a city to delegate this authority to a non-elected public official. West Sacramento Municipal Code 3.04.090 delegates this authority to the “purchasing agent”, which is elsewhere defined as the City Manager.
Once the contract has been approved, the City Manager is required to report on the contract at the next City Council meeting (PCC 22050(b)(3)). If the work is continuing, the Council needs to authorize continuing the work by a 4/5 vote (PCC 22050(c)(2)). Because the work involved in the emergency repair may extend beyond the September 18, 2024, City Council meeting, the Council is asked to adopt a resolution allowing the work of the contractor to continue. Resolution 24-103, allowing the work of the contractor to continue beyond the September 18, 2024, Council meeting, is attached. The resolution must be approved by a minimum four-fifths vote of the Council for the work to continue.
Environmental Considerations
This emergency repair is exempt from CEQA analysis under CEQA Guidelines 15269. According to the CEQA Guidelines, an emergency includes emergency repairs to public or privately owned service facilities necessary to maintain service essential to the public health, safety, or welfare.
Commission Recommendation
N/A
Strategic Plan Integration
N/A
Alternatives
The Council’s primary alternatives are summarized below:
1) Approve the recommended actions as stated above.
2) Delay or revise the recommended actions.
3) Not approve the recommended actions.
Alternatives 2 and 3 are not recommended as the adoption of Resolution 24-103 is required for the contractor to complete the emergency work detailed in this report.
Coordination and Review
This report was prepared by the Capital Projects Department and coordinated with and reviewed by the Public Works Operations and Maintenance Department, Parks & Recreation Department, Finance Department, and the City Attorney.
Budget/Cost Impact
The emergency work identified in this report is not eligible for reimbursement by YCPARMIA. Capital Improvement Project (CIP) 52083 has been created for the HVAC System Replacement at the Community Center and will be utilized as a funding source.
ATTACHMENTS
1. Notice of Exemption (CEQA)
2. Resolution 24-36
3. Emergency Contract with Acco Engineered Systems, Inc 177
178
ATTACHMENT 2
RESOLUTION 24-103
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO
REGARDING CONTINUANCE OF THE EMERGENCY CONTRACT WITH ACCO ENGINEERED SYSTEMS, INC. FOR THE COMMUNITY CENTER HVAC EMERGENCY
REPAIR PROJECT AND RELATED BUDGET APPROPRIATIONS
WHEREAS, on September 4, 2024, the Community Center lost the entire HVAC system for the Black Box Theater; and
WHEREAS, City staff discovered that the HVAC system at the Community Center had completely failed due to age and obsolescence; and
WHEREAS, City staff contacted Acco Engineered Systems, Inc., for repair services, to assess the damages and provide an estimate for repair; and WHEREAS, Acco Engineered Systems, Inc. determined that the existing HVAC System was beyond repair.
WHEREAS, City staff requested a quote for a temporary HVAC system from Acco Engineered Systems, Inc as a permanent solution is sourced to return the facility to normal operation; and
WHEREAS, City staff selected Acco Engineered Systems, Inc to perform the repairs under an emergency contract; and
WHEREAS, the installation of the new lighting controller began 9/10/2024 and due to the availability of a permanent unit, the completion for the work will likely take several weeks; and WHEREAS, for the purposes of contracting, Section 1102 of the Public Contract Code (PCC) defines an emergency as "a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services”; and
WHEREAS, PCC 20168 allows cities to enter into no-bid, emergency construction contracts following the procedure set out in PCC 22050; and WHEREAS, PCC 22050 allows a city to delegate this authority to a non-elected public official and West Sacramento Municipal Code 3.04.090 delegates this authority to the “purchasing agent”, which is elsewhere defined as the City Manager; and WHEREAS, once the emergency contract has been approved, the City Manager is required to report on the contract at the next City Council meeting (PCC 22050(b)(3)); and WHEREAS, if the work is continuing, the Council needs to authorize continuation of the work (PCC 22050(c)(2)); and WHEREAS, because the work involved in the emergency repair will likely take several weeks, the work may extend beyond the September 18, 2024, City Council meeting, Council needs to authorize continuation of the work.
179
Resolution 24-106
WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, including any supporting reports by City staff, and any other information provided during public meetings.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Sacramento as follows:
1. The City Council hereby finds there is a need to allow continuance of the work to complete the emergency repairs as described in the contract with Acco Engineered Systems, Inc beyond September 18, 2024.
2. The City Council hereby finds that the facts set forth in the recitals to this Resolution are true and correct and establish the factual basis for the City Council’s adoption of this Resolution.
3. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the West Sacramento City Council this 18th day of September, 2024 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Martha Guerrero, Mayor
ATTEST:
Jennifer Cusmir, City Clerk
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CONSTRUCTION CONTRACT
THIS CONTRACT made on September 9th,, 2024, by and between the CITY OF WEST SACRAMENTO (“City”), and ACCO Engineered Systems, Inc., hereinafter “Contractor”. The City and Contractor may be collectively referred to as the “parties”.
The parties have mutually covenanted and agreed as follows:
1. THE CONTRACT DOCUMENTS:
The complete Contract consists of the following documents (“Contract Documents”):
Construction Contract (See Part 2)
Payment Bond to accompany Contract (See Part 2)
Performance Bond to accompany Contract (See Part 2)
Contractor’s Certification Regarding Workers’ Compensation (See Part 2) General Conditions (See Part 3)
Supplemental Conditions (Special Provisions) (See Part 4) Drawings
Technical Specifications (See Part 4)
Change Orders
City of West Sacramento Standard Specifications 2002, with Amendments #1 & #2 State of California Department of Transportation (Caltrans) Standard Specifications 2015 Contractor’s Emergency Invoice (Accepted Bid)
2. THE WORK:
The Contractor agrees to furnish all tools, equipment, apparatus, facilities, labor, transportation, and material necessary to perform and complete in a good and workmanlike manner, the Community Center HVAC Replacement “Project” as called for, and in the manner designated in, and in strict conformity with, the Contract Documents. It is understood and agreed that the tools, equipment, apparatus, facilities, labor, transportation, and material shall be furnished and the work performed and completed as required in the Drawings and Specifications under the sole direction and control of the Contractor, and subject to inspection and approval of the City, or its representatives. The City hereby designates as its representative for the purpose of this Contract the following named person: Jaipal Chahal
3. CONTRACT PRICE:
The City agrees to pay and the Contractor agrees to accept, in full payment for the work above agreed to be done, the sum of $58,000 for the Project subject to additions and deductions as provided in the Contract Documents.
4. COMPLETION DATE:
The Project shall be commenced on the date specified in the Notice to Proceed. The total project will be completed within sixty (60) working days, as defined in the General Conditions, after the date stated in the Notice to Proceed. 181
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5. NOTICE AND SERVICE THEREOF:
Any notice from one party to the other under the Contract shall be in writing and shall be dated and signed by the party giving such notice or by a duly authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in the following manner, namely:
(a) If the notice is given to the City, by personal delivery thereof to the Director of Capital Projects, or by depositing the same in the United States mail, enclosed in a sealed envelope, postage prepaid, and certified; addressed to the City at:
City of West Sacramento
Ariana Adame, Director of Capital Projects
1110 West Capitol Avenue, 1st Floor
West Sacramento, CA 95691
(b) If the notice is given to the Contractor, by personal delivery thereof to said Contractor or to its duly authorized representative at the site of the project, or by depositing the same in the United States mail, enclosed in a sealed envelope, postage prepaid, and certified; addressed to the Contractor at:
Business ACCO Engineered Systems, Inc
Attention Hugh Palmer [email protected],
Street Address 888 E. Walnut St.
City, State, Zip Code Pasadena, CA 91101
(c) If the notice is given to the surety or any other person, by personal delivery to such surety or other person, or by depositing the same in the United States mail, enclosed in a sealed envelope, addressed to such surety or other person, as the case may be, at the address of such surety or person last communicated by it to the party giving the notice, postage prepaid and certified.
6. LIQUIDATED DAMAGES:
Liquidated damages as provided for in the General Conditions of the Contract shall be in the sum of One Thousand Dollars ($1000.00) for each and every day as defined therein for each different scope of work as defined by the Base Bid and each change order except as otherwise specified in the Supplemental Conditions.
7. PREVAILING WAGE:
Copies of the prevailing rate of per diem wages as determined by the Director of the Department of Industrial Relations in accordance with Labor Code section 1773.2 are on file at the City, and copies are available for inspection at that office to any interested party on request.
Bidders shall be responsible for verifying with the Director of the Department of Industrial Relations that all such copies of the prevailing rate provided by the City are current and accurate. The requirement to pay the wage rate so specified is further detailed in the General Conditions.
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8. CONTRACTOR REGISTRATION
By the execution of this Contract, Contractor hereby certifies that it is registered with the California Department of Industrial Relations as required pursuant to Labor Code section 1725.5 (Contractor registration).
IN WITNESS WHEREOF, four (4) identical counterparts of this Contract, each of which shall for all purposes be deemed an original, have been duly executed by the above-named parties, on the date noted on the first page of this Contract.
Date Hugh Palmer, Assistant Secretary/Risk
Manager - Contracts
Date Amanda Berlin, Assistant City Manager
Approved as to form:
Jeffrey Mitchell, City Attorney
Attest:
Jennifer Cusmir, City Clerk
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CONTRACTOR’S CERTIFICATE REGARDING WORKER’S COMPENSATION TO: Ariana Adame, Director of Capital Projects
City of West Sacramento
1110 West Capitol Avenue, 1st Floor
West Sacramento, CA 95691
I am aware of the provisions of Section 3700 of the Labor Code of the State of California which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract. (Contractor)
By
(Business Address)
(Place of Residence)
184
Rev. December 2022 | ACCO Engineered Systems
BID CONTRACT
Principle Office: 10590 Armstrong Ave, Mather CA 95655 JOB NUMBER:
Telephone: 1-800-598-2226
Corporate Office: 888 E Walnut St, Pasadena, CA 91101
Principle Offices: Bakersfield | Commerce | Orange County | Fresno | El Segundo | San Leandro | Sacramento | San Diego | San Francisco San Jose | Redding | Reno/Tahoe | Boise, ID | Seattle, WA | Las Vegas, NV QUOTATION TO: JOB NAME AND ADDRESS:
ATTN: Jai Chahal
Capital Projects Department
West Capitol Avenue, 1
st Floor
West Sacramento, CA 95691
PH: (530) 300-1636
West Sacramento Community Center
1075 West Capitol Ave
West Sacramento, CA 95691
Temporary Cooling Install
THE CONDITIONS PRINTED EITHER ON THE REVERSE SIDE OR ATTACHED ARE PART HEREOF This work or price quotation does not include detection, abatement, encapsulation or removal of hazardous material or asbestos or products, materials, or equipment containing asbestos SCOPE OF WORK:
ACCO is pleased to submit a proposal to provide labor and material to install two (2) 12-ton temporary cooling units on the roof and install associated power and ducting. Currently HP-5 condensers have failed and there is no mechanical cooling.
Work to include:
• Pick up temporary units in Turlock, CA
• Crane to setup on Tuesday in parking lot at 6am
• Crane pick two (2) temp units onto the roof
• Supply plywood and roll the units into final location near the roof door to the theater area • Run temporary electrical cord from the temporary units to the existing HP-5 condenser unit 30amp disconnects
• Run temporary supply ductwork from the temporary units through the door and to the existing return grille • Ensure the existing fan coil units will remain online and review temporary system setup Clarifications: Quoted as NOT TO EXCEED and billed as T&M. All work on straight time. Rental is for a 4 week duration. Rental cost for 2-4 week duration is the same. Crane pick for the removal of the temporary cooling units is also included. Temporary cool air will be dumped near the return grille and rely on the FCUs to pull the cool air through the system.
“Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint is filed within three years of the date of the alleged violation.
California State License No. 120696
The Not To Exceed price of this work (including all materials, labor, truck and taxes)………….$58,000 Terms of payment, unless modified above, are zero down payment and the balance due upon the receipt of invoice. Your signed acceptance of this Bid Contract within 30 days of September 9, 2024 shall, upon the acceptance of the Seller, form a written contract (the "agreement") between the Seller and Buyer for the work described above and such agreement includes Terms and Conditions on page 2 of this agreement.
Prepared in duplicate: September 9, 2024
Prepared for
ACCO Engineered Systems (“SELLER”) Customer (“BUYER”)
By:________________________________________________
ACCEPTED FOR BUYER:
Lawrence Duong, Project Manager, 415-610-9096 By:__________________________________________________ ACCEPTED FOR SELLER (Authorized Signature)
By:________________________________________________
(Authorized Signature) Name/Title:____________________________________________ Name/Title:_________________________________________ Date of Acceptance:_____________________________________ 185
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PAYMENT BOND
The CITY OF WEST SACRAMENTO, hereinafter “City,” has awarded to ACCO Engineered Systems Inc., hereinafter “Contractor,” a Contract for the work described as follows:
The Community Center HVAC Replacement
WHEREAS, the Contractor is required by the Contract and by the provisions of Third Division, Part 4, Title 15, Chapter 7 of the Civil Code to furnish a bond in connection with the Contract, as hereinafter set forth.
NOW, THEREFORE, we, [CONTRACTOR], the undersigned Contractor, as Principal, and _______________, a corporation organized and existing under the laws of the State of _______________ duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the _______________ in the sum of $58,000, said sum being not less than one hundred (100) percent of the total Contract amount payable by the City, under the terms of the Contract, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, THAT, if the Contractor, its heirs, executors, administrators, successors, and assigns or Subcontractors shall fail to pay for any materials, provisions, provender or other supplies or teams, implements or machinery used in, upon, for or about the performance of the work contracted to be done, or shall fail to pay for any work or labor thereon of any kind, or shall fail to pay any persons named in Civil Code section 9100, or shall fail to pay for amounts due under the Unemployment Insurance Code with respect to such work or labor thereon of any kind, or shall fail to pay for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the Contractor and Subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work or labor, and provided that the claimant shall have complied with the provisions of that code, the Surety or Sureties hereon will pay for the same in an amount not exceeding the sum specified in the Contract; otherwise, the above obligation shall be void. In case suit is brought upon this bond, the Surety will pay reasonable attorneys’ fees to the prevailing party to be fixed by the court.
This bond shall insure to the benefit of any and all persons, companies and corporations entitled to file claims under Section 9100 of the Civil Code, so as to give a right of action to them or to their assigns in any suit brought upon this bond.
It is further stipulated that the Surety of this bond shall not be exonerated or released from the obligation of the bond by any change, extension of time for performance, addition, alteration, or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement described above or pertaining or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any 186
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terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement described above, nor by any rescission or attempted rescission of the Contract, agreement, or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond, and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the City and original Contractor or on the party of the obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 8400 and 8402 of the California Civil Code and has not been paid the full amount of its claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration, or modification.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _________ day of ___________________________, 20___.
(Contractor as Principal)
(Seal) By
(Seal) By
NOTE: If Contractor is a Partnership, all partners should execute Bond.
IMPORTANT: Surety companies executing Bonds must appear on the Treasury Department’s most current list (Circular 570 as amended) and be authorized to transact business in California. 187
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1795423.1 7203-038
[PROJECT NAME AND PROJECT NUMBER]
PART 2 GENERAL CONDITIONS
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PART 2: GENERAL CONDITIONS
SECTION 1
DEFINITIONS AND TERMS
1.01. GENERAL
Wherever the following abbreviations and terms, or pronouns in place of them, are used in these Conditions and other Contract Documents of which these Conditions are a part, the intent and meaning shall be interpreted as provided below.
1.02. ABBREVIATIONS
The following abbreviations may be used in the Contract Documents:
AA Aluminum Association
AASHTO American Association of State Highway/Transportation Officials ABMA American Boiler Manufacturer’s Association
ACI American Concrete Institute
AFBMA Anti-Friction Bearing Manufacturers Association
AGA American Gas Association
AGC Associated General Contractors
AGMA American Gear Manufacturer’s Association
AI The Asphalt Institute
AIA American Institute of Architects
AIEE American Institute of Electrical Engineers
AISC American Institute of Steel Construction
AISI American Iron and Steel Institute
ANSI American National Standards Institute, Inc.
APA American Plywood Association
API American Petroleum Institute
APWA American Public Works Association
ARA American Railway Association
AREA American Railway Engineering Association
ASCE American Society Civil Engineers
ASHRAE American Society of Heating, Refrigeration and Air Conditioning Engineers
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
AWG American Wire Gage
AWPA American Wood Preservers’ Association
AWS American Welding Society
AWWA American Water Works Association
BHMA Builders Hardware Manufacturers Association
CCMTC California Concrete Masonry Technical Committee
CRSI Concrete Reinforcement Steel Institute
ETL Electrical Testing Laboratory
FS Federal Specification
ICBO International Conference of Building Officials
IEEE The Institute of Electrical and Electronics Engineers IES Illuminating Engineering Society
IPCEA Insulated Power Cable Engineers Association
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JICS Joint Industry Conference Standards
MBMA Metal Building Manufacturer’s Association
MSS Manufacturers Standardization Society of the Valve and Fitting Industry Standards
NBFU National Board of Fire Underwriters
NBS National Building Standards
NEC National Electrical Code
NEMA National Electrical Manufacturers Association
NFPA National Fire Protection Association
OSHA Occupational Safety and Health Act of 1970
PCA Portland Cement Association
SMACNA Sheet Metal and Air Conditioning Contractor’s National Association SSPC Steel Structures Painting Council
SSPWC Standard Specifications for Public Works Construction UBC Uniform Building Code
UL Underwriter’s Laboratory
UMC Uniform Mechanical Code
UPC Uniform Plumbing Code
USAS The United States of America Standard Institute
USBR United States Bureau of Reclamation
USPHS United States Public Health Service
WCLIB West Coast Lumber Inspection Bureau
WIC Woodwork Institute of California
1.03. DEFINITIONS
The intent and meaning of the following, wherever they appear in the Contract Documents, shall be interpreted as follows:
Acceptance - The formal Acceptance by the Engineer of the entire Contract, which has been completed in all respects in accordance with the Specifications and any, approved modifications.
Addenda - Any written change, clarification or supplement to documents issued for bidding, issued by the City or its Engineer prior to bid.
As Approved - The words “as approved”, unless otherwise qualified, shall be understood to be followed by the words “by the Engineer”.
As Shown, and As Indicated - The words “as shown” and “as indicated” shall be understood to be followed by the words “on the Plans”.
Award - The decision of the City Council to accept the proposal of the lowest responsible Bidder for the Work, subject to the execution and approval of a satisfactory contract therefore and bond to secure the performance thereof and to such other conditions as may be specified or required by law.
Bid - The offer of the Bidder for the Work when made out and submitted on the prescribed Bid form, properly signed and guaranteed. A Bid is also known as a Proposal.
Bid Security - The cash, cashier’s check, certified check, or bidder’s bond accompanying the Bid submitted by the bidder, as a guarantee that the Bidder will enter into a Contract with the City for the performance of Work herein described.
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Bidder - Any individual, firm, partnership or corporation submitting a Bid for the Work contemplated, and acting directly or through a duly authorized representative.
Bureau - United States Bureau of Reclamation.
Calendar Day - Each day shown on the calendar.
Change Order - Written order issued by the Engineer to the Contractor covering changes in the Contract and establishing the bases of compensation and time adjustments for work affected by the changes.
City - The City of West Sacramento, also referred to as the Owner.
City Council or Council - The City Council of the City of West Sacramento.
City Standard Details - The standard details contained in the City Standard Specifications as modified.
City Standard Specifications - 2002 edition of the City of West Sacramento Standard Specifications and Details as amended to date of Bid submittal.
Claim - A separate demand by the Contractor for (i) a time extension, (ii) payment of money or damages arising from work done by or on behalf of the Contractor pursuant to the contract for a public work and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to, or (iii) an amount the payment of which is disputed by the City.
Contract - The written agreement covering the performance of the work and the furnishing of labor, materials, tools and equipment in the construction of the Work. The Contract shall include all Contract Documents and supplemental agreements amending or extending the work contemplated which may be required to complete the Work in a substantial and acceptable manner. Supplemental agreements are written agreements covering alterations, amendments, or extensions to the contract and include Addenda and change orders.
Contract Documents - Contract Documents is the collective term for all of the following documents and any other document incorporated therein by reference: Invitation to Bid, Accepted Bid (and all accompanying documents), Designation of Subcontractors, Construction Contract, Payment Bond to Accompany Contract, Performance Bond to Accompany Contract, General Conditions, Supplementary and Special Conditions, (if any), Drawings (and Specifications), Addenda, Change Orders, City of West Sacramento Standard Specifications, State of California Department of Transportation (Caltrans) Standard Specifications 2015, Contractor’s Certification Regarding Workers’ Compensation.
Contractor - The person or persons, firm, partnership or corporation or other entity who has entered into the Contract with the City to perform the Work.
County - County of Yolo, California.
Date of Completion - Date of filing of the Notice of Completion with the Yolo County ClerkRecorder’s Office.
Date of Execution of the Contract - The date on which the Contract is signed by the City’s authorized representative.
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Datum - The Figures given in the Specifications or upon the drawings after the word “Elevation” or an abbreviation of it, shall mean U.S.G.S. datum, unless otherwise noted.
Days - Unless otherwise designated, days as used in the Contract Documents shall mean calendar days.
Elevation - The figures given on the Plans or in the other Contract Documents after the word “elevation” or abbreviation of it shall mean the distance in feet above the standard datum used by the City.
Engineer - The City Engineer, or the person designated by the City as its engineering representative during the course of construction, acting either directly or through properly authorized agents, such agents acting within the scope of the particular duties delegated to them.
Extra Work - Work other than that required either expressly or implied by the Contract in its executed form.
Notice of Completion - notice of completion is the recorded project completion document filed with the Yolo County Clerk.
Or Equal - The term “or equal” shall be understood to indicate that the “equal” product be the equivalent or better than the product named in function, performance, reliability, quality, and general configuration. Determination of equality in reference to the project design requirements will be made by the Engineer.
Plans or Specification Drawings - The term “Plans” or “Specification Drawings” refers to the official plans, profiles, cross sections, elevations, details, and other Working Drawings and supplementary drawings, or reproductions thereof, signed by the Engineer, which show the location, character, dimensions, and details of the work to be performed. Plans may either be bound in the same book as the balance of the Contract Documents or bound in separate sets.
Regardless of the method of binding, Plans shall be part of the Contract Documents.
Plant - All physical, resources, facilities, machinery, equipment, staging, tools, work and storage space other than provided by the Contract, together with subsidiary essentials and necessary maintenance for proper construction and acceptable completion of the project.
Project - The entire Work to be completed under the Contract.
Project Manager - The person designated by the City as its project management representative during the course of construction, acting either directly or through properly authorized agents, such agents acting within the scope of the particular duties delegated to them. The Project Manager will be the City Engineer unless the City designates a separate Project Manager.
When a Project Manager is used for a project, the Project Manager has full authority to act as the City Engineer unless the designation specifically states otherwise.
Shop Drawings - Drawings prepared by the fabricator or supplier showing the layout and details of components fabricated in a shop for inclusion in the permanent facility (e.g., structural steel, reinforcing steel, railings).
Site - The area upon or in which the Contractor’s operations are carried on and such other areas adjacent thereto as may be designated by the Engineer. 192
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Specifications - The term “specifications” refers to the terms, provisions, and requirements contained herein. Where reference specifications, such as those of “ASTM”, “AASHTO”, etc. have been referred to, the applicable portions of such standard specifications shall become a part of these Contract Documents.
State - State of California.
State Standard Specifications - Standard Specifications issued by the State of California Department of Transportation, dated 2015, and as amended Bid in the supplemental conditions.
Subcontractor - The term “Subcontractor”, as employed herein, includes only those having a direct contract with the Contractor and it includes one who furnishes material worked to a special design according to the plans or specifications of this work, but does not include one who merely furnishes material not so worked and would be considered a supplier only.
Supplementary & Special Conditions Provisions - Additions, revisions, special directions, and requirements peculiar to a project and not otherwise thoroughly set forth in General and/or Specifications.
Time Limits - All time limits stated in the Contract Documents are of the essence of the Contract.
Work - All the work specified, indicated, shown or contemplated in the Contract Documents to construct the improvements, including all alterations, amendments or extensions thereto made by Change Order or other written orders of the Engineer.
Working Days - A Working day is defined as any day, except Saturdays, Sundays and legal holidays of the City.
Working Drawings - Drawings furnished by the Contractor showing the layout and details of temporary construction procedures and methods of construction, and data for construction equipment which are to be employed in the construction of the permanent facility (e.g., form drawings, erection drawings, load test pile procedures, pile hammer data, etc.).
Written Notice - “Written Notice” shall be deemed to have been duly served when delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by certified U.S. mail to the last business address known to the party who gives the notice as specified in the Contract.
Whenever in the Specifications or upon the drawings the words “directed”, “required”, “permitted”, “ordered”, “designated”, “prescribed”, or words of like import are used, it shall be understood that the direction, requirement, permission, order, designation or prescription of the Engineer is intended, and similarly the words “approved”, “acceptable”, “satisfactory”, or words of like import, shall mean approved or acceptable to, or satisfactory to the Engineer, unless otherwise expressly stated.
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SECTION 2
SCOPE OF WORK
2.01. INTENT OF CONTRACT DOCUMENTS
The intent of the Contract Documents is to prescribe the details for the construction and completion of the Work, which the Contractor undertakes to perform in accordance with the terms of the Contract. These General Conditions are meant to replace Division I of the State Standard Specifications for all City public works contracts which incorporate these General Conditions by reference.
Where the Specifications and Plans describe portions of the Work in general terms, but not in complete detail, it is understood that only the best general practice is to prevail and that only materials and workmanship of the first quality are to be used. Unless otherwise specified, the Contractor shall furnish all labor, materials, tools, equipment and incidentals and do all the Work involved in performing the Contract in a satisfactory and workmanlike manner.
The technical provisions are presented in sections for convenience. However, this presentation does not necessarily delineate trades or limits of responsibility. All sections of the Specifications and Plans are interdependent and applicable to the Project as a whole.
The Contract Documents are complementary, and what is called for in any one shall be as binding as if called for in all. Anything shown on the Drawings and not mentioned in the Specifications or mentioned in the Specifications and not shown on the Drawings shall have the same effect as if shown or mentioned respectively in both. Any work shown on one Drawing shall be construed to be shown in all Drawings and the Contractor will coordinate the Work and the Drawings.
If any portion of the Contract Documents shall be in conflict with any other portion, the various documents comprising the Contract Documents shall govern in the following order of precedence: Change Orders; Addenda; Shop Drawings, Drawings, Supplementary and Special Conditions; Designation of Subcontractors; Construction Contract; General Conditions; City of West Sacramento Standard Specifications; State of California Department of Transportation (Caltrans) Standard Specifications 2015.
Detail Drawings take precedence over General Drawings. As between schedules and other information given on Drawings, the Schedules shall govern. If an item is shown on any Drawing and not specifically included in Technical Specifications specific to this project, the Drawing shall govern. Any conflict or inconsistency between or in the drawings shall be submitted to the Engineer for clarification as soon as the Contractor becomes aware of such inconsistency.
2.02. CONTRACTOR’S UNDERSTANDING
It is understood and agreed that the Contractor has, by careful examination, satisfied itself as to the nature and location of the Work, the conformation of the ground, the character, quality and quantity of the materials to be encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the Work, the general and local conditions, and all other matters which can in any way affect the Work under this Contract. No verbal agreement or conversation with any officer, agent or employee of the City, either before or after the execution of this Contract, shall affect or modify any of the terms or obligations contained herein.
194
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
2.03. CHANGES IN THE WORK
(a) The City may, at any time, by written order, make changes in the Work as deemed necessary by the Engineer. Such changes include, but are not limited to:
(1) In the Specifications or Plans;
(2) In the sequence, method or manner of performance of the Work; (3) In the owner-furnished facilities, equipment, materials, services or site; and (4) Directing acceleration of the Work.
(b) If such changes cause an increase or decrease in the Contractor’s cost of, or time required for, performance of the Contract, an equitable adjustment will be made and the Contract modified in writing accordingly.
(1) Change Orders
A change pursuant to this section will be in the form of a Change Order, which will set forth the work to be done or the method by which the change and cost adjustment, if any, will be determined, and the time of completion of the work.
Upon receipt of a Change Order, the Contractor shall proceed with the ordered work. If ordered in writing by the Engineer, the Contractor shall proceed with the work so ordered prior to actual receipt of a Change Order. A Change Order executed by the Contractor and approved by the Engineer is an executed Change Order as that term is used throughout this section.
(2) Change Order Protests
A Change Order may be issued to the Contractor at any time. Should the Contractor disagree with any terms or conditions set forth in a Change Order, which he has not executed, he shall submit a written protest to the Engineer within fifteen (15) days after the receipt of such Change Order. The protest shall state the points of disagreement and, if possible, the quantities and cost involved.
If a written protest is not submitted, payment will be made as set forth in the Change Order. Such payment shall constitute full compensation for all work included therein or required thereby. Such unprotested Change Orders shall be considered as executed Change Orders.
Where the protest concerning a Change Order relates to compensation, the compensation payable for all work specified or required by said Change Order to which such protest relates will be determined in the same manner as provided in Section 2.04 of this section. The Contractor shall keep full and complete records of the cost of such work and shall permit the Engineer to have such access thereto as may be necessary to assist in the determination of the compensation payable for such work. Where the protest concerning a Change Order relates to the adjustment of time and for completion of the Work, the time to be allowed therefor will be determined as provided in this section. 195
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
The consent of the Contractor’s sureties shall not be required as to any change or Extra Work, and the liability of the Contractor’s Bonds shall be increased or decreased accordingly without notice to the sureties.
2.04. PROCEDURES AND ALLOWABLE COSTS ON CHANGES AND ADDITIONS TO WORK
(a) Forms of Payment
If the change in, or addition to, the Work will result in an increase in the contract sum, the City shall have the right to require the performance thereof. The compensation to be paid for any such work shall, in the City’s sole discretion, be determined in one or more of the following ways:
(1) By extension of agreed unit prices, if unit prices are required by the City’s Bid form and provided with Contractor ‘s bid;
(2) By revision of unit prices;
(3) By proposal and Acceptance of an agreed upon lump sum; and (4) On a force account basis.
Until one of the above methods is agreed on, or if the Work is to be paid for on a time and materials basis, the Contractor shall keep full and complete records of the cost of such work in the form and manner prescribed by the Engineer and shall permit the Engineer to have access to such records as may be necessary to assist in the determination of the compensation payable for such work.
(b) Lump Sum Payment
The City, in its sole and absolute discretion, may request a lump sum proposal by Contractor to perform the change in, or addition to, the Work performed. Such lump sum proposal shall be submitted by the Contractor within ten (10) days of the City’s request therefor.
Request for a lump sum proposal by City shall not be deemed an election by City to have the Work performed on a lump sum basis. Costs of preparing the proposal shall not be compensable.
(1) Contents of Lump Sum Proposal
(2) The Contractor’s proposal shall be itemized and segregated by labor and materials for the various components of the change (no aggregate labor total will be acceptable). The proposal shall be accompanied by signed proposals of any Subcontractors, which will perform any portion of the change, and of any persons who will furnish materials or equipment for incorporation therein. The proposal shall also include the Contractor’s estimate of the time required to perform said changes or additional work. (3) Computation of Labor Costs
The portion of the proposal relating to labor, whether by the Contractor’s forces or the forces of any of its Subcontractors, may include the projected wages of the reasonably anticipated Site labor, including foremen, who will be directly involved in the change in the Work. 196
ACCO Engineered Systems, Inc
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60 Working Days
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These projected wages shall not include charges for assistant superintendents, superintendents, office personnel, timekeepers and maintenance mechanics.
Labor costs may also include Contractor’s overhead and profit which shall be computed by adding to the labor costs either up to fifteen percent (15%) of the projected wages, but not payroll costs, or the labor surcharge set forth in the California Department of Transportation publication entitled Labor Surcharge And Equipment Rental Rates, which is in effect on the date upon which the Work is accomplished and which is a part of the Contract. The method of computing the overhead and profit shall be solely within the discretion of the City.
The labor surcharge, if used, shall constitute full compensation for all payments imposed by State and Federal laws and for all other payments made to, or on behalf of, the workmen, other than actual wages as defined above. No time or charges will be allowed except when the workers are actually engaged in the proper, efficient and diligent performance or completion of the extra work as authorized. Overtime shall not be worked without prior approval of the Engineer.
(4) Computation of Equipment and Materials Costs
The portion of the proposal relating to materials may include the reasonably anticipated direct costs to the Contractor or to any of its Subcontractors of materials to be purchased for incorporation in the change in the Work. This portion of the proposal may also include transportation and applicable sales or use taxes. Up to fifteen percent (15%) of these direct costs may be included as overhead and profit for the Contractor or any such Subcontractor (such overhead and profit to include all small tools).
This portion of the proposal may further include the Contractor’s and any of its Subcontractors’ reasonably anticipated costs for the rental and operation of prime construction and automotive equipment furnished and used in connection with the change in the Work. The equipment rental and operation rates used shall be the latest edition of the Department of Transportation, Division of Construction, Equipment Rental Rates. These costs shall not include charges for listed equipment or major tools with a new cost of five hundred dollars ($500.00) or less. No time charges shall be allowed except for equipment actually used for the proper and efficient performance or completion of the authorized change in the Work. (5) Subcontractors
The lump sum proposal may include up to five percent (5%) of the amount, which the Contractor will pay to any of its Subcontractors for the change in the Work as allowable overhead and profit to the Contractor.
(6) Failure to Submit Lump Sum Proposal
In the event that the Contractor fails to submit its proposal within the designated period, the Engineer may direct the Contractor to proceed with the change or addition to the Work and the Contractor shall so proceed. The Engineer shall unilaterally determine the reasonable costs and time to perform the work in question, which determination shall be final and binding upon the Contractor.
(7) Failure to Agree on Lump Sum Amount
In the event that the parties are unable to agree as to the reasonable costs and time to perform the change in or addition to the Work based upon the Contractor’s proposal and 197
ACCO Engineered Systems, Inc
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60 Working Days
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the Engineer and City do not elect to have the change in the Work performed on a time and material basis, the Engineer and City shall make a unilateral determination of the reasonable cost and time to perform the change in the Work, based upon their own estimates, the Contractor’s submission or combination thereof. In such instances, a Change Order shall be issued for the amount of costs and time determined by the Engineer and the City and shall become binding upon the Contractor unless the Contractor submits its protest in writing to the City within thirty (30) days of the issuance of the Change Order. The City has the right to direct the Contractor in writing to perform the change in the Work, which is the subject of the Change Order. Failure of the parties to reach agreement regarding the costs and time of performing the change in the Work and/or any pending protest shall not relieve the Contractor from performing the change in the Work promptly and expeditiously.
(c) Payment by Unit Prices
If any of the items included in the lump sum proposal are covered by unit prices contained in the contract document, the City may, if it requires the change in the Work to be performed on a lump sum basis, elect to use these unit prices in lieu of the similar items included in the lump sum proposal in which event an appropriate deduction will be made in the lump sum amount prior to the application of any allowed overhead and profit percentages. No overhead and profit shall be applied to any unit prices. (d) Payment on a Force Account Basis
If the City elects to have the change or addition to the Work performed on a force account basis, the Work shall be performed, whether by the Contractor’s forces or the forces of any of its Subcontractors or Sub-Subcontractors, and payment shall be made subject to the following provision. The Contractor will be paid the direct costs of the labor, equipment and materials used in performing the force account work determined as hereinafter provided. (1) For labor, the Contractor will be paid the cost of labor for the workers (including foremen when authorized by the Engineer or Project Manager) used in the actual and direct performance of the work. The cost of labor, whether the employer is the Contractor or any or any Subcontractor of any tier, shall be actual wages, including basic hourly wage, health and welfare payments and pension payments incurred in performing the force account work, plus any travel and subsistence payments for the workers performing such work and made necessary thereby. To the actual wages shall be added a labor surcharge as set forth in the State Department of Transportation publication entitled “Labor Surcharge and Equipment Rental Rates”, as in effect on the date the work is performed. The labor surcharge shall be deemed to encompass the City’s entire liability to reimburse the Contractor for workers compensation insurance payments, social security payments, Medicare payments, federal unemployment insurance payments, state unemployment insurance payments and state training taxes, made necessary by the force account work.
(2) For equipment, the Contractor will be paid for the use of equipment at the rental rates listed for that equipment in the State Department of Transportation publication entitled “Labor Surcharge and Equipment Rental Rates”, which is in effect on the date the work is performed, regardless of ownership or any rental agreement entered into by Contractor for such equipment. The rental rate paid in accord with said publication shall be deemed to include the cost of fuel, oil, lubrication, supplies, small tools, attachments, repairs and maintenance, depreciation, storage and insurance for said equipment. Rental time will not be paid when equipment is inoperable due to breakdowns, repairs or maintenance. Payment for loading, transporting and unloading time will be in accordance with the State Standard Specifications 198
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
applicable to loading, transporting and unloading equipment for force account work, as applicable as of the date the equipment is loaded, transported or unloaded. (3) For materials used in the work, the City will pay for materials furnished by the Contractor and necessarily used in the force account work. Prior to markups as set forth below, the amount paid shall be the price paid by the actual purchaser to the actual supplier plus any necessary actual costs of handling the materials.
Contractor may add fifteen percent (15%) to the total labor, equipment and material charges as the total overhead and profit to the entity or entities actually performing the force account work. If the entity or entities actually performing the work are Subcontractors or Sub-Subcontractors, the Contractor shall be allowed five percent (5%) of the total charge of the performing entity or entities (including mark- up) as Contractor’s mark-up. No other mark-ups shall be allowed hereunder.
The Contractor shall submit to the City daily work and material tickets, to include the identification number assigned to the change in the Work, the location and description of the change in the Work, the classification of labor employed (and names and social security numbers), hours expended, the material used, the equipment rented (not tools) and such other evidence of cost as the City may require. The City may require authentication of all time and material tickets and invoices by persons designated by the City for such purpose. The failure of the Contractor to secure any required authentication shall, if the City elects to treat it as such, constitute a waiver by the Contractor of any claim for the cost of that portion of the Change in the Work covered by a non-authenticated ticket or invoice; provided, however, that the authentication of any such ticket or invoice by the City shall not constitute an acknowledgment by the City that the items thereon were reasonably required for the Change in the Work. (e) Limitations on Changes
The Contractor shall not be entitled to any amount for indirect costs, damages or expenses of any nature, including, but not limited to, so-called “impact” costs, labor inefficiency, wage, material or other escalations beyond the prices upon which the proposal is based and to which the parties have agreed pursuant to the provisions of this section, and which the Contractor, its Subcontractors and Sub-Subcontractors or any other person may incur as a result of delays, interferences, suspensions, changes in sequence or the like, for whatever cause, whether reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable, arising from the performance of any and all changes in the work performed pursuant to this section. It is understood and agreed that the Contractor’s sole and exclusive remedy in such event shall be recovery of its direct costs as compensable hereunder and an extension of the time of the Contract, but only in accordance with the provisions of the Contract Documents.
It is expressly agreed that Contractor shall not be entitled to claim damages for anticipated profits on any portion of the Work that may be deleted.
The amount of any adjustment for work deleted shall be estimated at the time deletion of work is ordered and the estimated adjustment will be deducted for the subsequent monthly pay estimates. The City reserves its rights under Section 3.20 to audit Contractor’s as-Bid profit in connection with any deductive change, to arrive at a final adjustment. Contractor’s as-Bid profit shall be reduced pro rata according to the proportion of the original contract value less as-Bid profit, represented by the work deleted.
199
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
The City reserves the right to contract with any person or firm other than the Contractor for any or all Extra Work.
2.05. UNILATERAL CHANGE IN OR ADDITION TO THE WORK
Notwithstanding the above, the City, directly or through the Engineer, may direct the Contractor in writing to perform changes in or additions to the scope of the Contract. The Contractor shall perform such work and the parties shall proceed pursuant to the provisions of Section 2.04.
2.06. DIFFERING SITE CONDITIONS
The Contractor shall promptly, and before the following conditions are disturbed, notify the City in writing of any:
(a) Material that the Contractor believes may be material that is hazardous waste, as defined in Section 25110.02 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; or (b) Subsurface or latent physical conditions at the Site differing from those indicated in the Contract Documents; or
(c) Unknown conditions at the Site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract.
The Engineer shall thereupon promptly investigate the conditions. If the Engineer finds that they do involve hazardous waste, or do materially differ and cause an decrease or increase in the Contractor’s cost or time of performance, the Engineer will issue a change order as appropriate. Any increase or decrease of cost resulting from such changes shall be adjusted in the manner provided in Section 2.04 for adjustments as to extra and/or additional work and changes. In the event that a dispute arises between the City and the Contractor, whether the conditions materially differ, or involve hazardous waste, or cause and decrease or increase the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided by the Contract, but shall proceed with all work to be performed under the Contract, the procedures applicable to claims for extra costs shall then apply.
2.07. CLAIMS FOR EXTRA COSTS
(a) Notice of Potential Claims
(1) It is hereby mutually agreed that the Contractor shall not be entitled to the payment of any additional compensation for any cause, including any act, or failure to act, by the Engineer, or the happening of any event, thing or occurrence, unless the Contractor provides the Engineer with written notice of the potential claims as hereinafter specified.
Compliance with this section, however, shall not be a prerequisite as to matters within the scope of the protest provisions in Section 2.03.
The written notice of potential claims shall set forth the reasons for which the Contractor believes additional compensation will or may be due, the nature of the costs involved, and, insofar as possible, the amount of the potential claim. The notice as above required shall be given to the Engineer prior to the time that the Contractor commences 200
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
performance of the Work giving rise to the potential claim for additional compensation, if based on an act or failure to act by the Engineer, or in all other cases within ten (10) days after the happening of the event, thing or occurrence giving rise to the potential claim. (b) Construction Dispute
(1) The Contractor may submit a dispute to the Engineer concerning any matter for which a protest under Section 2.03, or a notice of potential claim, is filed. Such disputes, or potential claims, shall be submitted to the Engineer within sixty (60) days following the submission of said protest or notice, unless, due to the nature of the dispute or the uncompleted state of the Work, it is impracticable to determine the amount or the extent of the claim within such period. In such cases, disputes shall be submitted at the earliest practicable time in which such a determination can be made. In any event, all disputes shall be filed on or before the date of the final release by the Contractor as provided for in Section 7.09. (2) All disputes shall be in writing and shall set forth clearly and in detail, for each item of additional compensation requested, the reasons for the dispute, reference to applicable provisions of the Specifications, the nature and the amount of the cost involved, the computations used in determining such costs, all pertinent factual data and all the documents necessary to substantiate the dispute. The Contractor shall maintain complete and accurate records of the cost or any portion of the Work for which additional compensation is claimed, and shall provide the Engineer with copies thereof, as required. The Engineer shall provide a written decision to the dispute or potential claim as soon as practicable but not later than 30 days following receipt thereof.
(c) Resolution of Construction Claims
(1) To the extent that the Contractor disputes the Engineer’s Written Decision issued pursuant to Section 4.07(b)(2), or to the extent the Engineer fails to issue a timely written decision, the Contractor may file a written claim, as defined by Public Contract Code section 9204(c)(1), with the City including reasonable documentation to support the claim. Upon receipt of the claim, the City shall conduct a reasonable review of the claim, and within a period not to exceed 45 days, the City shall provide the Contractor with a written statement identifying what portion of the claim is disputed and what portion is undisputed. The time in which the City must provide a written statement may be extended by mutual agreement of the parties as specified by Public Contract Code section 9204(d)(1)(C). The City shall pay any undisputed portion of the claim within 60 days after issuance of its written statement. (2) Claims submitted by the Contractor shall be accompanied by a notarized certificate containing the following language:
Under the penalty of law for perjury or falsification and with specific reference to the California False Claims Act, Government Code section 12650, et. seq., the undersigned, (Name)
(Title
(Company
201
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
hereby certifies that the claim for the additional compensation and time, if any, made herein for the work on this contract is a true statement of the actual costs incurred and time sought, and is fully documented and supported under the contract between parties.
Dated:
/s/
Subscribed and sworn before me this _____ day
of
Notary Public
My commission expires
Failure to submit the notarized certificate will be sufficient cause for denying the claim.
Any claim for overhead type expenses or costs, in addition to being certified as stated above, shall be supported by an audit report of any independent Certified Public Accountant. Any such overhead claim shall also be subject to audit by the City at its discretion.
Any costs or expenses incurred by the City in reviewing or auditing any claims that are not supported by the Contractor’s cost accounting or other records shall be deemed to be damages incurred by the City within the meaning of the California False Claims Act. (3) Meet And Confer Regarding Unresolved Claims. If the Contractor disputes the City’s written statement issued pursuant to Section 4.07(c)(1) or if the City fails to issue a timely written response, the Contractor may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the City shall schedule a meet and confer conference within 30 days for settlement of the dispute. The meet and confer conference shall be attended by senior executives of the parties who have authority to settle the controversy. Within 10 business days following the conclusion of the meet and confer conference, the City shall provide the Contractor with a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. The City shall pay any undisputed portion of the claim within 60 days after it issues its written statement. (4) Mediation. If the Contractor disputes, in writing, any portion of the City’s written statement as issued under Section 4.07(c)(3), the disputed items shall be submitted to nonbinding mediation according to the provisions of Public Contract Code section 9204(d)(2), and any costs of mediation shall be allocated as set forth in that section. Upon receipt of a claim, the City and the Contractor may agree to waive, in writing, mediation. (5) Failure to Respond or Pay. If the City fails to timely respond to a claim from the Contractor or otherwise fails to meet the time requirements of Public Contract Code section 9204, the claim shall be deemed rejected in its entirety. Additionally, amounts not timely paid in the manner required by Public Contract Code section 9204 shall bear interest at 7 percent per annum.
202
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(6) Subcontractor Claims. If a Subcontractor or a lower tier Subcontractor lacks legal standing to assert a claim against the City because privity of contract does not exist, the Contractor may present to the City a claim on behalf of the Subcontractor or lower tier Subcontractor pursuant to Public Contract Code section 9204(d)(5).
2.08. CIVIL ACTION PROCEDURES
(a) Alternative Dispute Resolution of Claims of $375,000.00 or Less. (1) Claims Less Than $375,000.00. Notwithstanding any other provision herein but after compliance with the provisions of Public Contract Code section 9204 as set forth in Section 4.07, claims of $375,000.00 or less shall be resolved pursuant to the alternative dispute resolution procedures set forth in Public Contract Code section 20104 et seq. “Claim” for this purpose means a separate demand by the Contractor for a time extension, payment of money or damages arising from work done by or on behalf of the Contractor pursuant to the Contract, for which payment is expressly provided, or the Contractor is otherwise entitled to, or an amount the payment of which is disputed by the City. (2) Submission of Claims Less than $375,000.00. The Contractor shall submit its claim of $375,000.00 or less to the City in writing, within the time frames established under paragraph 4.07, but no later than before the final payment is made. The City shall respond within the time provided by statute. If the Contractor disagrees with the response or the City fails to respond within the time permitted, the Contractor shall notify the City of the disagreement in writing within fifteen (15) days from the date of the response or expiration of the time permitted to respond and demand a meet-and-confer conference. The City shall schedule a meet-and-confer conference within thirty (30) days of the demand. The meet and confer conference shall be attended by senior executives of the parties who have authority to settle the controversy. If not resolved at the meet-and-confer conference, the Contractor may initiate a civil action as set forth in Public Contract Code section 20104 et seq., including but not limited to compliance with applicable Government Code provisions.
(3) Time Limits Not Extended. Nothing in subdivision (a) of Public Contract Code section 20104.2 shall extend the time limit or supersede the notice requirements provided in this Contract for filing claims by the Contractor.
(b) Alternative Dispute Resolution of Claims in Excess of $375,000.00.
As a condition precedent to the initiation of litigation, disputes in excess of a total value of $375,000.00 shall first be submitted to the claims procedures set forth in Sections 4.06 and
4.07. 2.09. GUARANTEE
(a) In addition to warranties, representations and guarantees stated elsewhere in the Contract Documents, the Contractor unconditionally guarantees all materials and workmanship furnished hereunder, and agrees to replace the same at its sole cost and expense, and to the satisfaction of the Engineer, any and all materials which may be defective or improperly installed.
(b) The Contractor shall repair or replace to the satisfaction of the Engineer any or all such work that may prove defective in workmanship or materials, ordinary wear and tear excepted, together with any other work, which may be damaged or displaced in so doing. 203
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(c) In the event of failure to comply with the above stated conditions within a reasonable time, the City is authorized to have the defect repaired and made good at the expense of the Contractor who will pay the costs and charges therefore immediately upon demand, including any reasonable management and administrative costs, and engineering, legal and other consultant fees incurred to enforce this section. (d) The signing of the Contract by the Contractor shall constitute execution of the above guarantees. Except as otherwise provided in this Contract, the guarantees and warranties shall remain in effect for a period of one (1) year after final Acceptance of the Work by the City.
204
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
SECTION 3
CONTROL OF WORK
3.01. AUTHORITY OF ENGINEER
(a) The Engineer is the representative of the City and has full authority to interpret the Contract Documents, to conduct the construction review and inspection of the Contractor’s performance, and to decide questions, which arise during the course of the Work and the Engineer’s decisions on these matters, shall be final and conclusive. The Engineer has the authority to reject all work and materials, which do not conform to the Contract Documents, and has the authority to stop the Work whenever such stoppage may be necessary to insure the proper execution of the Contract. The Engineer’s failure to stop the Work shall not obligate the City to accept defective or otherwise unacceptable work or otherwise affect the Engineer’s or City’s authority to reject work for any reason set forth in the Contract Documents. (b) If at any time the Contractor’s work force, tools, plant or equipment appear to the Engineer to be insufficient or inappropriate to secure the required quality of work or the proper rate of progress, the Engineer may order the Contractor to increase their efficiency, improve their character, to augment their number or to substitute other personnel, new or additional tools, plant or equipment, as the case may be, and the Contractor shall comply with such order.
Neither the failure of the Engineer to demand such increase of efficiency, number, or improvement, nor the compliance by the Contractor with the demand, shall relieve the Contractor of its obligation to provide quality work at the rate of progress necessary to complete the Work within the specified time.
(c) The Engineer may authorize minor variations in the work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time. These may be accomplished by a Field Order. Contractor shall comply promptly with all Field Orders. If the Engineer and Contractor are unable to agree on entitlement or on the amount or extent, if any, of any adjustment in the Contract Price or Contract time, or cost, as a result of a Field Order, a claim may be made therefor pursuant to Section 2.07. (d) Any order given by the Engineer, not otherwise required by the Contract Documents to be in writing shall, on request of the Contractor, be given or confirmed by the Engineer in writing.
(e) Whenever work, methods of procedure, or any other matters are made subject to direction or approval, such direction or approval will be given by the Engineer.
3.02. DRAWINGS
(a) Drawings furnished herewith are for bidding purposes. The Engineer will furnish the Contractor, free of charge, copies of full size Drawings which are reasonably necessary for the execution of the Work. The Contractor shall have no claim for excusable delay on account of the failure of the Engineer to deliver such Drawings, unless the Engineer shall have failed to deliver the same within two weeks after receipt of written demand therefore from the Contractor.
The Contractor shall keep one copy of said Drawings, in good order, available to the Engineer and the Engineer’s representatives, and convenient to the working site. (b) If the Contractor, in the course of the Work, finds any discrepancy between the Drawings and the physical condition of the locality, or any errors or omissions in the Drawings, 205
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
or in the layout as given by points and instructions, it shall be the Contractor’s duty to inform the Engineer in writing, and the Engineer will promptly verify the same.
Any work done after such discovery, until authorized, will be done at the Contractor’s risk. All Drawings, Specifications, and copies thereof furnished by the Engineer are the property of the Engineer and shall not be reused on other work and, with the exception of the signed Contract sets, are to be returned to the Engineer, on request, at the completion of the Work. All models are the property of the City.
(c) The Drawings shall be supplemented by such Shop Drawings prepared by the fabricator and/or supplier and Working Drawings prepared by the Contractor as are necessary to adequately control the Work. No changes shall be made by the Contractor in any Shop or Working Drawings after they have been reviewed by the Engineer, if the Engineer deems that no further submittals are necessary. The Contractor shall not commence the layout, purchase, fabrication, or construction of any work for which Shop or Working Drawings are required until Engineer has reviewed the specifications and drawings and has indicated in writing no further submittals are required for compliance with the Contract Documents. (d) Shop and Working Drawings for any structure shall include, but not be limited to, detail design calculations, fabrication and installation drawings, lists, graphs, operating instructions, etc., which shall be reviewed and accepted by the Engineer before any such work is performed.
(e) Shop and Working Drawings will be required for cribs, cofferdams, falsework, centering and form work and for other temporary work and methods of construction the Contractor proposes to use. Such Drawings shall be subject to the review and Acceptance of the Engineer insofar as the details affect the character of the finished work, but details of design will be left to the Contractor who shall be responsible for the successful construction of the Work.
(f) Contractor agrees that Shop and/or Working Drawings processed by the Engineer are not Change Orders; that the purpose of these Drawings submitted by the Contractor is to demonstrate to the Engineer that the Contractor understands the design concept, that the Contractor demonstrates its understanding by indicating which equipment and material the Contractor intends to furnish and by detailing the fabrication methods it intends to use. It is expressly understood, however, that favorable review of the Contractor’s Shop and Working Drawings shall not relieve the Contractor of any responsibility for accuracy of dimensions and details, or for mutual agreements of dimensions and details. It is mutually agreed that the Contractor shall be responsible for agreement and conformity of its Drawings with the Specifications. Contractor further agrees that if deviations, discrepancies or conflicts between Shop and/or Working Drawings and Specifications are discovered either prior to or after the Drawings are processed by the Engineer, the Specifications shall control and shall be followed.
(g) Unless otherwise stated, the Engineer shall have thirty (30) days from the date of receipt of Shop and/or Working Drawings for review.
(h) Full compensation for furnishing all Shop and/or Working Drawings shall be considered as included in the prices paid for the Contract items of work to which such drawings relate and no additional compensation will be allowed therefore. Any cost related to the Engineer’s review of any particular set of Shop and/or Working Drawings more than twice, due to incompleteness or unacceptability, shall be borne by the Contractor, and the City reserves the right to withhold such costs from payments due the Contractor. 206
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(i) All reasonable effort has been made to locate and delineate all known structures and facilities on the plans. Except as otherwise provided herein, the City of West Sacramento shall assume no responsibility for the completeness or accuracy of its delineation of underground utilities nor the existence of other buried objects which may be encountered, or which are not shown on the plans.
(j) The Contractor shall keep and maintain a clean set of plans for the project and shall record in red ink all changes, revisions, etc. made during the course of construction. These plans shall include all changes, revisions, etc. from the original plan complete with the exact sizes, locations, dimensions, elevations, etc. These plans shall be kept and maintained in a neat, clean and legible condition and shall be available for inspection at all times by the Engineer. The Contractor shall deliver these completed plans to the Engineer and the Engineer shall approve these plans prior to final Acceptance of the project by the City.
3.03. CONSTRUCTION STAKING AND SURVEYS
The City will provide one set of construction stakes and benchmarks as it deems necessary to establish lines and grades required for the completion of the site work specified in the Contract. The Contractor shall notify the Engineer a minimum of seven (7) days in advance of the time work is to begin on any portion of the project that may require construction staking to be provided by the City. The Contractor shall make all other surveys necessary for the completion of the Work.
Alternatively, the Engineer may provide the Contractor with drawings showing benchmarks and reference points as it deems necessary to establish lines and grades required for the completion of the site work specified in the Contract Documents. The Contractor shall make or furnish all surveys and set all construction stakes necessary for the completion of the work.
Stakes and marks set by the City or Engineer shall be carefully preserved by the Contractor. The Contractor shall be charged for the cost of replacing or restoring the stakes and marks, which are destroyed or damaged by Contractor’s operation. This charge will be deducted from any monies due or to become due to the Contractor under the Contract.
3.04. PERMITS AND REGULATIONS
Permits and licenses, of a temporary nature, necessary for the prosecution of the Work shall be secured and paid for by the Contractor. Permits, licenses and easements for permanent structures or permanent changes in existing facilities shall be secured and paid for by the City unless otherwise specified.
The Contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on the conduct of the Work as shown on the plans and described in the Specifications. Contractor shall promptly notify the Engineer in writing of any specification at variance therewith. In such instances, any necessary changes shall be adjusted as provided in the Contract for changes in the Work. If the Contractor performs any Work knowing it to be contrary to such laws, ordinances, rules, and regulations and without such notice to the Engineer, Contractor shall bear all costs arising therefrom.
3.05. CONFORMITY WITH CONTRACT DOCUMENTS AND ALLOWABLE DEVIATIONS Work and materials shall conform to the lines, grades, cross sections, dimensions and material requirements, including tolerances, shown on Contract Documents. Although 207
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measurement, sampling, and testing may be considered evidence as to such conformity, the Engineer shall be the sole judge as to whether the Work or materials deviate from the Contract Documents. The Engineer’s decision as to any allowable deviations therefrom shall be final and conclusive.
3.06. COORDINATION AND INTERPRETATION OF CONTRACT DOCUMENTS (a) Should it appear that the Work to be done or any of the matters relative thereto are not sufficiently detailed or explained in the Specifications and Plans, the Contractor shall apply to the Engineer for such further explanations as may be necessary and shall conform to them as part of the Contract. In the event of any doubt or question arising respecting the true meaning of the Specifications and Plans, reference shall be made to the Engineer, whose decision thereon shall be final and conclusive.
(b) Any reference made in the Specifications and Plans to any specification, standard, method, or publication of any scientific or technical society or other organization shall, in the absence of a specific designation to the contrary, be understood to refer to the specification, standard, method, or publication in effect as of the date that the Work is advertised for Bids.
3.07. SUBCONTRACTORS
(a) The attention of the Contractor is directed to the provisions of California Public Contract Code sections 4100-4113 regarding subcontracting and said provisions are by this reference incorporated herein and made a part hereof.
(b) Each subcontract shall contain a suitable provision for the suspension or termination thereof should the Work be suspended or terminated or should the Subcontractor neglect or fail to conform to every provision of the Contract Documents insofar as such provisions are relevant. The Contractor shall be fully responsible to the City for the acts or omissions of the Contractor’s Subcontractors and of the persons either directly or indirectly employed by the Contractor. Nothing contained in the Contract Documents shall create any contractual relationship between any Subcontractor and the City. If a legal action, including arbitration and litigation, against the City is initiated by a Subcontractor or Supplier, the Contractor shall reimburse the City for the amount of legal, engineering and all other expenses incurred by the City in defending itself in said action. (c) The City and the Engineer reserve the right to approve all Subcontractors.
Such approval shall be a consideration to the awarding of the Contract and unless notification to the contrary is given to the Contractor prior to the signing of the Contract, the list of Subcontractors which is submitted with the Contractor’s proposal will be deemed to be acceptable. Contractor shall not, without the written consent of the City, subcontract the whole of the Work.
3.08. COOPERATION OF CONTRACTORS
(a) Should construction be under way by other forces or by other contractors within or adjacent to the limits of the Work specified or should work of any other nature be under way by other forces within or adjacent to said limits, the Contractor shall cooperate with all such other contractors or other forces to the end that any delay or hindrance to their work will be avoided. The right is reserve d to perform other or additional work at or near the site (including material sources) at any time, by the use of other forces. 208
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(b) When two or more contractors are employed on related or adjacent work, each shall conduct its operation in such a manner as not to cause any unnecessary delay or hindrance to the other. Each Contractor shall be responsible to the other for all damage to work, to persons or property caused to the other by its operations, and for loss caused the other due to unnecessary delays or failure to finish the work within the time specified for completion.
3.09. SUPERINTENDENCE
(a) The Contractor shall designate in writing, before starting work, an individual as authorized representative who shall have the authority to represent and act for the Contractor.
This authorized representative shall be present at the Site of the Work at all times while work is actually in progress on the Contract. When the Work is not in progress and during periods when the Work is suspended, arrangements acceptable to the Engineer shall be made for any emergency work, which may be required.
(b) The Contractor is solely responsible, at all times, for the superintendence of the Work and for its safety and progress.
(c) Whenever the Contractor or its authorized representative is not present on any particular part of the Work where it may be desired to give direction, orders will be given by the Engineer, which shall be received and obeyed by the superintendent or foreman who may have charge of the particular work in reference to which the orders are given. (d) Any order given by the Engineer, not otherwise required by the Specifications to be in writing, will on request of the Contractor, be given or confirmed by the Engineer in writing.
3.10. INSPECTION OF WORK
(a) Unless otherwise provided, all equipment, materials, and work shall be subject to inspection and testing by the Engineer. The Engineer will observe the progress and quality of the Work and determine, in general, if the Work is proceeding in accordance with the intent of the Contract Documents. The Engineer shall not be required to make comprehensive or continuous inspections to check the quality of the Work. The Engineer shall not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work. Visits and observations made by the Engineer shall not relieve the Contractor of Contractor’s obligation to conduct comprehensive inspections of the Work and to furnish proper materials, labor, equipment and tools, and perform acceptable work, and to provide adequate safety precautions, in conformance with the intent of the Contract.
(b) Whenever the Contractor varies the period during which work is carried on each day, the Contractor shall give due notice to the Engineer so that proper inspection may be provided. Any work done in the absence of the Engineer shall be subject to rejection. Proper facilities for safe access for inspection to all parts of the Work shall at all times be maintained for the necessary use of the Engineer and other agents of the City, and agents of the federal, state, or local governments at all reasonable hours for inspection by such agencies to ascertain compliance with laws and regulations.
(c) One or more inspectors may be assigned to observe the Work by the Engineer and to act in matters of construction under this Contract. It is understood that inspectors shall have the power to issue instructions and make decisions within the limitations of the authority of the Engineer. Such inspection shall not relieve the Contractor of the Contractor’s obligation to conduct comprehensive inspections of the Work, to furnish proper materials, labor, equipment 209
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and tools, and perform acceptable work, and to provide adequate safety precautions in conformance with the intent of the Contract.
(d) The Engineer and the Engineer’s representatives shall at all times have access to the Work wherever it is in preparation or progress, and the Contractor shall provide safe and convenient facilities for such access and for inspection. If the Specifications, the Engineer’s instructions, laws, ordinances, or any public authority require any material, equipment or work to be specifically tested or approved, the Contractor shall give the Engineer timely notice of its readiness for inspection, and if the inspection is by an authority other than the City, of the time fixed for inspection. Inspections by the Engineer will be made promptly and, where practicable, at the source of supply.
(e) Work performed without inspection may be required to be removed and replaced under proper inspection. In such instances, the entire cost of removal and replacing, including the cost of City-furnished materials used in the Work, shall be borne by the Contractor, regardless of whether or not the Work exposed is found to be defective. Examination of questioned work, other than that installed without inspection, may be ordered by the Engineer and, if so ordered, the Work must be uncovered by the Contractor. If such work is found to be in accordance with the Contract Documents, the City will pay the cost of re-examination and replacement. If such work is found to be not in accordance with the Contract Documents, the Contractor shall pay such cost, unless the Contractor can show that the defect in the Work was caused by another Contractor , and in that event the City will pay such costs. (f) The inspection of the Work shall not relieve the Contractor of the Contractor’s obligation to fulfill the Contract as herein prescribed, or in any way alter the standard of performance provided by the Contractor, and defective work shall be made good and unusable materials may be rejected, notwithstanding that such work and materials have been previously overlooked by the Engineer and accepted or estimated for payment. If the Work or any part thereof shall be found defective, the Contractor shall, within ten (10) calendar days, make good such defect in a manner satisfactory to the Engineer. If the Contractor fails to make ordered repairs of defective work or to remove the condemned materials from the Work within ten (10) calendar days after written direction by the Engineer, the City may make the ordered repairs, or remove the condemned materials, and deduct the cost thereof from any monies due the Contractor.
(g) The Contractor shall furnish promptly, without additional charge, all facilities, labor and materials reasonably needed by the Engineer for performing all inspection and tests.
Contractor shall be charged with any additional cost of inspection when material and workmanship are not ready at the time specified by the Contractor for its inspection. (h) Where any part of the Work is being done under an encroachment permit or building permit, or is subject to federal, state, county or city codes, laws, ordinances, rules or regulations, representatives of the government agency shall have full access to the Work and shall be allowed to make any inspection or tests in accordance with such permits, codes, laws, ordinances, rules, or regulations. If advance notice of the readiness of the Work for inspection by the governing agency is required, the Contractor shall furnish such notice to the appropriate agency.
(i) The Engineer may inspect the production of material, or the manufacture of products at the source of supply. Plant inspection, however, will not be undertaken until the Engineer is assured of the cooperation and assistance of both the Contractor and the material producer. The Engineer or the Engineer’s authorized representative shall have free entry at all times to such parts of the plant as concerns the manufacture or production of the materials. 210
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Adequate facilities shall be furnished free of charge to make the necessary inspection. The City assumes no obligation to inspect materials at the source of supply.
3.11. TESTS
The Contractor shall perform, at the Contractor’s own expense, all tests specified or required by the Specifications. The Engineer may perform such tests as the Engineer deems necessary to determine the quality of work or compliance with Contract Documents. The Contractor shall furnish promptly without additional charge all facilities, labor, and material reasonably required for performing safe and convenient tests as may be required by the Engineer. All tests by the Engineer will be performed in such a manner as will not unnecessarily delay the Work. The Contractor shall not be required to reimburse the City for tests performed by the City or Engineer. If samples of materials are submitted which fail to pass the specified tests, the Contractor shall pay for all subsequent tests.
3.12. REMOVAL OF REJECTED AND UNAUTHORIZED WORK AND MATERIALS (a) All work or materials, which have been rejected, shall be remedied, or removed and replaced by the Contractor in an acceptable manner and no compensation shall be allowed the Contractor for such removal, replacement, or remedial work. (b) Any work done beyond the lines and grades shown on the plans or established by the Engineer or any Extra Work done without written authority will be considered as unauthorized work and will not be paid for. Upon order of the Engineer, unauthorized work shall be remedied, removed, or replaced at the Contractor’s expense. (c) Upon failure of the Contractor to comply with any order of the Engineer made under this section, the City may cause rejected or unauthorized work to be remedied, removed, or replaced, and may deduct the costs therefore from any monies due or to become due the Contractor.
3.13. DEDUCTIONS FOR UNCORRECTED WORK
If the Engineer deems it inexpedient to correct work damaged or not done in accordance with the Contract, an equitable deduction from the Contract price shall be made therefore, and such sum may be withheld by the City from Contractor’s payment.
3.14. EQUIPMENT AND PLANTS
(a) Only equipment and plants suitable to produce the quality of work and materials required will be permitted to operate on the Project.
(b) Plants will be designed and constructed in accordance with general practice for such equipment and shall be of sufficient capacity to insure the production of sufficient material to carry the Work to completion within the time limit.
(c) The Contractor shall provide adequate and suitable equipment and plants to meet the above requirements, and when ordered by the Engineer, shall remove unsuitable equipment from the Work and discontinue the operation of unsatisfactory plants. Contractor shall, upon request of the Engineer, submit one or more lists identifying, by make, model number, Contractor ‘s identification number and empty gross weight, each piece of operable equipment used for the Work. Contractor shall, upon request of the Engineer, submit 211
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60 Working Days
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documentation establishing that any measuring device used for the Work has been tested and properly approved under California Test 109.
(d) In the case of termination of this Contract before its completion for any cause whatsoever, the Contractor, if notified to do so by the City, shall promptly remove any part or all of its equipment and supplies from the property of the City. If the Contractor fails to do so, the City shall have the right to remove such equipment and supplies at the expense of the Contractor.
3.15. CHARACTER OF WORKER
If any Subcontractor, or person employed by the Contractor or any Subcontractor fails or refuses to carry out the directions of the Engineer or appears to the Engineer to be incompetent or to act in a disorderly or improper manner, said person shall be removed from the Project immediately on the requisition of the Engineer. That person shall not again be employed on the Work. Such discharge shall not be the basis for any claim for compensation or damages against the City, or any of its officers or agents.
3.16. SEPARATE CONTRACTS
(a) The City reserves the right to let other contracts in connection with this Work.
The Contractor shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work, and shall properly connect and coordinate Contractor’s work with the other Contractor ‘s work. (b) If any part of the Contractor’s work depends on proper execution or results upon the Work of any other Contractor , the Contractor shall inspect and promptly report to the Engineer any defects in such work that render it unsuitable for such proper execution and results. The Contractor’s failure to inspect and report shall constitute an Acceptance of the other Contractor ‘s work as fit and proper for the reception of the Contractor’s work, except as to defects which may develop in the other Contractor ‘s work after the execution of the Contractor’s work.
(c) To insure the proper execution of Contractor’s subsequent work, the Contractor shall measure work already in place and shall at once report to the Engineer any discrepancy between the executed work and the Drawings.
3.17. ASSIGNMENT
The Contractor shall not assign the Contract or sublet it as a whole or in part without the written consent of the City, nor shall the Contractor assign any monies due, or to become due to the Contractor hereafter without the prior written consent of the City.
3.18. USE OF COMPLETED PORTIONS, RIGHT TO OPERATE UNSATISFACTORY
EQUIPMENT OR FACILITIES
(a) The City may, at any time, and from time to time, during the performance of the Work, enter the Work Site for the purpose of installing any necessary work by City labor or other contracts, and for other purpose in connection with the installation of facilities. In doing so, the City shall endeavor not to interfere with the Contractor and the Contractor shall not interfere with other work being done by or on behalf of the City.
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(b) If, prior to completion and final Acceptance of all the Work, the City takes possession of any structure or facility (whether completed or otherwise) comprising a portion of the Work with the intent to retain possession thereof (as distinguished from temporary possession contemplating the return to the Contractor), then, while the City is in possession of the same, the Contractor shall be relieved of liability for loss or damage to such structure other than that resulting from the Contractor’s fault or negligence. Such taking of possession by the City shall not relieve the Contractor from any provisions of this Contract regarding such structure, other than to the extent specified in the preceding sentence, nor shall such taking constitute a final Acceptance of such structure or facility. (c) If, following installation of any equipment or facilities furnished by the Contractor, defects requiring correction by the Contractor are found, the City shall have the right to operate such unsatisfactory equipment or facilities and make reasonable use thereof until the equipment or facilities can be shut down for correction of defects without injury to the City.
3.19. LANDS FOR WORK, RIGHT-OF-WAY CONSTRUCTION ROADS
(a) The City will provide the lands, easements, right-of-way, and/or encroachment permits necessary or other rights to enter and work on lands necessary for the performance of the Work. Other permits and licenses are addressed by Section 3.04. Should the Contractor find it advantageous to use any additional land for any purpose whatever, the Contractor shall provide for the use of such land at its expense. The Engineer shall be furnished with a copy of written agreements or otherwise be notified in writing of additional working space which is acquired. Nothing herein contained and nothing marked on the Plans shall be interpreted as giving the Contractor exclusive occupancy of the territory provided by the City. When two or more contracts are being executed at one time on the same or adjacent land in such a manner that work on one contract may interfere with that on another, the Engineer shall decide which Contractor shall cease work, and which shall continue, or whether the work on both contracts shall progress at the same time and in what manner, and the decision of the Engineer shall be final and binding. When the territory of one contract is the necessary or convenient means of access for the performance of another contract, such privilege of access or any other reasonable privilege may be granted by the Engineer to the Contractor so desiring, to the extent, amount, in the manner, and at the time permitted. No such decision as to the method or time of conducting the Work or the use of territory shall be the basis of any claim for delay or damage.
(b) Lands, easements or rights-of-way to be furnished by the City for construction operations will be specifically shown on the Plans.
(c) The Contractor shall construct and maintain all roads necessary to reach the various parts of the Work and for the transportation thereto of construction material and personnel. The cost of constructing and maintaining such roads shall be borne by the Contractor.
3.20. CITY’S RIGHT TO AUDIT AND PRESERVATION OF RECORDS (a) The Contractor shall maintain books, records and accounts of all costs in accordance with generally accepted accounting principles and practices. The City and its authorized representatives shall have the right to audit the books, records and accounts of the Contractor under any of the following conditions:
(1) The Contract is terminated for any reason in accordance with the provisions of the Contract Documents in order to arrive at equitable termination costs; 213
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(2) In the event of a disagreement between the Contractor and the City over the amount due the Contractor under the terms of the Contract; (3) To check or substantiate any amounts invoiced or paid which are required to reflect the costs of the Contractor, or the Contractor’s efficiency or effectiveness under this Contract or in connection with extras, changes, claims, additions, backcharges, or others, as may be provided for in this Contract;
(4) If it becomes necessary to determine the City’s rights and the Contractor’s obligations under the Contract or to ascertain facts relative to any claim against the Contractor which may result in a charge against the City; (5) To determine any difference in cost occasioned by a permissible substitution;
(6) And/or for any other reason in the City’s sole judgment. (b) Contractor shall provide the City (or its representatives), unlimited, reasonable access during working hours to the Contractor’s books and records. The City’s audit rights shall be liberally construed in the City’s favor.
(c) The Contractor, from the effective date of final payment or termination hereunder, shall preserve and make available to the City for a period of three (3) years thereafter, at all reasonable times at the office of the Contractor (but without any charge to the City), all its books, records, documents, photographs, micro-photographs, and other evidence bearing on the costs and expenses of the Contractor under this Contract and relating to the Work hereunder.
(d) The City will make all payments required of it under this Contract subject to audit, under circumstances stated above, which audit may be performed at the City’s option, either during the Contract time period or during the record retention time period. Regardless of authorization, approval or acceptance, signatures or letters which are given by the City and are part of the City’s control systems or are requested by the Contractor, the payments made under this Contract shall not constitute a waiver or agreement by the City that it accepts as correct the billings, invoices or other charges on which the payments are based. If the City’s audit produces a claim against the Contractor, the City may pursue all its legal remedies even though it has made all or part of the payments required by this Contract. (e) If any audit by the City or its representative discloses an underpayment by the City pursuant to the terms of the Contract Documents, the City shall have the duty to pay any amount found by the audit to be owed to the Contractor. If such audit discloses an overpayment, the Contractor shall have the obligation to reimburse the City for the amount of the overpayment. The City’s right to claim reimbursement from the Contractor of any overpayment shall not be terminated or waived until three years after the completion of the City’s audit or upon the termination of audit rights under subparagraph 3.20(f), whichever date is later. The obligation of the Contractor to make reimbursements hereunder shall not terminate except as provided by law.
(f) The City’s right to audit and the preservation of records shall terminate at the end of three (3) years after the date final payment is made or termination of the Contract. The Contractor shall include this “Right to Audit and Preservation of Records” clause in all subcontracts issued by it and it shall require the same to be inserted by all lower tier Subcontractors in their subcontracts, for any portion of the work. Should Contractor fail to 214
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include this clause in any such contract or lower tier contract, or otherwise fail to insure the City’s rights hereunder, Contractor shall be liable to the City for all costs, expenses and attorney’s fees which the City may have to incur obtaining or attempting to obtain an audit or inspection of or the restoration of records which otherwise would have been available to the City from said persons under this clause. Such audit may be conducted by the City or its authorized representative.
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SECTION 4
CONTROL OF MATERIALS
4.01. MATERIALS
(a) Unless otherwise specifically stated in the Specifications, the Contractor shall furnish all materials necessary for the execution and completion of the Work. Unless otherwise specified, all materials shall be new and shall be manufactured, handled, and installed in a workmanlike manner to insure completion of the Work in accordance with the Contract Documents. The Contractor shall, upon request of the Engineer, furnish satisfactory evidence as to the kind and quality of materials.
(b) Where materials are to be furnished by the City, the type, size, quantity and location at which they are available will be stated in the Contract Documents. (c) Manufacturers’ warranties, guarantees, instruction sheets and parts listed, which are furnished with certain articles or materials incorporated in the Work, shall be delivered to the Engineer before Acceptance of the Contract.
4.02. STORAGE OF MATERIALS
Articles or materials to be incorporated in the Work shall be stored in such a manner as to insure the preservation of their quality and fitness for the Work, and to facilitate inspection.
4.03. TRADE NAMES AND ALTERNATIVES
Whenever a material, article, system or sub-system is specified or described by using the name and/or model of a proprietary product or trademark or the name of the manufacturer or vendor, the specified item shall establish the type, function, and quality required. It shall be understood that the words “or approved equivalent” are implied whether or not they follow the proprietary enumeration.
The City reserves the right to determine when proprietary items have no equivalency, and when uniformity of operations, interchangeability of parts, standard parts inventory, etc., are in the City’s best interest.
Requests for review of equivalency will be considered upon submission of sufficient information as described herein, to allow complete review. Such requests shall not be accepted from anyone other than the Contractor. Such submission must be made prior to purchase, fabrication, manufacture or use of the equivalent items under consideration. (a) Contractor’s Risk. If the Contractor includes in its Bid or later proposes any material, product or equipment that the Contractor considers equivalent to that specified, the Contractor assumes all risk of any sort associated with Acceptance or rejection of proposed equivalent items. The Contractor shall have no right to make claim based upon Contractor’s Bid that includes a proposed equivalent item(s) of work which resulted in a lower Bid amount for said item(s) or lower total bid.
(b) Submission Requirements. Each submission for equivalency review shall include:
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(1) Justification for use of the proposed equivalent item(s), including evidence, as applicable, that Contract specified material, product or equipment is unobtainable or unobtainable within an acceptable time for contract completion; (2) A description of the difference between specified item(s) and proposed equivalent item(s) and the comparative advantages and disadvantages of each; (3) All relevant data addressing each specified parameter to show equivalency;
(4) A prediction of any effects the proposed change will have on operation and maintenance costs where applicable.
(c) Equivalency. An item will be considered equivalent to the item specified if it is equal to or better in:
(1) Design and strength in all sub-parts, quality, reliability and durability, operation, maintenance and serviceability, as applicable; and (2) Specified parameters in performance in all respects for the specific function(s) indicated in the contract.
(d) Supplemental Requirements. Any tests required by the City to establish quality and performance standards shall be promptly conducted by or through the Contractor at no additional cost to the City. In addition, the Contractor shall:
(1) Submit any additional data requested by the Engineer for the equivalency review; and
(2) Satisfactorily accomplish all changes, including any Engineering associated with use of equivalent items, at no additional cost to the City. (e) Equivalency Determinations. The Engineer shall be the sole judge as to equivalency determinations. The Engineer’s decision shall be final. The Contractor shall have no right of appeal to any decision rejecting the equivalency of any item. (f) Procedure.
(1) Data substantiating a request for a substitution of “an equal” item shall be submitted prior to the Award of the Contract pursuant to Section 3400 of the latest edition of the Public Contract Code.
(2) After the Bid opening, the apparent three low bidders shall have seven (7) calendar days to provide complete substantiating data for all product, material or system substitution requests. After this seven (7)-day period, the City may award the Contract to the apparent low bidder. In no event will product, material or system substitution requests submitted after the Award of Contract be considered. Failure to submit such substantiating data will result in the automatic rejection of the proposed substitution request. The City will have thirty (30) days to review the first ten (10) proposed substitution requests. For each additional five (5) product, material or system substitution requests over and above the initial ten (10), the City will have ten (10) additional days to review the proposed substitution requests. 217
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(3) Each substitution request may include one alternate substitution. All alternate substitutions shall be submitted concurrently with substitution requests. Upon review by the City, proposed substitutions shall be returned to the Bidder marked either “accepted” or “rejected”. The City shall only review alternative substitution requests if the primary substitution request is rejected. If a substitution request, and its alternative, is returned “rejected”, no further substitution requests for that product, material or system will be allowed and the Bidder will provide the specified product, material or system.
(4) If, after all substitution requests have been processed, substitution requests by the apparent low Bidder are rejected by the City, the apparent low Bidder may elect not to execute the Contract. Under no circumstances, will bidders be allowed to alter their Bid Price as originally submitted. This election shall be made in writing no later than five (5) days following the receipt of the reviewed substitution requests. An election by the Bidder not to execute the Contract will result in the forfeiture of the bidder’s Bid bond. If the apparent low Bidder elects not to continue, and the second low Bidder is awarded the Contract, the second low Bidder may then elect not to execute the Contract for the contract price shown on its Bid Form. Subsequent bidders shall have five (5) days following the receipt of the reviewed substitution requests and the Notice of Award in which to make their election. This process shall continue until one Bidder decides to continue with the Award of Contract process. (5) The City may award the Contract at any time after the time for submitting substitution requests expires pursuant to subpart (2), above. In the event the Contract is awarded prior to acceptance/rejection of substitution requests, all outstanding substitution requests shall be reviewed by the City as provided above. If the apparent low Bidder elects not to execute the Contract, the Award of Contract to the apparent low Bidder shall be rescinded and the Contract awarded to the next apparent low bidder. All bidders electing not to execute the Contract expressly agree that the City shall incur no liability for such rescissions. As provided herein, “apparent low bidder” means the lowest responsive and responsible bidder.
4.04. CERTIFICATES OF COMPLIANCE
(a) A Certificate of Compliance shall be furnished prior to the use of any materials for which the Technical Specifications require that such a certificate be furnished. In addition, when so authorized in the Specifications, the Engineer may permit the use of certain materials or assemblies prior to sampling and testing if accompanied by a Certificate of Compliance. The Certificate of Compliance shall be signed by the manufacturer of the material or the manufacturer of assembled materials and shall state that the materials involved comply in all respects with the requirements of the Contract. A Certificate of Compliance shall be furnished with each lot of material delivered to the Work and the lot so certified shall be clearly identified in the Certificate.
(b) All materials used on the basis of a Certificate of Compliance may be sampled and tested at any time. The fact that material is used on the basis of a Certificate of Compliance shall not relieve the Contractor of responsibility for incorporating material in the Work which conforms to the requirements of the Contract Documents and any such material not conforming to such requirements will be subject to rejection whether in place or not. (c) The City reserves the right to refuse to permit the use of material on the basis of a Certificate of Compliance.
(d) The form of the Certificate of Compliance and its disposition shall be as directed by the Engineer.
218
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
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SECTION 5
LEGAL RELATIONS AND RESPONSIBILITY
5.01. COMPLIANCE WITH LAWS – PERMITS, REGULATIONS, TAXES The Contractor is an independent Contractor and shall, at the Contractor’s sole cost and expense, comply with all laws, rules, ordinances and regulations of all governing bodies having jurisdiction over the Work, obtain all necessary permits and licenses therefore, pay all manufacturers’ taxes, sales taxes, use taxes, processing taxes, and all federal and state taxes, insurance and contributions for social security and unemployment which are measured by wages, salaries or any remuneration paid to Contractor’s employees, whether levied under existing or subsequently enacted laws, rules or regulations. The Contractor shall also pay all property tax assessments on materials or equipment used until Acceptance by the City. If any discrepancy or inconsistency is discovered in the Plans or Specifications, or in this Contract in relation to any such law, rule, ordinance, regulation, order or decree, the Contractor shall forthwith report the same to the Engineer in writing. The Contractor shall also protect, defend and indemnify the City, the Engineer, and all of the City’s officers, agents, and servants against any claim or liability arising from or based upon the violation of any such law, rule, ordinance, regulation, order or decree, whether by the Contractor or its employees. Particular attention is called to the following:
(a) Without limitation, materials furnished and performance by Contractor hereunder shall comply with Safety Orders of the Division of Industrial Safety, State of California, Federal Safety regulations of the Bureau of Labor, Department of Labor; and any other applicable Federal regulations.
(b) The Contractor, upon request shall furnish evidence satisfactory to the City and Engineer that any or all of the foregoing obligations have been or are being fulfilled. The Contractor warrants to the City that it is licensed by all applicable governmental bodies to perform this Contract and will remain so licensed throughout the progress of the Work, and that Contractor has, and will have, throughout the progress of the Work, the necessary experience, skill and financial resources to enable the Contractor to perform this Contract. (c) Contractor is required to insure that material safety data sheets (MSDSs) for any material requiring a material safety data sheet pursuant to any federal or state law are available in a readily accessible place on the Project premises. Contractor is also required to insure:
(1) The proper labeling of any substance brought onto the Project premise by Contractor or any Subcontractors and
(2) That the person(s) working with the material, or within the general area of the material, are appropriately informed about the hazards of the substance and follow proper handling and protection procedures.
(d) Contractor is required to comply with the provisions of California Health and Safety Code section 25249.5, et seq. (Prop. 65), which requires the posting and giving of notice to persons who may be exposed to any chemical known to the State of California to cause cancer.
219
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
5.02. PREVAILING WAGE
(a) The Contractor shall forfeit as penalty to the City the amount specified by law for each calendar day or portion thereof for each worker (whether employed by the Contractor or any Subcontractor) paid less than the stipulated prevailing rates for any work done under the Contract in violation of the provisions of the Labor Code and in particular, Section 1775 which is incorporated herein by reference. Copies of the current schedules for prevailing wages are on file in the City’s office, and the contents of those schedules are included herein as if set forth in full.
(b) The City will not recognize any claims for additional compensation because of the payment of the wages set forth in these General Conditions. The possibility of wage increases is one of the elements to be considered by the Contractor in determining its proposal, and will not under any circumstances, other than delays caused by the City, the Engineer, or the City’s agents, be considered as the basis of a claim against the City. (c) The Contractor agrees to follow the instructions of the City’s labor compliance officer until notified otherwise in writing by the City. (d) The Director of the Department of Industrial Relations of the State of California has determined the general prevailing rate of wages of per diem wages in the locality in which the work is to be performed for each craft or type of worker needed to execute the Contract.
Copies of the applicable prevailing wage rate determinations are made available to the Contractor and Subcontractor at the Pre-Job Conference Meeting. The Contractor shall post a copy of this document at the prevailing wages at each job site, along with a CMU work place poster, printed on 8 1/2” X 11” paper or larger, in accordance with California Code of Regulations, Title 8, section 16451(d).
5.03. PREVAILING WAGE RECORDS
(a) The Work is subject to monitoring and enforcement of prevailing wage requirements by the Department of Industrial Relations (“DIR”) and the following provisions will apply:
(1) Contractor and Subcontractors shall maintain and furnish to the DIR, a certified copy of each weekly payroll (but no less often than monthly), with a statement of compliance signed under penalty of perjury. Such certified payroll reports in PDF form shall be transmitted electronically to the DIR after first registering at http://www.dir.ca.gov/PublicWorks/Certified-Payroll-Reporting.html. The provisions of Labor Code section 1776 are incorporated herein by reference.
(2) The CITY and the DIR shall review, including by way of job site inspections, and, if appropriate, audit payroll records to verify compliance with the public works requirements of the Labor Code. The DIR will notify the Contractor or Subcontractor(s), as appropriate) of any noncompliance, in order for all such Contractor or Subcontractor(s) to correct the noncompliance.
(3) The City shall withhold payments when payroll records are delinquent or inadequate.
(4) The City shall withhold payments equal to the amount of underpayment and applicable penalties when, after investigation, it is established that underpayment has occurred.
220
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
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(5) The City shall cooperate with the DIR and DLSE in any investigation of suspected violations of prevailing wage requirements.
(6) As directed by the Labor Commissioner, the City shall withhold Contract payments equal to the payments due or estimated to be due to the Contractor or Subcontractors whose payroll records are delinquent or inadequate, plus any additional amount that the Labor Commissioner has reasonable cause to believe may be needed to cover a back wage and penalty assessment against such Contractor or Subcontractors. The Contractor shall be required to withhold payments to a Subcontractor whose payroll records are delinquent or inadequate until the Labor Commissioner provides notice that the Subcontractor has cured such delinquency or deficiency.
(7) These payroll records shall be made available to the City’s representatives. These records shall be maintained during the course of the Work. The Contractor and all Subcontractors shall make the certified payroll records available for inspection by City representatives upon request and shall permit such representatives to interview employees during the work hours on the job site. (8) The Contractor shall be held entirely responsible for the prompt resolution of all non-compliances with the prevailing wage laws, including those pertaining to all Subcontractors and any lower tier Subcontractors.
(9) The Project will not be accepted as complete by the City nor final payment made until all items of non-compliance are corrected or until appropriate provision is made by depository agreement to assure the ultimate resolution and payment of any back wages that may be found due.
(b) A pre-construction conference shall be conducted before commencement of the Work with the Contractor and Subcontractors at which time the prevailing wage requirements will be reviewed and agreed to by all parties.
5.04. LABOR DISCRIMINATION
Attention is directed to Section 1735 of the Labor Code, which reads as follows: “A Contractor shall not discriminate in the employment of persons upon public works on any basis listed in subdivision (a) of Section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, except as otherwise provided in Section 12940 of the Government Code. Every Contractor for public works who violates this section is subject to all the penalties imposed for a violation of this chapter.”
5.05. EIGHT-HOUR DAY LIMITATION
(a) In accordance with the provisions of the Labor Code, and in particular, Sections 1810 to 1815 thereof, inclusive, eight hours labor shall constitute a day’s work, and no worker, in the employ of said Contractor, or any Subcontractor, doing or contracting to do any part of the work contemplated by this Contract, shall be required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of those provisions; provided that subject to Labor Code section 1815, a worker may perform work in excess of either eight (8) hours per day or forty (40) hours during any one week upon compensation for all hours worked in excess of eight (8) hours per day or forty (40) hours during any one week at not less than one and one-half times the basic rate of pay. 221
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(b) The Contractor and each Subcontractor shall also keep an accurate record showing the names and actual hours worked of all workers employed by them in connection with the Work. This record shall be open at all reasonable hours to the inspection of the City, State and Federal officers and agents. It is hereby further agreed that, the Contractor shall forfeit as a penalty to the City the sum of twenty-five dollars ($25.00) for each worker employed in the performance of this Contract by the Contractor or by any of its Subcontractors for each calendar day during which such worker is required or permitted to labor more than eight (8) hours in and one calendar day and forty (40) hours in any one calendar week in violation of Sections 1810 through 1815.
5.06. COMPLIANCE WITH STATE REQUIREMENTS FOR EMPLOYMENT OF
APPRENTICES
The Contractor’s attention is directed to Section 1777.5 of the Labor Code. Provisions of said section pertaining to employment of registered apprentices are hereby incorporated by reference into these Specifications. As applicable, the Contractor or any Subcontractor employed by the Contractor in the performance of the Work shall take such actions as necessary to comply with the provisions of Section 1777.5.
5.07. UNDERGROUND UTILITIES
(a) In accordance with Government Code section 4215, the Contractor shall be compensated for the costs of locating, repairing damage not due to the failure of the Contractor to exercise reasonable care, and removing or relocating existing main or trunkline utility facilities which are not indicated in the Contract Plans and Specifications with reasonable accuracy, and for the equipment on the Project necessarily idled during such work, provided that the Contractor shall first notify the Engineer before commencing work on locating, repairing damage to, removing or relocating such utilities. Contractor shall not be assessed liquidated damages for delays in completing the Work when such delays are due to the failure of either the City or the owner of the utility to provide for removal or relocation of such utility facilities. (b) The Contractor shall take all precautions necessary to protect the existing utilities within the project area. Any utilities damaged due to the Contractor’s negligence shall be repaired or restored to their original condition at the Contractor’s sole expense. Existing utilities shall be kept in service during the life of the Contract unless relocation, reconstruction, abandonment, or outage is specifically authorized by the Engineer. (c) The Contractor shall provide and maintain such temporary supports as may be necessary to preserve the functions of the various utility systems. No wires, conduits and/or pipes shall be removed until all services therein have been made inoperable. (d) The Contractor shall notify the Engineer and appropriate Regional Notification Center for operators of subsurface installations at least two (2) working days, but not more than fourteen (14) calendar days, prior to performing excavation or other work close to any underground pipeline, conduit, duct, wire and other structures. The Contractor shall provide updated information to the Notification Center as required and on a periodic basis. The Regional Notification Center includes but is not limited to the Underground Service Alert-Northern California (USA) at 1-800-642-2444.
(e) The Contractor is advised that the State of California does not participate in USA.
The Contractor is required to notify Caltrans Permits Branch (916) 322-1297 for the location of State facilities.
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ACCO Engineered Systems, Inc
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60 Working Days
Updated 2/17/23
(f) The Contractor shall not proceed with work until utility facilities involved have been located, disconnected, or otherwise adjusted by utility representatives. (g) The City Utility Maintenance Division will make repairs to all water service laterals and water mains damaged by the Contractor during the course of construction unless directed otherwise by the Engineer. Except as otherwise provided in this section, the Contractor shall be required to pay all labor, material and equipment costs incurred by the City Utilities Maintenance Division for the repairs made to damaged water service laterals and water mains.
The City will bill the Contractor for the repairs and the bills will be paid by the Contractor prior to either the next monthly progress payment or prior to the final payment, whichever comes first.
The Contractor shall provide to the Engineer proof of payment of the repair bills prior to the issuance of either the monthly progress payment or final payment. The current labor and equipment rates for the City Utility Maintenance Division will be made available to the Contractor at the preconstruction conference. The City shall have the right to deduct the total amount of any unpaid City repair bill from the money due or to become due the Contractor.
5.08. WATER POLLUTION
The Contractor shall exercise every reasonable precaution to protect streams, lakes, reservoirs, and canals from pollution with fuels, oils, bitumens, calcium chloride, and other harmful materials and shall conduct and schedule Contractor’s operations so as to avoid or minimize muddying and silting of said streams, lakes, reservoirs, and canals. Care shall be exercised to preserve vegetation beyond the limits of construction. The Contractor shall comply with Section 5650 of the California Fish and Game Code and all other applicable statutes and regulations relating to the prevention and abatement of water pollution.
5.09. PAYMENT OF TAXES
The Contract prices paid for the Work shall include full compensation for all taxes, which the Contractor is required to pay, whether imposed by federal, state, or local governments.
5.10. PERMITS AND LICENSES
The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the lawful prosecution of the work. All permits and licenses shall be obtained in sufficient time to prevent delays to the Work. The Contractor shall, at a minimum, possess and maintain the licenses and permits set forth in the Contract Provisions and shall ensure that its employees possess and maintain any certifications, licenses or permits required to perform work under this Contract, including but not limited to state certifications required by the California Department of Industrial Relations.
5.11. PATENTS
The Contractor shall assume all costs arising from the use of patented materials, equipment, devices, or processes used on or incorporated into the Work, and agrees to indemnify, defend and save harmless the City, the Engineer, and their duly authorized representatives, from all suits at law, or actions of every nature for, or on account of, the use of any patented materials, equipment, devices, or processes.
5.12. PUBLIC CONVENIENCE
This section defines the Contractor’s responsibility with regard to convenience of the public and public traffic in connection with its operations. 223
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(a) The Contractor shall so conduct its operations as to offer the least possible obstruction and inconvenience to the public. The Contractor shall have under construction no greater length or amount of work than can be properly prosecuted with due regard to the rights of the public.
(b) Unless otherwise provided in the Contract Documents, all public traffic shall be permitted to pass through the Work with as little inconvenience and delay as possible. In order to expedite the passage of public traffic through or around the work, the Contractor shall install as appropriate signs, lights, flares, barricades, and other facilities for the sole convenience and direction of public traffic. Also, where directed by the Engineer, the Contractor shall provide and station competent flagpersons whose sole duties shall consist of directing the movement of public traffic through or around the Work. The cost of furnishing and installing such signs, lights, flares, barricades, and other facilities, and the cost of providing and stationing such flagpersons, all for the convenience and direction of public traffic, will be considered as included in the Contract price and no additional compensation will be allowed. (c) Spillage resulting from hauling operations along or across any publicly traveled way shall be removed immediately by the Contractor at its expense. (d) Construction operations shall be conducted in such a manner as to cause as little inconvenience as possible to abutting property owners.
(e) Convenient access to driveways, houses and buildings along the line of the work shall be maintained and temporary approaches to crossings or intersecting highways shall be provided and kept in good condition. When the abutting property owner’s access across the right-of-way line is to be eliminated, or to be replaced under the Contract by other access facilities, the existing access shall not be closed until the replacement access facilities are usable.
(f) Water shall be supplied if ordered by the Engineer for the alleviation or prevention of dust nuisance as provided in the Contract Documents. Any water obtained from a fire hydrant within the City of West Sacramento shall be subject to a fire hydrant permit issued by the Engineering Division of the City of West Sacramento. (g) Flagpersons and guards, while assigned to traffic control, shall perform their duties and shall be provided with the necessary equipment in accordance with the current “Instructions to Flagmen” of the California Department of Transportation. The equipment shall be furnished and kept clean and in good repair by the Contractor at its expense. (h) All traffic control shall be in accordance with California Manual on Uniform Traffic Control Devices (California MUTCD), Part 6 and this Section 5.12. (1) Traffic Control Plans. Traffic Control Plans shall be developed for the project to assure that adequate consideration is given to the safety and convenience of motorists, pedestrians, and workers during construction. The Traffic Control Plans shall include, but not be limited to, signing, pavement markings, construction scheduling, permanent barricades, methods and devices for delineation and channelization, placement and maintenance of devices, roadway lighting, traffic regulations, surveillance and inspection. The Traffic Control Plans shall be approved by the Engineer a minimum of two (2) working days prior to start of any work. Non-compliance with any stipulation of this section will be justification for the City to stop work.
224
ACCO Engineered Systems, Inc
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60 Working Days
Updated 2/17/23
(2) Traffic Control Devices and Procedures. Traffic control devices and procedures shall conform to the California Manual on Uniform Traffic Control Devices (California MUTCD), Part 6 and this Section 5.12. Non-compliance with any stipulation of this section will be justification for the City to stop work.
(3) Elimination of On-Street Parking. The Contractor shall place notification for the elimination of on-street parking, if required, at least forty-eight (48) hours, but not more than seventy-two (72) hours prior to the start of work. The notification shall include the Contractor’s phone number, the City of West Sacramento Community Development Department phone number (916) 617-4645, and the phrase “VEHICLES WILL BE TOWED PURSUANT TO CVC SECTION 22651 (L)”. This notice shall be affixed to a Type II barricade that is placed in the lane of the road (max. 200 ft. spacing) used for on-street parking. No other location or method of placement is acceptable. The notification shall be in a form approved by the Engineer. Non-compliance with any stipulation of this section will be justification for the City to stop work.
(4) Lane Closures. All lane closures shall be included in the Traffic Control Plans, and shall both conform to Section 5.12(h)(2) above, and be approved by the Engineer.
Total road closures will not be allowed for the Project. (5) Measurement and Payment. Unless specifically shown as an item of work on the proposal form, all traffic control shall be considered included in other items of work and no additional compensation will be made for labor, materials or equipment needed.
5.13. CONTINUOUS OPERABILITY OF FACILITIES
Absent written permission by the Engineer, the continuous operation of all existing facilities is required and shall in no way be affected by the Work.
5.14. SAFETY
(a) General
(1) The Contractor shall be solely and completely responsible for the conditions of the job Site, including safety of all persons and property during performance of the Work. This requirement shall apply continuously and not be limited to normal working hours.
Safety provisions shall conform to all applicable federal, state, and local laws, ordinances, and codes, and to the rules and regulations established by the California Division of Industrial Safety, and to other rules of law applicable to the Work. (2) The services of the Engineer in conducting construction review of the Contractor’s performance is not intended to include review of the adequacy of the Contractor’s work methods, equipment, bracing or scaffolding or safety measures, in, on, or near the construction site, and shall not be construed as supervision of the actual construction nor make the Engineer or the City responsible for providing a safe place for the performance of work by the Contractor, Subcontractors, or suppliers; or for access, visits, use work, travel or occupancy by any person.
(3) The Contractor shall carefully instruct all personnel working in potentially hazardous work areas as to potential dangers and shall provide such necessary safety equipment and instruction as is necessary to prevent injury to personnel and damage to property. Special care shall be exercised relative to electrical work, work involving excavation and in sump pump work.
225
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(4) All work and materials shall be in strict accordance with all applicable State, Federal and local laws, rules, regulations, and codes. (5) Nothing in this Contract is to be construed to permit work not conforming to governing law. When Contract Documents differ from governing law, the Contractor shall furnish and install the higher standards called for without extra charge. All equipment furnished shall be grounded and provided with guards and protection as required by safety codes. Where vapor-tight or explosion-proof electrical installation is required by law, this shall be provided. (6) The Contractor shall submit a safety plan and/or narrative description to the Engineer prior to commencement of the Work. This safety plan and/or narrative description shall describe all first aid, safety clothing, etc. to be used at the Project Site. (b) Shoring and Trench Safety Plan
(1) Attention is directed to Section 832 of the Civil Code of the State of California relating to lateral and subjacent support, and the Contractor shall comply with this law.
(2) In accordance with Section 6705 of the State Labor Code, the Contractor shall submit to the City specific plans to show details of provisions for worker protection from caving ground. Not less than thirty (30) days before beginning excavation for any trench or trenches five feet or more in depth required under this Contract, the Contractor shall furnish to the Engineer Working Drawings of its trench safety plan. The trench safety plan Working Drawings shall be detailed plans showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from the hazard of caving ground. If such plan varies from the shoring system standards established by the Construction Safety Orders of the California Division of Industrial Safety or the Federal Safety and Health Regulations for Construction of the Occupational Safety and Health Administration, Department of Labor, the plan shall be prepared by a registered civil or structural engineer. In no event shall the Contractor use a shoring, sloping, or protective system less effective than that required by said Construction Safety Orders, or less effective than that required by said Federal Safety Standards. Submission of this plan in no way relieves the Contractor from the requirement to maintain safety in all operations performed by the Contractor or its Subcontractors.
5.15. BLASTING
Except for exceptional circumstances, blasting shall be prohibited. Accordingly, Bids should be prepared on the basis that no blasting will be permitted. Should blasting be required and expressly approved by the City, the City will issue a Change Order for blasting work.
5.16. INTOXICATING LIQUORS AND NARCOTICS
The Contractor shall not sell, permit or suffer the introduction or use of intoxicating liquors or narcotics upon or about the Site.
5.17. PROTECTION OF PERSONS AND PROPERTY
(a) The Contractor shall take whatever precautions are necessary to prevent damage to all existing improvements, including above ground and underground utilities, trees, shrubbery that is not specifically shown to be removed, fences, signs, mailboxes, survey markers and monuments, buildings, structures, the City’s property, adjacent property, and any other improvements or facilities within or adjacent to the work. If such improvements or property 226
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are injured or damaged by reason of the Contractor’s operations, they shall be replaced or restored, at the Contractor’s expense, to a condition at least as good as the condition they were in prior to the start of the Contractor’s operations.
(b) The Contractor shall adopt all practical means to minimize interference to traffic and public inconvenience, discomfort or damage. The Contractor shall protect against injury to any pipes, conduits or other structures crossing the trenching or encountered in the Work and shall be responsible for any injury done to such pipes or structures, or damage to property resulting therefrom. The Contractor shall support or replace any such structures without delay and without any additional compensation to the entire satisfaction of the Engineer. All obstructions to traffic shall be guarded by barriers illuminated at night. The Contractor shall be responsible for all damage to persons and property directly or indirectly caused by its operations and, under all circumstances, Contractor must comply with the laws and regulations of the State of California relative to safety of persons and property and the interruption of traffic and the convenience of the public within the respective jurisdictions. (c) The Contractor is cautioned that it must replace all improvements in rights-ofway and within the public streets to a condition at least equal to what existed prior to the Contractor’s entry onto the job.
(d) Type and time of construction required at any road subject to interference by the work will be determined by those authorities responsible for maintenance of said road. It shall be the responsibility of the Contractor to determine the nature and extent of all such requirements, including provision of temporary detours as required; however, the construction right-of-way obtained by the City at affected roadways will be adequate for provision of all required detours. As required at any road crossing, the Contractor shall provide all necessary flagpersons, guardrails, barricades, signals, warning signs and lighting to provide for the safety of existing roads and detours. Immediately after the need for temporary detours ceases, or when directed, the Contractor shall remove such detours and perform all necessary cleanup work, including replacement of fences, and removal of pavement. Included shall be all necessary replacement of existing roadway appurtenances, grading work, soil stabilization and dust control measures, as required and directed.
(e) The Contractor shall examine all bridges, culverts, and other structures over which it will move its materials and equipment, and before using them, Contractor shall properly strengthen such structures where necessary. The Contractor shall be responsible for any and all injury or damage to such structures caused by reason of its operations.
5.18. RESPONSIBILITY FOR REPAIR OF FACILITIES
All public or private facilities, including but not limited to, gravel surfacing at existing canals, structures, telephone cables, roadways, curbs, gutters, parking lots, private drives, levees and embankments for creeks, ponds and reservoirs disturbed during construction of the work shall be repaired and/or replaced by the Contractor to match facilities existing prior to construction. In addition, the Contractor shall be responsible for any settlement damage to such facilities or adjoining areas for a period of one year after Acceptance of such required facilities.
5.19. CITY’S REPAIR
In the event the Contractor refuses or neglects to make good any loss or damage for which it is responsible under this Contract, the City may itself or by the employment of others, make good any such loss or damage, and the cost and expense of doing so, including any reasonable engineering, legal and other consultant fees, and any costs of administrative and 227
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managerial services, shall be charged to the Contractor. Such costs and expenses may be deducted by the City from claims for payment made by the Contractor for work completed or remaining to be completed.
5.20. ANTITRUST CLAIM ASSIGNMENT
In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to this contract, the Contractor and all Subcontractors shall offer and agree to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or subcontract. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor, without further acknowledgement by the parties.
5.21. WAIVER OF RIGHT TO RESCIND FOR MATERIAL BREACH
The Contractor agrees that it can be adequately compensated by money damages for any breach of this Contract which may be committed by the City and hereby agrees that no default, act, or omission of the City or the Engineer, shall constitute a material breach of the Contract entitling the Contractor to cancel or rescind the provisions of this Contract or (unless the City shall so consent or direct in writing) to suspend or abandon performance of all or any part of the Work. The Contractor hereby waives any and all rights and remedies to which it might otherwise be or become entitled, save only its right to money damages.
5.22. CONTRACTOR’S LICENSE NOTICE
CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS’ STATE LICENSE BOARD. ANY QUESTIONS CONCERNING A CONTRACTOR MAY BE REFERRED TO:
REGISTRAR CONTRACTORS’ STATE LICENSE BOARD
9821 BUSINESS PARK DRIVE
SACRAMENTO, CALIFORNIA 95827
MAILING ADDRESS:
P.O. BOX 26000
SACRAMENTO, CALIFORNIA 95826
5.23. HISTORICAL, SCIENTIFIC AND ARCHEOLOGICAL DISCOVERIES All articles of historical or scientific value, including but not limited to coins, fossils, and articles of antiquity which may be uncovered by the Contractor during the progress of work, shall become City property. Such findings shall be reported immediately to the Engineer who will determine the method of removal, where necessary, and the final disposition thereof.
5.24. INSURANCE
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by the Contractor, its agents, representatives, employees or Subcontractors. The cost of such insurance shall be included in the Contractor’s bid.
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60 Working Days
Updated 2/17/23
(a) Neither the Contractor nor any Subcontractors shall commence any work until all required insurance has been obtained at their own expense. Such insurance must have the approval of the City as to limit, form, and amount, and shall be placed with insurers with a current A. M. Best’s rating of no less than A-VII.
(b) Any insurance bearing on adequacy of performance shall be maintained after completion of the project for the full guarantee period. (c) Prior to execution of the Contract, the Contractor shall furnish the City with original endorsements effecting coverage for all policies required by the Contract. The endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. The endorsements are to be on forms provided or approved by the City. The City may require the Contractor or any Subcontractor to furnish complete certified copies of all insurance policies affecting the coverage required by the Contract. (d) All of the Contractor’s policies shall contain an endorsement providing that written notice shall be given to the City at least sixty (60) calendar days prior to termination, cancellation, or reduction of coverage in the policy.
(e) Any policy or policies of insurance that the Contractor elects to carry as insurance against loss or damage to its construction equipment and tools shall include a provision therein providing a waiver of the insurer’s right to subrogation against the City and the Engineer.
(f) The requirements as to the types, limits, and the City’s approval of insurance coverage to be maintained by the Contractor are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the Contractor under the Contract. (g) In addition to any other remedy the City may have, if the Contractor or any of the Subcontractors fails to maintain the insurance coverage as required in this section, the City may obtain such insurance coverage as is not being maintained, in form and amount substantially the same as required herein, and the City may deduct the cost of such insurance from any amounts due or which may become due the Contractor under this Contract. (h) The Contractor and all Subcontractors shall, at their expense, maintain in effect at all times during the performance of work under the Contract not less than the following coverage and limits of insurance, which shall be maintained with insurers and under forms of policy satisfactory to the City. The maintenance by the Contractor and all Subcontractors of the following coverage and limits of insurance is a material element of this Contract. The failure of the Contractor or any Subcontractor to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of this contract. (1) Workers’ Compensation and Employer’s Liability Insurance (i) Workers’ Compensation
The Contractor and all Subcontractors shall maintain insurance to protect the Contractor or Subcontractor from all claims under Workers’ Compensation and Employer’s Liability Acts, including Longshoremen’s and Harbor Workers’ Act. Such coverage shall be maintained, in type and amount, in strict compliance with all applicable State and Federal statutes and regulations. The Contractor shall execute a certificate in compliance with Labor Code section 1861, on the form provided in the Contract Documents. 229
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(ii) Claims Against City
If an injury occurs to any employee of the Contractor or any of the Subcontractors for which the employee or its dependents, in the event of its death, may be entitled to compensation from the City under the provisions of the said Acts, or for which compensation is claimed from the City, there will be retained out of the sums due the Contractor under this Contract, an amount sufficient to cover such compensation as fixed by said Acts, until such compensation is paid or it is determined that no compensation is due. If the City is required to pay such compensation, the amount so paid will be deducted and retained from such sums due, or to become due, the Contractor.
(2) Commercial General and Automobile Liability Insurance The Contractor shall maintain in effect at all times during the performance of the work hereunder not less than the following coverage’s and limits of Commercial General and Automobile Liability insurance:
(i) Form and Amount
The insurance shall include, but shall not be limited to, protection against claims arising from death, bodily injury, personal injury, or damage to property resulting from actions, failures to act, operations or equipment of the insured, or by its employees, agents or consultants, or by anyone directly or indirectly employed by the insured. The amount of insurance coverage shall not be less than $1,000,000.00 per occurrence with an aggregate no less than two (2) times the required per occurrence limit applying to bodily injury, personal injury, and property damage, or any combination of the three. Any deductibles must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles as respects the entity, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration expenses, and defense expenses. The commercial general and automobile liability insurance coverage shall also include the following:
(ii) Additional Requirements
Provision or endorsement naming the City, the Engineer and its consultants, and each of their officers, employees, and agents, each as additional insured’s with respect to any potential liability arising out of the performance of any work under the Contract, and providing that such insurance is primary insurance as respects the interest of the City and Engineer, and its consultants, and each of their officers, employees, and agents and that any other insurance, risk pool membership, or other liability protection maintained by the City or maintained by the Engineer is excess to the insurance required hereunder, and will not be called upon to contribute to any loss unless and until all limits available under the Contractor ‘s and Subcontractor’s insurance policy/policies have been paid. The additional insured coverage under the Contractor’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13.
(iii) “Cross Liability” or “Severability of Interest” clause. (iv) Broad Form Property Damage, Personal Injury, Contractual Liability, Protective Liability, and Completed Operations coverage’s, and elimination of any exclusion regarding loss or damage to property caused by explosion or resulting from collapse 230
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
of buildings or structures or damage to property underground, commonly referred to by insurers as the “XCU” hazards.
(v) Provision or endorsement stating that such insurance, subject to all of its other terms and conditions, applies to the liability assumed by the Contractor under the Contract, including, without limitation, that set forth in Section 4.02, Indemnity and Litigation Costs.
(vi) Provision or endorsement stating that any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officers, officials, employees, or volunteers. (vii) The Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
(3) Builder’s Risk or Installation Floater “All-Risk” Insurance. Before commencement of the Work, the Contractor shall submit written evidence that it has obtained for the period of the Contract, Builder’s Risk “All-Risk” Completed Value Insurance and/or Inland Marine “All-Risk” Installation Floater Insurance, as may be applicable, upon the entire project which is the subject of this Contract, including completed work and work in progress. The policy or policies of insurance shall name the Contractor, City, and Engineer as insured’s as their respective interests may appear, and shall include an insurer’s waiver of subrogation rights in favor of each. Such insurance may have a deductible clause, but the amount of the deductible shall be subject to the approval of the City, except that the deductible on earthquake coverage may be in accordance with the underwriter’s requirements.
5.25. INDEMNITY AND LITIGATION COST
(a) Promptly upon execution of the Contract, the Contractor specifically obligates itself and hereby agrees to protect, hold free and harmless, defend and indemnify the City, the Engineer and its consultants, and each of their officers, employees and agents, from any and all liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, including attorney’s fees, which arise out of or are in any way connected with the Contractor’s, or its Subcontractors’ or suppliers’, performance of work under this Contract or failure to comply with any of the obligations contained in the Contract. This indemnity shall imply no reciprocal right of the Contractor in any action on the contract pursuant to California Civil Code section 1717 or section 1717.5. To the fullest extent legally permissible, this indemnity, defense and hold harmless agreement by the Contractor shall apply to any and all acts or omissions, whether active or passive, on the part of the Contractor or its agents, employees, representatives, or Subcontractor’s agents, employees and representatives, resulting in claim or liability, irrespective of whether or not any acts or omissions of the parties to be indemnified hereunder may also have been a contributing factor to the liability, except such loss or damage which was caused by the active negligence, the sole negligence, or the willful misconduct of the City. The Contractor’s obligations under this Section shall apply to claims arising from the Contractor’s mistake, error, or neglect in preparing its Bid for this project. The Contractor’s obligations under this Section shall apply to claims arising from the Contractor’s mistake, error, or neglect in preparing its Bid for this project.
(b) In any and all claims against the City, the Engineer and each of their consultants, officers, employees and agents by any employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligation under this section shall not be limited in way by any 231
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under Workers’ Compensation statutes, disability benefit statutes or other employee benefit statutes.
5.26. PROTECTION OF WORK
(a) The Contractor shall be responsible for the care of all the Work until its completion and final acceptance. The Contractor shall, at its own expense, replace damaged or lost material and repair damaged parts of the Work or the same may be done at the Contractor’s expense by the City and the Contractor and its sureties shall be liable therefor. The Contractor shall make its own provisions for properly storing and protecting all material and equipment against theft, injury, or damage from any and all causes. Damaged material and equipment shall not be used in the Work. The Contractor shall take all risks from floods and casualties except as provided by law, and shall make no charge for the restoration of such portions of the work as may be destroyed or damaged by flood or other casualties or because of danger from flood or other casualties or for delays from such causes. The Contractor may, however, be allowed a reasonable extension of time on account of such delays, subject to the conditions herein before specified. The Contractor shall not be responsible for the cost, in excess of 5% of the contracted amount, of repairing or restoring damage to the Work, if the damage was proximately caused by an earthquake in excess of a magnitude of 3.5 on the Richter Scale or by tidal wave’ s; provided that the Work damaged was built in accordance with accepted and applicable building standards, and the plans and specifications of the City. (b) Contractor shall effectively secure and protect adjacent property and structures, livestock, crops and other vegetation. If applicable, the Contractor shall open fences on or crossing the right-of-way and install temporary gates of sound construction thereon so as to prevent the escape of livestock. Adjacent fence posts shall be adequately braced to prevent the sagging or slackening of the wire. Before such fences are opened, the Contractor shall notify the owner or tenant of the property and, where practicable, the opening of the fence shall be in accordance with the wishes of said owner or tenant. The Contractor shall be responsible that no loss or inconvenience shall accrue to the owner or tenant by virtue of their fences having been opened or the gate not having been either shut or attended at all times. Where special types of fences are encountered, the Contractor shall install temporary gates made of similar materials and of suitable quality to serve the purposes of the original fences. In all cases where the Contractor removes fences to obtain workroom, the Contractor shall provide and install temporary fencing as required, and on completion of construction shall restore the original fence to the satisfaction of the Engineer. All costs of providing, maintaining and restoring gates and fencing shall be home by the Contractor. The Contractor shall provide and maintain all passageways, guard fences, lights and other facilities for protection required by public authority or local conditions.
(c) The Contractor shall use extreme care during construction to prevent damage from dust to crops and adjacent property. The Contractor, at its own expense, shall provide adequate dust control for the right-of-way and take other preventative measures as directed by the Engineer.
(d) The Contractor shall be responsible for all damage to any property resulting from trespass by the Contractor or its employees in the course of their employment, whether such trespass was committed with or without the consent or knowledge of the Contractor. (e) The Contractor shall see that the Site is kept drained and free of all ground water and any other water, which may impede the progress or execution of the Work. 232
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(f) The Contractor shall be responsible for any damage caused by drainage or water runoff from construction areas and from construction plant areas. (g) In an emergency affecting the safety of life, the Work, or adjoining property, the Contractor, without special instruction or authorization from the Engineer, is hereby permitted to act at its discretion to prevent such threatened loss or injury, and the Contractor shall so act without appeal if so instructed or authorized. Any compensation claimed by the Contractor on account of emergency work shall be determined as specified In Section 2.07. Should the Engineer deem an emergency condition to exist, the Contractor shall immediately do those things and take those steps ordered by the Engineer. The decision of the Engineer in this respect shall be final and conclusive. Any claims for compensation made by the Contractor on account of emergency work shall be determined as specified in Section 2.07. (h) Except as provided by Government Code section 4215, the Contractor shall be responsible for the removal, relocation and protection of all public and private utilities, including irrigation facilities in the nature of utilities, located on the site of the construction project if and to the extent that the same are identified in the Contract Documents, and the Contractor shall not be entitled to any extension of time or claim for damages for extra compensation in connection therewith. If and to the extent that such utilities or facilities are not identified in the Contract Documents, as between the Contractor and the City, the City will be responsible for the cost of their removal, relocation or protection, as the case may be, but the Contractor shall perform any such work in conformance with applicable provisions of Sections 2.06 and 2.07, if so directed by the Engineer. In such situations the Contractor shall not be responsible for delay in completion of the project caused by the failure of the City or the owner of the utility to provide for such removal or relocation. If the Contractor, while performing the Contract, discovers utility or irrigation facilities not identified by the City in the Contract Documents, the Contractor shall immediately notify the Engineer in writing.
(i) Subject to the provisions of this section, where the Work to be performed under the Contract crosses or otherwise interferes with existing streams, watercourses, canals, farm ditches, pipelines, drainage channels, or water supplies, the Contractor shall provide for such watercourse or pipelines and shall perform such construction during the progress of the Work so that no damage will result to either public or private interests, and the Contractor shall be liable for all damage that may result from failure to so provide during the progress of the Work.
5.27. ACCIDENTS
(a) The Contractor shall provide and maintain, in accordance with Labor Code section 6708 and OSHA requirements, adequate emergency first-aid treatment for its employees and anyone else who may be injured in connection with the Work. (b) The Contractor shall promptly report in writing to the Engineer all accidents whatsoever arising out of or in connection with, the performance of the Work, whether on or adjacent to the site, which caused death, personal injury, or property damage, giving full details and statements of witnesses. In addition, if death or serious injury or serious damage are caused, the accident shall be reported immediately by telephone or messenger to the City and the Engineer.
(c) If any claim is made by anyone against the Contractor or any Subcontractor on account of any accident, the Contractor shall promptly report the facts in writing to the Engineer, giving full details of the claim.
233
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
5.28. NO PERSONAL LIABILITY
Neither the City, the Engineer, nor any of their other officers, agents, or employees shall be personally responsible for any liability arising under the Contract, except such obligations as are specifically set forth herein.
234
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
SECTION 6
PROGRESS AND COMPLETION OF WORK
6.01. PROGRESS SCHEDULE
The Contractor shall submit within ten (10) days after execution of the Contract a detailed work schedule(s) which shall detail the actions of the Contractor and Subcontractors working at the Site. This schedule(s) shall both show the dates at which the Contractor will start and complete and conform to the completion time specified in the Contract. The controlling operation, defined as the least float path, if any, shall be identified.
The Contractor shall review, revise and resubmit the progress schedule at least once a month to reflect progress. In any event, Contractor shall submit, at any time during the contract period, a current schedule to the Engineer at the Engineer’s request.
No progress payments will be made for any work performed until a satisfactory schedule has been submitted and approved by the Engineer. An updated schedule shall be required from the Contractor if the project falls ten (10) working days behind schedule.
If the Work falls behind the accepted schedule, the Contractor shall promptly take whatever actions are necessary to put the project back on schedule. For delays or portions of delays for which the Contractor is responsible, no payment will be made or time extension allowed for increase in work force, equipment, and working hours needed to put the project on schedule.
6.02. COMMENCEMENT AND PROGRESS OF THE WORK AND TIME OF COMPLETION (a) Commencement
The Contractor shall begin the Work after receiving a Notice to Proceed within the period of time set forth in the Contract Provisions. Thereafter, Contractor shall diligently prosecute the Work to completion as specified in the Contract Documents. The Engineer shall have the right to specify the locations where Contractor shall start and proceed with the Work.
A preconstruction conference will be convened after the Contractor has delivered the necessary bonds, insurance certificates and signed agreement in proper form as required in the invitation to bid, Bid proposal and general conditions of these specifications. Prior to any work, the Contractor shall provide the Engineer with a list of key personnel assigned to the project and the telephone numbers where they may be reached at any time. The list shall be made available in sufficient copies and presented at the preconstruction conference.
Notwithstanding any other provisions of the Contract, the City shall not be obligated to accept or pay for any work furnished by the Contractor prior to the issuance of the Notice to Proceed whether or not the City has knowledge of the furnishing of such work. The Contractor shall not commence with work on this project until its Contract bonds and evidence of insurance comply with all Contract requirements and a Notice to Proceed has been issued.
The Contractor shall notify the Engineer in writing two (2) working days (48 hours) prior to commencement of work on the Project or scheduling work for a Saturday, Sunday, or City Holiday. Failure to provide said notification will void the City’s obligation to provide inspection.
Any work done in the absence of the City’s Inspector shall be subject to rejection. 235
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(b) Completion
All work under this Contract shall be completed within the period of time set forth in the Contract Provisions. The Contract shall be deemed completed when the Engineer has certified the completion of the Project as provided in Section 9.07 of these General Conditions.
6.03. SUSPENSION OF WORK
(a) The Engineer may at any time, by notice in writing to the Contractor, suspend any part of the Work for such period of time as may be necessary to prevent improper execution of the Work on the project by the Contractor, its Subcontractors or agents, and the Contractor shall have no claim for damages or additional compensation on account of any such suspension.
(b) The City may at any time suspend any part or all of the Work upon ten (10) days written notice to the Contractor, who shall thereupon discontinue all work suspended except for all operations to prevent loss or damage to work already executed as may be directed by the Engineer. Work shall be resumed by the Contractor after such suspension on written notice from the City.
(c) In the event of any suspension of the Work in whole or in part under subsection (B) above, the Contractor shall be entitled to an extension of time wherein to complete the Work to the extent of the delay caused to the Contractor thereby. (d) In the event the entire work shall be suspended by order of the City, as herein above provided, and shall remain so suspended for a period of sixty (60) consecutive days, through no fault of the Contractor, and notice to resume the Work shall not have been served on the Contractor as herein above provided, Contractor may, at its option, by written notice to the City, terminate the Contract in the same manner as if the termination had been initiated by the City, and the City shall have no claim for damages because of such termination of the Contract.
6.04. DELAY IN THE WORK – TIME EXTENSIONS
The Contractor shall at all times employ such force, plant, materials, and tools as will be sufficient, in the opinion of the Engineer, to prosecute the Work at not less than the rates fixed under the terms of the Contract and to complete the Work thereof within the time limits fixed therein. If the Contractor refuses or fails to prosecute the Work, or any separable part thereof, with such diligence as will ensure the completion within the time specified in the Contract, or any extension thereof, or fails to complete said work within such time, the City may exercise the termination provisions set forth in Section 6.05, below. (a) Excusable Delays. Excusable delays shall be delays in the controlling operation of the Contractor’s work due to strikes, lockouts by others, fire, unusual delay in transportation, unavoidable casualties, adverse weather conditions which could not have been reasonably anticipated, or any other act(s) of God beyond the Contractor’s control, or by delay authorized by the City, or by any cause which the City shall decide to justify the delay. Except as provided in Section 6.04(f), below, in the event of an excusable delay, the time of completion shall be extended for such reasonable time as the City may decide. The Contractor’s right to an extension of time for an excusable delay is expressly subject to Contractor’s giving written notice of such claim within ten (10) days following the date the Contractor knew or should have known of the delay. Failure to give such notice shall be construed as a waiver of such right. It is understood and agreed that extensions of time shall be the Contractor’s sole and exclusive remedy for excusable delays.
236
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(b) Compensable delays. Compensable delays shall be delays in the controlling operating of the Contractor’s work due to acts or neglect of the City, its employees or those under it by contract or otherwise, or by changes ordered in the work. In the event of a compensable delay, the time of completion shall be extended for such reasonable time as the City may decide. In addition, the Contractor may recover its direct costs as provided in Section
6.05. The Contractor’s remedies for compensable delays are expressly subject to Contractor’s giving ten (10) days written notice of such claim from the date the Contractor knew or should have known of the delay. It is understood and agreed that the Contractor’s sole and exclusive remedies for compensable delays shall be an extension of the time and recovery of its direct costs as compensable hereunder, but only in accordance with the provisions of the Contract Documents.
(c) Contractor and City understand and agree that the Contract time for the completion of this project is a very important part of the contract. Extensions of time will only be granted as provided above when events actually cause the Contractor to be delayed in the performance of that schedule activity which is the controlling operation as of the time of the delay. When acts or omissions occur which could cause delay, Contractor will take all reasonable means in order to be able to continue to work as scheduled without any delay, or as short a delay as possible. Additionally, if inclement weather causes accumulation of standing water on the work site or other conditions which might cause delay, Contractor shall take all measures reasonably necessary to permit work to continue as quickly as possible. (d) If adverse weather conditions are the basis for a claim for additional time, such claim shall be documented by date substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction. Adverse weather conditions shall be considered only as those conditions that exceed the average annual number of rain days and rain quantities as established by the Annual Local Climatological Summary and NOAA National Technical Memorandum NWS WR-65 (Revised) as published by the United States Government, National Weather Service, National Climate Center, Asheville, North Carolina. (e) The Engineer shall be responsible for determining when adverse weather conditions result in non-workable days. It shall be the Contractor’s duty to stay informed of such determinations by the Engineer. The Contractor may object to such adverse weather determinations by filing with the Engineer a written notice of objection. The notice of objection shall state the basis of the objection and provide supporting documentation, which substantiates that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction. All such notices of objection shall be filed within three (3) days of the day in dispute. It is hereby agreed that the Contractor’s failure to submit a written notice of objection within three (3) days of the Engineer’s adverse weather determination shall constitute a waiver by the Contractor of all its rights to further protest, judicial or otherwise. (f) The Engineer will, within a reasonable period of time, issue a ruling on the Contractor’s notice of objection. All such rulings by the Engineer shall be final, unless the Contractor files a written protest within fifteen (15) days of the Engineer’s ruling. This protest shall clearly state the basis of the dispute. Such protest will be forwarded promptly to the City, which will issue a decision on each such protest. The City decision will be final. Pending the City decision, the Contractor shall proceed with its work in accordance with the Engineer’s ruling and/or instructions. It is hereby agreed that the Contractor’s failure to file a protest within fifteen days (15) of the Engineer’s ruling shall constitute a waiver by the Contractor of all its rights to further protest, judicial or otherwise.
237
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(g) The number of days that are anticipated to be non-workable due to adverse weather conditions shall be as set forth in Section 4.0 of the Special Conditions. Days deemed non-workable by the Engineer in excess of such anticipated number shall be considered excusable delays.
(h) Unexcused delays shall be delays in the Contractor’s work due to acts or neglect of the Contractor, its employees, Subcontractors or those under it by contract or otherwise. In the event of an unexcused delay, the Contractor expressly agrees that it shall not be entitled to either an extension of time or recovery of its costs.
(i) A request for an extension of time, or the granting of an extension of time, shall not constitute a basis for any claim against the City for additional compensation or damages unless caused by the City or another Contractor employed by the City.
6.05. DAMAGES FOR DELAY
In the event of compensable delay, the City shall only be liable for idle equipment, idle workers and the necessary costs of transporting equipment. The City shall be liable to the extent that the compensable delay is concurrent with excusable delays or Contractor caused delays to the controlling operation. The allowable costs shall be as for force account work under Section 2.04 with the following exceptions:
(a) The Delay Factor in the Labor Surcharge and Equipment Rental Rules applies to each equipment rental rate;
(b) The daily number of payable hours shall equal the normal working hours during the delay, not to exceed eight (8) hours per day; and
(c) No markups will be added.
6.06. TERMINATION FOR CONVENIENCE
If at any time before completion of the Work, the City determines that it is either impossible or against the interests of the City to complete the Work, or if the Work is stopped by an injunction of a court of competent jurisdiction or by order of any competent authority, the City may, upon ten (10) days written notice to the Contractor, discontinue the Work and terminate the Contract. Upon service of such notice of termination, the Contractor shall discontinue the Work in such manner, sequence, and at such times as described below. The Contractor shall have no claim for damages for such discontinuance or termination, nor any claim for anticipated profits on the Work thus dispensed with, nor any other actually performed up to the time of discontinuance, including any Extra Work ordered by the Engineer to be done, nor for any claim for liquidated damages.
Termination of the Contract for convenience and the total compensation payable to the Contractor in the event of termination shall be governed by the following:
(a) The Engineer will issue the Contractor a written notice signed by the Engineer, specifying that the Contract is to be terminated. Upon receipt of said written notice and, except as otherwise directed in writing by the Engineer, the Contractor shall:
(1) Stop all Work under the Contract except that specifically directed to be completed prior to Acceptance.
238
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(2) Perform Work the Engineer deems necessary to secure the project for termination.
(3) Remove equipment from the site of the Work.
(4) Take such action as is necessary to protect materials from damage. (5) Notify all Subcontractors and suppliers that the Contract is being terminated and that their contracts or orders are not to be further performed unless otherwise authorized in writing by the Engineer.
(6) Provide the Engineer with an inventory list of all material previously produced, purchased or ordered from suppliers for use in the Work and not yet used in the Work, including its storage location, and such other information as the Engineer may request. (7) Dispose of material not yet used in the Work as directed by the Engineer.
It shall be the Contractor’s responsibility to provide the City with good title to all materials purchased by the City hereunder, including material for which partial payment has been made and with bills of sale or other documents of title for such materials.
(8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and all claims arising out of subcontracts or orders for material terminated hereunder.
To the extent directed by the Engineer, the Contractor shall assign to the City all the right, title and interest of the Contractor under subcontracts or orders for materials terminated hereunder. (9) Furnish the Engineer with the documentation required to be furnished by the Contractor under the provisions of the Contract including, on projects as to which Federal funds are involved, all documentation required under the Federal requirements included in the Contract.
(10) Take such other actions as the Engineer may direct. (b) Termination of the Contract shall not relieve the Contractor of responsibility for damage to materials except as follows:
(1) The Contractor’s responsibility for damage to materials for which partial payment has been made and for materials furnished by the City for use in the Work and unused shall terminate when the Engineer certifies that such materials have been stored in the manner and at the locations he or she has directed.
(2) The Contractor’s responsibility for damage to materials purchased by the City subsequent to the issuance of the notice that the Contract is to be terminated shall terminate when title and delivery of such materials has been taken by the City. (3) When the Engineer determines that the Contractor has completed the Work under the Contract directed to be completed prior to termination and such other Work as may have been ordered to secure the project for termination, he or she will recommend that the Engineer formally accept the Contract, and immediately upon and after such Acceptance by the Engineer, the Contractor will not be required to perform any further Work thereon and shall be relieved of his or her Contractual responsibilities for injury to persons or damage to property which occurs after the formal Acceptance of the project by the Engineer. 239
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(c) The total compensation to be paid to the Contractor shall be determined by the Engineer on the basis of the following:
(1) The reasonable cost to the Contractor, without profit, for all Work performed under the Contract, including mobilization, demobilization and Work done to secure the project for termination. Reasonable cost will include a reasonable allowance for project Overhead and general administrative Overhead not to exceed a total of seven (7%) percent of Direct Costs of such Work.
(2) A reasonable allowance for profit on the cost of the Work performed as determined under Section 2.04(a) above, provided the Contractor establishes to the satisfaction of the Engineer that it is reasonably probable that he or she would have made a profit had the Contract been completed and provided further, that the profit allowed shall in no event exceed four (4%) percent of said cost.
(3) The reasonable cost to the Contractor of handling material returned to the vendor, delivered to the City or otherwise disposed of as directed by the Engineer. (4) A reasonable allowance for the Contractor’s administrative costs in determining the amount payable due to termination of the Contract.
All records of the Contractor and the Subcontractors, necessary to determine compensation in accordance with this section shall be open to inspection or audit by representatives of the City at all times after issuance of the notice that the Contract is to be terminated and for a period of three (3) years, and such records shall be retained for that period.
After Termination of the Work by the Engineer, the Engineer may make payments on the basis of interim estimates pending issuance of the Final Statement, when in his or her opinion the amount thus paid, together with all amounts previously paid or allowed, will not result in total compensation in excess of that to which the Contractor will be entitled.
All payments, including payment upon the Final Statement, shall be subject to deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the Contract.
(d) The provisions of this section shall be included in all subcontracts.
6.07. TERMINATION FOR DEFAULT
(a) In the event of any default by the Contractor as described below, the City may, after giving ten (10) days’ written notice to the Contractor, terminate the Contractor’s right to proceed with the Work or any part of the Work in the City’s sole discretion. Events of default include:
(1) Failure or refusal to prosecute the Work, or any separable part thereof, with such diligence as will ensure the completion within the time specified in the Contract, or any extension thereof, or failure to complete said work within such time. (2) Filing of bankruptcy by the Contractor, or the making of a general assignment for the benefit of its creditors, or appointment of a receiver on account of Contractor’s insolvency without discharge of the receiver within ten (10) days after its appointment.
240
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
(3) Failure to make prompt payments to Subcontractors or suppliers. (4) Persistent disregard of laws, ordinances, or the instructions of the Engineer, or other substantial violation of any provision of the Contract. (b) In the event the right of the Contractor to proceed with the Work, or any portion thereof, has been terminated because of the default of the Contractor and the Contractor has been given ten (10) days’ notice to cure such fault and has not done so, the City may take over the Work and prosecute the same to completion by contract or any other method the City deems expedient, and may take possession of and utilize in completing the Work such materials, appliances, equipment and plant as may be on the site of the Work and necessary therefore. In such event, the Contractor and its sureties shall be liable for all damages including costs of managerial and administrative services, engineering, legal and other consultant fees, and liquidated damages sustained or incurred by the City. (c) Upon termination, the Contractor shall not be entitled to receive any further payment until the Work is finished. If upon completion of the Work the total cost to the City, including engineering, legal and other consultant fees, costs of managerial and administrative services, construction costs, and liquidated damages shall be less than the amount which would have been paid if the Work had been completed by the Contractor in accordance with the terms of the Contract, then the difference shall be paid to the Contractor in the same manner as the final payment under the Contract. If the total cost incurred by the City on account of termination of the Contract and subsequent completion of the Work by the City by whatever method the City may deem expedient shall exceed said amount which the Contractor would otherwise have been paid, the Contractor and its sureties shall be liable to the City for the full amount of such excess expense.
(d) The rights and remedies of the City provided in this section are in addition to any of the rights and remedies provided by the law or under this Contract.
6.08. FAILURE TO TIMELY COMPLETE THE WORK – LIQUIDATED DAMAGES (a) Liquidated Damages
(1) It is agreed by the parties to this Contract that time is of the essence. In the event all the Work is not completed before or upon the expiration of the time limit as set in the Bid, Contract and/or Progress Schedule, or within any time extensions that may have been granted, damage will be sustained by the City; and that it may be impracticable to determine the actual amount of damage by reason of such delay. Accordingly, it is agreed that the Contractor shall pay to the City as damages the amount set forth for each and every day’s delay in finishing the Work in excess of the number of days specified. Liquidated damages shall be paid at a rate of one thousand dollars ($1,000.00) per day unless otherwise stated in the Contract Documents.
The parties expressly agree that the liquidated damage clause found in the Contract Documents is reasonable under the circumstances existing at the time the Contract was made. The City shall have the right to deduct the amount of liquidated damages from any money due or to become due the Contractor.
(2) In addition, the City shall have the right to charge to the Contractor and to deduct from the final or progress payments for the Work the actual cost to the City of legal, engineering, inspection, superintendence, and other expenses, which are directly chargeable to the Contract and which accrue during the period of such delay, except that the cost of final inspection and preparation of the final estimate shall not be included in the charges. 241
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60 Working Days
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(b) Exclusions
Notwithstanding the provisions of Section 2.06(a), the Contractor shall not be liable for liquidated damages or delays caused by the removal or relocation of utilities when such removal or relocation is the responsibility of the City or the owner of the utility under Government Code section 4215.
6.09. CLEAN-UP
During the progress of the Work, the Contractor shall maintain the Site and related structures and equipment in a clean, orderly condition and free from unsightly accumulation of rubbish. All waste materials shall be removed daily from the Site and disposed of by the Contractor by any proper means at its own expense unless designated otherwise on the plans.
No waste materials shall be placed in the public street right-of-way. Unless otherwise specified, all existing piping, materials and/or equipment removed pursuant to this Contract shall become the Contractor’s property.
Upon completion of the Work and before the final estimate is submitted, the Contractor shall, at its own cost and expense, remove from the vicinity of the Work all plants, buildings, rubbish, unused work materials, concrete forms, and temporary bridging and other like materials, belonging to the Contractor or used under the Contractor’s direction during the construction, and in the event of the Contractor’s failure to do so, the same may be removed by the City after ten (10) calendar days’ notice to the Contractor. Such removal shall be at the expense of the Contractor.
The Contractor shall use care in the removal of materials and equipment so as not to cause damage to existing facilities and structures. Contractor shall assume liability for all such damage. Where the construction has crossed yards or driveways, restoration shall be by the Contractor to the complete satisfaction of the Engineer, at the Contractor’s expense.
The Contractor shall make its own arrangements for the disposal of waste materials. If the Contractor elects to dispose of such materials on private property, Contractor shall obtain written permission from all property owners involved.
242
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
SECTION 7
MEASUREMENT AND PAYMENT
7.01. MEASUREMENT OF QUANTITIES
(a) Where the Contract provides for payment on a lump sum price basis, no measurement of quantity will be made. Where the Contract provides for payment on a unit price basis, the quantities of work performed will be computed by the Engineer on the basis of measurements taken by the Engineer, and these measurements shall be final and conclusive. (b) All quantities of work computed under the Contract shall be based upon measurements by the Engineer according to United States Measurements and Weights. (c) Methods of measurement are specified herein and in the Technical Specifications.
(d) Mobilization shall be measured and payment issued according to Section 11 of the State Standard Specifications.
7.02. SCOPE OF PAYMENT
(a) The Contractor shall accept the compensation provided in the Contract as full payment for furnishing all labor, materials, tools, equipment, and incidentals necessary to the completed work and for performing all work contemplated and embraced under the Contract; also for loss or damage arising from the nature of the work, or from the action of the elements, or from any unforeseen difficulties which may be encountered during the prosecution of the Work until the Acceptance by the City and for all risks of every description connected with the prosecution of the Work, also for all expenses incurred in consequence of the suspension or discontinuance of the work as provided in the Contract; and for completing the Work according to the Specifications and Plans. Neither the payment of any estimate nor of any retained percentage shall relieve the Contractor of any obligation to make good any defective work or material.
(b) No compensation will be made in any case for loss of anticipated profits.
Increased or decreased work involving supplemental agreements will be paid for as provided in such agreements.
(c) The Work includes the preparatory work and operations needed for mobilization and demobilization of the Project. The Work, however, does not include establishing the Engineer’s field facility(s) of utility work and connections needed for these facilities.
7.03. PROGRESS ESTIMATE
For each calendar month of Contract work, the Engineer will prepare a progress estimate of all work performed under the Contract. Within the first ten (10) days of each succeeding calendar month, the Engineer will prepare in writing an estimate which in the Engineer’s opinion is a fair approximation of the value of all work done under the Contract, including any amounts due the Contractor for Extra Work and Change Orders. In arriving at the value of the Work done, the Engineer will give consideration to the value of labor and materials which have been incorporated into the permanent work by the Contractor during the preceding month. Consideration will not be given to preparatory work done or for materials or equipment on hand.
243
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
In order to assist the Engineer, the Contractor shall furnish the Engineer with copies of invoices for all such items delivered to the job site.
7.04. PROGRESS PAYMENTS
(a) The City will pay the Contractor ninety-five percent (95%) of the amount of each progress estimate within thirty (30) days after receipt of an undisputed and properly submitted progress estimate from the Contractor, unless the City has made a finding prebid pursuant to Public Contract Code section 7201(b)(4) justifying a larger retention. If the City fails to pay an undisputed progress estimate within the allotted thirty (30) days, the City shall pay interest to the Contractor equivalent to the legal rate set forth in subdivision (A) of section 685.010 of the Code of Civil Procedure. Five percent (5%) of the amount of each estimate shall be retained by the City until final completion and Acceptance of all work under the Contract. (b) Upon receipt of a payment request, the City shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by the City as soon as practicable after receipt for the purpose of determining that the progress estimate is a proper payment request.
(2) Any payment request determined not to be a proper payment request suitable for payment shall be returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this section shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.
(c) The number of days available to the City to make a payment without incurring interest pursuant to this section shall be reduced by the number of days by which the City exceeds the seven-day return requirement set forth in paragraph (2) of subdivision (b). (d) The Contractor may, in accordance with the provisions of Public Contracts Code section 22300, substitute securities for any monies which the City may withhold to insure performance under the Contract.
(e) When, in the judgment of the Engineer, the Work is not proceeding in accordance with the provisions of the Contract, or when in the Engineer’s judgment the total amount of the Work done since the last estimate amounts to less than one thousand dollars ($1,000.00), no pay estimate will be prepared and no progress payment will be made. (f) No progress estimate or payment shall be considered to be an approval or Acceptance of any work, materials or equipment. Estimated amounts and values of work done and materials and equipment furnished will be conformed with actual amounts and values as they become available in subsequent progress estimates, progress payments and the final estimate and payment. All estimates and payments will be subject to correction in subsequent progress estimates and payments and the final estimate and payment. (g) It is mutually agreed between the parties to the Contract that no payments made under the Contract, including progress payments and the final payment shall be evidence of the performance of the Contract, either wholly or in part, and no payment shall construed to be an Acceptance of any defective or incomplete work or improper materials. 244
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
7.05. PROMPT PROGRESS PAYMENT TO SUBCONTRACTORS
A prime Contractor or Subcontractor shall pay any Subcontractor not later than seven (7) days of receipt of each progress payment in accordance with the provisions in Section 7108.5 of the California Business and Professions Code concerning prompt payment to Subcontractors. The seven (7) days is applicable unless a longer period is agreed to in writing.
Any delay or postponement of payment over 30 days may take place only for good cause and with the City’s prior written approval. Any violation of Section 7108.5 shall subject the violating Contractor or Subcontractor to the penalties, sanctions and other remedies of that section. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the Contractor or Subcontractor in the event of a dispute involving late payment or nonpayment by the prime Contractor , deficient subcontract performance, or noncompliance by a Subcontractor. This provision applies to both DBE and non-DBE Subcontractors.
7.06. LIENS AND STOP NOTICES
The Contractor agrees to keep the Work, the site of the Work and all monies held by the City free and clear of all liens and stop notices related to labor and materials furnished in connection with the Work, if permitted by law. Furthermore, the Contractor waives any right it may have to file any type of lien or stop notice in connection with the Work. Notwithstanding anything to the contrary contained in the Contract Documents, if any such lien or stop notice is filed or there is evidence to believe that lien or stop notice may be filed at any time during the progress of the Work or within the duration of this Contract, the City may refuse to make any payment otherwise due the Contractor or may withhold any payment due the Contractor a sum sufficient in the opinion of the City to pay all obligations and expenses necessary to satisfy such lien or stop notice. The City may withhold such payment unless or until the Contractor, within ten days after demand therefor by the City, shall furnish satisfactory evidence that the indebtedness and any lien or stop notice in respect thereof has been satisfied, discharged and released of record, or that the Contractor has legally caused such lien or stop notice to be released of record pending the resolution of any dispute between the Contractor and any person or persons filing such lien or stop notice. If the Contractor shall fail to furnish such satisfactory evidence within ten days of the demand therefor, the City may discharge such indebtedness and deduct the amount thereof, together with any and all losses, costs and damages suffered or incurred by the City from any sum payable to the Contractor under the Contract Documents, including but not limited to final payment and retained percentage. This section shall be specifically included in all Subcontracts and purchase orders entered into by the Contractor.
7.07. FINAL ACCEPTANCE AND DATE OF COMPLETION
Whenever the Contractor shall deem all Work under this Contract to have been completed in accordance therewith, the Contractor shall so notify the Engineer in writing, and the Engineer shall promptly ascertain whether the Work has been satisfactorily completed and, if not, shall advise the Contractor in detail and in writing of any additional work required. When all the provisions of the Contract have been fully complied with, to the satisfaction of the Engineer, the Engineer shall proceed with all reasonable diligence to determine accurately the total value of all Work performed by the Contractor at the prices set forth in the Contract or fixed by Change Orders, and the total value of all extra work, all in accordance with the Contract.
The Engineer will then certify to said final estimate and to the completion of the Work, and will file copies thereof with the City and the Contractor, and shall cause of Notice of Completion to be filed with the Yolo County Clerk-Recorder . The date of completion shall be the date of filing of the Notice of Completion. All guarantees, warranties, and securities securing said guarantees and warranties, shall commence on said date. 245
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
Updated 2/17/23
7.08. RIGHT TO WITHHOLD PAYMENTS
(a) In addition to all other rights and remedies of the City hereunder and by virtue of the law, the City may withhold or nullify the whole or any part of any partial or final payment to such extent as may reasonably be necessary to protect the City from loss on account of:
(1) Defective work not remedied, irrespective of when any such work be found to be defective;
(2) Claims or liens filed or reasonable evidence indicating probable filing of claims or liens including, but not limited to claims under Sections 1775, 1776, or 1777.7 of the Labor Code;
(3) Failure of the Contractor to make payments properly for labor, materials, equipment, or other facilities, or to Subcontractors and/or suppliers; (4) A reasonable doubt that the Work can be completed for the balance then unearned;
(5) A reasonable doubt that the Contractor will complete the Work within the agreed time limits;
(6) Costs to the City resulting from failure of the Contractor to complete the Work within the proper time; or
(7) Damage to work or property.
(b) Whenever the City shall, in accordance herewith, withhold any monies otherwise due the Contractor, written notice of the amount withheld and the reasons therefor will be given the Contractor. After the Contractor has corrected the enumerated deficiencies, the City will promptly pay to the Contractor the amount so withheld. When monies are withheld to protect the City against claims or liens of mechanics, material men, Subcontractors, etc., the City may at its discretion permit the Contractor to deliver a surety bond in terms and amount satisfactory to the City, indemnifying the City against any loss or expense, and upon Acceptance thereof by the City, the City shall release to the Contractor monies so withheld.
7.09. FINAL PAYMENT
Within ten (10) days after the date of completion, the City will file in the Office of the County Recorder, a Notice of Completion of the Work herein agreed to be done by the Contractor. Within sixty (60) days of completion defined in Public Contract Code section 7107, the difference between said final estimate and all payments theretofore made to the Contractor shall be due and payable to the Contractor, subject to any requirements concerning the furnishings of a maintenance bond, and excepting only such sum or sums as may be withheld or deducted in accordance with the provisions of this Contract. All prior certifications upon which partial Payments may have been made, being merely estimates, shall be subject to correction in the final certificate.
7.10. FINAL RELEASE
Final payment to the Contractor in accordance with the final estimate is contingent upon the Contractor furnishing the City with a signed written release of all claims against the City arising by virtue of the Contract. Disputed Contract claims in stated amounts may be specifically 246
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
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excluded by the Contractor from the operation of the release. The release shall be in substantially the form specified in California Civil Code section 8138. 247
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
1795423.1 7203-038
PART 3 SUPPLEMENTAL CONDITIONS
(SPECIAL PROVISIONS)
248
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
1795423.1 7203-038
SUPPLEMENTAL CONDITIONS (SPECIAL PROVISIONS)
Except as modified by these Supplemental Conditions, the work shall be performed in accordance with Part 3 General Conditions. The numbering of these Supplemental Conditions coincides to the numbering in the General Conditions. The existence of a section in these Supplemental Conditions means that a corresponding section in the General Conditions is modified in some respect. Under these contract documents, Supplemental Conditions and Special Provisions have the same meaning.
The following Supplemental Conditions , if any, shall be used in conjunction with the City of West Sacramento Standard Specifications current edition including Standard Details and all revisions, and the current State of California Department of Transportation (Caltrans) Standard Specifications, in that order.
The following provisions apply to use of or reference to the Caltrans Standard Specifications:
1. None of the “General Provisions” of the Caltrans Standard Specifications, i.e., Sections 1 through 9, applies to these Contract Documents with the exception of any specific provisions, if any, which are expressly stated to apply to these Contract Documents. The City’s “General Conditions” shall govern.
2. If there is a conflict or inconsistency between any provision in the Caltrans Standard Specifications and a provision of these Contract Documents, the provision in the Contract Documents will govern.
3. Any reference to the “Engineer” in the Caltrans Standard Specifications is deemed to mean “City”, “Owner” or “Architect/Engineer” or Owner’s designated representative.
4. Any reference to the “State” in the Caltrans Standard Specifications is deemed to mean “City” or “Owner.”
City Standard Specifications are available online at:
http://cityofwestsacramento.org/city/depts/comdev/engineering/specs/default.asp Bound hardcopies may be purchased from City Hall at:
1110 West Capitol Avenue, 2nd Floor
West Sacramento, California 95691
or by calling (916) 617-4645 for purchase by mail.
State Standard Specifications are available online at:
http://www.dot.ca.gov/hq/esc/oe/standards.php
249
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
1795423.1 7203-038
PART 4 TECHNICAL SPECIFICATIONS
The work shall be performed in accordance with the latest edition of the City of West Sacramento Standard Specifications – Division IV: Standard Construction Specifications and Caltrans Standard Specifications 2015, except as modified by these Technical Specifications.
Section numbering of these Technical Specifications does not conform to the City’s Standard Specifications.
Contractor shall provide submittals (shop drawings) for all materials to be installed or used on the project.
[Technical Specifications]
250
ACCO Engineered Systems, Inc
CPC24-252 Community Center HVAC Replacement
60 Working Days
1795423.1 7203-038
PART 6 CONTRACT DRAWINGS
(BOUND SEPARATELY)
251
CITY COUNCIL AGENDA REPORT
MEETING DATE: September 18, 2024 ITEM # 5
SUBJECT:
CONSIDERATION OF RESOLUTION 24-98 AMENDING THE CAPITAL IMPROVEMENT
PROGRAM (CIP) AND AMENDING A PROFESSIONAL SERVICES CONTRACT WITH
INTERWEST FOR ENGINEERING SERVICES FOR THE CITY OF WEST SACRAMENTO STANDARD SPECIFICATIONS AND DETAILS (CIP 52068) INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [x] Staff
[ ] Other
Mark Collier, Principal Engineer
Community Development Department
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [X] Action
OBJECTIVE
The objective of this report is to provide the City Council with sufficient information to adopt Resolution 24-98 amending Capital Improvement Program (CIP) Project 52068 and amending a professional services contract with INTERWEST for engineering services associated with the City of West Sacramento Standard Specifications and Details Update.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council:
1) Adopt Resolution 24-98 amending the Capital Improvement Program; and 2) Approve Amendment 1 to the Contract for Professional Services with Interwest for the City Standard Specifications and Details Update (CIP 52068) in the amount of $102,000 and adjust the contract contingency to a total of 10% ($37,278);
3) Delegate Authority to the City Manager, or his designee, to execute Amendment 1 with Interwest; 4) Authorize the City Manager, or his designee, to execute non-substantive changes or modifications, including extensions for time, with approval from the City Attorney; and 5) Delegate authority to the City Manager, or his designee, to execute amendments to the contract of up to $37,275 (10% of the total contract value).
BACKGROUND
The most recent comprehensive update to the City Standard Specifications and Details (“Standard Specs”) was approved by Council in 2002. Since that time, minor modifications have been approved both by City Council and by the City Engineer.
The Standard Specs provide requirements for the design and construction of civil improvements within public rights-of-way and easements as well as for on-site private development projects. It is utilized by the City in the design and construction of public improvements and in the plan review and inspection of developer constructed improvements.
In 2018/2019, Council approved an allocation of $180,000 within the CIP for commencement of this update. On February 15, 2023, Council adopted Resolution 23-5 approving a professional services contract with INTERWEST for an amount not to exceed $270,775, not including a contract contingency of $40,616. Additional funds were also approved for City staff time. Funds approved to date total $365,500.
ANALYSIS
A comprehensive update to the Standard Specs is warranted because since the last update of the Standard Specs in 2002, there have been many significant changes to design standards, methodologies and materials used by the industry and by other jurisdictions in the design and construction of civil improvements. In addition, the City has since adopted updates to the Storm Drainage Master Plan, Water Master Plan, Sewer Master Plan and Landscape Design Guidelines. The City has also adopted unique design guidelines for certain neighborhoods including the Bridge District and the Washington District which differ from the rest of the City. All of these have elements within them that should be reflected in the Standard Specs and will be incorporated into this update.
A great deal of progress has been made since the start of the update. In addition to work performed by our consultant INTERWEST, a considerable amount of staff time has been spent by multiple Departments within the 252
Consideration of Resolution 24-98
City of West Sacramento Standard Specifications and Details Update (CIP 52068) September 18, 2024
City including; Community Development, Public Works, Parks, Fire and Police. Unfortunately, the amount of time and effort necessary to complete the update to this 22 year old document was underestimated by all. It should be known that over 800 hours of staff time have been billed to this project by staff thus far.
INTERWEST has submitted a Budget Augmentation Proposal (Attachment 2) which provides an explanation for the need for additional funds and requests an increase to the Contract amount of $102,000. Staff has reviewed the Proposal and concurs with their request.
In addition, staff requests an additional $107,384 allocation be approved for staff time and mandated ICAP charges. As previously noted, this effort requires significant and meaningful input from multiple Departments who will continue to be extensively involved.
A full breakdown of both previous and proposed appropriations is included below.
In order to effectuate the budget augmentation as requested by INTERWEST, an amendment to their existing Contract will be required. “Amendment Number 1” to said Contract is included herewith (attachment 3).
Environmental Considerations
The award of contract and the future consideration of the updated standards specifications is not a project as defined by California Code of Regulations, Title 14, Division 6, Chapter 3 (“CEQA Guidelines”), Article 20, Section 15378. Future projects built in accordance with the updated standard specifications will be subject to CEQA review.
Commission Recommendation
The project team will present the draft Standard Specs update to the Environment and Utilities Committee and the Transportation Mobility and Infrastructure Committee for review and comment.
Strategic Plan Integration
The Project and recommended actions support the City's Vision of a vibrant City where you can Live, Work, Learn & Plan. It helps our residents Feel Safe and Secure and Enjoy Comfortable Living by Providing Quality City Infrastructure.
Alternatives
The Council’s primary alternatives are summarized below:
1) Approve the recommended actions stated above; or
2) Delay or revise the recommended action; or
3) Not approve the recommended action.
Alternative 1 is staff’s recommended action. Delay of the project or not approving the recommended action will not allow staff to proceed with the Standard Specs update.
Coordination and Review
This report was prepared by the Community Development Department in coordination with the Capital Projects Department and Finance Department.
Budget/Cost Impact
City Council initially approved an appropriation of $180,000 for the Standard Specs update as part of the FY 2018/19 Capital Improvement Program in CIP 52068. Subsequently, City Council approved an additional appropriation of $185,500 on February 15, 2023, bringing the total project budget to $365,500. The INTERWEST contract is currently $270,775 and is requested to be increased to $372,775 with a contract contingency of $37,278 (10%). In addition, $107,384 is estimated for staff time and mandated ICAP charges, bringing the total estimated project cost to $615,500 (including total budget contingency of $50,000 or 8%). Resolution 24-98 is attached requesting a CIP amendment for an additional appropriation of $250,000 from Water, Sewer, and onetime General Funds as quantified below.
APPROPRIATIONS
CIP 52068 Standard Specifications Update $365,500
ESTIMATED COSTS
253
Consideration of Resolution 24-98
City of West Sacramento Standard Specifications and Details Update (CIP 52068) September 18, 2024
INTERWEST Contract $372,775
Contract Contingency (10%) $37,278
Project Management/ICAP $205,447
TOTAL $615,500
Requested Funds
Fund 107 One time General Funds $125,000
Fund 502 Sewer Impact Fees $ 75,000
Fund 507 Water Impact Fees $ 50,000
TOTAL $250,000
ATTACHMENTS
1. Resolution 24-98
2. INTERWEST Budget Augmentation proposal
3. INTERWEST Contract Amendment 1
254
RESOLUTION 24-98
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO
AMENDING THE CAPITAL IMPROVEMENTS PROGRAM (CIP) BUDGET FOR THE STANDARD SPECIFICATIONS AND DETAILS UPDATE (CIP#52068)
WHEREAS, The City adopted the biennial Capital Improvements Program (CIP) budget for Fiscal Years 2018/2019 which included approval of CIP 52068 for an update to the City Standard Specifications and Details; and
WHEREAS, the Standard Specifications and Details update (CIP 52068) was adopted and appropriated $180,000 of General C.I Special Tax funds, Traffic Improvement Funds, General Facilities funds, Flood Protection In-Lieu fees, and Water Impact Fee funds; and WHEREAS, the City subsequently approved Resolution 23-5 amending the CIP and adding $185,000 to CIP 52068 for purposes of entering into an Engineering Services Contract with INTERWEST for the Standard Specifications and Details Update and funding associated staff time; and
WHEREAS, at the time of award of the professional services contract with INTERWEST, the contract cost is $270,775, with estimated staff time of $55,225; and WHEREAS, an additional appropriation of $250,000 is requested to cover the additional estimated cost of the Standard Specifications and Details update including an additional $102,000 toward an amendment to the INTERWEST Contract, $37,278 (10% in contract contingency) and $205,447 toward staff time, resulting in a total budget of $615,500 including $50,000 of total budget contingency; and
WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, including any supporting reports by City staff, and any other information provided during public meetings.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Sacramento as follows:
1. The City Council hereby approves amendments to the Capital Improvements Program (VCIP) for fiscal year 2024/25 as listed below:
SOURCES
$125,000 107-0000-3110 One-Time General Fund Balance
$ 75,000 502-0000-3065 Sewer Impact Fees (Fund Balance) $ 50,000 507-0000-3065 Water Impact Fees (Fund Balance) $125,000 400-9900-4990/52068-4990 Transfer from One-Time General Fund $75,000 400-9900-4990/52068-4990 Transfer from Sewer Impact Fees $50,000 400-9900-4990/52068-4990 Transfer from Water Impact Fees $250,000 TOTAL SOURCES
USES
$250,000 400-9900-5530/52068-5800 Standard Specifications Project Budget $125,000 107-9910-5950 Transfer Out to Project
$75,000 502-9241-5950 Transfer out to Project
$50,000 507-9621-5950 Transfer out to Project
$250,000 TOTAL USES
255
*Note – Interfund transfers are not included in funding sources and uses total to avoid duplication of total project budget and funding.
2. The City Council hereby finds that the facts set forth in the recitals to this Resolution are true and correct and establish the factual basis for the City Council’s adoption of this Resolution.
3. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the City Council of the City of West Sacramento this 18th day of September, 2024 by the following vote:
AYES:
NOES:
ABSENT:
________________________________
Martha Guerrero, Mayor
ATTEST:
________________________________
Jennifer Cusmir, City Clerk
256
9300 W. Stockton Blvd. | Suite 105
Elk Grove, CA 95758
916.683.3340
July 26, 2024
Mark Collier P.E.
City Engineer
City of West Sacramento
Community Development Department
1110 West Capitol Avenue
West Sacramento, CA 95691
RE: PROPOSED REQUEST TO AUGMENT PROJECT BUDGET FOR CITY STANDARD SPECIFICATIONS UPDATE PROFESSIONAL SERVICES AGREEMENT (Contract CDD23-027) Dear Mr. Collier,
We appreciate the opportunity to continue our partnership on this challenging project. However, this project has become larger than anticipated during the proposal and scoping process over two years ago. Including the anticipated July billing, Interwest currently has approximately less than one month of funds available to continue our work. Over the last 16 months, billings have averaged $14,500 per month and we estimate it will take an additional 6 months to complete the review process. We respectfully request an augmentation to the existing project budget of $102,000 This includes a budget increase of $12,237 for sub consultant drafting services, Blackburn Consulting. Below is a brief justification summary for this augmentation request.
Original Scope of Work
Based on the City‘s RFP and Interwest ‘s proposal, the intent was to update City Standard Specification documents to meet current 2022 State Standard Specifications and State Standard Plans as necessary and various City Master Plans and new Specific Plans, as appropriate. The intent was to revise approximately 30% of the documents and there was a need for a standard update on all Standard Details (0.5 hrs. per drawing) and a more detailed update on 20% of the Standard Details (2 hrs. per drawing). The entire updating project was estimated to take 30 weeks.
Issues and Extra Work Needed to Complete the Review
The research and initial review process went smoothly. The Caltrans 2023 update was incorporated into the process. All documents were reviewed including the standard drawings, by early January 2024. Many sections of the documents were found to be out of date, particularly related to new construction materials, methods and construction. This created a situation requiring City staff additional time to review and provide specific direction to make needed revisions to the documents.
Certain sections of documents required total rewriting. In addition, the City found revised Standard Detail files that were created but never implemented. These details had many revisions to the current Standard Details that 257
needed to be reviewed and incorporated into the set being updated. Moving forward a revision of Standard Detail format has been added to aid in this process. Both the City and Interwest are working on up to 15 new drawings to be added to the Standard Drawings.
Our Interwest team has been able to stretch our approved budget, that was intended to cover 30 weeks to 68 weeks, while providing a thorough and high level of service in this updating process. We anticipate the number of review meetings will be 50% greater than originally proposed. The Interwest team is committed to finishing this review process with City staff. We are requesting this augmentation to properly complete the work to the level we believe the City needs as it moves into the future.
Requested Budget Augmentation
Based on the revised project scope, the proposed request is being made for an increase of $102,000.
Engineering services will be billed based on time and materials in accordance with the terms of the contract. I/We are available to meet with you in person to discuss further should you so desire.
Respectfully submitted,
Bill Evans
Vice President, Public Works Group
Mobile: 786 350 8190
[email protected]
258
Interwest Consulting
CDD23-027 Standard Specifications and Details Update
Expires 02/15/2026
AMENDMENT NO. 1
to the
CONTRACT FOR SERVICES
between the
CITY OF WEST SACRAMENTO
and
INTERWEST
Dated February 15, 2023
This Amendment No. 1 to the Contract for Services between the City of West Sacramento and INTERWEST dated February 15, 2023, is made and entered into this 18th day of September, 2024. Except as expressly amended herein, the February 15, 2023 Contract for Services is in full force and effect.
RECITALS
WHEREAS, the City and Consultant executed a contract for services for the consultant to update the City Standard Specifications and Details documents; and WHEREAS, unforeseen issues and out of date documents require additional time and compensation to complete the project; and
WHEREAS, the City and Consultant desire to amend said contract.
NOW, THEREFORE, IT IS MUTUALLY AGREED by parties hereto to amend said agreement as follows:
I. SCOPE OF SERVICES:
The scope of services as set forth in the Contract for Services dated February 15, 2023, shall be revised to reflect the additional tasks as outlined in Exhibit A.
II. COMPENSATION:
The compensation as set forth in the Contract for Services dated February 15, 2023, shall be revised to include the following:
Compensation shall be increased by $102,000 and total compensation shall not exceed $372,775, without City’s written approval.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as the date herein set forth.
CITY OF WEST SACRAMENTO
By:
Amanda Berlin, Assistant City Manager
INTERWEST
By:
Paul Meschino, President
259
Interwest Consulting
CDD23-027 Standard Specifications and Details Update
Expires 02/15/2026
APPROVED AS TO FORM
By:
Jeffrey Mitchell, City Attorney
ATTEST:
By: ________________________________________________________ Jennifer Cusmir, City Clerk 260
CITY COUNCIL AGENDA REPORT
MEETING DATE: September 18, 2024 ITEM # 6
SUBJECT:
CONSIDERATION OF RESOLUTION 24-99 ACCEPTING PUBLIC IMPROVEMENTS COMPLETED FOR PARCEL MAP 5125, LOCATED AT 425 G STREET
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [x] Staff
[ ] Other
Mark Collier, Principal Engineer
Community Development Department
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [X] Action
OBJECTIVE
To accept public improvements constructed Parcel Map 5125, located at 425 G Street.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council adopt Resolution 24-99, accepting the public improvements for Parcel Map 5125 (425 G Street).
BACKGROUND
Parcel Map 5125 and the associated Subdivision Improvement Agreement were approved by Council on January 20, 2021. As a condition of approval of said map, a Subdivision Improvement Agreement (SIA) was executed which obligates the developer to complete all required public improvements necessary to serve the property.
The required improvements included frontage improvements to meet current City Standard specifications on G Street across the map frontage.
ANALYSIS
The required public improvements for Parcel Map 5125 have been completed to the satisfaction of the City Engineer and Community Development Department. Acceptance of the improvements will allow for the release of posted securities per the terms outlined in the applicable Subdivision Improvement Agreement.
Environmental Considerations
The Planning Commission found the tentative map to be compliant with CEQA at the time of its approval. No additional findings are required with acceptance of the public improvements.
Commission Recommendation
The Planning Commission conditionally approved Tentative Parcel Map 5125 on October 19, 2019 Strategic Plan Integration
Acceptance of these improvements is consistent with the City’s “Principals to Guide the Future” by providing for “Vibrant Neighborhoods”.
Alternatives
Council may choose not to accept the public improvements at this time.
Coordination and Review
The completion of the required improvements has been approved by the City Engineer and the Community Development Department.
Budget/Cost Impact
There is no known fiscal impact.
ATTACHMENTS
1. Resolution 24-99
2. Vicinity Map
261
RESOLUTION 24-99
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO FOR ACCEPTANCE OF THE PUBLIC IMPROVEMENTS ASSOCIATED WITH PARCEL MAP 5125 WHEREAS, The City Council of the City of West Sacramento adopted Resolution 21-11 on January 20, 2021, approving Parcel Map 5125 and the associated Subdivision Improvement Agreement ; and
WHEREAS, said Improvement Agreement required the completion of certain public improvements; and
WHEREAS, the City Engineering Division has determined that all required improvements have been satisfactorily completed per City Standard Specifications; and WHEREAS, the developer has requested that the completed improvements be accepted by the City.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of West Sacramento hereby accepts the public improvements completed as a requirement of Parcel Map 5125 and approves the release of associated securities as provided for in the Subdivision Improvement Agreement.
PASSED AND ADOPTED by the City Council of the City of West Sacramento this 18th day of September, 2024 by the following vote:
AYES:
NOES:
ABSENT:
________________________________
Martha Guerrero, Mayor
ATTEST:
________________________________
Jennifer Cusmir, City Clerk
262
300ft
CITY COUNCIL AGENDA REPORT
MEETING DATE: September 18, 2024 ITEM # 7
SUBJECT:
CONSIDERATION OF RESOLUTION 24-89 REQUESTING AUTHORIZATION TO EXECUTE AND SUBMIT THE FISCAL YEAR 2024-25 TRANSPORTATION
DEVELOPMENT ACT CLAIM TO THE SACRAMENTO AREA COUNCIL OF
GOVERNMENTS
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [X] Staff
[ ] Other
Stephanie Chhan, Senior Transportation Planner
Community Development Department
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [ X ] Action
OBJECTIVE
This report's purpose is to request City Council authorization to execute and submit the 2024-2025 Transportation Development Act claim to the Sacramento Area Council of Governments.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council approve Resolution 24-89:
1) Authorizing the claim and allocation of up to $5,232,695.92 in Transportation Development Act Funds for Fiscal Year 2024-25 to support fixed-route, paratransit, and on-demand transit services, as well as the associated administration, planning and maintenance costs; and 2) Authorizing the City Manager, or designee, to execute and submit the Fiscal Year 2024-25 Transportation Development Act claim to the Sacramento Area Council of Governments.
BACKGROUND
The Transportation Development Act (TDA) is administered by the California Department of Transportation (Caltrans) and provides two sources of public transportation funding for local governments: Local Transportation Funds (LTF) and State Transit Assistance (STA) funds. The funds are intended for the development and support of public transportation needs that exist in California and are allocated to counties based on population, taxable sales and transit performance. LTF funds are primarily intended to support public transit services, but can support a wide variety of transportation programs including planning activities, pedestrian and bicycle facilities, road rehabilitation or other community transit, bus and rail projects. However, STA funds have more restrictive criteria and regulations that must be met in order to fund eligible expenses. Unlike LTF, STA funds may not be allocated for fund administration, streets, roads, or pedestrian/bicycle facility purposes.
The City must annually submit a claim for review and approval by the Sacramento Area Council of Governments (SACOG) Board of Directors to claim its allocation of TDA funds. Upon SACOG approval of the TDA Claim, Yolo County disburses the allocation request to the City.
West Sacramento anticipates $4,166,652 in Fiscal Year (FY) 2024-25 TDA fund revenues, per the Yolo County Estimated Findings of Apportionment updated in March 2024, in addition to $1,044,273.92 fund balance carried over from prior years. The 2024-25 Findings of Apportionment for Local Transportation Funds and the Allocation of State Transit Assistance Funds is included in Attachment 1.
ANALYSIS
On June 5, 2024, the City Council awarded a contract for professional services with Nomad Transit LLC to provide turnkey on-demand transit services for the West Sacramento On-Demand Rideshare Program. On July 8, 2024, the Yolo County Transportation District (YoloTD) adopted their FY 2024-25 budget. With these actions, the attached FY 2024-25 SACOG TDA Claim Packet (Attachment 2) reflects the FY 2024-25 projected expenses as summarized in Table 1.
Table 1: FY 2024-25 Projected TDA Expenses
Amount Source
YoloTD Transit Fixed-Route Service $2,122,895 LTF
YoloTD Transit Paratransit Service $342,000 STA + LTF
YoloTD Administrative Planning Fees $408,723 STA
264
Fiscal Year 2024-25 Transportation Development Act Claim September 18, 2024
Via On-Demand Transit Services $2,218,517.92 LTF
Bus Shelter & Yard Maintenance $35,000 LTF
SACOG Annual Planning Fees $105,560 LTF
TOTAL $5,232,695.92
Fund balances from previous years are requested to pay for the FY 2024-25 TDA claim expenses. Table 2 summarizes current allocations, claims, and remaining reserve fund balances for FY 2024-25. The $21,770 STA carry over balance reflects the increased STA allocation from the August 2023 Revised FY 2023-24 STA Allocation (Attachment 3). In June 2024, City Council approved Resolution 24-61 allocating up to $2,196,748 of TDA funds toward the On-Demand Rideshare Program. At the time, City staff did not revise estimates to include the August 2023 Revised FY 2023-24 STA Allocation. As part of Resolution 24-89, staff is requesting to increase the allocation of TDA funds for the On-Demand Rideshare Program to $2,218,517.92. This is because the unclaimed $21,770 STA funds through the Revised FY 2023-24 STA allocation can contribute to YoloTD transit expenses.
Table 2: Transportation Development Act Funds Balance
Carry Over from
Previous Years
FY 2024-25
TDA Allocation
FY 2024-25
Total Available
FY 2024-25
TDA Claim
Expenses
FY 2024-25
Remaining
Balance
LTF $1,044,273.92 $3,518,677 $4,562,950.92 $4,562,950.92 $0 STA $21,770 $647,975 $669,745 $669,745 $0
TDA
Totals $1,066,043.92 $4,166,652 $5,232,695.92 $5,232,695.92 $0 As indicated in prior workshops with the City Council, the On-Demand Rideshare Program has been previously supported with TDA carryover funds. FY 2024-25 would be the first year where the City will utilize all available TDA funding and will need to identify additional funding due to the funding needs for the On-Demand Rideshare Program. As such, in June 2024, the City Council also allocated one-time Bridge District funds of $3,160,368 to support the On-Demand Rideshare Program. Table 3 provides an update to the City Council on the On-Demand Rideshare Program’s estimated future funding needs. The estimated additional funds needed for the OnDemand Rideshare Program through FY 2026-27 decreased by $19,308.50 – from $1,051,702 to $1,032,393.50 – as detailed by Table 3.
Table 3: On-Demand Rideshare Program FY 2024-25 through FY 2026-27 Estimated Costs and Available Funding
FY 2024-25 FY 2025-26 FY 2026-27
Estimated Costs
Proposed Budget for Contracted
Services1
$3,251,610 $3,347,499 $3,447,838
Proposed Budget for Staff Time
and Resources2
$45,000 $46,350 $47,740
Total Estimated Costs $3,296,610 $3,393,849 $3,495,578
Available Funding
Estimated Available LTF3 $2,218,517.92 $1,150,000 $1,150,000 Estimated LTF + STA Rollover
Carried Forward
$288,650.174
$36,975.415
$0 $0
Estimated Fare Revenue
Available for Reinvestment
$383,044 $383,044 $383,044
Bridge District Funding $369,422.50 $1,860,805 $930,140.50 Total Funding Available $3,296,610 $3,393,849 $2,501,629.50 Additional City Funds Needed with Revenue Reinvested
- - ($1,032,393.50)
1 Budget for Contracted Services updated for Amendment No. 1 which added dashcams to the vehicle fleet as approved by the City Council through contingency on June 5, 2024 and authorization to execute Amendment No. 1 on August 21, 2024. 2 Staff time and resources for On-Demand Rideshare decreased to align with final FY 2023-24 staff time and resources costs. 3 Estimated Available LTF for FY 2024-25 has been updated to reflect updates to the FY 2023-24 STA allocation and the YoloTD’s FY 2025-26 budget, Five-Year Operating Budget Outlook. The Estimated Available LTF in future years assumes similar allocations and 265
Fiscal Year 2024-25 Transportation Development Act Claim September 18, 2024
expenditures to YoloTD for transit services and to SACOG for regional planning administrative costs. Should allocations be reduced or expenditures increase, the City may see less available funding. 4 FY 2023-24 On-Demand Rideshare Contract rollover updated after reconciling the final vehicle hours paid and the applied fare revenues. There is unused LTF grom the FY 2023-24 TDA claim. As such, the funding is carried forward to cover FY 2024-25 contracted services costs, reducing the Bridge District funding needs for FY 2024-25. 5 After reconciling staff time for FY 2023-24 On-Demand Rideshare Program and due to removing Indirect Cost Allocation Plan rate to staff time for this Program, there is still unused STA from the FY 2022-23 TDA Claim. As such, this funding is carried forward to cover FY 2024-25 staff time costs, reducing the Bridge District funding needs for FY 2024-25.
For FY 2024-25, staff is requesting City Council adopt Resolution 24-89 requesting authorization to execute and submit the Fiscal Year 2024-25 Transportation Development Act claim to SACOG (Attachment 4).
Environmental Considerations
Not applicable.
Commission Recommendation
Not applicable.
Strategic Plan Integration
Approving the submission of the annual TDA Claim supports the City’s mission to provide quality municipal services and inspire community improvements that add value to the lives of our residents, and directly implements the City’s Strategic Plan goals of fostering Sustainable Mobility Systems through the provision of convenient and sustainable transportation choices, supports climate goals by encouraging shared trips to help reduce greenhouse gas emissions, and preserve inclusive economic development strategies by connecting residents and workers to opportunities through affordable transportation services.
Alternatives
The City Council’s primary alternatives are:
1) Authorize staff to submit the TDA Claim to SACOG as presented herein. 2) Direct staff to modify the TDA Claim and return to City Council for further consideration. 3) Reject staff’s request to submit the TDA Claim to SACOG and provide staff with direction on next steps.
Staff recommends Alternative 1 as to not delay funding for city services.
Coordination and Review
This report and the FY 2024-25 TDA Claim was coordinated by the Transportation & Mobility Division of the Community Development Department, in conjunction with the YoloTD budget process and City Council approved West Sacramento On-Demand Rideshare program budget. Review was conducted by the City’s Finance Department and SACOG staff.
Budget/Cost Impact
As of FY 2024-25, the current TDA fund balance was accrued as a receivable with SACOG for $5,232,695.92.
The City Council previously approved an allocation of up to $2,196,748 in TDA funds toward the Via On-Demand Rideshare program in FY 2024-25 costs on June 5, 2024. Staff has reconciled budgets and made changes to the Via On Demand Rideshare Program and the transit planning and coordination costs, as reflected in the agenda report. The approval of this report will authorize the City to submit a claim to draw $5,232,695.92 for FY 2024-25 budgeted expenses, leaving an unearned remaining balance of $0 for future public transportation and other eligible costs.
ATTACHMENTS
1. Sacramento Area Council of Governments Fiscal Year 2024-25 Local Transportation Fund Findings of Apportionment and State Transit Assistance Allocation
2. Draft Fiscal Year 2024-25 Transportation Development Act Claim Packet
3. August 2023 Revised Fiscal Year 2023-24 State Transit Assistance Allocation
4. Resolution 24-89 Requesting Authorization to Execute and Submit FY 2024-25 TDA Claim to the Sacramento Area Council of Governments for Approval
266
Attachment A
County's Estimated June 30, 2024 Balance $0
Local Transportation Fund Income 2024-2025 $98,000,000
Less: County Administrative Costs -$22,000
Less: SACOG Administrative Costs -$1,094,414
Balance for Allocation $96,883,586
Jurisdication Population 1/
% of Total
Population
County
Finding of
Apportionment
SACOG
Planning
Available to
Jurisdiction
Pedestrians
& Bicycles 2/
Available to
Jurisdiction for
Article 4 and
Article 8
Sacramento County
(Unincorporated) 598,519 38.06% $36,876,566 $40,933 $36,835,633 $737,531 $1,296,210 Citrus Heights 85,837 5.46% $5,288,677 $0 $5,288,677 $105,774 $0 Elk Grove 177,005 11.26% $10,905,813 $0 $10,905,813 $218,116 $0 Folsom 85,498 5.44% $5,267,790 $0 $5,267,790 $105,356 $0 Galt 25,557 1.63% $1,574,644 $47,239 $1,527,405 $31,493 $1,495,912 Isleton 759 0.05% $46,764 $1,403 $45,361 $935 $44,426
Rancho Cordova 81,117 5.16% $4,997,864 $0 $4,997,864 $99,957 $0 City of Sacramento 518,161 32.95% $31,925,467 $0 $31,925,467 $638,509 $0 TOTALS 1,572,453 100.00% $96,883,585 $89,575 $96,794,011 $1,937,671 $2,836,548 Jurisdication
Finding of
Apportionment
Finding of
Apportionment
Less Ped &
Bicycle
% of Population
Within
SRTD District
Allocation of
Finding of
Apportionment
SACOG
Planning
Amount
Available for To
Paratransit, Inc.
Amount
Available To
SRTD
Sacramento County
(Unincorporated) $36,876,566 $36,139,035 96.3% $34,801,891 $1,065,364 $1,740,095 $31,996,433 Rancho Cordova $4,997,864 $4,897,907 100% $4,897,907 $149,936 $244,895 $4,503,076 City of Sacramento $31,925,467 $31,286,958 100% $31,286,958 $957,764 $1,564,348 $28,764,846 City of Citrus Heights $5,288,677 $5,182,903 100% $5,182,903 $158,660 $259,145 $4,765,097 City of Folsom $5,267,790 $5,162,434 100% $5,162,434 $158,034 $258,122 $4,746,278 City of Elk Grove $10,905,813 $10,687,697 100% $10,687,697 $327,174 $534,385 $9,826,138 TOTALS $95,262,177 $93,356,934 $92,019,790 $2,816,932 $4,600,990 $84,601,868 PI-30% $1,380,297
SacRT=70% $3,220,693 $87,822,561
Regional Transit $87,822,561
Paratransit $1,380,297
SACOG $2,906,508
Ped/Bike $1,937,671
Other Jurisdictions $2,836,548
Total $96,883,585
1. Sources: Report E-5, Department of Finance, Demographic Research Unit, 2023
2. Amount available to jurisdictions for pedestrian and bicycle purposes (Article 3,Section 99233.3)
COUNTY OF SACRAMENTO
March 2024
FINDINGS OF APPORTIONMENT
LOCAL TRANSPORTATION FUNDS (LTF)
Fiscal Year 2024-2025
SACRAMENTO REGIONAL TRANSIT DISTRICT and PARATRANSIT
Sac County; 10:38 AM2/26/2024 FY 24-25 LTF-Finding of Apportionment.xlsx 267 Attachment A
County's Estimated June 30, 2024 Balance $1,600,148
Local Transportation Fund Income 2024-2025 5,907,699
Less: County Administrative Costs -2,500
Less: SACOG Administrative Costs -83,835
Balance for Allocation $7,421,512
Jurisdication Population 1/
% of Total
Population
County
Finding of
Apportionment
SACOG
Planning
Available to
Jurisdiction for
Article 4 and
Article 8 2/
Sutter County
(Unincorporated) 19,959 20.17% $1,496,948 $44,908 $1,452,040 Live Oak 9,515 9.62% $713,636 $21,409 $692,227
Yuba City 69,478 70.21% $5,210,929 $156,328 $5,054,601
TOTALS 98,952 100.00% $7,421,513 $222,645 $7,198,868
1. Sources: Report E-5, Department of Finance, Demographic Research Unit, 2023
COUNTY OF SUTTER
FINDINGS OF APPORTIONMENT
LOCAL TRANSPORTATION FUNDS (LTF)
2. Funds available for projects and programs under Article 4 and Article 8.
All or a portion may be available to the Sutter County depending on outcome of unmet needs finding.
March 2024
Fiscal Year 2024-2025
Sutter; 10:38 AM2/26/2024 FY 24-25 LTF-Finding of Apportionment.xlsx 268
Attachment A
County's Estimated June 30, 2024 Balance $1,378,708
Local Transportation Fund Income 2024-2025 13,136,338
Less: County Administrative Costs -10,000
Less: SACOG Administrative Costs -162,021
Balance for Allocation $14,343,025
Jurisdication Population 1/
% of Total
Population
County
Finding of
Apportionment
SACOG
Planning
Available to
Jurisdiction for
Article 4 and
Article 8 2/
Yolo County
(Unincorporated) 35,181 15.93% $2,284,507 $68,535 $2,215,972 Davis 64,097 29.02% $4,162,191 $124,866 $4,037,325
West Sacramento 54,187 24.53% $3,518,677 $105,560 $3,413,117 Winters 7,534 3.41% $489,226 $14,677 $474,549
Woodland 59,881 27.11% $3,888,422 $116,653 $3,771,769
TOTALS 220,880 100.00% $14,343,023 $430,291 $13,912,732
COUNTY OF YOLO
FINDINGS OF APPORTIONMENT
LOCAL TRANSPORTATION FUNDS (LTF)
2. Funds available for projects and programs under Article 4 and Article 8.
All or a portion may be available to the Yolo County depending on outcome of unmet needs finding.
1. Sources: Report E-5, Department of Finance, Demographic Research Unit, 2023 Fiscal Year 2024-2025
March 2024
Yolo; 10:38 AM2/26/2024 FY 24-25 LTF-Finding of Apportionment.xlsx 269
Attachment A
County's Estimated June 30, 2024 Balance $466,556
Local Transportation Fund Income 2024-2025 2,178,296
Less: County Administrative Costs -750
Less: SACOG Administrative Costs -29,535
Balance for Allocation $2,614,567
Jurisdication Population 1/
% of Total
Population
County
Finding of
Apportionment
SACOG
Planning
Available to
Jurisdiction for
Article 4 and
Article 8 2/
Yuba County
(Unincorporated) 66,260 80.14% $2,095,398 $62,862 $2,032,536 Marysville 12,606 15.25% $398,651 $11,960 $386,691
Wheatland 3,811 4.61% $120,519 $3,616 $116,903
TOTALS 82,677 100.00% $2,614,568 $78,438 $2,536,130
1. Sources: Report E-5, Department of Finance, Demographic Research Unit, 2023
FINDINGS OF APPORTIONMENT
LOCAL TRANSPORTATION FUNDS (LTF)
COUNTY OF YUBA
2. Funds available for projects and programs under Article 4 and Article 8.
All or a portion may be available to the Yuba County depending on outcome of unmet needs finding.
March 2024
Fiscal Year 2024-2025
Yuba; 10:38 AM2/26/2024 FY 24-25 LTF-Finding of Apportionment.xlsx 270
Attachment A
County Administration
Fees
Planning
Fees Total Fees
Sacramento $1,094,414 $2,906,508 $4,000,922
Sutter $83,835 $222,645 $306,480
Yolo $162,021 $430,291 $592,312
Yuba $29,535 $78,438 $107,973
Total $1,369,805 $3,637,882 $5,007,687
FY23-24-Includes Sac. County revisions $5,068,551
difference -$60,864
Change in SACOG (fees) revenue estimates -1.20%
Fiscal Year 2024-2025-March
SACOG ADMINISTRATIVE AND PLANNING FEES ESTIMATES
271
Attachment A
POPULATION
AS A ALLOCATION 2/ ALLOCATION 2/ STA
JURISDICTION POPULATION 1/ % OF TOTAL PUC 99313 PUC 99314 Total
SACRAMENTO COUNTY
Unincorporated 598,519 30.31% $7,157,170 3/ $97,199 $7,254,369 Citrus Heights-SacRT 85,837 4.35% $1,026,450 4/ $1,026,450 Elk Grove-SacRT 177,005 8.96% $2,116,649 4/ $2,116,649
Folsom-SacRT 85,498 4.33% $1,022,397 4/ $1,022,397
Galt 25,557 1.29% $305,614 $305,614
Isleton 759 0.04% $9,076 $9,076
Rancho Cordova-SacRT 81,117 4.11% $970,008 4/ $970,008
Sacramento-SacRT 518,161 26.24% $6,196,239 4/ $6,196,239 Sacramento Regional Transit District NA NA NA $7,237,918 $7,237,918
YOLO COUNTY
Unincorporated 35,181 1.78% $420,699 $420,699
Davis 64,097 3.25% $766,481 $241,770 $1,008,251
West Sacramento 54,187 2.74% $647,975 $647,975
Winters 7,534 0.38% $90,093 $90,093
Woodland 59,881 3.03% $716,065 $716,065
Yolo County Transportation District NA NA NA $383,373 $383,373
SUTTER COUNTY
Unincorporated 19,959 1.01% $238,672 5/ $238,672
Live Oak 9,515 0.48% $113,782 5/ $113,782
Yuba City 69,478 3.52% $830,827 5/ $830,827
YUBA COUNTY
Unincorporated 66,260 3.36% $792,346 5/ $792,346
Marysville 12,606 0.64% $150,744 5/ $150,744
Wheatland 3,811 0.19% $45,573 5/ $45,573
Yuba-Sutter Transit Authority NA NA NA $109,819 $109,819 TOTAL 1,974,962 100.00% $23,616,860 6/ $8,070,079 $31,686,939 % in RT District Transfer to SRTD Sacramento County
County of Sacramento Total $7,157,170 96.3% $6,892,355 $264,815 Rancho Cordova City Total $970,008 100.0% $970,008
Sacramento City Total $6,196,239 100.0% $6,196,239
Citrus Heights City Total $1,026,450 100.0% $1,026,450
Folsom City Total $1,022,397 100.0% $1,022,397
Elk Grove City total $2,116,649 100.0% $2,116,649
Available to SRTD $18,224,098 Total $18,224,098
Available to County of Sacramento $264,815 99314 $7,237,918 Available to Yuba-Sutter Transit Authority $2,281,763 Total Allocation 25,462,016
1. Sources: Report E-5, Department of Finance, Demographic Research Unit, 2023
2. Entire amount must be used for transportation planning and mass transportation purposes.
3. 96.3% is reserved for Sacramento Regional Transit District. 4. 100% is reserved for Sacramento Regional Transit District.
5. 100% is reserved for Yuba-Sutter Transit Authority. 6. This is the total PUC Section 99313 Allocation to SACOG for the fiscal year March 2024
SACRAMENTO AREA COUNCIL OF GOVERNMENTS
Regional Share of Statewide PUC Allocation: $31,686,939
ALLOCATION OF STATE TRANSIT ASSISTANCE FUNDS (STA)
Fiscal Year 2024-2025
PUBLIC UTILITY CODE SECTION 99313 & 99314
9931310:49 AM:2/21/2024 FY 24-25 STA Allocation.xls
272
Attachment 2
TRANSPORTATION
DEVELOPMENT ACT
CLAIM PACKET
Sacramento Area Council of Governments
1415 L Street. Suite 300
Sacramento, CA 95814
273
TRANSPORTATION DEVELOPMENT ACT
CLAIM CHECKLIST
Please check the following, items as being either included with the attached TDA claim package or are on file at SACOG.
Item Claimant Attached On file
TDA-1 Annual Transportation Development Claim All claimants ☒ N/A TDA-2 Project and Expenditure Plan (for the fiscal year of this claim and the prior fiscal year) All claimants ☒ N/A TDA-3 Status of Previously Approved Projects All claimants ☒ N/A TDA-4 Statement of Conformance All claimants ☒ N/A
TDA-5 TDA Claim Certification All claimants ☒ N/A
Resolution by governing body that authorized the claim All claimants ☒ N/A If Claimant is a Transit Agency or Jurisdiction is Contracting for Transit Service CHP Safety Compliance Report
(Completed within the past 13 months)
Claimants for
transit service ☐ ☐N/A
Adopted or proposed budget for the fiscal year of the claim
Claimants for
transit service ☐ ☒
Signed copy of transit service contract Claimants for transit service ☐ ☒
Area wide transfer agreement, resolution
Claimants that
allow intersystem transfers
☐ ☒
Information establishing eligibility under efficiency criteria – STA Operator Qualifying Criteria calculation based on Section 99314.6
Claimants for
revenue-based
STA funds
☐ ☒
Certification that claim is consistent with Capital
Improvement Program
Claimants for
bike/ped facilities ☐ ☐N/A
Compliance with PUC Sec. 99155 & 99155.5 Claimants for transit service ☐ ☒
Copy of Ten Year Capital & Operations Program Claimants for transit service ☐ ☐N/A
274
TDA-1
TRANSPORTATION DEVELOPMENT ACT CLAIM
TO: Sacramento Area Council of Governments
1415 L Street, Suite 300
Sacramento, CA 95814
FROM: Claimant City of West Sacramento__________________ Address 1110 West Capitol Avenue__________________
City West Sacramento_______ Zip Code 95691______
Contact Person Stephanie Chhan/Holly Lyon__________
Phone (916) 617-5306___ Email [email protected] [email protected]
The above claimant hereby requests, in accordance with authority granted under the Transportation Development Act and applicable rules and regulations adopted by the Sacramento Area Council of Governments (SACOG), that its request for funding be approved as follows:
LTF $1,044,273.92 (FY 2023/2024)
$3,518,677.00 (FY 2024/2025)
STA $21,770.00 (FY 2023/2024)
$647,975.00 (FY 2024/2025)
STA-SGR $ (FY / )
(Specify STA and/or STA-SGR)
Submitted By Stephanie Chhan
Title Senior Transportation Planner
Date
275
TDA-2
ANNUAL PROJECT AND EXPENDITURE PLAN
Claimant: City of West Sacramento Fiscal Year: 2024-25
SOURCES OF FUNDING
Project Title and TDA
Article Number TDA
LTF
TDA
STA
TDA
STASGR
Transit
Fares
Measure
A
Road
Fund
Developer
Fees/Const.
Tax
Federal
/
State
Other TOTAL
YoloTD Fixed Route.
Article 8 Section 99400 (c)
/ Article 4 Section 6731 (b)
$2,122,895 $2,122,895.00
YoloTD Paratransit.
Article 4 Section 6731 (b) $80,978 $261,022 $342,000.00 YoloTD Administrative
Planning. Article 4 Section
6731 (b)
$408,723 $408,723.00
Bus Shelter Maintenance
and Harbor Yard
Article 8 Section 99260 (a)
$35,000 $35,000.00
Via On-Demand Transit
Planning & Operations.
Article 8 Section 99400 (c)
$2,218,517.92 $383,044 $369,422.50 $2,970,984.42
SACOG Planning $105,560 $105,560.00
TOTAL REQUEST $4,562,950.92 $669,745 $ $383,044 $ $ $ $ $369,422.50 $5,985,162.42 276
TDA-3
STATUS OF PREVIOUSLY APPROVED PROJECTS
Instructions: Describe the status of all prior fiscal year TDA claim projects and any projects from previous years, which are still active.
Include both operating and capital projects
Approved amounts should be as specified in TDA claims approved by SACOG Expenditures should be to date
Project status should be either "Complete" or "Active" Fiscal
Year Project Title Amount Approved Expenditures Project Status 18/19 STA FY 23/24 YoloBus
Fixed Route $8,139.99 $8,139.99 Complete
19/20 STA FY 23/24 YoloBus
Fixed Route $477,692.00 $477,692.00 Complete
20/21 STA FY 23/24 YoloBus
Fixed Route $282,114.00 $282,114.00 Complete
21/22 STA FY 23/24 YoloBus
Fixed Route $461,163.00 $461,163.00 Complete
22/23 STA FY 23/24 YoloBus
Fixed Route $503,821.00 $503,821.00 Complete
22/23 LTF FY 23/24 YoloBus
Fixed Route $512,795.01 $512,795.01 Complete
22/23 STA FY 23/24 YoloBus ADA
Paratransit $154,619.00 $154,619.00 Complete
23/24 STA FY 23/24 YoloBus ADA
Paratransit $261,381.00 $261,381.00 Complete
23/24 STA YCTD Admin $369,078.00 $369,078.00 Complete
22/23 LTF Bus Shelter and Harbor
Yard $35,000.00 $35,000.00 Complete
22/23 LTF FY23/24 Via OnDemand Transit
Planning & Operations
$262,622.13 $262,622.13
Complete
23/24 LTF
FY23/24 Via OnDemand Transit
Planning & Operations
$2,636,756.08 $2,348,105.91
Complete;
City will
expend
remaining
funding for
FY 24-25 Via
On-Demand
Transit
Planning &
Operations
277
23/24 LTF FY 23/24 SACOG
Planning $113,846.00 $113,846.00 Complete
TOTAL $6,079,027.21 $5,790,377.04
278
TDA-4
STATEMENT OF CONFORMANCE
Form TDA-4 must be completed and signed by the Administrative Office of the submitting claimant.
The City of West Sacramento hereby certifies that the Transportation Development Act claim for fiscal year(s) 2024-25 in the amount of $4,562,950.92 (LTF), $669,745 (STA) and $0 (STA-SGR) for a total of $5,232,695.92 conforms to the requirements of the Transportation Development Act and applicable rules and regulations. (See Attachment A for listing of conformance requirements)
Certified by Chief Financial Officer
Title Director of Finance
Date
279
TDA-5
TDA Claim Certification Form
I, Roberta Raper, Chief Finance Officer for the City of West Sacramento, do hereby attest, as required under the California Code of Regulations, Title 21, Division 3, Chapter 2, Section 6632, to the reasonableness and accuracy of the following:
(a) The attached budget or proposed budget for FY 2024/2025. (b) The attached certification by the Department of the California Highway Patrol verifying that YoloTD is in compliance with Section 1808.1 of the Vehicle Code, as required in Public Utilities Code Section 99251.
(c) The estimated amount of $5,232,695.92 maximum eligibility for moneys from the local transportation fund and the state assistance fund, as defined in Section 6634, is $5,232,695.92.
(Signature) Chief Financial Officer
City of West Sacramento
(Agency Name)
(Date)
280
ATTACHMENT A
CONFORMANCE - TDA CLAIMANTS
Standard Assurances
1) 180-Day Certified Fiscal Audit (Applies to all claims; SACOG administers fiscal audits for all operators in the region, with the exception of the Sacramento Regional Transit District) -Assurance that the claimant has submitted a satisfactory independent fiscal audit, with required certification, to SACOG and to the State Controller not more than 180 days after the end of the prior fiscal year (Sections 99245 and 6664). 2) 90-Day Annual State Controller Report (Applies to all transit claims) – Assurance that claimant has submitted this report to the State Controller in conformance with the uniform system of accounts and record not more than 90 days after the end of the prior fiscal year (110 days for electronically submissions) (Section 99243). Claimant should also supply a copy of the State Controller report (SCR) to SACOG no more than 120 days after the end of the prior fiscal year.
3) Use of Federal Funds (Applies to all Article 4 claims) – Claimant filing a claim for TDA funds for capital intensive projects pursuant to Section 99268.7 certifies that is has made every effort to obtain federal funding for any project which is funded pursuant to Section 99268.7.
Claimant qualifying for funds pursuant to Section 99268.1 and tiling a claim for TDA funds in excess of the amount allowed by Section 99268 certifies that such funds are required in order to obtain maximum federal operating funds in the year such funds are claimed pursuant to Section 6633.1.
4) Elderly/Disabled (Applies to all transit claims) – That the transit operator is question is in compliance with Section 99155 pertaining to reduced transit fares for elderly and disabled persons and Section 99155.5 pertaining to dial-a-ride and paratransit services. 5) Farebox Recovery Ratio Requirements (Applies to all transit claims) – Claimant filing a claim for LTF or STA funds certifies that it will maintain for the project that ratio of fare revenues and local support to operating cost required under Sections 99268 (including all subparts), 99270.1, 99270.2, 99270.6, and under the “Farebox Requirements for Urbanized and Non-Urbanized Service’ adopted by the SACOG Board of Directors on March 18, 1982, whichever is appropriate.
Exceptions:
6) 50% Expenditure Limitation (Applies only to claims for LTF) – Claimant certifies that it 281
was in compliance with Section 99268 certifying that it (the claim) will not exceed 50% of the amount required to meet operating, maintenance, capital and debt service costs of the transit system after deduction of approved federal grants and STA funds estimated to be received for the system. (A claimant can received up to 100% of capital costs for gradeseparated mass transit projects under Section 99268 and 99281, for capital intensive transit-related projects under Section 99268.7. and for extension of services under Section 6619.1 and 6633.8)
7) Extension of Services (Applies only to LTF claims) - Claimant who received an allocation of LTF funds for extension of service pursuant to Section 99268.8 certifies that it will file a report of these services pursuant to Section 6633.8(b) within 90 days after close of the fiscal year in which that allocation was granted.
8) Retirement System (Applies only to LTF claims) - Claimant certifies that (1) the current cost of its retirement system is fully funded with respect to the officers and employees of its public transportation system; or (2) the operator is implementing a plan approved by SACOG which will fully find the retirement system for such officers and employees within 40 years; or (3) the operator has a private pension plan which sets aside and invests, on a current bases, funds sufficient to provide for the payment of future pension benefits and which is fully compliant with the requirements stated in Section 99272 and 99273. 9) Maximum Use of Local Transportation Funds (Applies only to Sacramento Regional Transit District STA claim) - That the operator is receiving the maximum allowable amount from the Local Transportation Fund.
10) Part-Time Employees (Applies only to claims for STA) - Claimant certifies that it is not precluded by any contract entered into on or after June 28, 1979 from employing part-time drivers or contracting with common carriers of persons operating under a franchise or license. Claimant further certifies that no person who was a full-time employee on June 28, 1979 shall have his/her employment terminated or his/her regular hours of employment, excluding overtime, reduced as a result of it employing part-time drivers or contracting with such common carriers.
11) Conformance with the Metropolitan (Regional) Transportation Plan (Applies only to claims for STA) - Claimant certifies that all of the purposes for claim expenditures are in conformance with the current Short Range Transit Plan, which is an appendix to the Metropolitan (Regional) Transportation Plan.
12) Full Use of Federal Funds (Applies only to STA claims) - Claimant certifies that it is making full use of federal funds available under the Urban Mass Transportation Act of 1964, as amended.
282
13) Implementation of Productivity Improvements (Applies only to STA claims) - Claimant certifies that the operator has made a reasonable effort to implement the productivity improvements recommended pursuant to Section 99244.
283
Attachment A
POPULATION
AS A ALLOCATION 2/ ALLOCATION 2/ STA
JURISDICTION POPULATION 1/ % OF TOTAL PUC 99313 PUC 99314 Total
SACRAMENTO COUNTY
Unincorporated 604,272 30.53% $7,459,228 3/ $100,553 $7,559,781 Citrus Heights-SacRT 86,367 4.36% $1,066,128 4/ $1,066,128 Elk Grove-SacRT 176,972 8.94% $2,184,570 4/ $0 $2,184,570 Folsom-SacRT 84,592 4.27% $1,044,217 4/ $0 $1,044,217
Galt 25,239 1.28% $311,554 $311,554
Isleton 780 0.04% $9,628 $9,628
Rancho Cordova-SacRT 80,359 4.06% $991,964 4/ $991,964
Sacramento-SacRT 518,037 26.17% $6,394,729 4/ $6,394,729 Sacramento Regional Transit District NA NA NA $7,487,611 $7,487,611
YOLO COUNTY
Unincorporated 35,900 1.81% $443,155 $443,155
Davis 64,869 3.28% $800,753 $250,111 $1,050,864
West Sacramento 52,837 2.67% $652,228 $652,228
Winters 7,422 0.37% $91,618 $91,618
Woodland 60,137 3.04% $742,340 $742,340
Yolo County Transportation District NA NA NA $396,598 $396,598
SUTTER COUNTY
Unincorporated 20,088 1.01% $247,969 5/ $247,969
Live Oak 9,394 0.47% $115,961 5/ $115,961
Yuba City 69,663 3.52% $859,931 5/ $859,931
YUBA COUNTY
Unincorporated 65,787 3.32% $812,085 5/ $812,085
Marysville 12,824 0.65% $158,301 5/ $158,301
Wheatland 3,664 0.19% $45,229 5/ $45,229
Yuba-Sutter Transit Authority NA NA NA $113,608 $113,608 TOTAL 1,979,203 100.00% $24,431,590 6/ $8,348,481 $32,780,071 % in RT District Transfer to SRTD Sacramento County
County of Sacramento Total $7,459,228 96.4% $7,190,696 $268,532 Rancho Cordova City Total $991,964 100.0% $991,964
Sacramento City Total $6,394,729 100.0% $6,394,729 January Estimates $31,719,397 Citrus Heights City Total $1,066,128 100.0% $1,066,128 August Revision $32,780,071 Folsom City Total $1,044,217 100.0% $1,044,217 Change in revenue 3% Elk Grove City total $2,184,570 100.0% $2,184,570
Available to SRTD $18,872,304 Total $18,872,304
Available to County of Sacramento $268,532 99314 $7,487,611 Available to Yuba-Sutter Transit Authority $2,353,084 Total Allocation 26,359,915
1. Sources: Report E-5, Department of Finance, Demographic Research Unit, 2022
2. Entire amount must be used for transportation planning and mass transportation purposes.
3. 96.4% is reserved for Sacramento Regional Transit District. 4. 100% is reserved for Sacramento Regional Transit District.
5. 100% is reserved for Yuba-Sutter Transit Authority. 6. This is the total PUC Section 99313 Allocation to SACOG for the fiscal year August 2023
SACRAMENTO AREA COUNCIL OF GOVERNMENTS
Regional Share of Statewide PUC Allocation: $32,780,071
ALLOCATION OF STATE TRANSIT ASSISTANCE FUNDS (STA)
Fiscal Year 2023-2024-Revised Revenue
PUBLIC UTILITY CODE SECTION 99313 & 99314
9931312:29 PM:8/15/2023 FY 23-24-revised STA Allocation.xls 284
Attachment 4
RESOLUTION 24-89
A RESOLUTION OF THE CITY COUNCIL OF WEST SACRAMENTO PROVIDING AUTHORIZATION TO EXECUTE AND SUBMIT THE FISCAL YEAR 2024-2025
TRANSPORTATION DEVELOPMENT ACT CLAIM TO THE SACRAMENTO AREA
COUNCIL OF GOVERNMENTS
WHEREAS, the State of California enacted the Transportation Development Act (TDA) in 1972 to provide funds for transportation needs each fiscal year; and WHEREAS, Section 99260 of the Public Utilities Code requires local agencies to file an estimated claim of transportation needs for each fiscal year with the Regional Transportation Planning Agency; and
WHEREAS, the Sacramento Area Council of Governments (SACOG) is the designated Regional Transportation Planning Agency to receive such claims for approval pursuant to the rules and regulations adopted by the Secretary of the Business and Transportation Agency; and
WHEREAS, SACOG has adopted a finding of apportionment for Local Transportation Funds and an allocation of State Transit Assistance Funds for Fiscal Year 2024-25; and
WHEREAS, on June 5, 2024, the City Council adopted Resolution 24-61, approving an allocation of up to $2,196,748 from the Transportation Development Act Fund for the On-Demand Rideshare Program; and
WHEREAS, due to reconciling August 2023 Revised FY 2023-24 State Transit Assistance Allocation resulting in a $21,770 unclaimed State Transit Assistance balance in Fiscal Year 2023-24; and
WHEREAS, the $21,770 unclaimed FY 2023-24 State Transit Assistance balance is applied to Fiscal Year 2024-25 expenses; and WHEREAS, the City’s current unrestricted TDA Fund reserve balance is approximately $1.07M and the total FY 2024/25 TDA Allocation is currently projected at approximately $4.17M, for a total of $5.23M in available TDA funds; and WHEREAS, the City of West Sacramento has identified $5,232,695.92 in transportation funding needs for Fiscal Year 2024-25.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of West Sacramento as follows:
1. The City Council hereby approves amendments to the budget for the 2024-25 fiscal year as provided below:
285
SOURCES
($1,155,567.00) 202-9220-4050 TDA LTF Funds
$2,218,517.92 202-9222-4050 TDA LTF Funds
$ 169,745.00 202-9220-4051 TDA STA Funds
$1,232,695.92 TOTAL SOURCES
$ 329,178.00 202-9220-5310 Yolo TD Transit Services and SACOG Fees ($ 46,604.50) 202-9222-5261 Via On-Deman Transit Services $ 10,394.24 202-9222-5259 City Administration Costs
$ 386,176.74 TOTAL USES
2. The City Council approves the attached Fiscal Year 2024-25 Transportation Development Act Claim for execution and submittal to Sacramento Area Council of Governments by the City Manager, or his designee, for approval.
3. The City Council hereby finds that the facts set forth in the recitals to this Resolution are true and correct and establish the factual basis for the City Council’s adoption of this Resolution.
4. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the City Council of the City of West Sacramento this 18th day of September 2024, by the following vote:
AYES:
NOES:
ABSENT:
___________________________________
Martha Guerrero, Mayor
ATTEST:
____________________________________
Jennifer Cusmir, City Clerk
286
CITY COUNCIL AGENDA REPORT
MEETING DATE: September 18, 2024 ITEM # 8
SUBJECT:
CONSIDERATION OF AWARD OF A PROFESSIONAL SERVICES CONTRACT TO MARK THOMAS & COMPANY, INC. FOR DEVELOPMENT OF CLARKSBURG BRANCH LINE EXTENSION: SOUTH CITY LIMIT TO CLARKSBURG (CIP 14063) AND ADOPTION OF RESOLUTION 24-84 APPROVING RELATED BUDGET ADJUSTMENTS
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [X] Staff
[ ] Other
Steven Rosen, Associate Transportation Planner
Community Development Department
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [X] Action
OBJECTIVE
The purpose of this report is to provide the City Council with sufficient information to approve the award of a professional services contract for preliminary engineering, final engineering design, environmental documentation, and right-of-way engineering and acquisition for the Clarksburg Branch Line Extension: South City Limit to Clarksburg (CIP 14063).
RECOMMENDED ACTION
Staff respectfully recommends that the City Council:
1) Award a contract for professional services with Mark Thomas for the development of the Clarksburg Branch Line Extension: South City Limit to Clarksburg (Project); 2) Authorize the City Manager, or their designee, to execute a professional services contract with Mark Thomas in the amount of $1,988,103 for the Clarksburg Branch Line Extension: South City Limit to Clarksburg;
3) Authorize the City Manager, or their designee, to make contract amendments up to a 10% contingency limit of $198,810;
4) Authorize the City Manager, or their designee, to execute non-substantive changes and modifications, or extensions for time, with approval from the City Attorney; and 5) Approve Resolution 24-84 authorizing the transfer of $248,761 from the One-Time General Fund (Fund 107) for contract tasks, staff time and resources as required to complete the Project.
BACKGROUND
The Clarksburg Branch Line Trail (CBLT) is a paved multi-use path extending approximately 16 miles from the northern city limit at North Harbor Boulevard to the unincorporated community of Clarksburg in Yolo County at Willow Point Road and Willow Avenue, utilizing former Yolo Short Line and Sierra Northern Railroad right-ofway. The City acquired this right-of-way between the barge canal locks and Willow Point Road near Clarksburg in 2005. Planning and development of this Project is consistent with the Clarksburg Community Action Plan calling for development of a trail within the former rail corridor; the West Sacramento Bicycle, Pedestrian and Trails Master Plan, Sacramento Area Council of Governments (SACOG) Regional Trail Network; Yolo County Transportation District Bike and Pedestrian Trail Network, Yolo County General Plan, and the Great California Delta Trail Master Plan.
The 1.2-mile section of the CBLT from Locks Drive to River City High School has been paved, and the Community Development Department is currently designing the section of trail from River City High School to the south city limit.
The City of West Sacramento, Yolo County, Yolo County Transportation District, and the Delta Protection Commission formed the Yolo-Delta Trail Coalition (“the Coalition”) for the purpose of completing this trail to Clarksburg. A Memorandum of Understanding (MOU) executed by all parties on February 28, 2024 formalized this partnership with the City acting as the lead partner responsible for administering grant funding and procurement and management of the consultant team responsible for environmental documentation, planning, design, and right of way engineering. Other Coalition members committed to a share of matching funds and in287 Professional Services Contract for the Great California Delta Trail - Clarksburg Branch Line Extension September 18, 2024
kind contributions to the project, as well as participation in community engagement, project reviews, policy development, and coordination with state and local agencies and elected officials.
Formation of the Coalition and MOU was key to applying for SACOG Carbon Reduction Program grant funding, and the Coalition was awarded $1,899,952, matched by a commitment of $217,925 in total local funds that include a $75,000 State funding commitment through the Delta Protection Commission, and $33,200 in in-kind match through the Yolo Active Transportation Corridors (YATC) plan, a long-term project that aims to develop a network of multi-use trails in Yolo County. These funds, in addition to local match and contingency from West Sacramento will be used to develop the Project to “shovel-ready” status in anticipation of applying for construction phase grant funding through SACOG, State ATP, or other available and applicable funding opportunities.
The Project consists of environmental documentation, preliminary and final engineering design for the mainline CBLT to Clarksburg, community engagement and public participation, right-of-way acquisition and certification, trail connection and improvement planning in Clarksburg associated with the YATC plan, trail program development, and project finance/maintenance plan. Analysis during grant development found that the CBLT connection to Clarksburg will find a significant number of users which may offset potential commute and recreation trips to reduce regional Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions and is an implementing project of the SACOG Regional Trail Network.
According to data obtained from the popular active transportation app “Strava”, the median bicycle trip distance for older riders (“Baby Boomers”) was 20.9 miles per ride, with younger (“Gen Z”) riders averaging 14 miles per ride. At approximately 13.75 miles to downtown Sacramento and approximately 11 miles to central West Sacramento, the ride is accessible to strong bicyclists and to the growing number who use e-bikes. The trail is projected to replace approximately 20,050 motor vehicle trips with bike rides, eliminate approximately 439,175 vehicle miles traveled, and save over 19,000 gallons of gasoline and 171 metric tons of Carbon Dioxide (CO2) equivalent annually.
The CBLT connection to Clarksburg will expand access for City residents, including those in disadvantaged or underserved neighborhoods, to recreational opportunities in the Delta region, and bicyclists from throughout the region are anticipated to use the trail, whether riding from outside the City or driving to the City to use our trailheads, which is anticipated to support local business and opportunity both in West Sacramento and Clarksburg communities. The following objectives have been identified for the Project:
• Facilitate safe active recreation for all (including equestrian) and connectivity between neighborhoods and communities within the region.
• Enhance public safety and communication access through provision of an underground high-speed fiber optic connection to Clarksburg.
• Educate trail users with interpretive signs and design elements that recalls local railroad and settlement history, honors Indigenous peoples, and acknowledges agricultural influence and importance of farming and water within the Sacramento-San Joaquin Delta National Heritage Area. • Explore future trail funding opportunities including Yolo-Delta Vine Trail marketing, utility leases, farm-tofork events, and other opportunities that benefit local businesses, area residents and enhance the local economy.
• Incorporate inclusion and equity through widespread outreach to inform, engage, and promote community participation in development of trail plans, amenities, trail programming, funding, and longterm maintenance strategy that includes public safety, monitoring, and trail adoption strategy.
ANALYSIS
This procurement was completed in accordance with the City’s procurement procedures for professional services and in compliance with federal procurement standards. The award is recommended to the firm offering the most comprehensive overall proposal considering such factors as, qualifications and experience, staffing and project organization, technical approach, and proposed schedule. State procurement laws prohibit consideration of price for evaluation and selection of the preferred candidate, and the cost proposal of the selected consultant was not opened until after evaluation and scoring of the shortlisted candidates was completed. The cost proposal for the shortlisted candidate not selected as the top selection remained unopened.
The shortlisted firm selected by an evaluation panel consisting of representatives from the City of West Sacramento Community Development, Parks and Recreation, and Capital Projects Departments, Yolo County, Yolo County Transportation District, and Delta Protection Commission was the engineering firm, Mark Thomas 288
Professional Services Contract for the Great California Delta Trail - Clarksburg Branch Line Extension September 18, 2024
and their team of subconsultants. Staff released and advertised a Request for Proposals (24-029-RFP) in accordance with City, State and Federal requirements on June 27, 2024. The RFP received four (4) proposals by the proposal submission deadline of August 9, 2024. The evaluation committee reviewed the proposals based on the evaluation criteria and determined the three firms responsive, listed below in alphabetical order:
Kimley-Horn and Associates, Inc.
(Raleigh, NC)
KPFF, Inc
(Seattle, WA)
Mark Thomas & Company, Inc.
(San Jose, CA)
One firm was determined non-responsive as the proposal did not address several of the requirements as indicated in the RFP. That firm is listed below:
M/S Sietricon
(Dhaka, Bangladesh)
On August 20th, the evaluation panel held interviews with two teams with the strongest scores. The panel interviews began with presentations to demonstrate the firms’ understanding of project purpose, need, and requirements. The firms’ project managers and key team members had an opportunity to present each team’s qualifications and respond to the evaluation committee’s questions. The panel asked each firm questions about its ability to work with community stakeholders, its capacity to complete the tasks on-schedule, and its experience relative to this Project. After considering the responses to the questions asked during the interviews, the evaluation committee entered their scores and reviewed the preliminary ranking which unanimously identified the firm Mark Thomas as the recommended candidate for contract award.
The City (as lead agency) and Mark Thomas entered into negotiation to refine the scope of work and cost proposal, as detailed in Attachment 2. The project is included in the current Capital Improvement Program as Clarksburg Branch Line Extension - South City Limit to Clarksburg. The CIP budget for the project of $2,117,877.00 included $142,925.00 of local Measure E funds, $1,899,952 in grants, and $75,000 in contributions from the Delta Protection Commission. The CIP budget does not include the value of community engagement and advance planning work done for the project through the Yolo Transportation District’s Yolo Active Transportation Corridors Plan or a $5,000 grant received from the Rails to Trails Conservancy. The $5,000 grant is included in the attached budget resolution for appropriation by Council.
Environmental Considerations
This action is not a "project" for the purposes of the California Environmental Quality Act, Public Resources Code section 21000 et seq. ("CEQA"), because it is not an activity that may cause either a direct or reasonably foreseeable indirect physical change in the environment and, therefore, pursuant to Public Resources Code section 21065 and CEQA Guidelines sections 15060(c) and 15378(a), it is not subject to environmental review.
The trail is partially federally funded and subject to the National Environmental Policy Act and the California Environmental Quality Act. This Project would perform all work necessary to gain environmental clearances required to construct the project prior to construction.
Commission Recommendation
This is an administrative item and does not have new policy implications that would require Transportation, Mobility, and Infrastructure Commission (TMI) input. As such, this item was not presented to the TMI Commission. Staff will return to the Commission and Council with updates throughout the development of the CBLT.
Strategic Plan Integration
This project advances the 2024 Strategic Plan Principles: “Mobility & Connectivity,” in support of providing convenient and sustainable choices for people to get where they are going, “Climate & Energy Resiliency,” in support of reducing climate impact and protecting the environment, and “Local Economic Development,” in 289
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support of catalyzing development in riverfront and downtown areas. The project is also consistent with the West Sacramento Bicycle, Pedestrian and Trails Master Plan.
Alternatives
The Council’s primary alternatives are:
1. Staff respectfully recommends that the City Council the recommended action as stated above.
2. City Council may elect to set forth proposed conditions or modifications to the scope of work proposed by staff.
3. City Council may elect not to approve the contract at this time.
Staff recommends Alternative 1. Staff does not recommend Alternatives 2 and 3, as the current scope of work was generally included in the grant application awarded by the Sacramento Area Council of Governments, coordinated across departments, and negotiated with firm Mark Thomas to meet grant and project objectives. It is essential to the project’s success that the contract be approved so that work can start immediately.
Approximately $1 million in right-of-way funding relies on environmental documentation being complete by September 30, 2025. Revisions or additional changes could cause delays to the start of work and risk exceeding that grant deadline. As this work is critical to implementing multiple City plans and goals to address mobility, safety, equity, and equality, Alternatives 2 and 3 are not recommended.
Coordination and Review
This report was prepared by the Transportation & Mobility Division of the Community Development Department and the project received review or support from the Finance Department, Capital Projects Department, Parks & Recreation Department, Yolo County, Yolo Transportation District, and Delta Protection Commission.
Budget/Cost Impact
The City and its Coalition partners were awarded a $1,899,952 SACOG Carbon Reduction Program grant. This grant requires a local match of at least $217,924.50 from the Coalition. This project, under the name Clarksburg Branch Line Extension - South City Limit to Clarksburg, was included in the midterm amendment to the Capital Improvement Program budget for Fiscal Year 2024-2025 (Resolution 24-92). The budget included $142,925 of City funds from Measure E (Fund 110) and $75,000 in State funding commitment through the Delta Protection Commission to complete the match requirement.
The breakdown of costs to provide the professional consultant services for the Clarksburg Branch Line Extension - South City Limit to Clarksburg Project are as follows:
PROJECT FUNDING
SACOG Carbon Reduction Program Grant $1,899,952
Delta Protection Commission Cash Contribution $75,000
Community Engagement by Yolo Transportation District (in-kind) $33,200 Rails to Trails Conservancy Grant $5,000
West Sacramento Matching Funds - Measure E (Fund 110) $142,925 Total Project Funding $2,156,077
Less in-kind match from YTD -$33,200
Total Project Funding (less in-kind match) $2,122,877
PROJECT COSTS
Negotiated Professional Services Contract with Mark Thomas & Company, Inc. $1,988,103 10% Contingency $198,810
Estimated Staff and Resources Cost (City and Others, 11.47% Local Match) $217,925 Total Project Cost $2,404,838
Less in-kind match from YTD -$33,200
Total Project Budget $2,371,638
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PROJECT SURPLUS/(DEFICIT) ($248,761)
Based on the information in the above table, there is a shortfall of $248,761, of which $198,810 would be held for contingencies. As such, staff is recommending City Council adoption of Resolution 24-84 appropriating $248,761 from the Measure E Fund (Fund 107) to the Clarksburg Branch Line Extension: South City Limit to Clarksburg Project (CIP 14063). The attached resolution also appropriates the $5,000 grant from Rails to Trails Conservancy.
ATTACHMENTS
1. Resolution 24-84
2. Mark Thomas & Company, Inc. Contract for Services
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Attachment 1
RESOLUTION 24-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO AUTHORIZING THE TRANSFER OF $248,761 FROM THE ONE-TIME GENERAL FUND FOR THE CLARKSBURG BRANCH LINE EXTENSION – SOUTH CITY LIMIT TO CLARKSBURG PROJECT (CIP 14063).
WHEREAS, on June 20, 2024 the City of West Sacramento was awarded $1,899,952 in grant funding from the Sacramento Area Council of Governments for the Carbon Reduction Program for the Clarksburg Branch Line Extension - South City Limit to Clarksburg, for a scope of work that would result in preliminary engineering, final engineering, environmental exemption documentation, and right-of-way for the portion of the Clarksburg Branch Line Trail extending from the south city limit to Willow Point Road; and
WHEREAS, the City Council approved Resolution 24-92 on August 21, 2024, to authorize an allocation in the amount of $2,177,877.00 toward the project Clarksburg Branch Line Extension - South City Limit to Clarksburg (CIP 14063), which included a $1,899,952 Carbon Reduction Program grant from SACOG, a $75,000 contribution from the Delta Protection Commission, and $142,925 from the Measure E Fund (Fund 110); and WHEREAS, a Request for Proposal for planning, environmental, engineering, and right-of-way services was released on June 27, 2024; and WHEREAS, staff is recommending that City Council award a contract for professional services with Mark Thomas & Company, Inc., in the amount of $1,988,103; and WHEREAS, a 10% contract contingency of $198,810 would ensure project completion if unexpected complications arise; and
WHEREAS, staff costs require funding of $217,925 to support the contract and ensure project completion; and
WHEREAS, the Capital Improvement Program allocated the project only $2,177,877, while the expected cost is $2,404,837.50, resulting in a shortfall of $248,761; and WHEREAS, staff is proposing to transfer an additional $248,761 of One-time General Fund (Fund107) to the project to ensure completion and the securing of approximately $900,000 of funding for right-of-way;
WHEREAS, the City Council authorizes the City Manager to amend the contract up to $198,810 should the optional tasks prove necessary or contingencies require it; and WHEREAS, there are sufficient funds available in the sources identified to fund the additional appropriations as requested for this project; and WHEREAS, the City Council has considered all information related to this matter, as presented at the public meetings of the City Council identified herein, including any supporting reports by City staff, and any other information provided during public meetings.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Sacramento as follows:
1. The City Council hereby approves amendments to the budget for the 2024-25 fiscal year as provided below:
SOURCES
$248,761 107-0000-3110 One-Time General Fund Balance
$5,000 400-9900-4440/14063-4440 Rails to Trails Grant Revenue 292
Resolution 24-84
$248,761 400-9900-4990/14063-4990 Tsfr from One-Time General Fund $253,761 Total Sources
USES
$253,761 400-9900-5530/14063-5261 Clarksburg Branch Line Extension $248,761 107-9910-5950 Transfer to Project
$253,761 Total Uses
*Note – Interfund transfers are not included in funding sources and uses total to avoid duplication of total project budget and funding.
2. The City Council hereby finds that the facts set forth in the recitals to this Resolution are true and correct and establish the factual basis for the City Council’s adoption of this Resolution.
3. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the West Sacramento City Council this 18th day of September, 2024 by the following vote:
AYES:
NOES:
ABSENT:
Martha Guerrero, Mayor
ATTEST:
Jennifer Cusmir, City Clerk
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FEDERAL CONTRACT FOR PROFESSIONAL SERVICES
TABLE OF CONTENTS
1. SCOPE OF SERVICES: ..................................................................................................4
2. TERM OF CONTRACT ....................................................................................................4
3. COMPENSATION: ............................................................................................................5
4. COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS ............................7
5. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES ....................7
6. PROMPT PAYMENT FROM CITY TO CONSULTANT ..............................................8
7. TERMINATION ..................................................................................................................8
8. AMENDMENTS, CHANGES OR MODIFICATIONS ...................................................9
9. EXTENSIONS OF TIME ..................................................................................................9
10. FUNDING REQUIREMENTS ..........................................................................................9
11. PROPERTY OF CITY .....................................................................................................10
12. RECORD RETENTION ..................................................................................................10
13. AUDIT/AUDIT REVIEW..................................................................................................10
14. COMPLIANCE WITH ALL LAWS: ................................................................................12
15. WARRANTIES AND RESPONSIBILITIES - CONSULTANT ...................................13
16. SUBCONTRACTING ......................................................................................................13
17. PROMPT PROGRESS PAYMENT ..............................................................................14
18. ASSIGNABILITY..............................................................................................................15
19. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION ...........15
20. INTEREST IN CONTRACT ...........................................................................................22
21. MATERIALS CONFIDENTIAL ......................................................................................23
22. LIABILITY OF CONSULTANT-NEGLIGENCE ...........................................................24 294
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23. INDEMNITY AND LITIGATION COSTS ......................................................................24
24. CLAIMS FILED BY CITY’s CONSTRUCTION CONTRACTOR ..............................24
25. DISPUTES........................................................................................................................25
26. CONSULTANT TO PROVIDE INSURANCE ..............................................................25
27. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE ..........27
28. TITLE VI ASSURANCES ...............................................................................................29
29. CONTRACT: ENTIRE CONTRACT .............................................................................34
30. NOTICE ............................................................................................................................34
31. MISCELLANEOUS PROVISIONS: ..............................................................................34 EXHIBIT A – CONSULTANT PROPOSAL/SCOPE OF WORK .........................................37 EXHIBIT B – SCHEDULE OF PERFORMANCE ..................................................................38 EXHIBIT C – SCHEDULE OF FEES .......................................................................................39 EXHIBIT D – CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700 .............40 EXHIBIT E – LABOR COMPLIANCE .....................................................................................41 EXHIBIT F – FEDERAL CONTRACT PROVISIONS ...........................................................44
1. TERMINATION FOR CAUSE .......................................................................................44
2. EQUAL EMPLOYMENT OPPORTUNITY ...................................................................45
3. DAVIS-BACON ACT (40 U.S.C. §§ 3141-3144 and 3146-3148) ............................46
4. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR Contract ..............46
5. CLEAN AIR ACT .............................................................................................................47
6. FEDERAL WATER POLLUTION CONTROL ACT ....................................................48
7. DEBARMENT AND SUSPENSION..............................................................................48
8. NATIONAL LABOR RELATIONS BOARD CERTIFICATION ..................................49
9. BYRD ANTI-LOBBYING AMENDMENT 31 U.S.C. § 1352 (AS
AMENDED) ......................................................................................................................49 295
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10. NO OBLIGATION BY FEDERAL GOVERNMENT ....................................................50
11. PROCUREMENT OF RECOVERED MATERIALS ...................................................50
12. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT ........................................................51
13. DOMESTIC PREFERENCES FOR PROCUREMENTS ...........................................52 EXHIBIT G – Consultant Questionnaire ................................................................................1 296
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THIS CONTRACT is made on September 18, 2024, by and between the CITY OF WEST SACRAMENTO (“City”), and Mark Thomas & Company, Inc (“Consultant”).
WITNESSETH:
WHEREAS, the City desires professional services contract for preliminary engineering, final engineering, environmental exemption documentation, and right-of-way for the Clarksburg Branch Line Extension: South City Limit to Clarksburg;
WHEREAS, the Consultant has presented a proposal for such services to the City, dated September 4, 2024, (attached hereto as Exhibit “A”) and is duly licensed, qualified and experienced to perform those services;
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. SCOPE OF SERVICES:
A. Consultant shall do all work, attend all meetings, produce all reports and carry out all activities necessary to completion of the services described the Scope of Work, attached hereto and incorporated herein by this reference as Exhibit “A”. This Contract and its exhibits shall be known as the “Contract Documents.” Terms set forth in any Contract Document shall be deemed to be incorporated in all Contract Documents as if set forth in full therein. In the event of conflict between terms contained in these Contract Documents, the more specific term shall control. If any portion of the Contract Documents shall be in conflict with any other portion, provisions contained in the Contract shall govern over conflicting provisions contained in the exhibits to the Contract.
B. Consultant enters into this Contract as an independent contractor and not as an employee of the City. The Consultant shall have no power or authority by this Contract to bind the City in any respect. Nothing in this Contract shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Consultant are employees, agents, contractors or subcontractors of the Consultant and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Consultant by any such employees, agents, contractors or subcontractors, or any other person resulting from performance of this Contract.
C. The Consultant agrees it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Contract is based on such independent investigation and research.
2. TERM OF CONTRACT
A. The services of Consultant are to commence upon execution of this Contract by the City, receipt of written notice to proceed from the City, and shall be undertaken and completed in accordance with the Schedule of Performance attached hereto and incorporated herein by this reference as Exhibit “B” and terminate on June 30, 2029. 297
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B. Consultant’s failure to complete work in accordance with the Schedule of Performance may result in delayed compensation as described in Section 3.
C. The City Manager or his or her designee may, by written instrument signed by the Parties, extend the duration of this Contract for two additional 1-year terms in the manner provided in Section 6, provided that the extension does not require the payment of compensation in excess of the maximum compensation set forth in Section 3.A.
3. COMPENSATION:
A. The Consultant shall be paid monthly for the actual fees, costs and expenses, all time and materials required and expended, but in no event shall total compensation exceed one million nine hundred eighty-eight thousand one hundred three dollars ($1,988,103) without City’s prior written approval as described under Section 6.
B. Consultant's fees shall be as specified in the Schedule of Fees, which is attached hereto an incorporated herein as Exhibit "C". The specified hourly rates shall include direct salary costs, employee benefits, overhead, and fee. These rates are not adjustable for the performance period set forth in the Contract without prior approval of the City following the provisions described in Section 8.
C. Said amount shall be paid upon submittal of a monthly billing showing completion of the tasks that month. Consultant shall furnish City with invoices for all expenses as well as for all materials authorized by this Contract. The invoices shall be submitted with the monthly billings. If Consultant’s performance is not in conformity with the Schedule of Performance, payments may be delayed or denied, unless the Consultant’s failure to perform in conformity with the Schedule of Performance is a documented result of the City’s failure to conform with the Schedule of Performance, or if the Schedule of Performance is extended pursuant to Section 8.
D. If the work is halted at the request of the City, compensation shall be based upon the proportion that the work performed bears to the total work required by this Contract, subject to Section 5.
E. Allowable Costs and Payments
Cost-Plus Fixed Fee
F. The method of payment for this Contract will be based on actual cost plus a fixed fee.
City will reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the work. Consultant will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant’s Cost Proposal, unless additional reimbursement is provided for by Contract amendment. In no event, will Consultant be reimbursed for overhead costs at a rate that exceeds City’s approved overhead rate set forth in the Cost Proposal. In the event, that City determines that a change to the work from that specified in the Cost Proposal and CONTRACT is 298
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required, the Contract time or actual costs reimbursable by City shall be adjusted by Contract amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by Contract amendment.
G. The indirect cost rate established for this Contract is extended through the duration of this specific Contract. Consultant’s Contract to the extension of the two 1-year extension applicable period shall not be a condition or qualification to be considered for the work or Contract award.
H. In addition to the allowable incurred costs, City will pay Consultant a fixed fee of 10% for all services. The fixed fee is nonadjustable for the term of the Contract, except in the event of a significant change in the scope of work and such adjustment is made by Contract amendment.
I. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
J. When milestone cost estimates are included in the approved Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract administrator before exceeding such cost estimate.
K. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, City shall have the right to delay payment or terminate this Contract.
L. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Contract.
M. Consultant will be reimbursed promptly according to California Regulations upon receipt by City’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Contract number and project title. Final invoice must contain the final cost and all credits due City including any equipment purchased under the provisions of Section 18.L. Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work.
Invoices shall be mailed to City’s Contract Administrator at the following address:
City of West Sacramento
Steven Rosen, Associate Transportation Planner
Community Development Department
1110 West Capitol Avenue, 2nd Floor
West Sacramento, California 95691
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N. The total amount payable by City including the fixed fee shall not exceed the amount shown under Section 3.A.
O. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
4. COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS
A. The Consultant agrees the 48CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The Consultant also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the Consultant to City.
D. When a Consultant or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CRF 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
5. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing by City’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services.
Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. For purchase of any item, service, or consulting work not covered in Consultant’s approved.
B. Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by City’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this CONTRACT is subject to the following:
a. Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Contract, or if the Contract is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City 300
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procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant expense, on the basis of a competent independent appraisal of such equipment.
Appraisals shall be obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City.
b. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
6. PROMPT PAYMENT FROM CITY TO CONSULTANT
A. The City shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from Consultant on a professional service contract. If the City fails to pay promptly, the City shall pay interest to the CONSULTANT, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the City shall act in accordance with both of the following:
(1) The City shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The City must return any payment request deemed improper by the City to the Consultant as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
B. Prompt Payment Certification
(1) The Consultant must submit Exhibit 9-P to the City administering the contract by the 15th of the month following the month of any payment(s). If the Consultant does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
(2) The City must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project.
The City must email a copy of Exhibit 9-P to [email protected] before the end of the month after receiving the Exhibit 9-P from the Consultant.
7. TERMINATION
A. This Contract may be terminated by either party, provided that the other party is given not less than 30 calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate.
B. The City may temporarily suspend this Contract, at no additional cost to City, provided that the Consultant is given written notice (delivered by certified mail, return receipt 301
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requested) of temporary suspension. If City gives such notice of temporary suspension, Consultant shall immediately suspend its activities under this Contract.
C. Notwithstanding any provisions of this Contract, Consultant shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Contract by Consultant, and the City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due the City from Consultant is determined.
D. In the event of termination, the Consultant shall be compensated as provided for in this Contract, except as provided in Section 5.C. Upon termination, the City shall be entitled to all work, including but not limited to, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date in accordance with Section 8 hereof.
E. Additional provisions under Exhibit F.
8. AMENDMENTS, CHANGES OR MODIFICATIONS
A. Amendments, changes or modifications in the terms of this Contract may be made at any time by mutual written Contract between the parties hereto and shall be signed by the persons authorized to bind the parties hereto.
B. Consultant shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by City’s Contract Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this Contract without prior written approval by City’s Contract Administrator.
9. EXTENSIONS OF TIME
A. Consultant may, for good cause, request extensions of time to perform the services required hereunder. Such extensions shall be authorized in advance by the City in writing and shall be incorporated in written amendments to this Contract or the attached Work Program in the manner provided in Section 8.
10. FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this Contract may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Contract were executed after that determination was made.
B. This Contract is valid and enforceable only if sufficient funds are made available to City for the purpose of this Contract. In addition, this Contract is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City governing board that may affect the provisions, terms, or funding of this Contract in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this Contract may be amended to reflect any reduction in funds.
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D. City has the option to terminate the Contract pursuant to Section 7, or by mutual agreement to amend the Contract to reflect any reduction of funds.
E. Contract is currently funded in whole or in part through grant funds received under the following grant[s]: Carbon Reduction Program (the “Grants”), the terms of which are incorporated by reference to the grant program. Copies of the Grants and any related materials have been made available to Consultant, and Consultant shall ensure that its performance under this Contract, and that of any subcontractors, conforms to the requirements of the Grant. These requirements include, but are not necessarily limited to, compliance with the terms set forth in the provisions of this contract.
11. PROPERTY OF CITY
A. It is mutually agreed that all materials prepared by the Consultant under this Contract shall become the property of the City, and the Consultant shall have no property right therein whatsoever. Immediately upon termination, the City shall be entitled to, and the Consultant shall deliver to the City, all data, drawings, specifications, reports, estimates, summaries and other such materials as may have been prepared or accumulated to date by the Consultant in performing this Contract which is not Consultant’s privileged information, as defined by law, or Consultant’s personnel information, along with all other property belonging exclusively to the City which is in the Consultant’s possession.
12. RECORD RETENTION
A. In addition to the reports specified in this Contract, Consultant shall retain the records required by the applicable provisions of 2 CFR § 200.333, no less than three (3) years after City's final payment to Consultant under this Contract, Final Voucher received from Caltrans, and provide the City with the reports required pursuant to 2 CFR §§ 200.328 and 200.343, and such other records and reports as the City may reasonably require in the administration of this Contract. Consultant shall keep all other necessary books and records, including property, personnel, loan documentation and financial records, in connection with the operation and services performed under this Contract, in accordance with 2 CFR §200.333.
B. For the purpose of determining compliance with Gov. Code §8546.7, the Consultant, Subconsultants, and City shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the Contract including, but not limited to, the costs of administering the Contract. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and material available at their respective offices at all reasonable times during the Contract period and for three (3) years from the date of final payment under the Contract and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. City, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and are pertinent to the Contract for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
13. AUDIT/AUDIT REVIEW
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A. Any dispute concerning a question of fact arising under an interim or post audit of this Contract that is not disposed of by Contract, shall be reviewed by City’s Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, Consultant may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Contract.
D. Consultant and subconsultant CONTRACTs, including cost proposals and indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an Contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Contract, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, City, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Contract, cost proposal, and ICR shall be adjusted by Consultant and approved by City Contract Administrator to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Contract by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, City or local governments have access to CPA work papers, will be considered a breach of Contract terms and cause for termination of the Contract and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Contract terms and cause for termination of the Contract and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR (e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines) is received and approved by IOAI.
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Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter.
IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the Consultant fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Contract.
4. Consultant may submit to City final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Contract has been completed to the satisfaction of City; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO City no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Contract and all other Contracts executed between City and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
14. COMPLIANCE WITH ALL LAWS:
A. Consultant shall comply with all applicable laws, ordinances, and codes of federal, State and local governments, and shall commit no trespass on any public or private property in performing any of the work authorized by this Contract.
B. Consultant warrants to the City that it is licensed by all applicable governmental bodies to perform this Contract and will remain so licensed throughout the progress of the Work, and that it has, and will have, throughout the progress of the Work, the necessary experience, skill and financial resources to enable it to perform this Contract. 305
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C. The work contemplated under this Contract is a public work for the purposes of Labor Code section 1720, and is subject to the payment of prevailing wages. Accordingly, Consultant shall comply with the provisions of Exhibit "D".
15. WARRANTIES AND RESPONSIBILITIES - CONSULTANT
A. Consultant agrees and represents that it is qualified to properly provide the services set forth in Exhibit “A” in a manner which is consistent with the generally accepted standards of Consultant’s profession.
B. Consultant agrees and represents that the work performed under this Contract shall be in accordance with applicable federal, State and local law in accordance with Section 11.A. hereof.
C. Consultant shall designate a project manager who at all times shall represent the Consultant before the City on all matters relating to this Contract. The project manager shall continue in such capacity unless and until he or she is removed at the request of the City, is no longer employed by Consultant, or is replaced with the written approval of the City, which approval shall not be unreasonably withheld.
D. Consultant shall provide corrective services without charge to the City for services which fail to meet the above professional and legal standards and which are reported to Consultant in writing within sixty (60) days of discovery. Should Consultant fail or refuse to perform promptly its obligations, the City may render or undertake performance thereof and the Consultant shall be liable for any expenses thereby incurred.
16. SUBCONTRACTING
A. None of the services covered by this Contract shall be subcontracted without the prior written consent of the City, which will not be unreasonably withheld. Consultant shall be as fully responsible to the City for the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by Consultant.
B. Nothing contained in this Contract or otherwise, shall create any contractual relation between the City and any Subconsultants, and no subcontract shall relieve the Consultant of its responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to the City for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the City ‘sobligation to make payments to the Consultant.
C. The Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the City Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
D. Any subcontract entered into as a result of this Contract, shall contain all the provisions stipulated in this entire Contract to be applicable to Subconsultants unless otherwise 306
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noted.
E. Consultant shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the Consultant by the City.
F. Any substitution of Subconsultants must be approved in writing by the City Contract Administrator in advance of assigning work to a substitute Subconsultant.
17. PROMPT PROGRESS PAYMENT
A. Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed Consultant on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from Consultant or subconsultant to a subconsultant, Consultant or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
B. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
C. Prompt Payment of Withheld Funds to Subconsultants
The City may hold retainage from Consultant and shall make prompt and regular incremental acceptances of portions, as determined by the CITY, of the contract work, and pay retainage to Consultant based on these acceptances. The CITY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by Consultant or subconsultant to a subconsultant.
D. Method 1: No retainage will be held by the City from progress payments due to Consultant.
Consultant and subconsultants are prohibited from holding retainage from subconsultants.
Any delay or postponement of payment may take place only for good cause and with the City’s prior written approval. Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
E. Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subcontract performance, or 307
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noncompliance by a subconsultant
18. ASSIGNABILITY
A. Consultant shall not assign or transfer any interest in this Contract whether by assignment or novation, without the prior written consent of the City which will not be unreasonably withheld. However, claims for money due or to become due Consultant from the City under this Contract may be assigned to a financial institution, or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the City.
19. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. Consultant, subrecipient (City), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26).
To ensure equal participation of DBEs provided in 49 CFR 26.5, the City shows a contract goal for DBEs. Consultant shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
Consultant shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract. Additionally, the Consultant is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbesearch.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
• Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer." This Contract is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”.
CONSULTANTs who enter into a federally-funded Contract will assist the City in a good faith effort to achieve California's statewide overall DBE goal. 308
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B. The goal for DBE participation for this Contract is 20%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10-O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the CONTRACT. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. Consultant can meet the DBE participation goal by either documenting commitments to DBEs to meet the Contract goal, or by documenting adequate good faith efforts to meet the Contract goal. An adequate good faith effort means that the Consultant must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 15-H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. Consultant shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts. Failure by the Consultant to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying Consultant from future proposing as non-responsible E. Termination and Replacement of DBE Subconsultants
Consultant shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless Consultant or DBE subconsultant obtains the City’s written consent. Consultant shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the City. Unless the City’s consent is provided, the Consultant shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the Contract, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the City:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The City stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the City’s bond requirements.
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3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The City determines other documented good cause.
Consultant must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above.
Simultaneously send a copy of this written notice to the City. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the City by either acknowledging their Contract or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the City and include:
• One or more above listed justifiable reasons along with supporting documentation.
• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The City shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the City’s written authorization of DBE termination request, Consultant must obtain the City’s written Contract for DBE replacement. Consultant must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet 310
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the DBE commitment. The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the City which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract Contract and written confirmation of Contract to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2. If Consultant has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of City’s authorization to terminate the DBE. Consultant may request the City’s approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work Consultant had intended to self-perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an Contract was not reached.
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non-DBE's price quotes for work identified, as the City may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The City shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The City’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. 311
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The CITY shall request CONSULTANT to:
1. Notify the City’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1st -tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F:
Monthly Disadvantaged Business Enterprise Payment)
If Consultant is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. Consultant shall submit the notifications to the City. On work completion, Consultant shall complete Exhibit 17-O: Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the City within 30 days of contract acceptance.
Upon work completion, Consultant shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the CITY within 90 days of contract acceptance. The City will withhold $10,000 until the form is submitted. The City will release the withhold upon submission of the completed form.
In the CITY’s reports of DBE participation to Caltrans, the City must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the CONTRACT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the CONTRACT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
Consultant must perform CUF evaluation for each DBE working on a federal-aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
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Consultant must provide written notification to the City at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, Consultant shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
• Subcontract Contract with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
Consultant must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the City these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
Consultant must notify the City immediately if they believe the DBE may not be performing a CUF.
The City will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional City evaluations.
The CITY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The CITY will provide written notice to the Consultant and the DBE at least two (2) business days prior to any evaluation. The Consultant and the DBE must participate in the evaluation. Upon completing the evaluation, the City must share the evaluation results with the Consultant and the DBE. An evaluation could include items that must be remedied upon receipt. If the City determines the DBE is not performing a CUF, the Consultant must suspend performance of the noncompliant work.
Consultant and DBEs must submit any additional CUF related records and documents within five (5) business days of City’s request such as:
• Proof of ownership or lease and rental Contracts for equipment • Tax records
• Employee rosters
• Certified payroll records
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• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If Consultant and/or the City determine that a listed DBE is not performing a CUF in performance of their DBE committed work, Consultant must immediately suspend performance of the noncompliant portion of the work. City may deny payment for the noncompliant portion of the work. City will ask the Consultant to submit a corrective action plan (CAP) to the City within five (5) days of the noncompliant CUF determination.
The CAP must identify how the Consultant will correct the noncompliance findings for the remaining portion of the DBE's work. City has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The Consultant must implement the CAP within five (5) days of the City’s approval. The City will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, Consultant may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, Contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its Contract with its own work force, or the DBE subcontracts a greater portion of the work of the Contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the Contract, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Contract, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to CITY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and 314
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email Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required.
Instead, by the 15th of the month following the month of any payment(s), the Consultant must now submit Exhibit 9-P to the CITY administering the contract. If the Consultant does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this CONTRACT shall contain all of the provisions of this section.
20. INTEREST IN CONTRACT
A. Consultant warrants, by execution of this Contract that no person or selling agency has been employed, or retained, to solicit or secure this Contract upon an Contract or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Contract without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the Contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
B. Consultant covenants that neither it, nor any of its employees, agents, contractors, subcontractors has any interest, nor shall they acquire any interest, direct or indirect, in the subject of the Contract, nor any other interest which would conflict in any manner or degree with the performance of its services hereunder. Consultant shall make all disclosures required by the City’s conflict of interest code in accordance with the category designated by the City, unless the City Manager determines in writing that Consultant’s duties are more limited in scope than is warranted by the category designated by the City code and that a narrower disclosure category should apply. Consultant also agrees to make disclosure in compliance with the City conflict of interest code if, at any time after the execution of this Contract, City determines and notifies Consultant in writing that Consultant’s duties under this Contract warrant greater disclosure by Consultant than was originally contemplated. Consultant shall make disclosures in the time, place and manner set forth in the conflict of interest code and as directed by the City.
C. During the term of this Contract, the Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Contract or any ensuing City construction project. The Consultant shall also list current clients who may have a financial interest in the outcome of this Contract or any ensuing CITY construction project which will follow.
D. Consultant certifies that it has disclosed to City any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Contract.
Consultant agrees to advise City of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this Contract. Consultant further agrees to complete any statements of economic interest if required by either City ordinance or State law.
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E. The Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Contract.
F. The Consultant hereby certifies that the Consultant or subconsultant and any firm affiliated with the Consultant or subconsultant that bids on any construction contract or on any Contract to provide construction inspection for any construction project resulting from this Contract, has established necessary controls to ensure a conflict of interest does not exist.
An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise
21. MATERIALS CONFIDENTIAL
A. All of the materials prepared or assembled by Consultant pursuant to performance of this Contract are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of the City, except by court order.
B. All financial, statistical, personal, technical, or other data and information relative to City’s operations, which are designated confidential by City and made available to Consultant in order to carry out this Contract, shall be protected by Consultant from unauthorized use and disclosure.
C. Permission to disclose information on one occasion, or public hearing held by City relating to the Contract, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion.
D. Consultant shall not comment publicly to the press or any other media regarding the Contract or CITY’s actions on the same, except to CITY’s staff, CONSULTANT’s own personnel involved in the performance of this Contract, at public hearings, or in response to questions from a Legislative committee.
E. Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Contract without prior review of the contents thereof by City, and receipt of CITY’S written permission.
F. Any subcontract entered into as a result of this contract shall contain all of the provisions of this section.
G. All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than City, Caltrans, and/or FHWA. All of the materials prepared or assembled by Consultant pursuant to performance of this Contract are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order.
If Consultant or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from Consultant for any damages caused by Consultant releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
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22. LIABILITY OF CONSULTANT-NEGLIGENCE
A. Consultant shall be responsible for performing the work under this Contract in a manner which is consistent with the generally-accepted standards of the Consultant’s profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Consultant or its employees, agents, contractors or subcontractors.
23. INDEMNITY AND LITIGATION COSTS
A. Consultant shall protect, hold free and harmless, defend and indemnify the City, its consultants, and each of their officers, employees and agents, from any and all liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, including attorney’s fees and expenses of litigation arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Consultant, its employees or anyone else employed by the Consultant in the performance of professional design services under this Contract, to the extent of the Consultant’s proportionate percentage of fault.
B. To the extent permitted by Civil Code section 2782.8, for all other claims unrelated to the provision of professional design services, the Consultant shall protect, hold free and harmless, defend and indemnify the City, its consultants, and each of their officers, employees and agents, from any and all liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, including attorney’s fees and expenses of litigation, which arise out of or are in any way connected with the Consultant’s, or its subcontractors’ or suppliers’, performance under this Contract or failure to comply with any of the obligations contained in the Contract. This indemnity shall imply no reciprocal right of the Consultant in any action on the Contract pursuant to California Civil Code section 1717 or section 1717.5. To the fullest extent legally permissible, this indemnity, defense and hold harmless Contract by the Consultant shall apply to any and all acts or omissions unrelated to the provision of professional design services, whether active or passive, on the part of the Consultant or its agents, employees, representatives, or subcontractor’s agents, employees and representatives, resulting in claim or liability, irrespective of whether or not any acts or omissions of the parties to be indemnified hereunder may also have been a contributing factor to the liability, except such loss or damage which was caused by the active negligence, the sole negligence, or the willful misconduct of the City.
24. CLAIMS FILED BY CITY’s CONSTRUCTION CONTRACTOR
A. If claims are filed by CITY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with CITY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
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B. CONSULTANT’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this Contract.
C. Services of CONSULTANT’s personnel in connection with CITY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Contract in order to resolve the construction claim.
25. DISPUTES
A. Prior to either party commencing any legal action under this Contract, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
B. Any dispute, other than audit, concerning a question of fact arising under this CONTRACT that is not disposed of by Contract shall be decided by a committee consisting of CITY’s Contract Administrator and (Insert Department Head or Official), who may consider written or verbal information submitted by Consultant.
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, Consultant may request review by City’s Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this Contract.
26. CONSULTANT TO PROVIDE INSURANCE
A. Consultant shall not commence any work before obtaining, and shall maintain in force at all times during the duration and performance of this Contract, the policies of insurance specified in this Section. Such insurance must have the approval of the City as to limit, form, and amount, and shall be placed with insurers with a current A.M. Best’s rating of no less than A VII (an NR rating is acceptable for Worker’s Compensation insurance written with the State Compensation Insurance Fund of California).
B. Prior to execution of this Contract and prior to commencement of any work, the Consultant shall furnish the City with certificates of insurance and copies of endorsements providing evidence of coverage for all policies required by the Contract.
The Consultant and its contractors and subcontractors shall, at their expense, maintain in effect at all times during the performance of work under the Contract not less than the following coverage and limits of insurance, which shall be maintained with insurers and under forms of policy satisfactory to the City. The maintenance by Consultant and its contractors and subcontractors of the following coverage and limits of insurance is a material element of this Contract. The failure of Consultant or of any of its contractors or subcontractors to maintain or renew coverage or to provide evidence of renewal may be 318
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treated by the City as a material breach of this Contract. Approval of the insurance by the City shall not relieve or decrease any liability of Consultant.
1. Worker’s Compensation and Employer’s Liability Insurance a. Worker’s Compensation - Insurance to protect the Consultant, its contractors and subcontractors from all claims under Worker’s Compensation and Employer’s Liability Acts, including Longshoremen’s and Harbor Worker’s Act (“Acts”), if applicable. Such coverage shall be maintained, in type and amount, in strict compliance with all applicable state and Federal statutes and regulations. The Consultant shall execute a certificate in compliance with Labor Code Section 1861, on the form provided in the Contract Documents. b. Consultant shall provide a Waiver of Subrogation endorsement in favor of the City, its officers, officials, employees, agents and volunteers for losses arising from work performed by the Consultant.
2. Commercial General Liability Insurance
a. The insurance shall be provided on form CG0001, or its equivalent, and shall include coverage for claims for bodily injury or property damage arising out of premises/operations, products/completed operations, contractual liability, and subconsultant’s work and personal and advertising injury resulting from actions, failures to act, or operations of the insured, or by its employees or agents, or by anyone directly or indirectly employed by the insured. The amount of insurance coverage shall not be less than [$2,000,000.00] per occurrence and [$4,000,000] general and products/completed operations aggregates. b. The commercial general liability insurance shall also include the following:
i. Endorsement equivalent to CG 2010 0714 naming
the City, its officers, officials, employees, agents, and volunteers as additional insureds. The endorsement shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees or volunteers.
ii. Endorsement stating insurance provided to the City shall be primary as respects the City, its officers, officials, employees and any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it, to the payment or satisfaction of any defense expenses, loss, or judgment.
iii. Provision or endorsement stating that the Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
3. Commercial Automobile Insurance
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a. The insurance shall include, but shall not be limited to, coverage for claims for bodily injury or property damage for owned, non-owned, and hired automobiles resulting from actions, failures to act, or operations of the insured, or by its employees or agents, or by anyone directly or indirectly employed by the insured.
The amount of insurance coverage shall not be less than [$2,000,000.00] per accident.
b. The commercial automobile insurance shall include the same endorsements required for the commercial general liability policy (see Section
16.B.2.b).
4. Professional Liability.
The Consultant and its contractors and subcontractors shall secure and maintain in full force, during the term of this Contract and for five years thereafter, professional liability insurance policies appropriate to the respective professions and the work to be performed as specified in this Contract. The limits of such professional liability insurance coverage shall not be less than [$2,000,000] per claim.
C. In addition to any other remedy the City may have, if Consultant fails to maintain the insurance coverage as required in this Section, the City may obtain such insurance coverage as is not being maintained, in form and amount substantially the same as is required herein, and the City may deduct the cost of such insurance from any amounts due or which may become due Consultant under this Contract.
D. No policy required by this Contract shall be suspended, cancelled, terminated by either party, or reduced in coverage or in limits unless Consultant has provided thirty (30) days prior written notice by certified mail, return receipt requested, to the City.
E. Any deductibles or self-insured retentions in excess of $10,000 must be declared to, and approved by, the City.
F. The requirement as to types, limits, and the City’s approval of insurance coverage to be maintained by Consultant are not intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed by Consultant under the Contract.
27. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov.
Code §12990 and 2 CCR § 8103.
B. During the performance of this CONTRACT, Consultant and its subconsultants shall not deny the CONTRACT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, 320
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harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by CITY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this CONTRACT by reference and made a part hereof as if set forth in full.
D. Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this clause.
E. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Contract.
F. Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this CONTRACT.
G. The Consultant, with regard to the work performed under this CONTRACT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The Consultant shall comply with regulations relative to non-discrimination in federallyassisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. Consultant, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the City components of the DBE Program Plan, Consultant, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing 321
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accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
28. TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES
The U.S. Department of Transportation Order No.1050.2A requires all federal-aid Department of Transportation contracts between an agency and a consultant to contain Appendices A and E of the Title VI Assurances. Include Appendices B, C, and D if appliable (ROW acquisition involved) as shown below.
In addition, the Consultant must include the Title VI Assurances Appendices A and E, and if applicable Appendices B, C, and D in all subcontracts to perform work under the contract. The clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a City. {The clauses set forth in Appendix C and Appendix D of this Assurance shall be included as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the City with other parties:
a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and
b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.
APPENDIX A
During the performance of this Contract, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as Consultant) agrees as follows:
Compliance with Regulations: Consultant shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this Contract.
Nondiscrimination: Consultant, with regard to the work performed by it during the CONTRACT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Contract covers a program set forth in Appendix B of the Regulations.
Solicitations for Sub-Contracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by Consultant for work to be performed under a Sub- Contract, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by Consultant of the CONSULTANT’S 322
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obligations under this Contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
Information and Reports: Consultant shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of Consultant is in the exclusive possession of another who fails or refuses to furnish this information, Consultant shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts Consultant has made to obtain the information.
Sanctions for Noncompliance: In the event of Consultant noncompliance with the nondiscrimination provisions of this Contract, the recipient shall impose such Contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i.withholding of payments to Consultant under the Contract within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Contract, in whole or in part Incorporation of Provisions: Consultant shall include the provisions of paragraphs (1) through (6) in every sub-Contract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. Consultant shall take such action with respect to any sub-Contract or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event Consultant becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, Consultant may request the recipient enter into such litigation to protect the interests of the State, and, in addition, Consultant may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed hereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S.
Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S.
Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
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(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations(as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the 324
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benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.*
C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER
THE ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/Contracts entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Nondiscrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns. 325
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APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following non-discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, place public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes 326
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discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).
29. CONTRACT: ENTIRE CONTRACT
A. This Contract constitutes the entire Contract between the parties relative to the services specified herein and no modification hereof shall be effective unless and until such modification is evidenced by a writing signed by both parties to this Contract. There are no understandings, Contracts, conditions, representations, warranties or promises, with respect to this Contract, except those contained in or referred to in the writing.
30. NOTICE
A. All notices that are required to be given by one party to the other under this Contract shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a United States Post Office for delivery by registered or certified mail addressed to the parties at the following addresses:
City: City of West Sacramento
Steven Rosen, Associate Transportation Planner
City of West Sacramento
1110 West Capitol Avenue
West Sacramento, CA 95691
Email: [email protected]
Consultant:
Mark Thomas & Company, Inc.
Attn to: Kira Caselli
701 University Avenue, Suite 200
Sacramento, CA 95825
Email: [email protected]
31. MISCELLANEOUS PROVISIONS:
A. Consultant shall keep itself fully informed of, shall observe and comply with, and shall cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any manner affect those engaged or employed on the work described by this 327
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Contract or the materials used or which in any way affect the conduct of the work.
B. This Contract shall be interpreted and governed by the laws of the State of California.
C. Any action arising out of this Contract shall be brought and maintained in Yolo County California, regardless of where else venue may lie.
D. In any action brought by either party to enforce the terms of this Contract, each party shall be bear responsibility for its attorney’s fees and all costs regardless of whether one party is determined to be the prevailing party.
E. CONSULTANT and any subconsultant shall permit CITY, the State, and the FHWA if federal participating funds are used in this CONTRACT; to review and inspect the project activities and files at all reasonable times during the performance period of this CONTRACT
F. This Contract may be signed in counterparts, and may be signed electronically.
By signing this document in electronic form, the parties agree that this Contract may be transmitted and signed electronically by all Parties, and that such signatures shall have the same force and effect as original signatures, in accordance with California law and regulations, including but not limited to Civil Code section 1633.7.
CITY OF WEST SACRAMENTO
By: __________________________
Aaron Laurel, City Manager
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ATTEST:
By: _________________________________
Jennifer Cusmir, City Clerk
APPROVED AS TO FORM:
By: __________________________________
Jeffrey Mitchell, City Attorney
CONSULTANT
By: _________________________
Matt Brogan, Principal + Vice President
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EXHIBIT A – CONSULTANT PROPOSAL/SCOPE OF WORK
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EXHIBIT B – SCHEDULE OF PERFORMANCE
Contract Start Date 9/18/2024
Task 1 Project Management &
Coordination
9/19/2024 – 6/5/2029
Task 2 Data Collection & Surveying 9/19/24 – 7/11/2025
Task 3 Community Engagement &
Public Participation
9/19/24 – 6/5/2028
Task 4 Environmental Documentation
& Permitting
9/19/24 – 7/31/2026 (NEPA by
6/30/25)
Task 5 Preliminary Engineering / 30%
Plans & Estimate
6/2/25 – 12/12/2025
Task 6 Final Design / Plans,
Specifications & Estimates
(PS&E)
1/12/26 – 5/31/2027
Task 7 Right-of-Way (R/W) 1/4/27 – 6/5/2028
Task 8 Project Finance Plan 1/4/27 – 6/5/2028
Task 9 Required Caltrans Project
Closeout (Grant Reporting)
6/5/2028 - 6/5/2029 (12-
months following project
completion)
Contract End Date 6/30/2029
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EXHIBIT C – SCHEDULE OF FEES
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EXHIBIT D – CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700 [Labor Code § 1861]
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
CONSULTANTS
By:
Matt Brogan, Principal + Vice President
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EXHIBIT E – LABOR COMPLIANCE
1. PREVAILING WAGE
A. The Work contemplated herein constitutes a public work within the meaning of Labor Code sections 1720 and 1771. It shall be mandatory upon the Consultant and upon any Subcontractor, to pay not less than the said specified prevailing rates of wages to all workers employed by them under the Contract in accordance with Labor Code section 1774. The Director of the Department of Industrial Relations ("DIR") of the State of California has determined the general prevailing rate of wages of per diem wages in the locality in which the work is to be performed for each craft or type of worker needed to execute the Contract. The Consultant acknowledges that it has examined the prevailing rate of per diem wages as established by the DIR. Copies of the current schedules for prevailing wages are on file at City Hall. The contents of those schedules are incorporated herein as if set forth in full. The Consultant shall post a copy of the applicable prevailing wage determinations at each job site, along with any other work place posters required by law.
B. The City will not recognize any claims for additional compensation because of the payment of prevailing wages. The possibility of wage increases is one of the elements to be considered by the Consultant in determining its proposal, and will not under any circumstances be considered as the basis of a claim against the City.
C. By executing this Contract Consultant warrants that it has registered with the Department of Industrial Relations in accordance with Labor Code section 1725.5.
2. PREVAILING WAGE RECORDS
A. The Consultant and each subconsultant shall keep an accurate payroll record as mandated by Labor Code §1776 and as defined in 8 CCR §16000 which shows the name, address, social security number, correct work classification (in accordance with the wage decision), both straight and overtime worked each day and week, and hourly rate of pay, gross wages earned, deductions made and net wages paid to each journeyman, apprentice, worker or other employee paid by the Consultant /subcontractor in connection with the Work. These payroll records shall be certified by a written declaration that it is made under penalty of perjury, stating both the information contained in the payroll record is true and correct and the employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project. Payroll records shall be made available at Consultant's principal office. These records shall be maintained during the course of the Work. The Consultant and all subcontractors shall make the certified payroll records available for inspection by City representatives upon request and shall permit such representatives to interview employees during the work hours on the job site. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the CITY Contract Administrator by both email and regular mail on the business day following receipt of the request.
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B. The City shall notify the Consultant in writing of any discrepancies or violations that are discovered during such inspections. Written notification pursuant to this Section shall include the actions that will be necessary to resolve the discrepancies and/or violations. The Consultant shall be held entirely responsible for the prompt resolution of all non-compliances with the prevailing wage laws, including those pertaining to all subcontractors and any lower-tier subcontractors. The Consultant shall forfeit as penalty to the City the amount specified by law for each calendar day or portion thereof for each worker (whether employed by the Consultant or any subcontractor) paid less than the stipulated prevailing rates for any work done under the Contract in violation of the provisions of the Labor Code and in particular, Section 1775.
C. To the extent applicable, Consultant and subcontractors shall maintain and furnish to the Department of Industrial Relations ("DIR"), a certified copy of each weekly payroll (but no less often than monthly), with a statement of compliance signed under penalty of perjury. Such certified payroll reports shall be transmitted electronically to the DIR.
D. The City will not recognize any claims for additional compensation because of the payment of the prevailing wages. The possibility of wage increases is one of the elements to be considered by the Consultant in entering into the Contract, and will not under any circumstances, other than delays caused by the City, or the City’s agents, be considered as the basis of a claim against the City.
3. Labor Discrimination
Attention is directed to Section 1735 of the Labor Code, which reads as follows:
“No discrimination shall be made in the employment of persons upon public works because of their race, color, national origin or ancestry, physical handicap, mental condition, marital status, or sex of such person, except as provided in Section 12940 of the Government Code, and every General Contractor for public works violating this section is subject to all the penalties imposed for a violation of this chapter.”
4. Eight-Hour Day Limitation
(a) In accordance with the provisions of the Labor Code, and in particular, Sections 1810 to 1815 thereof, inclusive, incorporated herein by reference, eight hours labor shall constitute a day's work, and no worker in the employ of Consultant, or any Subcontractor, doing or contracting to do any part of the work contemplated by the Contract, shall be required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of those provisions; provided that subject to Labor Code Section 1815, a worker may perform work in excess of either eight (8) hours per day or forty (40) hours during any one week upon compensation for all hours worked in excess of eight (8) hours per day or forty (40) hours during any one week at not less than one and one-half times the basic rate of pay.
(b) The Consultant and each Subcontractor shall also keep an accurate record showing the names and actual hours worked of all workers employed by them in connection with 335
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the Contract. This record shall be open at all reasonable hours to the inspection of the City. It is hereby further agreed that, except as provided in (a) above, the Consultant shall forfeit as a penalty to the City the sum of twenty-five dollars ($25) for each worker employed in the performance of the Contract by the Consultant or by any of its Subcontractors for each calendar day during which such worker is required or permitted to labor more than eight (8) hours in and one calendar day and forty (40) hours in any one calendar week in violation of Sections 1810 through 1815.
5. Compliance with State Requirements for Employment of Apprentices (a) The Consultant's attention is directed to Section 1777.5 of the Labor Code.
Provisions of said Section pertaining to employment of registered apprentices are hereby incorporated by reference into this Contract. As applicable, the Consultant or any Subcontractor employed by the Consultant in the performance of this Contract shall take such actions as necessary to comply with the provisions of Section 1777.5.] 336
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EXHIBIT F – FEDERAL CONTRACT PROVISIONS
2 C.F.R. § 200.326 and 2 C.F.R. Part 200, Appendix II, Required Contract Clauses In the event of any contradictions or inconsistencies between these provisions and the provisions of the Contract itself, the terms of this Exhibit shall control.
1. TERMINATION FOR CAUSE
A. In the event of any default by the Consultant as described below, the City may, after giving ten (10) days’ written notice to the Consultant, terminate the Consultant’s right to proceed with the Work or any part of the Work in the City’s sole discretion. Events of default include:
a. Failure or refusal to prosecute the Work, or any separable part thereof, with such diligence as will ensure the completion within the time specified in the Contract, or any extension thereof, or failure to complete said work within such time.
b. Filing of bankruptcy by the Consultant, or the making of a general assignment for the benefit of its creditors, or appointment of a receiver on account of Consultant’s insolvency without discharge of the receiver within ten (10) days after its appointment.
c. Failure to make prompt payments to Subcontractors or suppliers. d. Persistent disregard of laws, ordinances, or the instructions of the City, or other substantial violation of any provision of the Contract.
B. In the event the right of the Consultant to proceed with the Work, or any portion thereof, has been terminated because of the default of the Consultant and the Consultant has been given ten (10) days’ notice to cure such fault and has not done so, the City may take over the Work and prosecute the same to completion by contract or any other method the City deems expedient, and may take possession of and utilize in completing the Work such materials, appliances, equipment and plant as may be on the site of the Work and necessary therefore.
In such event, the Consultant and its sureties shall be liable for all damages including costs of managerial and administrative services, engineering, legal and other consultant fees, and liquidated damages sustained or incurred by the City.
C. Upon termination, the Consultant shall not be entitled to receive any further payment until the Work is finished. If upon completion of the Work the total cost to the City, including engineering, legal and other consultant fees, costs of managerial and administrative services, construction costs, and liquidated damages shall be less than the amount which would have been paid if the Work had been completed by the Consultant in accordance with the terms of the Contract, then the difference shall be paid to the Consultant in the same manner as the final payment under the Contract. If the total cost incurred by the City on account of termination of the Contract and subsequent completion of the Work by the City by whatever method the City may deem expedient shall exceed said amount which the Consultant would otherwise have been paid, the Consultant and its sureties shall be liable to the City for the full amount of such excess expense.
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D. The rights and remedies of the City provided in this section are in addition to any of the rights and remedies provided by the law or under this Contract.
2. EQUAL EMPLOYMENT OPPORTUNITY
41 CFR Part 60-1.4b
During the performance of this contract, the contractor agrees as follows A. The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
B. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
C. The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
D. The contractor will send to each labor union or representative of workers with which it has a collective bargaining Contract or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
E. The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
F. The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, 338
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and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
G. In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
H. The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
3. DAVIS-BACON ACT (40 U.S.C. §§ 3141-3144 and 3146-3148) A. All transactions regarding this contract shall be done in compliance with the DavisBacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of 29 C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C. 3141- 3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
B. Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor.
C. Additionally, contractors are required to pay wages not less than once a week.
4. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR Contract (F) Rights to Inventions Made Under a Contract or Contract.
If the Federal award meets the definition of “funding Contract” under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding Contract,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Contracts,” and any implementing regulations issued by the awarding agency.
OWNERSHIP OF DATA
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A. It is mutually agreed that all materials prepared by CONSULTANT under this CONTRACT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever. Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this CONTRACT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this CONTRACT must be approved in writing by City.
B. Additionally, it is agreed that the Parties intend this to be an CONTRACT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract. Any reuse by City for another project or project location shall be at City’s sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
E. CITY may permit copyrighting reports or other Contract products. If copyrights are permitted; the CONTRACT shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
5. CLEAN AIR ACT
(G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).
Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
A. The contractor agrees to report each violation to the City of West Sacramento and understands and agrees that the City of West Sacramento will, in turn, report each violation as required to assure notification to the State of California, Federal 340
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Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
B. The contractor agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FEMA.
6. FEDERAL WATER POLLUTION CONTROL ACT
A. The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
B. The contractor agrees to report each violation to the City of West Sacramento and understands and agrees that the City of West Sacramento will, in turn, report each violation as required to assure notification to the State of California, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
C. The contractor agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FEMA.
7. DEBARMENT AND SUSPENSION
(H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
A. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the contractor is required to verify that none of the contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. §180.940) or disqualified (defined at 2 C.F.R. § 180.935).
B. The contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
C. This certification is a material representation of fact relied upon by the City of West Sacramento. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City of West Sacramento, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The City will insure the Contractor and any lower participants are not debarred by checking the government’s System Award Management (SAM). 341
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D. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
E. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
F. Any exceptions to this certification must be disclosed to CITY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
G. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
8. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
A. In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
9. BYRD ANTI-LOBBYING AMENDMENT 31 U.S.C. § 1352 (AS AMENDED) (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above 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 342
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by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
Contractors who apply or bid for an award of $100,000 or more shall file the required certification (see Appendix A, 44 C.F.R Part 18 – Certification Regarding Lobbying). Each tier certifies to the tier above 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. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient.
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or CITY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this CONTRACT, or with the extension, continuation, renewal, amendment, or modification of this CONTRACT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this CONTRACT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making orentering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subContracts, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
10. NO OBLIGATION BY FEDERAL GOVERNMENT
A. The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-Federal entity, Consultant, or any other party pertaining to any matter resulting from the contract.
11. PROCUREMENT OF RECOVERED MATERIALS
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(J) §200.323 Procurement of recovered materials.
A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines."
1. In the performance of this contract, the Consultant shall make maximum use of products containing recovered materials that are EPA- designated items unless the product cannot be acquired—
2. Competitively within a timeframe providing for compliance with the contract performance schedule;
3. Meeting contract performance requirements; or
4. At a reasonable price.
a. Information about this requirement, along with the list of EPA- designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
12. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE
SERVICES OR EQUIPMENT
(K) §200.216 Prohibition on certain telecommunications and video surveillance services or equipment.
(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant funds to:
(1) Procure or obtain;
(2) Extend or renew a contract to procure or obtain; or (3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(ii) Telecommunications or video surveillance services provided by such entities or using such equipment.
(iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an 344
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entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(b) In implementing the prohibition under Public Law 115-232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained. (c) See Public Law 115-232, section 889 for additional information. (d) See also §200.471."
13. DOMESTIC PREFERENCES FOR PROCUREMENTS
(L) §200.322 Domestic preferences for procurements.
(a) As appropriate and to the extent consistent with law, the non-Federal entity should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award.
(b) For purposes of this section:
(1) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) “Manufactured products” means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber." 345
EXHIBIT G – Consultant Questionnaire
Definition of a Consultant is found in Section 18702 of Regulations of the Fair Political Practices Commission, Title 2, division 6 of the California Code of Regulations.
Consultants, as defined by Section 18701, are required to file an Economic Interest Statement (Form 700) within 30 days of signing a Consultant Contract with the City, on an annual basis thereafter if the contract is still in place, and within 30 days of completion of the contract.
Company Name_______________________________________________ __________________________ (Contract Date)
Name of Consultant*_______________________________________________________________________ (First Name) (Middle Initial) (Last Name)
Company address_____________________________________________ Phone_____________________ City, State, Zip____________________________________________________________________________ Contracting City Dept.______________________________________________________________________ Estimated Date of Project Completion__________________________________________________________ A. Will consultant make governmental decision whether to
1. Approve a rate, rule, or regulation? Yes □ No □
2. Adopt or enforce a law? Yes □ No □
3. Issue, deny, suspend, or revoke any permit, license, Yes □ No □ application, certificate, approval, order, or similar
authorization or entitlement?
4. Authorize the agency to enter into, modify, or renew a Yes □ No □ contract provided it is the type of contract which
requires agency approval?
5. Grant agency approval to a contract which requires Yes □ No □ agency approval and in which the agency is a party or to the specifications for such a contract?
6. Grant agency approval to a plan, design, report, Yes □ No □ study, or similar item?
7. Adopt, or grant agency approval of, policies, standards, Yes □ No □ or guidelines for the agency, or for any subdivision thereof? B. Will the consultant serve in a staff capacity with the City and in Yes □ No □ that capacity perform the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code?
Will consultant manage public investments? Yes □ No □
____________________________________________ _____________________________ Name of Person Completing Questionnaire Date
*If other individuals will be working on the contract, a form should be completed for each person to determine filing obligation
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Mark Thomas & Company, Inc
Contract Number – Great California Delta Trail – Clarksburg Branch Line Extension Expires on 06/30/29
EXHIBIT A
Scope of Work
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Great California Delta Trail – Clarksburg Branch Line Extension Project City of West Sacramento