Agenda packet — City Council and Authorities Concurrent, December 6, 2022 (part 10 of 11)

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for the benefit of Client/User in connection with the project detailed in the Product Schedule.

2. SERVICES

2.1. Provision of Services. Subject to and conditioned on Client's and its Users' compliance with the terms and conditions of this Agreement, LCPtracker hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 2.3) right to access and use the Services during the applicable Subscription Term solely for use by Client and Users in accordance with the Documentation for their internal business purposes. Client agrees that Client’s access to Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral/written public comments made by LCPtracker regarding future functionality/features. LCPtracker hereby grants to Client for the applicable Subscription Term a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 2.3) and revocable license to use the relevant Documentation and any other manuals, instructions, or other materials that LCPtracker makes available to Client which describe the features/requirements of the Services solely for Client’s internal business purposes in connection with its permitted use of the Services.

2.2. Limitations. Client will not (and will not permit any third party or User to): (i) modify (except as expressly permitted under the applicable Product Schedule), port, translate, localize or create derivative works based on the Services, (ii) use, copy, sell, rent, lease, market, distribute or sublicense the Services except as otherwise specifically permitted hereunder; (iii) reverse engineer, decompile, or disassemble the Services; (iv) access the Services in order to build or contribute to a competitive product or service, (v) access the Services in any manner that violates any intellectual property right of a third party, (vi) remove, or allow to be removed, any LCPtracker proprietary rights notice from any LCPtracker product, (vii) disclose the results of performance tests run on the Services to any third party without LCPtracker’s prior written consent, (viii) make the Services available to anyone other than Users, (ix) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (x) use the Services to store or transmit Malicious Code, (xii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (xiii) attempt to gain unauthorized access to the Services or their related systems or networks. This Agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other intellectual property right of LCPtracker that is not expressly granted herein. Client shall; (a) be responsible for the administration of User identifications and passwords and Users' compliance with this Agreement and shall require Users to acknowledge their understanding of and compliance with the restrictions and responsibilities related to the use of the Services, including, without limitation, protecting their User identification and passwords and compliance with all Applicable Laws; (b) use their best efforts to prevent unauthorized access to or use of the Services, and notify LCPtracker promptly of any unauthorized access or use, and (c) use the Services only in accordance with the Documentation and Applicable Laws. If Client becomes aware of any actual or threatened activity prohibited by this Section, Client shall, and shall cause its Users to, immediately: (A) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services); and (B) notify LCPtracker immediately in writing of any such actual or threatened activity.

2.3. Users. Client may permit any number of Users (unless otherwise set forth in the applicable Product Schedule) to use the Services; (i) in accordance with the terms of the applicable Product Schedule and the Documentation, and (ii) through a unique and reasonably secure username and password. If a two-factor authentication login system is provided, it is required to be used. Client is responsible to ensure that its Users comply with all the same obligations regarding use of the Services that it is bound by hereunder. Client is solely responsible for the activity that occurs on all associated User accounts. Users are required to keep their user account, username, and password secure. Client must notify LCPtracker immediately of any breach of security or unauthorized use of any User’s account. LCPtracker shall not be responsible for any losses arising out of the loss or theft of user information transmitted from or stored on a computer or device or from unauthorized or fraudulent transactions.

2.4. Use of Services Client is solely responsible for its and its Users’ compliance with all Applicable Law in the use of the Services and LCPtracker shall have no liability for Client’s or its Users’ input of data or use of the Services.

Client agrees that Client (a) will confirm the accuracy of any bulk upload/API/data migration/auto-geo assignment integration into the LCPtracker system, and (b) further understands that bulk uploads/API/data migration/auto-geo assignments are effective only as of the date of the upload(s)/migration(s). It is Client’s responsibility to provide updated data to LCPtracker. Client accepts that auto-geo assignments are automatically corrected by Microsoft based upon the co-ordinates in the KML file supplied by Client to LCPtracker, and further the accuracy of data subject location has some inaccuracy due to combining pure mapping co-ordinates (or deficiencies within those coordinates) with residential locations. Client agrees to not directly send any PII by email or otherwise (to LCPtracker outside of the LCPtracker SaaS Services product offering) without prior written approval from the LCPtracker Director of Client Services.

2.5 Changes. LCPtracker reserves the right, in its sole discretion, to make any changes to the Services that it

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deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of LCPtracker's services to its customers; (ii) the competitive strength of or market for LCPtracker's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with Applicable Law.

2.6. Data Backup. The Services are programmed to perform routine data backups as set out in LCPtracker's backup policy in effect from time to time (the "Backup Policy"). In the event of any loss, destruction, damage, or corruption of Client Data for any reason, LCPtracker will, as its sole obligation and liability and as Client's sole remedy, restore the Client Data from LCPtracker's then most current backup of such Client Data in accordance with the then current Backup Policy. It is the Client and the Users responsibility to maintain their own back-ups of their original data for the required statutory periods.

2.7. Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Client or any User in connection with the Services; (c) Client's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services ("Client Systems"); (d) the security and use of Client's and its Users' access credentials; and (e) with the exception of those instances referenced in Section 2.9 below, all access to and use of the Services directly or indirectly by or through the Client Systems or its or its Users’ access credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

2.8. Data Privacy. The Parties agree that, between the Parties, Client shall serve as the business or controller and LCPtracker shall serve as the service provider or processor, as those terms are defined under Applicable Law.

LCPtracker, as a service provider on behalf of Client, shall not access, use, process or retain Client Data containing PII except as necessary to perform its obligations under this Agreement and the applicable Product Schedule except in strict accordance with the written instructions of Client, or as otherwise required for LCPtracker to meet its own legal obligations under Applicable Law. Notwithstanding the foregoing, LCPtracker may use, disseminate, and otherwise process deidentified or aggregated Client Data to the full extent allowed under Applicable Law and pursuant to its own discretion subject to Section 2.10 below. LCPtracker shall immediately notify Client in the event that it receives any consumer rights requests under Applicable Law, if the requestor informs LCPtracker of the relevant employing entity who is also the Client, and the Client shall have the sole responsibility in responding to such requests.

2.9. Data Breach. LCPtracker shall report to Client the accidental or unlawful alteration, unauthorized acquisition, use, disclosure of, or access to Client Data (“Breach”) within 72 hours, after LCPtracker determines that a Breach has occurred, unless restricted by law. Accordingly, LCPtracker shall share information about the nature and consequences of the Breach that is reasonably requested by Client to enable Client to notify affected individuals, government agencies and/or credit bureaus. Per Section 2.7 above, Client has sole control over the content of Client Data that it enters into the LCPtracker system and is solely responsible for determining whether to notify impacted individuals and the applicable regulatory bodies or enforcement commissions and for providing such notice. Client shall ensure that its contacts designated herein are current and ready to receive any breach notification from LCPtracker.

2.10 Use of Names/Publicity. Except as expressly agreed otherwise by the Parties in writing, except as required by law, or except as required to enable LCPtracker to provide the Services herein, LCPtracker shall not use Client’s or its Affiliates’ name, logo, service marks, domain names, symbols or any other name or mark for any advertising or marketing purposes without Client’s prior written consent. Except as expressly agreed otherwise by the Parties, LCPtracker may not use Client as a reference or this Agreement as an endorsement of LCPtracker’s work without Client’s written consent.

3. FEES AND PAYMENT FOR SERVICES

3.1. Service Fees. Except as otherwise specified herein or in the Product Schedule, payment obligations are noncancelable, and Service Fees paid are non-refundable (except as expressly stated herein or a Product Schedule).

Service Fees are based on the start date as set forth in the Product Schedule and shall continue for the Subscription Term. All undisputed amounts payable to LCPtracker under this Agreement shall be paid by Client to LCPtracker in full when due without any setoff, deduction, or withholding for any reason.

3.2. Invoicing and Payment. If required by Client, Client may provide LCPtracker with a valid purchase order or alternative document reasonably acceptable to LCPtracker, provided that no terms contained on Client’s purchase order or alternative document will serve to modify the terms of this Agreement or the applicable Product Schedule.

Unless otherwise stated in the Product Schedule, payment of all undisputed amounts is due by check to the address listed above for LCPtracker net 30 days from the date of Client’s receipt of the applicable invoice.

3.3. Overdue Payments. If any Service Fees are not received from Client by the applicable due date, then at the sole discretion of LCPtracker (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid, and/or (b) LCPtracker may without limiting its other rights and remedies, suspend Client’s

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access to the Services until payment is made in full. LCPtracker will give Client at least thirty (30) business days' prior written notice that Client account is overdue, in accordance with Section 11.1 (Notices), before suspending the Services to Client.

3.4. Payment Disputes. If Client provides written notice to LCPtracker of a dispute about any portion of an invoice prior to the applicable payment due date, LCPtracker shall not exercise its rights under Section 3.3 provided Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

3.5. Taxes. Unless otherwise stated, Service Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying all Taxes, if any, associated with Client purchases hereunder, other than those based on LCPtracker’s income. If LCPtracker has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides LCPtracker with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.6. Auditing Rights and Required Records. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder in respect of the size of projects entered into the Services. LCPtracker may, at its own expense, on reasonable prior notice, periodically (during, or after the Term for a period of two (2) years) inspect Client's records with respect to the size of construction projects covered by this Agreement, provided that if such inspection reveals that Client has underpaid LCPtracker with respect to any amounts due hereunder, Client shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with this Agreement. Client shall pay for the reasonable costs of the audit if the audit determines that Client's underpayment exceeds 10% of sums due for any quarter.

4. PROPRIETARY RIGHTS

4.1. Reservation of Rights. The Services are not sold to Client or any third party. LCPtracker reserves all rights, title, and interest in and to Services and its underlying software covered by this Agreement, including but not limited to all related intellectual property rights. No rights are granted to Client hereunder (whether by waiver, implication, estoppel, or otherwise) other than as expressly set forth herein or a Product Schedule for the Term.

4.2. Additional Purchases and Affiliate Use. Client or Client Affiliates may, at additional cost, purchase access to other LCPtracker products by entering into new Product Schedules. Unless otherwise stated in the applicable Product Schedule, Client shall be and remain jointly and severally liable for any such Affiliates’ obligations under this Agreement.

4.3. Feedback and Aggregated Statistics. Any suggestions, enhancement requests, forms created, recommendations or other feedback relating to the operation/provision of the Services provided by Client, including by Users, or worked on by LCPtracker and Client/Users (“Feedback”), during and after the Term is and remains the intellectual property of LCPtracker and LCPtracker has all rights therein to exploit and commercialize any Feedback as LCPtracker chooses without compensation or other consideration to Client or any Users. LCPtracker is not required to use any Feedback. Notwithstanding anything to the contrary in this Agreement, LCPtracker may monitor Client and Users use of the Services and collect and compile Aggregated Statistics. As between LCPtracker, the Client and its Users, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by LCPtracker without compensation or other consideration to Client. Client acknowledges that LCPtracker may compile Aggregated Statistics based on Feedback. Client agrees that LCPtracker may (i) make Aggregated Statistics publicly available in compliance with Applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under Applicable Law, provided that such Aggregated Statistics do not identify the Client’s or Users’ Confidential Information. All Users of Services may be contacted by LCPtracker with information about LCPtracker events, services or products, and they will be given the opportunity to opt-out of any such communications.

4.4. Federal Government End Use Provisions. LCPtracker provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR

12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with LCPtracker to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

4.5. Client Data. LCPtracker acknowledges that, as between LCPtracker and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to LCPtracker a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client

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Data and perform all acts with respect to the Client Data as may be necessary for LCPtracker to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use Client Data within the Aggregated Statistics and Feedback. LCPtracker is not responsible for any errors due to inaccurate information provided by Client or Users.

5. CONFIDENTIALITY

5.1. Definition of Confidential Information. As used herein, "Confidential Information" means all information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without prejudice to the generality of the foregoing Confidential Information shall include business and marketing plans, technology and technical information, product plans, pricing and designs, and business processes disclosed by a Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access or reference to the Disclosing Party’s Confidential Information.

5.2. Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and the applicable Product Schedule, and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein.

5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party reasonable prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

6. WARRANTIES AND DISCLAIMERS

6.1. Warranties. LCPtracker warrants that (i) LCPtracker has validly entered into this Agreement, (ii) the Services shall perform materially in accordance with the Documentation, (iii) LCPtracker will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, (iv) LCPtracker will not transmit Malicious Code to Client, provided it is not a breach of this subpart (iv) if Client or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code, and (v) LCPtracker will continue to be SOC 2 Type 2 certified and ISO 800-171 compliant. For any breach of a warranty in this Section, Client’s exclusive remedy shall be as provided in Section 10.1 and Section 10.4. LCPTRACKER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

6.2. Client Warranties. Client represents and warrants that (i) Client has validly entered into this Agreement, (ii) Client has collected all PII in accordance with all Applicable Law, including in relation to the provision of any notice and for obtaining any consent required under any Applicable Law, contract, or privacy policy in connection with Client’s provision of PII into the Services to LCPtracker under this Agreement, (iii) Client has all sufficient and necessary rights to transfer PII into the Services to LCPtracker under this Agreement, (iv) Client has the rights to use the data in the Services in the manner it chooses to utilize the Services; and (v) Client will follow best practices in relation to data security. Client acknowledges that Client is solely responsible for the content uploaded into the Services and warrants that Client shall comply with all Applicable Law in its use of the Services and shall require all Users to acknowledge and agree to comply with Applicable Law, any applicable User terms of service or privacy policy, and the requirements of this Agreement in the same way as they apply to Client.

6.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE SERVICES ARE PROVIDED “AS IS” AND LCPTRACKER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,

STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING

ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND

NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY

PROVIDED HEREIN, LCPTRACKER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL,

OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH

ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.

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7. MUTUAL INDEMNIFICATION

7.1. Indemnification by LCPtracker. LCPtracker shall defend Client against any claim, demand, or proceeding made or brought against Client by a third party alleging that the use of the Services as permitted hereunder (i) infringes or misappropriates the US intellectual property rights of such third party in respect of the Services, (ii) violates Applicable Law, or (iii) arises from LCPtracker’s gross negligence or intentional misconduct (collectively and each a "Claim Against Client"), and shall indemnify Client for any damages, reasonable attorney fees and costs finally awarded against Client as a result of, and for amounts paid by Client under a court-approved settlement of a Claim Against Client; provided that Client (a) promptly provides LCPtracker written notice of the Claim Against Client; (b) allows LCPtracker sole control of the defense and settlement of the Claim Against Client (provided that LCPtracker may not settle any Claim Against Client unless the settlement unconditionally releases Client of all liability); and (c) provides to LCPtracker all reasonable assistance, at LCPtracker’s expense. In the event of a Claim Against Client, or if LCPtracker reasonably believe the Services may infringe or misappropriate a third party’s intellectual property rights, LCPtracker may, in LCPtracker’s sole discretion and at no cost to Client, (x) modify the Services so that they are no longer infringing, without breaching LCPtracker warranties under Section 6.1 above, (y) obtain a license for Client’s continued use of the Services in accordance with this Agreement, or (z) if LCPtracker determines that neither of the foregoing is commercially practicable and if Client is not permitted to continue using the Services, then this Agreement will terminate with respect to such infringing Services, and Client shall be entitled to recover from LCPtracker an amount equal to a pro-rated portion of the applicable prepaid Service Fees paid for the Services for the remaining Subscription Term for the applicable Services. LCPtracker shall have no liability for any infringement claim based on Client Data, or Client’s or its Users’ use of the Services in a manner not permitted hereunder, where such claim would not arise but for such Client Data or Client’s or its Users’ unauthorized use of the Client Data or the Services. LCPtracker will not be held responsible for actions outside its reasonable control and retains all its defenses at law and at equity.

7.2. Indemnification by Client. Unless prevented by Applicable Law, Client shall indemnify, hold harmless, and, at LCPtracker’s option, defend LCPtracker, it’s directors, officers and employees against any claim, demand, suit or proceeding made or brought against LCPtracker by a third party alleging that Client Data, or Client’s or its Users’ use of the Services in a manner not permitted hereunder, (i) infringes or misappropriates the intellectual property rights of a third party or (ii) violates Applicable Law, including, without limitation, a Client’s breach of Section 6.2(iii) or (iii) arises from Client’s gross negligence or intentional misconduct (together with Section 7.2(i), a "Claim Against LCPtracker"), and shall indemnify LCPtracker for any damages, attorney fees and costs finally awarded against LCPtracker as a result of, or for any amounts paid by LCPtracker under a court-approved settlement of, a Claim Against LCPtracker; provided that LCPtracker (a) promptly gives Client written notice of the Claim Against LCPtracker; (b) gives Client sole control of the defense and settlement of the Claim Against LCPtracker (provided that Client may not settle any Claim Against LCPtracker unless the settlement unconditionally releases LCPtracker of all liability); and (c) provides to Client all reasonable assistance, at Client expense. Client will not be held responsible for actions outside its reasonable control and retains all its defenses at law and at equity, however the behavior of Users and their use of the Services are deemed to be within Client’s reasonable control.

7.3. Exclusive Remedy. THIS SECTION 7 STATES THE INDEMNIFYING PARTY'S ENTIRE LIABILITY TO, AND

THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF INDEMNIFIED CLAIM DESCRIBED IN THIS SECTION.

8. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THIRD PARTY INDEMNIFICATION OBLIGATIONS SPECIFIED IN SECTION 7 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER

THIS AGREEMENT OR ANY OTHER AGREEMENT WITH THE OTHER PARTY UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (b) LOST REVENUES; (c) LOSS OF GOODWILL OR REPUTATION; (d) LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA; OR (e) COST OF

REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE OTHER PARTY WAS ADVISED

OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE. THE ONLY EXCEPTIONS TO THIS OR ANY OTHER LIMITATION IN THIS SECTION 8 IS INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF EITHER PARTY. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED THE LESSER OF $50,000 OR THE AMOUNTS PAID BY CLIENT FOR THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY COULD NOT ENTER INTO THIS CONTRACT ON THE TERMS SET FORTH HEREIN IF THE PARTY’S RESPECTIVE LIABILITY WERE NOT SO LIMITED.

9. TERM. This Agreement commences on the Effective Date hereof and continues until termination of all Product Schedules as provided below, or termination of this Agreement as provided herein, whichever occurs first. Except as

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otherwise specified in the applicable Product Schedule, all Subscription Terms shall automatically renew for subsequent additional like periods (each a “Renewal Term” and collectively, the “Term”) unless either Party gives the other Party notice of non-renewal at least ninety (90) days before the end of the then current applicable Subscription Term.

10. TERMINATION

10.1 Termination for Cause. (a) Either Party may terminate a Product Schedule for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if there is a Service Suspension which is not in the opinion of LCPtracker commercially reasonably or practically capable of being cured. (b) LCPtracker may terminate (effective upon notice to the Client) for a breach of Section 2.

10.2. Termination for Discontinuance. LCPtracker may, with no liability to the Client (except a pro rata refund of applicable Service Fees) or the Users, also terminate this Agreement and/or any applicable Product Schedule(s) to the extent LCPtracker discontinues any Services upon one hundred and eighty (180) days prior written notice to Client.

10.3. Effect of Termination. Upon termination of a Product Schedule or this Agreement for any reason, Client’s (and any Users’) right to continue using the Services under the applicable Product Schedule(s) shall immediately cease and Client shall destroy or return (as directed by LCPtracker) all Confidential Information related to such Product Schedule. A termination of a Product Schedule hereunder does not affect any other remaining Product Schedule(s) hereunder which shall remain subject to the terms of this Agreement unless such Product Schedule(s) are terminated in accordance with the terms hereof or unless the Agreement is terminated. Upon request from Client in writing upon termination of this Agreement, LCPtracker shall promptly delete all Client Data in the Services (in accordance with LCPtracker normal back-up procedures, but any Client Data not deleted due to a back-up procedure will not be kept for longer than six (6) months in the event of a request for deletion, and during that time LCPtracker’s obligations under this Agreement for confidentiality will continue to apply). Client acknowledges that if the Client Data is requested to be returned, Client will incur the applicable fees for the requested extract format as set forth on LCPtracker’s then current price list. Notwithstanding the foregoing, Client may elect to download the Client Data within thirty (30) days of such termination at no charge. If a portable drive is requested at a charge from LCPtracker, Client accepts the risk of damage or loss of this drive during transit. All Sections intended by their nature to survive termination, including, without limitation, Sections 5, 6, 7, 8, and 10 shall survive any termination or expiration of this Agreement.

10.4. Refund or Payment upon Termination. Upon any termination under Section 10.1 where LCPtracker is at fault, LCPtracker shall refund Client any prepaid Service Fees covering the prorated remainder of the applicable yearly period of the Subscription Term within thirty (30) days after the relevant effective date of termination. Unless provided otherwise herein, upon any other termination, Client shall remain obligated for any unpaid Service Fees covering the remainder of the Subscription Term.

10.5. Service Suspension. Notwithstanding anything to the contrary in this Agreement, LCPtracker may temporarily suspend Client's and any User's access to any portion or all of the Services if: (i) LCPtracker reasonably determines that (a) there is a threat or attack on any of the LCPtracker IP; (b) Client's or any User's use of the LCPtracker IP disrupts or poses a security risk to the LCPtracker IP or to any other customer or vendor of LCPtracker; (c) any User is using the LCPtracker IP for fraudulent or illegal activities; (d) subject to Applicable Law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) LCPtracker's provision of the Services to Client or any User is (x) prohibited by Applicable Law, or (y) deemed by LCPtracker to be commercially unfeasible due to Applicable Law; (ii) any vendor of LCPtracker has suspended or terminated LCPtracker's access to or use of any third-party services or products required to enable Client to access the Services; or (iii) in accordance with Section 3.3 (any such suspension described in subclause (i), (ii), or (iii) of this Section 10.5, a “Service Suspension”). LCPtracker will have no liability for any liabilities or any other consequences that Client or any User may incur as a result of a Service Suspension.

11. GENERAL PROVISIONS

11.1. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the permissions granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Santa Clara, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The Parties agree that the United Nations Convention on Contracts for the International Sales of Goods is expressly excluded from this Agreement. EACH PARTY IRREVOCABLY AND

UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT

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IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR

COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

11.2. Notices. Any notice required or permitted to be delivered pursuant to this Agreement, and any permission and approval required hereunder shall, unless otherwise provided herein, be in writing and shall be deemed to have been given: (i) upon delivery, if delivered in person, (ii) upon electronic confirmation of delivery if sent by electronic mail, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid, in each case addressed to the addressee set out in the first paragraph of this Agreement or to such other address as may be specified by either Party hereto upon notice given to the other Party in accordance with this Section. Certain LCPtracker updates regarding the Services are provided to Client at www.lcptracker.com/status.

11.3. Severability. If a provision of the Agreement or portion thereof is found to be invalid, illegal, or unenforceable under Applicable Law, it shall not invalidate or render unenforceable the remainder of such provision or the remaining provisions of the Agreement. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner.

11.4. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Client shall not access or use Services in violation of any U.S. export law or regulation.

11.5. Anti-Corruption. Client acknowledges that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any LCPtracker employees or agents in connection with this Agreement. If Client learns of any violation of this restriction, Client will promptly notify LCPtracker in writing.

11.6. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. LCPtracker will reach out from time to time with opportunities to Client in relation to other LCPtracker product opportunities and Client consents to this. No employee, director, or officer of LCPtracker shall be held personally liable under this Agreement. There are no third-party beneficiaries to this Agreement.

11.7. Waiver. No failure or delay by either Party in exercising any right or partial right, remedy, power or privilege under this Agreement shall constitute a waiver of that right, remedy, power or privilege.

11.8. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld).

Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Product Schedules), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party, provided that the assignee agrees in writing to be bound by the terms of this Agreement and has sufficient funds to discharge the assignor’s liabilities hereunder. A Party's sole remedy for any purported assignment by the other Party in breach of this paragraph shall be, at the non-assigning Party's election, termination of this Agreement upon written notice to the assigning Party and payment of all sums owing under the terms of this Agreement.

11.9. Entire Agreement. This Agreement, including all exhibits and all Product Schedules, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted, and in order to effectively amend the terms of this Agreement, any amendment must specifically call out the Section of this Agreement to be amended.

11.10. Counterparts. This Agreement and any Product Schedule hereunder may be executed in one or more counterparts; each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

11.11. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to pay Service Fees hereunder by Client), if and to the extent such failure or delay is caused by an event of Force Majeure (”Force Majeure” hereunder means any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labor, trade disputes, breakdowns, accidents of any kind which are beyond the reasonable control of a Party, or passage of law or any action taken by a governmental or public authority, which makes it commercially unreasonable to continue to have this Agreement in force).

11.12. Equitable Relief. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under Section 2.2, would cause LCPtracker irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, LCPtracker will be entitled to seek equitable relief from any court, without any requirement to post a bond or other security, or to prove

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Ver LCP.V3.22
actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

IN WITNESS WHEREOF, authorized representatives of the Parties have executed this Agreement effective as of the Effective Date defined above.

LCPtracker, Inc. Forty Niners Stadium Management Company LLC By: _________________________________________ By: __________________________________________ [LCPtracker Authorized Person Signature] [Client Authorized Person Signature] Name: _______________________________________ Name: ________________________________________ [LCPtracker Authorized Person Name] [Client Authorized Person Name] Title:_________________________________________ Title: _________________________________________ [LCPtracker Authorized Person Title] [Client Authorized Person Title] Date: ________________________________________ Date: _________________________________________ BULK PROJECT PRICING PRODUCT SCHEDULE, dated as of December 15th , 2022 (“Product Schedule”), to the Master Subscription Software as a Service Agreement, dated as of December 15th , 2022 (the “Agreement”) between LCPtracker and Client
Terms not defined herein shall have the meaning ascribed to them in the Agreement. The address for invoicing the Client is by email at [email protected] attn Jenti Vandertuig (Client to inform LCPtracker in writing thirty days in advance if this changes). Both parties hereto that LCPtracker is providing access to the following Services subject to the terms and conditions of the Agreement and this Product Schedule as follows:

A. SERVICES
Subscription Term is [one] year[s] and begins on the date of this Product Schedule.

LCPtracker Pro – Bulk Project Pricing Term Price
Bulk Project Pricing - Annual Access Fee
Construction Capacity: Up to $10 million
Bulk project Annual Access Fee for access to LCPtracker Professional comprising:
• Unlimited administrative Users at no cost to Client
• Unlimited contractor Users at no cost directly to Client • Administrator phone, email, and Live Chat technical software support as needed (not training). • Contractor email and “Live Chat” technical software support as needed (not training). • Unlimited administrator and registered contractor User access to on-demand, pre-recorded web training videos during the Term.

Fixed Annual Multiple Projects Fee Option
These are flat rate annual price packages for a one-year commitments for LCPtracker Services.

Annual
(With 15%
Discount)
$6,290
Standard Start-Up Fee (web-based)
• Configuration and setup of administrative account/database. • 3-4 Implementation sessions comprising Admin #1, Admin #2, contractor training, and Go Live (these may be combined).
• 1 additional Admin training session, either web-based or in-person (depending on selection). • 8 hours of wage data entry for Client.
• A single one-hour training session for Client on how to data load prevailing wage data, if needed. • *If elect in-person training, travel billed additionally according to cost, unless the flat travel fee is detailed.

One-time
(With 15%
Discount)
$5,525
• Optional Flat rate travel fee (flight, car, hotel for one night) Flat Rate
(With 15%
Discount)
$1,275

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Ver LCP.V3.22
Sales tax will be added per your state law at final invoicing.

B. BULK PROJECT PRICING TABLE
Bulk Project Service Fee 2022 Pricing for Administrator access to the Services (upon reaching the applicable tier) every year of the Subscription Term
Construction Capacity in the relevant
yearly period of the Subscription Term
LCPtracker Professional
Annual Access Service Fees
Daily Reporter Add-on Module
Annual Access Service Fees
Onsite Add-on
Module Annual Access
Service Fees
Up to $5 million $3,800 $2,000 $1,700
Up to $10 million $7,400 $3,700 $2,000
Up to $25 million $11,000 $5,500 $2,200
Up to $50 million $19,300 $9,700 $2,900
Up to $100 million $25,300 $12,800 $3,300
Up to $200 million $32,500 $16,500 $3,700
Up to $300 million $41,300 $20,700 $4,400
Up to $400 million $49,000 $24,200 $5,100
Up to $500 million $57,200 $28,600 $5,800
Up to $750 million $64,400 $31,900 $6,300
Up to $1 billion $71,500 $35,700 $6,900
Up to $2 billion $82,500 $41,400 $8,000
Up to $4 billion $117,700 $59,000 $11,400
Up to $6 billion $151,800 $75,900 $14,800
Up to $8 billion $184,300 $92,100 $17,100
Up to $10 billion $215,600 $107,800 $20,400
For Bulk Project Pricing of $2 billion and above, Client can choose to increase Client’s level of Construction Capacity in $500 million increments. The fee for this is $8,300 per $500 million in additional Construction Capacity. The associated Daily Reporter module fee is $4,200, and the Onsite module fee is $830 per each additional $500 million. **“Construction Capacity” means the value of construction calculated by adding the correct total (not just labor costs) updated construction bid award value of all active (“Open/Active”) projects in the Client’s account (which sum also includes all accounts in their Affiliate’s’ accounts) in the Licensed Software Services. The value of projects marked as “Open/Active” within the database is determined by the accurate total of project Budget amounts including change orders. This calculation is done monthly by LCPtracker. If a project is closed and no longer marked “Active”, the project will no longer be counted in that month's open active projects.

C. CONSTRUCTION CAPACITY
(a) “Construction Capacity” means the sum total of all active (“Open/Active”) projects in the Client’s account (which sum also includes all accounts under this Product Schedule in their Affiliates’ accounts) in the Services. The value of projects marked as “Open/Active” within the LCPtracker Professional database is determined by the accurate total of project “Budget” amounts.
(b) The original winning bid amount for Client’s construction project must be provided by Client to LCPtracker so it may be entered accurately in the relevant project “Budget” field in the LCPtracker Professional services platform. The winning bid amount must be updated by Client if change orders exceed 25% of the original total project winning bid amount for the relevant project (through written requests to LCPtracker Support Department – [email protected]). (c) Failure by Client or their Affiliates to accurately update LCPtracker Support Department of changes to the “Budget” field will be a material breach under the Agreement and will not remove the Client’s obligation to pay the amounts due for the Services based on an accurate “Budget” field. If a project is completed and closed (responsibility of Client to perform to avoid being billed for it), the project will no longer be counted in that month's open active projects for billing. (d) Periodically LCPtracker performs audits of project “Budget” fields to ensure accuracy and may reach out to Client to confirm the project “Budget” amounts accuracy. Failure by Client to timely respond to a request for information in relation to any such audit will allow LCPtracker to adjudicate that labor wages will account for 25% of the supplied project “Budget” amount and amend the relevant “Budget” amount accordingly in the Services for billing purposes. Client will be free to dispute this value with LCPtracker by providing accurate information in relation to Construction Capacity at any time.

D. PAYMENT TERMS
(a) Service Fees are due under this Product Schedule are due on the date hereof or on the yearly anniversary hereof unless provided otherwise.
(b) Service Fees for access to the Services detailed above will change if one of the following events occurs: (i) If the sum of all “Budget” amounts for projects entered in LCPtracker during the then current year of the Subscription Term exceed the Construction Capacity level purchased (Client will be invoiced for an amount equal to the difference between the Construction Capacity level provided for that year of the Subscription Term and the cost level for which the current correct Construction Capacity applies, prorated for the number of months remaining in the then current year of the Subscription Term.  This invoice shall be due and payable upon receipt. The new rate will then be applicable to the immediately following year of the Subscription Term), (ii) The Construction Capacity increases beyond the previously purchased level on the annual anniversary of this Product Schedule, or (iii) A notice is given to Client pursuant to Section D(d) below. (c) Fees for optional additional professional services to be included into the Services shall be invoiced and due upon delivery of the applicable service at the then current pricing of LCPtracker, unless any such service exceeds thirty (30) days, then invoices will be rendered at the end of each month and payable upon receipt thereof by Client by email.

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Ver LCP.V3.22
(d) The prices and terms of this Product Schedule are subject to change at the sole discretion of LCPtracker. A thirty (30) day notice will be provided to Client of such changes by an email to the Client contact and will only become effective to Client on said renewal date.
(e) If Client elects to pay by credit card, the credit card payment fee of four percent (4%) imposed on LCPtracker shall be added to Client’s payment to be charged. Client is responsible for providing complete and accurate billing and contact information to LCPtracker and notifying LCPtracker of any changes to such information. (f) If Client has no active projects at the time of a yearly renewal and Client wishes to keep its account open (in such case the then current LCPtracker active database fee shall apply). (g) Sales tax will be added per your state law at final invoicing.

E. ADDITIONAL TERMS: (if any)
LCPtracker, Inc. Client:_______________[Insert Client Name] By: _________________________________________ By: __________________________________________ [LCPtracker Authorized Person Signature] [Client Authorized Person Signature] Name: _______________________________________ Name: ________________________________________ [LCPtracker Authorized Person Name] [Client Authorized Person Name] Title:_________________________________________ Title: _________________________________________ [LCPtracker Authorized Person Title] [Client Authorized Person Title] Date: ________________________________________ Date: _________________________________________ City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1398 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Report from Stadium Authority Regarding Stadium Manager’s Request to Execute Agreement with LCPtracker, Inc. for Labor Compliance Software Subscription Service

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

BACKGROUND
On October 8, 2019, the Stadium Authority Board (Board) approved Ordinance No. 2005 amending Chapter 17.30 of the City Code (Stadium Authority Procurement Policy), which rescinded the delegation to the Executive Director to enter into agreements without prior Board approval. As result of Ordinance No. 2005, the Stadium Manager is also required to request Board approval before entering into agreements on behalf of the Stadium Authority. As of the effective date of the Ordinance (November 8, 2019), all Stadium Authority agreements for services, supplies, materials, and equipment require the approval of the Stadium Authority Board.

As the Stadium Manager, Forty Niners Stadium Management Company, LLC (ManCo), is responsible for maintaining “the Stadium in the Required Condition and operate the Stadium as a quality NFL and multi-purpose public sports, public assembly, exhibit and entertainment facility” as required by the Management Agreement between ManCo and the Stadium Authority.

The Stadium Manager is requesting approval to execute an agreement with LCPtracker, Inc. (LCPtracker) for a cloud-based labor compliance software subscription, for a one-year period beginning December 15, 2022 through December 14, 2023, in the amount of $13,090 and delegated authority to annually renew subscription services for an additional two years from December 15, 2023 through December 14, 2025. Since the renewal term extends beyond a single fiscal year, the term for subsequent fiscal years shall be conditioned upon approval of the Stadium Authority budget for the applicable fiscal year that includes the amounts due under the agreement as required under Chapter

17.30.100.

LCPtracker is software for certified payroll reporting, construction site compliance management, and workforce reporting, which are key elements of reporting to the Department of Industrial Relations for compliance with state worker wage laws (e.g., prevailing wage). The City has a current agreement with LCPtracker and these services have helped with management of prevailing wage agreements and tracking of contractors’ certified payroll. Due to the significant number of projects and services that require prevailing wage at Levi’s Stadium, the Stadium Authority supports the Stadium Manager’s entering into an agreement with LCPtracker for such services.

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DISCUSSION
Stadium Authority staff reviewed the Stadium Manager’s Recommendation for Award memo (attached to corresponding report #22-1397) for consistency against the Stadium Authority Procurement Policy and Santa Clara City Code Chapter 2.105.140(a) (Competitive Requirements for Purchases - Agreements Under $15,000). Staff also reviewed this request against the Stadium Manager’s previous request to execute a LCPtracker agreement. The main issues that were identified in the prior request/agreement, such as a contingency amount that was in excess of the normal 10-15%, mathematical/typographical errors between the agreement/report, and an undefined term for the agreement, are not in this new submittal (e.g., no contingency requested, service costs are clear in the report and match the agreement, and the term is defined as one year in the agreement).

As such, staff recommends approval of the Stadium Manager’s request to execute an agreement with LCPtracker for a cloud-based labor compliance software subscription, for a one-year period beginning December 15, 2022 through December 14, 2023, in the amount of $13,090. In regard to the Stadium Manager’s request for delegated authority to annually renew subscription services for an additional two years, staff recommends that the authority be delegated to the Executive Director instead, subject to budget appropriations. Currently, the Executive Director has no delegated signature authority for agreements under the Stadium Authority Procurement Policy. Approving staff’s recommendation to provide the Executive Director with such authority accomplishes the expediency that the Stadium Manager seeks.

The Stadium Authority Counsel’s Office has reviewed the requested agreement for comparison to the Stadium Authority’s customary language. While there are differences in the language for major provisions, nothing in the proposed agreement changes the Stadium Authority’s rights under the Management Agreement and specifically with respect to any dispute that may arise from the Stadium Manager’s obligations under the Management Agreement.

In addition, per Paragraph 4(b) of the Settlement Agreement, the Stadium Authority reserves all rights to confirm and dispute charges by and payments to the Stadium Manager during a fiscal year-end reconciliation/true-up, including but not limited to changes based on improper allocation, calculation, lack of support, or failure to comply with the Parties’ contracts or California law. The Stadium Authority may raise related questions before the fiscal year-end reconciliation/true-up, which the Stadium Manager agrees to assess and respond to in good faith.

ENVIRONMENTAL REVIEW
The actions being considered do not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment or pursuant to CEQA Guidelines section 15378(b)(4) in that it is a fiscal activity that does not involve any commitment to any specific project which may result in a potential significant impact on the environment.

FISCAL IMPACT
The Stadium Authority Fiscal Year (FY) 2022/23 Budget contains Shared Stadium Manager Expenses (Shared Expenses) such as Security, Stadium Operations, Engineering, Guest Services, and Groundskeeping. Shared Expenses are split between the Stadium Authority and Forty Niners SC Stadium Company LLC (StadCo) per the Management Agreement.

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22-1398 Agenda Date: 12/6/2022
There are sufficient funds in the FY 2022/23 Stadium Operations line item to cover the agreement cost for this year ($13,090, of which the Stadium Authority is responsible for $6,545).

COORDINATION
This report has been coordinated with the Stadium Authority Counsel and Treasurer’s Offices.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.

RECOMMENDATION

1. Approve the Stadium Manager’s request to execute an agreement with LCPtracker for a cloudbased labor compliance software subscription in the amount of $13,090 for a one-year period, from December 14, 2022 to December 15, 2023; and,

2. Authorize the Executive Director to approve the Stadium Manager’s execution of annual renewal for subscription services for an additional two years from December 15, 2023 through December 14, 2025 for the agreement with LCPtracker, subject to budget appropriations.

Prepared by: Christine Jung, Assistant to the Executive Director Approved by: Rajeev Batra, Executive Director
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1405 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Request from the Stadium Manager to Award Purchase Orders to EyeP Solutions, Inc. for the Parking Lot Camera Upgrades CapEx Project and Bowl Camera Upgrade/Refurbishment CapEx Project

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

DISCUSSION
On November 7, 2022, the Stadium Manager submitted a Recommendation for Award memo, along with supporting documentation, to request approval for the following actions:

1. Award a purchase order to EyeP Solutions, Inc. in the amount of $41,030 to replace cameras in the Great America parking lot with AXIS cameras and related accessories and install additional cameras in the Gold Lot 4/5 parking areas in the south part of the Stadium near the loading docks. This project is included in the Stadium Authority Fiscal Year (FY) 2022/23 Capital Expense (CapEx) Budget under the Parking Lot Camera Upgrades line item which is budgeted for $42,000.

2. Award a purchase order to EyeP Solutions, Inc. to replace cameras in the seating bowl with AXIS cameras in the amount of $120,008. This project is included in the Stadium Authority FY 2022/23 CapEx Budget under the Bowl Camera Upgrade/Refurbishment line item which is budgeted for $141,750.

The Stadium Manager’s Recommendation for Award memo describes the requests and the procurement process in more detail.

ATTACHMENTS

1. Stadium Manager’s Recommendation for Award
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1 Date: November 7, 2022
To: Rajeev Batra
Executive Director
Santa Clara Stadium Authority

From: Jenti Vandertuig
Procurement Director
Forty Niners Stadium Management Company LLC
Subject: Recommendation for Award for Axis Cameras and Related Accessories for Levi’s Stadium
Recommendation

1. Recommend approval and award of a Purchase Order to EyeP Solutions, Inc., to provide AXIS cameras and related accessories as part of the parking lot camera upgrades, in the amount of $41,029.88.

2. Recommend approval and award of a Purchase Order to EyeP Solutions, Inc., to procure AXIS cameras as part of the bowl camera replacement, in the amount of $120,007.66.

Forty Niners Stadium Management Company (Stadium Manager) submitted two capital expenditure requests to the Santa Clara Stadium Authority (SCSA) and received approval from the SCSA Board as part of the FY 22/23 fiscal year as follows:

Parking Lot Camera Upgrade ($42,000)
This project was planned to replace the cameras in the Great America parking lots with technologically advanced multi-lens panoramic/360/multi-directional cameras. Sun baked cameras with fixed angles have created gaps in coverage. New camera technology would provide better overall coverage of the main parking lot. With video incident request coming from ingress/egress incidents, new technology would assist in these investigations. The upgrade also included installing additional cameras in Gold Lot 4/5 parking areas at the Stadium.

Bowl Camera Upgrade/Refurbishment ($141,750)
The project was planned to replace or refurbish several seating bowl cameras. The bowl cameras have become sun baked and provide poor/obscured coverage of bowl seating.

Maintenance has become an issue due to the cost and time required to erect scaffolding to reach camera boxes each time the cameras require maintenance. The project will evaluate the opportunity to re-engineer the camera housing by relocating housing closer to stadium infrastructure, if possible.
2 Stadium Manager currently has a combination of different brands such as Bosch, Sony, and Arecont cameras throughout the Stadium and parking lots. When the Stadium was being constructed, the different camera styles available for the various needs of the building were only available through a combination of the previously mentioned vendors.

Stadium Manager reviewed the current product offerings from the existing manufacturers and conducted market research to determine the technical specifications to meet the needs of the Stadium. While there have been technological advancements among many manufacturers, Axis Communications product specifications and lifecycle management policies with a five year warranty meet the needs of the Stadium Manager to upgrade the cameras. Axis Communications has also achieved recertification for ISO 27001 for its Information Security Management System (ISMS). The audit for compliance with ISO 27001 was completed by an accredited third-party certification body and includes an extended scope from the original certification of Axis ISMS in 2019. In addition to a large footprint in the public sector, Axis Communications also cater to the needs of stadiums and venues which can be accessed via the URL: https://www.axis.com/en-us/solutions/stadiums-and-venues. Axis Communications also has a strong sustainability business code https://www.axis.com/en-us/about-axis/sustainability.

Axis Communications products are used by the public sector and there are numerous cooperative agreements for public agencies to utilize to take advantage of economies of scale.

Utilizing the Federal General Services Agency (GSA) Schedule Contract Number 47QTCA18D00C7 as a cooperative agreement, the State of California has issued a CMAS schedule to allow California State agencies and political subdivisions to take advantage of the GSA Schedule.

Axis Communications GSA Schedule
https://www.gsaadvantage.gov/ref_text/47QTCA18D00C7/0XMD8N.3TCQ4F_47QTCA18D00C 7_TANDCS_1644.PDF The California CMAS Agreement Number to utilize this Axis Communication pricing is 3-21-04-1100. The term of this agreement is from April 21, 2021 through May 14, 2023.

Stadium Manager has several cooperative agreements for technology purchases. Stadium Manager reached out to EyeP Solutions (CA CMAS Provider) CDW-G, and B&H Foto to obtain quotes to evaluate pricing and availability. B&H Foto offered only online price inquiries as most products were backordered due to supply chain issues. The following quotes were received for both projects inclusive of shipping and all applicable sales tax from the other cooperatives:

1. EyeP Solutions: $161,037.54

2. CDW-G: $209,564.47
Therefore, approval is sought to issue the two Purchase Order to EyeP Solutions, Inc. as follows:

1. Purchase Order for Parking Lot Camera Upgrade in the amount of $41,029.88

2. Purchase Order for Bowl Camera Upgrade in the amount of $120,007.66 3 The cost for these purchases are covered in the FY22/23 SCSA Capital Expenditures Budget referenced as Parking Lot Camera Upgrade in the amount of $42,000 and Bowl Camera Upgrade/Refurbishment in the amount of $141,750.

It must be noted that there we need to complete the installation work once the cameras are received for the Bowl Camera Upgrade project. Stadium Manager will determine if the work can be performed in house or through one of the contractors we have an on-call maintenance agreement with. If a third-party contactor is utilized, Stadium Manager will submit the necessary documents to the Board for review and approval.

Next Steps
Once Stadium Manager receives approval from the SCSA Board, Purchase Orders will be issued to EyeP Solutions, Inc. and executed copies forwarded to the Board. Supporting documentation is provided for review and approval.

Submitted By: __________________________________ Date: ___________________ Jenti Vandertuig, Procurement Director

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1406 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Report from the Stadium Authority for Action Regarding Stadium Manager’s Request to Award Purchase Orders to EyeP Solutions, Inc. for the Parking Lot Camera Upgrades CapEx Project and Bowl Camera Upgrade/Refurbishment CapEx Project

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

As the Stadium Manager, Forty Niners Stadium Management Company, LLC is responsible for maintaining “the Stadium in the Required Condition and operate the Stadium as a quality NFL and multi-purpose public sports, public assembly, exhibit and entertainment facility” as required by the Management Agreement between the Stadium Authority and Stadium Manager.

The Stadium Manager is requesting approval for the following actions:

DISCUSSION
Stadium Authority staff reviewed the Stadium Manager’s Recommendation for Award memo, supporting documentation, and draft purchase orders that were submitted (the memo is attached to corresponding report #22-1405) for consistency against the Stadium Authority Procurement Policy City of Santa Clara Page 1 of 3 Printed on 12/2/2022
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22-1406 Agenda Date: 12/6/2022
and Santa Clara City Code Chapter (SCCC) 2.105.140(b) (Competitive Requirements for Purchases - Purchase Order Between $15,000 and $250,000). The Stadium Manager obtained quotes for this procurement and is recommending award to the lowest quote received (EyeP Solutions, Inc.).

Based on this review, staff recommends approval of the Stadium Manager’s request to award purchase orders to EyeP Solutions, Inc. for the two CapEx projects.

The Stadium Authority Counsel’s Office has reviewed the requested purchase order for comparison to the Stadium Authority’s customary language. While there are some differences in the language, including portions covering compliance with laws such as prevailing wage and conflict of interest, the purchase order submitted here for approval contains the necessary language which identifies these legal obligations to the vendor. The vendor expressly agrees to adhere to such obligations upon its execution of the purchase order. Nothing in the proposed purchase order changes the Stadium Authority’s rights under the Management Agreement and specifically with respect to any dispute that may arise from the Stadium Manager’s obligations under the Management Agreement.

FISCAL IMPACT
The Stadium Authority FY 2022/23 CapEx Budget includes $42,000 for the Parking Lot Camera Upgrades line item. There are sufficient funds to cover the cost of the camera upgrade ($41,030).

The Stadium Authority FY 2022/23 CapEx Budget includes $141,750 for the Bowl Camera Upgrade/Refurbishment line item. There are sufficient funds to cover the cost of the camera upgrade ($120,008).

COORDINATION
This report has been coordinated with the Stadium Authority Counsel and Treasurer’s Offices.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at City of Santa Clara Page 2 of 3 Printed on 12/2/2022
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22-1406 Agenda Date: 12/6/2022
(408) 615-2220, email [email protected] or at the public information desk at any City of Santa Clara public library.

RECOMMENDATION

1. Approve the Stadium Manager’s request to award a purchase order to EyeP Solutions, Inc. in the amount of $41,030 to replace cameras in the Great America parking Lot with AXIS cameras and related accessories and install additional cameras in the Gold Lot 4/5 parking areas (Parking Lot Camera Upgrades CapEx Project); and

2. Approve the Stadium Manager’s request to award a purchase order to EyeP Solutions, Inc. in the amount of $120,008 to replace cameras in the seating bowl with AXIS cameras (Bowl Camera Upgrade/Refurbishment CapEx Project).

Reviewed by: Christine Jung, Assistant to the Executive Director Approved by: Rajeev Batra, Executive Director
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1413 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Request from Stadium Manager to Award Agreement to California United Mechanical, Inc. for the Cooling Towers CapEx Project and Related Budget Amendment

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

DISCUSSION
On November 7, 2022, the Stadium Manager submitted the attached Recommendation for Award memo, along with supporting procurement documentation, to request approval for the following actions related to the Cooling Towers Capital Expense (CapEx) Project:

1. Award a one-time agreement to California United Mechanical, Inc. in the amount of $117,350 to replace internal parts and systems for the cooling towers at Levi’s Stadium;

2. Approve a budget amendment to increase the total budget amount by $89,768, from $46,001 to $135,769, for this CapEx project;

3. Authorize the Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of the project; and

4. Authorize the Stadium Manager to execute change orders up to 10% of the project cost ($11,735), for a total not to exceed construction agreement amount of $129,085.

The Stadium Authority Fiscal Year (FY) 2022/23 CapEx Budget includes $46,001 for the Cooling Towers line item. The Stadium Manager’s Recommendation for Award memo describes the request and Request for Bids (RFB) process in more detail.

ATTACHMENTS

1. Stadium Manager’s Recommendation for Award

2. Draft Agreement with United Mechanical, Inc.

City of Santa Clara Page 1 of 1 Printed on 12/2/2022
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1 Date: November 7, 2022
To: Rajeev Batra
Executive Director
Santa Clara Stadium Authority
From: Jenti Vandertuig
Procurement Director
Forty Niners Stadium Management Company LLC
Subject: Recommendation for Award RFB FY22-0031 Levi’s Stadium Cooling Towers Project
Recommendation

1. Recommend approval and award of a one-time contract to United Mechanical, Inc., in the amount of $117,350, to replace the internal parts and systems for the cooling towers at Levi’s Stadium.

2. Recommend a budget augmentation for the Levi’s Stadium Cooling Towers Project (Project) of $89,768.21, which will increase the total budget amount for this Project from $46,001 to $135,769.21. The original Project budget was approved by the Santa Clara Stadium Authority (SCSA) as part of the FY22/23 SCSA Capital Expenditures Budget.

3. Authorize Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of this Project; and

4. Authorize Stadium Manager to execute change orders up to 10% of the Project cost or $11,735 for a total not to exceed construction contract amount of $129,085.

Solicitation Process
Forty Niners Stadium Management Company LLC (Stadium Manager) has a need to replace certain internal parts and systems for the cooling towers at Levi’s Stadium (Stadium). This includes, but is not limited to, the replacement of motors, fans, fill, controls, and piping in the cooling towers which in turn support the HVAC system functionality at the Stadium.

The Project was approved as part of the FY22/23 SCSA Capital Expenditures budget.

On July 26 2022, Stadium Manager issued a Request for Bids (RFB) FY22-0031 for the Project.

Stadium Manager published the RFB on Bonfire Interactive, Stadium Manager’s eProcurement portal https://49ers.bonfirehub.com/portal/. In addition to inviting a list of contractors on our established supplier list, Stadium Manager also selected contractors registered on the portal with specific commodity codes offering such services.
2 On July 29, 2022, Stadium Manager published the Notice Inviting Bids for the Project in the San Jose Mercury News publication. Notices were also emailed on July 26, 2022 to the Builders’ Exchange of Santa Clara County and Minority Business Consortium to communicate with their respective member communities regarding the solicitation for the Project.

Stadium Manager held a non-mandatory pre-bid conference on August 8, 2022 at 2:00 p.m. (PT) to provide an overview of the Project and answer any questions from prospective bidders. The RFB provided prospective bidders the option to schedule on-site visits to the Stadium.

Electronic bid submissions were due on or before August 25, 2022 at 3:00 p.m. (PT). Three bids were received on or before the closing due date and time from the following firms:

1. United Mechanical Inc. - $117,569

2. ACCO - $158,902

3. Carrier Corporation - $116,144
Public Bid Opening
A public bid opening was held on August 25, 2022 at 4:30 p.m. (PT). The RFB provided the public bid opening webcast information including a meeting ID and password for bidders to log on via Zoom to attend. Multiple callers were in attendance. Stadium Manager announced the receipt of the three bids on or before the due date and time, announced the name of the bidders and the base bid amounts and declared Carrier Corporation as the apparent low bidder.

The protest period ended on September 1, 2022. There were no protests.

Evaluation of Apparent Low Bidder
Stadium Manager reviewed the bid from Carrier Corporation and determined that the apparent low bidder’s bid was nonresponsive. The bid forms were unsigned and no bid bond was provided. The bidder also augmented the bid forms included as part of Addendum #1 to the Bid Documents. The bidder also failed to provide several other bid forms. Carrier Corporation was notified of the results, and Stadium Manager offered to provide training on bid submissions for future opportunities.

The second low bidder, United Mechanical, Inc. (the firm’s full legal name is California United Mechanical, Inc.), is the lowest responsible bidder submitting a responsive bid. United Mechanical, Inc. is properly licensed with the California State License Board and registered with DIR. There is a minor arithmetical error in the calculation of the base bid amount, which we are authorized to correct per the terms of the Bid Documents. The actual total base bid amount is $83,852 (versus the stated amount of $84,071). This means the total bid price (the base bid amount plus additive alternate #1) is $117,350 (versus the stated amount of $117,569).

A budget augmentation is necessary to move this Project forward because the base bid amount alone is in excess of the remaining Project budget.
3 Next Steps
The Project was approved as part of the FY22/23 SCSA Capital Expenditures budget. The current approved amount for this Project is $46,001.

Stadium Manager is recommending a budget augmentation to address the following costs for this Project:

1. Issuance of a Task Order to HKS Architects, Inc. - $6,450

2. San Jose Mercury News Publication Fees - $234.21

3. United Mechanical, Inc. Bid - $117,350
Once Stadium Manager receives approval from the SCSA Board, a contract (included in the RFB) will be executed with United Mechanical, Inc., and a fully executed copy of the contract will be forwarded to the SCSA. In addition, Stadium Manager requests authorization to issue change orders up to $11,735 or 10% of the project cost which will allow Stadium Manager to take timely administrative action if required and not delay completion of the Project.

Supporting documentation has been provided for review and approval. The cost for advertising the RFB in the San Jose Mercury News publication for one day is $234.21. Stadium Manager’s request to publish legal notices in the San Jose Mercury News for various solicitations, including public works, was approved by the SCSA Board on July 13, 2021. This Project is a public works project.

Submitted By: __________________________________ Date: ___________________ Jenti Vandertuig, Procurement Director

83784.00001\40140753.1
RFB Number: RFB-FY22-0031 1 CONTRACT

FORTY NINERS STADIUM MANAGEMENT COMPANY LLC

CONSTRUCTION CONTRACT
LEVI’S STADIUM COOLING TOWER IMPROVEMENTS

AND SPARE PARTS PURCHASE PROJECT

1. PARTIES AND DATE.

This Contract is made and entered into this [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***] by and between the Forty Niners Stadium Management Company LLC, a Delaware limited liability company (“Stadium Manager”) and [***INSERT NAME***], a [***INSERT TYPE OF ENTITY - CORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL ENTITY***] with its principal place of business at [***INSERT ADDRESS***] (“Contractor”). Stadium Manager and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.

2. RECITALS.

2.1 Stadium Manager. Stadium Manager seeks to contract for services necessary to achieve its purpose.

2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the Stadium Manager on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing facility cooling tower related construction services, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of Stadium Manager. The following license classifications are required for this Project: B – General Building Contractor or C-20 – Warm Air Heating, Ventilation and Air-Conditioning Contractor or C-36 – Plumbing Contractor.

2.3 Project. Stadium Manager desires to engage Contractor to render such services for the Levi’s Stadium Cooling Tower Improvements and Spare Parts Project (“Project”) as set forth in this Contract.

2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, a performance bond, a payment bond, and all insurance documentation, as required by the Contract.

3. TERMS

3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Plans and Specifications (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 2 CONTRACT
• Procurement and Contract Process Integrity and Conflict of Interest Guidelines (Exhibit “G”)
• Levi’s Stadium Jobsite Rules (Exhibit “H”)
• Addenda
• Change Orders executed by the Stadium Manager
• 2018 Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-9
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor’s Bid

3.2 Contractor’s Basic Obligation; Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the Stadium Manager all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit ”C” attached hereto and incorporated herein by this reference.

3.2.1 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in writing by a valid change order executed by the Stadium Manager.

Should Contractor request a change order due to unforeseen circumstances affecting the performance of the Work, such request shall be made within five (5) business days of the date such circumstances are discovered or shall waive its right to request a change order due to such circumstances. If the Parties cannot agree on any change in price required by such change in the Work, the Stadium Manager may direct the Contractor to proceed with the performance of the change on a time and materials basis.

3.2.2 Substitutions/”Or Equal”. Pursuant to Public Contract Code Section 3400(b), the Stadium Manager may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the Stadium Manager may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than seven (7) calendar days prior to the bid submission deadline set forth in the Notice Inviting Bids as it may be amended. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected or submitted untimely, Contractor shall be responsible for 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 3 CONTRACT
providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.

The Stadium Manager has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted.

Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the Stadium Manager in a timely fashion will result in the rejection of the proposed substitution.

Contractor shall bear all of the Stadium Manager’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process or article. Contractor is directed to the Special Conditions and/or Services/Schedule exhibits attached hereto (if any) to review any findings made pursuant to Public Contract Code Section 3400.

3.3 Period of Performance.

3.3.1 Contract Time. Contractor shall perform and complete all Work under this Contract within 90 calendar days, beginning the effective date of the Notice to Proceed (“Contract Time”). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the Stadium Manager. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the Stadium Manager will suffer damage.

3.3.2 Force Majeure. Neither Stadium Manager nor Contractor shall be considered in default of this Contract for delays in performance caused by circumstances beyond the reasonable control of the non-performing party. For purposes of this Contract, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; pandemics or epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Contract.

Contractor’s exclusive remedy in the event of delay covered under this Section shall be a noncompensable extension of the Contract Time.

3.3.3 Liquidated Damages. Pursuant to Government Code Section 53069.85, Contractor shall pay to the Stadium Manager as fixed and liquidated damages the sum of one hundred dollars ($100.00) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 4 CONTRACT

3.4 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including any required business license, and that such licenses and approvals shall be maintained throughout the term of this Contract. Contractor shall perform, at its own cost and expense and without reimbursement from the Stadium Manager, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the Stadium Manager to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the Stadium Manager, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.

3.5 Control and Payment of Subordinates; Contractual Relationship. Stadium Manager retains Contractor on an independent contractor basis and Contractor is not an employee of Stadium Manager. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.

3.6 Stadium Manager’s Basic Obligation. Stadium Manager agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the Stadium Manager shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the below-referenced compensation in accordance with compensation provisions set forth in the Contract.

3.7 Compensation and Payment.

3.7.1 Amount of Compensation. As consideration for performance of the Work required herein, Stadium Manager agrees to pay Contractor the Total Contract Price of _________________ Dollars ($_________.00) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the Stadium Manager.

3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, Stadium Manager will arrange for payment of the Total Contract Price upon completion and approval by Stadium Manager of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, Stadium Manager will pay Contractor on a monthly basis as provided for herein. On or before the fifth (5th) day of each month, Contractor shall submit to the Stadium Manager an itemized application for payment in the format supplied by the Stadium Manager indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 5 CONTRACT
which is required by this Contract and such other documentation as the Stadium Manager may require including, without limitation, the prevailing wage compliance documentation specified herein. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the Stadium Manager and in such detail and form as the Stadium Manager shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.

3.7.3 Prompt Payment. Stadium Manager shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. However, no progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.

3.7.4 Contract Retentions. From each approved progress estimate, five percent (5%) will be deducted and retained by the Stadium Manager, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.

3.7.5 Other Deductions and Withholdings. In addition to Contract retentions, the Stadium Manager may deduct from each progress payment an amount necessary to protect Stadium Manager from loss because of: (1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the Stadium Manager in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by Stadium Manager during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the Stadium Manager, incurred by the Stadium Manager for which Contractor is liable under the Contract; (11) the failure to comply with and timely submit all necessary prevailing wage compliance documentation as required under this Contract; and (12) any other sums which the Stadium Manager is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the Stadium Manager to deduct any of these sums from a progress payment shall not constitute a waiver of the Stadium Manager’s right to such sums.

3.7.6 Substitutions for Contract Retentions. In accordance with California Public Contract Code Section 22300, the Stadium Manager will permit the substitution of securities for any monies withheld by the Stadium Manager to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the Stadium Manager, or with a state or federally chartered bank in California as the escrow agent, and thereafter the Stadium Manager shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Section and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the Stadium Manager has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 6 CONTRACT
substituted for monies withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section shall be in the form provided by the Stadium Manager.

3.7.7 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the Stadium Manager at the time of payment. To the extent that title has not previously been vested in the Stadium Manager by reason of payments, full title shall pass to the Stadium Manager at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items.

Such transfer of title shall not imply acceptance by the Stadium Manager, nor relieve Contractor from the responsibility to strictly comply with the Contract and shall not relieve Contractor of responsibility for any loss of or damage to items.

3.7.8 Labor and Material Releases. Contractor shall furnish Stadium Manager with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by Stadium Manager.

3.7.9 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Stadium Manager shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the Indemnified Parties (defined below) free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.

3.7.10 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said Section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.

3.7.11 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 7 CONTRACT

3.7.12 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, 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 him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code Section 1776. In the event of noncompliance with the requirements of this Section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this Section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to Stadium Manager, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on public works with the intent to defraud shall be ineligible to bid on public works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this Section is on Contractor. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code Section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.7.13 Contractor and Subcontractor Registration. Pursuant to Labor Code Sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted, nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

3.7.14 Proof of Compliance. It shall be Contractor’s sole responsibility to comply with, and maintain adequate records of its adherence to, all applicable state prevailing wage requirement. Contractor is responsible for maintaining and providing the following documentation to Stadium Manager for review and approval within the timeframes specified below.

3.7.14.1 Division of Apprenticeship Standards (DAS) 140 Form (applicable if Total Contract Price is $30,000 or more). Contractor, on behalf of itself and its subcontractors, must provide a copy of DAS 140 forms filed with the appropriate apprenticeship committee(s) the earlier of Contractor’s first application for payment for Work performed under this Contract or ten (10) days of Contract execution.

3.7.14.2 DAS 142 Form (applicable if Total Contract Price is $30,000 or more). Contractor, on behalf of itself and its subcontractors, must provide a copy of DAS 142 forms filed with the appropriate apprenticeship committee(s) or evidence of an approved exemption with its first application for payment for Work involving an apprenticeable craft or trade classification – additional DAS 142 forms or evidence of approved exemptions must be provided following this initial submission with future applications for payment in the event those applications 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 8 CONTRACT
are for Work involving an apprenticeable craft or trade classification not covered under the first application for payment.

3.7.14.3 California Apprenticeship Council (CAC) Form CAC-2; Training Fee Contributions (applicable if Total Contract Price is $30,000 or more). Contractor, on behalf of itself and its subcontractors, must submit evidence of mandatory training contributions required under Labor Code section 1777.5, as it may be amended from time to time, via submission of completed Form CAC-2 and/or confirmation of payment to a valid union trust fund with each application for payment submitted to Stadium Manager.

3.7.14.4 Certified Payroll Records; Statement of Compliance.

Contractor, on behalf of itself and its subcontractors, must submit complete payroll records on forms substantially similar to the Department of Industrial Relations Form A-1-131 with each application for payment submitted to Stadium Manager. Each set of certified payroll records submitted to Stadium Manager with any application for payment must be accompanied by a signed Statement of Compliance certifying the information on the certified payroll records is true and correct. For the period covered by any application for payment in which Contractor and its subcontractors did not perform Work, Contractor must additionally submit a signed Statement of Non-Performance certifying no work was performed. Contractors are advised the submission of electronic certified payroll records to the Department of Industrial Relations via the eCPR system is not an acceptable substitute to maintaining and providing full certified payroll records as required by this provision and applicable law.

3.7.14.5 Fringe Benefit Statement. Contractor, on behalf of itself and its subcontractors, must submit complete Fringe Benefit Statement(s) for the crafts and trade classifications utilized to perform the Work covered by any application for payment. All Fringe Benefit Statements must be submitted with the application for payment to which each applies.

3.7.14.6 Demand for Compliance Records. At any time during or subsequent to the full performance of the Work under this Contract and in addition to the obligations set forth above, Stadium Manager and/or the Santa Clara Stadium Authority may require Contractor to produce and or correct and re-submit any prevailing wage compliance records, which must be reviewed and approved by Stadium Manager and/or the Santa Clara Stadium Authority, prior to full release of payment.

3.7.14.7 Withholding for Non-Compliance. In the event Contractor or any subcontractor is found not to be in compliance with the foregoing requirements for any application for payment whether for progress payments or final payment, Stadium Manager has the right to withhold up to ten percent (10%) of the amount owed to Contractor under the affected application for payment until full compliance is achieved. Contractor acknowledges and agrees the foregoing amount is a reasonable estimate of the value of the documentation specified above.

3.7.15 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. 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 Stadium Manager. Contractor shall defend, indemnify and hold the Indemnified Parties free and harmless 83784.00001\40140753.1
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from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

3.8 Performance of Work; Jobsite Obligations.

3.8.1 Water Quality Management and Compliance.

3.8.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.

3.8.1.2 Compliance with the Statewide Construction General Permit. Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.

3.8.1.3 Other Water Quality Rules Regulations and Policies.

Contractor shall comply with the lawful requirements of any applicable municipality, drainage Stadium Manager, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

3.8.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, by submitting a Bid, hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.

3.8.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the Indemnified Parties for any alleged violations. In addition, Stadium Manager may seek damages from 83784.00001\40140753.1
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Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.

3.8.1.6 Reservation of Right to Defend. Stadium Manager reserves the right to defend any enforcement action brought against the Stadium Manager for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy.

Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the Stadium Manager for the costs (including the Stadium Manager’s attorney’s fees) associated with, any settlement reached between the Stadium Manager and the relevant enforcement entity.

3.8.1.7 Training. In addition to the standard of performance requirements set forth in paragraph 3.4, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.8.1. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by Stadium Manager, regarding the requirements of the laws, regulations and policies described in paragraph 3.8.1 as they may relate to the Work provided under this Agreement. Upon request, Stadium Manager will provide the Contractor with a list of training programs that meet the requirements of this paragraph.

3.8.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.

3.8.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the Stadium Manager in writing. Any necessary changes shall be made by written change order. Stadium Manager shall further comply with all requirements specified in the Stadium Manager’s Procurement and Contract Process Integrity and Conflict of Interest Guidelines, which are attached hereto as Exhibit “G” and incorporated herein by this reference. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Stadium Manager, Contractor shall be solely responsible for all costs arising therefrom. Stadium Manager may be subject to certain provisions of the Health & Safety Code, Government Code, Public Contract 83784.00001\40140753.1
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Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold the Indemnified Parties (defined below) free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.8.4 Permits and Licenses. Contractor shall be responsible for securing Stadium Manager permits and licenses necessary to perform the Work described herein, including, but not limited to, any required business license. While Contractor will not be charged a fee for any Stadium Manager permits, Contractor shall pay the Stadium Manager’s business license fee, if any. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.

3.8.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for Stadium Manager’s review and approval 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.

3.8.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify Stadium Manager of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by Stadium Manager; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, Stadium Manager shall promptly investigate the conditions to determine whether a change order is appropriate. In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.

3.8.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, Stadium Manager shall compensate Contractor for the costs of:
(1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work.

Contractor shall not be assessed liquidated damages for delay caused by failure of Stadium Manager to provide for removal or relocation of such utility facilities.

3.8.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are broader, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify the 83784.00001\40140753.1
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Indemnified Parties (defined below) against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.8.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.

3.9 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify Stadium Manager in writing and shall furnish all labor and material releases required by this Contract. Stadium Manager shall thereupon inspect the Work. If the Work is not acceptable to the Stadium Manager, the Stadium Manager shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a reinspection by the Stadium Manager. Once the Work is acceptable to Stadium Manager, Stadium Manager shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which Stadium Manager may be authorized or directed by law to retain. Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.

3.10 Claims; Government Code Claim Compliance.

3.10.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this 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.

3.10.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with the terms of this Contract has been denied by the Stadium Manager, 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, or (C) an amount the payment of which is disputed by the Stadium Manager. A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a change order, or otherwise failed to follow any procedures contained in the Contract.

Claims governed by this Section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the Stadium Manager and shall include on its first page the following in 16-point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. 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. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon. 83784.00001\40140753.1
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3.10.3 Supporting Documentation. The Contractor shall submit all claims in the following format:

3.10.3.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made

3.10.3.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other

3.10.3.3 Chronology of events and correspondence

3.10.3.4 Analysis of claim merit

3.10.3.5 Analysis of claim cost

3.10.3.6 Time impact analysis in CPM format

3.10.3.7 If Contractor’s claim is based in whole or in part on an allegation of errors or omissions in the Drawings or Specifications for the Project, Contractor shall provide a summary of the percentage of the claim subject to design errors or omissions and shall obtain a certificate of merit in support of the claim of design errors and omissions.

3.10.3.8 Cover letter and certification of validity of the claim, including any claims from subcontractors of any tier, in accordance with Government Code Section 12650 et seq.

3.10.4 Stadium Manager’s Response. Upon receipt of a claim pursuant to this Section, Stadium Manager 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 Stadium Manager issues its written statement.

3.10.4.1 If Stadium Manager needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, Stadium Manager shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
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3.10.4.2 Within 30 days of receipt of a claim, Stadium Manager may request in writing additional documentation supporting the claim or relating to defenses or claims Stadium Manager 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 Stadium Manager and the Contractor.

3.10.4.3 Stadium Manager’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.

3.10.5 Meet and Confer. If the Contractor disputes Stadium Manager’s written response, or Stadium Manager fails to respond within the time prescribed, the Contractor may so notify Stadium Manager, in writing, either within 15 days of receipt of Stadium Manager’s response or within 15 days of Stadium Manager’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, Stadium Manager shall schedule a meet and confer conference within 30 days for settlement of the dispute.

3.10.6 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, Stadium Manager 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 Stadium Manager issues its written statement. Any disputed portion of the claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with Stadium Manager and the Contractor sharing the associated costs equally. Stadium Manager 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.

3.10.6.1 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.

3.10.6.2 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.

3.10.6.3 Unless otherwise agreed to by Stadium Manager 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.

3.10.6.4 The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed.
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3.10.7 Procedures After Mediation. If following the mediation, the claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written claim pursuant to subdivision (a) until the time the claim is denied, including any period of time utilized by the meet and confer conference or mediation.

3.10.8 Civil Actions. The following procedures are established for all civil actions filed to resolve claims subject to this Section:

3.10.8.1 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.

3.10.8.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.

3.10.8.3 In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

3.10.9 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, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code Sections 900 et seq. prior to filing any lawsuit against the Stadium Manager.

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, claims, and/or changed conditions have been followed by Contractor.

If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the Stadium Manager. A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted.

3.10.10 Non-Waiver. Stadium Manager’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. Stadium 83784.00001\40140753.1
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Manager’s failure to respond shall not waive Stadium Manager’s rights to any subsequent procedures for the resolution of disputed claims.

3.11 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by Stadium Manager. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the Stadium Manager may terminate this Contract pursuant to Section 3.17.3; provided, however, that the Stadium Manager needs to provide Contractor with only one (1) day advanced written notice.

3.12 Indemnification.

3.12.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the Stadium Manager, Forty Niners SC Stadium Company LLC, Forty Niners Football Company LLC, the Santa Clara Stadium Authority, the City of Santa Clara, their affiliates, and each of their respective officers, directors, managers, members, partners, owners, employees, agents and authorized volunteers, each tenant and event promoter of Levi’s Stadium, and any mortgagee, bond trustee or other financial institution from time to time holding a line or indenture upon an interest in Levi’s Stadium, and each of them (collectively, the “Indemnified Parties”), free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code Section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the Indemnified Parties or the Indemnified Parties’ agents, servants, or independent contractors who are directly responsible to the Indemnified Parties, or for defects in design furnished by those persons.

3.12.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of Stadium Manager’s choosing and at Contractor's own cost, expense and risk, any and all Claims covered by this Section that may be brought or instituted against the Indemnified Parties. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the Indemnified Parties as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse the Indemnified Parties for the cost of any settlement paid by the Indemnified Parties as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the Indemnified Parties' attorney's fees and costs, including expert witness fees. Contractor shall reimburse the Indemnified Parties for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Indemnified Parties.

3.13 Insurance.
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3.13.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the Stadium Manager that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the Stadium Manager that the subcontractor has secured all insurance required under this Section. Failure to provide and maintain all required insurance shall be grounds for the Stadium Manager to terminate this Contract for cause.

3.13.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:

3.13.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01) OR Insurance Services Office Owners and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. Policies shall not contain exclusions contrary to this Contract.

3.13.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ compensation limits as required by the Labor Code of the State of California.

Employer’s Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease. Defense costs shall be available in addition to the limits.

Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.

3.13.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the Stadium Manager to add the following provisions to the insurance policies:

3.13.3.1 General Liability. (1) Such policy shall give the Stadium Manager, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the Stadium Manager, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Stadium 83784.00001\40140753.1
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Manager, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.

3.13.3.2 Automobile Liability. (1) Such policy shall give the Stadium Manager, its officials, employees, agents and authorized volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the Stadium Manager, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Stadium Manager, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.

3.13.3.3 Workers’ Compensation and Employer’s Liability Coverage.

The insurer shall agree to waive all rights of subrogation against the Stadium Manager, its officials, employees, agents and authorized volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.

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

3.13.4 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Stadium Manager, its officials, employees, agents and authorized volunteers.

3.13.5 Deductibles and Self-Insurance Retentions. Any deductibles or selfinsured retentions must be declared to and approved by the Stadium Manager. Contractor shall guarantee that, at the option of the Stadium Manager, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Stadium Manager, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the Stadium Manager guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

3.13.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, licensed to do business in California, and satisfactory to the Stadium Manager. Exception may be made for the State Compensation Insurance Fund when not specifically rated.

3.13.7 Verification of Coverage. Contractor shall furnish Stadium Manager with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the Stadium Manager. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on 83784.00001\40140753.1
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its behalf and shall be on forms supplied or approved by the Stadium Manager. All certificates and endorsements must be received and approved by the Stadium Manager before work commences. The Stadium Manager reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.13.8 Subcontractors. All subcontractors shall meet the requirements of this Section before commencing Work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the Stadium Manager, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the Stadium Manager in writing.

3.13.9 Reporting of Claims. Contractor shall report to the Stadium Manager, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.

3.14 Bond Requirements.

3.14.1 Payment Bond. If required by law or otherwise specifically requested by Stadium Manager in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to Stadium Manager concurrently with this Contract a Payment Bond in an amount required by the Stadium Manager and in a form provided or approved by the Stadium Manager. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Stadium Manager.

3.14.2 Performance Bond. If specifically requested by Stadium Manager in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to Stadium Manager concurrently with this Contract a Performance Bond in an amount required by the Stadium Manager and in a form provided or approved by the Stadium Manager. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Stadium Manager.

3.14.3 Bond Provisions. Should, in Stadium Manager’s sole opinion, any bond become insufficient, or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from Stadium Manager. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the Stadium Manager, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the Stadium Manager. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the Stadium Manager, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the Stadium Manager. If Contractor fails to furnish any required bond, the Stadium Manager may terminate the Contract for cause.

3.14.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the Stadium Manager. 83784.00001\40140753.1
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3.15 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the Stadium Manager of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the Stadium Manager in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected Work. Contractor shall perform such tests as the Stadium Manager may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the Stadium Manager, regardless of whether or not such warranties and guarantees have been transferred or assigned to the Stadium Manager by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the Stadium Manager. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the Stadium Manager, the Stadium Manager shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the Stadium Manager for any expenses incurred hereunder upon demand.

3.16 Employee/Labor Certifications.

3.16.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.

3.16.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

3.16.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal 83784.00001\40140753.1
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law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.

3.17 General Provisions.

3.17.1 Stadium Manager’s Representative. The Stadium Manager hereby designates the General Manager, or his or her designee, to act as its representative for the performance of this Contract (“Stadium Manager’s Representative”). Stadium Manager’s Representative shall have the power to act on behalf of the Stadium Manager for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the Stadium Manager’s Representative or his or her designee.

3.17.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the Stadium Manager (“′Contractor’s Representative”).

Following approval by the Stadium Manager, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the Stadium Manager, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the Stadium Manager, shall be made for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the Stadium Manager’s written approval.

3.17.3 Termination. This Contract may be terminated by Stadium Manager at any time, with or without cause, by giving Contractor three (3) days advance written notice. In the event of termination by Stadium Manager for any reason other than the fault of Contractor, Stadium Manager shall pay Contractor for all Work performed up to that time as provided herein.

In the event of breach of the Contract by Contractor, Stadium Manager may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset Stadium Manager’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, Stadium Manager may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

Further, if this Contract is terminated as provided, Stadium Manager may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract.

3.17.4 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from Stadium Manager, the matter shall be referred to Stadium Manager’s Representative, whose decision shall be binding upon Contractor.

3.17.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the Stadium 83784.00001\40140753.1
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Manager 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. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the Stadium Manager tender final payment to Contractor, without further acknowledgment by the Parties.

3.17.6 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:

CONTRACTOR:
[***INSERT CONTRACTOR NAME AND ADDRESS***]
Attn: [***INSERT CONTRACTOR REP. NAME AND TITLE***]
STADIUM MANAGER:

Forty Niners Stadium Management Company LLC
4900 Marie DeBartolo Way
Santa Clara, CA 95054
Attn: Ryan van Maarth, Vice President, Stadium Projects & Planning
With copy to:

Legal Affairs
Forty Niners Stadium Management Company LLC
4949 Marie P. DeBartolo Way
Santa Clara, CA 95054
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.17.7 Time of Essence. Time is of the essence in the performance of this Contract.

3.17.8 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of Stadium Manager. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, Stadium Manager may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.

3.17.9 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties. 83784.00001\40140753.1
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3.17.10 Laws, Venue, and Attorneys’ Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California.

3.17.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.

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

3.17.13 Levi’s Stadium Jobsite Rules. Contractor and its subcontractors of every tier and their officers, employees, workers, consultants, volunteers, agents shall comply with the Levi’s Stadium Jobsite Rules attached hereto as Exhibit “H” and incorporated herein by this reference. Failure to comply with the Levi’s Stadium Jobsite Rules may lead to dismissal of any violating parties from the Project site. Contractor shall be solely responsible for any time and cost impacts arising out of any failure to comply with the Levi’s Stadium Jobsite Rules.

3.17.14 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, Stadium Manager shall have the right to terminate this Contract without liability.

3.17.15 Conflict of Interest. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Stadium Manager shall have the right to rescind this Agreement without liability. For the term of this Contract, no official, officer or employee of Stadium Manager, during the term of his or her service with Stadium Manager, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. In addition, Contractor agrees to file, or to cause its employees or subcontractors to file, a Statement of Economic Interest with the Stadium Manager’s Filing Officer as required under state law in the performance of the Work.

3.17.16 Certification of License.

3.17.16.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.

3.17.16.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural 83784.00001\40140753.1
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defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.

Box 26000, Sacramento, California 95826.

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

3.17.18 Entire Contract; Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.

3.17.19 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.17.20 Stadium Manager’s Right to Employ Other Contractors. Stadium Manager reserves right to employ other contractors in connection with this Project or other projects.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE FOR CONSTRUCTION CONTRACT

BETWEEN THE FORTY NINERS STADIUM MANAGEMENT COMPANY LLC AND [***INSERT CONTRACTOR NAME***]
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the [***INSERT DAY***] day of [***INSERT MONTH***], 2022.

FORTY NINERS STADIUM [INSERT NAME OF CONTRACTOR]

MANAGEMENT COMPANY LLC
By: By:

Jim Mercurio
EVP & General Manager Its:

Printed Name:

License No.:
(CONTRACTOR’S SIGNATURE MUST BE

NOTARIZED AND CORPORATE

SEAL AFFIXED, IF APPLICABLE)
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EXHIBIT “A”

SERVICES / SCHEDULE

SUMMARY
This Project provides spare parts and improvements for the Levi’s Stadium’s cooling towers located southeast of the stadium. The existing cooling towers are Marley NC8407TAN with four (4) cells total. The fan blade connectors, gear boxes, and motor couplings are showing signs of corrosion. The existing cooling towers use makeup water from the reclaimed water system at the stadium. Scaling of fill is an ongoing maintenance task due to the high phosphate levels contained in the cooling tower makeup water. These improvements and spare parts will extend the useful life of the existing towers and maintain operations at Levi’s Stadium.

SCOPE OF WORK

1. Base Bid Scope: Cooling Tower Improvements and Spare Parts a. Contractor shall replace the existing gear box on Cell 1. Existing photos of these components are shown in Exhibit “A-1”.
b. Contractor shall clean, refurbish and paint fan blade connectors, per manufacturer’s recommendations, for all four (4) cells. Existing photos of these components are shown in Exhibit “A-1”.
c. Contractor shall inspect and replace one (1) motor couplings per cell with like kind for all four (4) cells.
d. Contractor shall provide the spare parts to Levi’s Stadium’s engineering staff as defined in the “Materials” section of this Exhibit “A”. e. Contractor shall conduct improvements to the tower components as defined in the “Materials” section of this Exhibit “A”.
f. Contractor shall conduct the following activities for all tower components:
i. Clean Water Level Indicators
ii. Lubricate Motor/Gearbox

2. Additive Alternate Item #1 Scope: Spare Parts – One (1) Attic Stock Gear Box a. Contractor shall provide one (1) attic stock gear box to match existing. Photos of these existing components are shown in Exhibit “A-1”.

3. Contractor shall provide all materials, equipment, tools, labor, supervision, and project management necessary to complete the Project. Contactor is responsible for obtaining all permits and approvals from authorities having jurisdiction as may be necessary to complete the Project.

4. Locations of cooling towers are shown in Exhibit “A-2” for reference. 83784.00001\40140753.1
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GENERAL REQUIREMENTS

1. Contractor shall provide protection for all existing building components beneath and around the Work. Any damage to existing building components caused by Contractor shall be immediately repaired or replaced at Contractor’s sole expense in a manner acceptable to and approved by Stadium Manager.

2. In all active Work areas, Contractor shall provide, install and maintain all necessary barricades and warnings to prohibit pedestrian access into any affected Work area. This not only includes areas surrounding the Work, but also includes areas below the Work. Levi’s Stadium is an active building containing employees, guests, and other contractors on a daily basis.

MATERIALS

1. Contractor shall provide the following spare parts, from the tower manufacturer or an approved equal, to Stadium Manager as part of the Base Bid Scope. a. Attic Stock - all to match existing components:
i. Gear box
ii. Motors
iii. Fan Blade Connectors
iv. Basin Water Level Indicator
v. Isolation Valves and Actuators for Make-up and Hot Deck Dispersion vi. Hot Deck Inlet Nozzle
vii. Vibration Switches

2. Contractor shall provide the following spare parts, from the tower manufacturer or an approved equal, to Levi’s Stadium’s Engineering Staff as part of the Additive Alternate #1 Scope.
a. Attic Stock - all to match existing components:
i. Gear box

3. Contractor shall be solely responsible for ensuring and verifying the parts and pieces required, including any approved substitutes, are compatible with the existing towers. 83784.00001\40140753.1
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SUBMITTALS

1. Contractor shall submit parts and pieces identified in the “Materials” section of this document to the Stadium Manager for review and approval.

2. Contractor shall submit paint specifications and procedure to the Stadium Manager for review and approval.

INSTALLATION

1. The Contractor is responsible for the installation and material requirements per the manufacturer requirements. Contractor shall provide all tools, labor, materials, and accessories necessary to complete the installation per the manufacturer requirements.

2. The Project site is Levi’s Stadium, which is located at the following address:

Levi’s Stadium
4900 Marie P. DeBartolo Way
Santa Clara, CA 95054

SCHEDULE

1. Delivery and installation of materials is required within the Contract Time specified in the Contract. Contractor shall coordinate with Stadium Manager to schedule delivery, site access, and installation of materials.
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EXHIBIT “A-1”

FAN BLADE CONNECTOR AND GEAR BOX
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EXHIBIT “A-2”

COOLING TOWER LOCATION
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EXHIBIT “B”

PLANS AND SPECIFICATIONS
PLEASE REFER TO EXHIBIT “A”.
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EXHIBIT “C”

SPECIAL CONDITIONS
ARTICLE 1. BONDS
Within fourteen (14) calendar days from the date the Contractor is notified of award of the Contract, the Contractor shall deliver to the Stadium Manager four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the Stadium Manager and included as Exhibit “F” to the Contract. Failure to do so may, in the sole discretion of Stadium Manager, result in the forfeiture of Contractor’s bid security. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the Stadium Manager. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.

ARTICLE 2. STADIUM MANAGER’S REPRESENTATIVE DESIGNEE
For purposes of this Project, the Stadium Manager’s Representative Designee shall be: Vice President, Stadium Operations and Strategic Planning
ARTICLE 3. LOCATION OF THE PROJECT
The Project is located at Levi’s Stadium, 4900 Marie P. DeBartolo Way, Santa Clara, CA ARTICLE 4. SCHEDULE CONSTRAINTS
It is anticipated that the Contractor will be unable to perform Work on the Project site at least 48 hours prior to and 24 hours after any event with a projected attendance greater than 10,000 people without prior written approval from the Stadium Manager. Specific known dates for these events at this time include the following dates:

1. July 29, 2022

2. August 12, 2022

3. August 27, 2022

4. September 18, 2022

5. October 3, 2022

6. October 8-9, 2022

7. October 23, 2022

8. November 13, 2022

9. November 27, 2022

10. December 4, 2022
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11. December 11, 2022

12. December 24, 2022

13. January 7, 2023
Contractor is assumed to have accounted for such events during the duration of the Project as part of its bid and may not claim any time or cost impacts and will not be granted any time extensions or additional compensation as a result of these events.

Contractor shall ensure that any Work performed on the Project site is scheduled with the Stadium Manager in advance.

Stadium Manager has considered these schedule constraints when determining the Contract Time and no additional time or compensation will be added to the Contract due to these schedule constraints.

ARTICLE 5. NOISE RESTRICTIONS
Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by Cal/OSHA.

Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in this Contract, including hours of operation requirements.

No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.

ARTICLE 6. SAFETY PROGRAMS
In addition to all other safety requirements of the Contract, Contractor must comply with Cal/OSHA safety requirements at all times during the performance of the Work.

Stadium Manager has considered these safety programs when determining the Contract Time and no additional time or compensation will be added to the Contract due to these safety programs.
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EXHIBIT “D”

CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
[***INSERT CONTRACTOR NAME***]
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
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EXHIBIT “E”

PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code Sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/PublicWorks/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:
• Contractor shall maintain a current DIR registration for the duration of the project. • 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. • 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
1 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.”
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EXHIBIT “F”

PAYMENT AND PERFORMANCE BONDS

ATTACHED BEHIND THIS PAGE
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PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the Forty Niners Stadium Management Company LLC (hereinafter referred to as “Stadium Manager”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for Levi’s Stadium Cooling Tower Improvements and Spare Parts Project (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 Stadium Manager 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 Indemnified Parties, as stipulated and defined 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 Stadium Manager, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the Stadium Manager 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 Stadium Manager’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 Stadium Manager to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the Stadium Manager’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 Stadium Manager, 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 Stadium Manager under the Contract and any modification thereto, less any amount previously paid by the Stadium Manager to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the Stadium Manager 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 Stadium Manager under the Contract and any modification thereto, less any amount previously paid by the Stadium Manager to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that the Stadium Manager 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 Stadium Manager, when declaring the Contractor in default, notifies Surety of the Stadium Manager’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.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 39 CONTRACT
(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 of surety signatory.

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.
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 40 CONTRACT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer
Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 41 CONTRACT

Levi’s Stadium Cooling Tower Improvements and Spare Parts Project (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 Stadium Manager 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 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 42 CONTRACT
subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or Stadium Manager 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
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 43 CONTRACT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 44 CONTRACT
EXHIBIT “G”

PROCUREMENT AND CONTRACT PROCESS INTEGRITY AND CONFLICT OF INTEREST

GUIDELINES
1 PURPOSE

1.1 The purpose of these Guidelines is to ensure integrity in the Stadium Manager’s procurement and contract processes, to educate Stadium Manager employees, consultants, uncompensated outside parties and any person involved in the decision to award a contract about potential Conflicts of Interest, and to establish guidelines for procedural screening of Conflicts of Interest.

1.2 The Stadium Manager desires to provide a fair opportunity to participants in competitive processes for the award of Stadium Manager contracts by promulgating integrity and removal of Conflicts of Interest in all competitive solicitations. 2 DEFINITIONS

2.1 PURCHASING MANAGER
“Purchasing Manager” is the Stadium Manager representative designated by the Stadium Manager to be responsible for the Stadium Manager’s procurement process.

2.2 ELECTED OFFICIAL
“Elected Official” means the City of Santa Clara Mayor, Council Members, City Clerk, and Chief of Police.

2.3 COUNCIL APPOINTEES
“Council Appointees” means the City of Santa Clara City Manager, City Attorney, and City Auditor.

2.4 SOLICITATION
“Solicitation” means, but is not limited to, specification development, preparation and issuance of requests for proposals, quotes, qualifications or bids, evaluation of responses and submissions, and other evaluations which lead to an award of a Stadium Manager contract. 3 GENERAL PROVISIONS

3.1 COMMUNICATION PROTOCOL

3.1.1 Prior to Issuance of Solicitations: Prior to the issuance of Solicitations, contact between prospective respondents and Stadium Manager staff, consultants or City of Santa Clara elected officials is permissible.

3.1.2 After Issuance of Solicitations and prior to Submission deadline for Solicitations: After issuance of Solicitations, all contact between prospective respondents and the Stadium Manager with regard to the Solicitation must be directed to the procurement contact designated in the Solicitation. Stadium Manager staff and consultants will refer all inquiries with regard to the Solicitation to the procurement contact. All requests for clarification, objections to the structure, content, or distribution of a Solicitation, or other inquiries must be made in writing and the Stadium Manager shall answer to these clarifications, objections, and inquiries in writing via addenda to the Solicitation.

3.1.3 After Submission Deadline of Solicitations and prior to Issuance of a Notice of Intended Award: After the submission deadline of Solicitations, all contact regarding the procurement between respondents and the Stadium Manager and participants in the evaluation process, who are not Stadium Manager employees or representatives, must be directed to the procurement 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 45 CONTRACT
contact designated in the Solicitation. Stadium Manager staff and consultants will refer all inquiries to the procurement contact identified in the Solicitation document.

3.1.4 After Issuance of a Notice of Intended Award: The Stadium Manager will issue a notice of intended award to all respondents including the basis for selection and instructions for filing a protest. All respondents shall follow the procedures for protest as indicated in the Solicitation document. During the protest period, Stadium Manager staff and consultants will refer all inquiries to the procurement contact identified in the Solicitation document.

3.1.5 After Completion of Protest Period: After completion of the protest period contact between prospective respondents and Stadium Manager staff, consultants and City of Santa Clara elected officials is permissible.
4 RESPONDENT'S CODE OF CONDUCT
By submitting a response to a Stadium Manager Solicitation, respondents are individually and solely responsible for ensuring compliance with these Guidelines on behalf of the respondent's employees, agents, consultants, lobbyists, or other parties or individuals engaged for purposes of developing or supporting a response. In addition to adhering to these Guidelines, respondents may not collude, directly or indirectly among themselves in regard to the amount, terms or conditions of a Solicitation, influence any Stadium Manager staff member or evaluation team member throughout the solicitation process, including the development of specifications, submit incorrect information in the response to a Solicitation or misrepresent, or fail to disclose material facts during the evaluation process. Any evidence indicating a respondent has failed to adhere with any section of these Guidelines may result in the respondent's disqualification from the procurement as well as possible debarment.
5 CONFIDENTIALITY DURING EVALUATION PROCESS

5.1 Stadium Manager staff, consultants, and outside evaluators who are participants in the evaluation process are required to sign a confidentiality agreement which binds the participants not to share any information about responses received and the evaluation process until the Stadium Manager issues a notice of intended award.
6 CONFLICT OF INTEREST

6.1 Elected officials, appointed officials, their staffs, and Stadium Manager employees and consultants are expected to avoid any conflicts of interest. Further, such individuals should avoid the appearance of conflicts of interest in order to ensure that Stadium Manager decisions are made in an independent and impartial manner. In general, the designated Stadium Manager procurement contact, in consultation with the Stadium Manager’s Chief Financial Officer (“CFO”) shall take measures to ensure that the Stadium Manager avoid any conflict of interests in procurement processes of Stadium Manager contracts. Specifically, these measures include that:

6.1.1 Persons who may not be regularly involved in Stadium Manager procurements review this Exhibit and other ethical standards and elicit such information from them to enable the Stadium Manager to determine if the person's participation would create a conflict of interest. Such persons shall include, but are not limited to:
• authors of specifications
• paid and unpaid evaluators
• paid and unpaid consultants who assist in the procurement process

6.1.2 The CFO shall discuss any potential conflict of interest identified with Stadium Manager’s legal department and document the resulting determination, and take appropriate action including, but not limited to, removal of an employee, consultant, or outside uncompensated party from the procurement activity or cancellation of a Solicitation. 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 46 CONTRACT
7 ALLEGATIONS OF CONFLICT OF INTEREST

7.1.1 Prior to the Solicitation release, up to award of contract, any allegations of conflict of interest by a Stadium Manager employee, consultant, or other participant in the pre- Solicitation and Solicitation process shall be reported to the CFO. The CFO shall investigate the alleged conflict of interest in consultation with the Stadium Manager’s legal department and document the resulting determination.
8 ALLEGATIONS OF MISCONDUCT

8.1.1 At any time during a Solicitation process, any misconduct by a Stadium Manager employee, consultant, or other participant in the pre-Solicitation and Solicitation process, shall be reported to the CFO. The CFO shall investigate the alleged misconduct, in consultation with the procurement contact, and others, as appropriate. Nothing in these guidelines is intended to prohibit anyone from communicating with the CFO or legal department about any alleged misconduct.
83784.00001\40140753.1
RFB Number: RFB-FY22-0031 47 CONTRACT
EXHIBIT “H”
LEVI’S STADIUM JOBSITE RULES
The Contractor (to include all contractors, vendors, subcontractor and employees of each) shall adhere to the following rules while on site:

1. Contractor shall park in only approved Contractor designated parking areas as identified by Stadium Manager.

2. No smoking, drugs, or alcohol permitted on site.

3. Contractor work area must be left in a clean, neat and orderly condition at the end of each day. If the Contractor fails to perform daily cleaning the Stadium Manager reserves the right to clean up debris at Contractor expense.

4. Contractor shall coordinate with Stadium Manager for use of restroom facilities prior to Project.

5. Contractor to schedule work hours with Stadium Manager prior to Project. Work outside of regularly schedule hours shall require prior written approval by Stadium Manager.

6. Contractor shall coordinate employee break areas with the Stadium Manager prior to Project. All lunch and break debris generated by the Contractor must be disposed of immediately in appropriate containers (i.e., glass, aluminum, cardboard, etc.).

7. No radios, iPods, music devices with earbuds, etc. allowed. NO EXCEPTIONS.

8. Contractor shall report Project status to the Stadium Manager weekly and provide an update on the progress of the work. Contractor shall contact Stadium Manager immediately should any incidents occur or if any conflicts with these jobsite rules should arise.

9. Personal Protective Equipment (“PPE”), including but not limited to, proper safety clothing MUST be worn at all times while on jobsite. Any personnel without proper safety clothing will not be allowed on site. This include office personnel and visitors.

Appropriate PPE shall be coordinated with the Stadium Manager prior to Project.

10. The Contract supervisor assigned to this job must have the ability to make employees follow ALL jobsite rules.

11. NO children (under 18 years old) are allowed on site.

12. Contractor, to include all employees and visitors, must register each day for stadium access through the Stadium Manager provided visitor management and access control system. Contractor employees are subject to health screening prior to approval of site access. Contractor employees shall adhere to all Stadium Manager site access requirements.

13. Contractors and all employees must stay in their area as required and defined in the Project scope of work. Any Contractor employee found outside of the authorized Project area will be removed from the property and may not return to the site.

14. Contractor Equipment / Vehicles – Contractor shall coordinate delivery and use of all equipment brought and used on site (owned or rented) with the Stadium 83784.00001\40140753.1
RFB Number: RFB-FY22-0031 48 CONTRACT
Manager prior to Project. Equipment shall display markings identifying the following information for each piece of equipment while on site:
• Contractor’s Company Name
• Contractor’s Equipment Contact
• Contact Phone Number
• Duration On-Site (i.e. 06/02/21- 06/15/21)
Equipment requiring this information includes, but is not limited to, the following types of equipment:
• Material Handling Equipment (such as Forklifts and Pallet Jacks) • Golf Carts
• Flatbeds
• Manlifts
• Vehicles
• Job Boxes
• Trailers
• Other Equipment
Anyone operating this equipment must have the proper certifications, operate them in compliance with Cal/OSHA standards, and shall follow any Stadium Manager safety protocols.

Social Media Policy
This policy governs contractors use of social media, including any online tools used to share content and profiles, such as personal web pages, message boards, networks, communities, and social networking websites including, but not limited to, Facebook, Twitter, Instagram, LinkedIn, Snapchat, Tumblr, Reddit, and web blogs. The lack of explicit reference to a specific site or type of social media does not limit the application of this policy.

The Contractor (and all employees) are prohibited from the following:

1. Using social media to post or to display comments about Stadium Manager, the San Francisco 49ers, Levi’s Stadium, co-workers, supervisors, clients, vendors, suppliers or members of management that are vulgar, obscene, physically threatening or intimidating, harassing, or otherwise constitute a violation of the Stadium Manager’s workplace policies against discrimination, retaliation, harassment, or hostility on account of any protected category, class, status, act or characteristic.

2. Infringing on Stadium’s logos, brand names, taglines, slogans or other trademarks.

Contractors and their agents, owners, and employees shall comply with the laws regarding copyrights, trademarks, rights or publicity and other third-party rights.

3. Posting or displaying content that is an intentional public attack on the quality of the Stadium’s products and/or services in a manner that a reasonable person would perceive as calculated to harm the Stadium’s business and is unrelated to any employee concern involving wages, hours, or other terms and conditions of employment.

4. Posting a photograph of a supervisor, manager, co-worker (including players and coaches in non-public settings), vendor, supplier, or client without that individual's express permission.
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RFB Number: RFB-FY22-0031 49 CONTRACT
Violations of this policy may result in disciplinary action up to and including removal from the jobsite. Please contact the Stadium Manager if you have any questions about this policy.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1414 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Report from the Stadium Authority for Action Regarding Stadium Manager’s Request to Award Agreement to California United Mechanical, Inc. for the Cooling Towers CapEx Project and Related Budget Amendment

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

The Stadium Manager is requesting approval for the following actions related to the Cooling Towers Capital Expense (CapEx) Project:

1. Award a one-time agreement to California United Mechanical, Inc. in the amount of $117,350 to replace internal parts and systems for the cooling towers at Levi’s Stadium;

2. Approve a budget amendment to increase the total budget amount by $89,768, from $46,001 to $135,769, for this CapEx project;

3. Authorize the Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of the project; and

4. Authorize the Stadium Manager to execute change orders up to 10% of the project cost ($11,735), for a total not to exceed construction agreement amount of $129,085.

The Stadium Authority Fiscal Year (FY) 2022/23 CapEx Budget includes $46,001 for the Cooling Towers line item. The proposed budget amendment will cover the cost of the one-time agreement ($117,350), a 10% contingency for change orders ($11,735), HKS Architects task order ($6,450), and San Jose Mercury News publication fees ($234).

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22-1414 Agenda Date: 12/6/2022
On November 9, 2021, the Stadium Authority Board approved a Master Agreement with Task Order Forms with HKS Architects for architectural and engineering services. The Stadium Authority Board also approved purchase orders for the publication of legal notices in the San Jose Mercury News and Santa Clara Weekly for various solicitations. As such, the expenses related to HKS and San Jose Mercury News do not require further Board approval.

DISCUSSION
Stadium Authority staff reviewed the Stadium Manager’s Recommendation for Award memo, supporting procurement documents, and the draft agreement with United Mechanical, Inc. (these documents are attached to corresponding report #22-1413) for consistency against the Stadium Authority Procurement Policy and the City’s public works bidding practices (City Charter Section 1310). The Stadium Manager’s Request for Bids (RFB) received three responses and the Stadium Manager is recommending award to the lowest responsible bidder (California United Mechanical, Inc.).

The Recommendation for Award memo did not include the reason for the increase in project cost so staff requested more information from the Stadium Manager. The following reasons were provided:
· The Stadium Manager engaged an engineering consultant to perform an onsite evaluation of the cooling towers in April 2022. The project budget was a carryover project from previous fiscal years, so there was a decision to hire an industry expert to provide a recommendation based on the current condition of the equipment. The evaluation resulted in more equipment renewal and replacement costs than originally expected. · The consultant also recommended to purchase necessary attic stock for critical equipment, which was not originally considered, but is necessary to ensure dependable contingency operations in the event of equipment failure.
· Finally, this project, like many other construction projects, has been impacted by the significant cost increase in recent years. The Association of Contractors (“AGC”), with assistance from the US Bureau of Labor Statistics (“BLS”), released a 2022 Construction Inflation Alert that forecasts the Bid Price - Producer Price Index (“PPI”) actually increased 19.8% nationally from June 2021 to June 2022. The AGC report highlights the cost impacts that the Stadium Manager is experiencing across this and many other projects. · The combination of necessary equipment renewal and replacement, unanticipated attic stock purchase and unprecedented increase in material costs, supply-chain bottlenecks and tight labor markets resulted in higher bid value than the budget amount.

Based on the documentation and provided information, staff recommends approval of the Stadium Manager’s request to award a one-time agreement to United Mechanical, Inc. for the Cooling Towers CapEx project work and a related budget amendment to increase the existing line item by $89,768.

Regarding the Stadium Manager’s request for authority to execute any and all documents related to the project and issue change orders up to 10% of the construction agreement amount, staff recommends that this authority be delegated instead to the Executive Director. Currently, the Executive Director has no procurement delegated authority under the Stadium Authority Procurement Policy. Approving staff’s recommendation to provide the Executive Director with such authority to approve the execution of documents related to the project and the execution of change orders up to $11,735 accomplishes the expediency that the Stadium Manager seeks.

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22-1414 Agenda Date: 12/6/2022
The Stadium Authority Counsel’s Office has reviewed the requested agreement for comparison to the Stadium Authority’s customary language. While there are some differences in the language, including portions covering compliance with laws such as prevailing wage and conflict of interest, the agreement submitted here for approval contains the necessary language which identifies these legal obligations to the vendor. The vendor expressly agrees to adhere to such obligations upon its execution of the agreement. Nothing in the proposed agreement changes the Stadium Authority’s rights under the Management Agreement and specifically with respect to any dispute that may arise from the Stadium Manager’s obligations under the Management Agreement.

In addition, per paragraph 4(b) of the Settlement Agreement, the Stadium Authority reserves all rights to confirm and dispute charges by and payments to the Stadium Manager during a fiscal year-end reconciliation/true-up, including but not limited to changes based on improper allocation, calculation, lack of support, or failure to comply with the Parties’ contracts or California law. The Stadium Authority may raise related questions before the fiscal year-end reconciliation/true-up, which the Stadium Manager agrees to assess and respond to in good faith.

FISCAL IMPACT
As noted above, the Stadium Authority FY 2022/23 CapEx Budget includes $46,001 for the Cooling Towers CapEx Project. The Stadium Manager’s requests will require a budget amendment to increase the line item by $89,768 to a total budget amount of $135,769. The table below summarizes the budget amendment:

CapEx Project Adopted
Budget
Increase/
(Decrease)
Amended
Budget
Cooling Towers CapEx Project $46,001 $89,768 $135,769
Capital Expense Reserve $3,128,863 ($89,768) $3,039,095

COORDINATION
This report has been coordinated with the City’s Purchasing Manager and the Treasurer’s and Stadium Authority Counsel’s Offices.

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22-1414 Agenda Date: 12/6/2022

RECOMMENDATION

1. Approve a budget amendment for the Cooling Towers line item in the Stadium Authority FY 2022/23 CapEx Budget to increase the budget by $89,768 from the Capital Expense Reserve;

2. Approve the Stadium Manager’s request to award a one-time agreement to California United Mechanical, Inc. to replace internal parts and systems for the cooling towers at Levi’s Stadium (Cooling Towers CapEx Project) in the amount of $117,350;

3. Authorize the Executive Director to approve the execution of any and all documents associated with, and necessary for the award, completion, and acceptance of the project; and

4. Authorize the Executive Director to approve the execution of change orders up to 10% of the contract cost ($11,735), for a total not to exceed construction agreement amount of $129,085.

Prepared by: Christine Jung, Assistant to the Executive Director Approved by: Rajeev Batra, Executive Director
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1416 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Request from the Stadium Manager to Award Agreement to Bear Electrical Solutions, Inc. for the Broadcast Booth Power CapEx Project and Related Budget Amendment

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

DISCUSSION
On November 7, 2022, the Stadium Manager submitted a Recommendation for Award memo (Attachment 1), along with supporting procurement documentation, to request approval for the following actions related to the Broadcast Booth Power Capital Expense (CapEx) project:

1. Award a one-time agreement to Bear Electrical Solutions, Inc. in the amount of $28,800 to implement supplemental lighting power and controls in the broadcast booth at Levi’s Stadium;

2. Approve a budget amendment to increase the total budget amount for this CapEx project by $39,893, from $17,000 to $56,893. The Stadium Authority FY 2022/23 CapEx Budget includes $17,000 for the Broadcast Booth Power CapEx line item;

3. Authorize the Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of this project; and

4. Authorize the Stadium Manager to execute change orders up to $2,880 for a total not to exceed construction agreement amount of $31,680.

The proposed budget amendment will cover the costs of the one-time agreement ($28,800), a 10% contingency for change orders ($2,880), HKS Architects task order ($24,350), City of Santa Clara permit fees ($622), and San Jose Mercury News publication fees ($241). The Stadium Manager’s Recommendation for Award describes the request and Request for Bids (RFB) process in more detail.

ATTACHMENTS

1. Stadium Manager’s Recommendation for Award Memo

2. Draft Agreement with Bear Electrical Solutions
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DocuSign Envelope ID: 96D54142-C585-40CD-ACD1-6BBDDD4E5A4C Date:

To:

From:

Subject:
+Jiif

STADIUM

FORTY NINERS STADIUM MANAGEMENT COMPANY
November 7, 2022
Rajeev Batra
Executive Director
Santa Clara Stadium Authority
Jenti Vandertuig
Procurement Director
Forty Niners Stadium Management Company LLC
Recommendation for Award RFB FY22-0030 Levi's Stadium Broadcast Booth Power Project
Recommendation

1. Recommend approval and award of a one-time contract to Bear Electrical Solutions, Inc., in the amount of $28,800, to implement supplemental lighting power and controls in the broadcast booth at Levi's Stadium.

2. Recommend a budget augmentation for the Levi's Stadium Broadcast Booth Power Project (Project) of $39,893.19, which will increase the total budget amount for this Project from $17,000 to $56,893.19. The original Project budget was approved by the Santa Clara Stadium Authority (SCSA) as part of the FY22/23 SCSA Capital Expenditures Budget.

3. Authorize Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of this Project; and

4. Authorize Stadium Manager to execute change orders up to $2,880 for a total not to exceed construction contract amount of $31,760.

Solicitation Process
Forty Niners Stadium Management Company LLC (Stadium Manager) has a need to implement supplemental lighting power and controls in the broadcast booth. The existing lighting grid in the ceiling has inadequate lighting and are currently controlled with a dimmer switch near the door of the room. The Project involves providing additional power to the existing portable overhead ceiling lighting outlets in the broadcast booth at Levi's Stadium (Stadium). This work includes, among other things, a new panel with new feeder to accommodate additional circuits to existing outlets.

The Project was approved as part of the FY22/23 SCSA Capital Expenditures budget.

On July 26 2022, Stadium Manager issued a Request for Bids (RFB) FY22-0030 for the Project. 1 DocuSign Envelope ID: 96D54142-C585-40CD-ACD1-6BBDDD4E5A4C Stadium Manager published the RFB on Bonfire Interactive, Stadium Manager's eProcurement portal https://49ers.bonfirehub.com/portal/. In addition to inviting a list of contractors on our established supplier list, Stadium Manager also selected contractors registered on the portal with specific commodity codes offering such services.

On July 29, 2022, Stadium Manager published the Notice Inviting Bids for the Project in the San Jose Mercury News publication. Notices were also emailed on July 26, 2022 to the Builders' Exchange of Santa Clara County and Minority Business Consortium to communicate with their respective member communities regarding the solicitation for the Project.

Stadium Manager held a non-mandatory pre-bid conference on August 8, 2022 at 11:30 a.m. (PT) to provide an overview of the Project and answer any questions from prospective bidders.

The RFB provided prospective bidders the option to schedule on-site visits to the Stadium.

Electronic bid submissions were due on or before August 25, 2022 at 3:00 p.m. (PT). Two bids were received on or before the closing due date and time from the following firms:

1. Bear Electrical Solutions, Inc. - $28,880

2. Cupertino Electric, Inc. - $29,452.00
Public Bid Opening
A public bid opening was held on August 25, 2022 at 4:30 p.m. (PT). The RFB provided the public bid opening webcast information including a meeting ID and password for bidders to log on via Zoom to attend. Multiple callers were in attendance. Stadium Manager announced the receipt of the two bids on or before the due date and time, announced the name of the bidders and the base bid amounts and declared Bear Electrical Solutions, Inc. the apparent low bidder.

The protest period ended on September 1, 2022. There were no protests.

Evaluation of Apparent Low Bidder
Stadium Manager reviewed the bid from Bear Electrical Solutions, Inc., and determined it to be the lowest responsive bid submitted by a responsible bidder.

Next Steps
The Project was approved as part of the FY22/23 SCSA Capital Expenditures budget. The current approved amount for this Project is $17,000.

The original budgeted amount for this Project in the FY21/23 SCSA Capital Expenditures budget was $36,750. Stadium Manager utilized an existing SCSA Board approved agreement with HKS Architects, Inc. for design work. However, there was a timing issue with progress billing from HKS Architects, Inc., decreasing the budget for FY 22/23 to $17,000.

Stadium Manager is recommending a budget augmentation to address the following costs for this Project:
2 DocuSign Envelope ID: 96O54142-C585-40CD-ACD1-6BBDDD4E5A4C

1. Issuance of a Task Order to HKS Architects, Inc. - $24,350

2. Permit Fee #1 to City of Santa Clara - $316.67

3. Permit Fee #2 to City of Santa Clara - $305.998

4. San Jose Mercury News Publication Fees - $240.54

5. Bear Electrical Solutions Bid - $28,880
Once Stadium Manager receives approval from the SCSA Board, a contract (included in the RFB) will be executed with Bear Electrical Solutions, Inc., and a fully executed copy of the contract will be forwarded to the SCSA. In addition, Stadium Manager requests authorization to issue change orders up to $2,880 or 10% of the Project cost which will allow Stadium Manager to take timely administrative action if required and not delay completion of the Project.

Supporting documentation has been provided for review and approval. The cost for advertising the RFB in the San Jose Mercury News publication for one day is $240.54. Stadium Manager's request to publish legal notices in the San Jose Mercury News for various solicitations, including public works, was approved by the SCSA Board on July 13, 2021. This Project is a public works project.

Submitted By:
r-,-DocuSigned by:
l ~::66~:~ Date: __ 1_1_1_1_12_0_2_2 __ _
Jenti Vandertuig, Procurement Director
3 RFB Number: RFB-FY22-0030 1 CONTRACT

FORTY NINERS STADIUM MANAGEMENT COMPANY LLC

CONSTRUCTION CONTRACT
LEVI’S STADIUM BROADCAST BOOTH PORTABLE LIGHTING POWER PROJECT

1. PARTIES AND DATE.

2. RECITALS.

2.1 Stadium Manager. Stadium Manager seeks to contract for services necessary to achieve its purpose.

2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the Stadium Manager on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing electrical related construction services, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of Stadium Manager. The following license classifications are required for this Project: B – General Building Contractor or C-10 – Electrical Contractor.

2.3 Project. Stadium Manager desires to engage Contractor to render such services for the Levi’s Stadium Broadcast Booth Portable Lighting Power Project (“Project”) as set forth in this Contract.

2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, a performance bond, a payment bond, and all insurance documentation, as required by the Contract.

3. TERMS

3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Plans and Specifications (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
• Procurement and Contract Process Integrity and Conflict of Interest Guidelines (Exhibit “G”)
RFB Number: RFB-FY22-0030 2 CONTRACT
• Levi’s Stadium Jobsite Rules (Exhibit “H”)
• Addenda
• Change Orders executed by the Stadium Manager
• 2018 Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-9
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor’s Bid

3.2.2 Substitutions/”Or Equal”. Pursuant to Public Contract Code Section 3400(b), the Stadium Manager may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the Stadium Manager may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than seven (7) calendar days prior to the bid submission deadline set forth in the Notice Inviting Bids as it may be amended. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected or submitted untimely, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.

RFB Number: RFB-FY22-0030 3 CONTRACT
The Stadium Manager has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted.

3.3 Period of Performance.

3.3.1 Contract Time. Contractor shall perform and complete all Work under this Contract within 60 days, beginning the effective date of the Notice to Proceed (“Contract Time”).

Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the Stadium Manager. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the Stadium Manager will suffer damage.

Contractor’s exclusive remedy in the event of delay covered under this Section shall be a noncompensable extension of the Contract Time.

3.3.3 Liquidated Damages. Pursuant to Government Code Section 53069.85, Contractor shall pay to the Stadium Manager as fixed and liquidated damages the sum of one hundred dollars ($100) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.

3.4 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the RFB Number: RFB-FY22-0030 4 CONTRACT
standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including any required business license, and that such licenses and approvals shall be maintained throughout the term of this Contract. Contractor shall perform, at its own cost and expense and without reimbursement from the Stadium Manager, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the Stadium Manager to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the Stadium Manager, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.

3.7 Compensation and Payment.

3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, Stadium Manager will arrange for payment of the Total Contract Price upon completion and approval by Stadium Manager of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, Stadium Manager will pay Contractor on a monthly basis as provided for herein. On or before the fifth (5th) day of each month, Contractor shall submit to the Stadium Manager an itemized application for payment in the format supplied by the Stadium Manager indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the Stadium Manager may require including, without limitation, the prevailing wage compliance documentation specified RFB Number: RFB-FY22-0030 5 CONTRACT
herein. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the Stadium Manager and in such detail and form as the Stadium Manager shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.

3.7.6 Substitutions for Contract Retentions. In accordance with California Public Contract Code Section 22300, the Stadium Manager will permit the substitution of securities for any monies withheld by the Stadium Manager to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the Stadium Manager, or with a state or federally chartered bank in California as the escrow agent, and thereafter the Stadium Manager shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Section and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the Stadium Manager has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section shall be in the form provided by the Stadium Manager.

RFB Number: RFB-FY22-0030 6 CONTRACT

3.7.12 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, RFB Number: RFB-FY22-0030 7 CONTRACT
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 him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code Section 1776. In the event of noncompliance with the requirements of this Section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this Section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to Stadium Manager, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on public works with the intent to defraud shall be ineligible to bid on public works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this Section is on Contractor. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code Section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.7.14.2 DAS 142 Form (applicable if Total Contract Price is $30,000 or more). Contractor, on behalf of itself and its subcontractors, must provide a copy of DAS 142 forms filed with the appropriate apprenticeship committee(s) or evidence of an approved exemption with its first application for payment for Work involving an apprenticeable craft or trade classification – additional DAS 142 forms or evidence of approved exemptions must be provided following this initial submission with future applications for payment in the event those applications are for Work involving an apprenticeable craft or trade classification not covered under the first application for payment.

RFB Number: RFB-FY22-0030 8 CONTRACT

3.7.14.4 Certified Payroll Records; Statement of Compliance.

3.7.15 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. 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 Stadium Manager. Contractor shall defend, indemnify and hold the Indemnified Parties 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.

RFB Number: RFB-FY22-0030 9 CONTRACT

3.8 Performance of Work; Jobsite Obligations.

3.8.1 Water Quality Management and Compliance.

3.8.1.3 Other Water Quality Rules Regulations and Policies.

3.8.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the Indemnified Parties for any alleged violations. In addition, Stadium Manager may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.

RFB Number: RFB-FY22-0030 10 CONTRACT

3.8.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the Stadium Manager in writing. Any necessary changes shall be made by written change order. Stadium Manager shall further comply with all requirements specified in the Stadium Manager’s Procurement and Contract Process Integrity and Conflict of Interest Guidelines, which are attached hereto as Exhibit “G” and incorporated herein by this reference. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Stadium Manager, Contractor shall be solely responsible for all costs arising therefrom. Stadium Manager may be subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold RFB Number: RFB-FY22-0030 11 CONTRACT
the Indemnified Parties (defined below) free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

Contractor shall not be assessed liquidated damages for delay caused by failure of Stadium Manager to provide for removal or relocation of such utility facilities.

3.8.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are broader, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify the Indemnified Parties (defined below) against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by RFB Number: RFB-FY22-0030 12 CONTRACT
Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.10 Claims; Government Code Claim Compliance.

RFB Number: RFB-FY22-0030 13 CONTRACT

3.10.3 Supporting Documentation. The Contractor shall submit all claims in the following format:

3.10.3.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made

3.10.3.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other

3.10.3.3 Chronology of events and correspondence

3.10.3.4 Analysis of claim merit

3.10.3.5 Analysis of claim cost

3.10.3.6 Time impact analysis in CPM format

3.10.3.8 Cover letter and certification of validity of the claim, including any claims from subcontractors of any tier, in accordance with Government Code Section 12650 et seq.

RFB Number: RFB-FY22-0030 14 CONTRACT

RFB Number: RFB-FY22-0030 15 CONTRACT

3.10.8 Civil Actions. The following procedures are established for all civil actions filed to resolve claims subject to this Section:

3.10.10 Non-Waiver. Stadium Manager’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. Stadium RFB Number: RFB-FY22-0030 16 CONTRACT
Manager’s failure to respond shall not waive Stadium Manager’s rights to any subsequent procedures for the resolution of disputed claims.

3.12 Indemnification.

3.13 Insurance.

RFB Number: RFB-FY22-0030 17 CONTRACT

Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.

3.13.3.1 General Liability. (1) Such policy shall give the Stadium Manager, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the Stadium Manager, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Stadium RFB Number: RFB-FY22-0030 18 CONTRACT
Manager, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.

3.13.3.3 Workers’ Compensation and Employer’s Liability Coverage.

3.13.7 Verification of Coverage. Contractor shall furnish Stadium Manager with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the Stadium Manager. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on RFB Number: RFB-FY22-0030 19 CONTRACT
its behalf and shall be on forms supplied or approved by the Stadium Manager. All certificates and endorsements must be received and approved by the Stadium Manager before work commences. The Stadium Manager reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.14 Bond Requirements.

RFB Number: RFB-FY22-0030 20 CONTRACT

3.16 Employee/Labor Certifications.

3.16.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal RFB Number: RFB-FY22-0030 21 CONTRACT
law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.

3.17 General Provisions.

3.17.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the Stadium RFB Number: RFB-FY22-0030 22 CONTRACT
Manager 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. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the Stadium Manager tender final payment to Contractor, without further acknowledgment by the Parties.

CONTRACTOR:
[***INSERT CONTRACTOR NAME AND ADDRESS***]
Attn: [***INSERT CONTRACTOR REP. NAME AND TITLE***]
STADIUM MANAGER:

Forty Niners Stadium Management Company LLC
4900 Marie DeBartolo Way
Santa Clara, CA 95054
Attn: Ryan van Maarth, Vice President, Stadium Projects & Planning
With copy to:

3.17.7 Time of Essence. Time is of the essence in the performance of this Contract.

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

3.17.10 Laws, Venue, and Attorneys’ Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to RFB Number: RFB-FY22-0030 23 CONTRACT
interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California.

3.17.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.

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

3.17.16 Certification of License.

3.17.16.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.

3.17.16.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions RFB Number: RFB-FY22-0030 24 CONTRACT
concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.

Box 26000, Sacramento, California 95826.

3.17.19 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

SIGNATURE PAGE FOR CONSTRUCTION CONTRACT

FORTY NINERS STADIUM [INSERT NAME OF CONTRACTOR]

MANAGEMENT COMPANY LLC
By: By:
[INSERT NAME]
[INSERT TITLE] Its:

Printed Name:

License No.:

ATTEST:

By:
[INSERT NAME]
[INSERT TITLE]
(CONTRACTOR’S SIGNATURE MUST BE

NOTARIZED AND CORPORATE

SEAL AFFIXED, IF APPLICABLE)
RFB Number: RFB-FY22-0030 26 CONTRACT
EXHIBIT “A”

SERVICES / SCHEDULE

SUMMARY
This Project provides additional power to the existing portable overhead ceiling lighting outlets in the Levi’s Stadium broadcast booth, including a new panel with new feeder to accommodate additional circuits to existing outlets.

SCOPE OF WORK

1. Contractor shall provide new panelboard and its associated feeder and additional branch wiring to existing ceiling outlets within broadcast booth. Remove one of the existing duplexes from dedicated quad circuit at each location and reconnect to new panelboard as shown in electrical drawings. Contractor shall patch walls and floor as required for installation of new equipment. Contractor shall reference Exhibit B for Project Plans and Specifications.

2. Contractor shall provide all materials, equipment, tools, labor, supervision and project management necessary to complete the Project. Contactor is responsible for obtaining all permits and approvals from authorities having jurisdiction as may be necessary to complete the Project.

GENERAL REQUIREMENTS

1. Contractor shall provide protection for all existing building components beneath and around the Project. Any damage to existing building components caused by Contractor shall be immediately repaired or replaced at Contractor’s sole expense in a manner acceptable to and approved by Stadium Manager.

2. In all active work areas, Contractor shall provide, install and maintain all necessary barricades and warnings to prohibit pedestrian access into any affected work area. This not only includes areas surrounding the work, but also includes areas below the work. Levi’s Stadium is an active building containing employees, guests, and other contractors on a daily basis.

3. Cleaning and Protection
a. At end of each workday, Contractor shall remove rubbish, empty cans, rags, and other discarded materials from Project site. Secure, locate and position all unused materials and equipment, including man lifts, to the satisfaction of Stadium Manager. b. Protect all adjacent equipment, material and property.

MATERIALS

1. Refer to Sheet Numbers 13-E010 (Electrical Specifications) of the Plans and Specifications for more information.

INSTALLATION

EXHIBIT "B"

PLANS AND SPECIFICATIONS
The following plans and specifications are incorporated herein by reference as if set forth in their entirety:

1. Broadcast Booth Power: This link includes Plans and Specifications by HKS Architects and ME Engineers.

RFB Number: RFB-FY22-0030 27 CONTRACT
RFB Number: RFB-FY22-0030 28 CONTRACT
EXHIBIT “C”

1. July 29, 2022

2. August 12, 2022

3. August 27, 2022

4. September 18, 2022

5. October 3, 2022

6. October 8-9, 2022

7. October 23, 2022

8. November 13, 2022

9. November 27, 2022

10. December 4, 2022
RFB Number: RFB-FY22-0030 29 CONTRACT

11. December 11, 2022

12. December 24, 2022

Contractor shall ensure that any Work performed on the Project site is scheduled with the Stadium Manager in advance.

Stadium Manager has considered these schedule constraints when determining the Contract Time and no additional time or compensation will be added to the Contract due to these schedule constraints.

ARTICLE 6. SAFETY PROGRAMS
In addition to all other safety requirements of the Contract, Contractor must comply with Cal/OSHA safety requirements at all times during the performance of the Work.

Stadium Manager has considered these safety programs when determining the Contract Time and no additional time or compensation will be added to the Contract due to these safety programs.

RFB Number: RFB-FY22-0030 30 CONTRACT
EXHIBIT “D”

CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
[***INSERT CONTRACTOR NAME***]
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
RFB Number: RFB-FY22-0030 31 CONTRACT
EXHIBIT “E”

DIR Registration Number:

Name of Contractor
Signature
Name and Title
Dated
1 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.”
RFB Number: RFB-FY22-0030 32 CONTRACT
EXHIBIT “F”

PAYMENT AND PERFORMANCE BONDS

ATTACHED BEHIND THIS PAGE
RFB Number: RFB-FY22-0030 33 CONTRACT

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the Forty Niners Stadium Management Company LLC (hereinafter referred to as “Stadium Manager”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for the Levi’s Stadium Broadcast Booth Portable Lighting Power Project (hereinafter referred to as the “Project”).

RFB Number: RFB-FY22-0030 34 CONTRACT
(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 Stadium Manager, 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 Stadium Manager under the Contract and any modification thereto, less any amount previously paid by the Stadium Manager to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the Stadium Manager 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 Stadium Manager under the Contract and any modification thereto, less any amount previously paid by the Stadium Manager to the Contractor and any other set offs pursuant to the Contract Documents.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
RFB Number: RFB-FY22-0030 35 CONTRACT

(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 of surety signatory.

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.)

RFB Number: RFB-FY22-0030 36 CONTRACT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
RFB Number: RFB-FY22-0030 37 CONTRACT

Levi’s Stadium Broadcast Booth Portable Lighting Power Project (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 Stadium Manager 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.

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 RFB Number: RFB-FY22-0030 38 CONTRACT
subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or Stadium Manager 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
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

RFB Number: RFB-FY22-0030 39 CONTRACT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
RFB Number: RFB-FY22-0030 40 CONTRACT
EXHIBIT “G”

PROCUREMENT AND CONTRACT PROCESS INTEGRITY AND CONFLICT OF INTEREST

GUIDELINES
1 PURPOSE

2.1 PURCHASING MANAGER
“Purchasing Manager” is the Stadium Manager representative designated by the Stadium Manager to be responsible for the Stadium Manager’s procurement process.

2.2 ELECTED OFFICIAL
“Elected Official” means the City of Santa Clara Mayor, Council Members, City Clerk, and Chief of Police.

2.3 COUNCIL APPOINTEES
“Council Appointees” means the City of Santa Clara City Manager, City Attorney, and City Auditor.

3.1 COMMUNICATION PROTOCOL

3.1.3 After Submission Deadline of Solicitations and prior to Issuance of a Notice of Intended Award: After the submission deadline of Solicitations, all contact regarding the procurement between respondents and the Stadium Manager and participants in the evaluation process, who are not Stadium Manager employees or representatives, must be directed to the procurement RFB Number: RFB-FY22-0030 41 CONTRACT
contact designated in the Solicitation. Stadium Manager staff and consultants will refer all inquiries to the procurement contact identified in the Solicitation document.

RFB Number: RFB-FY22-0030 42 CONTRACT
7 ALLEGATIONS OF CONFLICT OF INTEREST

RFB Number: RFB-FY22-0030 43 CONTRACT
EXHIBIT “H”
LEVI’S STADIUM JOBSITE RULES
The Contractor (to include all contractors, vendors, subcontractor and employees of each) shall adhere to the following rules while on site:

1. Contractor shall park in only approved Contractor designated parking areas as identified by Stadium Manager.

2. No smoking, drugs, or alcohol permitted on site.

4. Contractor shall coordinate with Stadium Manager for use of restroom facilities prior to Project.

5. Contractor to schedule work hours with Stadium Manager prior to Project. Work outside of regularly schedule hours shall require prior written approval by Stadium Manager.

7. No radios, iPods, music devices with earbuds, etc. allowed. NO EXCEPTIONS.

Appropriate PPE shall be coordinated with the Stadium Manager prior to Project.

10. The Contract supervisor assigned to this job must have the ability to make employees follow ALL jobsite rules.

11. NO children (under 18 years old) are allowed on site.

14. Contractor Equipment / Vehicles – Contractor shall coordinate delivery and use of all equipment brought and used on site (owned or rented) with the Stadium RFB Number: RFB-FY22-0030 44 CONTRACT
Manager prior to Project. Equipment shall display markings identifying the following information for each piece of equipment while on site:
• Contractor’s Company Name
• Contractor’s Equipment Contact
• Contact Phone Number
• Duration On-Site (i.e. 06/02/21- 06/15/21)
Equipment requiring this information includes, but is not limited to, the following types of equipment:
• Material Handling Equipment (such as Forklifts and Pallet Jacks) • Golf Carts
• Flatbeds
• Manlifts
• Vehicles
• Job Boxes
• Trailers
• Other Equipment
Anyone operating this equipment must have the proper certifications, operate them in compliance with Cal/OSHA standards, and shall follow any Stadium Manager safety protocols.

The Contractor (and all employees) are prohibited from the following:

2. Infringing on Stadium’s logos, brand names, taglines, slogans or other trademarks.

Contractors and their agents, owners, and employees shall comply with the laws regarding copyrights, trademarks, rights or publicity and other third-party rights.

4. Posting a photograph of a supervisor, manager, co-worker (including players and coaches in non-public settings), vendor, supplier, or client without that individual's express permission.

RFB Number: RFB-FY22-0030 45 CONTRACT
Violations of this policy may result in disciplinary action up to and including removal from the jobsite. Please contact the Stadium Manager if you have any questions about this policy.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1417 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Report from the Stadium Authority for Action Regarding Stadium Manager’s Request to Award Agreement to Bear Electrical Solutions, Inc. for the Broadcast Booth Power CapEx Project and Related Budget Amendment

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

The Stadium Manager is requesting approval for the following actions related to the Broadcast Booth Power Capital Expense (CapEx) Project:

1. Award a one-time agreement to Bear Electrical Solutions, Inc. in the amount of $28,800 to implement supplemental lighting power and controls in the broadcast booth at Levi’s Stadium;

3. Authorize the Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of the project; and

4. Authorize the Stadium Manager to execute change orders up to $2,880, for a total not to exceed construction agreement amount of $31,680.

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22-1417 Agenda Date: 12/6/2022

DISCUSSION
Stadium Authority staff reviewed the Stadium Manager’s Recommendation for Award memo, supporting documentation, and draft agreement (memo and draft agreement are attached to corresponding report #22-1416) for consistency against the Stadium Authority Procurement Policy and the City’s public works bidding practices (City Charter Section 1310). The Stadium Manager’s Request for Bids (RFB) received two responses and the Stadium Manager is recommending award to the lowest bidder, Bear Electrical Solutions, Inc.

Based on the documentation provided, staff recommends approval of the Stadium Manager’s request to award a one-time agreement to Bear Electrical Solutions, Inc. in the amount of $28,800 for the Broadcast Booth Power CapEx Project and approval of a budget amendment to increase the existing line item in the Stadium Authority FY 2022/23 CapEx Budget by $39,893.

The project is a carryover from the FY 2019/20 CapEx Project, which included $36,750 for the line item. The Stadium Manager explains in their Recommendation for Award memo that they utilized an existing agreement with HKS Architects, Inc., which was approved by the Stadium Authority Board on November 9, 2021, for design work related to the project. However, due to timing issues with progress billing from HKS Architects, the Stadium Manager decreased their budget request for the project in the FY 2022/23 CapEx Budget. The Stadium Manager received Board approval on July 13, 2021 to publish legal notices in the San Jose Mercury News and Santa Clara Weekly for various solicitations.

Regarding the Stadium Manager’s request for authority to execute any and all documents related to the project and change orders, staff recommends that the authority be delegated instead to the Executive Director. Currently, the Executive Director has no delegated authority under the Stadium Authority Procurement Policy. Approving staff’s recommendation to provide the Executive Director with such authority to approve the execution of all documents related to the project and change orders up to $2,880 accomplishes the expediency that the Stadium Manager seeks.

The Stadium Authority Counsel’s Office has reviewed the requested agreement for comparison to the Stadium Authority’s customary language. While there are some differences in the language, including portions covering compliance with laws such as prevailing wage and conflict of interest, the agreement submitted here for approval contains the necessary language which identifies these legal obligations to the vendor. The vendor expressly agrees to adhere to such obligations upon its execution of the agreement. Nothing in the proposed agreement changes the Stadium Authority’s rights under the Management Agreement and specifically with respect to any dispute that may arise from the Stadium Manager’s obligations under the Management Agreement.

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22-1417 Agenda Date: 12/6/2022

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

FISCAL IMPACT
As noted above, the FY 2022/23 CapEx Budget contains $17,000 for the Broadcast Booth Power CapEx Project. The Stadium Manager’s requests will require a budget amendment to increase the line item by $39,893 to a total budget amount of $56,893. The table below summarizes the budget amendment as discussed above:

CapEx Project Adopted
Budget
Increase/
(Decrease)
Amended
Budget
Broadcast Booth Power CapEx Project $17,000 $39,893 $56,893 Capital Expense Reserve $3,168,756 ($39,893) $3,128,863

COORDINATION
This report has been coordinated with the City’s Purchasing Manager, Stadium Treasurer’s and Stadium Counsel’s Office.

RECOMMENDATION

1. Approve a budget amendment for the Broadcast Booth Power line item in the Stadium Authority FY 2022/23 CapEx Budget to increase the budget by $39,893 from the Capital Expense Reserve;

2. Approve the Stadium Manager’s request to award an agreement to Bear Electrical Solutions, Inc. in the amount of $28,800 to implement supplemental lighting power and controls in the broadcast booth at Levi’s Stadium for the Broadcast Booth Power CapEx Project;

3. Authorize the Executive Director to approve the Stadium Manager’s execution of any and all documents associated with, and necessary for the award, completion, and acceptance of the project; and

4. Authorize the Executive Director to approve the Stadium Manager’s execution of change orders for the agreement up to $2,880, for a total not to exceed amount of $31,680.

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Request from Stadium Manager for Approval to Issue Purchase Orders to Benjamin Litho, Inc. for Printing and Mailing Services

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

DISCUSSION
On November 13, 2022, the Stadium Manager submitted a Recommendation for Award memo, along with supporting documentation, to request approval for the following actions:

1. Issue a purchase order to Benjamin Litho, Inc. in an amount not to exceed $9,300 inclusive of postage fees and applicable sales tax to print and mail out 2023 Stadium Builders License (SBL) invoices; and

2. Issue a purchase order to Benjamin Litho, Inc. in the amount of $1,080 inclusive of applicable sales tax and delivery to print tags for Guest Services for lost items and storage of patron owned items (e.g., strollers, wheelchairs, etc.) during events.

The Stadium Manager’s Recommendation for Award memo (Attachment 1) describes the requests in more detail. These costs are covered in the Fiscal Year 2022/23 Stadium Authority Budget, SBL Sales and Service and Guest Services line items, respectively.

ATTACHMENTS

1. Stadium Manager’s Recommendation for Award Memo
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1 Date: November 13, 2022
To: Rajeev Batra
Executive Director
Santa Clara Stadium Authority
From: Jenti Vandertuig
Procurement Director
Forty Niners Stadium Management Company LLC
CC: Brent Schoeb
Chief Revenue Officer
Jim Mercurio
Executive Vice President and General Manager

Subject: Recommendation for Award for Printing Services Recommend approval of the following acquisitions. An explanation and supporting documentation for each request has been provided with the recommendation.

1. Printing and Mailing Services of SBL Invoices (NTE $9,300)

2. Print Tags for Guest Services ($1,080.34)
Submitted By: __________________________________ Date: ___________________ Jenti Vandertuig, Procurement Director

2 1. Printing and Mailing Services of SBL Invoices
In accordance with the Stadium Builders License (SBL) Agreements, Stadium Manager is required to send hard copy invoices to SBL holders for their annual installments, which are due on March 1, 2022. Along with paper invoices being mailed via the United States Postal Service (USPS) in early 2022, Stadium Manager will also send an email notifying the account holder that they can also pay online via Account Manager.

Stadium Manager has a need to issue approximately 9,000 invoices to recipients. These invoices are either single or two pages requiring the vendor to use a data file provided by Stadium Manager to complete a mail merge and print the letters on Stadium Manager’s letterhead. A printed return envelope with prepaid return postage is provided to each recipient to mail their payments. Stadium Manager requires the invoice and return envelope to be stuffed in a printed window envelope, sealed and mailed via USPS the week of January 10, 2022.

Stadium Manager requested and received a quotation from Benjamin Litho, Inc. in the amount of $9,217.21 which is inclusive of postage fees.

Therefore, approval is sought to issue a Purchase Order to Benjamin Litho, Inc. for a not to exceed amount of $9,300.00 inclusive of postage and applicable sales tax for printing and mailing of SBL invoices. The vendor will issue an invoice for the actual number of invoices printed and mailed using the USPS first class pre-sorted mail as applicable.

The cost for this purchase is covered in the FY22/23 SCSA Budget, SBL Sales and Service.

2. Print Tags for Guest Services
Guest Services Representatives have a need to utilize various printed tags to handle lost items and for storing items like strollers, wheelchairs and other patron owned items during events.

Stadium Manager reached out to Benjamin Litho, Inc. for a quotation for 1000 tags for lost items and 1200 tags for storing patron owned items during events and received quotes. The total cost for printing the tags is $1,080.34 inclusive of delivery and applicable sales tax.

Therefore, approval is sought to issue a Purchase Order to Benjamin Litho, Inc. in the amount of $1,080.34 for providing these tags for Stadium Manager.

The cost for this purchase is covered in the FY21/22 SCSA Budget, Guest Services, as a shared expense.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1445 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Report from the Stadium Authority for Action Regarding Stadium Manager’s Request to Issue Purchase Orders to Benjamin Litho, Inc. for Printing and Mailing Services

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

The Stadium Manager is requesting approval for the following actions:

These costs are covered in the Stadium Authority Fiscal Year (FY) 2022/23 Budget SBL Sales and Service and Guest Services line items, respectively.

DISCUSSION
Staff reviewed the requests (attached to corresponding report #22-1444) for consistency with the Stadium Authority Procurement Policy and Santa Clara City Code Chapter 2.105.140(a) (Competitive Requirements for Purchases - Purchase Orders Under $15,000). Since both requests are each less than $15,000, no competitive procurement method was implemented.

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22-1445 Agenda Date: 12/6/2022
Based on this review, staff recommends approval of the Stadium Manager’s request to issue purchase orders to Benjamin Litho, Inc. for the described printing and mailing services.

FISCAL IMPACT
The Stadium Authority FY 2022/23 Budget contains $2.1 million for SBL Sales and Service. There are sufficient funds to cover the purchase order in an amount not to exceed $9,300 for printing and mailing services for the 2023 SBL invoices. The Stadium Authority is responsible for the full cost of these services.

The Stadium Authority FY 2022/23 Budget also contains Shared Stadium Manager Expenses (Shared Expenses) such as Security, Stadium Operations, Engineering, Guest Services, and Groundskeeping. Shared Expenses are split between the Stadium Authority and Forty Niners SC Stadium Company LLC per the Management Agreement. There are sufficient funds in the FY 2022/23 Guest Services line item to cover the printing and delivery of tags for Guest Services ($1,080, of which the Stadium Authority is responsible for $540).

COORDINATION
This report has been coordinated with the Stadium Authority Counsel and Treasurer’s Offices.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special City of Santa Clara Page 2 of 3 Printed on 12/2/2022
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22-1445 Agenda Date: 12/6/2022
Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected].

RECOMMENDATION

1. Approve the Stadium Manager’s request to issue a purchase order to Benjamin Litho, Inc. in an amount not to exceed $9,300 inclusive of postage fees and applicable sales tax for printing and mailing 2023 SBL invoices; and

2. Approve the Stadium Manager’s request to issue a purchase order to Benjamin Litho, Inc. in the amount of $1,080 inclusive of applicable sales tax and delivery for printing tags for Guest Services.

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Request from the Stadium Manager to Award Agreement to Fluoresco Services, LLC for Replacement Wayfinding Signage and Maps at Levi’s Stadium (Updated Stadium Wayfinding Signage CapEx Project)

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

DISCUSSION
On November 13, 2022, the Stadium Manager submitted a Recommendation for Award memo (Attachment 1), along with supporting procurement documentation, to request approval for the following actions related to the Updated Stadium Wayfinding Signage Capital Expense (CapEx) project:

1. Award a one-time agreement to Fluoresco Services, LLC in the amount of $112,486 to replace existing signage with new wayfinding signage and maps at Levi’s Stadium;

2. Authorize the Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of this project; and

3. Authorize the Stadium Manager to execute change orders up to $11,249 for a total not to exceed construction agreement amount of $123,735.

The Stadium Authority Fiscal Year 2022/23 CapEx Budget includes $262,500 for the Updated Stadium Wayfinding Signage line item.

The Stadium Manager’s Recommendation for Award describes the request and Request for Bids (RFB) process in more detail.

ATTACHMENTS

1. Stadium Manager’s Recommendation for Award Memo

2. Draft Agreement with Fluoresco Services, LLC
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1 Date: November 13, 2022
To: Rajeev Batra
Executive Director
Santa Clara Stadium Authority
From: Jenti Vandertuig
Procurement Director
Forty Niners Stadium Management Company LLC
CC: Jim Mercurio
Executive Vice President and General Manager
Subject: Recommendation for Award RFB FY22-0033 Levi’s Stadium Wayfinding Signage Project
Recommendation

1. Recommend approval and award of a one-time contract to Fluoresco Services, LLC in the amount of $112,485.94, to replace existing signage with new wayfinding signage and maps at Levi’s Stadium.

2. Authorize Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of this project; and

3. Authorize Stadium Manager to execute change orders up to $11,248.60 for a total not to exceed construction contract amount of $123,734.54.

Solicitation Process
Forty Niners Stadium Management Company LLC (Stadium Manager) has a need to replace existing faded, damaged, or outdated signage elements with new updated elements including cut vinyl lettering, panel replacement, and new wayfinding signage and maps at Levi’s Stadium (Stadium).

The Wayfinding Signage Project (Project) was approved as part of the FY22/23 Santa Clara Stadium Authority (SCSA) Capital Expenditures budget.

On August 23, 2022, Stadium Manager issued a Request for Bids (RFB) FY22-0033 for the Project.

Stadium Manager published the RFB on Bonfire Interactive, Stadium Manager’s eProcurement portal https://49ers.bonfirehub.com/portal/. In addition to inviting a list of contractors on our established supplier list, Stadium Manager also selected contractors registered on the portal with specific commodity codes offering such services.
2 On August 29, 2022, Stadium Manager published the Notice Inviting Bids for the Project in the San Jose Mercury News publication. Notices were also emailed on August 23, 2022 to the Builders’ Exchange of Santa Clara County, Bay Area Builders’ Exchange, and Minority Business Consortium to communicate with their respective member communities regarding the solicitation for the Project.

Stadium Manager held a non-mandatory pre-bid conference on August 31, 2022 at 10:00 a.m. (PT) to provide an overview of the Project and answer any questions from prospective bidders.

The RFB provided prospective bidders the option to schedule on-site visits to the Stadium.

Multiple addenda were issued to clarify questions, update the bid documents, revise the dates and times for receipt of bids, public bid opening and timeline to file a protest.

Electronic bid submissions were due on or before October 13, 2022 at 3:00 p.m. (PT). Three bids were received on or before the closing due date and time from the following firms:

1. Square Signs LLC - $224,676

2. Oakhurst Signs - $167,495.18

3. Fluoresco Services, LLC - $112,485.90
Public Bid Opening
A public bid opening was held on October 13, at 4:00 p.m. (PT). The RFB provided the public bid opening webcast information including a meeting ID and password for bidders to log on via Zoom to attend. Multiple callers were in attendance. Stadium Manager announced the receipt of the two bids on or before the due date and time, announced the name of the bidders and the base bid amounts and declared Fluoresco Services, LLC the apparent low bidder.

The protest period ended on October 20, 2022. There were no protests.

Evaluation of Apparent Low Bidder
Stadium Manager reviewed the bid from Fluoresco Services, LLC and determined it to be the lowest responsive bid submitted by a responsible bidder. There was one minor immaterial deviation in the total base bid amount. The stated base bid amount is $112,485.90, but the actual base bid amount is $112,485.94 (a 4 cent deviation). Our bid documents allow us to correct arithmetical errors in the calculation of the bid.

Next Steps
The Project was approved as part of the FY22/23 SCSA Capital Expenditures budget. The current approved amount for this Project is $262,500.

Once Stadium Manager receives approval from the SCSA Board, a contract (included in the RFB) will be executed with Fluroresco Services, LLC and a fully executed copy of the contract will be forwarded to the SCSA. In addition, Stadium Manager requests authorization to issue change orders up to $11,248.60 or 10% of the Project cost which will allow Stadium Manager to take timely administrative action if required and not delay completion of the Project. 3 Supporting documentation has been provided for review and approval. The cost for advertising the RFB in the San Jose Mercury News publication for one day is $284.85. Stadium Manager’s request to publish legal notices in the San Jose Mercury News for various solicitations, including public works, was approved by the SCSA Board on July 13, 2021. This Project is a public works project.

Submitted By: __________________________________ Date: ___________________ Jenti Vandertuig, Procurement Director

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
1 CONTRACT

FORTY NINERS STADIUM MANAGEMENT COMPANY LLC

CONSTRUCTION CONTRACT
LEVI’S STADIUM WAYFINDING SIGNAGE – SELECT WAYFINDING ELEMENTS

REPLACEMENT PROJECT

1. PARTIES AND DATE.

2. RECITALS.

2.1 Stadium Manager. Stadium Manager seeks to contract for services necessary to achieve its purpose.

2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the Stadium Manager on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing signage related construction services, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of Stadium Manager. The following license classifications are required for this Project: B – General Building Contractor or C-45 – Sign Contractor

2.3 Project. Stadium Manager desires to engage Contractor to render such services for the Levi’s Stadium Wayfinding Signage – Select Wayfinding Elements Replacement Project (“Project”) as set forth in this Contract.

2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, a performance bond, a payment bond, and all insurance documentation, as required by the Contract.

3. TERMS

3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Plans and Specifications (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
2 CONTRACT
• Procurement and Contract Process Integrity and Conflict of Interest Guidelines (Exhibit “G”)
• Levi’s Stadium Jobsite Rules (Exhibit “H”)
• Addenda
• Change Orders executed by the Stadium Manager
• 2018 Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-9
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor’s Bid

3.2.2 Substitutions/”Or Equal”. Pursuant to Public Contract Code Section 3400(b), the Stadium Manager may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the Stadium Manager may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than seven (7) calendar days prior to the bid submission deadline set forth in the Notice Inviting Bids as it may be amended. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
3 CONTRACT
substitution request is rejected or submitted untimely, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.

The Stadium Manager has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted.

3.3 Period of Performance.

3.3.1 Contract Time. Contractor shall perform and complete all Work under this Contract within 120 calendar days, beginning the effective date of the Notice to Proceed (“Contract Time”). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the Stadium Manager. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the Stadium Manager will suffer damage.

Contractor’s exclusive remedy in the event of delay covered under this Section shall be a noncompensable extension of the Contract Time.

3.3.3 Liquidated Damages. Pursuant to Government Code Section 53069.85, Contractor shall pay to the Stadium Manager as fixed and liquidated damages the sum of one Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
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hundred dollars ($100) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.

3.7 Compensation and Payment.

3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, Stadium Manager will arrange for payment of the Total Contract Price upon completion and approval by Stadium Manager of the Work. If the Work is scheduled for Levi’s Stadium Wayfinding Signage – Select
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completion in more than thirty (30) calendar days, Stadium Manager will pay Contractor on a monthly basis as provided for herein. On or before the fifth (5th) day of each month, Contractor shall submit to the Stadium Manager an itemized application for payment in the format supplied by the Stadium Manager indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the Stadium Manager may require including, without limitation, the prevailing wage compliance documentation specified herein. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the Stadium Manager and in such detail and form as the Stadium Manager shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.

3.7.6 Substitutions for Contract Retentions. In accordance with California Public Contract Code Section 22300, the Stadium Manager will permit the substitution of securities for any monies withheld by the Stadium Manager to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the Stadium Manager, or with a state or federally chartered bank in California as Levi’s Stadium Wayfinding Signage – Select
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the escrow agent, and thereafter the Stadium Manager shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Section and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the Stadium Manager has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section shall be in the form provided by the Stadium Manager.

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3.7.14.1 Division of Apprenticeship Standards (DAS) 140 Form (applicable if Total Contract Price is $30,000 or more). Contractor, on behalf of itself and its subcontractors, must provide a copy of DAS 140 forms filed with the appropriate apprenticeship Levi’s Stadium Wayfinding Signage – Select
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committee(s) the earlier of Contractor’s first application for payment for Work performed under this Contract or ten (10) days of Contract execution.

3.7.14.2 DAS 142 Form (applicable if Total Contract Price is $30,000 or more). Contractor, on behalf of itself and its subcontractors, must provide a copy of DAS 142 forms filed with the appropriate apprenticeship committee(s) or evidence of an approved exemption with its first application for payment for Work involving an apprenticeable craft or trade classification – additional DAS 142 forms or evidence of approved exemptions must be provided following this initial submission with future applications for payment in the event those applications are for Work involving an apprenticeable craft or trade classification not covered under the first application for payment.

3.7.14.4 Certified Payroll Records; Statement of Compliance.

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3.7.15 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. 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 Stadium Manager. Contractor shall defend, indemnify and hold the Indemnified Parties 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.

3.8 Performance of Work; Jobsite Obligations.

3.8.1 Water Quality Management and Compliance.

3.8.1.3 Other Water Quality Rules Regulations and Policies.

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3.8.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the Indemnified Parties for any alleged violations. In addition, Stadium Manager may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.

3.8.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting Levi’s Stadium Wayfinding Signage – Select
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the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the Stadium Manager in writing. Any necessary changes shall be made by written change order. Stadium Manager shall further comply with all requirements specified in the Stadium Manager’s Procurement and Contract Process Integrity and Conflict of Interest Guidelines, which are attached hereto as Exhibit “G” and incorporated herein by this reference. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Stadium Manager, Contractor shall be solely responsible for all costs arising therefrom. Stadium Manager may be subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold the Indemnified Parties (defined below) free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.8.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, Stadium Manager shall compensate Contractor for the costs of:

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(1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work.

Contractor shall not be assessed liquidated damages for delay caused by failure of Stadium Manager to provide for removal or relocation of such utility facilities.

3.8.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are broader, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify the Indemnified Parties (defined below) against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.10 Claims; Government Code Claim Compliance.

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Claims governed by this Section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the Stadium Manager and shall include on its first page the following in 16-point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. 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. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.

3.10.3 Supporting Documentation. The Contractor shall submit all claims in the following format:

3.10.3.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made

3.10.3.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other

3.10.3.3 Chronology of events and correspondence

3.10.3.4 Analysis of claim merit

3.10.3.5 Analysis of claim cost

3.10.3.6 Time impact analysis in CPM format

3.10.3.8 Cover letter and certification of validity of the claim, including any claims from subcontractors of any tier, in accordance with Government Code Section 12650 et seq.

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3.10.6.1 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 Levi’s Stadium Wayfinding Signage – Select
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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.

3.10.8 Civil Actions. The following procedures are established for all civil actions filed to resolve claims subject to this Section:

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3.10.10 Non-Waiver. Stadium Manager’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. Stadium Manager’s failure to respond shall not waive Stadium Manager’s rights to any subsequent procedures for the resolution of disputed claims.

3.12 Indemnification.

3.12.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the Stadium Manager, Forty Niners SC Stadium Company LLC, Forty Niners Football Company LLC, the Santa Clara Stadium Authority, the City of Santa Clara, their affiliates, and each of their respective officers, directors, managers, members, partners, owners, employees, agents and authorized volunteers, each tenant and event promoter of Levi’s Stadium, and any mortgagee, bond trustee or other financial institution from time to time holding a line or indenture upon an interest in Levi’s Stadium, and each of them (collectively, the “Indemnified Parties”), free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code Section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active Levi’s Stadium Wayfinding Signage – Select
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negligence or willful misconduct of the Indemnified Parties or the Indemnified Parties’ agents, servants, or independent contractors who are directly responsible to the Indemnified Parties, or for defects in design furnished by those persons.

3.13 Insurance.

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each employee bodily injury or disease. Defense costs shall be available in addition to the limits.

Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.

3.13.3.1 General Liability. (1) Such policy shall give the Stadium Manager, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the Stadium Manager, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Stadium Manager, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.

3.13.3.3 Workers’ Compensation and Employer’s Liability Coverage.

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3.13.7 Verification of Coverage. Contractor shall furnish Stadium Manager with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the Stadium Manager. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms supplied or approved by the Stadium Manager. All certificates and endorsements must be received and approved by the Stadium Manager before work commences. The Stadium Manager reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.14 Bond Requirements.

3.14.2 Performance Bond. If specifically requested by Stadium Manager in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide Levi’s Stadium Wayfinding Signage – Select
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to Stadium Manager concurrently with this Contract a Performance Bond in an amount required by the Stadium Manager and in a form provided or approved by the Stadium Manager. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Stadium Manager.

3.14.3 Bond Provisions. Should, in Stadium Manager’s sole opinion, any bond become insufficient, or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within ten (10) days of receiving notice from Stadium Manager. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the Stadium Manager, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the Stadium Manager. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the Stadium Manager, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the Stadium Manager. If Contractor fails to furnish any required bond, the Stadium Manager may terminate the Contract for cause.

3.15 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the Stadium Manager of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the Stadium Manager in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected Work. Contractor shall perform such tests as the Stadium Manager may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the Stadium Manager, regardless of whether or not such warranties and guarantees have been transferred or assigned to the Stadium Manager by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the Stadium Manager. In the event that Contractor fails to perform its obligations under this Section, Levi’s Stadium Wayfinding Signage – Select
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or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the Stadium Manager, the Stadium Manager shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the Stadium Manager for any expenses incurred hereunder upon demand.

3.16 Employee/Labor Certifications.

3.16.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.

3.17 General Provisions.

Following approval by the Stadium Manager, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the Stadium Manager, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the Stadium Manager, shall Levi’s Stadium Wayfinding Signage – Select
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be made for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the Stadium Manager’s written approval.

3.17.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the Stadium Manager 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. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the Stadium Manager tender final payment to Contractor, without further acknowledgment by the Parties.

CONTRACTOR:
[***INSERT CONTRACTOR NAME AND ADDRESS***]
Attn: [***INSERT CONTRACTOR REP. NAME AND TITLE***]
STADIUM MANAGER:

Forty Niners Stadium Management Company LLC
4900 Marie DeBartolo Way
Santa Clara, CA 95054
Attn: Ryan van Maarth, Vice President, Stadium Projects & Planning
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With copy to:

3.17.7 Time of Essence. Time is of the essence in the performance of this Contract.

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

3.17.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.

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

3.17.14 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration Levi’s Stadium Wayfinding Signage – Select
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contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, Stadium Manager shall have the right to terminate this Contract without liability.

3.17.16 Certification of License.

3.17.16.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.

3.17.16.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.

Box 26000, Sacramento, California 95826.

3.17.19 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.17.20 Stadium Manager’s Right to Employ Other Contractors. Stadium Manager reserves right to employ other contractors in connection with this Project or other projects.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE FOR CONSTRUCTION CONTRACT

FORTY NINERS STADIUM [INSERT NAME OF CONTRACTOR]

MANAGEMENT COMPANY LLC
By: By:

Jim Mercurio
EVP & General Manager Its:

Printed Name:

License No.:
(CONTRACTOR’S SIGNATURE MUST BE

NOTARIZED AND CORPORATE

SEAL AFFIXED, IF APPLICABLE)
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EXHIBIT “A”

SERVICES / SCHEDULE

SUMMARY
This Project replaces existing faded, damaged, or outdated signage elements with new updated elements including cut vinyl lettering, panel replacement, and new wayfinding signage and maps.

SCOPE OF WORK

1. Base Bid Scope: The Base Bid scope of work includes replacement of existing vinyl, replacement of select signage elements, and installation of new signage elements per the Plans and Specifications attached hereto as Exhibit “B” and incorporated herein by this reference.

2. Additive Alternate #1 and #2 Scope: The Additive Alternate #1 and #2 scope of work includes repainting of designated signs per the Plans and Specifications attached hereto as Exhibit “B”.

3. The Contractor shall provide all materials, equipment, tools, labor, supervision, and project management necessary to complete the Project. Contactor is responsible for obtaining all permits and approvals from authorities having jurisdiction as may be necessary to complete the Project.

GENERAL REQUIREMENTS

Contractor shall be responsible for keeping others out of its active Work areas and preventing the exposure of others to material generated within the Work area, both around and below.

3. Cleaning and Protection
a. At end of each workday, remove rubbish, empty cans, rags, and other discarded materials from Project site. Secure, locate and position all unused materials and equipment, including man lifts, to the satisfaction of Stadium Manager. b. Protect all adjacent equipment, material and property. c. Upon completion of the Work, remove unused materials, debris, containers, footing forms and equipment from the Project site. Remove protective coverings and clean the exposed surfaces of the Work to remove dirt, stains and other substances, by methods as recommended by manufacturers.

MATERIALS

1. Refer to Plans and Specifications attached hereto as Exhibit “B”.

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2. Refer to the Notice Inviting Bids regarding requirements associated with “or-equal” substitutions. . Contractor shall be solely responsible for ensuring and verifying the parts, equipment, and materials required to complete all Work on the Project, including any approved “or-equal” substitutes, are compatible with existing equipment and building systems

INSTALLATION

1. The Contractor is responsible for the installation of material and equipment in accordance with manufacturer requirements. Contractor shall provide all tools, labor, materials, and accessories necessary to complete the installation per the manufacturer requirements and Project specifications and drawings.

2. The Project site is Levi’s Stadium, which is located at the following address:

Levi’s Stadium
4900 Marie P. DeBartolo Way
Santa Clara, CA 95054

SCHEDULE

1. Delivery and installation of materials is required within the Contract Time specified in the Contract Documents. Contractor shall coordinate with Stadium Manager to schedule delivery, site access, and installation of materials.

SUBMITTALS

1. Contractor shall submit for approval:
a. Shop drawings provided by sign fabricator and licensed structural engineer. i. Shop drawings shall include elevations, details of fabrication and erection, including all materials, shapes, dimensions, finishes, anchorage, and method of connections.
ii. Shop drawings shall show proper letter spacing and dimensions of letter heights.
b. Two (2) hard copy prints and one (1) electronic version of each drawing to the following parties:
i. One (1) set to Architect of Record.
ii. One (1) set to Stadium Manager.

2. Contractor shall submit for approval:
a. Samples as indicated in Colors / Materials Sheet.
i. Submit per schedule, for approval.
b. Provide two (2) sets of non-returnable samples of all materials, colors, and finishes as specified.
i. One (1) set to Architect of Record.
ii. One (1) set to Stadium Manager.

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EXHIBIT “B”

PLANS AND SPECIFICATIONS
The following Plans and Specifications are incorporated herein by reference as if set forth in their entirety:

1. Levi’s Stadium Signage Upgrade + Improvement Final Bid Package – Revision 1 dated September 2, 2022 by Gensler and available via the following link:

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EXHIBIT “C”

ARTICLE 2. STADIUM MANAGER’S REPRESENTATIVE
For purposes of this Project, the Stadium Manager’s Representative shall be Stadium Manager’s Vice President, Stadium Operations and Strategic Planning or designee.

ARTICLE 3. LOCATION OF THE PROJECT
The Project is located at Levi’s Stadium, 4900 Marie P. DeBartolo Way, Santa Clara, CA ARTICLE 4. SCHEDULE CONSTRAINTS
It is anticipated that the Contractor will be unable to perform Work on the Project site at least 48 hours prior to and 24 hours after any event with a projected attendance greater than 10,000 people without prior written approval from the Stadium Manager. Specific known dates for these events at this time include the following dates:

1. July 29, 2022

2. August 12, 2022

3. August 27, 2022

4. September 18, 2022

5. September 27, 2022

6. October 3, 2022

7. October 8-9, 2022

8. October 23, 2022

9. November 13, 2022

10. November 27, 2022
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11. December 4, 2022

12. December 11, 2022

13. December 24, 2022

14. January 7, 2023
Contractor is assumed to have accounted for such events during the duration of the Project as part of its bid and may not claim any time or cost impacts and will not be granted any time extensions or additional compensation as a result of these events.

Contractor shall ensure that any Work performed on the Project site is scheduled with the Stadium Manager in advance.

Stadium Manager has considered these schedule constraints when determining the Contract Time and no additional time or compensation will be added to the Contract due to these schedule constraints.

ARTICLE 6. SAFETY PROGRAMS
In addition to all other safety requirements of the Contract, Contractor must comply with Cal/OSHA safety requirements at all times during the performance of the Work.

Stadium Manager has considered these safety programs when determining the Contract Time and no additional time or compensation will be added to the Contract due to these safety programs.

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EXHIBIT “D”

CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
[***INSERT CONTRACTOR NAME***]
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
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EXHIBIT “E”

DIR Registration Number:

Name of Contractor
Signature
Name and Title
Dated
1 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.”
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RFB Number: RFB-FY22-0033
34 CONTRACT
EXHIBIT “F”

PAYMENT AND PERFORMANCE BONDS

ATTACHED BEHIND THIS PAGE
Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
35 CONTRACT

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the Forty Niners Stadium Management Company LLC (hereinafter referred to as “Stadium Manager”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for the Levi’s Stadium Wayfinding Signage – Select Wayfinding Elements Replacement Project (hereinafter referred to as the “Project”).

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
36 CONTRACT
(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 Stadium Manager, 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 Stadium Manager under the Contract and any modification thereto, less any amount previously paid by the Stadium Manager to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the Stadium Manager 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 Stadium Manager under the Contract and any modification thereto, less any amount previously paid by the Stadium Manager to the Contractor and any other set offs pursuant to the Contract Documents.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
37 CONTRACT

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.)

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
38 CONTRACT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
39 CONTRACT

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the Forty Niners Stadium Management Company LLC (hereinafter designated as the “Stadium Manager”), by action taken or a resolution passed ___________ , 20____has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows: Levi’s Stadium Wayfinding Signage – Select Wayfinding Elements Replacement Project (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.

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 Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
40 CONTRACT
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or Stadium Manager 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
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
41 CONTRACT
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
42 CONTRACT
EXHIBIT “G”

PROCUREMENT AND CONTRACT PROCESS INTEGRITY AND CONFLICT OF INTEREST

GUIDELINES
1 PURPOSE

2.1 PURCHASING MANAGER
“Purchasing Manager” is the Stadium Manager representative designated by the Stadium Manager to be responsible for the Stadium Manager’s procurement process.

2.2 ELECTED OFFICIAL
“Elected Official” means the City of Santa Clara Mayor, Council Members, City Clerk, and Chief of Police.

2.3 COUNCIL APPOINTEES
“Council Appointees” means the City of Santa Clara City Manager, City Attorney, and City Auditor.

3.1 COMMUNICATION PROTOCOL

3.1.3 After Submission Deadline of Solicitations and prior to Issuance of a Notice of Intended Award: After the submission deadline of Solicitations, all contact regarding the procurement between respondents and the Stadium Manager and participants in the evaluation process, who are not Stadium Manager employees or representatives, must be directed to the procurement Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
43 CONTRACT
contact designated in the Solicitation. Stadium Manager staff and consultants will refer all inquiries to the procurement contact identified in the Solicitation document.

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
44 CONTRACT
7 ALLEGATIONS OF CONFLICT OF INTEREST

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
45 CONTRACT
EXHIBIT “H”
LEVI’S STADIUM JOBSITE RULES
The Contractor (to include all contractors, vendors, subcontractor and employees of each) shall adhere to the following rules while on site:

1. Contractor shall park in only approved Contractor designated parking areas as identified by Stadium Manager.

2. No smoking, drugs, or alcohol permitted on site.

4. Contractor shall coordinate with Stadium Manager for use of restroom facilities prior to Project.

5. Contractor to schedule work hours with Stadium Manager prior to Project. Work outside of regularly schedule hours shall require prior written approval by Stadium Manager.

7. No radios, iPods, music devices with earbuds, etc. allowed. NO EXCEPTIONS.

Appropriate PPE shall be coordinated with the Stadium Manager prior to Project.

10. The Contract supervisor assigned to this job must have the ability to make employees follow ALL jobsite rules.

11. NO children (under 18 years old) are allowed on site.

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
46 CONTRACT

14. Contractor Equipment / Vehicles – Contractor shall coordinate delivery and use of all equipment brought and used on site (owned or rented) with the Stadium Manager prior to Project. Equipment shall display markings identifying the following information for each piece of equipment while on site:
• Contractor’s Company Name
• Contractor’s Equipment Contact
• Contact Phone Number
• Duration On-Site (i.e. 06/02/21- 06/15/21)
Equipment requiring this information includes, but is not limited to, the following types of equipment:
• Material Handling Equipment (such as Forklifts and Pallet Jacks) • Golf Carts
• Flatbeds
• Manlifts
• Vehicles
• Job Boxes
• Trailers
• Other Equipment
Anyone operating this equipment must have the proper certifications, operate them in compliance with Cal/OSHA standards, and shall follow any Stadium Manager safety protocols.

The Contractor (and all employees) are prohibited from the following:

2. Infringing on Stadium’s logos, brand names, taglines, slogans or other trademarks.

Contractors and their agents, owners, and employees shall comply with the laws regarding copyrights, trademarks, rights or publicity and other third-party rights.

Levi’s Stadium Wayfinding Signage – Select
Wayfinding Elements Replacement Project
RFB Number: RFB-FY22-0033
47 CONTRACT

4. Posting a photograph of a supervisor, manager, co-worker (including players and coaches in non-public settings), vendor, supplier, or client without that individual's express permission.

Violations of this policy may result in disciplinary action up to and including removal from the jobsite. Please contact the Stadium Manager if you have any questions about this policy.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1441 Agenda Date: 12/6/2022

REPORT TO STADIUM AUTHORITY BOARD

SUBJECT
Report from the Stadium Authority for Action Regarding Stadium Manager’s Request to Award Agreement to Fluoresco Services, LLC for Replacement Wayfinding Signage and Maps at Levi’s Stadium (Updated Stadium Wayfinding Signage CapEx Project)

BOARD PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

The Stadium Manager is requesting approval for the following actions related to the Wayfinding Signage Capital Expense (CapEx) project:

1. Award a one-time agreement to Fluoresco Services, LLC in the amount of $112,486 to replace existing signage with new wayfinding signage and maps at Levi’s Stadium;

2. Authorize the Stadium Manager to execute any and all documents associated with, and necessary for the award, completion, and acceptance of this project; and

3. Authorize the Stadium Manager to execute change orders up to $11,249 for a total not to exceed construction agreement amount of $123,735.

The Stadium Authority Fiscal Year (FY) 2022/23 CapEx Budget includes $262,500 for the Updated Stadium Wayfinding Signage line item.

DISCUSSION
Stadium Authority staff reviewed the Stadium Manager’s Recommendation for Award memo, supporting documentation, and draft agreement (memo and draft agreement are attached to corresponding report #22-1440) for consistency against the Stadium Authority Procurement Policy City of Santa Clara Page 1 of 3 Printed on 12/2/2022
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22-1441 Agenda Date: 12/6/2022
and the City’s public works bidding process (City Charter Section 1310). The Stadium Manager’s Request for Bids (RFB) received three responses and the Stadium Manager is recommending award to the lowest bidder (Fluoresco Services, LLC).

The Updated Stadium Wayfinding Signage CapEx Project includes the following description: “Design, furnish and install new wayfinding and information signage to include, but not limited to, new premium/club wayfinding, suite wayfinding, smoking section signs, no smoking signs for around the main and upper concourses, section numbers/floor decals, ADA accessibility signs, Tunnel signs that ‘no photos/no autographs’, etc.” Not all of these sign categories were included in the RFB; however, the Stadium Manager has explained that they will not need any more funds for this particular project during this fiscal year.

Based on the documentation and information provided, staff recommends approval of the Stadium Manager’s request to award a one-time agreement to Fluoresco Service, LLC. In regard to the Stadium Manager’s request for authority to execute any and all documents related to the project and change orders be delegated instead to the Executive Director. Currently, the Executive Director has no procurement delegated authority under the Stadium Authority Procurement Policy. Approving staff’s recommendation to provide the Executive Director with such authority to approve execution of any and all documents related the project and change orders up to $11,249 accomplishes the expediency that the Stadium Manager seeks.

FISCAL IMPACT
The Stadium Authority FY 2022/23 CapEx Budget contains $262,500 for the Updated Stadium Wayfinding Signage line item. There are sufficient funds to cover the cost of the agreement ($112,486), a 10% contingency for change orders ($11,249) and the Stadium Manger’s RFB advertisement in the San Jose Mercury News ($285). On July 13, 2021, the Board approved the City of Santa Clara Page 2 of 3 Printed on 12/2/2022
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22-1441 Agenda Date: 12/6/2022
award of purchase orders to San Jose Mercury News and Santa Clara Weekly for the Stadium Manager to publish legal notices for CapEx projects so that expense does not require further Board approval.

COORDINATION
This report has been coordinated with the City’s Purchasing Manager, and the Stadium Authority Counsel and Treasurer’s Offices.

RECOMMENDATION

1. Approve the Stadium Manager’s request to award an agreement to Fluoresco Services, LLC in the amount of $112,486 to replace existing signage with new wayfinding signage and maps at Levi’s Stadium;

2. Authorize the Executive Director to approve the Stadium Manager’s execution of any and all documents associated with, and necessary for the award, completion, and acceptance of the project; and

3. Authorize the Executive Director to approve the Stadium Manager’s execution of change orders for the agreement up to $11,249, for a total not to exceed construction agreement amount of $123,735.

REPORT TO COUNCIL

SUBJECT
Action on FY 2021/22 Budget Year-End Report and Approve the Related Budget Amendments

COUNCIL PILLAR
Enhance Community Engagement and Transparency

EXECUTIVE SUMMARY
To close out each fiscal year, a Budget Year-End Report is prepared that reconciles funds based on actual year-end performance and brings forward associated budget adjustments. This report includes changes to fund balances assumed in the development of the FY 2022/23 budget, other adjustments to account for needed changes resulting from actual year-end performance, and recommendations to allocate any additional fund balance above the amounts assumed in the budget or balancing actions if those fund balances drop below the levels assumed in the budget.

This report provides the year-end financial condition of the City of Santa Clara on a budgetary basis for the fiscal year ended June 30, 2022 and a summary of year-end performance for the General Fund, Special Revenue Funds, Enterprise Funds, Internal Service Funds, Debt Service Funds, and Capital Funds. The report includes the recommended approval of a limited number of FY 2021/22 budget amendments to address expenditure overages at year-end, FY 2022/23 budget amendments necessary based on the final FY 2021/22 results, capital project carryover adjustments, and the recommended allocation of the General Fund fund balance.

In FY 2021/22, the City’s revenue collections continued to be impacted by COVID-19, with the largest impact to the Transient Occupancy Tax (TOT) revenue category. This impact was assumed in the development of the budget and General Fund revenues slightly exceeded the budgeted estimate. To help address the General Fund budget challenges, cost controls remained in place, generating expenditure savings. Performance in other funds typically met expectations. Revenues and expenditures in the Electric Utility Fund exceeded the budget. Silicon Valley Power (SVP) had higher than anticipated sales that required additional market purchases. These market purchases incurred high rates due to an increase in natural gas prices which were two to three times higher than in 2021.

BACKGROUND
The budgetary year-end close process accounts for the year-end revenues and expenditures as well as the resulting ending reserves and fund balances for each budgeted fund. The funds are reconciled to the budgetary fund balances in the Annual Comprehensive Financial Report (ACFR).

This report includes the following recommended budget adjustments:
1) required budget ratifications due to over-expended appropriations in FY 2021/22 (Attachment 1); and
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2) FY 2022/23 budget actions, including reconciliations of carryover capital projects, grants, special revenue funds, and donation funds; revisions to the starting FY 2022/23 fund balances and reserves based on the actual FY 2021/22 year-end performance; and any other necessary adjustments (Attachment 2).

In addition to the budget actions, this report includes tables that summarize the performance of other funds (Attachment 3) and a summary of the fund balance adjustments in each fund (Attachment 4).

Section 1305 of the Charter of the City of Santa Clara, entitled 'Budget - Appropriations,' states that:
…from the effective date of the budget, the several amounts stated therein as proposed expenditures shall be and become appropriated to the several departments, offices and agencies for the respective objects and purposes therein named; all appropriations shall lapse at the end of the fiscal year to the extent that they shall not have been expended or lawfully encumbered; and at any meeting after the adoption of the budget, the City Council may amend or supplement the budget by motion adopted by the affirmative votes of at least five members so as to authorize the transfer of unused balances appropriated for one purpose to another purpose, or to appropriate available revenue not included in the budget.

Because appropriations lapse at the end of each fiscal year, it is necessary to carryover funds to complete capital projects and other projects and to account for grants and donations. Adjustments to the fund balance amounts assumed in the adopted budget are also necessary based on the actual prior year-end results. This includes the allocation of any additional fund balance above the amounts assumed in the budget or balancing actions if those fund balances drop below the levels assumed in the budget.

Each year as part of budget development and budget close-out, staff also reviews the reserve balances, including the General Fund Budget Stabilization Reserve and the Capital Projects Reserve as well as reserve levels in other funds. Per Council Policy, the Budget Stabilization Reserve target is set to cover operations for three months (25% of General Fund expenses) and the Capital Projects Reserve target is set at a minimum fund balance of $5.0 million in the long term. For the FY 2022/23 budget, the City Council approved a Budget Stabilization Reserve level of 15% as part of the budget balancing strategy.

DISCUSSION
This report includes a brief summary of budget to actual revenue and expenditure/ expense performance for the General Fund, Special Revenue Funds, Internal Service Funds, and Enterprise Funds.

Information is also included regarding the recommended budget amendments, the impact of FY 2021/22 performance on the General Fund Budget Stabilization Reserve, necessary ratifications to address FY 2021/22 expenditure overages, a summary of the unfunded retirement liability and Pension Stabilization Reserve, and the status of General Fund and other reserves.

General Fund
Overall, General Fund revenues slightly exceeded the budget while expenditures ended the year below budget in FY 2021/22. After the required adjustments to close out FY 2021/22, the General Fund ended the year with a surplus of $11.1 million.

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General Fund Revenues
In FY 2021/22, actual revenues of $242.2 million were approximately $5.2 million (2.2%) above the budgeted estimate of $236.9 million as shown in Table 1 below. Revenues exceeded the budget in several categories, with the largest positive variances in the Property Tax, Silicon Valley Power (SVP) Transfer, Transient Occupancy Tax, and Licenses and Permits. These higher collections were partially offset by lower receipts primarily in the Sales Tax, Fines and Penalties, and Interest categories. It is important to note, however, that a portion of the higher revenues in the Licenses and Permits and Other Fees for Services categories will be allocated to the Advanced Planning Fee Reserve and the Technology Fee Reserve. In addition, the lower interest earnings category is due to losses in the Pension Trust Fund that will result in a reduction to the Pension Stabilization Reserve.

Table 1 - FY 2021/22 General Fund Revenues and Transfers In Final Budget vs. Actual
Description Adopted Budget Final Budget Actual Revenue
Variance
Favorable/
(Unfavorable)
Percent
Variance
Property Tax 71,559,000 71,559,000 74,630,557 3,071,557 4.29% Sales Tax 58,183,000 58,183,000 56,901,656 (1,281,344) (2.20%) Transient Occupancy Tax 9,000,000 9,000,000 10,812,400 1,812,400 20.14% Taxes - Other 6,080,000 6,080,000 6,988,598 908,598 14.94% Licenses and Permits 3,685,000 3,685,000 4,738,855 1,053,855 28.60% Fines and Penalties 1,496,135 1,496,135 431,099 (1,065,036) (71.19%) Revenue from Other Agencies 25,981,801 2,613,454 2,685,020 71,566 2.74% Revenue from State 224,000 224,000 311,585 87,585 39.10% Other Fees for Services 36,944,512 36,949,512 36,375,116 (574,396) (1.55%) Interest 2,600,000 2,600,000 827,866 (1,772,134) (68.16%) Rent 9,833,222 10,015,522 9,763,118 (252,404) (2.52%)
Other Revenue 198,000 198,000 815,529 617,529 311.88%
Contributions In Lieu 24,700,000 24,700,000 27,259,168 2,559,168 10.36% Subtotal Revenue 250,484,670 227,303,623 232,540,567 5,236,944 2.30% Transfers In 6,459,399 9,643,124 9,642,979 (145) (0.00%) Total Revenue $ 256,944,069 $ 236,946,747 $ 242,183,546 $ 5,236,799 2.21% FISCAL YEAR 2021/22
• Property Tax - the property tax category includes both secured and unsecured taxes. Proceeds from property taxes of $74.6 million were $3.1 million (4.2%) above the budgeted estimate of $71.6 million. This collection level was 8.5% above the FY 2020/21 level of $68.8 million. It is important to note that there is a legal challenge by the school districts on the distribution of the property tax related to the Education Revenue Augmentation Fund (ERAF) (under Proposition 98, a portion of property tax receipts are allocated to the ERAF beginning in 1992 and once there are sufficient funds in ERAF to fulfill the obligation to the school districts, excess funds are returned to the taxing entities that contributed the funding). As a result, a budget adjustment is recommended to set aside 30% of the excess ERAF FY 2021/22 collections ($1.7 million) in Non-Departmental to address this potential liability as estimated by the County of Santa Clara. • Sales Tax - The sales tax category, which includes general sales tax and public safety sales tax City of Santa Clara Page 3 of 16 Printed on 12/2/2022
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proceeds, totaled $56.9 million. This collection level was $1.3 million (2.2%) below the budgeted estimate of $58.2 million due to an 8.6% decline in the fourth quarter of FY 2021/22. This collection level was 1.3% above the FY 2020/21 level of $56.2 million and 2.9% above the FY 2019/20 level of $55.3 million.
• Transient Occupancy Tax - TOT receipts totaled $10.8 million in FY 2021/22, exceeding the budget estimate of $9.0 million and the FY 2020/21 collection level of $2.9 million. This collection level, however, remains 52% below the pre-COVID level of $22.5 million in FY 2018/19. • The Other Taxes category includes the franchise tax and documentary transfer tax. This revenue category ended the fiscal year at $7.0 million, which is $0.9 million (14.9%) above the revised budgeted estimate of $6.1 million due to higher documentary transfer tax receipts of $2.4 million that were $0.9 million above the budgeted estimate of $1.5 million, reflecting the strong real estate market in FY 2021/22. The franchise tax receipts ended at the budgeted estimate of $4.6 million.
• Licenses and Permits receipts totaled $4.7 million, which was $1.1 million above budgeted estimates due to advanced planning revenues of $1.5 million that had not been estimated in this category. These funds are recommended to be allocated to the Advanced Planning Reserve. The higher collections in this area were partially offset by lower than budgeted receipts in the busines licenses, fire permits, and parking permits categories. • Revenue from Other Agencies totaled $2.7 million, which was slightly above the budgeted estimate of $2.6 million. The majority of this revenue was generated from mutual aid reimbursements for services provided by the Fire Department. The FY 2021/22 Adopted Budget revenue estimate was significantly higher because it included the anticipated American Rescue Plan Act (ARPA) federal stimulus funds that were shifted to a separate fund during FY 2021/22. • The Other Fees for Services category encompasses various fees and reimbursements, such as those collected for plan check and zoning, engineering, fire prevention, stadium activities, and recreational activities. In FY 2021/22, revenue in this category totaled $36.4 million, which was slightly below the final budget of $36.9 million but above the FY 2020/21 collection level of $35.2 million. Categories that exceeded the budgeted estimate include planning and zoning fees, the technology fee, fire construction permits and fire CUPA fees. The categories that fell below estimates include engineering fees, Fire Emergency Medical Services (EMS) reimbursements from the County, stadium reimbursements, and recreational fees. The higher Technology Fee revenue of $0.4 million is recommended to be placed in the Technology Fee Reserve. • Interest earnings ended the year at a net $828,000 and consisted of General Fund interest earning of $3.4 million, offset by a loss in investment earnings in the Pension Trust Fund of $2.5 million. The $2.5 million decline in the Pension Trust is reflected as a reduction to the Pension Stabilization Reserve. The General Fund interest earnings of $3.4 million exceeded the budgeted estimate of $2.6 million.
• Rent collections of $9.8 million came in slightly below the budgeted estimate of $10.0 million. The budget in this category included estimated revenue of $250,000 from the Related project, which was not received due to the timing of this project.

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• Transfer from Silicon Valley Power (SVP) revenues are directly related to the revenues collected by the City’s Electric Utility Department. Per the City’s charter, SVP pays 5% of their gross cash revenues to the General Fund. Based on SVP’s actual cash revenue collections through June 30, 2022, the City’s General Fund received $27.3 million, which was $2.6 million above the budgeted estimate of $24.7 million and $2.7 million (11%) above the FY 2020/21 receipts of $24.5 million. • Transfers of $9.6 million were consistent with the budget.

General Fund Expenditures
In FY 2021/22, actual expenditures of $262.6 million were $14.2 million (5.1%) below the budget of $276.9 million as shown in Tables 2 and 3 below. Overall, departments ended the fiscal year below budget, reflecting the expenditure controls implemented due to COVID-19. The City implemented various cost savings strategies at the end of March 2020 that continued in FY 2021/22. These actions included a hiring freeze in addition to more controls across overtime, as-needed staffing, marketing, travel, and technology and vehicle purchases.

The detailed comparison of budget to actual expenditures are shown in Tables 2 and 3, with Table 2 showing the expenditures by department and Table 3 showing expenditures by category (e.g., salaries; materials, services and supplies; and transfers).

In evaluating the expenditures by department (Table 2), all departments remained within their General Fund budgets with the largest savings in the Non-Departmental, Parks & Recreation, and Police Departments.

Table 2 - FY 2021/22 General Fund Expenditures and Transfers Out Final Budget vs. Actual by Department
Function Adopted Budget Final Budget
Actual
Expenditures/
Encumbrances
Variance
Favorable/
(Unfavorable)
Percent
Variance
General Government
Mayor and City Council Offices $ 829,205 $ 829,205 $ 780,877 $ 48,328 5.83% City Attorney's Office 3,111,929 3,119,380 3,018,701 100,679 3.23% City Clerk's Office 1,491,088 1,718,169 1,459,494 258,675 15.06% City Manager's Office 5,712,973 6,276,486 5,376,889 899,597 14.33% Finance 17,679,265 18,071,518 17,324,143 747,375 4.14%
Human Resources 4,351,150 4,389,886 3,973,520 416,366 9.48% Total General Government 33,175,610 34,404,644 31,933,624 2,471,020 7.18% Public Works 23,807,473 24,426,914 24,008,145 418,769 1.71% Community Development 6,300,951 5,480,607 5,094,254 386,353 7.05% Parks and Recreation 21,734,058 21,433,077 19,223,737 2,209,340 10.31% Public Safety
Fire 61,045,361 51,239,214 50,636,970 602,244 1.18%
Police 79,955,424 65,242,662 62,366,762 2,875,900 4.41% Total Public Safety 141,000,785 116,481,876 113,003,732 3,478,144 2.99% Library 10,827,809 10,895,605 10,041,472 854,133 7.84%
Non-Departmental 14,306,083 14,789,281 10,366,347 4,422,934 29.91% Subtotal Expenditures 251,152,769 227,912,004 213,671,311 14,240,693 6.25% Transfers Out 39,146,855 48,969,098 48,969,098 - 0.00%
Total Uses of Funds $ 290,299,624 $ 276,881,102 $ 262,640,409 $ 14,240,693 5.14% FISCAL YEAR 2021/22
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Function Adopted Budget Final Budget
Actual
Expenditures/
Encumbrances
Variance
Favorable/
(Unfavorable)
Percent
Variance
General Government
Mayor and City Council Offices $ 829,205 $ 829,205 $ 780,877 $ 48,328 5.83% City Attorney's Office 3,111,929 3,119,380 3,018,701 100,679 3.23% City Clerk's Office 1,491,088 1,718,169 1,459,494 258,675 15.06% City Manager's Office 5,712,973 6,276,486 5,376,889 899,597 14.33% Finance 17,679,265 18,071,518 17,324,143 747,375 4.14%
Human Resources 4,351,150 4,389,886 3,973,520 416,366 9.48% Total General Government 33,175,610 34,404,644 31,933,624 2,471,020 7.18% Public Works 23,807,473 24,426,914 24,008,145 418,769 1.71% Community Development 6,300,951 5,480,607 5,094,254 386,353 7.05% Parks and Recreation 21,734,058 21,433,077 19,223,737 2,209,340 10.31% Public Safety
Fire 61,045,361 51,239,214 50,636,970 602,244 1.18%
Police 79,955,424 65,242,662 62,366,762 2,875,900 4.41% Total Public Safety 141,000,785 116,481,876 113,003,732 3,478,144 2.99% Library 10,827,809 10,895,605 10,041,472 854,133 7.84%
Non-Departmental 14,306,083 14,789,281 10,366,347 4,422,934 29.91% Subtotal Expenditures 251,152,769 227,912,004 213,671,311 14,240,693 6.25% Transfers Out 39,146,855 48,969,098 48,969,098 - 0.00%
Total Uses of Funds $ 290,299,624 $ 276,881,102 $ 262,640,409 $ 14,240,693 5.14% FISCAL YEAR 2021/22
When evaluating the expenditures by category as shown in Table 3, the personnel-related expenditures were $10.3 million below budget while the non-personnel expenditures were $3.9 million below budget.

Personnel expenditures totaled $161.5 million and ended the year $10.3 million, or 6.0%, below the budget of $171.8 million. This reflected salary savings of $5.8 million and benefits savings of $4.5 million generated from vacancies during the year. Non-Personnel expenditures totaled $101.2 million and ended the year $3.9 million, or 3.7%, below the budget of $105.1 million. The savings were generated in the Materials, Services and Supplies category. The FY 2022/23 Adopted Budget also included the carryover of unspent funds for the following: $150,000 in the Fire Department Community Risk Reduction Division for contractual services to support development services; $330,000 for Chamber of Commerce Small Business Assistance; $250,000 for the library strategic plan, $250,000 for the library facilities master plan, and $259,000 for library technology purchases.

Two additional carryovers are recommended in this report: a carryover of $100,000 for an organizational analysis of Information Technology services; and a carryover of $352,000 for Police contractual services due to delayed invoicing for the Axon Body Worn Cameras.

The Interfund Services category was slightly exceeded due to additional allocations to support workers’ compensation insurance invoices.

Table 3 - FY 2021/22 General Fund Expenditures and Transfers Out Final Budget vs. Actual by Category
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Category Adopted Budget Final Budget
Actual
Expenditures/
Encumbrances
Variance
Favorable/
(Unfavorable)
Percent
Variance
Salaries
Salary and Wages - Regular $ 110,327,661 $ 84,948,744 $ 80,581,361 $ 4,367,383 5.14% Salary and Wages - As Needed 5,861,092 5,767,092 4,623,897 1,143,195 19.82% Overtime 8,817,440 9,994,484 9,641,264 353,220 3.53%
Subtotal Salaries 125,006,193 100,710,320 94,846,522 5,863,798 5.82% Benefits
Retirement - Safety 33,056,981 33,056,981 32,084,531 972,450 2.94% Retirement - Miscellaneous 18,296,744 18,293,568 17,489,354 804,214 4.40% Health 8,929,401 8,929,401 7,621,772 1,307,629 14.64%
Social Security 2,998,659 2,998,659 2,728,727 269,932 9.00% Retiree Healthcare 2,459,495 2,459,495 2,459,495 - 0.00% Other Benefits 5,344,656 5,347,597 4,223,752 1,123,845 21.02% Subtotal Benefits 71,085,936 71,085,701 66,607,631 4,478,070 6.30% Materials, Services and Supplies 32,340,316 33,394,539 29,359,889 4,034,650 12.08% Interfund Services 22,720,324 22,721,444 22,857,269 (135,825) (0.60%) Transfers Out 39,146,855 48,969,098 48,969,098 - 0.00%
Total Uses of Funds $ 290,299,624 $ 276,881,102 $ 262,640,409 $ 14,240,693 5.14% FISCAL YEAR 2021/22
General Fund Budget Adjustments
As detailed in Attachment 2, a series of FY 2022/23 General Fund budget adjustments are recommended to:
• reconcile the fund balance and reserves to the FY 2021/22 ending fund balances; • allocate net savings (revenues less expenditures) to the Advanced Planning Fee Reserve ($1.5 million) and the Technology Fee Reserve ($0.5 million); • adjust the Capital Projects Reserve to account for the return of FY 2021/22 savings from capital funds for projects initially funded by the General Fund; • replenish the Land Sale Reserve ($4.2 million) that was used to offset additional labor costs associated with various bargaining unit agreements;
• actions necessary to close out FY 2021/22; and
• recommended use of $11.1 million in available fund balance from FY 2021/22 to address current year funding needs, to bring the Capital Projects Reserve to budget policy level of $5.0 million, to set aside funds to address a projected General Fund shortfall in FY 2023/24, and to fund Councildirected items.

These recommended budget adjustments will allocate the $19.8 million in additional General Fund fund balance at the end of FY 2021/22. These actions include required adjustments of $8.7 million to close out FY 2021/22 as well as additional recommended adjustments of $11.1 million as summarized below.

Table 4 -FY 2021/22 General Fund Year-End Performance
Recommended Use of Fund Balance
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Recommended FY 2022/23 Adjustments $ Impact
Fund Balance Reconciliation (adjusts for FY 2021/22 year-end revenues and expenditures)
$19.8 M
FY 2021/22 Close-Out: Required Technical Adjustments
BSR Reconciliation to FY 2022/23 beginning estimate assumed in the Adopted Budget and other adjustments to close out FY 2021/22, including funding carryover)
$0.4 M
Land Sale Reserve: replenish reserve used to cover additional labor costs in FY 2022/23 from bargaining unit agreements (intended to replenish with FY 2021/22 savings)
$4.2 M
Development Fee Reserves: sets aside funding that will be used to establish new development fee funds (Fire, Public Works, Planning) $2.0 M
Non-Departmental: Property Tax excess ERAF contingency funds to address potential legal challenge from school districts
$1.7 M
Police contractual services carryover due to delayed invoicing for Axon Body Worn Cameras
$0.3 M
Non-Departmental - IT Cost and Benefit Organizational Analysis carryover $0.1 M Total Required Technical Adjustments $8.7 M
Available Fund Balance After Required Adjustments $11.1 M Recommended Adjustments
Capital Projects Reserve (bring Reserve to Council policy level of $5 M; separate actions will return project savings to CPR to bring to $5 M) $4.8 M
Union Pacific Railroad Capital Project (design and construction) - storm drain portion of project (set aside funds in CPR)
$1.7 M
Fire Truck Purchase $2.0 M
Council Directives (sets aside funding to address Council-approved initiatives)
$0.3 M
FY 2023/24 Budget Balancing Reserve $2.0 M
Budget Stabilization Reserve $0.3 M
Total Recommended Adjustments $11.1 M
Available Fund Balance After Recommended Adjustments $0.0 M Capital Projects, Grants, Donations and Other Carryover Reconciliation Estimates were used to carryover unspent Capital Improvement Program (CIP) funds from FY 2021/22 to FY 2022/23 during the FY 2022/23 and FY 2023/24 adopted capital budget process.

Attachment 2 includes the reconciliation of those project carryover true-up amounts based on actual year-end activity totaling a carryover reduction of $2.4 million. When combined with the capital project carryovers included in the FY 2022/23 budget adopted in June 2022, the capital project carryovers to FY 2022/23 total $166.8 million.

In addition to the year-end true-up amounts for capital projects, the appropriation carryover of donations and reimbursements of $1.7 million, grants of $4.1 million, and other expenditures that are City of Santa Clara Page 8 of 16 Printed on 12/2/2022
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neither donations nor grants of $7.7 million are also included in Attachment 2.

Other Funds
Attachment 3 - Summary of Other Funds Performance summarizes budget to actual performance for the City’s Special Revenue Funds, Enterprise Funds, Internal Service Funds, Debt Service Funds, Other Agency Funds, and Capital Funds. By default, year-end savings in the other funds revert to fund balances or are re-appropriated to the next year’s budget through the recommended carryover of expenditures. Any recommended FY 2022/23 budget adjustments are included in Attachment 2 and a summary of the fund balance reconciliations is included in Attachment 4. Following are highlights of the FY 2021/22 performance of other City funds.

Special Revenue Funds
Special Revenue Funds are established to account for specific revenue sources that are legally restricted or committed to particular purposes. Following is a discussion of select Special Revenue Funds.

City Affordable Housing Fund
This fund promotes and facilitates the construction and retention of affordable housing and accounts for the City’s Below-Market Price Purchase (BMP) Program to assist low- and moderate-income families achieve the goal of homeownership. Revenues in this fund are received from developer inlieu fees, equity share, principal and interest repayments on housing loans, and interest income on pooled investments.

In FY 2021/22, revenues totaled $3.7 million, which was $2.9 million below the budgeted estimate of $6.7 million. Loan repayments came in higher than anticipated; however, these higher collections were offset by $6.0 million in revenue that was not received from a developer contribution for an affordable housing project that will construct 150 affordable housing units at 2302 Calle Del Mundo.

This developer contribution is requested to be carried over as the funds are still anticipated to be received.

FY 2021/22 expenditures and encumbrances of $6.2 million ended the year below the budget of $12.9 million by approximately $6.7 million. Of that unexpended amount, $6.0 million reflects a developer loan commitment for 2302 Calle Del Mundo, but was not disbursed due to the timing of project. As part of the agreement approved by the City Council on October 27, 2020, this loan commitment is no longer required as the developer will be covering these costs through the Developer equity contribution.

Based on actual FY 2021/22 revenues and expenditures, the ending fund balance ended the year $3.4 million above the estimate used to develop the FY 2022/23 Adopted Budget. These funds, which are not yet programmed, will be used to fund future affordable housing initiatives. As those opportunities arise during the year, staff will come forward with budget amendments to appropriate those funds.

Housing and Urban Development Fund
This fund accounts for entitlement funding that the City receives annually from the U.S. Department of Housing and Urban Development (HUD) to administer and provide oversight of the Community Development Block Grant (CDBG) and HOME Investment Partnership (HOME) programs. In FY City of Santa Clara Page 9 of 16 Printed on 12/2/2022
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2021/22, revenues of $3.4 million ended the year $1.7 million below the budgeted estimate of $5.1 million due primarily to the timing of expenditures and payments. A revenue carryover of $2.1 million is recommended to account for funding committed by HUD, but not yet spent.

Expenditures and encumbrances of $4.0 million ended the year $1.5 million below the budget of $5.5 million. Most of the reduction in expenditures was a result of the Neighborhood Conservation and Improvement Program operating in a limited capacity. Staff expects FY 2022/23 to be more reflective of an average program year. The other unspent funds are already committed to various non -profit organizations to conduct activities such as tenant-based rental assistance, affordable rental housing, and multi-family rental assistance. As those non-profits continue to provide financial support to lower-income households, the City will be reimbursing those non-profit organizations and will ultimately be reimbursed by HUD for the cost of those services. Any funds not used in FY 2022/23 will be reprogramed in FY 2023/24 as a part of the Annual Action Plan process.

Housing Successor Agency Fund
This fund was established as Housing Successor to the former Redevelopment Agency (RDA) to retain all housing assets, rights, power, duties, obligations and functions previously performed by the RDA in administering its Low and Moderate-Income Housing Fund. The primary revenue sources are from principal and interest repayments on housing loans and interest on pooled investments.

Overall revenues of $6.5 million were $1.0 million above the budgeted estimate of $5.5 million due to higher loan repayments. Expenditures and encumbrances of $12.6 million, fell $5.4 million below the budget of $18.0 million, primarily due to a loan to affordable housing developments which were not disbursed in FY 2021/22. Delays in the development of this project has pushed back the disbursement of City funding. On February 2, 2019, the City Council approved a $5.0 million loan to the project located at 2904 Corvin Drive which is expected to provide 145 affordable housing units.

The carryover of $5.0 million for this project is recommended in this report as this project is expected to require funding during the current fiscal year.

Other City Departments Operating Grant Trust Fund
This fund accounts for various, citywide donations received by the City. Beginning in FY 2019/20, revenues and expenditures related to COVID-19 have been recorded in this fund. In FY 2021/22, revenues totaled $0.5 million, which reflects the budgeted transfer from the General Fund for additional COVID-19 related expenditures. Expenditures totaled $0.7 million, which was slightly below the budget of $0.8 million. Budget actions are recommended to carry over $25,000 to FY 2022/23 to close out the remaining COVID-19 related costs and to return $0.1 million of the unspent funds to the General Fund.

Internal Service Funds
Internal Service Funds are used to finance and account for special activities and services performed by a designated department for other departments in the City on a cost reimbursement basis.

Following is a discussion of select Internal Service Funds.

Special Liability Insurance Fund
This fund provides for the payment of insurance premiums on all City-owned property as well as property in the City’s care, custody or control, and property the City is contractually obligated to insure. The fund is also used to pay for insurance premiums for other lines of coverage, for litigation City of Santa Clara Page 10 of 16 Printed on 12/2/2022
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22-14745 Agenda Date: 12/6/2022
expenses, the City’s insurance deductible, and settlements or jury verdicts in litigation matters. The primary source of revenue for this fund is fees charged to citywide departments and contributions from City funds. In FY 2021/22, revenues totaled $7.7 million, which was above the budgeted estimate of $7.1 million due to reimbursements and third-party insurance proceeds. The transfer from the General Fund totaled $5.2 million as budgeted. Expenditures and encumbrances totaled $8.0 million, which was below the budget of $9.9 million.

Workers’ Compensation Fund
This fund accounts for the costs of premiums, claims administration, and claims expenses related to injuries or illnesses sustained by members of the City’s workforce. The source of revenue for this fund is fees charged to departments citywide. In FY 2021/22, revenues totaled $6.8 million, which was above the budgeted estimate of $5.7 million due to third party insurance proceeds. Expenditures totaled $5.1 million, which was below budget by $0.6 million due to lower than budgeted claims expenditures.

Unemployment Insurance Fund
This fund accounts for the cost of unemployment insurance claims. In FY 2021/22, actual expenses totaled $103,000, which was well below the prior year amount of $758,000 and the FY 2021/22 budget of $550,000. Historically, the source of revenue for this fund is fees charged to the departments citywide; however, in FY 2021/22, funding was also assumed from the State of California as part of COVID-19 relief measures to offset a portion of the claims costs. Revenues totaled $382,000, which was below the budget of $550,000 due to lower reimbursements from the State as a result of lower actual claims.

Enterprise Funds
Enterprise funds are used to finance and account for operations and activities performed by designated departments in the City or through third-party agreements. The operating revenues and expenses result from providing services and producing and delivering goods in connection with an enterprise fund’s principal ongoing operations. Principal operating revenues of the City’s enterprise funds are charges to customers for services. Operating expenses for the City's enterprise funds include the costs of sales and services, administrative expenses and maintenance of capital assets.

Following is a discussion of select Enterprise Funds.

Convention Center Enterprise Fund
The Convention Center Enterprise Fund accounts for the operations of the City’s Convention Center through third-party agreements. The FY 2021/22 final budget reflects the operating budget of the concessions vendor, the operations management vendor, as well as the City. As of June 30, 2022, revenues of $10.4 million came in approximately $0.2 million above the budgeted estimate of $10.1 million, while expenditures and encumbrances of $9.7 million ended the year $1.7 million below the final budget of $11.4 million. The Convention Center performed significantly better than in FY 2020/21 as a result of the decreasing restrictions on large events. The FY 2021/22 unrestricted ending fund balance remained positive at $2.6 million, which was well above the estimated level of $1.2 million used to develop the FY 2022/23 budget.

Electric Utility Fund
The Electric Utility Fund accounts for the operation and maintenance of the City’s electric utility service. This fund receives majority of its revenues from user service charges collected from City of Santa Clara Page 11 of 16 Printed on 12/2/2022
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residential, commercial, and industrial customers.

In FY 2021/22, total revenues of $542.3 million were above the budget of $523.9 million by $18.4 million, primarily as a result of higher than estimated Customer Service Charges and Wholesale Revenue. Customer Service Charges totaled $499.8 million, reflecting an increase of 11.3% from the $449.2 million received in FY 2020/21; this revenue level was $12.0 million above the budget of $487.8 million. Wholesale revenues totaled $27.1 million, which exceeded the budgeted estimate of $19.9 million and the FY 2020/21 collection level of $19.1 million. When compared to the prior year, total revenues of $542.3 million were up $56.8 million, or 11.7%, from the $485.6 million received in FY 2020/21.

Expenditures, including encumbrances and transfers, of $555.1 million were $46.7 million above the budget of $508.4 million. This is attributed primarily to Resource and Production expenditures, which were $53.7 million over the budgeted amount of $353.5 million. SVP had higher than anticipated sales that required additional market purchases. These market purchases incurred high rates due to an increase of natural gas prices which were two to three times higher than the 2021 rates; natural gas prices experienced a significant increase starting January 2021 primarily due to the RussianUkrainian crisis that impacted supply. Additionally, Transmission Access Charges (TAC) rates from PG&E increased by 31.3% for Low Voltage (LV) and 29.2% for High Voltage. SVP incurs TAC for all power not generated from an SVP asset. A budget action is recommended in Attachment 1 to ratify the over expenditure.

The total unrestricted fund balance ended the year at $127.1 million, which was $14.3 million higher than estimated, resulting from a reduction in the Infrastructure Reserve.

Sewer Utility Fund
The Sewer Utility Fund accounts for the maintenance of the City’s sewer lines and related facilities.

These services are provided on a user charge basis to residences and businesses, which is the primary source of revenue for this fund. Revenue receipts totaled $54 million, which was $14.2 million above the revenue estimate of $39.8 million primarily due to the return of funding from the City of San José for the Regional Wastewater Facility capital project. This reflects the reconciliation of the City of Santa Clara’s share of the actual project costs from the prior year. Transfers from other funds totaled $0.2 million as budgeted. Actual expenditures, including encumbrances, and transfers to other funds totaled $36.0 million, ending the year $0.9 million below the final budget of $36.9 million. This is primarily due to vacancy savings and lower expenditures in the resource and production category.

The unrestricted ending fund balance and reserves totaled $47.7 million, up $15.1 million from the estimate used to develop the FY 2022/23 budget. Budget actions are recommended in Attachment 2 to use this excess fund balance, along with additional unrestricted fund balance, to fund a $32.5 million transfer from the Sewer Utility Fund to the Sewer Utility Capital Fund. This transfer is necessary to avoid a negative ending fund balance in the capital fund as a result of FY 2021/22 actuals. In the capital fund, the FY 2021/22 unrestricted fund balance ended the year below projected levels because debt proceeds were not received in FY 2021/22 and a technical adjustment was implemented to break out the restricted and unrestricted portions of the fund balance. Staff is evaluating the timing of debt issuance to address the sewer capital needs. With the recommended adjustments in Attachment 2, the unrestricted ending fund balance in the Sewer Utility Fund totals $13.5 million.

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Solid Waste Fund
The Solid Waste Fund accounts for the operations of the City’s solid waste collection and disposal system. This fund receives the majority of its revenues from user service charges and other fees for street sweeping, household hazardous waste, and Clean-Up Campaign services. Total revenue of $34.5 million ended the year $0.7 million higher than the budgeted estimate of $33.8 million. This is attributable to higher collections in the Other Fees for Services category. Transfers from other funds totaled $33,600, from the General Fund for the rate assistance program. Total operating expenditures and encumbrances of $35.6 million were below the budget of $37.1 million by $1.6 million due to reduced resource and production and lower materials, supplies and services costs. Transfers to other funds totaled $0.3 million as budgeted. The unrestricted ending fund balance and reserves totaled $10.6 million, which was higher than the $8.4 million assumed in the budget.

Water Utility Fund
The Water Utility Fund accounts for the operation of the City’s water utility services. These services are provided on a user charge basis to residences and businesses, which is its primary source of revenue. As of June 30, 2022, actual revenue totaled $51.9 million, ending over the budgeted estimate of $49.7 million by $2.2 million. Actual expenditures, including encumbrances, and transfers to other funds were also lower than anticipated at $52.8 million, compared to the budget of $53.7 million. The expenditure savings are primarily due to vacancy savings and lower spending for operating supplies and contractual services.

The unrestricted ending fund balance and reserves totaled $10.9 million, which was slightly higher than the fund balance estimate used in the development of the FY 2022/23 Adopted Budget. A corresponding upward adjustment of $1.9 million to the FY 2022/23 beginning fund balance is included in this report.

Required FY 2021/22 Budget Ratifications
Based on the City Charter, the legal appropriation control is designated at the department or office level within a fund. In certain Internal Service and Special Revenue Funds, appropriations are allocated by function rather than departments or offices. In these funds, the appropriation control is at the fund level. Below the appropriation level are expenditure categories and line items. In many cases, actual expenditures may exceed the categories or line items within a department; however, savings from other categories and line items within the same department and fund may offset these overages (for example, savings due to staff vacancies may be offset by an increase in contractual services).

Attachment 1 - FY 2021/22 Budget Amendments includes a list of appropriations that exceeded the appropriation control authority and are recommended to be adjusted in order to meet the legal appropriation control limit. There were overages in 12 funds totaling $47.0 million, which were offset by available fund balance and revenues in all funds. Almost all of the overage ($46.7 million) was in the Electric Utility Fund due to higher resource and production costs that were offset by additional revenue and the use of unrestricted ending fund balance.

Retirement Liability
As summarized in Table 5, the Pension Stabilization Reserves in the various funds totaled $29.8 City of Santa Clara Page 13 of 16 Printed on 12/2/2022
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million at the end of FY 2021/22. The goal is to increase the reserve levels by 1% of the unfunded pension liability each year with a targeted level of 8% by the end of FY 2022/23. As of June 30, 2022, all funds, with the exception of the General Fund, are above the 8% target of the total unfunded liability. In total, reserve levels are projected at $30.9 million, or approximately 6.9% of the City’s net pension liability amount, based on the figures to be reported in the Consolidated Annual Financial Report GASB 68 Report. Historically, the General Fund contribution for the Pension Stabilization Reserve occurred through surplus funds available at the end of the year. Because limited additional funds are available and recommended to be reserved for FY 2023/24 budget balancing, a General Fund contribution to the reserve is not recommended at this time. Additional funds may be available in the future to allow for contributions to the reserve and/or planned for as part of the General Fund Forecast if capacity allows.

Table 5 - Summary of Unfunded Retirement Liability and Pension Stabilization Reserve Pension
Stabilization
Reserve Balance
as of June 30, 2022
FY 2022/23
Estimated
Reserve
Contribution
Estimated
Pension
Stabilization
Reserve for June
30, 2023
Unfunded
Liability as of
June 30, 2022
Projected Pension
Stabilization
Reserve Percent of
Unfunded Liability
General Fund $ 21,367,474 $ - $ 21,367,474 $ 347,165,409 6.2% Electric 6,146,356 920,073 7,066,429 73,533,480 9.6%
Water 1,267,460 135,353 1,402,813 14,064,900 10.0%
Sewer 595,654 87,707 683,361 7,009,690 9.7%
Solid Waste 288,662 - 288,662 3,436,571 8.4%
Water Recycling 108,715 15,377 124,092 1,228,971 10.1%
Total $ 29,774,321 $ 1,158,510 $ 30,932,831 $ 446,439,021 6.9% Status of Selected Reserves
Overall, the selected reserves are relatively unchanged in FY 2022/23, increasing from $298.5 million to a proposed $300.3 million as shown in Table 6 below.

In the General Fund, the FY 2022/23 Adopted Budget assumed the use of the Budget Stabilization Reserve, Capital Projects Reserve, and Land Sale Reserve totaling $30.8 million. During FY 2022/23, an additional $4.3 million from the Land Sale Reserve was used to offset labor negotiation impacts, bringing the total reduction to these major General Fund reserves to $35.1 million. As part of the FY 2021/22 Year-End Report, budget actions are recommended to add $12.8 million to these General Fund reserves, resulting in a net reduction of $22.3 million in FY 2022/23.

The Pension Trust reserves reflect a net decrease due to investment earnings declines in FY 2021/22. The Utility Fund (Sewer, Solid Waste, Water and Water Recycling) operating and maintenance and rate stabilization reserves reflect a net increase of $0.5 million in FY 2022/23. The Electric Utility Fund operating and maintenance and rate stabilization reserves are up $26.1 million in FY 2022/23.

Table 6 - Summary of Selected Reserves
($ in millions)
Estimated
July 1, 2022
Beginning
FY 2022/23
Adopted
Contribution /
(Use) of
FY 2022/23
Budget
FY 2022/23
Amended
Ending
Fund
FY 2021/22
Year-End
Recommended
Contribution /
(Use) of
FY 2022/23
Revised
Ending Fund
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Selected Reserve
Estimated
July 1, 2022
Beginning
Balance
FY 2022/23
Adopted
Contribution /
(Use) of
Reserves/
FY 2022/23
Budget
Amendments
FY 2022/23
Amended
Ending
Fund
Balance
FY 2021/22
Year-End
Recommended
Contribution /
(Use) of
Reserves
FY 2022/23
Revised
Ending Fund
Balance
General Fund - Budget Stabilization
(BSR)
$ 53.6 $ (13.2) $ - $ 40.4 $ 0.4 $ 40.8
General Fund - Capital Projects
(CPR)

6.7 (6.7) - - 6.7 * 6.7
General Fund - Land Sale Reserve 22.4 (10.9) (4.3) 7.2 5.7 12.9 Pension Trust Reserve (All Funds) 33.4 1.1 - 34.5 (3.6) 30.9 Utility Fund Rate Stabilization/O&M** 15.9 (0.3) - 15.6 0.8 16.4 Electric Fund Rate Stabilization/
O&M
166.5 26.1 - 192.6 - 192.6
Total $ 298.5 $ (3.9) $ (4.3) $ 290.3 $ 10.0 $ 300.3
* The 2021/22 Year-End Recommended Contribution includes $5.0 million to restore the CPR to the Council policy level and $1.7 million for the Union Pacific Railroad capital project. ** Includes Sewer, Solid Waste, Water and Water Recycling

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(4) in that it is a fiscal activity that does not involve any commitment to any specific project which may result in a potential significant impact on the environment.

FISCAL IMPACT
The fiscal impact of each fund’s results is discussed in detail in the body of this report and attachments. This report includes detailed descriptions of recommended budget amendments (Attachment 1 and 2); summary of year-end performance for the General Fund, Special Revenue Funds, Enterprise Funds, Internal Service Funds, Debt Service Funds, Other Agency Funds, and Capital Funds as described in the body of this report (see Attachment 3 tables for other funds details); and a summary of beginning and ending fund balance adjustments for each fund due to actual results (Attachment 4). Approval of Budget Amendments included in Attachment 1 and 2 is recommended in this report.

COORDINATION
This report was coordinated with the City Attorney’s Office.

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22-14745 Agenda Date: 12/6/2022

RECOMMENDATION

1. Note and file the FY 2021/22 Budget Year-End Report;

2. Approve the FY 2021/22 Budget Amendments to address necessary budget ratifications as set forth in Attachment 1 of this report (five affirmative Council votes required for revenue actions and the use of unused balances as noted for each item in Attachment 1); and

3. Approve the FY 2022/23 Budget Amendments as set forth in Attachment 2 of this report (five affirmative Council votes required for revenue actions and the use of unused balances as noted for each item in Attachment 2).

Reviewed by: Kenn Lee, Director of Finance
Approved by: Rajeev Batra, City Manager

ATTACHMENTS

1. FY 2021/22 Budget Amendments

2. FY 2022/23 Budget Amendments

3. Summary of Other Funds Performance

4. Summary of Fund Balance Adjustments
City of Santa Clara Page 16 of 16 Printed on 12/2/2022
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Attachment 1
Item
Source of
Funds
Use of
Funds Explanation
Charges for Services 12,024,047 This action recognizes additional revenue from Charges for Services to help offset the higher
expenditure costs (five affirmative Council votes
required to appropriate additional revenue).

Wholesale Revenue 6,375,029 This action recognizes additional revenue from Wholesale Revenue to help offset the higher
expenditure costs (five affirmative Council votes
required to appropriate additional revenue).

Resource and Production 46,742,143 This action increases the Resource and Production expense budget due to higher than
anticipated costs for purchased power. SVP had
higher than anticipated sales that required
additional market purchases. These market
purchases incurred high rates due to an increase
of natural gas prices which were two to three times
higher than natural gas prices in 2021.

Additionally, Transmission Access Charges (TAC)
rates from PG&E increased by 31.3% for Low
Voltage (LV) and 29.2% for High Voltage. SVP
incurs TAC for all power not generated from an
SVP asset. These two factors will continue to be
the main drivers increasing resource and
production costs for FY 2022/23. The FY 2022/23
Resource and Production budget factored in some
higher costs. SVP will monitor spend throughout
the year and will come forward for budgetary
actions as necessary (five affirmative Council
votes required for the use of unused
balances).

Unrestricted Ending Fund
Balance
(28,343,067) This action decreases the unrestricted ending fund balance to offset the action recommended above
(five affirmative Council votes required for the
use of unused balances).
18,399,076 18,399,076
FY 2021/22 Budget Amendments
Electric Utility Fund (091)
1 Attachment 1
FY 2021/22 Budget Amendments
Item
Source of
Funds
Use of
Funds Explanation
Interest Earnings / Transfer to
Cemetery Fund
1,663 1,663 This action recognizes additional interest earnings in the Endowment Care Fund and increases the
transfer of these earnings to the Cemetery Fund.

Because interest earnings exceeded the budget,
the transfer to the Cemetery Fund also exceeded
the budget. This action accounts for the additional
transfer of interest earnings (five affirmative
Council votes required to appropriate
additional revenue).
1,663 1,663
Item
Source of
Funds
Use of
Funds Explanation
Revenue from Other Agencies
/ Information Technology -
SVACA Billing
19,346 19,346 This action increases the Revenue from Other Agencies estimate and appropriates the funding to
the Information Technology Department. This
funding is related to reimbursements received
from the Silicon Valley Animal Control Association
(SVACA) for services provided by the City (five
affirmative Council votes required to
appropriate additional revenue).

Revenue from Other Agencies
/ Department of Public Works -
SVACA Billing
35,860 35,860 This action increases the Revenue from Other Agencies estimate and appropriates the funding to
the Department of Public Works. This funding is
related to reimbursements received from the
Silicon Valley Animal Control Association (SVACA)
for services provided by the City (five affirmative
Council votes required to appropriate
additional revenue).
55,206 55,206
Endowment Care Fund (077)
Expendable Trust Fund (079)
2 Attachment 1
FY 2021/22 Budget Amendments
Item
Source of
Funds
Use of
Funds Explanation
Revenue from Other
Agencies/State Homeland
Security Grant Program
FY20/21
1,808 1,808 This action increases the Revenue from Other Agencies estimate and appropriates the funding to
the State Homeland Security FY 2020/21 Grant.

This grant reimburses the All-Hazards Coordinator
activity expenditures which support the County of
Santa Clara Office of Emergency Services. These
funds had not been budgeted in FY 2021/22 (five
affirmative Council votes required to
appropriate additional revenue).

Revenue from Other
Agencies/Urban Search &
Rescue Team Training
Reimbursement
1 1 This action recognizes revenue and increases the
Urban Search and Rescue Team budget by $1
based on actual expenditures that exceeded the
budget (five affirmative Council votes required
to appropriate additional revenue).
1,809 1,809
Item
Source of
Funds
Use of
Funds Explanation
Materials/Services/Supplies 101,228 This action increases the materials/services/ supplies budget to cover higher contractual
services costs (five affirmative Council votes
required for the use of unused balances).

Unrestricted Ending Fund
Balance
(101,228) This action decreases the unrestricted ending fund balance to offset the action recommended above
(five affirmative Council votes required for the
use of unused balances).
- -
Fire Operating Grant Trust Fund (178)
Information Technology Services Fund (045)
3 Attachment 1
FY 2021/22 Budget Amendments
Item
Source of
Funds
Use of
Funds Explanation
Central Library Fire Panel
Upgrade
12,233 This action increases the budget for the Central Library Fire Panel Upgrade project. The project
expenditures exceeded the appropriation as a
result of higher expenditures due to taxes that had
not been factored into the cost estimate (majority
affirmative Council votes required).

Public Spaces (12,233) This action decreases the Public Spaces project budget to reallocate $12,233 to the Central Library
Fire Panel Upgrade. The unspent project funds
are recommended to cover the Central Library Fire
Panel Upgrade project's higher expenditures
(majority affirmative Council votes required).
- -
Item
Source of
Funds
Use of
Funds Explanation
Revenue from Other Agencies
/ Pacific Library Partnership
Innovation and Technology 20-
21 Grant
12,135 12,135 This action increases the Revenue from Other Agencies estimate and appropriates the funding to
the Pacific Library Partnership Innovation and
Technology FY 2020/21 grant. This grant provides
funding for technology expenditures (five
affirmative Council votes required to
appropriate additional revenue).
12,135 12,135
Library Capital Fund (537)
Library Operating Grant Trust Fund (112)
4 Attachment 1
FY 2021/22 Budget Amendments
Item
Source of
Funds
Use of
Funds Explanation
Youth Soccer Fields & Athletic
Facilities (Reed & Grant
Street)
5,984 This action increases the budget for the Youth
Soccer Fields & Athletic Facilities project. The
project exceeded its appropriation due to close-out
costs associated with the project (majority
affirmative Council votes required).

New Neighborhood Park &
Community Garden (San
Tomas & Monroe)
(5,984) This action decreases the New Neighborhood
Park & Community Garden project budget to
reallocate $5,984 to the Youth Soccer Fields &
Athletic Facilities project (majority affirmative
Council votes required).
- -
Item
Source of
Funds
Use of
Funds Explanation
Interest Earnings / Transfer to
Cemetery Fund
58 58 This action recognizes additional interest earnings in the Perpetual Care Fund and increases the
transfer of these earnings to the Cemetery Fund.

Because interest earnings exceeded the budget,
the transfer to the Cemetery Fund also exceeded
the budget. This action accounts for the additional
transfer of interest earnings (five affirmative
Council votes required to appropriate
additional revenue).
58 58
Perpetual Care Fund (076)
Parks and Recreation Capital Fund (532)
5 Attachment 1
FY 2021/22 Budget Amendments
Item
Source of
Funds
Use of
Funds Explanation
Materials/Services/Supplies 4,073 This action increases the materials/services/ supplies budget to cover audit-related costs (five
affirmative Council votes required for the use
of unused balances).

Unrestricted Ending Fund
Balance
(4,073) This action decreases the unrestricted ending fund balance to offset the action recommended above
(five affirmative Council votes required for the
use of unused balances).
- -
Item
Source of
Funds
Use of
Funds Explanation
Scott Boulevard Signal Timing
Phase II
16,574 This action increases the Scott Boulevard Signal Timing Phase II budget to cover a contract that
was inadvertently encumbered completely in this
project. The contract should be split with another
project and a correction will be made in FY
2022/23 (five affirmative Council votes required
for the use of unused balances).

Unrestricted Ending Fund
Balance
(16,574) This action decreases the unrestricted ending fund balance to offset the action recommended above
(five affirmative Council votes required for the
use of unused balances).
- -
Sports and Open Space Authority Fund (801)
Streets and Highways Capital Fund (533)
6 Attachment 1
FY 2021/22 Budget Amendments
Item
Source of
Funds
Use of
Funds Explanation
Tasman East Administration
Project
11,832 This action increases the Tasman East
Administration project by $11,832 to cover higher
costs. This overage was due to an inadvertent
error of labor costs that should have been charged
to the General Fund. A FY 2022/23 budget
amendment is recommended in Attachment 2 to
transfer funds from the General Fund to reimburse
the Tasman East Infrastructure Improvement
Fund (five affirmative Council votes required
for the use of unused balances).

Unrestricted Ending Fund
Balance
(11,832) This action decreases the unrestricted ending fund balance to offset the action recommended above
(five affirmative Council votes required for the
use of unused balances).
- -
Tasman East Infrastructure Improvement Fund (541)
7 Attachment 2
Item
Source of
Funds
Use of
Funds Explanation
Beginning Fund Balance
Reconciliation - Unrestricted
19,757,177 This action increases the Unrestricted Beginning Fund Balance from $1,696,559 to $21,453,736 as
a result of FY 2021/22 year-end actuals
reconciliation (majority affirmative Council
votes required).

Budget Stabilization Reserve -
Beginning Fund Balance
Reconciliation
(737,602) This action decreases the Budget Stabilization Reserve Beginning Fund Balance as a result of
the FY 2021/22 year-end actuals reconciliation
(majority affirmative Council votes required).

Capital Projects Reserve -
Beginning Fund
Balance/Ending Fund Balance
Reconciliation
508 508 This action increases the Capital Projects Reserve Beginning and Ending Fund Balances as a result
of the FY 2021/22 year-end actuals reconciliation
(majority affirmative Council votes required).

Technology Fee Reserve -
Beginning Fund
Balance/Ending Fund Balance
Reconciliation
927,631 522,228 This action increases the Technology Fee Reserve Beginning and Ending Fund Balances as
a result of the FY 2021/22 year-end actual
reconciliation. The expenditure carryover reflects a
reduction of $405,403 to account for FY 2021/22
expenditures to be funded from the Reserve.
(majority affirmative Council votes required).

Advanced Planning Fee
Reserve - Beginning Fund
Balance/Ending Fund Balance
Reconciliation
1,544,160 1,544,160 This action increases the Advanced Planning Reserve to account for planning revenues in
excess of the related expenditures in FY 2021/22
(majority affirmative Council votes required).

General Fund
FY 2022/23 Budget Amendments
General Fund (001)
1 Attachment 2
Item
Source of
Funds
Use of
Funds Explanation
General Fund
FY 2022/23 Budget Amendments
General Fund (001)
Land Sale Reserve -
Beginning Fund
Balance/Ending Fund Balance
Reconciliation
1,453,951 1,453,951 This action increases the Land Sale Reserve Beginning and Ending Fund Balances as a result
of the FY 2021/22 year-end actuals reconciliation.

This increase accounts for the budgeted transfer
from the Parks and Recreation Capital Fund for
the loan repayment associated with the Reed and
Grant Sports Park from Mitigation Fee Act (MFA)
revenue above the estimate used in the
development of the FY 2022/23 budget (majority
affirmative Council votes required).

Pension Stabilization Reserve -
Beginning Fund
Balance/Ending Fund Balance
Reconciliation
(2,610,634) (2,610,634) This action decreases the Pension Stabilization Reserve Beginning and Ending Fund Balances as
a result of the FY 2021/22 year-end actuals
reconciliation (majority affirmative Council
votes required).

City Council and Authorities ConcurrentDecember 6, 2022

City Council and Authorities Concurrent
December 6, 2022