4 EXHIBIT A- GENERAL MATTERS
2022-1 Investment Policy Requirements
Based on our review of the City’s own investment policy, the policy states “Brokers must…execute a certification that the Broker’s employees and supervisory personnel have read and understand the City’s Investment Policy”.
However, the City’s investment broker did not provide such certification statement for fiscal year 2021/2022.
Recommendation: We recommend that the City notify their investment broker about this requirement so the broker can provide the aforementioned statement.
Management’s Response: We concur with the recommendation and will have Chandler Asset Management LLC sign a document for fiscal year 2022/2023 and then annually each investment policy thereafter.
2022-2 Bank Reconciliation
During our testwork on the City’s bank reconciliation, we noted that there were 24 checks older than 180 days dating back to August 11, 2021. One check dated March 12, 2020 for $18,550.20 is still outstanding.
Recommendation: We recommend that the City research all stale dated outstanding checks older than 90 days and either void them or re-issue them as the bank usually will reject such stale dated checks.
Management’s Response: We concur with the recommendation and do review the outstanding/stale checks monthly, however, we will provide explanations for the ones that are over 180 days.
ATTACHMENT C
438 Old Newport Blvd, Newport Beach, CA 92663
Phone (949) 346-2900 –www.gruberlopezinc.com
Honorable Mayor and City Council
City of Stanton
Stanton, California
Independent Accountants’ Report on Applying Agreed-Upon Procedures Appropriations Limit Worksheets
We have performed the procedures enumerated below on the appropriations limit calculation worksheets of the City of Stanton, California (City) for the year ended June 30, 2022. The City’s management is responsible for the appropriations limit calculation worksheets.
The City has agreed to and acknowledged that the procedures performed are appropriate for the intended purpose of meeting the requirements of Section 1.5 of Article XIIIB of the California Constitution (Constitution) and the League of California Cities as presented in the League publication entitled Article XIIIB Appropriations Limitation Uniform Guidelines (Guidelines). This report may not be suitable for any other purpose.
The procedures performed may not address all the items of interest to a user of this report and may not meet the needs of all users of this report and, as such, users are responsible for determining whether the procedures performed are appropriate for their purposes.
The procedures and associated findings are as follows:
1. We obtained the worksheets referred to above and compared the limit and annual adjustment factors included in those worksheets to the limit and annual adjustment factors that were adopted by resolution of the City Council. We also compared the population and inflation options included in the aforementioned worksheets to those that were selected by a recorded vote.
Results: No exceptions were noted as a result of our procedures.
Attachment: D
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City Council
City of Stanton, California
Page Two
2. We recalculated the mathematical computations reflected in the City worksheets.
Results: No exceptions were noted as a result of our procedures.
3. We compared the current year information used to determine the current year limit and found that it agreed to worksheets prepared by the City and to information provided by the State Department of Finance.
Results: No exceptions were noted as a result of our procedures.
4. We compared the amount of the prior year appropriations limit presented in the worksheets to the amount adopted by the City Council for the prior year.
Results: No exceptions were noted as a result of our procedures.
We were engaged by the City to perform this agreed-upon procedures engagement and conducted our engagement in accordance with attestation standards established by the American Institute of Certified Public Accountants. We were not engaged to and did not conduct an examination or review engagement, the objective of which would be the expression of an opinion or conclusion, respectively, on meeting the requirements of the Constitution and Guidelines. Accordingly, we do not express such an opinion or conclusion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.
We are required to be independent of the City and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements related to our agreed-upon procedures engagement.
This report is intended solely for the information and use of the City and is not intended to be and should not be used by anyone other than those specified parties. However, this report is a matter of public record and its distribution is not limited.
Gruber and Lopez, Inc.
Newport Beach, California
December 31, 2022
Gruber and Lopez, Inc.
ATTACHMENT D
City of Stanton
Government Auditing Standards Report
and
Alternative Compliance Examination Engagement Report
June 30, 2022
Attachment: E
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CITY OF STANTON
Government Auditing Standards Report
and
Alternative Compliance Examination Engagement Report
June 30, 2022
TABLE OF CONTENTS
Page
Report on Internal Control Over Financial Reporting
and on Compliance and Other Matters Based on an
Audit of Financial Statements Performed in
Accordance with Government Auditing Standards 1
Report on Compliance for the U.S. Department of
Treasury Coronavirus State and Local Fiscal Recovery
Funds Program (CRLFRF) Requirements for an Alternative
CSLFRF Compliance Examination Engagement 3
Schedule of Findings and Questioned Costs 5
Summary Schedule of Prior Audit Findings 6
ATTACHMENT E
438 Old Newport Blvd, Newport Beach, CA 92663
Phone (949) 346-2900 –www.gruberlopezinc.com
1 Honorable Mayor and City Council
City of Stanton
Stanton, California
INDEPENDENT AUDITORS’ REPORT ON INTERNAL CONTROL OVER
FINANCIAL REPORTING AND ON COMPLIANCE AND
OTHER MATTERS BASED ON AN AUDIT OF
FINANCIAL STATEMENTS PERFORMED IN ACCORDANCE WITH
GOVERNMENT AUDITING STANDARDS
We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the governmental activities, each major fund, and the aggregate remaining fund information of City of Stanton, California (City) as of and for the year ended June 30, 2022, and the related notes to the financial statements, which collectively comprise City of Stanton’s basic financial statements, and have issued our report thereon dated February 16, 2023.
Internal Control Over Financial Reporting
In planning and performing our audit of the financial statements, we considered City of Stanton’s internal control over financial reporting (internal control) as a basis for designing audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of City of Stanton’s internal control. Accordingly, we do not express an opinion on the effectiveness of City of Stanton’s internal control.
A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the entity’s financial statements will not be prevented, or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance.
Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses.
However, material weaknesses may exist that have not been identified.
ATTACHMENT E
2 Honorable Mayor and City Council
City of Stanton
Page Two
Compliance and Other Matters
As part of obtaining reasonable assurance about whether City of Stanton’s financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the financial statements. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that were required to be reported under Government Auditing Standards.
Purpose of this Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the entity’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the entity’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
Gruber and Lopez, Inc.
Newport Beach, California
February 16, 2023
Gruber and Lopez, Inc.
ATTACHMENT E
438 Old Newport Blvd, Newport Beach, CA 92663
Phone (949) 346-2900 –www.gruberlopezinc.com
3 Honorable Mayor and City Council
City of Stanton
Stanton, California
Independent Accountant’s Report on Compliance for the U.S. Department of Treasury Coronavirus State and Local Fiscal Recovery Funds Program (CSLFRF) Requirements for an Alternative CSLFRF Compliance Examination Engagement We have examined the City of Stanton compliance with the compliance requirements “activities allowed or unallowed” and “allowable cost/cost principles” (the specified requirements) as described in Part IV “Requirements for an Alternative Compliance Examination Engagement for Recipients That Would Otherwise be Required to Undergo a Single Audit or Program-Specific Audit as a Result of Receiving Coronavirus State and Local Fiscal Recovery Funds” of the CSLFRF section of the 2022 OMB Compliance Supplement (referred to herein as “Requirements for an Alternative CSLFRF Compliance Examination Engagement”) during the year ended June 30, 2022. Management of the City of Stanton is responsible for City of Stanton’s compliance with the specified requirements. Our responsibility is to express an opinion on City of Stanton’s compliance with the specified requirements based on our examination.
Our examination was conducted in accordance with attestation standards established by the AICPA; the standards applicable to attestation engagements contained in Government Auditing Standards, issued by the Comptroller General of the United States; and in the “Requirements for an Alternative CSLFRF Compliance Examination Engagement.” Those standards and requirements require that we plan and perform the examination to obtain reasonable assurance about whether City of Stanton complied, in all material respects, with the specified requirements referenced above. An examination involves performing procedures to obtain evidence about whether City of Stanton complied with the specified requirements. The nature, timing, and extent of the procedures selected depend on our judgment, including an assessment of the risks of material noncompliance, whether due to fraud or error. We believe that the evidence we obtained is sufficient and appropriate to provide a reasonable basis for our opinion.
We are required to be independent and meet our other ethical responsibilities in accordance with relevant ethical requirements relating to the engagement.
Our examination does not provide a legal determination on the City of Stanton’s compliance with specified requirements.
In our opinion, City of Stanton’s complied, in all material respects, with the specified requirements referenced above during the year ended June 30, 2022.
ATTACHMENT E
4 Honorable Mayor and City Council
City of Stanton
Page Two
Other Reporting Required by Government Auditing Standards In accordance with Government Auditing Standards, we are required to report all deficiencies that are considered to be significant deficiencies or material weaknesses in internal control; fraud, and noncompliance with provisions of laws, regulations, contracts, or grant agreements that have a material effect on the City of Stanton’s compliance with the specified requirements and any other instances that warrant the attention of those charged with governance. We are also required to obtain and report the views of responsible officials concerning the findings, conclusions, and recommendations, as well as any planned corrective actions. We performed our examination to express an opinion on the City of Stanton’s compliance with the specified requirements and not for the purpose of expressing an opinion on the internal control over the specified requirements or on compliance and other matters; accordingly, we express no such opinions. The results of our tests disclosed no matters that are required to be reported under Government Auditing Standards.
Intended Purpose
The purpose of this examination report is solely to express an opinion on whether City of Stanton complied, in all material respects with the specified requirements referenced above during the year ended June 30, 2022. Accordingly, this report is not suitable for any other purpose.
Gruber and Lopez, Inc.
Newport Beach, California
February 16, 2023
Gruber and Lopez, Inc.
ATTACHMENT E
5 CITY OF STANTON
Schedule of Findings and Questioned Costs
Year ended June 30, 2022
Summary of Auditors’ Results
A) Findings Related to the Financial Statements which are Required to be Reported in Accordance with GAGAS
1. An unmodified report was issued by the auditors on the financial statements of the auditee.
2. There were no material weaknesses in internal control nor were there any significant deficiencies.
3. There were no instances of noncompliance or other matters that were required to be reported under Government Auditing Standards.
(B) Findings and Questioned Costs for Federal Awards Required by CSLFRF
4. The audit disclosed no audit findings of federal awards required by the auditors to be reported under the requirements described in the CSLFRF.
ATTACHMENT E
6 CITY OF STANTON
Summary Schedule of Prior Year (June 30, 2021) Audit Findings Year ended June 30, 2022
There were no prior year findings that required follow up procedures.
ATTACHMENT E
CITY OF STANTON
REPORT TO CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
DATE: March 14, 2023
SUBJECT: AWARD OF CONSTRUCTION CONTRACT FOR THE STANTON CITY
HALL FIRE ALARM UPGRADE PROJECT
REPORT IN BRIEF:
The existing fire alarm system at Stanton City Hall is due for an upgrade as the system is no longer compliant with the current Fire Code and long past its life expectancy. City staff is recommending award of contract to Climatec, LLC to provide design and construction services to upgrade City Hall’s Fire Alarm System.
RECOMMENDED ACTION:
1. City Council find that the project is categorically exempt under the California Environmental Quality Act (“CEQA”), Class 1, Section 15301(a) as alteration of existing public facilities; and
2. Waive the competitive bidding requirements in the City’s purchasing policy for this procurement; and
3. Award a construction contract to Climatec, LLC to provide professional engineering and construction services to upgrade the fire alarm system for the amount of $182,376; and
4. Authorize the City Manager to bind the City of Stanton and Climatec, LLC in a contract for the project; and
5. Authorize the City Manager to approve contract change orders, not to exceed $17,500.
BACKGROUND:
The existing fire alarm system at Stanton City Hall has not been upgraded since the 1970s. The current system is not compliant with the current Fire Code and parts/ equipment are no longer available as the system is antiquated.
Item: 6H
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The Stanton City Hall Fire Alarm Upgrade project will replace the existing system and ensure that the fire alarm system is up to Code.
ANALYSIS/JUSTIFICATION:
Due to the complexity of the specifications, staff requested a “Design Build” proposal from Climatec.
The scope of work includes:
• Engineering design and plan submission
• Obtaining necessary permits
• Furnish and install hardware/equipment
• Labor for installation and programming
• Final inspection with County Fire Marshal
• Final as-built drawings and close out documents
The City currently uses Climatec’s software system to control the HVAC system at City Hall. Staff is proposing to work with Climatec to upgrade the fire alarm system to streamline and consolidate the facility infrastructure. This consolidation will also help staff work efficiently through troubleshooting issues due to familiarity of the system, improve coordination and organization, and strengthen the City’s facility infrastructure. Staff believes that Climatec, LLC is capable of providing the required service to upgrade the fire alarm system at City Hall.
Considering the national purchasing cooperative’s competitive contract pricing, staff is requesting that the City Council waive the competitive bidding requirement in the City’s purchasing policy for this procurement. Sole sourcing Climatec’s services is an efficient and effective response to meet the City’s current needs.
FISCAL IMPACT:
On September 13, 2022, the City Council allocated $200,000 from the City’s ARPA Fund (#257) for the City Hall Security/Fire Alarm Upgrade project (Task Code 2022-834).
ENVIRONMENTAL IMPACT:
This project is categorically exempt under the California Environmental Quality Act, Class 1, and Section 15301(a) as alteration of existing public facilities.
LEGAL REVIEW:
None.
STRATEGIC PLAN OBJECTIVES:
Obj. No. 3: Provide a quality infrastructure.
Obj. No. 6: Maintain and promote a responsive, high-quality, and transparent government.
Prepared by: Han Sol Yoo, E.I.T., Associate Engineer
Reviewed by: Cesar Rangel, P.E., Public Works Director / City Engineer Fiscal Impact Reviewed by: Michelle Bannigan, Finance Director Approved by: Hannah Shin-Heydorn, City Manager
ATTACHMENT:
A. Construction Contract with Climatec, LLC
STANTON CITY HALL FIRE ALARM UPGRADE -1-
SHORT FORM CONSTRUCTION CONTRACT
CITY OF STANTON
SHORT FORM CONSTRUCTION CONTRACT
STANTON CITY HALL FIRE ALARM UPGRADE
1. PARTIES AND DATE.
This Contract is made and entered into this 15th day of March, 2023 by and between the City of Stanton, a municipal corporation organized under the laws of the State of California with its principal place of business at 7800 Katella Avenue, Stanton, CA 90680 (“City”) and CLIMATEC, LLC a Limited Liability Company (LLC), with its principal place of business at 2851 W. Kathleen Road, Phoenix, AZ 85053 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.
2. RECITALS.
2.1 City. City is a public agency organized under the laws of the State of California, with power 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 City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing an upgrade to the fire alarm system related construction services to public clients, 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 City. The following license classifications are required for this Project: C10.
2.3 Project. City desires to engage Contractor to render such services for the STANTON CITY HALL FIRE ALARM UPGRADE (“Project”) as set forth in this Contract.
2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, performance bond, payment bond, insurance documents, and other certifications as required by the Contract.
3. TERMS
3.1 Compensation and Payment.
3.1.1 Amount of Compensation. As consideration for performance of the Work required herein, City agrees to pay Contractor the Total Contract Price of One Hundred Eighty-Two Thousand Three Hundred Seventy-Six Dollars ($182,376.00) (“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 City.
3.1.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Contract Price upon completion and approval by City of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, City 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 City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall Attachment: A
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be supported by evidence which is required by this Contract and such other documentation as the City may require. 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 City and in such detail and form as the City 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.
3.1.3 Prompt Payment. City 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.
3.1.4 Contract Retentions. If this Contract is greater than Five Thousand dollars ($5,000), from each approved progress estimate, five percent (5%) will be deducted and retained by the City, 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.
3.1.5 Other Retentions. In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City 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 City 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 City 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 City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City 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 City to deduct any of these sums from a progress payment shall not constitute a waiver of the City’s right to such sums.
3.1.6 Substitutions for Contract Retentions. Pursuant to California Public Contract Code section 22300, Contractor may substitute securities for any money withheld by the City to ensure the performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, with the State or a federally chartered bank as the escrow agent, who shall return such securities to Contractor upon satisfactory completion of the Contract. Deposit of securities with an escrow agent shall be subject to a written agreement between the escrow agent and the City, which provides that no portion of the securities shall be paid to Contractor until the City has certified to the escrow agent, in writing, that the Contract has been satisfactorily completed. The City shall certify that the Contract has been satisfactorily completed within sixty (60) days of work "completion" as defined in Section 7107(c) of the California Public Contract Code. Securities eligible for investment under this section shall be limited to those listed in Section 16430 of the Government Code, bank or savings & loan certificates of deposit, interest-bearing demand deposit accounts, stand-by letters of credit, or any other security mutually agreed to by Contractor.
3.1.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.
3.1.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City 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 City, 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.
3.1.9 Labor and Material Releases. Contractor shall furnish City 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 City.
3.2 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”) • Payment and Performance Bonds (Exhibit “E”)
• Addenda
• Change Orders executed by the City
• Latest Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-9
• Latest Edition of the California Building Code
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor’s Bid
To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.
3.3 Contractor’s Basic Obligation; Scope of Work.
3.3.1 Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the City 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.
3.3.2 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 advance and in writing by a valid change order executed by the City.
3.3.3 Change Orders. Changes to the Contract Time (as defined in Section
3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the City. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the City for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. Regardless of ownership, equipment rates shall not exceed the listed prevailing rates at local equipment rental agencies, or distributors, at the time the work is performed. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
3.3.4 Changes Ordered By City. City may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.3.5 Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.4 Substitutions/“Or Equal”. Pursuant to Public Contract Code Section 3400(b), the City 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 City 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 thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. 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, 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 City 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 City in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the City’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 (if any) to review any findings made pursuant to Public Contract Code section 3400.
3.5 Period of Performance and Liquidated Damages.
3.5.1 Contractor shall perform and complete all Work under this Contract within 100 days (20 weeks), 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 City. 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 City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of Two Thousand Eight Hundred Dollars ($2,800.00 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.
3.5.2 If Contractor is delayed in the performance or progress of the Work by a Force Majeure Event (as defined herein), then the Contractor shall be entitled to a time extension, as provided herein, when the Work stopped is on the critical path and shall not be charged liquidated damages. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays and the Contractor will not receive an adjustment to the Total Contract Price or any other compensation. Contractor must submit a timely request in accordance with the requirements of the Contract.
3.5.3 A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
3.6 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 a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the City, 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 City 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 City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.
3.7 Control and Payment of Subordinates; Contractual Relationship. City retains Contractor on an independent contractor basis and Contractor is not an employee of City. 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.
3.8 City’s Basic Obligation. City 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 City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the belowreferenced compensation in accordance with compensation provisions set forth in the Contract.
3.9 Labor.
3.9.1 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 Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. 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 City, its officials, officers, employees and agents 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.
3.9.2 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.
3.9.3 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.
3.9.4 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 City, 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.
In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR, which may include electronic submission.
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.
3.9.5 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 DIR. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR 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.
3.9.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the DIR. 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 DIR against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any subcontractor.
3.10 Performance of Work; Jobsite Obligations.
3.10.1 Water Quality Management and Compliance.
3.10.1.1 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.
3.10.1.2 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.
3.10.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage City, 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.
3.10.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.
3.10.1.5 Liability for Non-Compliance. Failure to comply with laws, regulations, standards, ordinances, and permits listed in Sections 3.10.1.1, 3.10.1.2, 3.10.1.3, and 3.10.1.4 of the Contract 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 City and its directors, officials, officers, employees, volunteers and agents for any alleged violations. In addition, City 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.
3.10.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City 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 City for the costs (including the City’s attorney’s fees) associated with, any settlement reached between the City and the relevant enforcement entity.
3.10.1.7 Training. In addition to the standard of performance requirements set forth in this Contract, 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 3.10.1.
Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in paragraph 3.10.1 as they may relate to the Work provided under this Contract. Upon request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.
3.10.2 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.
3.10.3 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 the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California 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 City, its officials, directors, officers, employees and agents 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.
3.10.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, a City Business License. While Contractor will not be charged a fee for any City permits, Contractor shall pay the City’s applicable business license fee. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.10.5 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 City’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.
3.10.6 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 City 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 City; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, City 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.
3.10.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City 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 City to provide for removal or relocation of such utility facilities.
3.10.8 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 more broad, 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 City 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 Contract.
3.10.9 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.
3.10.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.
3.10.11 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.
Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any work or altering the condition.
3.11 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City 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 re-inspection by the City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City 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.
3.12 Claims; Government Code Claim Compliance.
3.12.1 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.
3.12.2 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 City, 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 City. A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a change order, or otherwise failed to follow any procedures contained in the Contract Documents.
3.12.3 Filing Claims. 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 City 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.
3.12.4 Supporting Documentation. The Contractor shall submit all claims in the following format:
3.12.4.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
3.12.4.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
3.12.4.3 Chronology of events and correspondence
3.12.4.4 Analysis of claim merit
3.12.4.5 Analysis of claim cost, including calculations and supporting documents
3.12.4.6 Time impact analysis in CPM format
3.12.5 City’s Response. Upon receipt of a Claim pursuant to this Section, City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the Claim, or as extended by mutual agreement, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the City issues its written statement.
3.12.5.1 If City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the 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, City shall have up to three (3) 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.
3.12.5.2 Within 30 days of receipt of a Claim, City may request in writing additional documentation supporting the Claim or relating to defenses or claims City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor. City’s written response to the Claim, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the additional 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.
3.12.6 Meet and Confer. If the Contractor disputes City’s written response, or City fails to respond within the time prescribed, the Contractor may so notify City, in writing, within 15 Days of receipt of City’s response or the City’s failure to respond, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.
3.12.7 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, City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with City and the Contractor sharing the associated costs equally. City and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the Parties agree to select a mediator at a later time.
3.12.7.1 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.
3.12.7.2 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.
3.12.7.3 Unless otherwise agreed to by City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
3.12.7.4 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.
3.12.8 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.
3.12.9 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
3.12.9.1 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.
3.12.9.2 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.
3.12.9.3 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.
3.12.10 Government Code Claim Procedures.
3.12.10.1 This section does not apply to tort claims and nothing in this section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
3.12.10.2 In addition to any and all Contract requirements pertaining to notices of and requests for adjustments to the Contract Time, Contract Price, or 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 City.
3.12.10.3 Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time, Contract Price, or compensation or payment for 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 may not file any action against the City.
3.12.10.4 A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to the Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
3.12.11 Non-Waiver. City’s failure to respond to a Claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the Claim being deemed rejected in its entirety and shall not constitute a waiver of any rights under this section.
3.13 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 City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this Contract pursuant to the termination provisions in this Contract; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.
3.14 Indemnification.
3.14.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers 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, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any 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 Contract, including without limitation the payment of all expert witness fees, 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 such loss or damage which is caused by the sole or active negligence or willful misconduct of the City.
3.14.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’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 City or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, 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 survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.
3.14.3 If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
3.15 Insurance.
3.15.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City 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 City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
3.15.2 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:
3.15.2.1 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); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; (4) Builders’/All Risk: Builders’/All Risk insurance covering for all risks of loss, including explosion, collapse, underground excavation and removal of lateral support (and including earthquakes and floods if requested by the City); and (5) Professional Liability/Errors and Omissions. Policies shall not contain exclusions contrary to this Contract.
3.15.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (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; (4) Builders’/All Risk: Completed value of the project; (5) Professional Liability/Errors and Omissions: professional liability insurance with minimum limits of $1,000,000. 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.
3.15.2.3 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Contract.
3.15.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies:
3.15.3.1 General Liability. (1) Such policy shall give the City, its officials, employees, agents and 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 City, its officials, employees, agents and 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 City, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.
3.15.3.2 Automobile Liability. (1) Such policy shall give the City, its officials, employees, agents and 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 City, its officials, employees, agents and 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 City, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.
3.15.3.3 Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.
3.15.3.4 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 City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and volunteers.
3.15.4 Builders’/All Risk Policy Requirements. The builders’/all risk insurance shall provide that the City be named as loss payee. In addition, the insurer shall waive all rights of subrogation against the City.
3.15.5 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 City, its officials, employees, agents and volunteers.
3.15.6 Professional Liability Insurance. The Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Contractor. Covered professional services shall specifically include all work to be performed under the Contract and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). All subconsultants shall have professional liability insurance with the same limits Defense costs shall be paid in addition to the limits.
3.15.7 Deductibles and Self-Insurance Retentions. Any deductibles or selfinsured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects the City, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.15.8 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 City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
3.15.9 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.15.10 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 City, 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 City in writing.
3.15.11 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.
3.16 Bond Requirements.
3.16.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.16.2 Performance Bond. If specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.16.3 Bond Provisions. Should, in City’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 City. 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 City, 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 City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.
3.16.4 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 City.
3.17 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 City 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 City 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 City 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 City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. 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 City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.
Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.18 Employee/Labor Certifications.
3.18.1 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.
3.18.2 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.
3.18.3 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.
3.19 Termination. This Contract may be terminated by City at any time, either with our without cause, by giving Contractor three (3) days advance written notice. In the event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, City may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset City’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, City 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, City 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. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.20 General Provisions.
3.20.1 City’s Representative. The City hereby designates the Director of Public Works, or his or her designee, to act as its representative for the performance of this Contract (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.20.2 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 City (“′Contractor’s Representative”). Following approval by the City, 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 City, 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 City, 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 City’s written approval.
3.20.3 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 City, the matter shall be referred to City’s Representative, whose decision shall be binding upon Contractor.
3.20.4 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 City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. 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 City tender final payment to Contractor, without further acknowledgment by the Parties.
3.20.5 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:
CLIMATEC, LLC
2150 S. TOWNE CENTRE PL., STE. 200
ANAHEIM, CA 92806
ATTN: ROBERT PEPPE, OPERATIONS DIRECTOR
CITY:
CITY OF STANTON
7800 KATELLA AVENUE
STANTON, CA 90680
ATTN: CESAR RANGEL, DIRECTOR OF PUBLIC WORKS
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.
3.20.6 Time of Essence. Time is of the essence in the performance of this Contract.
3.20.7 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 City. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, City 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.
3.20.8 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.20.9 Laws; Venue. This Contract 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 Contract, the action shall be brought in a state or federal court situated in the County of Orange, State of California.
3.20.10 Attorneys’ Fees. If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such action.
3.20.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.
3.20.12 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.
3.20.13 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, City shall have the right to terminate this Contract without liability.
3.20.14 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 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, City shall have the right to rescind this Contract without liability. For the term of this Contract, no director, official, officer or employee of City, during the term of his or her service with City, 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 City’s Filing Officer as required under state law in the performance of the Work.
3.20.15 Certification of License.
3.20.15.1 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.
3.20.15.2 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.
3.20.16 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.
3.20.17 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.
3.20.18 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.20.19 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project or other projects. [Signatures on Next Page]
SIGNATURE PAGE FOR CONSTRUCTION CONTRACT
BETWEEN THE CITY OF STANTON
AND CLIMATEC, LLC
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF STANTON
Approved:
By:
Hannah Shin-Heydorn
City Manager
ATTESTED:
By: _______________________________
Patricia Vazquez
City Clerk
APPROVED AS TO FORM:
______________________________
Best Best & Krieger LLP
City Attorney
CLIMATEC, LLC
By:
Its:
Printed Name:
By:
Its:
Printed Name:_________________________
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
STANTON CITY HALL FIRE ALARM UPGRADE -26-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT A
EXHIBIT “A”
SERVICES / SCHEDULE
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SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT B
EXHIBIT “B”
PLANS AND SPECIFICATIONS
[CONTRACTOR TO PROVIDE PLANS AND SPECS AS PART OF ENGINEERING DESIGN AND PLAN SUBMISSION FOR A DESIGN BUILD]
STANTON CITY HALL FIRE ALARM UPGRADE -28-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT D
EXHIBIT “C”
SPECIAL CONDITIONS
ARTICLE 1. BONDS
Concurrently with this Contract, the Contractor shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the City and included as Exhibit “E” to the Contract. 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 City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.
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SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT D
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.
CLIMATEC, LLC
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
STANTON CITY HALL FIRE ALARM UPGRADE -30-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
EXHIBIT “E”
PAYMENT AND PERFORMANCE BONDS
STANTON CITY HALL FIRE ALARM UPGRADE -31-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Stanton (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
STANTON CITY HALL FIRE ALARM UPGRADE -32-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
STANTON CITY HALL FIRE ALARM UPGRADE -33-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
STANTON CITY HALL FIRE ALARM UPGRADE -34-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
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
STANTON CITY HALL FIRE ALARM UPGRADE -35-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
THAT WHEREAS, the City of Stanton (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (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, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining STANTON CITY HALL FIRE ALARM UPGRADE -36-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
STANTON CITY HALL FIRE ALARM UPGRADE -37-
SHORT FORM CONSTRUCTION CONTRACT
EXHIBIT E
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
ORDINANCE NO. 1129
ORDINANCE NO. 1129
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF STANTON AUTHORIZING
AN AMENDMENT TO THE CONTRACT BETWEEN THE CITY COUNCIL OF THE CITY
OF STANTON AND THE BOARD OF ADMINISTRATION OF THE CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM TO REMOVE THE CONTRACT PROVISION EXCLUDING FROM CALPERS MEMBERSHIP “PERSONS
COMPENSATED ON AN HOURLY BASIS” PROSPECTIVELY, PURSUANT TO GOVERNMENT CODE SECTIONS 20305 AND 20503
WHEREAS, the action of revision of a pension contract does not constitute a project as defined by California Environmental Quality Act Guidelines Section 15378, therefore, no further environmental review is required.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF STANTON, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1: The City Council finds that all the facts, findings and conclusions set forth in this Ordinance are true and correct.
SECTION 2: That an amendment to the contract between the City Council of the City of Stanton and the Board of Administration, California Public Employees’ Retirement System is hereby authorized, a copy of said amendment being attached hereto, marked Exhibit, and by such reference made a part hereof as though herein set out in full.
SECTION 3: The City Manager of the City of Stanton is hereby authorized, empowered, and directed to execute said amendment for and on behalf of said Agency.
SECTION 4: This ordinance shall take effect 30 days following its adoption.
SECTION 5: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Stanton hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
SECTION 6: The City Clerk shall certify to the adoption of this Ordinance and cause the same to be posted in the three (3) designated posting places within the City of Stanton within fifteen (15) days after its passage.
Item: 8A
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ORDINANCE NO. 1129
PASSED, APPROVED, AND ADOPTED this 14th day of March, 2023.
DAVID J. SHAWVER, MAYOR
ATTEST:
PATRICIA A. VAZQUEZ, CITY CLERK
APPROVED AS TO FORM
HONGDAO NGUYEN, CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF STANTON )
I, Patricia A. Vazquez, City Clerk of the City of Stanton, California, do hereby certify that the foregoing Ordinance No. 1129 was introduced at a regular meeting of the City Council of the City of Stanton, California, held on the 14th day of February, 2023 and was duly adopted at a regular meeting of the City Council held on the 14th day of March, 2023, by the following roll-call vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
PATRICIA A. VAZQUEZ, CITY CLERK
A
CalPERS
EXHIBIT
California
Public Employees' Retirement System
---�♦-====-==:;;;;;:
AMENDMENT TO CONTRACT
Between the
Board of Administration
California Public Employees' Retirement System
and the
City Council
City of Stanton
----•--�=
The Board of Administration, California Public Employees' Retirement System, hereinafter referred to as Board, and the governing body of the above public agency, hereinafter referred to as Public Agency, having entered into a contract effective December 31, 1967, and witnessed November 27, 1967, and as amended effective July 1, 1971, July 1, 1973, November 1, 1977, October 19, 1980, June 14, 1985, June 23, 1985, October 1, 1996, August 15, 1999, July 8, 2007, and August 28, 2011, which provides for participation of Public Agency in said System, Board and Public Agency hereby agree as follows:
A. Paragraphs 1 through 14 are hereby stricken from said contract as executed effective August 28, 2011, and hereby replaced by the following paragraphs numbered 1 through 17 inclusive:
1. All words and terms used herein which are defined in the Public Employees' Retirement Law shall have the meaning as defined therein unless otherwise specifically provided. "Normal retirement age" shall mean age 55 for classic local miscellaneous members entering membership in the miscellaneous classification on or prior to August 28, 2011, age 60 for classic local miscellaneous members entering membership for the first time in the miscellaneous classification after August 28, 2011, age 62 for new local miscellaneous members, age 55 for classic local safety members, and age 57 for new local safety members.
Exhibit: A
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PLEASE DO NOT SIGN "EXHIBIT ONLY"
2. Public Agency shall participate in the Public Employees' Retirement System from and after December 31, 1967, making its employees as hereinafter provided, members of said System subject to all provisions of the Public Employees' Retirement Law except such as apply only on election of a contracting agency and are not provided for herein and to all amendments to said Law hereafter enacted except those, which by express provisions thereof, apply only on the election of a contracting agency.
3. Public Agency agrees to indemnify, defend and hold harmless the California Public Employees' Retirement System (CalPERS) and its trustees, agents and employees, the CalPERS Board of Administration, and the California Public Employees' Retirement Fund from any claims, demands, actions, losses, liabilities, damages, judgments, expenses and costs, including but not limited to interest, penalties and attorney fees that may arise as a result of any of the following:
(a) Public Agency's election to provide retirement benefits, provisions or formulas under this Contract that are different than the retirement benefits, provisions or formulas provided under the Public Agency's prior non-CalPERS retirement program.
(b) Any dispute, disagreement, claim, or proceeding (including without limitation arbitration, administrative hearing, or litigation) between Public Agency and its employees (or their
representatives) which relates to Public Agency's election to amend this Contract to provide retirement benefits, provisions or formulas that are differen't than such employees' existing retirement benefits, provisions or formulas.
(c) Public Agency's agreement with a third party other than CalPERS to provide retirement benefits, provisions, or formulas that are different than the retirement benefits, provisions or formulas provided under this Contract and provided for under the California Public Employees' Retirement Law.
4. Employees of · Public Agency in the following classes shall become members of said Retirement System except such in each such class as are excluded by law or this agreement:
a. Local Fire Fighters (herein referred to as local safety members); b. Local Police Officers (herein referred to as local safety members); c. Employees other than local safety members (herein referred to as local miscellaneous members).
PLEASE DO NOT SIGN "EXHIBIT ONLY"
5. In addition to the classes of employees excluded from membership by said Retirement Law, the following classes of employees shall not become members of said Retirement System:
a. APPOINTIVE MEMBERS OF ALL COMMISSIONS ANO BOARDS;
b. CITY TREASURER (HONORARY);
c. VOLUNTEER PERSONNEL;
d. RESERVE PERSONNEL;
e. ELECTED OFFICIALS (WHICH MEANS "CITY COUNCIL
MEMBERS") FROM DECEMBER 31, 1967, THROUGH OCTOBER
31, 1977, AND ELECTED OFFICIALS ENTERING OFFICE ON OR
AFTER JUNE 14, 1985; ANO
f. INTERN, PARK RANGER, RECREATION LEADER, ANO SENIOR
RECREATION LEADER PROSPECTIVELY FROM THE
EFFECTIVE DATE OF THIS AMENDMENT TO CONTRACT.
6. Removal of the exclusion of "Hourly Employees," pursuant to Section 20503, is declarative of agency's previous interpretation and does not mandate any new classes of employees into membership.
7. The percentage of final compensation to be provided for each year of credited prior and current service as a classic local miscellaneous member entering membership in the miscellaneous classification on or prior to August 28, 2011, shall be determined in accordance with Section 21354 of said Retirement Law, subject to the reduction provided therein for service prior to June 30, 1971, termination of Social Security, for members whose service has been included in Federal Social Security (2% at age 55 Full and Modified). .
8. The percentage of final compensation to be provided for each year of credited current service as a classic local miscellaneous member entering membership for the first time in the miscellaneous classification after August 28, 2011, shall be determined in accordance with Section 21353 of said Retirement Law (2% at age 60 Full).
9. The percentage of final compensation to be provided for each year of credited prior and current service as a new local miscellaneous member shall be determined in accordance with Section 7522.20 of said Retirement Law (2% at age 62 Full).
10. The percentage of final compensation to be provided for each year of credited prior and current service as a classic local safety member shall be determined in accordance with Section 21366 of said Retirement Law (Onehalf pay at age 55 Full).
11. The percentage of final compensation · to be provided for each year of credited prior and current service as a new local safety member shall be determined in accordance with Section 7522.25(b) of said Retirement Law (2% at age 57 Full).
PLEASE DO NOT SIGN "EXHIBIT ONLY"
12. Public Agency elected and elects to be subject to the following optional provisions:
a. Section 21222.1 (Special 5% Increase - 1970). Legislation repealed said Section effective January 1, 1980.
b. Section 21572 (Increased Level of 1959 Survivor Benefits). c. Section 20503 (To Remove the Exclusion of "City Attorney," prospectively from October 1, 1996).
d. Section 20042 (One-Year Final Compensation) for those classic local miscellaneous members entering membership on or prior to August 28, 2011.
e. Section 20475 (Different Level of Benefits): Section 21353 (2% @ 60 Full formula) and Section 20037 (Three-Year Final
Compensation) are applicable to classic local miscellaneous members entering membership for the first time with this agency in the miscellaneous classification after August 28, 2011. f. Section 20503 (To Remove the Exclusion of "Hourly Employees," prospectively from the effective date of this amendment to contract).
13. Public Agency, in accordance with Government Code Section 20790, ceased to be an "employer" for purposes of Section 20834 effective on October 19, 1980. Accumulated contributions of Public Agency shall be fixed and determined as provided in Gqvernment Code Section 20834, and accumulated contributions thereafter shall be held by the Board as provided in Government Code Section 20834.
14. Public Agency shall contribute to said Retirement System the contributions determined by actuarial valuations of prior and future service liability with respect to local miscellaneous members and local safety members of said Retirement System.
15. Public Agency shall also contribute to �aid Retirement System as follows:
a. A reasonable amount, as fixed by the Board, payable in one installment within 60 days of date of contract to cover the costs of administering said System as it affects the employees of Public Agency, not including the costs of special valuations or of the periodic investigation and valuations required by law.
b. A reasonable amount, as fixed by the Board, payable in one installment as the occasions arise, to cover the costs of special valuations on account of employees of Public Agency, and costs of the periodic investigation and valuations required by law.
16. Contributions required of Public Agency and its employees shall be subject to adjustment · by Board on account of amendments to the Public Employees' Retirement Law, and on account of the experience under the Retirement System as determined by the periodic investigation and valuation required by said Retirement Law.
17. Contributions required of Public Agency and its employees shall be paid by Public Agency to the Retirement System within fifteen days after the end of the period to which said contributions refer or as may be prescribed by Board regulation. If more or less than the correct amount of contributions is paid for any period, proper adjustment shall be made in connection with subsequent remittances. Adjustments on account of errors in contributions required of any employee may be made by direct payments between the employee and the Board.
,,
B. This amendment shall b�ective on the day of
�� -- -------
BOARD OF ADMINISTRAT.l)N CITY COUNCIL
PUBLIC EMPLOYEES' ��REMENT SYSTEM CITY OF STANTON ./<,
�
BY �
MELODY BENA ES, CHIEF
PENSION CO CTS AND PREFUNDING
PROGRAM VISION
PUBLIC ='LOYEES' RETIREMENT SYSTEM
<>-"
AMENDMENT CalPERS ID #1012157360
PERS-CON-702A
Wit�l Date
� A1est:
Clerk
1 CITY OF STANTON
REPORT TO THE CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
DATE: March 14, 2023
SUBJECT: SCHEDULING A BUDGET WORKSHOP
REPORT IN BRIEF:
The City Council will consider dates for its budget workshop covering Fiscal Year (FY) 2023-24.
RECOMMENDED ACTION:
1. City Council find that this item is not subject to California Environmental Quality Act (“CEQA”) pursuant to Sections 15378(b)(5)(Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment); and
2. Select a date for the annual budget workshop.
BACKGROUND AND ANALYSIS:
The City’s fiscal year begins on July 1 which requires that the annual budget adoption occur on or before this date. Each year the City Council schedules a time to conduct a budget workshop. The purpose of this workshop is to review the accomplishments of FY 2022-23 and the proposed budget and associated work plan for FY 2023-24.
Since City Council meetings are held on the 2nd and 4th Tuesdays, suggested dates include Tuesday, May 16 and Tuesday, May 30. The preliminary budget will be distributed to the City Council and made available to the public on the City’s website at least 72 hours prior to the selected date. A workshop held on one of these dates will ensure sufficient time to adopt the budget for FY 2023-24 by June 27, 2023.
FISCAL IMPACT:
There is no fiscal impact associated with the recommended action.
ENVIRONMENTAL IMPACT:
This item is not subject to California Environmental Quality Act (“CEQA”) pursuant to Sections 15378(b)(5)(Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment).
Item: 9A
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2 LEGAL REVIEW:
None.
PUBLIC NOTIFICATION:
Notification through the regular agenda process.
STRATEGIC PLAN OBJECTIVES ADDRESSED:
Obj. No. 1: Provide a safe community.
Obj. No. 5: Provide a high quality of life.
Obj. No. 6: Maintain and promote a responsive, high quality and transparent government.
Prepared by: Michelle Bannigan, Finance Director
Approved by: Hannah Shin-Heydorn, City Manager
CITY OF STANTON
REPORT TO CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
DATE: March 14, 2023
SUBJECT: PROPOSED RESOLUTION TERMINATING THE LOCAL EMERGENCY DECLARED BY THE CITY AS A RESULT OF THE COVID-19
PANDEMIC AND RESCINDING COVID-19 RELATED EMERGENCY
MEASURES ADOPTED BY THE CITY
REPORT IN BRIEF:
Pursuant to state law and the City of Stanton’s (“City”) Municipal Code, the City proclaimed a local emergency in response to the COVID-19 pandemic. The City Council will consider adopting a resolution terminating its COVID-19 local emergency and clarify existing emergency measures issued by the City in response to the COVID19 pandemic that shall automatically expire following the termination of the local emergency.
RECOMMENDED ACTION:
1. City Council in accordance with the requirements of California Environmental Quality Act (“CEQA”), declare that the project is exempt pursuant to Sections 15378 and Section 15061(b)(3) of the State CEQA Guidelines (Title 14 of the California Code of Regulations); and
2. Declare an end to the City’s COVID-19 local emergency by adopting Resolution No. 2023-05, titled:
“A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
STANTON, CALIFORNIA, TERMINATING THE CITY’S LOCAL
EMERGENCY DECLARED BY THE CITY AS A RESULT OF THE
COVID-19 PANDEMIC AND RESCINDING COVID-19 RELATED
EMERGENCY MEASURES ADOPTED BY THE CITY”.
Item: 9B
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2 BACKGROUND:
In late 2019, an acute respiratory illness caused by a novel (new) coronavirus, known as COVID-19, began to spread globally and rapidly, resulting in severe illness and death around the world. The World Health Organization (“WHO”) described COVID-19 as a global pandemic. The WHO reports that to date the disease has caused over 6 million deaths worldwide.
The California Emergency Services Act (“CESA”)(Government Code section 8550, et seq.), authorizes the proclamation of a local emergency when conditions of disaster or extreme peril to the safety of persons and property within the territorial limits of a City exist. Similarly, Stanton Municipal Code section 2.64.060(A)(1), empowers the City Manager acting as the Director of Emergency Services to proclaim the existence or threatened existence of a “local emergency”, if the City Council is not in session, and requires that the City Council shall take the action to ratify the proclamation within seven (7) days thereafter, or the proclamation shall have no further force or effect.
On February 26, 2020, the Board of Supervisors of Orange County and the County’s Health Officer declared a local and health emergency as a result of COVID-19. On March 4, 2020, California Governor Gavin Newsom proclaimed a state of emergency in response to COVID-19.
Pursuant to Government Code section 8630(a) and Stanton Municipal Code section
2.64.060(A)(1), the City Manager acting as the Director of Emergency Services proclaimed a local emergency as a result of COVID-19 on March 17, 2020 via Proclamation No. 2020-01. The proclamation was ratified by the City Council on March 24, 2020 via Resolution No. 2020-04.
ANALYSIS/JUSTIFICATION:
Normally, the City Council must review the need for continuing the local emergency at least once every 60 days until it terminates the local emergency. (Gov. Code, § 8630(c).) However, under Governor Newsom’s state of emergency proclamation issued on March 4, 2020, the 60-day time period in Government Code section 8630(c) was waived for the duration of the statewide emergency. As such, the City’s local emergency proclamation has remained in effect without the need to review the need for the local emergency every 60 days.
The public health community’s response to mitigating the spread of COVID-19 has changed over time in response to the fluctuating presence of the disease. Fortunately, the State and County are currently experiencing a significant decrease in confirmed cases, test positivity rates, and related hospitalizations. In fact, California’s death rate as a result of COVID-19 is the lowest amongst large states. Additionally, COVID-19 vaccines and boosters are now widely available, and vaccination rates are increasing.
Most businesses are operating as normal and Orange County has reduced the number of restrictions countywide in response to current conditions. 3 In light of the foregoing, numerous public entities have terminated their COVID-19 emergencies. The statewide emergency declared by Governor Newsom terminated on February 28, 2023.
Although, the nature of COVID-19 continues to remain in flux, the State, County and City have successfully developed infrastructure to effectively combat the spread of the disease that has transformed a once crisis event into a manageable situation.
Pursuant to Government Code section 8630(d) which provides that the City Council shall proclaim the termination of the local emergency at the earliest possible date that conditions warrant, the proposed resolution finds and proclaims that the conditions of extreme peril to the safety of persons and property that arose as a result of COVID-19 no longer exist in the City, thereby terminating the City’s COVID-19 local emergency.
Review of Existing COVID-19 Related Emergency Measures
During the City’s proclaimed local emergency in response to COVID-19 and pursuant to its authority under the CESA, the City Council adopted Urgency Ordinance No. 1103 on June 9, 2020, implementing a Temporary Outdoor Seating Program authorizing existing businesses to operate on private property, parking lots, and public sidewalks. The duration of the program is tied to the existence of the City’s local COVID-19 emergency.
Therefore, if the proposed resolution is adopted during tonight’s meeting, thereby terminating the City’s local COVID-19 emergency, Ordinance No. 1103 will automatically expire. Also, upon the termination of the local emergency, active Temporary Outdoor Use Permits issued by the City pursuant to the program will expire 14 days later, on March 28, 2023. If the City Council ends the local COVID-19 emergency, then Community Development will send the appropriate notifications to all affected businesses.
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL IMPACT:
In accordance with the requirements of California Environmental Quality Act (“CEQA”), the project is exempt pursuant to Sections 15378 and Section 15061(b)(3) of the State CEQA Guidelines (Title 14 of the California Code of Regulations).
PUBLIC NOTIFICATION:
Public notice was made through the regular agenda process.
STRATEGIC PLAN OBJECTIVE:
Obj. No. 1: Provide a safe community.
4 Prepared by: HongDao Nguyen, City Attorney
Reviewed by: Crystal Landavazo, Director of Community Development Approved by: Hannah Shin-Heydorn, City Manager
Attachment:
A. Resolution No. 2023-05, “A Resolution of the City Council of the City of Stanton, California Terminating the City’s Local Emergency Declared by the City as a Result of the COVID-19 Pandemic and Rescinding COVID-19 Related Emergency Measures Adopted by the City”.
RESOLUTION NO. 2023-05
RESOLUTION NO. 2023-05
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF STANTON, CALIFORNIA, PROCLAIMING THE END OF THE CITY’S LOCAL EMERGENCY DECLARED BY THE CITY AS A RESULT OF THE COVID-19 PANDEMIC AND RESCINDING COVID-19
RELATED EMERGENCY MEASURES ADOPTED BY THE CITY
THE CITY COUNCIL OF THE CITY OF STANTON DOES HEREBY RESOLVE AS FOLLOWS:
WHEREAS, the California Emergency Services Act (“CESA”)(Government Code section 8550, et seq.), authorizes the proclamation of a local emergency when conditions of disaster or extreme peril to the safety of persons and property within the territorial limits of a city exist; and
WHEREAS, Government Code section 8630 and Stanton Municipal Code section
2.64.060(A)(1), empowers the City Manager acting as the Director of Emergency Services to proclaim the existence or threatened existence of a “local emergency”, if the City Council is not in session, and require that the City Council shall take the action to ratify the proclamation within seven (7) days thereafter, or the proclamation shall have no further force or effect; and
WHEREAS, in late 2019, an acute respiratory illness caused by a novel (new) coronavirus, known as COVID-19, began to spread globally and rapidly, resulting in severe illness and death around the world. The World Health Organization (“WHO”) described COVID-19 as a global pandemic. The WHO reports that to date the disease has caused over 6 million deaths worldwide; and
WHEREAS, in early 2020, and in response to the increased spread of COVID-19, the State of California and Orange County along with many other public entities in the state declared an emergency pursuant to CESA; and
WHEREAS, the City Manager acting as the Director of Emergency Services, proclaimed an emergency as a result of the COVID-19 virus on March 17, 2020 via Proclamation No. 2020-01. The proclamation was ratified by the City Council on March 24, 2020 via Resolution No. 2020-04; and
WHEREAS, normally, the City Council must review the need for continuing the local emergency at least once every 60 days until it terminates the local emergency. (Gov.
Code, § 8630.) However, under Governor Newsom’s state of emergency proclamation issued on March 4, 2020, the 60-day time period in Government Code section 8630 was waived for the duration of the statewide emergency. As such, the City’s local emergency proclamation has remained in effect without the need to review the need for the local emergency every 60 days; and
Attachment: A
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RESOLUTION NO. 2023-05
WHEREAS, the public health community’s response to mitigating the spread of COVID19 has changed over time in response to the fluctuating presence of the disease.
Fortunately, the State and County are currently experiencing a significant decrease in confirmed cases, test positivity rates, and related hospitalizations. Additionally, COVID19 vaccines and boosters are now widely available, and vaccination rates are increasing.
Most businesses are operating as normal and Orange County has reduced the number of restrictions countywide in response to current conditions; and WHEREAS, in light for the foregoing, numerous public entities have terminated their COVID-19 emergencies. The statewide emergency declared by Governor Newsom terminated on February 28, 2023; and
WHEREAS, the nature of COVID-19 continues to remain in flux. However, the State, County and City have successfully developed infrastructure to effectively combat the spread of the disease that have transformed a once crisis event into a manageable situation; and
WHEREAS, pursuant to California Government Code section 8630(d), the City Council shall proclaim the termination of the local emergency at the earliest possible date that conditions warrant; and
WHEREAS, during the City’s proclaimed local emergency in response to COVID-19 and pursuant to its authority under the CESA, the City Council adopted Urgency Ordinance No. 1103 on June 9, 2020, implementing a Temporary Outdoor Seating Program authorizing existing businesses to operate on private property, parking lots, and public sidewalks; and
WHEREAS, the City’s Temporary Outdoor Seating Program will automatically expire upon the termination of City’s local COVID-19 emergency, and active temporary use permits issued by the City pursuant to the Program will expire 14 days later; and WHEREAS, the City Council desires to proclaim the termination the local emergency declared in the City in response to the COVID-19 pandemic.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF STANTON, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1: End of COVID-19 Local Emergency. Pursuant to California Government Code section 8630(d), the City Council finds and proclaims that the conditions of extreme peril to the safety of persons and property that arose as a result of COVID-19 in the City of Stanton no longer exist. As such, the proclamation of an existence of a local emergency declared in response to COVID-19 proclaimed by the City Manager on March 17, 2020 via Proclamation No. 2020-01 and ratified by the City Council on March 24, 2020 via Resolution No. 2020-04 no longer exists.
RESOLUTION NO. 2023-05
SECTION 2: The City’s Temporary Outdoor Seating Program implemented pursuant to Urgency Ordinance No. 1103 adopted by the City Council on June 9, 2020, shall automatically expire upon the adoption of this Resolution. Active Temporary Use Permits issued by the City pursuant to the program shall expire on March 28, 2023.
SECTION 3: Clerk Certification; Recordation. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
SECTION 4: Effective Date. This Resolution shall become effective upon its adoption.
PASSED, APPROVED, ADOPTED, AND SIGNED this 14th day of March, 2023.
DAVID J. SHAWVER, MAYOR
APPROVED AS TO FORM:
HONGDAO NGUYEN, CITY ATTORNEY
ATTEST:
I, Patricia A. Vazquez, City Clerk of the City of Stanton, California DO HEREBY CERTIFY that the foregoing Resolution, being Resolution No. 2023-05 has been duly signed by the Mayor and attested by the City Clerk, all at a regular meeting of the Stanton City Council, held on March 14, 2023, and that the same was adopted, signed and approved by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
PATRICIA A. VAZQUEZ, CITY CLERK
City Council Initiated
Items 12D – 12E – 12F
Item 12D: “DISCUSSION REGARDING OBTAINING A LAND LEASE WITH SOUTHERN CALIFORNIA EDISON”
Item 12E: “DISCUSSION REGARDING CONSIDERATION FOR A
RESOLUTION OF SUPPORT OF THE IRANIAN AMERICAN
COMMUNITY”
Item 12F: “DISCUSSION REGARDING THE CITY’S PERMIT PARKING PROGRAM”
(These items do not contain a staff report)
Item 12D - 12E - 12F
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