EXHIBIT 2
216
/0 /1 /2 /3 /1 /i255 /5 /6 /7 /8 /i255 /9 /10 /8 /1 /7 /2 /11 /2 /8 /12 /13 /14 /i255 /11 /3 /15 /12 /i255 /16 /8 /7 /7 /8 /12 /i255 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2 /3 /1 /i255 /6 /18 /18 /12 /8 /19 /2 /6 /7 /2 /3 /1 /i255 /2 /10 /8 /1 /7 /2 /11 /2 /8 /12 /i255 /8 /1 /17 /16 /3 /13 /8 /10 /2 /1 /i255 /10 /3 /7 /7 /8 /10 /i255 /16 /2 /1 /8 /13 /i255 /18 /8 /20 /2 /1 /1 /2 /1 /20 /i255 /21 /2 /7 /22 /i255 /17 /22 /6 /12 /6 /17 /7 /8 /12 /13 /i255 /3 /7 /22 /8 /12 /i255 /7 /22 /6 /1 /i255 /23 /23 /24 /0 /23 /23 /i255 /3 /12 /23 /23 /0 /14 /25 /26 /23 /23 /i255 /10 /8 /1 /3 /7 /8 /13 /i255 /7 /22 /6 /7 /i255 /7 /22 /8 /i255 /15 /1 /2 /3 /1 /i255 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2 /3 /1 /i255 /6 /1 /10 /i255 /12 /6 /7 /8 /i255 /21 /8 /12 /8 /27 /12 /8 /19 /6 /2 /16 /2 /1 /20 /i255 /11 /3 /12 /i255 /7 /22 /6 /7 /i255 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2 /3 /1 /i255 /2 /1 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /29 /i255 /30 /31 /6 /32 /27 /16 /8 /33 /34 /35 /0 /36 /37 /38 /39 /40 /41 /37 /37 /42
/i255 /37 /43 /44 /37 /38 /44 /45 /37 /38 /46 /29 /i255 /34 /35 /0 /36 /i255 /2 /13 /i255 /6 /1 /i255 /6 /18 /18 /12 /8 /19 /2 /6 /7 /2 /3 /1 /i255 /2 /10 /8 /1 /7 /2 /11 /2 /8 /12 /i255 /3 /11 /7 /22 /8 /i255 /15 /1 /2 /3 /1 /i255 /21 /22/2 /17 /22 /i255 /27 /12 /8 /19 /6 /2 /16 /8 /10 /i255 /2 /1 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /i255 /11 /3 /12 /i255 /7 /22 /2 /13 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2/3 /1 /47 /i255 /21 /22 /2 /17 /22 /i255 /2 /1 /i255 /7 /22 /2 /13 /i255 /8 /31 /6 /32 /27 /16 /8 /i255 /21 /3 /15 /16 /10 /i255 /18 /8 /i255 /34 /16 /15 /32 /18 /8 /12 /13 /29 /i255 /37 /38 /39 /40 /2 /1 /10 /2 /17 /6 /7 /8 /13 /i255 /7 /22/8 /i255 /16 /3 /17 /6 /16 /i255 /15 /1 /2 /3 /1 /i255 /1 /15 /32 /18 /8 /12 /i255 /3 /12 /i255 /10 /2 /13 /7 /12 /2 /17 /7 /i255 /17 /3 /15 /1 /17 /2 /16 /i255 /1 /15 /32 /18 /8 /12 /21 /22 /8 /12 /8 /i255 /6 /27 /27 /16 /2 /17/6 /18 /16 /8 /47 /i255 /2 /29 /8 /29 /47 /i255 /34 /16 /15 /32 /18 /8 /12 /13 /i255 /35 /3 /17 /6 /16 /i255 /37 /38 /39 /40 /29 /i255 /48 /22 /8 /i255 /1 /8 /31 /7 /i255 /1 /15 /32 /18 /8 /12 /47 /37 /37 /42 /i255 /2 /1 /i255 /7 /22 /8 /i255 /8/31 /6 /32 /27 /16 /8 /47 /i255 /2 /13 /i255 /6 /1 /i255 /2 /1 /7 /8 /12 /1 /6 /16 /i255 /1 /15 /32 /18 /8 /12 /i255 /15 /13 /8 /10 /i255 /2 /1 /i255 /27 /12 /3 /17 /8 /13 /13 /2 /1 /20 /7 /22 /8 /i255 /21 /6 /20 /8 /i255 /10 /8 /7/8 /12 /32 /2 /1 /6 /7 /2 /3 /1 /29 /i255 /37 /43 /44 /37 /38 /44 /45 /37 /38 /46 /i255 /2 /13 /i255 /7 /22 /8 /i255 /8 /11 /11 /8 /17 /7 /2 /19 /8 /i255 /10 /6 /7 /8 /i255 /3 /11 /i255 /7 /22 /8 /32 /3 /13 /7 /i255 /17 /15 /12 /12 /8 /1 /7/i255 /1 /8 /20 /3 /7 /2 /6 /7 /8 /10 /i255 /12 /6 /7 /8 /47 /i255 /21 /22 /2 /17 /22 /i255 /2 /1 /i255 /7 /22 /2 /13 /i255 /8 /31 /6 /32 /27 /16 /8 /i255 /2 /13 /i255 /49 /15 /16 /28 /i255 /38 /47 /45 /37 /38 /46 /29
/0 /1 /2 /3 /1 /i255 /27 /12 /8 /19 /6 /2/16 /2 /1 /20 /i255 /21 /6 /20 /8 /i255 /12 /6 /7 /8 /13 /i255 /6 /12 /8 /i255 /15 /27 /10 /6 /7 /8 /10 /i255 /7 /3 /i255 /12 /8 /11 /16 /8 /17 /7 /i255 /6 /16 /16 /i255 /12 /6 /7 /8 /17 /22 /6 /1 /20 /8 /13 /i255 /2 /1 /i255 /7/22 /8 /i255 /17 /3 /16 /16 /8 /17 /7 /2 /19 /8 /i255 /18 /6 /12 /20 /6 /2 /1 /2 /1 /20 /i255 /6 /20 /12 /8 /8 /32 /8 /1 /7 /i255 /50 /51 /52 /14 /53 /i255 /20 /3 /19 /8 /12 /1 /2 /1 /20 /7 /22 /2 /13 /i255 /17 /16 /6 /13 /13 /2 /11/2 /17 /6 /7 /2 /3 /1 /i255 /6 /1 /10 /i255 /12 /6 /7 /8 /29 /24 /15 /12 /19 /8 /28 /i255 /5 /6 /7 /8 /i255/9 /10 /8 /1 /7 /2 /11 /2 /8 /12 /13 /51 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2/3 /1 /13 /i255 /16 /2 /13 /7 /8 /10 /i255 /15 /1 /10 /8 /12 /i255 /7 /22 /8 /i255 /23 /23 /24 /0 /23 /23 /i255 /2 /10 /8 /1 /7 /2 /11 /2 /8 /12 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /i255 /7 /22 /6 /7 /1 /3 /i255 /3 /1 /8 /i255 /12 /6 /7 /8 /i255/27 /12 /8 /19 /6 /2 /16 /8 /10 /i255 /11 /3 /12 /i255 /7 /22 /2 /13 /i255 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2 /3 /1 /i255 /2 /1 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /i255 /6 /1 /10 /7 /22 /8 /i255 /27 /15 /18 /16 /2 /13 /22 /8/10 /i255 /12 /6 /7 /8 /i255 /2 /13 /i255 /10 /8 /12 /2 /19 /8 /10 /i255 /18 /28 /i255 /17 /3 /32 /27 /15 /7 /2 /1 /20 /i255 /6 /i255 /21 /8 /2 /20 /22 /7 /8 /10 /i255 /6 /19 /8 /12 /6 /20 /8 /12 /6 /7 /8 /i255 /18 /6 /13 /8 /10 /i255 /3/1 /i255 /6 /16 /16 /i255 /7 /22 /8 /i255 /12 /6 /7 /8 /13 /i255 /12 /8 /27 /3 /12 /7 /8 /10 /i255 /2 /1 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /i255 /11 /3 /12 /i255 /7 /22 /6 /7 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2/3 /1 /29 /i255 /i255 /14 /13 /i255 /7 /22 /2 /13 /i255 /21 /8 /2 /20 /22 /7 /8 /10 /i255 /6 /19 /8 /12 /6 /20 /8 /i255 /12 /6 /7 /8 /i255 /2 /1 /17 /16 /15 /10 /8 /13 /i255 /6 /16 /16 /12 /6 /7 /8 /13 /i255 /12 /8 /27 /3 /12 /7/8 /10 /i255 /2 /1 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /47 /i255 /2 /7 /i255 /32 /6 /28 /i255 /2 /1 /17 /16 /15 /10 /8 /i255 /18 /3 /7 /22 /i255 /15 /1 /2 /3 /1 /i255 /6 /1 /10 /1 /3 /1 /41 /15 /1 /2 /3 /1 /i255 /12 /6/7 /8 /13 /29 /i255 /30 /31 /6 /32 /27 /16 /8 /33 /i255 /24 /0 /35 /14 /45 /37 /38 /45 /41 /37 /37 /43 /i255 /42 /44 /38 /54 /44 /45 /37 /38 /46 /29 /i255 /24 /0 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /13 /7 /22 /8 /i255 /12 /6 /7 /8 /13 /i255 /6 /12/8 /i255 /13 /15 /12 /19 /8 /28 /i255 /12 /6 /7 /8 /13 /i255 /18 /6 /13 /8 /10 /i255 /3 /1 /i255 /6 /i255 /21 /8 /2 /20 /22 /7 /8 /10 /i255 /6 /19 /8 /12 /6 /20 /8 /17 /6 /16 /17 /15 /16 /6 /7 /2 /3 /1 /i255/3 /11 /i255 /12 /6 /7 /8 /13 /i255 /6 /1 /10 /i255 /6 /12 /8 /i255 /1 /3 /7 /i255 /32 /6 /55 /3 /12 /2 /7 /28 /i255 /12 /6 /7 /8 /13 /29 /i255 /35 /14 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /13 /7 /22 /8 /i255 /24 /7 /6 /7 /8 /i255 /3 /11/i255 /35 /3 /15 /2 /13 /2 /6 /1 /6 /29 /i255 /45 /37 /38 /45 /i255 /2 /13 /i255 /7 /22 /8 /i255 /28 /8 /6 /12 /i255 /3 /11 /i255 /13 /15 /12 /19 /8 /28 /i255 /3 /1 /i255 /21 /22 /2 /17 /22 /7 /22 /8 /13 /8 /i255 /17 /16 /6 /13 /13 /2/11 /2 /17 /6 /7 /2 /3 /1 /13 /i255 /6 /1 /10 /i255 /12 /6 /7 /8 /13 /i255 /6 /12 /8 /i255 /18 /6 /13 /8 /10 /29 /i255 /48 /22 /8 /i255 /1 /8 /31 /7 /i255 /1 /15 /32 /18 /8 /12 /47 /i255 /37 /37 /43 /2 /1 /i255 /7 /22 /8 /i255 /8 /31 /6 /32 /27/16 /8 /47 /i255 /2 /13 /i255 /6 /1 /i255 /2 /1 /7 /8 /12 /1 /6 /16 /i255 /1 /15 /32 /18 /8 /12 /i255 /15 /13 /8 /10 /i255 /2 /1 /i255 /27 /12 /3 /10 /15 /17 /2 /1 /20 /i255 /7 /22 /8 /21 /6 /20 /8 /i255 /10 /8 /7 /8 /12 /32 /2/1 /6 /7 /2 /3 /1 /29 /i255 /42 /44 /38 /54 /44 /45 /37 /38 /46 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /13 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /i255 /17 /3 /32 /27 /16 /8 /7 /2 /3 /1 /10 /6 /7 /8 /i255 /11 /3 /12 /i255 /7 /22 /8/i255 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2 /3 /1 /13 /i255 /6 /1 /10 /i255 /12 /6 /7 /8 /13 /i255 /15 /1 /10 /8 /12 /i255 /7 /22 /6 /7 /i255 /2 /10 /8 /1 /7 /2 /11 /2 /8 /12 /29 /24 /15 /12 /19 /8 /28 /i255 /21 /6 /20 /8 /i255/12 /6 /7 /8 /13 /i255 /6 /12 /8 /i255 /1 /3 /7 /i255 /15 /27 /10 /6 /7 /8 /10 /i255 /6 /1 /10 /i255 /12 /8 /32 /6 /2 /1 /i255 /2 /1 /i255 /8 /11 /11 /8 /17 /7 /i255 /15 /1 /7 /2 /16 /i255 /6 /1 /8 /21 /i255 /13 /15 /12 /19 /8 /28 /i255 /2/13 /i255 /17 /3 /1 /10 /15 /17 /7 /8 /10 /29 /0 /1 /2 /3 /1 /i255 /14 /19 /8 /12 /6 /20/8 /i255 /5 /6 /7 /8 /i255 /9 /10 /8 /1 /7 /2 /11 /2 /8 /12 /13 /51 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2/3 /1 /50 /13 /53 /i255 /16 /2 /13 /7 /8 /10 /i255 /15 /1 /10 /8 /12 /i255 /7 /22 /8 /i255 /0 /14 /25 /26 /i255 /2 /10 /8 /1 /7 /2 /11 /2 /8 /12 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /7 /22 /6 /7 /i255 /1 /3 /i255 /13 /2 /1 /20/16 /8 /i255 /32 /6 /55 /3 /12 /2 /7 /28 /i255 /12 /6 /7 /8 /i255 /27 /12 /8 /19 /6 /2 /16 /8 /10 /i255 /11 /3 /12 /i255 /7 /22 /3 /13 /8 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2/3 /1 /13 /56 /i255 /22 /3 /21 /8 /19 /8 /12 /47 /i255 /38 /37 /37 /57 /i255 /3 /11 /i255 /7 /22 /8 /i255 /10 /6 /7 /6 /i255 /12 /8 /27 /3 /12 /7 /8 /10 /i255 /11 /3 /12 /i255 /7 /22 /8 /17 /16 /6 /13 /13 /2 /11 /2 /17 /6 /7 /2/3 /1 /13 /i255 /21 /6 /13 /i255 /15 /1 /2 /3 /1 /i255 /10 /6 /7 /6 /29 /i255 /30 /58 /14 /36 /34 /35 /30 /33 /i255 /0 /14 /25 /26 /41 /59 /60 /41 /37 /37 /38 /37 /37 /40 /44 /45 /39 /44 /45 /37 /38 /46 /29 /i255/0 /14 /25 /26 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /13 /i255 /7 /22 /6 /7 /i255 /7 /22 /8 /i255 /12 /6 /7 /8 /i255 /2 /13 /i255 /6 /i255 /21 /8 /2 /20 /22 /7 /8 /10 /i255 /15 /1 /2 /3 /1 /6 /19 /8 /12 /6 /20 /8 /i255 /12 /6 /7 /8/29 /i255 /59 /60 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /13 /i255 /7 /22 /8 /i255 /13 /7 /6 /7 /8 /29 /i255 /48 /22 /8 /i255 /1 /8 /31 /7 /i255 /1 /15 /32 /18 /8 /12 /47 /i255 /37 /37 /38 /37 /i255 /2 /1 /7 /22 /8 /i255 /8 /31 /6 /32 /27 /16 /8 /47/i255 /2 /13 /i255 /6 /1 /i255 /2 /1 /7 /8 /12 /1 /6 /16 /i255 /1 /15 /32 /18 /8 /12 /i255 /15 /13 /8 /10 /i255 /2 /1 /i255 /27 /12 /3 /10 /15 /17 /2 /1 /20 /i255 /7 /22 /8 /i255 /21 /6 /20 /8 /10 /8 /7 /8 /12 /32 /2 /1 /6 /7 /2 /3/1 /29 /i255 /37 /40 /44 /45 /39 /44 /45 /37 /38 /46 /i255 /2 /1 /10 /2 /17 /6 /7 /8 /13 /i255 /7 /22 /8 /i255 /13 /15 /12 /19 /8 /28 /i255 /17 /3 /32 /27 /16 /8 /7 /2 /3 /1 /i255 /10 /6 /7 /8 /11 /3 /12 /i255 /7 /22 /8 /i255 /17 /16 /6 /13/13 /2 /11 /2 /17 /6 /7 /2 /3 /1 /13 /i255 /6 /1 /10 /i255 /12 /6 /7 /8 /13 /i255 /15 /1 /10 /8 /12 /i255 /7 /22 /6 /7 /i255 /2 /10 /8 /1 /7 /2 /11 /2 /8 /12 /29 /14 /i255 /0 /14 /25 /26 /i255 /12 /6 /7 /8 /i255/21 /2 /16 /16 /i255 /18 /8 /i255 /15 /27 /10 /6 /7 /8 /10 /i255 /3 /1 /17 /8 /i255 /6 /i255 /28 /8 /6 /12 /47 /i255 /15 /13 /15 /6 /16 /16 /28 /i255 /2 /1 /i255 /49 /6 /1 /15 /6 /12 /28 /i255 /3 /11 /8 /6 /17 /22 /i255 /28 /8 /6 /12 /47 /i255 /7/3 /i255 /12 /8 /11 /16 /8 /17 /7 /i255 /6 /i255 /21 /8 /2 /20 /22 /7 /8 /10 /i255 /6 /19 /8 /12 /6 /20 /8 /i255 /3 /11 /i255 /7 /22 /8 /i255 /17 /15 /12 /12 /8 /1 /7 /1 /8 /20 /3 /7 /2 /6 /7 /8 /10 /44 /51/52 /14 /i255 /12 /6 /7 /8 /i255 /3 /11 /i255 /7 /22 /8 /i255 /15 /1 /2 /3 /1 /i255 /16 /3 /17 /6 /16 /13 /i255 /11 /12 /3 /32 /i255 /21 /22 /2 /17 /22 /i255 /7 /22 /8 /i255 /12 /6 /7 /8 /i255 /2 /13 /18 /6 /13 /8 /10 /29
/41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /41 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /i255 /61 /14 /26 /30 /i255 /62 /30 /48 /30 /5 /36 /9 /63 /14 /48 /9 /59 /63 /i255 /14 /34 /34 /30 /14 /35 /24 /i255 /34 /5 /59 /51 /30 /24 /24 /38 /29 /53 /i255 /60 /6 /13 /i255 /7 /22 /8 /12 /8 /i255 /18 /8 /8 /1 /i255 /6 /1 /i255 /2 /1 /2 /7 /2 /6 /16 /i255 /10 /8 /17 /2 /13 /2 /3 /1 /i255 /2 /1 /i255 /7 /22 /8 /i255 /32 /6 /7 /7 /8 /12 /64 /i255 /48 /22 /2 /13 /i255 /17 /6 /1 /18 /8 /33
EXHIBIT D
EXHIBIT 2
217
/0 /i255 /i255 /2 /3 /i255 /4 /5 /6 /7 /8 /6 /3 /9 /i255 /10 /11 /12 /13 /6 /7 /14 /4 /15 /i255 /16 /2 /9 /4 /i255 /15 /4 /8 /4 /17 /18 /6 /3 /2 /8 /6 /19 /3 /0 /i255 /i255 /2 /i255 /7 /11 /17 /20 /4 /21 /i255 /11 /3 /15 /4 /17 /13 /21 /6 /3 /9 /i255 /2 /i255 /16 /2 /9 /4 /i255 /15 /4 /8 /4 /17 /18 /6 /3 /2 /8 /6 /19 /3 /0 /i255 /i255 /2 /i255 /22 /2 /9 /4 /i255 /2 /3 /15 /i255 /23 /19 /11 /17 /i255 /24 /6 /20 /6 /7 /6 /19 /3 /i255 /13 /4 /8 /8 /4 /17 /i255 /7 /4 /8 /8 /6 /3 /9 /i255 /25 /19 /17 /8 /14 /i255 /2 /i255 /10 /19 /7 /6 /8 /6 /19 /3 /i255 /19 /3 /i255 /i255 /i255 /2 /i255 /16 /2 /9 /4 /i255 /15 /4 /8 /4 /17 /18 /6 /3 /2 /8 /6 /19 /3 /i255 /18 /2 /8 /8 /4 /17 /0 /i255 /i255 /2 /i255 /26 /19 /3 /25 /19 /17 /18 /2 /3 /26 /4 /i255 /27 /2 /15 /15 /6 /8 /6 /19 /3 /2 /13 /i255 /26 /13 /2 /7 /7 /6 /25 /6 /26 /2 /8 /6 /19 /3 /i255 /2 /3 /15 /i255 /17 /2 /8 /4 /28 /i255 /17 /11 /13 /6 /3 /9 /29 /3 /i255 /7 /11 /17 /20 /4 /21 /i255 /17 /4
/13 /2 /8 /4 /15 /i255 /18 /2 /8 /8 /4 /17 /7 /30 /i255 /6 /3 /6 /8 /6 /2 /13 /i255 /26 /19 /3 /8 /2 /26 /8 /30 /i255 /6 /3 /26 /13 /11 /15 /6 /3 /9 /i255 /17 /4 /31 /11 /4 /7 /8 /7 /25 /19 /17 /i255 /7 /11 /18 /18 /2 /17 /6 /4/7 /i255 /19 /25 /i255 /7 /11 /17 /20 /4 /21 /7 /30 /i255 /7 /14 /19 /11 /13 /15 /i255 /12 /4 /i255 /16 /6 /8 /14 /i255 /8 /14 /4 /i255 /22 /2 /9 /4 /i255 /2 /3 /15 /i255 /23 /19 /11 /17 /32 /2 /8 /6 /19 /3 /2 /13 /i255 /29 /25 /25/6 /26 /4 /i255 /12 /4 /26 /2 /11 /7 /4 /i255 /32 /2 /8 /6 /19 /3 /2 /13 /i255 /29 /25 /25 /6 /26 /4 /i255 /14 /2 /7 /i255 /17 /4 /7 /10 /19 /3 /7 /6 /12 /6 /13 /6 /8 /21 /i255 /25 /19 /17 /8 /14 /4 /i255 /24 /2 /20 /6 /7 /33 /34 /2/26 /19 /3 /i255 /7 /11 /17 /20 /4 /21 /i255 /10 /17 /19 /9 /17 /2 /18 /35 /i255 /36 /25 /i255 /8 /14 /4 /i255 /17 /4 /7 /10 /19 /3 /7 /4 /i255 /25 /17 /19 /18 /i255 /8 /14 /6 /7 /6 /3 /6 /8 /6 /2 /13 /i255 /26 /19 /3 /8/2 /26 /8 /i255 /6 /7 /i255 /3 /19 /8 /i255 /7 /2 /8 /6 /7 /25 /2 /26 /8 /19 /17 /21 /30 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EXHIBIT D
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Exhibit 12-G
Required Federal-Aid Contract Language
Local Assistance Procedures Manual
May 2023
EXHIBIT 12-G: REQUIRED FEDERAL-AID CONTRACT LANGUAGE
(For Local Assistance Construction Projects)
The fol
lowing language must be incorporated into all Local Assistance Federal-aid construction contracts.
The following language, with minor edits, was taken from the Code of Federal Regulations.
MAIN
TAIN RECORDS AND SUBMIT REPORTS DOCUMENTING YOUR PERFORMANCE UNDER THIS
SECTION
1. DISADVANTAGED BUSINESS ENTERPRISES (DBE) ..................................................................................... 2 A. Nondiscrimination Statement ... ................................................................................................................... 3 B. Contract Assurance ... ................................................................................................................................... 3 C. Prompt Progress Payment... ........................................................................................................................ 3 D. Prompt Payment of Withheld Funds to Subcontractors ... ....................................................................... 3 E. Termination and Replacement of DBE Subcontractors ... ........................................................................ 4 F. Commitment and Utilization ... ..................................................................................................................... 6 G. Running Tally of Attainments ... ................................................................................................................... 7 H. Commercially Useful Function ... ................................................................................................................. 7 I. Use of Joint Checks ... .................................................................................................................................. 8
6. CHANGED CONDITIONS .................................................................................................................................... 9
7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES ........................................ 10
8. BUY AMERICA ................................................................................................................................................... 10
9. QUALITY ASSURANCE .................................................................................................................................... 11
10. PROMPT PAYMENT .......................................................................................................................................... 11
11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONTRACTS .......................... 12
12. FEMALE AND MINORITY GOALS .................................................................................................................... 25
13. TITLE VI ASSURANCES .................................................................................................................................... 26
14. FEDERAL TRAINEE PROGRAM ...................................................................................................................... 31
15. PROHIBITION OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT AND SERVICES .......................................................................................................................................................... 32
EXHIBIT E
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Exhibit 12-G
Required Federal-Aid Contract Language
Local Assistance Procedures Manual
May 2023
1. DISADVANTAGED BUSINESS ENTERPRISES (DBE)
The contractor, subrecipient or subcontractor shall take necessary and reasonable steps to ensure that DBEs have opportunity t
o participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the
Agency shows a contract goal for DBEs. The prime contractor shall make work available to DBEs and select work parts consistent with available DBE subcontractors and suppliers.
The prime
contractor shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made
adequate Good Faith Efforts (GFE) to meet this goal. An adequate GFE means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to
the objective, could reasonably be expected to meet the DBE goal.
If the
DBE goal is not met, the contractor needs to complete and submit the DBE GFE documentation as described in
Local Assistance Procedures Manual (LAPM) Chapter 9, Section 9.8 within 5 (five) days of bid opening.
It is the prime contractor’s responsibility to verify that the DBE firm is certified as a DBE on the date of bid opening by
using the California Unified Certification Program (CUCP) database and possesses the most specific available North
American Industry Classification System (NAICS) codes and Work Code applicable to the type of work the firm will perform on the contract. Additionally, the prime contractor is responsible to document this verification by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at: https://dot.ca.gov/programs/civil-rights/dbe
-search.
DBE participation will only count toward the California Department of Transportation’s federally mandated statewide overall DBE goal if the DBE performs a commercially useful function under 49 CFR 26.55.
Credit for
materials or supplies the prime contractor purchases from DBEs counts towards the goal in the following manner:
• 100 percent
counts if the materials or supplies are obtained from a DBE manufacturer. • 60 percent counts if the materials or supplies are obtained from a DBE regular dealer. • Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count
if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR
26.55 defines "manufacturer" and "regular dealer."
The prim
e contractor receives credit towards the goal if they employ a DBE trucking company that performs a commercially useful function as defined in 49 CFR 26.55(d) as follows:
• The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals.
• The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract.
• The DBE receives credit for the total value of the transportation services it provides on the Contract using trucks it owns, insures, and operates using drivers it employs. • The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Contract. • The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE that leases trucks equipped with drivers from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE leased trucks equipped with drivers not to exceed the value of transportation services on the contract provided by DBE-owned trucks or leased trucks with DBE employee drivers. Additional participation by non-DBE owned trucks equipped with drivers receives credit only for the fee or commission it receives as a result of the lease arrangement. • The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services.
EXHIBIT E
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Exhibit 12-G
Required Federal-Aid Contract Language
Local Assistance Procedures Manual
May 2023
• A lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.
A. Nondiscrimination Statement
The contractor, subrecipient or subcontractor will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the Local Agency components of the DBE Program Plan, the contractor, subrecipient or subcontractor will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
B. Contract Assurance
Under 49 CFR 26.13(b): The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible.
C. Prompt Progress Payment
In accordance
with California Business and Professions Code section 7108.5, the prime contractor or subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work performed by the subcontractors, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the prime contractor or subcontractor to a subcontractor, the prime contractor or subcontractor may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall
subject the licensee to a penalty, payable to the subcontractor, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanc tions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non- DBE
subcontractors.
D. Prompt Payment of Withheld Funds to Subc ontractors
The Agency may hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency, of the c ontract work, and pay retainage to the prime contractor based on these acceptances. The Agency shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor to a subcontractor. The Agency shall include either Method 1, Method 2, or Method 3 below and delete the other two.
Method
1: No retainage will be held by the Agency from progress payments due to the prime contractor.
Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the
EXHIBIT E
EXHIBIT 2
221
Exhibit 12-G
Required Federal-Aid Contract Language
Local Assistance Procedures Manual
May 2023
contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.
Method 2: No retainage will be held by the Agency from progress payments due to the prime contractor.
Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor within seven (7) days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval.
Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.
Method 3: The Agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within seven (7) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Agency. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval. Any violation of these provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.
Any violation of these provisions of Prompt Progress Payment and Prompt Payment of Withheld Funds to Subcontractors shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.
E. Termination and Replacement of DBE Subcontractors
The prime contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the contractor obtains the Agency’s written consent. The prime contractor shall not terminate or
replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without prior written authorization from the Agency. Unless the Agency’s prior written c onsent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or s
upplied by the listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid.
Termination of DBE Subcontractors
After a contract with a specified DBE goal has been executed, termination of a DBE may be allowed for the following, but
not limited to, justifiable reasons with prior written authorization from the Agency:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The Local
Agency stipulated that a bond is a condition of executing the subcontract and the listed DBE fails
to meet the Local Agency’s bond requirements.
3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law,
or is not properly registered with the California Department of Industrial Relations as a public works contractor.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to
EXHIBIT E
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222
Exhibit 12-G
Required Federal-Aid Contract Language
Local Assistance Procedures Manual
May 2023
perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes
bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily
withdraws with written notice from the Contract
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner
dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The Agency determines other documented good cause.
To terminate a DBE or to terminate a portion of a DBE's work, the contractor must use the following procedures:
1. Send a written notice to the DBE of Contractor’s intent to use other forces or material sources and include one or
more justifiable reasons listed above. Simultaneously send a copy of this written notice to the Agency. T
he written notice to the DBE must request they provide any response within five (5) business days to both the Contractor and the Agency by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within 5 business days, Contractor may move forward with the request as if the DBE had
agreed to Contractor’s written notice.
3. Submit Contractor’s DBE termination request by written letter to the Agency and include:
• One or more above listed justifiable reasons along with supporting documentation. • Contractor’s written notice
to the DBE regarding the request, including proof of transmission and tracking documentation of Contractor’s written notice
• The DBE's respons
e to Contractor’s written notice, if received. If a written response was not provided, provide a
statement to that effect.
The Agency shall respond in writing to Contractor’s DBE termination request within 5 business days.
Replacement of D
BE Subcontractors
After receiving the Agency’s written authorization of DBE termination request, the Contractor must obtain the Agency’s writt
en agreement for DBE replacement. The Contractor must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the Agency which must include:
a. Description of remaining uncommitted work items made available for replacement DBE solicitation and participation.
b. The propose
d DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Quote for bid item work and description of work to be performed • Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Subcontracting
Request form
• Revised Exhibit 15-G: Construction Contract DBE Commitment
EXHIBIT E
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Exhibit 12-G
Required Federal-Aid Contract Language
Local Assistance Procedures Manual
May 2023
2. If Contractor has not identified a DBE replacement firm, submit documentation of the Contractor’s GFEs to use
DBE replacement firms within 7 days of Agency's authorization to terminate the DBE. The Contractor may request the Agency's approval to extend this submittal period to a total of 14 days.
Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results
of certified DBEs available to perform the original DBE work identified and/or other work the Contractor had intended to self-perform, to the extent needed to meet the DBE commitment
• Solicitations of
DBEs for performance of work identified
• Correspondence with interested DBEs that may have included contract details and requirements • Negotiation efforts
with DBEs that reflect why an agreement was not reached • If a DBE's
quote was rejected, provide Contractor’s reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive • Copies of each DBE's and non-DBE's price quotes for work identified, as the Agency may contact the firms
to verify solicitation efforts and determine if the DBE quotes are substantially higher • Additional documentation
that supports the GFE
The Agency shall respond in writing to the Contractor’s DBE replacement request within five (5) business days.
The Contractor must submit a revised Subcontracting Request form if the replacement plan is authoriz ed by the Agency.
F. Commitment and Utilization
The Agenc
y’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The bidder shall complete and sign Exhibit 15-G Construction Contract DBE Commitment included in the contract documents regardless of whether DBE participation is reported. The bidder shall provide written confirmation from each DBE that the DBE is participating in the Contract. LAPM Exhibit 9-I: DBE Confirmation or equivalent form and DBE’s quote must be submitted. The written confirmation must be submitted no later than 4pm on t
he 5th day after bid opening. If a DBE is participating as a joint venture partner, the bidder shall submit a copy
of the joint venture agreement.
If the DBE Commitment form, Exhibit 15-G, is not submitted with the bid, it must be completed and submitted by all bidders to the Agency within five (5) days of bid opening. If the bidder does not submit the DBE Commitment form within the specified time, the Agency will find the bidder’s bid nonresponsive.
The prime contractor shall use each DBE subcontractor as listed on Exhibit 15-G: Construction Contract DBE Commitment unless
they receive written authorization for a termination or replacement from the Agency.
The Agency shall request the prime contractor to:
1. Notify the Resident Engineer or Inspector of any changes to its anticipated DBE participation
2. Provide this
notification before starting the affected work
3. Maintain records
including:
• Name and business address of each 1st-tier subcontractor • Name
and business address of each DBE subcontractor, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each DBE (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment)
If the prime contractor is a DBE contractor, they shall include the date of work performed by their own forces and the corresponding value of the work.
Before the 15th of each month, the prime contractor shall submit a Monthly DBE Trucking Verification (LAPM Exhibit 16-Z1) form.
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If a DBE is decertified before completing its work, the DBE must notify the prime contractor in writing of the decertification date. If a business becomes a certified DBE before completing its work, the busines s must notify the prime contractor in writing of the certification date. The prime contractor shall submit the notifications. Upon work completion, the prime c ontractor shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form within 30 days of contract acceptance.
Upon work completion, the prime contractor shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it within 90 days of contract acceptance. The Agency will withhold $10,000 until the form is submitted. The Agency releases the withhold upon submission of the completed form.
G. Running Tally of Attainments
For projects
awarded on or after March 1, 2020, but before September 1, 2023:
No later than the 10th of the month following the month of any payment(s), the Contractor must submit an invoice for payment
along with Exhibit 9-F: Monthly Disadvantaged Business Enterprise (DBE) Payment to the Caltrans Business Support Unit at [email protected]. Provide a copy to the Local Agency administering the contract.
For
projects that are awarded on or after September 1, 2023:
Exhibit 9-F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the prime contractor must now submit Exhibit 9-P to the Local Agency administering the contract. If the Contractor does not mak
e any payments to subcontractors, supplier(s) and/or manufacturers they must report “no payments were mad
e to subs this month” and write this visibly and legibly on Exhibit 9-P.
H. Commercially Useful Function
DBEs must perform
a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials lis
ted on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if t
he DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work on the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. If
a DBE does not perform or exercise responsibility for at least 30% of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the
basis of normal industry practice for the type of work involved, it will be presumed that the DBE is not
performing a CUF. Additionally, the DBE must also be responsible, with respect to materials and supplies used on
the contract, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), a
nd paying for the material itself.
The Contractor must perform CUF evaluation for each DBE company working on a federal-a id contract, with or without a
DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work, and continue to monitor the performance of CUF for the duration of the project.
The Contractor must provide written
notification to the AGENCY at least 15 days in advance of each DBE's initial performance of work or
supplying materials for the Contract. The notification must include the DBE's name, work the DBE will
perform on the contract, and the location, date, and time of where their work will take place.
Within 10 (ten) days of a DBE initially performing work or supplying materials on the contract, the Contractor shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J:
Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with
the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
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Exhibit 12-G
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The Contractor must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their durati
on of work on the contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. The Contractor must submit to the AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three (3) months of work.
The Contractor must
notify the AGENCY immediately if the Contractor believes the DBE may not be performing a CUF.
The AGENCY
will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional AGENCY evaluations. The
AGENCY must evaluate DBEs and their CUF performance
throughout the duration of a Contract. The AGENCY will provide written notice to Contractor and DBE at least two (2) business days prior to any evaluation. The Contractor and DBE must participate in the evaluation. Upon completing the evaluation, the AGENCY must share the evaluation results with the Contractor and DBE. An evaluation could include items that must be remedied upon receipt. If the AGENCY determines the DBE is not performing a CUF
the Contractor must suspend performance of the noncompliant work.
The Contractor and DBEs must submit any additional CUF related records and documents within five (5) business days of AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment
• Tax records
• Employee rosters
• Certifi
ed payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can
result in withholding of payment for the value of work completed by the DBE.
If the
Contractor and/or the AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, immediately suspend performance of the noncompliant portion of the work. The AGENCY may
deny payment for the noncompliant portion of the work. The AGENCY will ask the Contractor to submit a corrective action plan (CAP) to the AGENCY within five (5) days of the noncompliant CUF determination. The CAP must identify how the Contractor will correct the noncompliance findings for the remaining portion of the DBE's work. The AGENCY has five (5) days to review the CAP in conjunction with the
prime contractor’s
review. The Contractor must implement the CAP within five (5) days of the AGENCY's approval. The
AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a CUF on the Contract, then the Contractor may have good cause to request termination of the DBE.
I. Use of Joint Checks
A joint
check may be used between the Contractor or lower-tier subcontractor and a DBE subcontractor purchasing materials from a material supplier if the contractor obtains prior approval from the LPA for the proposed use
of joint check upon submittal of the LAPM 9-K: DLA Disadvantaged Business Enterprises (DBE) Joint Check
Agreement Request form.
To use a joint check, the following conditions must be met:
• All parties, including the Contractor, must agree to the use of a joint check • Entity issuing the joint check acts solely to guarantee payment • DBE must release the check to the material supplier
• LPA must
authorize the request before implementation
• Any party to the agreement must provide requested documentation within 10 days of the LPA's request for the documentation
• Agreement to use a joint check must be short-term, not to exceed 1 year, allowing sufficient time needed to
establish or increase a credit line with the material supplier A request for a joint check agreement may be initiated by any party.
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Exhibit 12-G
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If a joint check is used, the DBE remains responsible for all elements of 49 CFR 26.55(c)(1).
Failure to comply with the above requirements disqualifies DBE participation and results in no credit and no payment to
the Contractor for DBE participation.
A joint
check may not be used between the Contractor or subcontractor and a DBE regular dealer, bulk material supplier, manufacturer, wholesaler, broker, trucker, packager, manufacturer’s representative, or other persons who arrang
e or expedite transactions.
2. BID OPENING The Agency publicly opens and reads bids at the time and place shown on the Notice to Contractors.
3. BID RIGGING The U.S. Department of Transportation (DOT) provides a toll-free hotline to report bid rigging activities. Use the hotline to report bid rigging, bidder collusion, and other fraudulent activities. The hotline number is (800) 424-9071. The service is available 24 hours 7 days a week and is confidential and anonymous.
The hotline is part of the DOT's effort to identify and investigate highway construction contract fraud and abuse and is operated under the direction of the DOT Inspector General.
4. CONTRACT AWARD If the Agency awards the contract, the award is made to the lowest responsible and responsive bidder.
5. CONTRACTOR LICENSE The Contractor must be properly licensed as a contractor from contract award through Contract acceptance (Public Contract Code §10164).
6. CHANGED CONDITIONS
A. Differing Site Conditions
1. During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed.
2. Upon written notification, the engineer will investigate the conditions, and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly. The engineer will notify the contractor of the determination whether or not an adjustment of the contract is warranted.
3. No contract adjustment which results in a benefit to the contractor will be allowed unless the contractor has provided the required written notice.
4. No contract adjustment will be allowed under this clause for any effects caused on unchanged work. [This provision may be omitted by the Local Agency, at their option.] B. Suspensions of Work Ordered by the Engineer
1. If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment.
2. Upon receipt, the engineer will evaluate the contractor's request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly.
The contractor will be notified of the engineer's determination whether or not an adjustment of the contract is warranted.
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Exhibit 12-G
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3. No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed.
4. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.
C. Significant Changes in the Character of Work
1. The engineer reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project.
Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the contractor agrees to perform the work as altered.
2. If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair and equitable.
3. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract.
4. The term “significant change” shall be construed to apply only to the following circumstances:
• When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or
• When a major item of work, as defined elsewhere in the contract, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.
7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES The Contractor shall begin work within 15 calendar days after the issuance of the Notice to Proceed.
This work shall be diligently prosecuted to completion before the expiration of WORKING DAYS beginning on the fifteenth calendar day after the date shown on the Notice to Proceed.
The Contractor shall pay to the City/County the sum of $ per day, for each and every calendar days’ delay in finishing the work in excess of the number of working days prescribed above.
8. BUY AMERICA
Buy America Requirements apply to steel and iron, manufactured products, and construction materials permanently incorporated into the project.
Steel and Iron Materials
All steel and iron materials must be melted and manufactured in the United States except:
1. Foreign pig iron and processed, pelletized, and reduced iron ore may be used in the domestic production of the steel and iron materials [60 Fed Reg 15478 (03/24/1995)];
2. If the total combined cost of the materials produced outside the United States does not exceed the greater of 0.1 percent of the total contract amount or $2,500, materials produced outside the United States may be used if authorized.
Furnish steel and iron materials to be incorporated into the work with certificates of compliance and certified mill test reports. Mill test reports must indicate where the steel and iron were melted and manufactured. All melting and manufacturing processes for these materials, including an application of a coating, must occur in the United States. Coating includes all processes that protect or enhance the value of the material to which the coating is applied.
of Stockton 3,500
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Manufactured Products
Iron and steel used in precast concrete manufactured products must meet the requirements of the above section (Steel and Iron Materials) regardless of the amount used. Iron and steel used in other manufactured products must meet the requirements of the above section (Steel and Iron Materials) if the weight of steel and iron components constitute 90 percent or more of the total weight of the manufactured product.
Construction Materials
Buy America requirements apply to the following construction materials that are or consist primarily of:
1. Non-ferrous metals
2. Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables)
3. Glass (including optic glass)
4. Lumber
5. Drywall
Where one or more of these construction materials have been combined by a manufacturer with other materials through a manufacturing process, Buy America requirements do not apply unless otherwise specified.
Furnish construction materials to be incorporated into the work with certificates of compliance with each project delivery. Manufacturer’s certificate of compliance must identify where the construction material was manufactured and attest specifically to Buy America compliance.
All manufacturing processes for these materials must occur in the United States.
Buy America requirements do not apply to the following:
1. Tools and construction equipment used in performing the work
2. Temporary work that is not incorporated into the finished project Waivers
If Buy America waivers are granted, use the following language to include in the contract:
The following steel and iron products, manufactured products, or construction materials have received an approved Buy America waiver for this contract, and therefore, are not subject to Buy America requirements:
1. _______________________________
2. _______________________________
9. QUALITY ASSURANCE
The Local Agency uses a Quality Assurance Program (QAP) to ensure a material is produced to comply with the Contract.
The Local Agency may examine the records and reports of tests the prime contractor performs if they
are available at the job site. Schedule work to allow time for QAP.
10. PROMPT PAYMENT
A. FROM
THE AGENCY TO THE CONTRACTORS
The Local Agency shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from the Contractor on a professional service contract. If the Local Agency fails
to pay promptly, the Local Agency shall pay interest to the Contractor, which accrues at the rate of 10
percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the Local Agency shall act in accordance with both of the following:
1. The Local
Agency shall review each payment request as soon as feasible after receipt to verify it is a proper payment
request.
2. The Local Agency must return any payment request deemed improper by the Local Agency to the Contractor as
soon as feasible, but not later than seven (7) days, after receipt. A request returned
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pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
B. FROM THE AGENCY TO THE CONTRACTORS
For projects awarded on or after September 1, 2023:
The Contractor must submit Exhibit 9-P to the Local Agency administering the contract by the 15th of the month following t
he month of any payment(s). If the Contractor does not make any payments to subcontractors, supplier(s) and/or manufacturers they must report “no payments were made to subs this month” and writ
e this visibly and legibly on Exhibit 9-P.
The Local Agency
must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfall to the DBE commitment and prompt payment issues until
the end of the project. The Local Agency must email a copy of Exhibit 9-P to [email protected] before
the end of the month after receiving the Exhibit 9-P from the Contractor.
11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONTRACTS [The followi
ng 12 pages must be physically inserted into the contract without modification.
Excluding ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS]
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Exhibit 12-G
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FHWA-1273 -- Re
vised July 5, 2022
REQUIRE
D CONTRACT
PROVISIONS FEDERAL-AID
CONSTRUCTION CONTRACTS
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I. General
II. Nondiscrimination
III. Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for Lobbying XII. Use of United States-Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only) I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency
contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).
Form FHWA-1273 must be included in all Federal-aid design- build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or
services) in accordance with 23 CFR 633.102. The design- builder shall be responsible for compliance by any
subcontractor, lower-tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a
construction contract). 23 CFR 633.102(b).
2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).
3. A breach of any of t
he stipulations contained in these
Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. 23 U.S.C. 114(b).The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a).
II. NONDISCRI
MINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations inclu
ding 49 CFR Parts 21, 26, and
27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the
FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA
requirements.
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
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1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract.
The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the following statement:
"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre-
apprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.
3. Dissemination of Policy: All m embers of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual
responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained.
The meetings will be conducted by the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.
e. The contractor
's EEO policy and the procedures to implement
such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, cond
uct systematic and direct recruitment through public
and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement providing for
exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to refer minoriti
es and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability. The following procedures shall be followed:
a. The contr
actor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contr
actor will periodically evaluate the spread of wages
paid within each classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination.
Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of alleged discri
mination made to the contractor in connection with its
obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.
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Local Assistance Procedures Manual Exhibit 12-G
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6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-the- job training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:
a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.
8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.
9. Select
ion of Subcontractors, Procurement of Materials and
Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract. a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract.
b. The con
tractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.
10. Assurance Required:
a. The requirements of 49 CFR Part 26 and the State DOT’s FHWA-approved Disadvantaged Business Enterprise (DBE) program are incorporated by reference.
b. The contractor, subrecipient or subcontractor shall not discri
minate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding
monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non- responsible.
c. The Title VI and nondiscrimination provisions of U.S. DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements.
Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non-minority group members and women employed in each work
classification on the project;
(2) The progres
s and efforts being made in cooperation with
unions, when applicable, to increase employment opportunities for minorities and women; and
(3) The progres
s and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women.
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b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal- aid highway. 23 U.S.C. 113. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101. Where applicable law requires that projects be treated as a project on a Federal-aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167.
The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA-1273 format and FHWA program requirements.
1. Minimum wages (29 CFR 5.5)
a. All l
aborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-
Bacon Act on behalf
of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph
1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of laborers or
mechanics, including helpers, which is not listed in
the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and
(ii) The classification is utilized in the area by the construction industry; and
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
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(3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount
designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination.
The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(4) The wage rat
e (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding (29 CFR 5.5)
The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis- Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and basic records (29 CFR 5.5)
a. Payrolls and basic records relating thereto shall be maintained by the contractor
during the course of the work and preserved for a
period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in
section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communica ted in
writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence
of the registration
of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in which any contract wor
k is performed a copy of all payrolls to the
contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is
available for this purpose from the Wage and Hour Division Web site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and s
ocial security numbers
to the prime contractor for its own records, without weekly submission to the contracting agency.
(2) Each payr
oll submitted shall be accompanied by a
“Statement of Compliance,” signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(i) That th
e payroll for the payroll period contains the
information required to be provided under 29 CFR
5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete;
(ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3;
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(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.
(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section. (4) The falsifi
cation of any of the above certifications may
subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.
c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees (29 CFR 5.5)
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.
In the event the Offic
e of Apprenticeship Training, Employer and
Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
b. Trainees
(programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration.
The ratio of tr
ainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determinat ion unless
the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the
corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Equal empl
oyment opportunity. The utilization of apprentices,
trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.
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d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices
and trainees working under apprenticeship and skill
training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5.
6. Subcontr
acts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the
subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
7. Contra
ct termination: debarment. A breach of the contract
clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
8. Complian
ce with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5.
9. Disputes co
ncerning labor standards. As provided in 29 CFR
5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
10. Certificat
ion of eligibility (29 CFR 5.5)
a. By entering
into this contract, the contractor certifies that
neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this
contract shall be subcontracted to any person or
firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for
making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal-
aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.
1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR 5.5.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 29 CFR
5.5. * $27 as of January
23, 2019 (See 84 FR 213-01, 218) as may be
adjusted annually by the Department of Labor; pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990).
3. Withholdi
ng for unpaid wages and liquidated damages. The
FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 29 CFR 5.5.
4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section. 29 CFR 5.5.
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VI. SUBLETTING OR ASSIGNING THE CONTRACT
This prov
ision is applicable to all Federal-aid construction contracts on the National Highway System pursuant to 23 CFR 635.116.
1. The contractor
shall perform with its own organization contract
work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).
a. The term
“perform work with its own organization” in paragraph
1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions:
(based on longstanding interpretation)
(1) the prime c
ontractor maintains control over the supervision of
the day-to-day activities of the leased employees;
(2) the prime c
ontractor remains responsible for the quality of the
work of the leased employees;
(3) the prime c
ontractor retains all power to accept or exclude
individual employees from work on the project; and
(4) the prime c
ontractor remains ultimately responsible for the
payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.
3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on long-standing interpretation of 23 CFR 635.116).
5. The 30-percent self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements. 23 CFR 635.116(d).
VII. SAFETY
: ACCIDENT PREVENTION
This prov
ision is applicable to all Federal-aid construction contracts and to all related subcontracts.
1. In the performanc
e of this contract the contractor shall comply with
all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any
employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contrac
t Work Hours and Safety Standards Act (40
U.S.C. 3704).
VIII. FALSE S
TATEMENTS CONCERNING HIGHWAY PROJECTS
This prov
ision is applicable to all Federal-aid construction contracts and to all related subcontracts.
In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA- 1022
shall be posted on each Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project:
18 U.S.C. 1020 reads as
follows:
"Whoever
, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or
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Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or
Whoever knowi
ngly makes any false statement or false
representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 11, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined under
this title or imprisoned not more than 5 years
or both."
IX. IMPLEM
ENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2 CFR
200.88; EO 11738)
This prov
ision is applicable to all Federal-aid construction
contracts in excess of $150,000 and to all related subcontracts. 48 CFR 2.101; 2 CFR 200.326.
By submi
ssion of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II.
The contracto
r agrees to include or cause to be included the
requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.326.
X. CERTIFICATI
ON REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
This prov
ision is applicable to all Federal-aid construction
contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220.
1. Instructi
ons for Certification – First Tier Participants:
a. By signi
ng and submitting this proposal, the prospective first
tier participant is providing the certification set out below. b. The inabili
ty of a person to provide the certification set out
below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation of fact upon which reli
ance was placed when the contracting agency
determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325.
d. The prospe
ctive first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 2 CFR 180.345 and 180.350.
e. The terms
"covered transaction," "debarred," "suspended,"
"ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
f. The prospec
tive first tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330.
g. The prospe
ctive first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300.
h. A partici
pant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website
(https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325. i. Nothing contained in the for
egoing shall be construed to require the
establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
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j. Except for transactions authorized under paragraph (f) of these instructi
ons, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325. * * * * *
2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, dec
lar
ed ineligible, or voluntarily excluded from
participating in covered transactions by any Federal department or agency, 2 CFR 180.335;.
(2) Have not withi
n a three-year period preceding this proposal
been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not pres
ently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and (4) Have not withi
n a three-year period preceding this
application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d).
(5) Are not a cor
poration that has been convicted of a felony
violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(6) Are not a cor
poration with any unpaid Federal tax liability that
has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements).
b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340.
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective lo wer tier participant is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
c. The prospe
ctive lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred," "suspended," "ineligi
ble," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200. You may contact the person to which this proposal is
submitted for assistance in obtaining
a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The pros
pective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 2 CFR 1200.220 and 1200.332. f. The pros
pective lower tier participant further agrees by
submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a certific
ation of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (
https://www.sam.gov/),
which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
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i. Except for transactions authorized under paragraph e of these instructi
ons, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325.
* * * * *
Certificat
ion Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion--Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals:
(a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355;
(b) is a corpor
ation that has been convicted of a felony violation
under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(c) is
a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act requirements)
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. * * * * *
XI. CERTIFICATIO
N REGARDING USE OF CONTRACT FUNDS
FOR LOBBYING
This prov
ision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the under
signed, to any person for influencing or
attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other
than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1
352. Any person
who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
3. The prospec
tive participant also agrees by submitting its bid or
proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.
XII. USE OF UNITED STATES-FLAG VESSELS:
This prov
ision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.
When oceanic s
hipments (or shipments across the Great Lakes) are
necessary for materials or equipment acquired for a specific Federal- aid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:
1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-of- lading) and to the Office of Cargo and Commercial Sealift (MAR- 620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7.
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12. FEMALE AND MINORITY GOALS
To comply with Section II, "Nondiscrimination," of "Required Contract Provisions Federal-Aid Construction Contracts," the following are for female and minority utilization goals for Federal-aid construction contracts and subcontracts that exceed $10,000:
The nationwide goal for female utilization is 6.9 percent.
The goals for minority utilization (45 Fed Reg 65984 (10/3/1980)) are as follows:
MINORITY UTILIZATION GOALS
Economic
Area
Goal
(Percent)
174
Redding CA:
Non-SMSA (Standard Metropolitan Statistical Area) Counties:
CA Lassen; CA Modoc; CA Plumas; CA Shasta; CA Siskiyou; CA Tehama
6.8 175
Eureka, CA
Non-SMSA Counties:
CA Del Norte; CA Humboldt; CA Trinity
6.6 San Francisco-Oakland-San Jose, CA:
28.9 25.6
19.6 14.9
9.1 17.1
23.2 SMSA Counties:
7120 Salinas-Seaside-Monterey, CA
CA Monterey
7360 San Francisco-Oakland
CA Alameda; CA Contra Costa; CA Marin; CA San Francisco; CA San Mateo 7400 San Jose, CA
176 CA Santa Clara, CA
7485 Santa Cruz, CA
CA Santa Cruz
7500 Santa Rosa
CA Sonoma
8720 Vallejo-Fairfield-Napa, CA
CA Napa; CA Solano
Non-SMSA Counties:
CA Lake; CA Mendocino; CA San Benito
177
Sacramento, CA:
SMSA Counties:
6920 Sacramento, CA
CA Placer; CA Sacramento; CA
Yolo Non-SMSA Counties
CA Butte; CA Colusa; CA El Dorado; CA Glenn; CA Nevada; CA Sierra; CA Sutter; CA Yuba
16.1 14.3
Stockton-Modesto, CA:
SMSA Counties:
5170 Modesto, CA 12.3
178 CA Stanislaus
8120 Stockton, CA 24.3
CA San Joaquin
Non-SMSA Counties 19.8
CA Alpine; CA Amador; CA Calaveras; CA Mariposa; CA Merced; CA Tuolumne Fresno-Bakersfield, CA
SMSA Counties:
179 0680 Bakersfield, CA 19.1
CA Kern
2840 Fresno, CA 26.1
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CA Fresno
Non-SMSA Counties:
CA Kings; CA Madera; CA Tulare
23.6 Los Angeles, CA:
11.9 28.3
21.5 19.0
19.7 24.6
SMSA Counties:
0360 Anaheim-Santa Ana-Garden Grove, CA
CA Orange
4480 Los Angeles-Long Beach, CA
CA Los Angeles
180 6000 Oxnard-Simi Valley-Ventura, CA
CA Ventura
6780 Riverside-San Bernardino-Ontario, CA
CA Riverside; CA San Bernardino
7480 Santa Barbara-Santa Maria-Lompoc, CA
CA Santa Barbara
Non-SMSA Counties
CA Inyo; CA Mono; CA San Luis Obispo
San Diego, CA:
16.9 18.2
SMSA Counties
181 7320 San Diego, CA
CA San Diego
Non-SMSA Counties
CA Imperial
For the
last full week of July during which work is performed under the contract, the prime contractor and each non material-supplier subcontractor with a subcontract of $10,000 or more must complete Form FHWA PR-1391 (Appendix C to 23 CFR 230). Submit the forms by August 15.
13. TITLE VI ASSURANCES
The U.S. Department of Transportation Order No.1050.2A requires all federal-aid Depar tment of Transportation contracts between an agency and a contractor to contain Appendix A and E. Appendix B only requires inclusion if the contract impacts deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein. Appendices C and D only require inclusion if the contract impacts deeds, licenses, leases, permits, or similar instruments entered into by the recipient.
APPENDIX
A
During t
he performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONTRACTOR) agrees as follows:
a. Compliance with Regulations: CONTRACTOR shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONTRACTOR, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONTRACTOR shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations. c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONTRACTOR for work to be
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performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONTRACTOR of the CONTRACTOR’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports: CONTRACTOR shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONTRACTOR is in the exclusive possession of another who fails or refuses to furnish this information, CONTRACTOR shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONTRACTOR has made to obtain the information. e. Sanctions for Noncompliance: In the event of CONTRACTOR’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONTRACTOR under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part. f. Incorporation of Provisions: CONTRACTOR shall incl ude the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONTRACTOR shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONTRACTOR becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONTRACTOR may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONTRACTOR may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant
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and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Rever
ter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non- discrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.*
C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
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Required Federal-Aid Contract Language
APPENDIX
D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns.
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section
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May 2023
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
EXHIBIT E
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
Federal Trainee Program Special Provisions
(to be used when applicable)
14. FEDERAL TRAINEE PROGRAM
For the Federal training program, the number of trainees or apprentices is .
This section applies if a number of trainees or apprentices is specified in the special provisions.
As part of the prime contractor’s equal opportunity affirmative action program, provide on-the-job training to develop full journeymen in the types of trades or job classifications involved.
The prime contractor has primary responsibility for meeting this training requirement.
If the prime contractor subcontracts a contract part, they shall determine how many trainees or apprentices are to be trained by the subcontractor. Include these training requirements in each subcontract.
Where feasible, 25 percent of apprentices or trainees in each occupation must be in their 1st year of apprenticeship or training.
Distribute the number of apprentices or trainees among the work classifications on the basis of the prime contractor’s needs and the availability of journeymen in the various classifications within a reasonable recruitment area.
Before starting work, the prime contractor shall submit to the City/County of :
1. Number of apprentices or trainees to be trained for each classification
2. Training program to be used
3. Training starting date for each classification
The prime contractor shall obtain the City/County of approval for this submitted information before the prime contractor starts work. The City/County of credits the prime contractor for each apprentice or trainee the prime contractor employs on the job who is currently enrolled or becomes enrolled in an approved program.
The primary objective of this section is to train and upgrade minorities and women toward journeyman status.
The prime contractor shall make every effort to enroll minority and women apprentices or trainees, such as conducting systematic and direct recruitment through public and private sources likely to yield minority and women apprentices or trainees, to the extent they are available within a reasonable recruitment area and show that they have made the efforts. In making these efforts, the prime contractor shall not discriminate against any applicant for training.
The prime contractor shall not employ as an apprentice or trainee an employee:
1. In any classification in which the employee has successfully completed a training course leading to journeyman status or in which the employee has been employed as a journeyman
2. Who is not registered in a program approved by the US Department of Labor, Bureau of Apprenticeship and Training
The prime contractor shall ask the employee if the employee has successfully completed a training course leading to journeyman status or has been employed as a journeyman. The prime contractor’s records must show the employee's answers to the questions.
In the training program, the prime contractor shall establish the minimum length and training type for each classification. The City/County of and FHW
A approves a program if one of the following is met:
1. It is calculated to:
• Meet the equal employment opportunity responsibilities • Qualify the average apprentice or trainee for journeyman status in the classification involved by the end of the training period
2. It is registered with the U.S. Department of Labor, Bureau of Apprenticeship and Training, and it is administered in a way consistent with the equal employment responsibilities of Federal-aid highway construction contracts
0 Stockton
Stockton
Stockton
Stockton
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Required Federal-Aid Contract Language
The prime contractor shall obtain the State's approval for their training program before they start work involving the classification covered by the program.
The prime contractor shall provide training in the construction crafts, not in clerk-typist or secretarial-type positions. Training is allowed in lower level management positions such as office engineers, estimators, and timekeepers if the training is oriented toward construction applications. Training is allowed in the laborer classification if significant and meaningful training is provided and approved by the division office. Off-site training is allowed if the training is an integral part of an approved training program and does not make up a significant part of the overall training.
The City/County of reimburses the prime contractor 80 cents per hour of training given an employee on this contract under an approved training program:
1. For on-site training
2. For off-site training if the apprentice or trainee is currently employed on a Federal-aid project and prime contractor does at least one of the following:
a. Contribute to the cost of the training
b. Provide the instruction to the apprentice or trainee c. Pay the apprentice's or trainee's wages during the off-site training period
3. If the prime contractor complies with this section.
Each apprentice or trainee must:
1. Begin training on the project as soon as feasible after the start of work involving the apprentice's or trainee's skill
2. Remain on the project as long as training opportunities exist in the apprentice's or trainee's work classification or until the apprentice or trainee has completed the training program The prime contractor shall furnish the apprentice or trainee with a copy of the program that the prime contractor will comply with in providing the training.
15. PROHIBITION OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT AND
SERVICES
In response to significant national security concerns, the agency shall check the prohibited vendor list before making any telecommunications and video surveillance purchase because recipients and subrecipients of federal funds are prohibited from obligating or expending loan or grant funds to:
• Procure or obtain;
• Extend or renew a contract to procure or obtain; or
• Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
The prohibited vendors (and their subsidiaries or affiliates) are:
• Huawei Technologies Company;
• ZTE Corporation;
• Hytera Communications Corporation;
• Hangzhou Hikvision Digital Technology Company;
• Dahua Technology Company; and
• Subsidiaries or affiliates of the above-mentioned companies.
In implementing the prohibition, the agency administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
The contractors should furnish telecommunications and video surveillance equipment with a certificate of compliance. The certificate must state telecommunications and video surveillance equipment was not procured or obtained from manufacturers identified in the above list.
Stockton
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Appendix E of the Title VI Assurances
(US DOT Order 1050.2A)
Durin
g the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:
Pertinent Nondiscrimination Authorities:
• Title
VI of the Civ il Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improv ement Act of 1982, (49 U.S.C. § 4 71, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civ il Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, subrecipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38;
EXHIBIT F
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• The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
EXHIBIT F
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1 BOND FOR FAITHFUL PERFORMANCE
KNOW ALL MEN BY THESE PRESENTS:
That we, PACIFIC EXCAVATION INC., a ST
ATE OF CA CORPORATION , as
Principal and ___, a corporation,
organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Stockton, a municipal corporation, duly created and existing under and by virtue of the laws of the State of California, as obligee, in the just and full sum of NINE HUNDRED SIXTY THOUSAND SIXTY FIVE AND NO/100 DOLLARS ($960,065.00), in lawful money of the United States of America (being 100% of the contract price) for the payment whereof well and truly to be made to the said CITY, the said Principal and Surety bind themselves, their successors and assigns, jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that the above bounded Principal has simultaneously entered into a contract with the CITY, to do and perform the following work, to wit:
ARCH-AIRPORT TRAFFIC SIGNAL SYNCHRONIZATION
(PROJECT NO. WT21011/FEDERAL PROJECT NO. CML-5008(192)) NOW, THEREFORE, if the above bounde d Principal, CONTRACTOR, Company or
Corporation or its Su bcontractor, shall well and truly perf orm the work contracted to be done under said contract, then this obligation to be null and void ; otherwise to remain in full force and effect.
No prepayment or delay in payment and no change, extension, addition or alteration of any provision of said contract, or in said plans or specifications agreed to between the said CONTRACTOR and the said CITY, and no forbearance on the part of the said CITY shall operate to relieve any Surety or Sureties from liability on this bond, and consent by said Surety is hereby given, and the said Surety hereby waives the EXHIBIT 2
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2 provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
SIGNED AND SEALED
on
APPROVED AS TO
SURETY: By
P R I N C I P A L
S U R E T Y
APPROVED AS TO FORM & CONTENT:
LORI M. ASUNCION
OFFICE OF THE CITY ATTORNEY
B y
A T T O R N E Y - I N - F A C T
B y
DEPUTY CITY ATTORNEY
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1 BOND FOR LABOR AND MATERIAL
KNOW ALL MEN BY THESE PRESENTS:
That we, PACIFIC EXCAVATION INC., a ST
ATE OF CA CORPORATION , as
Principal and ___, a corporation,
organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Stockton, a municipal corporation, duly created and existing under and by virtue of the laws of the State of Californi a, and unto any and all material suppliers, persons, companies, or corporations furnishing materials, provisions, provender or other supplies used in, upon, fo r or about the performance of the work contemplated to be executed or performed under the contract hereinafter mentioned, and all persons, companies, or corporations rent ing or hiring teams, or implements of machinery, for or contributing to said work and all persons who perform work or labor upon the same, and all persons who supply bot h work and materials, and whose claims have not been paid by the contractor, company or corporation in the just and full sum of NINE HUNDRED SIXTY THOUSAND SIXTY FIVE AND NO/100 DOLLARS ($960,065.00), in lawful money of the United St ates of America (being 100% of the contract price) for the payment whereof well and truly to be made to said City of Stockton and to said persons jointly and severally, the said principal and Surety bind themselves, their successors and assigns, jointly and severally, firmly by these presents.
The condition of the foregoing obligations is such that the above bounden Principal has simultaneously entered into a contract of even date herewith, wit h the CITY, to do and perform the following work, to-wit:
ARCH-AIRPORT TRAFFIC SIGNAL SYNCHRONIZATION
(PROJECT NO. WT21011/FEDERAL PROJECT NO. CML-5008(192)) NOW, THEREFORE, if the abov e bounden Principal, CONTRACTOR, Company or Corporation or its Subcontractor, fail to pay for all materi als, provisions, provender, or other supplies, or teams, 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, the Surety on EXHIBIT 2
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2 this bond will pay the same, in an amount not exceeding the sum specified in this bond,
provided that any and all claims hereunder shall be filed and pr oceedings had in connection therewith as required by the provisions of Division 3, Part 4, Title 15, Chapter 5, Article 1 of the Civil Code of California, provided that in case suit is brought upon this bond, a reasonable attorney's fee shall be awarded by the Court to the prevailing party in said suit; said attorney's fee to be fixed as costs in said suit, and to be included in the judgment therein rendered.
No prepayment or delay in payment and no change, extension, addition or alteration of any provision of said contract or in said plans or specifications agreed to between the said CONTRACTOR and the said CITY and no forbearance on the part of the said CITY shall operate to relieve any sure ty or sureties from liability on this bond, and consent to make such alterations without further notice to or consent by any such surety is hereby given, and the said sureties hereby waive the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
S I G N E D A N D S E A L E D o n .
APPROVED AS TO SURET
Y: By
P R I N C I P A L
S U R E T Y
APPROVED AS TO FORM & CONTENT:
LORI M. ASUNCION, CITY ATTORNEY
B y
A T T O R N E Y - I N - F A C T
By
DEPUTY CITY ATTORNEY
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City of Stockton
Legislation Text
File #: 23-0823, Version: 1
APPROVE FINDINGS FOR EMERGENCY REPAIRS TO BROOKING POOL
RECOMMENDATION
It is recommended that the City Council adopt a resolution to:
1. Approve findings pursuant to Stockton Municipal Code section 3.68.070 in support of an exception to the competitive bidding process.
2. Appropriate funds in the amount of $59,500 from the Measure M Fund Balance to the Emergency Repairs to Brooking Pool, Project No. WP23043.
3. Approve reallocation of Council Discretionary Funding in the amount of $110,000 from the Pool UV System Installations, Project No. WP22027, to the Emergency Repairs to Brooking Pool, Project No. WP23043.
4. Approve payment in the amount of $169,500 to Burkett's Pool Plastering, Inc. of Ripon, CA, for Emergency Repairs to Brooking Pool, Project No. WP23043.
It is also recommended that the City Manager be authorized to take appropriate and necessary actions to carry out the purpose and intent of this resolution.
Summary
In preparation for the opening of the 2023 aquatics season, Brooking Pool experienced multiple mechanical and safety failures. Public Works’ staff issued an emergency Purchase Order (PO) to Burkett’s Pool Plastering, Inc. of Ripon, CA, to make necessary repairs.
On May 1, 2023, Public Works issued an emergency PO to Burkett’s Pool Plastering, Inc. of Ripon, CA, in the amount of $86,800 (Attachment A).
On June 1, 2023, the City Manager approved a Purchase Order Change Order (POCO) in the amount of $82,700 (Attachment B), bringing the combined payment to Burkett’s Pool Plastering, Inc. of Ripon, CA, to $169,500.
To fund the necessary repairs, staff recommends appropriating funds in the amount of $59,500 from the Measure M Fund Balance to the Emergency Repairs to Brooking Pool, Project No. WP23043.
The provisions of Stockton Municipal Code (SMC) section 3.68.070 provide a sole source exception to the competitive bidding process under certain circumstances, including cases of emergencies.
SMC section 3.68.070 requires that a written report, including findings upon which the emergency City of Stockton Printed on 10/19/2023Page 1 of 3
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was based, shall be provided to City Council for approval. The emergency pool repairs and replastering of Brooking Pool were completed on August 22, 2023.
The recommended resolution includes approval of a sole source exception and approval of findings for the Emergency Repairs to Brooking Pool, Project No. WP23043.
DISCUSSION
Background
The City is responsible for operating and maintaining four public pools at Brooking, Holiday, Oak, and Sousa Parks.
On November 16, 2021, by Resolution No. 2021-11-16-1501, Council approved $110,000 of Discretionary Funding for the installation of UV sterilization systems at Oak, Sousa, Brooking, and Holiday pools. However, during project development it was determined the UV sterilization systems were not necessary per County requirements.
Due to continued water loss, a leak detection test was completed at Brooking Pool in March 2023.
The test identified leaks in the suction line, two skimmers, and auto-fill. Chipping hazards were found within the floor and pool walls posing a safety hazard for swimmers. This would have prevented the pool from opening for the 2023 aquatic season.
Quotes were obtained from three pool plaster companies. Two of the companies did not meet the necessary licensing requirements, such as holding a Contractors State License Board license, City of Stockton business license, and/or lacked registration with the Department of Industrial Relations (DIR) required to complete the project. Waiting for the vendors to register and obtain license requirements would have caused further delays to the opening of Brooking Pool. Burkett’s Pool Plastering, Inc. of Ripon, CA, was the sole vendor with the proper licensing and experience to complete the work.
On May 1, 2023, Public Works issued an emergency PO to Burkett’s Pool Plastering, Inc. in the amount of $86,800 (Attachment A), and the City Manager approved the utilization of a Single Available Source procurement for the repairs and replastering of Brooking Pool.
On May 10, 2023, Burkett's Pool Plastering, Inc. drained Brooking Pool. Demolition began on May 12, 2023. The skimmers were replaced and not holding pressure. Additional leaks not identified in the original leak detection test were suspected.
On June 1, 2023, a second leak detection test was completed at Brooking Pool. The test identified leaks in the skimmer suction line, return line, and undersized copper plumbing. The City Manager approved a POCO in the amount of $82,700 for the additional repairs (Attachment B). Burkett's Pool Plastering, Inc. performed the additional work, including replacing the copper plumbing, resolving the leaks identified in the second test.
On July 21, 2023, the City Manager approved the utilization of a second Single Available Source procurement for the repairs found in the second leak detection test. SMC section 3.68.070 requires City of Stockton Printed on 10/19/2023Page 2 of 3
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that a written report, including findings upon which the emergency was based, shall be provided to City Council for approval.
The provisions of SMC section 3.68.070 provide a sole source exception to the competitive bidding process under certain circumstances, including cases of emergencies. SMC section 3.68.070 requires that a written report, including findings upon which the emergency was based, shall be provided to City Council for approval.
Present Situation
On May 10, 2023, Burkett's Pool Plastering, Inc. secured the needed equipment, material, and permits for the project and commenced work on the Emergency Repairs to Brooking Pool. The emergency pool repairs and replastering of Brooking Pool were completed on August 22, 2023.
Findings
The findings for this emergency construction pursuant to SMC section 3.68.070 are as follows:
1. Failure to make the emergency repairs would have resulted in the pool remaining closed to the public.
2. Failure to make the repairs would have resulted in continued water loss.
3. Failure to make the repairs would have resulted in unaddressed safety hazards to swimmers.
4. Burkett's Pool Plastering, Inc. was selected as the most qualified construction contractor given the following:
· Experienced pool plaster contractor with current C35, C53, and B CSLB licenses; · A current City of Stockton business license; and
· An active DIR registration.
Staff recommends Council adopt a resolution to approve payment in the amount of $169,500 to Burkett's Pool Plastering, Inc. of Ripon, CA, for Emergency Repairs to Brooking Pool, Project No.
WP23043.
FINANCIAL SUMMARY
With the appropriation of funds in the amount of $59,500 from the Measure M Fund Balance to the Emergency Repairs to Brooking Pool, Project No. WP23043, and the reallocation of Council Discretionary Funding in the amount of $110,000 from the Pool UV System Installations, Project No.
WP22027, to the Emergency Repairs to Brooking Pool, Project No. WP23043, there will be sufficient funding in the Emergency Repairs to Brooking Pool project to issue payment to Burkett's Pool Plastering, Inc. in the amount of $169,500.
There is no impact on the City's General Fund or any other unrestricted fund as a result of taking the recommended actions.
Attachment A - PO issued to Burkett's Pool Plastering, Inc.
Attachment B - POCO issued to Burkett’s Pool Plastering, Inc.
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Vendor
Bill To
Fiscal Year
Department
Purchase Order Date
Purchase Order Number
Ship To
VENDOR PHONE NUMBER REQUISITION NUMBERVENDOR NUMBERVENDOR EMAIL DELIVERY REFERENCE NOTES
ITEM # DESCRIPTION QUANTITY UOM UNIT PRICE EXTENDED PRICE Purchase Order
3648
BURKETTS POOL PLASTERING INC
600 N FRONTAGE RD
RIPON, CA 95366-2003
CITY OF STOCKTON
425 N. EL DORADO STREET
STOCKTON, CA 95202-1997
22305249
PUBLIC WORKS
05/03/2023
THIS NUMBER MUST APPEAR ON ALL INVOICES,
PACKAGES, AND SHIPPING PAPERS.
PW CAPITAL IMPROVEMENTS (CIP)
22 E WEBER AVE
SEB BLDG 3RD FL, RM 301
STOCKTON, CA 95202
425 N. EL DORADO STREET
STOCKTON, CA 95202-1997
(209) 937-8321
2096242913 [email protected] WP22027, BURKETT'S POOL PLASTERING, BROOKING POOL
The Above Purchase Order Number Must Appear On All Correspondence - Packing Sheets And Bills Of Lading CONTACT INFORMATION:
CHANEL TEACH
PUBLIC WORKS PARKS
209-937-8370
[email protected]
It shall be the responsibility of the Contractor to comply, when applicable, with the prevailing wage rates in accordance with the State of California Department of Industrial Relations.
DIR Registration #1000005928, Expires 6/30/25. DIR PWC100 #465469
1.0000 EACH $86,800.0000 $86,800.00BROOKING PARK POOL RESURFACING AS QUOTED 4/11/231 Chief Financial Officer Purchase Order Total
Total Ext. Price $86,800.00
$86,800.00
This instrument has been audited in the manner required by local government regulations and laws. Your jurisdiction’s specific legal text may be placed in this area.
Purchasing Copy
ATTACHMENT A
260
City of Stockton’s Purchase Order Terms and Conditionshttp://www.stocktonca.gov/files/POTerms.pdf
ATTACHMENT A
261
CHANGE ORDER
Vendor
Bill To
Fiscal Year
Department
Purchase Order Date
Purchase Order Number
Ship To
VENDOR PHONE NUMBER REQUISITION NUMBERVENDOR NUMBERVENDOR EMAIL DELIVERY REFERENCE NOTES
ITEM # DESCRIPTION QUANTITY UOM UNIT PRICE EXTENDED PRICE Purchase Order
3648
BURKETTS POOL PLASTERING INC
600 N FRONTAGE RD
RIPON, CA 95366-2003
CITY OF STOCKTON
425 N. EL DORADO STREET
STOCKTON, CA 95202-1997
22305249-001
PUBLIC WORKS
05/03/2023
THIS NUMBER MUST APPEAR ON ALL INVOICES,
PACKAGES, AND SHIPPING PAPERS.
PW CAPITAL IMPROVEMENTS (CIP)
22 E WEBER AVE
SEB BLDG 3RD FL, RM 301
STOCKTON, CA 95202
425 N. EL DORADO STREET
STOCKTON, CA 95202-1997
(209) 937-8321
2096242913 [email protected] WP22027, BURKETT'S POOL PLASTERING, BROOKING POOL
The Above Purchase Order Number Must Appear On All Correspondence - Packing Sheets And Bills Of Lading CONTACT INFORMATION:
CHANEL TEACH
PUBLIC WORKS PARKS
209-937-8370
[email protected]
It shall be the responsibility of the Contractor to comply, when applicable, with the prevailing wage rates in accordance with the State of California Department of Industrial Relations.
DIR Registration #1000005928, Expires 6/30/25. DIR PWC100 #465469 **INTERNAL CHANGES: DO NOT DUPLICATE ORDER**
ADDING FUNDS ONLY.
1.0000 EACH $86,800.0000 $86,800.00BROOKING PARK POOL RESURFACING AS QUOTED 4/11/231
1.0000 EACH $82,700.0000 $82,700.00EMERGENCY - ADDITIONAL WORK BROOKINGS PARK POOL2 Chief Financial Officer Purchase Order Total
Total Ext. Price $169,500.00
$169,500.00
This instrument has been audited in the manner required by local government regulations and laws. Your jurisdiction’s specific legal text may be placed in this area.
Purchasing Copy
ATTACHMENT B
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City of Stockton’s Purchase Order Terms and Conditionshttp://www.stocktonca.gov/files/POTerms.pdf
ATTACHMENT B
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Resolution No.
STOCKTON CITY COUNCIL
RESOLUTION TO APPROVE FINDINGS FOR EMERGENCY REPAIRS TO
BROOKING POOL
The project provided water loss repairs, safety hazard repairs, and pool re- plastering; and
The
Public Works Department was granted authority through the City Manager to bypass the competitive bidding process in accordance with provisions of Stockton Municipal Code (SMC) section 3.68.070, which provides an exception to the competitive bidding requirements for contracts in cases where the City Council has approved findings that support and justify the application of the sole source exception process under certain circumstances, including cases of emergencies; and On May 1, 2023, the City Manager approved an emergency Purchase Order to Burkett’s Pool Plastering, Inc. of Ripon, CA, in the amount of $86,800, and the City Manager approved the utilization of a Single Available Source procurement for the repairs and replastering at Brooking Pool; and
On May 12, 2023, Burkett’s Pool Plastering, Inc. began demolition to Brooking Pool. The skimmers were replaced and not holding pressure. Additional leaks not identified in the original leak detection test were suspected; and On June 1, 2023, a second leak detection test was completed at Brooking Pool.
The test identified leaks in the skimmer suction line, return line, and undersized copper plumbing. Burkett’s Pool Plastering, Inc. performed the additional work, including replacing the copper plumbing, resolving the leaks identified in the second test; and On July 21, 2023, the City Manager approved the utilization of a second Single Available Source procurement for the repairs found in the second leak detection test; and
Staff recommends approving payment in the amount of $169,500 to Burkett’s Pool Plastering, Inc. of Ripon, CA; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:
1. The City Council approves the following findings pursuant to SMC section 3.68.070 in support of an exception to the competitive bidding process:
a. Failure to make the emergency repairs would have resulted in the pool remaining closed to the public.
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b. Failure to make the repairs would have resulted in continued water loss. c. Failure to make the repairs would have resulted in unaddressed safety hazards to swimmers.
d. Burkett’s Pool Plastering, Inc. was selected as the most qualified construction contractor given the following:
i. Experienced pool plaster contractor with current C35, C53, and B CSLB licenses;
ii. A current City of Stockton business license; and
iii. An active Department of Industrial Relations registration.
2. The City Council approves the appropriation of funds in the amount of $59,500 from the Measure M Fund Balance to the Emergency Repairs to Brooking Pool, Project No. WP23043.
3. The City Council approves the reallocation of Council Discretionary Funding in the amount of $110,000 from the Pool UV System Installations, Project No.
WP22027, to the Emergency Repairs to Brooking Pool, Project No. WP23043.
4. The City Council approves payment in the amount of $169,500 to Burkett’s Pool Plastering, Inc. of Ripon, CA, for the Emergency Repairs to Brooking Pool, Project No. WP23043.
5. The City Manager is hereby authorized to take whatever actions are necessary and appropriate to carry out the purpose and intent of this Resolution.
PASSED, APPROVED, and ADOPTED October 24, 2023 .
ATTEST:
KEVIN J. LINCOLN II
Mayor of the City of Stockton
ELIZA R. GARZA, CMC
City Clerk of the City of Stockton
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City of Stockton
Legislation Text
File #: 23-0854, Version: 1
APPROVE MOTION TO AWARD A SERVICE CONTRACT FOR HAZARDOUS WASTE
MANAGEMENT SERVICES
RECOMMENDATION
It is recommended that the City Council approve a motion to:
1. Award a three-year Service Contract, in the aggregate amount of $435,000 ($145,000 per fiscal year), to Clean Harbors Environmental Services, Inc. of West Sacramento, CA, for Hazardous Waste Management Services, Project No. SEB-23-005, and authorize the City Manager to execute one optional two-year extension to this Service Contract.
2. Approve findings pursuant to Stockton Municipal Code section 3.68.070 in support of an exception to the competitive bidding process.
It is also recommended that the City Manager be authorized to take appropriate and necessary actions to carry out the purpose and intent of this motion.
Summary
On June 28, 2023, the City advertised a Request for Proposals (RFP) for Hazardous Waste Management Services, Project No. SEB-23-005. On July 31, 2023, two firms submitted proposals for this project. The Selection Committee evaluated the proposals and found Clean Harbors Environmental Services, Inc. of West Sacramento, CA, to be the more qualified and higher ranked firm.
Staff recommends that Council approve a motion to award a three-year Service Contract, in the aggregate amount of $435,000 ($145,000 per fiscal year), to Clean Harbors Environmental Services, Inc. (Attachment A), and authorize the City Manager to execute one optional two-year extension to this Service Contract. The Service Contract will be funded by various department accounts.
DISCUSSION
Background
The Environmental Protection Agency defines hazardous waste as waste with properties that make it dangerous or capable of having a harmful effect on human health or the environment. In accordance with the California Health and Safety Code sections 25189-25196 and the Resource Conservation and Recovery Act, this waste cannot be disposed of in the trash, a municipal landfill, or into a sewer or drainage system. The waste can only be disposed of by a certified vendor.
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File #: 23-0854, Version: 1
Since 2017, the Public Works and Municipal Utilities Departments have contracted for regular hazardous waste management and disposal, as well as emergency collection and clean-up services on an as-needed basis. A city-wide disposal contract, secured through a formal RFP process, expired on June 30, 2022. Since that time, the Public Works and Municipal Utilities Departments have continued to procure services through informal bids and issuance of purchase orders.
There are three main City facilities that routinely generate hazardous waste: Public Works’ Corporation Yard and Municipal Utilities’ Regional Wastewater Control Facility and Delta Water Treatment Plant. There are 12 other City-owned facilities that have the potential to generate hazardous waste. In addition, abandoned hazardous waste and accidental spills and discharges in the public right-of-way are potential sources of hazardous waste for which proper disposal and remediation will be required. A city-wide disposal contract is desired and most advantageous as it provides cost-effective, consistent, and reliable service.
Present Situation
On June 28, 2023, the City advertised an RFP for Hazardous Waste Management Services, Project No. SEB-23-005. On July 31, 2023, two proposals meeting the minimum proposal requirements were received from the following firms:
· Clean Harbors Environmental Services, Inc. (West Sacramento, CA) · U.S. Ecology (Dixon, CA)
The Selection Committee, comprised of Public Works and Municipal Utilities Departments staff, evaluated, and ranked all proposals based on each firm’s experience, qualifications of staff, quality control, communication, referrals, and cost proposal.
Clean Harbors Environmental Services, Inc. received the higher ranking based on the noted criteria and was determined to be the more qualified firm for this project. The fee proposal for this project is based on unit prices for various services that are typically required.
Staff recommends Council approve a motion to award a Service Contract with prescribed rates that include a Consumer Price Index inflator in years two and three, in the aggregate amount of $435,000 ($145,000 per fiscal year), to Clean Harbors Environmental Services, Inc. of West Sacramento, CA, for Hazardous Waste Management Services, Project No. SEB-23-005 (Attachment A). The recommended motion also authorizes the City Manager to execute one optional two-year extension to this Service Contract at the same rates and terms.
Findings
Pursuant to Stockton Municipal Code (SMC) section 3.68.070, Council may approve findings which support an exception to the competitive bidding process. These findings include:
1. The City does not have certified staffing available to properly manage City generated hazardous waste services.
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File #: 23-0854, Version: 1
2. The services needed require a certified vendor in accordance with Health and Safety Code sections 25189-25196 and the Resource Conservation and Recovery Act.
3. Use of the RFP process is appropriate for this Service Contract because it relies on the evaluation of professional qualifications and performance as the basis for selection of a vendor. Use of the criteria helps ensure selection of a vendor that will provide the highest quality professional service, which is in the public interest.
4. The City negotiated a contract following solicitation of competitive proposals in accordance with SMC section 3.68.070.A.3.
FINANCIAL SUMMARY
Departments that generate hazardous waste and need hazardous waste collection and recycling/treatment and disposal will designate funds to pay for their required hazardous waste management services. The Service Contract will be funded from various department accounts:
· Public Works Transportation, in the amount of $70,000, Account No. 4570-715-630006-250- 252-30-45-000-000.
· Public Works Fleet, in the amount of $35,000, Account No. 4530-700-630006-500-000-45-000 -000.
· Municipal Utilities Wastewater, in the amount of $30,000, Account No. 6511-501-630006-600- 000-00-65-000-000.
· Municipal Utilities Water, in the amount of $10,000; Account No. 6513-511-630006-600-000-00 -65-000-000.
Contracted services will begin upon Council approval for a three-year term. Funding is available for expenditures in the first year. Funding for the remaining years of the Service Contract will be included in future annual budgets.
Attachment A - Service Contract with Clean Harbors Environmental Services, Inc.
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Hazardous Waste Management Services
Project No. SEB-23-005
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CONTRACT FOR SERVICE
S
THIS CONTRACT is entered into this day of 2023, between the CITY OF STOCKTON, a munici pal corporation (“CITY), and CLEAN HARBORS ENVIRONMENTAL SERVICES, INC. a STATE OF CA CORPORATION, with a business address at 1745 CEBRIAN STREET WEST, SACRAMENTO, CA 95691 , hereinafter called "CONTRACTOR.," THIS CONTRACT is for the HAZARDOUS WASTE MANAGEMENT SERVICES (P ROJECT NO. SEB-23-005) , hereinafter referred to as “SERVICE”.
RECITALS
A. CONTRACTOR represents that it is licensed in the State of California and is qualified, willing and able to provide the services proposed in the SCOPE OF WORK section of this Contract.
B. CONTRACTOR represent s that it is register ed pursuant to Labor Code Section 1725.5 and will register annually with the Department of Industrial Relations, if the services have a wage determination for the services outlined in the SCOPE OF WORK section of this Contract.
C. CONTRACTOR represent s that it will pay all required prevailing wages under California Labor Code for all se rvices provided that have a wage determination.
D. CITY finds it necessary and advi sable to use the services of the CONTRACTOR for the purposes provided in this Contract.
NOW THEREFORE , in consideration of the mu tual promises, covenants and conditions in this Contract, CITY and CONTRACTOR agree as follows:
1. SCOPE OF SERVICES. Subject to the terms and conditions set forth in this Contract, CONTRACTOR shall undertake and complete the services described in Exhibit A CONTRACTOR shall provide said serv ices at the time, place, and in the manner specified in Exhibit A and compatible with the standar ds of the profession.
CONTRACTOR agrees that it shall provide fully complete services including all labor, materials, tools, equipment and insurance required and that are acceptable to the CITY.
2. COMPENSATION. CITY shall pay CONTRACTOR for services outlined in Exhibit A according to the fee not to exceed the schedule detailed in Exhibit B which is attached to this Contract and incorporated by this reference. CONTRACTOR agrees this fee is for full remuneration for performing all services and furnishing all staffing, materials and tools called for in the scope of services. The payments shall be made on a monthly basis upon receipt and approval of CONTRACTOR ’S invoice for completed work. Total compensation for services and reimbursement for costs shall not exceed $435,000.00 for
ATTACHMENT A
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Hazardous Waste Management Services
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three (3) years ($145,000.00 per fiscal year), or as otherwise mutually agreed to in a Contract Amendment.
Pursuant to Section 22300 of the Public Contract Code, CONTRACTOR will be permitted,
at its request and sole expense, to substitute securities for any monies withheld by the CITY to ensure performance under the contract. Said securities will be deposited either with the CITY or with a State or federally c
hartered bank as escrow agent. Securities
eligible for this substitution are those listed in Section 16430 of the California Government Code or bank or savings and loan certificates of deposit. CONTRACTOR shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.
a. Invoices submitted by CONTRACT OR to CITY must contain a brief description of work performed, locati on of work, time used, materials and special equipment and City project number. Payment shall be made within thirty (30) days of approval of invoice by City.
b. Upon completion of work and acceptance by CITY, CONTRACTOR shall have sixty (60) days in which to subm it final invoicing for payment. An extension may be granted by CITY upon receiving a written request thirty (30) days in advance of said time limitation. CITY shall have no obligation or liability to pay any invoice for work performed which CONTRACTOR fails or neglects to submit within sixty ( 60) days, or any extension thereof granted by the CITY, after work is accepted by CITY.
3. INSURANCE. During the term of this Contract, CONTRACTOR shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit C (Insurance Requirements and Forms) which is attached to this contract and incorporated by this reference, and shall otherwise comply with the other pr ovisions of Exhibit C (Insurance Requirements and Forms).
Maintenance of proper insurance coverage is a material element of this contract and that failure to maintain or renew coverage or to provide evidence of renewal may be treated as a material breach of contract.
CONTRACTOR shall not commence any work before obtaining, and s hall maintain in force at all times during the duration and perfo rmance of this contract, the policies of insurance specified in Exhibit C, which is attached to this contract and incorporated by this reference, and as provided in the “contra ct documents” including Section 7-1.06 of the City of Stockton Standard Specifications and Plans as adopted on September 27, 2016, by Council Resolution No. 2016-09-27-1213, effective September 27, 2016.
It shall be a requirement under this agreement that any av ailable insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the mini mum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance
ATTACHMENT A
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Hazardous Waste Management Services
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policy or proceeds available to the named Insured; whichever is greater.
The Additional Insured coverage under the CONTRACTOR’s policy shall be “primary and non-contributory” and will not seek contribution from the City of Stockton’s insurance or self-insurance and shall be at least as broad as ISO CG 20 01 04 13.
The limits of insurance requir ed in this agreement may be sati sfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contai n a provision that such co verage shall also apply on a primary and non-contributory basis for the benefit of the City of Stockton (if agreed to in a written contract or agreem ent) before the City of Stockton’s own insurance or self- insurance shall be called upon to protect it as a named insured.
All self-insured retentions (SIR) must be disclosed to the CITY’s Risk Management for approval and shall not reduce t he limits of liability. Payment Bond in the amount of the self-insured retention (SIR) may be required.
Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the CITY.
The CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.
CONTRACTOR shall maintain insurance as required by this contract to the fullest amount allowed by law and shall maintain insurance for a minimum of five years following the completion of this project. In the event cont ractor fails to obtain or maintain completed operations coverage as required by this agreem ent, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by CONTRACTOR.
CONTRACTOR agrees to include with all Subcont ractors in their subcontract the same requirements and provisions of this agreement including the indemnity and insurance requirements to the extent they apply to the scope of the Subcontractor’s work.
Subcontractors hired by CONTRACTOR ag ree to be bound to CONTRACTOR and the CITY in the same manner and to the same extent as CONTRACTOR is bound to the CITY under the Contract Docu ments. CONTRACTOR further agrees to include these same provisions with any subcontractor regardle ss of tier. A copy of the CITY Contract Document Indemnity and Insurance provisions will be furnished to the Subcontractor upon request. The CONTRACTOR shall require all Subcontra ctors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and contractor will provide proof of compliance to the CITY.
4. INDEMNITY AND HOLD HARMLESS. With the exception that this section shall in no event be construed to require indemnification by CONTRACTOR to a greater extent than permitted under t he public policy of the State of California, CONTRACTOR shall indemnify, protect, defend with counsel approved by CITY and at CONTRACTOR’S
ATTACHMENT A
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sole cost and expense, and hold harmless the Cit y of Stockton, its o fficers, officials, employees, and volunteers from and against any and all claims, causes of action, liabilities, judgments, awards, losses, li ens, claims, stop notices, damages, expenses, and costs (including without limitation attorn eys’ fees, expert and consultant fees, and other expenses of litigation) of every nature, including, but not limited to, death or injury to persons, or damage to property, which arise out of or are in any way connected with the work performed, materials furnished, or services provided under this Agreement, or from any violation of any federal, State, or municipal law or ordinance, or City Policy, by CONTRACTOR or CONTRACTOR’S office rs, agents, employees, volunteers or subcontractors. CONTRACTOR shall not be obligated to indemnify or defend CITY for claims finally determined by a court of law or arbitrator to arise from the active negligence or willful misconduct of the CITY. It is the intent of the Parties that this indemnity obligation is at least as broad as is permitted under Califo rnia law. To the extent California Civil Code sections 2782, et seq., limit the defense or indemnity obligations of CONTRACTOR to CITY, the intent hereunder is to provide the ma ximum defense and indemnity obligations allowed by CONTRACTOR under the law. The indemnity set forth in this section shall not be limited by insurance requi rements or by any other provision of this Agreement.
With exception that this section shall in no event be construed to require indemnification, including the duty to defend, by CONTRACTOR to a greater extent than permitted under the public policy of t he State of California, the parties agree that CONTRACTOR’S duty to defend CITY is immediate and arises upon the filing of any claim against the CITY for damages which arise out of or are in any way connected with the work performed, materials furnished, or services provided under this Agreement by CONTRACTOR or CONTRACTOR’S officers, agents, employ ees, volunteers or subcontractors.
CONTRACTOR’S duties and obligations to def end the CITY shall apply regardless of whether or not the issue of the CITYS liability, breach of this Agreement, or other obligation or fault has been determined. CONTRACTOR shall be immediately obligated to pay for CITY’S defense costs of the claim, including, but not limited to, court costs, attorney’s fees and costs, expert consultant and witness fees and costs, other witness fees, document reproduction costs, arbitration fees, and, if after final judgment an appeal is pursued, all of such costs for the appeal. At the conclusion of the claim, if there is any determination or finding of sole active negligence or willful misconduct on the part of the CITY, CITY will then reimburse CONTRA CTOR for amounts paid in excess of CONTRACTOR’S proportionate share of responsibility for the damages within 30 days after CONTRACTOR provides CITY with copies of all bills and expenses incurred in the defense of the claim(s). It is agreed between the parties that this reimbursement provision assures CONTRACTOR is not obligated to defend or indemnify CITY in an amount greater than provided for under California law, including, without limitation, California Civil Code sections 2782, 2782.6, and 2782.8.
With the exception that this section shall in no event be construed to require indemnification by CONTRACTOR to a grea ter extent than permitted under the public policy of the State of California, and in addition to the other indemnity obligations in this Agreement, CONTRACTOR shall indemnify , defend, and hold harmless the City of
ATTACHMENT A
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Stockton, its officers, officials, employ ees and volunteers from and against all claims, losses, expenses, and costs including, but not limited to attorneys’ fees, arising out of any claim brought against the CITY by an empl oyee, office, agent, or volunteer of CONTRACTOR, regardless of whether such claim may be covered by any applicable workers compensation insur ance. CONTRACTOR’S indemnification obligation is not limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the CONTRACTOR under workers’ compensation acts, disability acts, or other employee benefit acts.
CONTRACTOR’S obligation to defend, indemnify, and hold the CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Contract for CONTRACTOR to procure and maintain a policy of insurance.
CONTRACTOR/Subcontractor's responsibil ity for such defense and indemnity obligations shall survive the termination or completion of this agreement for the full period of time allowed by law.
If any section, subsection, sentence, clause or phrase of this indemnification is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this indemnification.
5. SCHEDULE AND TERM. CONTRACTOR shall perform the scope of work as described in Exhibit A according to the schedule detailed in Exhibit A which is attached to this Contract and incorporated by this reference. This contract shall commence on the date written above and shall expire on November 30, 2026 , unless extended by mutual agreement through the issuance of a Contract Amendment. This contract provides for one (1), two (2) year extension at the same rates and terms as outlined in Exhibit B.
6. CONFORMANCE TO APPLICABLE LAWS. CONTRACTOR shall comply with all applicable Federal, State, and Municipal laws, rules, and ordinances.
a. TITLE VI
Title VI of the Civil Rights Act of 1964 requires that “no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits o f, or be subjected to discrimination under any pr ogram or activity receiving federal financial assistance.” (42 USC Section 2000d)
http://www.dol.gov/oasam/regs/statutes/titlevi.htm.
The City of Stockton requires compliance with the requirements of Title VI in all of its programs and activities regardless of funding source.
ATTACHMENT A
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b. DISCRIMINATION AND HARASSMENT POLICY
The City of Stockton has a Discrimination and Harassment Policy (Exhibit D). The purpose of this policy is to reaffirm the CITY’s commitment to demonstrating respect for all individuals by strictly prohibiting discrimination and harassment, including sexual harassment in the workplace, to define the types of behavior and conduct prohibited by this policy, and to set forth a procedure for reporting, investigat ing, and resolving complaints of discrimination and harassment in the workplace.
c. LABOR STANDARDS PROVIS IONS/CALIFORNIA LABOR CODE
The bidder shall understand that conditions set forth in Chapter 1, Part 7, Division 2 of the California Labor Code shall be considered part of the contract agreement.
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode= LAB&division=2.&title=&part=7.&chapter=1.&article=2.
d. PREVAILING WAGE
CONTRACTOR and any subcontractor shall pay each employee engaged in the trade or occupation not less than the prevailing hourly wage rate. In accordance with the provisions of Section 1770 of the Labor Code, the Director of Department of Industrial Relations of the State of California has determined the general prevailing raand employer payments for health and welfare, pension, vacation, travel time, and subsistence pay as provided for in Section 1773.1, apprenticeship or other training programs authorized by Section 3093 and similar purposes applic able to the work to be done.
CONTRACTOR performing the work under this contract shall obtain a copy of the wage rate determination and shall distribute copies to each subcontractor. As the wage determi nation for each craft reflects an expiration date, it shall be the prime CONTRACTOR and each subcontractor's responsibility to insure that the prevailing wage rates of concern is current and paid to the employee.
i. The CONTRACTOR performing the work shall be responsible for obtaining a copy of the State wage rate determination. State wage rates may be obtained at
http://www.dir.ca.gov/OPRL/pwd/Determinations/Northern/Northern.pd f. The CONTRACTOR shall be responsible for posting said wage rates at a prominent location at the work site and shall maintain same in a good readable condition for the duration of the work.
ii. Should the CONTRACTOR choose to work on a Saturday, Sunday or on a holiday recognized by the Labor Unions, the CONTRACTOR shall reimburse the CITY the actual co st of engineering, inspection,
ATTACHMENT A
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superintendence, and or other ov erhead expenses which are directly chargeable to the contract. Should such work be undertaken at the request of the CITY, reimbursement wil l not be required. To conform strictly with the provisions of Division 2, Part 7, Chapter 1, Article 2, of the Labor Code of the Stat e of California. To forfeit as a penalty to CITY the sum of TWENTY FIVE A ND NO/100 DOLLARS ($25.00) for each laborer, worker, or mechanic employed by CONTRACTOR, or by any subcontractor under CONTRACTOR , in the execution of this contract, for each calendar day duri ng which any laborer, worker, or mechanic is required or permitted to work more than eight (8) hours and who is not paid the general prevailing rate of per diem wages for holiday and overtime work in violation of t he provisions of Sections 1770 to 1781 of the Labor Code of the State of California. That all sums forfeited under the provisions of the foregoing sections shall be deducted from the payments to be made under the terms of this contract.
iii. The CONTRACTOR to whom the cont ract is awarded shall insure that the prime and each subcontractor will in accordance with Section 1776 of the Labor Code, maintain certified payroll records. A copy of said records shall be provided with each invoice to the Public Works Department, Attention Contract Comp liance Officer. It shall be the CONTRACTOR’S responsibility to obtain copies of the current prevailing wage rate determination for all subcontractors. Additionally, certified payroll records must be uploaded to the DIR website as required by labor code.
iv. The CONTRACTOR shall comply wit h the provisions established in Section 1777.5 of the Labor Code c oncerning the 1) certified approval by local joint apprenticeship commi ttees for the employment and training of apprentices, and 2) contri bution of funds to administer and conduct apprenticeship programs, if applicable to the job. e. LOCAL EMPLOYMENT ORDINANCE
Pursuant to Stockton Municipal Code Section 3.68.095 the CONTRACTOR and all subcontractors shall make a good fa ith effort to employ at least 50 percent of the workforce on this proj ect from local residents, as measured by total labor work hours. Failure of any C
ONTRACTOR or subcontractor
to comply with these requirements shall be deemed a material breach of the contract or subcontract. CONTRACTORS and subcontractors shall maintain records necessary for moni toring their compliance with section
3.68.095.
f. SANCTIONS
Deliverables must conform with all applicable federal, state, and local
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laws. Such conformity includes compliance with federal sanctions, and Contractor certifies that it has not and will not engage in prohibited transactions with sanctioned persons or entities.
7. CONTRACT AMENDMENTS. CITY reserves the right to make such alterations, deviations, additions to or omissions from the plans and specifications, including the right to increase or decrease the quantity of any item or portion of the work, as may be deemed by the Projec t Manager to be necessary or advisable and to require such extra work as may be determined by the Project Manager to be required for the proper completion of the whole work contemplated.
Any such changes will be set forth in a Contract Amendment which will specify, in addition to the work done in connection with the change made, adjustment of contract time, if any, and the basis of compensation fo r such work. A Contract Amendment will not become effective until approved by the authorized City official.
8. RIGHTS AND DUTIES OF CITY. CITY shall make available to CONTRACTOR all data and information in t he possession of CITY which both parties deem necessary to complete the work, and CITY shall actively aid and assist CONTRACTOR in obtaining such information as may be deemed necessary from other agencies and individuals.
9. OBLIGATIONS OF CONTRACTOR. Throughout the term of this Contract, CONTRACTOR represents and warrants that it has or will have at the time this Contract is executed, all licenses, permits, qualifications, insurance, and approvals of whatsoever nature which are legally required for the CONT RACTOR to practice its professions, and CONTRACTOR shall, at its own cost and expense, keep in effe ct during the life of this Contract all such licenses, permits, q ualifications, insurance, and approvals CONTRACTOR shall meet with the Public Works Director or other personnel of CITY or third parties as necessary on all matt ers connected with the carrying out of CONTRACTOR’S services. Such meetings shall be held at the request of either party hereto. CONTRACTOR further warrants t hat it will follow the best current, generally accepted and professional practices to make findings, render opini ons, prepare factual presentations, and provide pr ofessional advice and recommendations regarding this project.
10. TERMINATION. This Agreement is effective on the Effective Date. The City may terminate this Contract and work pursuant to any of all scope of works at any time by mailing a notice in writing to Cont ractor. The Contract shall then be deemed terminated and no further work shall be performed by Contractor. If th e Contract is so terminated, the Contractor shall be paid for that percentage of work actually completed at the time the notice of termination is received.
11. CONTRACTOR STATUS. In performing the obligat ions set forth in this Contract, CONTRACTOR shall have the status of an independent contractor and
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(Updated 04/24/23)
CONTRACTOR shall not be considered to be an employee of the City for any purpose.
All persons working for or under the di rection of CONTRACTOR are its agents and employees, and are not agents of the CITY. Subcontractors shall not be recognized as having any direct or contractual relationship with the CITY. The persons engaged in the work, including employees of subcontractors and suppliers, will be considered employees of CONTRACTOR. The CONTRACTOR shall be responsible for the work of subcontractors, which shall be subject to the provisions of th is Contract. The CONTRACTOR is responsible to the CI TY for the acts and omissions of its subcontractors and persons directly or indirectly employed by them.
a. If in the performance of this Contra ct any third persons are employed by CONTRACTOR, such persons shall be entirely and exclusively under the direction, supervision, and control of CONTRACTOR. All terms of employment including hours, wages, work ing conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by CONTRACTOR.
i. It is further underst ood and agreed that CONTRACTOR must issue W- 2 forms or other forms as required by law for income and employment tax purposes for all of CONTRACTOR’S personnel.
ii. As an independent contractor, CONTRACTOR hereby indemnifies and holds CITY harmless from any and all claims that may be made against the CITY based upon any contention by any third party that employer- employee relationship exists by reason of this Contract.
12. ASSIGNMENT. CONTRACTOR shall not assign, sublet, or transfer this Contract or any interest or ob ligation in the Contract withou t the prior written consent of the CITY, and then only upon such terms and conditions as CITY may set forth in writing.
CONTRACTOR shall be solely responsible for reimbursing subcontractors.
13. HEADINGS NOT CONTROLLING. Headings used in the Contract are for reference purposes only and shall not be considered in construing this Contract.
14. NOTICES. Any and all notices herein required shall be in writing and shall be sent by certified or registered mail, postage prepaid, addressed as follows:
To CONTRACTOR: Clean Harbors To City: Public Works Director Environmental Services Inc. City of Stockton
1745 Cebrian Street 22 E. Weber Ave., Rm. 301
Sacramento, CA 95691 Stockton, CA 95202
15. LICENSES, CERTIFICATIONS, AND PERMITS. Prior to the CITY’S execution of this Contract and prior to the CONTRACTOR engaging in any operation or activity set forth in this Contract, CONTRACTOR shall obtain a City of Stockton business license, which must be kept in effect duri ng the term of this Contract. CONTRACTOR
ATTACHMENT A
277
Hazardous Waste Management Services
Project No. SEB-23-005
(Updated 04/24/23)
covenants that it has obtained al l certificates, licenses, permits and the like required to perform the services under this Contract.
16. RECORDS AND AUDITS. CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY fo r services under this Contract. Upon request, CONTRACTOR agrees to furnish CITY , or a designated representative, with necessary information and assistance.
CONTRACTOR agrees that CI TY or its delegate shall have the right to review, obtain, and copy all records pertaining to performance of the Contract. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested, and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of intervie wing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpos es of determining complianc e with this Contract.
CONTRACTOR agrees to maintain such records for a period of three years from the date that final payment is made.
17. CONFIDENTIALITY. CONTRACTOR shall exercise reasonable precautions to prevent the unauthorized disclosure and use of CITY’S reports, information, or conclusions.
18. CONFLICTS OF INTEREST. CONTRACTOR cove nants that other than this Contract, CONTRACTOR has no financial interest with any official, employee, or other representative of the CITY. CONTRACTOR and its principals do not have any financial interest in real property, sources of income or investment that would be affected in any manner or degree by the performance of CONTRACT OR’S services under this Contract. If such an interest arises, CONTRACTOR will immediately notify CITY.
19. WAIVER. In the event either CITY or CONTRACTOR at any time waive any breach of this Contract by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Contract, whether of the same or of any other covenant, condition, or obligation.
20. GOVERNING LAW. California law shall govern any legal action pursuant to this Contract with venue for all claims in the Superior Court of the County of San Joaquin, Stockton Branch or, where applicable, in the federal District Court of California, Eastern District, Sacramento Division.
21. DISPUTE RESOLUTION . Prior to undertaking any litigation, the Parties shall make reasonable efforts to resolve all disputes informally, including by means of a conference between senior managers of each Party having authority to resolve the dispute.
ATTACHMENT A
278
Hazardous Waste Management Services
Project No. SEB-23-005
(Updated 04/24/23)
1. Venue
Any controversy or claim between the Parties shall be determined with venue for all claims in the Superior C ourt of the County of San Joaquin, Stockton Branch or, where applicable, in the federal District Court of California, Eastern District, Sacramento Division.
2. If any litigation action or proceedi ng is commenced in connection with this Agreement, the prevailing Party, as determined by the court, shall be entitled to reasonable attorneys' fees (including allocated costs for in- house legal services), costs and necessary disbursements incurred in such action or proceeding.
22. NO PERSONAL LIABILITY. No official or employee of CITY shall be personally liable to CONTRACTOR in the event of any default or breach by CITY or for any amount due CONTRACTOR.
23. INTEGRATION AND MODIFICATION. The response by CONTRACTOR to the Request for Proposals or Qualifications and the Request for Proposals or Qualifications on file with t he CITY are hereby incorporated herein by reference to the extent that such documents do not differ from the provisions and terms of this Contract that shall supersede such response to Reques t for Proposals or Qualifications. This Contract represents the entire integrated agreement between CONTRACTOR and CITY, supersedes all prior negotiations , representations, or agreements, either written or oral, between the parties, and may be amended only by written instrument signed by CONTRACTOR and CITY. All exhibits and this contract are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Contract and the attached exhibits, the terms of this Contract will prevail.
24. SEVERABILITY. The provisions of this Contract are severable to the extent that should any of its provisions or terms be declared void in whole or in part by operation of law or agreement of the parties, the remainder of the provisions or terms not expressly declared void shall remain enforceable and in full effect.
25. THIRD PARTY RIGHTS. Nothing in this Contract shall be construed to give any rights or benefits to anyone other than CITY and CONTRACTOR. //
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//
//
//
//
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ATTACHMENT A
279
Hazardous Waste Management Services
Project No. SEB-23-005
(Updated 04/24/23)
26. AUTHORITY. The undersigned hereby represent and warrant that they are authorized by the parties to execute this Contract.
IN WITNESS WHEREOF: the parties have executed this Contract the day and year first hereinabove written.
CITY OF STOCKTON CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
B y : B y :
HARRY BLACK Signature
CITY MANAGER
A T T E S T :
P r i n t N a m e
B y
:
ELIZA R. GARZA, CMC Title:
CITY CLERK
APPROVED AS TO FORM:
B y :
DEPUTY CITY ATTORNEY
Marc McReynolds
Senior Vice President
ATTACHMENT A
280
SCOPE OF SERVICES
2‐A. Introduction.
The City of Stockton is seeking a qualified company to provide the following hazardous waste management functions:
1. Package, transport, and dispose of routinely generated hazardous waste from City operated
facilities:
City of Stockton Corporation Yard
1465 S. Lincoln Street, Stockton, CA. 95206
CAD981678709
City of Stockton Municipal Utilities
2500
Navy Drive, Stockton, CA. 95206
CAL000039581
City of Stockton Delta Water Treatment Plant
11373 N. Lower Sacramento Road, Lodi, CA. 95242
CAL000382120
2. Package, transport, and dispose of hazardous waste from various other City department locations,
as needed or requested.
3. Package, transport, and dispose of hazardous waste generated from abatement project sites and clean‐up activity sites involving abandoned and unidentified waste.
4. Provide emergency response services for hazardous material spills or discharges in the public right‐of‐way or on City
‐owned property.
5. Assist with obtaining EPA ID numbers as necessary.
6. Provide training on proper storage, labeling, and handling of on‐site hazardous wastes for various departments, as needed or requested.
7. Supply containers, approved by the City, for hazardous waste accumulation at City operated
locations.
Proposer must respond to an appoin tment request within five working days and schedule the appointment within ten working days of the request.
Proposer will provide the City with a report of products and services provided.
EXHIBIT A
ATTACHMENT A
281
Proposer will demonstrate adherence to the City’s Environmentally Preferable Procurement Policy regarding products and services offered.
The Proposer sh all tour the City’s Corporation Yard and Municipal Utilities locations. See Attachment J, Stockton Location Map, for project location.
A mandatory single job walk will be conducted on Thursday, July 6, 2023, beginning at 8:30 a.m. at the City’s Corporation Yard and is anticipated to conclude by 9:30 a.m. at the City’s Municipal Utilities Department. 2‐B. Current Services and Waste Types.
Hazardous waste disposal services are currently provided, on an as needed basis, by various companies. The City would like to enter a comprehensive contract with a qualified hazardous waste company to consolidate these services. The types and volumes of waste typically generated by City operations are shown in the table below. The quantities shown below indicate expected annual volumes and type of container. All listed facility wastes
are included in these totals.
2‐C.
Environmental, Health and Safety Compliance.
The Company is responsible for ensuring that its employees are adequately trained to comply with all environmental, health, and safety regulations. All staff provided by the Company shall possess training appropriate for the expected work, including current 40‐hour Hazardous Waste Operations and Facility Waste Description Quantity Units Container
Public Works/Corp Yard Debris w/Chromium (Brake Shavings) 140 Pounds Drum Public Works/Corp Yard Non ‐RCRA Asphalt Emulsion containing Diesel 6000 Po unds Drum Public Works/Corp Yard Non ‐RCRA Oily Debris/Solids 2000 Po unds Drum Public Works/Corp Yard Universal Waste Halogen Lamps 31 Pounds Box Public Works/Corp Yard Universal Waste Compact Fluorescent Lamps 40 Pounds Box/Drum Public Works/Corp Yard Universal Waste Fluorescent Lamps 800 Pounds Box/Drum Public Works/Corp Yard Universal Waste Mercury Containing Articles/Equipment 1 Pounds Drum Public Works/Corp Yard Universal Waste Batteries ‐ Lead Acid 65 P o unds Drum Public Works/Corp Yard Universal Waste Batteries ‐ Nickel Cadmium 150 Pounds Drum Public Works/Corp Yard Non ‐RCRA Antifreeze/Coolant 750 Gallons Tank/Vac Truck Public Works/Corp Yard Non ‐RCRA Parts Wash Water 320 Gallons Drum Public Works/Corp Yard Non ‐RCRA Drained/Used Oil Filters 1000 Po unds Drum Public Works/Corp Yard Non ‐RCRA non‐PCB Light Ballasts 125 Pounds Drum Public Works/Corp Yard Non ‐RCRA Oil Sludge and Water 1450 Po unds Drum Public Works/Corp Yard Non ‐RCRA Latex Paint 150 Pounds Drum Public Works/Corp Yard Non ‐RCRA Grease 700 P ounds Drum Public Works/Corp Yard Flammable Paint 150 Pounds Drum Public Works/Corp Yard Non ‐RCRA Empty Drums 40 Pounds Drum Public Works/Corp Yard Hydrochloric Acid Solution 100 Pounds Drum Municipal Utilities Non‐RCRA Oily Debris 400 Pounds Drum Delta Water Treatment Plant Non ‐RCRA Ammonium Hydroxide Solution 300 Pounds Drum Delta Water Treatment Plant Non ‐RCRA Oily Debris/Solids 150 Pounds Drum
EXHIBIT A
ATTACHMENT A
282
Emergency Response (HAZWOPER) Training, as required by Title 8 of the California Code of Regulations, Section 5192. They should also receive annual eight‐hour refresher training to maintain their proficiency.
Furthermore, Company staff must obtain additional training, such as HM 181 (HM126), SB 198, respiratory protection, etc., as mandated by relevant state and federal laws.
Company shall have a written Inju ry and Illness Prevention Plan, Respiratory Protection Plan, and other additional written plans as required for on‐site job functions. Training documentation and written plans shall be provided to the City of Stockton, CUPA, DTSC, Cal/OSHA and other state and local regulators upon request.
The Company will exercise utmost precaution for the protection of Company
and City of Stockton staff, the public, site personnel, and property.
The Company will install adequate safety guards and protective devices for all their equipment and machinery. All care will be employed to ensure that work proceeds under the highest standards of safety and prudence, and in compliance with al
l applicable laws.
2‐D. Personal Protective Equipment.
The Company understands that the scope of work requires its provision and use of personal protective equipment (PPE) including, but not limited to, Tyvek suits, gloves, booties, aprons, sleeve protectors, and respirator cartridges. It is mandatory that all operations personnel wear appropriate safety equipment. In addition to the PPE listed above, the Company will provide their Ch
emists and Technicians with:
a) Safety eye wear,
b) Boots
or shoes with steel toe and shank, and
c) Respirator, when required.
2‐E. Vehicle and Driver Permits and Registrations.
The Company will provide hazardous waste transportation and will ensure that all vehicles transporting hazardous wastes are properly registered, and that hazardous waste drivers have all required state and federal licenses.
Copies of drivers’ licenses must be provided to City of Stockton upon request. Company must notify City of Stockton if any of these permits or licenses become, or are in danger of becoming, expired, revoked, or suspend
ed.
EXHIBIT A
ATTACHMENT A
283
Company shall obtain all required federal, state and local permits for the responsibilities of the Company.
The Company will be responsible for preparing manifests and collecting, transportin
g, and disposing of hazardous wastes from City facilities. 2‐F. Supplies and Equipment.
The Company will be responsible for using, at the waste removal appointments, the appropriate supplies, materials, equipment, vehicles, and drivers as specified by federal and state laws/regulations for the management of hazardous wastes.
The Company shall furnish supplies and equipment necessary for the safe and legal unloading, segregating, packaging,
transport, and disposal of
hazardous wastes. These supplies include, but are not limited to, those items listed in Attachment E as may be amended by Company and City of Stockton. The City may require that all waste billed at a per pound rate be weighed at the site of collection and that actual weight be listed on all manifests and bills of
lading (BOLs) and included on all required reports.
2‐G. On‐site Hazardous Waste Management.
The Company will provide a site supervisor, chemists, and/or Environmental Technicians who are appropriately trained for the required scope of work. The Company’s Chemists will be primarily responsible for ensuring completion of the following tasks:
Testing and identification of unknown wastes and determination of the proper DOT hazard classes;
Segregating waste into compatible categories for bulking and/or lab packs;
Bulking or otherwise consolidating wastes;
Completing waste and drum inventories and providing quality assurance and quality control coordination to ensure acceptance of hazardous wastes by Treatment, Storage and Disposal Facilities (TSDFs); and
labeling all drums containing hazardous wastes.
2‐H. Manifests.
The Company will prepare hazardous waste manifests and other relevant shipping, or waste tracking, documents in compliance with all applicable regulations. Manifests will be clear and legible. The Company will submit the TSDF‐signed copy of the manifest to the DTSC within thirty (30) days of the collection appointment. The City will not be responsible for payment of additional costs because of shipping document errors. All wastes cha rged
EXHIBIT A
ATTACHMENT A
284
at a per pound weight may, per request of the Solid Waste Manager, be actual weights as provided by scale or other measuring device possessing current certification as appropriate and necessary. Those actual weights will be shown on the relevant shipping document.
Company shall provide a Waste Tracking Report or similar document to track all wastes take
n from City of Stockton facilities through all TSDFs to receipt at the final destination. Such Waste Tracking Reports shall be provided monthly. Certificates of Recycling, Disposal, Treatment or Destruction shall be sent to the City of Stockton once the waste has been recycled, treated, destroyed, or landfilled. Repo rt shall include all
manifests, bills of lading, and any other pertinent documents. 2‐I. Hazardous Waste Recycling, Treatment, and Disposal.
The Company will arrange for the ultimate disposition of wastes according to the following hierarchy as possible: reuse, recycling, fuels blending, treatment/neutralization, incineration, stabilization/solidify/landfill, and, lastly, direct hazardous waste landfilling.
The Company must submit documentation, such as Certificates of Disposal, as proof of treatment, recycling or disposal to the City of Stockton following the ultimate disposition of all wastes (including those wastes shipped on BOLs).
Company shall be responsible for conducting routine audits of th e TSDFs that accept City wastes. The results of these audits are to be submitted to the City no later than ninety (90) days following completion of said audit.
The Company will provide all data needed to prepare the review. 2‐J. City of Stockton Program Responsibilities.
1. Appointments. Solid Waste and Recycling staff will coordinate Ci ty
department hazardous waste collection requests with the Company.
Public Works staff will coordinate Corporation Yard collections with the Company. Municipal Utilities Department (MUD) staff will coordinate collections from MUD sites with the Company.
2. Staffing. The City will provide a site contact for each appointment.
EXHIBIT A
ATTACHMENT A
285
3. Environmental Protection Agency Identification Numbers. The City may assist with obtaining necessary EPA ID numbers from Cal/EPA for the operation of collection programs as needed.
4. Manifests. The City representative will review all manifests for completeness and accuracy at the time of service. A designated and authorized City representative will sign the manifests or provide auth
orization for Company to sign on behalf of the City of Stockton.
Company will provide copies or duplicates of manifests upon City’s request.
EXHIBIT A
ATTACHMENT A
286
On-Site Labor
Personnel Type Hour ST Not Prevailing Hours OT Not Prevailing Per Diem Project Manager
Site Supervisor
Lead Chemist
Chemist/Specialist
Technician
LABOR DETAIL
HAZARDOUS WASTE MANAGEMENT SERVICES
M-F 8am to 5 PM
M-F 8am to 5 PM
M-F 8am to 5 PM
M-F 8am to 5 PM
M-F 8am to 5 PM
$ 75.00
$ 75.00
$ 70.00
$ 65.00
$ 60.00
Over 8 ST hours &
all day Saturday
"
"
"
$ 112.50
$ 112.50
$ 105.00
$ 97.50
$ 90.00
$ 150.00
$ 150.00
$ 150.00
$ 150.00
$ 150.00
Labor rates will be portal to portal
Prevailing wages do not apply to the rates above. Should any future services b e subject to prevailing wages,the wages will be quoted on a case by case basis for the specific project.
EXHIBIT B
ATTACHMENT A
287
Item Unit Unit Cost
Duct Tape (specify size) Roll
Spray Adhesive (specify size) Ea
20x100 Visqueen (specify thickness) Ea
12x100 Visqueen (specify thickness) Ea
Tarps 16x20 (specify thickness and material) Ea
Tarps 20x30 (specify thickness and material) Ea
Tarps 30x40 (specify thickness and material) Ea
Dumpster Liners Ea
Directional Signs (on site-specify) Ea
Directional Signs (off site-specify) Ea
Traffic Cones Ea
Fluorescent Tube Containers 4' Ea
Fluorescent Tube Containers 8' Ea
Cubic Yard Un Boxes Ea
Cubic Yard Non-Un Boxes Ea
Cubic Meter Un Boxes Ea
Cubic Meter Non-Un Boxes Ea
55 Gallon 1A2 Drum (steel) Ea
55 Gallon 1H2 Drum (poly) Ea
30 Gallon 1A2 Drum (steel) Ea
30 Gallon 1H2 Drum (poly) Ea
15 Gallon 1A2 Drum (steel) Ea
15 Gallon 1H2 Drum (poly) Ea
5 Gallon 1H2 Drum (poly) Ea
85 Gallon 1A2 Overpack Drum Ea
Drum Liners Box
5 Gallon Plastic Bags Ea
Asbestos Liners Roll
Vermiculite Bag
Absorbent (specify type) Ea
Absorbent Pads (assorted) Bags
D.O.T. Labels (assorted) Rolls
Hazardous Waste Labels Roll
Packing Lists w/Envelope Ea
Tyvek (various sizes) Box
Safety Glasses Ea
Face Shields Ea
Respirator (1/2 face) Ea
Respirator Cartridges Ea
Leather Gloves Ea
Chemical Resistant Gloves Pair
Cotton Glove Liners Pair
Labpack Gloves (specify) Box
Aprons Ea
Boot Covers Pair
pH Paper Box
Stretch Wrap (specify size) Roll
STANDARD EQUIPMENT, SUPPLY LIST AND PRICING
EXHIBIT B
,1&/8'(',16(59,&(
,1&/8'(',16(59,&(
1$
1$
1$
21 12.50
189.25 (6 mil)
N/A
23.50 N/A
N/A
63 N/A
N/A
1/63 (PER DAY)
263
N/A
N/A
70.55 18 (SPEED DRY)
81 84
84 2.50
24.50 4.20
24.50 40
20 5.30
38 6.50
14.70 (LATEX)
N/A
13 19 (ROLL)
52 (ROLL)
ATTACHMENT A
288
Pallets Ea
Oxidizer Paper Tubes
Drum Markers Box
Drum Dolly Ea
Unloading Carts Ea
Bung Wrench Ea
Speed Wrench Ea
Socket Wrench Ea
Paint Tools (spatula, can openers) Ea
Paint Bulking Trees Ea
Equipment Truck (specify size/driver?) Ea
Equipment Truck (specify size/driver?) Ea
Equipment Truck (specify size/driver?) Ea
Forklift (includes delivery) 1 Day
Sorting Tables (specify) Ea
Portable Scale Ea
Security Guard Per Hour
Canopy/Tent (specify size) Per Day
Portable Toliet Per Event
Be sure to specify appropriate sizes, quantities in rolls or boxes, etc. For any other consumables please add to electronic sheet - attach additional sheet for hard copy
EXHIBIT B
40 (DOT APPROVED)
2.63 N/A
N/A
132
N/A
N/A
N/A
N/A
N/A
170 (BOX TRK W/ DRIVER)
182 (DRY VAN W/ DRIVER)
N/A
488
N/A
210 (PER DAY)
N/A
16 10.50
ATTACHMENT A
289
(2023)
DISPOSAL PRICING MATRIX FOR HAZARDOUS WASTE COLLECTIONS ** Average weight of container including waste and all packaging material Waste Type
Waste
Profile(s)
Required
Waste
Management
Method(s)
Waste Container
Management
Method(s)
Waste Packaging
Method(s) Yard Box Average
Weight** 55 Drum Average
Weight** 30 Drum Average
Weight** 5 Drum Average
Weight** Other Average
Weight**
Cost Per
Pound
LATEX PAINT-GOOD
LATEX PAINT-BAD/SLUDGE
OIL BASED PAINT
(Combine with Loosepack
Flammable Liquids)
OIL BASED PAINT
OIL BASE PAINT WITH PCBs
OIL BASE PAINT SLUDGE
FLAMMABLE LIQUIDS
FLAMMABLE LIQUIDS
HALOGENATED SOLVENTS
NON- HALOGENATED SOLVENTS
SOLVENT SLUDGE
RESINS/ TAR/ ADHESIVES
FLAMMABLE SOLIDS
LEAD PAINT CHIPS
WASTE MOTOR OIL
WASTE MOTOR OIL
CONTAMINATED
OIL FILTERS
ETHYLENE GLYCOL
FIRE EXTINGUISHER
(NOT RE-USABLE)
FIRE EXTINGUISHER
(RE-CHARGEABLE)
COMPRESSED GAS CYLINDERS <5
GAL (PROPANE/BUTANE)
COMPRESSED GAS CYLINDERS 5
GAL OR > (PROPANE)
NOTES:
N/A= NOT APPLICABLE
WASTE MANAGEMENT METHODS- RU= REUSE, RC= RECYCLE, FB= FUEL BLENDING, TR= TREATMENT/NEUTRALIZE, DI= DESTRUCTIVE INCINERATION, SB= STABILIZATION/SOLIDIFY/LANDFILL, LF= LANDFILL, (I), (II), OR (III) = CLASS I, II, OR III LANDFILL.
WASTE CONTAINER MANAGEMENT METHODS- RC= RECYCLE, DI= DESTRUCTIVE INCINERATION, FB= FUEL BLENDING, LF= LANDFILL, (1) (2)= CLASS 1 OR 2, TR= TREATMENT, RU= REUSE
WASTE PACKAGING METHODS- LO= LOOSE PACK, LP= LAB PACK, BU= BULKING, CN= CONTAINERIZING WASTE CONTAINER TYPE- DM= STEEL DRUM, DF= FIBER DRUM, DP= PLASTIC DRUM, PB= PLASTIC BUCKET <HV
<HV
<HV
<HV
<HV
<HV
<HV
/) /2
/) /) %8
58 58 %8
', ', %8
58 58 %8
)%
)%
)%
)%
%8
%8
58 58 /2<HV
/)
<HV
<HV
<HV
<HV
<HV
<HV
1R
1R
1R
1R
)% )% %8
)% )% %8
)% )% %8
)% )% %8
)% )% %8
727(
/) /) %8
5&
5&
5&
5&
5&
5&
5&PHWDOSDSHU
%8
%8
1$ 1$ 1$1$
SXPSHG
1$ 1$ 1$ 1$ SXPSHG
%8 1$ 1$ 1$
5& %8 1$ 1$ 1$ 1$ SXPSHG
YES DI DI LP N/A N/A N/A N/A 301 EA
N/A
YES RC RC LP N/A N/A N/A N/A 67 EA
YES RC RC LP N/A N/A N/A N/A 134 EA
ATTACHMENT A
EXHIBIT B
290
Waste Type
Waste
Profile(s)
Required
Waste
Management
Method(s)
Waste Container
Management
Method(s)
Waste Packaging
Method(s) Yard Box Average
Weight** 55 Drum Average
Weight** 30 Drum Average
Weight** 5 Drum Average
Weight** Other Average
Weight**
Cost Per
Pound
COMPRESSED GAS CYLINDERS
UNKNOWN
PCB CONTAINING BALLAST
OTHER PCB CONTAINING WASTE
SOLID
OTHER PCB CONTAINING WASTE
LIQUID
CORROSIVE AEROSOLS
FLAMMABLE AEROSOLS
POISON AEROSOLS
CYANIDES
REACTIVE CYANIDES
SULFUR SOLID
REACTIVE SULFIDES
ELEMENTAL MERCURY
ORGANIC MERCURY COMPOUNDS
DIOXIN PRECURSORS
ORGANIC POISONS/ PESTICIDES-
SOLID
ORGANIC POISONS/ PESTICIDES-
LIQUID
EH POISONS/ PESTICIDES SOLID
EH POISONS/ PESTICIDES LIQUID
INORGANIC POISONS/ PESTICIDES
SOLID
INORGANIC POISONS/ PESTICIDES
LIQUID
WATER REACTIVE COMPOUNDS,
FLAMMABLE GAS PRODUCING,
HEAT GENERATING NOTES:
N/A= NOT APPLICABLE
WASTE MANAGEMENT METHODS- RU= REUSE, RC= RECYCLE, FB= FUEL BLENDING, TR= TREATMENT/NEUTRALIZE, DI= DESTRUCTIVE INCINERATION, SB= STABILIZATION/SOLIDIFY/LANDFILL, LF= LANDFILL, (I), (II), OR (III) = CLASS I, II, OR III LANDFILL.
WASTE CONTAINER MANAGEMENT METHODS- RC= RECYCLE, DI= DESTRUCTIVE INCINERATION, FB= FUEL BLENDING, LF= LANDFILL, (1) (2)= CLASS 1 OR 2, TR= TREATMENT, RU= REUSE
WASTE PACKAGING METHODS- LO= LOOSE PACK, LP= LAB PACK, BU= BULKING, CN= CONTAINERIZING WASTE CONTAINER TYPE- DM= STEEL DRUM, DF= FIBER DRUM, DP= PLASTIC DRUM, PB= PLASTIC BUCKET <HV
<HV
<HV
<HV
<HV
<HV
<HV
<HV
<HV
<HV
<HV
<HV
7\SHWH[WKHUH
',
',
',
',
%8
%8
%8',',
1$
1$
1$
',
',
',
',
', ',
/2
/2
/2
1$
1$
1$
', ', %8 1$
', ', %8 1$
', ', %8 1$
', ', %8 1$
', ', %8 1$
', ', %8 1$
NO DI DI LP 1824
NO DI DI LP 8.71
NO DI DI LP 8.71
NO DI DI LP 3.37
NO DI DI LP 3.37
YES DI DI LP 24
NO DI DI LP 28.22
NO DI DI LP 30.09
NO DI DI LP 8.71
ATTACHMENT A
EXHIBIT B
291
Waste Type
Waste
Profile(s)
Required
Waste
Management
Method(s)
Waste Container
Management
Method(s)
Waste Packaging
Method(s) Yard Box Average
Weight** 55 Drum Average
Weight** 30 Drum Average
Weight** 5 Drum Average
Weight** Other Average
Weight**
Cost Per
Pound
WATER REACTIVE COMPOUNDS-
ACID GAS PRODUCING
WATER REACTIVE COMPOUNDS-
AMMONIA GAS PRODUCING
HYPOCHLORITE COMPOUNDS
NON-HYPOCHLORITE OXIDIZING
BASES
ORGANIC BASES- SOLIDS
ORGANIC BASES, LIQUIDS
INORGANIC BASES, SOLIDS
INORGANIC BASES- LIQUIDS
NEUTRAL OXIDIZERS
OXIDIZING ACIDS
OXIDIZING BASES
INORGANIC ACIDS- SOLIDS
INORGANIC ACIDS- LIQUIDS
INORGANIC ACIDS, LIQUIDS WITH
REGULATED METALS
ORGANIC ACIDS, SOLIDS
ORGANIC ACIDS- LIQUIDS
AQUEOUS SOLUTIONS WITH
REGULATED METALS
AQUEOUS SOLUTIONS WITH LESS
THAN 10% ORGANIC
ORGANIC PEROXIDES
PHOTOGRAPHIC WASTE
SOLID LEAD WASTE (SOLDER)
ASBESTOS
DEBRIS CONTAMINATED WITH
CHROMIUM (BRAKE SHAVINGS)
ASPHALT EMULSION CONTAINING
DIESEL
HYDROCHLORIC ACID SOLUTION
AMMONIUM HYDROXIDE SOLUTION
NOTES:
N/A= NOT APPLICABLE
WASTE MANAGEMENT METHODS- RU= REUSE, RC= RECYCLE, FB= FUEL BLENDING, TR= TREATMENT/NEUTRALIZE, DI= DESTRUCTIVE INCINERATION, SB= STABILIZATION/SOLIDIFY/LANDFILL, LF= LANDFILL, (I), (II), OR (III) = CLASS I, II, OR III LANDFILL.
WASTE CONTAINER MANAGEMENT METHODS- RC= RECYCLE, DI= DESTRUCTIVE INCINERATION, FB= FUEL BLENDING, LF= LANDFILL, (1) (2)= CLASS 1 OR 2, TR= TREATMENT, RU= REUSE
WASTE PACKAGING METHODS- LO= LOOSE PACK, LP= LAB PACK, BU= BULKING, CN= CONTAINERIZING WASTE CONTAINER TYPE- DM= STEEL DRUM, DF= FIBER DRUM, DP= PLASTIC DRUM, PB= PLASTIC BUCKET Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
DI DI BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
BU
DI DI
DI DI
DI DI
DI DI
DI DI
DI DI
DI DI
DI DI
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
TR TR 415.00 250.00 135.00
340.00
340.00
340.00
TR
TR TR
TR
TR
TR TR
TR
340.00
340.00
205.00
205.00
205.00
205.00
135.00250.00415.00
415.00 250.00 135.00
135.00250.00415.00
415.00 250.00 135.00
525.00
385.00
385.00
385.00
385.00
525.00
807.00
807.00
605.00
605.00
385.00
385.00
385.00525.00
525.00
525.00
525.00
525.00
TR TR/LF
TR TR/LF 125.00175.00200.00
N/A N/AN/A
Type text here
TR TR BU N/A
240.00592.00 445.00
TR TR
TR TR
TR TR BU
BU
BU
N/A
N/A
N/A
RC RC/FB BU
592.00 445.00 240.00
535.00
535.00
535.00 215.00
215.00
215.00410.00
410.00
410.00
TR
TR TR
TR BU
BU
N/A
N/A
415.00
415.00 250.00
250.00 135.00
135.00
525.00
EXHIBIT B
ATTACHMENT A
292
Waste Type
Waste
Profile(s)
Required
Waste
Management
Method(s)
Waste Container
Management
Method(s)
Waste Packaging
Method(s) Yard Box Average
Weight** 55 Drum Average
Weight** 30 Drum Average
Weight** 5 Drum Average
Weight** Other Average
Weight**
Cost Per
Pound
LEAD ACID BATTERIES
HOUSEHOLD BATTERIES
RECHARGABLE BATTERIES
(Ni-Cd, Ni-Mh, Li-Ion, Small Sealed Pb)
FLUORESCENT LIGHT TUBES-
STRAIGHT
FLUORESCENT LIGHT TUBES-MISC
(U-TUBE, CIRCULAR, ETC)
COMPACT FLUORESCENT LIGHTS
(CFL)
OTHER UNIVERSAL WASTE LAMPS
UNIVERSAL WASTE-MERCURY
CONTAINING EQUIPMENT
UNIVERSAL WASTE CRT'S (CEW's)
OTHER ELECTRONICS
NON-RCRA- LIQUID
NON-RCRA- SOLID
SOLID DEBRIS CONTAMINATED
WASTE ABSORBENT
SHARPS
EMPTY 55 DRUMS
EMPTY METAL CANS <5 GALLONS
OTHER , PLEASE SPECIFY
NOTES:
N/A= NOT APPLICABLE
WASTE MANAGEMENT METHODS- RU= REUSE, RC= RECYCLE, FB= FUEL BLENDING, TR= TREATMENT/NEUTRALIZE, DI= DESTRUCTIVE INCINERATION, SB= STABILIZATION/SOLIDIFY/LANDFILL, LF= LANDFILL, (I), (II), OR (III) = CLASS I, II, OR III LANDFILL.
WASTE CONTAINER MANAGEMENT METHODS- RC= RECYCLE, DI= DESTRUCTIVE INCINERATION, FB= FUEL BLENDING, LF= LANDFILL, (1) (2)= CLASS 1 OR 2, TR= TREATMENT, RU= REUSE
WASTE PACKAGING METHODS- LO= LOOSE PACK, LP= LAB PACK, BU= BULKING, CN= CONTAINERIZING WASTE CONTAINER TYPE- DM= STEEL DRUM, DF= FIBER DRUM, DP= PLASTIC DRUM, PB= PLASTIC BUCKET Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
No
Type text here
Type text here
Type text here
RC RC N/A 106.00260.00350.00
li only380.00N/AN/A
N/ARC RC
LO
LO N/A N/A 150.00
RC RC LO
RC RC LO
RC RC LO
RC RC LO
RC RC
N/A
N/A
N/A
N/ALO
RC RC
RC RC
RC RC BU
BURC RCTOTES 340.00
N/A
N/A N/A
N/A
N/A
N/A
N/A
83.00 59.004 FT
N/A N/A N/A 10.00 BULB
10.00 10.00
N/A N/A N/A
N/A N/A N/A
N/A N/A N/A 0.00 10.00 1
RC RC LO
LO
LO
N/A N/A
TR/LF TR/LF LO
TR/LF TR/LF LO
N/A 175.00200.00
975.00 262.00 215.00 90.00
TR/LF
TR/LF
TR/LF
TR/LF
BU
BU
LO
975.00
975.00 215.00
215.00
262.00
262.00
90.00 90.00
N/A 891.00
1650.00
1650.00
330.00
330.00 99.00
99.00 248.00
248.00
125.00
DI DI N/A N/A N/A N/A 2GAL125.00
EXHIBIT B
ATTACHMENT A
293
REV 2022‐05‐17
Insurance Requirements
(Hazardous Waste Management Services)
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees, or subcontractors. With respect to General Liability, Errors & Omissions, Contractors Pollution Liability, and/or Asbestos Pollution Liability, coverage should be maintained for a minimum of five (5) years after contract completion.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $3,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Contractor has no owned autos, hired (Code 8) and non-owned (Code 9) autos, with limit no less than $2,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Contractors Pollution Liability applicable to the work being performed, with a limit no less than $2,000,000 per claim or occurrence and $2,000,000 aggregate per policy period of one year.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City of Stockton requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.
Self-Insured Retentions
EXHIBIT C
ATTACHMENT A
294
REV 2022‐05‐17
Self-insured retentions must be declared to and approved by the City of Stockton. The City of Stockton may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Stockton. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds $25,000 unless approved in writing by City of Stockton. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. City of Stockton may deduct from any amounts otherwise due Contractor to fund the SIR/deductible. Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named Insured.
The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible. City of Stockton reserves the right to obtain a copy of any policies and endorsements for verification.
Other Insurance Provisions
A. The General Liability, Automobile Liability, Contractors Pollution Liability, and/or Asbestos Pollution policies are to contain, or be endorsed to contain, the following provisions:
1. The City of Stockton, its officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.
2. For any claims related to this project, the Contractor’s insurance coverage shall be primary and non-contributory insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City of Stockton, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City of Stockton, its officers, officials, employees, agents, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. The City of Stockton does not accept endorsements limiting the Contractor’s insurance coverage to the sole negligence of the Named Insured.
EXHIBIT C
ATTACHMENT A
295
REV 2022‐05‐17
3. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Stockton.
B. The Automobile Liability policy shall be endorsed to include Transportation Pollution Liability insurance, covering materials to be transported by Contractor pursuant to the contract. This coverage may also be provided on the Contractors Pollution Liability policy.
C. If General Liability, Contractors Pollution Liability and/or Asbestos Pollution Liability and/or Errors & Omissions coverages are written on a claims-made form:
1. The retroactive date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase an extended period coverage for a minimum of five (5) years after completion of contract work.
4. A copy of the claims reporting requirements must be submitted to the City of Stockton for review.
5. If the services involve lead-based paint or asbestos identification / remediation, the Contractors Pollution Liability shall not contain lead-based paint or asbestos exclusions.
If the services involve mold identification / remediation, the Contractors Pollution Liability shall not contain a mold exclusion and the definition of “Pollution” shall include microbial matter including mold.
Umbrella or Excess Policy
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.
EXHIBIT C
ATTACHMENT A
296
REV 2022‐05‐17
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A:VII if admitted in the State of California.
Verification of Coverage
Contractor shall fur
nish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City of Stockton before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Waiver of Subrogation
Contractor hereby grants to City of Stockton a waiver of subrogation which any insurer may acquire against City of Stockton, its officers, officials, employees, and volunteers, from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City of Stockton has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Stockton for all work performed by the Contractor, its employees, agents, and subcontractors.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City of Stockton is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.
Duration of Coverage
CGL & Excess liability policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of 5 years for Completed Operations liability coverage. Such Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
EXHIBIT C
ATTACHMENT A
297
REV 2022‐05‐17
Special Risks or Circumstances
City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
The address for mailing certificates, endorsements and notices shall be:
City of Stockton
Its Officers, Officials, Employees and Volunteers
400 E Main Street, 3rd Floor – HR
Stockton, CA 95202
EXHIBIT C
ATTACHMENT A
298
EXHIBIT D
ATTACHMENT A
299
EXHIBIT D
ATTACHMENT A
300
EXHIBIT D
ATTACHMENT A
301
EXHIBIT D
ATTACHMENT A
302
EXHIBIT D
ATTACHMENT A
303
EXHIBIT D
ATTACHMENT A
304
EXHIBIT D
ATTACHMENT A
305
EXHIBIT D
ATTACHMENT A
306
EXHIBIT D
ATTACHMENT A
307
EXHIBIT D
ATTACHMENT A
308
EXHIBIT D
ATTACHMENT A
309
EXHIBIT D
ATTACHMENT A
310
EXHIBIT D
ATTACHMENT A
311
EXHIBIT D
ATTACHMENT A
312
City of Stockton
Legislation Text
File #: 23-1006, Version: 1
CONSOLIDATION OF THE 2024 PRIMARY AND GENERAL MUNICIPAL ELECTIONS
RECOMMENDATION
It is recommended that Council adopt a resolution authorizing the following actions:
1. Authorize the City Clerk to call for and consolidate the March 5, 2024, primary municipal election and the November 5, 2024, general municipal election with the respective statewide direct primary and general elections;
2. Adopt a fee, as set by the San Joaquin Registrar of Voters, for the printing and handling of the Candidate’s Statement of Qualifications;
3. Adopt the deadlines for filing of any direct arguments and rebuttal arguments as set by the San Joaquin Registrar of Voters, which deadlines shall coincide with the City Clerk’s Office posted hours of operation for both the primary and general elections;
4. Authorizing the San Joaquin County Registrar of Voters to conduct the elections on behalf of the City of Stockton.
Summary
Adoption of the recommended resolution as required by the Elections Code authorizes the City Clerk to call for the election consolidation, sets the Candidate Statement regulations, coordinates the deadlines for arguments with the San Joaquin Registrar of voters, and authorizing the fee as set by the San Joaquin Registrar of Voters.
DISCUSSION
The terms for the incumbent Council Members in Districts 2, 4, 6, and Mayor, will end in December of 2024. Pursuant to established procedures and in accordance with Stockton City Charter Article VII, Section 702, the Office of the City Clerk is calling for the municipal elections to be held in accordance, except as otherwise expressed in the City’s Charter, with provisions of the Elections Code of the State of California.
Pursuant to the California Election Code, the charges to the candidate for printing and handling of the Candidate’s Statement of Qualifications are estimated by the San Joaquin Registrar of Voters. The Code also requires that the argument deadlines be set before the conduct of the elections. By adopting this Resolution, the Council will adopt the established fee as well as the argument deadlines.
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File #: 23-1006, Version: 1
The following filing provisions are applicable to candidates and remain consistent with the California Elections Code:
1. Each Candidate’s Statement of Qualifications shall be limited to 200 words, and the candidates shall pay in advance the estimated pro rata share of costs for handling, printing, etc., at the time nomination papers are filed. The fees are estimated and set by the San Joaquin County Registrar of Voters.
District 2 $1,050.00
District 4 $1,210.00
District 6 $1,040.00
Mayor $5,370.00
2. Exemption from advance payment for the candidate’s statement shall be provided for candidates proving indigence. Candidates proving indigence will be allowed additional time to pay for the candidate’s statement. Proof of indigence is based upon the candidate’s federal income tax report. Nonpayment at the specified time will cause the statement to be deleted before the voter’s pamphlet is printed.
FINANCIAL SUMMARY
The overall cost of the Primary and General Municipal Elections are billed post-election dates and are funded by the City’s General Fund Non-Departmental Election Costs account.
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Resolution No.
STOCKTON CITY COUNCIL
RESOLUTION OF THE CITY OF STOCKTON CALLING FOR AND CONSOLIDATING THE MARCH 5 , 2024, PRIMARY MUNICIPAL ELECTION AND THE
NOVEMBER 5, 2024, GENERAL MUNICIPAL ELECTION WITH THE RESPECTIVE STATEWIDE DIRECT PRIMARY AND GEN ERAL ELECTIONS; APPROVING THE ESTIMATED FEE FOR THE PRINTING AND HANDLING OF THE CANDIDATE’S STATEMENT OF QUALIFICATIONS; SETTING THE DEADLINES FOR THE DIRECT
ARGUMENTS AND THE REBUTTAL ARGUMENTS FOR BOTH THE PRIMARY AND GENERAL ELECTIONS; AND AUTHORIZING THE SAN JOAQUIN COUNTY
REGISTRAR OF VOTERS TO CONDUCT THE ELECTIONS
The City Council of the City of Stockton, in San Joaquin County, State of California, is calling for a Primary Municipal Election in the City of Stockton to be held on Tuesday, March 5 2024, to elect candidates for Councilmembers in Council Districts 2, 4, 6, and Mayor and a General Municipal Election to be held on Tuesday, November 5, 2024, to conduct a runoff election of the two candidates receiving the highest number of votes cast if no candidate for Councilmember from a district receives a majority of the votes cast in the primary election; and
A State of California Primary Election will be held on Tuesday, March 5 , 2024, and a State of California General Election will be held on Tuesday, November 5, 2024, and it is the desire of the City Council that said Primary and General Municipal Elections be consolidated with the California Primary and General Elections; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF STO CKTON, AS FOLLOWS:
1. The City of Stockton’s Primary Municipal Election shall be consolidated with the State of California Primary Election to be held on Tuesday, March 5, 2024, to elect candidates for Councilmembers in Council Districts 2, 4, 6, and Mayor; and the City of Stockton’s General Municipal Election shall be consolidated with the State of California General Election to be held on Tuesday, November 5, 2024, to hold the runoff election of the two candidates receiving the highest number of votes ca st if no candidate for Councilmember from a district receives a majority of the votes cast at the primary election.
2. The City Council of the City of Stockton authorizes the estimated fee as set by the San Joaquin County Registrar of Voters for the pri nting and handling o f the Candidate’s Statement of Qualifications as follows:
315
Council District #2 candidate (by District) $ 1,050.00 Council District #4 candidate (by District) $ 1,210.00 Council District #6 candidate (by District) $ 1,040.00 Mayor (at-large) $ 5,370.00
3. Deadlines will be coordinated for direct arguments and rebuttal arguments with the dates as set by the San Joaquin County Registrar of Voters, taking into consideration the City Clerk’s Office posted hours of fo r both the primary and general elections.
4. The San Joaquin County Registrar of Voters is authorized to conduct the elections and canvass of the vote.
5. The City Clerk is authorized and directed to certify the adoption of this Resolution and to transm it a certified copy to the Board of Supervisors of San Joaquin County and to file a certified copy of said Resolution with the County Registrar of Voters of San Joaquin County.
PASSED, APPROVED, and ADOPTED October 24, 2023 .
KEVIN J. LINCOLN II
Mayor of the City of Stockton
ATTEST:
ELIZA R. GARZA, CMC
City Clerk of the City of Stockton
316
City of Stockton
Legislation Text
File #: 23-0862, Version: 1
NAMING RIGHTS FOR THE CITY OF STOCKTON ARENA
RECOMMENDATION
Information only item. No Action to be taken.
Summary
This will be an informational presentation.
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Update: Naming Rights for
the Arena
Stockton City Council
October 24, 2023
Agenda Item 15.1
318
ARENA
For nearly 20 years, the Stockton Arena has been hosting entertainment in the Central Valley.
Located in the heart of San Joaquin County in downtown Stockton, this premier 10,000 seat multi-use arena brings hundreds of thousands of visitors annually to the region. Home to the G-League Stockton Kings, the Arena hosts a wide variety of concerts, sporting events, family shows, and more. The Arena easily adapts to accommodate various event
configurations and capacity needs.
319
TIMELINE
RFP released April 6, 2023
Information Session held May 3, 2023
RFP Closed June 8, 2023
Sponsor was selected
Contract signed October 2023
320
CONTRACT HIGHLIGHTS
ASM Global is contractually responsible for revenue streams including sponsorship.
Given the significance of the naming rights partnership EDD worked in close partnership with ASM Global to develop a successful strategy. The contract is between ASM Global and the sponsor.
Commencement date is November 1, 2023, through October 31, 2033. ASM will manage this partnership as they do all sponsorship agreements that fall under their purview.
All sponsorship revenue is City revenue and will be invested back into the arena.
321
City of Stockton
Legislation Text
File #: 23-1005, Version: 1
ESTABLISHMENT OF AN AD-HOC COMMITTEE OF THE COUNCIL AND A CITIZENS’
ADVISORY COMMISSION TO ADVISE THE CITY COUNCIL REGARDING POTENTIAL
AMENDMENTS TO THE CITY CHARTER
RECOMMENDATION
It is recommended that the Council adopt a resolution:
1. Establishing an Ad-Hoc Committee of the Council to review and make recommendations for City Charter revisions, as necessary.
2. Establishing a Citizen’s Advisory Commission to review and provide recommendations on a revision to Charter Articles XI and XI-A as well as future Charter revisions, as necessary.
SUMMARY
On September 26, 2023, the City Council directed staff to bring back an agenda item for the creation of a Citizen Review Commission to review and make recommendations on amending Charter Articles XI and XI-A, along with future review and recommendations for other potential Charter amendments. Consistent with past practice, this report also includes the formation of an Ad-Hoc Charter Review Advisory Committee of the Council.
Staff was directed to present an overview of the process for placing a charter amendment on the ballot for the General Municipal Election scheduled for November 5, 2024. The specific charter sections to be reviewed are Charter Articles XI and XI-A, related to the City’s Public Information Office.
Creation of the Ad-Hoc Charter Review Committee of the Council The first action to be taken is the establishment and appointment of an Ad-Hoc Charter Review Committee of the Council. This committee will be responsible for overseeing and managing this process on behalf of the Council. The creation of this committee adheres to the guidelines set forth in Council Policy 3.06, specifically City Council Committees, Board & Commissions, section 3.06.010, subparagraph 4C. As stipulated, this committee will consist of three members of the City Council and an alternate member. It will operate in accordance with the Ralph M. Brown Act and Open Meeting Guidelines.
Formation of the Charter Review Advisory Commission
The second action proposed is the establishment of a Charter Review Advisory Commission. This advisory body will report its findings and recommendations to the Ad-Hoc Charter Review Committee. The Commission City of Stockton Printed on 10/20/2023Page 1 of 3
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File #: 23-1005, Version: 1
will comprise seven appointees, each chosen by a City Council member, including the Mayor. For eligibility, each direct appointee must be a qualified elector of the district represented by the appointing Councilmember for the duration of their term on the commission. It is imperative that members of this commission have a strong community background and a thorough understanding of government guidelines.
Given the specialized nature of this advisory board, the City Clerk’s department conducted a survey of neighboring agencies to identify additional recommended qualifications for board composition. While the feedback has been considered in this staff report, it is essential to emphasize that the board’s composition should reflect the diversity of the Stockton community and offer equitable opportunities for participation.
Once formed, the Charter Review Advisory Commission will work within the parameters set by city staff to ensure alignment with the November 5, 2024, General Municipal Election timeline. The key dates and milestones are outlined in Attachment A of this staff report.
DISCUSSION
Background
Over the years, various provisions in the City Charter have come to light, necessitating potential amendments.
These provisions may involve outdated language, ambiguities, and conflicts with external laws or mandates that no longer align with current best practices.
At the June 13, 2023, Council meeting, Councilmembers Blower and Wright asked for a discussion on potentially amending Charter Articles XI and XI-A to be agendized. Specifically, he wanted to align current practice with the Charter language regarding oversight. On September 26, 2023, Council considered whether to amend Charter Articles XI and XI-A and ultimately decided to form a citizen’s advisory body to review and provide input regarding such an amendment.
Present Situation
Ad-Hoc Charter Review Committee
In accordance with Council Policy 3.06, City Council Committees, Board & Commissions, section 3.06.010, subparagraph 4C, the Council has the authority to create Ad-Hoc committees to address specific issues or manage specific projects. Committee members are appointed by the Mayor, considering the interests of Councilmembers. While the Mayor makes recommendations, the City Council ultimately reviews and approves the committee’s composition. The committee’s term cannot exceed one year unless an extension is approved by the Council.
The Ad-Hoc Charter Review Committee’s primary role is to efficiently oversee the scope of work delegated by the Council, provide guidance to the Charter Review Advisory Commission, and regularly update the Council on the progress of this effort.
The Ad-Hoc Committee will establish a regular reporting schedule for the Charter Review Advisory Commission, ensuring timely communication. The accompanying resolution will formalize the Ad-Hoc Charter Review Committee.
Charter Review Advisory Commission
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File #: 23-1005, Version: 1
Given that Charter amendments must be approved by the City’s electors, involving citizens in the development of proposed Charter language is crucial to ensure that the measures ultimately put forth align with the values and expectations of the community.
The primary focus of the Commission will be to review Charter Sections Articles XI and XI-A, regarding the city’s Public Information Office. Proposed amendments will be formulated for inclusion on the November 2024 ballot. Subsequently, the Commission will proceed to comprehensively review and update the entire Charter in manageable segments.
Scope of Work and Timeframe
Over the last several years, a multitude of issues have been identified that may necessitate amendments to the City Charter. Addressing all potential changes simultaneously would be an intricate and time-consuming undertaking. There are diverse views on the relative importance and urgency of these issues. For this reason, specific guidance from the Council is essential at the outset of this process.
Principles for Charter Review have been devised to establish a set of criteria and general principles to guide the detailed deliberations. It is crucial for the Council to provide this guidance to ensure that the process for reviewing the City Charter and the recommendations arising from it are in harmony with the Council’s and community’s expectations.
For Charter sections beyond XI and XI-A the scope of work will be formulated by the Council Ad Hoc committee into logical blocks of related issues. The Charter sections will be prioritized to facilitate efficient evaluation and analysis. The Charter Review Advisory Commission will sequentially address the work in each block as prioritized.
FINANCIAL SUMMARY
At this juncture, the financial implications are limited to the staff time required to support the Commission’s work and conduct relevant research. However, it is important to acknowledge that staff time dedicated to this effort will need to be managed alongside other ongoing priorities. The competition for staff time should not be underestimated.
When the work of the Commission is complete, if the Council accepts the recommendation and votes to add the measure to the ballot, there will be costs associated with placing the measure on the ballot.
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Resolution No.
STOCKTON CITY COUNCIL
RESOLUTION ESTABLISHING AN AD-HOC COMMITTEE OF THE COUNCIL AND A CITIZENS’ ADVISORY COMMISSION TO ADVISE THE CITY COUNCIL REGARDING
POTENTIAL AMENDMENTS TO THE CITY CHARTER
The City Council desires to consider potential amendments to the City Charter that are both necessary or desirable; and
Amendments to the City Charter must be acceptable to and approved by the City's electorate, and so it is important that the citizens of Stockton have the opportunity to express their views and be involved in the shaping of any proposed amendments; and
It is necessary then to establish a Charter Review Advisory Commission, which will engage in a public process aimed at providing to the City Council guidance regarding such amendments, and to appoint the members of that commission;
This advisory body will report its findings and recommendations to the Ad-Hoc Charter Review Committee. The Commission will comprise seven appointees, each chosen by a City Council member, including the mayor. For eligibility, each direct appointee must be a qualified elector of the district represented by the appointing Councilmember for the duration of their term on the commission. It is imperative that members of this commission have a strong community background and a thorough understanding of government guidelines; and
It is also necessary to establish an ad-hoc committee to provide guidance to the Charter Review Advisory Commission, which will be advising the Council regarding potential amendments to the City's Charter; and
Council Policy 3.06 authorizes the City Council to establish ad-hoc committees targeted towards specific issues; and
The policy requires that ad-hoc committees be established by resolution of the Council, with appointments to be made by the Mayor based on the expertise and expressed interest of the Councilmembers; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:
1. This City Council hereby approves the formation of the Charter Review Ad - Hoc Committee to provide guidance to the Charter Review Advisory Commission, which will be advising the Council regarding potential amendments to the City's Charter.
The following Councilmembers are appointed to serve on the Charter Review Ad - Hoc Committee are as follows:
1.Mayor Kevin Lincoln, Chair
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2.Councilmember Dan Wright, Vice Chair
3.Councilmember Michele Padilla, Member
4.Vice Mayor Kimberly Warmsley, Alternate
2. This City Council hereby approves the formation of the Charter Review Advisory Commission, which will report to and receive guidance from the Charter Review Ad-Hoc Committee.
PASSED, APPROVED and ADOPTED: October 24, 2023 .
KEVIN J. LINCOLN II
Mayor of the City of Stockton
ATTEST:
ELIZA R. GARZA, CMC
City Clerk of the City of Stockton
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Attachment A
Charter Review Timeline
October 24, 2023
Establishment of the Charter Review Advisory Commission.
Recruitment and Public Outreach Begins.
November 1-10, 2023
First public meeting of Charter Review Council Ad hoc Committee.
Set purpose and goals of the Charter Review Advisory Commission.
Set meeting cadence.
November 14, 2023
Commission members are officially appointed.
Announce the Commission’s formation to the public.
November 16, 2023
First Public meeting of Charter Review Advisory Commission.
Commission members receive orientation about their roles and responsibilities.
Training in relevant laws and regulations.
Present the purpose and goals set by the Council Ad hoc Committee to the Commission.
December 7, 2023
Charter Review Advisory Commission Meeting
January 4, 2024
Charter Review Advisory Commission Meeting
January 16, 2024
Charter Review Advisory Commission Meeting
Prepare for report to Charter Ad hoc
Commission reviews public comments on the proposed amendments.
Refine and make necessary adjustments.
January 25, 2024
Charter Review Ad hoc.
Finalization of proposed charter amendments
Prepare for submittal to the full Council for approval.
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Attachment A
February 6, 2024
1st Public Hearing notice must be published.
February 27, 2024
First City Council public hearing to approve proposed charter amendments.
March 28, 2024
Second City Council public hearing to approve proposed charter amendments.
April 18, 2024
Third and City Council public hearing to approve proposed charter amendments.
May 14, 2024
Administrative deadline for submitting proposed ballot measure to the County Registrar of Voters for approval by the San Joaquin County Board of Supervisors.
July 1, 2024
First day to publish Notice of Election, with proposed ballot measure. This may include a synopsis provided by the City Attorney.
July 15, 2024
Last day to publish Notice of Election, with proposed ballot measure. This may include a synopsis provided by the City Attorney.
August 6, 2024
Last possible meeting to vote to place a measure for charter amendments on the ballot.
August 9, 2024
Last day to file impartial analysis and synopsis with the Registrar of Voters.
August 9, 2024
Publish Notice of Measure to be voted on.
August 10, 2024
Public examination opens.
August 14, 2024
Last day to submit an adopted resolution withdrawing the proposed measure from the ballot.
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Attachment A
August 15, 2024
Last day to withdraw or change arguments for or against proposed ballot measure.
August 19, 2024
Rebuttal letters to those in favor and against the proposed ballot measure.
August 20, 2024
Public examination period closes.
August 26, 2024
Last day to file rebuttal arguments for proposed ballot measure.
September 6, 2024
Sample Ballots mailing period begins.
October 29, 2024
Last day to publish Notice of Nominees and proposed ballot measure.
November 5, 2024
Election Day
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City of Stockton
Legislation Text
File #: 23-0889, Version: 1
MEASURE W CITIZENS’ OVERSIGHT COMMITTEE ADOPTED ANNUAL REPORT OF REVENUES AND EXPENDITURES FOR FISCAL YEAR 2021-22
RECOMMENDATION
This item is an informational item submitting the Measure W Citizens’ Oversight Committee Report for Fiscal Year 2021-22 to the City Council.
Summary
Stockton’s voters approved Measure W on November 2, 2004, and the City Council subsequently adopted program guidelines to implement the measure. The guidelines require an audit performed by an independent certified public accountant, and the establishment of a citizen’s oversight committee to ensure proper use of the revenues. The Measure W Citizens’ Oversight Committee has the responsibility to determine whether expenditures were made consistent with the program guidelines. Furthermore, the Committee is required to provide an annual report to the City Council.
The attached Measure W Annual Report for Fiscal Year (FY) 2021-22 (Attachment A) is presented to the City Council in compliance with the program guidelines.
DISCUSSION
Background
On August 3, 2004, the City Council adopted a resolution which called for an election to consider enactment of The Stockton Safe Neighborhood Gang and Drug Prevention, Police/Fire Measure, also known as Measure W. The voters approved the measure on November 2, 2004. Measure W enabled the collection of a one-quarter percent sales tax specifically for police and fire services. The ordinance guidelines call for the creation and operation of a citizens’ oversight committee to ensure funds collected would be deposited and expended according to the intent of the measure. After the passage of the measure, the Council adopted guidelines for the functioning of the oversight committee and appointed members to the committee.
Present Situation
The Measure W Citizens’ Oversight Committee met regularly during the past year to review and discuss the Measure W revenues and expenditures, to receive programmatic updates from the Police and Fire Departments, to approve the annual audits by the independent certified public accountant, and to review the Annual Reports. The financial information included in the Annual Report is based on the annual audit. City staff presented the FY 2021-22 audited Schedule of Revenues, Expenditures, and Change in Fund Balance to the City’s Audit Committee on January 30, 2023, and City of Stockton Printed on 10/18/2023Page 1 of 2
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File #: 23-0889, Version: 1
the City Council on February 7, 2023, and the Measure W Citizens’ Oversight Committee on June 14, 2023.
A draft FY 2021-22 Annual Report was presented to the Oversight Committee on September 13, 2023. The Oversight Committee approved the Measure W FY 2021-22 Annual Report for presentation to the City Council and the public.
The FY 2021-22 Annual Report (Attachment A) describes the receipt and expenditure of Measure W funds as well as compliance with requirements in the ordinance, policy, and program guidelines.
Under the current program guidelines, revenues collected from Measure W sales tax are split between Police (50%) and Fire (50%).
FY 2021-22 tax revenues totaled nearly $14.6 million, a 5% increase over than the prior year.
The Measure W expenditure budget for FY 2021-22 was approximately $13.5 million. Of this total allocation, almost $12.8 million was expended during the year, resulting in an increase to the ending available fund balance. Police and Fire salaries and benefits comprised 80% of the Measure W spending with Measure W covering the cost of 24 sworn positions in the Police Department and 25 firefighters in the Fire Department. Of the remaining expenditures, radio and automotive services accounted for 8%, purchase of fire apparatus and facility improvements were 7%, general liability insurance was 3% and tax collection/ audit expenses were 2%. Measure W provided one-time funds of approximately $878,000 for one new fire engine for the reopening of Fire Station No. 1 and washers/extractors for two fire stations. Measure W funds were leveraged as local match for a federal grant to purchase a fire ladder truck.
The Measure W fund balance as of June 30, 2022, was approximately $10.0 million, which is 71% of the FY 2022-23 budgeted revenue of $14.0 million. This fund balance was more than sufficient to meet the 25% program guideline reserve target. The fund balance is a reserve to ensure that the City can maintain the Measure W-funded police and fire positions during economic fluctuations.
FINANCIAL SUMMARY
There is no financial impact from the presentation of this report.
Attachment A - Measure W Annual Report for FY 2021-22
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City of Stockton
Measure W
Police & Fire Protection
Services
Citizens' Oversight
Committe Annual Report
Fiscal Year 2021-22
Inside This Report:
Committee Members
Message from the Committee
Fire Department Message
Police Department Message
Program Information
Independent Audit
Measure W
Public Safety
ATTACHMENT A
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What is Measure W?
MESSAGE FROM THE COMMITTEE
A 1/4 cent sales and transaction tax
approved by Stockton citizens in November
2004 to fund public safety services.
The Measure W Ordinance called for a
Citizens' Oversight Committee to ensure the
use of measure W tax proceeds are
consistent with the intent of voters.
The Measure W Citizens’ Oversight Committee is pleased to present the annual report for Fiscal Year (FY) 2021-22. The Committee has reviewed the revenue and expenditure reports to ensure that the use of these revenues complies with the objectives originally approved by voters in 2004, and confirms the stewardship over the tax proceeds is in accordance with the ordinance and guidelines.
The Measure W program guidelines approved by City Council also call for an independent audit by a Certified Public Accounting firm. A “clean report” was issued for the fiscal year ending June 30, 2022, stating that the financial schedules for Measure W present fairly the revenues and expenditures.
Measure W provides funding for public safety positions and related operating costs over and above what could be afforded by the City’s normal tax funding sources. These additional sales tax dollars are split evenly between the Police and Fire Departments. Both the Police and Fire Departments have reported to the Committee that the need for Measure W revenues is critical and the services are extremely valuable to the public.
The Committee reports that the Fund has accumulated the reserve recommended in the guidelines which will insulate the services should revenues falter for a short period of time. Even though revenues exceeded budget, the importance of having a strong reserve cannot be overemphasized.
At the end of this 19th year for Measure W, the committee is pleased with the results and would like to extend our appreciation to all stakeholders for their extraordinary support.
Committee Members
Greg Bahr
Robert Bivens
Joseph Curtis
Mario Enriquez
Esau Hernandez
Mary Holloway
Raymond Zulueta Jr.