TWENTYNINE PALMS CITY COUNCIL
REGULAR MEETING AGENDA
6136 Adobe Road
Twentynine Palms, CA 92277
www.29palms.org
Tuesday, October 11, 2022
NOTICE IS HEREBY GIVEN, that the City Council will hold a Regular Meeting on Tuesday, October 11, 2022 at City Hall, 6136 Adobe Road, Twentynine Palms, CA 92277 to consider the following:
REGULAR SESSION AGENDA
6:00 P.M.
CALL TO ORDER
Pledge of Allegiance.
Invocation - Rev. Don Thursby - Little Church of the Desert.
Roll Call.
Closed Session Announcements.
Changes to the Agenda.
ANNOUNCEMENTS
These proceedings may be viewed on demand on the City of Twentynine Palms website at www.29palms.org.
You may also Live Stream this meeting by going on our website and clicking on the "Meeting Agendas" link.
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS
1. Introduction of the newest City Employees.
2. Presentation to the Twentynine Palms High School Touchdown Club for their Participation in the Cash for Trash and Recycling Program.
3. Proclamation Recognizing October as Hindu Heritage Month.
Proclamation Recognizing October as Hindu Heritage Month. - Pdf 5 - 6
COUNCIL COMMENTS AND REPORTS OF MEETINGS ATTENDED
CONSENT CALENDAR
All matters listed under the Consent Calendar are to be considered routine by the City Council and will be enacted by one motion in the form listed. Any item may be removed from the Consent Calendar and considered separately by the City Council. The public will be given an opportunity to comment on Consent Calendar items prior to the City Council action
4. Waive the Reading of Ordinance and Approve the Reading by Title Only.
5. Approval of Minutes of the City Council Meeting Held on September 27, 2022.
City Council - Regular Meeting with Closed Session - 27 Sep 2022 - Minutes - Pdf 7 - 11
6. Permanent Bleachers at Project Phoenix.
RECOMMENDATION: The City Council award a construction services contract (Permanent Bleachers at Project Phoenix Gymnasium/Community Center) to Herk Edwards, Inc., in the amount of $87,940.
Permanent Bleachers at Project Phoenix. - Pdf
13 - 27
7 Accept the final map for Parcel Map No. 20360.
RECOMMENDATION: The City Council accept and approve the final map for Parcel Map No. 20360
Accept the final map for Parcel Map No. 20360. - Pdf
29 - 32
8 Neighborhood Safety Project, HSIPL-5448(009).
RECOMMENDATION: The City Council:
1. Adopt the design of the project represented by the Plans and Specifications for the "Twentynine Palms Neighborhood Safety Project",
2. Award the contract for the "Twentynine Palms Neighborhood Safety Project" to VSS International, Inc., for the amount of $781,120.00 and authorize a 10 percent contingency in the amount of $78,112, for a total contract amount of $859,232.00.
3. Authorize the City Manager to execute all documents necessary to enter into the contract, including any necessary amendments thereto.
Neighborhood Safety Project, HSIPL-5448(009). - Pdf
33 - 195
ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION
PUBLIC HEARING - NONE
DISCUSSION AND POTENTIAL ACTION ITEMS
9 Business Loan Improvement Program Expansion.
RECOMMENDATION: The City Council direct Staff to update application forms and other materials related to the Business Loan Improvement Program to expand the boundaries, and to publish said documents to solicit participation in the Program.
Business Loan Improvement Program Expansion. - Pdf
197 - 234
FUTURE COUNCIL INITIATED ITEMS
1. Voting for Mayor as opposed to current selection process.
2. Seasonal Banners throughout the City.
3. Maintained v. Non-Maintained Roads.
4. VHR Ordinance.
5. Two-story homes in Indian Cove.
PUBLIC COMMENTS
This is the time for the public to address the City Council on issues within the jurisdiction of the City Council that are NOT on this agenda. All comments are to be directed to the City Council and shall not consist of any personal attacks. Members of the public are expected to maintain a professional, courteous decorum during their comments. There is a time limitation of three minutes per person. If you haven’t already done so, please fill out name and address slips and give them to the City Clerk. The City Council is prohibited by State law from taking action or discussing items not included on the printed agenda. Public comments on specific agenda items will be deferred until consideration of the item on the agenda.
CITY MANAGER UPDATE
ADJOURNMENT
It is the intention of the City of Twentynine Palms to comply with the Americans with Disabilities Act in all respects. If you are a person with a disability who requires a disability-related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, please request such modification or accommodation from the City Clerk at (760) 367- 4890 (facsimile). Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. Please advise us at the time whether you will require accommodations to participate in meetings on a regular basis. Any person affected by any application on this agenda may submit their concerns in writing prior to the meeting or appear in person and be heard in support or opposition to the proposal at the time the matter is considered on the agenda. The staff reports, applications and environmental documents may be viewed at either the office of Community Development or the office of the City Clerk, 6136 Adobe Road, from 7:00 a.m. until 6:00 p.m. Monday through Thursday, except legal holidays. The Invocation is given per Policy 10-01, and does not reflect the views of the City but rather is an expression of speech by a private citizen making the presentation. Telephone inquiries may be made at (760) 367-6799. If you challenge any agenda issue in court, you may be limited to raising only those issues that you or someone else raised at the public meeting described in this notice, or in written correspondence delivered to the City of Twentynine Palms at, or prior to, the public meeting.
This notice of agenda is hereby certified to have been posted on or before 6:00 p.m., October 6, 2022.
Cindy Villescas CMC, City Clerk Time/Date
STAFF REPORT
TO: City Council
FROM: City Clerk
FOR MEETING: Oct 11 2022
SUBJECT: Proclamation Recognizing October as Hindu Heritage Month.
ATTACHMENTS:
• Proclamation Recognizing
October as Hindu Heritage
Month
CITY OF TWENTYNINE PALMS
PROCLAMATION
RECOGNIZING
HINDU HERITAGE MONTH
WHEREAS, Hinduism is the third largest philosophy in the world, with one billion followers worldwide and four million in the United States; and,
WHEREAS, Hindu heritage, culture, traditions, and values provide invaluable solutions to many of life’s problems and often serve as a source of inspiration, reflection, and contemplation for the millions of individuals who look to the teachings of Hinduism for guidance; and, WHEREAS, during October 2022, the Hindu community across the State and Nation will collectively celebrate its heritage by focusing on its culture and the diverse spiritual traditions rooted in India; and, WHEREAS, by proclaiming the month of October as Hindu Heritage Month, the City of Twentynine Palms becomes the first City in the Morongo Basin to acknowledge the importance of the contributions that Hindu and Indian residents have made as business leaders, professionals, and innovators, advancing human knowledge in every area from science, astronomy, and medicine to art and literature, while also sharing the vibrancy of their culture with the Western world; and,
WHEREAS, Hindu Americans, including those of Indian descent, have added immeasurably to their communities through their unique culinary traditions, music, styles of dress, and festivals such as Holi, Diwali, and Onam, and they have further introduced their fellow citizens to the benefits of yoga, meditation, mindfulness, and other spiritual practices to our City’s social, economic, political, and cultural fabric.
NOW, THERFORE, BE IT RESOLVED, that the City Council of the City of Twentynine Palms does hereby recognize October 2022, as HINDU HERITAGE MONTH in the City of Twentynine Palms and invite everyone to learn more about the culture and contributions of Hindu Americans in our Nation.
DATED this 11th day of October 2022.
______________________________
Karmolette O’Gilvie, Mayor
TWENTYNINE PALMS CITY COUNCIL
City Council - Regular Meeting with Closed Session MINUTES City Hall, 6136 Adobe Road, Twentynine Palms, CA 92277
www.29palms.org
September 27, 2022
CLOSED SESSION AGENDA
CALL TO ORDER - Mayor O'Gilvie called the Closed Session to order at 5:15 p.m.
Roll Call - The following Councilmembers were present: Bilderain, Klink, Mintz, Wright, O'Gilvie.
Adjourn to Closed Session - Mayor O'Gilvie adjourned to Closed Session at 5:17 p.m.
CLOSED SESSION
1. Conference with Legal Counsel - Existing Litigation, Government Code Section 54956.9(d)(1) (Bureau of Land Management adv. City of Twentynine Palms, IBLA Appeal 2020-358).
REGULAR SESSION AGENDA
CALL TO ORDER - Twentynine Palms High School student Lesenia called the meeting to order at 6:01 p.m.
Pledge of Allegiance. - Miss Lesenia led the Pledge of Allegiance.
Invocation - Rev. Casey Orndorf gave the Invocation.
Roll Call - The following Councilmembers were present: Bilderain, Klink, Mintz, Wright, O'Gilvie.
Closed Session Announcements - Mayor O'Gilvie announced that by a motion made by Councilmember Klink, seconded by Mayor Pro Tem Wright and carried unanimously with a 5-0 vote, the proposed Settlement Agreement between the Bureau of Land Management (BLM), the Twentynine Palms Band of Mission Indians, and the City was approved.
Changes to the Agenda - None.
ANNOUNCEMENTS
Mayor O'Gilvie announced that these proceedings may be viewed on demand on the City of Twentynine Palms website at www.29palms.org. You may also Live Stream this meeting by going on the City website and clicking on the "Meeting Agendas" link.
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS
2. Introduction of the City's Newest Employees.
City Clerk Villescas introduced Chayanne Ryan, Office Assistant and City Manager Luckino introduced Adessa Bigler, Finance Tech and Keith Gardner, the new Community Development Director.
3. Proclamation Declaring September 15 through October 15, 2022 Hispanic Heritage Month.
Mayor O'Gilvie read the Proclamation in its entirety to the audience.
City Council - Regular Meeting with Closed Session
September 27, 2022
COUNCIL COMMENTS AND REPORTS OF MEETINGS ATTENDED
Councilmember Bilderain welcomed the new employees and mentioned that he attended the Social Equity and Justice Workshop and the Car Show.
Councilmember Klink welcomed the new employees. He mentioned that he attended the Car Show and sponsored a booth, and he attended the Family Value Award Ceremony that the Church of Jesus Christ of Latter-Day Saints presents.
This year it was presented to Dr. Robert and Mary Lombardo from Yucca Valley. He announced that the Department of Motor Vehicles office will be closed from October 11 to November 17 for remodeling.
Councilmember Mintz welcomed the newest employees, he mentioned he attended the Car Show and a MDAQMD meeting in Victorville. He explained his reasoning for abstaining from certain items on the agenda.
Mayor Pro Tem Wright wished one of his kids, Jaden, a Happy Birthday. He mentioned that he attended a Basin Transit meeting, formerly known as MBTA, a LAFCO meeting and he welcomed the new employees.
Mayor O'Gilvie welcomed the new employees and mentioned that she attended the Basin Transit meeting and the Car Show.
CONSENT CALENDAR
4. Waive the Reading of Ordinance and Approve the Reading by Title Only.
5. Approval of Minutes of the City Council Meeting Held on August 23, 2022 and September 13, 2022.
6. Approval of Warrant Register Totaling $1,651,803.62.
7. Approval of Project Phoenix Warrant Register Totaling $538,970.76.
8. Morongo Basin Ambulance Report - August 2022.
9. Legislative Report - September 2022.
10. Acceptance of Work for the 6583-6589 Freedom Way Demolitions.
RECOMMENDATION: The City Council:
1. Accept the 6583-6589 Freedom Way demolitions as completed for a total cost of $57,000.00;
2. Approve the release of all withheld retention in the amount of $2,850.00.
ACTION: A motion was made by Councilmember Mintz, seconded by Councilmember Klink to approve the Consent Calendar as submitted.
Councilmember Mintz abstained from items #7 and 10 due to a conflict of interest.
City Council - Regular Meeting with Closed Session
September 27, 2022
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: BILDERAIN, KLINK, WRIGHT, O'GILVIE
NOES: NONE
ASTAIN: MINTZ FROM ITEMS #7 AND #10
ABSENT: NONE
ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION – None.
PUBLIC HEARING
11. Tourism Business Improvement District (TBID).
RECOMMENDATION: The City Council hold a Public Hearing to adopt Resolution No. 22-25 confirming the levy of assessments.
City Manager Luckino presented the Staff Report.
Mayor O'Gilvie opened the Public Hearing.
Veno Nathraj, Twentynine Palms, requested that the TBID Board be recalled.
Michael Usher, Twentynine Palms and President of the Downtown Business Association, spoke regarding the proposed TBID budget and several cuts impacting sponsorship of community events and special projects that can benefit local businesses and residents.
Sara Beck, Twentynine Palms, spoke about the proposed increase in the TOT wanting to know where the TOT funds are going and feels there is a disconnect.
Cindy Bernard, Twentynine Palms, spoke in regard to the TOT increase. She mentioned that she is for the increase but agrees with Mr. Usher about the cuts for events.
Mary Jane Binge, Twentynine Palms, commented on the letter that was sent out to the business owners, VHR owners and hoteliers. She mentioned that she was confused, thinking that this meeting was going to be for the community to come and express their opinions and ideas on how the TBID money should be spent.
Chris Carr, Twentynine Palms VHR owner and resident of Orange County, spoke regarding the cap of 500 VHRs which ties into TOT revenue.
Eileen Leslie, Twentynine Palms, agreed with Ms. Binge in where we are in the process with the TBID budget.
She commented that she feels this item be tabled and have a meeting where everyone can give opinions and ideas on how the money should be spent and then make a decision at the next meeting.
Sara Beck, spoke again expressing that with the hotels, motels, and Air BnBs, the City needs to focus on how to keep these occupied all the time. How do we first keep them booked if they are ones that contribute to the TOT.
Ash Maharaj, Twentynine Palms and TBID Board Member, mentioning that the TBID is very transparent, with a very detailed marketing plan. She mentioned that TBID sponsors many community events. She mentioned she appreciates all the comments that were made here and encourages the community to come to their meetings and express these opinions there.
City Council - Regular Meeting with Closed Session
September 27, 2022
Octavious Scott, Twentynine Palms, expressed that the important takeaway here is that the public is asking for more time and table the decision. He feels it is rude to suggest that the public attend the meetings.
City Manager Luckino gave more insight on the TBID.
Councilmember Mintz commented on the update of the TBID website. He then asked Marketing Director Dusastre to come to the podium. He asked her about event sponsorship and Director Dusastre commented that TBID receives sponsorship requests all the time.
Councilmember Bilderain suggested that maybe it's time to include business owners on the Board. City Manager Luckino mentioned that the change would have to be made by Ordinance. Councilmember Mintz suggested this be brought back to the City Council at the Strategic Planning Workshop. Councilmember Bilderain suggested that a subcommittee be formed to try it out and see if it will work, then an action item could be added in the future to change the Ordinance. The consensus of the City Council was to add a two-member subcommittee.
After a lengthy discussion, a motion was made by Mayor Pro Tem Wright, seconded by Councilmember Mintz to adopt Resolution No. 22-25 confirming the levy of assessments.
The above motion was carried by the following:
ROLL CALL VOTE:
AYES: BILDERAIN, KLINK, MINTZ, WRIGHT, O'GILVIE
NOES: NONE
ASTAIN: NONE
ABSENT: NONE
DISCUSSION AND POTENTIAL ACTION ITEMS
12. Business Loan Improvement Program - Future Agenda Item Request.
RECOMMENDATION: Staff is looking for Policy Direction on this future agenda item request.
Community Development Director Gardner presented the Staff Report.
Mayor Pro Tem Wright suggested that the Program should be expanded throughout the City to all commercial property owners until the funds exhaust.
City Manager Luckino mentioned that a business owner was inquiring if the program could be utilized on the interior of the building.
Cindy Bernard, Twentynine Palms, asked if a survey was done to determine how these funds were allowed to be used and which businesses were renters or owner occupied. She also suggested using this program to purchase a PA system for Project Phoenix.
Eileen Leslie, Twentynine Palms, believes that the Loan Program should be for exterior, not interior.
Veno Nathraj, Twentynine Palms, agrees that the Program should be extended and kept for the exterior.
Mary Jane Binge, Twentynine Palms, suggested a beautifying project and agreed that this program should be applied to the outside, not the inside.
City Manager Luckino confirmed that suggestions and mentioned that this will be brought back as an action item to the next meeting.
City Council - Regular Meeting with Closed Session
September 27, 2022
FUTURE COUNCIL INITIATED ITEMS
1. Discussion on adding sidewalk and picnic tables in Veterans' Park.
2. Voting for Mayor as opposed to current selection process.
3. Seasonal Banners throughout the City.
4. Maintained vs. Non-Maintained roads.
5. Vacation Home Rentals education component.
Mayor O'Gilvie requested that the entire VHR policy be brought back to the City Council. Councilmember Mintz seconded the item.
City Manager Luckino asked to eliminate item #1 as this project will be included in the Affordable Housing grant that is being proposed.
PUBLIC COMMENTS
Cindy Bernard, Twentynine Palms, asked the City Council not to take the 500 cap away on the VHRs and secondly, she mentioned the vouchers that are available for 15% off your ticket if you visit Grnd Sqrl after the City Council Meeting.
Veno Nathraj, Twentynine Palms, spoke about discrimination in the community.
CITY MANAGER UPDATE
City Manager Luckino gave the following updates: Staff is working on Affordable Housing, the Morongo Unified School District announced that they will not be launching the culinary program yet as they have not received all of the equipment for the kitchen, the education within the VHR Ordinance has launched and he is pleased to announce that the Neighborhood Safety Improvement Project has been awarded. He mentioned that Staff continues to work with Burrtec in regard to SB1383 to include organics.
Mayor Pro Tem Wright announced that the Mayor and Mayor Pro Tem's Toys for 29 Golf Tournament will be held December 3rd.
Councilmember Mintz inquired about the median on Twentynine Palms Highway and Encelia. City Manager Luckino mentioned that Caltrans will be issuing the permit on Wednesday, the 28th.
Councilmember Klink reminded everyone that Community Clean Up Day is this Saturday, October 1st from 8:00 - Noon.
Mayor O'Gilvie reminded everyone that Pioneer Days Kickoff is also this Saturday, October 1st beginning at 4:00 p.m.
ADJOURNMENT - Mayor O'Gilvie adjourned the meeting at 7:47 p.m.
Respectfully submitted,
Cindy Villescas, CMC
City Clerk/PIO
STAFF REPORT
TO: City Council
FROM: Recreation Programs Supervior
FOR MEETING: Oct 11 2022
SUBJECT: Permanent Bleachers at Project Phoenix.
RECOMMENDATION:
The City Council award a construction services contract (Permanent Bleachers at Project Phoenix Gymnasium/Community Center) to Herk Edwards, Inc., in the amount of $87,940.
ORDER OF PROCEDURE:
Request Staff Report (Recreation Division Manager
Presenting)
Council Questions of Staff
Receive Public Comment
Council Discussion
Motion/Second
Call the Question
ATTACHMENTS:
• Proposal for Design &
Installation of Permanent
Telescoping Bleachers
• RFP Permanent Bleachers
BACKGROUND:
This project is for permanent fixtures for the new Community Center/gymnasium, using Community Development Block Grant funds for Fiscal Year 2021/2022 that was originally included in the design of the facility also known as Project Phoenix. The facility currently offers transportable tip and roll bleachers that are used by spectators during sports and community events. The current bleachers alone do not provide enough seating space for sporting events that take place inside the facility.
The invitation for sealed bids for the project was noticed for thirty days. One company responded and bid the project.
Herk Edwards, Inc. provided the only bid with all requirements. The company has an extensive history of supplying and installing specialty products in California since 1964. Herk Edwards has all of the necessary licenses, DIR registration, workers compensation insurance, etc.
Bid amount is $87,940.00.
ENVIRONMENTAL:
None.
ALTERNATIVES:
The City Council could choose not to award the construction services contract and forfeit the CDBG funding.
FISCAL IMPACT:
The bid will exceed the available CDBG funding of $85,000. Additional funds in the amount of $2,940.00 will be needed to completely fund the project. The additional funding for the project is available through the Community Services budget.
Herk Edwards, Inc.
5°3"“§ 3‘ E‘¥“'l““°"* 5Pe°"’“5‘5 Serving California since 1964 HE] is a California DGS SB & SB—PWand LAUSD SBE Certified Company September 15, 2022
City of Twentynine Palms
Parks & Recreation Department
74362 Joe Davis Drive,Twentynine Palms, CA92277
Phone: 760-367-7562
Attn: Frank Luckino — fluckino@29pa|ms.org
Re:
Subj.: Furnish and install Telescoping Bleachers by Hussey Seating Company Dear Frank,
Please see the following submission for the Herk Edwards, lnc response to RFP — Proposal for Project Phoenix Community Center Design & installation of Permanent Telescoping Bleachers — CDBG2021/2022 Qualifications:
Herk Edwards, lnc. has been supplying and installing specialty products in Southern California since 1964. We specialize in Fixed and Telescopic Seating products and serve as the local dealer for the Hussey Seating Company.
Our customer base consists of both the private and public sector. We have fulfilled more than 10,000 contracts with K-12 schools, Colleges, Universities, Parks and Recreation, City, County and State departments, Government and Military Installations as well as private public and commercial facilities. We average between $8—$10Min revenue per year. We currently employee 8 fulltime employees with over 60 years of combined experience with our products and customer base. We also have a team of Certified Hussey Seating Company installers that ensure the highest quality service, care, and communication. Herk Edwards, Inc. is a private fami|y—ownedbusiness with a long-standing reputation in the Southern California market.
implementation Plan:
The key to success on any project is communication. Given the supply chain and logistics challenges we are currently experiencing this has become even more critical. Our staff will communicate early and often about the requirements to keep this project on track. We believe having a solid kickoff meeting to assign responsibilities and process to ensure we stay on track with our schedule. We would ask the City of Twentynine Palms, Parks & Recreation Department to supply a project coordinator or liaison to work with our Project Management staff to assist with supplying end user requirements to meet these milestones. 23822 Hawthorne Blvd. Suite 201 Q Torrance, California 90505 Phone: (310) 373-0543 ‘Email:
[email protected] 9 Web: www.herkedwards.com CA Lic 232760 9 DIR1000001262
Hark Edwards,Inc.
5°*‘m‘5 8‘ E‘¥“""“°“t sP°°‘a"5‘9 Serving California since 1964 References:
See attached recent projects completion list.
Manufacturer Team:
Travis Edwards, sales representative. Pre—manufacturingcommunications.
Stephen Stamer, senior project manager. With over 35 years’ experience at Herk Edwards, Inc., Stephen has been the point of contact during manufacturing and installation processes.
Scope of Services:
See attached quote and included shop drawings.
Hourly Rate Schedule:
See attached Hourly Labor Rate Schedule.
Thank you for your consideration, and please feel to Contact me if you have any questions or require additional information of any kind.
Sincerely,
President 23822 Hawthorne Blvd. Suite 201 O Torrance, California 90505 Phone: (310) 373-0543 0 Email:
[email protected] 9 Web: www.herkedwards.com CA Lic 232760 0 DlR 1000001262
I - I
’
l ’
‘
seating & Equtm specialists Serving California since 1964 September15,2022
FrankLuckino
CityManager
CityofTwentyninePalms
6136AdobeRoad
TwentyninePalms,CA92277
Email:[email protected]
Subject: Proposalfor ProjectPhoenixCommunityCenterDesignand Installationof PermanentTelescopingBleachers- CDBG2021/2022 Frank,
We are pleasedto submitthisquotationcoveringtheBleachersforthe aboveproject.
GymBleachers
ScopeofWork: Furnishand installTelescopingBleachersbyHusseySeatingCompanyperthe attachedproposaldrawingsand as follows:
Three(3)BankHusseyMAXAMseriesModelMXM26WallAttachedManualTelescopingBleachers 6 rowsx41’-3"long(BankA),6 rowsx 17’-0"long(BanksBand C) 9-5/8"rise
22"rowspacing
self-storingend guardrails
clearUV-?nishdecks
two(2)aisles(BankA)one (1)aisle(BanksBandC)withintermediatesteps andaislerails CourtsideXC10"polymerseats
Sure-Stepfrontsteps
vinylend curtains
Deliveredand installed,tax included $87,940.00
0 O O O O O O O I
Does not includecustom XtremeLogoGraphics. Pricingavailableforthis optionwiththe receipt of Logoartwork,size,locationand guantity information.
CIarificationslExceptionsIExc|usions:
Electricalsupply and finalterminationsare excluded. Permits and bonds are excluded.Pricesquotedare basedon furnishingthe equipmentlistedaboveinaccordancewiththemanufacturerspublishedstandardconstructionspeci?cationsand installationinstructions(unlessothen/visenoted)and speci?callyexcludesfurnishingproductsbyanyothermanufacturer,orto Tam/«'4Eda/M44
TravisEdwards HERKEDWARDS,lNC.23822 Hawthorne Blvd. Suite 201 O Torrance, California 90505 Phone: (310) 373-0543 0 Email:
[email protected] 9 Web: www.herkedwards.com CA Lic 232760 6 DlR1000001262 « _«.
Herk adwaurs,Inc.
Seating 8: EquipmeSpecialists
l
l
Serving California since 1964
SCOPEOFWORK/QUOTATlON
ATTACHMENTA
Terms &Conditions:
1. Pricesquotedare validfora periodof60 daysfromthe dateofquotationorbid,and are based on shipmentofthe materialsnotlaterthan 6/1/2023.Escalationshallbe addedat a ratenotto exceed .75%permonth(orportionthereof)forshipmenthereafter,basedon material costs, laborrates and fuelcosts/surchargesineffectat timeofexpiration.
Submittalsto be45-60daysfromreceiptofcontractdocuments,plansand speci?cations,or, 35daysfromreceiptofelectronicplan?lesin AutoCADorsimilarindustry-standard?leformat.Primecontractorsshallwaiveanycontractualrequirementsforsubmittalsinlessthan60 calendardaysforsubmittalsbasedonhardcopyplansand speci?cations.
HerkEdwards,lnc.does not performany onsiteworkand is notsignatoryto any laboragreements.Allon sitelaborshallbe performedby a lowertiersubcontractorand unlessotherwisenoted,pricesquotedincludeinstallationlabor basedoncurrentPrevailingWageor, Union (orPSA)rates.
Thecost ofany requiredbondsisnotincludedinthisproposal.IfPerformanceand Paymentbondsare required,add 1%toquoteprice(s). insurancecoverageto be HEl'sstandardGeneralLiability($2,000,000aggregate),ExcessLiability($4,000,000aggregate)andWorker's Compensation.Anyrequiredcoverage inexcess oftheseamounts,ifobtainable,willbe providedat additionalcost.AdditionalInsured formsCG2010andCG2037(only)willbe providedifrequiredbythe contract. Anyrequiremento addtheArchitectas additionalinsured isexcluded.Anyrequiremento provideProfessionalLiabilityor ErrorsandOmissionsinsuranceisexcluded.
Shipmentof equipmentshall be approximately90-120calendardays after receiptof approvedshop drawings,colorselectionsand veri?cationof?elddimensions(orPrimeContractor's/Owner'srelease inlieuthereof).Equipment,including“DeferredApproval”itemswill be manufacturedand shippedon a "just-in-time”basis in accordancewiththe PrimeContractor'sconstructionschedule.Production schedulesforequipmentquotedare locked75 calendardays priorto the shipdate establishedto meetthe PrimeContractor'son-site constructionschedule.Shouldthe PrimeContractoralterthe schedulewithinthe75-dayproductionwindow,or,shouldthe sitenotbe ready to acceptinstallationofthe equipmentforany reasonwhatsoever,or,shouldequipmentnotbe approvedforinstallationatscheduledtime ofshipment,the PrimeContractorshallbe responsibleforunloadingand storageofmaterialsintoa secure,drylocationin.or adjacentto, theworkarea, or, forallhandlingand storage costs associatedwithunloadingand/orstorageofmaterialselsewhere.
Paymentterms shallbe Net 30 daysfromthe date progress billingsare submitted,providedall billingpaperworkhas been correctly submittedas requiredbythe SubcontractAgreementor PurchaseOrder/Agreement.
Thisofferisbasedoncontractualterms andconditionsas setforthintheprojectcontactdocuments.Additionaltermsandconditionsand/or third-partycontracts are specificallyexcludedor are subjectto reviewand acceptance by HerkEdwards,Inc.and maybe subjectto additionalcost.
T/rm/«'4Eoéwmdxz
Travis Edwards
HERKEDWARDS,INC.
23822 Hawthorne Blvd. Suite 201 O Torrance, California 90505 Phone: (310) 373-0543 0 Email:
[email protected] 9 Web: www.herkedwards.com CA Lic 232760 0 DIR1000001262
CITY OF TWENTYNINE PALMS
REQUEST FOR PROPOSAL
PROJECT PHOENIX
COMMUNITY CENTER
CDBG 2021/2022
Permanent Manual Telescoping Bleachers
DUE DATE: 5:00 PM on Thursday, September 15, 2022
Project Phoenix Design and Installation of Permanent Telescoping Bleachers RFP 1 I. INTRODUCTION
The City of Twentynine Palms (City) is seeking proposals from qualified manufacturer’s, which are regularly engaged full-time in the manufacture or production of this and similar items and have a history of successful manufacture or production acceptable to the owner (City). Proposals will provide for design and installation services for the Project Phoenix Community Center Building’s permanent, manually operated telescoping bleachers (Project).
The manufacturer will act as the project manager responsible for architecture, design, engineering and installation required for securing entitlements and building permits, construction documents, construction observation and services associated with the design, manufacture and installation of permanent telescoping manually operated bleachers at the Project Phoenix Community Center Gymnasium in the downtown area of the City.
These services will be funded in part or in full, through a grant from the federal Community Development Block Grant Program (CDBG), administered by the City of Twentynine Palms. The primary purpose of CDBG program is the development of viable communities by providing decent housing, suitable living environments, and expanding economic opportunities, principally for low and moderate-income people. The manufacturer selected will be responsible for complying with certain terms and conditions of the federal grant (see attachment - Section 3 clause).
II. DESCRIPTION OF THE SYSTEM
The bleacher system shall be comprised of manually operated, multiple tiered, closed deck seating rows operating on the telescopic principle and stacking vertically in minimal floor area when not in use.
The first moving row shall be secured with both friction and mechanical locks. All other rows shall be mechanically locked, operable only upon unlocking and cycling the first row.
Each bleacher row shall be comprised or risers, seat and deck components, and a complete set of supportive columns and braces. The operative system shall incorporate a locking system permitting the discretionary securement of one, several or all rows in the use or stacked position.
Bleachers shall be designed for use in one (1) partial open position and shall include a positive locking mechanism in addition to rolling frame row locks.
Bleachers shall provide seating areas for ADA or wheelchair seating spaces, team seating, scorer’s areas, or other truncated clear areas for an event-by-event basis.
Project Phoenix Design and Installation of Permanent Telescoping Bleachers RFP 2 The bleacher system shall be installed at the city’s Project Phoenix Community Center Building/gymnasium located in downtown Twentynine Palms.
III. DESCRIPTION OF SERVICES
The City seeks professionals with expertise in performing the services described herein.
Qualified manufacturer shall demonstrate experience in providing architectural and engineering services to include the design and installation of projects similar in nature to the Project. These services may include, but not be limited to, the following:
1. Design Plans: Complete shop drawings shall be submitted based on facility design plans, quantities, sizes, and design criteria of product requested, etc., (attached).
Submittals:
One (1) set of conceptual design plans or shop drawing incorporating the following:
• Conceptual plans, sections, perspectives, and diagrams as necessary to illustrate the design concept listed in the description of the bleacher system for architectural review and approval;
• Submit data sufficient to demonstrate compliance with specifications and drawing requirements.
• Submit manufacturer’s descriptive literature and installation instructions. • Submit operating and maintenance manuals.
• Submit samples of products and materials where options of color, finish, pattern or texture exist.
2. Bidding: Provide clarifications during bidding process; coordinate with the owner to address questions or issues; communicate with owner regarding appropriate answers to questions.
3. Services During Construction: Review and respond to requests for information; and conduct final walk-thru and provide operating instructions demonstration after installation completion.
IV. PROPOSAL REQUIREMENTS
Proposals are to be prepared in such a way as to provide a straightforward, concise description of capabilities to satisfy the requirements of the Request for Proposal (RFP).
Project Phoenix Design and Installation of Permanent Telescoping Bleachers RFP 3 Emphasis should be concentrated on the responsiveness to the RFP requirements, and on completeness and clarity of content. Proposals should contain no more than twelve (12) single sided pages, excluding the cover letter, exhibits, resumes, and wage schedule.
The Proposal shall include the following:
1. Cover Letter. The Cover Letter shall be on company/manufacturer letterhead, signed by a duly authorized officer, employee, or agent of the company/manufacturer. The Cover Letter shall include a statement that the Proposal is being submitted as a response to this RFP; an introduction of the company or manufacturer including legal name, address and telephone number of office headquarters and the local office where work will be performed; the type of business entity [sole proprietor, partnership, or corporation (including state of incorporation)]; and date founded.
2. Qualifications. Describe the overall capabilities of the company or manufacturer.
Include a brief summary of the manufacturer history, top-level management and ability of persons assigned to perform the work. Include a description of the services provided, and how these services are similar in nature to the work being requested.
3. References. Provide a minimum of three (3) references of recent projects where the manufacturer provided services similar to the Project. Provide a short description of the work performed, dates of service, names, addresses, telephone numbers, e-mail, locations, remedies, and contract amount.
4. Manufacturer Team. Identify the project manager, principal staff and support staff that will be performing the work required. Include an organizational chart. Provide a work history résumé for each of the key personnel, including applicable training, licensing, and/or certifications, descriptions of projects worked upon, dates, project costs, and duties performed by the individual on the projects.
5. Scope of Services. Provide a detailed scope of services based on the general outline provided above in Section II Description Of The System. Include fee and time duration.
Additional detail of services and new services should be provided as appropriate.
6. Hourly Rate Schedule. Include the manufacturer’s Hourly Rate Schedule for any and all personnel positions that may be involved in this Project.
V. PROPOSAL SUBMISSION
The deadline for submitting a proposal is 5:00 pm on Thursday, September 15, 2022. Any proposal received after this time will be returned unopened.
Project Phoenix Design and Installation of Permanent Telescoping Bleachers RFP 4 Submit one (1) original plus four (4) copies of the Proposal, in a sealed envelopes/packages and shall be clearly marked PROPOSAL FOR PROJECT PHOENIX COMMUNITY CENTER DESIGN AND INSTALLATION OF PERMANENT TELESCOPING BLEACHERS - CDBG 2021/2022. The envelopes/packages, which states the manufacturer’s name and address, and shall be clearly addressed as follows:
City of Twentynine Palms
Attn: Cynthia Villescas, City Clerk
6136 Adobe Road
Twentynine Palms, CA 92277
Proposals will be rejected if not addressed and packaged as indicated above. Faxed or emailed proposals will not be accepted.
VI. CONTACT INFORMATION
The City contact for this Request for Proposal is Mr. Frank Luckino, City Manager, and is the sole point of contact for this procurement. All communication shall be in writing and submitted to Mr. Luckino via e-mail at [email protected]. Questions will be accepted up to seven (7) calendar days from the due date of the proposal submission.
VII. SELECTION PROCESS
The evaluation process will be as follows:
1. The proposals submitted will be evaluated based on the manufacturer’s qualifications, experience, references, and cost. This will be the initial ranking.
2. The City shall select the lowest-responsible manufacturer/contractor (determined solely on submitted proposal) without further evaluation. City staff will make recommendations to the City Council, which reserves the right to reject any or all proposals. If selection with the lowest-responsible manufacturer/contractor does not result in an executed contract, the City will move onto the second-ranked lowestresponsible manufacturer/contractor. If this does not result in an executed contract, the selection process will be repeated until a contract is executed successfully. The selection process will be completed when a contract is executed.
3. The City reserves the right to select a manufacturer that it deems is the lowestresponsible manufacturer/contractor to perform this work. Upon selection, the manufacturer/contractor shall execute a Professional Services Agreement in the form as prescribed by the City.
Project Phoenix Design and Installation of Permanent Telescoping Bleachers RFP 5 VIII. ADDITIONAL INFORMATION
1. The City will not be liable for any costs incurred in the preparation of proposals or incidental to the preparation and presentation of qualifications, orally or in writing. All costs for preparation, submission of proposals, submission of additional information, deliver, and/or any other aspect of the proposal incurred by the manufacturer are the sole responsibility of the manufacturer.
2. All proposals and materials submitted become the property of the City. All proposals received are subject the “California Public Records Act” (found at Government Code sections 6250 et seq.). If any manufacturer’s response contains trade secrets, or other information, which is proprietary by law, that manufacturer must notify the City of its request to keep said information confidential. This request must be made in writing and attached to the cover letter. The proprietary or confidential data shall be readily separable from the response in order to facilitate eventual public inspection of the nonconfidential portion of the response. If a public records request is made to the City relative to the manufacturer’s response, the City will review the manufacturer’s request for confidentiality and notify the Proposer in writing of its decision as to whether confidentiality can be maintained under law.
3. The manufacturer shall provide the City with any additional information the City deems necessary to accurately determine ability to perform services proposed. During evaluation and selection, the City may conduct any reasonable inquiry from any and all sources concerning the proposal, including reference verification to determine the responsibility of the manufacturer. Furthermore, submission of proposal constitutes permission by the manufacturer for the City to verify all information contained therein.
Failure to comply with any request for additional information may disqualify the manufacturer from further consideration. Such additional information may include evidence of financial ability to perform.
4. The Request for Proposal does not commit the City to enter into an Agreement with any manufacturer. The City makes no representation that any Agreement will be awarded.
The City may re-issue the RFP at any time for any reason at its sole discretion. In the event of award, the City makes no guarantee to expend any agreement amount to its maximum. Award of an Agreement will require City Council authorization. In the event the selected manufacturer is unable to perform the services for any reason or is dismissed from the project, the City may select another manufacturer from this proposal solicitation.
Attachments:
1. Construction Contract Labor Compliance Provisions (Attachment D)
2. Section 3 Clause (required for contracts containing CDBG funding)
3. Project Description and Requirements
Project Phoenix Design and Installation of Permanent Telescoping Bleachers RFP 6 4. Design Plans
ATTACHMENT 5
1 Section 3 clause
This clause to be included in all RFPs/ RFQs & publications A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to lowand very low-income persons, particularly persons who are recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations.
C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin.
D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135.
E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts.
ATTACHMENT 5
2 G. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indianowned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b).
STAFF REPORT
TO: City Council
FROM: City Engineer
FOR MEETING: Oct 11 2022
SUBJECT: Accept the final map for Parcel Map No. 20360.
RECOMMENDATION:
The City Council accept and approve the final map for Parcel Map No. 20360 ORDER OF PROCEDURE:
Request Staff Report (City Manager Presenting)
Council Questions of Staff
Receive Public Comment
Council Discussion
Motion/Second
Call the Question
ATTACHMENTS:
• PM 20360 Title
• PM 20360
BACKGROUND:
The applicant, Adam Wininger, applied for Tentative Parcel map No. 20360, which merged 39 vacant lots into one 9.21-acre parcel. The applicant requested a slight modification in Condition E5, which required extra 10' dedication on the south side of Foothill Drive to have the extra dedication on the north side of Foothill. With that one modification, the City Engineer has determined that the applicant has complied with all conditions placed on Tentative Parcel Map No. 20360 that are required prior to final map approval.
The project is located between Bullion Avenue and Split Rock Avenue, south of Boling Drive and North of Foothill Drive. The property is identified as APN's: 0616-261-01 through 12, 22, 23, 24 and 0616-262-01 through 24.
Per the Development Code, the Community Development Director reviewed and approved Tentative Parcel Map No. 20360 on March 10, 2022, and found it exempt from the California Environmental Quality Act.
ENVIRONMENTAL:
No further environmental determinations are necessary.
ALTERNATIVES:
The City Council could choose not to approve the map.
FISCAL IMPACT:
All fees have been paid by the applicant.
STAFF REPORT
TO: City Council
FROM: City Engineer
FOR MEETING: Oct 11 2022
SUBJECT: Neighborhood Safety Project, HSIPL-5448(009).
RECOMMENDATION:
The City Council:
1. Adopt the design of the project represented by the Plans and Specifications for the "Twentynine Palms Neighborhood Safety Project",
2. Award the contract for the "Twentynine Palms Neighborhood Safety Project" to VSS International, Inc., for the amount of $781,120.00 and authorize a 10 percent contingency in the amount of $78,112, for a total contract amount of $859,232.00.
3. Authorize the City Manager to execute all documents necessary to enter into the contract, including any necessary amendments thereto.
ORDER OF PROCEDURE:
Request Staff Report (City Manager Presenting)
Council Questions of Staff
Receive Public Comment
Council Discussion
Motion/Second
Call the Question
ATTACHMENTS:
• Neighborhood exibit
• CTWP-0002_100PercentSetcompressed signed_compressed
8.5x11
•
GeneralProvisions_v2_02012022
copy
• TechnicalSpecs_v2_02012022
copy
BACKGROUND:
On September 22, 2022, four bids were received for the "Twentynine Palms Neighborhood Safety Project." The project includes upgrading intersection pavement markings, installing advance flashing beacons for advance warning, and chip sealing various streets. The project's location is within various residential areas south of Two Mile Rd, North of Baseline Rd, East of Encelia Ave, and west of Elm Ave.
See attached location map. Page 33 of 234
The following are the bid results:
Company Bid Amount
VSS International, Inc. $781,120.00
Pavement Coatings $795,597.34
Doolittle Construction $914,408.38
Copp Contracting $932,667.76
The project was advertised in accordance with the California Public Contracts Code. All bids came in below the engineer’s estimate of $1,039,547.79.
ENVIRONMENTAL:
The environmental document was approved by Caltrans on October 1, 2021.
ALTERNATIVES:
The City Council could reject the bids and re-advertise the project.
FISCAL IMPACT:
Both the design and the construction phases of the project are 100% Federally Funding as a result of an approved HSIP grant application.
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CITY OF TWENTYNINE PALMS
NEIGHBORHOOD SAFETY PROJECT
HSIPL-5448(009)
BID AND CONTRACT DOCUMENTS
May 19, 2022
Frank Luckino, City Manager Date
TABLE OF CONTENTS
SECTION 100 – NOTICE INVITING BIDS.......................................................................1 SECTION 200 – INSTRUCTIONS TO BIDDERS.............................................................3 SECTION 300 – BID FORM...........................................................................................10 SECTION 305 – CONTRACTOR’S CERTIFICATE REGARDING WORKERS’ COMPENSATION ..........................................................................................................13 SECTION 310 – BID BOND ...........................................................................................14 SECTION 320 – NON-COLLUSION DECLARATION....................................................17 SECTION 330 – BIDDER INFORMATION AND EXPERIENCE FORM ........................18 SECTION 340 – DESIGNATION OF SUBCONTRACTORS..........................................24 SECTION 350 – IRAN CONTRACTING ACT CERTIFICATION....................................26 SECTION 400 – CONTRACT FOR CONSTRUCTION..................................................27 SECTION 510 – PERFORMANCE BOND .....................................................................39 SECTION 520 – PAYMENT BOND................................................................................44 SECTION 600 – GENERAL CONDITIONS....................................................................48 ARTICLE 1. DEFINITIONS.....................................................................................................................48 ARTICLE 2. CONTRACT DOCUMENTS ...............................................................................................49 ARTICLE 3. EXISTENCE OF UTILITIES AT THE SITE ........................................................................50 ARTICLE 4. SCHEDULE........................................................................................................................52 ARTICLE 5. SUBSTITUTIONS...............................................................................................................53 ARTICLE 6. SUBMITTALS.....................................................................................................................54 ARTICLE 7. MATERIALS .......................................................................................................................55 ARTICLE 8. CONTRACTOR’S SUPERVISION .....................................................................................55 ARTICLE 9. WORKERS.........................................................................................................................55 ARTICLE 10. SUBCONTRACTORS.................................................................................................55 ARTICLE 11. PERMITS AND LICENSES.........................................................................................56 ARTICLE 12. UTILITY USAGE .........................................................................................................56 ARTICLE 13. INSPECTION FEES FOR PERMANENT UTILITIES..................................................56 ARTICLE 14. TRENCHES ................................................................................................................57 ARTICLE 15. DIVERSION OF RECYCLABLE WASTE MATERIALS ..............................................58 ARTICLE 16. REMOVAL OF HAZARDOUS MATERIALS................................................................58 ARTICLE 17. SANITARY FACILITIES..............................................................................................58 ARTICLE 18. AIR POLLUTION CONTROL ......................................................................................58 ARTICLE 19. COMPLIANCE WITH STATE STORM WATER PERMIT...........................................58 ARTICLE 20. CLEANING UP............................................................................................................59
ARTICLE 21. LAYOUT AND FIELD ENGINEERING........................................................................60 ARTICLE 22. NOISE.........................................................................................................................60 ARTICLE 23. TESTS AND INSPECTIONS.......................................................................................60 ARTICLE 24. PROTECTION OF WORK AND PROPERTY.............................................................61 ARTICLE 25. CONTRACTORS MEANS AND METHODS...............................................................62 ARTICLE 26. INSPECTOR’S FIELD OFFICE...................................................................................62 ARTICLE 27. AUTHORIZED REPRESENTATIVES.........................................................................63 ARTICLE 28. LABOR........................................................................................................................63 ARTICLE 29. INSURANCE...............................................................................................................66 ARTICLE 30. TIME FOR COMPLETION AND LIQUIDATED DAMAGES........................................69 ARTICLE 31. PAYMENT...................................................................................................................70 ARTICLE 32. CHANGES AND EXTRA WORK.................................................................................73 ARTICLE 33. OCCUPANCY .............................................................................................................76 ARTICLE 34. INDEMNIFICATION ....................................................................................................76 ARTICLE 35. RECORD (“AS BUILT”) DRAWINGS..........................................................................76 ARTICLE 36. RESOLUTION OF CONSTRUCTION CLAIMS ..........................................................77 ARTICLE 37. CITY’S RIGHT TO TERMINATE CONTRACT............................................................78 ARTICLE 38. WARRANTY AND GUARANTEE................................................................................81 ARTICLE 39. DOCUMENT RETENTION & EXAMINATION ............................................................82 ARTICLE 40. SOILS INVESTIGATIONS ..........................................................................................82 ARTICLE 41. SEPARATE CONTRACTS..........................................................................................82 ARTICLE 42. NOTICE AND SERVICE THEREOF...........................................................................83 ARTICLE 43. NOTICE OF THIRD PARTY CLAIMS .........................................................................83 ARTICLE 44. STATE LICENSE BOARD NOTICE............................................................................83 ARTICLE 45. INTEGRATION............................................................................................................83 ARTICLE 46. ASSIGNMENT ............................................................................................................84 ARTICLE 47. CHANGE IN NAME AND NATURE OF CONTRACTOR’S LEGAL ENTITY ..............84 ARTICLE 48. ASSIGNMENT OF ANTITRUST ACTIONS ................................................................84 ARTICLE 49. PROHIBITED INTERESTS.........................................................................................84 ARTICLE 50. LAWS AND REGULATIONS.......................................................................................84 ARTICLE 51. PATENT FEES OR ROYALTIES................................................................................85 ARTICLE 52. NOTICE OF TAXABLE POSSESSORY INTEREST...................................................85 SECTION 700 – SPECIAL CONDITIONS......................................................................86 TECHNICAL SPECIAL PROVISIONS..................................................................................................119 PLANS AND DRAWINGS ....................................................................................................................120 STATE AND FEDERAL FUNDING DOCUMENTS AND RELATED AGREEMENTS..........................121
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SECTION 100 – NOTICE INVITING BIDS
The City of Twentynine Palms (“City”) will receive sealed bids for the Neighborhood Safety Project (“Project”) at the office of the City Clerk no later than July 25, 2022 at 10:00am, at which time or thereafter bids will be opened and read aloud. Bids received after this time will be returned unopened. Bids shall be valid for sixty (60) calendar days after the bid opening date.
REQUESTS FOR INFORMATION: All requests for information (RFI) must be submitted in writing and received no later than July 11th, 2022 at 5:30pm. Questions can be sent by email to [email protected] or by mail to:
City of Twentynine Palms
Neighborhood Safety Project
Engineering Department
6136 Adobe Road, Twentynine Palms, CA 92277
DESCRIPTION OF WORK: The Project generally consists of providing necessary labor, equipment and materials for the application of Chip Seal and Fog Seal along Larrea Ave, as well as portions of Foothill Dr, Manzanita Ave, Eucalyptus Ave, Estrella Ave, and Alpine Ave. In addition, the contractor will remove/replace signs, install new signs, install thermoplastic striping, and install flashing beacons as specified in these specifications and the special provisions, and as directed by the City Engineer. Work on the Project shall be completed within 40 working days.
AVAILABILITY OF CONTRACT DOCUMENTS: Bids must be submitted on the City’s Bid Forms.
Bidders may obtain a digital format of the Contract Documents at http://www.ebidboard.com which can be accessed directly from the City’s website. Please note that in order to be considered a plan holder, Contractor must still register as a plan holder on ebidboard.com. A hard copy of the bid documents will be available for review at the City Clerk’s office.
ENGINEER’S ESTIMATE: $1,000,000 - $1,250,000
BID GUARANTEE: Bids must be accompanied by cash, a certified or cashier’s check, or a Bid Bond in favor of the City in an amount not less than ten percent (10%) of the submitted Total Bid Price.
PAYMENT AND PERFORMANCE BONDS: The successful bidder will be required to furnish the City with Payment and Performance Bonds equal to 100% of the Contract Price, prior to execution of the Contract. All bonds are to be secured from a surety that meets all of the State of California bonding requirements, as defined in Code of Civil Procedure section 995.120, and is admitted by the State of California. The successful Bidder shall also be required to meet the insurance requirements of the Authority, as set forth in the General Conditions. All of said bond and insurance requirements shall be completed and submitted to the Authority within twenty-one (21) consecutive calendar days from the date the Authority gives written intentions to award the Contract. Failure to meet these requirements within the allotted time shall be sufficient cause for rejection of Bid.
SUBSTITUTE SECURITIES FOR RETENTION MONEYS: Pursuant to Public Contract Code section 22300, the successful bidder may substitute certain securities for funds withheld by City to ensure his performance under the Contract.
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Neighborhood Safety Project
PREVAILING WAGE RATES: The Director of Industrial Relations has determined the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract which will be awarded to the successful Bidder, copies of which are on file and will be made available to any interested party upon request at the City Clerk’s office or online at http://www.dir.ca.gov. A copy of these rates shall be posted by the successful Bidder at the job site. The successful Bidder and all subcontractor(s) under him shall comply with all applicable Labor Code provisions, which include, but are not limited to the payment of not less than the required prevailing rates to all workers employed by them in the execution of the Contract, the employment of apprentices, the hours of labor and the debarment of contractors and subcontractors PUBLIC WORKS CONTRACTOR REGISTRATION: Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors must be registered with the Department of Industrial Relations. Because the Work involves federal funds, the successful Bidder and its subcontractors shall be properly licensed by the time the Contract is awarded. No contract will be entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a Contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project.
This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. In bidding on this Project, it shall be the Bidder’s sole responsibility to evaluate and include the cost of complying with all labor compliance requirements under this Contract and applicable law in its bid.
DBE CONTRACT GOAL: This project has a DBE participation goal of 12%. Failure to meet or achieve this goal, or to demonstrate the performance of a Good Faith Effort to achieve this goal, is cause to have a bid deemed non-responsive.
CONTRACTOR’S LICENSE: Each Bidder shall be a licensed contractor pursuant to the Business and Professions Code and shall be licensed in the following appropriate classification(s) of contractor’s license(s), for the work bid upon, and must maintain the license(s) throughout the duration of the Contract: A
AWARD OF CONTRACT: The City shall award the Contract for the Work to the lowest responsive, responsible bidder as determined from the base bid by the City. The City reserves the right to reject any or all bids or to waive any irregularities or informalities in any bids or in the bidding process.
For further information, contact Richard Pedersen at 760-367-6799 or by email at [email protected]
By: Date: March 16, 2022
Richard Pedersen, P.E., City Engineer
City of Twentynine Palms
END OF NOTICE INVITING BIDS
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SECTION 200 – INSTRUCTIONS TO BIDDERS
1. AVAILABILITY OF CONTRACT DOCUMENTS
Bids must be submitted to the City on the Bid Forms which are a part of the Bid Package for the Work.
Bid and Contract Documents may be obtained from the City at the location(s) and at the time(s) indicated in the Notice Inviting Bids. Prospective bidders are encouraged to telephone in advance to determine the availability of Bid and Contract Documents. Any charge for the Contract Documents is stated in the Notice Inviting Bids.
The City shall also make the Bid and Contract Documents available for review in electronic form at one or more plan rooms at no charge, as required by Public Contract Code section 20103.7. Please Note:
Prospective bidders who choose to review the Contract Documents at a plan room must contact the City to obtain the required Contract Documents if they decide to submit a bid for the Work. The City does not assume any liability or responsibility based on any defective or incomplete copying, excerpting, scanning, faxing, downloading or printing of the Bid Documents.
Addenda, if any, issued during the bid period will be sent only to those contractors who have obtained documents from the City. Failure to acknowledge Addenda may make a bid nonresponsive and not eligible for award of the contract.
2. EXAMINATION OF CONTRACT DOCUMENTS
The City has made copies of the Contract Documents available as indicated above. Bidders shall be solely responsible for examining the Project Site and the Contract Documents, including any addenda issued during the bidding period, and for informing themselves with respect to local labor availability, means of transportation, necessity for security, laws and codes, local permit requirements, wage scales, local tax structure, contractors’ licensing requirements, availability of required insurance, and other factors that could affect the Work. Bidders are responsible for consulting the standards referenced in the Contract Documents. Bidders shall be solely responsible for their failure to examine the documents and inform themselves, shall proceed at their sole risk, and no relief for error or omission will be given except as required under State law.
3. INTERPRETATION OF CONTRACT DOCUMENTS
Discrepancies in, and/or omissions from the Bid or Contract Documents or questions as to their meaning shall be immediately brought to the attention of the City by submission of a written request for an interpretation or correction to the City. Any such submission must be sent to the Engineering Department by faxing (760) 367-4890 or emailing to:
[email protected]
Any interpretation of the Bid or Contract Documents will be made only by written addenda duly issued and mailed or delivered to each person or firm who has obtained a set of Bid and Contract Documents from the City. The City will not be responsible for any explanations or interpretations provided in any other manner. No person is authorized to make any oral interpretation of any provision in the Bid or Contract Documents to any bidder, and no bidder should rely on any such oral interpretation.
Bids shall include complete compensation for all work to be performed under the Contract Documents.
4. INSPECTION OF SITE; PRE-BID CONFERENCE AND SITE WALK
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Each prospective bidder is responsible for fully acquainting itself with conditions of the Site (which may include more than one location) and those relating to construction of the Work, fully understanding the facilities, difficulties and restrictions which may affect the cost or effort required to complete the Work. To this end, a Pre-Bid Conference and Site Walk will be held on the date(s) and time(s) indicated in the Notice Inviting Bids.
5. ADDENDA
The City reserves the right to revise the Bid and Contract Documents prior to the bid opening date.
Revisions, if any, shall be made by written addenda. All addenda issued by the City shall be included in the bid and made part of the Contract Documents. Pursuant to Public Contract Code section 4104.5, if the City issues an Addendum which includes material changes to the Work less than 72 hours prior to the deadline for submission of bids, the City will extend the deadline for submission of bids. The City may determine, in its sole discretion, whether an Addendum warrants postponement of the bid submission date. Each prospective bidder shall provide City a name, email address and facsimile number to which addenda may be sent, as well as a telephone number by which the City can contact the bidder. Copies of addenda will be furnished by facsimile, first class mail, express mail or other proper means of delivery without charge to all parties who have obtained a copy of the Contract Documents and provided such current information. Please Note: Bidders are responsible for ensuring that they have received any and all addenda. Each bidder should contact the Engineering Department to verify that it has received all addenda issued, if any, prior to the bid opening. Failure to acknowledge receipt of all addenda may result in bid rejection.
6. ALTERNATE BIDS
If alternate bid items are called for in the Contract Documents, the lowest bid will be determined on the basis of the base bid only unless otherwise specified in the Notice Inviting Bids. The time required for completion of the alternate bid items has been factored into the Contract Time and no additional time will be allowed for performing any of the alternate bid items. Regardless of whether the alternates bid items will be considered in determining the low bid, the City may elect to include one or more of the alternate bid items, or to otherwise remove certain work from the scope of Work. Accordingly, each Bidder must ensure that each bid item contains a proportionate share of profit, overhead and other costs or expenses which will be incurred by the Bidder.
7. COMPLETION OF BID FORMS
Bids shall only be prepared using copies of the Bid Forms which are included in the Bid and Contract Documents. The use of Bid Forms other than clear and correct photocopies of those provided by the City will not be permitted. Bids shall be executed by an authorized signatory as described in these Instructions to Bidders. Bidders shall fill in all blank spaces (including inserting “N/A” where applicable) and initial all interlineations, alterations, or erasures to the Bid Forms. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms nor make substitutions thereon. USE OF BLACK OR BLUE INK, INDELIBLE PENCIL OR A TYPEWRITER IS REQUIRED. Deviations in the Bid Form may result in the bid being deemed non-responsive.
8. MODIFICATIONS OF BIDS
Each Bidder shall submit its Bid in strict conformity with the requirements of the Bid and Contract Documents. Unauthorized additions, modifications, revisions, conditions, limitations, exclusions or provisions attached to a Bid may render it non-responsive and may cause its rejection. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms, nor make substitutions thereon. Oral, telephonic and electronic modifications will not be considered, unless the Notice Inviting
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Bids authorizes the submission of electronic bids and modifications thereto and such modifications are made in accordance with the Notice Inviting Bids.
9. DESIGNATION OF SUBCONTRACTORS
Pursuant to State law, the Bidders must designate the name, license number, and location of each subcontractor who will perform work or render services to the Bidder in an amount that exceeds one-half of one percent (1/2%) of the Bidder’s Total Bid Price, as well as the portion of work each such subcontractor will perform on the form provided herein by the City. No additional time will be provided to bidders to submit any of the information required in the Designation of Subcontractor form.
10. LICENSING REQUIREMENTS
Pursuant to section 7028.15 of the Business and Professions Code and section 3300 of the Public Contract Code, all bidders must possess licenses issued by the State of California Contractors License Board for performance of this Contract. Subcontractors must possess the appropriate licenses for each specialty subcontracted. The City has determined that bidders must have the class of license designated in the Notice Inviting Bids to be eligible for award of this Contract. Pursuant to section 7028.5 of the Business and Professions Code, any bid submitted by a contractor not currently licensed in accordance with state law and pursuant to the requirements found in the Contract Documents shall be nonresponsive, and the City shall reject the Bid. The City shall have the right to request, and Bidders shall provide within five (5) Days, evidence satisfactory to the City of all valid license(s) currently held by that Bidder before awarding the Contract. Pursuant to Public Contract Code section 20676, sellers of “mined material” must be on an approved list of sellers published pursuant to Public Resources Code section 2717(b) in order to supply mined material for this Contract.
Notwithstanding anything contained herein, if the Work involves federal funds, the Contractor shall be properly licensed by the time the Contract is awarded, pursuant to the provisions of Public Contract Code section 20103.5.
11. SIGNING OF BIDS
All Bids submitted shall be executed by the Bidder or its authorized representative. Bidders may be asked to provide evidence in the form of an authenticated resolution of its Board of Directors or a Power of Attorney evidencing the capacity of the person signing the Bid to bind the Bidder to each Bid and to any Contract.
If a Bidder is a joint venture or partnership, it may be asked to submit an authenticated Power of Attorney executed by each joint venturer or partner appointing and designating one of the joint venturers or partners as a management sponsor to execute the Bid on behalf of Bidder. Only that joint venturer or partner shall execute the Bid. The Power of Attorney shall also: (1) authorize that particular joint venturer or partner to act for and bind Bidder in all matters relating to the Bid; and (2) provide that each venturer or partner shall be jointly and severally liable for any and all of the duties and obligations of Bidder assumed under the Bid and under any Contract arising therefrom. The Bid shall be executed by the designated joint venturer or partner on behalf of the joint venture or partnership in its legal name.
12. BID GUARANTEE
Each bid shall be accompanied by: (a) cash; (b) a certified check made payable to the City; (c) a cashier’s check made payable to the City; or (d) a bid bond payable to the City executed by the bidder as principal and surety as obligor, in an amount not less than 10% of the maximum amount of the bid. The surety insurer shall be admitted to transact surety business in the State of California, as defined in Code of Civil Procedure section 995.120. Personal sureties and unregistered surety companies are unacceptable. The
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cash, check or bid bond shall be given as a guarantee that the bidder shall execute the Contract if it be awarded to the bidder, and shall provide the required payment and performance bonds and insurance certificates and endorsements within ten (10) Days after notification of the award of the Contract to the bidder. Failure to provide the required documents may result in forfeiture of the bidder’s bid guarantee or bond to the City and the City may award the Contract to another bidder or may call for new bids.
13. SUBMISSION OF SEALED BIDS
Once the Bid and supporting documents have been completed and signed as set forth herein, they shall be placed, along with the Bid Guarantee and other required materials, in an envelope, sealed, addressed and delivered or mailed, postage prepaid to the City at the place and to the attention of the person indicated in the Notice Inviting Bids. No oral or telephonic bids will be considered. No forms transmitted via the internet, e-mail, facsimile, or any other electronic means will be considered unless specifically authorized by City as stated in the Notice. The envelope shall also show the following in the lower lefthand corner thereof:
Sealed Bid For: Neighborhood Safety Project
Only where expressly permitted in the Notice Inviting Bids may Bidders submit their bids via electronic transmission pursuant to Public Contract Code sections 1600 and 1601. Any acceptable method(s) of electronic transmission shall be stated in the Notice Inviting Bids. City may reject any bid not strictly complying with City’s designated methods for delivery. DELIVERY AND OPENING OF BIDS Bids will be received by the City at the address shown in the Notice Inviting Bids up to the date and time shown therein. The City will leave unopened any Bid received after the specified date and time, and any such unopened Bid will be returned to the Bidder. It is the Bidder’s sole responsibility to ensure that its Bid is received as specified. Bids may be submitted earlier than the dates(s) and time(s) indicated.
Bids will be opened promptly after the date and time stated in the Notice Inviting Bids, and the amount of each Bid will be read aloud and recorded. All Bidders may, if they desire, attend the opening of Bids.
The City may in its sole discretion, elect to postpone the opening of the submitted Bids. City reserves the right to reject any or all Bids and to waive any informality or irregularity in any Bid. In the event of a discrepancy between the written amount of the Bid Price and the numerical amount of the Bid Price, the written amount shall govern.
14. WITHDRAWAL OF BID
Prior to the original time set for bid opening, a Bid may be withdrawn by the Bidder only by means of a written request signed by the Bidder or its properly authorized representative. Any request to withdraw a bid after bid opening must be made in accordance with Public Contract Code section 5100 et seq. and must be submitted in writing within five (5) working days, excluding Saturdays, Sundays and State holidays, specifying in detail how the mistake was made.
15. BASIS OF AWARD; BALANCED BIDS
The City shall award the Contract to the responsible Bidder that submits the lowest responsive Bid, which shall be determined as set forth in the Notice Inviting Bids. The City may reject any Bid which, in its opinion when compared to other bids received or to the City’s internal estimates, does not accurately reflect the cost to perform the Work. The City may reject as nonresponsive any bid which unevenly weights or allocates costs, including but not limited to overhead and profit, to one or more particular bid items.
16. DISQUALIFICATION OF BIDDERS; INTEREST IN MORE THAN ONE BID
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No bidder shall be allowed to make, submit or be interested in more than one bid. However, a person, firm, corporation or other entity that has submitted a proposal to a bidder, or that has quoted prices of materials to a bidder, is not thereby disqualified from submitting a proposal or quoting prices to other bidders submitting a bid to the City. No person, firm, corporation, or other entity may submit a proposal to a bidder, or quote prices of materials to a bidder, when also submitting a prime bid for the Work.
17. INSURANCE REQUIREMENTS
The successful bidder shall procure and maintain insurance in the form and in the amount specified in the Contract Documents.
18. AWARD PROCESS
Once all Bids are opened and reviewed to determine the lowest responsive and responsible Bidder, the City Council may award the contract or reject all bids. Once the City notifies the Bidder of the award, the Bidder will have ten (10) calendar days from the date of the award to deliver to City the executed Contract, all of the required bonds, evidence of insurance and other materials. Once the City receives all of the properly executed documents and certifications, the City shall issue a Notice to Proceed. The apparent low bidder’s failure to submit the required documents within the stated time may result in loss of the Contract and forfeiture of its bid security. If the City elects to accept bonds and insurance submitted late, the Contract Time will begin to run ten (10) calendar days from the date of the notification of award even if the City has not issued a Notice to Proceed.
19. WORKERS COMPENSATION
Each bidder shall submit the Contractor’s Certificate Regarding Workers’ Compensation form.
20. RETENTION AND SUBSTITUTION OF SECURITY
The City will make monthly progress payments based upon work performed in accordance with the Contract Documents. Unless otherwise specified in the Notice Inviting Bids, the City will retain five percent (5%) of each progress payment as provided by the Contract Documents. At the request and expense of the successful Bidder, the Contractor may substitute securities for the amount so retained in accordance with Public Contract Code section 22300.
21. PREVAILING WAGES
The City has obtained from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract. These rates are on file and available at the City Clerk’s office or may be obtained online at http://www.dir.ca.gov/dlsr. Bidders are advised that a copy of these rates must be posted by the successful Bidder at the job site(s).
If the Work involves federal funds or otherwise requires compliance with the Davis-Bacon Fair Labor Standards Act, the Contractor and all its subcontractors shall pay the higher of the state or federal prevailing wage rates.
22. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS
In accordance with the provisions of the Labor Code, contractors or subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to section 1777.1 or section 1777.7 of the Labor Code. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred
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subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid to a debarred subcontractor by the Contractor shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor used on the Work.
23. IRAN CONTRACTING ACT CERTIFICATION
Each bidder shall submit the certification required by the Iran Contracting Act of 2010, Public Contract Code section 2200 et seq. with its bid. The certification is included in the Bid Documents.
24. PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a Contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project.
Notwithstanding anything contained herein, if the Work involves federal funds, the Contractor and all subcontractors shall be properly registered with the Department of Industrial Relations by the time the Contract is awarded, pursuant to the provisions of Labor Code section 1771.1(a).
25. PERFORMANCE BOND AND PAYMENT (LABOR AND MATERIALS) BOND
REQUIREMENTS
The successful bidder shall deliver to the City four fully executed, identical counterparts of the Performance Bond and Payment (Labor and Materials) Bond in the form supplied by the City and included in the Contract Documents. Each bond shall be for one hundred percent (100%) of the Contract Price. The surety insurer shall be admitted to transact surety business in the State of California, in accordance with Code of Civil Procedure section 995.120. Personal sureties and unregistered surety companies are unacceptable. Failure to furnish a bond within this time may, in the sole discretion of City, result in the forfeiture of the Bid Guarantee.
26. REQUEST FOR SUBSTITUTIONS
The successful bidder shall comply with the substitution request procedures set forth in the Bid and Contract Documents. Any deadlines for substitution requests that occur prior to the bid opening date are set forth in the Special Conditions.
27. SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES Contractor and its subcontractors performing work under this Contract will be required to pay California sales tax and other applicable taxes, and to pay for permits, licenses and fees required by the agencies with authority in the jurisdiction in which the work will be located, unless otherwise expressly provided by the Contract Documents. Bidders shall include all applicable taxes and fees that are in effect or reasonably anticipated on the bid date in their bid price.
28. EXECUTION OF CONTRACT
As required herein the successful bidder shall execute the Contract included with the bid documents in the amount determined in accordance with the Contract Documents. The City may require appropriate evidence that the persons executing the Contract are duly authorized to do so on the Contractor’s behalf.
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29. BID PROTEST PROCEDURE
Any bid protest relating to the form or content of the Bid or Contract Documents must be submitted in writing to the City’s Clerk at least ten (10) business days before the original date set for the bid opening.
Any bidder who submits a bid without making a protest shall be deemed to have waived any objection to the form or content of the Bid or Contract Documents not previously stated in writing.
Submitted bids will be timely made available for review upon written request of any bidder.
Bidders may file a “protest” of a Bid with the City’s Clerk. The protest must:
A. Be filed in writing not later than 5:00 p.m. on the fifth business day after the bid opening date;
B. Clearly identify the specific alleged irregularity or other basis for the protest; C. Specify, in detail, the factual and legal grounds for the protest; and D. Include all relevant supporting documentation with the protest at time of filing.
If the protest does not meet all of these requirements, the City may reject it without further review.
If the protest is timely and complies with all of the above requirements, the City’s Clerk, or other designated City staff member, shall review the protest, any response from the challenged bidder, and all other relevant information. The City will provide a written response to the protestor.
The procedure and time limits set forth in this section are mandatory and are the sole and exclusive remedy in the event of a bid protest. Failure to comply with these procedures shall constitute a failure to exhaust administrative remedies and a waiver of any right to further pursue the bid protest, including filing a Government Code Claim or legal proceedings.
END OF INSTRUCTIONS TO BIDDERS
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SECTION 300 – BID FORM
NAME OF BIDDER:
The undersigned Bidder hereby declares that it has carefully examined the location of the proposed Work, and has read and examined the Contract Documents, including all plans, specifications, and all addenda, if any, for the following Project: Neighborhood Safety Project We hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project in strict accordance with the Contract Documents for the following TOTAL BID PRICE:
BID SCHEDULE
No. (F/P)
ITEM
CODE
ITEM DESCRIPTION
UNIT OF
MEASURE
ESTIMATED
QUANTITY UNIT PRICE AMOUNT
1 760090 MOBILIZATION LS 1
2 120119 TRAFFIC CONTROL LS 1
3 150714 REMOVE EXISTING
STRIPING LF 23829
4 374002
CHIP SEAL, 5/16”
THICKNESS (INCLUDES
FOG SEAL)
SY 75091
5 840501 STOP BAR PAVEMENT
MARKINGS LF 3842
6 840501 STOP LETTERS 48”
PAVEMENT MARKINGS EA 1214
7 840505 6” WHITE PAVEMENT
STRIPE LF 1350
8 840505 6” WHITE BIKE LANE
STRIPE LF 5825
9 840504 4” WHITE EDGE STRIPE LF 37942
10 840505 6” DOUBLE YELLOW
STRIPE LF 46362
11 840501 TWO-WAY TURN LANE LF 6300
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STRIPING
12 840501 6” BIKE LANE
INTERSECTION STRIPING LF 180
13 840519 CROSSWALK STRIPING LF 717
14 566011 CAUTION SIGNAGE EA 160
15 566011 SCHOOL CROSSWALK
SIGNAGE EA 4
16 566011 STOP SIGNS EA 226
17 870700 FLASHING BEACONS EA 15
TOTAL BID AMOUNT ____________________________________________ Bid Amount in Numbers
___________________________________________________________________________________ Bid Amount in Written Form
Bidders must provide pricing for every bid item.
The estimated quantities for unit price items are for purposes of comparing bids only and the City makes no representation that the actual quantities of work performed will not vary from the estimates.
In case of discrepancy between the unit price and the line item cost set forth for a unit price item, the line item cost, calculated at the unit price multiplied by the estimated quantity, shall prevail and shall be utilized as the basis for determining the lowest responsive, responsible bidder. However, if the amount set forth as a unit price is ambiguous, unintelligible or uncertain for any cause, or is omitted, or is the same amount as the entry in the “Line Item Cost” column, then the amount set forth in the “Line Item Cost” column for the item shall prevail and shall be divided by the estimated quantity for the item and the price thus obtained shall be the unit price. If any of the above discrepancies exist, the City may recalculate the bid price on the basis of the unit price and the bidder agrees to be bound by such recalculation. Final payment for unit price items shall be determined by the City from measured quantities of work performed.
In case of discrepancy between the written price and the numerical price, the written price shall prevail.
The undersigned agrees that this Bid Form constitutes a firm offer to the City which cannot be withdrawn for the number of calendar days from the bid opening stated in the Notice Inviting Bids from the bid opening, or until a Contract for the Work is fully executed by the City and a third party, whichever is earlier.
The Contract Time shall commence on the date stated in the City’s Notice to Proceed or as stated above.
In no case shall the Contractor commence construction prior to the date stated in the City’s Notice to Proceed, or before providing the required bonds and evidence of insurance.
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Bidder certifies that it is licensed in accordance with the California law providing for the registration of Contractors, License No. _________, Expiration Date_________, class of license ________. If the bidder is a joint venture, each member of the joint venture must include the above information.
The undersigned agrees that this Bid Form constitutes a firm offer to the City which cannot be withdrawn for the number of calendar days from the bid opening stated in the Notice Inviting Bids from the bid opening, or until a Contract for the Work is fully executed by the City and a third party, whichever is earlier.
The undersigned acknowledges receipt, understanding and full consideration of the following addenda to the Contract Documents.
Addenda No. _______________________
Addenda No. _______________________
BIDDER’S CHECKLIST
This checklist has been prepared and furnished to assist Bidders in including all items necessary for a complete Bid. Omission of items from the list does not relieve the Bidders of the obligation to comply with all requirements of the bid documents. Bidders’ submittals should include, but are not necessarily limited to, the following:
Item Checked
1. Bid Form ________
2. Bid Schedule ________
3. Bid Bond or other security ________
4. List of Subcontractors ________
5. Information Required of Bidders ________
6. Contractor’s Certificate Regarding Workers’ Compensation ________
7. Non-Collusion Declaration ________
8. Iran Contracting Act Certification ________
9. Exhibit 15-G ________
10. Exhibit 15-H ________
Bidder acknowledges and understands that, pursuant to Public Contract Code section 20676, sellers of “mined material” must be on an approved list of sellers published pursuant to Public Resources Code section 2717(b) in order to supply mined material for this Contract.
I hereby certify under penalty of perjury under the laws of the State of California, that all of the information submitted in connection with this Bid and all of the representations made herein are true and correct.
Name of Bidder
Signature
Name and Title
Dated
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SECTION 305 – CONTRACTOR’S CERTIFICATE REGARDING
WORKERS’ COMPENSATION
I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract.
Name of Bidder
Signature
Name
Title
Dated
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SECTION 310 – BID BOND
The makers of this bond are _______________________________________, as Principal, and ___________________________________________________, as Surety and are held and firmly bound unto the City of Twentynine Palms, hereinafter called the City, in the penal sum of TEN PERCENT (10%) OF THE TOTAL BID PRICE of the Principal submitted to the City for the work described below, for the payment of which sum in lawful money of the United States, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that whereas the Principal has submitted the accompanying Bid dated _______________ __, 20__, for Neighborhood Safety Project.
If the Principal does not withdraw its Bid within the time specified in the Contract Documents; and if the Principal is awarded the Contract and provides all documents to the City as required by the Contract Documents; then this obligation shall be null and void. Otherwise, this bond will remain in full force and effect.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents shall affect its obligation under this bond, and Surety does hereby waive notice of any such changes.
In the event a lawsuit is brought upon this bond by the City and judgment is recovered, the Surety shall pay all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and expenses.
IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this ____ day of _______________ , 20___, the name and corporate seal of each corporation. (Corporate Seal)
Contractor/ Principal
By
Title
(Attach Acknowledgment Form)
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
Title
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NOTE: This acknowledgment is to be completed for Contractor/Principal.
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NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.
END OF BID BOND
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SECTION 320 – NON-COLLUSION DECLARATION
TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
The undersigned declares:
I am the ___________________ of ___________________, the party making the foregoing bid.
The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.
Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________________[date], at ___________________[city], ___________________[state].
Name of Bidder
Signature
Name
Title
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SECTION 330 – BIDDER INFORMATION AND EXPERIENCE FORM
A. INFORMATION ABOUT BIDDER
Failure to complete all information may render your bid non-responsive. (Indicate not applicable (“N/A”) where appropriate.)
NOTE: Where Bidder is a joint venture, pages shall be duplicated and information provided for all parties to the joint venture.
1.0 Name of Bidder: ___________________________________________
2.0 Type, if Entity: ___________________________________________
3.0 Bidder Address: ___________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ Facsimile Number Telephone Number
_____________________________________________________________ Email Address
4.0 How many years has Bidder’s organization been in business as a Contractor? ______________________________
5.0 How many years has Bidder’s organization been in business under its present name? ________________________
5.1. Under what other or former names has Bidder’s organization operated?:_______________________________________________
6.0 If Bidder’s organization is a corporation, answer the following:
6.1. Date of Incorporation: ________________________________
6.2. State of Incorporation: ________________________________
6.3. President’s Name: ________________________________
6.4. Vice-President’s Name(s):________________________________ ________________________________
6.5. Secretary’s Name: ________________________________
6.6. Treasurer’s Name: ________________________________
7.0 If an individual or a partnership, answer the following:
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7.1. Date of Organization: _________________________________
7.2. Name and address of all partners (state whether general or limited partnership):
___________________________________________________________ ___________________________________________________________ ___________________________________________________________
8.0 If other than a corporation or partnership, describe organization and name principals:
___________________________________________________________ ___________________________________________________________
9.0 List other states in which Bidder’s organization is legally qualified to do business. ___________________________________________________________ ___________________________________________________________
10.0 What type of work does the Bidder normally perform with its own forces? ___________________________________________________________ ___________________________________________________________
11.0 Has Bidder ever failed to complete any work awarded to it? If so, note when, where, and why:
___________________________________________________________ ___________________________________________________________
12.0 Within the last five years, has any officer or partner of Bidder’s organization ever been an officer or partner of another organization when it failed to complete a contract? If so, attach a separate sheet of explanation:
___________________________________________________________ ___________________________________________________________
13.0 List Trade References:
___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
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14.0 List Bank References (Bank and Branch Address):
___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
15.0 Name of Bonding Company and Name and Address of Agent:
___________________________________________________________ ___________________________________________________________ ___________________________________________________________ [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
B. LIST OF CURRENT PROJECTS (BACKLOG)
***Note to Bidders: Duplicate Page if needed for listing additional current projects.*** Project Description of
Bidder’s Work
Completion
Date
Cost of Bidder’s
Work
Contact Name &
Phone
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C. LIST OF COMPLETED PROJECTS - LAST THREE YEARS
***Note to Bidders: Duplicate Page if needed for listing additional completed projects.*** Please include only projects that are similar in size, scope and complexity to the Work to demonstrate Bidder’s ability to perform the required Work.
Work Client
Description of
Bidder’s Work
Period of
Performance
Cost of Bidder’s
Work
Contact Name &
Phone
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D. EXPERIENCE AND TECHNICAL QUALIFICATIONS QUESTIONNAIRE Personnel:
The Bidder shall identify the key personnel to be assigned to this project in a management, construction supervision or engineering capacity.
1. List each person’s job title, name and percent of time to be allocated to this project:
___________________________________________________________ ___________________________________________________________ ___________________________________________________________
2. Summarize each person’s specialized education:
___________________________________________________________ ___________________________________________________________ ___________________________________________________________
3. List each person’s years of construction experience relevant to the project:
___________________________________________________________ ___________________________________________________________ ___________________________________________________________
4. Summarize such experience:
___________________________________________________________ ___________________________________________________________ ___________________________________________________________ Bidder agrees that personnel named in this Bid will remain on this project in their designated capacities until completion of all relevant Work, unless replaced by personnel of equivalent experience and qualifications approved in advance by the City.
Additional Bidder’s Statements:
If the Bidder feels that there is additional information which has not been included in the questionnaire above, and which would contribute to the qualification review, it may add that information in a statement here or on an attached sheet, appropriately marked:
E. VERIFICATION AND EXECUTION
These Bid Forms shall be executed only by a duly authorized official of the Bidder:
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I declare under penalty of perjury under the laws of the State of California that the foregoing information is true and correct:
Name of Bidder
Signature
Name
Title
Dated
END OF BIDDER INFORMATION AND EXPERIENCE FORM
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SECTION 340 – DESIGNATION OF SUBCONTRACTORS
In compliance with the Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the State of California, each bidder shall set forth below: (a) the name and the location of the place of business, (b) the California contractor license number, and (c) the portion of the work which will be done by each subcontractor who will perform work or labor or render service to the Contractor in or about the construction of the work in an amount in excess of one-half of one percent (1/2%) of the Contractor’s Total Bid Price. Notwithstanding the foregoing, if the work involves streets and highways, then the Contractor shall list each subcontractor who will perform work or labor or render service to Contractor in or about the work in an amount in excess of one-half of one percent (1/2%) of the Contractor’s total Bid Price or $10,000, whichever is greater. No additional time shall be granted to provide the below requested information.
If no subcontractor is specified, for a portion of the work, or if more than one subcontractor is specified for the same portion of Work, then the Contractor shall be deemed to have agreed that it is fully qualified to perform that Work, and that it shall perform that portion itself.
The City requires the Contractor to perform at least 50% of the Work with its own forces and equipment.
Name of Subcontractor Location of Business
Work to be done by
Subcontractor
CSLB
License
Number
% of the
Work
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Name of Subcontractor Location of Business
Work to be done by
Subcontractor
CSLB
License
Number
% of the
Work
Name of Bidder
Signature
Name and Title
Dated
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SECTION 350 – IRAN CONTRACTING ACT CERTIFICATION
(PUBLIC CONTRACT CODE SECTION 2200 ET SEQ.)
As required by California Public Contract Code section 2204, the Contractor certifies subject to penalty for perjury that the option checked below relating to the Contractor’s status in regard to the Iran Contracting Act of 2010 (Public Contract Code section 2200 et seq.) is true and correct:
☐ The Contractor is not:
(i) identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203; or (ii) a financial institution that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran.
☐ The City has exempted the Contractor from the requirements of the Iran Contracting Act of 2010 after making a public finding that, absent the exemption, Agency will be unable to obtain the goods and/or services to be provided pursuant to the Contract.
☐ The amount of the Contract payable to the Contractor for the Work does not exceed $1,000,000.
Signed
Titled
Firm
Date
Note: In accordance with Public Contract Code section 2205, false certification of this form shall be reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract Price, termination of the Contract and/or ineligibility to bid on contracts for three years.
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SECTION 400 – CONTRACT FOR CONSTRUCTION
CONTRACT AGREEMENT
FOR
PROJECT
IN THE CITY OF TWENTYNINE PALMS
This Contract Agreement is made and entered into for the above-stated project this day of , 2022, BY AND BETWEEN the City of Twentynine Palms, as AGENCY, and , as CONTRACTOR.
WITNESSETH that AGENCY and CONTRACTOR have mutually agreed as follows:
ARTICLE I
The Contract Documents for the aforesaid project shall consist of the Notice Inviting Sealed Bids, Instructions to Bidders, Proposal, General Specifications, Special Provisions, Contract Plans, and all referenced specifications, details, standard drawings, and appendices; together with this Contract Agreement and all required bonds, insurance certificates, permits, notices, and affidavits; and also including any and all addenda or supplemental agreements clarifying, or extending the work contemplated as may be required to ensure its completion in an acceptable manner. All of the provisions of said contract documents are made a part hereof as though fully set forth herein.
ARTICLE II
For and in consideration of the payments and agreements to be made and performed by AGENCY, CONTRACTOR agrees to furnish all materials and perform all work required for the above-stated project, and to fulfill all other obligations as set forth in the aforesaid Contract Documents.
ARTICLE III
CONTRACTOR agrees to receive and accept the prices set forth in the Proposal as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Said compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of the work during its progress or prior to its acceptance including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the aforesaid contract documents; and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work. Said compensation shall not exceed _________________________ dollars ($ ), provided that the City Manager or his designee may approve additional payment not-to-exceed the City Council authorized amount for change orders and for contingencies.
ARTICLE IV
AGENCY hereby promises and agrees to employ, and does hereby employ, CONTRACTOR to provide the materials, do the work and fulfill the obligations according to the terms and conditions herein contained and referred to, for the prices aforesaid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions set forth in the Contract Documents.
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The CONTRACTOR shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Contract. The CONTRACTOR shall at all times observe and comply with all such laws and regulations.
The AGENCY, and its officers, employees, and agents shall not be liable at-law or in-equity occasioned by failure of the CONTRACTOR to comply with this Section.
The CONTRACTOR assures AGENCY that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. §§ 12101 et seq.)
ARTICLE V
CONTRACTOR acknowledges the provisions of the State Labor Code requiring every employer to be insured against liability for worker's compensation, or to undertake self-insurance in accordance with the provisions of that code and certifies compliance with such provisions.
CONTRACTOR further acknowledges this Project is Federally-funded, requiring the CONTRACTOR and any Subcontractor to pay at least the Federal minimum prevailing wage rate of per diem wages for each craft classification or type of worker needed to execute the Contract work. If, however, the State of California minimum prevailing wage rates are higher than the Federal minimum prevailing wage rates for any particular classification, the CONTRACTOR and any Subcontractor shall pay that prevailing wage rate. In simple terms, the CONTRACTOR and any Subcontractor must pay the higher of the two prevailing wage rates (Federal or State) for each classification of worker.
CONTRACTORS and any Subcontractor are required to meet the provisions of the California Senate Bill 584 for the payment of Department of Industrial Relations (DIR) established prevailing wages. This applies to all public projects as defined in California Code 22002 for contracts exceeding $1,000.00.
CONTRACTORS shall register with the DIR in accordance with California Labor Code Section 1771.1(a) and 1725.5, and will be subject to compliance monitoring and enforcement by the DIR, subject to Section 1771.4. CONTRACTORS must submit certified payrolls electronically to DIR. By signing this Contract, CONTRACTOR is indicating that he/she/it have registered with DIR and have submitted the required PWC100 Information Form online at www.dir.ca.gov.
ARTICLE VI
CONTRACTOR hereby agrees to comply with the State Labor Code and acknowledges that, in accordance with Labor Code Section 3700, he/she/it will be required to secure the payment of compensation to his/her/its employees.
ARTICLE VII
CONTRACTOR acknowledges that, in accordance with Labor Code Section 1777.5, he/she/it will be held responsible for compliance with the provisions of this Section for all apprenticeable occupations.
ARTICLE VIII
CONTRACTOR hereby waives for himself/herself/itself and for CONTRACTOR’s Subcontractors any right CONTRACTOR may now or in the future possess in relation to this Contract and these Contract Documents and the work thereunder, to utilize the provisions of Civil Code Section 47(b) in any action, proceeding, or prosecution pursuant to California False Claims Act, Government Code Section 12650 et seq.
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ARTICLE IX
CONTRACTOR acknowledges and agrees that CONTRACTOR must have all appropriate CONTRACTOR’s licenses. CONTRACTOR further warrants and represents that he/she/they has/have the appropriate CONTRACTOR’s license to pursue the work hereunder. CONTRACTOR’s failure to have or maintain all appropriate licenses during the entire term of this Contract, or any period thereof, shall be cause for the immediate and summary termination of this Contract by AGENCY. CONTRACTOR shall be liable for all AGENCY’S costs to complete the work and this Contract.
ARTICLE X
Hazardous Waste or Other Unusual Conditions. If the Contract involves digging trenches or other excavations that extend deeper than four feet (4’) below the surface, CONTRACTOR shall promptly, and before the following conditions are distributed, notify AGENCY, in writing, of any:
A. Hazardous Waste. Material that CONTRACTOR believes may be material that is hazardous waste, as defined in Health and Safety Code Section 25117, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
B. Differing Conditions. Subsurface or latent physical conditions at the site differing from those indicated.
C. Unknown Physical Conditions. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided in the Contract.
AGENCY shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in CONTRACTOR’s costs of, or the time required for, performance of any part of the work may issue a change order under the procedures described in this Contract.
In the event that a dispute arises between AGENCY and CONTRACTOR whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the CONTRACTOR’s cost of, or time required for, performance of any part of the work, CONTRACTOR shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all work to be performed under the Contract. CONTRACTOR shall retain any and all rights provided either by Contract or by law which pertain to the resolution of disputes and protests between the contracting parties.
ARTICLE XI
Any notices which either party may desire to give to the other party under this Contract must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may latter designate by notice:
To CITY: CITY OF TWENTYNINE PALMS
Attention: City Clerk
6136 Adobe Road
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Twentynine Palms. CA 92277
To CONTRACTOR: __________________
__________________
__________________
__________________
ARTICLE XII
The AGENCY and CONTRACTOR understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Contract and also govern the interpretation of this Contract. Any litigation concerning this Contract shall take place in the municipal, superior, or federal district court with jurisdiction over the AGENCY.
ARTICLE XIII
Nothing contained in this Contract shall create any contractual relationship between any Subcontractor and the AGENCY. CONTRACTOR covenants and agrees that he/she has made himself/herself aware of Public Contract Code Sections 4100 et seq. pertaining to the identification and use of Subcontractors in the bid submitted and CONTRACTOR is fully aware and knowledgeable of the liability to the CONTRACTOR for violations of said Sections of the Public Contract Code.
ARTICLE XIV
CONTRACTOR is and shall at all times remain as to the AGENCY a wholly independent CONTRACTOR.
The personnel performing the services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR’s exclusive direction and control. Neither AGENCY nor any of its officers, employees, or agents shall have control over the conduct of CONTRACTOR or any of CONTRACTOR’s officers, employees, or agents, except as set forth in this Contract. CONTRACTOR shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the AGENCY. CONTRACTOR shall not incur or have the power to incur any debt, obligation, or liability whatever against AGENCY, or bind AGENCY in any manner.
No employee benefits shall be available to CONTRACTOR in connection with the performance of this Contract. Except for the fees and other payments paid to CONTRACTOR as provided in the Contact, AGENCY shall not pay salaries, wages, or other compensation or indemnification to CONTRACTOR for injury or sickness arising out of performing services hereunder.
ARTICLE XV
CONTRACTOR agrees to protect, indemnify, defend and hold harmless AGENCY and all of its officers, agents and employees from any claims, demand or causes of action, including related expenses, attorney's fees, and costs, based on, arising out of, or in any way related to the work undertaken by CONTRACTOR hereunder.
ARTICLE XVI
INDEMNIFICATION
(a) Indemnification
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To the fullest extent permitted by law, CONTRACTOR shall protect, indemnify, defend and hold harmless AGENCY and any and all of its officials, employees, volunteers and agents from and against any and all losses, liabilities, damages, and costs and expenses (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees) where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the actions or failure to act of CONTRACTOR, its officers, agents, employees or subcontractors, or any entity or individual that CONTRACTOR shall bear the legal liability thereof.
(b) Indemnification Provisions Pertaining to Subcontractors and Others Performing Work.
CONTRACTOR agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of CONTRACTOR in the performance of this Agreement. In the event CONTRACTOR fails to obtain such indemnity obligations from others as required herein, CONTRACTOR agrees to be fully responsible according to the terms of this section. Failure of AGENCY to monitor compliance with these requirements imposes no additional obligations on AGENCY and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend AGENCY as set forth herein is binding on successors, assigns or heirs of CONTRACTOR and shall survive the termination of this Agreement or this section. (c) Indemnity Provisions for Contracts Related to Construction. Without affecting the rights of AGENCY under any provision of this Agreement, CONTRACTOR shall not be required to indemnify, defend or hold harmless AGENCY from such liability, claims. losses, damages or expenses arising from AGENCY’s sole negligence or willful acts.
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, CONTRACTOR shall maintain insurance in conformance with the requirements set forth below. CONTRACTOR shall use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to AGENCY in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to AGENCY.
CONTRACTOR shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the CONTRACTOR, its agents, representatives, or employees. All Sections of this Agreement and any provision in AGENCY's Request for Proposal and CONTRACTOR's submitted proposal are subordinate to and superseded by the requirements contained in this Section to the extent that any provision or portion thereof conflicts with or impairs these requirements or any obligation to or right under or pursuant to these insurance requirements. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties to be interpreted as such.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1) Commercial General Liability Insurance – Written on the Insurance Services Office “Commercial General Liability” policy form CG 00 01 or the exact equivalent.
Defense costs must be paid in addition to limits. There shall be no cross-liability exclusion for claims or suits by one insured against another.
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(2) Business Auto Coverage –Written on the ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. If CONTRACTOR owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If CONTRACTOR or CONTRACTOR’s employees will use personal autos in any way on this project, CONTRACTOR shall provide evidence of personal auto liability coverage for each person. (3) CONTRACTOR certified that the company does not have employees and does have Workers’ Compensation/ employer’s Liability Insurance. As soon as the CONTRACTOR has employees, he/she will have the insurance below:
Workers' Compensation/Employer's Liability Insurance - Written on a policy form providing workers' compensation statutory benefits as required by the State of California. Employer's Liability limits shall be no less than one millions dollars ($1,000,000) per accident or disease. Employer's Liability coverage shall be scheduled under any umbrella policy described above. Unless otherwise agreed, this policy shall be endorsed to waive any right of subrogation as respects AGENCY, its officers, officials, employees, or agents.
(4) Professional Liability or Errors and Omissions Insurance as appropriate to the CONTRACTOR’s profession - Written on policy form coverage specifically designed to protect against acts, errors or omissions of the CONTRACTOR and “Covered Professional
Services” as designated in the policy must specifically include work performed under this agreement.
(b) Minimum Limits of Insurance. CONTRACTOR shall maintain limits no less than:
(1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
(2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
(3) Errors and Omissions Liability: The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer’s duty to defend. The policy retroactive date shall be on or before the effective date of this agreement. Insurance shall continue to be effective to cover all claims made within three (3) years of the completion of the work in the Agreement.
(4) Excess or Umbrella Liability Insurance (Over Primary): If used to meet limit requirements, it shall provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella liability policy shall include a drop down provision providing primary coverage above a maximum $25,000 self-insured retention for liability not covered by primary but covered by the umbrella. Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured’s liability is determined, not requiring actual payment by the insured first. There shall be no crossliability exclusion precluding coverage for claims or suits by one insured against another.
Coverage shall be applicable to AGENCY for injury to employees of CONTRACTOR, subcontractors or others involved in the Work. The scope of coverage provided is
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subject to approval of AGENCY following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than per occurrence. (c) Deductibles and Self-Insured Retention. CONTRACTOR agrees not to self-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any CONTRACTOR, subcontractors, Architect, Engineer or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self-insure its obligations to AGENCY. If CONTRACTOR’s existing coverage includes a deductible or self-insured retention, the deductible or self-insured retention must be declared to the AGENCY. At that time the AGENCY shall review options with the CONTRACTOR, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or the CONTRACTOR to procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses or other solutions. Any deductibles in excess of ten percent (10%) or selfinsured retention must be approved by the City Manager.
(d) Other Insurance Provisions. The general liability, business auto liability, and any necessary umbrella liability policies are to contain, or be endorsed to contain, the following provisions:
(1) General liability and umbrella policies shall cover the AGENCY, its officers, officials, employees, agents, and volunteers are to be covered as insureds or additional insureds as respects: liability arising out of activities performed by or on behalf of the CONTRACTOR; products and completed operations of the CONTRACTOR; premises owned, occupied or used by the CONTRACTOR; or automobiles owned, leased, hired or borrowed by the CONTRACTOR. The coverage shall contain no special limitations on the scope of protection afforded to the AGENCY, its officers, officials, employees, agents, or volunteers. Endorsements including the additional insured shall be identified on standard ISO endorsement number CG 20 10, attached to an ISO-CGL policy with an edition prior to 1992, or other form as expressly approved by AGENCY, and which does not limit the scope of coverage for the additional insured to vicarious liability or to the additional insured's supervision of a given project. In no event shall the CONTRACTOR use an additional insured endorsement with an edition date of 1992 or later, absent express written authorization by AGENCY. CONTRACTOR also agrees to require all CONTRACTORs and subcontractors to do likewise.
(2) For any claims related to this project, the CONTRACTOR's insurance coverage shall be primary insurance as respect to the AGENCY, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the AGENCY, its officers, officials, employees, agents, or volunteers shall be excess of the CONTRACTOR's insurance and shall not contribute with it. (3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the AGENCY, its officers, officials, employees, agents, or volunteers.
(4) The CONTRACTOR's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and there shall be no cross liability exclusions that preclude coverage for suits between CONTRACTOR and AGENCY or between AGENCY and any other insured.
CONTRACTOR expressly waives any claim against AGENCY for any covered act or event, and CONTRACTOR's insurance policy shall not prevent such waiver. The limits of insurance required herein shall in no way limit the liability of the party providing the insurance. In addition, if the coverage or limits available to CONTRACTOR exceed that required by this Agreement, and the loss incurred by the additional insured exceeds the amount required by this Agreement, it is the parties' intent that all such additional coverage and limits available will apply irrespective of the specific coverage or limits required herein.
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(5) No liability insurance coverage provided to comply with this Agreement shall prohibit CONTRACTOR, or CONTRACTOR’s employees, or agents, from waiving the right of subrogation prior to a loss. CONTRACTOR agrees to waive subrogation rights against AGENCY regardless of the applicability of any insurance proceeds, and to require all CONTRACTORs and subcontractors to do likewise. (6) All insurance coverage and limits provided by CONTRACTOR and available or applicable to this Agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the AGENCY or its operations limits the application of such insurance coverage. (7) The AGENCY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONTRACTOR ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the AGENCY will negotiate additional compensation proportional to the increased benefit to AGENCY. (8) For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. (9) CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of AGENCY to inform CONTRACTOR of non-compliance with any insurance requirement in no way imposes any additional obligations on AGENCY nor does it waive any rights hereunder in this or any other regard.
(10)None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to AGENCY and approved of in writing.
(11)No liability policy shall contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or of any CONTRACTOR or subcontractor. (12)All coverage types and limits required are subject to approval, modification and additional requirements by the AGENCY, as the need arises. CONTRACTOR shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect AGENCY’s protection without AGENCY’s prior written consent.
(13)The provisions of any workers’ compensation or similar act will not limit the obligations of CONTRACTOR under this Agreement. CONTRACTOR expressly agrees not to use any statutory immunity defenses under such laws with respect to AGENCY, its employees, officials and agents.
(14)Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. (15)CONTRACTOR agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge AGENCY or CONTRACTOR for the cost of additional insurance coverage required by this Agreement.
Any such provisions are to be deleted with reference to AGENCY. It is not the intent of AGENCY to reimburse any third party for the cost of complying with these requirements.
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There shall be no recourse against AGENCY for payment of premiums or other amounts with respect thereto.
(e) Acceptability of Insurers. Insurance is to be placed with insurers authorized and admitted to do business in California and with a current A.M. Best's rating of A or better and a financial size of VII or greater, unless otherwise acceptable to the AGENCY. (f) Verification of Coverage and Notice of Cancellation. (1)CONTRACTOR shall immediately furnish to AGENCY certificates of insurance or endorsements, satisfactory to AGENCY, evidencing the insurance coverage above required prior to the commencement of performance of services hereunder. These certificates or endorsements shall provide that such insurance is the minimum, is in no way limited by any provision herein, and allows for the application of all coverage available to the additional insureds. Further, the certificates or endorsements shall require thirty (30) days written notice to additional insured AGENCY prior to any termination, suspension, cancellation, or non-renewal, or the reduction of available coverage, or any change in the terms of coverage.
CONTRACTOR agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will “endeavor” (as opposed to being required) to comply with the requirements of the certificate.
(2)CONTRACTOR agrees that if CONTRACTOR commences work under this Agreement without first providing AGENCY copies of the required insurance certificates or endorsements, that CONTRACTOR does so at its own and sole risk. In the event CONTRACTOR's insurance is not acceptable to AGENCY or copies of insurance certificates or endorsements are not provided, AGENCY shall have no obligations to compensate CONTRACTOR for such work unless CONTRACTOR possesses a notice to proceed from AGENCY for this work.
(3)Within sixty (60) days of the commencement of this Agreement, CONTRACTOR shall furnish certified copies of the actual policies and endorsements. Failure to submit such policies shall constitute a material breach of this Agreement entitling AGENCY to any and all remedies at law or in equity, including summary termination of this Agreement. If proof of any insurance required under this Agreement is not delivered as required or if such insurance is canceled at any time and no replacement coverage is provided, AGENCY shall have the right but not the duty to obtain any insurance it deems necessary to protect its interests under this Agreement, express or implied, in any way relating to AGENCY. Any premium for such coverage shall be charged to and promptly paid by CONTRACTOR or, at AGENCY's option, may be deducted from sums due to CONTRACTOR. (4)In the event of the premature termination of this Agreement for any reason, CONTRACTOR agrees to maintain the required insurance coverage until AGENCY provides written authorization to terminate the coverage following a review and determination that all liability posed under this Agreement as to the party providing the insurance has been eliminated.
(5)Except as outlined in Section 10(b) (3) above, CONTRACTOR will renew the required coverage annually as long as AGENCY, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. Termination of this obligation is not effective until AGENCY executes a written statement to that effect. (6)CONTRACTOR shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from CONTRACTOR’s insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured
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endorsement as required in these specifications applicable to the renewing or new coverage must be provided to AGENCY within five days of the expiration of the coverages. (g) Notice of Claim or Loss. CONTRACTOR agrees to provide immediate notice to AGENCY of any claim or loss likely to involve AGENCY or its employees or agents which exceeds $2,500 or is likely to exceed that amount arising out of the work performed under this Agreement.
AGENCY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve AGENCY. (h) Sub-Contractor Insurance Requirements. CONTRACTOR agrees to require that all parties, including but not limited to Sub-Contractors and additional CONTRACTORS or professional services with whom CONTRACTOR enters into contracts or whom CONTRACTOR hires pursuant to or in any way related to the performance of this Agreement, provide the insurance coverage required here, at a minimum. CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section.
CONTRACTOR acknowledges and agrees that upon request, all agreements with Sub-Contractors and others engaged in the project contemplated by this Agreement will be submitted to AGENCY for review.
CONTRACTOR agrees and acknowledges that such contracts may require modification as to the insurance requirements necessary to properly protect AGENCY.
ARTICLE XVII
This Contract is entered into for the sole benefit of AGENCY and CONTRACTOR, and their successors, transferees, and assigns. No other person shall have any right of action based upon any provision of this Contract and no third party beneficiaries shall be created thereby.
ARTICLE XVIII
If any term, provision, condition, or covenant of this Contract, or the application thereof to any party or circumstances, shall to any extent be held invalid or unenforceable, the remainder of the instrument, or the application of such term, provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of the Contract as amended shall be valid and enforceable to the fullest extent permitted by law.
ARTICLE XIX
This Contract may be executed in multiple counterparts, each of which so fully executed counterpart shall be deemed an original. No counterpart shall be deemed an original or deemed or presumed delivered unless and until the counterpart executed by the other party to this Contract is in the physical possession of the party seeking enforcement thereof.
ARTICLE XX
This Contract contains the complete, final, entire, and exclusive agreement between the parties with respect to the subject matter hereof, and no waiver, alteration, or modification of any of the modification, amendment, or alteration in violation hereof shall be void.
ARTICLE XXI
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CONTRACTOR affirms that the signatures, titles and seals set forth hereinafter in execution of this Contract Agreement represent all individuals, firm members, partners, joint venturers, and/or corporate officers having principal interest herein.
IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Contract Agreement to be executed in duplicate by setting hereunto their names, titles, hands, and seals this _____, day of _______________, 2022.
CONTRACTOR:
(Print Name and Title)
CONTRACTOR's License No. Class _________________ __________ Federal Tax Identification No. ___________________________________ CONTRACTOR’S SIGNATURE MUST BE NOTARIZED. SEE FOLLOWING PAGE FOR NOTARY ACKNOWLEDGEMENT.
AGENCY OF TWENTYNINE PALMS
By:
Frank J. Luckino, City Manager
ATTEST:
By:
Cindy Villescas, City Clerk
APPROVED AS TO FORM:
By:
Patrick Munoz, City Attorney
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(ALL SIGNATURES MUST BE NOTARIZED AND CORPORATE SEALS AFFIXED, IF APPLICABLE)
END OF CONTRACT
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SECTION 510 – PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Twentynine Palms (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) an agreement for ______________________________ (hereinafter referred to as the “Project”); WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, the Contractor is required by the Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of the Contract Documents.
NOW, THEREFORE, we, ______________________________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of _______________________________________ DOLLARS, ($____________), the sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in the Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the guarantee obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
(2) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(3) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the
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cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. (4) Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the CITY, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code. [SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20___.
(Corporate Seal)
Contractor/ Principal
By
Title
(Attach Acknowledgment Form)
(Corporate Seal)
Surety
By
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Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THE FOLLOWING INFORMATION IS MANDATORY
Any claims under this bond may be addressed to:
(Name, Address and Telephone number of Surety)
(Name, Address and Telephone number of Agent or
Representative for service of process in
California, if different from above)
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NOTE: This acknowledgment is to be completed for Contractor/Principal.
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NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.
END OF PERFORMANCE BOND
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SECTION 520 – PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS THAT
WHEREAS, the City of Twentynine Palms (hereinafter designated as the “City”), by action taken or a resolution passed ___________ , 20____ has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
____________________________________________________________________________ (the “Work”); and
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, Principal is required to furnish a bond in connection with the contract described above; providing that if Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein
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above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of Contract, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Attach Acknowledgment Form)
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
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NOTE: This acknowledgment is to be completed for Contractor/Principal.
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NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.
END OF PAYMENT BOND
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SECTION 600 – GENERAL CONDITIONS
ARTICLE 1. DEFINITIONS
1. Acceptable, Acceptance or words of similar import shall be understood to be the acceptance of the Engineer and/or the City .
2. Act of God is an earthquake of magnitude 3.5 or higher on the Richter scale or a tidal wave.
3. Applicable Laws means laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.
4. Contract Documents includes only those items listed in Article 5 of the Contract for Construction.
5. Contractor shall mean the entity identified in the Contract for Construction with which the City has contracted for performance of the Work.
6. Day shall mean a 24-hour calendar day unless otherwise specifically designated.
7. Material shall include machinery, equipment, manufactured articles, or construction such as form work, fasteners, etc., and any other classes of material to be furnished in connection with the Contract, whether or not it will become a permanent part of the Work. All material shall be new unless specified otherwise.
8. Perform shall mean that the Contractor, at Contractor’s expense, shall take all actions necessary to complete the Work, including furnishing necessary labor, tools, and equipment, and providing and installing Materials that are indicated, specified, or required to complete such performance.
9. Project means the planning, design, development, financing, construction, and completion of the public work of improvement, which includes, but is not necessarily limited to, the Work. The Project may include construction that will be performed by others directly or through separate contracts.
10. Provide shall mean to complete in place, that is furnish, install, test and make ready for use.
11. Recyclable Waste Materials shall mean materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include asphalt, concrete, brick, concrete block, and rock.
12. Specifications means that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and workmanship for the work. Except for Sections 1-9 of the State of California Department of Transportation Standard Specifications and Standard Specifications for Public Works Construction (“Standard Specifications”) latest editions, which are specifically excluded from incorporation into these Contract Documents, the Work shall be done in accordance with the Standard
Specifications, including all current supplements, addenda, and revisions thereof. In the case of conflict between the Standard Specifications and the Contract Documents, the Contract Documents shall prevail.
13. City shall mean the City of Twentynine Palms, acting through properly authorized agents acting within the scope of the particular duties entrusted to them. Also sometimes
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referred to as the “City’s Representative” or “Representative” in the Contract Documents.
The terms City and Owner may be used interchangeably.
14. Work means the construction or related work that is to be performed under the Contract, including furnishing all labor, materials, equipment, and services. The Work may be all or a portion of the Project.
ARTICLE 2. CONTRACT DOCUMENTS
2.1 GENERAL
1. Contract Documents. The Contract Documents are complementary, and what is called for by one shall be as binding as if called for by all.
2. Interpretations. The Contract Documents are intended to be fully cooperative and to be complementary. If Contractor observes that any of the Contract Documents are in conflict, the Contractor shall promptly notify the City in writing. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:
a. Addenda, the most recent first
b. Special Provisions (or Special Conditions)
c. Technical Specifications
d. Plans (Contract Drawings)
e. Contract for Construction
f. General Conditions
g. Instructions to Bidders
h. Notice Inviting Bids
i. Contractor’s Bid Forms
j. Standard Specifications (Sections 1-9 Excluded)
k. Standard Plans
l. Reference Documents
With reference to the Drawings, the order of precedence shall be as follows:
a. Figures govern over scaled dimensions
b. Detail drawings govern over general drawings
c. Addenda or Change Order drawings govern over Contract Drawings d. Contract Drawings govern over Standard Drawings
e. Contract Drawings govern over Shop Drawings
3. Conflicts in Contract Documents. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard shall always apply.
4. Organization of Contract Documents. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing Work among subcontractors or in establishing the extent of Work to be performed by any trade.
2.2 COPIES & MAINTENANCE
Contractor will be furnished, free of charge, __3__ copies of the Contract Documents. Additional copies may be obtained at cost of reproduction.
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Contractor shall maintain a complete, clean, undamaged set of Contract Documents at the Site at all times during construction.
2.3 OWNERSHIP OF DRAWINGS
All Contract Documents furnished by the City are City property. They are not to be used by Contractor or any subcontractor on other work nor shall Contractor claim any right to such documents. With exception of one complete set of Contract Documents, all documents shall be returned to the City on request at completion of the Work.
2.4 DETAIL DRAWINGS AND INSTRUCTIONS
1. Examination of Contract Documents. Before commencing any portion of the Work, Contractor shall again carefully examine all Contract Documents, the Site and other information given to Contractor as to materials and other Work requirements.
Contractor shall immediately notify the City in writing of any potential error, inconsistency, ambiguity, conflict or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any subcontractor proceed with Work if uncertain as to the requirements of the Contract Documents.
2. Request for Information; Additional Instructions. Contractor may make a written request for information to address any error, inconsistency, ambiguity, conflict or lack of detail or explanation in the Contract Documents. The City will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work.
3. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and Contractor must use all diligence to inform itself fully as to the required construction and finish. In no case shall Contractor proceed with the Work without obtaining the City’s written approval as required for the proper performance of Work.
4. Contractor’s Variation from Contract Document Requirements. If Contractor varies from the requirements of the Contract Documents including the requirement to comply with all Applicable Laws, the City may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.
2.4 TECHNICAL SPECIFICATIONS
This Project follows the Caltrans 2018 Standard Specifications. Additions, removals, and revisions are contained in Attachment A, “Technical Special Provisions.” ARTICLE 3. EXISTENCE OF UTILITIES AT THE SITE
3.1 EXISTING UTILITIES
1. General – Known existing utilities and pipelines are shown on the Plans in their approximate locations. However, nothing herein shall be deemed to require the Owner to indicate the presence of existing service laterals or appurtenances whenever the
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presence of such utilities can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the site of the Project.
2. The Owner will assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are not identified by the Owner in the Contract Documents or cannot reasonably be inferred from the presence of other visible facilities.
3.2 UTILITY LOCATION
1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which have been marked by the respective utility owners and which the Contractor believes may affect or be affected by the Contractor’s operations. The Contractor shall not be entitled to additional compensation or time extensions for work necessary to avoid interferences or for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this section.
2. The locating of utilities shall be in conformance with Government Code section 4216 except for the Owner’s utilities located on the Owner’s property and not in public right-of-way.
3. A “High Priority Subsurface Installation” is defined in section 4216 (e) as “highpressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”
4. A “Subsurface Installation” is defined in section 4216 (l) as “any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, nonpressurized storm drains, or other non-pressurized drain lines.”
5. Pursuant to Government Code section 4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not more than 14 Days before performing any excavation. The Contractor shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. The Contractor shall furnish to the City written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.
6. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit. The City shall be given written notice prior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.
7. The Contractor’s attention is directed to the requirements of Government Code section 4216.2 (a)(2) which provides: “When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation prior to the legal excavation start date and time, as such date and time are authorized pursuant to paragraph (1) of subdivision (a) of section 4216.2. The excavator and the operator or its representative shall conduct an onsite meeting at a mutuallyPage 115 of 234 52 Twentynine Palms
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agreed-on time to determine actions or activities required to verify the location of the high priority subsurface installation prior to start time.” The Contractor shall notify the City in advance of this meeting.
3.3 UTILITY RELOCATION AND REPAIR
1. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, Contractor shall notify the City in writing.
2. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, Contractor shall call 911 emergency services.
3. City will compensate the Contractor for the costs of locating and repairing damage not due to the failure of the Contractor to exercise reasonable care, and for removing or relocating such main or trunk line utility facilities not indicated in the Contract Documents with reasonable accuracy, and for the cost of equipment on the Project necessarily idled during such work. The payment for such costs will be made as provided in Article 32 (Changes and Extra Work). The Contractor shall not be assessed liquidated damages for delay in completion of the Project when such delay is caused by the failure of the City or utility company to provide for removal or relocation of such utility facilities. Requests for extensions of time arising out of utility relocation or repair delays shall be filed in accordance with Article 30.c.
4. The public utility, where they are the owner of the affected utility, shall have the sole discretion to perform repairs or relocation work or permit the Contractor to do such repairs or relocation work at a reasonable price. The right is reserved to the City and the owners of utilities or their authorized agents to enter upon the Work area for the purpose of making such changes as are necessary for the rearrangement of their facilities or for making necessary connections or repairs to their properties. The Contractor shall cooperate with forces engaged in such work and shall conduct its operations in such a manner as to avoid any unnecessary delay or hindrance to the work being performed by such forces and shall allow the respective utilities time to relocate their facility.
5. When the Contract Documents indicate that a utility is to be relocated, altered or constructed by others, the City will conduct all negotiations with the utility company and the work will be done at no cost to the Contractor, unless otherwise stipulated in the Contract.
6. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractor’s responsibility and it shall make arrangements and bear all costs for such work.
ARTICLE 4. SCHEDULE
1. General Requirements. The schedule shall be prepared in a Critical Path Method (“CPM”) format and in an electronic scheduling program acceptable to City.
Contractor shall deliver the schedule and all updates to the City in both paper and electronic form. The electronic versions shall be in the original scheduling program format and include all data used to prepare the schedule, pdf. copies are not acceptable.
2. Initial Schedule. Within fourteen (14) days after the issuance of the Notice of Award, Contractor shall prepare a schedule for performance of the Work and shall submit it for the City’s review. The receipt or review of any schedules by the City shall not in any
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way relieve the Contractor of its obligations under the Contract Documents. Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for the required quality and timely completion of the Work. Contractor’s failure to incorporate all elements of Work or any inaccuracy in the schedule shall not excuse the Contractor from performing all of the required Work within the Contract Time.
If the initial schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the City.
3. Schedule Contents. The schedule shall allow enough time for inclement weather that can reasonably be expected at the Site. The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities.
The schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Work within the Contract Time.
Schedule duration shall match the Contract Time. Schedules indicating early completion will be rejected.
4. Schedule Updates. Contractor shall continuously update its construction schedule to show the actual status of the Work and incorporate changes in the Work.
Contractor shall submit an updated and accurate construction schedule to the City whenever requested to do so by City and with each progress payment request. The City may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule.
ARTICLE 5. SUBSTITUTIONS
1. Pursuant to Public Contract Code section 3400(b) the City may make a finding that is described in the invitation for bids that designates certain products, things, or services by specific brand or trade name.
2. Unless specifically designated in the Contract Documents, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless otherwise stated, offer for substitution any material, process or article which is substantially equal or better in every respect to what is specified in the Contract Documents.
3. Contractor shall submit written requests for substitution or any “equal” material, process or article, together with substantiating data, no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of substitution requests shall not in any way authorize an extension of the Contract Time. If a proposed “equal” substitution is rejected, Contractor shall be responsible for providing the specified material, process or article without adjustment to the Contract Price or Contract Time. The burden of proof as to the equality of any material, process or article shall rest with the Contractor. The City has the complete and sole discretion to determine if a material, process or article is an “equal” material,
process or article that may be substituted. Contractor shall furnish the specified item without change in the Contract Price if the City rejects the proposed substitution.
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4. Information required to substantiate requests for substitutions of an “equal” material, process or article data shall include a signed affidavit from the Contractor stating that, and describing how, the proposed “equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant material, including but not limited to, catalog information which describes the requested substitute “equal” material, process or article, and substantiates that it is an “equal” to the specified material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the proposed substituted “equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.
5. The Contractor shall bear all of the City’s costs associated with the review of substitution requests, including review by design professionals.
6. The Contractor shall be responsible for paying all costs related to a substituted “equal” material, process or article.
7. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.
ARTICLE 6. SUBMITTALS
6.1 GENERAL
1. Contractor shall furnish to the City for approval, prior to purchasing or commencing any Work, a log of all samples, material lists and certifications, mix designs, schedules, and other submittals, as required in the Specifications. The log shall indicate whether samples will be provided in accordance with other provisions of this Contract.
2. Contractor will provide samples and submittals, together with catalogs and supporting data required by the City, to the City within a reasonable time period to provide for adequate review and avoid delays in the Work.
3. Contractor shall sign all submittals affirming that submittals have been reviewed and approved by Contractor prior to submission to City. Each signed submittal shall affirm that the submittal meets all the requirements of the Contract Documents except as specifically and clearly noted and listed on the cover sheet of the submittal.
4. City will review such samples, but only for conformance with design concept of work and for compliance with information given in the Contract Documents. Work shall be in accordance with approved samples and submittals.
5. Contractor shall not be entitled to any extension of the Contract Time on account of the requirements of Article 6.
6.2 SHOP DRAWINGS
1. Contractor shall check and verify all field measurements and shall submit with such promptness as to provide adequate time for review and cause no delay in his own Work or in that of any other contractor, subcontractor, or worker on the Work, six (6) copies of all shop or setting drawings, calculations, schedules, and materials list, and all other provisions required by the Contract.
2. Contractor shall promptly address any City comments and resubmit. City’s review of shop drawings shall not relieve Contractor from responsibility for deviations
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from the Contract Documents unless Contractor has, in writing, called City’s attention to such deviations at time of submission and has secured the City’s written approval. City’s review of shop drawings shall not relieve Contractor from responsibility for errors in shop drawings.
ARTICLE 7. MATERIALS
1. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities whatsoever necessary to execute and complete this Contract within the Contract Time.
2. Unless otherwise specified, all materials shall be new and the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.
3. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work until City has accepted the Work.
4. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the work and agrees upon completion to deliver the Work to the City free from any claims, liens, or encumbrances.
5. Materials shall be stored on the Site in such manner so as not to interfere with any operations of the City or any independent contractor.
ARTICLE 8. CONTRACTOR’S SUPERVISION
Contractor shall continuously keep at the Site a competent and experienced full-time superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English.
Contractor shall continuously provide efficient supervision of the Work.
ARTICLE 9. WORKERS
1. Contractor shall at all times enforce strict discipline and good order among its employees and subcontractors. Contractor shall not employ or allow subcontractors to employ on the Work any unfit person or any one not skilled in the Work assigned to him or her.
2. Any person in the employ of the Contractor or a subcontractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Work except with the written approval of the City.
ARTICLE 10. SUBCONTRACTORS
1. Contractor agrees to bind every subcontractor to the terms of the Contract Documents as far as such terms are applicable to subcontractor’s portion of the Work.
Contractor shall be as fully responsible to the City for the acts and omissions of its
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subcontractors and of persons either directly or indirectly employed by its subcontractors as Contractor is for acts and omissions of persons directly employed by Contractor.
Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City.
2. Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act, Public Contract Code section 4100 et seq., before replacing a subcontractor listed in the bid or performing work with its own forces for which a subcontractor was listed.
ARTICLE 11. PERMITS AND LICENSES
Permits and licenses necessary for prosecution of the Work shall be secured and paid for by Contractor, unless otherwise specified in the Contract Documents.
1. Contractor shall obtain and pay for all other permits and licenses required for the Work, including excavation permit and permits for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of public agencies other than the City.
2. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the specifications, drawings, or by governing authorities, except for such off-site inspections identified as the City’s responsibility in the Contract Documents.
3. Before acceptance of the Work, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City.
ARTICLE 12. UTILITY USAGE
1. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor. Contractor shall Provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points on the Work where the utility is needed. Upon completion of the Work, Contractor shall remove all temporary distribution systems.
2. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Work, including but not limited to startup and testing required in the Contract Documents.
3. All permanent meters installed shall be listed in the Contractor’s name until the Work is accepted.
4. If Work is to be performed in existing City facilities, Contractor may, to the extent authorized by City in writing, use the City’s existing utilities. If Contractor uses City utilities, it shall compensate the City for utilities used.
ARTICLE 13. INSPECTION FEES FOR PERMANENT UTILITIES
All inspection fees and other municipal charges for permanent utilities including, but not limited to, sewer, electrical, phone, gas, water, and irrigation shall be paid by the City. Contractor shall be responsible for arranging the payment of such fees, but inspection fees and other municipal fees relating to permanent utilities shall be paid by the City. Contractor may either request reimbursement from the City for such fees, or shall be responsible for arranging and coordinating with City for the payment of such fees.
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ARTICLE 14. TRENCHES
14.1 TRENCHES FIVE FEET OR MORE IN DEPTH
1. The Contractor shall submit to the City, in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from the hazard of caving ground during the excavation of any trench or trenches five feet or more in depth. If the plan varies from shoring system standards forth in the Construction Safety Orders of the Division of Industrial Safety in Title 8, Subchapter 4, Article 6, California Code of Regulations, the plan shall be prepared by a registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations, and all costs therefor shall be included in the Contract Price. Nothing in this section shall be deemed to allow the use of a shoring, bracing, sloping, or other protective system less effective than that required by the Construction Safety Orders. Nothing in this section shall be construed to impose a tort liability on the Owner, any of its officers, officials, partners, employees, agents, consultants or volunteers. The Owner’s review of the Contractor’s excavation plan is only for general conformance to the Construction Safety Orders.
2. Prior to commencing any excavation, the Contractor shall designate in writing to the City the “competent person(s)” with the authority and responsibilities designated in the Construction Safety Orders.
14.2 EXCAVATIONS DEEPER THAN FOUR FEET
1. If work under this Contract involves digging trenches or other excavation that extends deeper than four feet below the surface, Contractor shall promptly, and before the following conditions are disturbed, notify the City, in writing, of any:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
b. Subsurface or latent physical conditions at the site differing from those indicated by information made available to bidders prior to the deadline for submitting bids.
c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract.
2. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, shall issue a change order under the procedures described in the Contract Documents.
3. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract.
Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties.
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ARTICLE 15. DIVERSION OF RECYCLABLE WASTE MATERIALS
In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be Contractor’s responsibility.
ARTICLE 16. REMOVAL OF HAZARDOUS MATERIALS
Should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB) or other toxic wastes and hazardous materials (as defined in section 25117 of the Health and Safety Code) at the Site which have not been rendered harmless, the Contractor shall immediately stop work at the affected area and shall report the condition to the City in writing. The City shall contract for any services required to directly remove and/or abate PCBs and other toxic wastes and hazardous materials, and shall not require the Contractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of City and Contractor.
ARTICLE 17. SANITARY FACILITIES
Contractor shall provide sanitary temporary toilet buildings for the use of all workers. All toilets shall comply with all applicable federal, state, and local codes, ordinances, and regulations. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers or as required by CAL-OSHA regulation. The toilets shall be maintained in a sanitary condition at all times. Use of toilet facilities in the Work under construction shall not be permitted. Any other Sanitary Facilities required by CAL-OSHA shall be the responsibility of the Contractor.
ARTICLE 18. AIR POLLUTION CONTROL
Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.
Without limiting the foregoing, Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (CARB). Contractor shall specifically be aware of the application of these limits and requirements to “portable equipment”, which definition is considered includes any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by the air quality management district, CARB, or any other governmental or regulatory agency for its violations of Applicable Laws as well as those of its subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in Article 34.
ARTICLE 19. COMPLIANCE WITH STATE STORM WATER PERMIT
1. Contractor shall be required to comply with all conditions of the State Water Resources Control Board (“State Water Board”) Water Quality Order No. 20090009-DWQ as modified by Order No. 2010-0014-DWQ, National Pollutant Discharge Elimination
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System General Permit for Waste Discharge Requirements for Discharges of Storm Water Discharges Associated with Construction Activity (“NPDES Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development. Contractor shall be responsible for filing the Notice of Intent and for obtaining the Permit. Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (“SWPPP”) prior to initiating Work. Contractor shall include in its bid all costs of procuring the Permit and preparing the SWPPP, as well as complying with the SWPPP and any necessary revision to the SWPPP. Contractor shall comply with all requirements of the State Water Resources Control Board. Contractor shall include all costs of compliance in the Contract Price.
2. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, monitoring and reporting requirements as required by the Permit. Contractor shall provide copies of all reports and monitoring information to the City.
3. Contractor shall comply with the lawful requirements of any applicable municipality, the City, drainage district, and other local agencies regarding discharges of storm water to separate storm drain system or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
4. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, Contractor, by submitting a Bid, hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.
5. Failure to comply with the NPDES Permit is a violation of federal and state law.
Contractor hereby agrees to indemnify, defend and hold harmless City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the Permit arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. City may seek damages from Contractor for
delay in completing the Work arising from Contractor’s failure to comply with the NPDES Permit.
ARTICLE 20. CLEANING UP
1. Contractor at all times shall keep Site free from debris such as waste, rubbish, and excess materials and equipment. Contractor shall not store debris under, in, or about the Site. Upon completion of Work, Contractor shall clean the interior and exterior of the building or improvement including fixtures, equipment, walls, floors, ceilings, roofs, windowsills and ledges, horizontal projections, and any areas where debris has collected so surfaces are free from foreign material or discoloration. Contractor shall clean and polish all glass, plumbing fixtures, and finish hardware and similar finish surfaces and equipment. Contractor shall remove temporary fencing, barricades, planking, construction toilets and similar temporary facilities from Site. Contractor shall clean all buildings, asphalt, and concrete areas to the degree necessary to remove oil, grease, fuel, or other stains caused by Contractor’s operations or equipment.
2. Contractor shall fully clean up the site at the completion of the Work or such other time as City may reasonably request. If the Contractor fails to clean up to the City’s
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satisfaction within one business Day, the City may do so and the cost of such clean up shall be charged back to the Contractor.
ARTICLE 21. LAYOUT AND FIELD ENGINEERING
All field engineering required for laying out the Work and establishing grades for earthwork operations shall be furnished by the Contractor at its expense. Layout shall be done by a qualified individual acceptable to the City. Any required “as-built” drawings of civil engineering elements of the Work shall be prepared by a registered civil engineer.
ARTICLE 22. NOISE
1. The Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by CAL-OSHA.
2. The Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations, and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Work without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return that equipment to the Site until the device is repaired or replaced. Noise and vibration level requirements shall apply to all equipment on the jobsite or related to the Work, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.
ARTICLE 23. TESTS AND INSPECTIONS
1. If the Contract Documents, the City, or any instructions, Applicable Law, or public authority require any part of the Work to be tested or approved in writing, Contractor shall provide the City at least two (2) working days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection. Required evidence or certificates of inspection shall be secured by Contractor. Costs for City testing, and City inspection shall be paid by the City. Costs of tests for Work found not to be in compliance with the Contract Documents or Applicable Law shall be paid by the Contractor.
2. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover and deconstruct the Work, and the Work shall be redone after completion of the testing in compliance with the Contract Documents, at the Contractor’s cost.
3. Where inspection and testing are to be conducted by an independent laboratory or agency, materials, or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.
4. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work.
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5. If the manufacture of materials to be inspected or tested will occur in a plant or location outside the geographic limits of City, Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.
6. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.
ARTICLE 24. PROTECTION OF WORK AND PROPERTY
1. Contractor shall be responsible for all damages to persons or property that occur as a result of or in connection with the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by the City. All Work shall be solely at the Contractor’s risk.
Contractor shall protect adjacent property from settlement or loss of lateral support as necessary and shall give all notices required by law.
Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Site. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction.
2. In an emergency affecting safety of life or of work or of adjoining property, Contractor, without special instruction or authorization from the City, shall act to prevent such threatened loss or injury; and Contractor shall so act, without appeal, if directed or instructed by the City. Any compensation claimed by Contractor on account of emergency work shall be determined in accordance with the provisions of Article 32 (Changes and Extra Work).
3. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.
4. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations.
Contractor shall:
a. Enclose the working area with a substantial barricade and arrange work to cause minimum amount of inconvenience and danger to the public. b. Provide substantial barricades around any shrubs or trees to be preserved.
c. Deliver materials to the Site over a route designated by the City. d. Provide any and all dust control required and follow the applicable air quality regulations as appropriate. If the Contractor does not comply immediately with a notice from City or a public agency responsible for air quality, the City shall have the authority to provide dust control and deduct the cost from payments to the Contractor.
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e. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City. Contractor shall not unreasonably encumber the Site with its materials.
f. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to City, at no cost to the City. g. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City. h. Preserve and protect from injury all buildings, pole lines and all direction, warning and mileage signs that have been placed within the right-of-way. i. At the completion of work each day, leave the Work and the Site in a clean, safe condition.
j. Comply with any stage construction and traffic handling plans. Access to residences and businesses shall be maintained at all times.
These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor.
5. Should damage to persons or property occur as a result of the Work, Contractor shall promptly notify City, in writing. Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired. The City shall be entitled to inspect and copy any such documentation, video, or photographs.
ARTICLE 25. CONTRACTORS MEANS AND METHODS
Contractor is solely responsible for the means and methods utilized to perform the Work. In no case shall the Contractor’s means and methods fall below commonly accepted industry standards.
ARTICLE 26. INSPECTOR’S FIELD OFFICE
1. Contractor shall be responsible for providing the inspector’s field office. The office shall be a substantial waterproof construction with adequate natural light and ventilation by means of stock design windows. Door shall have a key type lock or padlock clasp. The office shall have heating and air conditioning and shall be equipped with a telephone, a telephone answering machine, high-speed internet connection, and a fax machine at Contractor’s expense.
2. A table satisfactory for the study of plans and two chairs shall be provided by Contractor. Contractor shall provide and pay for adequate electric lights, local telephone service, and adequate heat and air conditioning for the field office until authorized removal.
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ARTICLE 27. AUTHORIZED REPRESENTATIVES
The City shall designate representatives, who shall have the right to be present at the Site at all times.
The City may designate an inspector who shall have the right to observe all of the Work.
The inspector is not authorized to make changes in the Contract Documents or excuse Contractor from performing in accordance with the Contract Documents. The inspector shall not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. Contractor shall provide safe and proper facilities for such access.
ARTICLE 28. LABOR
28.1 HOURS OF WORK
1. Eight (8) hours of work shall constitute a legal day’s work. The Contractor and each subcontractor shall forfeit, as penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of Work by the Contractor or any subcontractor for each day during which such worker is required or permitted to work more than eight (8) hours in any one day and forty (40) hours in any week in violation of the provisions of the Labor Code, and in particular, section 1810 to section 1815, except as provided in Labor Code section 1815.
2. Work shall be accomplished on a regularly scheduled eight (8) hour per day work shift, Monday through Friday, between the hours of 7:00 a.m. and 5:00 p.m.
3. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on City-observed holidays, unless otherwise approved by the City:
a. Powered Vehicles
b. Construction Equipment
c. Loading and Unloading Vehicles
d. Domestic Power Tools.
28.2 PAYROLL RECORDS
1. Pursuant to Labor Code section 1776, the Contractor and each subcontractor shall maintain weekly certified payroll records showing the name, address, social security number, work classification, straight time and overtime hours paid each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed in connection with the Work. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate.
Contractor shall also require subcontractor(s) to certify weekly payroll records under penalty of perjury.
2. In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR, which may include electronic submission. Contractor shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement.
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3. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.
4. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.
5. Any copy of records made available for inspection and furnished upon request to the public shall be marked or obliterated in such a manner as to prevent disclosure of an individual’s name, address, and social security number. The name and address of the Contractor or any subcontractor shall not be marked or obliterated.
6. In the event of noncompliance with the requirements of this section, the Contractor shall have ten (10) days in which to comply subsequent to receipt of written notice specifying any item or actions necessary to ensure compliance with this section.
Should noncompliance still be evident after such ten (10) day period, the Contractor shall, as a penalty to the City, forfeit One Hundred Dollars ($100.00) for each day, or portion thereof, for each worker until strict compliance is effectuated. Upon the request of the DIR, such penalties shall be withheld from contract payments.
28.3 PREVAILING RATES OF WAGES
1. The Contractor is aware of the requirements of Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since this Work involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov/dlse/. In the alternative, the Contractor may view a copy of the prevailing rates of per diem wages at the City. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to perform the Work available to interested parties upon request and shall post copies at the Contractor’s principal place of business and at the Site. Contractor shall defend, indemnify, and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.
2. The Contractor and each subcontractor shall forfeit as a penalty to the City not more than two hundred dollars ($200) for each Day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Labor Code. The difference between such stipulated prevailing wage rate and the amount paid to each worker for each Day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by the Contractor.
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3. Contractor shall post, at appropriate conspicuous points on the Site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.
28.4 PUBLIC WORKS CONTRACTOR REGISTRATION
Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its subcontractors must be registered with the Department of Industrial Relations prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR. Contractor shall maintain a current registration for the duration of the Project. Contractor shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all subcontractors are registered at the time this contract is entered into and maintain registration for the duration of the Project.
28.5 EMPLOYMENT OF APPRENTICES
The Contractor’s attention is directed to the provisions of sections 1777.5, 1777.6, and 1777.7 of the Labor Code concerning employment of apprentices by the Contractor or any subcontractor. The Contractor shall obtain a certificate of apprenticeship before employing any apprentice pursuant to sections 1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, the Administrator of Apprenticeships, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.
28.6 NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY/EMPLOYMENT ELIGIBILITY Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its subcontractors shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap on this Work. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap.
1. Employment Eligibility; Contractor. By executing this Contract, Contractor verifies that it fully complies with all Applicable Law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor. Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Contract and shall not violate any such law at any time during the term of the Contract. Contractor shall avoid any violation of any such law during the term of this Contract by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in this Article 28.
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2. Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any part of the Work or of this Contract to make the same verifications and comply with all requirements and restrictions provided for in Article 28.
3. Employment Eligibility; Failure to Comply. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of Contractor or its subcontractors, sub subcontractors or consultants to meet any of the requirements provided for in Article 28; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Article 28.5); or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.
28.7 LABOR/EMPLOYMENT SAFETY
The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 O.K. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4.
Contractor certifies that it is aware of and has complied with the provisions of California Labor Code section 6401.7, which requires every employer to adopt a written injury and illness prevention program.
ARTICLE 29. INSURANCE
29.1 WORKERS’ COMPENSATION INSURANCE
The Contractor shall obtain, and at all times during performance of the Work or Contract maintain, workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Site, and, in case any of sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code. The Contractor shall file with the City certificates of his insurance protecting workers. Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.
29.2 EMPLOYER’S LIABILITY INSURANCE
Contractor shall provide during the life of this Contract, Employer’s Liability Insurance, including Occupational Disease, in the amount of, at least, one million dollars ($1,000,000.00) per person per accident. Contractor shall provide City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.
29.3 COMMERCIAL GENERAL LIABILITY INSURANCE
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1. Contractor shall procure and maintain during the life of this Contract and for such other period as may be required herein, at its sole expense, occurrence form Commercial General Liability insurance coverage, at least as broad as the most current ISO CAL Form 00 01 including but not limited to, premises liability, contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits against one insured against another. Policy limits shall not be less than $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Defense costs shall be paid in addition to the limits.
2. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law.
3. Contractor shall make certain that any and all subcontractors hired by Contractor are insured in accordance with this Contract. If any subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.
4. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.
5. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above.
Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.
6. Such insurance shall comply with the provisions of Article 29.6 below.
29.4 AUTOMOBILE LIABILITY INSURANCE
Contractor shall take out and maintain at all times during the term of this Contract occurrence form Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, one million dollars ($1,000,000). Such insurance shall provide coverage for bodily injury and property
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damage including coverage for non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. Such insurance shall comply with the provisions of Article 29.6 below.
29.5 BUILDER’S RISK [“ALL RISK”]
1. It is the Contractor’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. The City accepts no responsibility for the Work until the Work is formally accepted by the City. The Contractor shall provide a certificate evidencing this coverage before commencing performance of the Work.
2. The named insureds shall be Contractor, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and City, its elected and appointed officers, agents, officials, employees and volunteers, as their interests may appear.
Contractor shall not be required to maintain property insurance for any portion of the Work following acceptance by City.
3. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to City to ensure adequacy and sublimit.
4. In addition, the policy shall meet the following requirements:
a. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract.
b. Coverage shall include all materials stored on site and in transit. c. Coverage shall include Contractor’s tools and equipment. d. Insurance shall include boiler, machinery and material hoist coverage.
5. Such insurance shall comply with the provisions of Article 29.6 below.
29.6 FORM AND PROOF OF CARRIAGE OF INSURANCE
1. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VII. Insurance deductibles or self-insured retentions must be declared by the Contractor, and such deductibles and retentions shall have the prior written consent from the City. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
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2. Contractor shall cause its insurance carrier(s) to furnish the City with either 1) a properly executed original Certificates(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein, or 2) if requested to do so in writing by the City’s Risk Manager, provide original certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect.
3. The City, its officials, officers, employees, agents and representatives shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its subcontractors’ policies of Commercial General Liability and Automobile Liability insurance using, for Contractor’s policy/ies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage), and, for subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, all available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder.
Contractor and its insurance carriers shall provide a Waiver of Subrogation in favor of those parties. Further, the Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate the Contract or stop the Work in accordance with the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until the City has been furnished original Certificate(s) of Insurance and certified original copies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this section. The original endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf.
4. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or selfinsured retentions or self-insured programs shall not be construed as contributory. The Contractor shall provide endorsement(s) to this effect, using ISO CG form 20 01 or endorsement(s) providing the exact same coverage, at the City’s request.
5. The City reserves the right to adjust the monetary limits of insurance coverages during the term of this Contract including any extension thereof if in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.
6. Contractor shall require all tiers of sub-contractors working under this Contract to provide the insurance required under this Article 29 unless otherwise agreed to in writing by City.
ARTICLE 30. TIME FOR COMPLETION AND LIQUIDATED DAMAGES
1. Time for Completion/Liquidated Damages. Work shall be commenced within ten (10) days of the date stated in the City’s Notice to Proceed and shall be completed by Contractor within the Contract Time(s) set forth in Article 2 of the Contract for
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Construction. If the Work is not completed within the Contract Time(s), it is understood that the City will suffer damage, and that is and will be difficult and/or impossible to ascertain and determine the actual damage which the City will sustain in the event of and by reason of the Contractor’s failure to complete the Work within the Contract Time(s).
Accordingly, as provided in Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $1000 for each and every Day of delay in completing the Work beyond the Contract Time, as Liquidated Damages and not as a penalty or forfeiture, the sum stipulated in the Contract for each Day of delay until the Work is fully completed. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.
2. Inclement Weather. Contractor shall be bound by the City’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the then-current Project schedule.
3. Extension of Time. Contractor shall not be charged liquidated damages because of any delays in completion of the Work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor (or its subcontractors or suppliers).
Contractor shall within five (5) Days of identifying any such delay notify the City in writing of causes of delay. The City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. Time extensions to the Work shall be requested by the Contractor as they occur and without delay. No delay claims shall be permitted unless the event or occurrence delays the completion of the Work beyond the Contract completion date.
4. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay, including delays caused by items that are the responsibility of the City pursuant to Government Code section 4215, shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.
ARTICLE 31. PAYMENT
31.1 COST BREAKDOWN AND PERIODIC ESTIMATES
Contractor shall furnish on forms approved by the City:
1. A detailed Schedule of Values giving an itemized breakdown of the Contract Price within ten (10) Days of award of the Contract. the Schedule of Values shall be adjusted as directed by City.
2. A monthly itemized estimate of Work done for the purpose of making progress payments. In order for the City to consider and evaluate each progress payment application, the Contractor shall submit a detailed measurement of Work performed and a progress estimate of the value thereof before the tenth (10th) Day of the following month.
3. Contractor shall submit, with each of its payment requests, an adjusted list of actual quantities, verified by the City, for unit price items listed, if any, in the Bid Form.
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4. Following the City’s acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request.
5. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment. Contractor will include all of the following materials with each payment application:
a. an updated schedule showing the actual status of the Work and incorporating all changes to the Work.
b. Contractor’s conditional waiver of lien for the entire amount covered by such payment request, as well as a valid unconditional waiver of lien from the Contractor and all subcontractors and materialmen for all work and materials included in any prior invoices. Waivers of lien shall be in the forms prescribed by California Civil Code sections 8132, 8134, 8136, and 8138. Prior to final payment by the City, the Contractor shall submit a final conditional waiver of lien for the Contractor’s work, together with unconditional releases of lien from any subcontractor or materialmen for all previous payments and conditional releases for any remaining payments.
c. Unconditional Waiver and Release of Liens upon Progress Payment from all subcontractors and material suppliers who have performed work or provided materials included in previous payment application.
6. Contractor shall certify under penalty of perjury that all cost breakdowns and periodic estimates accurately reflect the status of the Work and that all work included in the payment application meets the requirements of the Contract Documents.
31.2 MOBILIZATION
1. When the Bid Form includes a bid item for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific bid item will be included in the progress estimate as “Mobilization.” When no bid item is provided for “Mobilization,” payment for such costs will be deemed to be included in the other items of the Work.
2. Payment for Mobilization shall be based on the lump sum provided in the Bid Form, which shall constitute full compensation for all such Work. No payment for Mobilization will be made until all of the items listed below have been completed to the satisfaction of the City. The scope of the Work included under Mobilization shall include, but shall not be limited to, the following principal items:
3. Obtaining, paying for and delivering to City all bonds, insurance, and permits.
4. Moving on to the Site all Contractor’s plant and equipment required for first month’s operations.
5. Installing temporary construction power, wiring, and lighting facilities.
6. Establishing fire protection system.
7. Developing and installing a construction water supply.
8. Providing and maintaining the field office trailers for the Contractor and the City, complete, with all specified furnishings and utility services including telephones, telephone appurtenances, computer and printer, and copying machine.
9. Providing on-site communication facilities for the City, including telephones, radio pagers, and fax machines.
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10. Providing on-site sanitary facilities and potable water facilities as specified per Cal-OSHA and these Contract Documents.
11. Furnishing, installing, and maintaining all storage buildings or sheds required for temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer’s specified storage requirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and for all security.
12. Arranging for and erection of Contractor’s work and storage yard.
13. Posting all OSHA required notices and establishment of safety programs per CalOSHA.
14. Full-time presence of Contractor’s superintendent at the Site as required herein.
15. Submittal of initial Construction Schedule as required by the Contract Documents.
31.3 PAYMENTS
1. The City shall make monthly progress payments following receipt of undisputed and properly submitted payment requests. Unless otherwise specified in the Notice, Contractor shall be paid a sum equal to ninety five percent (95%) of the value of Work performed up to the last day of the previous month, less the aggregate of previous payments.
2. The Contractor shall, after the full completion of the Work, submit a final payment application. All prior progress estimates shall be subject to correction in the final estimate and payment.
3. Unless otherwise required by law, the final payment of five percent (5%) of the value of the Work, if unencumbered, shall be paid no later than sixty (60) Days after the date of recordation of the Notice of Completion.
4. Acceptance by Contractor of the final payment shall constitute a waiver of all claims against the City arising from this Contract except those previously stated in writing in accordance with Article 36.
5. Payments to the Contractor shall not be construed to be an acceptance of any defective work or improper materials, or to relieve the Contractor of its obligations under the Contract Documents.
31.4 PAYMENTS WITHHELD AND BACKCHARGES
In addition to amounts which City may retain under other provisions of the Contract Documents, City may withhold payments due to Contractor as City may consider appropriate to protect City from any of the following:
1. Stop Payment Notice Claims.
2. Defective work not remedied.
3. Failure of Contractor to make proper payments to its subcontractors or suppliers.
4. Completion of the Contract if there exists a reasonable doubt that the work can be completed for balance then unpaid.
5. Damage to another contractor or third party.
6. Amounts which may be due the City for claims against Contractor.
7. Failure of Contractor to keep the record (“as-built”) drawings up to date.
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8. Failure to provide updates on the construction schedule.
9. Site cleanup.
10. Failure of the Contractor to comply with requirements of the Contract Documents.
11. Liquated damages.
12. Legally permitted penalties.
Upon completion of the Contract, the City will reduce the final Contract Price to reflect costs charged to the Contractor, back charges or payments withheld pursuant to the Contract Documents.
ARTICLE 32. CHANGES AND EXTRA WORK
32.1 CHANGE ORDER WORK.
1. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and the Contract Price and Contract Time shall be adjusted accordingly. All such changes in the Work shall be authorized by Change Order and shall be performed under the applicable conditions of the Contract Documents. A Change Order signed by the Contractor indicates the Contractor’s agreement therewith, including any adjustment in the Contract Price or the Contract Time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order.
2. Contractor shall promptly execute changes in the Work as directed in writing by City even when the parties have not reached agreement on whether the change increases the scope of Work or affects the Contract Price of Contract Time, if any. All claims for additional compensation to the Contractor shall be presented in writing. No claim will be considered after the work in question has been done unless a written contract change order has been issued or a timely written notice of claim has been made by Contractor. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract Documents, and shall be subject to all terms, conditions and provisions of the original Contract Documents.
3. Owner Initiated Change. The Contractor must submit a complete cost proposal, including any change in the Contract Time, within seven (7) Days after receipt of a proposed change order initiated by City, unless City requests that proposals be submitted in less than seven (7) Days.
4. Contractor Initiated Change. The Contractor must give written notice of a claim for a proposed change order, additional compensation or adjustment of the Contract Time within seven (7) Days of discovery of the facts giving rise to the proposed change order.
32.2 COST PROPOSALS
1. Whenever possible, any changes to the Contract Price shall be in a lump sum mutually agreed to by the Contractor and the City.
2. Price quotations from the Contractor shall be accompanied by such detailed supporting documentation, including but not limited to estimates and quotations from subcontractors or material suppliers, as City may reasonably request.
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3. If the Contractor fails to submit a complete cost proposal within seven (7) Days (or as requested), the City has the right to order the Contractor in writing to commence the work immediately on a force account basis and/or issue a lump sum change to the Contract Price and/or Contract Time in accordance with the City’s estimate. If the change is issued based on the City estimate, the Contractor will waive its right to dispute the amount of compensation or time unless within fifteen (15) Days following receipt of the City’s estimate, the Contractor presents written proof that the City’s estimate was in error.
4. Estimates for lump sum quotations and accounting for force account work shall be limited to direct expenditures necessitated specifically by the extra work, and shall be segregated as follows:
a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the extra work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which would increase the cost of extra work will not be permitted unless the Contractor establishes the necessity for such new classifications. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.
b. Materials. The cost of materials reported shall be at invoice or lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials cost shall be based upon supplier or manufacturer’s invoice. If invoices or other satisfactory evidence of cost are not furnished within fifteen (15) Days of delivery, then the City shall determine the materials cost, at its sole discretion.
c. Tool and Equipment Use. Costs for the use of small tools, which are tools that have a replacement value of $1,000 or less, shall be considered included in the markups described below. Regardless of ownership, the rates to be used in determining equipment use costs shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the Work is performed.
d. Overhead, Profit and Other Charges. The mark-up for overhead (including supervision) and profit on work added to the Contract shall be determined in accordance with the following provisions:
(i) “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and subcontractors at cost only, without mark-up. Contractor shall provide City with documentation of the costs, including not limited to payroll records, invoices, and such other information as City may reasonably request.
(ii) For Work performed by the Contractor’s forces the added cost for overhead and profit shall not exceed fifteen (15%) percent of the Net Cost of the Work.
(iii) For Work performed by a subcontractor, the added cost for overhead and profit shall not exceed fifteen (15%) percent of the Subcontractor’s Net Cost of the Work, to which the Contractor may add five (5%) percent of the Subcontractor’s Net Cost.
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(iv) For Work performed by a sub-subcontractor the added cost for overhead and profit shall not exceed fifteen (15 %) percent of the Net Cost for Work, to which the subcontractor and general contractor may each add an additional five (5 %) percent of the Net Cost of the lower tier subcontractor.
(v) No additional markup will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by City exceed twenty-five (25%) percent of the Net Cost, as defined herein, of the party that performs the Work. e. All of the following costs are included in the markups for overhead and profit described above, and Contractor shall not receive any additional compensation for: Submittals, drawings: field drawings, Shop Drawings, including submissions of drawings; field inspection; General Superintendence; General administration and preparation of cost proposals, schedule analysis, Change Orders, and other supporting documentation; computer services; reproduction services; Salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; Janitorial services; Small tools, incidentals and consumables; Temporary on-Site facilities (Offices, Telephones, Internet access, Plumbing, Electrical Power, lighting; Platforms, Fencing, Water), Jobsite and Home office overhead or other expenses; vehicles and fuel used for work otherwise included in the Contract Documents; Surveying; Estimating; Protection of Work; Handling and disposal fees; Final cleanup; Other incidental Work; Related warranties.
f. For added or deducted Work by subcontractors, the Contractor shall furnish to the City the subcontractor’s signed detailed records of the cost of labor, material and equipment, including the subcontractor markup for overhead and profit. The same requirement shall apply to sub subcontractors. g. For added or deducted Work furnished by a vendor or supplier, the Contractor shall furnish to the City a detailed record of the cost to the Contractor, signed by such vendor or supplier.
h. Any change in the Work involving both additions and deletions shall indicate a net total cost, including subcontracts and materials. Allowance for overhead and profit, as specified herein, shall be applied if the net total cost is an increase in the Contract Price; overhead and profit allowances shall not be applied if the net total cost is a deduction to the Contract Price. The estimated cost of deductions shall be based on labor and material prices on the date the Contract was executed.
i. Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order. No claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The Contractor may not change or modify the City’s Change Order form in an attempt to reserve additional rights.
j. If the City disagrees with the proposal submitted by Contractor, it will notify the Contractor and the City will provide its opinion of the appropriate price and/or time extension. If the Contractor agrees with the City, a change order will be issued by the City. If no agreement can be reached, the City shall have the right to issue a unilateral change order setting forth its determination of the reasonable additions or savings in costs and time attributable to the extra or
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deleted work. Such determination shall become final and binding if the Contractor fails to submit a claim in writing to the City within fifteen (15) Days of the issuance of the unilateral change order, disputing the terms of the unilateral change order and providing such supporting documentation for its position as the City may reasonably require.
k. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve the Contractor from the obligation to proceed with performance of the changed work, including extra work, promptly and expeditiously.
l. Any alterations, extensions of time, extra work or any other changes may be made without securing consent of the Contractor’s surety or sureties.
ARTICLE 33. OCCUPANCY
The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract.
ARTICLE 34. INDEMNIFICATION
To the fullest extent allowed by law, Contractor shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, agents, employees, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, regardless of whether the allegations are false, fraudulent, or groundless, arising out of, related to, or in connection with the Work or this Contract, including claims made by subcontractors for nonpayment, and including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses.
Contractor shall defend, at Contractor’s own cost, expense and risk, with counsel of City’s choosing, any and all such suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its officials, officers, agents, employees and representatives. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City, its officials, officers, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.
ARTICLE 35. RECORD (“AS BUILT”) DRAWINGS
1. Contractor shall prepare and maintain a complete set of record drawings (herein referred to as “as-builts”) and shall require each trade to prepare its own as-builts. The as-builts must show the entire site for each major trade, including but not limited to water, sewer, electrical, data, telephone, cable, fire alarm, gas, and plumbing. Contractor shall mark the as-builts to show the actual installation where the installation varies from the Work as originally shown in the Contract Documents. Contractor shall mark whichever drawings are most capable of showing actual conditions fully. Where shop drawings are used, Contractor must record a cross-reference to the corresponding location on the contract drawings. Contractor shall give particular attention to concealed elements that would be difficult to measure, locate or record at a later date. Contractor shall use colors to distinguish separate categories of the Work.
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2. Contractor shall note related Change Order numbers where applicable.
Contractor shall organize as-builts into manageable sets, bound with durable paper cover sheets and shall print suitable title, dates and other identification on the cover of each set.
Contractor to also provide an electronic version of the as-builts. The suitability of the asbuilts will be determined by the City.
ARTICLE 36. RESOLUTION OF CONSTRUCTION CLAIMS
1. All public works claims between the Contractor and the City shall be resolved pursuant to the procedures set forth in Public Contract Code Section 9204. All public works claims of $375,000 or less which arise between the Contractor and the City shall also be resolved in accordance with Public Contract Code Sections 20104 et seq. and other applicable law, unless the City has elected to resolve the dispute pursuant to Public Contract Code Section 10240 et seq.
2. All claims shall be submitted in writing and accompanied by substantiating documentation. Claims must be filed on or before the date of final payment unless other notice requirements are provided in the contract. “Claim” means a separate demand by the claimant for (1) a time extension, including, without limitation, relief from damages or penalties for delay assessed by the City (2) payment of money or damages arising from work done by or on behalf of the claimant and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled, or (3) payment of an amount which is disputed by the City.
3. Contractor shall timely comply with all notices and requests for additional compensation and extensions of time, including but not limited to all requirements of Article 32, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of potential claim, or to timely provide any other notice or request required by the Contract Documents shall constitute a waiver of the right to these procedures.
4. The Contractor will submit all claims in the following format:
a. Summary of entitlement to Claim and amount of money and/or time requested and provisions of the Contract Documents for which the claim is made. b. All documents Contractor contends support the Claim, including but not limited to the following:
(i) Contract Documents
(ii) Clarifications (Requests for Information)
(iii) Schedules
(iv) Other materials, such as job diaries, invoices, time and material cost records, photographs, videos, etc.
(v) Chronology of events and correspondence
(vi) Analysis of claim merit
(vii) Analysis of claim amount
(viii) Time impact analysis in CPM format
c. Cover letter and certification of the claim, including any claims from subcontractors or suppliers of any tier, in accordance with the California False Claims Act, Government Code sections 12650 et seq.
5. Submission of a claim, properly certified, with all required supporting documentation, and written rejection or denial of all or part of the claim by City, is a
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condition precedent to any action, proceeding, litigation, suit, general conditions claim, or demand for mediation or arbitration by Contractor.
6. City Response to Claim. Upon receipt of a Claim pursuant to this Section, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the claim, or as extended by mutual agreement, shall provide a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the City issues its written response.
If the City needs approval from City Council to provide Contractor a written statement as set forth above, and City Council does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim, the City shall have up to three (3) days following the next publicly noticed meeting of City Council after the 45-day period, or extension, expires to provide Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim.
The City may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses or claims the City may have. If additional information is needed thereafter, it shall be provided upon mutual agreement of the City and the claimant. The City’s written response shall be submitted 30 days (15 days if the Claim is less than $50,000) after receiving the additional documentation, or within the same period of time taken by the claimant to produce the additional information, whichever is greater.
7. Meet & Confer Conference. If Contractor disputes the City’s response, or if the City fails to respond within the statutory time period(s), the Contractor may so notify the City within 15 days of the receipt of the response or the failure to respond, and demand an informal conference to meet and confer for settlement of those portions of the Claim that remain in dispute. Upon such demand, the City shall schedule a meet and confer conference within 30 Days.
Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed.
8. Mediation. Any portion of the Claim which remains in dispute following the meet and confer conference shall be submitted to nonbinding mediation. The selection of the mediator shall be in accordance with Public Contract Code section 9204 and the City and the Contractor shall equally share the mediator’s fees. Each party will be responsible for its own attorney’s fees and other costs incurred in the resolution of any Claim.
9. Government Code Claim. If the Claim or any portion thereof remains in dispute, the claimant must file a claim pursuant to Government Code 900 et seq. and Government Code 910 et seq. For purposes of those provisions, the time within which a claim must be filed shall be tolled from the time the claimant submits the written claim until the time the claim is denied, including any time utilized for the meet and confer conference or mediation.
ARTICLE 37. CITY’S RIGHT TO TERMINATE CONTRACT
37.1 TERMINATION FOR CAUSE:
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1. The City may, without prejudice to any other right or remedy, serve written notice upon Contractor of its intention to terminate this Contract in whole or in part if the Contractor: (i) refuses or fails to prosecute the Work or any part thereof with such diligence as will ensure its completion within the Contract Time; (ii) fails to complete the Work within the required time; (iii) files a bankruptcy petition or is adjudged a bankruptcy; (iv) makes a general assignment for the benefit of its creditors; (v) has a receiver appointed; (vi) refuses or fails to supply enough properly skilled workers or proper materials to complete the Work; (vii) fails to make prompt payment to subcontractors or for material or labor; (viii) disregards Applicable Laws, other requirements or instructions of the City; or (ix) violates any of the provisions of the Contract Documents.
2. The Notice of Default and Intent to Terminate shall state the reasons for termination. Unless within five (5) Days after the service of such notice, Contractor resolves the circumstances giving rise to the Notice of Default to the City’s satisfaction, or makes arrangements acceptable to the City for the required corrective action, this Contract shall terminate. In such case, Contractor shall not be entitled to receive any further payment until the Work has been finished. The City may take over and complete the Work by any method it may deem appropriate. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Work. If the City takes over the Work, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Site.
37.2 TERMINATION FOR CONVENIENCE:
1. In addition to its right to terminate this Contract for default, the City may terminate the Contract, in whole or in part, at any time upon ten Days written notice to Contractor.
The Notice of Termination shall specify that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.
2. After receipt of Notice of Termination, and except as directed by the City, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this Termination for Convenience clause, immediately proceed with the following obligations:
a. Stop Work as specified in the Notice.
b. Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents.
c. Leave the Site and any other property upon which the Contractor was working in a safe and sanitary manner such that it does not pose any threat to the public health or safety.
d. Terminate all subcontracts and purchase orders to the extent that they relate to the portions of the Work terminated.
e. Place no further subcontracts or orders, except as necessary to complete the remaining portion of the Work.
f. Submit to the City, within ten (10) Days from the effective date of the Notice of Termination, all of the documentation called for by the Contract Documents to substantiate all costs incurred by the Contractor for labor, materials and equipment through the Effective Date of the Notice of Termination.
Any documentation substantiating costs incurred by the Contractor solely as a result of the City’s exercise of its right to terminate this Contract pursuant to this
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Neighborhood Safety Project
clause, which costs the Contractor is authorized under the Contract Documents to incur, shall: (i) be submitted to and received by the City no later than thirty (30) Days after the Effective Date of the Notice of Termination; (ii) describe the costs incurred with particularity; and (iii) be conspicuously identified as “Termination Costs Occasioned by the City’s Termination for Convenience.” g. Owner’s total liability to Contractor by reason of the termination shall be limited to the total (without duplication of any items) of:
(i) The reasonable cost to the Contractor for all Work performed prior to the effective date of the termination, determined in accordance with the Force Account provisions of Article 48, including the Work done to secure the Project for termination. Reasonable cost may not exceed the applicable percentage completion values derived from the progress schedule and the Cost Breakdown.
Deductions shall be made for cost of materials to be retained by the Contractor, cost of Work defectively performed, amounts realized by sale of materials, and for other appropriate credits or offsets against cost of Work as allowed by the Contract Documents. Reasonable cost will include reasonable allowance for Project overhead and general administrative overhead.
(ii) When, in the Owner’s opinion, the cost of any item of Work is excessively high due to costs incurred to remedy or replace defective or rejected Work, reasonable cost to be allowed will be the estimated reasonable cost of performing the Work in compliance with requirements of the Contract Documents and excessive actual cost shall be disallowed.
(iii) A reasonable allowance for profit on cost of Work performed as determined in accordance with Article 48 provided that the Contractor establishes to the Owner’s satisfaction that the Contractor would have made a profit had the Project been completed and provided further that the profit allowed shall not exceed five percent (5%) percent of the cost. (iv) Reasonable costs to the Contractor of handling material returned to vendors, delivered to the City or otherwise disposed of as directed by the Owner.
(v) A reasonable allowance for the Contractor’s internal administrative costs in preparing termination claim.
(vi) Reasonable demobilization costs, and reasonable payments made to Subcontractors or suppliers on account of termination.
3. In no event shall the City be liable for unreasonable costs incurred by the Contractor or subcontractors after receipt of a notice of termination. Such nonrecoverable costs include, but are not limited to, the cost of or anticipated profits on Work not performed as of the date of termination, post-termination employee salaries, unreasonable post-termination administrative expenses, post-termination overhead or unabsorbed overhead, surety costs of any type, costs of preparing and submitting the Contractor’s termination claim, attorney fees of any type, and all other costs relating to prosecution of a claim or lawsuit.
4. The City shall have no obligation to pay the Contractor under this Article (Termination for Convenience) unless and until the Contractor provides the City with updated and acceptable as-builts and Record Documents for Work completed prior to termination.