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billion of premium into the global marketplace. Where needed, we have access to each carrier’s top management and home-office decision makers. These strategic market relationships help us to negotiate the best pricing, terms and conditions, coverage, and claims recoveries for the City of Vernon. Assisted by our extensive global benchmarking database, Aon brokers consistently deliver the best customized market solutions for you at the most competitive cost. Obviously, market selection is a dynamic process and changes frequently during the renewal process, so Aon will approach all viable carriers in each of Vernon’s coverage areas to obtain the best coverage at the best price. This is crucial during this time of dramatic premium increases and coverage changes.
The City of Vernon has asked for our recommendations for the most preferred markets on specific coverage lines. These are outlined below:
Property — Malburg AEGIS, Swiss Re, SCOR, EIM, HDI and Lloyds Excess Liability— Malburg AEGIS, EIM
DIC (EQ/FL)— Malburg Trisura, Lloyds
Cyber Liability Cowbell
Property— Utility Starr Tech
Excess Liability Homesite, Lexington, Kinsale, Gemini,
Arch, Acceptance
Excess Workers Compensation Safety National
Property-Habitational/Municipal Hanover
Terrorism Hiscox
Crime/Bonds
Allmerica Financial Benefit Insurance
Co/Hanover, Hartford, Zurich
Pollution Liability Illinois Union
APD Hanover
H. Affidavit of Non-Collusion
Proposer must submit a completed and executed, “Affidavit of Non-Collusion.” (Copy attached as Exhibit A).
Please refer to Appendix for Exhibit A-Affidavit of Non-Collusion.
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Appendix
Appendix A: Affidavit of Non-Collusion
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Appendix B: Licenses
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Aon Risk Insurance Services West, Inc.
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Appendix C: Roadmap
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Appendix D: Contract Exceptions
9.2 Contractor’s liability to City, in total, for the duration of the parties’ business relationship for any and all damages, not otherwise waived under this Agreement, including costs, expenses and attorneys’ fees incurred in any underlying action by City that may be or are characterized as “compensatory or other damages,” whether based on contract, tort (including negligence), or otherwise, in connection with or related to Contractor’s services (including a failure to provide a service) or any other service that Contractor provides shall be limited to a total aggregate amount of USD $2.5 million (“Liability Limitation”), to the fullest extent permitted by law.
This Liability Limitation shall apply to City and extend to City’s parent(s), affiliates, subsidiaries, and their respective directors, officers, employees, and agents (hereinafter, each a “City Related Entity”) wherever located that seek to assert claims against Commercial Risk Solutions, and its parent(s), affiliates, subsidiaries and their respective directors, officers, employees, and agents (each a “Contractor Related Entity”). Nothing in this Liability Limitation section implies that Contractor or any Contractor Related Entity owes or accepts any duty or responsibility to City or any City Related Entity.
If City or any City Related Entity asserts any claims or makes any demands against Commercial Risk Solutions or any Contractor Related Entity for a total amount in excess of this Liability Limitation, then City agrees to indemnify Contractor for any and all liabilities, costs, damages, and expenses, including attorneys’ fees, incurred by Commercial Risk Solutions or any Contractor Related Entity that exceeds this Liability Limitation.
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Each party agrees to waive its right to a trial by jury in any lawsuit or other legal proceeding against the other party and/or in the case of Contractor, its parent(s), affiliates, or subsidiaries and in the case of City and its respective commissioners, officers, employees and agents, in connection with, arising out of or relating to this Agreement or any services provided to City by Contractor or its affiliates. In any such action or legal proceeding, neither party shall name, as a defendant any individual employee, officer or director of the other party or its parent(s), affiliates, or subsidiaries or commissioners, officers, employees and agents, as applicable.
All insurance Additional Insured and Waiver of Subrogation endorsements will be via blanket endorsement.
EXHIBIT D
COMMERCIAL RISK SOLUTIONS U.S. BUSINESS TERMS
Surplus Lines and Other Government Taxes
Insurance may not be available in the admitted marketplace for the terms and conditions specified by the City. In such event, Contractor’s insurance proposal may include one or more insurers not licensed to transact insurance in the states of exposure and such coverage may be placed as surplus lines coverage pursuant to applicable insurance laws governing the placement of insurance with non- admitted insurers. Persons and entities insured by surplus lines insurers cannot avail themselves of the protection and recovery afforded by the state insurance guaranty funds in the event the surplus lines insurer should become insolvent. The states do not audit the finances or review the solvency of surplus lines insurers.
In some instances, these insurance placements made by Contractor or its affiliates on the City’s behalf may require the payment of state surplus lines, excise, or other taxes and/or fees in addition to the premium itself. Contractor will endeavor to identify any such tax and/or fee in advance, but in all instances the payment of these taxes and/or fees will remain the responsibility of the City. Contractor will invoice the City for the payment of such taxes and fees where it is Contractor’s responsibility to do so.
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City Responsibilities
Contractor will deliver the Included Services based upon the information that the City and its representatives provide. The City is responsible for the accuracy and completeness of the information and Contractor accepts no liability under any circumstances, including all costs and expenses, howsoever arising from the City’s failure to provide such accurate and complete information to Contractor.
Contractor must receive promptly the information to deliver the Included Services as well as the City’s prompt updates to any information where there has been a material change which may affect the scope or delivery of the Included Services, such as a change in the nature of the risk, insured entities, property values and persons or entities to be covered. An inflationary environment and supply chain delays, among other factors, increase losses and therefore the City is encouraged to engage professional appraisers to conduct current property valuations to help avoid underinsured losses or delays in loss adjustments.
To the extent that any portion of Contractor’s compensation, by operation of law, agreement or otherwise, becomes adjusted or credited to the City, it is the City’s responsibility to disclose the actual net cost of the brokerage and insurance costs City have incurred to third party(ies) having an interest in such amounts.
Claim Notification to Insurers
Unless Contractor has a specific signed agreement with the City to the contrary, it is the City’s responsibility to take such steps as are necessary to directly notify those insurers whose policies may apply to any circumstances, occurrences, claims, suits, demands and losses in accordance with the terms and conditions of City’s policies. Contractor assumes no duty or responsibility with respect to such notifications or monitoring the City’s obligation to place insurers on notice unless undertaken in a separate written agreement. The City may send copies of such notices to members of Contractor staff for informational purposes only, but the receipt of such notice by Contractor shall not create additional duties or obligations owed by Contractor to the City nor constitute notice to City’s insurers.
Contract and Lease Review; General Advice
In instances where Contractor provides summaries of contractual requirements or provisions, or any suggested additional or alternative wordings to any contract or lease at the City’s request, such language must be reviewed by the City’s legal advisor before City takes action based upon Contractor’s statements. Contractor Aon Risk Insurance Services West, Inc.
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does not and cannot provide legal advice as to whether the City’s insurance program covers legal obligations contained in the City’s contracts or leases. All descriptions of the insurance coverages are subject to the terms, conditions, exclusions and other provisions of the policies or any applicable regulations, rating rules or plans. Furthermore, it is understood that none of the services provided by Contractor are of a legal nature and Contractor shall not give legal opinions or provide legal advice or representations.
Confidentiality
Contractor takes client confidentiality seriously. We have established controls to protect City’s information. We are willing to enter an agreement as City may require for the protection of City’s confidential data. The City acknowledges and agrees that the work products provided by Contractor are not to be distributed, used, or relied upon by third parties without the written consent of both Contractor and the City, except as may be required by City’s legal, accounting and non-insurance financial advisors who agree to be bound by this confidentiality agreement.
Intermediaries
Contractor encourages its retail brokers to approach markets directly (without an intermediary) wherever possible. However, where Contractor believes it is in the City’s best interest, We may recommend the use of intermediaries, including but not limited to co-brokers, sub-brokers, managing general agents/managing general underwriters, wholesale brokers, or reinsurance brokers (collectively, “Intermediary”) to assist in the procurement and servicing of the City’s insurance.
Contractor prefers, wherever possible, to use the services of an Aon-affiliated Intermediary and Contractor shall not be responsible for a non-Aon affiliated Intermediary’s actual or alleged acts, errors, or omissions or those of its officers, directors, or employees. Any and all compensation earned by an Intermediary in connection with the programs shall be in addition to the compensation paid to Contractor and shall not be credited against the fees.
Use of Non-Personal Data and Information
City acknowledges that the Aon Group (as defined below) gathers non-personal data about its clients and their related parties in respect of services provided and, where applicable, clients’ (re)insurance placements, including but not limited to names, industry codes, policy types, premium and policy expiration dates, claims and other loss related services, as well as information about the insurance Aon Risk Insurance Services West, Inc.
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companies that provide coverage to Contractor’s clients to compete for such clients’ (re)insurance placements. This information may be shared, subject to local law restrictions, among Aon affiliated businesses, as well as with third-party service providers acting on Contractor’s behalf, on a global basis to help carriers strengthen their value proposition to clients with a focus on creating distinctive value for clients. In addition to being used to provide customized services and recommendations to Contractor’s clients, the information may be used for (i) identifying client opportunities; (ii) optimizing and improving Contractor products, services and operations; (iii) creating industry reports, conducting benchmarking and undertaking market research; (iv) providing and developing analytical solutions; and (v) performing statistical, financial and risk modelling, among other services. Aon Group members may earn compensation for providing such services to their clients, service providers, (re)insurers and other business partners.
Due to the global nature of services provided by the Aon Group, information that the Aon Group receives may be transmitted, used, stored, and otherwise processed outside of the country where the City submitted the information.
For purposes of this section, ‘Aon Group’ means the Aon group of entities worldwide, being Aon plc, Aon’s ultimate parent company, and all its subsidiaries, related/associated companies, affiliates as well as joint ventures of such subsidiaries, related/associated companies and affiliates.
Use of Logos
Unless otherwise instructed by the City, Contractor will use the City’s logo, pictures, and other publicly available information to effectively market the City’s programs or for use in Contractor’s business records.
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Premium Remittance
Premiums paid by the City to Contractor for remittance to insurers and City premium refunds paid to Contractor by insurance companies for remittance to the City are deposited into fiduciary accounts in accordance with applicable insurance laws until they are due to be paid to the insurance company or the City. Subject to such laws and the applicable insurance company’s consent, where required, Contractor will retain the interest or investment income earned while such funds are on deposit in such accounts.
Insurance Proposals and Summaries
Contractor’s insurance documents containing proposals to bind coverage, summaries of coverages, and certificates of insurance placed are furnished as a matter of information for the City’s convenience. These documents summarize proposed and placed policies and are not intended to reflect all the terms, conditions, and exclusions of such policies. Moreover, the information contained in these documents reflects proposed or placed coverage as of the effective dates of the proposed policies or the date of the summaries and does not include subsequent changes. These documents are not themselves insurance policies and do not amend, alter, or extend the coverages afforded by the proposed or placed policies. The insurance afforded by the proposed or placed policies is subject to all the terms, conditions and exclusions contained in such policies as they are issued by the insurers.
Insurer Solvency
While Contractor only engages insurers who meet certain requirements as established by Contractor from time to time, Contractor makes no representation, guarantee or warranty as to the solvency or ability of any insurer to pay any amounts for insurance claims or otherwise.
Pricing
Contractor does not and cannot guarantee the availability or price of insurance for the City’s risks and is not responsible for fluctuation in the premiums charged by insurers. Contractor will rely on the City to review and approve any calculation or estimation of premium and Contractor is not responsible for any loss occasioned as a result of Contractor’s calculation or estimation of premium and statutory charges that may apply to the City’s insurance.
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Mutual Limited Waiver of Liability
Neither party to this Engagement Letter shall be liable to the other for any indirect, incidental, special, consequential, exemplary, punitive or reliance damages (including, without limitation, lost or anticipated revenues, lost business opportunities or lost sales or profits, whether or not either party has been advised of the likelihood of such damages) or for any attorney’s fees (whether incurred in a dispute or an action against the other, or as alleged damages that any party incurred in any insurance coverage dispute, or otherwise) arising out of services provided by Contractor or its affiliates.
Standard Terms and Conditions
Contractor assumes no responsibility for the adequacy or effectiveness of programs or coverages that Contractor did not implement or place.
Any loss control services, summaries and/or surveys performed by Contractor are advisory in nature and are for the sole purpose of assisting the City in City’s development of its risk control and safety procedures. Such services and/ or surveys are limited in scope and do not constitute a safety inspection nor verify that the City is in compliance with federal, state, and local laws, statutes, ordinances, recommendations, regulations, consensus codes or other standards.
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About Aon
Aon plc (NYSE: AON) exists to shape decisions
for the better — to protect and enrich the lives
of people around the world. Our colleagues
provide our clients in over 120 countries and
sovereignties with advice and solutions that
give them the clarity and confidence to make
better decisions to protect and grow their
business.
© Aon plc 2023. All rights reserved.
The information contained herein and the
statements expressed are of a general nature
and are not intended to address the
circumstances of any particular individual or
entity. Although we endeavor to provide
accurate and timely information and use
sources we consider reliable, there can be no
guarantee that such information is accurate as
of the date it is received or that it will continue
to be accurate in the future. No one should act
on such information without appropriate
professional advice after a thorough
examination of the particular situation.
www.aon.com
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EXHIBIT
B
SCHEDULE
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Aon Risk Insurance Services West, Inc.
| Public Entities Practice Group
707 Wilshire Blvd., Suite 2500
| Los Angeles CA 90017
t +1.213.630.3210
|
m +1.213.200.0080
|
o +1.213.630.3200 | f +1.213.996.1783
| aon.com
CA Corp. Lic. No. 0363334
February 6, 2024
City of Vernon
Javier Valdez
4305 Santa Fe. Ave.,
Vernon CA 90058
Dear Javier:
Please find details of our proposed compensation for our Broker Services Contract.
Fees and Cost Schedule
Aon proposed a renewal flat fee of $92,500 for the entire City of Vernon insurance program and commissions for the property and liability programs for the Vernon Public Utility Program (Malburg Generating Station) with no inflationary increases during the entire term of the contract. Additionally, we will not accept ant contingent commissions, underwriting fees, wholesale broker fees, broker service fees, carrier overrides or any other form of direct or indirect revenues. We would propose to earn commissions on any new placement not currently contemplated by the request for proposal.
It is important to note that Aon rarely uses wholesalers, does not own any wholesalers (this would create the appearance of or an actual conflict) and does not have contingent commission agreements with any of the carriers listed as recommendations in Section H of this proposal that would impact City of Vernon. There are no hidden fees. If domestic wholesalers, London, or Bermuda must be used to facilitate a placement, this will be fully disclosed to the client beforehand as these entities will retain any commissions, they may earn for such a placement.
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All compensation will be clearly disclosed to the City of Vernon.
Annual Cost
2024/2025 2025/2026 2026/2027 2027/2028 2028/2029
92,500 92,500 92,500 92,500 92,500
If you have any further questions, please feel free to contact me.
Regards,
William S. Deeb. Ed.D.
Director of Public Entities
Aon Risk Insurance Services West, Inc.
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EXHIBIT C
EQUAL EMPLOYMENT OPPORTUNITY
PRACTICES PROVISIONS
A. Contractor certifies and represents that, during the performance of this Agreement, the contractor and each subcontractor shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. Contractor further certifies that it will not maintain any segregated facilities.
B. Contractor agrees that it shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of Contractor, state that it is an "Equal Opportunity Employer" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age.
C. Contractor agrees that it shall, if requested to do so by the City, certify that it has not, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class.
D. Contractor agrees to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of its records pertaining or relating to its employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law.
E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law.
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City Council Agenda Report
Meeting Date: March 5, 2024
From: Carlos Fandino, City Administrator
Department: City Administration
Submitted by: Diana Figueroa, Management Analyst
Subject
Amendment No. 1 to the Southeast Rio Vista Family YMCA Services Agreement Recommendation
A. Find that Amendment No. 1 to the Services Agreement with Southeast-Rio Vista Family YMCA is exempt from the competitive bidding and selection process pursuant to Vernon Municipal Code Section 3.32.110(B)(3) where the best interests of the City are served by a direct award; and B. Approve and authorize the City Administrator to execute Amendment No. 1 to the Services Agreement with Southeast-Rio Vista Family YMCA for wellness programming memberships and wear and tear of YMCA facilities, equipment, and supplies, in substantially the same form as submitted, increasing the contract amount by $120,000 for a total not-to-exceed contract amount of $220,000 for the term of the Agreement.
Background
The implementation of programs that promote social, educational, and recreational well-being can empower people and help communities thrive. To make available to its residential population enrichment programs that are generally offered via Parks and Recreation organizations in traditional cities, the City Council approved a Services Agreement with YMCA Southeast Rio Vista Family YMCA, a branch of Metropolitan Los Angeles on February 4, 2020.
Upon the expiration of the initial YMCA Services Agreement, on February 2, 2023, the City Administrator approved and authorized a Services Agreement (Agreement) with Southeast Rio Vista Family YMCA for three years in an amount of $100,000, with an effective date of February 4, 2023. Pursuant to Vernon Municipal Code (VMC) Section 3.32.110(B)(3), the City Administrator determined that the best interests of the City were served by a direct award.
Through its strategic partnership with the YMCA (the Y), a well-established nonprofit organization, the City has made an effort to address the wellness needs of the Vernon residential community. To ensure that the City sustains such programming for Vernon residents, staff is proposing an amendment to its existing Agreement with the Y to maintain no-cost access to valuable services. Amendment No. 1 will accomplish the following:
• Add funds to the existing Agreement to subsidize annual memberships, class participation, sports programming, and swim lessons for all Vernon resident households. o In 2023, there was a significant surge in enrollment, with approximately 50 families (nearly 70% of the City’s population) with active Y memberships. With this increase, funds for the Y Agreement have depleted more rapidly than anticipated. • Provide a mechanism for the City to assist the Y in corrective maintenance of facilities and grounds, and the repair and replacement of essential equipment and supplies needed for the provision of programs and services. o Presumably, the participation of Vernon families in activities offered at the Y increases wear and tear on the Y’s facilities, grounds, and equipment. It is, therefore, important that the City have the option to offer support to aid in the Y’s operational continuity.
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The addition of funds in the amount of $120,000 proposed in Amendment No. 1 should be sufficient to cover Y membership and participation costs for Vernon residents, to facilitate select maintenance and repairs, and to resupply specific equipment for the remainder of the Agreement term (which expires on February 2, 2026).
Because of the Y’s proven reputation in the community, its unique programming offerings suitable for all ages, proximity to Vernon (the Southeast Rio Vista Y is about two miles from the City’s center), the large percentage of Vernon family memberships, and the City’s investment in the sports facilities at the Southeast Rio Vista Y location (a contribution of $75,000 toward the Maywood Park Dodgers Dreamfield), staff recommends that Council find that the additional funding proposed in Amendment No. 1 is in the best interests of the City, pursuant to VMC Section 3.32.110(B)(3).
It is recommended that Council approve and authorize the City Administrator to execute Amendment No. 1 with the Y increasing the contract amount by $120,000. Contracts exceeding $100,000 shall be approved by Council, pursuant to VMC Section 3.32.030(B). The proposed Amendment No. 1 with the Y has been reviewed and approved as to form by the City Attorney's Office.
Fiscal Impact
The fiscal impact of the YMCA Services Agreement is not-to-exceed $220,000, including $120,000 for Amendment No. 1. Sufficient funds are available in General Fund, Community Development Department, Professional Services - Other Account No. 011-010-160-529215, City Administration Department, Community Development Fund, for the current fiscal year and will be budgeted in subsequent years.
Attachments
1. Amendment No. 1 to the Southeast Rio Vista Family YMCA Services Agreement ..
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January 2023
AMENDMENT NO. 1 TO THE SERVICES AGREEMENT BETWEEN THE CITY OF
VERNON AND SOUTHEAST-RIO VISTA FAMILY YMCA, A BRANCH OF THE YMCA
OF METROPOLITAN LOS ANGELES FOR COMMUNITY-BASED WELLNESS
PROGRAMMING FOR THE CITY OF VERNON
This Amendment No. 1 (Amendment) to the Agreement for Community-Based Wellness Programming dated February 4, 2023(Agreement), is made as of March 5, 2024 by and between the City of Vernon, a California charter city and municipal corporation (City) and Southeast-Rio Vista Family YMCA, a branch of the YMCA of Metropolitan Los Angeles(Contractor),a nonprofit organization.
The City and Contractor agree as follows:
RECITALS
A.The City and Contractor are parties to a written Agreement dated February 4, 2023, under which Contractor provides community-based wellness programming for the City of Vernon.
B. The City and Contractor desire to amend the Agreement to:
(1) amend Exhibit B (Fees and Cost) of the Agreement to include a process for reimbursement requests for “wear and tear” expenses caused by Vernon community usage which consist of corrective maintenance and upkeep of facilities and grounds, replacement and repair of equipment and supplies essential for community programming and that may impact operational continuity;and (2) increase the Contractor’s total compensation by an amount not to exceed $120,000 to cover additional costs resulting from increased annual membership dues and an increase of Vernon resident annual membership enrollments for which the City reimburses Contractor; and to cover expenses related to wear and tear of Contractor’s facilities, equipment, and supplies.
NOW, THEREFORE, the parties to this Amendment agree as follows:
1. Effective as of March 5, 2024, Exhibit B (Fees and Costs) of the Agreement, attached to this Amendment as Exhibit A, is hereby amended.
2. Contractor’s grand total consideration from March 5, 2024 to February 3, 2026, shall not exceed a total amount of $220,000, without prior City Council approval and written amendment of the Agreement.
3. Except as expressly modified by this Amendment, all provisions of the Agreement shall remain in full force and effect.
4. The provisions of this Amendment shall constitute the entire agreement of the parties with respect to the subject matter included in this Amendment and shall supersede any other agreement, understanding, or arrangement, whether written or oral, between the parties with respect to the subject matter of this Amendment. ..
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5. The person or persons executing this Amendment on behalf of each of the parties warrants and represents that he or she has the authority to execute this Amendment on behalf of that party and has the authority to bind that party to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date stated in the introductory clause.
City of Vernon, a California Charter City and
California municipal corporation
_______________________________
CARLOS R. FANDINO, JR.,
City Administrator
ATTEST:
________________________________
LISA POPE,
City Clerk
APPROVED AS TO FORM:
_______________________________
ZAYNAH N. MOUSSA,
City Attorney
Southeast-Rio Vista Family YMCA, a
branch of the YMCA Metropolitan Los
Angeles, a nonprofit organization
By:
Name:
Title:
By:
Name:
Title:
Mark Dengler
EVP & COO
Jenny Chan
EVP & CFO
Southeast-Rio Vista Family YMCA
Amendment No. 1
_______________________
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EXHIBIT
B
FEES AND COSTS
Fees to be charged to the City of Vernon:
Services and Programming
1. Family: $900 per annual Family Membership (calculated as $75 per monthly Family Membership)- two (2) adults (age eighteen (18) and older) and children under eighteen (18) who are related to, and living in the same household as, the adult.
2. Individual Adult: $420 per annual Individual Adult Membership (calculated as $35 per monthly Individual Adult Membership – One (1) adult (age eighteen (18) and older)
3. Individual Teen: $300 per annual Individual teen membership (calculated as $25 per monthly Individual Teen – one (1) teen age twelve (12) to seventeen (17). Teens will require an adult signed waiver to enroll for a membership.
4. Programming and Services: $28 per hour per individual staff member for programming or service delivery (e.g. grocery drop-offs for senior citizens residing in Vernon) at City designated facilities. Hours and staff limitations will be coordinated and agreed upon by the City and the Y.
5. Recreational Sports Activities: $125 per child per program - access to the Dodgers Dreamteam Program; Jr. Clippers Basketball Leagues; Jr. Galaxy Soccer Program; and LA Kings Ball Hockey Program. Y members have access to all Recreational Sports Activities at no additional cost. Fees for non-members are $125 per child per program.
6. Swim Lessons: Offered seasonally at $50 per individual per session. Family swim times and pool usage is available to Y members when pool facilities are open. Dates and hours of operation may vary and will be determined by the Y.
Programs, sports, and swim lessons are all available to Vernon residents on a first-come-first-served basis by registering through the Y. Costs for programs and services noted above will be paid by the City on behalf of Vernon residents who provide proof of residency to the Y.
The YMCA will invoice the City on a quarterly basis and reimbursement requests to the City of Vernon will include the following:
a) Number of memberships issued during the term
b) Address of card holder (to confirm residency)
c) Number of family members
d) Number of school-age children
e) Summary of activities of interest
Wear and Tear
It is expected that normal wear and tear of YMCA facilities and grounds will occur, in part as a result of regular use by Vernon resident members participating in the various programs offered at the Y. As such, the City may elect to assist the Y in covering costs related to corrective maintenance and upkeep of facilities and grounds, and replacement and repair of equipment and supplies essential for community-based programming.
In order for the City to consider expending funds on eligible wear and tear, the Y must provide a brief description of the item(s) needed and Vernon’s proportionate associated cost in advance of any purchase. The City will review a request from the Y and will determine whether funding for all or a portion of the requested item(s) is feasible. The City reserves the right to deny any wear and tear fund requests for maintenance, supplies, or equipment at the Y’s facilities/grounds.
Southeast-Rio Vista Family YMCA
Amendment No. 1
_______________________
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City Council Agenda Report
Meeting Date: March 5, 2024
From: Freddie Agyin, Director of Health and Environmental Control Department: Health and Environmental Control
Submitted by: Veronica Petrosyan, Deputy Director of Health and Environmental Control
Subject
National Association of County and City Health Officials (NACCHO) Grant Program Agreement Between the City of Vernon and Wellness and Equity Alliance, LLC (WEA) Recommendation
Approve and authorize the City Administrator to execute the NAACHO Grant Program Agreement with WEA, in substantially the same form as submitted, for a vaccine equity project, for a total amount not-to-exceed $150,000, for the duration of the NACCHO grant term ending on July 31, 2024.
Background
On October 24, 2022, the City executed a services agreement with WEA for Health Officer services and a Community Health Needs Assessment (CHNA). The CHNA identified the need to expand the capacity of the Department of Health and Environmental Control to include public health services. As a result, the City Council approved funding for WEA to pilot public health services during fiscal year 2023-2024. Accordingly, WEA has piloted the following public health services as part of the first phase of capacity building: • Clinical service is offered directly to the Vernon community at the Vernon Health + Wellness Center (VH+WC) located at City Hall.
• Clinical service offerings via the mobile health vans on-site at Vernon business locations and outside city limits.
• Intervention service offerings with integrated behavioral health services.
As per the service agreement and on behalf of the city, WEA applied for and the City received a grant award (“Partnership for Vaccine Equity Project”) of $150,000 from the National Association of County and City Health Officials (NACCHO) to address inequities in COVID-19 and influenza vaccination coverage among racial and ethnic minority adults.
The Partnership for Vaccine Equity Project is designed to support the City’s health department and the Vernon Health + Wellness Center (VH+WC) to identify and address drivers of vaccine hesitancy, engage community and community influencers to support vaccine messaging, provide education and vaccine delivery at the community level and facilitate relationships between the city and the community to increase confidence and access opportunities.
With grant funding and support from NACCHO, the City of Vernon and the staff of the Vernon Health + Wellness Center (as powered by WEA) will meet the following objectives:
1. Improve understanding of current barriers to COVID-19 and influenza vaccination for adults in Vernon and the surrounding SELA communities.
2. Identify vaccine inequities and opportunities for enhanced vaccine education and access at the local level.
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3. Develop and enhance local collaborations to improve vaccine education, outreach, and access for identified adult populations.
4. Contribute to shared learning and reporting challenges, results, and outcomes throughout the project.
In order for the City to utilize grant funds to compensate WEA for their work related to NACCHO project objectives, a separate grant agreement is required between the City and WEA specifically for this purpose. All funds paid to WEA under the proposed agreement will be derived directly from City grant funds received from NACCHO. The proposed agreement requires City Council approval pursuant to Vernon Municipal Code (VMC) Section 3.32.030 as the total contract amount exceeds $100,000.
The proposed agreement aligns with the city’s strategic goals and objectives outlined in the original public health services agreement with WEA, provides that WEA is bound to comply with all NACCHO project and reimbursement terms, ensures the efficient use of grant funds, and facilitates the project's timely completion. The WEA grant agreement will expire on July 31, 2024, aligning with the NACCHO grant term.
The proposed agreement has been reviewed and approved-as-to-form by the City Attorney.
Fiscal Impact
Award of the NACCHO grant resulted in $150,000 in additional revenue to the General Fund.
The grant funds will cover 100% of the costs associated with the NACCHO grant program agreement with WEA.
Attachments
1. NACCHO Grant Program Agreement with WEA ..
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NACCHO GRANT PROGRAM AGREEMENT BETWEEN THE CITY OF VERNON
AND WELLNESS AND EQUITY ALLIANCE, LLC
THIS GRANT PROGRAM AGREEMENT ("Agreement") is entered into on March 5, 2024 by and between the City of Vernon, a California charter City and California municipal corporation ("City") and Wellness and Equity Alliance, LLC, a California Limited Liability Company (“WEA”). City and WEA are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.” R E C I T A L S A. The City has been selected to participate in the National Association of County and City Health Officials (“NACCHO”) Partnering for Vaccine Equity Project (“Project”). The City has been awarded $150,000.00 through this Project to address inequities in COVID-19 and influenza vaccination coverage among racial and ethnic minority adults.
B. The City has agreed to the NACCHO Standard Contract Terms and Conditions.
C. WEA is able and willing to abide by all the terms of the NACCHO Standard Contract Terms and Conditions.
D. WEA provided the City with a letter of commitment to the City on September 13, 2023 to partner with the City in executing the goals and objectives outlined in NACCHO’sPartnering for Vaccine Equity grant.
E. City desires to enter into this Agreement for WEA to provide the services required by the NACCHO Project.
F. WEA desires to enter into this Agreement with Cityto provide the services for the City and NACCHO as required by the Project.
G. The City and WEA desire to ratify services provided by WEA under the NACCHO Project and to provide that WEA agrees to be bound by the NACCHO Project terms.
AGR E EMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, City and WEA hereby agree as follows:
1. TERM.
1.1 Term. This Agreement begins on the Effective Date and expires on July 31, 2024 (“Term”), unless terminated earlier in accordance with the terms herein.
2. SERVICES.
2.1 Scope of Work. WEA must complete the proposedProject in accordance with the Scope of Work attached hereto as Exhibit A.
2.2 Invoices. WEA must complete the Scope of Work for the Project and submit properly itemized invoices to the satisfaction of the City and as contained in ..
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the executed Contractor Agreement between the City and NACCHO attached hereto as Exhibit B. The NACCHO award number must be included on all invoices.
2.3 Use of Grant Monies. WEA’s use of any Project funds must comply with the Contractor Agreement between the City and NACCHO. WEA must comply with all applicable federal laws and regulations, including the Code of Federal Regulations (C.F.R.) Part 200 (Uniform Administrative Requirements, Costs Principles, and Audit Requirements for Federal Awards), and 45 C.F.R. Part 75 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards). It is WEA’s responsibility to understand and comply with all requirements set forth therein.
3. COMPLIANCE WITH CONTRACTOR AGREEMENT BETWEEN CITY
AND NACCHO AND INDEMNIFICATION OF CITY.
3.1 WEA agrees to comply with all the provisions of the Contractor Agreement between the City and NACCHO. WEA must indemnify, defend (with counsel reasonably acceptable to City), protect, and hold City, and its officers, employees, agents and representatives, harmless from, any and all claims of any kind or nature arising out of the Project or this Agreement or the implementation hereof, including, but not limited to, any damages to property, injuries to persons or accidental death (including reasonable attorneys’ fees and costs), which may be caused by work performed under this Agreement or any activities associated with the Project, whether such activities or work is performed by WEA or by anyone directly or indirectly employed or contracted with by WEA (“Claims”). WEA's indemnity obligations under this section will survive termination of this Agreement. WEA's indemnity obligations under this section do not extend to claims, demands, damages, defense costs or liability for property damage, bodily injury or death occasioned by the willful misconduct of the City, or its officers, employees, agents or representatives.
3.2 WEA hereby waives, releases and discharges forever the City, and its employees, officers, volunteers, agents and representatives, from any and all present and future Claims arising out of or in any way connected with this Agreement, the performance of the Project, or WEA's obligation to comply with all laws with respect to the Agreement.
4. LEGAL REQUIREMENTS.
4.1 Compliance with Applicable Laws. WEA must comply with all laws applicable to the performance of the Project.
4.2 Nondiscrimination and Equal Opportunity. WEA must not discriminate, on the basis of a person’s race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), against any employee, contractor employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or contractor for any services or programs provided by WEA under this Agreement.
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5. GENERAL PROVISIONS.
5.1 Compliance with Laws. WEA must carry out the Project in conformity with all applicable federal, state and local laws, including Labor Code requirements; all provisions of the City's Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans with Disabilities Act, 42 U.S.Code Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq., and Executive Order (E.O.) 11246, "Equal Employment Opportunity," as amended by E.O. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and as supplemented by regulations at 41 C.F.R. Part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."
5.2 Ownership of Materials. WEA hereby transfers and assigns to City all right, title and interest (including copyright rights) in and to all materials created or developed by WEA pursuant to this Agreement, including, without limitation, reports, summaries, articles, pictures and art (collectively, the “Materials”) (subject to any licensed third-party rights retained therein). WEA must inform City in writing of any third- party rights retained within the Materials and the terms of all license agreements to use any materials owned by others. WEA understands and agrees that WEA retains no rights to the Materials and must assist City, upon reasonable request, with respect to the protection and/or registrability of the Materials. WEA represents and warrants that, unless otherwise stated to City in writing, the Materials are original works and do not infringe or violate the rights of any third party or violate any law. The obligations of this paragraph are subject to any applicable requirements of a Federal funding agency.
5.3 Assignment. Without the prior written consent of the City, WEA may not assign this Agreement nor delegate any duties herein.
5.4 Notices, Demands and Communications between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give to the other party under this Agreement must be in writing and may be given by email to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice.
To City:
Freddie Agyin, Director of Health & Environmental Control City of Vernon
4305 Santa Fe Ave
Vernon, CA 90058
Email: [email protected]
To WEA:
Nancy Anwar Evans
250 Quail Ridge Road
Scotts Valley, CA 95066
Email: [email protected]
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Notices sent by a party's attorney on behalf of such party are deemed delivered by such party.
5.5 Relationship between City and WEA. It is hereby acknowledged that the relationship between City and WEA is not that of a partnership or joint venture and that City and WEA are not deemed or construed for any purpose to be the agent of the other. WEA agrees to indemnify, hold harmless and defend City from any claim made against City arising from a claimed relationship of partnership or joint venture between City and WEA with respect to the Project or Agreement.
5.6 Entire Agreement. This Agreement, including ExhibitsA and B attached hereto and incorporated herein, contains the entire understanding between the parties relating to the transactions contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and will be of no further force or effect.
5.7 Consistency. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting provisions.
5.8 Amendments. Any alteration, change or modification of or to this Agreement, in order to become effective, must be made in writing and in each instance signed on behalf of each party.
5.9 Conflicts of Interest. No member, official or employee of City can have any personal interest, direct or indirect, in this Agreement, nor must any such member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
5.10 Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect.
5.11 Applicable Law; Venue. The laws of the State of California, without regard to conflict of laws principles, must govern the interpretation and enforcement of this Agreement. In the event of litigation between the Parties, venue in state trial courts lies exclusively in the County of Los Angeles, California Superior Court. In the event of litigation, venue lies exclusively in the United States District Court, Central District of California, in Los Angeles.
5.12 No Third Party Rights. This Agreement is made and entered into solely for the benefit of the City and WEA and no other third party has any right of action under this Agreement.
5.13 Disclosure of Documents. WEA acknowledges that the City is subject to the provisions of the California Public Records Act and that any information submitted to the City may be disclosed to the extent required by law.
5.14 Liability. WEA is wholly liable for any Claims arising out of this Agreement.
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5.15 Termination
. In addition to City’s right to terminate under Section 1, City or WEA may terminate this Agreement for any reason with or without cause upon at least 15 days written Notice to the other party.
The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party.
CITY OF VERNON, a California charter
City and California municipal
corporation:
By:
Carlos R. Fandino Jr.,
City Administrator
ATTEST:
Lisa Pope, City Clerk
APPROVED AS TO FORM:
Zaynah N. Moussa, City Attorney
WELLNESS AND EQUITY ALLIANCE, LLC:
By:
Tyler Evans,
Chief Executive Officer
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Exhibit A - Scope of Work
With support from NACCHO, the City of Vernon and WEA seeks to meet the objectives and corresponding Scope of Work below:
1. Improve understanding of current barriers to COVID-19 and influenza vaccination for adults in Vernon.
2. Identify vaccine inequities and opportunities for enhanced vaccine education and access in Vernon.
3. Develop and enhance local collaborations to improve vaccine education, outreach, and access for identified adult populations in Vernon.
4. Contribute to shared learning and reporting of challenges, results, and outcomes throughout the project period to NACCHO.
5. With the support of NACCHO, conduct a CDC’s Rapid Community Assessment activity designed to identify communities at-risk for low vaccine uptake, better understand the local community’s vaccine needs and decisions, and identify areas of intervention and prioritize potential intervention strategies.
6. Plan and implement a communications campaign to promote influenza and COVID-19 vaccination uptake using lessons learned from the Rapid Community Assessment activity.
7. Identify and implement an intervention beyond a communications campaign that enhances collaboration and coordination of adult immunization services with partner CBOs.
Some of our examples are, but are not limited to:
o Provider education to enhance timely and accurate administration and communication of recommendation vaccinations o Coordination of mobile vaccination, home visits and/or workplace vaccination program o Healthcare provider practice support (IIS enrollment, standing orders, data sharing agreements, reminder/recall)
8. Develop a workplan and corresponding evaluation plan with identified program activities, outcomes, and goals.
9. Develop and share documentation of collaborating and coordinating with CBO partner(s) to improve adult immunization services (e.g. policies and procedures, educational materials for community, promotional materials, training modules, sample MOUs, data sharing, cost sharing, and other legal agreements between the entities).
10. Participate in scheduled (i.e., monthly, or bi-monthly) calls with NACCHO to monitor project progress, engage in peer networking, share best practices and resources, and receive technical assistance. Technical assistance may include facilitating connections between demonstration sites and subject matter experts, training opportunities for other local health department staff, and/or providing activity planning and implementation support.
11. Complete NACCHO’s Roots of Health Inequity course and incorporate learnings in Vernon’s practice or strategies.
12. Partner with NACCHO to develop new and/or update existing materials and share subject matter expertise focused on adults from racial and ethnic minority groups experiencing inequities in influenza and COVID-19 vaccination coverage and uptake;
13. Participate in evaluation activities and document project outcomes, such as:
o Participate in NACCHO’s evaluation and assessment activities conducted at baseline, mid-year, and project close;
o Documentation of the partnership development process with a logic model; and o Final report documenting methods, results, conclusions, and lessons learned.
14. Submit to the City and NACCHO progress reports (monthly, bi-monthly, quarterly, etc.) COV-WEA NACCHO Grant Program Agreement
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to share outcomes challenges, and needs related to vaccine promotion and accessibility activities.
15. Designate one main point of contact with whom NACCHO will directly communicate on all matters related to this project.
16. All services for the Scope of Work must be completed by July 31, 2024.
WEA understands and agrees no payments will made by the City for services provided after July 31, 2024.
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NACCHO CONTRACT # 2023-112017
CONTRACTOR AGREEMENT
This Contractor Agreement is entered into, effective as of the date of the later signature indicated below, by and between the National Association of County and City Health Officials (hereinafter referred to as “NACCHO”), with its principal place of business at 1201 (I) Eye Street NW 4th Fl., Washington, DC 20005, and City of Vernon, a California charter City and California Municipal Corporation (hereinafter referred to as “Contractor”), with its principal place of business at 4305 S Santa Fe Avenue Vernon, California 90058-1714.
WHEREAS, NACCHO wishes to hire Contractor to provide certain goods and/or services to NACCHO;
WHEREAS, Contractor wishes to provide such goods and/or services to NACCHO; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, do hereby agree as follows:
ARTICLE I: SPECIAL PROVISIONS
1. PURPOSE OF AGREEMENT: Contractor agrees to provide the goods and/or services to NACCHO to enhance the programmatic activities of CDC GRANT #6 NU38OT000306-03-06, CFDA #93.421, as described in Attachment I. The terms of Attachment I shall be incorporated into this Agreement as if fully set forth herein. Contractor shall act at all times in a professional manner consistent with the standards of the industry.
2. TERM OF AGREEMENT: The term of the Agreement shall begin on August 1, 2023, and shall continue in effect until July 31, 2024, unless earlier terminated in accordance with the terms herein. Expiration of the term or termination of this Agreement shall not extinguish any rights or obligations of the parties that have accrued prior thereto. The term of this Agreement may be extended by mutual agreement of the parties.
3. PAYMENT FOR SERVICES: In consideration for professional services to be performed, NACCHO agrees to pay Contractor an amount not to exceed $150,000.00. All payments will be made within 30 days of receipt of invoice(s) from Contractor and following approval by NACCHO for approved services, as outlined on Attachment I. Five invoices must be submitted as follows:
Invoice No. Amount Deliverable Due date
Invoice I $10,250.00 Attend project Kick-Off Meeting ($1,500.00) Completion of pre-assessment($1,250.00)
Submission of partner agreement($7,500.00)
September 15, 2023
Invoice II $28,750.00 Complete CDC’s Rapid Community
Assessment in jurisdiction and submit
summary report of methods, findings and
September 15, 2023
Exhibit B – Contractor Agreement
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Contract # 2023-112017 Page 2
opportunities for vaccine education and
promotion($20,000.00)
Develop and submit a project workplan,
evaluation plan, and vaccine communications
plan for project period($8,750.00)
Invoice III $32,500.00 Completion of bi-annual report 1 (reporting on August through December activities)
($ 5,000.00)
Completion of project mid-year assessment
($2,500.00)
Completion of Roots of Inequity course
module($5,000.00)
February 15, 2024
Invoice IV $42,500.00 Submission of all materials, products, and/or collateral developed, adapted and utilized in
vaccine communications
campaign($15,000.00)
Complete and submit report including
outcomes of vaccine communications
campaign($7,500.00)
Submission of resource
deliverable($20,000.00)
May 15, 2024
Invoice V $36,000.00 Completion of bi-annual report 2 (reporting on January through June activities)
($ 5,000.00)
Completion and submission of final report
and project close activities($10,000.00)
Partnership Impact Report($7,500.00)
Presentation on intervention implemented
that enhances collaboration and coordination
of adult immunization services($10,000.00)
Regular Meeting Attendance($3,500.00)
July 31, 2024
NACCHO award number must be included on all invoices. Unless otherwise expressly stated in this Agreement, all amounts specified in, and all payments to be made under, this Agreement shall be in United States Dollars. The parties agree that payment method shall be made by check, via postage-paid first class mail, at the address for the giving of notices as set forth in Section 24 of this Agreement. Any changes of payment method would require a modification signed by both parties. The final invoice must be received by NACCHO no later than 15 days after the end date of the Agreement. Contractor will be given an opportunity to revise as needed but the final revised invoice must be received no later than 30 days after the end date of the Agreement. NACCHO will not accept any invoices past 30 days of the end date of the Agreement.
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ARTICLE II: GENERAL PROVISIONS
1. INDEPENDENT CONTRACTOR: Contractor shall act as an independent contractor, and Contractor shall not be entitled to any benefits to which NACCHO employees may be entitled.
2. PAYMENT OF TAXES AND OTHER LEVIES: Contractor shall be exclusively responsible for reporting and payment of all income tax payments, unemployment insurance, worker's compensation insurance, social security obligations, and similar taxes and levies.
3. LIABILITY: All liability to third parties, loss, or damage as a result of claims, demands, costs, or judgments arising out of activities, such as direct service delivery, to be carried out by the Contractor in the performance of this agreement shall be the responsibility of the Contractor, and not the responsibility of NACCHO, if the liability, loss, or damage is caused by, or arises out of, the actions of failure to act on the part of the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor.
All liability to third parties, loss, or damage as result of claims, demands, costs, or judgments arising out of activities, such as the provision of policy and procedural direction, to be carried out by NACCHO in the performance of this agreement shall be the responsibility of NACCHO, and not the responsibility of the Contractor, if the liability, loss, or damage is caused by, or arises out of, the action or failure to act on the part of any NACCHO employee.
In the event that liability to third parties, loss, or damage arises as a result of activities conducted jointly by the Contractor and NACCHO in fulfillment of their responsibilities under this agreement, such liability, loss, or damage shall be borne by the Contractor and NACCHO in relation to each party’s responsibilities under these joint activities.
4. REVISIONS AND AMENDMENTS: Any revisions or amendments to this Agreement must be made in writing and signed by both parties.
5. ASSIGNMENT: Without prior written consent of NACCHO, Contractor may not assign this Agreement nor delegate any duties herein.
6. CONTINGENCY CLAUSE: This Agreement is subject to the terms of any agreement between NACCHO and its Primary Funder and in particular may be terminated by NACCHO without penalty or further obligation if the Primary Funder terminates, suspends or materially reduces its funding for any reason. Additionally, the payment obligations of NACCHO under this Agreement are subject to the timely fulfillment by the Primary Funder of its funding obligations to NACCHO.
7. INTERFERING CONDITIONS: Contractor shall promptly and fully notify NACCHO of any condition that interferes with, or threatens to interfere with, the successful carrying out of Contractor's duties and responsibilities under this Agreement, or the accomplishment of the purposes thereof. Such notice shall not relieve Contractor of said duties and responsibilities COV-WEA NACCHO Grant Program Agreement
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under this Agreement.
8. OWNERSHIP OF MATERIALS: Contractor hereby transfers and assigns to NACCHO all right, title and interest (including copyright rights) in and to all materials created or developed by Contractor pursuant to this Agreement, including, without limitation, reports, summaries, articles, pictures and art (collectively, the “Materials”) (subject to any licensed third-party rights retained therein). Contractor shall inform NACCHO in writing of any third-party rights retained within the Materials and the terms of all license agreements to use any materials owned by others. Contractor understands and agrees that Contractor shall retain no rights to the Materials and shall assist NACCHO, upon reasonable request, with respect to the protection and/or registrability of the Materials. Contractor represents and warrants that, unless otherwise stated to NACCHO in writing, the Materials shall be original works and shall not infringe or violate the rights of any third party or violate any law. The obligations of this paragraph are subject to any applicable requirements of the Federal funding agency. Acceptance of grant funds obligates recipients to comply with the standard patent rights clause in 37 CFR Part 401.14
9. RESOLUTION OF DISPUTES: The parties shall use their best, good faith efforts to cooperatively resolve disputes and problems that arise in connection with this Agreement. Both parties will make a good faith effort to continue without delay to carry out their respective responsibilities under the Agreement while attempting to resolve the dispute under this section.
If a dispute arises between the parties that cannot be resolved by direct negotiation, the dispute shall be submitted to a dispute board for a nonbinding determination. Members of the dispute board shall be the Director or Chief Executive Officer of the Contractor, the Chief Executive Officer of NACCHO, and the Senior Staff of NACCHO responsible for this Agreement. The costs of the dispute board shall be paid by the Contractor and NACCHO in relation to the actual costs incurred by each of the parties. The dispute board shall timely review the facts, Agreement terms and applicable law and rules, and make its determination.
10. TERMINATION: Either party may terminate this Agreement upon at least fifteen (15) days prior written notice to the other party. NACCHO will pay Contractor for services rendered through the date of termination.
11. ENTIRE AGREEMENT: This Agreement contains all agreements, representations, and understandings of the parties regarding the subject matter hereof and supersedes and replaces any and all previous understandings, commitments, or agreements, whether oral or written, regarding such subject matter.
12. PARTIAL INVALIDITY: If any part, term, or provision of this Agreement shall be held void, illegal, unenforceable, or in conflict with any law, such part, term or provision shall be restated in accordance with applicable law to best reflect the intentions of the parties and the remaining portions or provisions shall remain in full force and effect and shall not be affected.
13. GOVERNING LAW: RESERVED.
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14. ADDITIONAL FUNDING: Unless prior written authorization is received from NACCHO, no additional funds will be allocated to this project for work performed beyond the scope specified or time frame cited in this Agreement.
15. REMEDIES FOR MISTAKES: If work that is prepared by the Contractor contains errors or misinformation, the Contractor will correct error(s) within five business days. The Contractor will not charge NACCHO for the time it takes to rectify the situation.
16. COMPLIANCE WITH FEDERAL LAWS AND REGULATIONS: Contractor’s use of funds under this Agreement is subject to the directives of and full compliance with 2 CFR Part 200 (Uniform Administrative Requirements, Costs Principles, and Audit Requirements for Federal Awards), and 45 C.F.R. Part 75 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards), It is the Contractor’s responsibility to understand and comply with all requirements set forth therein.
17. EQUAL EMPLOYMENT OPPORTUNITY: Pursuant to 2 CFR 200 Subpart D , Contractor will comply with E.O. 11246, "Equal Employment Opportunity," as amended by E.O. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and as supplemented by regulations at 41 C.F.R. part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."
18. DEBARRED OR SUSPENDED CONTRACTORS: Pursuant to Executive Order 12549 and Executive Order 12689 entitled “Debarment and Suspension” and 2 CFR 180, Contractor certifies to the best of its knowledge that it is not presently debarred or suspended and will execute no subcontract with parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Non-procurement Programs.
19. LOBBYING RESTRICTIONS AND DISCLOSURES: Pursuant to 2 CFR 200 Subpart E, Contractor hereby certifies that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Contractor will also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.
20. SALARY LIMITATION: Pursuant to CDC Additional Requirement – 32: Appropriation Act, General Provisions, cap on Salaries (Division H, Title II, General Provisions, Sec. 202): None of the funds appropriated in this Agreement shall be used to pay the salary of an individual, through a grant or other extramural mechanism, at a rate in excess of Executive Level II. Note:
The salary rate limitation does not restrict the salary that an organization may pay an individual working under an HHS contract or order; it merely limits the portion of that salary that may be paid with federal funds.
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21. COMPLIANCE WITH FEDERAL ENVIRONMENTAL REGULATIONS: Pursuant to 2 CFR 200 Subpart F, Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.).
22. WHISTLEBLOWER PROTECTION: Pursuant to 41 U.S.C. 4712 employees of a contractor, subcontractor, or subrecipient will not be discharged, demoted, or otherwise discriminated against as reprisal for “whistleblowing.”
23. EXECUTION AND DELIVERY: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. The counterparts of this Agreement and all Ancillary Documents may be executed and delivered by facsimile or electronic mail by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or electronic mail as if the original had been received.
24. NOTICE: All notices, including invoices, required to be delivered to the other party pursuant to this Agreement shall be in writing and shall be sent via email or facsimile, with a copy sent via US mail, postage prepaid, to the parties at the addresses set forth below. Either party may send a notice to the other party, pursuant to this provision, to change the address to which notices shall be sent.
FOR NACCHO:
National Association of County and City
Health Officials
Attn: Victoria Thompson
Senior Program Analyst, IZ
1201 (I) Eye Street NW 4th Fl.,
Washington, DC 20005
Fax (202) 783-1583
Email: [email protected]
With a copy to:
National Association of County and City
Health Officials
Attn: Ade Hutapea, LL.M., CFCM, CCCM
Sr. Director, Grants & Contracts
1201 (I) Eye Street NW 4th Fl.,
Washington, DC 20005
Tel. (202) 507-4272
Fax (202) 783-1583
Email: [email protected]
FOR CONTRACTOR:
City of Vernon
Attn.: Freddie Agyin
Director, Health & Env. Control Dept.
4305 S Santa Fe Avenue
Vernon, California 90058-1714
Tel. (323) 826-1448
Email: [email protected]
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IN WITNESS WHEREOF, the persons signing below warrant that they are duly authorized to sign for and on behalf of, the respective parties.
AGREED AND ACCEPTED AS ABOVE:
NACCHO: CONTRACTOR:
By: ___________________________ By: ________________________ Name: Jerome Chester Name: Carlos R. Fandino, JR.
Title: Chief Financial Officer Title: City Administrator Date: Date: ________________________
Federal Tax ID No.: 95-6000808
UEID: ZMK4GCEKJ7G3
ATTEST:
Lisa Pope, City Clerk
APPROVED AS TO FORM
Zaynah N. Moussa, City Attorney
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NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS CONTRACTOR AGREEMENT – ATTACHMENT I
SCOPE OF WORK
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City Council Agenda Report
Meeting Date: March 5, 2024
From: Daniel S. Wall, P.E., Director of Public Works
Department: Public Works
Submitted by: Carlos Velazquez, Engineering Aid
Subject
Contract with Elecnor Belco Electric, Inc. for Highway Safety Improvement Program (HSIP) Cycle 9 – Contract No. 20240173
Recommendation
A. Find that the proposed action is categorically exempt from California Environmental Quality Act (CEQA) review, in accordance with CEQA Guidelines Section 15301, because the project consists of the maintenance and minor alteration of the existing City’s traffic signals and involves negligible or no expansion of an existing use;
B. Accept the bid proposal from Elecnor Belco Electric Inc. as the lowest responsive and responsible bidder and reject all other bids;
C. Approve and authorize the City Administrator to execute a contract with Elecnor Belco Electric Inc., in substantially the same form as submitted, for Traffic Signal Indications Upgrades and Placement of Solar-Powered Speed Signs HSIP Cycle 9 Project in an amount not-to-exceed $247,000; and
D. Authorize a contingency amount of ten percent (10%) or $24,700 in the event of an unexpected changed condition in the project and grant authority to the City Administrator to issue change orders for an amount up to the contingency amount, if necessary.
Background
The Public Works Department applied for and was awarded grant funding from Caltrans under the HSIP Cycle 9 for traffic safety improvements. The HSIP – 9 grant pays for 100% of this project.
The project replaces existing 8-inch traffic signal lights with new 12-inch traffic signal lights at 23 signalized intersections. The increase in red, green, and amber light sizes on the traffic signals will significantly improve visibility and increase traffic safety at each intersection. The project also consists of installing ten dynamic solar speed warning signs along five corridors, which should reduce speed in these areas.
On October 6, 2023, staff advertised the Notice Inviting Bids (NIB) for Contract No. 20240173 Traffic Signal Indications Upgrades and Placement of Solar-Powered Speed Signs HSIP - 9 in accordance with Vernon Municipal Code Section 3.32.070(A) for competitive bidding. The NIB was posted on the City’s Planet Bids website. The Department has utilized the template Notice Inviting Bids, Bid form and Project Specifications, Instruction to Bidders, and Specifications and Contract template approved by City Council. The bids for Contract No. 20240173, Traffic Signal Indications Upgrades and Placement of Solar-Powered Speed Signs HSIP - 9, were received and opened on November 14, 2023. The calculated results were as follows:
1. Elecnor Belco Electric Inc $247,000
3. Servitek Electric, Inc. $272,726
4. Bear Electrical Solutions Inc. $273,000
5. Alfaro Communications Construction Inc. $299,026
6. Crosstown Electrical & Data Inc $358,360 ..
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Staff reviewed the bids and deemed that the bid received by Elecnor Belco Electric was the lowest responsive and responsible bid. Based on a thorough bid evaluation, staff recommends the award of the proposed Purchase Contract to Elecnor Belco Electric Inc.
The proposed contract has been reviewed and approved as to form by the City Attorney’s Office.
Fiscal Impact
The fiscal impact is not-to-exceed $271,700, including a contingency amount of ten percent.
Sufficient funds are available in the General Fund, Public Works Department, Street Maintenance Division, Capital Outlay Account No. 011-040-430-660000 for the current fiscal year, and the grant funds will cover 100% of the costs for the traffic signal indications upgrades and placement of solar-powered speed signs.
Attachments
1. Contract with Elecnor Belco Electric Inc. ..
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STANDARD FORM OF
CONSTRUCTION CONTRACT BETWEEN
CITY AND CONTRACTOR
This Agreement is made and entered into at Vernon, California this 5th day of March, 2024, by and between the CITY OF VERNON, a California charter City and municipal corporation (hereinafter "City") and Elecnor Belco Electric, Inc, a California corporation (hereinafter “ Contractor”), for construction of Traffic Signal Indications Upgrade and Placement of Solar-Powered Speed Signs, City Contract No. 20240173 THE PARTIES HERETO AGREE AS FOLLOWS:
1. CONTRACT DOCUMENTS
The “Contract Documents” except for modifications issued after execution of this Agreement, shall consist of the following documents which are either attached hereto as exhibits or are incorporated into this Agreement by this reference, with the same force and effect as if set forth at length herein:
A. Governmental Approvals including, but not limited to, permits required for the Work B. This Agreement
C. Exhibit A – General Conditions
D. Exhibit 1 – Performance Bond
E. Exhibit 2 – Payment Bond
F. Exhibit 3 – Maintenance Bond
G. Exhibit 4 – Insurance Requirement
H. Exhibit 5 – Stormwater of Intent to Comply with Minimum Requirements of Stormwater Permit I. Exhibit B – Special Provisions Specific for this Project J. Exhibit C – Equal Employment Opportunity Practices Provisions K. Notice Inviting Bids
L. Instructions to Bidders
M. Bid Forms
N. Designation of Subcontractors
O. Bidding Addenda Nos. 2
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City Administrator
Carlos Fandino
Elecnor Belco Electric Inc.
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EXHIBIT A
GENERAL CONDITIONS
ARTICLE 1 - PRELIMINARY PROVISIONS
1.01 DEFINITIONS
The following words shall have the following meanings:
A. Allowance. A line item cost estimate established by the City to be carried in the Base Bid sum, Contract Sum, and Schedule of Values for Payment for a particular item of Work, which cannot be sufficiently defined so as to allow the Contractor to adequately determine fair value before the Bid Deadline.
Allowances include estimated amounts established by the City for certain construction elements that have not yet been fully designed or authorized for inclusion in the Work or to permit deferred approval or selection of actual materials and equipment to a later date when additional information is available for evaluation.
B. As-Builts. The documents prepared by Contractor showing the condition of the Work as actually built, including, without limitation, all changes and the exact locations of all mechanical, electrical, plumbing, HVAC or other portions of the Work that are shown diagrammatically in the Contract Documents.
C. Base Bid. The total sum stated in the Bid Form for which the Bidder offers to perform Work described in the Contract Documents as the base Contract Work (e.g. not designated as part of a Bid Alternate).
D. Bid. A complete and properly executed offer by the Bidder on City-prescribed forms to perform the Work for the prices stated in response to the Notice Inviting Bids.
E. Bid Alternate. An item of Work described in the Contract Documents as an Alternate Bid that will be added to or deducted from the Base Bid and the Contractor’s responsibility only if the City accepts the Bid Alternate.
F. Bid Forms: The City-prescribed forms which the Bidder shall complete and use to submit a Bid. The Bid Forms include: (1) Bidder’s Proposal; (2) Schedule of Bid Prices; (3) Incumbency Certificate; (4) Bid Bond; (5) Bidder’s Statement of Qualifications; (6) Experience Form; (7) Trades Experience Form; (8) Contractor Safety Questionnaire; (9) Designation of Subcontractors; (10) Affidavit of NonCollusion; (11) Insurance Requirements Affidavit; and (12) forms included in the Specification required by the type of project funding (e.g. federal, ARRA, HUD, etc.).
G. Bidder. The individual, partnership, firm, corporation, joint venture or other legal entity submitting a bid on these Contract Documents or any part thereof.
H. Bidding Documents. Bidding Documents include the Bidding Requirements and the proposed Contract Documents. The Bidding Requirements consist of: (1) Notice Inviting Bids; (2) Instructions to Bidders; and (3) Bid Forms. The proposed Contract Documents consist of: (1) the Bidding Requirements; (2) the Construction Contract Between City and Contractor; (3) the Conditions of the Contract (General, Supplementary, and Special, if applicable); (4) all Exhibits to the Contract; (5) the Drawings; (6) the Specifications; (7) all Addenda issued prior to the execution of the Construction Contract; (8) all Modifications issued after the execution of the Construction Contract; and (9) Governmental Approvals, if any, including but not limited to, permits.
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I. Change Order. A Change Order is a written document prepared by the City reflecting the agreement between the City and Contractor for: a change in the terms or conditions of the Contract, if any; a specific Scope Change in the Work; the amount of the adjustment, if any, in the Contract Sum; and the extent of the adjustment, if any, in the Contract Time.
J. Change Order Request (COR). A Change Order Request is a written document originated by the Contractor, which describes an instruction issued by the City after the effective date of the Contract, which Contractor believes to be a scope change that may result in changes to the Contract Sum or Contract Time or, which describes the need for or desirability of a change in the Work proposed by Contractor.
K. City or Owner. The City of Vernon, California, acting through its City Council or other City officials authorized to act for the City, acting in its proprietary rather than regulatory capacity in connection with the Project.
L. Construction Change Directive. A written order prepared and signed by the City directing a change in Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both.
M. Contract Documents. The Contract Documents are enumerated in the Construction Contract between City and Contractor and consist of: (1) the Bidding Requirements; (2) the Construction Contract; (3) the Conditions of the Contract (General, Supplementary, and Special, if applicable); (4) all Exhibits to the Contract; (5) the Drawings; (6) the Specifications; (7) all Addenda issued prior to the execution of the Contract; (8) all Modifications issued after the execution of the Contract; and (9 )
Governmental Approvals, including, but not limited to, permits. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.
N. Contract. The Contract Documents form the Contract for Construction. The Contract Represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral. The Contract may be amended or modified on by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind between any persons or entities other than the Owner and the Contractor.
There shall be no third party beneficiaries of the Contract Documents.
O. Contract Sum. The total amount of compensation stated in the Construction Contract that is payable to Contractor for the complete performance of the Work in accordance with the Contract Documents.
P. Contract Time. The total number of days set forth in the Construction Contact within which Substantial Completion of the Work must be achieved beginning with the Date of Commencement established in the Notice to Proceed, subject to adjustments in accordance with the terms of the Contract Documents. The Contract Time for Contractor's performance of the Work is measured in calendar days (not work days).
Q. Contractor. The individual, partnership, firm, corporation, joint venture or other legal entity with whom the Contract is made by City, or the agent or legal representative who may be appointed to represent such individual, partnership, firm, corporation, joint venture or other legal entity in the execution of the Contract as general contractor for construction of the Work.
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R. Correction Period. Correction Period is synonymous with the terms of the correction guarantee period used in the Contract Documents.
S. Date of Commencement. The date for commencement of the Work fixed by City in a Notice to Proceed to Contractor.
T. Day. The terms “day” or “days” mean calendar days unless otherwise specifically designated in the Contract Documents. The term “Work Day” or “Working Day” shall mean any calendar day except Saturdays, Sundays and City recognized legal holidays. City Holidays are as follows:
1. January 1st – New Year’s Day
2. The 3rd Monday in January – Martin Luther King, Jr. Day
3. The 3rd Monday in February – Presidents Day
4. March 31st – Cesar Chavez Day
5. The last Monday in May – Memorial Day
6. July 4th – Independence Day
7. The first Monday in September – Labor Day
8. The second Monday in October – Indigenous Peoples’ Day
9. November 11th – Veterans Day
10. The 4th Thursday in November – Thanksgiving Day
11. December 24th – Christmas Eve
12. December 25th – Christmas Day
13. December 31st – New Year’s Eve
U. Director. The Director of the Public Works Department of the City of Vernon or his/her duly appointed representative.
V. Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams.
W. Extra Work. New or unforeseen work will be classified as Extra Work when determined by the City that the work is not described in, or reasonably inferable from, the Contract Documents, the work is not covered by any Bid line item or Allowance, and the work causes Contractor to incur additional and unforeseen costs.
X. Field Directive. See, “Work Directive.”
Y. Final Completion. Final Completion is the stage of performance of the Work when (1) all Work required by the Contract Documents has been fully completed in compliance with the Contract Documents and all applicable laws including, but not limited to, correction or completion of all punch list items noted by City upon Substantial Completion; (2) Contractor has delivered to City an Application for Final Payment and all closeout documentation required by the Contract Documents; and (3) documentation of all final Governmental Approvals has been submitted to City including, but not limited to a final Certificate of Occupancy or equivalent Building Department sign-off has been issued covering the entire Project site without exception or conditions.
Z. Force Majeure. “Force Majeure” includes but is not limited to declared or undeclared war, sabotage, insurrection, riot, or other acts of civil disobedience, labor disputes, fires, explosions, floods, earthquakes or other acts of God.
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AA. Fragnet. The sequence of new activities that are proposed to be added to an existing schedule.
BB. Governmental Approval. Any approval, authorization, inspection, certification, consent, exemption, filing, permit, registration, plan check, ruling or similar authorization required by any federal, state or local law, regulation or procedures in order for Contractor to perform the Work.
CC. Guarantee. Assurance to City by Contractor or product manufacturer or other specified party, as guarantor, that the specified warranty will be fulfilled by the guarantor in the event of default by the warrantor.
DD. Modification. A Modification is: (1) a written amendment to Contract signed by both parties; (2) a Change Order; or (3) a Construction Change Directive.
EE. Notice to Proceed. The Notice to Proceed is a document issued by the City fixing the date for Commencement for the W
ork.
FF. Parties. The City and Contractor may be referred to in the Contract Documents from time to time as the Parties.
GG. Permit Fees. Governmental Approvals and Utility Fees as required by any agency to be paid by the City of Vernon.
HH.{If applicable} Permit Fees Reimbursement. A payment made to the Contractor by the City in addition to the Contract Sum to compensate Contractor for the actual direct cost of all Permit Fees.
II. Project. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the City or by separate contractors.
JJ. Project Manual/Contract Package. The volumes of Contract Documents and reference documents assembled for the Work made available to Bidders.
KK. Record Documents. The Drawings, Specifications, addenda, requests for information, bulletins, Change Orders and other modifications to the Contract Documents, approved shop drawings, product data, samples, mock-ups, permits, inspection reports, test results, daily logs, schedules, subcontracts, and purchase orders. Records Documents shall include a set of “As-Built” Drawings and Specifications, which shall be continuously updated during the prosecution of the Work.
LL. Site. The physical area designated in the Contract Documents for Contractor's performance of the Work.
MM. Specifications. The Specifications are the volume(s) assembled for the Work that includes, without limitation, the Bidding Documents, the Construction Contract and Exhibits, the General Conditions, Supplementary and/or Special Conditions, if any, the “GREENBOOK” STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION (2021 Edition), the Standard Plans for Public Works Construction (2021 Edition), State of California, Department of Transportation Standard Plans (2022 Edition) and State of California, Department of Transportation Standard Specifications (2018 Edition), and the City of Vernon Standard Plans.
NN. Specifications. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards, and workmanship for the Work Elecnor Belco Electric Inc.
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and performance of related services, including, but not limited to, the Project Technical Specifications, Standard Specifications, if any, and any applicable Trade Association Specifications.
OO. Substantial Completion. Substantial Completion is defined to mean the stage in the progress of the Work when the Work is sufficiently complete in accordance with the Contract Documents as determined by the City so that the City can occupy and utilize the Work for its intended use and as further defined in the Contract Documents.
PP. Unilateral Change Order. See “Work Directive.”
QQ. Utility Fees. The fees charged by any public, private, cooperative, municipal and/or government line, facility or system used for the carriage, transmission and/or distribution of cable television, electric power, telephone, water, gas, oil, petroleum, steam, chemicals, sewage, storm water or similar commodity including, but not limited to fees for temporary utilities and refuse hauling.
RR. Warranty. Assurance to City by contractor, installer, supplier, manufacturer or other party responsible as warrantor, for the quantity, quality, performance and other representations of a product, system service of the Work.
SS. Work. The term "Work" means the construction and other services required by, and reasonably inferable from the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project.
TT. Work Directive. A Work Directive is a unilateral written order issued by the City directing Contractor to continue performance of the Work or to perform a disputed change in the Work prior to agreement or adjustment, if any, in the Contract Sum, Contract Time, or both.
1.02 REPRESENTATIVES
A. The Director shall be the representative of the City and, except as otherwise expressly provided herein, shall make all decisions and interpretations to be made by the City under the provisions of the Contract Documents.
B. The Contractor shall at all times be represented on the Work in person or by a duly designated agent.
Instructions and information given by the Director to the Contractor's agent on the Work shall be considered as having been given to the Contractor.
1.03 PERMITS, INSPECTIONS, PLAN CHECKS, AND SIMILAR GOVERNMENTAL APPROVALS AND
UTILITIES
A. City of Vernon shall obtain all Governmental Approvals and Utility Fees required for the construction of the project.
B. Contractor shall obtain a no-fee encroachment permit from the City of Vernon’s Public Works Department.
C. All documents evidencing Contractor’s satisfaction with all Governmental Approvals and Utility Fees must be submitted to the City prior to submission of the Application for Final Payment.
D. Where requirements of the Governmental Approvals differ from those of the Drawings and Elecnor Belco Electric Inc.
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Specifications, the more stringent requirements shall apply.
1.04 LICENSES
The Contractor shall apply for, obtain, and pay for all licenses required by governing authorities for the Work.
Contractor shall apply and pay for a City of Vernon business license.
1.05 ALLOWANCES
A. Contractor shall include in the Contract Sum and Schedule of Values for Payment, the City’s estimated cost established for each Work item covered by an Allowance stated in the Contract Documents. See Paragraph 1.01 for definition of Allowance.
B. The line item cost estimate established by the City for Work covered by an Allowance includes the cost to Contractor of: all materials and equipment, preparation of submittals; labor; transportation; delivery; handling; installation; supervision; overhead; profit; licenses; bonds; insurance; all sales, use and other taxes legally chargeable; and all other costs and expenses incidental to such Work.
C. Work items covered by Allowances shall be supplied with such materials and equipment and for such prices approved in advance by City. Contractor shall notify and request City’s approval of material equipment, and pricing information for Work covered by an Allowance before ordering the material or equipment and in sufficient time to avoid delay to the Work. City shall provide approval of materials, equipment, and prices with reasonable promptness. The material, equipment, and pricing information submitted by the Contractor to the City’s Project Manager shall, at a minimum, include product data and detailed costs of material, equipment, and labor to complete such Work, itemized by costs incurred by Contractor and each subcontractor associated with the performance of such Work. Contractor shall not order materials or equipment or proceed with Work covered by an Allowance until the material, equipment, and pricing information for such Work items have been submitted to the City’s Project Representative for review and the Contractor has received City’s approval to proceed with a Work item covered by an Allowance.
D. All expenditures for Allowance Work shall be separately itemized in each Application for Payment.
E. To the extent that the cost of Work items covered by an Allowance is less than the Allowance cost estimate established by the City, the Contact Sum shall be reduced by Change Order or Construction Change Directive to reflect the actual cost of the Allowance item. Similarly, to the extent the cost of Work items covered by an Allowance is greater than the Allowance cost estimate, the Contract Su m
shall be increased by Change Order or Construction Change Directive to reflect the actual cost of the Allowance item. If Work items covered by an Allowance are not performed or the City deletes such items from the Scope of Work, the Contract Sum shall be reduced by Change Order or Construction Change Directive to deduct the Cost of the unused Allowance item .
1.06 WAIVER
A waiver by City of any breach of any term, covenant, or condition contained in the Contract Documents shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained therein, whether of the same or a different character.
1.07 DATA TO BE FURNISHED BY THE CONTRACTOR
The Contractor shall furnish the Director with such information as the Director may desire respecting the Elecnor Belco Electric Inc.
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character of the materials and the progress and manner of the Work, including all information necessary to determine the Contractor’s costs, such as the number of persons employed, their pay, the time during which they worked on the various classes of construction, and other pertinent data.
1.08 CONTRACT DRAWINGS
The City will accept no responsibility for errors resulting from misinterpretation or scaling of the Drawings.
1.09 SPECIFICATIONS AND DRAWINGS
A. The Contractor shall keep on the Work Site a copy of all Specifications, Drawings, and Change Orders pertaining to the Work and shall at all times give the Director access thereto. Anything mentioned in the Specifications and not shown on the Drawings or shown on the Drawings and not mentioned in the Specifications shall be of like effect as though shown or mentioned in both.
B. In general, the Drawings will show dimensions, positions, and kind of construction; and the Specifications will define materials, quality, and standards. Any Work not particularly detailed, marked or specified, shall be the same as similar parts that are detailed, marked or specified.
C. The Drawings shall not be scaled to determine dimensions, and in all cases shall be calculated from figures shown on the Drawings. Any discrepancies between scale and figured dimensions, not marked “not to scale,” must be brought to the Director’s attention before proceeding with the Work affected by the discrepancy.
D. Omissions from the Drawings and/or Specifications shall not relieve the Contractor from the responsibility of furnishing, making, or installing all items required by law or code, or usually furnished, made or installed in a project of the scope and general character indicated by the Drawings and Specifications.
E. For convenience, the Drawings and Specifications may be arranged in various trade subparagraphs, but such segregation shall not be considered as limiting the Work of any subcontract or trade. The Contractor shall be solely responsible for all subcontract arrangements of the Work regardless of the location or provision in the Drawings and Specifications.
F. The City will furnish free of charge to the Contractor, a maximum of six (6) sets of Contract Drawings and Specifications. The Contractor shall pay for the costs of any additional sets or portions thereof.
The Contractor shall be responsible to see that all sets are the same as the up-to-date approved set.
1.10 PRECEDENCE OF CONTRACT DOCUMENTS
A. In the event of conflict between any of the Contract Documents, the provisions placing a more stringent requirement on the Contractor shall prevail. The Contractor shall provide the better quality or greater quantity of Work and/or materials unless otherwise directed by City in writing. In the event none of the Contract Documents place a more stringent requirement or greater burden on the Contractor, the controlling provision shall be that which is found in the document with highe r
precedence in accordance with the following order of precedence:
1. Governmental Approvals including, but not limited to, permits required for the Work
2. Modifications issued after execution of the Contract (including modifications to Drawings and Specifications)
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3. The Contract, including all exhibits, attachments, appendices and Addenda, with later Addenda having precedence over earlier Addenda
4. Special Conditions, if any
5. General Conditions
6. Specifications
7. Drawings
8. Bidding Requirements
B. With reference to the Drawings, the order of precedence is as follows:
1. Change Order Drawings
2. Addenda Drawings
3. Contract Drawings
4. Project Drawings
5. Standard Drawings
6. Detail Drawings
7. General Drawings
8. Figures
9. Scaled dimensions
C. Within the Specifications, the order of precedence is as follows:
1. Change Orders
2. Special Conditions
3. Project Technical Specifications
4. Standard Specifications, if any
5. Applicable Trade Association Specifications
1.11 NOTICE OF CONFLICTS
If the Contractor, in the course of the Work, becomes aware of any claimed conflicts, errors or omissions in the Contract Documents or in the City's fieldwork or work of City's separate contractors, the Contractor shall immediately notify the Director in writing. The Director shall promptly review the matter, and if the Director finds a conflict, error or omission, the Director shall determine the corrective actions and advise the Contractor accordingly. If the correction associated with a conflict, error or omission increases or decreases the amount of Work called for in the Contract, the City shall issue an appropriate Change Order in accordance with the Contract Documents. After discovery of an error or omission by the Contractor, any related additional work performed by the Contractor shall be done at the Contractor's risk unless authorized by the Director.
1.12 REPORTS
A. Daily Construction Reports: The Contractor shall prepare a daily construction report recording the following information concerning events at Project site:
1. List of Subcontractors at Project site.
2. List of other contractors at Project site.
3. Approximate count of personnel at Project site.
4. Equipment at Project site.
5. Material deliveries.
6. High and low temperatures and general weather conditions, including presence of rain or snow.
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7. Accidents.
8. Meetings and significant decisions.
9. Unusual events.
10. Stoppages, delays, shortages, and losses.
11. Meter readings and similar recordings.
12. Emergency procedures.
13. Orders and requests of authorities having jurisdiction.
14. Change Orders received and implemented.
15. Construction Change Directives received and implemented.
16. Services connected and disconnected.
17. Equipment or system tests and startups.
18. Partial completions and occupancies.
19. Substantial Completions authorized.
20. List of visitors to Project Site.
21. List of personnel at Project Site including names and job classifications.
22. Description of Work for the day including locations, quantities and related bid items.
Immediately upon discovery of a difference between field conditions and the Contract Documents, the Contractor shall prepare and submit a detailed report through a Request for Information (RFI). Include a detailed description of the differing conditions, together with recommendations for a remedy.
The Daily Construction Report must be: signed by Contractor’s Superintendent, submitted within 24 hours (next Working Day) to the Director, and shall be made available to others as directed by City.
1.13 LINES, GRADES, AND MEASUREMENTS
A. All lines and grades will be established by the Contractor. The Contractors shall carefully preserve all survey stakes and reference points as far as possible. Should any stakes or points be removed or destroyed unnecessarily by any act of the Contractor or his/her employees, they must be reset to th e
satisfaction of the Director, at the Contractor's expense.
B. The Contractor shall inform the Director 48 hours (two Work Days) in advance of the times and places at which he/she intends to Work in order that inspection may be provided, and that necessary measurements for records and payments may be made with minimum inconvenience.
C. No direct payment will be made for the cost to the Contractor of any of the Work or delay occasioned by giving lines and grades, by making other necessary measurements, or by inspection .
1.14 RIGHT OF WAY
A. The site for the installation of equipment or the right of way for the Work to be constructed under this Contract will be provided by the City.
B. The City will provide the appropriate rights of way and property for pipelines and structures. Upon approval by the Director, the Contractor may, without cost, use portions of any of the City's rights of way or property which may be suitable for working space and for storage of equipment and materials.
The Contractor will be held responsible for any damage to structures, streets, and roads, trees and landscaping, and for any damage that may result from his/her use of City property.
C. In case areas additional to those available on the City's rights of way or property are required by the Contractor for his/her operations, he/she shall make arrangements with the property owners for the use Elecnor Belco Electric Inc.
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of such additional areas at his/her own expense.
1.15 CONTRACTOR’S OPERATIONS/STORAGE YARD
In the event the Contractor requires space for the storage and/or staging of construction materials, supplies, equipment, stockpiling of debris, or any other needs required for construction operations, he/she shall acquire at his/her own expense such areas as he/she may desire. For properties within the City of Vernon, the staging area must be enclosed at Contractor’s expense with construction fencing covered with a mesh screen to limit visibility to the site. Private property used for storage of construction material or debris shall be restored to a legal condition with regard to appearance and maintenance upon conclusion of the project. Property should be graded and free of weeds and debris when project is completed. [END OF ARTICLE]
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ARTICLE 2 - PERFORMANCE OF THE WORK
2.01 PERFORMANCE OF WORK - GENERAL
Contractor shall, at its own cost and expense, furnish all necessary materials, labor, transportation, and equipment for doing and performing said Work and the materials used shall comply with the requirements of the Contract Documents. All Work shall be performed and completed as required in the Contract Documents, and subject to the approval of the Director, or his/her designated assistant.
2.02 NO ASSIGNMENT OR DELEGATION
Contractor shall not assign or delegate the duties or obligations under this Contract or his/her interest therein in whole or in part without the prior written consent of the City which may be withheld at the City's sole discretion.
2.03 STANDARD OF PERFORMANCE
Contractor agrees that all services performed hereunder shall be provided in a manner commensurate with the highest professional standards and shall be performed by qualified and experienced personnel; that any Work performed by Contractor under the Contract will be performed in the best manner; that any material furnished shall be subject to the approval of the Director; and that both Work and materials will meet fully the requirements of the Contract Documents. Any work deemed unacceptable by the Director, whether a cause is determined or not shall be repaired or replaced by Contractor at Contractor’s expense.
The Contractor shall be responsible for the final product and shall make any quality control, adjustments and corrections necessary to obtain the final product accepted by the City Engineer. The Contractor shall perform process and quality control sampling and testing and exercise management control the work of his/her subcontractors, technicians and workers to ensure that the milling, transporting, recycling, spreading, compaction, and finishing processes conform to these Specifications. The proficiency of testing laboratories and sampling and testing personnel shall be reviewed and approved by the City Engineer prior to providing services to the project. The City Engineer shall have unrestricted access to the laboratory, sampling, testing sites, and all information resulting from mix design and quality control activities. All Quality Control testing results shall be submitted to the City Engineer on a daily basis.
2.04 DEFECTIVE WORK
Within the time periods that the City specifies, the Contractor shall correct all deficient, improperly executed, or unsatisfactory Work determined by the City.
The Contractor shall remove and shall repair or replace, at his/her own expense any part of the Work that is deficient, improperly executed, or unsatisfactorily executed, even though it has been included in the monthly estimates. If he/she refuses or neglects to remove, repair, or replace such defective Work, prior to the City’s acceptance of the Work, it may be replaced by the City at the expense of the Contractor, plus 15% for overhead expenses, and his/her sureties shall be liable therefor. (See Paragraph 2.15 for curing defects after acceptance of the Work.)
2.05 CITY’S RIGHT TO CARRY OUT THE WORK
A. Notwithstanding other remedies available to the City, if the Contractor defaults, fails to perform Work required by the Contract Documents, or otherwise neglects to carry out the Work in accordance with the Contract Documents and fails within a 48 hour period after receipt of written notice from the City to commence and correct such default, failure to perform, or neglect with diligence and promptness, the Elecnor Belco Electric Inc.
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City, at its sole discretion and without obligation, may, with its own or outside forces, perform the Work Contractor has failed to perform and/or replace or correct deficiencies in the Work. In such case, a Change Order or Construction Change Directive shall be issued deducting from payments then or thereafter due to the Contractor the cost of completion, replacement or correction of such deficiencies, including compensation for additional services by the City’s project management staff, the Architect, and their respective consultants made necessary by such default, failure to perform, or neglect, plus 15% for City’s overhead expenses. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City immediately. This remedy is cumulative.
B. The City also has the right, but not the obligation, to self-perform or have outside forces perform portions of the Work previously assigned to Contractor. In such case a Change Order or Construction Change Directive shall be issued, reducing the Contract Sum by the Unit Price(s) applicable to such deleted Work or, in the absence of Unit Prices, an amount that reflects the reasonable cost of performing such deleted Work and the Allowable Mark-Up applicable to such deleted Work.
2.06 COMMUNICATIONS AND NOTICES REGARDING THE WORK
A. Notices under the Contract Documents shall be submitted in writing via email to [email protected] or (a) delivered personally, (b) sent by certified mail, return receipt requested, or (c) sent by a recognized overnight mail or courier service, with delivery receipt requested, to the following addresses (or to such other address as may from time to time be specified in writing by such Person):
All correspondence with Contractor shall be sent to the following address:
Elecnor Belco Electric, Inc
14320 Albers Way
Chino, CA 91710
Attention: John Wong9LFH3UHVLGHQW
Phone: (909) 993-5470
Email: [email protected]
All communications shall be copied to City and shall be delivered to City’s Director at the address set forth below, with copies to such additional persons as may be directed by City’s Director.
City of Vernon
Public Works Department
4305 Santa Fe Avenue
Vernon, CA 90058
Attention: Carlos Velazquez, Engineering Aide
Phone: (323) 583-8811 ext. 526
E-mail: [email protected]
B. Notices shall be deemed received when actually received in the office of the addressee (or by the addressee if personally delivered) or when delivery is refused, as shown on the receipt of the U. S.
Postal Service, private carrier or other Person making the delivery. All notices received after 5:00 p.m. shall be deemed received on the first business day following delivery. Any technical or other communications pertaining to the Work shall be conducted by Contractor's Project Manager and technical representatives designated by City. Contractor's representatives shall be available at all Elecnor Belco Electric Inc.
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reasonable times for consultation, and shall be authorized to act on behalf of Contractor in matters concerning the Work.
C. Contractor shall copy City on all written correspondence pertaining to the Contract between Contractor and any Person other than Contractor's Subcontractors, consultants and attorneys.
D. Notification of Affected Residents/Businesses. The Contractor shall be responsible for distribution of the general information letter of the project to all affected residents and businesses. A project general information letter and sufficient copies thereof will be prepared by City staff for Contractor distribution to all residents, business establishments, and institutions fronting on or directly affected by the project.
The Contractor shall be responsible for distribution of said letter in handout form to all the appropriate residences and buildings in the subject area. Distribution shall be accomplished in a manner acceptable to the City Engineer and shall be five (5) working days prior to the beginning of construction operations in the immediate vicinity. In addition to the above, the Contractor shall be fully responsible for such other notifications as may be required related to necessary closures of streets, alleys, driveways, etc., or to unavoidable access or parking restrictions. These notifications shall apply where the closures and access or parking restrictions required in the performance of any work under this contract preclude any resident, tenant, or property owner from utilizing the premises or conducting business thereon in a reasonable and customary manner.
Additional notification to the affected businesses and residents shall be prepared by the City and distributed by the Contractor for roadway and driveway closures five (5) working days in advance of any construction work. No removal or excavation work is allowed until the additional notification has been distributed to the affected residents and businesses.
If a Contractor is unable to adhere to his schedule as indicated on his written notification, then all the affected residents and places of business shall be re-notified of the revised schedule, in writing, as indicated above.
Contractor costs for all of the above notifications shall be considered as included in the appropriate items of the Bid Proposal.
E. Notification of Utilities – The provisions of Section 402 entitled "Utilities" of the “Greenbook” Standard Specifications shall apply. The Contractor shall contact the Underground Service Alert of Southern California (U.S.A.) at least two working days in advance of the construction work.
2.07 INDEPENDENT CONTRACTOR
The Contractor in the performance of the Work hereunder will be acting in an independent capacity and not as an agent, employee, partner, or joint venture of the City.
2.08 EMERGENCY WORK
A. During Working Hours:
In case of an emergency which threatens loss or injury of property, and/or safety of life during working hours, the Contractor shall act, without previous instructions from the City, as the situation may warrant.
He/she shall notify the Director of the emergency and the action taken immediately thereafter.
Any compensation claimed by the Contractor, together with substantiating documents in regard to Elecnor Belco Electric Inc.
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expense, shall be submitted to the Director within 15 calendar days after the emergency.
Compensation, if allowed, will be paid for as Extra Work.
B. Outside of Working Hours:
Whenever, in the opinion of the City, there shall arise outside of the regular Working hours on the Contract Work of an emergency nature which threatens loss or injury of property, or danger to public safety, the Contractor shall act, without previous instructions from the City as the situation may warrant. He/she shall notify the Director of the emergency and the action taken immediately thereafter. Any compensation claimed by the Contractor, together with substantiating documents in regard to expense, shall be submitted to the Director within 15 calendar days after the emergency.
Compensation, if allowed, will be paid for as Extra Work. In the event the Contractor is not able to respond to an emergency outside of regular working hours, the City's forces will handle such emergency Work. If such emergency arises out of or is the result of operations by the Contractor, the cost of the corrective measures will be billed to the Contractor and deducted from his/her payment as provided in the Contract Documents. The performance of emergency Work by City forces will not relieve the Contractor of any of his/her responsibilities, obligations, or liabilities under the Contract.
2.09 SUBCONTRACTORS
A. Each subcontract shall contain a reference to the Contract between the City and the principal Contractor, and the terms of the Contract and all parts thereof shall be made part of each subcontract insofar as applicable to the Work covered thereby. If, in the Director’s opinion, the Subcontractor fails to comply with the requirements of the principal Contract insofar as the same may be applicable to the Subcontractor’s Work, the Director may disqualify the Subcontractor.
B. Nothing contained in these Contract Documents shall be construed as creating any contractual relationship between any Subcontractor and the City.
C. The Contractor shall be considered the employer of the Subcontractors and shall be fully responsible to the City for the acts and omissions of Subcontractors and of persons employed by them as the Contractor is for the acts and omissions of persons directly employed by him/her.
D. The Contractor shall be responsible for the coordination of the trades, Subcontractors, and material suppliers engaged upon the Work. It shall be the Contractor’s duty to see that all of his/her Subcontractors commence their Work at the proper time and carry it on with due diligence so that they do not delay or injure either the Work or materials; and that all damage caused by them or their workers is made good at his/her expense.
E. The City will not undertake to settle differences between the Contractor and his/her Subcontractors or between subcontractors.
F. The Contractor shall utilize the services of specialty Subcontractors, without additional expense to the City, on those parts of the Work which are specified to be performed by specialty contractors.
2.10 USE OF FACILITIES PRIOR TO COMPLETION OF CONTRACT
A. Whenever in the opinion of the Director any Work under the Contract, or any portion(s) thereof, is in a condition suitable for use by the City, the City may, after written notice and designation from the Director to the Contractor, use (which includes, but is not limited to, taking over or placing into Elecnor Belco Electric Inc.
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service) any portion(s) designated by the Director.
B. The use of any portion(s) by the City shall not be construed as, and will not constitute acceptance in any sense, of any portion(s) of the Work of the Contractor nor will such use trigger the running of any warranty and/or guarantee periods.
C. All necessary repairs, renewals, changes, or modifications in the Work or any portion thereof so used, not due to ordinary wear and tear, but due to defective materials or workmanship, the operations of the Contractor, or any other cause, shall be made at the expense of the Contractor.
D. The use of any portion(s) by the City shall not relieve the Contractor of any of his/her responsibilities or liabilities under the Contract nor constitute a waiver by the City of any of the conditions thereof.
Said use shall not cancel liquidated damages as of the first date of use, or any continuance thereof, nor impair, reduce, or change the amount of liquidated damages.
2.11 COOPERATION WITH OTHER WORK FORCES
A. The City reserves the right to perform other Work at or near the site at any time by the use of its own forces or other contractors.
B. Other contractors, other utilities and public agencies or their contractors, other City contractors, and City personnel may be working in the vicinity during the project construction period. There may be some interference between these activities and the Work under the Contract Documents. The Contractor shall cooperate and coordinate his/her Work with that of other Work forces to assure timely Contract completion.
2.12 AGREEMENTS WITH PROPERTY OWNERS
Agreements with property owners for storing excavated material, storing any other materials, or for any other purpose related to the Work shall be made in writing and a copy submitted to the Director for his/her information. All storage charges shall be at the Contractor’s sole expense.
2.13 PROTECTION OF PROPERTY
All public and private property, pavement or improvement, shall be safely guarded from damage or loss in connection with this Contract by the Contractor at all times. Should any facility, structure, or property be damaged during operations of the Contractor, he/she shall immediately notify the property owners or authorities. All damages and losses incurred shall be paid by the Contractor.
2.14 CONTRACTOR'S RESPONSIBILITIES FOR LOSSES OR LIABILITIES A. Risk of Loss
Except as otherwise provided in the Contract Documents and except as to the cost of repair or restoration of damage to the Work caused by force majeure, the Contractor shall bear all losse s
resulting to him/her on account of the amount or character of the Work, or from any unforeseen obstructions or difficulties which may be encountered, or from any encumbrances on the line of the Work, or because the nature of the ground in or on which the Work is done is different from what is assumed. The Contractor shall bear the risk for any City equipment, material, or supplies with which he/she has been entrusted.
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B. Materials and Facilities
The Contractor shall be responsible for materials and facilities as hereinafter provided and in the event of his/her failure to carry out said responsibilities, the same may be carried out by the City at the expense of the Contractor:
1. The Contractor shall be responsible for any materials so furnished and for the care of all Work until its completion and final acceptance, and he/she shall at his/her own expense replace damaged or lost materials and repair damaged parts of the Work.
2. The Contractor shall protect City facilities from damage resulting from his/her Work. City facilities damaged by, or as a result of, the Contractor's Work under this Contract shall be repaired or replaced, as directed by the Director, at the Contractor's expense.
3. The Contractor shall remove from the vicinity of the completed Work all buildings, rubbish, unused material, concrete forms, and other materials belonging or used under his/her direction during construction. If Contractor fails to completely remove such items within a reasonable time the City may do so at the Contractor’s expense.
C. Laws and Regulations
1. The Contractor shall obey all laws, ordinances, and regulations in any manner affecting those engaged or employed on the Work, or the materials used in the Work, or in any way affecting the conduct of the Work, and of all court orders and decrees having any jurisdiction or authority over the same. If any discrepancy or inconsistency should be discovered in this Contract, or in the Drawings or Specifications herein referred to, in relation to any such law, ordinance, regulation, order, or decree, he/she shall immediately report the same in writing to the Director.
2. Contractor shall, at all times, cause all his/her agents and employees to observe and comply with all such applicable laws, ordinances, regulations, orders, and decrees in effect or which may become effective before Final Completion of this Contract.
3. Nothing in the Contract Documents shall be construed to permit Work not conforming to such laws, ordinances, and regulations. If the Contractor ascertains at any time that any requirement of this Contract is at variance with such applicable law requirement, he/she shall immediately notify the Director.
4. If such applicable law requirement was not in effect on the date of submission of bids, any necessary adjustment of the Contract price shall be made as provided in Article 6 herein. If such applicable law requirement was in effect on said date of bid submission, no adjustment of Contract price will be considered.
5. The Contractor, at his/her own expense, shall pay all taxes properly assessed against his/her equipment, materials, or property used or required in connection with the Work.
2.15 WARRANTY AND CORRECTIONS
A. Warranty
1. Warranty. The Contractor warrants to the City that: (i) materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by Elecnor Belco Electric Inc.
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the Contract Documents; (ii) the Work will be of good quality and free from defects; (iii) the Work will conform to the requirements of the Contract Documents; and (iv) Contractor will deliver the Project free of stop notice claims. Work not conforming to these requirements, including substitutions not accepted by the City, will be deemed defective. The Contractor’s warranty excludes improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the City, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the correction obligation of Paragraph 2.04 herein.
2. Overlap. Where any warranties provided under the Contract Documents overlap, conflict, or are duplicative, Contractor will be bound by the more stringent requirements.
3. Procurement and Assignment of Warranties: Contractor shall obtain in the name of City, or transfer or assign to City or City’s designee prior to the time of Final Completion of the Work, any and all warranties or guarantees which Contractor is required to obtain pursuant to the contract Documents and which Contractor obtained from any other person or entity other than Contractor including, but not limited to, Subcontractors and manufacturers, and further agrees to perform the Work in such a manner so as to preserve any and all such warranties.
Contractor shall secure written warranties from all Subcontractors. Contractor and its Subcontractors shall offer any warranty upgrades or extensions that are offered by manufacturers of any equipment or system installed in the Work to the City. Contractor shall deliver to City all warranty and guarantee documents and policies.
4. Survival of Warranties: The provisions of this paragraph 2.15 will survive Contractor’s completion of the Work or termination of Contractor’s performance of the Work.
B. Correction of Work
1. Before or After Final Completion. The Contractor shall promptly correct Work rejected by the City or City’s designee, as failing to conform to the requirements of the Contract Documents, whether discovered before or after Final Completion and whether or not fabricated, installed, or completed. Costs of correcting such rejected Work, including additional testing, inspections, and compensation for the City’s services and expenses made necessary thereby, will be at the Contractor’s expense within the Contract Price.
2. After Final Completion.
(a) In addition to the Contractor’s warranty obligations under Paragraph 2.15-A, if, within one (1) year after the date of Final Completion of the Work or within the time period established by any applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall commence correction or replacement of such Work within forty-eight (48) hours after receipt of written notice from the City to do so. The Contractor shall perform such corrective work without charge or cost to the City after Final Completion of the Work. The City shall give such notice promptly after discovery of the condition. (b) If the Contractor fails to commence correction or replacement of non-conforming Work within forty-eight (48) hours after receipt of written notice, the City will proceed to have defects repaired or replaced at the expense of the Contractor and its Performance Bond surety, plus fifteen percent (15%) for the City’s overhead Elecnor Belco Electric Inc.
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and administrative expense. The City may charge such costs against any payment due Contractor. If, in the opinion of the City, defective work creates a dangerous or hazardous condition or requires immediate correction or attention to prevent further loss to the City or to prevent interruption of operations of the City, the City may take immediate action, give notice, make such correction, or provide such attention and the cost of such correction or attention will be charged against the Contractor. Such action by the City will not relieve the Contractor of the warranties provided in this Article or elsewhere in the Contract Documents.
3. Replacement or Removal of Defective or Unauthorized Work. The Contractor shall remove from the Site and replace those portions of the Work which are not in accordance with the requirements of the Contract Documents in a manner acceptable to and as ordered by the Director. No compensation shall be allowed for such removal or replacement. Director shal l
have authority to cause defective work to be remedied, removed or replaced and to deduct the costs from monies due or to become due to the Contractor.
4. Destruction or Damage. In the event the Contractor destroys or damages any construction of the City or another contractor while correcting or removing Work which is not in accordance with the requirements of these Contract Documents, the Contractor shall bear the cost of repairing or reconstructing that other construction as well.
5. No Limitation. Nothing contained in Paragraph 2.15-B will be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one-year period for correction of Work as described in Paragraph 2.15-B relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the limitations periods established by statute for any construction defect or other causes of action.
2.16 CLEANING AND ENVIRONMENTAL CONTROLS
The Contractor, Subcontractors and employees shall comply with all litter and pollution laws and it shall be the responsibility of the Contractor to ensure compliance. The Contractor shall do all of the following:
A. Maintain the Site free of waste materials, debris, and rubbish and in a clean and orderly condition; and Remove waste materials, debris and rubbish from site and dispose off-site legally.
B. The Contractor shall maintain at his/her disposal any and all equipment necessary to prevent and remediate any sanitary sewer overflow arising out of the Work. The Contractor shall furnish and operate a self-loading motor sweeper with spray nozzles, as directed by the Director, to maintain the affected areas in a condition of cleanliness acceptable to the City at all locations affected by the Contractor’s operations. For purposes of this Paragraph, the affected areas include the project Site as well as al l
haul routes to and from the project Site and all areas of construction and restoration which have not been completed.
C. The Contractor shall take appropriate action to ensure that no dust originates from the project Site.
D. Any equipment or vehicles driven and/or operated within or adjacent to a street gutter, storm drain, runoff conveyance or ocean shall be checked and maintained daily to prevent leaks of materials that if introduced to water could be deleterious to aquatic life.
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petroleum products or other organic or earthen material from any construction, or associated activity or whatever nature shall be allowed to enter into or placed where same may be washed by rainfall or runoff into waters of the State. When operations are completed, any excess materials or debris shall be removed from the Work area.
2.17 WATER POLLUTION CONTROL
A. The Contractor shall meet all applicable City of Vernon, state and federal clean water laws, rules and regulations including but not limited to all conditions set forth in the Vernon Municipal Code Chapte r
21, Article 5 regarding stormwater and urban runoff controls as it relates to public agency activities including, but not limited to storm and/or sanitary sewer system inspection and repair, street sweeping, trash pick-up and disposal, and street and right-of-way construction and repair ar e
required to implement and maintain the activity specific Best Management Practices (BMPs) listed in Table 2-1 below in compliance with the National Pollutant Discharge Elimination System (NPDES) requirements. Contractor shall not discharge any water containing trash, debris, pollutants, fuels, oils, soaps or other non-allowable constituents from its sweeping vehicles upon any city street, to any storm drain or any non-permitted outlet. As part of its submission, contractor shall describe its methods for preventing NPDES violations during sweeping operations within the City. In addition, Contractor shall comply with all NPDES requirements at its maintenance facilities, storage yards and company facilities. Failure to comply with this section may result in termination for cause by the City of any contract resulting from this solicitation.
Table 2-1. BMPs for Public Agency Facilities and Activities General and Activity Specific BMPs
General BMPs
Scheduling and Planning
Spill Prevention and Control
Sanitary/Septic Waste Management
Material Use
Safer Alternative Products
Vehicle/Equipment Cleaning, Fueling and Maintenance
Illicit Connection Detection, Reporting and Removal
Illegal Spill Discharge Control
Maintenance Facility Housekeeping Practices
Flexible Pavement
Asphalt Cement Crack and Joint Grinding/ Sealing
Asphalt Paving
Structural Pavement Failure (Digouts) Pavement Grinding and Paving Emergency Pothole Repairs
Sealing Operations
Rigid Pavement
Portland Cement Crack and Joint Sealing
Mudjacking and Drilling
Concrete Slab and Spall Repair
Slope/Drains/Vegetation
Shoulder Grading
Nonlandscaped Chemical Vegetation Control
Nonlandscaped Mechanical Vegetation Control/Mowing
Nonlandscaped Tree and Shrub Pruning, Brush Chipping, Tree and Shrub Removal
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Fence Repair
Drainage Ditch and Channel Maintenance
Drain and Culvert Maintenance
Curb and Sidewalk Repair
Litter/ Debris/ Graffiti
Sweeping Operations
Litter and Debris Removal
Emergency Response and Cleanup Practices
Graffiti Removal
Landscaping
Chemical Vegetation Control
Manual Vegetation Control
Landscaped Mechanical Vegetation Control/ Mowing
Landscaped Tree and Shrub Pruning, Brush Chipping, Tree and Shrub Removal Irrigation Line Repairs
Irrigation (Watering), Potable and Nonpotable
Environmental
Storm Drain Stenciling
Roadside Slope Inspection
Roadside Stabilization
Stormwater Treatment Devices
Traction Sand Trap Devices
Bridges
Welding and Grinding
Sandblasting, Wet Blast with Sand Injection and Hydroblasting Painting
Bridge Repairs
Other Structures
Pump Station Cleaning
Tube and Tunnel Maintenance and Repair
Tow Truck Operations
Toll Booth Lane Scrubbing Operations
Electrical Sawcutting for Loop Installation
Traffic Guidance
Thermoplastic Striping and Marking
Paint Striping and Marking
Raised/ Recessed Pavement Marker Application and Removal Sign Repair and Maintenance
Median Barrier and Guard Rail Repair
Emergency Vehicle Energy Attenuation Repair
Storm Maintenance Minor Slides and Slipouts Cleanup/ Repair Management and Support
Building and Grounds Maintenance
Storage of Hazardous Materials (Working Stock)
Material Storage Control (Hazardous Waste)
Outdoor Storage of Raw Materials
Vehicle and Equipment Fueling
Vehicle and Equipment Cleaning
Vehicle and Equipment Maintenance and Repair
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B. Water Quality Protection Requirements for Construction Projects with Less than One (1) Acre of Disturbed Soil.
All construction projects, regardless of size, will be required to implement best management practices (BMPs) necessary to reduce pollutants to the Maximum Extent Practicable (MEP) to meet the minimum water quality protection requirements and implement all applicable set of BMPs as defined in Table 2-2.
Table 2-2
Minimum Water Quality Protection Requirements and Applicable Set of BMPs for All Construction Projects Category Minimum Requirements BMPs
1. Sediment Control Sediments generated on the project site shall be retained using adequate Treatment Control or Structural BMPs.
Sediment Control
2. Non-Stormwater
Management, Waste
Management and
Materials Pollution
Control
Construction-related materials, wastes, spills or residues shall be retained at the project site to avoid discharge to streets, drainage facilities, receiving waters, or adjacent properties by wind or runoff.
Non-storm water runoff from equipment and vehicle washing and any other activity shall be contained at the project sites.
Stormwater
Management; Waste
Management
3. Erosion Control Erosion from slopes and channels shall be controlled by implementing an effective combination of BMPs, such as the limiting of grading scheduled during the wet season;
inspecting graded areas during rain events; planting and maintenance of vegetation on slopes; and covering erosion susceptible slopes.
Erosion Control
Please refer to the California Stormwater Quality Association’s Construction Handbook (available on their website:
www.cabmphandbooks.com) for further information regarding the BMPs listed in Table 2-2.
All construction projects with Less than One (1) Acre of Disturbed Soil shall submit to the City a signed Statement of Intent to Comply with Minimum Requirements of the Stormwater Permit (Exhibit 5).
The Contractor may self-certify that the following training was completed on an annual basis providing they certify they have received all applicable training: x The Contractor shall train all of their employees in targeted positions (whose interactions, jobs, and activities affect stormwater quality) on the requirements of the overall stormwater management program.
x When the Work includes the use or have the potential to use pesticides or fertilizers, the Contractor shall train all of their employees (whether or not they normally apply pesticides or fertilizers as part of their work). Training programs shall address:
1) The potential for pesticide-related surface water toxicity; 2) Proper use, handling, and disposal of pesticides;
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3) Least toxic methods of pest prevention and control, including Integrated Pest Management; and
4) Reduction of pesticide use
C. Water Quality Protection Requirements for Construction Projects with One (1) Acre (or greater) of Disturbed Soil. In addition to the minimum BMPs required in Paragraphs A and B, all construction projects where at least one (1) acre of soil will be disturbed, construction activity that results in land surface disturbances of less than one acre if the activity is part of a larger common plan of development, or the sale of one or more acres of disturbed land surface requires a Construction Activities Storm Water General Permit (2009-0009-DWQ Permit).
Prior to commencement of construction activities, the Permit Registration Documents (PRDs) must be submitted electronically in the Storm Water Multi-Application Report Tracking System (SMARTS) (http://smarts.waterboards.ca.gov/smarts/faces/SwSmartsLogin.jsp). PRDs consist of the Notice of Intent, Risk Assessment, Post-Construction Calculations, a Site Map, the Storm Water Pollution Prevention Plan (SWPPP), a signed certification statement by the Legally Responsible Person (LRP), and the first annual fee.
See: http://www.swrcb.ca.gov/water_issues/programs/stormwater/construction.shtml for more information. A Waste Discharger Identification (WDID) will be emailed to the LRP after the PRDs have been submitted and are deemed complete. Construction activities cannot begin until a WDID is issued by the State Water Resources Control Board. Contractor shall bear the costs of any delays to the Project caused by a delay in obtaining its WDID.
The SWPPP shall include:
1. The name, location, period of construction, and a brief description of the project;
2. Contact information for the owner and contractor;
3. The building permit number for the project;
4. The grading permit number for the project (where applicable);
5. A list of major construction materials, wastes, and activities at the project site;
6. A list of best management practices to be used to control pollutant discharges from major construction materials, wastes, and activities;
7. A site plan (construction plans may be used) indicating the selection of BMPs and their location where appropriate;
8. Non-storm water discharges, their locations, and the BMPs necessary to prevent the discharge;
9. A maintenance and self-inspection schedule of the BMPs to determine the effectiveness and necessary repairs of the BMPs; and
10. A certification statement that all required and selected BMPs will be effectively implemented.
Within seven (7) days after the City awards the Contract, the Contractor shall submit one (1) original hard copy and one (1) electronic copy via email to [email protected] of the proposed SWPPP to the City. The City shall review the SWPPP within 14 days of receipt of the plan. If revisions are required, the Contractor shall revise and re-submit the document within seven (7) days of its receipt of the City’s comments. The City shall then have seven (7) days to consider the revisions made by the Contractor and approve the SWPPP.
The Contractor shall maintain a minimum of two (2) readily accessible copies of the SWPPP at the Project site. The SWPPP shall be made available upon request of a representative of the Los Elecnor Belco Electric Inc.
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Angeles Regional Water Quality Control Board (LARWQCB) or the U.S. Environmental Protection Agency (U.S. EPA). Requests by environmental groups and the public shall be directed to the City.
D. Best Management Practices
The objective of the SWPPP is to identify potential sources of pollution that may reasonably affect the quality of storm water discharge associated with construction activities. The plan will describe and ensure the implementation of Best Management Practices (BMPs) which will be used to reduce pollutants in the storm water discharges from the construction site. A Best Management Practice is defined as any program, technology, process, operating method, measure, or device that controls, prevents, removes, or reduces pollution. The Contractor shall select appropriate BMPs from the California Stormwater BMP Handbook, Municipal, Industrial, New Development, and Construction Volumes (www.cabmphandbooks.com) in conjunction with all activities and construction operations. Copies of the California Stormwater BMP Handbooks may be obtained from:
California Stormwater Quality Association
P.O. Box 2313
Livermore, CA 94551
www.cabmphandbooks.com
E. Implementation
Cashier
Los Angeles County DPW
900 South Fremont Avenue
Alhambra, CA 91803
Tel. No. (626) 458-6959
The Contractor will be responsible throughout the duration of the Project for the installation, monitoring, inspection and maintenance of the BMPs included in the SWPPP and for removing and disposing of temporary BMPs. The Contractor may be required to implement additional BMPs as a result of changes in actual field conditions, contractor’s activities, or construction operations.
The Contractor shall demonstrate the ability and preparedness to fully deploy these SWPPP control measures to protect soil-disturbed areas of the project site before the onset of precipitation and shall maintain a detailed plan for the mobilization of sufficient labor and equipment to fully deploy these control measures.
Throughout the winter season, active soil-disturbed areas of the project site shall be fully protected at the end of each day with these control measures unless fair weather is predicted through the following day. The Contractor shall monitor daily weather forecasts. If precipitation is predicted prior to the end of the following workday, construction scheduling shall be modified, as required, and the Contractor shall deploy functioning control measures prior to the onset of the precipitation.
The City may order the suspension of construction operations which are creating water pollution if the Contractor fails to conform to the requirements of this Paragraph 2.17. Unless otherwise directed by the City, the Contractor’s responsibility for SWPPP implementation shall continue throughout any temporary suspension of the Work.
F. Sewage Spill Prevention. The Contractor’s attention is directed to the sewer bypass operation required during any sewer construction pursuant to the 2021 edition of the “Greenbook” Standard Specifications for Public Works Construction, Section 3-12.5 or as that section is subsequently amended
.
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emergency response unit comprised of emergency response equipment and trained personnel to be immediately dispatched to the project site.
The Contractor shall be fully responsible for preventing and containing sewage spills as well as recovering and properly disposing of raw sewage. In addition, the Contractor is responsible for any fines, penalties and liabilities arising from negligently causing a sewage spill. Any utility that is damaged by the contractor shall be immediately repaired at the Contractor’s expense. The Contractor shall take all measures necessary to prevent further damage or service interruption and to contain and clean up the sewage spills.
G. Sewage Spill Telephone Notification
Should a sewage spill occur, the Contractor shall immediately report the incident to both of these two City Departments:
Sewer Maintenance Services ......................................... City of Vernon Control Center (323) 826-1461
Fire Department Dispatch Center ........................................................................................ 911 The Contractor is encouraged to obtain telephone numbers, pager numbers and cellular telephone numbers of City representatives such as Project Managers and Inspectors. However, if these City representatives are not available, then the Contractor shall immediately call:
City of Vernon Control Center (323) 826-1461
H. Sewage Spill Written Notification
The Contractor shall prepare and submit a written report to the Director within three (3) Working Days from the occurrence of a spill to the City. This report shall describe all of the following:
1. The exact location on the Thomas Guide map.
2. The nature and volume.
3. The date, time and duration.
4. The cause.
5. The type of remedial and/or cleanup measures taken and date and time implemented.
6. The corrective and preventive action taken.
7. The water body impacted and results of necessary monitoring.
I. Enforcement
The City is subject to enforcement actions by the LARWQCB, U.S. EPA, environmental groups and private citizens. The Contractor shall indemnify, defend and hold City, its officers, agents and employees harmless from Contractor’s failure to comply and/or fulfill the requirements set forth in this Paragraph 2.17. Contractor shall be responsible for all costs and liabilities imposed by law as result of Contractor’s failure to comply and/or fulfill the requirements set forth in this Paragraph 2.17.
The costs and liabilities include, but are not limited to fines, penalties and damages whether assessed against the City or the Contractor.
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In addition to any remedy authorized by law, any money due to the Contractor under this contract shall be retained by the City until all costs and liabilities imposed by law against the City or Contractor have been satisfied.
J. Maintenance
The Contractor shall ensure the proper implementation and functioning of BMP control measures and shall regularly inspect and maintain the construction site for the BMPs identified in the SWPPP.
The Contractor shall identify corrective actions and time frames in order to properly address any damaged measure, or reinitiate any BMPs that have been discontinued.
If the City identifies a deficiency in the deployment or functioning of identified control measures, the deficiency shall be corrected by the Contractor immediately or by a later date and time if agreed to by Director and if requested in writing, but not later than the onset of the subsequent precipitation events. The correction of deficiencies shall be at no additional cost to the City.
K. Payment
All costs involved in the implementation of the SWPPP, including furnishing all labor, materials, tools, equipment and all incidentals; and for doing all the work involved in installing, constructing, maintaining, removing, and disposing of control measures, except those that were installed as a
part of another structure, shall be included in the unit prices bid for the various related items of work and no additional compensation will be made therefor.
2.18 SOLID WASTE DISPOSAL AND DIVERSION
The Contractor shall submit to the Director the following summary of solid waste generated by the Work, disposed in Class III landfills, or diverted from disposal through recycling. Report disposal in inert fill separately. This form must be accompanied by legible copies of weight tickets, receipts, or invoices that specifically identify the project generating the material. Said documents must be from recyclers and/or disposal site operators that are acceptable to the Director. Further, the documents must be submitted to the Director with each application for progress payment. Failure to submit the form and its supporting documentation will render the application for progress payment incomplete and delay progress payments.
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SUMMARY OF SOLID WASTE DISPOSAL AND DIVERSION
Project Title: City Contract
Type of Material (a) Disposed in
Class III Landfills
(b) Diverted from
Class III Landfills by
(c) [Leave This
Column Blank]
(d) Disposed in Inert
Fills
Tons/CY Tons/CY Tons/CY Tons/CY
Asphalt
Concrete
Metal
Other Segregated
Materials (Describe):
Miscellaneous
Construction Waste
Total
Form to be submitted to the City
SIGNATURE:
TITLE:
DATE:
2.19 RECYCLED, REUSABLE AND RECYCLABLE PRODUCTS
The Contractor is encouraged to propose recycled, reusable and recyclable products for use by the City.
Those items should be clearly identified. The City may require further information or documentation to ascertain the suitability/appropriateness of a proposed product. [END OF ARTICLE]
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ARTICLE 3 - TIME OF COMMENCEMENT AND COMPLETION
3.01 COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK
A. Notice to Proceed
The Contractor is not authorized to perform any Work the Contract Documents until he/she has received from the City an official notification to commence Work. The date on which the notification is received by the Contractor is herein referred to as the Notice to Proceed. The Contractor shall commence Work on the Date of Commencement established in the Notice to Proceed is issued. The Notice to Proceed shall be issued after the Contract is properly executed, bonds are furnished an d
approved, and insurance has been submitted and approved.
B. Prosecution of the Work
Work shall be continued at all times with such force and equipment as will be sufficient to complete it within the specified time. The Contractor expressly proposes that he/she has taken into consideration and made allowances for all ordinary delays and hindrances to the Work to be performed and that he/she will complete the Work within the specified time.
C. Required Contract Completion
Time is of the essence in the completion of this Contract. The Work shall be completed in its entirety and made ready for service within Thirty (30) calendar days following the Date of Commencement established in the Notice to Proceed (“Contract Time”). By executing the Contract, Contractor confirms that the Contract Time is a reasonable period for performing the Work.
3.02 CITY'S DISCRETION TO EXTEND CONTRACT TIME
In the event the Work required hereunder is not satisfactorily completed in all parts and in compliance with the Contract Documents, City shall have the right, in its sole discretion, to increase the number of Working Days or not, as may seem best to serve the interest of City. A change order extending the Contract Time only will be issued by the City should the City decide to increase the number of Working Days.
3.03 SUBSTANTIAL COMPLETION
A. Contractor Request for Inspection and Punch List
When the Contractor considers that it has achieved Substantial Completion of the Work, or designated portion thereof, Contractor shall prepare and submit to the Director a request for inspection and a comprehensive punch list of items to be completed or corrected prior to Final Payment. Failure to include an item on such punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents.
B. City Inspection
Upon receipt of the Contractor's punch list, the Director will make an inspection to determine whether the Work or designated portion thereof is Substantially Complete. If the inspection discloses any item, whether or not included on the Contractor's punch list, which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before City's issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by City.
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The Contractor shall then submit a request for another inspection by City to determine Substantial Completion.
C. Certificate of Substantial Completion
When the Work or designated portion thereof is substantially complete, the Director will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City and Contractor for security, maintenance, utilities, damage to the Work, and insurance, and shall fix the time within which the Contractor shall finish all items on the Contractor’s punch list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work. Contractor shall deliver to City all warranty and guarantee documents and policies.
3.04 DELAYS AND EXTENSIONS OF TIME FOR CONTRACTOR
A. The Contractor shall take reasonable precautions to foresee and prevent delays to the Work. In the event of any delay to the Work, the Contractor shall revise his/her sequence of operations, to the extent possible under the terms of the Contract, to offset the delay.
B. If any delay to the Work is caused by circumstances within the Contractor's control, it is not excusable and not compensable, and the Contractor will not be entitled to any extension of time or to any other compensation for damages resulting directly or indirectly therefrom.
C. If any delay having a direct effect on the Work is caused by circumstances beyond the control of the Contractor except for causes of delay specified in Paragraph 3.04-D., such delay may be excusable and may entitle the Contractor to an equivalent extension of time, but not to any other compensation.
Excusable but not compensable causes include but are not limited to labor disputes, weathe r
conditions unfavorable for prosecution of the Work, and force majeure.
D. If any delay having a direct effect on the Work is caused by failure of the City to provide information as specified, or necessary instructions for carrying on the Work, or to provide the necessary right of way or site for installation, or failure of a utility to remove or relocate an existing facility such delay may be compensable and may entitle the Contractor to an equivalent extension of time, and to compensation for damages resulting directly from any of the causes of delay specified in this paragraph
.
E. The Contractor shall notify the Director in writing of any delay having a direct effect on the Work and the causes thereof within 15 days from the beginning of such delay.
F. Any claim for an extension of time or for compensation for damages resulting from delay shall be made in writing to the Director not more than 30 days after the ending of such delay. The Contractor shall provide a written report evaluating the impact of the delay which shall include, at a minimum, all of the following:
1. a narrative description of the delay and its impact on the critical path to Substantial Completion of the Work or a portion of the Work designated by City;
2. a detailed breakdown of the Allowable Costs, if any, sought by Contractor due to the delay;
3. the number of days of extension sought by Contractor as an adjustment to the Contract time;
4. a statement that Contractor has complied with the requirements of the General Conditions for written notice of delays, along with the dates and copies of such notices;
5. the measures taken by Contractor and Subcontractors to prevent or minimize the delay; and Elecnor Belco Electric Inc.
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6. the Contactor’s recommendations for reordering or re-sequencing the Work to avoid or minimize further delay.
No extension of time or compensation for damages resulting from delay will be granted unless the delay affects the timely completion of the overall Work under the Contract or the timely completion of a portion of the Work for which a time of completion is specified.
G. The Director will investigate the facts and ascertain the extent of the delay, and his/her findings thereon shall be final and conclusive.
H. Failure of the Contractor to give written notice of a delay, or to submit or document a claim for an extension of time or for damages resulting from delay in the manner and within the times stated above shall constitute a waiver of all claims thereto.
I. When a Contractor experiences two concurrent delays, one compensable and the other excusable, no compensation other than an extension of time will be allowed.
J. An extension of time must be approved by the Director to be effective, but an extension of time whether with or without consent of the sureties, shall not release the sureties from their obligations, which shall remain in full force until the discharge of the Contract.
3.05 CLIMATIC CONDITIONS
A. The Director may suspend the Work whenever weather conditions or conditions resulting from inclement weather are unfavorable for the prosecution of the Work. The delay caused by such suspension may entitle the Contractor to an extension of time but not to any other compensation.
B. If the Contractor believes that Work should be suspended under this Paragraph 3.05, he/she may request such suspension. The delay caused by such suspension may entitle the Contractor to an extension of time but not to any other compensation.
C. No extension of time will be granted for suspension of Work unless the suspension affects the timely completion of all Work under the Contract or the timely completion of a portion of the Work for which a time of completion is specified. Determination that the suspension for inclement weather conditions or conditions resulting from inclement weather affects timely completion and entitles the Contractor to an extension of time shall be made and agreed to in writing by the Director and the Contractor on each day that Work is suspended. In the event of failure to agree, the Contractor may protest under the provisions of Paragraph 7.07.
D. If Work is suspended and an extension of time is granted under this Paragraph 3.05 the Contractor will be entitled to a one day extension of time for each day that he/she is unable to Work at least onehalf of his/her current normal Work day; and if the Work is suspended at the regular starting time on any Work day and the Contractor's Workforce is dismissed as a result thereof, then he/she will be entitled to a one day extension of time whether or not conditions change thereafter and the major portion of the day is suitable for Work.
3.06 COMPLETION AND ACCEPTANCE
A. Upon request by the Contractor, the Director shall conduct a final inspection of the Work. If, in the Director’s opinion, Final Completion has been achieved, the Director will accept the Work by issuing a “Notice of Completion” of the Work to the Contractor. Upon the issuance of the Notice of Completion the Contractor will be relieved from responsibility to protect the Work .
B. Within 15 calendar days after issuing the Notice of Completion, the Director will record the Notice of Elecnor Belco Electric Inc.
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Completion with the County Recorder.
3.07 LIQUIDATED DAMAGES
A. Contractor and City agree to liquidate damages in the amount of Two Hundred and Fifty dollars ($250) per day, with respect to Contractor’s failure to achieve Substantial Completion of the Work within the Contract Time. The Parties intend for the liquidated damages set forth herein to apply to this Contract as set forth in Government Code Section 53069.85. The Contractor acknowledges and agrees that the liquidated damages are intended to compensate City solely for the Contractor’s failure to meet the deadline for Substantial Completion and shall not excuse Contractor from liability from any other breach, including any failure of the Work to conform to the requirements of the Contract Documents.
B. In the event that Contractor fails to achieve Substantial Completion of the Work within the Contract Time, Contractor agrees to pay City the amount specified in the Contract form for each calendar day that Substantial Completion is delayed.
C. Contractor and City acknowledge and agree that the foregoing liquidated damages have been set based on an evaluation of damages that the City will incur in the event of late completion of the Work.
Contractor and City acknowledge and agree that the amount of such damages are impossible to ascertain as of the effective date hereof and have agreed to such liquidated damages to fix City’s damages and to avoid later disputes. It is understood and agreed by Contractor that liquidated damages payable pursuant to this Agreement are not a penalty and that such amount are not manifestly unreasonable under the circumstances existing as of the effective date of this Agreement.
D. It is further mutually agreed that City shall have the right to deduct liquidated damages against progress payments or retainage and that the City will issue a Construction Change Directive and reduce the Contract Sum accordingly. In the event the remaining unpaid Contract Sum is insufficient to cover the full amount of liquidated damages. Contractor shall pay the difference to City. [END OF ARTICLE]
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ARTICLE 4 - CONSTRUCTION SCHEDULES
4.01 BASELINE PROJECT SCHEDULE
The Contractor shall submit his/her work Baseline Project Schedule, in electronic as well as hard-copy format, to the Director at the pre-construction meeting showing in detail how the Contractor plans to execute and coordinate the Work. The construction schedule shall show the sequence of work, critical path and estimated time for completion of each segment of work. This schedule must be reviewed and accepted by the Director before the Contractor will be permitted to begin work. In addition, the Contractor shall submit a detailed schedule forecasting two (2) weeks of work describing each day’s work. This schedule shall be updated and submitted to the City every other Monday during the construction period. The Contractor shall give 48 hours notice to the City Engineer prior to the start of the work.
A. Format
1. At a minimum, the Baseline Project Schedule activities shall be coded on a work discipline basis and by geographic area or location on the Project. The Baseline Project Schedule shall include a detailed description of each activity code. The Baseline Project Schedule shall be based on and incorporate contract milestone and completion dates specified in the Contract Documents. It shall depict events, jobs, and their interrelationships and shall recognize the progress that must be made on one task before subsequent tasks can begin. The schedule shall be comprehensive and shall include all logical interdependencies and interactions required to perform the Work of the Project.
2. Overall time of completion and time of completion for each milestone shown on the Schedule shall adhere to the specified Contract Time, unless an earlier (advanced) time of completion is requested by Contractor, agreed to by the City and formalized by Change Order.
3. Contractor shall use the latest version of Microsoft Project or equivalent software agreed to by the parties.
4. The City will review the submitted Baseline Project Schedule for conformance with these scheduling requirements. Within fourteen (14) calendar days after receipt, the City will accept the proposed Baseline Project Schedule or will return it with comments. If the proposed Baseline Project Schedule is accepted by the City, it shall be deemed part of the Contract Documents. If the Baseline Project Schedule is not accepted by City, Contractor shall revise the Baseline Project Schedule, in accordance with the recommendations of the City, and re-submit same for acceptance, no later than seven (7) calendar days after receipt of said recommendation.
5. Acceptance of Baseline Project Schedule by City, failure to include an element of work, or inaccuracy in Baseline Project Schedule shall not relieve Contractor from the responsibility for accomplishing the Work in accordance with the Contract Documents.
B. Float
1. Critical Work activities are defined as Work activities which, if delayed or extended, will delay the scheduled completion of the milestones and/or time of completion. All other Work activities ar e
defined as non-critical Work activities and are considered to have float. Float is defined as the time that a non-critical Work activity can be delayed or extended without delaying the scheduled completion of the milestones and/or time of completion. Float is considered a Project resource available to either party or both parties as needed. Once identified, Contractor shall monitor, account for, and maintain float in accordance with Critical Path Methodology.
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2. Delays of any non-critical Work shall not be the basis for an extension of Contract Time until the delays consume all float associated with that non-critical Work activity and cause the Work activity to become critical.
3. It is acknowledged that City-caused time savings (i.e., critical path submittal reviews returned in less time than allowed by the Contract Documents, approval of substitution requests which result in a savings of time for Contractor, etc.) create shared float. Accordingly, City-caused delays may be offset by City-caused time savings.
C. Weather (This section applies only to projects of one (1) year duration or longer) The completion time contemplated by this Contract anticipates zero (0) lost days (Work Days) due to normal weather conditions annually and prorated for any duration less than twelve months. Only unusual or extreme weather conditions, as determined by the National Oceanic and Atmospheric Administration, for the time of year will be considered as justification for an extension of time to complete the Project, and only after the zero (0) weather days have been utilized. Annual weather days are not cumulative, and unused days shall become “float” for the benefit of the project, and the schedule adjusted accordingly. The use of weather days by the Contractor shall be subject to all the conditions of claim for an extension of time. The Contractor shall notify the City in writing within ten (10) days of the commencement of each rain event.
D. Early Completion
While the Contractor may schedule completion of the Project earlier than the date established by the Contract Documents, no additional compensation shall become due the Contractor for the use of float time between the Contractor’s projected early completion date and the date for Substantial Completion established by the Contract Documents, unless an earlier (advanced) time of completion is requested by Contractor, agreed to by the City, and formalized by Change Order.
4.02 SCHEDULE UPDATES
A. With each Application for Payment submitted by Contractor (other than the final Application for Payment), the Contractor shall submit to the City an updated Project Schedule revised to indicate the Work completed, status of Work in progress, all progress slippages, corrective actions taken, or slippage carry-over, for all anticipated delays or difficulties, and all other information required to accurately present the actual status of the progress of the Work as of the date of the Application for Payment. If the Contractor does not submit an updated Project Schedule with an Application for Payment, City may withhold payment, in whole or in part, until the updated Project Schedule is submitted. In the event that an update to the Project Schedule indicates a delay to the Contract Time the Contractor shall propose an affirmative plan to correct each such delay, including overtime and/or additional labor, if necessary. In no event shall any Project Schedule update constitute an adjustment in the Contract Time, any deadline, or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order or Work Directive.
B. At no time shall historical data contained within the updated Project Schedule (i.e. completed activities) be removed and/or altered in any way. This historical data is to be preserved within each of the updated Project Schedules and submitted with the final schedule update to reflect the actual start and finish dates for each activity within the Schedule
.
C. Any work stoppages within individual work activities that exceed seven (7) calendar days in duration shall be clearly indicated within the updated Project Schedule. In cases where unplanned activity work Elecnor Belco Electric Inc.
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stoppages exceed seven (7) calendar days activities shall be added to the Project Schedule to clearly indicate the work stoppage period and identify forecasted resumption and completion of the activity where work has stopped. Contractor shall clearly note all schedule revisions when Project Schedule updates are submitted, as required in this Paragraph 4.02 above.
4.03 NONCOMPENSABLE EXTRAORDINARY MEASURES
A. Should the City determine, in its sole judgment, that the performance of the Work has not progressed to the level of completion required by the Contract Documents, City shall have the right to order the Contractor to take corrective measures to expedite the progress of construction, at no additional cost to the City, including, without limitation, the following:
1. Working additional shifts of overtime.
2. Supplying additional manpower, equipment, and/or facilities.
3. Reschedule activities to maximize practical concurrence of accomplishment of activities.
4. Submitting a Recovery Schedule discussed above, for resequencing performance of the Work or other similar measures.
5. Any other actions that may be necessary to mitigate delays.
B. Such Extraordinary Measures shall continue until the progress of the Work is no longer behind schedule and/or reaches the stage of completion required by the Contract Documents. Contractor shall not be entitled to an adjustment in the Contract Sum in connection with the performance of any such Extraordinary Measures required by the City under this Paragraph. The City may exercise the rights furnished the City pursuant to this Paragraph as frequently as the City deems necessary to ensure that the Contractor’s performance of the Work will comply with the Contract Time or interim completion dates set forth in the Contract Documents. If Contractor or its Subcontractors fail to implement or commence Extraordinary Measures within ten (10) calendar days of City’s written demand, City may, without prejudice to other remedies, take corrective action at the expense of the Contractor which shall reduce the Contract Sum accordingly.
4.04 CONDITION OF PAYMENT
Compliance by Contractor with the requirements of the Contract Documents pertaining to preparation, submission, revising and updating of the Schedule is a condition precedent to City’s obligation to make payment to Contractor of any or all sums that might otherwise be due to Contractor in the absence of such noncompliance.
Payment by City under circumstances in which City, for any reason, fails or elects not to assert its right to withhold payment for noncompliance with this Paragraph shall not be construed as a waiver of the right to withhold future payments on account of such noncompliance or any other noncompliance. [END OF ARTICLE]
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ARTICLE 5 - SUSPENSION OR TERMINATION OF CONTRACT
5.01 TERMINATION BY THE CONTRACTOR
A. Contractor shall have the right to terminate its performance of the Contract only upon the occurrence of one of the following:
1. The Work is stopped for a period of ninety (90) consecutive days through no act or fault of the Contractor, any Subcontractor, Sub-subcontractor, their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, due to:
a. the issuance of an order of a court or other public authority having jurisdiction; or b. an act of government, such as a declaration of national emergency making material unavailable;
and Contractor has given City written notice within ten (10) days of the occurrence of such ground for termination, then the Contractor may, upon thirty (30) additional calendar days written notice to City, unless the reason has theretofore been cured, terminate its performance of the Work.
2. The Work is stopped for a period of 120 consecutive days through no act or fault of Contractor, any Subcontractor, Sub-subcontractor, their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, because the City has persistently failed to perform any material obligation under the Contract Documents an d
fails to cure such default within ninety (90) days after the receipt of notice from Contractor stating the nature of such default.
B. If Contractor terminates its performance of the Contract in accordance with this Paragraph 5.01, the City shall pay Contractor for the Work executed through the date of termination as set forth in Paragraph
5.04-C below.
5.02 TERMINATION BY THE CITY FOR CAUSE
A. Grounds
The City shall have the right to terminate the Contractor’s performance of the Contract, in whole or in part, without liability to City if:
1. Contractor fails promptly to begin the Work under the Contract Documents; or
2. Contractor refuses or fails to supply enough properly skilled workers or proper materials; or
3. Contractor fails to perform the Work in accordance with the Contract Documents, including conforming to applicable standards set forth therein in constructing the Project, or refuses to remove and replace rejected materials or unacceptable Work; or
4. Contractor discontinues the prosecution of the Work (exclusive of work stoppage: (a) due to termination by City; or (b) due to and during the continuance of a Force Majeure event or suspension by City); or
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5. Contractor fails to resume performance of Work which has been suspended or stopped, within a reasonable time after receipt of notice from City to do so or (if applicable) after cessation of the event preventing performance; or
6. Any representation or warranty made by Contractor in the Contract Documents or any certificate, schedule, instrument, or other document delivered by Contractor pursuant to the Contract Documents shall have been false or materially misleading when made; or
7. Contractor fails to make payment to Subcontractors or Material Suppliers for materials or labor in accordance with the respective Contract Documents and applicable law; or
8. Contractor disregards laws, ordinances, or rules, regulations, or orders of a public authority having jurisdiction; or
9. Contractor is guilty of breach of a provision of the Contract Documents; or
10. Contractor becomes insolvent, is adjudicated bankrupt, or makes a general assignment for the benefit of creditors and fails to provide City with adequate assurances of Contractor’s ability to satisfy its contractual obligations.
A receiver, trustee, or other judicial officer shall not have any right, title, or interest in or to the Contract.
Upon that person’s appointment, City has, at its option and sole discretion, the right to immediately cancel the Contract and declare it null and void.
B. City’s Rights.
When any of the reasons specified in Paragraph 5.02-A exist, the City may, in addition to and without prejudice to any other rights or remedies of the City, and after giving the Contractor five (5) calendar days written notice, terminate Contractor’s performance of the Work, in whole or in part, and may:
1. Take possession of the site and all materials, equipment, tools, construction equipment, and machinery thereon owned by the Contractor;
2. Withhold from Contractor amounts unpaid hereunder and to offset such amounts against damages or losses incurred by City;
3. Accept assignment of subcontracts from Contractor, at the sole discretion of City, and
4. Finish the Work by whatever reasonable method the City may deem expedient.
Upon request of the Contractor, the City shall furnish to the Contractor a detailed accounting of the costs incurred by the City in finishing the Work.
C. Costs
If City’s costs to complete and damages incurred due to Contractor’s default exceed the unpaid Contract balance, the Contractor shall pay the difference to the City.
D. Wrongful Termination
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for cause, then said termination shall be deemed converted to a termination for convenience as set forth in Paragraph 5.04 and Contractor’s remedy for wrongful termination in such event shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph
5.04. 5.03 PARTIAL DELETION OR SUSPENSION OF WORK BY THE CITY A. Contractor agrees that the City may determine whether any or all of the Work described in the Contract Documents shall be deleted or performance suspended without electing to terminate the Contractor’s performance under the Contract and without any penalty being incurred by the City.
B. Any such partial deletion or suspension of the Work shall in no way void or invalidate the Contract nor shall it provide Contractor with any basis for seeking payment from City for Work deleted or suspended except to the extent such Work has already been performed and is otherwise compensable under the Contract.
C. The City shall have the right to later have any such suspended or deleted Work performed by Contractor or others without any penalty to the City.
D. In the event of any partial or complete deletion or suspension of Work, the City shall furnish Contractor with prompt written notice thereof, and the City shall be entitled to take possession of and have as its property all Record Documents, Accounting Records, and other data prepared by Contractor or its Subcontractors.
E. Suspension for Convenience.
1. The City may at any time and from time to time, without cause, order the Contractor, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time as the City may determine. Such order shall be specifically identified as a “Work Suspension Directive” under this Section.
2. Upon receipt of a Work Suspension Directive, Contractor shall, at the City’s expense, comply with its terms and take all reasonable steps to minimize costs allocable to the Work covered by the Work Suspension Directive during the period of Work stoppage.
3. Within the period of suspension, or such extension to that period as is agreed upon by Contractor and the City, the City shall either cancel the Work Suspension Directive or delete the Work covered by such Work Suspension Directive by issuing a Change Order or Construction Change Directive.
4. If a Work Suspension Directive is cancelled or expires, Contractor shall continue the Work. A Change Order or Construction Change Directive will be issued to cover any adjustments of the Contract Sum and Contract Time necessarily caused by such suspension. No adjustment shall be made to the extent:
(a) That performance is, was, or would have been so suspended, delayed, or interrupted by another cause for which the Contractor is responsible; or (b) That an equitable adjustment is made or denied under another provision of the Contract.
F. Suspensions for Cause
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for Contractor’s failure to:
1. Correct conditions unsafe for the Project personnel or general public, or
2. Carry out the Contract; or
3. Carry out orders of City.
G. Responsibilities of Contractor During Suspension Periods During periods that Work is suspended, Contractor shall continue to be responsible for the Work and shall prevent damage or injury to the Project, provide for drainage, and shall erect necessary temporar y
structures, signs or other facilities required to maintain the Project and continue to perform according to the Contract Documents.
5.04 TERMINATION BY THE CITY FOR CONVENIENCE
A. Grounds
Without limiting any rights which City may have by reason of any default by Contractor hereunder, City may terminate Contractor’s performance of the Contract, in whole or in part, at any time, for convenience upon fifteen (15) calendar days written notice to Contractor.
B. Contractor Actions
Upon receipt of such notice, Contractor shall perform the duties required by Paragraph 5.05 below.
At the election of and as directed by the City, any or all of the subcontracts and purchase orders entered in to by Contractor prior to the effective date of termination shall be terminated or shall be assigned to City
.
C. Compensation
1. If the Parties are unable to agree on the amount of a termination settlement, the City shall pay the Contractor the following amounts:
a. For Work performed before the effective date of termination, the total (without duplication of any items) of:
i. The cost of the Work; and
ii. A sum, as overhead and profit on the cost of the Work, determined by the City to be fair and reasonable. In no event shall Contractor be entitled to recover overhead or profit on Work not performed.
b. The reasonable costs of settlement of the Work terminated, including:
i. Accounting, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data, if any; and ii. Storage, transportation, and other costs reasonably necessary for the preservation, protection, or disposition of inventory.
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2. Such payment shall be Contractor’s exclusive remedy for termination for convenience and will be due and payable on the same conditions as set forth for final payment to the extent applicable.
Upon receipt of such payment, the Contractor and City shall have no further obligations to each other except for Contractor’s obligations with respect to warranties, representations, indemnity, maintenance of insurance, and other obligations that survive termination or Final Completion as provided for herein.
3. It is understood and agreed that no fee, anticipated profit, compensation for lost opportunity costs, or other compensation or payment of any kind or character shall be due or payable for unperformed Work regardless of the basis of termination and the inclusion of this provision within this subparagraph shall in no way limit its application to termination under this Paragraph.
4. Contractor agrees that each of its subcontracts will reserve for the Contractor the same right of termination for convenience provided by this Paragraph 5.04 .
D. No Consequential Damages
Under no circumstances shall Contractor be entitled to anticipatory or unearned profits or consequential or other damages as a result of a termination or partial termination under this Article 5. The payment to Contractor determined in accordance with this Article constitutes Contractor’s exclusive remedy for a termination hereunder.
5.05 CONTRACTOR’S DUTIES UPON TERMINATION FOR CAUSE OR CONVENIENCE If the City terminates Contractor’s performance of Work under the Contract, for cause or convenience or if Contractor terminates a Subcontractor with the City’s approval, Contractor shall:
(1) cease performance of the Work to the extent specified in the notice; (2) take actions necessary or that the City may direct, for the protection and preservation of the Work; (3) settle outstanding liabilities, as directed by City; (4) transfer title and deliver to City Work in progress, specialized equipment necessary to perform the Work; (5) submit all Record Documents, Accounting Records and other data prepared pursuant to the Contract by Contractor and/or its Subcontractors, as applicable, to the City with fifteen (15) calendar days after the City’s notice of termination in an organized, usable form, in both hard copy and electronic/digital form, with all items properly labeled to the degree of detail specified by the City; and, (6) except for Work directed by City to be performed prior to the effective date of termination stated in the notice, incur no further costs or expenses and enter into no further subcontracts and purchase orders.
No compensation shall be due Contractor, if any, until Contractor complies with the requirements of this Paragraph.
[END OF ARTICLE]
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ARTICLE 6 – CHANGES
6.01 CITY'S RIGHT TO ORDER CHANGES
The City, without invalidating the Contract, may authorize changes in the Work consisting of additions, deletions, or other revisions, with the Contract Sum and Contract Time being adjusted accordingly, if necessary. All such changes in the Work shall be authorized by Change Order or Construction Change Directive and Contractor shall perform such changes in the Work according to the applicable requirements of the Contract Documents.
6.02 APPLICABLE PROVISIONS
Changes in the Work shall be performed under applicable provisions of the Contract Documents. The Contractor shall proceed promptly and diligently with the change, unless otherwise provided in the Change Order or Construction Change Directive. It is of the essence to this Contract that all scope changes in the Work that form the basis of an adjustment of the Contract Sum or Contract Time must be authorized in advance in writing through either a Change Order or Construction Change Directive. A change in the Contract Sum or the Contract Time shall be accomplished only by Change Order or Construction Change Directive.
Accordingly, no verbal directions, course of conduct or dealings between the Parties, express or implied acceptance of alterations or additions to the Work, or claim that the Contract has been abandoned or the City has been unjustly enriched by any alteration or addition to the Work shall be the basis of any claim for an increase in any amounts due under the Contract Documents or a change in any time period provided in the Contract Documents.
6.03 NOTICE OF SCOPE CHANGE
Contractor shall submit written notice of any change in scope to the Director if, in the Contractor’s opinion, any instruction, request, Drawings, Specifications, action, condition, omission, default, or other situation occurs that the Contractor believes constitutes a scope change or other matter resulting in Extra Work, for which Contractor believes it is entitled to an adjustment of the Contract Sum or Contract Time. Such notice shall be provided prior to performance of the Work affected by such occurrence and within seven (7) calendar days after the discovery date of the circumstances of such scope change or other matters. The written notice shall state the date, circumstances, extent of adjustment to the Contact Sum or the Contract Time, if any, requested. The mere presentation of such notice shall not establish the existence of any right by Contractor to adjustment of the Contract Sum or Contract Time. Failure to provide such timely written notice described herein shall constitute a waiver by Contractor of the right to any adjustment to the Contract Sum or Contract Time on account thereof.
6.04 CHANGE ORDERS
A. Computation
Methods used in determining adjustments to the Contract Sum by Change Order may include those listed in Paragraph 6.06 below.
B. Accord and Satisfaction
Agreement on any Change Order shall be a full compromise and settlement of all adjustments to Contract Time and Contract Sum, and compensation for any and all delay, extended or additional field and home office overhead, disruption, acceleration, inefficiencies, lost labor or equipment productivity, differing Site conditions, construction interferences and other extraordinary or Elecnor Belco Electric Inc.
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consequential damages (hereinafter called "Impacts"), including any ripple or cumulative effects of said Impacts on the overall Work under the Contract arising directly or indirectly from the performance of Work described in the Change Order. By execution of any Change Order, Contractor agrees that the Change Order constitutes a complete accord and satisfaction with respect to all claims for schedule extension, Impacts, or any costs of whatever nature, character or kind arising out of or incidental to the Change Order. No action, conduct, omission, product failure or course of dealing by the City shall act to waive, modify, change, or alter the requirement that (i) Change Order's must be in writing, signed by the City and Contractor and; (ii) that such written Change Orders are the exclusive method for effectuating any change to the Contract Sum and/or Contract Time.
6.05 CONSTRUCTION CHANGE DIRECTIVE (FIELD DIRECTIVE)
A. A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. The City may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletion, or other revisions, the Contract Sum and Contract Time being adjusted accordingly.
B. If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be calculated in accordance with Paragraph 6.06 herein (Pricing Changes in the Work).
C. Upon receipt of the Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the City of the Contractor’s agreement or disagreement with the method, if any, provided in the Construction Change Directive, for determining the proposed adjustment in the Contract Sum or Contract Time.
D. If Contractor believes a Construction Change Directive constitutes a basis for adjustment to the Contract Sum or Contract Time, then Contractor shall give a Notice of Scope Change provided in Paragraph 6.03, followed by a submission of a Change Order Request as required by Paragraph
6.08. Contractor shall, if requested by City in such Construction Change Directive or in a subsequent Construction Change Directive, proceed with the performance of the Work as described in th e
Construction Change Directive. Failure of Contractor to proceed with the performance of Work, as described in the Construction Change Directive shall give the City the right to carry out the Work, as set forth in Paragraph 2.05.
E. A Construction Change Directive signed by the Contractor indicates the Contractor’s agreement therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order.
F. If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the City on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in the case of an increase in the Contract Sum, Allowable Mark-Ups in accordance with Paragraph 6.06(E) herein
.
6.06 PRICING CHANGES IN THE WORK
A. Alternative Methods of Pricing
The amount of any adjustment by Change Order or Construction Change Directive increasing or decreasing the Contract Sum shall be determined by the Director using one or a combination of the following methods:
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1. Lump Sum. By mutual acceptance of a lump sum proposal from Contractor properly itemized and supported by sufficient substantiating data to permit evaluation. Such proposal shall be based solely on Allowable Costs, as defined in Subparagraph 6.06-C, and Allowable Mark-Ups ,
as defined in Subparagraph 6.06-E, and shall not include any costs or expense that is not permitted by the terms of any provision of the Contract Documents.
2. Unit Prices. By unit prices contained in Contractor’s original Bid and incorporated in the Contract Documents or fixed by subsequent agreement between City and Contractor. Unless otherwise stated in the Bidding Documents, unit prices stated in the Contract Documents or agreed upon by the County and Contractor shall be deemed to include and encompass all Allowable Markups.
3. Time and Materials. By calculating the actual Allowable Costs directly incurred, plus a sum for Allowable Mark-Ups on such Allowable Costs.
4. Deletion of Work. By Unit Prices contained in Contractor’s original Bid and incorporated in the Contract Documents, or by using the Schedule of Values to determine the value of the decrease of the Contract Sum, less the value of any Work performed, plus a reasonable percentage of the decrease for the Contractor’s saved overhead unless the Schedule of Values allocates general conditions costs to individual line items, in which case no percentage of the decrease shall be added. When a change consists of both addition and deletion of Work, the added costs and deleted costs shall be calculated separately, and then added together, resulting in the net cost for the change. The Allowable Mark-Up shall be applied to this net cost.
B. Contractor Maintenance of Daily Records for Changes
1. In the event that Contractor is directed to perform any Extra Work, or should Contractor encounter conditions which the Contractor believes would obligate the City to adjust the Contract Sum and/or the Contract Time, Contractor shall maintain detailed records of the cost of such changes on a daily basis summarized in a daily report supplemented by back-up records. Such records shall include without limitation:
a. Labor. At the close of each day on which such Extra Work is performed, Contractor shall submit an Extra Work labor report, on forms provided by Director, to Director that sets forth a list of the actual hours spent in performing the Extra Work, that clearly differentiates between the labor expended on the Extra Work and other Work, and the Allowable Costs for such Extra Work performed that day showing the names of workers, their classifications, hours worked and hourly rates. b. Materials, Equipment. A list of Allowable Costs of materials and equipment consumed in the performance of the Extra Work on the day on which such Extra Work is performed, together with copies of applicable delivery tickets and unit prices for all materials and for all equipment used the type of equipment, identification number, hours of operation (including loading and transportation) and hourly/daily rates involved for that day.
c. Other Services or Expenditures. A list of other services and expenditures constituting Allowable Costs incurred in performance of the Extra Work on the day on which such Extra Work is performed, along with documentation verifying the amounts thereof in such detail as Director may require.
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2. In the event that more than one change to the Work is performed by the Contractor in a calendar day, Contractor shall maintain separate records of labor, construction equipment, materials, and equipment for each such change. In the event that any Subcontractor of any tier shall provide or perform any portion of any change to the Work, Contractor shall require that each such Subcontractor maintain records in accordance with this Section.
3. Each daily record maintained hereunder shall be signed by Contractor; such signature shall be deemed Contractor’s representation and warranty that all information contained therein is true, accurate, complete, and relates only to the change referenced therein. All records maintained by Subcontractors of any tier, relating to the costs of a change in the Work shall be signed by such Subcontractor’s authorized project manager or superintendent.
All such records shall be forwarded to the Director on the day the Work is performed (same day) for independent verification. The Director shall attempt to review and reconcile costs for change s
on a daily basis. Records not available on the day on which the Extra Work is performed, such as, but not limited to, material invoices, shall be submitted as soon as they are available but not later than five (5) calendar days after the earlier of the day of delivery or incorporation of the particular item of Extra Work at the Site.
4. The Director may additionally require authentication of all time and material tickets and invoices by persons designated by the Director for such purpose. In the event that Contractor shall fail or refuse, for any reason, to maintain or make available for inspection, review, and/or reproduction such records, adjustments to the Contract Sum or Contract Time, if any, on account of any change to the Work may be deemed waived for that day. Contractor’s obligation to maintain back-up records hereunder is in addition to, and not in lieu of, any other Contractor obligation under the Contract Documents with respect to changes to the Work.
5. Waiver by Contractor. Failure to submit such records as are required by this Paragraph daily shall waive any rights for recovery of Allowable Costs incurred for Extra Work performed that day. The failure of the Contractor to secure any required authentication shall, if the City elects in its sole discretion to treat it as such, constitute a waiver by the Contractor of any right to adjustment of the Contract Sum for the Allowable Cost of all or that portion of the Extra Work covered by such non-authenticated ticket or invoice.
C. Allowable Costs
The term “Allowable Costs” shall mean in the case of Extra Work actual costs incurred by Contractor and/or any Subcontractor, regardless of tier, and necessarily involved in direct performance of th e
Extra Work, or in the case of deleted work the actual costs that would have been incurred in performing deleted work by Contractor and/or any Subcontractor, regardless of tier, and shall be limited to the following costs:
1. Labor. Straight-time wages or salaries, and overtime wages and salaries specifically authorized by City in writing, for employees employed at the site, or at fabrication sites off the site, in the direct performance of the Extra Work or that would have been incurred in the direct performance of the deleted work, based on the actual cost for wages prevailing locally for each craft or type of workers at the time the Extra Work is done or the deleted work is ordered eliminated. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental. The use of labor classification which would increase the Allowable Cost for Extra Work will not be permitted unless Contractor establishes the necessity for such additional costs.
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2. Benefits. Payroll taxes, insurance, health and welfare, pension, vacation, apprenticeship funds and benefits required by lawful collective bargaining agreements for employees on straight-time wages or salaries, and on overtime wages and salaries specifically authorized by City in writing, for employees employed at the site, or at fabrication sites off the site, in the direct performance of the Extra Work or that would have been incurred in the direct performance of the deleted work .
3. Materials, Consumables. Costs of materials and consumable items which are furnished and incorporated into the Work, as approved by City, or that would have been incorporated into the Work in the case of deleted work shall be at the lowest price available to Contractor but in no event shall such costs exceed competitive wholesale prices obtainable from othe r
Subcontractors, suppliers, manufacturers and distributors in the general vicinity of the site. If City determines, in its discretion, that the cost of materials is excessive, or if Contractor fails to furnish satisfactory evidence of the cost from the actual supplier thereof, then in either case the cost of the materials shall be deemed to be the lowest wholesale price at which similar materials are available in the quantities required at the time they were needed. The City reserves the righ t
to furnish such materials as it deems advisable, and Contractor shall have no claim for costs or profits on materials so furnished. Material invoices must be included with the extra work report to obtain payment.
4. Taxes. Sales taxes on the costs of materials and consumable items described in Paragraph
5.04-C.3 above.
5. Tool, Equipment Rental. Rental charges for necessary machinery and equipment, whether owned or hired, as authorized in writing by City, exclusive of hand tools, used directly in the performance of the Extra Work or that would have been used in the direct performance of the deleted work. Regardless of ownership, such rental charges shall not exceed the hourly rate derived from the most recently published “Rental Rate Blue Book for Construction Equipment” or the “Rental Rate Blue Book for Older Construction Equipment,” as published by K-111, San Jose, California, which is in effect at the time of commencement of the changed work. The Contractor shall attach a copy of the rate schedule to the daily reports required by Paragraph
6.06-B, above. The charges for any machinery and equipment shall cease when the use thereof is no longer necessary for the Extra Work or deleted work. No charge shall be allowed for use of equipment or tools which have a replacement value of $500 or less. The allowable rental rates shall include the cost of fuel, power oil, lubrication, supplies, small tools, necessary attachments, loading, transportation, repairs and maintenance of any kind, depreciation, storage, insurance, and all incidentals. Notwithstanding the provisions of Paragraph 6.06-E below, no mark-up shall be allowed for overhead, profit or bond premiums for use of equipment if the equipment is supplied by an equipment rental firm. If equipment is used intermittently and, when not in use, could be returned to its rental source at less expense to City than holding it at the Site, it shall be returned, unless Contractor elects to keep it at the Site at no expense to City.
Costs incurred while equipment is inoperative due to breakdowns, regular maintenance, or for non-Working Days shall not be allowed. The rental time shall include the time required to move the equipment to the Work from the nearest available source for rental of such equipment an d
to return it to the source. If such equipment is not moved by its own power, then loading and transportation will be allowed. Neither moving time nor loading and transportation costs will be paid if the equipment is for use on the Project unrelated to the Extra Work. All equipment shall be acceptable to City, in good working condition, and suitable for the purpose for which it is to be used.
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6. Royalties. Additional or saved costs of royalties due to the performance of the Extra Work or deleted work.
7. Insurance, Bonds. Additional or saved costs of insurance and bonds, provided, however, that for Extra Work such costs shall not exceed one percent (1%) of Items 1 through 6 above.
D. Costs Not Allowed
Allowable Costs shall not include any of the following:
1. Wages, salaries, fringe benefits and payroll taxes of Contractor’s and all Subcontractor’s noncraft labor (above a Foreman level);
2. Overhead (including home office overhead), administrative or general expenses of any kind including engineering, estimating, scheduling, drafting, detailing, etc., incurred in connection with Extra Work;
3. Vehicles not dedicated solely for the performance of the extra of deleted work;
4. Small tools (replacement value not exceeding $500);
5. Office expenses, including secretarial and administrative staff, materials and supplies;
6. On-site and off-site trailer and storage rental and expenses;
7. Site fencing;
8. Utilities, including gas, electric, sewer, water, telephone, telefax, copier equipment;
9. Computer and data processing personnel, equipment and software;
10. Federal, state of local business income and franchise taxes;
11. Losses of efficiency or productivity; and
12. Costs and expenses of any kind or item not specifically and expressly included in Paragraph
6.06-C.
E. Allowable Mark-Up
1. Extra Work by contractor (Markup): The following percentages shall be added to the Contractor’s costs and shall constitute the markup for all overhead and profits:
Labor 33%
Materials 15%
Equipmen
t Rental 15%
Other Items and Expenditures 15%
2. Extra Work by Subcontractor (Markup): When all or any part of the extra work is performed by a Subcontractor, the markup provided for the Contractor in 6.06.E.1 shall apply to the Subcontractor’s actual costs. A markup of 5% on the subcontracted portion of each extra work may be added for the Contractor
.
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F. Net Allowable Costs
If anyone scope change involves both Extra Work and deleted work in the same portion of the Work and the additive allowable costs exceed the deductive allowable costs, the Allowable Markups on the Extra Work will be only the difference between the two amounts.
6.07 CITY ORIGINATED REQUEST FOR ITEMIZED CHANGE ORDER PROPOSAL REQUEST City may issue a Construction Change Directive or other written request to Contractor describing a proposed change to the Work and requesting the Contractor submit an itemized change order proposal in a format acceptable to City within ten (10) calendar days after City issues the request. The Contractor's change order proposal shall include an analysis of impacts to cost and time, if any, to perform additional work, change Work or delete Work, as applicable, including the effects and impacts, if any, on unchanged Work, estimates of costs (broken down by the cost categories listed in this Paragraph), and Contractor's proposed methods to minimize costs, delay, and disruption to the performance of the Work. If Contractor fails to submit a written change order proposal within such period of time, it shall be presumed that the change described in the City's original proposal request will not result in an increase to the Contract Sum or Contract Time and the change shall be performed by Contractor without additional compensation to Contractor. City's request for itemized change order proposal request does not authorize the Contractor to commence performance of the change. If City desires that the proposed change be performed, the Work shall be authorized according to the Change Order or Construction Change Directive procedures set forth herein.
6.08 CONTRACTOR ORIGINATED CHANGE ORDER REQUEST (COR)
If the Contractor believes that instructions issued by the City after the effective date of the Contract will result in changes to the Contract Sum or Contract Time or if the Contractor otherwise becomes aware of the need for or desirability of a change in the Work, Contractor may submit a written Change Order Request ("COR") to the City in writing, in a format acceptable to City and in accordance with the notice provisions and other requirements of Article 7 below for Claims. The COR must specify the reasons for the proposed change, cost impacts and relevant circumstances and impacts on the Construction Schedule. The document shall be complete in its description of the Work, its material and labor quantities and detail, and must support and justify the costs and credits claimed by the Contractor. A Critical Path Method schedule Fragnet is required to support and justify any additional time of performance requested by the Contractor. The City will not review any COR which is incomplete. The Contractor may request additional compensation and/or time through a COR but not for instances that occurred more than ten (10) calendar days prior to the notice date. Contractor's failure to initiate a COR within this ten-day period or to provide detailed back-up documentation to substantiate the COR within thirty (30) calendar days of the initial written notice shall be deemed a waiver of the right to adjustment of the Contract Sum or the Contract Time for the alleged change. Any COR that is approved by the City shall be incorporated in a Change Order or Construction Change Directive. If the COR is denied but the Contractor believes that it does have merit, the Contractor shall proceed with the disputed Work and may submit a Claim in accordance with the procedures set forth herein.
6.09 ISSUANCE OF WORK DIRECTIVE (UNILATERAL).
In the event of a dispute as to whether or not Extra Work is required, City shall have the right to unilaterally issue a Work Directive; Contractor shall continue performance of disputed Work pending resolution and shall maintain and submit to City all accounting and cost data necessary to substantiate Contractor’s cost of such disputed Work.
[END OF ARTICLE]
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ARTICLE 7 - CONTRACT PAYMENTS AND CLAIMS
7.01 GENERAL
A. Payment will be made at the price for each item listed on the bidding form or as Extra Work as provided in the General Conditions.
B. Initial progress payment will not be made prior to approval by the Director of the Schedule of Values, the Construction Progress Schedule, and the Schedule of Submittals.
C. No subsequent progress payment will be made prior to receipt by the Director of the monthly revision of the Construction Progress Schedule.
7.02 SCHEDULE OF VALUES FOR PAYMENTS
A. Submission
Upon City’s request, the three (3) lowest bidders shall complete and submit a Preliminary Schedule of Values, within seven (7) calendar days.
In addition, Contractor shall complete and furnish within seven (7) calendar days after receiving the Notice of Award of the Construction Contract a Final Schedule of Values giving a complete breakdown of the Contract Sum for each component of the Work.
B. Content
The Schedule of Values shall be in sufficient detail as the Director may, in its discretion, deem necessary to evaluate progress at any point in the performance of the Work. Unless otherwise specified in the Contract Documents, the Schedule of Values shall include, without limitation, a breakdown of the general categories of Subcontractor work, direct overhead, profit and contingency, and a further breakdown of the general categories of Subcontractor work into separate trade line items of costs for Subcontractor services, labor and material, which is based on actual Subcontractor contract, subcontract, purchase order or vendor prices. If requested by Director, Contractor shall revise the Schedule of Values to allocate sums for Contractor overhead, profit and/or contingency among the individual line items for trade portions of the Work. No amounts shall be reflected in the Schedule of Values or Application for Payment for Extra Work or Deleted Work for which a Change Order has not been executed by Contractor and City or for which a Construction Change Directive has not been issued by City. Amounts that have been mutually agreed to by Change Order or unilaterally determined by City pursuant to a Construction Change Directive shall be segregated from the cost of the base Contract Work and separately listed by line item in the Schedule of Values. The Schedule of Values must be prepared in sufficient detail and supported by sufficient data to substantiate its accuracy as the Director may require.
C. Applications for Payment
The Schedule of Values, when approved by the Director, shall be used as a basis for Contractor's Applications for Payment and may be considered as fixing a basis for adjustments to the Contract Sum.
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D. Revisions
If, at any time, it is determined that the Schedule of Values does not allocate the Contract Sum in a manner that reasonably and fairly reflects the actual costs anticipated to be progressively incurred by Contractor, it shall be revised and resubmitted for the Director’s approval.
7.03 APPLICATIONS FOR PAYMENT
A. Marked Schedule of Values
Five (5) Days prior to the date set forth in Paragraph 7.03-B below for the monthly progress payment meeting, Contractor shall submit to Director a copy of the proposed Schedule of Values, marked to show the percentage of completion certified by Contractor for each line item in the Schedule of Values, including any stored materials approved for payment by City pursuant to Paragraph 7.03-D, below and any withholdings from Contractor proposed by Director.
B. Monthly Review
For the purpose of expediting the progress payment procedure, Contractor shall meet with the Director on or before the twentieth (20th) day of each month to review the Contractor's marked Schedule of Values prepared in accordance with Paragraph 7.03-A, above. The Director shall revise as appropriate and sign the marked Schedule of Values to verify such review. If any item in th e
marked Schedule of Values submitted for payment is disputed during this review, Contractor agrees to use its best efforts to resolve the disputed items with the Director before submitting its Application for Payment. If the Director and Contractor cannot agree, then the percentage completion shall be established at such percentage as the Director, in good faith, determines is appropriate to the actual progress of the Work. No inaccuracy or error in the Director’s good faith estimate shall operate to release Contractor or Surety from any responsibility or liability arising from or related to performance of the Work. The Director shall have the right subsequently to correct any error and dispute any item submitted in Contractor's Application for Payment, regardless of whether an item was identified as disputed in the review process provided for herein.
C. Certification
Each Application for Payment shall be signed and certified by Contractor under penalty of perjury to City that:
1. The data comprising the Application for Payment is accurate and the Work has progressed to the point indicated;
2. To the best of Contractor's knowledge, information and belief, the Work is in accordance with the Contract Documents;
3. Contractor is entitled to payment in the amount certified; and
4. All sums previously applied for by Contractor on account of Work performed by Subcontractors and that have been paid by City have been paid to the Subcontractors performing such Work, without any retention, withholding or backcharge by Contractor.
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D. Stored Materials
Payments may be made by City, at its discretion, on account of materials or equipment not incorporated into the Work but delivered on the ground at the Site and suitably stored by Contractor or stored off-Site under the control of City. Such payments shall only be considered upon submission by Contractor of satisfactory evidence that it has acquired title to same, that the material or equipment will be utilized in the Work and that the material is satisfactorily stored, protected and insured, and that such other procedures are in place satisfactory to City to protect City's interests. To be considered for payment, materials or equipment stored off-Site shall, in addition to the above requirements and unless otherwise specifically approved by City in writing, be stored in a bonded warehouse, fully insured, and available to City for inspection. City shall have sole discretion to determine the amount of material and equipment that may be stored on the Site at any given time.
7.04 PROGRESS PAYMENTS
A. Conditions to Progress Payments
Contractor shall submit its Application for Payment to the Director, using such forms as required by City, once a month on or before the first (1st) Day of the month following the month in which the Work that is the subject of such Application for Payment was performed. Without limitation to any other provisions of the Contract Documents, the following shall be conditions precedent to a proper submission and to the Director approval of each Application for Payment:
1. Submission of a Schedule of Values that reflects the percentages of completion either agreed to or determined by Director in accordance with Paragraph 7.03-B, above;
2. Submission of the Contractor's certification required by Paragraph 7.03-C, above;
3. Submission of conditional releases of stop notice, if any, and bond rights upon progress payment, complying with California Civil Code Section 8132, for all Work performed during the time period covered by the current Application for Payment, signed by Contractor, its Subcontractors of every tier, and all material suppliers to each, and (2) forms of unconditional release of stop notice and bond rights upon progress payment, complying with California Civil Code Section 8134 for all Work performed during the time period covered by the previous Application for Payment, signed by Contractor, its Subcontractors of every tier and all material suppliers to each;
4. Compliance by Contractor with its obligation for maintenance of As-Builts as required by the Contract Documents;
5. Compliance by Contractor with its obligation for submission of monthly and daily reports as required by the Contract Documents;
6. Compliance by Contractor with its obligations for submission of scheduling information and updating of the Construction Schedule as required by Article 4, above and other provisions of the Contract Documents pertaining to preparation or updating of schedule information;
7. Submission of certified payroll records as required by the Contract Documents;
8. Submission of certifications by Contractor and each Subcontractor as required by applicable collective bargaining agreements certifying that all employee benefit contributions due and Elecnor Belco Electric Inc.
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owed pursuant to any applicable collective bargaining agreement have been paid in full; and
9. Compliance by Contractor with all of its other obligations for submission of documentation or performance of conditions which, by the terms of the Contract Documents, constitute conditions to Contractor's right to receive payment for Work performed.
B. Payments by City
Pursuant to California Public Contract Code Section 20104.50, City shall make progress payment of undisputed sums due within thirty (30) Days after receipt by Director of an undisputed and properly submitted Application for Payment, calculated on the basis of ninety-five percent (95%) of value determined pursuant to Paragraph 7.03-B above of the following:
1. The portion of the Work permanently installed and in place;
2. Plus, the value of materials delivered on the ground or in storage as approved by City pursuant to Paragraph 7.03-D, above,
3. Less, the aggregate of previous payments, and
4. Less, any other withholdings authorized by the Contract Documents.
C. Rejection by City
Any Application for Payment determined not to be undisputed, proper and suitable for payment shall be returned to Contractor as soon as practicable, but not later than seven (7) Days, after receipt by City accompanied by an written explanation of the reasons why the payment request was rejected.
Failure by City or Director to either timely reject an Application for Payment or specify any grounds for rejection shall not constitute a waiver of any rights by City. Applications for Payment that are rejected shall be corrected and resubmitted within seven (7) Days after receipt by Contractor.
D. Interest
If City fails to make a progress payment to Contractor as required by Paragraph 7.04-B, above, City shall pay interest to Contractor equivalent to the legal rate set forth in subdivision (a) of California Code of Civil Procedure Section 685.010. The number of Days available to City to make payment pursuant to Paragraph 7.04-B, above without incurring interest pursuant to this Paragraph shall be reduced by the number of Days by which City exceeds the seven (7) Day return requiremen t
applicable to City as set forth in Paragraph 7.04-C, above.
7.05 FINAL PAYMENT
A. Retention
ln addition to withholdings permitted by Paragraph 7.09 below, a sum equal to five percent (5%) of all sums otherwise due to Contractor as progress payments shall be withheld by city pursuant to Paragraph 7.04-B from each progress payment (“Retention”) and retained until such time as it is due as described herein. A higher Retention amount may be approved by the City Council where project is deemed “substantially complex” by City Council. Conditions to Final Paymen t
Contractor shall submit its Application for Final Payment, using such forms as required by Director, prior to requesting a final inspection of the Work in accordance with Paragraph 3.06 above. Such Elecnor Belco Electric Inc.
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Application for Final Payment shall be accompanied by all the following:
1. An affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Project for which City or City's property or funds might be liable have been paid or otherwise satisfied;
2. Contractor’s certification as required by Paragraph 7.03-C, above;
3. Consent of surety, if any, to Final Payment;
4. A certificate evidencing that the insurance required by the Contract Documents is in force;
5. Conditional Waiver and Release Upon Final Payment in the form required by California Civil Code Section 8136 executed by Contractor, all Subcontractors of every tier and by all material suppliers of each, covering the final payment period;
6. Unconditional Waiver and Release Upon Progress Payment in the form required by California Civil Code Section 8136 executed by Contractor, all Subcontractors of every tier and by all material suppliers of each, covering the previous payment period;
7. All Record Documents (including, without limitation, complete and accurate As-Built drawings which shall be kept up to date during the performance of the Work);
8. Documentation that Contractor has inspected, tested, and adjusted performance if every system or facility of the Work to ensure that overall performance is in compliance with the terms of the Contract Documents;
9. Four (4) copies of all warranties from vendors and Subcontractors, operation and maintenance manuals, instructions and related agreements, and equipment certifications and similar documents;
10. Certifications by Contractor and each Subcontractor as required by applicable collective bargaining agreements that all employee benefit contributions due and owing pursuant to any applicable collective bargaining agreement have been paid in full;
11. Releases of rights and claims relating to patents and trademarks, as required by the Contract Documents; and
12. Any other documents or information required by the Contract Documents as a condition of Final Payment or Final Completion.
B. Final Payment
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of Completion to Contractor, the Final Payment, including Retention, shall be released to Contractor, subject to the City’s right to withhold 150% of any disputed amounts.
C. Disputed Amounts
Pursuant to California Public Contract Code 7107, City may deduct and withhold from the Final Payment due under Paragraph 7.05-C, above, an amount up to 150% of any disputed amounts, including, without limitation, amounts to protect City against any loss caused or threatened as a result of Contractor's failing to fully perform all of those obligations that are required to be fulfilled by Contractor as a condition to Final Completion and Final Payment. Alternatively, City may elect, in its sole discretion, to accept the Work without correction or completion and adjust the Contract Sum pursuant to the Contract Documents.
D. Acceptance of Final Payment
Acceptance of Final Payment by Contractor shall constitute a waiver of all rights by Contractor against City for recovery of any loss, excepting only those Claims that have been submitted by Contractor in the manner required by the Contract Documents prior to or at the time of the Final Payment.
7.06 MISCELLANEOUS
A. Joint Payment
City shall have the right, if deemed necessary in its sole discretion, to issue joint checks made payable to Contractor and any Subcontractor(s) of any Tier. The joint check payees shall be solely responsible for the allocation and disbursement of funds included as part of any such joint payment.
Endorsement on such check by a payee shall be conclusively presumed to constitute receipt of payment by such payee. In no event shall any joint check payment be construed to create any contract between City and a Subcontractor of any Tier, any obligation from City to such Subcontractor or any third party rights against City or Director.
B. Withholding/Duty to Proceed
The payment, withholding or retention of all or any portion of any payment claimed to be due and owing to Contractor shall not operate in any way to relieve Contractor from its obligations under the Contract Documents. Contractor shall continue diligently to prosecute the Work without reference to the payment, withholding or retention of any payment. The partial payment, withholding or retention by City in good faith of any disputed portion of a payment, whether ultimately determined to be correctly or incorrectly asserted, shall not constitute a breach by City of the Construction Contract and shall not be grounds for an adjustment of the Contract Sum or Contract Time.
C. No Acceptance
No payment by City or partial or entire use of the Work by City shall be construed as approval or acceptance of the Work, or any portion thereof.
D. Contractor Payment Warranty
Submission of an Application for Payment shall constitute a representation and warranty by Contractor that:
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1. Title to Work covered by an Application for Payment will pass to City either by incorporation into the construction or upon receipt of payment by Contractor, whichever occurs first; and
2. Work covered by previous Applications for Payment are free and clear of liens, stop notices, claims, security interests or encumbrances imposed by the Contractor or any other person.
E. Corrections
No inaccuracy or error in any Application for Payment provided by Contractor shall operate to release Contractor from the error, or from losses arising from the Work, or from any obligation imposed by the Contract Documents. City retains the right to subsequently correct any error made in any previously approved Application for Payment, or progress payment issued, by adjustments to subsequent payments.
7.07 PAYMENTS BY CONTRACTOR
Contractor shall not include in its Applications for Payment sums on account of any Subcontractor's portion of the Work that it does not intend to pay to such Subcontractor. Upon receipt of payment from City, Contractor shall pay the Subcontractor performing Work on the Project, out of the amount paid to Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled in accordance with the terms of its contract with Contractor and applicable laws, including, without limitation, California Public Contract Code Section 7107. Contractor shall remain responsible notwithstanding a withholding by City pursuant to the terms of these Contract Documents, to promptly satisfy from its own funds sums due to all Subcontractors who have performed Work that is included in Contractor's Application for Payment. Contractor shall, by appropriate agreement, require each Subcontractor to make payments to its subcontractors and material suppliers in similar manner. City shall have no obligation to pay or be responsible in any way for payment to a Subcontractor of any tier or material supplier.
7.08 PAYMENTS WITHHELD
A. Withholding by City
In addition to any other amounts which City may have the right to retain under the Contract Documents, City may withhold a sufficient amount of any payment otherwise due to Contractor as City, in its sole discretion, may deem necessary to cover actual or threatened loss due to any of the following:
1. Third Party Claims. Third-party claims or stop notices filed or reasonable evidence indicating probable filing of such claims or stop notices. City shall promptly inform Contractor of any third party claims related to this Contract;
2. Defective Work. Defective Work not remedied;
3. Nonpayment. Failure of Contractor to make proper payments to its Subcontractors for services, labor, materials or equipment;
4. Inability to Complete. Reasonable doubt that the Work can be completed for the then unpaid balance of the Contract Sum or within the Contract Time; Elecnor Belco Electric Inc.
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5. Violation of Applicable Laws. Failure of Contractor or its Subcontractors to comply with applicable laws or lawful orders of governmental authorities;
6. Penalty. Any claim or penalty asserted against City by virtue of Contractor’s failure to comply with applicable laws or lawful orders of governmental authorities (including, without limitation labor laws);
7. Failure to Meet Contract Time. Any damages which may accrue as a result of Contractor failing to meet the Construction Schedule or failing to perform within the Contract Time;
8. Setoff. Any reason specified elsewhere in the Contract Documents as grounds for a withholding offset or set off or that would legally entitle City to a set-off or recoupment;
9. Consultant Services. Additional professional, consultant or inspection services required due to Contractor’s failure to comply with the Contract Documents;
10. Liquidated Damages. Liquidated damages assessed against Contractor;
11. Materials. Materials ordered by City pursuant to the Contract Documents;
12. Damages. Loss caused by Contractor or Subcontractor to City, Separate Contractors or any other person or entity under contract to City;
13. Clean Up. Clean up performed by City and chargeable to Contractor pursuant to the Contract Documents;
14. Employee Benefits. Failure of Contractor to pay contributions due and owing to employee benefits funds pursuant to any applicable collective bargaining agreement or trust agreement;
15. Required Documents. Failure of Contractor to submit on a timely basis, proper and sufficient documentation required by the Contract Documents, including, without limitation, Construction Schedule updates, ‘look ahead’ schedules, Submittals, Schedules of Values, information on Subcontractors, Change Orders, certifications and other required reports or documentation; and
16. Other Breach. A breach of any obligation or provision of the Contract Documents.
B. Release of Withholding
If and when City determines, in its sole discretion, that the above grounds for withholding have been removed and that all losses incurred or threatened have been paid, credited or otherwise satisfied, then payment shall be made for amounts withheld because of them.
C. Application of Withholding
City may apply sums withheld pursuant to Paragraph 7.08-A above, in payment of any loss or threatened loss as City determines, in its sole discretion, to be appropriate. Such payments may be made without a prior judicial determination of City’s actual rights with respect to such loss. Contractor agrees and hereby designates City as its agent for such purposes, and agrees that such payments shall be considered as payments made under Construction Contract by City to Contractor. City shall not be liable to Contractor for such payments made in good faith. City shall submit to Contractor an accounting of such funds disbursed on behalf of Contractor. As an alternative to such payment, City Elecnor Belco Electric Inc.
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may, in its sole discretion, elect to exercise its right to adjust the Contract Sum as provided in the Contract Documents.
D. Continuous Performance
Provided City pays the undisputed portion, if any, of funds withheld in good faith, Contractor shall maintain continuous and uninterrupted performance of the Work during the pendency of any disputes or disagreements with City.
7.09 SUBSTITUTION OF SECURITIES
A. Public Contract Code
Pursuant to the requirements of California Public Contract Code Section 22300, upon Contractor’s request, City will make payment to Contractor of any funds withheld from payments to ensure performance under the Contract Documents if Contractor deposits with City, or in escrow with a California or federally chartered bank in California acceptable to City (“Escrow Agent”), securities eligible for the investment of State Funds under Government Code Section 16430, or bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by the Contractor and the City, upon the following conditions:
1. Contractor shall be the beneficial owner or any securities substituted for monies withheld for the purpose of receiving any interest thereon.
2. All expenses relating to the substitution of securities under Public Contract Code Section 22300 and under this Paragraph 7.04, including, but not limited to City’s overhead and administrative expenses, and expenses of Escrow Agent shall be the responsibility of Contractor.
3. Securities or certificates of deposit substituted for monies withheld shall be of a value of at least equivalent to the amounts of retention to be paid to Contractor pursuant to the Contract Documents.
4. If Contractor chooses to deposit securities in lieu of monies withheld with an Escrow Agent, Contractor, City and Escrow Agent shall, as a prerequisite to such deposit, enter into an escrow agreement, using the City’s form, “Escrow Agreement for Deposit of Securities in Lieu of Retention.”
5. Contactor shall obtain the written consent of Surety to such agreement.
6. Securities, if any, shall be returned to Contractor only upon satisfactory Final Completion of the Work.
B. Substitute Security
To minimize the expense caused by such substitution of securities, Contractor shall, prior to or at the time Contractor requests to substitute security, deposit sufficient security to cover the entire amount to be withheld. Should the current market value of such substituted security fall below the amount for which it was substituted, or any other amounts which the City withholds pursuant to the Contract Documents, Contractor shall immediately and at Contractor’s expense and at no cost to City deposit additional security qualifying under Public Contract Code Section 22300 until the current market value of the total security deposited is no less than the amount subject to withholding under the Contract Elecnor Belco Electric Inc.
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Documents. Securities shall be valued as often as conditions of the securities market warrant, but in no case less frequently than once per month.
C. Deposit of Retentions
Alternatively, subject to the conditions set forth in Paragraph 7.04-A above, upon request of Contractor, City shall make payment of retentions directly to Escrow Agent at the expense of Contractor, provided that Contractor, City and Escrow Agent shall, as a prerequisite such payment ,
enter into an escrow agreement in the same form as prescribed in Part 4 of Paragraph A, above. At the expense of Contractor and at no cost to City, Contractor may direct the investment of the payments into securities and interest bearing accounts, and Contractor shall receive the interest earned on the investments. Escrow Agent shall hold such direct payments by City under the same terms provided herein for securities deposited by Contractor. Upon satisfactory Final Completion of the Work, Contractor shall receive from Escrow Agent all securities, interest and payments received by Escrow Agent from City, less escrow fees and charges of the Escrow Account, according to the terms of Public Contract Code Section 22300 and the Contract Documents.
D. Time for Election of Substitution of Securities
Notwithstanding the provision of 7.04 A, B, and C above and California Public Contract Code Section 22300, the failure of Contractor to request the Substitution of eligible securities for monies to be withheld by City within ten (10) days of the award of Contract to Contractor shall be deemed to be a waiver of all such rights.
7.10 CLAIMS
A. Arising of Claim.
1. Scope Change. When Contractor has a claim for an increase in the Contract Sum or Contract Time due to a scope change which has not yet become final, a “claim” will be deemed to arise once the Director has issued a decision denying, in whole or in part, the Contractor’s Change Order Request.
2. Other Claims. In the case of a Claim by Contractor that does not involve an adjustment to the Contract Sum or Contract Time due to a scope change and which has not become final, the Claim may be asserted if, and only if, Contractor gives written notice to City of intent to file the Claim within three (3) days of the date of discovery relative to such circumstances (even if Contractor has not yet been damaged or delayed). Such written notice of intent to file a Claim shall be valid if, and only if, it identifies the event or condition giving rise to the Claim, states its probable effect, if any with respect to Contractor's entitlement to an adjustment of the Contract Sum or Contract Time and complies with the requirements of Paragraph 7.11-B, below. For purposes of this Paragraph 7.11, a Claim for which such written notice is required and has been given by Contractor shall be deemed to arise on the date that such written notice is received by City.
B. Content of Claim
A Claim by Contractor must include all of the following:
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2. A detailed description of the act, error, omission, unforeseen condition, event or other circumstance giving rise to the Claim.
3. If the Claim involves an adjustment to the Contract Sum or Contract Time due to a change in scope, a statement demonstrating that all requisite notices were provided, including, without limitation, timely written notice and a Change Order Request as required by Article 6 of these General Conditions and timely notice of delay and request for extension of time in accordance with Article 3. If the Claim does not involve an adjustment to the Contract Sum or Contract Time due to a change in scope, a statement demonstrating that a notice of intent to file the Claim was timely submitted as required by Paragraph 7.10-A.2, above;
4. A detailed justification for any remedy or relief sought by the Claim including without limitation, a detailed cost breakdown in the form required for submittal of Change Order Requests and actual job cost records demonstrating that the costs have been incurred;
5. If the Claim involves a request for adjustment of the Contract Time, written documentation demonstrating that Contractor has complied with the requirements of the Contract Documents and written substantiation (including, without limitation, a Time Impact Analysis) demonstrating that Contractor is entitled to an extension of time under the Contract Documents; and
6. A written certification signed by a managing officer of Contractor's organization, who has the authority to sign contracts and purchase orders on behalf of Contractor and who has personally investigated and confirmed the truth and accuracy of the matters set forth in such certification, in the 'following form:
"I hereby certify under penalty of perjury that I am a managing officer of (Contractor's name) and that I have reviewed the Claim presented herewith on Contractor's behalf and/or on behalf of (Subcontractor's name) and that, to the best of my knowledge after conducting a diligent inquiry into the facts of the Claim, the following statements are true and correct:
The facts alleged in or that form the basis for the Claim are, to the best of my knowledge following diligent inquiry, true and accurate; and,
(a) I do not know of any facts or circumstances, not alleged in the Claim, that by reason of their not being alleged render any fact or statement alleged in the Claim materially misleading; and,
(b) I have, with respect to any request for money or damages alleged in or that forms the basis for the Claim, reviewed the job cost records (including those maintained by Contractor and by any Subcontractor, of any tier, that is asserting all or any portion of the Claim) and confirmed with reasonable certainty that the losses or damages suffered by Contractor and/or such Subcontractor were in fact suffered in the amounts and for the reasons alleged in the Claim; and, (c) I have, with respect to any request for extension of time or claim of delay, disruption, hindrance or interference alleged in or that forms the basis for the Claim, reviewed the job schedules (including those maintained by Contractor and the Subcontractor, of any tier, that is asserting all or any portion of the Claim) and confirmed on an event-by-event basis that the delays or disruption suffered by Contractor and/or such Subcontractor were in fact experienced for the durations, in the manner, and with the consequent effects on the time and/or sequence of Elecnor Belco Electric Inc.
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performance of the Work, as alleged in the Claim; and,
(d) I have not received payment from City for, nor has Contractor previously released City from, any portion of the Claim.”
Signature: Date:
Name:
Title:
Company
C. Noncompliance
Failure to submit any of the information, documentation or certifications required by Paragraph 7.10- B, above, shall result in the Claim being returned to Contractor without any decision.
D. Submission of Claims
1. Director. Claims shall be first submitted to the City for decision by the Director.
2. Continuous Work. Notwithstanding the making of any Claim or the existence of any dispute regarding any Claim, unless otherwise directed by City, Contractor shall not delay, slow or stop performance of the Work, but shall diligently proceed with performance in accordance with the Contract Documents and City will continue, to make undisputed payments as by the Contract Documents.
3. Time for Filing. All Claims and supporting documentation and certifications must be filed within thirty (30) days after the Claim arises. No Claims shall be filed after Final Payment.
4. Conditions Precedent. No Claim may be asserted unless Contractor has strictly complied with the requirements of this Paragraph 7.10-D, which shall be considered conditions precedent to Contractor’s right to assert the Claim and to initiate the Dispute Resolution Process with respect to such Claim.
E. Response to Claims, Meet and Confer
1. Claims less than $50,000. Claims less than $50,000 shall be responded to by City in writing within forty-five (45) days of receipt of the Claim, unless City requests additional information or documentation of the Claim within thirty (30) days of receipt of the Claim, in which case City shall respond to the Claim within fifteen (15) days after receipt of the further information or documentation or within a period of time no greater than that taken by Contractor in producing the additional information or documentation, whichever is greater.
2. Claims $50,000 or more. Claims $50,000 or more shall be responded to by City in writing within (60) days of receipt of the Claim, unless City requests additional information or documentation of the Claim within thirty (30) days of receipt of the Claim, in which case City shall respond to the Claim within thirty (30) days after receipt of the further information or documentation or within a period of time no greater than that taken by Contractor in producing the additional information or documentation, whichever is greater.
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3. Meet and Confer. If Contractor disputes City's response, or if City fails to respond within the prescribed time set forth in Paragraph 7.10-E.1 and 7.10-E.2, above, Contractor may so notify City, in writing, within fifteen (15) days of City's response, or within fifteen (15) days of City’s response due date in the event of a failure to respond, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon such demand, City shall schedule a meet and confer conference within thirty (30) days of such demand, for discussion of settlement of the dispute.
F. Finality of Decision
If Contractor disputes the Director’s decision under this Article, it shall commence the Dispute Resolution Process as set forth in Article 15 of these General Conditions by filing a Statement of Dispute within seven (7) days after receipt of the Director’s response.
G. Continuing Contract Performance/Duty to Proceed with Disputed Work Contractor shall not delay or postpone any Work pending resolution of any claims, disputes or disagreements. Pending final resolution of a claim, the Contactor shall proceed diligently with performance of the Contract and the City shall continue to make payments for undisputed Work in accordance with the Contract Documents. In the event of disputed Work, City shall have the right to unilaterally issue a Work Directive and Contractor shall continue performance pending resolution of th e
dispute and shall maintain the accounting and cost data to substantiate the cost of such disputed work. [END OF ARTICLE]
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ARTICLE 8 - MATERIALS AND EQUIPMENT
8.01 GENERAL
A. The Contractor shall furnish all materials and equipment needed to complete the Work and installations required under the terms of this Contract, except those materials and equipment specified to be furnished by the City.
B. The Contractor shall submit satisfactory evidence that the materials and equipment to be furnished and used in the work are in compliance with the Specifications. Materials and equipment incorporated in the Work and not specifically covered in the Specifications shall be the best of their kind. Unless otherwise specified, all materials and equipment incorporated in the Work under the Contract shall be new.
8.02 QUALITY AND WORKMANSHIP
All material and equipment furnished by the Contractor shall be new, high grade, and free from defects and imperfections, unless otherwise hereinafter specified. Workmanship shall be in accordance with the best standard practices. All materials and equipment must be of the specified quality and equal to approved samples, if samples have been required. All Work shall be done and completed in a thorough, workmanlike manner, notwithstanding any omission from the Specifications or Drawings, and it shall be the duty of the Contractor to call attention to apparent errors or omissions and request instructions before proceeding with the Work. The Director may, by appropriate instructions, correct errors and supply omissions, which instructions shall be binding upon the Contractor as though contained in the original Specifications or Drawings. All Work performed under the Specifications will be inspected by the Director as provided in Paragraph 8.04. All materials and equipment furnished and all Work done must be satisfactory to the Director. Work, material, or equipment not in accordance with the Specifications, in the opinion of the Director shall be made to conform thereto. Unsatisfactory materials and equipment will be rejected, and if so ordered by the Director, shall, at the Contractor's expense, be immediately removed from the vicinity of the Work.
8.03 TRADE NAMES AND "OR APPROVED EQUAL" PROVISION
Whenever in the Specifications or Drawings the name or brand of a manufactured article is used it is intended to indicate a measure of quality and utility or a standard. Except in those instances where the product is designated to match others in use on a particular improvement either completed or in the course of completion, the Contractor may substitute any other brand or manufacture of equal appearance, quality, and utility on approval of the Director, provided the use of such brand or manufacture involves no additional cost to the City.
8.04 APPROVAL OF MATERIALS
A. The Contractor shall furnish without additional cost to the City such quantities of construction materials as may be required by the Director for test purposes. He/she shall place at the Director's disposal all available facilities for and cooperate with him in the sampling and testing of all materials and workmanship. The Contractor shall prepay all shipping charges on samples. No samples are to be submitted with the bids unless otherwise specified.
B. Each sample submitted shall be labeled. A letter, in duplicate, submitting each shipment of samples shall be mailed to the Director by the Contractor. Both the label on the sample and the letter of transmittal shall indicate the material represented, its place of origin, the names of the producer and the Contractor, the Specifications number and title, and a reference to the applicable Drawings and Specifications paragraphs.
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C. Materials or equipment of which samples are required shall not be used on the Work until approval has been given by the Director in writing. Approval of any sample shall be only for the characteristics of the uses named in such approval and no other. No approval of a sample shall be taken in itself to change or modify any Contract requirement.
D. Failure of any material to pass the specified tests, including life cycle maintenance data may be sufficient cause for refusal to consider under this Contract, any further sample of the same brand or make of that material.
8.05 ORDERING MATERIALS AND EQUIPMENT
One copy of each of the Contractor's purchase orders for materials and equipment forming a portion of the Work must be furnished to the Director, if requested. Each such purchase order shall contain a statement that the materials and equipment included in the order are subject to inspection by the City. Materials and equipment purchased locally will, at the City’s discretion, be inspected at the point of manufacture or supply, and materials and equipment supplied from points outside the Los Angeles area will be inspected upon arrival at the job, except when other inspection requirements are provided for specific materials in other sections of the Contract Documents.
8.06 AUTHORITY OF THE DIRECTOR
A. On all questions concerning the acceptability of materials or machinery, the classification of materials, the execution of the Work, and conflicting interests of Contractors performing related work, the decision of the Director shall be final and binding.
B. The Director will make periodic observations of materials and completed work to observe their compliance with Drawings, Specifications, and design and planning concepts, but he/she is not responsible for the superintendence of construction processes, site conditions, operations, equipment, personnel, or the maintenance of a safe place to work or any safety in, on, or about the site of work.
8.07 INSPECTION
All materials furnished and work done under this Contract will be subject to rigid inspection. The Contractor shall furnish, without extra charge, the necessary test pieces and samples, including facilities and labor for obtaining them, as requested by the Director. The Director, or his/her authorized agent or agents, at all times shall have access to all parts of the shop and the works where such materials under his/her inspection is being manufactured or the work performed. Work or material that does not conform to the Specifications, although accepted through oversight, may be rejected at any stage of the Work. Whenever the Contractor is permitted or directed to do night work or to vary the period during which work is carried on each day, he/she shall give the Director due notice, so that inspection may be provided. Such work shall be done under regulations to be furnished in writing by the Director.
8.08 INFRINGEMENT OF PATENTS
The Contractor shall hold and save the City, its officers, agents, servants, and employees harmless from and against all and every demand or demands, of any nature or kind, for or on account of the use of any patented invention, process, equipment, article, or appliance employed in the execution of the Work or included in the materials or supplies agreed to be furnished under this Contract, and should the Contractor, his/her agents, servants, or employees, or any of them, be enjoined from furnishing or using any invention, process, equipment, article, materials, supplies or appliance supplied or required to be supplied or used under this Contract, the Contractor shall promptly substitute other inventions, processes, equipment, articles, materials, supplies, or Elecnor Belco Electric Inc.
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appliances in lieu thereof, of equal efficiency, quality, finish, suitability, and market value, and satisfactory in all respects to the Director. Or in the event that the Director elects, in lieu of such substitution, to have, supplied, and to retain and use, any such invention, process, equipment, article, materials, supplies, or appliances, as may by this Contract be required to be supplied and used, in that event the Contractor shall at his/her expense pay such royalties and secure such valid licenses as may be requisite and necessary to enable the City, its officers, agents, servants, and employees, or any of them, to use such invention, process, equipment, article, materials, supplies, or appliances without being disturbed or in way interfered with by any proceeding in law or equity on account thereof. Should the Contractor neglect or refuse promptly to make the substitution hereinbefore required, or to pay such royalties and secure such licenses as may be necessary and requisite for the purpose aforesaid, then in that event the Director shall have the right to make such substitution, or the City may pay such royalties and secure such licenses and charge the cost thereof against any money due the Contractor from the City, or recover the amount thereof from him/her and his/her surety, notwithstanding final payment under this Contract may have been made.
[END OF ARTICLE]
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ARTICLE 9 – SUBMITTALS
9.01 GENERAL
A. The Contractor shall submit samples, drawings, and data for the Director's approval which demonstrate fully that the construction, and the materials and equipment to be furnished will comply with the provisions and intent of the Drawings and Specifications.
B. Specific items to be covered by the submittals shall include, as a minimum, the following:
1. For structures, submit all shop, setting, equipment, miscellaneous iron and reinforcement drawings and schedules necessary.
2. For conduits, submit a detailed layout of the conduit with details of bends and fabricated specials and furnish any other details necessary. Show location of shop and field welds.
3. For equipment which requires electrical service, submit detailed information to show power supply requirements, wiring diagrams, control and protection schematics, shop test data, operation and maintenance procedures, outline drawings, and manufacturer's recommendation of the interface/interlock among the equipment.
4. For mechanical equipment submit all data pertinent to the installation and maintenance of the equipment including shop drawings, manufacturer's recommended installation procedure, detailed installation drawings, test data and curves, maintenance manuals, and other details necessary.
5. Samples
6. Colors
7. Substitutions
8. Manuals
9. As-built drawings
10. Safety plans required by Article 10
9.02 PRODUCT HANDLING
A. Submittals shall be accompanied by a letter of transmittal and shall be in strict accordance with the provisions of this Article.
B. Submit priority of processing when appropriate.
9.03 SCHEDULE OF SUBMITTALS
A. The Contractor shall prepare and submit a schedule of submittals. The schedule of submittals shall be in the form of a submittal log. Refer to Paragraph 9.12.
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9.04 SHOP DRAWINGS
A. All shop drawings shall be produced to a scale sufficiently large to show all pertinent features of the item and its method of connection to the Work
.
B. All shop drawing prints shall be made in blue or black line on white background. Reproductions of City/Contract Drawings are not acceptable.
C. The overall dimensions of each drawing submitted to the Director shall be equal to one of the City's standard sheet sizes as listed below. The title block shall be located in the lower right hand corner of each drawing and shall be clear of all line Work, dimensions, details, and notes.
Sheet Sizes
Height X Width
11" X 8 1/2"
11" X 17"
24" X 36"
30” X 42”
9.05 COLORS
Unless the precise color and pattern are specified elsewhere, submit accurate color charts and pattern charts to the Director for his/her review and selection whenever a choice of color or pattern is available in a specified product. Label each chart naming the source, the proposed location of use on the project, and the project.
9.06 MANUFACTURERS' LITERATURE
Where contents of submitted literature from manufacturers includes data not pertinent to the submittal, clearly show which portions of the contents are being submitted for review.
9.07 SUBSTITUTIONS
A. The Contract is based on the materials, equipment, and methods described in the Contract Documents.
Any Contractor proposed substitutions are subject to the Director’s approval.
The Director will consider proposals for substitution of materials, equipment, and methods only when such proposals are accompanied by full and complete technical data, and all other information, including life cycle maintenance data, required by the Director to evaluate the proposed substitution.
B. Any requests for substitutions by the Contractor must be made within forty-five (45) calendar days from the Issuance Date on the Notice to Proceed. Otherwise, such requests will not be considered.
C. Trade names and "or approved equal" provision as set forth in Paragraph 8.03.
9.08 MANUALS
A. When manuals are required to be submitted covering items included in this Work, prepare and submit such manuals in approximately 8-1/2" X 11" format in durable plastic binders. In addition, manuals shall be submitted in electronic format. Manuals shall contain at least the following:
1. Identification on, or readable through, the front cover stating general nature of the manual.
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2. Neatly typewritten index near the front of the manual, furnishing immediate information as to location in the manual of all emergency data regarding the installation .
3. Complete instructions regarding operation and maintenance of all equipment involved.
4. Complete nomenclature of all replaceable parts, their part numbers, current cost, and name and address of nearest vendor of parts.
5. Copy of all guarantees and warranties issued.
6. Copy of drawings with all data concerning changes made during construction.
B. Where contents of manuals include manufacturers' catalog pages, clearly indicate the precise items included in this installation and delete, or otherwise clearly indicate, all manufacturers' data with which this installation is not concerned.
9.09 AS-BUILT DRAWINGS
A. When required to be submitted covering items included in this Work, the Contractor shall deliver to the City one complete set of final As-Built hard copy drawings together with a set of AutoCAD drawing files in electronic format showing completed building, “as-built” for City records before the Contract will be accepted by the City.
B. The drawings shall be duplicates and at the same size and dimensional scale as the originals. They shall be on a polyester translucent base material with a minimum sheet thickness of .003 inch (.08mm).
C. The legibility and contrast of each drawing submitted to the City shall be such that every line, number, letter, and character is clearly readable in a full size blow back from a 35 mm microfilm negative of the drawing.
9.10 SUBMITTALS QUANTITIES
A. Submit one (1) copy via email to [email protected] of all data and drawings unless specified otherwise.
B. Submit all samples, unless specified otherwise, in the quantity to be returned, plus two, which will be retained by the Director.
9.11 IDENTIFICATION OF SUBMITTALS
Completely identify each submittal and re-submittal by showing at least the following information:
A. Name and address of submitter, plus name and telephone number of the individual who may be contacted for further information.
B. Name of project as it appears in the Contract Documents and Specification No.
C. Drawing number and Specifications section number other than this section to which the submittal applies.
D. Whether this is an original submittal or re-submittal.
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E. For samples, indicate the source of the sample.
9.12 SCHEDULE OF SUBMITTALS
A. Submit initial schedule of submittals within five (5) Working Days after the Issuance Date on Notice to Proceed.
B. Submit revised schedule of submittals within five (5) Working Days after date of request from the Director.
C. The Director will review schedule of submittals and will notify Contractor that schedule is acceptable or not acceptable within five (5) Working Days after receipt.
9.13 COORDINATION OF SUBMITTALS
A. Prior to submittal for the Director’s review, use all means necessary to fully coordinate all material, including the following procedures:
1. Determine and verify all field dimensions and conditions, materials, catalog numbers, and similar data.
2. Coordinate as required with all trades and with all public agencies involved.
3. Secure all necessary approvals from public agencies and others and signify by stamp, or other means, that they have been secured.
4. Clearly indicate all deviations from the Specifications.
B. Unless otherwise specifically permitted by the Director, make all submittals in groups containing all associated items; the Director may reject partial submittals as not complying with the provisions of the Specifications.
9.14 TIMING FOR SUBMITTALS
A. Make all submittals far enough in advance of scheduled dates of installation to provide all required time for reviews, for securing necessary approvals, for possible revision and re-submittal, and for placing orders and securing delivery.
B. In scheduling, allow at least 15 Working Days for the Director’s review, plus the transit time to and from the City office.
C. Manuals shall be submitted prior to performing functional tests.
9.15 APPROVAL BY CITY
A. Each submittal, except manuals, schedule of costs for progress payments, and as-built drawings will be returned to the Contractor marked "No Exceptions Taken," “Make Corrections Noted - Do Not Resubmit,” or “Make Corrections Noted - Resubmit.” Manuals, schedule of costs, and as-built drawings will be returned to Contractor via email for re-submittal if incomplete or unacceptable.
B. Submittals marked "Approved as Noted" need not be resubmitted, but the notes shall be followed.
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C. If submittal is returned for correction, it will be marked to indicate what is unsatisfactory.
D. Resubmit one (1) original hard copy and one (1) electronic copy (via email to [email protected]) of the revised drawings or data as indicated.
E. Approval of each submittal by the Director will be general only and shall not be construed as:
1. Permitting any departures from the Specifications requirements.
2. Relieving the Contractor of the responsibility for any errors and omissions in details, dimensions, or of other nature that may exist.
3. Approving departures from additional details or instructions previously furnished by the Director.
9.16 CHANGES TO APPROVED SUBMITTALS
A. A re-submittal is required for any proposed change to an approved submittal. Changes which require re-submittal include, but are not necessarily limited to, drawing revisions, changes in materials and equipment, installation procedures and test data. All re-submittals shall include an explanation of the necessity for the change.
B. Minor corrections to an approved submittal may be accomplished by submitting a "Corrected Copy". [END OF ARTICLE]
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ARTICLE 10 – SAFETY
10.01 PROTECTION OF PERSONS AND PROPERTY
A. Contractor's Responsibility: Notwithstanding any other provision of the Contract Documents, the Contractor shall be solely and completely responsible for conditions of the job site, including safety of all persons and property, during performance of the Work. This requirement will apply continuously and will not be limited to normal working hours. Safety and sanitary provisions shall conform to all applicable Federal, State, County, and local laws, regulations, ordinances, standards, and codes. Where any of these are in conflict, the more stringent requirement shall be followed.
B. Sanitary Facilities. The Contractor shall furnish and maintain sanitary facilities by the worksites for the entire construction period.
C. Protection of the Public. The Contractor shall take such steps and precautions as his/her operations warrant to protect the public from danger, loss of life, loss of property or interruption of public services.
Unforeseen conditions may arise which will require that immediate provisions be made to protect the public from danger or loss, or damage to life and property, due directly or indirectly to prosecution of work under this contract. Whenever, in the opinion of the Director, a condition exists which the Contractor has not taken sufficient precaution of public safety, protection of utilities and/or protection of adjacent structures or property, the Director will order the Contractor to provide a remedy for the condition. If the Contractor fails to act on the situation within a reasonable time period as determined by the Director, or in the event of an emergency situation, the Director may provide suitable protection by causing such work to be done and material to be furnished as, in the opinion of the Director, may seem reasonable and necessary. The cost and expense of all repairs (including labor and materials) as are deemed necessary, shall be borne by the Contractor. All expenses incurred by the City for emergency repairs will be deducted from the final payment due to the Contractor.
10.02 PROTECTION FROM HAZARDS
A. Trench Excavation
Excavation for any trench four (4) feet or more in depth shall not begin until the Contractor has received approval from the Director of the Contractor's detailed plan for worker protection from the hazards of caving ground during the excavation of such trench. Such plan shall show the details of the design of shoring, bracing, sloping or other provisions to be made for worker protection during such excavation.
No such plan shall allow the use of shoring, sloping or protective system less effective than that required by the Construction Safety Orders of the Division of Occupational Safety and Health, and if such plan varies from the shoring system standards established by the Construction Safety Orders, the plan shall be prepared and signed by an engineer who is registered as a Civil or Structural Director in the State of California.
B. Confined Spaces
Contractor shall comply with all of the provisions of General Industry Safety Orders of the California Code of Regulations. Entry of a confined space shall not be allowed until the Contractor has received approval from the Director of the Contractor’s program for confined space entry. Confined space means a space that (1) Is large enough and so configured that an employee can bodily enter and perform assigned Work; and (2) Has limited or restricted means for entry or exit (for example, tanks, vessels, silos, storage bins, hoppers, vaults, and pits are spaces that may have limited means of entry); and (3) Is not designed for continuous employee occupancy. Failure to submit a confined space entry program Elecnor Belco Electric Inc.
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may result in actions as provided in Article 5: “Suspension or Termination of Contract.” C. Material Safety Data Sheet
Contractor shall comply with all of the provisions of General Industry Safety Orders of the California Administrative Code. The Contractor shall submit to the Director a Material Safety Data Sheet (MSDS) for each hazardous substance proposed to be used, ten (10) days prior to the delivery of such material s
to the job site or use of such materials at a manufacturing plant where the Director is to perform an inspection. For materials which are to be tested in City laboratories, the MSDS shall be submitted with the sample(s). Hazardous substance is defined as any substance included in the list (Director's List) of hazardous substances prepared by the Director, California Department of Industrial Relations, pursuant to Labor Code Section 6382. Failure to submit an MSDS for any hazardous substance ma y
result in actions as provided in Article 5, "Suspension or Termination of Contract".
10.03 DIFFERING SITE CONDITIONS
A. Differing Site Conditions Defined. The Contractor shall promptly, and before such conditions are disturbed, notify the Director in writing of any Differing Site Conditions. Differing Site Conditions are those conditions, located at the project site or in existing improvements and not otherwise ascertainable by Contractor through the exercise of due diligence in the performance of its inspection obligations in the Contract Documents, encountered by Contractor in digging trenches or other excavations(s) that extend deeper than four feet below the surface of the ground that constitute :
1. Material that the Contractor believes may be material that is hazardous waste as defined in Section 25117 of the Health and Safety Code, which is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
2. Subsurface or latent physical conditions at the site differing materially from those indicated in these Contract Documents.
3. Unknown physical conditions at the site, of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in Work of the character provided for in these Contract Documents.
B. Notice by Contractor. If the Contractor encounters conditions it believes constitute Differing Site Conditions, then notice of such conditions shall, before such conditions are disturbed, be promptly reported to the Director followed within twenty-four (24) hours by a further written notice stating a detailed description of the conditions encountered.
C. The Director will promptly investigate the conditions and If he/she finds that such conditions do materially differ, or do involve hazardous waste, and do cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work under this Contract, an equitable adjustment will be made, as determined by the Director.
D. Change Order Request. If Contractor intends to seek an adjustment to the Contract Sum or Contract Time based upon Differing Site Conditions, it must, within ten (10) Days after the Discovery Date relative to such conditions, submit a Change Order Request setting forth a detailed cost breakdown and Time Impact Analysis, in the form required by Article 6 of these General Conditions, of the additional Allowable Costs and Excusable Delay resulting from such Differing Site Conditions.
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10.03 concerning the timing and content of any notice of Differing Site Conditions or request for adjustment in Contract Sum or Contract Time based on Differing Site Conditions shall be deemed waiver of any right by the Contractor for an adjustment in the Contract Sum or Contract Time by reason of such conditions.
F. Final Completion. No claim by the Contractor for additional compensation for Differing Site Conditions shall be allowed if asserted after Final Payment.
G. In the event of disagreement between the Contractor and the Director whether the conditions do materially differ or whether a hazardous waste is involved or whether the conditions cause an increase or decrease 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 completion date required by the Contract, but shall proceed with all Work to be performed under the Contract Documents.
H. The Contractor shall retain all rights provided by, and shall be subject to all requirements of, this Contract which pertain to the resolution of disputes and protests.
I. Contractor Responsibility. Except as otherwise provided in this Paragraph 10.03 for Differing Site Conditions, Contractor agrees to solely bear the risk of additional cost and Delay due to concealed or unknown conditions, surface or subsurface, at the Site or in Existing Improvements, without adjustmen t
to the Contract Sum or Contract Time.
10.04 TRAFFIC REGULATION
A. During the performance of the Work the Contractor shall erect and maintain necessary temporary fences, bridges, railings, lights, signals, barriers, or other safeguards as shall be appropriate under the circumstance in his/her judgment for the prevention of accidents; and he/she shall take other precautions as necessary for public safety including, but not limited to, traffic control. Traffic control shall be conducted in accordance with the latest edition of the California Manual on Uniform Traffic Control Devices (MUTCD), published by BNi Books, and as directed and approved by the City Engineer.
B. Contractor shall submit at least ten (10) Working Days prior to Work a detailed traffic control plan, that is approved by all agencies having jurisdiction and that conforms to all requirements of the Specifications.
C. No changes or deviations from the approved detailed traffic control plan shall be made, except temporary changes in emergency situations, without prior approval of the City Engineer and all agencies having jurisdiction
.
Contractor shall immediately notify the Director, the City Engineer and the agencies having jurisdiction of occurrences that necessitate modification of the approved traffic control plan.
D. Contractor’s failure to comply with this provision may result in actions as provided in Article 5:
“Suspension or Termination of Contract” of these General Conditions.
10.05 TRAFFIC CONTROL DEVICES
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and as approved by the City Engineer.
1. Portable signals shall not be used unless permission is given in writing by the agency having jurisdiction
.
2. Warning signs used for nighttime conditions shall be reflectorized or illuminated. "Reflectorized signs" shall have a reflectorized background and shall conform to the current State of California Department of Transportation specification for reflective sheeting on highway signs.
B. If the Contractor fails to provide and install any of the signs or traffic control devices required herby or ordered by the City staff, staff may cause such signs or traffic control devices to be placed by others, charge the costs therefore against the Contractor, and deduct the same from the next progress payment.
10.06 EXECUTION
A. The Contractor shall provide written notification to the Police Department, Traffic Bureau (323) 587- 5171, at least two (2) weeks prior to the beginning of construction at any particular location. Notification will include the specific location, project dates, what lanes of the roadway will be closed and when. Also the construction project manager’s name and business phone number and the construction inspector’s name and business phone number.
B. The Contractor shall notify, by telephone, the Police Department, (323) 587-5171 at the completion of any posting of temporary no parking signs. Notification will include the times, dates and locations of the posting. When vehicles must be towed for violation of temporary no parking signs, the person who actually posted the signs, or on-view supervisor of that posting, will be present to answer pertinent questions that may be asked by the parking enforcement officer or police officer towing the vehicles.
C. The Contractor shall notify the Fire Department, on a daily basis during the entire period that construction is in progress whenever roadways are reduced in width or blocked. Notification shall be made to the Fire Dispatch (323) 881-6183 and the Contractor shall provide the information required to identify which roadways would have accessibility problems due to his/her operations. The Contractor shall submit to Fire Department schedule of Work for their use and files.
D. Roads subject to interference from the Work covered by this Contract shall be kept open, and the fences subject to interference shall be kept up by the Contractor until the Work is finished. Except where public roads have been approved for closure, traffic shall be permitted to pass through designated traffic lanes with as little inconvenience and delay as possible.
E. Where alternating one-way traffic has been authorized, the maximum time that traffic will be delayed shall be posted at each end of the one-way traffic section. The maximum delay time shall be approved by the agency having jurisdiction.
F. Contractor shall install temporary traffic markings where required to direct the flow of traffic and shall maintain the traffic markings for the duration of need. Contractor shall remove the markings by abrasive blasting when no longer required.
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