the date on which City executes a Final Acceptance Certificate, or (c) upon a termination of the Escrow Account as provided in this Agreement, shall be distributed by the Escrow Agent to the Assignee in order for the Assignee to apply such funds to amounts owed by City under the IPA in accordance with Section 6.3(a) of the IPA.
Section 5. Security Interest. The Escrow Agent and City acknowledge and agree that the Escrow Account and all proceeds thereof are being held by Escrow Agent for disbursement or return as set forth herein. City hereby grants to Assignee a first priority perfected security interest in the Escrow Account, and all proceeds thereof, and all investments made with any amounts in the Escrow Account. If the Escrow Account, or any part thereof, is converted to investments as set forth in this Agreement, such investments shall be made in the name of Escrow Agent and the Escrow Agent hereby agrees to hold such investments as bailee for Assignee so that Assignee is deemed to have possession of such investments for the purpose of perfecting its security interest.
Section 6. Control of Escrow Account. In order to perfect Assignee’s security interest by means of control in (i) the Escrow Account established hereunder, (ii) all securities
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entitlements, investment property and other financial assets now or hereafter credited to the Escrow Account, (iii) all of City’s rights in respect of the Escrow Account, such securities entitlements, investment property and other financial assets, and (iv) all products, proceeds and revenues of and from any of the foregoing personal property (collectively, the “Collateral”), Assignee, City, Authority and Escrow Agent further agree as follows:
(a) All terms used in this Section 6 which are defined in the California Commercial Code (the “Commercial Code”) but are not otherwise defined herein shall have the meanings assigned to such terms in the Commercial Code, as in effect on the date of this Agreement.
(b) Escrow Agent will comply with all entitlement orders originated by Assignee with respect to the Collateral, or any portion of the Collateral, without further consent by City.
(c) Provided that account investments shall be held in the name of the Escrow Agent, Escrow Agent hereby represents and warrants (i) that the records of Escrow Agent show that City is the sole owner of the Collateral, (ii) that Escrow Agent has not been served with any notice of levy or received any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other than Assignee’s claim pursuant to this Agreement, and (iii) that Escrow Agent is not presently obligated to accept any entitlement order from any person with respect to the Collateral, except for entitlement orders that Escrow Agent is obligated to accept from Assignee under this Agreement and entitlement orders that Escrow Agent, subject to the provisions of paragraph (e) below, is obligated to accept from City. (d) Without the prior written consent of Assignee, Escrow Agent will not enter into any agreement by which Escrow Agent agrees to comply with any entitlement order of any person other than Assignee or, subject to the provisions of paragraph (e) below, City, with respect to any portion or all of the Collateral. Escrow Agent shall promptly notify Assignee if any person requests Escrow Agent to enter into any such agreement or otherwise asserts or seeks to assert a Lien, encumbrance or adverse claim against any portion or all of the Collateral. (e) Except as otherwise provided in this paragraph (e) and subject to Section 1(b) hereof, City may effect sales, trades, transfers and exchanges of Collateral within the Escrow Account, but will not, without the prior written consent of Assignee, withdraw any Collateral from the Escrow Account. Escrow Agent acknowledges that Assignee reserves the right, by delivery of written notice to Escrow Agent, to prohibit City from effecting any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales, trades, transfers or exchanges of any Collateral held in the Escrow Account. Further, Escrow Agent hereby agrees to comply with any and all written instructions delivered by Assignee to Escrow Agent (once it has had a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by Assignee, the amount of any obligations of City to Assignee, the validity of any of Assignee’s claims against or agreements with City, the existence of any defaults under such agreements, or any other matter. (f) City hereby irrevocably authorizes Escrow Agent to comply with all instructions and entitlement orders delivered by Assignee to Escrow Agent.
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(g) Escrow Agent will not attempt to assert control, and does not claim and will not accept any security or other interest in, any part of the Collateral, and Escrow Agent will not exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever. (h) Escrow Agent and City hereby agree that any property held in the Escrow Account shall be treated as a financial asset under such section of the Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code, notwithstanding any contrary provision of any other agreement to which Escrow Agent may be a party. (i) Escrow Agent is hereby authorized and instructed, and hereby agrees, to send to Assignee at its address set forth in Section 8 below, concurrently with the sending thereof to City, duplicate copies of any and all monthly Escrow Account statements or reports issued or sent to City with respect to the Escrow Account.
Section 7. Information Required Under USA PATRIOT ACT. The parties acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the Escrow Agent such information as it may request, from time to time, in order for the Escrow Agent to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
Section 8. Miscellaneous. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the IPA. This Agreement may not be amended except in writing signed by all parties hereto. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument and each shall have the force and effect of an original and all of which together constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be made in writing and shall be deemed to have been duly given when personally delivered or when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each party at its address below.
Notices and other communications hereunder may be delivered or furnished by electronic mail provided that any formal notice shall be attached to an email message in PDF format and provided further that any notice or other communication sent to an e-mail address shall be deemed received upon and only upon the sender’s receipt of affirmative acknowledgement or receipt from the intended recipient. For purposes hereof no acknowledgement of receipt generated on an automated basis shall be deemed sufficient for any purpose hereunder or admissible as evidence of receipt. It is understood and agreed that for no purpose shall notice to Argent Institutional Trust Company in its capacity hereunder constitute notice to Banc of America Public Capital Corp in its capacity hereunder.
4.B.1.d
Packet Pg. 327 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) -8-
If to Assignee: Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5-032-07-05
Hunt Valley, MD 21031
Attn: Contract Administration
If to City: City of San Jacinto
595 S. San Jacinto Avenue
San Jacinto, CA 92583
Telephone: (951) 487-7330
Attn: Finance Director
If to Escrow Agent: Argent Institutional Trust Company
1715 N. Westshore Boulevard, Suite 750
Tampa, FL 33607
Attn: Alice Wolan
Telephone: (312) 405-5393
E-mail: [email protected]
Section 9. City and Assignee understand and agree that they are required to provide the Escrow Agent with a properly completed and signed Tax Certification (as defined below) and that the Escrow Agent may not perform its duties hereunder without having been provided with such Tax Certification. As used herein “Tax Certification” shall mean an IRS form W-9 or W-8 as described above. The Escrow Agent will comply with any U.S. tax withholding or backup withholding and reporting requirements that are required by law. With respect to earnings allocable to a foreign person, the Escrow Agent will withhold U.S. tax as required by law and report such earnings and taxes withheld, if any, for the benefit of such foreign person on IRS Form 1042-S (or any other required form), unless such earnings and withheld taxes are exempt from reporting under Treasury Regulation Section 1.1461-1(c)(2)(ii) or under other applicable law.
With respect to earnings allocable to a United States person, the Escrow Agent will report such income, if required, on IRS Form 1099 or any other form required by law. The IRS Forms 1099 and/or 1042-S shall show the Escrow Agent as payor and City as payee. Escrow Agent shall recognize City as the designated party for regulatory reporting purposes.
City and Assignee agree that they are not relieved of their respective obligations, if any, to prepare and file information reports under Code Section 6041, and the Treasury regulations thereunder, with respect to amounts of imputed interest income, as determined pursuant to Code Sections 483 or 1272. The Escrow Agent shall not be responsible for determining or reporting such imputed interest.
Section 10. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the parties hereto consent to jurisdiction in the State of California and venue in any state or federal court located in the State of California, and each party expressly waives any objections that it may have to the venue of such courts. THE PARTIES
HERETO EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION
4.B.1.d
Packet Pg. 328 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) -9-
BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT. If the waiver of jury trial contained herein is unenforceable for any reason, then the parties hereto agree that the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision.
Section 11. Any bank or corporation into which the Escrow Agent may be merged or with which it may be consolidated, or any bank or corporation to whom the Escrow Agent may transfer a substantial amount of its escrow business, shall be the successor to the Escrow Agent without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding. Any bank or corporation into which the Assignee may be merged or with which it may be consolidated, or any bank or corporation to whom the Assignee may transfer a substantial amount of its business, shall be the successor to the Assignee without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding.
Section 12. This Agreement may be amended, modified, and/or supplemented only by an instrument in writing executed by all parties hereto.
Section 13. No party hereto shall assign its rights hereunder until its assignee has submitted to the Escrow Agent (i) Patriot Act disclosure materials and the Escrow Agent has determined that on the basis of such materials it may accept such assignee as a customer and (ii) assignee has delivered an IRS Form W-8 or W-9, as appropriate, to the Escrow Agent which the Escrow Agent has determined to have been properly signed and completed.
Section 14. Escrow Agent will treat information related to this Agreement as confidential but, unless prohibited by law, City and Assignee authorize the transfer or disclosure of any information relating to this Agreement to and between the subsidiaries, officers, affiliates and other representatives and advisors of Escrow Agent and third parties selected by any of them, wherever situated, for confidential use in the ordinary course of business, and further acknowledge that Escrow Agent and any such subsidiary, officer, affiliate or third party may transfer or disclose any such information as required by any law, court, regulator or legal process.
Assignee will treat information related to this Agreement as confidential but, unless prohibited by law, Escrow Agent and City authorize the transfer or disclosure of any information relating to this Agreement to and between the subsidiaries, officers, affiliates, other representatives and advisors of Assignee and debt and equity sources and third parties selected by any of them, and to their prospective assignees wherever situated, for confidential use in the ordinary course of business, and further acknowledge that Assignee and any such subsidiary, officer, affiliate, debt and equity source or third party or prospective assignee may transfer or disclose any such information as required by any law, court, regulator or legal process. For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any person.
City and Authority will treat the terms of this Agreement as confidential except on a “need to know” basis to persons within or outside City’s or Authority’s organization (including affiliates
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Packet Pg. 329 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) -10-
of such party), such as attorneys, accountants, bankers, financial advisors, auditors and other consultants of such party and its affiliates, except as required by any law, court, regulator or legal process and except pursuant to the express prior written consent of the other parties, which consent shall not be unreasonably withheld.
Section 15. This Agreement may be executed and delivered by facsimile signature or other electronic or digital means (including, without limitation, Adobe’s Portable Document Format (“PDF”)). Any such signature shall be of the same force and effect as an original signature, it being the express intent of the parties to create a valid and legally enforceable contract between them. The exchange and delivery of this Agreement and the related signature pages via facsimile or as an attachment to electronic mail (including in PDF) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes.
Notwithstanding the foregoing, at the request of either party, the parties hereto agree to exchange inked original replacement signature pages as soon thereafter as reasonably practicable. [Remainder of page intentionally left blank; signature page follows]
4.B.1.d
Packet Pg. 330 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) [Signature Page to Escrow and Account Control Agreement] IN WITNESS WHEREOF, the parties have executed this Escrow and Account Control Agreement as of the date first above written.
BANC OF AMERICA PUBLIC CAPITAL CORP
as Assignee
CITY OF SAN JACINTO
as City
By: ________________________________
Name: ___________________________
Title: ____________________________
By: ________________________________
Name: Robert Johnson
Title: City Manager
ARGENT INSTITUTIONAL TRUST COMPANY
as Escrow Agent
CITY OF SAN JACINTO CITY OF SAN JACINTO
PUBLIC FINANCING AUTHORITY
as Authority
By: ________________________________
Name: ___________________________
Title: ____________________________
By: ________________________________
Name: Robert Johnson
Title: Executive Director
4.B.1.d
Packet Pg. 331 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) Schedule 1-1
SCHEDULE 1
TO THE ESCROW AND ACCOUNT CONTROL AGREEMENT
FORM OF DISBURSEMENT REQUEST
Re: Installment Purchase Agreement dated as of April 1, 2025 between City of San Jacinto and Banc of America Public Capital Corp, as assignee of the City of San Jacinto Public Financing Authority (the “IPA”) (Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the IPA.)
In accordance with the terms of the Escrow and Account Control Agreement, dated as of April 22, 2025 (the “Escrow and Account Control Agreement”) by and among Banc of America Public Capital Corp (“Assignee”), the City of San Jacinto (“City”), the City of San Jacinto Public Financing Authority (the “Authority”) and Argent Institutional Trust Company, as escrow agent (the “Escrow Agent”), the undersigned hereby requests the Escrow Agent pay the following persons the following amounts from the Escrow Account created under the Escrow and Account Control Agreement for the following purposes:
Disbursement Amounts:
Payee’s Name and Address (if
disbursement via wire, must include
wire transfer instructions)
Invoice Number Dollar Amount Purpose
<Payee’s Name>
<Payee Address 1>
<Payee Address 2>
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address and Payee Bank
information is required.>
<invoice list OR “see
attached” with a
spreadsheet>
< invoice amount> <general description of
equipment; ex “police cruiser”>
<Payee’s Name>
<Payee Address 1>
<Payee Address 2>
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address and Payee Bank
information is required.>
<invoice list OR “see
attached” with a
spreadsheet>
< invoice amount> <general description of
equipment; ex “police cruiser”>
4.B.1.d
Packet Pg. 332 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) Schedule 1-2
City hereby represents, covenants and warrants for the benefit of Assignee on the date hereof as follows:
(i) Each obligation specified in the table herein titled as “Disbursement Amounts” (a) has been incurred by City in the stated amount, (b) the same is a proper charge against the Escrow Account for costs relating to the Project identified above and has not been paid (or has been paid by City and City requests reimbursement thereof), and (c) has not been paid (or has been paid by City and City requests reimbursement thereof), and the Project relating to such obligation has been delivered, installed and accepted by City. [For COI Disbursement only: Each obligation specified in the table herein titled as “Disbursement Amounts” (a) has been incurred by City in the stated amount, and (b) the same is a proper charge for costs of delivery of the IPA identified above and has not been paid (or has been paid by City and City requests reimbursement thereof, in which event City further certifies that the requested reimbursement is not with respect to any amount previously paid).] (ii) For each item of Project relating to an obligation specified in the table herein titled as “Disbursement Amounts” (a) City has conducted such inspection and testing of the Project as it deems appropriate in order to unconditionally accept such Project, and (b) such Project has been delivered, installed, and unconditionally accepted for all purposes by City and title thereto has transferred to City and any security interest of Vendor therein has been released. Attached hereto is a copy of the original invoice, and certification from Vendor as to title transfer and release by Vendor of any security interest with respect to such obligation. (iii) The undersigned, as Authorized Representative, has no notice of any vendor’s, mechanic’s or other Liens or rights to Liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made. (iv) This requisition contains no item representing payment on account, or any retained percentages which City is, at the date hereof, entitled to retain (except to the extent such amounts represent a reimbursement to City).
(v) The Project is insured in accordance with the IPA.
(vi) No Event of Default, and no event which with notice or lapse of time, or both, would become an Event of Default, under the IPA has occurred and is continuing at the date hereof. (vii) The disbursement shall occur during the Acquisition Period. (viii) The representations, warranties and covenants of City set forth in the IPA are true and correct as of the date hereof.
(ix) No Material Adverse Change has occurred since the date of the execution and delivery of the IPA.
(x) The information in this Disbursement Request regarding each Payee, including their respective name, address and wiring instructions (collectively, the “Payee Information”), is true and correct, such Payee Information has been verified and confirmed by City and the Assignee can rely on City’s verification and confirmation of the accuracy of such Payee Information. City
4.B.1.d
Packet Pg. 333 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) Schedule 1-3
hereby acknowledges and agrees that any call-back performed by Assignee to verify the disbursement instructions pursuant to this Disbursement Request shall be made to City only and Assignee shall have no obligation to call-back any Payee listed above. [Remainder of page intentionally left blank]
4.B.1.d
Packet Pg. 334 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) [Signature Page to Disbursement Request]
Dated: ________________
CITY OF SAN JACINTO
By:____________________________________
Name: ______________________________
Title: _______________________________
Disbursement of funds from the Escrow
Account in accordance with the foregoing
Disbursement Request hereby is authorized
BANC OF AMERICA PUBLIC CAPITAL CORP
as Assignee under the IPA
By:
Name:
Title:
4.B.1.d
Packet Pg. 335 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) [AN “EXHIBIT A-1” MUST BE COMPLETED AND EXECUTED AT TIME OF EXECUTION OF THE AGREEMENT]
EXHIBIT A-1
FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, a duly elected or appointed and acting Clerk of the City of San Jacinto (“City”) certifies as follows:
A. The following listed persons are duly elected or appointed and acting officials of City (the “Officials”) in the capacity set forth opposite their respective names below and the facsimile signatures below are true and correct as of the date hereof; and B. The Officials are duly authorized, on behalf of City, to negotiate, execute, in writing or electronically, and deliver the Installment Purchase Agreement dated as of April 1 2025 by and between City and the City of San Jacinto Public Financing Authority (the “Authority”), the Escrow and Account Control Agreement dated as of April 22, 2025 by and among Banc of America Public Capital Corp (“Assignee”), City, Authority and Argent Institutional Trust Company as Escrow Agent, all documents related thereto and delivered in connection therewith, and any future modification(s) or amendments thereof (collectively, the “Operative Agreements”), and the Operative Agreements each are the binding and authorized agreements of City, enforceable in all respects in accordance with their respective terms.
NAME OF OFFICIAL TITLE SIGNATURE
Robert Johnson City Manager ________________________
Thomas Prill Deputy City Manager ________________________ Erika Gomez Finance Director ________________________
Dated: April 22, 2025
By:____________________________________
Name: Julia Espinoza
Title: City Clerk
(The signer of this Certificate cannot be listed above as authorized to execute the Operative Agreements.)
4.B.1.d
Packet Pg. 336 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) [AN “EXHIBIT A-2” MUST BE COMPLETED AND EXECUTED AT TIME OF EXECUTION OF THE AGREEMENT]
EXHIBIT A-2
ESCROW AND ACCOUNT CONTROL AGREEMENT DATED AS OF APRIL 22, 2025 BY AND AMONG BANC
OF AMERICA PUBLIC CAPITAL CORP, AS ASSIGNEE, CITY OF SAN JACINTO, AS CITY, THE CITY OF
SAN JACINTO PUBLIC FINANCING AUTHORITY AND ARGENT INSTITUTIONAL TRUST COMPANY, AS
ESCROW AGENT
CERTIFICATE OF AUTHORIZED REPRESENTATIVES – [ASSIGNEE]
Name: Candy Tam Name: Nancy Nusenko
Title: Authorized Agent Title: Authorized Agent
Phone: 415-765-7492 Phone: 443-541-3646
Facsimile: 415-633-0183 Facsimile: 443-541-3057
E-mail: [email protected] E-mail: [email protected] Signature: Signature:
Fund Transfer / Disbursement Authority Level: Fund Transfer / Disbursement Authority Level:
Initiate Initiate
Verify transactions initiated by others Verify transactions initiated by others Name: Nancy K. Hepner Name: Arlene Sobieck
Title: Authorized Agent Title: Authorized Agent
Phone: 443-541-3645 Phone: 443-541-3643
Facsimile: 804-553-2407 Facsimile: 443-541-3057
E-mail: [email protected] E-mail: [email protected] Signature: Signature:
Fund Transfer / Disbursement Authority Level: Fund Transfer / Disbursement Authority Level:
Initiate Initiate
Verify transactions initiated by others Verify transactions initiated by others The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the person or persons identified above including without limitation, to initiate and verify funds transfers as indicated.
BANC OF AMERICA PUBLIC CAPITAL CORP
By:
Name:
Title:
Date: April 22, 2025
4.B.1.d
Packet Pg. 337 Attachment: Escrow Agreement (Approval of Financing for Certain Water System Improvements) April 15, 2025
TO: City Council
REQUESTED BY: Mathew Osborn, Superintendent
APPROVED BY: Robert A. Johnson, City Manager
SUBJECT: Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant
RECOMMENDATION:
Staff recommends that the City Council:
. DETERMINE the proposed project is not subject to environmental review under the California Environmental Quality Act (“CEQA”) pursuant to State CEQA Guidelines (Cal. Code Regs., § 15000 et seq.) Sections 15061(b)(2) in that the proposed project is categorically exempt from environmental review pursuant to CEQA Guidelines Sections 15301, 15302, 15303, 15304, 15332; and Section 15061 (b)(3) - Common Sense Exemption in that it can be seen with certainty that there is no possibility that the project may have a significant effect on the environment;
2. ADOPT the plans, specifications, and detailed working drawings for the construction of the potable water treatment plant and the equipping of the Well at the Grand Well site;
3. ACCEPT the proposal by Pacific Hydrotech Corporation for site improvements, construction of the potable water treatment plant, and equipping of the Well at the Grand Well site;
4. AWARD a contract to Pacific Hydrotech Corporation in the amount of $8,091,700 with an additional 5% contingency for a total project cost of $8,496,285; and
5. REJECT all other bids.
DISCUSSION:
In 2021, the Federal Government passed the American Rescue Plan Act of 2021 (ARPA) and the Infrastructure Investment and Jobs Act of 2021, which provided significant funding to the City to address infrastructure needs. In fact, without this funding source, the City would not be able to improve its outdated and deteriorating water conveyance system components.
One of the projects approved by the City Council for funding was the drilling and equipping of the new Grand Well, and the construction of the Grand Well Treatment Plant. The first phase of the project, the drilling of the well, was completed in 2023. However, due to rising costs across the country caused by the COVID-19 pandemic, all remaining ARPA funding had to be
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reallocated in 2024 to complete the construction of the ARPA-funded Bath Treatment Plant and site improvements.
Although ARPA funds have been exhausted on other essential infrastructure projects, the construction of the Grand Well and Grand Treatment Plant remain critical to the functionality of the City’s water system. The new Grand Well has already been drilled, and the proposed contract will enable the City to fully develop the necessary water production and distribution capacity for its district.
The Well and treatment plant will replace aging infrastructure that has exceeded its lifespan while incorporating elements of the existing system to optimize resources. Keeping the Well and treatment plant at the planned location addresses the challenge of centralized water production.
Currently, all three of the City’s active wells are located on the east side of town, resulting in increased costs to pump water across the City to the Grand Well site reservoir and booster pumps.
As the City continues to experience residential and commercial growth, completing this facility is essential to ensuring future water supply reliability, particularly during extreme heat and/or emergency situations like the recent fires in Los Angeles. The new Well will have a production capacity of up to 2,500 gallons per minute, allowing the City to maintain full reservoirs and prevent significant drops in water pressure and supply.
Beyond increasing supply and reliability, the construction of the Grand Treatment Plant will significantly enhance the City’s water quality. The new facility will be equipped to remove iron and manganese from the water supply, eliminating any measurable amounts of these hard minerals. This advanced treatment process will improve the color, odor, and taste of the water, providing residents and businesses with a cleaner product that looks, smells, and tastes better. By addressing these long-standing water quality concerns, the City will instill greater confidence in its water system and ensure compliance with state and federal water quality standards. Reliable access to high-quality drinking water is fundamental to public health, and this investment will enhance the overall well-being of the community while supporting future economic growth.
Further, the State conducts a sanitary survey of each water department every three years. In the last three consecutive surveys, the State has identified San Jacinto’s water pumping capacity as deficient for fire protection. This new Well complex will bring the City into compliance while also reducing strain on existing wells by providing much-needed operational flexibility.
On November 7, 2023, the City Council awarded a contract to Civiltec Engineering for the design of the Grand Well Treatment Plant and Well improvements. Subsequently, on September 23, 2024, the City Council awarded a contract to California Environmental Controls to supply the treatment plant equipment, ensuring standardization with the Bath Treatment Plant. The specifications and design for the Grand Well and Treatment Plant were completed in December
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2024. Copies of the plans, specifications, and detailed working drawings can be found on the City’s PlanetBid website at https://vendors.planetbids.com/portal/39490/bo/bo-detail/126031#.
The City is subject to the California Uniform Public Construction Cost Accounting Act and must adhere to the bidding procedures outlined in the Cost Accounting Policies and Procedures Manual. These procedures require that any public works construction project exceeding $220,000 undergo a formal bidding process and be awarded to the lowest responsible bidder.
Additionally, the project must be advertised in local trade journals, as designated by the Commission, at least 14 calendar days before the bid opening.
On February 3, 2025, the City issued a request for proposal utilizing the City’s PlanetBids platform, soliciting proposals for the construction of the Grand Well Treatment Plant and the equipping of the Grand Well. On February 4, 2025, the project was posted in both trade journals required by the California Uniform Construction Cost Accounting Commission—Associated General Contractors of America, San Diego Chapter, Inc., and BidAmerica. Additionally, as required by the California Uniform Construction Cost Accounting Commission, the project was posted in the local newspaper, The Press Enterprise, on February 7, 2025.
A mandatory job walk was held on February 13, 2025, with 19 contractors in attendance. Bids were due on March 11, 2025, and the city received six proposals, listed below:
• Pacific Hydrotech ………………….……..$8,091,700
• Caliagua …………………………………. $8,463,700
• HPS Mechanical ……………………….... $8,975,000
• SCW Contracting Corp ………………..…$9,288,009
• Canyon Springs Enterprises …………….. $9,724,000
• Innovative Construction Solution ….…….$9,999,000
All six bidders were responsible and included all necessary documentation in the each proposal.
After a thorough review of the submitted proposals, staff confirmed that Pacific Hydrotec Corporation was the lowest responsive bidder for site improvements, construction of the potable water treatment plant, and Well equipping at the Grand Well site.
Pacific Hydrotech submitted a proposal for $8,091,700. To account for unforeseen conditions and ensure successful project completion, staff also recommend including a 5% contingency, bringing the total authorized amount to $8,496,285.
Currently, Pacific Hydrotech is constructing the Bath Treatment Plant in San Jacinto and working on multiple projects for neighboring water agencies in the valley. Pacific Hydrotech is a local company based in the City of Perris. The City of San Jacinto has a strong working relationship with Pacific Hydrotech, and staff is confident the project will continue that successful partnership.
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Approval of the contract is a critical step in addressing the community’s concerns regarding water quality and ensuring long-term reliability of the City’s water supply.
CALIFORNIA ENVIRONMENTAL QUALITY ACT:
The proposed project is exempt from environmental review under the California Environmental Quality Act (CEQA) in accordance with the California Code of Regulations, pursuant to State CEQA Guidelines (Cal. Code Regs., § 15000 et seq.). It qualifies for exemption under Section 15061(b)(2) as it falls within several categorical exemptions, including Section 15301 – Existing Facilities, Section 15302 – Replacement or Reconstruction, Section 15303 – New Construction or Conversion of Small Structures, Section 15304 – Minor Alterations to Land, and Section 15332 – In-Fill Development Projects. Additionally, it qualifies for exemption under Section 15061(b)(3) – Common Sense Exemption, as it can be determined with certainty that the project will not have a significant impact on the environment.
The Grand Well and Treatment Plant are intended to replace the aging treatment plant and a recently abandoned well, both located on the same parcel as the existing facilities. The new treatment plant will be situated approximately 100 feet west of an existing two-million-gallon reservoir on a site that has been previously and continuously disturbed. The site does not provide habitat for rare or endangered species. While construction activities will result in short-term noise disruptions, these impacts will be temporary and minimal. Furthermore, there are no sensitive receptors on or near the project site.
FISCAL IMPACT:
Approval of this item will not impact the City’s General Fund. The project will be funded through an installment sale agreement between the City and the City of San Jacinto Public Financing Authority (Authority), whereby the City will acquire the project from the Authority in exchange for periodic installment payments. Payments will be due semiannually, averaging $679,000/year for 20 years. The City’s liability is limited solely to net revenues of the water system. A rigorous assessment of the water system’s ability to repay has been performed internally, by the City’s municipal financial advisor, and by the lender, and in all cases, it was determined that sufficient net revenues currently exist to satisfy future obligations. Approval of this item does not impact water rates currently in effect. In other words, water bills will not increase as a result of approval of this action.
ATTACHMENTS:
Grand Well & Treatment Plant RFP
Pacific Hydrotech Corporation Proposal
SCW Contracting Solutions Proposal
Canyon Springs Enterprise Proposal
HPS Mechanical Inc. Proposal
Innovative Construction Solutions Proposal
Caliagua Inc. Proposal
Notice of Exemption
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(22-010)
CITY OF SAN JACINTO
CONTRACT DOCUMENTS
AND SPECIFICATIONS
FOR
REQUEST FOR PROPOSALS FOR THE CONSTRUCTION OF THE NEW
GRAND TREATMENT PLANT FACILITY AND EQUIPPING OF THE NEW GRAND WELL (PROJECT 22-010)
JANUARY 2025
PREPARED BY:
CITY OF SAN JACINTO PUBLIC UTILITIES
BID OPENING – March 11, 2025, 2:00 PM
Planet Bids Website
Expected Contract Award: March 18, 2025
Anticipated Start of Construction: April 7, 2025
4.B.2.1
Packet Pg. 342 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment (22-010)
CITY OF SAN JACINTO
CONTRACT DOCUMENTS AND
SPECIFICATIONS
FOR
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND EQUIPPING OF THE NEW GRAND WELL (PROJECT 22-010)
ENGINEER OF RECORD: __________________ DATE:
(Stamp of Engineer of Record):
Shem Hawes, P.E.
Civiltec Engineering
4.B.2.1
Packet Pg. 343 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment (22-010)
Project Information Sheet
Construction of The New Grand Treatment Plant Facility and Equipping of The New Grand Well
Bid Opening Date: March 11, 2025 @ 2:00 p.m.
Expected Bid Award Date: March 17, 2025
Anticipated Start Date: April 7, 2025
Construction Time: 400 Working Days
Liquidated Damages: $1,000 per calendar day
Project Description: Furnishing all labor, equipment, materials, and forces necessary for the “Construction of The New Grand Treatment Plant Facility and Equipping of the New Grand Well”, according to provided plans and specifications.
Engineer’s Estimate is $6,000,000.
For Technical Inquiries: Please post all questions to the City of San Jacinto’s vendor portal
on the PlanetBids website at
https://vendors.planetbids.com/portal/39490/portal-home Note:See specifications for details regarding the above information.
4.B.2.1
Packet Pg. 344 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment (22-010)
REQUEST FOR PROPOSALS FOR THE CONSTRUCTION OF THE NEW
GRAND TREATMENT PLANT FACILITY AND EQUIPPING OF THE
NEW GRAND WELL
TABLE OF CONTENTS
NOTICE INVITING BIDS…………………………………………………………………………………..A-1 – A-3 INSTRUCTIONS TO BIDDERS…………………………………………………………………………..B-1 – B-7 PROPOSAL……………………………………………………………………………………………………..C-1 – C-17 CONTRACT AGREEMENT………………………………………………………………………………….D-1 – D-15 GENERAL SPECIFICATIONS………………………………………………………………………………E-1 – E-6 GENERAL PROVISIONS ...................................................................................... GP-1 – GP-27
SPECIAL PROVISIONS
PART 1 – STANDARD PROVISIONS………………………………………………………..SP-1 – SP-19 PART 2 – STANDARD CONSTRUCTION DETAILS ...................................... SP-20 – SP-22 PLANS, DRAWINGS & SUBMITTALS ................................................................... APPENDIX “A” CONTRACT FORMS .......................................................................................... APPENDIX “B” TRAFFIC REQUIREMENTS ................................................................................. APPENDIX “C” *HYPERLINKED
4.B.2.1
Packet Pg. 345 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment A-1
(22-010)
NOTICE INVITING BIDS
ENGINEER’S ESTIMATE BASE BID: $6,000,000
QUESTIONS REGARDING THE PROJECT MUST BE POSTED ON PLANET BIDS FOR RESPONSE RECEIPT OF PROPOSALS. Online bids via Planet Bid will receive bids until March 11, 2025, 12:00 PM to perform all work required under the City of San Jacinto’s (“City”) Specifications entitled:
CONTRACT DOCUMENTS AND SPECIFICATIONS
FOR
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND EQUIPPING OF THE NEW
GRAND WELL
ADDENDA. Addenda, if any, will NOT be mailed out to any of the plan holders and will ONLY be posted on Planet Bids. It shall be the Bidder’s responsibility to check the website for any addenda.
OPENING OF PROPOSALS. The bids received will be evaluated and the results will thereafter be referred to the City Council for consideration at a subsequent meeting.
PRE-BID MEETING. A mandatory pre-bid meeting and site walk will be held at the project site at 901 Industrial Way San Jacinto, CA 92582 on February 13, 2025, at 1:00 PM.
SCOPE OF WORK. Provide all labor, equipment, materials, and resources necessary for site improvements at the Grand Well and Treatment Plant. Install the potable water treatment plant supplied by the City and outfit the existing Grand Well in accordance with the provided plans and specifications.
No overnight closures will be allowed. Access to existing homes and businesses shall be maintained at all times.
LICENSING REQUIREMENTS. All bidders shall be licensed in accordance with provisions of the Business and Professions Code and shall possess a State of California Contractor’s license, Class A, at the time of contract award.
The successful Contractor and its subcontractors will be required to possess business licenses from the city.
COMPLETION OF WORK. The work is expected to start by April 7, 2025. All Base Bid work shall be completed in its entirety within 400 working days from the said date.
PLANS AND SPECIFICATIONS. The plans and specifications are available online to download through Planet Bids website which can be accessed through the City of San Jacinto website at:
https://www.sanjacintoca.gov/government/bidsProposals
GUARANTEE. Each bid shall be made on the proposal form furnished by the City on the Planet Bids website and shall be in accordance with the Plans, Specifications, and Contract Documents and shall be accompanied by a certified check, cashier’s check, or bidder’s bond, payable to the City in a sum not less than ten percent (10%) of the amount of the bid, as a guarantee that the bidder will enter into the contract for the work, the full amount of such guarantee to be forfeited to the City should said bidder fail to enter into said Contract. The successful bidder will be required to furnish a Faithful Performance Bond in the amount of not less than one hundred percent (100%) of the contract price, and a Labor and Material Bond in an amount of not less than one hundred percent (100%) of the contract price, said bonds to be underwritten by sureties qualified to do business in the State of California, preferably carrying a rating of A or better, in the current edition of Bests Insurance Guide.
LABOR CODE CONCERNING APPRENTICES. Attention is directed to the provisions of Sections 1777.5 and 1777.6 of the Labor Code, concerning the employment of apprentices by the Contractor or any subcontractor under him. The Contractor and any subcontractor under him shall comply with the requirements of said sections in the employment of apprentices. It shall be the Bidder's sole responsibility to evaluate and include the cost of complying. with all labor compliance requirements. Information related to apprenticeship standards and administration of the apprenticeship programs may be obtained from the Department of Industrial Relations, California, or the Division of Apprenticeship Standards and its branch offices.
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SB854/DIR REGISTRATION. Contractors and Subcontractors bidding on a public works project must be registered with the State of California, Department of Industrial Relations. All bidders shall use only registered contractors and subcontractors. No bid will be accepted nor any contract entered into without proof of the Bidder’s and its subcontractors’ current registration with the Department of Industrial Relations. If awarded a contract, Bidder and its subcontractors of every tier shall maintain active registration with the Department of Industrial Relations for the duration of the Project.
SAM.GOV REGISTRATION. Contractors and Subcontractors bidding on a public works project must be registered with SAM.gov. All bidders shall use only registered contractors and subcontractors. No bid will be accepted nor any contract entered into without proof of the Bidder’s and its subcontractors’ current registration on the SAM.gov website. If awarded a contract, the Bidder and its subcontractors of every tier shall maintain active registration with the SAM.gov website for the duration of the Project.
AB44/SUBCONTRACTOR LISTING. If a bidder submits a bid that includes a subcontractor who would be performing work in amount in excess of ½ of 1% of the bidder's total bid or in the case of bids for the construction of streets or highways, including bridges, in excess of ½ of 1% of the bidder's total bid or $10,000, whichever is less, then in addition to the subcontractor's name and business address, the subcontractor's State contractor's license number and DIR registration number must be included as part of the information submitted for that proposed subcontractor. Failure to provide the subcontractor's license and registrations numbers may render the bid nonresponsive.
CITY’S RIGHTS RESERVED. The City reserves the right to reject any or all bids, to waive any informality in a bid, and to make awards in the interest of the City. No bidder may withdraw his bid for a period of ninety (90) days after the bid opening.
LABOR CODE ACKNOWLEDGEMENT. By my signature hereunder, as Contractor, I certify that I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker's compensation or to undertake self-insurance in conformance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
PREVAILING WAGE. Pursuant to Section 1773 of the Labor Code, the general prevailing wage rates, including the per diem wages applicable to the work, and for holidays and overtime work, including employer payments for health and welfare, pension, vacation, and similar purposes, in the County of Riverside in which the work is to be done, have been determined by the Director of the Department of Industrial Relations, State of California. These wages are set forth in the General Prevailing Wage Rates for this project, available from the California Department of Industrial Relations' Internet website at www.dir.ca.gov. Future effective prevailing wage rates which have been predetermined and are on file with the California Department of Industrial Relations, are referenced but not printed in the general prevailing wage rates.
DEBARMENT CERTIFICATION. Contractors/Subcontractors are subject to Certification Regarding Debarment, suspension in eligibility and voluntary exclusion. Contractors and sub-contractors are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participating in covered transactions/work funded by City programs.
CALIFORNIA GOVERNMENT CODE SECTIONS 4525-4529.14. The City of San Jacinto and prospect contractors and sub-contractors shall undertake the procedures described in California Government Code 4527(a) and 4528(a).
PUBLIC CONTRACT CODE (PCC) 10300-10334. Project is subject to Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non A&E services), and California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations.
RECORD RETENTION. Contractors must keep project records for a period of five (5) years after project completion.
CONFLICT OF INTEREST. No employee, officer, or agent of the City and/or Consultant shall participate in selection, or in award of administration of a contract supported by City funds, if a conflict of interest, real or apparent, would be involved. Such a conflict arises when: (i) the employee, officer or agent (ii) any member of his immediate family (iii) his or her partner (iv) an organization, which employs or is about to employ, and of the above has a financial or other interest in the firm selected for award.
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NON-LOBBYING CERTIFICATION. The prospective participant must certify, by signing and submitting a bid or proposal, to the best of his or her knowledge and belief, that:
(l) The Proposer, its employees, representatives, agents, consultants, or lobbyists have not engaged in any lobbying activities, as defined by applicable laws, regulations, or policies, directed at any official, employee, or representative of the City of San Jacinto with the intent of securing an unfair advantage, influencing procurement decisions, or otherwise improperly affecting the outcome of this solicitation process.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly.
NON-DISCRIMINATION. Prospective Participants are subject to the statutes and regulations prohibiting discrimination applicable to this project include, without limitation to the following:
Title VI of the Civil Rights Act of 1964 (42 U.S.C. Section 2000d et seq.) and Treasury’s implementing regulations at 31 CFR Part 22, which prohibits discrimination on the basis of race, color, or national origin; The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Section 3601 et seq.), which prohibits discrimination in housing on the basis or 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. Section 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance; and
Title II of the American with Disabilities Act of 1990, as amended (42 U.S.C. Section 12101 et seq.), which prohibit discrimination on the basis of disability under program, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
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INSTRUCTIONS TO BIDDERS
REQUEST FOR PROPOSALS FOR CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT
FACILITY AND EQUIPPING OF THE NEW GRAND WELL
IB-1. PROPOSAL. The proposal shall include completed bid schedule and shall be submitted on the forms prepared for this project and shall be filed with Planet Bids. The proposal shall be delivered electronically by the time and to the place stipulated in the Notice Inviting Bids. It is the bidder’s sole responsibility to see that his proposal is received in proper time. Any proposal after the scheduled closing time will not be submitted. The proposal may be withdrawn by the bidder by means of a written request, signed by the bidder, or his properly authorized representative.
The Proposals will be opened and read at the time and place stipulated in the Notice Inviting Bids.
Unauthorized conditions, limitations, or provisions attached to a proposal will render it informal and may cause its rejection. The completed proposal forms shall be without interlineations, alterations, or erasures. Oral, telegraphic, or telephonic proposals or modifications will not be considered.
IB-2. DISCREPANCIES IN PROPOSALS. The bidder shall furnish a price for all bid items in the proposal and failure to do so will render the proposal informal and may cause its rejection. In the event the total indicated for the schedule does not agree with the sum of the prices bid on the individual items, the prices bid on the individual item shall govern and the total for the schedule will be corrected accordingly.
IB-3. EXAMINATION OF PLANS, SPECIFICATIONS, SPECIAL PROVISIONS, AND SITE OF WORK. The bidder shall examine carefully the site of the proposal and the plans and specifications for the work contemplated. It will be assumed that the bidder has investigated and is satisfied with the conditions to be encountered as to the character, quality, and quantities of work to be performed and materials to be furnished and as to the requirements of the specifications. It is mutually agreed that submission of a proposal shall be prima facie evidence that the bidder has made such examinations and is so satisfied. The plans for the work will show conditions as they are supposed or believed by the Engineer to exist but is not intended nor is to be inferred that the conditions as shown thereon constitute a representation by the City or its officers that such conditions are actually existent. Neither the City nor any of its officers shall be liable for any loss sustained by the Contractor as a result of any variance between conditions as shown on the plans and actual conditions revealed during the progress of the work or otherwise. The Contractor is to assume all risks as to natural conditions and contingencies attending the work.
IB-4. CONTRACTOR’S PRE-START REPRESENTATIONS. The Contractor represents that he or she has familiarized himself or herself with the work, the locality and with all local conditions including federal, state and local laws, ordinances, rules and regulations that may in any manner affect performance of the work, and represents that he or she has correlated his or her efforts and observations with the requirements of the Contract Documents and assumes full responsibility for having familiarized himself or herself with the nature and extent of the Contract Documents.
The Contractor shall carefully study and compare the Contract Documents; check and verify pertinent figures shown thereon and verify all applicable field measurements prior to commencing work. He or she shall at once report in writing to the Engineer any conflict, error or discrepancy that he or she may discover. The Contractor shall be responsible for exercising reasonable care and skill in reviewing the Contract Documents to determine whether there is any conflict, error or discrepancy. No claim for additional compensation shall be made by the Contractor for extra work created by conflicts, errors or discrepancies in the Contract Documents that the Contractor should have discovered prior to submitting his or her bid.
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No information derived from inspection of records or investigations or compilations of same made by the City will in any way relieve the Contractor from his or her obligations under the Contract Documents nor entitle the Contractor to any additional compensation. The Contractor will not and agrees not to make any claims against the City based upon ignorance or misunderstanding of any condition of the work site or of the requirements set forth in the Contract Documents.
IB-5. PROPOSAL SUBSTITUTIONS. Any and all requests for substitutions of “an equal” item and all supporting materials shall be submitted to the Engineer at least ten (10) days prior to the bid opening. If no requests for substitutions are received, the Contractor waives any right to request any substitution.
IB-6. INTERPRETATION OF PLANS. If any person contemplating submitting a bid for the proposed contract is in doubt as to the true meaning of any part of the Contract Documents, or finds discrepancies in, or omissions from, these Documents, he or she may submit to the Engineer a written request for an interpretation of correction thereof. Any interpretation or correction of the Contract Documents shall be made only by addendum and provided to each person receiving a set of such documents. The City will only be responsible for explanations or interpretations of the Contract Documents as requested pursuant to and provided for by this paragraph. Any omissions from these Contract Documents not called to the attention of the City shall not affect the validity of the bid process or the contract eventually awarded.
IB-7. PROPOSAL GUARANTEE. Each bid shall be accompanied by a cash deposit, certified or cashier's check or bid bond in the amount of not less than ten (10%) percent of the total amount named in the proposal. Said check or bond shall be made payable to the City of San Jacinto and shall be given as a guarantee that the bidder, if awarded the work, will enter into a contract within ten (10) calendar days after date of written notice of award and will furnish satisfactory Faithful Performance Bond and Labor and Material Bond, each of said bonds to be in the amount stated in the Notice Inviting Bids. In case of refusal or failure to enter into said contract, each check or bond, as the case may be, shall be forfeited to the City. If the bidder elects to furnish a bid bond as his proposal guarantee, he shall use the form furnished by the City, or one conforming substantially to it in form. Additionally, all bids must remain valid and guaranteed for a period of one hundred twenty (120) days from the bid opening date.
Bidder understands that a bid is required for the entire work that the estimated quantities set forth in the bid schedule are solely for the purpose of comparing bids and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. THE CITY RESERVES THE
RIGHT TO INCREASE OR DECREASE THE AMOUNT OF ANY QUANTITY SHOWN AND TO
DELETE ANY ITEM FROM THE CONTRACT WITHOUT ANY ADJUSTMENT IN THE CONTRACT UNIT PRICE. It is agreed that the unit and/or lump sum prices bid include all appurtenant expenses, taxes, royalties and fees. In the case of discrepancies in the amounts bid, unit prices shall govern over extended amounts and words shall govern over figures.
IB-8. IMMIGRATION REFORM AND CONTROL ACT. The successful bidder will be required to comply with all requirements of the Immigration Reform and Control Act of 1986 (“Act”). The successful bidder agrees to defend, indemnify and hold the City harmless from penalties imposed as a result of noncompliance with the Act.
IB-9. CLAYTON AND CARTWRIGHT ACTS. By submitting a bid, the bidder offers and agrees that if the bid is accepted, it will assign the City all rights, titles, and interest in and to all causes of action it may have under § 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 commencing with § 16700) of Part 2 Division 7 of the Business and Profession Code, arising from purchases of goods, materials or services by the bidder for sale to the City pursuant to the bid. Such assignment shall be made and become effective at the time the City tenders final payment to the bidder.
IB-10. ADDENDA OR BULLETINS. Any addenda or bulletins issued during the time of bidding which form a part of the specifications shall be covered in the bid and shall be made part of the contract.
IB-11. COMPETENCY OF BIDDERS. In selecting the lowest responsible bidder, consideration will be
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given not only to the financial standing but also to the general competency of the bidder for the performance of the work covered by the proposal. To this end, each proposal shall be accompanied by a statement of the bidder's experience as to recent date on the form furnished by the City entitled "INFORMATION REQUIRED OF BIDDER."
No proposal for work will be accepted from a Contractor who is not licensed in accordance with the provisions of Chapter 9, Division 3 of the Business and Professions Code.
All bidders shall be licensed in accordance with provisions of the Business and Professions Code and shall possess a State of California Contractor’s license, Class A, at the time of contract award. The successful Contractor and its subcontractors will be required to possess business licenses from the City.
All bidders shall provide their DIR registration numbers in the Information Required of Bidder and the registration number for each listed subcontractor in the Designation of Subcontractors Form. Bidders shall sign and submit with the proposal the Public Works Contractor Registration Certification on the form provided.
IB-12. DISQUALIFICATION OF BIDDERS. More than one proposal form from an individual, firm, partnership, corporation, or association under the same or different names will not be considered.
Reasonable grounds for believing that any bidder is interested in more than one proposal for the work contemplated will cause the rejection of all proposals in which such bidder is interested. If there is reason for believing that collusion exists among the bidders, all bids will be rejected and none of the participants in such collusion will be considered for future proposals.
No proposal for work will be accepted from a contractor who is not licensed in accordance with the provisions of the Business and Professions Code; and who do not posses a State Contractor’s license, Class A, at the time of contract award.
IB-13. AWARD OF CONTRACT TO LOWEST RESPONSIVE RESPONSIBLE BIDDER. The award of the Contract, if made by the City through action of the City Council, will be to the lowest responsive responsible bidder, based on the base bid price.
The City reserves the right to add any of the additive Alternates by Contract Change Order at any time during the project up to the last contract working day. The bidder agrees to hold all Additive Alternates constant throughout the duration of the project up to the last contract working day. No additional compensation will be allowed for Alternates added by Contract Change Order beyond the amount shown on the original bid.
IB-14. BID PROTESTS. Bidders may file a protest to another’s bid by complying with the following:
1. The protest must be filed with the City Clerk within seven (7) calendar days after the bid opening.
2. The protest must clearly specify the irregularity in the bid that is being protested or the grounds for the protest.
3. The protest must identify the proposed City action or recommendation that is being protested.
4. The protest must specify in detail the grounds of the protest and all facts supporting the protest.
5. The protest must include all documents supporting the protest.
If the protest does not comply with each of these requirements, it will be invalid. Failure to timely submit a valid protest shall constitute a waiver of any right to relief on the protest.
If the protest meets the aforesaid requirements, the Engineer or his/her designee shall review the basis of the protest and all relevant information. The Engineer will provide a written decision to the protestor.
If the protester or any affected party disagrees with the decision, the decision may be appealed to the City Council. Such appeal shall be heard when the City Council considers the award of the contract.
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Award of a contract, if it is awarded, will be made to the lowest responsive and responsible bidder whose proposal complies with all the requirements prescribed. The City reserves the right to reject any or all bids, to waive any informality in a bid, and to make awards in the interest of the City.
The City may reject any bid which, in its opinion when compared to other bids received, or by the City’s internal estimates, does not accurately reflect the cost to perform the work.
IB-15. RESPONSIVE BIDDER. A responsive bidder shall mean a bidder who has submitted a bid, which conforms in all material respects with the Bid Documents.
IB-16. RESPONSIBLE BIDDER. A responsible bidder shall mean a bidder who has the capability in all respects, to perform fully the requirements of the Contract Documents and the moral and business integrity and reliability, which will assure good faith performance. In determining responsibility, the following criteria will be considered: (i) the ability, capacity and skill of the bidder to perform the Work of the Contract Documents; (ii) whether the bidder can perform the Work of the Contract Documents promptly and within the time specified, without delay or interference; (iii) the character, integrity, reputation, judgment, experience and efficiency of the bidder; (iv) the quality of performance of the bidder on previous contracts, by way of example only, the following information will be considered; (a) the administrative, consultant or other cost overruns incurred by the City on previous contracts with the bidder; (b) the bidder's compliance record with contract general conditions on other projects; (c) the submittal by the bidder of excessive and/or unsubstantiated extra cost proposals and claims on the other projects; (d) the bidder's record for completion of work within the contract time and the bidder's compliance with scheduling and coordination requirements on the other projects; (e) the bidder's demonstrated cooperation with the City and other contractors on previous contracts; (f) whether the work performed and materials furnished on previous contracts were in accordance with the Contract Documents; (v) the previous and existing compliance by the bidder with laws and ordinances relating to contracts; (vi) the sufficiency of the financial resources and ability of the bidder to perform the work of the Contract Documents; (vii) the quality, availability and adaptability of the goods or services to the particular use required; (viii) ability of the bidder to provide future maintenance and service for the warranty period of the Contract; (ix) whether the bidder is in arrears to an owner on debt or contract or is a defaulter on any surety bond; (x) such other information as may be secured by the City having a bearing on the decision to award the Contract, to include without limitation the ability, experience and commitment of the bidder to properly and reasonably plan, schedule, coordinate and execute the Work of the Contract Documents and whether the bidder has ever been debarred from bidding or found ineligible for bidding on any other projects. The purpose of the above is to enable the City in its opinion, to select the bid, which is in the best interests of the City; the ability of the low bidder to provide the required bonds will not of itself demonstrate responsibility of the bidder.
IB-17. RETURN OF PROPOSAL GUARANTEE. Within ten (10) days after award of the contract, the City will return all proposal guarantees to their respective bidder except those accompanying proposals submitted by the three lowest responsible bidders. Those three will be held until the contract has been finally executed after which they will be returned to the respective bidders whose proposal they accompany.
IB-18. EXECUTION OF CONTRACT. The bidder to whom award is made shall execute a written contract with the City on the form of agreement provided, and shall secure all insurance, securities, and bonds required by the Specifications within ten (10) calendar days after date of written notice of award.
Failure or refusal to enter into a contract as herein provided or to conform to any of the stipulated requirements in connection therewith shall be just cause for annulment of the award and the forfeiture of the proposal guarantee. If the successful bidder refuses or fails to execute the contract, the City may award the contract to the second lowest responsible bidder. If the second lowest responsible bidder refuses or fails to execute the contract, the City may award the contract to the third lowest responsible bidder. On the failure or refusal to such second or third lowest bidders to execute the contract, such bidders' guarantee likewise shall be forfeited to the City. The work may then be re-advertised.
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IB-19. NOTICE TO PROCEED. Notice to Proceed will be issued within forty-five (45) days of the execution of the Contract by the City. Should there be reasons why the Notice to Proceed cannot be issued within such period, the time may be extended by mutual agreement between the City and Contractor. If the Notice to Proceed has not been issued within the forty-five (45) day period or within the period mutually agreed upon, the Contractor may terminate the Contract without further liability on the part of either party.
IB-20. NON-DISCRIMINATION IN EMPLOYMENT. Contracts for work under this proposal will obligate the contractors and subcontractors not to discriminate against any person on account of race, color, religion, physical handicap, medical condition, marital status, age (over 40), sex, or national origins in accordance to 23 CFR Part 230, as included in Appendix A, Section II.
IB-21. WAGE DETERMINATIONS. As required by the California Labor Code, the contractor shall, as a penalty, forfeit to the City twenty-five dollars ($25.00) for each calendar day, or portion thereof, for each workman paid less than the stipulated prevailing rates for such work or craft in which such workman is employed for work done under this contract by him or by any subcontractor under him. In addition, the difference between such stipulated prevailing wage rates and the amount paid to each workman for each calendar day or portion thereof for which each workman was paid less than the stipulated prevailing wage rate, shall be paid to each workman by the Contractor.
IB-22. WORKING HOURS. As required by the California Labor Code, the contractor shall, as a penalty, forfeit to the City twenty-five ($25.00) for each workman employed in the execution of the contract by the contractor or by any subcontractor under him for each calendar day during which such workman is required or permitted to work more than eight (8) hours in any one (1) calendar day and forty (40) hours in any one (1) calendar week, unless such worker received compensation for all hours worked in excess of eight (8) hours per day at not less than 1.5 times the basic rate of pay. No work shall take place within residential and/or business districts on Thanksgiving Week and Christmas Week.
IB-23. INSURANCE REQUIREMENTS. Certificates of insurance in the amounts required shall be furnished by the Contractor to the City and accepted by the City prior to the commencement and throughout the duration of the work. The Contractor and its subcontractors shall maintain insurance in conformance with the requirements set forth below and in the Contract Documents. Contractor will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, Contractor agrees to amend, supplement, or endorse the existing coverage to do so. Contractor acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to Contractor or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to City.
Until the completion and final acceptance by City of all the work under and implied by this Contract, the work shall be under the Contractor’s responsible care and charge. To the extent permitted by law, the Contractor shall rebuild, repair, restore and make good all injuries, damages, re-erections, and repairs occasioned or rendered necessary by causes of any nature whatsoever.
The Contractor shall provide and maintain Builder’s Risk Insurance (course of construction) or an installation floater (for materials and equipment) covering all risks of direct physical loss, damage or destruction to the work in the amount for the completed value of the project, to insure against such losses until final acceptance of the work by City. Such insurance shall insure at least against the perils of fire and extended coverage, theft, vandalism and malicious mischief, and collapse. The policy shall be endorsed with City, its officers, officials, employees, agents, and volunteers named as loss payee, as their interest may appear. The making of progress payments to the Contractor shall not be construed as creating an insurable interest by or for City or be construed as relieving the Contractor or his/her subcontractors of responsibility for loss from any direct physical loss, damage or destruction occurring prior to final acceptance of the work by City.
Without limiting Contractor’s indemnification of City of San Jacinto and prior to commencement of Work,
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Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City:
General liability insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability, and a $4,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. Vendor’s general liability policies shall be primary and shall not seek contribution from the City’s coverage, and be endorsed using Insurance Services Office form CG 20 10 (or equivalent) to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees, agents, and volunteers.
Automobile liability insurance. Contractor shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $2,000,000 combined single limit for each accident.
Umbrella or excess liability insurance. Contractor shall obtain and maintain an umbrella or excess liability insurance that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
Workers’ compensation insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for Contractor’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees, agents and volunteers.
Products/completed operations 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. The 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. The policy shall specifically provide for a duty to defend on the part of the insurer. The City, its officials, officers, employees, agents, and volunteers, shall be included as insureds under the policy. The endorsement shall be
4.B.2.1
Packet Pg. 354 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
(22-010) B-7
provided for 10 years.
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon City, except ten (10) days shall be allowed for non-payment of premium.
IB-24. Contractor shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award.
Affirmative steps shall include:
Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
• Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
• Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
• Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and • Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.
Contractor shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
4.B.2.1
Packet Pg. 355 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-1
PROPOSAL
TO THE CITY COUNCIL
CITY OF SAN JACINTO
SAN JACINTO, CALIFORNIA
The undersigned bidder hereby proposes to furnish all labor, material, equipment, tools and services necessary to perform all work required under the City of San Jacinto Specifications entitled:
CONTRACT DOCUMENTS AND SPECIFICATIONS
FOR
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND
EQUIPPING OF THE NEW GRAND WELL
In accordance with the intent of said Specifications, Plans, and all addenda issued by said City prior to opening of the proposals. Said bidder agrees that, within ten (10) calendar days after date of written Notice of Award of the Contract by said City, he will execute a contract in the required form of which the Notice Inviting Bids, Instructions to Bidders, Proposal, Specifications, Plans, and all addenda issued by said City prior to the opening of proposals, are a part, and will secure the required insurance and bonds; and that upon failure to do so within said time, then the Proposal Guarantee furnished by said bidder shall be forfeited to said City as liquidated damages for such failure; provided, that if said bidder shall execute the Contract and secure the required insurance and bonds within said time, his check, if furnished shall be returned to him within five (5) days thereafter, and the Bid Bond, if furnished, shall become void.
Said bidder further agrees to complete all work required under the Contract within the time stipulated in said Specifications, and to accept in full payment therefor the prices named in the Bid Schedule.
Dated: Bidder
Signature
Name (Print/Type)
Title
4.B.2.1
Packet Pg. 356 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-2
BID SCHEDULE (Attachment B)
4.B.2.1
Packet Pg. 357 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-3
BID SCHEDULE (Attachment B)
4.B.2.1
Packet Pg. 358 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-4
* Mobilization shall not exceed 5% of the total bid amount.
Each bidder must bid on each item shown on the Bidder’s Proposal. If any bidder shall make any alteration, interlineations, or deviation in any of the printed matter of the proposal or if the signature of the bidder is incomplete, the bid will be considered informal and it may be rejected.
The unit price bid shall include all sales, use, or other taxes applicable.
All blank spaces appearing above must be filled in. Failure to fill in any blank spaces may render the bid non-responsive. In case of discrepancy between unit prices and item totals, the unit prices shall prevail.
In case of a discrepancy between item totals and the grand total, the item totals shall prevail. The grand total will be subject to adjustment by the City in the event of a discrepancy. The contract award shall be made on the basis of the grand total as described above from among responsive and responsible bidders.
Based on the bids received and the City’s budget at the time of contract award, the City reserves the right to delete items. The estimated quantities for unit price items are for purposes of comparing bids only and the City makes no representation that the actual quantities of work performed will not vary from the estimates.
The Contractor acknowledges receipt of the following addenda issued for the above project. If no addenda have been received, write “none”. FAILURE TO ACKNOWLEDGE RECEIPT OF ANY ADDENDA ISSUED MAY RENDER THE CONTRACTOR’S BID NON-RESPONSIVE.
List of Addenda Received:
4.B.2.1
Packet Pg. 359 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-5
INFORMATION REQUIRED OF BIDDER
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND
EQUIPPING OF THE NEW GRAND WELL
BIDDER NAME: ______________________________________________________ The Bidder is required to supply the following information. Additional sheets may be attached, if necessary. If requested by the City, the Bidder shall furnish a notarized financial statement, references, or other information, sufficiently comprehensive to permit an appraisal of his current financial condition.
1. Address:
2. Telephone: Fax: E-mail:
3. Type of Firm: Individual ( ) Partnership ( ) Corporation ( )
4. Corporation organized under the laws of the State of
5. Contractor’s License: State __________________License No.
6. Names and Titles of all officers of the firm:
7. Number of years of experience in projects of this type
8. List Minimum Three Projects of this type recently completed:
PROJECT
CONTRACT
AMOUNT
COMPLETION
DATE
NAME AND ADDRESS
OF AGENCY
CONTACT PERSON AND
PHONE NUMBER
1 2
3 4
5 4.B.2.1
Packet Pg. 360 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-6
BID BOND
KNOW ALL PEOPLE BY THESE PRESENTS,
That as Principal, and
as Surety,
are held and firmly bound unto the City of San Jacinto in the sum of:
($ ),
(not less than 10 percent of the total amount of the bid) 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.
WHEREAS, said Principal has submitted a bid to said City to perform all work required under the City’s Specifications entitled:
CONTRACT DOCUMENTS AND SPECIFICATIONS
FOR
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND
EQUIPPING OF THE NEW GRAND WELL
If the Principal does not withdraw its bid within the time specified in the Contract Documents; and if the bid is rejected or, in the alternate, the principal is awarded the Contract, signs the Contract and provides all documents to the City as required by the Contract Documents; then this obligation shall be null and void. Otherwise, this bond will remain in full force and effect and upon default of the principal shall be forfeited to the City, it being expressly understood and agreed that the liability of the Surety for any and all default of the principal shall be the amount of this obligation as herein stated, as liquidated damages.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents shall affect its obligation under this bond, and Surety does hereby waive notice of any such changes.
IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this _____day of ______________,20_____ the name and corporate seal of each corporation. (Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title ______________________________________
4.B.2.1
Packet Pg. 361 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-7
Surety signatures on this bond must be acknowledged before notary publics, and a legally sufficient power of attorney must be attached to the bond to verify the authority of any party signing on behalf of a surety.
All notices or demands to the surety shall be delivered via first class mail to the following:
4.B.2.1
Packet Pg. 362 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-8
NON-COLLUSION AFFIDAVIT
(Title 23 United States Code Section 112 and
Public Contract Code Section 7106)
To the CITY / COUNTY of ________________________________________________________ DEPARTMENT OF PUBLIC WORKS.
In conformance with Title 23 United States Code Section 112 and Public Contract Code 7106 the bidder declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.
Note: The above Non-Collusion Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Non-Collusion Affidavit. Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.
Date Bidder
Authorized Signature
Name (Print/Type)
Title
4.B.2.1
Packet Pg. 363 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-9
ANTI-TRUST CLAIM
In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or Subcontractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton ct (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter [commencing with Section 16700] of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Public Works Contract or the Contract or the Subcontract. This assignment shall be made and become effective at the time the Agency tenders final payment to the Contractor, without further acknowledgement by the parties.
RESPECTFULLY SUBMITTED:
Signature Please Print
Title Address
Date
Contractor’s California License No. Type of License
Name of License Holder Expiration Date
THE REPRESENTATIONS MADE HEREIN ARE MADE UNDER PENALTY OF PURJURY.
Federal I.D. No.
(Seal 0 if Bid is by a Corporation)
ATTEST_________________________________
4.B.2.1
Packet Pg. 364 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-10
CONTRACTOR’S CERTIFICATE REGARDING WORKERS’ COMPENSATION
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND EQUIPPING
OF THE NEW GRAND WELL
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract.
Name of Bidder
Signature
Name
Title
Dated ____________________
4.B.2.1
Packet Pg. 365 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-11
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND EQUIPPING OF THE
NEW GRAND WELL
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/Public-Works/PublicWorks.html for additional information.
No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.
Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:____________________________________ DIR Registration Number:________________________________ DIR Registration Expiration:______________________________ Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.
Name of Contractor:_____________________________
Signature:_____________________________________
Name and Title:________________________________
Dated:________________________________________
IF THE PROJECT IS EXEMPT FROM THE CONTRACTOR REGISTRATION REQUIREMENTS PURSUANT TO THE SMALL PROJECT EXEMPTION UNDER LABOR CODE SECTIONS 1725.5 AND 1771.1, PLEASE MARK “YES” IN RESPONSE TO “SMALL PROJECT EXEMPTION.”
4.B.2.1
Packet Pg. 366 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-12
PUBLIC CONTRACT CODE
PUBLIC CONTRACT CODE SECTION 10285.1 STATEMENT
In conformance with Public Contract Code Section 10285.1 (Chapter 376, Stats. 1985), the bidder hereby declares under penalty of perjury under the laws of the State of California that the bidder has ___, has not ___ been convicted within the preceding three years of any offenses referred to I that section, including any charge of fraud, bribery, collusion, conspiracy, or any other act in violation of any state or Federal antitrust law in connection with the bidding upon, award of, or performance of, any public works contract, as defined in Public Contract Code Section 1101, with any public entity, as defined in Public Contract Code Section 1100, including the Regents of the University of California or the Trustees of the California State University. The term “bidder” is understood to include any partner, member, officer, director, responsible managing officer, or responsible managing employee thereof, as referred to in Section 10285.1.
Note: The bidder must place a checkmark after “has” or “has not” in one of the blank spaces provided.
The above Statement is part of the Proposal. Signing this proposal on the signature portion thereof shall also constitute signature of this Statement. Bidders are cautioned that making a false certification may be subject to certifier to criminal prosecution.
PUBLIC CONTRACT CODE SECTION 10162 QUESTIONNAIRE
In conformance with Public Contract Code Section 10162, the Bidder shall complete, under penalty of perjury, the following questionnaire:
Has the bidder, any officer of the bidder, or any employee of the bidder who has a proprietary interest in the bidder, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or a safety regulation? Yes ______ No ______
If the answer is yes, explain the circumstances in the following space.
4.B.2.1
Packet Pg. 367 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-13
PUBLIC CONTRACT CODE SECTION 10232 STATEMENT
In conformance with Public Contract Code Section 10232, the Contractor, hereby states under penalty of perjury, that no more than one final unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the Contractor’s failure to comply with an order of a federal court which orders the Contractor to comply with an order of the national Labor Relations Board.
Note: The above Statement and Questionnaire are part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Statement and Questionnaire.
Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.
4.B.2.1
Packet Pg. 368 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-14
DEBARMENT AND SUSPENSION CERTIFICATION
TITLE 49, CODE OF FEDERAL REGULATIONS, PART 29
The bidder, under penalty of perjury, certifies that, except as noted below, he/she or any other person associated therewith in the capacity of owner, partner, director, officer, manager:
Is not currently under suspension, debarment, voluntary exclusion or determination of indelibility by any Federal agency;
Has not been suspended, debarred, voluntarily excluded or determined ineligible by any Federal agency within the past 3 years;
Does not have a proposed debarment pending; and
Has not been indicted, convicted, or had a civil judgement rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past 3 years.
If there are any exceptions to this certification, insert the exceptions in the following space.
Exceptions will not necessarily result in denial of award, but will be considered in determining bidder responsibility. For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action.
Notes: Providing false information may result in criminal prosecution or administrative sanctions. The above certification is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Certification.
___________________________________
Signature, Title
4.B.2.1
Packet Pg. 369 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-15
IRAN CONTRACTING ACT CERTIFICATION.
(Public Contract Code section 2200 et seq.)
As required by California Public Contract Code Section 2204, the Contractor certifies subject to penalty for perjury that the option checked below relating to the Contractor’s status in regard to the Iran Contracting Act of 2010 (Public Contract Code Section 2200 et seq.) is true and correct:
The Contractor is not:
(1) identified on the current list of person and entities engaged in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203; or (2) a financial instruction that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran.
The City has exempted the Contractor from the requirements of the Iran Contracting Act of 2010 after making a public finding that, absent the exemption, the City will be unable to obtain the goods and/or services to be provided pursuant to the Contract.
The amount of the Contract payable to the Contractor for the Project does not exceed $1,000,000.
Signature:
Printed Name:
Title:
Firm Name:
Date:
Note: In accordance with Public Contract Code Section 2205, false certification of this form shall be reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract amount, termination of the Contract and/or ineligibility to bid on contracts for three years.
4.B.2.1
Packet Pg. 370 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-16
EXECUTIVE ORDER N-6-22 CERTIFICATION.
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with District funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the District funded by State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor.
This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
4.B.2.1
Packet Pg. 371 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-17
FLEET COMPLIANCE CERTIFICATION
Bidder hereby acknowledges that they have reviewed the California Air Resources Board’s policies, rules and regulations and are familiar with the requirements of Title 13, California Code of Regulations, Division 3, Chapter 9, effective on January 1, 2024 (the “Regulation”). Bidder hereby certifies, subject to penalty for perjury, that the option checked below relating to the Bidder’s fleet, and/or that of their subcontractor(s) (“Fleet”) is true and correct:
The Fleet is subject to the requirements of the Regulation, and the appropriate Certificate(s) of Reported Compliance have been attached hereto. The Fleet is exempt from the Regulation under section 2449.1(f)(2), and a signed description of the subject vehicles, and reasoning for exemption has been attached hereto.
Bidder and/or their subcontractor is unable to procure R99 or R100 renewable diesel fuel as defined in the Regulation pursuant to section 2449.1(f)(3). Bidder shall keep detailed records describing the normal refueling methods, their attempts to procure renewable diesel fuel and proof that shows they were not able to procure renewable diesel (i.e. third party correspondence or vendor bids). The Fleet is exempt from the requirements of the Regulation pursuant to section 2449(i)(4) because this Project has been deemed an Emergency, as defined under section 2449(c)(18). Bidder shall only operate the exempted vehicles in the emergency situation and records of the exempted vehicles must be maintained, pursuant to section 2449(i)(4).
The Fleet does not fall under the Regulation or are otherwise exempted and a detailed reasoning is attached hereto.
Signature:
Printed Name:
Title:
Firm Name:
Date:
4.B.2.1
Packet Pg. 372 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-1
(22-010)
CONTRACT AGREEMENT
THIS AGREEMENT, made and entered into as of this _____ day of _______________, 20______ by and between the City of San Jacinto hereinafter called “City” and , hereinafter called “Contractor.”
WITNESSETH: That the parties hereto do mutually agree as follow:
ARTICLE I. For and in consideration of the payments and agreements hereinafter mentioned to be made and performed by said City, said Contractor agrees with said City to perform and complete in a workmanlike manner all work required under the City’s Specifications entitled:
CONTRACT DOCUMENTS AND SPECIFICATIONS
FOR
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND EQUIPPING
OF THE NEW GRAND WELL
in accordance with the Specifications and Drawings thereof, to furnish at their own expense all labor, materials, equipment, tools, supplies, transportation, utilities, bonds and insurance, permits and services necessary therefore, except such materials, equipment, and services as may be stipulated in said Specifications to be furnished by said City, and to do everything required by this Agreement and the said Specifications and Drawings.
ARTICLE II. For furnishing all said labor, materials, equipment, tools, and services, furnishing and removing all plant, temporary structures, tools, and equipment, and doing everything required by this Agreement and the said Specifications and Drawings; also for all loss and damage arising out of the nature of the work aforesaid, or from the action of the elements, or from any unforeseen difficulties which may arise during the prosecution of the work until its acceptance by said Owner, and for all risks of every description connected with the work; also for all expenses resulting from the suspension or discontinuance of work, except as in the said Specifications are expressly stipulated to be borne by said City; and for completing the work in accordance with the requirements of said Specifications and Drawings as directed by the Engineer, said City will pay and said Contractor shall receive, in full compensation therefore, the price(s) named in the Proposal.
ARTICLE III. The City hereby employs said Contractor to perform the work according to the terms of this Agreement for price(s) named in the Proposal, and agrees to pay the same at the time, in the manner, and upon the condition as stipulated in the said Specifications; and the said parties for themselves, their heirs, executors, administrators, successors, and assigns, do hereby agree to the full performance of the covenants herein contained.
ARTICLE IV. The Notice Inviting Bids, Instruction to Bidders, Proposal, Information Required of Bidder, the Faithful Performance Bond, the Labor and Material Bond, the General Conditions, Special Provisions, Technical Specifications, Drawings, and all Addenda issued by the City with respect to the foregoing prior to the opening of bids, are hereby incorporated in and made part of this Agreement.
4.B.2.1
Packet Pg. 373 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-2
(22-010)
Precedence of Contract Documents. If there is a conflict between Contract Documents, the highest in precedence shall control. The order of precedence shall be as follows:
1. Permits from other agencies as may be required by law.
2. Special Provisions.
3. Notice Inviting Bids, Instructions to Bidders, and General Specifications.
4. Agreement between City and Contractor.
5. Plans.
6. Standard Plans.
7. Project Manual
8. Standard Specifications.
9. Reference Specifications.
10. Contractor’s Proposal.
Change orders and approved revisions to Plans and Specifications will take precedence over Items 2 through 10 above. Detailed plans shall have precedence over general plans.
ARTICLE V. All time limits stated in the Contract Documents are of the essence of this Agreement. No work, services, materials or equipment shall be performed or furnished under this Agreement unless and until a Notice to Proceed has been given to the Contractor by the owner. Notwithstanding the foregoing, the City's said right to cancellation must be exercised not later than 90 days following the bid opening date, and before delivery of a Notice to Proceed to Contractor.
ARTICLE VI. Contractor shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers from and against all third party claims, liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Contractor's negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the City. Should conflict of interest principles preclude a single legal counsel from representing both City and Contractor, or should City otherwise find Contractor’s legal counsel unacceptable, then Contractor shall reimburse the City its costs of defense, including without limitation reasonable legal counsel’s fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the Contractor’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
Contractor obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Contractor shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City.
4.B.2.1
Packet Pg. 374 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-3
(22-010)
ARTICLE VII. No official, officer or employee of the City, or its members of their direct family shall have any interest, direct or indirect, in the contract or the proceeds thereof during his/her tenure with the City or for a period of one year thereafter. The Contractor agrees to indemnify, defend and hold harmless the City, its officials, officers, attorneys and employees from all claims, liabilities, lawsuits, actions, or damages of any type, including without limitation costs of suit and attorneys fees, arising out of any claims, proceedings, lawsuits or actions for injunctive or declaratory relief related to any alleged breach of this requirement, violation of Government Code Section 1090 et seq. or the Political Reform Act (Government Code Section 87100 et seq.).
ARTICLE VIII. Prevailing wages shall be paid and Contractor shall comply with Labor Code Sections 1720 et seq. as well as California Code of Regulations, Title 8, Section 16000 et seq.
Contractor acknowledges the provisions of the State Labor Code requiring every employer to be insured against liability for worker’s compensation, or to undertake self-insurance in accordance with the provisions of that code and certifies compliance with such provisions. Contractor further acknowledges the provisions of the State Labor Code requiring every employer to pay at least the minimum prevailing rate of per diem wages for each craft, classification, or type of workman needed to execute this contract. The State General Prevailing Wage Determination as established by the California Department of Industrial Relations is available at http://www.dir.ca.gov/DLSR/PWD/index.htm and in the Public Works Department at City Hall.
ARTICLE IX. The work required by the Contract Documents must be completed within the time set forth in the Contract, unless adjusted by terms of the Contract Documents. Unless authorized, any other delay shall deprive the City from timely and reasonable use of the project.
Accordingly, the Contractor acknowledges that he or she understands, has ascertained and agrees that he or she shall pay to the City, as liquidated damages, and not as a penalty or forfeiture, the amounts herein set forth for the failure of the Contractor to complete the entire work within the time specified.
ARTICLE X. The Contractor shall promptly, and before the following conditions are disturbed, notify the City in writing of any:
(1) 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.
(2) Latent physical conditions at the site differing from those indicated in the Contract Documents
(3) 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 Documents.
The City shall promptly investigate the conditions, and if it finds that the conditions so materially differ, or do involve hazardous waste, and cause a decrease or increase in the contractor’s cost of, or the time required for, performance of any part of the work, the City shall issue a change order under the procedures set forth in the Contract Documents.
In the event that a dispute arises between the City and the Contractor whether the conditions
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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 released from any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the Contract. The Contractor shall retain any and all rights provided either by contract or by law that pertain to the resolution of disputes and protests between the contracting parties.
For purposes of this provision, prompt notice shall mean notice seven (7) days from the discovery of the unforeseen conditions or prior to the discovered condition being disturbed, whichever is earlier.
ARTICLE XI. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.
District Court, venue shall lie exclusively in the Central District of California, in the County of Riverside, State of California.
ARTICLE XII. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
ARTICLE XIII. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
ARTICLE XIV. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
ARTICLE XV. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
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ARTICLE XVI. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
ARTICLE XVII. This Agreement, including the attachments hereto and documents references herein, is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
ARTICLE XVIII. The Contractor shall maintain accounts and records, including personnel, property, and financial records, adequate to identify and account for all costs pertaining to the contract and such other records as may be deemed necessary by the City to assure proper accounting for all project funds, both federal and non-federal shares. These records will be made available for audit purposes to the City or any authorized representative and will be retained for 4 years after the expiration of this contract, unless permission to destroy them is granted by the City.
ARTICLE XIX. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
4.B.2.1
Packet Pg. 377 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-6
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IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed as of the day and year first above written.
CONTRACTOR: Company Name: ___________________________________________ Address: __________________________________________________
Phone & Fax No. ___________________________________________
Signed By: ________________________________________________ Print Name & Title: __________________________________________ Contractor's License No. ____________________________________
Class _____________________________________________________ CITY: CITY OF SAN JACINTO
By ___________________________________ (Seal)
Robert A. Johnson, City Manager
ATTEST:
By ____________________________________
Julia Espinoza, City Clerk
Approved as to Form:
By ____________________________________
City Attorney
CONTRACTORS’ SIGNATURES MUST BE NOTARIZED AND THE NOTARY ACKNOWLEDGMENT
MUST SPECIFY THAT THE SIGNER OF THE AGREEMENT IS AUTHORIZED TO EXECUTE THE AGREEMENT. THE CITY’S ATTORNEY SHALL DETERMINE THE SUFFICIENCY OF CONTRACTOR’S SIGNATURES, AND MAY REQUIRE NOTARIZED SIGNATURES FROM TWO OFFICERS IN THE EVENT THAT CONTRACTOR IS A CORPORATION.
4.B.2.1
Packet Pg. 378 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-7
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FAITHFUL PERFORMANCE BOND
KNOW ALL MEN THESE PRESENT,
THAT WHEREAS, the City of San Jacinto (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for Construction Of The New Grand Treatment Plant Facility And Equipping Of The New Grand Well (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-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
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:
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1. Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
2. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
3. Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
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, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
4.B.2.1
Packet Pg. 380 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-9
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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
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or Representative for service of process in California, if different from above)
(Telephone number of Surety and Agent or Representative for service of process in California) NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
4.B.2.1
Packet Pg. 381 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-10
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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 Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) appeared , who proved to me on the basis of satisfactory Name(s) of Signer(s)
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.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ☐ Individual
☐ Corporate Officer
Title(s) Title or Type of Document
☐ Partner(s) Limited
General Number of Pages
☐ Attorney-In-Fact
☐ Trustee(s)
☐ Guardian/Conservator Date of Document
☐ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
4.B.2.1
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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 Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) appeared , who proved to me on the basis of satisfactory Name(s) of Signer(s)
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.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ☐ Individual
☐ Corporate Officer
Title(s) Title or Type of Document
☐ Partner(s) Limited
General Number of Pages
☐ Attorney-In-Fact
☐ Trustee(s)
☐ Guardian/Conservator Date of Document
☐ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached
4.B.2.1
Packet Pg. 383 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-12
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LABOR AND MATERIAL BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of San Jacinto (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:
___________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ________________________________________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission 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
4.B.2.1
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those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
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
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
4.B.2.1
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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 Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) appeared , who proved to me on the basis of satisfactory Name(s) of Signer(s)
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.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ☐ Individual
☐ Corporate Officer
Title(s) Title or Type of Document
☐ Partner(s) Limited
General Number of Pages
☐ Attorney-In-Fact
☐ Trustee(s)
☐ Guardian/Conservator Date of Document
☐ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
4.B.2.1
Packet Pg. 386 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment D-15
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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 Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) appeared , who proved to me on the basis of satisfactory Name(s) of Signer(s)
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.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ☐ Individual
☐ Corporate Officer
Title(s) Title or Type of Document
☐ Partner(s) Limited
General Number of Pages
☐ Attorney-In-Fact
☐ Trustee(s)
☐ Guardian/Conservator Date of Document
☐ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.
4.B.2.1
Packet Pg. 387 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment E-1
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GENERAL SPECIFICATIONS
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY AND EQUIPPING
OF THE NEW GRAND WELL
SCOPE OF WORK
The work to be done consists of furnishing all labor, materials, tools, equipment, and incidentals as required by the Plans (Appendix A), Specifications, and Contract Documents. The general description of work is:
The scope of work includes the construction of the Grand Treatment Plant and all associated tasks required to make it fully operational, as well as the equipping of the existing Grand Well. All work shall be performed in accordance with the project plans and specifications.
No overnight closures will be allowed. Access to existing residential and farms shall be maintained at all times.
LOCATION OF WORK
The work will be performed at 901 Industrial Way San Jacinto CA, 92582, commonly referred to as the Grand Well site.
TIME OF 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 400 working days from the commencement date stated in the Notice to Proceed, herein after the Contract Time.
The Contractor shall comply with the prosecution of work as specified in Section 6-2 of these Special Provisions; otherwise, liquidated damages will be applicable for each individual item of work.
HOURS OF WORK
The Contractor shall restrict working hours to 7:00 AM to 5:00 PM, Monday through Friday, excluding all holidays. No work shall be performed on holidays observed by the City without prior approval.
LIQUIDATED DAMAGES
It is understood that the City will suffer damage, and that it is and will be difficult and/or impossible to ascertain and determine the actual damage which the City will sustain in the event of and by reason of Contractor’s failure to complete the work within the specified time for completion. It is therefore agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated for each day of delay until the work is fully
4.B.2.1
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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. Accordingly, as provided in Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $1,000.00 for each and every calendar day of delay in completing the Work 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 the Liquidated Damages are not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract.
PAYMENT FOR DELAYS
Consistent with Public Contract Code Section 7102, the Contractor will be compensated for damages incurred due to delays 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 to determine. As such, for each calendar day in excess of the time specified for completion of the work, as adjusted in accordance with Section 6-6 of the Special Provisions, the City shall pay to the Contractor agreed and negotiated amount as determined by City. 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.
TRAFFIC REQUIREMENTS
The Contractor’s attention is directed to Section SP-1-7.10 of the Standard Provisions for the traffic requirements and SP-4-4.00 for the traffic control requirements. Unless otherwise specified, payment for furnishing all labor, materials, equipment, and incidental for providing and maintaining traffic control shall be considered as included in the lump sum bid items and no additional compensation will be made therefore. On residential streets at least one lane shall be made available to the public. The Contractor shall offer the least obstruction and inconvenience to public traffic and residential driveways in the construction area. Access to all driveways shall be available by 5:00 pm Monday through Friday.
PERMITS
The Contractor shall be solely responsible for obtaining and paying for any permits that may be required by outside agencies, including Business License for all subs.
STANDARD SPECIFICATIONS AND PLANS
The Standard Specifications of the City are contained in the 2015 Edition of the Standard Specifications for Public Works Construction, including any supplements, as written and promulgated by Public Works Standards, Inc. Copies of these Standard Specifications are available from the publisher, BNI Building News, 990 Park Center Drive, Suite E, Vista, California 92081; telephone: 760-734-1113.
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EMERGENCY INFORMATION
The names, addresses, and telephone numbers of the Contractor and subcontractors, or their representatives, shall be filed with the Engineer and the County Sheriff’s Department or the City Police Department prior to beginning work.
ANTITRUST CLAIMS
The Contractor’s attention is directed to the following provisions of California Government Code, Sections 4552, 4553 and 4554, which shall be applicable to the Contractor and his or her Subcontractors:
In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the Contractor or Subcontractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials by the Contractor or Subcontractor pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor, without further acknowledgement by the parties.
If the City receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the City any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assigner but were not paid by the City as part of the bid price, less the expenses incurred in obtaining that portion of the recovery.
Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action.
GIS COMPATIBILITY
GIS Data Deliverable Requirements
Data Schema: Prior to creating GIS data, the vendor must obtain specific data schema requirements from the City.
Format: ArcGIS Geodatabase (preferred) or Shapefiles.
Horizontal Projection: NAD 1983 StatePlane California VI FIPS 0406 (US Feet) EPSG 2230.
Metadata: Description, summary, and tags are required for all GIS datasets.
Approval: City’s GIS team must review all GIS products prior to City’s acceptance.
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Surveys: The City requires all CAD drawings and/or DWG files be delivered in a georeferenced format. The horizontal projection must the State Plane Coordinate System (CCS83, Zone 11) and the vertical datum must be NAVD88 datum. All survey points are the within ½ (one half) inch horizontal accuracy and 1-1/4 (one and one quarter) inch vertical accuracy. If site conditions preclude this level of accuracy, Contractor must contact the City prior to commencement of work.
General CAD Drawings: City requires all CAD drawings and/or DWG files to be delivered in a georeferenced format and in Engineering Scale (not Architectural Scale). The horizontal projection must be State Plane Coordinate System (CCS83, Zone 11) and the vertical datum must be NAVD88 datum. “As-built” or any design changes are to be recorded and reported to the City. These changes must be reflected in post-production GIS products ArcGIS Online: If GIS deliverables are exchanged through ESRI’s ArcGIS Online platform, access to hosted layers or apps are to be made available to City’s GIS Coordinator. ArcGIS username fkhan_sanjacintoca.
PREVAILING WAGES
Any contract entered into pursuant to this notice will incorporate the provisions of the State Labor Code. Pursuant to the provisions of the California Labor Code Section 1773.2, the minimum prevailing rate of per diem wages for each craft, classification, or type of worker needed to execute the Contract shall be those determined by the Director of Industrial Relations of the State of California, which are on file in the Public Works Department at City Hall and are available to any interested party on request. The Contractor shall have affirmative obligations to verify that all subcontractors are currently and validly registered with the Department of Industrial Relations and shall not permit a subcontractor of any tier to perform work on the project without first verifying the subcontractor’s registration. The Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain valid registration for the duration of the Project.
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. 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 on a weekly basis and in the format prescribed by the Department of Industrial Relations, which may include electronic submission. Contractor shall comply with all requirements and regulations from the Department of Industrial Relations relating to labor compliance monitoring and enforcement.
Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its
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officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
TRENCHING REQUIREMENTS
The Contractor shall comply with the following provisions of the Labor Code, to the extent applicable:
Labor Code Section 6705
No contract for public works involving an estimated expenditure in excess of twenty-five thousand dollars ($25,000), for the excavation of any trench or trenches five feet or more in depth, shall be awarded unless it contains a clause requiring submission by the contractor and acceptance by the awarding body or by a registered civil or structural engineer, employed by the awarding body, to whom authority to accept has been delegated, in advance of excavation, of a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
Nothing in this section shall be deemed to allow the use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders.
Nothing in this section shall be construed to impose tort liability on the awarding body or any of its employees.
The terms “public works” and “awarding body”, as used in this section, shall have the same meaning as in Sections 1720 and 1722, respectively, of the Labor Code.
Labor Code Section 7104
Any public works contract of a local public entity which involves digging trenches or other excavations that extend deeper than four feet below the surface shall contain a clause which provides the following:
(a) That the contractor shall promptly, and before the following conditions are disturbed, notify the local public entity, in writing, of any:
(1) 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. (2) Subsurface or latent physical conditions at the site differing from those indicated by information about the site made available to bidders prior to the deadline for submitting bids. (3) 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.
(b) That the local public entity shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the 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 the contract. (c) That, in the event that a dispute arises between the local public entity and the contractor 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. The contractor
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shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.
PROVISIONS REQUIRED BY LAW DEEMED INSERTED
Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein, and the contract shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either party, the contract shall forthwith be physically amended to make such insertion or correction.
CALIFORNIA AIR RESOURCES BOARD REGULATIONS
To the extent applicable, Contractor, shall comply, and shall ensure all Subcontractors comply, with all requirements of the most current version of the California Air Resources Board (“CARB”) including, without limitation, all applicable terms of Title 13, California Code of Regulations Division 3, Chapter 9 and all pending amendments (“Regulation”).
Throughout the Project, and for three (3) years thereafter, Contractor shall make available for inspection and copying any and all documents or information associated with Contractor’s and subcontractors’ fleet including, without limitation, the CRCs, fuel/refueling records, maintenance records, emissions records, and any other information the Contractor is required to produce, keep or maintain pursuant to the Regulation upon two (2) calendar days’ notice from City.
Contractor shall be solely liable for any and all costs associated with complying with the Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation. Contractor shall defend, indemnify and hold harmless the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Regulation.
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GENERAL PROVISIONS
SECTION 1 - TERMS, DEFINITIONS, ABBREVIATIONS AND SYMBOLS 1-1 DEFINITIONS
AGENCY: City of San Jacinto
Board: City Council of the City of San Jacinto
Caltrans or Department: State of California, Department of Transportation County: Riverside
Chief Operator (Water) Water Utilities Superintendent
Engineer: Civiltec
Laboratory: The laboratory to be designated by the Engineer to test materials and work involved in the contract.
Notice to Contractors: Notice Inviting Bids
Federal: United States of America
State: State of California
Contractor: The word Contractor is supplemented by adding thereto the following:
The term Contractor means the Contractor as defined
herein or his Authorized Representative.
SECTION 2 - SCOPE AND CONTROL OF THE WORK
2-1 AWARD AND EXECUTION OF CONTRACT
Within 10working days after the date of the AGENCY’S Notice of Award, the Contractor shall execute and return the following Contract Documents to the AGENCY:
Agency's Contract Agreement
Faithful Performance Bond
Labor and Material Bond
Comprehensive General Liability Insurance Certificate & Endorsements Auto Insurance Certificate & Endorsement
Worker’s Compensation Insurance Certificate
W-9 Form
City Business License issued by the AGENCY (no cost to Contractor) Encroachment Permit issued by the AGENCY (no cost to Contractor) Failure to comply with the above will result in annulment of the award and forfeiture of the Proposal Guarantee.
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The Contract Agreement shall not be considered binding upon the AGENCY until executed by the authorized AGENCY officials.
A corporation to which an award is made may be required, before the Contract Agreement is executed by the AGENCY, to furnish evidence of its corporate existence, of its right to enter into contracts in the State of California, and that the officers signing the Contract and bonds for the corporation have the authority to do so.
2-2 SUBCONTRACTS
2-2.1 General.
Prior to Award of Contract, the otherwise qualifying low bidder shall submit a list of all subcontractors intended to perform work on the project. This list shall include the name and location of the place of business each subcontractor who will perform work or labor or render service to the prime contractor in or about the construction of the work or improvement, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the Plans and Specifications, in an amount in excess of one-half of one percent of the prime contractors total bid. The prime contractor shall provide a description by bid item number or otherwise fully designated the portion of work to be performed by each subcontractor. 2-3 CONTRACT BONDS
The Material and Labor Bond shall remain in force until 60 days after the date of recordation of the Notice of Completion.
The Contractor shall provide the following supplemental information for each bond as required herein.
a. Surety company or agency name providing bond.
b. Name of agent.
c. The business address of the surety company and/or agency and agent. d. The business telephone number of the surety company and/or agency and agent.
All sureties shall be admitted surety insurers authorized to do business in the State of California by the Insurance Commissioner. Should the City object to the sufficiency of the insurer or surety the Contractor shall immediately deliver to the City the following documents:
a. A copy of the “Certificate of Authority” of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California; or
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b. A certificate from the Clerk of the County of Riverside that the “Certificate of Authority” of the Insurer or Surety has not been surrendered, revoked, canceled, annulled, or suspended or, in the event the “Certificate of Authority” of the Insurer or Surety has been suspended, that renewed authority has been granted.
Failure of Contractor to timely deliver these documents shall require the City to refrain from entering the agreement, as Contractor will be deemed to have failed to ensure the sufficiency of the Insurer or Surety to the satisfaction of the City, as required by the provisions of the Bond and Undertaking Law, Code of Civil Procedure 995.660.
2-4 PLANS AND SPECIFICATIONS
2-4.1 General. The Contractor shall maintain a control set of Plans and Specifications on the project site at all times. All final locations determined in the field, and any deviations from the Plans and Specifications, shall be marked in red on this control set to show the as-built conditions. Upon completion of all work, the Contractor shall return the control set to the Engineer. Final payment will not be made until this requirement is met.
2-4.2 Examination of Contract Documents. The bidder shall examine carefully the entire site of the work, including but not restricted to the conditions and encumbrances related thereto, the Plans and Specifications, and the Proposal and Contract forms therefore. The submission of a bid shall be conclusive evidence that the bidder has investigated and is satisfied as to the conditions to be encountered, as to the character, quality, and scope of the work to be performed, the quantities of material to be furnished and as to the requirements of the proposal, Plans, Specifications, and the Contract. 2-5 SURVEYING
2-9.3 Survey Service. Subsection 2-9.4, Survey Service is amended by adding thereto the following:
The Contractor shall be responsible for providing survey service including, but not limited to, survey control, construction staking, and cut sheets, to complete the scope of work.
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2-6 INSPECTION
Inspectors work from 7:00 a.m. until 5:00 p.m., Monday through Friday.
Inspections outside these hours may be available through appointments approved by City Engineer only, and inspector's time will be billed to the contractor at the pre-determined rate. This does not apply for work the plans specifically call out to take place outside of these hours.
SECTION 3 - CHANGES IN WORK
3-1 EXTRA WORK
3.1.1 Extra Work: Definition and Notice
When work is not covered by the Contract Unit Prices, Stipulated Unit Prices or is outside the scope of work on the Contract, such work shall be classified as Extra Work. Written notice of such Extra Work shall be provided by the Contractor to the Agency as follows:
If due to unknown subsurface or latent physical conditions, within seven (7) working days of the discovery of such Extra Work, or prior to the alterations of the conditions, whichever is earlier.
If due to any reason, within seven (7) working days of the discovery of Extra Work.
Such written notice shall describe the Extra Work, shall specify when the Contractor became aware of the Extra Work and shall describe why the work qualifies as Extra Work. Such written notice shall be accompanied by all thenavailable information and documents supporting the Contractor’s position that the work qualifies as Extra Work. As updated or additional information becomes available to the Contractor, it shall provide such information to the Agency.
If Contractor believes a price adjustment is warranted due to Extra Work, then within twenty-one (21) days from providing the notice of Extra Work and prior to incurring any expense, Contractor shall submit a request for a change order. The change order request shall identify the amount of the adjustment and contain all supporting documentation for the proposed changes, including but not limited to data showing the hours worked, cost estimates, invoices, and schedules. If any added costs or information cannot be determined at the time of the change order request, Contractor shall identify the reason the costs or information cannot be determined. For any costs or information that cannot be determined at the time Contractor submits the change order request, Contractor shall submit to City notice of the costs or information and all supporting documentation within three (3) days of when the costs or information become subject to determination.
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Failure by Contractor to provide timely notice and request where required by this article shall constitute a waiver by Contractor of the right to a price adjustment on account of such circumstances and a waiver of any right to further recourse or recovery by reason by means of the claims dispute resolution process or by any other legal process otherwise provided for under applicable laws.
If the request for Extra Work includes a request for an extension of time and/or a payment for delay, then Contractor shall comply with section 6-6. A request for an extension of time or payment for delay that is related to Extra Work must be made concurrently with the change order request for Extra Work or Contractor will be deemed to waive its right to any extension of time or payment for delay. 3-1.2 Payment.
3-3.2.1 General. Payment for extra work by cost plus a differential for labor, materials and equipment shall be considered payment under force account basis. The labor, materials and equipment provided shall be subject to the approval of the Engineer and Water Utilities Superintendent and compensation will be determined as provided herein. 3-3.2.2 Basis of Establishing Costs.
Subsection 3-3.2.2(a) is hereby deleted and replaced with the following:
3-3.2.2.(a) Labor.
The Contractor will be paid the cost of labor for the workmen, used in the actual and direct performance of the work. No payment shall be made for any direct or indirect supervision by Contractor personnel. Direct and indirect supervision shall be considered as included in the overhead and mark up and no additional compensation will be made therefor. The cost of labor, whether the employer is the Contractor, subcontractor or other forces will be the sum of the following:
3-3.2.2.(a).1 Actual Wages. The actual wages paid shall include any employer payments to or on behalf of the workmen for health and welfare, pension, vacation and similar purposes.
3-3.2.2.(a).2 Labor Surcharge. To the actual wages, as defined in Section 3-3.2.2.(a).1, will be added a labor surcharge set forth in the Department of Transportation publication entitled “Labor Surcharge and Equipment Rental Rates,” which is in effect on the date upon which the work is accomplished and which is a part of the contract. Said labor surcharge shall constitute full compensation for all payments imposed by State and Federal laws and for all other payments made to, or on behalf of, the
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workmen, other than actual wages as defined in Section 3-
3.2.2.(a).1 and subsistence and travel allowance as specified in Section 3-3.2.2.(a).3.
3-3.2.2.(a).3 Subsistence and Travel Allowance. The actual subsistence and travel allowance paid to such workmen.
The first sentence of Subsection 3-3.2.2(c) is hereby deleted and replaced with the following:
1. No payment will be made for the use of tools which
have a replacement value of $1,000 or less.
3-3.2.3 Markup.
(a) Work by Contractor. The following percentage shall be added to the Contractor’s costs and shall constitute the markup for all supervision and management (direct or
indirect); home office and field overhead and all profits, which shall be deemed to include all items of expense not specifically designated as cost or equipment rental in
Sections 3-3.2.2(a) and 3-3.2.2(b), “Materials,” and 3-
3.2.2(c), “Equipment Rental.”
Labor 5
Materials 5
Equipment Rental 5
Other Items and Expenditures 5
To the sum of the costs and markups provided for in this subsection, a maximum of one percent (1%) for each
adjusted bond shall be added as compensation for bonding upon proof of actual payment to the sureties.
(b) Work by Subcontractor. When all or any part of the extra work is performed by a subcontractor, the markup
established in Subsection 3-3.2.3(a) shall be applied to the subcontractor’s actual cost of such work, to which a
markup of 5 percent of the subcontracted portion of the extra work may be added by the Contractor.
3-6 NOTICE TO SURETIES
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The Contractor shall notify his sureties and the carriers of the insurance furnished and maintained by him of any changes affecting the general scope of the work or change in the contract price, or time, or a combination thereof, and the amount of the applicable bonds and the coverage of the insurance shall be adjusted accordingly. The Contractor shall furnish proof of such adjustments to the owner.
SECTION 4 - CONTROL OF MATERIALS
4-1 MATERIALS AND WORKMANSHIP
4-1.1 General. The Contractor and all subcontractors, suppliers, and vendors, shall guarantee that the entire work will meet all requirements of this contract as to the quality of materials, equipment, and workmanship. The Contractor, at no cost to the AGENCY, shall make any repairs or replacements made necessary by defects in materials, equipment, or workmanship that become evident within two (2) years after the date of Final Completion and Acceptance. Within this 2-year period, the Contractor shall also restore to full compliance with requirements of this contract any portion of the work, which is found to not meet those requirements. The Contractor shall hold the AGENCY harmless from claims of any kind arising from damages due to said defects or noncompliance. The Contractor shall make all repairs, replacements, and restorations within 14 days after the date of the AGENCY’S written notice. 4-1.2 Test of Materials. Except as specified elsewhere, the AGENCY will bear the cost of testing material and/or workmanship which meet or exceed the requirements indicated in the Standard Specifications and the Special Provisions.
The cost of all other tests, including the retesting of material or workmanship that fails to pass the first test, shall be borne by the Contractor. 4-1.3 Certification. A Certificate of Compliance shall be furnished prior to the use of any materials for which these specifications or special provisions require that such a certificate be furnished. In addition, when authorized in these specifications or in the special provisions, the AGENCY may permit the use of certain materials or assemblies prior to sampling and testing if accompanied by a Certificate of Compliance. The certificate shall be signed by the manufacturer of the material or the manufacturer of assembled materials and shall state that the materials involved comply in all respects with the requirements of the Specifications. A Certificate of Compliance shall be furnished with each lot of material delivered to the work and the lot so certified shall be clearly identified in the certificate.
All materials used based on a Certificate of Compliance may be sampled and tested at any time. The fact that material is used on the basis of a Certificate of Compliance shall not relieve the Contractor of responsibility for incorporating material in the work which conforms to the requirements of the Plans and
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Specifications, and any such material not conforming to such requirements will be subject to rejection whether in place or not.
The AGENCY reserves the right to refuse to permit the use of material on the basis of Certificate of Compliance. The form of the Certificate of Compliance and its disposition shall be as directed by the Engineer.
4-1.4 Trade Names or Equals. Approval of equipment and materials offered as equivalents to those specified must be obtained prior to the opening of bids as set forth in the Instruction to Bidders.
SECTION 5 – UTILITIES
5-1 LOCATION.
The Contractor shall comply with the provisions of Section 4216 of the California Government Code, which requires the Contractor to contact Underground Service Alert of Southern California (USA) at 1(800) 422-4133 at least 2 working days but not more than 14 calendar days prior to performing any excavation or drilling. Caltrans is not a member of this regional notification center. The Contractor shall contact Caltrans for the location of Caltrans' substructures when working in or near Caltrans' right-of-way.
If practical, the Contractor shall delineate with white paint or other suitable markings any area to be excavated. If the Contractor determines that this is not practical because the markings may confuse or mislead motorists or for other reasons, it shall contact USA to advise the utility owners that the area to be excavated will be identified in another manner sufficient to enable the utility owner to determine the area of the excavation.
Where underground distribution conduits for water, gas, sewer, electric power, telephone, cable television, or other utilities are present, the Contractor, for the purpose of preparing a bid, shall assume that every property parcel will be served by a service connection for each type of utility.
The Agency may arrange for and conduct a preconstruction meeting between the Contractor, the Engineer, and the utility companies to discuss scheduling, coordination of any required utility relocations, and the protection of existing utilities. The Contractor shall attend any preconstruction meeting scheduled by the Agency and shall cooperate with all utility owners performing utility relocation or installation work on the Work site.
Where water lines exist, at each angle point, cross connection and "T" connection, the Contractor, for bidding purposes, shall assume the existence of a concrete thrust block located such as to resolve thrust loads. Any and all costs resulting from the existence of a thrust block, including costs for its removal and restoration, if required, shall be deemed as being included in the prices bid for the various items of work.
The Contractor shall determine the location and depth of all utilities, including service connections, which have been marked by the respective utility owner and which may affect or be affected by its operations prior to the start of any mainline or lateral trench construction. Any utility found to be mis-marked (not within 2') as indicated) must be located by the utility owner.
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The Engineer OR AGENCY may, at their discretion, require one or more exploratory excavations to be dug prior to any trenching to be performed, or in advance of other construction operations to confirm the location of utilities. Exploratory excavations ordered by the Engineer or AGENCY shall be paid for at the unit bid price for additional pothole, including backfilling and restoration of pavement or concrete.
The commencement of exploratory excavations for storm drain and sewer construction shall be in accordance with Section 6-1, as amended.
The Contractor shall determine the location of all subsurface installations, except for non-pressurized sewer lines and storm drains by excavating with hand tools within the approximate area of subsurface installations as determined by the field markings provided by the utility owners before using any power-operated or power-driven excavation or boring equipment within the approximate location of the subsurface installation. However, power-operated or power-driven excavating or boring equipment may be used for the removal of any existing pavement if there are no subsurface installations contained in the pavement. If mutually agreed to by the utility owner and the Contractor, the Contractor may utilize power-operated or power-driven excavating or boring equipment within the approximate location of a subsurface installation and to any depth. After the utility has been located, its position shall be recorded by the Contractor. The hole shall then be backfilled and any pavement or concrete removed shall be restored in accordance with Subsection 306-1.3, as amended and Subsection 306-1.5, as amended. The Contractor shall submit copies of the recorded utility information to the Engineer.
If no pay item is specifically provided in the Contract of bid items for utility location work, full compensation for such work shall be considered as included in the prices bid for other items of work.
5-2 RELOCATION
When not otherwise required by the Plans and Specifications and when directed by the Engineer, the Contractor shall arrange for the relocation of service connections, as necessary, between the meter and property line, or between the meter and limits of construction.
5-3 DELAYS
The Contractor will not be entitled to damages or additional payment for delays attributable to utility relocations or alterations if correctly located, noted and completed in accordance with Subsection 5-1. The Contractor shall ascertain further detailed information to coordinate his work to this effect.
All notification of utility companies shall be by the Engineer based on Contractor’s request as submitted to the Engineer at least 24 hours in advance of the needed work.
Any costs for delay of the Contractor of utility companies in this regard shall be assigned
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to the Contractor, if these costs are a result of the Contractor’s request being untimely in any respect, except for the utility company not responding at their agreed time.
SECTION 6 - PROSECUTION, PROGRESS, AND ACCEPTANCE OF THE WORK 6-1 CONSTRUCTION SCHEDULE AND COMMENCEMENT OF WORK
The Contractor’s proposed construction schedule and traffic control plans shall be submitted to the Engineer within 10-working days after the date of the AGENCY’S execution of the Contract Agreement. The schedule shall be supported by written statements from each supplier of materials or equipment indicating that all orders have been placed and acknowledged and setting forth the dates that each item will be delivered.
The construction schedule shall use computerized Critical Path Method (CPM) scheduling and shall submit it for the City’s review. 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 allow enough time for inclement weather. The 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. The schedule should clearly state the number of staff to be used on each daily segment of the Work. 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 or payments for delay (reverse liquidated damages), the Contract Time shall control and may only be altered by a duly authorized change order.
Prior to issuing the Notice to Proceed with the Work, the Engineer will schedule a preconstruction meeting with the Contractor to review the proposed construction schedule and delivery dates, arrange utility coordination, discuss construction methods, and clarify inspection procedures.
The Contractor shall submit progress reports to the Engineer by the 10th day of each month. The report shall include an updated Construction Schedule. Any deviations from the original schedule shall be explained. Progress payments will be withheld pending receipt of any outstanding reports. Failure to submit the updated progress report may result in the withholding of ten percent (10%) of the progress payment.
The receipt, review, or acceptance of any schedules by the City shall not in any way relieve the Contractor of its obligations under the Contract Documents, nor shall it modify the Contract Time. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for the required quality and timely completion of the Work. Contractor’s failure to incorporate all elements of Work or any inaccuracy in the schedule shall not excuse the Contractor from performing all of the required Work within the Contract Time.
6-2 DELAYS AND EXTENSIONS OF TIME
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If the Contractor desires payment for a delay as specified in Subsection 6-6.3 of the Standard Specifications, he shall notify the Engineer, in writing, within 7 days of beginning of the delay. If the Contractor desires an extension of time as specified in Subsection 6-6.2 of the Standards Specifications, he shall notify the Engineer, in writing, within 7 days of beginning of the delay. Such notice shall specify the nature of the delay, cause, and the conditions which set the beginning time for the delay.
If the Contractor desires an extension of time or payment for a delay, or both, then within twenty-one (21) days from providing the notice of delay Contractor shall submit a change order request for an adjustment to the price and/or time.
The change order Request shall identify the amount of the adjustment to the price or the time, or both, and shall contain all supporting documentation for the proposed changes, including but not limited to a time impact analysis showing the impact of the underlying facts and circumstances to the critical path. City may request, 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. If any added costs or information cannot be determined at the time of the change order request, Contractor shall identify the reason the costs or information cannot be determined. For any costs or information that cannot be determined at the time Contractor submits the change order request, Contractor shall submit to City notice of the costs or information and all supporting documentation within three (3) days of when the costs or information become subject to determination.
Requests for an extension of time or payment for a delay must be made concurrently with any request for a change order related to Extra Work.
Requests for additional adjustments to time after a change order request for payment for Extra Work is submitted will be invalid, and Contractor will be deemed to have waived the right to a time extension or payment for delay.
Failure by Contractor to provide timely notice and request where required by this article shall constitute a waiver by contractor of the right to an extension of time or payment for a delay, and shall constitute a waiver of any right to further recourse or recovery by means of the claims dispute resolution process or by any other legal process otherwise provided for under applicable laws. 6-3 TIME OF COMPLETION
6-3.1 General. The time for completion shall be as noted in the General Specifications. The contract time will continue to run until all contract and punch list work are completed.
6-3.2 Working Day. In general, the Contractor’s activities shall be confined to the hours between 7:00 a.m. and 5:00 p.m., Monday through Friday, excluding
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holidays. Days designated as holidays by the AGENCY include: Memorial Day; Independence Day; Labor Day; Columbus Day; Veteran’s Day; Thanksgiving Day; Day After Thanksgiving; Christmas Eve; Christmas Day; New Years’ Eve; New Years’ Day; Martin Luther King Day; and Presidents’ Day. No work shall take place within residential districts on Thanksgiving week and Christmas week.
Deviation from these hours will not be permitted without the prior consent of the City, except in emergencies involving immediate hazard to persons or property.
In the event of either a requested or emergency deviation, inspection service fees will be charged against the Contractor. The service fees will be calculated at overtime rates, including benefits, overhead, and travel time. The service fees will be deducted from any amounts due the Contractor.
6-4 LIQUIDATED DAMAGES
The liquidated damages value and is hereby amended to be the amount set forth in the General Specifications. The amount for payment of agency-caused delays (reverse liquidated damages) shall be the amount set forth in the General Specifications.
SECTION 7 - RESPONSIBILITIES OF THE CONTRACTOR
7-1 CONTRACTOR’S EQUIPMENT AND FACILITIES
A noise level limit of 86 dB at a distance of 50 feet shall apply to all construction equipment on or related to the job whether owned by the Contractor or not. The use of excessively loud warning signals shall be avoided, except in those cases required for the protection of personnel.
The staging location(s) for equipment and material shall be subject to the approval of the Engineer or City. No additional cost will be allowed in the event that the Contractor is requested to move his staging area to a different location, regardless of the number of moves. Contractor shall be solely responsible for obtaining and/or paying for any staging area(s) outside of the public right-of-way.
7-2 LABOR
7-2.1 Laws. The Contractor, and all subcontractors, suppliers and vendors, shall comply with all AGENCY, State and Federal orders regarding affirmative action to ensure equal employment opportunities and fair employment practices.
Failure to file any report due under said orders will result in suspension of periodic progress payments.
The Contractor shall ensure unlimited access to the job site for all equal employment opportunity compliance officers.
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7-3 LIABILITY INSURANCE
Contractor shall provide the types and amounts of insurance required in the Instructions to Bidders, which shall conform to the following requirements:
PROOF OF INSURANCE. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for general liability and workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
DURATION OF COVERAGE. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Contractor, his agents, representatives, employees or subcontractors. Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. City and its officers, officials, employees, agents, and volunteers shall continue as additional insureds under such policies.
PRIMARY/NONCONTRIBUTING. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
CITY’S RIGHTS OF ENFORCEMENT. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Agreement.
ACCEPTABLE INSURERS. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s risk manager.
WAIVER OF SUBROGATION. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives
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its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subcontractors.
ENFORCEMENT OF CONTRACT PROVISIONS (NON-ESTOPPEL). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
REQUIREMENTS NOT LIMITING. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
NOTICE OF CANCELLATION. Contractor agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
ADDITIONAL INSURED STATUS. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
PROHIBITION OF UNDISCLOSED COVERAGE LIMITATIONS. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
SEPARATION OF INSUREDS. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
PASS THROUGH CLAUSE. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.
AGENCY’S RIGHT TO REVISE REQUIREMENTS. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor a ninety (90) day advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor’s compensation.
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SELF-INSURED RETENTIONS. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
TIMELY NOTICE OF CLAIMS. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
ADDITIONAL INSURANCE. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 7-4 PERMITS
Prior to the start of any work, the Contractor shall take out the applicable AGENCY permits and make arrangements for AGENCY inspections. The AGENCY will issue the permits at no charge to the Contractor. The Contractor shall be responsible for obtaining and paying for any outside agency permits. The Contractor and all subcontractors shall be licensed in accordance with State Business and Professions Code. The Contractor shall also obtain all other permits, licenses, inspections, certificates, or authorizations required by any governing body or entity.
The Contractor shall pay all cost incurred by the permit and license requirements. 7-5 PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS The Contractor shall relocate, repair, replace, or re-establish all existing improvements within the project limits which are not designated for removal (e.g., curbs, sidewalks, driveways, fences, walls, sprinkler systems, signs, utility installations, pavements, structures, etc.) which are damaged or removed as a result of his operations or as required by the Plans and Specifications.
Where existing traffic striping, pavement markings, and curb markings are damaged, or their reflectivity reduced by the Contractor’s operations, such striping or markings shall also be considered as existing improvements and the Contractor shall repaint or replace such improvements. Relocations, repairs, replacements, or re-establishments shall be at least equal to the existing improvements and shall match such improvements in finish and dimensions unless otherwise specified.
PROTECTION OF EXISTING TREES (PUBLIC AND PRIVATE). The Contractor shall be responsible for the construction work within the confines of the existing trees and shall provide all measures necessary to protect the trees. Subject to the approval of the Engineer, the Contractor may perform limited trimming/pruning/raising of trees in accordance with ANSI standards and/or industry practices and without any impacts to the trees. The raising or trimming of any tree shall be limited to a maximum height of ten (10) feet or less. If after the trimming, trees are still impacting Contractor’s work,
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Contractor must still accomplish the work and no additional compensation shall be paid.
The Contractor shall notify the City five (5) working days in advance for any tree work.
All tree work must be performed by a licensed tree contractor.
Tree roots within the construction area shall be treated as if they were underground utilities and the Contractor shall be responsible for potholing the roots. The Contractor shall notify the City five (5) working days in advance for the City’s arborist to determine whether the roots are to be protected or removed. The Contractor shall be responsible for providing all measures necessary to protect roots that are to remain.
All work necessary to protect the existing trees shall be considered as included in the various bid items and no additional compensation will be made therefore.
FOR TREE DAMAGES CAUSED BY THE CONTRACTOR’S OPERATIONS, THE CONTRACTOR SHALL PAY TO THE CITY, OR HAVE WITHHELD FROM MONIES DUE: (I) THE EQUIVALENT VALUE OF THE EXISTING TREE, AS DETERMINED BY THE CITY’S ARBORIST AND (II) ALL COSTS TO REMOVE AND REPLACE THE TREE.
Should there be other provisions in the Contract documents regarding the protection of trees that conflict with these provisions, then the most restrictive of the provisions shall apply.
FIRE PROTECTION. If access will be blocked completely during construction and that the staging of a fire engine, as determined by the Engineer, is necessary to maintain fire protection, the Contractor shall provide 72-hour advance written notice for coordination with the Fire Department. The Contractor shall allow a one-hour window for the arrival of the fire engine. If there is a delay in the arrival of the fire engine, the Contractor will be granted an extension of time, but no additional compensation will be made therefor.
At the end of each day, the Contractor shall provide written notice of whether the fire engine will be required for the next day.
The Contractor shall provide one person solely dedicated to guarding the fire engine for the duration of the construction. The cost of providing this service shall be considered as included in the various bid items and no additional compensation will be made therefor.
All costs to the Contractor for protecting, removing, restoring, relocating, repairing, replacing, or re-establishing existing improvements including tree and fire protection shall be considered as included in the various bid items and no additional compensation will be made therefor.
7-6 PUBLIC CONVENIENCE AND SAFETY
7-6.1 Traffic and Access.
The Contractor shall notify the occupants of all affected properties at least 48 hours prior to any temporary obstruction of access. Vehicular access to property line shall be maintained, except as required for construction for a reasonable
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period of time. No overnight closure of any driveway will be allowed, except as permitted by the Engineer.
For residential streets at least one 12-foot-wide traffic lane shall be provided, except as permitted by the Engineer. The traffic lanes shall be maintained on pavement and shall remain unobstructed.
Clearances from traffic lanes shall be 5 feet to the edge of any excavation and 2 feet to the face of any curb, pole, barricade, delineator, or other vertical obstruction.
One 4-foot-wide paved pedestrian walkway shall be maintained in the parkway area on one side of the street. The clearance from the pedestrian walkway to any traffic lane shall be 5 feet unless an approved barrier is provided. 7-6.2 Street Closures, Detours, Barricades.
City of San Jacinto TRAFFIC CONTROL REQUIREMENTS, hereby referenced and made a part of these Contract Documents.
Street closures will not be allowed, except as specifically permitted by the Engineer and AGENCY.
A minimum of two (2) weeks prior to start of work, the Contractor shall submit traffic control and detour plans signed and stamped by a Traffic Engineer as directed by the Engineer to the Engineer for review. The Notice to Proceed will not be issued until a satisfactory Traffic Control Plan is received by the Engineer.
Lane transitions shall conform to the Caltrans Traffic Manual, Section 5-08.4, “Transition Area.”
Temporary traffic channelization shall be accomplished with barricades or delineators. Temporary striping will not be allowed unless specifically permitted by the Engineer. The Contractor shall prepare any plans that may be required for temporary striping to the satisfaction of the Engineer. In no event will temporary striping be allowed on finished pavement surfaces which are to remain.
The Contractor shall schedule an employee to police the temporary delineators and barricades within the travel way during weekday, non-working hours and over Saturdays, Sundays, and holidays. Any corrective work required to be done by AGENCY forces shall be back charged to the Contractor based on the actual costs, plus any AGENCY overhead and withheld from the final payment.
Unless otherwise specified, all costs associated with the requirements of this Section shall be considered as included in the various bid items and no additional costs will be made therefore.
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7-6.3 Protection of the Public.
It is part of the service required of the Contractor to make whatever provisions are necessary to protect the public. The Contractor shall use foresight and shall take such steps and precautions as his operations warrant to protect the public from danger, loss of life or loss of property, which would result from interruption or contamination of public water supply, interruption of other public service, or from the failure of partly completed work or partially removed facilities. Unusual conditions may arise on the work which will require that immediate and unusual provisions be made to protect the public from danger or loss, or damage to life and property, due directly or indirectly to prosecution of work under this contract.
Whenever, in the opinion of the Engineer or AGENCY, an emergency exists against which the Contractor has not taken sufficient precaution for the public safety, protection of utilities and protection of adjacent structures or property, which may be damaged by the Contractor’s operations and when, in the opinion of the Engineer, immediate action shall be considered necessary in order to protect the public or property due to the Contractor’s operations under this Contract, the Engineer will order the Contractor to provide a remedy for the unsafe condition. If the Contractor fails to act on the situation within a reasonable time period, the Engineer may provide suitable protection to said interests by causing such work to be done and material to be furnished as, in the opinion of the Engineer, may seem reasonable and necessary.
The cost and expense of said labor and material, together with the cost and expense of such repairs as are deemed necessary, shall be borne by the Contractor. All expenses incurred by the AGENCY for emergency repairs will be deducted from the progress payments and the final payment due to the Contractor. However, if the AGENCY does not take such remedial measures, the Contractor is not relieved of full responsibility for public safety. 7-6.4 Record Drawings. The Contractor shall always maintain at the job site a set of Plans and Specifications available for inspection by the Agency, exclusively, and so marked for recording all changes in the work. The Contractor shall be responsible for seeing that all changes are recorded on this set each day. The Contractor shall submit the updated record drawings to the Engineer for review by the 25th day of each month. Failure to update the record drawings may result in the withholding of ten percent (10%) of the progress payment. 7-6.5 Superintendent. The Contractor shall assign and designate a project superintendent responsible for the project who will be on the site full time and will be in charge of all subcontract work being supplied. No change in the project superintendent shall be allowed without obtaining written authorization from the City. Failure to comply with this provision may be grounds for the issuance of a “STOP WORK” order by the City at the sole expense of the Contractor. Additionally, failure to have the appropriate superintendent on the site will result in damage being sustained by the City. Such damages are, and
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will continue to be, impracticable and extremely difficult to determine. For each day such superintendent is not on the site, the Contractor shall pay the City, or have withheld from monies due it, the sum of $1,000. Execution of the Contract shall constitute agreement by the City and Contractor the $1,000 per day is the minimum value of the costs and actual damage caused by the failure of the Contractor to have the superintendent on site. Such sum is liquidated damages and shall not be construed as a penalty and may be deducted from payment due the Contractor if such absence occurs.
The Agency shall have sole discretion in the approval and /or removal of the Contractor’s personnel including, but not limited to, project manager, superintendent, and foreman.
7-6.6 Noise Abatement. The Contractor shall conform to the regulations set in the City of San Jacinto Municipal Code. All equipment used in the project must be the quietest available for this type of work, said equipment shall not exceed 90 dB measured at an unobstructed distance of 25 feet unless a permit and variance has been obtained from the Agency.
7-6.7 Cleanup and Dust Control. Throughout all phases of construction, including suspension of work, and until final acceptance of the project, the Contractor shall keep the work site clean and free from rubbish and debris. The Contractor shall also abate dust nuisance by cleaning and sweeping, or other means, as necessary.
Materials and equipment shall be removed from the site as soon as they are no longer necessary; and upon completion of the work and before final inspection, the entire worksite shall be cleared of equipment, unused materials, and rubbish so as to present a satisfactory clean and neat appearance. All cleanup costs shall be included in the Contractor's bid items.
Earth dams will not be permitted at catch basin openings, local depressions, or elsewhere, except in time of emergency. Temporary dams of sandbags, asphaltic concrete, or other acceptable material may be permitted when necessary to protect the work, provided their use does not create a hazard or nuisance to the public. Such dams shall be removed from the site as soon as their use is no longer necessary.
Failure of the Contractor to comply with the Engineer's cleanup orders may result in an order to suspend work until the condition is corrected. No additional compensation or extension of contract completion time will be allowed as a result of such suspension.
After completion of all other work on the project, and before making application for acceptance of the work, the Contractor shall clean the site of their operations, including all areas under the control of the City that have been used by the Contractor in connection with the work on the project, and shall remove all debris, surplus material, and equipment of whatever nature, unless otherwise
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approved by the City. Final acceptance of the work by the City will be withheld until the Contractor has satisfactorily complied with the foregoing requirements for final cleanup of the project site.
7-6.8 Water for Construction. The Contractor shall obtain any water necessary for construction at its own expense. The Contractor shall contact the water company for point(s) of connection and provide facilities for conveying the water from source designated by the water Company to points of use, as well as an eddy valve for each fire hydrant that is used as a water source. Deposit for each eddy valve shall be at the Contractor’s expense.
7-6.9 Survey Work and Preservation of Survey Monuments. The Contractor shall be responsible for the protection and preservation of existing, permanent survey monuments and benchmarks during construction. Damaged or lost monuments and bench marks shall be restored to existing condition by a Registered Civil Engineer or a Land Surveyor licensed by the State of California at no increase in cost to the City.
The Contractor, at its own expense, shall employ a qualified surveyor to perform all survey work required for the completion of the project as specified in the Plans and these Specifications, comply with the requirements as Section 8771 of the Land Surveyors Act as amended and submit the documents from the County Surveyor as proof of compliance to the City of San Jacinto. 7-6.10 Construction Waste Disposal Container. A waste disposal container shall be provided by the Contractor at the construction site for the duration of the construction.
7-6.11 Clean Water Act Compliance. The Contractor shall be responsible for complying with all regulations of the Clean Water Act, including those associated with the National Pollutant Elimination Discharge System Permit. The Contractor shall comply with the regulations set forth in the City of San Jacinto Municipal Code, and any other State and Federal programs targeted at preventing and eliminating storm water and urban runoff pollution and shall abide to those regulations throughout all phases of the project.
7-6.12 Demolition/Construction Waste Management Reports. The Contractor shall fill out and submit a demolition/construction Solid Waste Management and Recycling Plan (SWMRP-01) to the Engineer prior to removing any waste and other materials from job sites. If any material will be reused on site, the Contractor shall indicate the material and estimated quantity (in yards and/or tons).
7-6.13 Public Notice. The Contractor shall notify the residents, businesses and schools affected by construction in writing not less than seven (7) days in advance of commencement of construction or storage of material upon the streets. The notice shall include but not be limited to:
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A. The time and date of commencement.
B. A copy of the proposed construction schedule
C. Date of completion
D. Contact information for Contractor’s representative
In addition to the above, the Contractor shall notify all affected parties if work is to begin on new portions of the project as work proceeds, especially if the work involves changes to the traffic control system. A copy of this notification shall be approved by the City Engineer prior to its distribution.
The Contractor shall place “No Parking Anytime” signs 48 hours prior to construction at locations approved by the Engineer, said signs shall be of the size and type specified by the Engineer. The Contractor is also responsible for notifying all affected businesses and residents of his scheduled work.
Personal vehicles of the contractor’s employees shall not be parked on the traveled way at any time, including any section closed to public traffic. When entering or leaving roadways carrying public traffic, the contractor’s equipment, whether empty or loaded, shall in all cases yield to public traffic.
The following entities shall be notified at least seventy-two (72) hours in advance of any street closure or restriction to access by the contractor.
City of San Jacinto
Southern California Edison Company
Southern California Gas Company
Eastern Municipal Water District
Frontier
Spectrum
Sunesys
The local Police and Fire Departments, RTA Bus Service, local schools, CR&R Waste Management, and local post office shall also be notified. The contractor will provide evidence of notification to these agencies by completing the City of San Jacinto standard road/lane closure form.
SECTION 8 - FACILITIES FOR AGENCY PERSONNEL
No field offices for AGENCY personnel shall be required; however, the AGENCY personnel shall have the right to enter upon the project at all times and shall be admitted to the offices of the Contractor if so, provided by the Contractor for his own personnel.
SECTION 9 - MEASUREMENT AND PAYMENT
9-1 PAYMENT
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The total bid amount shall include all work as provided in the Contract Documents. Any work not specifically identified in the Bid Schedule but included in any portion of the Contract Document or Plans and Specifications shall be considered as included in the various bid items and no additional compensation will be made therefor.
9-1.1 Partial and Final Payment.
The closure date for the purpose of making partial progress payments will be the last day of each month. The Contractor shall prepare the approximate measurement of the work performed through the closure date and submit it to the Engineer and AGENCY for approval by the 7th day of the following month.
When the work is complete, the Engineer and AGENCY will determine the final quantities of the work performed and prepare the final progress payment report.
The work is considered to be complete and ready for acceptance by the City when all the contract and punch list work are completed.
Payments are commonly authorized and made within 30 days following the 10th day of the month in which the submitted invoice is approved by the Engineer.
However, payments will be withheld pending receipt of any outstanding reports required by the Contract Documents. In addition, the final progress payment will not be released until the Contractor returns the control set of Plans and Specifications showing the as-built conditions.
A full five percent (5%) retention will be deducted from all progress payments.
An additional ten percent (10%) for each of the following items may be deducted: failure to submit (i) an updated progress report or (ii) a monthly asbuilt mark-up, per Sections 6-1 and 7-10.6 of these Special Provisions. The final retention will be authorized for final payment no later than 60 days after the date of recordation of the Notice of Completion.
The Contractor, however, may receive interest on the retained amount, or receive the retained amount itself so long as the securities equivalent to the retained amounts are substituted with escrow holder approved by the AGENCY.
At the request and expense of the Contractor, retained amounts or securities equivalent to the retained amounts may be deposited with the State Treasurer or a State or Federally chartered bank approved by the AGENCY as the escrow agent, who shall return such monies or securities to the Contractor upon satisfactory completion of the contract.
Securities eligible for investment shall include those listed in Section 16430 of the State Government Code or bank or savings and loan certificates of deposit, interest bearing demand deposit accounts, and standby letters of credit.
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Any escrow agreement entered into shall be substantially similar to the form “Escrow Agreement for Security Deposits” in lieu of retention as contained in Section 4590 of Chapter 13 of Division 5 Title 1 of the Government Code. 9-1.2 Delivered Materials. Materials and equipment delivered but not incorporated into the work will not be included in the estimate for progress partial payment.
9-1.3 Mobilization. Payment for mobilization and demobilization shall be considered as included in the cost of the various bid items and no additional compensation will be made therefor.
SECTION 10 – CLAIM RESOLUTION PROCESS
Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes.
For purposes of these procedures, “Claim” means a separate demand by the Contractor, after the City has denied Contractor’s timely and duly made request payment for extra work and/or a time extension in accordance with the General Provisions (see sections 3-3 and 6-6), for (A) a time extension, (B) payment of money or damages arising from work done by or on behalf of the Contractor pursuant to the Contract for a public work and payment of which is not otherwise entitled to, or (C) an amount the payment of which is disputed by the City.
The following requirements apply to all contracts entered into after January 1, 1991, and all claims to which this section applies:
10-1 PREREQUISITES
Contractor shall timely comply with all notices and requests for Extra Work and extensions of time, including but not limited to all requirements of Section 3-3 and Section 6-6, as a prerequisite to filing any claim governed by this section. The failure to timely submit a notice or request payment for Extra Work or an extension of time, or to timely provide any other notice or request required by the Contract Documents shall constitute a waiver of the right to these procedures.
10-2 CLAIM SUBMITTAL
The claim shall be in writing and include the documents necessary to substantiate the claim.
Claims governed by this procedure must be filed on or before the date of final payment.
Nothing in this section is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims, including all requirements pertaining to compensation or payment for extra work, disputed work, and/or changed conditions.
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Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.
10-3 SUPPORTING DOCUMENTATION
The Contractor shall submit all claims in the following format:
(1) Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
(2) List of documents relating to claim: (a) Specifications, (b) Drawings, (c) Clarifications (Requests for Information), (d) Schedules, and (e) Other (3) Chronology of events and correspondence
(4) Analysis of claim merit
(5) Analysis of claim cost
(6) Time impact analysis in CPM format
10-4 CITY’S RESPONSE
Upon receipt of a claim pursuant to this section, City shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed.
Any payment due on an undisputed portion of the claim will be processed and made within 60 days after the City issues its written statement.
10-4.1 If the City needs approval from the City Council to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the City Council 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 days following the next duly publicly noticed meeting of the City Council after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion. 10-4.2 Within 30 days of receipt of a claim, the Agency may request in writing additional documentation supporting the claim or relating to defenses or claims the Agency 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 City and the Contractor. 10-4.3 The Agency’s written response to the claim, as further documented, shall be submitted to the Contractor within 30 days (if the claim is less than $50,000, within 15 days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
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10-5 MEET AND CONFER
If the Contractor disputes the Agency’s written response, or the Agency 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 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. 10-6 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 City 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.
10-6.1 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.
10-6.2 For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section. 10-6.3 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. 10-6.4 The mediation shall be held no earlier than 90 days after the Contractor completes the Work or 90 days after 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. 10-6.5 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. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the
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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 or mediation that does not result in a complete resolutions of all claims.
10-7 CIVIL ACTIONS
The following procedures are established for all civil actions filed to resolve claims subject to this section:
10-7.1 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 these procedures. 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. 10-7.2 If the matter remains in dispute, the case shall be submitted to nonbinding 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. 10-7.2.1 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 who, after receiving an arbitration award requests a trial de novo and proceeds to litigation and 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 of the other party on such post-arbitration litigation.
10-8 GOVERNMENT CODE CLAIMS
In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra 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 Agency. 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 extra work, disputed work, construction claims, and/or changed conditions, including any required mediation, have been followed by Contractor. If no such
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Government Code claim is submitted, or if the prerequisite contractual requirements are not satisfied, no action against the Agency may be filed. A Government Code claim must be filed no earlier than the date that Contractor completes all contractual prerequisites to filing a Government Code claim, including any required mediation. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted.
10-9 CITY’S RESPONSES
The City’s failure to respond to a claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. City’s failure to respond shall not waive City’s rights to any subsequent procedures for the resolution of disputed claims.
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STANDARD PROVISIONS
CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT FACILITY
AND EQUIPPING OF THE NEW GRAND WELL
PART 1 - STANDARD CONDITIONS
SP-1-1.00 GENERAL — It is the intent of these General Provisions, Special Provisions, the plans referred to herein and other documents comprising the contract for the Contractor to provide for and include all labor, materials, equipment, plant, tools, transportation, insurance, bonds, sales taxes, permits, temporary protection, traffic control, watchmen, superintendence and other work necessary to construct and complete all work specified herein, including all addenda and change orders.
The contract documents are complementary, and a requirement in one is as binding as though occurring in all. They are intended to be cooperative, to describe and provide for complete work.
SP-1-1.01 CALTRANS SPECIFICATIONS — The specifications entitled, Standard Specifications for the State of California Department of Transportation, shall hereinafter be referred to as the Caltrans Specifications. The version used shall be the most recent edition.
SP-1-1.02 CALTRANS STANDARDS – The “Standard Plans for Construction of Local Streets and Road.” As issued by the California Department of Transportation, most recent edition.
SP-1-1.03 GREENBOOK SPECIFICATIONS – The specifications entitled “Standard Specifications for Public Works Construction,” as amended in the General Provisions of these specifications, shall hereinafter be referred to as the “Greenbook” or the “Greenbook Specifications.” The version used shall be the most recent edition.
All work shall meet all requirements applicable of Federal, State, County and City regulations and codes governing safety, health, welfare, dust and sound control.
Site of the work is in the City of San Jacinto, California, Grand Well site at 901 Industrial Way
SP-1-1.04 DEFINITIONS — Attention is invited to the provisions of Section 1 — "Terms, Definitions, Abbreviations and Symbols", of the Greenbook Specifications and these Special Provisions. Whenever in the contract documents, the following terms are used, the intent and meaning shall be interpreted as follows:
AGENCY City of San Jacinto
BOARD City Council of the
City of San Jacinto
DEPARTMENT California State
Department of Transportation (Caltrans)
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CHIEF OPERATOR Water Utilities Superintendent
(WATER)
CITY ENGINEER Civiltec
LABORATORY The laboratory to be designated by the
Engineer to test materials and work involved
in the contract.
NOTICE TO Notice Inviting Bids.
CONTRACTORS
STATE STATE OF CALIFORNIA
Other terms appearing in the plans, Specifications and in these Special Provisions shall have the same intent and meaning specified in Section 1, "Definitions and Terms," of the Greenbook Specifications.
SP-1-1.05 EXAMINATION OF PREMISES — Before bidding on this work, all prospective bidders shall make a careful examination of the jobsite and shall thoroughly familiarize themselves with the requirements of the Contract. By the act of submitting a proposal for the work, the contractor shall be deemed to have made such study and examination and that he is familiar with and accepts all conditions of the site.
SP-1-2.00 SCOPE AND CONTROL OF THE WORK — Attention is invited to the provisions of Greenbook Section 2, the amendments in the General Provisions herein and these Special Provisions.
Technical Specifications and Drawings applicable to the work to be performed under the contract are included in Appendix “A”.
The contractor shall furnish, in accordance with the specifications and drawings, all labor, equipment and material required for completion of the City of San Jacinto, Construction Of The New Grand Treatment Plant Facility And Equipping Of The New Grand Well
SP-1-2.01 PLANS AND SPECIFICATIONS — Attention is invited to the provisions of Greenbook Section 2-5, "Plans and Specifications", of the Specifications and these Special Provisions.
The Specifications, drawings, Special Provisions and all supplementary documents are essential parts of the contract, and a requirement in one is as binding as though occurring in all. They are intended to be cooperative, to describe and provide for a complete work.
If, however, the provisions within the documents comprising the contract are in conflict, the provision with the highest precedence shall prevail. The order of precedence shall be as follows:
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1. Permits for other agencies as may be required by law.
2. Change Order
3. Letter of interpretation of a contract provision
4. Addendum
5. Special Specifications
6. Notice Inviting Bids, Instructions to Bidders, General Specifications
7. Standard Plans
8. Project Manual
9. Plans
During the course of construction, the contractor shall provide and maintain in good order at the work site, a complete set of contract prints. All changes to the contract shall be clearly recorded on this set of prints. At the end of the project, the contractor shall transfer all changes to one (1) set of prints for submission to the AGENCY and ENGINEER. For further information regarding this requirement, please refer to section SP 2-15.00 of these specifications, “Record Drawings.”
SP-1-2.02 SCHEME OF WORK — The work contemplated in the project consists of furnishing labor, materials, services and equipment for the work described in these Special Provisions and shown on the plans and delineated in the specifications of this project.
SP-1-2.03 STANDARD PLANS — All work shall conform to the Specifications, drawings and Special Provisions, which shall be considered a part of these plans, and shall be on the jobsite during the entire duration of construction.
SP-1-2.04 TIME LIMIT — The work specified herein shall be completed within 400 working days of anticipated start date specified in the Notice to Proceed.
SP-1-2.05 AWARD AND EXECUTION OF CONTRACT — The bidder's attention is directed to the provisions of the Information for Bidders and to these Special Provisions for the requirements and conditions concerning award and execution of the Contract. A guarantee form to be signed and delivered to the Agency before acceptance is included in the proposal.
The award of the Contract, if it be awarded, will be to the lowest responsible bidder whose proposal complies with all the requirements described. The award, if made, will be made within twenty-five (25) days after the opening of the bids. All bids will be compared on the basis of the Engineer's estimate of quantities of work to be done.
THE CITY RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS.
All bonds in the amounts stipulated in the Information for Bidders shall be furnished by the bidder to whom the contract has been awarded and at this own cost and expense.
Whenever the City of San Jacinto has cause to believe that any such bond has become insufficient, a demand in writing may be made of the contractor for such further or additional bond as is considered necessary, considering the extend of the work remaining to be done.
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Thereafter, no payment shall be made upon such Contract to the contractor or any assignee of the contractor until such further or additional bond has been furnished.
Before commencing any work, the contractor shall obtain insurance as required under the General Provisions of these Specifications and show proof of same. Contractor shall not allow any subcontractor to work until similar insurance required of the subcontractor has been obtained and approved by the General Contractor.
The contractor shall, in providing the insurance as provided in Sections 6 and 7 of the General Provisions, include as a provision of the insurance policy, a clause substantially in the following language:
It is hereby understood and agreed that this policy may not be canceled nor the amount of the coverage thereof reduced except upon thirty (30) days prior to written notice to the City as evidenced by receipt of a registered letter. The insurance policy shall also specify that it is primary insurance and that any insurance held or owned by the designated additional insureds shall be excess thereto and shall not be called upon to cover a loss under said policy.
SP-1-2.06 AUTHORITY OF THE CITY ENGINEER — The City Engineer shall decide all questions as to the quality or acceptability of the work performed and to the manner or performance and rate of progress of the work, all questions as to the acceptable fulfillment of the contract on the part of the contractor, and all questions as to compensation. His decision shall be final and he shall have authority to enforce and make effective such decisions and orders which the contractor fails to carry out promptly. Attention is invited to the provisions of Greenbook Section 2-10.
SP-1-2.07 SUBCONTRACT— Attention is directed to the provisions of Greenbook Section 2-3, "Subcontracts", of the Specifications as amended in the General Provisions herein and these Special Provisions.
A sheet for listing subcontractors, as required, is included in the proposal.
The Contract documents shall not create any contractual relation between any subcontractor and the Agency. Contractor agrees that he is fully responsible to the City for the acts and omissions of his subcontractors and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him.
SP-1-3.00 CHANGES IN WORK — All changes in the work, whether requested by the contractor, initiated by the City and/or caused by changed conditions, shall be undertaken only after the issuance of a change order by the Engineer. Attention is invited to Section 3 of the Greenbook Specifications and the provisions of Paragraph 2 of the General Provisions.
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a. Differing Site Conditions
1. During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed.
2. Upon written notification, the engineer will investigate the conditions, and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly. The engineer will notify the contractor of the determination whether an adjustment of the contract is warranted.
3. No contract adjustment which results in a benefit to the contractor will be allowed unless the contractor has provided the required written notice.
4. No contract adjustment will be allowed under this clause for any effects caused on unchanged work. (The Local Agency may omit this provision, at their option.)
b. Suspensions of Work Ordered by the Engineer
1. If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set for the reasons and support for such adjustment.
2. Upon receipt, the engineer will evaluate the contractor’s request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond he control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The contractor will be notified of the engineer’s determination whether an adjustment of the
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contract is warranted.
3. No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed.
4. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.
c. Significant Changes in the Character of Work
1. The engineer reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project.
Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the contractor agrees to perform the work as altered.
2. If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair and equitable.
3. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract.
4. The term “significant change” shall be construed to apply only to the following circumstances:
When the character of the work is altered differs materially in kind or nature from that involved or included in the original proposed construction; or
When a major item of work, as defined elsewhere in the contract, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for the increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.
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When deemed necessary by the Engineer, revisions of the contract drawings and additional detailed drawings will be issued to the Contractor during the progress of the work.
CONTRACTOR'S RESPONSIBILITY — The Contractor shall be responsible to adhere to these specifications as closely as possible. It is the Contractor's responsibility to confer with the City Engineer and to get a written agreement as to the necessary changes prior to performing any work that is not in conformance with these specifications or the contract drawings.
SP-1-4.00 CONTROL OF MATERIALS AND WORKMANSHIP — All materials, parts and equipment furnished by the Contractor in the work shall be new, high grade and free from defects. Quality of work shall be in accordance with generally accepted standards. Attention is invited to Section 4 of the Greenbook Specifications and the provisions of Paragraph 3 of the General Provisions. No used or secondhand materials, parts and equipment shall be incorporated in the project.
SP-1-4.01 TESTS OF MATERIALS AND WORKMANSHIP — All materials shall first be tested and satisfactorily passed in accordance with the requirements of the plans and these specifications, before incorporating said material in the work. Materials placed otherwise shall be considered defective and will be subject to rejection. The cost of testing of materials and workmanship shall be paid by the City. The cost of re-testing of materials and workmanship shall be at the expense of the contractor. The contractor, at his expense, shall deliver materials for testing to the place and at the time designated by the Engineer. Attention is invited to Section 4-1.4, "Test of Materials", of the Greenbook Specifications.
SP-1-4.02 LABORATORY — The City shall make all arrangements and designate a laboratory to fulfill the test requirements for the project. The contractor shall render all necessary assistance to the personnel of said laboratory to facilitate the inspection and testing of materials. Request for inspection and/or testing shall be made at least twentyfour (24) hours in advance.
SP-1-5.00 UTILITIES — The existence and location of utility structures and facilities are shown on the plans or in the Special Provisions according to records and information available to the City. Attention is called to the fact of the possible existence of other utility facilities or structures not known to the City or in a location different from that shown on the plans or in the Special Provisions. The contractor is required to ascertain the location of all underground utility structures and facilities prior to doing work that may damage such structures and facilities, including those not shown, or interfere with their service and to take such precautionary measures in the course of said work to prevent such damage or interference. Attention is invited to Greenbook Section 5. If the contractor, while performing the work under the contract, discovers utility structures or facilities not identified in the plans or specifications or shown differently, he shall immediately notify the City in writing of such discovery and allow the City 48 hours to advise. The contractor shall continue with his work on other areas and provide utility purveyors adequate time to resolve the conflict or continue work if in the opinion of the City and utility purveyors, the construction will not impact these utilities.
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SP-1-6.00 PROSECUTION, PROGRESS AND ACCEPTANCE OF THE WORK — Attention is invited to Greenbook Section 6 and these Special Provisions.
SP-1-6.01 PROGRESS SCHEDULE — After notification of award and prior to starting any work, the Contractor shall submit to the Engineer for approval his proposed construction schedule. Attention is invited to Greenbook Section 6-1. The proposed construction schedule shall be submitted on or before the date set for the preconstruction meeting between City and contractor's staff and representatives of utility companies.
SP-1-6.02 BEGINNING OF WORK — The contractor shall begin construction on the date specified in the Notice to Proceed, estimated April 7, 2025.
SP-1-6.03 TIME OF COMPLETION — The contract time shall commence upon the date of issuance of the Notice to Proceed and shall continue for 400 working days.
The contractor shall diligently prosecute the project and complete all work within the contract time. Contractor agrees that failure to complete the project within the contract time shall subject him to the liquidated damages provided herein. Attention is invited to Section 6-7 of the Greenbook Specifications.
SP-1-6.04 PROSECUTION OF WORK — The contractor shall give his personal attention to the fulfillment of the contract and shall keep the work under his control.
The City shall consider all persons engaged in the project as employees of the contractor and he shall be held responsible for their work subject to the provisions of the contract and specifications. The contractor shall prosecute the work vigorously and diligently until completed with the minimum inconvenience and hazard to the public. Pipe, conduit and other improvements in the work area shall be restored to their original condition and former state of usefulness as soon as practicable. Attention is invited to the provisions of Section 6-2 of the Greenbook Specifications.
SP-1-6.05 TEMPORARY SUSPENSION OF WORK — The City Engineer shall have the authority to suspend the work wholly, or in part, for such period as he may deem necessary due to unsuitable weather or to such other conditions as are considered unfavorable for the suitable prosecution of the work, or for such time as he may deem necessary due to the failure on the part of the contractor to carry out orders given, or to perform the work in accordance with these Specifications. The contractor shall immediately comply with the written order of the City Engineer to suspend the work wholly or in part. The work shall be resumed when conditions are favorable and methods are corrected, as ordered or approved in writing by the City Engineer.
In the event of a suspension of work under any of the conditions above set forth such suspension of work shall not relieve the contractor of his responsibilities as set forth under these Specifications.
SP-1-6.05.1 SUSPENSIONS OF WORK ORDERED BY THE ENGINEER — If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the contractor believes that
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additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set for the reasons and support for such adjustment.
Upon receipt, the engineer will evaluate the contractor’s request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The contractor will be notified of the engineer’s determination whether an adjustment of the contract is warranted.
No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed.
No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.
SP-1-6.06 SUSPENSION OF CONTRACT — If at any time in the opinion of the City Engineer, the contractor has failed to supply adequate working force or material of proper quality or has failed in any other respect to prosecute the work with the diligence and force specified and intended in and by the terms of the contract, notice thereof in writing will be served upon him; and should he neglect or refuse to provide means for a satisfactory compliance with the contract, as directed by the City Engineer, within the time specified in such notice, the City in any such case shall have the power to suspend the operation of the contract.
Attention is invited to the provisions of Section 6-3 of the Greenbook Specifications.
Upon receiving notice of such suspension, the contractor shall discontinue said work, or such parts of it as the City may designate. Upon such suspension the contractor's control shall terminate and thereupon the City or its duly authorized representative may take possession of all or any part of the contractor's materials, tools, equipment and appliances upon the premises, and use the same for the purpose of completing said contract, and hire such force and buy or rent such additional machinery, tools, equipment and appliances at the contractor's expense as may be necessary for the proper conduct of the work and for completion, employ other parties to carry the contract to completion, or may employ the necessary workman, substitute other machinery or materials, and purchase the materials contracted for, in such manner as the City may deem proper; or the City may annul and cancel the contract and relate the work or any part thereof. Any excess cost arising therefrom over and above the contract price shall be charged against the contractor and his sureties, who shall be liable therefor. In the event of such suspensions, all monies due the contractor or retained under the terms of this contract shall be forfeited to the City; but such forfeiture shall not release the contractor or his sureties from liability for failure to fulfill the contract. The contractor and his sureties shall be credited with the amount of money so forfeited toward any excess of cost over the above contract price, arising from the
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suspension of the operation of the Contract and the completion of the work by the City as above provided, and the contractor shall be so credited with any surplus remaining after all just claims for such completion have been paid.
In the determination of the question whether there has been any such noncompliance with the contract as to warrant the suspension or annulment thereof, the decision of the City Council shall be binding on all parties to the contract.
SP-1-6.07 TERMINATION OF CONTRACT — Subject to all applicable provisions of these specifications and/or the contract, the Engineer is hereby empowered to direct the time and date of delivery of materials at the site of work and direct the time, rate and sequence of work. If contractor fails to begin delivery of material and equipment or to commence work within the time specified herein, and/or in the contract, or to maintain the rates of delivery of material, or to execute the work in a manner and at such locations as directed by the Engineer, or fails to maintain the approved progress schedule in such manner as well, in the judgment of the Engineer, inure to the interests of the City, or, if in the judgment of the Engineer, the contractor is not carrying out the provisions of the contract in their true intent and meaning, written notice by the City Engineer may be served upon him and the Surety on his faithful performance bond demanding a satisfactory compliance with the contract, and with these specifications. If the contractor and/or his Surety refuses or neglects to comply with such notice within five (5) days after receiving same, or after commencing so to do, fails to continue so to do, or has assigned or sublet the contract without the consent of the Engineer, then the Engineer may exclude him from the premises and take possession thereof, together with all material and equipment thereon, and may complete the work itself, either by force account, or by letting the unfinished portion of the work to another contractor or by a combination of such methods. In any event, the cost of the completion of said work shall be a charge against the contractor and his Surety and may be deducted from any money due or becoming due from the City, and if the sums due under the contract are insufficient, said contractor and/or his Surety shall pay to the City within five (5) days after the completion of the work all of such cost in excess of the contract price.
The Surety, in the event that it assumes part of the work, shall take the contractor's place in this contract in all respects for that part and shall be paid by the City for all work performed by it in accordance with the terms of this contract. If the Surety assumes the entire contract, all monies remaining due the contractor at the time of his default shall be made payable to the Surety as the work progresses, subject to the terms of the contract.
SP-1-6.08 LIQUIDATED DAMAGES — It is hereby understood and mutually agreed by and between the contractor and the City, that the date of beginning and the time of completion as specified in the contract of the work to be done hereunder are essential conditions of this contract. Attention is invited to Section 6-9 of the Greenbook Specifications as amended in Paragraph 4 of the General Provisions. Refer to section SP1-2.04 for detailed information regarding the date of beginning and the time of completion.
The contractor agrees that said work shall be prosecuted regularly, diligently, and uninterruptedly at such rate of progress as will insure full completion thereof within the time specified. It is expressly understood and agreed, by and between the contractor and the City, that the time for the completion of the work described herein is a reasonable time for the completion of the same, taking into consideration the average
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climatic range and usual industrial conditions prevailing in this locality. If the said contractor shall neglect, fail or refuse to complete the work within the time herein specified, or any proper extension thereof granted by the City, then the contractor does hereby agree, as a part consideration for the awarding this contract, to pay to the City of San Jacinto the amount of liquidated damages stipulated in Paragraph 4 of the General Provisions for each and every calendar day that the contractor shall be in default after the time stipulated in the contract for completing the work, not as a penalty but as liquidated damages for such breach of contract as hereinafter set forth.
The said amount is fixed and agreed upon by and between the contractor and the City because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the City would in such event sustain, and said amount agreed to be the amount of damages which the City would sustain and said amount shall be retained from time to time by the City from current periodical estimates.
SP-1-7.00 RESPONSIBILITIES OF THE CONTRACTOR — Attention is invited to Section 7 of the Greenbook Specifications as amended in the General Provisions and the provisions of these Special Provisions. The contractor shall keep himself fully informed of all existing and future State and Federal laws and county and municipal ordinances and regulations which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. He shall at all times observe and comply with, and shall cause all his agents and employees to observe comply with all such existing and future laws, ordinances, regulations, orders and decrees of bodies or tribunals having any jurisdiction or authority over the work; and shall protect and indemnify the City, and all officers and employees thereof connected with the work, including but not limited to the City Engineer, against any claim or liability arising from or based on the violation of any such law, ordinances, regulation, order, or decree, whether by himself or his employees. If any discrepancy or inconsistency is discovered in the plans, drawing, specifications, or contract for the work in relation to any such law, ordinance, regulation, order or decree, the contractor shall report the same to the Engineer in writing.
SP-1-7.01 ASSUMPTION OF RISK — During the progress of the work, the City of San Jacinto will not be answerable or accountable in any manner for any loss or damage that may happen to the work or any part thereof; or for any of the materials or other things used or employed in performing the work; or for injury to any person or persons, either workmen or the public; for damage to adjoining property from any cause which might have been prevented by the contractor, or his workmen, or anyone employed by him; against all of which injuries or damages to persons and property the contractor having control over such work must properly guard. The contractor shall be responsible for any damage to any person or property resulting from defects or obstructions or from any causes whatsoever during the progress of the work or at any time before its completion and final acceptance, and shall indemnify and save harmless the City of San Jacinto and/or its officers and/or its employees from all suits or actions of every name and description, brought for, or on account of any injuries or damages received or sustained by any person or persons, by or from the Contractor, his servants or agents, in the construction of the work or by or in consequence of any negligence in
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guarding the same, in improper materials used in its construction, or by or on account of any act or omission of the contractor or his agents.
SP-1-7.02 LABOR — Attention is invited to the provisions of Section 7-2 of the Greenbook Specifications as amended in Paragraph 5 of the General Provisions.
SP-1-7.03 LIABILITY INSURANCE — Attention is invited to the provisions of Section 7-3 of the Greenbook Specifications as amended in Paragraph 6 of the General Provisions.
SP-1-7.04 WORKER'S COMPENSATION INSURANCE — Attention is invited to the provisions of Section 7-4 of the Greenbook Specifications as amended in Paragraph 7 of the General Provisions.
SP-1-7.05 PERMITS AND INSPECTION — The contractor shall obtain a no-fee excavation permit from the City of San Jacinto before proceeding with any work on the project.
Construction and Encroachment Permits — The Contractor and his subs shall procure all permits and business licenses, pay all charges, fees and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any costs for these fees and/or permits shall be included in the prices listed in the Bid Form.
All other costs shall be considered in miscellaneous bid items.
It is the responsibility of the Contractor to contact the applicable agencies and make himself knowledgeable and responsible to all of their requirements. The Contractor shall, at no additional cost to the City, construct the work in strict accordance with all the requirements of all appropriate agencies.
The contractor shall call for inspections at the different stages of the work as required by the CHIEF OPERATOR (WATER) or his designee. Any portion of the project completed without these required inspections shall be considered as defective and the City reserves the right to reject the affected portion of the work. The contractor shall remove rejected portion of the work upon instruction by the City without additional compensation.
City inspectors work from 7:00 a.m. until 5:00 p.m., Monday through Friday.
Inspections outside these hours and may be available through appointments approved by Water Utilities Superintendent and City Engineer only, and inspector's time will be billed to the contractor at a pre-determined rate. This does not apply for work the plans specifically call out to take place outside of these hours.
SP-1-7.06 CONTRACTOR'S REPRESENTATIVE — On or before the preconstruction meeting, the contractor shall designate, in writing, a representative who shall have complete authority to act for him. An alternate representative may also be designated. The representative or alternate shall always be present at the worksite whenever work is in progress or whenever actions of the elements require his presence to take measures necessary to protect the work, persons or property. Attention is invited to Section 7-6 of the Greenbook Specifications.
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SP-1-7.07 COOPERATION AND COLLATERAL WORK — Attention is directed to Section 7-7 of the Greenbook Specifications and these Special Provisions.
Construction work by other contractors or by utility and public agency representatives may be underway within or adjacent to the worksite specified herein. For this reason, the contractor shall cooperate with all such other contractors to the end that any delay or hindrance to their work shall be avoided, or conduct his operations in such a manner as not to cause any unnecessary delay or hindrance to the other. Each contractor shall be responsible to the other for all damage to work, to persons or property caused to the other by his operations, and for loss caused the other due to his unnecessary delays or failure to finish work within the time specified for completion. The Engineer reserves the right to direct the contractor to perform other or additional work at the worksite at any time in order to better coordinate the different activities on the entire project.
OBSTRUCTIONS - Attention is directed to the existence of certain underground facilities that may require special precautions be taken by the Contractor to protect the health, safety and welfare of workers and of the public. Facilities requiring special precautions include, but are not limited to existing utilities.
The Contractor shall notify the Engineer and the appropriate regional notification center for operators of subsurface installations at least 2 working days, but not more than 14 calendar days, prior to performing any excavation or other work close to any underground pipeline, conduit, duct, wire or other structure. Regional notification centers include, but are not limited to, Dig Alert which can reached by dialing 811.
The Contractor is responsible to physically locate and identify all facilities (including utilities) within project limits. These shall include potholing. All underground facilities within the existing finished surface shall be potholed by the Contractor. These utilities may be shown on plans or are marked in the field. Contractor is hereby notified and shall use all appropriate cautions when working near utilities.
Some of the existing utilities (above & underground including boxes, meters, mains, and poles) may be in conflict with the project. If this is the case, the contractor shall coordinate his work with that of the utility. No additional compensation will be paid to the Contractor for any delay or loss of efficiency due to having to coordinate his work with that of the utilities. Compensation for this work shall be included in other items of work..
The utility locations shown on the plans are correct to the best of our knowledge. When in doubt, the contractor shall contact utility concerned before proceeding further. The agencies below may be contacted at the following telephone numbers:
AGENCY TELEPHONE NUMBER
Southern California Edison Company (951) 928-8252
Southern California Gas Company (800) 427-2200
Eastern Municipal Water District (951) 928-3777
City of San Jacinto (Water and Sewer) (951) 537-7721
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Full compensation for conforming to the requirements of this section shall be considered as included in the prices paid for the various contract items of work involved and no additional compensation will be allowed therefore.
SP-1-7.08 PROJECT APPEARANCE — The contractor shall maintain a neat appearance to the work. Attention is invited to Section 7-8 of the Greenbook Specifications.
In any area visible to the public, the following shall apply:
Broken asphalt concrete, aggregate base and debris developed during removals, shall be disposed of concurrently with its removal.
Dust caused by the passage of public traffic through the work shall be considered as resulting from the contractor's performance of the work.
Whenever the contractor fails to control dust resulting from the performance of the work, the Engineer may cause such dust to be controlled and costs thereby incurred shall be deducted from monies due or to become due the contractor.
Full compensation for conforming to the provisions in this section, not otherwise provided for, shall be considered as included in prices paid for the various contract items of work involved and no additional compensation will be allowed therefor.
SP-1-7.09 PROTECTION AND RESTORATION OF EXISTING
IMPROVEMENTS - The Contract shall take all necessary precautions to protect in place all existing medians, curb, sidewalk, trees, plants, turf and irrigation lines, etc., not scheduled for removal. The entire cost of replacing and/or repairing said existing improvements shall be borne by the contractor. Attention is directed to the provisions of Section 7-9 of the Greenbook Specifications. Permit conditions, rules and regulations of agencies having jurisdiction over the contractor's operations shall be strictly complied with.
The contractor shall protect existing improvements in place wherever possible. All existing improvements which must be removed for construction shall be restored to an equal or better condition than that of the existing improvements removed or damaged.
Restoration of existing improvements shall be in accordance with the Plans and Specifications and all provisions of the City of San Jacinto, the individual utility agency Standard Plans.
The contractor shall preserve and protect from injury all buildings, pole lines and all direction, warning and mileage signs which have been placed within the right-of-way.
Full compensation for the work involved in the preservation of 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 therefore.
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SP-1-7.10 PUBLIC CONVENIENCE — The contractor shall so conduct his operations to offer the least possible obstruction and inconvenience to the public or to the public traffic. Where existing streets are not available for use as detours, unless otherwise provided in these Special Provisions, all traffic shall be permitted to pass through the work.
TRAFFIC CONTROL (PUBLIC CONVENIENCE AND SAFETY) STREET
CLOSURES, DETOURS, BARRICADES — The Contractor shall comply with all applicable State, County and City requirements for work in the public right-of-way. The Contractor shall provide and maintain barriers, guards, lights, signs, temporary bridges, pilot cars, arrow boards, message boards, flag persons and watch persons, advising the public of detours and construction hazards. The Contractor shall also be responsible for compliance with additional public safety requirements which may arise during construction. The Contractor shall furnish and install, and upon completion of the work, promptly remove all signs and warning devices. All work shall be accomplished in accordance with the requirements specified in Subsection 7-10 of the Standard Specifications for "Public Works Construction" latest edition (Greenbook). In addition, traffic control shall be provided in accordance with the Manual of Uniform Traffic Control Devices (MUTCD) latest edition and plans. A traffic control plan prepared by Registered Engineer shall be submitted to City for review. Access to existing businesses, residential, and farms shall be maintained at all times.
On residential streets at least one 12-foot wide lane shall be made available to the public. The Contractor shall offer the least obstruction to public traffic and residential driveways in the construction area. Access to all driveways shall be available by 5:00 PM Monday through Friday.
Full compensation for all work involved in providing for public convenience as set forth in this section including traffic control plans shall be considered as included in the prices paid for the traffic control and no additional allowance will be made therefore.
SP-1-7.11 PUBLIC SAFETY — The contractor shall furnish, erect, and maintain such fences, barriers, lights and signs as are necessary to give adequate warning to the public at all times that the work is under construction and of any dangerous conditions to be encountered as a result thereof in strict compliance with the latest edition of the MUTCD. Attention is directed to Section 7-10.4 of the Greenbook Specifications as amended in Paragraph 8 of the General Provisions. He shall also erect such warning and directional signs as shown on plans and/or as requested by the Engineer during the course of construction of the project.
It is the Contractor’s responsibility to provide for the safe passage for vehicles traveling to residences and business location within the limits of the project.
All barricades shall be of substantial construction and painted in a distinctive color or manner so as to be clearly visible to the approaching public.
Should the Contractor appear to be neglectful or negligent in furnishing warning and protective measures, the City Engineer, their representative or the City may direct attention to the existence of a hazard and the necessary warning and protective
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measures shall be furnished and installed immediately by the Contractor at his expense.
Should the City Engineer, their representative or the City point out the inadequacy of warning and protective measures, such action on the part of the City Engineer shall not relieve the Contractor from responsibility for public safety or abrogate his obligation to furnish any pay for these devices.
All traffic control signs shall be either covered or removed when not required by the nature of work or if no present hazard to the motorist exists.
Should the City place any warning lights or barricades to protect or warn the public of any dangerous condition connected with contractor’s operations, contractor shall become liable to the City at the current rental rate per night for each lantern or warning light placed by the City, plus actual labor, equipment rental and overhead costs, with a minimum charge of fifty ($50.00) dollars per day for each obstruction or dangerous condition so barricaded or lighted.
Public Safety shall be of the primary concern and the contractor shall be responsible for eliminating all conceivable hazards in providing such temporary passage. Prior approval by the Engineer is required.
The contractor shall conduct his operations such that fire hydrants, meter vaults, water and gas shut-off valves, and similar facilities are not buried during the course of the work and so as to offer the least possible obstruction and inconvenience to public traffic and to properties along the construction areas.
The contractor shall have at the worksite applicable copies or extracts of Construction Safety Orders. In compliance with generally accepted construction practices, the Contractor will be solely and completely responsible for conditions of the jobsite, including safety of all persons and property during performance of the work. This requirement will apply continuously and not be limited to normal working hours.
When performing underground work, the Contractor shall call Underground Service Alert, (800) 227-2600 or 811, the one-call underground facility locating service, two working days prior to beginning work on the project. All underground facilities marked in response to the locating phone call shall be hand-dug and exposed prior to any use of power equipment for excavation. If there is any substantial discrepancy between the field locations of underground facilities and those locations shown on the plans, the Contractor shall notify the Engineer prior to making an excavation.
PROTECTION OF THE PUBLIC – The following minimum restrictions shall be maintained by the Contractor in the conduct of his work:
It is part of the service required of the Contractor to make whatever provisions are necessary to protect the public. The Contractor shall use foresight and shall take such steps and precautions as his operations warrant to protect the public from danger, loss of life or loss of property, or from the failure of partially completed work or partially removed facilities. Conditions may arise on the work which will require that immediate and unusual provisions be made to protect the public from danger or loss, or damage to life and property, due directly or indirectly to prosecution of work under this Contract.
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Whenever, in the opinion of the Engineer or the City, an emergency exists against which the Contractor has not taken sufficient precaution for the public safety, protection of utilities and protection of adjacent structures or property, which may be damaged by the Contractor’s operations and when, in the opinion of the City Engineer, immediate action shall be considered necessary in order to protect the public or property due to the Contractor’s operations under this Contract, the City or City Engineer will order the Contractor to provide a remedy for the unsafe conditions.
If the Contractor fails to act on the situation within a reasonable time period, the City or City Engineer may provide suitable protection to said interest by causing such work to be done and material to be furnished as, in the opinion of the Engineer may seem reasonable and necessary.
The cost and expense of said labor and material together with the cost and expense of such repairs as are deemed necessary shall be borne by the Contractor. All expenses incurred by the City for emergency repairs will be deducted from the progress payments and the final payment due to the Contractor. However, if the Agency does take such remedial measures, the Contractor is not relieved of the full responsibility for public safety.
Full compensation for all work involved in providing for public safety as set forth this section shall be considered as included in the prices paid for the traffic control system and no additional allowance will be made therefore.
SP-1-7.12 PUBLIC NOTICE — The Contractor shall notify the residents/businesses and schools affected by construction in writing not less than 7 days in advance of commencement of construction or storage of material upon the streets. The notice shall include but not be limited to:
The time and date of commencement.
A copy of the proposed construction schedule
C. Date of completion
D. Contact information for Contractor’s representative
In addition to the above, the Contractor shall notify all affected parties if work is to begin on new portions of the project as work proceeds, especially if the work involves changes to the traffic control system. A copy of this notification shall be approved by the City Engineer prior to its distribution.
The Contractor shall place “No Parking Anytime” signs 48 hours prior to construction at locations approved by the City Engineer, said signs shall be of the size and type specified by the City Engineer. The Contractor is also responsible for notifying all affected businesses and residents of his scheduled work.
Personal vehicles of the contractor’s employees shall not be parked on the traveled way at any time, including any section closed to public traffic.
When entering or leaving roadways carrying public traffic, the contractor’s equipment, whether empty or loaded, shall in all cases yield to public traffic.
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SP1-7.13 SOUND CONTROL REQUIREMENTS — If work is permitted for evening and weekends and holidays, the noise level from the contractor’s operations, between the hours of 8:00 p.m. and 6:00 a.m., shall not exceed 86 db at a distance of fifty (50’) feet. This requirement in no way relieves the contractor from the responsibility for complying with local ordinances regulating noise level. All other times, noise level shall be in compliance with standards.
Said noise level requirement shall apply to all equipment on the job or related to the job, including but not limited to trucks, transit mixers or transient equipment that may or may not be owned by the contractor. The use of loud sound signals shall be avoided in favor of light warnings except those required by safety laws for the protection of personnel.
Full compensation for conforming to the requirements of this section shall be considered as included in the prices paid for the various contract items of work involved and no additional compensation will be allowed therefore.
SP-1-7.14 LAWS TO BE OBSERVED — The contractor shall keep himself fully informed of State and National laws and County and City ordinances and regulations which in any manner affect those employed in the work or the materials used for the work or in any way affect the conduct of work. Attention is directed to Section 7.13 of the Greenbook Specifications as amended in Section 9 of the General Provisions.
SP-1-7.15 ADVANCE NOTIFICATION — It shall be the contractor’s responsibility to determine and notify those agencies requiring advance notification for inspection or other purposes before beginning construction in any area of concern to said agency. A minimum of forty-eight (48) hours advance notice shall be given to the various agencies before beginning construction in the area, unless specific advance times and requirements are stated in these detailed specifications or required by the agency. The following entities shall be notified at least seventy-two (72) hours in advance of any street closure or restriction to access by the contractor. Southern California Edison Company
Southern California Gas Company
Eastern Municipal Water District
Frontier
Spectrum
City of San Jacinto
The local Police and Fire Departments, RTA Bus Service, local schools, CR&R Waste Management, and local post office shall also be notified. The contractor will provide evidence of notification to these agencies by completing the City of San Jacinto standard road/lane closure form.
SP-1-7.16 EXPOSURE OF UTILITIES IN ADVANCE OF WORK — It shall be the contractor’s responsibility to determine the true location and depth of all utilities and service connections which may be affected by or affect the work. He shall also determine the type, material, and condition of these utilities.
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SP-1-7.17 CULTURAL RESOURCES
1. If buried cultural resources are encountered during Project Activities, it is Caltrans policy that work stop in that area until a qualified archaeologist can evaluate the nature and significant of the find
2. In the event that human remains are found, the County Coroner shall be notified and all construction activities within 60 feet of the discovery shall stop. Pursuant to Public Resources Code Section 5097.98, if the remains are thought to be Native American, the Coroner will notify the Native American heritage Commission (NAHC) who will then notify the Most Likely Descendent (MLK). The person who discovered the remains will contact the District 8 Division of Environmental Planning; Andrew Walters, DEBC: (909) 383-2647. Further provisions of PRC 5097.98 are to be followed as applicable.
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PART 2 - STANDARD CONSTRUCTION DETAILS
SP-2-1.00 PRECONSTRUCTION CONFERENCE — The Contractor to whom the contract is awarded shall attend a preconstruction conference at a location and time set by the City or City Engineer.
SP-2-2.00 CONSTRUCTION MEETINGS — Construction meetings will be held at the jobsite as required and as requested by the Contractor, the City or the City Engineer to coordinate and discuss construction activities. Details regarding jobsite meetings will be arranged at the preconstruction conference.
SP-2-3.00 SPECIFICATIONS AND DRAWINGS FURNISHED TO CONTRACTOR — The Owner will furnish, to the successful Contractor, three (3) sets of specifications and drawings. Additional quantities of specifications and drawings will be furnished at reproduction cost.
SP-2-4.00 POWER AND WATER SUPPLY — The Contractor shall provide, at his own expense, all necessary power and water required for his operations under the contract. The Contractor shall provide and maintain in good order such modern power equipment as shall be adequate in the opinion of the Engineer to perform in a safe and satisfactory manner the work required by the contract.
SP-2-5.00 DUST ABATEMENT — The Contractor shall furnish all labor, equipment and means required and shall carry out protective measures wherever and as often as necessary in the opinion of the Engineer to prevent his operations from producing dust in amounts damaging to property or causing nuisance. The Contractor shall be responsible for any damage resulting from dust originating from his operations. The dust abatement measures shall be continued until all required resurfacing is completed or until the Contractor has completed arrangements with the proper authorities whereby he is relieved of further responsibility. Such arrangements shall be approved by the City Engineer prior to their completion. All compensation to be received for dust abatement shall be included in the prices named for mobilization as shown on the Bid Form.
SP-2-6.00 DAILY CLEANUP AND ACCESS — At the completion of work each day, the Contractor shall leave the work area in a clean, safe condition. Access to all adjacent properties and driveways and intersections shall be maintained at all times.
SP-2-7.00 FINAL CLEANUP — After completion of all other work on the project, and before making application for acceptance of the work, the Contractor shall clean the site of his operations, including any areas under the control of the City that have been used by the Contractor in connection with the work.
SP-2-8.00 MAINTENANCE AND GUARANTEE — As specified in Paragraph 10.3 of the General Provisions, the Contractor shall guarantee the work constructed by him for a period of two years following date of acceptance by the Owner.
SP-2-9.00 DIRT/GRINDING EXPORT — The Contractor shall be responsible for the removal of all excess dirt, grinding or unsuitable materials, if any, created by the construction of
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the street improvements within this project. If so noted on the project plans, the Contractor may spread the asphalt grindings from the roadway on the adjacent shoulder, to a depth of not more than 0.25’. The method of disposal for all asphalt grinding shall be approved by the City Inspector. The cost for this shall be considered in the unit bid price for roadway excavation.
SP-2-10.00 DIRT IMPORT — The Contractor shall be responsible for the import of any dirt, if required, for the construction of the proposed street improvements within this project.
The cost for obtaining, hauling and placement of any material shall be considered in the roadway excavation / earthwork bid item.
SP-2-11.00 COMPACTION — All fill, sub-base, base under pavement, curb, gutter, and sidewalks are to be compacted in place to 95% relative compaction except where specified otherwise. The earthwork will be tested for compliance by a Registered Soils Engineer. The contractor at its expense will provide the required soil testing. Any retesting by the Soils Engineer due to failure to achieve minimum compaction will be paid for by the Contractor.
SP-2-12.00 CONSTRUCTION SURVEY STAKING — The Contractor shall be responsible for providing survey service including, but not limited to, survey control, construction staking, and cut sheets to complete the scope of work, centerline ties and reset, and final certification of grades for as-built plans, as needed.
SP-2-13.00 SELECTED MATERIALS – Existing materials excavated within the project limits that meet the specifications for trench backfill, topsoil, or other selected materials may be used to fulfill all or a portion of the requirements for such materials. No additional compensation will be allowed for excavation, stockpiling, overhaul, or placing selected materials encountered in the excavation unless otherwise noted. All work shall meet with the requirement of Soil’s Engineer.
SP 2-14.00 SURPLUS MATERIALS – The Contractor shall furnish written consent from the owner of the property where it is intended to dispose of the surplus material, unless requested by City. Surplus excavation shall become the property of the Contractor.
SP-2-15.00 RECORD DRAWINGS – The Contractor shall keep one clean set of bond originals to note any changes which take place during construction. These changes to the original plans and/or specifications shall be noted at the appropriate locations with the appropriate changes indicated in red pencil or ink. The Contractor shall note in large letters “RECORD DRAWINGS” on the Title Sheet of the plans. The job will not be finalized by the City Engineer until these record drawings have been completed to the satisfaction of the City and the City Engineer. The changes shall be noted on the plans as the changes occur. The record drawings shall be submitted to the Resident Engineer, and become the property of the City at conclusion of the project.
Full compensation for maintaining and compiling the record drawings shall be considered to be included in other items of work and no additional compensation will be allowed.
SP-2-16.00 AREAS FOR CONTRACTOR’S USE - The road right of way shall be used only for purposes that are necessary to perform the required work. The Contractor shall not occupy the right of way, or allow others to occupy the right of way, for purposes which are not necessary to perform the required work.
4.B.2.1
Packet Pg. 441 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment SP-22
(22-010)
No City-owned parcels adjacent to the right of way are available for the exclusive use of the Contractor within the contract limits. The Contractor shall secure, at the Contractor’s own expense, areas required for plant sites, storage of equipment or materials, or for other purposes, which cannot be safely placed within the closure area.
No area is available within the contract limits for the exclusive use of the Contractor.
The Contractor shall remove equipment, materials, and rubbish from the work areas and other City owned property which the Contractor occupies. The Contractor shall leave the areas in a presentable condition in conformance with Section 1.7.08 of these provisions.
The Contractor shall secure, at the Contractor’s own expense, areas required for plant sites, storage of equipment or materials or for other purposes, if sufficient area is not available to the Contractor within the limits available for use by the City.
SP-2-17.00 HOLIDAYS
No work shall take place on holidays or after 11:00 a.m. on the last working day preceding Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and New Years Day. Special care shall be taken with setting up the traffic control system in preparation for a holiday. Compensation for work under this item shall be included the lump sum bid item(s) for traffic control.
4.B.2.1
Packet Pg. 442 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment APPENDIX A1 – A9
APPENDIX A1 – A9
(22-010)
THE FOLLOWING PLANS AND DRAWINGS ARE INCORPORATED HEREIN BY REFERENCE AS IF SET FORTH IN THEIR ENTIRETY:
A1. Plans and Drawings - Grand Well Treatment Site Potable Water Improvement Plans A2. Technical Specifications - Grand Well Treatment Site Potable Water Improvement Technical Specifications
A3. Electrical Equipment Submittal - Pureflow Electrical Equipment Submittal for 2500 GPM Iron & Manganese Removal System
A4. Mechanical Equipment Submittal – Pureflow Mechanical Equipment Submittal For 2500 GPM Iron & Manganese Removal System
A5. Equipment Tag List – Pureflow Equipment Tag List
A6. Geotechnical Exploration – Leighton Geotechnical Exploration City Of San Jacinto Grand Well Groundwater Treatment Plant
A7. Grand Well Aquifer Pumping Test Results
A8. Grand Well Title 22 12-15-22
A9. Dioxin Re-Test Needed
4.B.2.1
Packet Pg. 443 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX B
APPENDIX B
(22-010)
CONTRACT FORMS
NOTICE OF AWARD
Date: ____________
To:
(Bidder)
Address:
REQUEST FOR PROPOSALS FOR CONSTRUCTION OF THE NEW GRAND TREATMENT PLANT
FACILITY AND EQUIPPING OF THE NEW GRAND WELL
You are hereby notified that your Bid dated _________________ for the above Contract has been considered. You are the apparent successful bidder and have been awarded a contract for the abovenamed project.
The Bid Price of your contract is $
You must comply with the following conditions precedent within 10 calendar days of the date of this Notice of Award; that is, by ___________________.
1. You must deliver to the City, the fully executed counterpart of the Contract.
2. You must deliver, with the executed Contract, the Payment and Performance Bonds, and all required insurance documents as specified in the Instructions to Bidders and the Special Provisions.
3. You must prepare and submit to the City, a construction schedule in accordance with Section 6 of the Special Provisions.
All of the above items shall be submitted to ________________ (name of project manager), City of San Jacinto Public Works Department.
Failure to comply with these conditions within the time specified will entitle the City to consider your Bid abandoned, to annul this Notice of Award, and to declare your Bid Security forfeited.
After you comply with the foregoing conditions, the City will return to you one fully signed counterpart of the Contract with the Contract Documents attached.
A mandatory pre-construction meeting for the contractor and all of his subs will be required prior to start of work and will be scheduled upon receipt of all contract documents.
You are required to return an acknowledged copy of this Notice of Award to the Agency.
CITY OF SAN JACINTO
_____________________________________________
By:
Title:
4.B.2.1
Packet Pg. 444 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX B
APPENDIX B
(22-010) 2 5
ACCEPTANCE OF NOTICE OF AWARD
Receipt of the above Notice of Award is hereby acknowledged by _________________________________ this _____ day of __________________________ , 20__ Contractor______________________
By____________________________
Title___________________________
__________________________
Contractor’s California License No.
__________________________
Expiration Date
4.B.2.1
Packet Pg. 445 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX B
APPENDIX B
(22-010)
NOTICE TO PROCEED
Date: __________________
Contractor:
Address:
Contract No.:
Project:
Subject: NOTICE TO PROCEED
Dear __________________:
You are hereby notified to that the Contract Time under the above Contract will commence to run on [INSERT START DATE], and the work must be complete within 90 working days thereafter.
The date of completion of the work is therefore [INSERT COMPLETION DATE]. The Contract provides for an assessment of liquidated damages for each and every calendar day after the above established contract completion date that the Work remains incomplete.
You are required to return an acknowledged copy of this Notice to Proceed to the City.
Please contact me at [INSERT CONTACT INFO] if you have questions. We are looking forward to a mutually successful project.
CITY OF SAN JACINTO
BY: __________________________
Title: _________________________
4.B.2.1
Packet Pg. 446 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX B
APPENDIX B
(22-010)
ACCEPTANCE OF NOTICE TO PROCEED
Receipt of the above Notice to Proceed is hereby acknowledged by _________________________________ this _____ day of __________________________ , 20__ Contractor_______________________
By_____________________________
Title____________________________
__________________________
Contractor’s California License No.
__________________________
Expiration Date
4.B.2.1
Packet Pg. 447 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX B
APPENDIX B
(22-010)
CHANGE ORDER
Project:
CI Number:
Contract #:
Change Order Number:
Change Order Date:
Contract Date:
To: [INSERT CONTRACTOR NAME, CONTACT INFORMATION AND REPRESENTATIVE]
THIS CHANGE ORDER FORM SHALL BE USED FOR ALL CHANGE ORDERS ASSOCIATED WITH THE WORK.
NO ADDITIONS OR DELETIONS TO THIS FORM SHALL BE ALLOWED, EXCEPT WITH PERMISSION OF THE CITY OF SAN JACINTO.
The Contract is changed as follows:
[INSERT DESCRIPTION OF CHANGE]
Contractor agrees to furnish all labor, materials, equipment and services to perform the work, modified as described herein, in accordance with the Contract Documents as revised by this Change Order.
NOT VALID UNTIL SIGNED BY OWNER
In consideration of the change(s) described above, the Contract Price is adjusted as follows:
The original Contract Price was $_____________________
Net change by previously authorized Change Orders $_____________________ The Contract Price prior to this Change Order was $_____________________ The Contract Price will be changed by this Change Order in the amount of $_____________________ The new Contract Price including this Change Order will be $_____________________ In consideration of the change(s) described above, the Contract Time is adjusted as follows:
The Contract Time will be (increased) (decreased) (unchanged) by ( ) Days The date of Completion as of the date of this Change Order therefore is ____/____/____ Attachments: [e.g., revised plans or specifications or itemized contractor proposal – if none, delete this line]
Contractor accepts the terms and conditions stated herein as full and final settlement of any and all claims arising from this Change Order. The adjustments to the Contract Price and Contract Time in this Change Order constitute the entire compensation and/or adjustment thereto due to Contractor, including but not limited to all direct, indirect, consequential, profit, labor, equipment, tools, idle time, incidentals, and overhead (field and home office) costs, due to Contractor arising out of or related to the change in the Work covered by this Change Order.
4.B.2.1
Packet Pg. 448 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX B
APPENDIX B
(22-010)
REQUESTED BY: ____________________________________________ Contractor
Date:_____________
ACCEPTED BY: ____________________________________________ City (Project Manager)
Date:_____________
APPROVED BY: ____________________________________________ City (City Engineer)
Date:_____________
4.B.2.1
Packet Pg. 449 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX C
APPENDIX C
(22-010)
CITY OF SAN JACINTO
TRAFFIC CONTROL REQUIREMENTS
1. The Contractor shall obtain a City Permit for work performed in the City right-of-way and provide the City with general liability insurance as stated on page B-5.
2. It is the responsibility of the Contractor performing work on a public street to install and maintain the traffic control devices according to the “Work Area Traffic Control Handbook”, latest edition, to insure the safe movement of traffic and pedestrians through or around the work area and provide maximum protection and safety to construction workers. The Contractor shall submit a traffic control plan for approval prior to start of work for any conditions not covered by the MTUCD TRAFFIC CONTROL.
3. FLASHING ARROW BOARD(S) ARE MANDATORY FOR LANE CLOSURES ON MAJOR STREETS. They shall operate until traffic control is removed.
4. All travel lanes shall be open between 5:00 a.m. and 8:30 a.m. and between 3:30 p.m. and 9:00 p.m. One travel lane in each direction shall be open at all times between 8:30 a.m. and 3:30 p.m.
Flaggers may be used if one lane in each direction cannot be kept open with the approval of the Traffic Engineer. All traffic lanes shall be open before and after work hours.
5. All open trenches shall be covered with non-skid steel plates or temporary asphalt pavement before and after work hours. All open trenches shall be backfilled within 72 hours.
6. All signs, delineators, barricades, etc., shall conform to the State of California Standard Specifications latest edition, the California Department of Transportation “Manual of Traffic Control for Construction and Maintenance Work Zones: (latest edition), and the “MTUCD”, latest edition. All barricades shall be equipped with flashing/steady burn warning lamps at night. All cones, delineators, barricades, and "k" rail shall be reflectorized. All traffic control shall be kept in their proper position at all times, and shall be repaired, replaced, or cleaned as necessary to preserve their appearance and continuity. Any devices not part of the required traffic control or detours shall be removed from the view of the travelling public immediately.
7. Where necessary, properly post "TEMPORARY NO PARKING ANYTIME" signs at least 48 hours before start of work. The Contractor shall notify the local Police Department immediately upon posting signs.
8. Vehicular and pedestrian access to adjacent properties shall be provided at all times. Closed sidewalks shall be posted with “SIDEWALK CLOSED” signs at each approach to the closure and an approved alternate route provided.
9. Protect traffic signal detectors in place or replace within 5 calendar days of final paving. All detectors damaged by the work shall be replaced to the standards of the City Public Works Department.
10. Notify City and City Engineer at least 48 hours prior to any work in right-of-way.
11. Any revisions to the traffic control plans or requirements shall be approved by the City and City Engineer.
4.B.2.1
Packet Pg. 450 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
APPENDIX C
APPENDIX C
(22-010)
12. In case of conflict between the above and these stated in the specifications and plans, the most stringent shall apply.
13. Traffic control plans shall be required and submitted by Contractor. The plans shall be prepared by a Registered Engineer.
4.B.2.1
Packet Pg. 451 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment (22-010)
4.B.2.1
Packet Pg. 452 Attachment: Grand Well & Treatment Plant RFP (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.2
Packet Pg. 453 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 454 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 455 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 456 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 457 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 458 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 459 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 460 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 461 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 462 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 463 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 464 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 465 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 466 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 467 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 468 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 469 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 470 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 471 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 472 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 473 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 474 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 475 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 476 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 477 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 478 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 479 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 480 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 481 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 482 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 483 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 484 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 485 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 486 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 487 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 488 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 489 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 490 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 491 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 492 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 493 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 494 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 495 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 496 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 497 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 498 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 499 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 500 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 501 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 502 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 503 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 504 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 505 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.2
Packet Pg. 506 Attachment: Pacific Hydrotech Corporation Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Plant)
4.B.2.3
Packet Pg. 507 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-2
BID SCHEDULE (Attachment B)
$407,401.00 $407,401.00 $40,000 $232,215.00 .00 $126,668.00 $1,359,304.00
$889,068.00 $314,691.00 $204,420.00 $1,168,067.00 $187,018.00 $566,418.00 $204,420.00 $1,168,067.00 $187,018.00 $566,418.00 $126,668.00 $1,359,304.00 $889,068.00 $314,691.00 $40,000.00 $232,215.00
4.B.2.3
Packet Pg. 508 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-3
BID SCHEDULE (Attachment B)
$10,000.00 $23,600.00 $107,321.00 $11,800.00
$1,614,900.00
$23,600.00
$1,303,943.00
$45,000.00 $25,000.00 $15,000.00 $20,000.00 $592,575.00 $1,303,943.00
$23,600.00
$1,614,900.00
$45,000.00 $25,000.00 $15,000.00 $20,000.00 $592,575.00 $10,000.00 $23,600.00 $107,321.00 $11,800.00 $9,752,409.45$464,400.45$9,288,009.00
4.B.2.3
Packet Pg. 509 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 510 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 511 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 512 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 513 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 514 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 515 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 516 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 517 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 518 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 519 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 520 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 521 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 522 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 523 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 524 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 525 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 526 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 527 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 528 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 529 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 530 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 531 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Name Location Lic # DIR#
Sub Contractors Form
Scope of Work
1. Fencing 2. 3. 4. 5. 6. 7. 8. 9. Reinforcing Steel Pre-Engineered Metal Building HVAC Painting Masonry Welded Tank Electrical Well Equipping Goldenwest Fence Nuevo, Ca 1109978 1001135322 Quality Rebar, Inc. Poway, Ca 818593 1000000745 Shook Building Systems, Inc. Corona, Ca 283001 1000014167 Anderson Air Conditioning, L.P (AMS) Fullerton, Ca 107533 1000765095 Techno Coatings Anaheim, Ca 296517 1000005841 Masonry Solutions Riverside, Ca 648103 1000548424 Crosno Construction Inc. Arroyo Grande, Ca 835288 1000006959 Southern Contracting Co. San Marcos, Ca 222252 1000002172 Best Drilling and Pump, Inc. Colton, Ca 826672 1000001067
4.B.2.3
Packet Pg. 532 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well
PROPOSAL
(22-010) C-17
FLEET COMPLIANCE CERTIFICATION
Bidder hereby acknowledges that they have reviewed the California Air Resources Board’s policies, rules and regulations and are familiar with the requirements of Title 13, California Code of Regulations, Division 3, Chapter 9, effective on January 1, 2024 (the “Regulation”). Bidder hereby certifies, subject to penalty for perjury, that the option checked below relating to the Bidder’s fleet, and/or that of their subcontractor(s) (“Fleet”) is true and correct:
The Fleet is subject to the requirements of the Regulation, and the appropriate Certificate(s) of Reported Compliance have been attached hereto. The Fleet is exempt from the Regulation under section 2449.1(f)(2), and a signed description of the subject vehicles, and reasoning for exemption has been attached hereto.
Bidder and/or their subcontractor is unable to procure R99 or R100 renewable diesel fuel as defined in the Regulation pursuant to section 2449.1(f)(3). Bidder shall keep detailed records describing the normal refueling methods, their attempts to procure renewable diesel fuel and proof that shows they were not able to procure renewable diesel (i.e. third party correspondence or vendor bids). The Fleet is exempt from the requirements of the Regulation pursuant to section 2449(i)(4) because this Project has been deemed an Emergency, as defined under section 2449(c)(18). Bidder shall only operate the exempted vehicles in the emergency situation and records of the exempted vehicles must be maintained, pursuant to section 2449(i)(4).
The Fleet does not fall under the Regulation or are otherwise exempted and a detailed reasoning is attached hereto.
Signature:
Printed Name:
Title:
Firm Name:
Date:
x
Mitch Haynam GM & VP Anderson Air Conditioning LP 3-11-2025
4.B.2.3
Packet Pg. 533 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-9
ANTI-TRUST CLAIM
In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or Subcontractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton ct (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter [commencing with Section 16700] of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Public Works Contract or the Contract or the Subcontract. This assignment shall be made and become effective at the time the Agency tenders final payment to the Contractor, without further acknowledgement by the parties.
RESPECTFULLY SUBMITTED:
Signature Please Print
Title Address
Date
Contractor’s California License No. Type of License
Name of License Holder Expiration Date
THE REPRESENTATIONS MADE HEREIN ARE MADE UNDER PENALTY OF PURJURY.
Federal I.D. No.
(Seal 0 if Bid is by a Corporation)
ATTEST_________________________________
Mitch Haynam
GM 2100 E. Walnut Ave Fullerton Ca 92831
3-11-2025
1075333 C20, B, C10, C38
Mitchell Haynam 4-30-2025
208072185
4.B.2.3
Packet Pg. 534 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 535 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment To whom it may concern,
Golden West Fence is not CARB Compliant.
Kind Regards,
Daniel Martinez
CEO/President
(951)293-9501 Hansen ave
March 3, 2025
4.B.2.3
Packet Pg. 536 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
4.B.2.3
Packet Pg. 537 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment
PROPOSAL
(22-010) C-17
FLEET COMPLIANCE CERTIFICATION
Bidder hereby acknowledges that they have reviewed the California Air Resources Board’s policies, rules and regulations and are familiar with the requirements of Title 13, California Code of Regulations, Division 3, Chapter 9, effective on January 1, 2024 (the “Regulation”). Bidder hereby certifies, subject to penalty for perjury, that the option checked below relating to the Bidder’s fleet, and/or that of their subcontractor(s) (“Fleet”) is true and correct:
The Fleet is subject to the requirements of the Regulation, and the appropriate Certificate(s) of Reported Compliance have been attached hereto. The Fleet is exempt from the Regulation under section 2449.1(f)(2), and a signed description of the subject vehicles, and reasoning for exemption has been attached hereto.
Bidder and/or their subcontractor is unable to procure R99 or R100 renewable diesel fuel as defined in the Regulation pursuant to section 2449.1(f)(3). Bidder shall keep detailed records describing the normal refueling methods, their attempts to procure renewable diesel fuel and proof that shows they were not able to procure renewable diesel (i.e. third party correspondence or vendor bids). The Fleet is exempt from the requirements of the Regulation pursuant to section 2449(i)(4) because this Project has been deemed an Emergency, as defined under section 2449(c)(18). Bidder shall only operate the exempted vehicles in the emergency situation and records of the exempted vehicles must be maintained, pursuant to section 2449(i)(4).
The Fleet does not fall under the Regulation or are otherwise exempted and a detailed reasoning is attached hereto.
Signature:
Printed Name:
Title:
Firm Name:
Date:
x
Armando Echeverria
President
Masonry Solutions
3/11/2025
4.B.2.3
Packet Pg. 538 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Masonry Solutions
CSLB # 648103
10704 Valley Dr., Riverside, CA 92505
To Whom it May Concern,
Masonry Solutions currently only has one vehicle that has had any CARB offroad use regulated requirements. The rest of our fleet vehicles have not yet been required to get certified and consist of California street legal, smogged, DMV registered work trucks. The one vehicle that has been required to get certified has passed and received the certification (attached).
Thank you,
Armando Echeverria
President
951-536-3211
4.B.2.3
Packet Pg. 539 Attachment: SCW Contracting Solutions Proposal (Award of Contract for Equipping of the Grand Well and Construction of Grand Treatment Vehicle Compliance Certification
Issue Date: 2/28/2025
Start Date: 5/30/2025
Expiration Date: 11/30/2025 Certification ID: VCC1006565026 Vehicle Information
Vehicle Identification Number (VIN): 1FDUF5GT0PDA11348
Vehicle License Plate: 00847Y3
Vehicle Make: FORD
Vehicle Model Year: 2023
Vehicle Model: SUPER DUTY
Business Information
Company/Entity Name: Newhouse Construction Services, Inc.
Entity ID: E164438
Primary Address: 10704 Valley Dr, Riverside, CA 92505-2069, USA CARB reserves the right to invalidate this certificate if the vehicle is found violating the Clean Truck Check requirements prior to the certificate expiration date.
Future certificates may be denied if the vehicle has any outstanding CARB Enforcement actions.
Non-compliant vehicles could also have their registration denied by the Department of Motor Vehicles.
This compliance certificate does not exempt the vehicle from emissions-related inspection or audit.
For more information on Clean Truck Check, visit https://ww2.arb.ca.gov/cleantruckcheck.
To verify this certification: https://cleantruckcheck.arb.ca.gov.
CARB's Clean Truck Check team can be reached at [email protected].