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PART 5 GENERAL CONDITIONS
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PART 3: 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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PAR25-201 - Heritage Oaks Park Improvements
150 Working Days, 180 Maintenance Days
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JICS
KM
MBMA
MSS
NBFU
NBS
NEC
NEMA
NFPA
OSHA
PCA
SMACNA
SSPC
SSPWC
UBC
UL
UMC
UPC
USAS
USBR
USPHS
WCLIB
WIC
Joint Industry Conference Standards
Kinder Morgan
Metal Building Manufacturer’s Association
Manufacturers Standardization Society of the Valve and Fitting Industry Standards
National Board of Fire Underwriters
National Building Standards
National Electrical Code
National Electrical Manufacturers Association
National Fire Protection Association
Occupational Safety and Health Act of 1970
Portland Cement Association
Sheet Metal and Air Conditioning Contractor’s National Association Steel Structures Painting Council
Standard Specifications for Public Works Construction
Uniform Building Code
Underwriter’s Laboratory
Uniform Mechanical Code
Uniform Plumbing Code
The United States of America Standard Institute
United States Bureau of Reclamation
United States Public Health Service
West Coast Lumber Inspection Bureau
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 Standard Specifications 2018, 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.
His – “His” shall include “her” and “its”.
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.
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PAR25-201 - Heritage Oaks Park Improvements
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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 2018, 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, unless otherwise specified: 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 Standard Specifications 2018.
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.
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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.
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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. These Imagecon, Inc.
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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 Imagecon, Inc.
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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 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 Imagecon, Inc.
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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 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.
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150 Working Days, 180 Maintenance Days
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(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 SubSubcontractors 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.
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 Imagecon, Inc.
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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 a 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 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 Claims
(1) The Contractor may submit a claim to the Engineer concerning any matter for which a protest under Section 2.03, or a notice of potential claim, is filed.
Such claims, 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 claim 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, claims shall be submitted at the earliest practicable time in which such a determination can be made. In any event, all claims Imagecon, Inc.
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shall be filed on or before the date of the final release by the Contractor as provided for in Section 7.09.
(2) All claims shall be in writing and shall set forth clearly and in detail, for each item of additional compensation claimed, the reasons for the claim, 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 claim. 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.
(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
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
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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.
(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).
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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 Imagecon, Inc.
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and tear excepted, together with any other work, which may be damaged or displaced in so doing.
(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.
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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 Imagecon, Inc.
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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, 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.
(c) 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.
(d) 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. (e) 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.
(f) 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. (g) 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 Imagecon, Inc.
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discovered either prior to or after the Drawings are processed by the Engineer, the Specifications shall control and shall be followed.
(h) Unless otherwise stated, the Engineer shall have thirty (30) days from the date of receipt of Shop and/or Working Drawings for review.
(i) 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.
(j) 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. (k) 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.
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 Imagecon, Inc.
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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 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.
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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 reserved to perform other or additional work at or near the site (including material sources) at any time, by the use of other forces.
(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 Imagecon, Inc.
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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 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 Imagecon, Inc.
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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. 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 Imagecon, Inc.
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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 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 Imagecon, Inc.
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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.
(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 Imagecon, Inc.
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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;
(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, back charges, 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 Imagecon, Inc.
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thereafter, at all reasonable times at the office of the Contractor (but without any charge to the City), all its books, records, documents, photographs, microphotographs, 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 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 Imagecon, Inc.
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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:
(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 Imagecon, Inc.
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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.
(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 Imagecon, Inc.
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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.
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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 Imagecon, Inc.
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notice to persons who may be exposed to any chemical known to the State of California to cause cancer.
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/Public-Works/CertifiedPayroll-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.
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(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.
(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
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(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.
(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 twentyfive 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 trunk line 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 Imagecon, Inc.
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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 (Caltrans) does not participate in USA. The Contractor is required to notify Caltrans Permits Branch (916) 322-1297 for the location of State facilities.
(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.
(h) The Contractor shall arrange a preconstruction meeting with Kinder Morgan to discuss pothole requirements and estimated review time of load calculations. A heavy equipment submission to Kinder Morgan is required prior to commencement of work.
The Contractor shall notify the City and Kinder Morgan two weeks’ prior to commencement of any work near Kinder Morgan’s pipeline and/or facilities.
The Contractor shall adherence to applicable provisions enumerated in the LOM200-29 “Guidelines for Design and Construction” relating to proposed projects affecting Kinder Morgan pipelines and Kinder Morgan pipeline easements and Information Bulletin #03-001, issued from the Office of the State Fire Marshal concerning encroachments within and adjacent to pipeline easements. Documents are included in the Appendix.
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The exact location of Kinder Morgan’s pipeline can only be determined by pothole at a maximum of fifty (50) foot intervals (or as required by the Kinder Morgan onsite representative). The pothole work must be performed by hand excavation and in the presence of a Kinder Morgan on-site representative.
Excavation within two (2) feet of Kinder Morgan pipelines, valves and fittings must be performed by hand digging in the presence of a Kinder Morgan on-site representative.
All Kinder Morgan inspection costs will be paid by the City.
Heavy equipment will not be allowed to operate directly over Kinder Morgan pipelines or in Kinder Morgan right-of-way unless written approval is obtained from Kinder Morgan. Heavy equipment may only cross Kinder Morgan pipelines at locations designated by Kinder Morgan. The list of all heavy equipment which is going to cross the pipeline needs to be submitted to Kinder Morgan for load calculation as part of safety and damage prevention. The Kinder Morgan right-ofway specialist, Jason Brothers, may be contacted at (559) 333-1799, [email protected]
5.08. WATER POLLUTION
The Contractor shall exercise every reasonable precaution to protect streams, lakes, reservoirs, and canals from pollution with fuels, oils, bitumen, 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.
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.
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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 flag persons 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 flag persons, 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) Flag persons 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 Imagecon, Inc.
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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.
(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. Noncompliance 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 Imagecon, Inc.
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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.
(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 Imagecon, Inc.
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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 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-of- way 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 flag persons, 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 Imagecon, Inc.
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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 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.
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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.
If archaeological resources are discovered within or near construction limits, do not disturb the resources and immediately:
1. Stop all work within a 60-foot radius of the discovery
2. Secure the area
3. Notify the Engineer
The City investigates the discovery. Do not move archaeological resources or take them from the job site. Do not resume work within the radius of discovery until authorized.
If ordered, furnish resources to assist in the investigation or recovery of archaeological resources. This work is change order work.
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.
(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 Imagecon, Inc.
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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) Kinder Morgan requires Contractors working within Kinder Morgan easements to include Kinder Morgan as an additional insured on their insurance policy. A copy of the policy will need to be submitted to Kinder Morgan.
(i) 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.
(ii) Claims Against City
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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 Imagecon, Inc.
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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 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 Imagecon, Inc.
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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 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 waves; 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 Imagecon, Inc.
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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. (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 Imagecon, Inc.
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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.
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
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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, Imagecon, Inc.
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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.
(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 4.05, 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 Imagecon, Inc.
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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. (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 4.056.05. 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 Imagecon, Inc.
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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. (g) The number of days that are anticipated to be non-workable due to adverse weather conditions shall be as set forth in Section 6.04(d) of the General 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 Imagecon, Inc.
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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.
(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. (8) 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.
(9) 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.
(10) 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.
(11) Take such other actions as the Engineer may direct.
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(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.
(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 (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.
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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.
(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 Imagecon, Inc.
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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 two thousand five hundred dollars ($2,500.00) 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. (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 Imagecon, Inc.
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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.
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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 Imagecon, Inc.
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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.
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 Imagecon, Inc.
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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.
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 all 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 Imagecon, Inc.
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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.
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 Imagecon, Inc.
PAR25-201 - Heritage Oaks Park Improvements
150 Working Days, 180 Maintenance Days
663
General Conditions
Page | 5-71
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 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.
Imagecon, Inc.
PAR25-201 - Heritage Oaks Park Improvements
150 Working Days, 180 Maintenance Days
664
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Page | 5-72
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Imagecon, Inc.
PAR25-201 - Heritage Oaks Park Improvements
150 Working Days, 180 Maintenance Days
665
1751480.1 7203-001
Supplemental Conditions
HERITAGE OAKS PARK IMPROVEMENTS Page | 6-1
PART 6 SUPPLEMENTAL CONDITIONS
(SPECIAL PROVISIONS)
Imagecon, Inc.
PAR25-201 - Heritage Oaks Park Improvements
150 Working Days, 180 Maintenance Days
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Technical Specifications
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SUPPLEMENTAL CONDITIONS (SPECIAL PROVISIONS)
Except as modified by these Supplemental Conditions, the work shall be performed in accordance with Division 3 General Conditions.
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 attached contract provisions for the Land and Water Conservation Fund Standard Specifications, in that order.
The following provisions apply to use of or reference to The Land and Water Conservation Fund
Grant Contract Provisions
A. The term “NPS” as used herein means the National Park Service, United States Department of the Interior.
B. The term “Director” as used herein means the Director of the National Park Service, or any representative lawfully delegated the authority to act for such Director.
C. The term “Secretary” as used herein means the Secretary of the Interior, or any representative lawfully delegated the authority to act for such Secretary.
D. The term “State” as used herein means the State, Territory, or District of Columbia that is a party to the project agreement, and, where applicable, the political subdivision or public agency to which funds are to be sub awarded pursuant to this agreement.
Wherever a term, condition, obligation, or requirement refers to the State, such term, condition, obligation, or requirement shall also apply to the recipient political subdivision or public agency, except where it is clear from the nature of the term, condition, obligation, or requirement that it is to apply solely to the State. For purposes of these provisions, the terms “State,” “grantee,” and “recipient” are deemed synonymous.
E. The term “Land and Water Conservation Fund” or “LWCF” as used herein means the Financial Assistance to States section of the LWCF Act (Public Law 88-578, 78 Stat 897, codified at 54 U.S.C. § 2003), which is administered by the NPS.
F. The term “Manual” as used herein means the Land and Water Conservation Fund State Assistance Program Manual, Volume 71 (March 11, 2021).
G. The term “project” as used herein means a Land and Water Conservation Fund grant which is subject to the grant agreement and/or its subsequent amendments.
City Standard Specifications are available online at:
https://www.cityofwestsacramento.org/government/departments/communitydevelopment/development-engineering-division/documents 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.
Imagecon, Inc.
PAR25-201 - Heritage Oaks Park Improvements
150 Working Days, 180 Maintenance Days
668
669
Statutory Exemptions. State code number:
_______________________________________________
Print Form
Notice of Exemption Appendix E
To: Office of Planning and Research From: (Public Agency): ____________________________ P.O. Box 3044, Room 113 _______________________________________________ Sacramento, CA 95812-3044 County Clerk
(Address)
___________________________
___________________________
County of: __________________
Project Title: ____________________________________________________________________________ Project Applicant: ________________________________________________________________________ Project Location - Specific:
Project Location - City: ______________________ Project Location - County:
Description of Nature, Purpose and Beneficiaries of Project:
_____________________
Name of Public Agency Approving Project: _____________________________________________________ Name of Person or Agency Carrying Out Project: ________________________________________________ Exempt Status: (check one):
Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Reasons why project is exempt:
Lead Agency
Contact Person: ____________________________ Area Code/Telephone/Extension: _______________ If filed by applicant:
1. Attach certified document of exemption finding.
2. Has a Notice of Exemption been filed by the public agency approving the project? Yes No Signature: ____________________________ Date:
Signed by Lead Agency Signed by Applicant
Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR:
Reference: Sections 21108, 21152, and 21152.1, Public Resources Code. _______________
Categorical Exemption. State type and section number: ____________________________________ ______________________________________________
______________ Title: _______________________
670 Revised 2011
City of West Sacramento
Memorandum
TO: Mayor Guerrero and City Council Members
CC: Aaron Laurel, City Manager
Amanda Berlin, Assistant City Manager
Ariana Adame, Assistance City Manager
Jeff Mitchell, City Attorney
Jennifer Cusmir, City Clerk
FROM: Chris Surawski, Senior Project Manager, Parks & Recreation Department DATE: July 16, 2025
SUBJECT: City Council Agenda July 16, Item #16, CONSIDERATION OF ADOPTION OF RESOLUTION 25-72 AMENDING THE CAPITAL IMPROVEMENT PROGRAM
BUDGET, APPROVAL OF THE PROJECT PLANS AND SPECIFICATIONS, AND AWARD OF A CONSTRUCTION CONTRACT TO IMAGECON, INC. FOR THE HERITAGE OAKS PARK IMPROVEMENTS PROJECT (CIP 62134) The purpose of this memo is to provide information to describe a change to the Attachments for the above-referenced item on the July 16th agenda.
This item requests the City Council to approve the Plans and Specifications for the project. To accompany this action, an updated rendering of the site improvements was requested to be attached to the report and was inadvertently excluded. City Staff is including this as Attachment 5 to correct this omission.
671
672
CITY COUNCIL AGENDA REPORT
MEETING DATE: July 16, 2025 ITEM # 17
SUBJECT:
CONSIDERATION OF ADOPTION OF THE SUCCESSOR MEMORANDUM OF
UNDERSTANDING BETWEEN THE CITY OF WEST SACRAMENTO AND THE WEST SACRAMENTO FIREFIGHTER’S ASSOCIATION
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [X ] Staff
[ ] Other
Amanda Berlin, Assistant City Manager
Liane Lee, Human Resources Manager
Kaitlyn Montez, Sr. Human Resources Analyst
City Manager’s Office
ATTACHMENT [ X ] Yes [ ] No [ ] Information [ ] Direction [ X ] Action
OBJECTIVE
The purpose of this report is to seek City Council consideration of a three (3) year Memorandum of Understanding (MOU) between the City of West Sacramento and the West Sacramento Firefighters’ Association (FFA).
RECOMMENDED ACTION
Staff respectfully recommends that the City Council:
1. Adopt the Memorandum of Understanding between the City of West Sacramento and West Sacramento Firefighters’ Association, effective July 1, 2025, through June 30, 2028; and
2. Authorize the City Manager, or designee, to execute the Joinder Agreement for West Sacramento Firefighters’ Association members to participate in the "IAFF Medical Expense Reimbursement Plan”, as outlined in the MOU.
BACKGROUND
The MOU between the City of West Sacramento (City) and FFA expired on June 30, 2025. Negotiations for a successor MOU commenced on April 28, 2025. A total tentative agreement was reached by the City and FFA on June 12, 2025. Represented members of FFA ratified the total tentative agreement (TTA) on June 17, 2025, with the City Council adopting the TTA on June 18, 2025. Staff is now returning to City Council for adoption of the full, successor MOU incorporating these and other non-economic provisions.
ANALYSIS
The City and FFA agreed to a total tentative agreement for a new three (3) year Memorandum of Understanding (MOU) effective July 1, 2025, through June 30, 2028. The Council approved the total tentative agreement, Classification Plan (Salary Schedule), and benefit summary on June 18, 2025. Staff is now returning with the full MOU incorporating the economic provisions outlined in the total tentative agreement, as well as other noneconomic provisions for City Council approval.
Environmental Considerations
Not applicable
Commission Recommendation
Not applicable
Strategic Plan Integration
These recommendations support the City Council’s Mission to provide Quality Municipal Services and a City government that is financially sound with a superior workforce.
Alternatives
The City Council may choose to accept or reject any or all of the terms of the agreements. However, should the terms of the agreements be rejected or modified, the City and the Union will have to reopen negotiations.
Coordination and Review
Representatives of the FFA and the City of West Sacramento have agreed to the terms of the agreement. The FFA membership ratified the TTA on June 17, 2025.
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MOU Adoption Firefighter’s Association
July 16, 2025
Budget/Cost Impact
There is no cost associated with approval of the full MOUs; funding for the cost of the economic provisions of the FFA MOU was already approved by the City Council on June 18, 2025.
ATTACHMENTS
1. FFA Memorandum of Understanding (Clean)
2. FFA Memorandum of Understanding (Redline)
3. Joinder Agreement for IAFF Locals
674
MEMORANDUM
OF
UNDERSTANDING
BETWEEN
THE CITY OF WEST SACRAMENTO
AND
LOCAL 522 / WEST SACRAMENTO
FIREFIGHTER’S ASSOCIATION
Effective July 1, 2025 through June 30, 2028
675
Table of Contents
1. RECITALS ......................................................................................................1
2. MANAGEMENT RIGHTS ...............................................................................1
3. LOCAL 522 RIGHTS ......................................................................................3
4. NO STRIKE PROVISION ...............................................................................5
5. NON-DISCRIMINATION PROVISION............................................................6
6. SICK LEAVE...................................................................................................6
7. BEREAVEMENT LEAVE ................................................................................8
8. VACATION .....................................................................................................12
9. HOLIDAYS......................................................................................................14
10. RETIREMENT ..............................................................................................15
11. UNIFORM ALLOWANCE .............................................................................16
12. HEALTH INSURANCE .................................................................................16
13. COMPENSATION.........................................................................................21
14. EMERGENCY MEDICAL TECHNICIAN (EMT) CERTIFICATION
REQUIREMENT .................................................................................................27
15. SCHEDULE AND HOURS............................................................................27
16. DEPARTMENT SENIORITY LIST ................................................................29
17. LAYOFFS .....................................................................................................29
18. REPAIR OR REPLACEMENT OF DAMAGED PERSONAL PROPERTY ...31
19. RULES, REGULATIONS MEET AND CONFER CONSIDERATIONS.........31
20. PROBATIONARY PERIOD ..........................................................................32
21. WORKING CONDITIONS.............................................................................32
22. PROMOTIONAL EXAMINATIONS ...............................................................33
23. NON-DISCIPLINARY GRIEVANCE AND ARBITRATION PROCEDURE ...34
24. DISCIPLINARY PROCEDURE.....................................................................38
25. MATERNITY, PATERNITY, AND FAMILY CARE LEAVE............................41
26. HAZARDOUS MATERIAL RESPONSE .......................................................41
27. TERM............................................................................................................41 APPENDIX "A" LEAVE CONVERSION - 40 HOUR PERSONNEL....................ii APPENDIX "B" MANDATED & OPTIONAL BENEFITS FOR RETIREMENT ....ii 676
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
1. RECITALS
1.1. This memorandum of Understanding is entered into by and between the City of West Sacramento, hereinafter referred to as the "CITY" and Local 522, hereinafter referred to as the "Local 522."
1.2. The City Council, or its designated agent(s) shall represent the City.
1.3. Local 522, or its designated agent(s) shall represent the employees in the bargaining unit represented by Local 522.
1.4. The City recognizes Local 522 as the sole and exclusive bargaining agent for all full-time employees of the City who are in the Firefighter, Fire Engineer, and Fire Captain classifications.
1.5. This Memorandum of Understanding shall be binding upon any successor employee organization, which is designated by Local 522 during the term of this agreement as their representative of the members of which they have been designated to represent. Recognition by the City of any successor employee organization to Local 522 shall be based upon that organization's adherence to all provision(s) of this agreement.
2. MANAGEMENT RIGHTS
Except as otherwise limited by a specific term of a labor agreement, the City has, and retains the sole and exclusive rights and functions of management, including, but not limited to, the following:
To determine the nature and extent of services to be performed, as well as the right to determine and implement its public function and responsibility. To manage all facilities and operations of the City, including the methods, means and personnel by which the City operations are to be conducted. To schedule working hours and assign work.
To establish, modify, or change work schedules or standards. To direct the workforce, including the right to hire, assign, promote, demote, or transfer an employee.
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Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
To determine the location of all work assignments and facilities. To determine the layout and the machinery, equipment or materials to be used. To determine processes, techniques, methods and means of all operations, including changes, allocations, or adjustment of any machinery or equipment. To determine the size and composition of the work force. To determine policy and procedures affecting the selection or training of employees. To establish, assess and implement employee performance standards, including, but not limited to, quality and quantity standards; the assessment of employee performances; and the procedures for said assessment.
To control and determine the use and location of City employees, property, material, machinery, or equipment.
To schedule the operation of, and to determine the number and duration of shifts. To determine and enforce safety, health, and property protection measures and require adherence thereto.
To transfer work from one job site to another or from one location or unit to another. To introduce new, improved, or different methods of operations, or to change existing methods.
To layoff employees from duty for lack of work, lack of funds, or any other reason. To reprimand, suspend, discharge, or otherwise discipline employees. To discharge probationary employees without right of appeal. To establish, modify, determine, or eliminate job classifications and allocate City positions to such classification.
To promulgate, modify, and enforce work rules, safety rules, and regulations. To take such other and further action as may be necessary to organize and operate the City in the most efficient and economical manner and in the best interest of the public it serves.
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
To take all necessary actions to prepare for and carry out its mission in emergencies. To contract or subcontract construction, services, maintenance, distribution, or any other work with outside public or private entities.
No Arbitrator shall have the authority to diminish any of the City rights included in this section.
Any agreement by the City to meet and confer or meet and consult over the effect of the exercising of a City right shall not in any way impair the right of the City to exercise and implement any of its rights.
3. LOCAL 522 RIGHTS
3.1. Financial Reports
Upon request, Local 522 shall annually submit copies of a financial report similar to that required by the Labor-Management Disclosure Act of 1959, to the City’s Human Resources Manager.
Copies of such reports shall be available to employees at the offices of Local 522.
Failure to file such a report within one hundred (100) days of the close of the Local 522’s fiscal year shall result in the termination of all dues deductions, without jeopardy to any employee, until said report is filed.
3.2. Payroll Deductions
The City shall deduct Local 522 dues, initiation fees, assessments, and associated provided insurance from each pay check. The City shall promptly pay to the designated payee all sums so deducted.
3.3. Hold Harmless
Local 522 shall indemnify and hold harmless the City, its officers and employees harmless from any and all claims, demands, suits, or any other action arising from the collection of dues. In no event shall the City be required to pay from its own funds Local 522 Association dues, initiation fees, assessments and association provided insurance.
3.4. Local 522 Release Time
679
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Local 522 shall have a reasonable amount of release time for labor negotiations with the City and associated meetings and for employee/employer relations’ matters involving the City and Local 522.
For other Local 522 business, a union time bank has been established. The bank will allow designated representatives to utilize time for the sole purpose of performing or conducting Local 522 activities, subject to the following conditions:
3.4.1 Employees may donate only vacation, CTO or holiday hours from their accrued leave balance to the bank. Such donation shall be voluntary, non-revocable and not returnable to the employee. An employee must complete a voluntary donation form to allow the deduction of hours. Effective the first full calendar quarter following final approval of this MOU, donations will only be allowed during the first two weeks of each calendar quarter (i.e. January, April, July and October.)
3.4.2 The maximum number of hours any member shall donate is twenty-four (24) hours per calendar year. Upon receipt of the voluntary donation form, Human Resources will immediately add those hours to the union time bank. The union time bank will be maintained by the Human Resources Division. Human Resources will provide a semiannual report on bank transactions to the West Sacramento Unit Representative, Local 522.
3.4.3 Use of the union leave bank shall be approved through the department’s normal leave request process and shall not be unreasonably denied.
3.4.4 When the designated representative takes approved leave, the union time bank will be charged an hour and a half for each hour an employee’s replacement is required to work, if needed. If no employee overtime is needed, the deduction will be on an hour-to-hour basis.
3.4.5 Union leave is authorized only to the amount of credit existing in the bank. The remaining unused amount in the bank on December 31st shall be carried over into the next calendar year.
680
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
3.4.6 Local 522 shall indemnify and hold the City harmless from any liability resulting from any and all claims, demands, suits or any other action arising from compliance with this section or in reliance on any documentation furnished under this section.
3.4.7 The City shall provide 500 hours annually for the President, Vice President or other Officers or Directors of the Union of temporary time off with pay, for the purpose of investigating grievances; disciplinary matters; employer/employee training; attending to organization training sessions; seminars; business meetings; elected board meetings; conventions and/or conferences. Sufficient advance notice shall be provided to the Department so that release time may be arranged. Release time for all of the above meetings shall be subject to the scheduling needs of the department. The unused hours may roll over annually as of September 1; the maximum amount of hours banked shall be 700 hours.
3.4.8 For the term of this contract, the Union can purchase additional hours of temporary time off with pay for the President, Vice President, or other Officers or Directors of the Union should the union exhaust both the 500 hours provided by the City and all voluntary employee donated leave bank hours.
3.4.8.1 The Union shall reimburse the City the actual cost of the employees’ hours of temporary time off with pay, and the actual cost of the back fill coverage (if needed), for the employees utilizing such time off. The Union will purchase a time bank at a flat dollar amount (ex. $10,000) and the City will invoice the Union for the dollar amount they choose to pre-purchase. Payment will be due no later than thirty days following the date of invoice from the City.
3.4.8.1.1 The City will deduct from the Union-purchased bank the cost of the back filled overtime coverage at 1.75x (i.e., 1.5x for the overtime and 0.25x for the roll up costs and FLSA overtime costs) attributed to the additional working hours for the employee utilizing such temporary time off with pay.
3.4.8.1.2 Once the bank and Union-purchased bank has been exhausted the City will notify the Union, at which time the Union may purchase an additional time bank at a flat dollar amount.
3.4.8.1.3 Overtime accrued by employees covering back fill in this instance is excluded from being provided as CTO.
3.4.8.2The time off may be used for the purpose of investigating grievances; disciplinary matters; employer/employee training; attending union organizational training 681
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
sessions, seminars, business meetings, elected board meetings, conventions, and conferences.
3.4.8.3Use of time off shall be approved through the department’s normal leave request process and shall not be unreasonably denied.
3.5 Use of Release Time
Use of Local 522 release time (donated, provided or purchased) is subject to reasonable advance requests. Such requests shall be to the Battalion Chief. Approval of the release time must be received before the employee uses the time. The department shall reasonably grant or deny release time based upon legitimate operating needs.
3.5. Meetings
Local 522 shall have the right to reasonable use of City facilities for meetings upon timely written or oral application stating the purpose of such use. Such use shall not interfere with the regular course of doing business.
4. NO STRIKE PROVISION
4.1. Job Action
The officers, agents, representatives, and/or members agree that during the term of this agreement they will not honor any job action by any other employee(s) or recognize a picket line of a labor organization while in the course of the performance of their official duties.
4.2. Local 522 Responsibility
In the event of an unauthorized job action, as specified in 4.1 above, the City agrees that there will be no liability on the part of Local 522 provided the employee organization promptly and publicly disavows such unauthorized action, immediately orders the employees to resume work, and attempts to bring about a prompt resumption of normal operations, and provided, further that Local 522 notified the City in writing within forty-eight (48) hours after the commencement of such job action, as to the measures it has taken to comply with the provisions of this agreement.
4.3. Disciplinary Action
682
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Should Local 522 fail to adhere to, or in any way violate the "No Strike Provision" in this agreement, the City may, in addition to any lawful remedies or disciplinary actions available, suspend any and all of the rights and privileges accorded Local 522 under any resolution, rule, or regulations of the City or any Memorandum of Understanding with Local 522, including, but not limited to, the suspension of recognition of Local 522.
5. NON-DISCRIMINATION PROVISION
No person in the employment of the City or seeking employment thereby shall be appointed, reduced, or removed, or in any way favored or discriminated against because of race, religion, color, sex, gender, sexual orientation, national or ethnic origin, ancestry, citizenship status, uniformed member status, marital status, pregnancy, age, medical condition (cancer or HIV/AIDS related), genetic characteristic and physical or mental disability (actual or perceived) or political affiliation. The City has adopted Affirmative Action and Sexual Harassment policies to help ensure fair employment practices. The City shall ensure that all employment practices are in compliance with the Americans with Disabilities Act.
6. SICK LEAVE
6.1. Sick leave is defined as the absence from duty by an employee because:
6.1.1. Their own illness or injury or exposure to a contagious disease incapacitates such employee from their duties.
6.1.2. Their own medical or dental appointment(s).
6.1.3 Employee is a victim of domestic violence, sexual assault, or stalking, and needs to obtain or attempt to obtain any relief per Labor Code subdivision (c) of Section 230 and subdivision (a) of Section 230.1.
6.1.4. They must care for a member of their family because of illness, injury or exposure to a contagious disease and when the care of such employee is definitely required, or for their family member's medical or dental appointments.
683
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
6.1.4.1. As used in this subsection, "family" means husband, wife, domestic partner, child, brother, sister, parents, grandparents or spouse's parents, brother in law, sister in law or grandparents. "Child" is defined as a biological, foster, or adopted child, a stepchild, a legal ward or a child of a person standing "in loco parentis" (refers to a person who has put themselves in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.
6.1.4.2 Sick leave may be taken by an employee for the attendance upon a member of their immediate family because of illness, injury, or exposure to contagious disease and when attendance of such employee is definitely required, or for their family member’s medical or dental appointments.
6.1.5. Employee must care for a “designated person”. A “designated person” means a person identified by the employee at the time the employee requests paid sick days. An employee is limited to one (1) designated person per 12-month period for paid sick days.
6.2. The Fire Chief or designee, may request a doctor's certificate as proof of necessity for absence in excess of four (4) consecutive shifts (96 hours) in order for sick leave with pay to be granted. The parties agree that such means shall not be used to harass or intimidate employees or discourage appropriate use of sick leave. If a pattern has been established where an employee has taken sick leave on certain days of the week (e.g., holidays, last day of the workweek) a doctor's note may be requested.
6.3. Personnel assigned to the forty-eight (48)/ninety-six (96) schedule shall earn sick leave at the rate of one-half (1/2) shift per month.
6.3.1 Effective the payroll period inclusive of July 1, 2025 and during the term of this contract (through June 30, 2028) only, personnel assigned to the forty-eight (48)/ninety-six (96) schedule shall earn additional sick leave at the rate of one and one-half (1.5) hours per month. Unit personnel assigned to forty (40) hour work schedules shall have their leave converted per Section 6.4. 684
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
6.4. Unit personnel assigned to forty (40) hour work schedules shall have their leave converted. One twenty-four (24) hour shift of leave time (i.e., vacation, holiday, or sick leave) is equivalent to two (2) eight-hour (8) days (i.e., sixteen (16) hours).
6.5. In the event of an employee’s death or layoff, up to fifty percent (50%) of accumulated sick leave will be paid off. At retirement, an employee has two (2) options regarding their accumulated sick leave. The employee can choose up to fifty percent (50%) cash-out, the remaining percent of the employee’s unpaid accumulated sick leave is reported to CalPERS for additional service credit OR in lieu of receiving any cash-out, the employee may choose to have one hundred percent (100%) of the accumulated sick leave reported to CalPERS.
6.6. An employee who is incapacitated due to serious illness or injury while on vacation leave shall have such time charged against sick leave when they promptly notify their supervisor and substantiate such request upon return to normal duty.
7. BEREAVEMENT AND REPRODUCTIVE LOSS LEAVE
7.1 Each employee shall be granted bereavement leave with pay up to two (2) work shifts in the event of the death of a member of the employee's immediate family.
7.1.1 An additional two (2) work shifts may be taken; however, this additional time shall be charged against the employee’s sick or other leave time.
7.1.2 The days of bereavement leave need not be consecutive. The bereavement leave shall be completed within three months of the date of death of the family member or close relative unless otherwise authorized by the Fire Chief or designee.
7.1.3 The employee, if requested by the Fire Chief or designee, within 30 days of the first day of the leave, shall provide documentation of the death of the family member.
Documentation includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
7.1.4 For the purpose of this section, "immediate family" shall be defined as:
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Parents (means a biological, foster, or adoptive parent, a parent-in-law, a step-parent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child)
Spouse
Registered domestic partner
Children (means a biological, adopted, or foster child, a stepchild, a legal ward, a child of a registered domestic partner, or a person to whom the employee stands in loco parentis)
Sibling (means a person relate to another person by blood, adoption, or affinity through a common legal or biological parent)
Mother-in-law, father-in-law, daughter-in-law, and son-in-law Grandparent
Grandchild
7.1.5 In the case of the death of other close relatives, the employee shall be granted time off with pay for one (1) work shift.
7.1.5.1 Other close relatives include the employee's:
Brother-in-law
Sister-in-law
Step-brother
Step-sister
Aunt
Uncle
7.1.5.2 Additional time off with pay may be granted by the City when an employee's emotional condition warrants such consideration, however, such additional time off shall be subtracted from the employee's sick or other leave time.
7.2 Reproductive Loss Leave
When a reproductive loss event is experienced by an employee the City will provide time off, with pay, up to up to two (2) work shifts per loss event. One (1) additional work shift may be taken per loss event; however, this additional time shall be charged against the employee’s 686
Memorandum of Understanding
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07/01/2025– 06/30/2028
vacation, floating holiday, or sick leave accruals, as designated by the employee, or taken without pay if no leave time exists.
7.2.1 The days of reproductive loss leave need not be consecutive. The leave shall be completed within three months of the date of the reproductive loss event.
7.2.2 If an employee suffers more than one (1) reproductive loss event within 12 months, they are entitled to 12 work shifts of leave total, where up to 8 work shifts may be City provided time off.
7.2.3 Definitions:
Reproductive loss event: the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.
Assisted reproduction: a method of achieving a pregnancy through an artificial insemination or an embryo transfer and includes gamete and embryo donation; it does not include any pregnancy achieved through sexual intercourse.
Reproductive loss is defined as a:
Failed adoption: the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party.
This event applies to a person who would have been a parent of the adoptee if the adoption had been completed.
Failed surrogacy: the dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate.
This event applies to a person who would have been a parent of a child born as a result of the surrogacy.
Miscarriage: a miscarriage by a person, by the person’s current spouse or domestic partner, or by another individual if the person would have been a parent of a child born as a result of the pregnancy.
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Stillbirth: a stillbirth resulting from a person’s pregnancy, the pregnancy of a person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy that ended in stillbirth.
Unsuccessful assisted reproduction: an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure. This event applies to a person, the person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy.
7.2.4 Documentation
The employee is not required to provide any documentation supporting their request for reproductive loss leave.
7.2.5 Coordination with Other Leaves
If, prior to or immediately following a reproductive loss event, an employee is on or chooses to go on leave from work pursuant to Government Coded Sections 12945, 12945.2, or any other leave entitlement under state or federal law, the employee shall complete their reproductive loss leave within three months of the end date of the other leave.
7.3 For section 7.1 and 7.2, one (1) workday (e.g., 8 or 10 hours) for employees on a 40-hour work week schedule is equivalent to a one-half (1/2) shift.
8. VACATION
8.1. General Provisions
The City has adopted the applicable Lexipol Policy which provides a procedure for employees to schedule vacations and holidays.
8.2. Accumulation of Vacation Leave
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Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Vacation leave is accrued yearly, and is computed on the basis of the employee's hire date as a full-time employee.
Annual vacation leave may not be accumulated; it must be used from year to year as accumulated, except as otherwise provided herein.
8.2.1 Employees may have prior years of qualifying service included in their City years of service to count toward their accrual tier if they previously worked as a full time paid Firefighter/EMT or above. Prior years of service must be verified by submitting employment documentation outlining previous dates of employment. Additional documentation may be requested if necessary.
8.3. Scheduling Vacations
No more than five (5) members of each shift may be on vacation, holiday, or CTO at a single time; however, during periods where sufficient staffing is available to provide adequate fire protection, the Fire Chief may authorize more than five (5) employees to be on vacation at the same time.
Priority of vacation selection shall be by department seniority, without regard to rank. While choosing Vacation/Holiday/CTO on a “tour” (48-hour shift) that includes a holiday, only four (4) members will be allowed to select these days. Of these four (4) members, no more than three (3) can be of the same rank.
8.3.1 Vacation Change
Employees may move their vacation to another shift upon request and approval by a Battalion Chief or designee.
8.4. Vacation Accrual Schedule
Year of Service * 56-hour Employee Accrual Rate
Per Pay Period**
Maximum Vacation Shifts
Accrued During Service Year ***
1 st 5.538 6
2 nd 5.538 6
3 rd 5.538 6
4 th 5.538 6
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
5 th 5.538 6
6 th 8.308 9
7 th 8.308 9
8 th 8.308 9
9 th 8.308 9
10th 8.308 9
11th + 11.076 12
* 1st year of service is from 56-hour employee hire date to first anniversary. 2nd year of service is from first anniversary to second anniversary. Subsequent service years follow this pattern. ** Unit personnel assigned to forty (40) hour work schedules shall have their leave converted pursuant to Appendix A.
*** Service years do not correspond with calendar years for all employees. Number of shifts available at time of December Vacation Picks will vary depending on hire date. For example, an employee hired on January 1, 2012 would accrue 6 shifts in 2012 and have 6 shifts available to use in 2013; an employee hired on April 1, 2012 would accrue 4.5 shifts and have 4.5 shifts available for use in 2013; an employee hired on July 1, 2012 would accrue 3 shifts and have 3 shifts available for use in 2013; and, an employee hired on October 1, 2012 would accrue 1.5 shifts and would have 1.5 shifts available for use in 2013.
8.5. Vacation Buy-Back
Shift employees may sell back seventy-two (72) hours annually and those on a forty (40) hour workweek may sell back forty-eight (48) hours annually.
Shift employees shall be able to float up seventy-two (72) hours annually and those on a forty (40) hour workweek shall be able to float up to forty-eight (48) hours annually for purposes of vacation sell back. Any hours floated but not scheduled by the end of the calendar year will be paid out up to the maximum allowable sell back amount of 72 hours for employees on shift and 48 hours for employees on 40-hour workweek unless employee is able to schedule the time off when one or fewer other employees is already off, consistent with department practice.
9. HOLIDAYS
9.1. All forty-eight (48)/ninety-six (96) hour personnel will receive seven (7) twenty-four (24) hour shifts per year as holidays. Holidays may be taken in the form of compensation or time off or any combination thereof.
690
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
9.2. Unit personnel assigned to forty (40) hour work schedules will receive twelve (12) set holidays listed in Section 9.4. Holiday hours accrue on the payroll period inclusive January 1 of each calendar year. Unit personnel assigned to forty (40) hour work schedules shall have their leave converted pursuant to Appendix A.
9.3. Shift personnel assigned to work on a City designated holiday shall receive one and one-half (1- 1/2) times their straight time base hourly rate of pay for a maximum of sixteen (16) hours per shift.
For personnel assigned to a 40-hour week, when a City designated holiday falls on a regularly scheduled workday, if they elect to work the holiday, they shall receive one and one-half (1-1/2) times their straight time base hourly rate of pay. If they elect to not work the holiday, they shall use holiday hours first on their time card, and if they have no holiday hours banked, they shall use other appropriate accrued leave..
9.4. The requirements of Section 9.3 above shall be instituted for the following holidays:
1. New Year’s Day (January 1)
2. Martin Luther King Jr.’s Birthday (Third Monday in January)
3. President’s Day (Third Monday in February)
4. Cesar Chavez Day (March 31)
5. Memorial Day (Last Monday in May)
6. Juneteenth (June 19)
7. Independence Day (July 4)
8. Labor Day (First Monday in September)
9. Veteran’s Day (November 11)
10. Thanksgiving Day (Fourth Thursday in November)
11. Day after Thanksgiving Day (Friday following Thanksgiving)
12. Christmas Day (December 25)
For personnel assigned to a 40-hour week, when any of the above holidays fall on a Sunday, the Monday following shall be observed as a holiday. When any of the above holidays fall on a Saturday, the preceding Friday shall be observed as the holiday. 691
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
10. RETIREMENT
10.1. The City shall continue retirement coverage for all employees under the California Public Employees’ Retirement system (CalPERS).
For employees hired before December 15, 2012, the City’s former “Safety Fire Plan” has been assigned to the CalPERS Safety 3% @ 50 Risk Pool. Employees shall pay the entire 9% of their employee CalPERS contribution on a pre-tax basis. The current mandated and optional benefits of the Safety 3% @ 50 Risk Pool are located in Appendix B.
Should CalPERS at any time amend the Risk Pool Mandatory Benefits to either add, delete or modify benefits, the City has no obligation to meet and confer with the Union over these changes.
For employees hired on or after December 15, 2012, and before January 1, 2013 or Classic members as defined by CalPERS, the second-tier retirement formula shall be 3% @ 55. Employees shall pay the entire 9% of their employee CalPERS contribution on a pre-tax basis. The current mandated and optional benefits of the Safety 3% @ 55 Risk Pool are located in Appendix B.
For employees hired on or after January 1, 2013, who have never been a CalPERS member, have not been a CalPERS member in the past 180 days, and who are not eligible for reciprocity with another California public retirement system as defined by the Public Employees’ Pension Reform Act (PEPRA), the retirement formula shall be 2.7% @ 57. Employees shall have a member contribution rate of fifty percent (50%) of the total normal cost rate. The current mandated and optional benefits of the Safety 2.7% @ 57 Risk Pool are located in Appendix B. These Fire Safety Members will pay the entire CalPERS employee contribution as determined by CalPERS on a pretax basis.
10.2 Employee Contribution To Employer Share
Effective July 1, 2021, all employees shall continue to pay an additional one percent (1%) towards the employer share of CalPERS retirement pursuant to PERS Code Section 20516. As applicable, the employee contribution will be made pre-tax.
11. UNIFORM ALLOWANCE
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Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
11.1. Each employee shall receive an annual uniform allowance of one thousand dollars ($1000).
Employees shall receive their uniform allowance in equal installments paid in each regular biweekly payroll.
11.2. Within the first two (2) years of employment with the City, employees shall purchase Class A uniforms. Class A uniforms shall comply with department standard.
12.1 The City shall continue enrollment in the State of California Public Employees' Retirement System (CalPERS) Health Insurance Program.
12.2 Employees must purchase dental and vision coverage at the employee only level.
12.3. 12.3.1 Effective the payroll period inclusive of January 1, 2025, the employer contribution toward a cafeteria plan amounts for employees to apply toward health benefits (medical, dental and vision) shall be as listed below. The employee must purchase dental and vision at the employee only level at minimum.
Employee only: City will pay up to actual premium amount of medical, dental, and vision for employee only, not to exceed $1,175 per month. Employee plus one: City will pay up to actual premium amount of medical, dental, and vision for employee plus one, not to exceed $1,922 per month. Employee plus two or more: City will pay up to actual premium amount of medical, dental, and vision for employee plus two or more, not to exceed $2,477 per month.
In no event shall the City contribution exceed 100% of the selected plan premium cost including dental and vision.
Share the Savings (Medical Opt Out)
o Employees hired on or before June 30, 2019, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and 693
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
seventy-five dollars ($475) per month plus City paid basic dental and basic vision up to the family rate depending on coverage selected. o Employees hired into the Firefighter classification on or after July 1, 2019, or who return to employment with the City, who participate in Share the Savings will receive four hundred and seventy-five dollars ($475) plus City paid basic dental and basic vision at the Employee Only rate. Employees may purchase dental/vision coverage up to the family rate.
12.3.2 Effective the pay period inclusive of January 1, 2026, the employer contribution toward a cafeteria plan amounts for employees to apply toward health benefits (medical, dental and vision) shall be as listed below. The employee must purchase dental, vision and life (if applicable) at the employee only level at minimum.
Employee only: City will pay up to actual premium amount of medical, dental, and vision for employee only, not to exceed $1,234 per month. Employee plus one: City will pay up to actual premium amount of medical, dental, and vision for employee plus one, not to exceed $2,018 per month. Employee plus two or more: City will pay up to actual premium amount of medical, dental, and vision for employee plus two or more, not to exceed $2,601 per month.
In no event shall the City contribution exceed 100% of the selected plan premium cost including dental and vision.
Share the Savings (Medical Opt Out)
o Employees hired prior to July 1, 2018, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and seventy-five dollars ($475) per month plus City paid basic dental and basic vision up to the family rate depending on coverage selected.
o New employees hired on or after July 1, 2018, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and seventy-five dollars ($475) per month plus City paid basic dental and basic 694
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
vision up to the employee only rate. Employees can purchase up to the family rate with the opt out funds.
12.3.3 Effective the pay period inclusive of January 1, 2027, the employer contribution toward a cafeteria plan amounts for employees to apply toward health benefits (medical, dental and vision) shall be as listed below. The employee must purchase dental, vision and life (if applicable) at the employee only level at minimum.
Employee only: City will pay up to actual premium amount of medical, dental, and vision for employee only, not to exceed $1,296 per month. Employee plus one: City will pay up to actual premium amount of medical, dental, and vision for employee plus one, not to exceed $2,119 per month. Employee plus two or more: City will pay up to actual premium amount of medical, dental, and vision for employee plus two or more, not to exceed $2,731 per month.
In no event shall the City contribution exceed 100% of the selected plan premium cost including dental and vision.
Share the Savings (Medical Opt Out)
o Employees hired prior to July 1, 2018, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and seventy-five dollars ($475) per month plus City paid basic dental and basic vision up to the family rate depending on coverage selected.
o New employees hired on or after July 1, 2018, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and seventy-five dollars ($475) per month plus City paid basic dental and basic vision up to the employee only rate. Employees can purchase up to the family rate with the opt out funds.
12.3.4 Effective the pay period inclusive of January 1, 2028, the employer contribution toward a cafeteria plan amounts for employees to apply toward health benefits (medical, dental and vision) shall be as listed below. The employee must purchase dental, vision and life (if applicable) at the employee only level at minimum.
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Employee only: City will pay up to actual premium amount of medical, dental, and vision for employee only, not to exceed $1,361 per month. Employee plus one: City will pay up to actual premium amount of medical, dental, and vision for employee plus one, not to exceed $2,225 per month. Employee plus two or more: City will pay up to actual premium amount of medical, dental, and vision for employee plus two or more, not to exceed $2,868 per month.
In no event shall the City contribution exceed 100% of the selected plan premium cost including dental and vision.
Share the Savings (Medical Opt Out)
o Employees hired prior to July 1, 2018, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and seventy-five dollars ($475) per month plus City paid basic dental and basic vision up to the family rate depending on coverage selected.
o New employees hired on or after July 1, 2018, who choose not to participate in any of the City’s medical plans (“opt out”) and show proof of other group health care coverage, shall receive four hundred and seventy-five dollars ($475) per month plus City paid basic dental and basic vision up to the employee only rate. Employees can purchase up to the family rate with the opt out funds.
12.5. RETIREE HEALTH INSURANCE
12.5.1 Employees first hired on or before June 30, 2019 and Retired Prior to July 1, 2025 Pursuant to provisions of the CalPERS Health Insurance Program, the City shall pay up to $750 per month for employees retired on the CalPERS Retirement Program. Dental insurance coverage may continue upon retirement, at the retiree’s own expense. Vision insurance is only available for eighteen months, per COBRA, and is at the retiree’s own expense.
12.5.2 Employees first hired on or before June 30, 2019 and Active at the time of Ratification and Approval of the MOU in July 2025
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Pursuant to provisions of the CalPERS Health Insurance Program, the City shall pay up to $750 per month for employees retired on the CalPERS Retirement Program. Dental insurance coverage may continue upon retirement, at the retiree’s own expense. Vision insurance is only available for eighteen months, per COBRA, and is at the retiree’s own expense.
Effective the pay period inclusive of July 1, 2025, the Association shall establish a MERP (Medical Expense Reimbursement Plan) account for the benefit of qualified employees under this section. Beginning the payroll period subsequent to the Association notifying the City in writing that the MERP account set up is complete, the City shall deposit one hundred dollars ($100) per month per qualifying employee into the MERP. An additional monthly contribution to the MERP by employee payroll deduction can be established at the determination of the Association. Such deduction must apply to all employees. The Association may set or adjust an employee contribution amount annually by November 15, to be effective the first pay period in February of the following year. The City shall have no administrative responsibilities for the MERP account other than ensuring the appropriate contributions are made to the fund each payroll period.
12.5.3 Employees first hired on or after July 1, 2019
For new employees first hired on or after July 1, 2019, the City’s maximum monthly medical contribution for each eligible retiree shall be equal to the minimum employer contribution required for active employees pursuant to the Public Employees Medical and Hospital Care Act (PEMHCA). Rehired employees will fall under the medical retirement tier based on original date of hire.
The following contributions shall be made to the employees Retiree Health Savings Account (RHS). After accruing ten (10) continuous years of service with the City, and upon separation from the City, employees may draw from the City contribution in this account.
Employees who terminate City service for reasons other than retirement or layoff prior to ten (10) years of continuous service with the City will forfeit any City contribution. • From zero (0) to five (5) years of service, employees shall receive twenty-five ($25) per month in to be deposited to the employee’s RHS account. 697
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• After completion of five (5) years of continuous service with the City, employees shall receive one hundred dollars ($100.00) per month to be deposited into their RHS account.
• After completion of ten (10) years of continuous service with the City, employees shall receive one hundred and fifty dollars ($150.00) per month to be deposited into their RHS account.
After completion of twenty (20) years of continuous service with the City, employees shall receive two hundred dollars ($200.00) per month to be deposited into their RHS account.
12.5.3.1 Employees first hired after July 1, 2019 may have prior years of qualifying service included in their City years of service to count toward their accrual tier if they previously worked as a full-time paid Firefighter/EMT or above. Prior years of service must be verified by submitting employment documentation outlining previous dates of employment. Additional documentation may be requested if necessary.
12.5.3.2 Employee Contribution to MERP
Effective the pay period inclusive of July 1, 2025, the Association shall establish a MERP (Medical Expense Reimbursement Plan) account for the benefit of qualified employees under this section. Beginning the payroll period subsequent to the Association notifying the City in writing that the MERP account set up is complete, a monthly employee contribution only (no City contribution) to the MERP by employee payroll deduction can be established at the determination of the Association. Such deduction must apply to all employees, consistent with Section
12.5.5, below. The Association may set or adjust an employee contribution amount annually by November 15, to be effective the first pay period in February of the following year. The City shall have no administrative responsibilities for the MERP account other than ensuring the appropriate contributions are made to the fund each payroll period.
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
12.5.4 Rehired employees
Rehired employees will fall under the medical retirement tier based on original date of hire.
12.5.5 IAFF Medical Expense Reimbursement Plan
12.5.5.1 Acknowledgement.
The City acknowledges that Local 522 has entered into an agreement with the IAFF Medical Expense Reimbursement Plan (hereafter, the “IAFF MERP”) of the Washington State Council of Fire Fighters Employee Benefit Trust (hereafter, the “Trust”). The purpose of the Trust shall be to provide for retiree health expense reimbursement benefits. The Trust shall be, and remain, separate and apart from any City retiree health insurance funding program.
12.5.5.2 Defined Class of Employees Receiving Contributions.
The “Defined Class” of employees receiving employee and/or City contributions to the Trust, as set forth below, consists of all employees represented by Local 522.
12.5.5.2.1 Employee Contribution Amount.
The City and Local 522 agree that the City shall withhold a mandatory pre-tax contribution of one hundred dollars ($100.00) per month from the pay of each employee of the Defined Class and shall transmit such contributions to the Trust pursuant to the requirements in Part 12.5.4.5 below. No employee shall be permitted to opt-out of the mandatory employee contributions or receive any portion of the contribution in cash.
12.5.5.2.2 City Contribution Amount.
For those employees of the Defined Class hired before July 1, 2019 only, the City and Local 522 agree that the City shall make a contribution of one hundred dollars ($100.00) per month to the Trust for each employee and shall transmit such 699
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
contributions to the Trust pursuant to the requirements in Part 12.5.4.3, as set forth below.
12.5.5.3 Remittance of Contributions.
The City shall remit all contributions set forth herein directly to the custodian of the Trust within 30 days of the date the payment would have been payable to the employee. The City hereby acknowledges receipt of the Trust Agreement governing the Trust and will comply with rules set by the Trust in regard to reporting and depositing the required contributions set forth herein.
12.5.5.4 Reporting to the Trust Office.
The City shall electronically submit to the Trust Office a report of contributing employees for each contribution sent to the Trust, in the format requested by the Trust, and received by the Trust Office within five (5) days of receipt of the contribution funds. The report will include at a minimum: employee first and last name, with suffix as applicable; employee number; Social Security Number; employee status (e.g., active, on leave); date of birth; gender; date of hire; bargaining unit; date of change in bargaining unit, as applicable; home mailing address; City contribution amount; Employee contribution amount separation date, as applicable; and separation reason.
The City shall also provide an initial report of contact information for all contributing Employees to the Trust Office, in a format reasonably requested by the Trust, and shall send updates to this information to the Trust Office whenever the City has notice of changes to the information.
The Trust Office will provide a secure data transfer platform or process for transmission of this employee information to the Trust Office.
12.5.5.7 Modification of Employee Contributions.
The City and Local 522 agree that Local 522 has the right, subject to approval of its members according to Local 522’s internal rules, to prospectively modify the amount of 700
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
the mandatory employee monthly contribution (Section 12.5.4.2.1) as long as the modification is mandatory for all employees in the Defined Class.
12.5.5.8 Indemnification.
Local 522 agrees to indemnify and hold the City harmless from any liabilities of any nature which may arise as a result of the operations of the Trust, except for the obligation of the City to make and report on the non-elective transfer of contributions as described in this Section.
13. COMPENSATION
13.1.1. Salary Schedule
13.1.1.1 For Employees Hired Prior to January 1, 2025
For employees hired as a regular employee prior to January 1, 2025, the salary range for each classification will consist of five (5) steps (A through E) with approximately 5% between each step.
When an employee hired prior to January 1, 2025, reaches the top step (E step) of the five step (5) salary range of their current classification, they will then be placed at the top step (H step) of the eight (8) step salary schedule.
13.1.1.2 For Employees Hired After January 1, 2025
Effective the pay period inclusive of July 1, 2025, the salary range for each classification of employees hired after January 1, 2025 will consist of eight (8) steps (A through H) with approximately 2.5% between each step. The top step H shall represent the same amount as the top step E in the five-step salary schedule, and then each step below will be 2.5% less than the step above. Employees hired after January 1, 2025 shall be placed in a new step that is closest to their current hourly rate without making less.
13.1.1.3 Once all employees hired prior to January 1, 2025, reach the top step of their current classification range, they will move to the top step of the eight (8) step salary schedule, and the five step (5) salary schedule will be eliminated.
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Upon promotion, all employees will move to or remain on the eight (8) step salary schedule. Employees in the classifications of Firefighter and Fire Engineer who promote to the classification of Fire Captain will be placed at Step E. Employees in the classification of Firefighter who promote to the Fire Engineer classification will be placed at Step G.
13.1.2. Salary Adjustments
Effective the pay period inclusive of July 1, 2025, the classifications of Firefighter, Fire Engineer and Fire Captain shall receive a general salary increase of six percent (6.0%).
Effective the pay period inclusive of July 1, 2025, the classifications of Firefighter, Fire Engineer and Fire Captain shall each receive an equity adjustment of three percent (3%).
Effective the pay period inclusive of July 1, 2026, the classifications of Firefighter, Fire Engineer and Fire Captain shall receive a general salary increase of four percent (4.0%).
Effective the pay period inclusive of July 1, 2027, the classifications of Firefighter, Fire Engineer and Fire Captain shall receive a general salary increase of four percent (4.0%).
Effective the pay period inclusive of July 1, 2027, the classifications of Firefighter, Fire Engineer and Fire Captain shall each receive an equity adjustment of one-half percent (0.5%).
Equity adjustment shall precede general salary increases.
13.3. Incentive Pay
The incentives in sections 13.3.1 and 13.3.2. shall be cumulative and not compounded. Maximum education incentive is four and one-quarter percent (4.25%) of base hourly rate of pay per employee.
Maximum certificate incentive that may be obtained is ten percent (10%) of base hourly rate of pay per employee. Changes in sections 13.3, 13.3.1 and 13.3.2 shall be effective the payroll period inclusive of July 1, 2025.
13.3.1 Education
Upon verification, employees shall receive four and one-quarter percent (4.25%) of their base hourly rate of pay for a Bachelor’s degree OR two percent (2%) of their base hourly rate of pay for an Associate's degree.
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Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Employees who possess both an Associate's Degree (AA/AS) and a Bachelor's Degree (BA/BS) will be compensated based on the highest degree achieved. Dual degree holders will not receive payment for both degrees simultaneously.
Maximum incentive under section 13.3.1. is four and one-quarter percent (4.25%).
Education Amount
BA/BS 4.25%
AA/AS 2%
13.3.2 Certificates
Upon verification and effective upon submittal, employees shall receive the identified percentages of their hourly base rate of pay for possession of the identified certificates in the table below. New certificates must be earned off duty.
Maximum incentive under section 13.3.2. is ten percent (10%).
Certificate Amount
Fire Science/Fire Technology Certificate 2.0%
Fire Officer Certificate or Company Officer Coursework
Completed
2.0%
Fire Driver/Operator Certificate or Fire Apparatus
Driver/Operator Pump Coursework
2%
Fire Investigator I Certificate 2.5%
Fire Instructor I Certificate 1.0%
HazMat Technician Certificate 1.0%
HazMat Specialist Certificate 1.5%
Boat Operator Certificate 1.5%
Swift/River and Flood Water Rescue Certificate 2.0%
Rescues Systems 1/Structural Collapse 1.0%
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Memorandum of Understanding
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07/01/2025– 06/30/2028
Chainsaw Operations 1.0%
Paramedic License 2.5%
Rope Rescue Technician 1.5%
Confined Space Tech/Operations 1.5%
Trench Rescue 1.5%
S231 Engine Boss 1.0%
13.4. Overtime Pay
The City and Association have agreed to utilize a twenty-four (24) day/one hundred eight-two (182) hour work period pursuant to Section 207(k) of the Federal Fair Labor Standards Act (FLSA).
Actual scheduled hours in the twenty-four (24) day period are one hundred ninety-two (192).
Hours worked in excess of one hundred eight-two (182) hours in the twenty-four (24) day work period will be paid at one and one-half (1-1/2) times the employee’s regular rate of pay.
13.4.1. All overtime worked as a result of emergency call back or station staffing will be paid at one and one-half (1-1/2) times the employee's regular rate of pay.
13.4.2. Compensatory Time Off (CTO) will be provided in lieu of overtime pay at the same rates that would be accrued for pay purposes. It shall be the employee's responsibility to notify the City when compensation leave is desired in lieu of overtime pay. Overtime accrued from USAR deployments are excluded from being provided as CTO.
13.4.2.1 CTO Cash Out
To cash out compensatory time off leave in the subsequent calendar year, each employee shall fill out an Irrevocable Election Form and submit it to Human Resources before the end of the calendar year. The City will provide employees with the Irrevocable Election Form in advance of the deadline.
Employees who do not submit a completed Irrevocable Election Form by the required date will not be permitted to cash out compensatory leave in the subsequent calendar year.
704
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
On the Irrevocable Election Form, an employee shall irrevocably elect the number of compensatory time off hours they elect to cash out in the subsequent calendar year. For example, if an employee elects to cash out up to 40 hours of compensatory leave in calendar year 2025, they shall irrevocably elect to do so in calendar year 2024. Employees may only cash out leave in an amount up to the amount set forth in their Irrevocable Election form.
If the employee's compensatory leave balance is less than the total amount elected by the employee on the Irrevocable Election Form, then the employee will receive a cash out for leave the employee has accrued on the last pay date of the calendar year.
Employees must submit an Irrevocable Election form on an annual basis.
13.4.3. Maximum accumulation of Compensatory Time Off (CTO) shall be one hundred twenty (120) hours for shift personnel.
13.4.3.1 CTO Usage:
A maximum of 120 hours may be utilized in any single calendar year. CTO must be requested using the vacation/holiday request form. The employee must have sufficient CTO balance at the time of the request for the days/hours requested.
CTO shall be utilized in either twelve (12) or twenty-four (24) hour increments.
CTO is subordinate to both holiday and vacation leave. No more than five (5) represented members will be allowed off due to holiday, vacation and/or CTO each shift.
13.4.4. Time worked as a continuation of the normal twenty-four (24) hour shift shall be compensated in accordance with the Federal Fair Labor Standards Act; that is, time worked shall be rounded to the nearest twelve (12) minute increment.
13.4.5. When an employee, after completing their normal work shift and after leaving their work facility, responds to an authorized order to return to duty to perform emergency or nonscheduled services, they shall be guaranteed the opportunity to work for two (2) hours or be paid two (2) hours in-lieu of work.
13.5. Out of Classification Pay
705
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
13.5.1. The Fire Chief or designee shall make out-of–class assignments. A Firefighter temporarily assigned out-of-class to a Fire Engineer, a Fire Engineer temporarily assigned out-of-class to a Fire Captain, and a Fire Captain temporarily assigned out-of-class to a Fire Battalion Chief, shall be paid fifty dollars ($50) for a full shift or two dollars eight cents ($2.08) per hour if less than a full twenty-four (24) hour shift.
A Firefighter temporarily assigned out-of-class to a Fire Captain shall be paid seventy-five dollars ($75) for a full shift or three dollars thirteen cents ($3.13) per hour if less than a full twenty–four (24) hour shift.
13.5.2. To be eligible for such out-of-class, the individual must have passed the promotional examination for the next higher rank, or pass qualifying criteria as set by the City.
13.6. Standby Pay
Employees shall be paid two dollars ($2.00) per hour for any hours worked on a standby assignment. The Fire Chief or designee shall determine standby schedules. Standby is voluntary.
If an employee volunteers for standby, then the following provisions apply:
Standby may be for up to a twenty-four (24) hour period. When called out, the employee shall be under the functional supervision of the Battalion Chief or Incident Commander.
The employee must be able to get to the scene within fifteen (15) minutes. When assigned to standby, the employee may not consume any alcoholic beverage or engage in any other activities, which would affect their ability to effectively respond and perform their duties. They employee shall have a cell phone with them at all times while on standby. When an employee is on a standby assignment, they shall be paid for a minimum of two (2) hours work at the overtime rate when called out.
13.7. Longevity
13.7.1 All represented employees shall receive the following longevity increases:
706
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
After a total of ten (10) years of service, an additional one percent (1%) of their base hourly rate of pay in the first full pay period after completion of ten (10) years is verified (i.e., beginning at the 11th year).
After a total of fifteen (15) years of service, an additional two and one-half percent (2.5%) of their base hourly rate of pay in the first full pay period after completion of fifteen (15) years is verified (i.e., beginning at the 16th year).
After a total of twenty (20) years of service, an additional four percent (4%) of their base hourly rate of pay after completion of twenty (20) years is verified (i.e., beginning of the 21st year). The cumulative maximum longevity pay is seven and one-half percent (7.5%) after completion of the 20th year.
13.7.2 Employees may have prior years of qualifying service included in their City years of service to count toward their longevity tier if they previously worked as a full-time paid Firefighter/EMT or above. Prior years of service must be verified by submitting employment documentation outlining previous dates of employment. Additional documentation may be requested if necessary.
13.8. Bilingual Pay
Employee’s possessing and utilizing bilingual skills on duty shall receive bilingual pay in the amount of five percent (5%) of their hourly rate of pay. The number of employees, languages available, and the qualification requirements will be determined by the City.
13.9. Rates of Pay
13.9.1. Base Hourly Rate of Pay
The base hourly rate of pay for all employees shall mean the employee’s current hourly rate without any additional pays.
13.9.2. Regular Rate of Pay
The regular rate of pay for all employees shall mean the employee’s current hourly rate of pay plus all differentials and incentives (including Fire Staff Premium Pay, Education and Certificate Incentive Pay, Standby Pay, Longevity Pay, Bilingual Pay, Medical in Lieu (opt out)) for which the employee qualifies under this MOU. 707
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
13.9.3. Separation Rate of Pay
The separation rate of pay for all employees shall mean the employee’s current hourly rate of pay at the time of separation plus the following incentives: Fire Staff Premium Pay, Bilingual Pay, Education and Certificate Incentive Pay and Longevity Pay, for which the employee qualifies under this MOU.
13.8. Strike Team/Overhead Deployments
Employees assigned to a reimbursable strike team/overhead deployment (Line EMT, PIO, Overhead or other recognized positions) shall receive a ten percent (10%) differential for any reimbursable strike team/overhead incident. The pay differential shall apply from the time of deployment to the employee's return from the deployment. USAR deployments are excluded from this pay differential.
13.9. Career Enhancement & Wellness
The City will reimburse up to one thousand dollars ($1000) per fiscal year to all eligible employees (prorated for new hires) for eligible expenses related to Career Enhancement and/or Wellness Activities and Programs incurred within twelve (12) months from the date of the expenditure, pursuant to the requirements and procedures outlined in City Administrative Policy II-E-1.
14. EMERGENCY MEDICAL TECHNICIAN (EMT) CERTIFICATION REQUIREMENT All employees are required to have and maintain an EMT-1A or FS certificate. This shall be a condition of employment.
15. SCHEDULE AND HOURS
15.1. Duty Schedule
All shift personnel shall work a forty-eight (48)/ninety-six (96) hour schedule. (48 hours on duty, followed by 96 hours off duty.) All forty-eight (48)/ninety-six (96) hour shift personnel shall report for duty at 0800 hours and go off duty at 0800, forty-eight (48) hours later.
Example Duty Schedule: (Regular Shift Personnel)
"X" denotes workday or duty shift
708
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
"O" denotes day off or shift off
X X O O O O
15.2. Station Assignments and Transfers
The City has adopted the applicable Lexipol Policy which provides a procedure by which employees may express their preference for station assignments and/or transfers.
15.3. Shift Trades
The City has adopted the applicable Lexipol Policy which provides a procedure by which employees may request voluntary shift trades. Shift trading shall not qualify as Emergency Call Back under Section 13.4.1.
15.4. Out of County Return
15.4.1. For the term of this MOU a program will be available to employees who participate in a strike team or other out of county assignment for a minimum of ten (10) days, and upon return to the City during their regularly schedule shift, shall be placed on rest and recovery up to a maximum of twelve (12) hours and shall not be required to utilize their accrued paid leave for the rest and recovery time. Upon request, the employee may utilize their accrued paid leave (CTO, Vacation or Holiday) for rest and recovery for the remainder of the 24-hour shift. Employees may participate in the Program once annually.
15.4.2. Employees requesting rest and recovery upon return from subsequent participation on strike teams or out of county assignment will require the employee utilize their accrued paid leave if they return to the City during their regularly scheduled shift, or they may be place on paid rest and recovery up to a maximum of twelve (12) hours at the determination of the Fire Chief or their designee.
15.4.3. During this period, employees placed on administrative leave for rest and recovery are prohibited from working another position.
16. DEPARTMENT SENIORITY LIST
709
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
16.1. Employees shall be placed on the seniority list in accordance with the date they were first placed on the payroll of the Fire Department as full-time employees. Reserve, part-time, or extra-help employment will not be credited.
16.1.1 When two (2) or more employees are assigned to the payroll on the same date, preference in the placement on the list shall be given based on relative standing on the eligibility list.
If the eligibility list ranking of two or more employees hired on the same date is the same, seniority shall be in order of the individual's total time as a full-time Firefighter in the State of California. If the ranking of two or more employees hired on the same date is the same and their total time as full-time Firefighter in the State of California is the same, then seniority shall be determined by drawing of lot.
17. LAYOFFS
17.1. Order of Layoff
Layoffs shall be based on the inverse order of seniority as set out in the seniority roster last provided to Local 522, pursuant to the hereinafter-mentioned Memorandum of Understanding, with any additions or deletions of employees’ names appended thereto by action of the City Council. Layoffs hereunder shall be so that employees with the least seniority shall be laid off first.
17.2. Seniority
The seniority date of an employee and their position on the seniority roster, shall be determined pursuant to criteria set out in the Memorandum of Understanding between Local 522 and the City.
17.3. Seniority Roster Availability
A current copy of the Seniority Roster shall be made available for inspection at reasonable times to employees upon request.
710
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
17.4. Employee Notice
The employee shall be given a thirty (30) calendar day written notice of layoff or demotion by the City Council or its authorized representative. The notice of layoff or demotion shall include the following information:
a) Reason for layoff or demotion; and
b) Effective date of layoff or demotion.
17.5. Layoff Hearing
An employee who received a Notice of Layoff shall be entitled to request a hearing before the Council or its authorized representative prior to the effective date of the layoff. Such a request shall be made within fourteen (14) calendar days of service of the Notice of Layoff of the adoption of the rules and procedures by the Council, whichever occurs last. Failure to make such a request shall waive the right to a hearing. At said hearing, the employee may challenge the determination of persons to be laid off and the procedure used to layoff. The employee shall have the right to be represented by a representative of their choosing, to present evidence, and to cross examine any witnesses. Within fourteen (14) calendar days following the hearing, the Council shall issue findings of fact, conclusions, and an order affirming or revoking the layoff of the employee. Said findings, conclusion, and order shall be served on the employee by placing them in a sealed envelope and mailing them by first class mail, postage prepaid, to the last known address of the employee. Unless the Council orders revocation of the Notice of Layoff, the employee shall be laid off at the date set forth in the Notice of Layoff.
If, after request, the hearing is not held prior to the effective date of layoff as set forth in the Notice of Layoff, the effective date of the layoff shall be deemed to have been extended until after the hearing and the issuance of the order by the Council. In such case, the Council shall set a new effective date of layoff in their order unless they order revocation of the original notice.
17.6. Future Vacancies
When vacancies occur within five (5) years thereafter, such reduced or laid off employees shall be given the opportunity to be rehired or advanced to their former classification from the established 711
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
layoff eligibility list on the basis of seniority prior to the employment of any new eligibles; provided, however, that such eligibles meet a physical examination. If any such laid off employee fails to report for duty within thirty (30) calendar days after mailing to them of a written notice by registered mail to the last known address, they shall lose their right to be hired.
18. REPAIR OR REPLACEMENT OF DAMAGED PERSONAL PROPERTY
The City agrees to reimburse employees for damaged personal property according to the City’s Administrative Policy No. II-E-8.
19. RULES, REGULATIONS MEET AND CONFER CONSIDERATIONS
19.1. Should the City propose changes in City Rules and Regulations or wages, hours, and working conditions which fall within the scope of representation; the City shall give notice to Local 522 and upon request, meet and confer upon those changes.
19.2. Copies of any Memorandum of Understanding resulting here from and/or Rules and Regulations shall be posted on-line or sent to Local 522 members upon request.
19.3. Both parties agree to begin negotiations six months prior to the contract expiration date. It is agreed that when both parties enter into the meet and confer process, the following criteria shall be used:
a) Internal classification relationships;
b) Labor market conditions;
c) Financial condition of the City;
d) Cost of living analysis;
e) Benchmark survey of total compensation
20. PROBATIONARY PERIOD
20.1. Purpose
To enable the City and the Fire Chief to exercise sound discretion in filling positions within the City.
20.2. New Hires
712
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
No appointment of employment in the City shall be deemed final and permanent until after the expiration of a twelve (12) months probationary service. During this probationary period, the Fire Chief may terminate the employment for unsatisfactory performance. Provided, however, no probationary employee shall be terminated because of sex, race, religion, political belief or Local 522 membership. Probationary employees terminated during their probationary period shall not have the right to appeal. This would not preclude a probationary employee from seeking any other legal remedy.
20.3. Promotion
No promotion to any position in the City shall be deemed final and permanent until after the expiration of a period of twelve (12) months probationary service. During this probationary period, the Fire Chief may cancel the appointment to a higher rank if during this period they shall deem them unfit for such appointment based on material reasons. In the event of unsatisfactory performance, an employee may be demoted to their previous permanent rank.
21. WORKING CONDITIONS
21.1. The City shall provide and maintain a station environment consistent with reasonable standards of safety, sanitation, comfort, and appearance. The station environment includes, but is not limited to: kitchen, rest rooms, dormitory, beds and mattresses, station furniture, lighting, floor covering, exercise facilities, and apparatus area.
21.2. Employees of the City shall care for such station environment consistent with the highest possible standard.
21.3. The City shall furnish bed sheets, pillow coverings, and bath towels.
21.4. Changes in said station environment constitute changes in working conditions and are therefore negotiable.
21.5. The City shall pay the cost for enrolling and participation in the approved Safety Exposure Reporting Program.
21.6. The City recognizes that the West Sacramento Firefighters are professional firefighters, and that all duties will be those related to the Fire Service as determined by agreed upon job descriptions.
22. PROMOTIONAL EXAMINATIONS
713
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
22.1. Notice of promotional tests to be administered and the dates and time of said tests shall be conspicuously posted in all stations a minimum of thirty (30) calendar days prior to the test date(s). Promotional lists will be established after results of tests are final.
22.2. The City shall conduct promotional examinations for the classification of Fire Engineer and Fire Captain on an alternating bi-annual basis. As a result of these examinations, the City shall establish and maintain a promotional list for the above classifications for the two (2) year period between the examinations.
22.3. Rule of Five (5)
The Rule of Five (5) shall be interpreted as follows:
For the first job opening available, five (5) eligible candidates will be interviewed. For each additional job opening, one (1) additional eligible candidate will be interviewed. For example, if there are three (3) job openings, seven (7) candidates will be interviewed. In the event of a tie score within the candidate pool to be interviewed, all candidates with the same score will be interviewed.
22.4. List Ranking
Results of promotional examinations shall be provided to each candidate to include their own placement on the list in rank order. Additionally, when the Fire Chief or designee receives the eligibility list, it will show the rank order for all eligible candidates.
22.5. Minimum Qualifications
A candidate possessing a BA/BS will be deemed to have met all educational requirements, regardless of the field of study.
23. NON-DISCIPLINARY GRIEVANCE AND ARBITRATION PROCEDURE
23.1. Purpose
The purpose of this procedure is to provide for an orderly process for reviewing and resolving employee grievances at the lowest possible administrative level in the shortest possible time.
23.2. Definitions of Grievance
Grievance: A grievance is a complaint of one or a group of employees or a dispute between the City and an Exclusively Recognized Employee Organization involving the interpretation, 714
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
application, or enforcement of the express terms of any Memorandum of Understanding, rules or regulations.
Discharge, suspension, demotion, and/or other disciplinary actions of an employee shall not be subject to the grievance procedure pursuant to this Section. Those matters shall be governed by the disciplinary procedures set forth in the City Personnel Rules.
23.3. Informal Grievance Procedures
The grievant shall orally discuss their grievance with their immediate supervisor within ten (10) days from the event giving rise to the grievance or from the date the employee could reasonably have expected to have had knowledge of such event, but in no event longer than thirty (30) days from the act or omission. The employee shall identify the discussion as the informal step of the procedure. However, failure to identify the discussion as an informal step of the procedure shall not prejudice the grievant. The supervisor shall have seven (7) days to give an answer to the employee. The supervisor’s response may be given orally or in writing and should clearly be identified as the informal response to the grievance.
23.4. Formal Grievance Procedure
23.4.1. Level I
If a grievant is not satisfied with the resolution at the informal level, they may, within five (5) days of receipt of such answer, file a formal written grievance on a prescribed form with their supervisor. The supervisor within five (5) days thereafter shall give a written answer to the grievant.
23.4.2. Level II
If the grievant is not satisfied with the written answer from their supervisor, the grievant may, within five (5) days from the receipt of such answer, file a written appeal to the Department Head. Within fifteen (15) days of the receipt of the written appeal, the Department Head shall investigate the grievance, which may include a meeting with the concerned parties, and give a written answer to the grievant. The Department Head may affirm, modify, reverse, or otherwise resolve the decision appealed.
23.4.3. Level III
715
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
If the grievant is not satisfied with the written answer from the Department Head, the grievant may, within five (5) days of such answer, file a written appeal to the City Manager or designee. Within twenty (20) days of the receipt of the written appeal, the City Manager or designee shall investigate the grievance, which may include a meeting with the concerned parties and thereafter give a written answer to the grievant, which answer shall be final and binding unless appealed. The City Manager may affirm, modify, reverse, or otherwise resolve the decision appealed.
23.4.4. Level IV
If the grievant is not satisfied by the decision made by the City Manager, they must submit a written request within fifteen (15) days of the receipt of the response from the City Manager for a hearing before the Adjustment Board. Either party may request that Level IV be waived and that the appeal be elevated to Level V, arbitration. If the parties do not mutually agree to waive the Adjustment Board within the time frame as specified above; that is within fifteen (15) days of the receipt of the response from the City Manager, the grievance will proceed to the Adjustment Board. If the parties do mutually agree to waive the Adjustment Board, the grievance will proceed to Section 24.5, Selection of Arbitrator.
The hearing before the Adjustment Board shall be heard whenever possible within thirty (30) days of receipt of the request by the City Manager. The grievant shall be sent notice of the hearing at least fifteen (15) days prior to the hearing.
The Adjustment Board will be comprised of two (2) Union representatives, no more than one (1) of whom shall be either an employee of the City or an elected or appointed official of the Union; and two (2) representatives of the City, no more than one (1) of whom shall be either an employee of the City or a member of the staff of any organization employed to represent the City in the meet and confer process. No decision of the Adjustment Board shall be final and binding without receiving the affirmative votes of at least three (3) members of the Board.
23.4.5. Level V
If the Adjustment Board is unable to arrive at a majority decision, either the Union or the City may, within fifteen (15) days of the written receipt of the Adjustment Board decision, require that the grievance be referred to an impartial Arbitrator. 716
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
23.5. Selection of Arbitrator
An Arbitrator may be mutually agreed upon by the two parties. If they fail to agree upon the Arbitrator within ten (10) working days, the Division of State Mediation and Conciliation Service (SMCS) of the State of California Public Relations Board shall be requested to submit a list of five (5) Arbitrators and, from such, the employee and the City Manager or designee shall promptly select the Arbitrator by the alternate striking of names, commencing with the employee, from said list.
Upon selection of the Arbitrator, the City Manager or designee shall contact the Arbitrator and arrange for the earliest hearing date available with regard to the parties' schedules. Should the Arbitrator's calendar preclude a hearing date within sixty (60) days, the City Manager or designee may require the parties to strike names for a replacement hearing officer.
23.6. Arbitration Hearing and Decision
The arbitration hearing shall be conducted as a full-scale evidentiary hearing with full due process rights, including the right to present witnesses, present evidence, cross examine opposing witnesses, the right to counsel and findings to support the decision.
The Arbitrator shall conduct a hearing and shall either issue an oral bench decision or shall, within thirty (30) days of conclusion of the hearing, render a written decision and/or order. Any decision and/or order of the Arbitrator shall be final.
23.7. Automatic Advances
If, at any step in the informal or formal grievance procedure, it is determined that the designated person who is to respond to the grievance does not have the authority to resolve the issue presented, the grievance automatically advances to the next line of authority, as designated in the grievance procedure, who does have the authority to respond.
23.8. Cost of Grievance Arbitration
The cost of the arbitration, including the Arbitrator's fee, shall be shared equally by the employee and the City.
23.9. Time Limits
717
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
Time limits are considered an integral and important part of the grievance procedure, and may not be waived except by mutual written consent of the parties. In the event that a grievant fails to carry their grievance forward within a prescribed time period, the grievance shall be considered settled without precedent based upon the decision rendered at the most recent step utilized, and any right to pursue the grievance further shall be deemed waived and abandoned. If a supervisor or manager fails to respond with an answer to a grievant within a given time period, the grievant may proceed to the next higher level of the grievance procedure.
24. DISCIPLINARY PROCEDURE
This procedure shall be followed for the following disciplinary actions: suspension without pay, reduction in pay, demotion, or dismissal. Specific grounds for disciplinary action are outlined in Section 4.9 of the City Personnel Rules.
24.1. Purpose
The purpose of the disciplinary procedure is to provide employees subject to disciplinary action with all rights to which they are entitled by law; to provide an orderly procedure for pre-action notice, response, implementation, and appeal; to correct deficiencies in employee performance and to assure improvement to meet job standards.
24.2. Employee Representation
An employee may have a representative present at all stages of the disciplinary process as outlined in Sections 25.4 through 25.10 provided that the representative is not a party to the action.
24.3. Administrative Leave
An employee may be placed on administrative leave, with pay, pending investigation of facts possibly giving rise to the potential need for discipline.
24.4. Notice of Proposed Disciplinary Action
Prior to suspension without pay, reduction in pay, demotion, or dismissal, the employee shall be provided the following:
a) Notice of the proposed action;
b) The reasons for the proposed action;
718
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028
c) A copy of the charges and any materials upon which the proposed action is based; d) Notice that the employee is entitled to an opportunity to respond to the charges orally or in writing, or both, personally or with a representative, which may be an attorney; e) The date and time of the response meeting during which the employee and their representative shall have an opportunity to refute the charges or present facts that may not be known;
f) Notice that if the employee fails to attend the response meeting, the employee shall be deemed to have waived all rights to said meeting and from appeal to any action taken.
24.5. Notice of the Response Meeting
Notice of the response meeting shall be given no less than seven (7) days prior to the meeting.
24.6. Response Meeting
At the time and place set for the meeting giving the employee an opportunity to respond, the employee may respond orally and/or in writing, personally, or with a representative. Neither party shall be entitled to call witnesses or take testimony. At the meeting, the City Manager or designee may consider information contained in the charges and recommendations, as well as information presented by the employee or their representative. At the conclusion of the response meeting or within seven (7) days, the City Manager or designee shall issue an order either implementing or determining not to implement the action. The City Manager or designee may implement an action that is of lesser severity than that which was initially proposed.
24.7. Implementation of Decision
When discipline is imposed, a copy of the order shall be served upon the employee either personally, or by registered or certified mail, return receipt requested, at the last known address on file with the City. The order shall include:
a) A statement of the nature of the discipline imposed; b) The effective date of the discipline;
c) A statement of the causes for the discipline;
d) A statement of the specific facts or omissions upon which the discipline is based; and 719
Memorandum of Understanding
Local 522, West Sacramento Firefighter’s Association
07/01/2025– 06/30/2028