HomeMy WebLinkAboutPW Sun Valley Park Playground ProjectCompletion, and such liquidated damages may be deducted from City's payments due or to
become due to Contractor under this Contract.
Labor Code Compliance.
7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of
Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages,
working hours and workers' compensation insurance, as further specified in Article
9 of the General Conditions.
7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements
applicable to the locality in which the Work is to be performed for each craft,
classification or type of worker needed to perform the Work, including employer
payments for health and welfare, pension, vacation, apprenticeship and similar
purposes. Copies of these prevailing rates are available online at
http://www.dir.c&qov/DLSR.
7.3 DIR Registration. City may not enter into the Contract with a bidder without proof
that the bidder and its Subcontractors are registered with the California Department
of Industrial Relations to perform public work pursuant to Labor Code § 1725.5,
subject to limited legal exceptions.
8. Workers' Compensation Certification. Pursuant to Labor Code § 1861, by signing this
Contract, Contractor certifies as follows: "I am aware of the provisions of Labor Code §
3700 which require every employer to be insured against liability for workers' compensation
or to undertake self-insurance in accordance with the provisions of that code, and I will
comply with such provisions before commencing the performance of the Work on this
Contract."
9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not
have, maintain or acquire a conflict of interest in relation to this Contract in violation of any
City ordinance or requirement, or in violation of any California law, including Government
Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000
et seq. and its accompanying regulations. Any violation of this Section constitutes a
material breach of the Contract.
10. Independent Contractor. Contractor is an independent contractor under this Contract and
will have control of the Work and the means and methods by which it is performed. Contractor
and its Subcontractors are not employees of City and are not entitled to participate in any health,
retirement, or any other employee benefits from City.
11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents
must be made in writing, signed, dated and sent to the other party by personal delivery,
U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed
effective upon delivery, except that service by U.S. Mail is deemed effective on the second
working day after deposit for delivery. Notice for each party must be given as follows:
City:
City of San Rafael
Department of Public Works
111 Morphew Street
San Rafael, CA 94901
(415) 725-1166
Attn: JC Agcaoili
Sun Valley Park Playground 2022 Form CONTRACT
Page 2
johna@cityofsanrafael.org
Contractor:
Name: Bauman Landscape & Construction Inc.
Address: 2920 Lyon St
City/State/Zip: San Francisco, CA 94123
Phone: (415) 447-4800
Attn: Angela Bauman
Email: angela@baumanland.com
12. General Provisions.
12.1 Assignment and Successors. Contractor may not assign its rights or obligations
under this Contract, in part or in whole, without City's written consent. This Contract
is binding on Contractor's and City's lawful heirs, successors and permitted
assigns.
12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this
Contract.
12.3 Governing Law and Venue. This Contract will be governed by California law and
venue will be in the Marin County Superior Court, and no other place. Contractor
waives any right it may have pursuant to Code of Civil Procedure § 394, to file a
motion to transfer any action arising from or relating to this Contract to a venue
outside of Marin County, California.
12.4 Amendment. No amendment or modification of this Contract will be binding
unless it is in a writing duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorporated herein,
including authorized amendments or Change Orders thereto, constitute the final,
complete, and exclusive terms of the agreement between City and Contractor.
12.6 Severability. If any provision of the Contract Documents is determined to be
illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the
Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor
certifies, by signing below, that it is not identified on a list created under the Iran
Contracting Act, Public Contract Code § 2200 et seq. (the "Act"), as a person
engaging in investment activities in Iran, as defined in the Act, or is otherwise
expressly exempt under the Act.
12.8 Authorization. Each individual signing below warrants that he or she is authorized
to do so by the party that he or she represents, and that this Contract is legally
binding on that party. If Contractor is a corporation, signatures from two officers of
the corporation are required pursuant to California Corporation Code § 313.
Sun Valley Park Playground 2022 Form CONTRACT
Page 3
The parties agree to this Contract as witnessed by the signatures below:
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ONTRACTOR:
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Contractor's California License Nu ber(s) and Expiration Date(s)
END OF CONTRACT
Sun Valley Park Playground 2022 Form
CONTRACT
Page 4
General Conditions
Article 1 - Definitions
Definitions. The following definitions apply to all of the Contract Documents unless otherwise
indicated, e.g., additional definitions that apply solely to the Specifications or other technical
documents. Defined terms and titles of documents are capitalized in the Contract Documents,
with the exception of the following (in any tense or form): "day," "furnish," "including," "install,"
"work day" or "working day."
Allowance means a specific amount that must be included in the Bid Proposal for a specified
purpose.
Article, as used in these General Conditions, means a numbered Article of the General
Conditions, unless otherwise indicated by the context.
Change Order means a written document duly approved and executed by City, which changes
the scope of Work, the Contract Price, or the Contract Time.
City means the municipality which has entered into the Contract with Contractor for performance
of the Work, acting through its City Council, officers, employees, City Engineer, and any other
authorized representatives.
City Engineer means the City Engineer for City and his or her authorized delegee(s).
Claim means a separate demand by Contractor for a change in the Contract Time or Contract
Price, that has previously been submitted to City in accordance with the requirements of the
Contract Documents, and which has been rejected by City, in whole or in part; or a written
demand by Contractor objecting to the amount of Final Payment.
Contract means the signed agreement between City and Contractor for performing the Work
required for the Project, and all documents expressly incorporated therein.
Contract Documents means, collectively, all of the documents listed as such in Section 2 of the
Contract, including the Notice Inviting Bids; the Instructions to Bidders; addenda, if any; the Bid
Proposal, and attachments thereto; the Contract; the Notice of Potential Award and Notice to
Proceed; the payment and performance bonds; the General Conditions; the Special Conditions;
the Project Plans and Specifications; any Change Orders; and any other documents which are
clearly and unambiguously made part of the Contract Documents. The Contract Documents do
not include documents provided "For Reference Only," or documents that are intended solely to
provide information regarding existing conditions.
Contract Price means the total compensation to be paid to Contractor for performance of the
Work, as set forth in the Contract and as may be amended by Change Order or adjusted for an
Allowance. The Contract Price is not subject to adjustment due to inflation or due to the increased
cost of labor, material, supplies or equipment following submission of the Bid Proposal.
Contract Time means the time specified for complete performance of the Work, as set forth in
the Contract and as may be amended by Change Order.
Contractor means the individual, partnership, corporation, or joint -venture that has signed the
Contract with City to perform the Work.
Day means a calendar day unless otherwise specified.
Sun Valley Park Playground 2022 Form GENERAL CONDITIONS
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Design Professional means the licensed individual(s) or firm(s) retained by City to provide
architectural, engineering, or electrical engineering design services for the Project. If no Design
Professional has been retained for this Project, any reference to Design Professional is deemed
to refer to the Engineer.
DIR means the California Department of Industrial Relations.
Drawings has the same meaning as Plans.
Engineer means the City Engineer for the City of <
authorized delegees.
Excusable Delay is defined in Section 5.3(B), Excusable Delay.
> and his or her
Extra Work means new or unforeseen work added to the Project, as determined by the Engineer
in his or her sole discretion, including Work that was not part of or incidental to the scope of the
Work when the Contractor's bid was submitted; Work that is substantially different from the Work
as described in the Contract Documents at bid time; or Work that results from a substantially
differing and unforeseeable condition.
Final Completion means Contractor has fully completed all of the Work required by the Contract
Documents to the City's satisfaction, including all punch list items and any required
commissioning or training, and has provided the City with all required submittals, including the
instructions and manuals, product warranties, and as -built drawings.
Final Payment means payment to Contractor of the unpaid Contract Price, including release of
undisputed retention, less amounts withheld or deducted pursuant to the Contract Documents.
Furnish means to purchase and deliver for the Project.
Government Code Claim means a claim submitted pursuant to California Government Code §
900 et seq.
Hazardous Materials means any substance or material identified now or in the future as
hazardous under any Laws, or any other substance or material that may be considered
hazardous or otherwise subject to Laws governing handling, disposal, or cleanup.
Including, whether or not capitalized, means "including, but not limited to," unless the context
clearly requires otherwise.
Inspector means the individual(s) or firm(s) retained or employed by City to inspect the
workmanship, materials, and manner of construction of the Project and its components to ensure
compliance with the Contract Documents and all Laws.
Install means to fix in place for materials, and to fix in place and connect for equipment
Laws means all applicable local, state, and federal laws, regulations, rules, codes, ordinances,
permits, orders, and the like enacted or imposed by or under the auspices of any governmental
entity with jurisdiction over any of the Work or any performance of the Work, including health and
safety requirements.
Non -Excusable Delay is defined in Section 5.3(D), Non -Excusable Delay.
Plans means the City -provided plans, drawings, details, or graphical depictions of the Project
requirements, but does not include Shop Drawings.
Sun Valley Park Playground 2022 Form GENERAL CONDITIONS
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Project means the public works project referenced in the Contract.
Project Manager means the individual designated by City to oversee and manage the Project on
City's behalf and may include his or her authorized delegee(s) when the Project Manager is
unavailable. If no Project Manager has been designated for this Project, any reference to Project
Manager is deemed to refer to the Engineer.
Recoverable Costs is defined in Section 5.3(F), Recoverable Costs.
Request for Information or RFI means Contractor's written request for information about the
Contract Documents, the Work or the Project, submitted to City in the manner and format
specified by City.
Section, when capitalized in these General Conditions, means a numbered section or subsection
of the General Conditions, unless the context clearly indicates otherwise.
Shop Drawings means drawings, plan details or other graphical depictions prepared by or on
behalf of Contractor, and subject to City acceptance, which are intended to provide details for
fabrication, installation, and the like, of items required by or shown in the Plans or Specifications.
Specialty Work means Work that must be performed by a specialized Subcontractor with the
specified license or other special certification, and that the Contractor is not qualified to self -
perform.
Specifications means the technical, text specifications describing the Project requirements,
which are prepared for and incorporated into the Contract by or on behalf of City, and does not
include the Contract, General Conditions or Special Conditions.
Subcontractor means an individual, partnership, corporation, or joint -venture retained by
Contractor directly or indirectly through a subcontract to perform a specific portion of the Work.
The term Subcontractor applies to subcontractors of all tiers, unless otherwise indicated by the
context. A third party such as a utility performing related work on the Project is not a
Subcontractor, even if Contractor must coordinate its Work with the third party.
Technical Specifications has the same meaning as Specifications
Work means all of the construction and services necessary for or incidental to completing the
Project in conformance with the requirements of the Contract Documents.
Work Day or Working Day, whether or not capitalized, means a weekday when the City is open
for business, and does not include holidays observed by the City.
Worksite means the place or places where the Work is performed, which includes, but may
extend beyond the Project site, including separate locations for staging, storage, or fabrication
Article 2 - Roles and Responsibilities
2.1 City.
(A) City Council. The City Council has final authority in all matters affecting the
Project, except to the extent it has delegated authority to the Engineer.
(B) Engineer. The Engineer, acting within the authority conferred by the City
Council, is responsible for administration of the Project on behalf of City, including
authority to provide directions to the Design Professional and to Contractor to ensure
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2.2
proper and timely completion of the Project. The Engineer's decisions are final and
conclusive within the scope of his or her authority, including interpretation of the Contract
Documents.
(C) Project Manager. The Project Manager assigned to the Project will be the
primary point of contact for the Contractor and will serve as City's representative for daily
administration of the Project on behalf of City. Unless otherwise specified, all of
Contractor's communications to City (in any form) will go to or through the Project
Manager. City reserves the right to reassign the Project Manager role at any time or to
delegate duties to additional City representatives, without prior notice to or consent of
Contractor.
(D) Design Professional. The Design Professional is responsible for the overall
design of the Project and, to the extent authorized by City, may act on City's behalf to
ensure performance of the Work in compliance with the Plans and Specifications,
including any design changes authorized by Change Order. The Design Professional's
duties may include review of Contractor's submittals, visits to any Worksite, inspecting
the Work, evaluating test and inspection results, and participation in Project -related
meetings, including any pre -construction conference, weekly meetings, and coordination
meetings. The Design Professional's interpretation of the Plans or Specifications is final
and conclusive.
Contractor.
(A) General. Contractor must provide all labor, materials, supplies, equipment,
services, and incidentals necessary to perform and timely complete the Work in strict
accordance with the Contract Documents, and in an economical and efficient manner in
the best interests of City, and with minimal inconvenience to the public.
(B) Responsibility for the Work and Risk of Loss. Contractor is responsible for
supervising and directing all aspects of the Work to facilitate the efficient and timely
completion of the Work. Contractor is solely responsible for and required to exercise full
control over the Work, including the construction means, methods, techniques,
sequences, procedures, safety precautions and programs, and coordination of all
portions of the Work with that of all other contractors and Subcontractors, except to the
extent that the Contract Documents provide other specific instructions. Contractor's
responsibilities extend to any plan, method or sequence suggested, but not required by
City or specified in the Contract Documents. From the date of commencement of the
Work until either the date on which City formally accepts the Project or the effective date
of termination of the Contract, whichever is later, Contractor bears all risks of injury or
damage to the Work and the materials and equipment delivered to any Worksite, by any
cause including fire, earthquake, wind, weather, vandalism or theft.
(C) Project Administration. Contractor must provide sufficient and competent
administration, staff, and skilled workforce necessary to perform and timely complete the
Work in accordance with the Contract Documents. Before starting the Work, Contractor
must designate in writing and provide complete contact information, including telephone
numbers and email address, for the officer or employee in Contractor's organization who
is to serve as Contractor's primary representative for the Project, and who has authority
to act on Contractor's behalf. A Subcontractor may not serve as Contractor's primary
representative.
(D) On -Site Superintendent. Contractor must, at all times during performance of
the Work, provide a qualified and competent full-time superintendent acceptable to City,
and assistants as necessary, who must be physically present at the Project site while any
aspect of the Work is being performed. The superintendent must have full authority to act
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and communicate on behalf of Contractor, and Contractor will be bound by the
superintendent's communications to City. City's approval of the superintendent is
required before the Work commences. If City is not satisfied with the superintendent's
performance, City may request a qualified replacement of the superintendent. Failure to
comply may result in temporary suspension of the Work, at Contractor's sole expense
and with no extension of Contract Time, until an approved superintendent is physically
present to supervise the Work. Contractor must provide written notice to City, as soon as
practicable, before replacing the superintendent.
(E) Standards. Contractor must, at all times, ensure that the Work is performed in
an efficient, skillful manner following best practices and in full compliance with the
Contract Documents and Laws and applicable manufacturer's recommendations.
Contractor has a material and ongoing obligation to provide true and complete
information, to the best of its knowledge, with respect to all records, documents, or
communications pertaining to the Project, including oral or written reports, statements,
certifications, Change Order requests, or Claims.
(F) Meetings. Contractor, its project manager, superintendent and any primary
Subcontractors requested by City, must attend a pre -construction conference, if
requested by City, as well as weekly Project progress meetings scheduled with City. If
applicable, Contractor may also be required to participate in coordination meetings with
other parties relating to other work being performed on or near the Project site or in
relation to the Project, including work or activities performed by City, other contractors, or
other utility owners.
(G) Construction Records. Contractor will maintain up-to-date, thorough, legible,
and dated daily job reports, which document all significant activity on the Project for each
day that Work is performed on the Project. The daily report for each day must include the
number of workers at the Project site; primary Work activities; major deliveries; problems
encountered, including injuries, if any; weather and site conditions; and delays, if any.
Contractor will take date and time -stamped photographs to document general progress of
the Project, including site conditions prior to construction activities, before and after
photographs at offset trench laterals, existing improvements and utilities, damage and
restoration. Contractor will maintain copies of all subcontracts, Project -related
correspondence with Subcontractors, and records of meetings with Subcontractors. Upon
request by the City, Contractor will permit review of and/or provide copies of any of these
construction records.
(H) Responsible Party. Contractor is solely responsible to City for the acts or
omissions of any Subcontractors, or any other party or parties performing portions of the
Work or providing equipment, materials or services for or on behalf of Contractor or the
Subcontractors. Upon City's written request, Contractor must promptly and permanently
remove from the Project, at no cost to City, any employee or Subcontractor or employee
of a Subcontractor who the Engineer has determined to be incompetent, intemperate or
disorderly, or who has failed or refused to perform the Work as required under the
Contract Documents.
(1) Correction of Defects. Contractor must promptly correct, at Contractor's sole
expense, any Work that is determined by City to be deficient or defective in any way,
including workmanship, materials, parts or equipment. Workmanship, materials, parts or
equipment that do not conform to the requirements under the Plans, Specifications and
every other Contract Document, as determined by City, will be considered defective and
subject to rejection. Contractor must also promptly correct, at Contractor's sole expense,
any Work performed beyond the lines and grades shown on the Plans or established by
City, and any Extra Work performed without City's prior written approval. If Contractor
fails to correct or to take reasonable steps toward correcting defective Work within five
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2.3
days following notice from City, or within the time specified in City's notice to correct, City
may elect to have the defective Work corrected by its own forces or by a third party, in
which case the cost of correction will be deducted from the Contract Price. If City elects
to correct defective Work due to Contractor's failure or refusal to do so, City or its agents
will have the right to take possession of and use any equipment, supplies, or materials
available at the Project site or any Worksite on City property, in order to effectuate the
correction, at no extra cost to City. Contractor's warranty obligations under Section 11.2,
Warranty, will not be waived nor limited by City's actions to correct defective Work under
these circumstances. Alternatively, City may elect to retain defective Work, and deduct
the difference in value, as determined by the Engineer, from payments otherwise due to
Contractor. This paragraph applies to any defective Work performed by Contractor during
the one-year warranty period under Section 11.2.
(J) Contractor's Records. Contractor must maintain all of its records relating to the
Project in any form, including paper documents, photos, videos, electronic records,
approved samples, and the construction records required pursuant to paragraph (G),
above. Project records subject to this provision include complete Project cost records and
records relating to preparation of Contractor's bid, including estimates, take -offs, and
price quotes or bids.
(1) Contractor's cost records must include all supporting documentation,
including original receipts, invoices, and payroll records, evidencing its direct
costs to perform the Work, including, but not limited to, costs for labor, materials
and equipment. Each cost record should include, at a minimum, a description of
the expenditure with references to the applicable requirements of the Contract
Documents, the amount actually paid, the date of payment, and whether the
expenditure is part of the original Contract Price, related to an executed Change
Order, or otherwise categorized by Contractor as Extra Work. Contractor's failure
to comply with this provision as to any claimed cost operates as a waiver of any
rights to recover the claimed cost.
(2) Contractor must continue to maintain its Project -related records in an
organized manner for a period of five years after City's acceptance of the Project
or following Contract termination, whichever occurs first. Subject to prior notice to
Contractor, City is entitled to inspect or audit any of Contractor's records relating
to the Project during Contractor's normal business hours. The record-keeping
requirements set forth in this subsection 2.2(J) will survive expiration or
termination of the Contract.
(K) Copies of Project Documents. Contractor and its Subcontractors must keep
copies, at the Project site, of all Work-related documents, including the Contract,
permit(s), Plans, Specifications, Addenda, Contract amendments, Change Orders, RFIs
and RFI responses, Shop Drawings, as -built drawings, schedules, daily records, testing
and inspection reports or results, and any related written interpretations. These
documents must be available to City for reference at all times during construction of the
Project.
Subcontractors.
(A) General. All Work which is not performed by Contractor with its own forces must
be performed by Subcontractors. City reserves the right to approve or reject any and all
Subcontractors proposed to perform the Work, for reasons including the subcontractor's
poor reputation, lack of relevant experience, financial instability, and lack of technical
ability or adequate trained workforce. Each Subcontractor must obtain a City business
license before performing any Work.
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2.4
(B) Contractual Obligations. Contractor must require each Subcontractor to
comply with the provisions of the Contract Documents as they apply to the
Subcontractor's portion(s) of the Work, including the generally applicable terms of the
Contract Documents, and to likewise bind their subcontractors. Contractor will provide
that the rights that each Subcontractor may have against any manufacturer or supplier for
breach of warranty or guarantee relating to items provided by the Subcontractor for the
Project, will be assigned to City. Nothing in these Contract Documents creates a
contractual relationship between a Subcontractor and City, but City is deemed to be a
third -party beneficiary of the contract between Contractor and each Subcontractor.
(C) Termination. If the Contract is terminated, each Subcontractor's agreement
must be assigned by Contractor to City, subject to the prior rights of any surety, but only if
and to the extent that City accepts, in writing, the assignment by written notification, and
assumes all rights and obligations of Contractor pursuant to each such subcontract
agreement.
(D) Substitution of Subcontractor. If Contractor requests substitution of a listed
Subcontractor under Public Contract Code § 4107, Contractor is solely responsible for all
costs City incurs in responding to the request, including legal fees and costs to conduct a
hearing, and any increased subcontract cost to perform the Work that was to be
performed by the listed Subcontractor. If City determines that a Subcontractor is
unacceptable to City based on the Subcontractor's failure to satisfactorily perform its
Work, or for any of the grounds for substitution listed in Public Contract Code § 4107(a),
City may request removal of the Subcontractor from the Project. Upon receipt of a written
request from City to remove a Subcontractor pursuant to this paragraph, Contractor will
immediately remove the Subcontractor from the Project and, at no further cost to City, will
either (1) self -perform the remaining Work to the extent that Contractor is duly licensed
and qualified to do so, or (2) substitute a Subcontractor that is acceptable to City, in
compliance with Public Contract Code § 4107, as applicable.
Coordination of Work.
(A) Concurrent Work. City reserves the right to perform, have performed, or permit
performance of other work on or adjacent to the Project site while the Work is being
performed for the Project. Contractor is responsible for coordinating its Work with other
work being performed on or adjacent to the Project site, including by any utility
companies or agencies, and must avoid hindering, delaying, or interfering with the work
of other contractors, individuals, or entities, and must ensure safe and reasonable site
access and use as required or authorized by City. To the full extent permitted by law,
Contractor must hold harmless and indemnify City against any and all claims arising from
or related to Contractor's avoidable, negligent, or willful hindrance of, delay to, or
interference with the work of any utility company or agency or another contractor or
subcontractor.
(B) Coordination. If Contractor's Work will connect or interface with work performed
by others, Contractor is responsible for independently measuring and visually inspecting
such work to ensure a correct connection and interface. Contractor is responsible for any
failure by Contractor or its Subcontractors to confirm measurements before proceeding
with connecting Work. Before proceeding with any portion of the Work affected by the
construction or operations of others, Contractor must give the Project Manager prompt
written notification of any defects Contractor discovers which will prevent the proper
execution of the Work. Failure to give notice of any known or reasonably discoverable
defects will be deemed acknowledgement by Contractor that the work of others is not
defective and will not prevent the proper execution of the Work. Contractor must also
promptly notify City if work performed by others, including work or activities performed by
City's own forces, is operating to hinder, delay, or interfere with Contractor's timely
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Page 15
performance of the Work. City reserves the right to backcharge Contractor for any
additional costs incurred due to Contractor's failure to comply with the requirements in
this Section 2.4.
2.5 Submittals. Unless otherwise specified, Contractor must submit to the Engineer for
review and acceptance, all schedules, Shop Drawings, samples, product data, and
similar submittals required by the Contract Documents, or upon request by the Engineer.
Unless otherwise specified, all submittals, including Requests for Information, are subject
to the general provisions of this Section, as well as specific submittal requirements that
may be included elsewhere in the Contract Documents, including the Special Conditions
or Specifications. The Engineer may require submission of a submittal schedule at or
before a pre -construction conference, as may be specified in the Notice to Proceed.
(A) General. Contractor is responsible for ensuring that its submittals are accurate
and conform to the Contract Documents.
(B) Time and Manner of Submission. Contractor must ensure that its submittals
are prepared and delivered in a manner consistent with the current City -accepted
schedule for the Work and within the applicable time specified in the Contract
Documents, or if no time is specified, in such time and sequence so as not to delay the
performance of the Work or completion of the Project.
(C) Required Contents. Each submittal must include the Project name and contract
number, Contractor's name and address, the name and address of any Subcontractor or
supplier involved with the submittal, the date, and references to applicable Specification
section(s) and/or drawing and detail number(s).
(D) Required Corrections. If corrections are required, Contractor must promptly
make and submit any required corrections as specified in full conformance with the
requirements of this Section, or other requirements that apply to that submittal.
(E) Effect of Review and Acceptance. Review and acceptance of a submittal by
City will not relieve Contractor from complying with the requirements of the Contract
Documents. Contractor is responsible for any errors in any submittal, and review or
acceptance of a submittal by City is not an assumption of risk or liability by City.
(F) Enforcement. Any Work performed or any material furnished, installed,
fabricated or used without City's prior acceptance of a required submittal is performed or
provided at Contractor's risk, and Contractor may be required to bear the costs incident
thereto, including the cost of removing and replacing such Work, repairs to other affected
portions of the Work or material, and the cost of additional time or services required of
City, including costs for the Design Professional, Project Manager, or Inspector.
(G) Excessive RF/s. A RFI will be considered excessive or unnecessary if City
determines that the explanation or response to the RFI is clearly and unambiguously
discernable from the Contract Documents. City's costs to review and respond to
excessive or unnecessary RFIs may be deducted from payments otherwise due to
Contractor.
2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested
by the Engineer, they must be prepared according to best practices at Contractor's
expense. The Shop Drawings must be of a size and scale to clearly show all necessary
details. Unless otherwise specified by City, Shop Drawings must be provided to the
Engineer for review and acceptance at least 30 days before the Work will be performed.
If City requires changes, the corrected Shop Drawings must be resubmitted to the
Engineer for review within the time specified by the Engineer. For all Project components
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Page 16
requiring Shop Drawings, Contractor will not furnish materials or perform any Work until
the Shop Drawings for those components are accepted by City. Contractor is responsible
for any errors or omissions in the Shop Drawings, shop fits and field corrections; any
deviations from the Contract Documents; and for the results obtained by the use of Shop
Drawings. Acceptance of Shop Drawings by City does not relieve Contractor of
Contractor's responsibility.
2.7 Access to Work. Contractor must afford prompt and safe access to any Worksite by
City and its employees, agents, or consultants authorized by City; and upon request by
City, Contractor must promptly arrange for City representatives to visit or inspect
manufacturing sites or fabrication facilities for items to be incorporated into the Work.
2.8 Personnel. Contractor and its Subcontractors must employ only competent and skillful
personnel to perform the Work. Contractor and its Subcontractor's supervisors, security
or safety personnel, and employees who have unescorted access to the Project site must
possess proficiency in English sufficient to read, understand, receive, and implement oral
or written communications or instructions relating to their respective job functions,
including safety and security requirements. Upon written notification from the Engineer,
Contractor and its Subcontractors must immediately discharge any personnel who are
incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse
or fail to comply with the requirements of the Contract Documents or Laws, including
Laws pertaining to health and safety. Any such discharged personnel may not be re-
employed or permitted on the Project in any capacity without City's prior written consent.
Article 3 - Contract Documents
3.1 Interpretation of Contract Documents.
(A) Plans and Specifications. The Plans and Specifications included in the
Contract Documents are complementary. If Work is shown on one but not on the other,
Contractor must perform the Work as though fully described on both, consistent with the
Contract Documents and reasonably inferable from them as being necessary to produce
the indicated results. The Plans and Specifications are deemed to include and require
everything necessary and reasonably incidental to completion of the Work, whether or
not particularly mentioned or shown. Contractor must perform all Work and services and
supply all things reasonably related to and inferable from the Contract Documents. In the
event of a conflict between the Plans and Specifications, the Specifications will control,
unless the drawing(s) at issue are dated later than the Specification(s) at issue. Detailed
drawings take precedence over general drawings, and large-scale drawings take
precedence over smaller scale drawings. Any arrangement or division of the Plans and
Specifications into sections is for convenience and is not intended to limit the Work
required by separate trades. A conclusion presented in the Plans or Specifications is only
a recommendation. Actual locations and depths must be determined by Contractor's field
investigation. Contractor may request access to underlying or background information in
City's possession that is necessary for Contractor to form its own conclusions.
(B) Duty to Notify and Seek Direction. If Contractor becomes aware of a changed
condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy,
omission, or error in the Contract Documents, including the Plans or Specifications,
Contractor must promptly submit a Request for Information to the Engineer and wait for a
response from City before proceeding further with the related Work. The RFI must notify
City of the issue and request clarification, interpretation or direction. The Engineer's
clarification, interpretation or direction will be final and binding on Contractor. If
Contractor proceeds with the related Work before obtaining City's response, Contractor
will be responsible for any resulting costs, including the cost of correcting any incorrect or
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defective Work that results. Timely submission of a clear and complete RFI is essential to
avoiding delay. Delay resulting from Contractor's failure to submit a timely and complete
RFI to the Engineer is Non -Excusable Delay. If Contractor believes that City's response
to an RFI justifies a change to the Contract Price or Contract Time, Contractor must
perform the Work as directed, but may submit a timely Change Order request in
accordance with the Contract Documents. (See Article 5 and 6.)
(C) Figures and Dimensions. Figures control over scaled dimensions.
(D) Technical or Trade Terms. Any terms that have well-known technical or trade
meanings will be interpreted in accordance with those meanings, unless otherwise
specifically defined in the Contract Documents.
(E) Measurements. Contractor must verify all relevant measurements in the
Contract Documents and at the Project site before ordering any material or performing
any Work, and will be responsible for the correctness of those measurements or for costs
that could have been avoided by independently verifying measurements.
(F) Compliance with Laws. The Contract Documents are intended to comply with
Laws and will be interpreted to comply with Laws.
3.2 Order of Precedence. Information included in one Contract Document but not in
another will not be considered a conflict or inconsistency. Unless otherwise specified in
the Special Conditions, in case of any conflict or inconsistency among the Contract
Documents, the following order of precedence will apply, beginning from highest to
lowest, with the most recent version taking precedent over an earlier version:
(A) Change Orders;
(B) Addenda;
(C) Contract;
(D) Notice to Proceed;
(E) Attachment B — Federal Contract Requirements (only if used);
(F) Special Conditions;
(G) General Conditions;
(H) Payment and Performance Bonds;
(1) Specifications;
(J) Plans;
(K) Notice of Potential Award;
(L) Notice Inviting Bids;
(M) Attachment A — Federal Bidding Requirements (only if used);
(N) Instructions to Bidders;
(0) Contractor's Bid Proposal and attachments;
(P) the City's standard specifications, as applicable; and
(Q) Any generic documents prepared by and on behalf of a third party, that were not
prepared specifically for this Project, such as the Caltrans Standard Specifications or
Caltrans Special Provisions.
3.3 Caltrans Standard Specifications. Any reference to or incorporation of the Standard
Specifications of the State of California, Department of Transportation ("Caltrans"),
including "Standard Specifications," "Caltrans Specifications," "State Specifications," or
"CSS," means the most current edition of Caltrans' Standard Specifications, unless
otherwise specified ("Caltrans Standard Specifications"), including the most current
amendments as of the date that Contractor's bid was submitted for this Project. The
following provisions apply to use of or reference to the Caltrans Standard Specifications
or Special Provisions:
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(A) Limitations. The "General Provisions" of the Caltrans Standard Specifications,
i.e., sections 1 through 9, do not apply to these Contract Documents with the exception of
any specific provisions, if any, which are expressly stated to apply to these Contract
Documents.
(B) Conflicts or Inconsistencies. If there is a conflict or inconsistency between any
provision in the Caltrans Standard Specifications or Special Provisions and a provision of
these Contract Documents, as determined by City, the provision in the Contract
Documents will govern.
(C) Meanings. Terms used in the Caltrans Standard Specifications or Special
Provisions are to be interpreted as follows:
(1) Any reference to the "Engineer" is deemed to mean the City Engineer.
(2) Any reference to the "Special Provisions" is deemed to mean the Special
Conditions, unless the Caltrans Special Provisions are expressly included in the
Contract Documents listed in Section 2 of the Contract.
(3) Any reference to the "Department" or "State" is deemed to mean City.
3.4 For Reference Only. Contractor is responsible for the careful review of any document,
study, or report provided by City or appended to the Contract Documents solely for
informational purposes and identified as "For Reference Only." Nothing in any document,
study, or report so appended and identified is intended to supplement, alter, or void any
provision of the Contract Documents. Contractor is advised that City or its
representatives may be guided by information or recommendations included in such
reference documents, particularly when making determinations as to the acceptability of
proposed materials, methods, or changes in the Work. Any record drawings or similar
final or accepted drawings or maps that are not part of the Contract Documents are
deemed to be For Reference Only. The provisions of the Contract Documents are not
modified by any perceived or actual conflict with provisions in any document that is
provided For Reference Only.
3.5 Current Versions. Unless otherwise specified by City, any reference to standard
specifications, technical specifications, or any City or state codes or regulations means
the latest specification, code or regulation in effect at the time the Contract is signed.
3.6 Conformed Copies. If City prepares a conformed set of the Contract Documents
following award of the Contract, it will provide Contractor with two hard copy (paper) sets
and one copy of the electronic file in PDF format. It is Contractor's responsibility to
ensure that all Subcontractors, including fabricators, are provided with the conformed set
of the Contract Documents at Contractor's sole expense.
3.7 Ownership. No portion of the Contract Documents may be used for any purpose other
than construction of the Project, without prior written consent from City. Contractor is
deemed to have conveyed the copyright in any designs, drawings, specifications, Shop
Drawings, or other documents (in paper or electronic form) developed by Contractor for
the Project, and City will retain all rights to such works, including the right to possession.
Article 4 - Bonds, Indemnity, and Insurance
4.1 Payment and Performance Bonds. Within ten days following issuance of the Notice of
Potential Award, Contractor is required to provide a payment bond and a performance
bond, each in the penal sum of not less than 100% of the Contract Price, and each
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executed by Contractor and its surety using the bond forms included with the Contract
Documents.
(A) Surety. Each bond must be issued and executed by a surety admitted in
California. If an issuing surety cancels the bond or becomes insolvent, within seven days
following written notice from City, Contractor must substitute a surety acceptable to City.
If Contractor fails to substitute an acceptable surety within the specified time, City may, at
its sole discretion, withhold payment from Contractor until the surety is replaced to City's
satisfaction, or terminate the Contract for default.
(B) Supplemental Bonds for Increase in Contract Price. If the Contract Price
increases during construction by five percent or more over the original Contract Price,
Contractor must provide supplemental or replacement bonds within ten days of written
notice from City pursuant to this Section, covering 100% of the increased Contract Price
and using the bond forms included with the Contract Documents.
4.2 Indemnity. To the fullest extent permitted by law, Contractor must indemnify, defend,
and hold harmless City, its Council, officers, officials, employees, agents, volunteers, and
consultants (individually, an "Indemnitee," and collectively the "Indemnitees") from and
against any and all liability, loss, damage, claims, causes of action, demands, charges,
fines, costs, and expenses (including, without limitation, attorney fees, expert witness
fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, "Liability")
of every nature arising out of or in connection with the acts or omissions of Contractor, its
employees, Subcontractors, representatives, or agents, in bidding or performing the Work
or in failing to comply with any obligation of Contractor under the Contract, except such
Liability caused by the active negligence, sole negligence, or willful misconduct of an
Indemnitee. This indemnity requirement applies to any Liability arising from alleged
defects in the content or manner of submission of Contractor's bid for the Contract.
Contractor's failure or refusal to timely accept a tender of defense pursuant to this
Contract will be deemed a material breach of the Contract. City will timely notify
Contractor upon receipt of any third -party claim relating to the Contract, as required by
Public Contract Code § 9201. Contractor waives any right to express or implied indemnity
against any Indemnitee. Contractor's indemnity obligations under this Contract will
survive the expiration or any early termination of the Contract.
4.3 Insurance. No later than ten days following issuance of the Notice of Potential Award,
Contractor must procure and provide proof of the insurance coverage required by this
Section in the form of certificates and endorsements acceptable to City. The required
insurance must cover the activities of Contractor and its Subcontractors relating to or
arising from the performance of the Work, and must remain in full force and effect at all
times during the period covered by the Contract, through the date of City's acceptance of
the Project. All required insurance must be issued by a company licensed to do business
in the State of California, and each such insurer must have an A.M. Best's financial
strength rating of "A" or better and a financial size rating of "VIII" or better. If Contractor
fails to provide any of the required coverage in full compliance with the requirements of
the Contract Documents, City may, at its sole discretion, purchase such coverage at
Contractor's expense and deduct the cost from payments due to Contractor, or terminate
the Contract for default. The procurement of the required insurance will not be construed
to limit Contractor's liability under this Contract or to fulfill Contractor's indemnification
obligations under this Contract.
(A) Policies and Limits. The following insurance policies and limits are required for
this Contract, unless otherwise specified in the Special Conditions:
(1) Commercial General Liability ("CGL) Insurance: The CGL insurance policy
must be issued on an occurrence basis, written on a comprehensive general
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liability form, and must include coverage for liability arising from Contractor's or
its Subcontractor's acts or omissions in the performance of the Work, including
contractor's protected coverage, contractual liability, products and completed
operations, and broad form property damage, with limits of at least $2,000,000
per occurrence and at least $4,000,000 general aggregate. The CGL insurance
coverage may be arranged under a single policy for the full limits required or by a
combination of underlying policies with the balance provided by excess or
umbrella policies, provided each such policy complies with the requirements set
forth in this Section, including required endorsements.
(2) Automobile Liability Insurance: The automobile liability insurance policy must
provide coverage of at least $2,000,000 combined single -limit per accident for
bodily injury, death, or property damage, including hired and non -owned auto
liability.
(3) Workers' Compensation Insurance and Employer's Liability: The workers'
compensation and employer's liability insurance policy must comply with the
requirements of the California Labor Code, providing coverage of at least
$1,000,000 or as otherwise required by the statute. If Contractor is self-insured,
Contractor must provide its Certificate of Permission to Self -Insure, duly
authorized by the DIR.
(4) Pollution Liability Insurance: The pollution liability insurance policy must be
issued on an occurrence basis, providing coverage of at least $2,000,000 for all
loss arising out of claims for bodily injury, death, property damage, or
environmental damage caused by pollution conditions resulting from the Work.
(5) Builder's Risk Insurance: The builder's risk insurance policy must be issued
on an occurrence basis, for all-risk or "all perils" coverage on a 100% completed
value basis on the insurable portion of the Project for the benefit of City.
(B) Notice. Each certificate of insurance must state that the coverage afforded by
the policy or policies will not be reduced, cancelled or allowed to expire without at least
30 days written notice to City, unless due to non-payment of premiums, in which case ten
days written notice must be made to City.
(C) Waiver of Subrogation. Each required policy must include an endorsement
providing that the carrier will waive any right of subrogation it may have against City.
(D) Required Endorsements. The CGL policy, automobile liability policy, pollution
liability policy, and builder's risk policy must include the following specific endorsements:
(1) The City, including its Council, officials, officers, employees, agents,
volunteers and consultants (collectively, "Additional Insured") must be named as
an additional insured for all liability arising out of the operations by or on behalf of
the named insured, and the policy must protect the Additional Insured against
any and all liability for personal injury, death or property damage or destruction
arising directly or indirectly in the performance of the Contract. The additional
insured endorsement must be provided using ISO form CG 20 10 11 85 or an
equivalent form approved by the City.
(2) The inclusion of more than one insured will not operate to impair the rights of
one insured against another, and the coverages afforded will apply as though
separate policies have been issued to each insured.
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5.1
(3) The insurance provided by Contractor is primary and no insurance held or
owned by any Additional Insured may be called upon to contribute to a loss.
(4) This policy does not exclude explosion, collapse, underground excavation
hazard, or removal of lateral support.
(E) Contractor's Responsibilities. This Section 4.3 establishes the minimum
requirements for Contractor's insurance coverage in relation to this Project, but is not
intended to limit Contractor's ability to procure additional or greater coverage. Contractor
is responsible for its own risk assessment and needs and is encouraged to consult its
insurance provider to determine what coverage it may wish to carry beyond the minimum
requirements of this Section. Contractor is solely responsible for the cost of its insurance
coverage, including premium payments, deductibles, or self-insured retentions, and no
Additional Insured will be responsible or liable for any of the cost of Contractor's
insurance coverage.
(F) Deductibles and Self -Insured Retentions. Any deductibles or self-insured
retentions that apply to the required insurance (collectively, "deductibles") in excess of
$100,000 are subject to approval by the City's Risk Manager, acting in his or her sole
discretion, and must be declared by Contractor when it submits its certificates of
insurance and endorsements pursuant to this Section 4.3. If the City's Risk Manager
determines that the deductibles are unacceptably high, at City's option, Contractor must
either reduce or eliminate the deductibles as they apply to City and all required Additional
Insured; or must provide a financial guarantee, to City's satisfaction, guaranteeing
payment of losses and related investigation, claim administration, and legal expenses.
(G) Subcontractors. Contractor must ensure that each Subcontractor is required to
maintain the same insurance coverage required under this Section 4.3, with respect to its
performance of Work on the Project, including those requirements related to the
Additional Insureds and waiver of subrogation, but excluding pollution liability or builder's
risk insurance unless otherwise specified in the Special Conditions. A Subcontractor may
be eligible for reduced insurance coverage or limits, but only to the extent approved in
writing in advance by the City's Risk Manager. Contractor must confirm that each
Subcontractor has complied with these insurance requirements before the Subcontractor
is permitted to begin Work on the Project. Upon request by the City, Contractor must
provide certificates and endorsements submitted by each Subcontractor to prove
compliance with this requirement. The insurance requirements for Subcontractors do not
replace or limit the Contractor's insurance obligations.
Article 5 - Contract Time
Time is of the Essence. Time is of the essence in Contractor's performance and
completion of the Work, and Contractor must diligently prosecute the Work and complete
it within the Contract Time.
(A) General. Contractor must commence the Work on the date indicated in the
Notice to Proceed and must fully complete the Work in strict compliance with all
requirements of the Contract Documents and within the Contract Time. Contractor may
not begin performing the Work before the date specified in the Notice to Proceed.
(B) Authorization. Contractor is not entitled to compensation or credit for any Work
performed before the date specified in the Notice to Proceed, with the exception of any
schedules, submittals, or other requirements, if any, that must be provided or performed
before issuance of the Notice to Proceed.
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(C) Rate of Progress. Contractor and its Subcontractors must, at all times, provide
workers, materials, and equipment sufficient to maintain the rate of progress necessary to
ensure full completion of the Work within the Contract Time. If City determines that
Contractor is failing to prosecute the Work at a sufficient rate of progress, City may, in its
sole discretion, direct Contractor to provide additional workers, materials, or equipment,
or to work additional hours or days without additional cost to City, in order to achieve a
rate of progress satisfactory to City. If Contractor fails to comply with City's directive in
this regard, City may, at Contractor's expense, separately contract for additional workers,
materials, or equipment or use City's own forces to achieve the necessary rate of
progress. Alternatively, City may terminate the Contract based on Contractor's default.
5.2 Schedule Requirements. Contractor must prepare all schedules using standard,
commercial scheduling software acceptable to the Engineer, and must provide the
schedules in electronic and paper form as requested by the Engineer. In addition to the
general scheduling requirements set forth below, Contractor must also comply with any
scheduling requirements included in the Special Conditions or in the Technical
Specifications.
(A) Baseline (As -Planned) Schedule. Within ten calendar days following City's
issuance of the Notice to Proceed (or as otherwise specified in the Notice to Proceed),
Contractor must submit to City for review and acceptance a baseline (as -planned)
schedule using critical path methodology showing in detail how Contractor plans to
perform and fully complete the Work within the Contract Time, including labor,
equipment, materials and fabricated items. The baseline schedule must show the order of
the major items of Work and the dates of start and completion of each item, including
when the materials and equipment will be procured. The schedule must also include the
work of all trades, reflecting anticipated labor or crew hours and equipment loading for
the construction activities, and must be sufficiently comprehensive and detailed to enable
progress to be monitored on a day-by-day basis. For each activity, the baseline schedule
must be dated, provided in the format specified in the Contract Documents or as required
by City, and must include, at a minimum, a description of the activity, the start and
completion dates of the activity, and the duration of the activity.
(1) Specialized Materials Ordering. Within five calendar days following issuance
of the Notice to Proceed, Contractor must order any specialized material or
equipment for the Work that is not readily available from material suppliers.
Contractor must also retain documentation of the purchase order date(s).
(B) City's Review of Schedules. City will review and may note exceptions to the
baseline schedule, and to the progress schedules submitted as required below, to assure
completion of the Work within the Contract Time. Contractor is solely responsible for
resolving any exceptions noted in a schedule and, within seven days, must correct the
schedule to address the exceptions. City's review or acceptance of Contractor's
schedules will not operate to waive or limit Contractor's duty to complete the Project
within the Contract Time, nor to waive or limit City's right to assess liquidated damages
for Contractor's unexcused failure to do so.
(C) Progress Schedules. After City accepts the final baseline schedule with no
exceptions, Contractor must submit an updated progress schedule and three-week look -
ahead schedule, in the format specified by City, for review and acceptance with each
application for a progress payment, or when otherwise specified by City, until completion
of the Work. The updated progress schedule must: show how the actual progress of the
Work as constructed to date compares to the baseline schedule; reflect any proposed
changes in the construction schedule or method of operations, including to achieve
Project milestones within the Contract Time; and identify any actual or potential impacts
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5.3
to the critical path. Contractor must also submit periodic reports to City of any changes in
the projected material or equipment delivery dates for the Project.
(1) Float. The progress schedule must show early and late completion dates for
each task. The number of days between those dates will be designated as the
"float." Any float belongs to the Project and may be allocated by the Engineer to
best serve timely completion of the Project.
(2) Failure to Submit Schedule. Reliable, up-to-date schedules are essential to
efficient and cost-effective administration of the Project and timely completion. If
Contractor fails to submit a schedule within the time periods specified in this
Section, or submits a schedule to which City has noted exceptions that are not
corrected, City may withhold up to ten percent from payment(s) otherwise due to
Contractor until the exceptions are resolved, the schedule is corrected and
resubmitted, and City has accepted the schedule. In addition, Contractor's failure
to comply with the schedule requirements in this Section 5.2 will be deemed a
material default and a waiver of any claims for Excusable Delay or loss of
productivity arising during any period when Contractor is out of compliance,
subject only to the limits of Public Contract Code § 7102.
(D) Recovery Schedule. If City determines that the Work is more than one week
behind schedule, within seven days following written notice of such determination,
Contractor must submit a recovery schedule, showing how Contractor intends to perform
and complete the Work within the Contract Time, based on actual progress to date.
(E) Effect of Acceptance. Contractor and its Subcontractors must perform the
Work in accordance with the most current City -accepted schedule unless otherwise
directed by City. City's acceptance of a schedule does not operate to extend the time for
completion of the Work or any component of the Work, and will not affect City's right to
assess liquidated damages for Contractor's unexcused delay in completing the Work
within the Contract Time.
(F) Posting. Contractor must at all times prominently post a copy of the most
current City -accepted progress or recovery schedule in its on-site office.
(G) Reservation of Rights. City reserves the right to direct the sequence in which
the Work must be performed or to make changes in the sequence of the Work in order to
facilitate the performance of work by City or others, or to facilitate City's use of its
property. The Contract Time or Contract Price may be adjusted to the extent such
changes in sequence actually increase or decrease Contractor's time or cost to perform
the Work.
(H) Authorized Working Days and Times. Contractor is limited to working Monday
through Friday, excluding holidays, during City's normal business hours, except as
provided in the Special Conditions or as authorized in writing by City. City reserves the
right to charge Contractor for additional costs incurred by City due to Work performed on
days or during hours not expressly authorized in the Contract Documents, including
reimbursement of costs incurred for inspection, testing, and construction management
services.
Delay and Extensions of, Contract Time.
(A) Notice of Delay. If Contractor becomes aware of any actual or potential delay
affecting the critical path, Contractor must promptly notify the Engineer in writing,
regardless of the nature or cause of the delay, so that City has a reasonable opportunity
to mitigate or avoid the delay.
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(B) Excusable Delay. The Contract Time may be extended if Contractor encounters
"Excusable Delay," which is an unavoidable delay in completing the Work within the
Contract Time due to causes completely beyond Contractor's control, and which
Contractor could not have avoided or mitigated through reasonable care, planning,
foresight, and diligence, provided that Contractor is otherwise fully performing its
obligations under the Contract Documents. Grounds for Excusable Delay may include
fire, natural disasters including earthquake or unusually severe weather, acts of terror or
vandalism, epidemic, unforeseeable adverse government actions, unforeseeable actions
of third parties, encountering unforeseeable hazardous materials, unforeseeable site
conditions, or suspension for convenience under Article 13. The Contract Time will not be
extended based on circumstances which will not unavoidably delay completing the Work
within the Contract Time based on critical path analysis.
(C) Weather Delays. A "Weather Delay Day" is a Working Day during which
Contractor and its forces, including Subcontractors, are unable to perform more than 40%
of the critical path Work scheduled for that day due to adverse weather conditions which
impair the ability to safely or effectively perform the scheduled critical path Work that day.
Adverse weather conditions may include rain, saturated soil, and Project site clean-up
required due to adverse weather. Determination of what constitutes critical path Work
scheduled for that day will be based on the most current, City -approved schedule.
Contractor will be entitled to a non -compensable extension of the Contract Time for each
Weather Delay Day in excess of the normal Weather Delay Days within a given month as
determined by reliable records, including monthly rainfall averages, for the preceding ten
years (or as otherwise specified in the Special Conditions or Specifications).
(1) Contractor must fully comply with the applicable procedures in Articles 5
and 6 of the General Conditions regarding requests to modify the Contract Time.
(2) Contractor will not be entitled to an extension of time for a Weather
Delay Day to the extent Contractor is responsible for concurrent delay on that
day.
(3) Contractor must take reasonable steps to mitigate the consequences of
Weather Delay Days, including prudent workforce management and protecting
the Work, Project Site, materials, and equipment.
(D) Non -Excusable Delay. Delay which Contractor could have avoided or mitigated
through reasonable care, planning, foresight and diligence is "Non -Excusable Delay."
Contractor is not entitled to an extension of Contract Time or any compensation for Non -
Excusable Delay, or for Excusable Delay that is concurrent with Non -Excusable Delay.
Non -Excusable Delay includes delay caused by:
(1) weather conditions which are normal for the location of the Project, as
determined by reliable records, including monthly rainfall averages, for the
preceding ten years;
(2) Contractor's failure to order equipment and materials sufficiently in advance
of the time needed for completion of the Work within the Contract Time;
(3) Contractor's failure to provide adequate notification to utility companies or
agencies for connections or services necessary for completion of the Work within
the Contract Time;
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(4) foreseeable conditions which Contractor could have ascertained from
reasonably diligent inspection of the Project site or review of the Contract
Documents or other information provided or available to Contractor;
(5) Contractor's failure, refusal, or financial inability to perform the Work within
the Contract Time, including insufficient funds to pay its Subcontractors or
suppliers;
(6) performance or non-performance by Contractor's Subcontractors or
suppliers;
(7) the time required to respond to excessive RFIs (see Section 2.5(G));
(8) delayed submission of required submittals, or the time required for correction
and resubmission of defective submittals;
(9) time required for repair of, re -testing, or re -inspection of defective Work;
(10) enforcement of Laws by City, or outside agencies with jurisdiction over the
Work; or
(11) City's exercise or enforcement of any of its rights or Contractor's duties
pursuant to the Contract Documents, including correction of defective Work,
extra inspections or testing due to non-compliance with Contract requirements,
safety compliance, environmental compliance, or rejection and return of defective
or deficient submittals.
(E) Compensable Delay. Pursuant to Public Contract Code § 7102, in addition to
entitlement to an extension of Contract Time, Contractor is entitled to compensation for
costs incurred due to delay caused solely by City, when that delay is unreasonable under
the circumstances involved and not within the contemplation of the parties
("Compensable Delay"). Contractor is not entitled to an extension of Contract Time or
recovery of costs for Compensable Delay that is concurrent with Non -Excusable Delay.
Delay due to causes that are beyond the control of either City or Contractor, including
Weather Delay Days, discovery of Historic or Archeological Items pursuant to Section
7.18, or the actions or inactions of third parties or other agencies, is not Compensable
Delay, and will only entitle Contractor to an extension of time commensurate with the time
lost due to such delay.
(F) Recoverable Costs. Contractor is not entitled to compensation for Excusable
Delay unless it is Compensable Delay, as defined above. Contractor is entitled to recover
only the actual, direct, reasonable, and substantiated costs ("Recoverable Costs") for
each working day that the Compensable Delay prevents Contractor from proceeding with
more than 50% of the critical path Work scheduled for that day, based on the most recent
progress schedule accepted by City. Recoverable Costs will not include home office
overhead or lost profit.
(G) Request for Extension of Contract Time or Recoverable Costs. A request for
an extension of Contract Time or any associated Recoverable Costs must be submitted
in writing to City within ten calendar days of the date the delay is first encountered, even
if the duration of the delay is not yet known at that time, or any entitlement to the Contract
Time extension or to the Recoverable Costs will be deemed waived. In addition to
complying with the requirements of this Article 5, the request must be submitted in
compliance with the Change Order request procedures in Article 6 below. Strict
compliance with these requirements is necessary to ensure that any delay or
consequences of delay may be mitigated as soon as possible, and to facilitate cost -
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efficient administration of the Project and timely performance of the Work. Any request for
an extension of Contract Time or Recoverable Costs that does not strictly comply with all
of the requirements of Article 5 and Article 6 will be deemed waived.
(1) Required Contents. The request must include a detailed description of the
cause(s) of the delay and must also describe the measures that Contractor has
taken to mitigate the delay and/or its effects, including efforts to mitigate the cost
impact of the delay, such as by workforce management or by a change in
sequencing. If the delay is still ongoing at the time the request is submitted, the
request should also include Contractor's plan for continued mitigation of the
delay or its effects.
(2) Delay Days and Costs. The request must specify the number of days of
Excusable Delay claimed or provide a realistic estimate if the duration of the
delay is not yet known. If Contractor believes it is entitled to Recoverable Costs
for Compensable Delay, the request must specify the amount and basis for the
Recoverable Costs that are claimed or provide a realistic estimate if the amount
is not yet known. Any estimate of delay duration or cost must be updated in
writing and submitted with all required supporting documentation as soon as the
actual time and cost is known. The maximum extension of Contract Time will be
the number of days, if any, by which an Excusable Delay or a Compensable
Delay exceeds any concurrent Non -Excusable Delay. Contractor is entitled to an
extension of Contract Time, or compensation for Recoverable Costs, only if, and
only to the extent that, such delay will unavoidably delay Final Completion.
(3) Supporting Documentation. The request must also include any and all
supporting documentation necessary to evidence the delay and its actual
impacts, including scheduling and cost impacts with a time impact analysis using
critical path methodology and demonstrating the unavoidable delay to Final
Completion. The time impact analysis must be submitted in a form or format
acceptable to City.
(4) Burden of Proof. Contractor has the burden of proving that: the delay was an
Excusable or Compensable Delay, as defined above; Contractor has fully
complied with its scheduling obligations in Section 5.2, Schedule Requirements;
Contractor has made reasonable efforts to mitigate the delay and its schedule
and cost impacts; the delay will unavoidably result in delaying Final Completion;
and any Recoverable Costs claimed by Contractor were actually incurred and
were reasonable under the circumstances.
(5) Legal Compliance. Nothing in this Section 5.3 is intended to require the
waiver, alteration, or limitation of the applicability of Public Contract Code § 7102.
(6) No Waiver. Any grant of an extension of Contract Time, or compensation for
Recoverable Costs due to Compensable Delay, will not operate as a waiver of
City's right to assess liquidated damages for Non -Excusable Delay.
(7) Dispute Resolution. In the event of a dispute over entitlement to an
extension of Contract Time or compensation for Recoverable Costs, Contractor
may not stop Work pending resolution of the dispute, but must continue to
comply with its duty to diligently prosecute the performance and timely
completion of the Work. Contractor's sole recourse for an unresolved dispute
based on City's rejection of a Change Order request for an extension of Contract
Time or compensation for Recoverable Costs is to comply with the dispute
resolution provisions set forth in Article 12 below.
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5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved
within the Contract Time, City will suffer damages from the delay that are difficult to
determine and accurately specify. Pursuant to Public Contract Code § 7203, if Contractor
fails to achieve Final Completion within the Contract Time due to Contractor's Non -
Excusable Delay, City will charge Contractor in the amount specified in the Contract for
each calendar day that Final Completion is delayed beyond the Contract Time, as
liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in
whole or in part, is subject to approval of the City Council or its authorized delegee.
(A) Liquidated Damages. Liquidated damages will not be assessed for any
Excusable or Compensable Delay, as set forth above.
(B) Milestones. Liquidated damages may also be separately assessed for failure to
meet milestones specified elsewhere in the Contract Documents.
(C) Setoff. City is entitled to deduct the amount of liquidated damages assessed
against any payments otherwise due to Contractor, including progress payments, Final
Payment, or unreleased retention. If there are insufficient Contract funds remaining to
cover the full amount of liquidated damages assessed, City is entitled to recover the
balance from Contractor or its performance bond surety.
(D) Occupancy or Use. Occupancy or use of the Project in whole or in part prior to
Final Completion does not constitute City's acceptance of the Project and will not operate
as a waiver of City's right to assess liquidated damages for Contractor's Non -Excusable
Delay in achieving Final Completion.
(E) Other Remedies. City's right to liquidated damages under this Section applies
only to damages arising from Contractor's Non -Excusable Delay or failure to complete
the Work within the Contract Time. City retains its right to pursue all other remedies
under the Contract for other types of damage, including damage to property or persons,
costs or diminution in value from defective materials or workmanship, costs to repair or
complete the Work, or other liability caused by Contractor.
Article 6 - Contract Modification
6.1 Contract Modification. Subject to the limited exception set forth in subsection (D)
below, any change in the Work or the Contract Documents, including the Contract Price
or Contract Time, will not be a valid and binding change to the Contract unless it is
formalized in a Change Order, including a "no -cost" Change Order or a unilateral Change
Order. Changes in the Work pursuant to this Article 6 will not operate to release, limit, or
abridge Contractor's warranty obligations pursuant to Article 11 or any obligations of
Contractor's bond sureties.
(A) City -Directed Changes. City may direct changes in the scope or sequence of
Work or the requirements of the Contract Documents, without invalidating the Contract.
Such changes may include Extra Work as set forth in subsection (C) below, or deletion or
modification of portions of the Work. Contractor must promptly comply with City -directed
changes in the Work in accordance with the original Contract Documents, even if
Contractor and City have not yet reached agreement as to adjustments to the Contract
Price or Contract Time for the change in the Work or for the Extra Work. Contractor is not
entitled to extra compensation for cost savings resulting from "value engineering"
pursuant to Public Contract Code § 7101, except to the extent authorized in advance by
City in writing, and subject to any applicable procedural requirements for submitting a
proposal for value engineering cost savings.
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6.2
(B) Disputes. In the event of a dispute over entitlement to or the amount of a
change in Contract Time or a change in Contract Price related to a City -directed change
in the Work, Contractor must perform the Work as directed and may not delay its Work or
cease Work pending resolution of the dispute, but must continue to comply with its duty
to diligently prosecute the performance and timely completion of the Work, including the
Work in dispute. Likewise, in the event that City and Contractor dispute whether a portion
or portions of the Work are already required by the Contract Documents or constitute
Extra Work, or otherwise dispute the interpretation of any portion(s) of the Contract
Documents, Contractor must perform the Work as directed and may not delay its Work or
cease Work pending resolution of the dispute, but must continue to comply with its duty
to diligently prosecute the performance and timely completion of the Work, including the
Work in dispute, as directed by City. If Contractor refuses to perform the Work in dispute,
City may, acting in its sole discretion, elect to delete the Work from the Contract and
reduce the Contract Price accordingly, and self -perform the Work or direct that the Work
be performed by others. Alternatively, City may elect to terminate the Contract for
convenience or for cause. Contractor's sole recourse for an unresolved dispute related to
changes in the Work or performance of any Extra Work is to comply with the dispute
resolution provisions set forth in Article 12, below.
(C) Extra Work. City may direct Contractor to perform Extra Work related to the
Project. Contractor must promptly perform any Extra Work as directed or authorized by
City in accordance with the original Contract Documents, even if Contractor and City
have not yet reached agreement on adjustments to the Contract Price or Contract Time
for such Extra Work. If Contractor believes it is necessary to perform Extra Work due to
changed conditions, Contractor must promptly notify the Engineer in writing, specifically
identifying the Extra Work and the reason(s) the Contractor believes it is Extra Work. This
notification requirement does not constitute a Change Order request pursuant to Section
6.2, below. Contractor must maintain detailed daily records that itemize the cost of each
element of Extra Work, and sufficiently distinguish the direct cost of the Extra Work from
the cost of other Work performed. For each day that Contractor performs Extra Work, or
Work that Contractor contends is Extra Work, Contractor must submit no later than the
following Working Day, a daily report of the Extra Work performed that day and the
related costs, together with copies of certified payroll, invoices, and other documentation
substantiating the costs ("Extra Work Report"). The Engineer will make any adjustments
to Contractor's Extra Work Report(s) based on the Engineer's records of the Work. When
an Extra Work Report(s) is agreed on and signed by both City and Contractor, the Extra
Work Report(s) will become the basis for payment under a duly authorized and signed
Change Order. Failure to submit the required documentation by close of business on the
next Working Day is deemed a full and complete waiver for any change in the Contract
Price or Contract Time for any Extra Work performed that day.
(D) Minor Changes and Rl=1s. Minor field changes, including RFI replies from City,
that do not affect the Contract Price or Contract Time and that are approved by the
Engineer acting within his or her scope of authority, do not require a Change Order. By
executing an RFI reply from City, Contractor agrees that it will perform the Work as
clarified therein, with no change to the Contract Price or Contract Time.
(E) Remedy for Non -Compliance. Contractor's failure to promptly comply with a
City -directed change is deemed a material breach of the Contract, and in addition to all
other remedies available to it, City may, at its sole discretion, hire another contractor or
use its own forces to complete the disputed Work at Contractor's sole expense, and may
deduct the cost from the Contract Price.
Contractor Change Order Requests. Contractor must submit a request or proposal for
a change in the Work, compensation for Extra Work, or a change in the Contract Price or
Contract Time as a written Change Order request or proposal.
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(A) Time for Submission. Any request for a change in the Contract Price or the
Contract Time must be submitted in writing to the Engineer within ten calendar days of
the date that Contractor first encounters the circumstances, information or conditions
giving rise to the Change Order request, even if the total amount of the requested change
in the Contract Price or impact on the Contract Time is not yet known at that time. If City
requests that Contractor propose the terms of a Change Order, unless otherwise
specified in City's request, Contractor must provide the Engineer with a written proposal
for the change in the Contract Price or Contract Time within five working days of
receiving City's request, in a form satisfactory to the Engineer.
(B) Required Contents. Any Change Order request or proposal submitted by
Contractor must include a complete breakdown of actual or estimated costs and credits,
and must itemize labor, materials, equipment, taxes, insurance, subcontract amounts,
and, if applicable, Extra Work Reports. Any estimated cost must be updated in writing as
soon as the actual amount is known.
(C) Required Documentation. All claimed costs must be fully documented, and any
related request for an extension of time or delay -related costs must be included at that
time and in compliance with the requirements of Article 5 of the General Conditions.
Upon request, Contractor must permit City to inspect its original and unaltered bidding
records, subcontract agreements, subcontract change orders, purchase orders, invoices,
or receipts associated with the claimed costs.
(D) Required Form. Contractor must use City's form(s) for submitting all Change
Order requests or proposals, unless otherwise specified by City.
(E) Certification. All Change Order requests must be signed by Contractor and
must include the following certification:
"The undersigned Contractor certifies under penalty of perjury that its
statements and representations in this Change Order request are true and
correct. Contractor warrants that this Change Order request is comprehensive
and complete as to the Work or changes referenced herein, and agrees that any
known or foreseeable costs, expenses, or time extension requests not included
herein, are deemed waived."
6.3 Adjustments to Contract Price. The amount of any increase or decrease in the
Contract Price will be determined based on one of the following methods listed below, in
the order listed with unit pricing taking precedence over the other methods. Markup
applies only to City -authorized time and material Work, and does not apply to any other
payments to Contractor. For Work items or components that are deleted in their entirety,
Contractor will only be entitled to compensation for those direct, actual, and documented
costs (including restocking fees), reasonably incurred before Contractor was notified of
the City's intent to delete the Work, with no markup for overhead, profit, or other indirect
costs.
(A) Unit Pricing. Amounts previously provided by Contractor in the form of unit
prices, either in a bid schedule or in a post -award schedule of values pursuant to Section
8. 1, Schedule of Values, will apply to determine the price for the affected Work, to the
extent applicable unit prices have been provided for that type of Work. No additional
markup for overhead, profit, or other indirect costs will be added to the calculation.
(B) Lump Sum. A mutually agreed upon, all-inclusive lump sum price for the
affected Work with no additional markup for overhead, profit, or other indirect costs.
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(C) Time and Materials. On a time and materials basis, if and only to the extent
compensation on a time and materials basis is expressly authorized by City in advance of
Contractor's performance of the Work and subject to any not -to -exceed limit. Time and
materials compensation for increased costs or Extra Work (but not decreased costs or
deleted Work), will include allowed markup for overhead, profit, and other indirect costs,
calculated as the total of the following sums, the cumulative total of which may not
exceed the maximum markup rate of 15%:
(1) All direct labor costs provided by the Contractor, excluding superintendence,
project management, or administrative costs, plus 15% markup;
(2) All direct material costs provided by the Contractor, including sales tax, plus
15% markup;
(3) All direct plant and equipment rental costs provided by the Contractor, plus
15% markup;
(4) All direct additional subcontract costs plus 10% markup for Work performed
by Subcontractors; and
(5) Increased bond or insurance premium costs computed at 1.5% of total of the
previous four sums.
6.4 Unilateral Change Order. If the parties dispute the terms of a proposed Change Order,
including disputes over the amount of compensation or extension of time that Contractor
has requested, the value of deleted or changed Work, what constitutes Extra Work, or
quantities used, City may elect to issue a unilateral Change Order, directing performance
of the Work, and authorizing a change in the Contract Price or Contract Time for the
adjustment to compensation or time that the City believes is merited. Contractor's sole
recourse to dispute the terms of a unilateral Change Order is to submit a timely Claim
pursuant to Article 12, below.
6.5 Non -Compliance Deemed Waiver. Contractor waives its entitlement to any increase in
the Contract Price or Contract Time if Contractor fails to fully comply with the provisions
of this Article. Contractor will not be paid for unauthorized Extra Work.
Article 7 - General Construction Provisions
7.1 Permits, Fees, Business License, and Taxes.
(A) Permits, Fees, and City Business License. Contractor must obtain and pay for
all permits, fees, or licenses required to perform the Work, including a City business
license. Contractor must cooperate with and provide notifications to all government
agencies with jurisdiction over the Project, as may be required. Contractor must provide
City with copies of all records of permits and permit applications, payment of required
fees, and any licenses required for the Work.
(B) Taxes. Contractor must pay for all taxes on labor, material and equipment,
except Federal Excise Tax to the extent that City is exempt from Federal Excise Tax.
7.2 Temporary Facilities. Contractor must provide, at Contractor's sole expense, any and
all temporary facilities for the Project, including an onsite staging area for materials and
equipment, a field office, sanitary facilities, utilities, storage, scaffolds, barricades,
walkways, and any other temporary structure required to safely perform the Work along
with any incidental utility services. The location of all temporary facilities must be
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approved by the City prior to installation. Temporary facilities must be safe and adequate
for the intended use and installed and maintained in accordance with Laws and the
Contract Documents. Contractor must fence and screen the Project site and, if
applicable, any separate Worksites, including the staging area, and its operation must
minimize inconvenience to neighboring properties. Additional provisions pertaining to
temporary facilities may be included in the Specifications or Special Conditions.
(A) Utilities. Contractor must install and maintain the power, water, sewer and all
other utilities required for the Project site, including the piping, wiring, internet and wifi
connections, and any related equipment necessary to maintain the temporary facilities.
(B) Removal and Repair. Contractor must promptly remove all such temporary
facilities when they are no longer needed or upon completion of the Work, whichever
comes first. Contractor must promptly repair any damage to City's property or to other
property caused by the installation, use, or removal of the temporary facilities, and must
promptly restore the property to its original or intended condition.
7.3 Noninterference and Site Management. Contractor must avoid interfering with City's
use of its property at or adjacent to the Project site, including use of roadways, entrances,
parking areas, walkways, and structures. Contractor must also minimize disruption of
access to private property in the Project vicinity. Contractor must coordinate with affected
property owners, tenants, and businesses, and maintain some vehicle and pedestrian
access to their residences or properties at all times. Temporary access ramps, fencing or
other measures must be provided as needed. Before blocking access to a private
driveway or parking lot, Contractor must provide effective notice to the affected parties at
least 48 hours in advance of the pending closure and allow them to remove vehicles.
Private driveways, residences and parking lots must have access to a roadway during
non -Work hours.
(A) Offsite Acquisition. Unless otherwise provided by City, Contractor must
acquire, use and dispose of, at its sole expense, any Worksites, licenses, easements,
and temporary facilities necessary to access and perform the Work.
(B) Offsite Staging Area and Field Office. If additional space beyond the Project
site is needed, such as for the staging area or the field office, Contractor may need to
make arrangements with the nearby property owner(s) to secure the space. Before using
or occupying any property owned by a third party, Contractor must provide City with a
copy of the necessary license agreement, easement, or other written authorization from
the property owner, together with a written release from the property owner holding City
harmless from any related liability, in a form acceptable to the City Attorney.
(C) Traffic Management. Contractor must provide traffic management and traffic
controls as specified in the Contract Documents, as required by Laws, and as otherwise
required to ensure public and worker safety, and to avoid interference with public or
private operations or the normal flow of vehicular, bicycle, or pedestrian traffic.
7.4 Signs. No signs may be displayed on or about City's property, except signage which is
required by Laws or by the Contract Documents, without City's prior written approval as
to size, design, and location.
7.5 Project Site and Nearby Property Protections.
(A) General. Contractor is responsible at all times, on a 24-hour basis and at its sole
cost, for protecting the Work, the Project site, and the materials and equipment to be
incorporated into the Work, until the City has accepted the Project, excluding any
exceptions to acceptance, if any. Except as specifically authorized by City, Contractor
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must confine its operations to the area of the Project site indicated in the Plans and
Specifications. Contractor is liable for any damage caused by Contractor or its
Subcontractors to the Work, City's property, the property of adjacent or nearby property
owners and the work or personal property of other contractors working for City, including
damage related to Contractor's failure to adequately secure the Work or any Worksite.
(1) Subject to City's approval, Contractor will provide and install safeguards to
protect the Work; any Worksite, including the Project site; City's real or personal
property and the real or personal property of adjacent or nearby property owners,
including plant and tree protections.
(2) City wastewater systems may not be interrupted. If the Work disrupts existing
sewer facilities, Contractor must immediately notify City and establish a plan,
subject to City's approval, to convey the sewage in closed conduits back into the
sanitary sewer system. Sewage must not be permitted to flow in trenches or be
covered by backfill.
(3) Contractor must remove with due care, and store at City's request, any
objects or material from the Project site that City will salvage or reuse at another
location.
(4) If directed by Engineer, Contractor must promptly repair or replace any
property damage, as specified by the Engineer. However, acting in its sole
discretion, City may elect to have the property damage remedied otherwise, and
may deduct the cost to repair or replace the damaged property from payment
otherwise due to Contractor.
(5) Contractor will not permit any structure or infrastructure to be loaded in a
manner that will damage or endanger the integrity of the structure or
infrastructure.
(B) Securing Project Site. After completion of Work each day, Contractor must
secure the Project site and, to the extent feasible, make the area reasonably accessible
to the public unless City approves otherwise. All excess materials and equipment not
protected by approved traffic control devices must be relocated to the staging area or
demobilized. Trench spoils must be hauled off the Project site daily and open excavations
must be protected with steel plates. Contractor and Subcontractor personnel may not
occupy or use the Project site for any purpose during non -Work hours, except as may be
provided in the Contract Documents or pursuant to prior written authorization from City.
(C) Unforeseen Conditions. If Contractor encounters facilities, utilities, or other
unknown conditions not shown on or reasonably inferable from the Plans or apparent
from inspection of the Project site, Contractor must immediately notify the City and
promptly submit a Request for Information to obtain further directions from the Engineer.
Contractor must avoid taking any action which could cause damage to the facilities or
utilities pending further direction from the Engineer. The Engineer's written response will
be final and binding on Contractor. If the Engineer's subsequent direction to Contractor
affects Contractor's cost or time to perform the Work, Contractor may submit a Change
Order request as set forth in Article 6 above
(D) Support; Adjacent Properties. Contractor must provide, install, and maintain
all shoring, bracing, and underpinning necessary to provide support to City's property and
adjacent properties and improvements thereon. Contractor must provide notifications to
adjacent property owners as may be required by Laws. See also, Section 7.15, Trenching
of Five Feet or More.
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7.6
7.7
(E) Notification of Property Damage. Contractor must immediately notify the City
of damage to any real or personal property resulting from Work on the Project. Contractor
must immediately provide a written report to City of any such property damage in excess
of $500 (based on estimated cost to repair or replace) within 24 hours of the occurrence.
The written report must include: (1) the location and nature of the damage, and the owner
of the property, if known; (2) the name and address of each employee of Contractor or
any Subcontractor involved in the damage; (3) a detailed description of the incident,
including precise location, time, and names and contact information for known witnesses;
and (4) a police or first responder report, if applicable. If Contractor is required to file an
accident report with another government agency, Contractor will provide a copy of the
report to City.
Materials and Equipment.
(A) General. Unless otherwise specified, all materials and equipment required for
the Work must be new, free from defects, and of the best grade for the intended purpose,
and furnished in sufficient quantities to ensure the proper and expeditious performance of
the Work. Contractor must employ measures to preserve the specified quality and fitness
of the materials and equipment. Unless otherwise specified, all materials and equipment
required for the Work are deemed to include all components required for complete
installation and intended operation and must be installed in accordance with the
manufacturer's recommendations or instructions. Contractor is responsible for all
shipping, handling, and storage costs associated with the materials and equipment
required for the Work. Contractor is responsible for providing security and protecting the
Work and all of the required materials, supplies, tools and equipment at Contractor's sole
cost until City has formally accepted the Project as set forth in Section 11.1, Final
Completion. Contractor will not assign, sell, mortgage, or hypothecate any materials or
equipment for the Project, or remove any materials or equipment that have been installed
or delivered.
(B) City -Provided. If the Work includes installation of materials or equipment to be
provided by City, Contractor is solely responsible for the proper examination, handling,
storage, and installation in accordance with the Contract Documents. Contractor must
notify City of any defects discovered in City -provided materials or equipment, sufficiently
in advance of scheduled use or installation to afford adequate time to procure
replacement materials or equipment as needed. Contractor is solely responsible for any
loss of or damage to such items which occurs while the items are in Contractor's custody
and control, the cost of which may be offset from the Contract Price and deducted from
any payment(s) due to Contractor.
(C) Intellectual Property Rights. Contractor must, at its sole expense, obtain any
authorization or license required for use of patented or copyright -protected materials,
equipment, devices or processes that are incorporated into the Work. Contractor's
indemnity obligations in Article 4 apply to any claimed violation of intellectual property
rights in violation of this provision.
Substitutions.
(A) "Or Equal." Any Specification designating a material, product, or thing
(collectively, "item") or service by specific brand or trade name, followed by the words "or
equal," is intended only to indicate the quality and type of item or service desired, and
Contractor may request use of any equal item or service. Unless otherwise stated in the
Specifications, any reference to a specific brand or trade name for an item or service that
is used solely for the purpose of describing the type of item or service desired, will be
deemed to be followed by the words "or equal." A substitution will only be approved if it is
a true "equal" item or service in every aspect of design, function, and quality, as
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7.8
determined by City, including dimensions, weight, maintenance requirements, durability,
fit with other elements, and schedule impacts.
(B) Request for Substitution. A post -award request for substitution of an item or
service must be submitted in writing to the Engineer for approval in advance, within the
applicable time period provided in the Contract Documents. If no time period is specified,
the substitution request may be submitted any time within 35 days after the date of award
of the Contract, or sufficiently in advance of the time needed to avoid delay of the Work,
whichever is earlier.
(C) Substantiation. Any available data substantiating the proposed substitute as an
equal item or service must be submitted with the written request for substitution.
Contractor's failure to timely provide all necessary substantiation, including any required
test results as soon as they are available, is grounds for rejection of the proposed
substitution, without further review.
(D) Burden of Proving Equality. Contractor has the burden of proving the equality
of the proposed substitution at Contractor's sole cost. City has sole discretion to
determine whether a proposed substitution is equal, and City's determination is final.
(E) Approval or Rejection. If the proposed substitution is approved, Contractor is
solely responsible for any additional costs or time associated with the substituted item or
service. If the proposed substitution is rejected, Contractor must, without delay, install the
item or use the service as specified by City.
(F) Contractor's Obligations. City's approval of a proposed substitution will not
relieve Contractor from any of its obligations under the Contract Documents. In the event
Contractor makes an unauthorized substitution, Contractor will be solely responsible for
all resulting cost impacts, including the cost of removal and replacement and the impact
to other design elements.
Testing and Inspection.
(A) General. All materials, equipment, and workmanship used in the Work are
subject to inspection and testing by City at all times and locations during construction
and/or fabrication and at any Worksite, including at shops and yards as well as at the
Project site. All manufacturers' application or installation instructions must be provided to
the Inspector at least ten days prior to the first such application or installation. Contractor
must, at all times, make the Work available for testing or inspection. Neither City's
inspection or testing of Work, nor its failure to do so, operate to waive or limit Contractor's
duty to complete the Work in accordance with the Contract Documents.
(B) Scheduling and Notification. Contractor must cooperate with City in
coordinating the inspections and testing. Contractor must submit samples of materials, at
Contractor's expense, and schedule all tests required by the Contract Documents in time
to avoid any delay to the progress of the Work. Contractor must notify the Engineer no
later than noon of the Working Day before any inspection or testing and must provide
timely notice to the other necessary parties as specified in the Contract Documents. If
Contractor schedules an inspection or test beyond regular Work hours, or on a Saturday,
Sunday, or recognized City holiday, Contractor must notify the Engineer at least two
Working Days in advance for approval. If approved, Contractor must reimburse City for
the cost of the overtime inspection or testing. Such costs, including the City's hourly costs
for required personnel, may be deducted from payments otherwise due to Contractor.
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(C) Responsibility for Costs. City will bear the initial cost of inspection and testing
to be performed by independent testing consultants retained by City, subject to the
following exceptions:
(1) Contractor will be responsible for the costs of any subsequent tests which
are required to substantiate compliance with the Contract Documents, and any
associated remediation costs.
(2) Contractor will be responsible for inspection costs, at City's hourly rates, for
inspection time lost because the Work is not ready or Contractor fails to appear
for a scheduled inspection.
(3) If any portion of the Work that is subject to inspection or testing is covered or
concealed by Contractor prior to the inspection or testing, Contractor will bear the
cost of making that portion of the Work available for the inspection or testing
required by the Contract Documents, and any associated repair or remediation
costs.
(4) Contractor is responsible for properly shoring all compaction test sites
deeper than five feet below grade, as required under Section 7.15 below.
(5) Any Work or material that is defective or fails to comply with the requirements
of the Contract Documents must be promptly repaired, removed, replaced, or
corrected by Contractor, at Contractor's sole expense, even if that Work or
material was previously inspected or included in a progress payment.
(D) Contractor's Obligations. Contractor is solely responsible for any delay
occasioned by remediation of defective or noncompliant Work or material. Inspection of
the Work does not in any way relieve Contractor of its obligations to perform the Work as
specified. Any Work done without the required inspection(s) will also be subject to
rejection by City.
(E) Distant Locations. If required off-site testing or inspection must be conducted
at a location more than 100 miles from the Project site, Contractor is solely responsible
for the additional travel costs required for testing and/or inspection at such locations.
(F) Final Inspection. The provisions of this Section 7.8 also apply to final inspection
under Article 11, Completion and Warranty Provisions.
7.9 Project Site Conditions and Maintenance. Contractor must at all times, on a 24-hour
basis and at its sole cost, maintain the Project site and staging and storage areas in
clean, neat, and sanitary condition and in compliance with all Laws pertaining to safety,
air quality, and dust control. Adequate toilets must be provided, and properly maintained
and serviced for all workers on the Project site, located in a suitably secluded area,
subject to City's prior approval. Contractor must also, on a daily basis and at its sole cost,
remove and properly dispose of the debris and waste materials from the Project site.
(A) Air Emissions Control. Contractor must not discharge smoke or other air
contaminants into the atmosphere in violation of any Laws.
(B) Dust and Debris. Contractor must minimize and confine dust and debris
resulting from the Work. Contractor must abate dust nuisance by cleaning, sweeping, and
immediately sprinkling with water excavated areas of dirt or other materials prone to
cause dust, and within one hour after the Engineer notifies Contractor that an airborne
nuisance exists. The Engineer may direct that Contractor provide an approved water -
spraying truck for this purpose. If water is used for dust control, Contractor will only use
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the minimum necessary. Contractor must take all necessary steps to keep waste water
out of streets, gutters, or storm drains. See Section 7.19, Environmental Control. If City
determines that the dust control is not adequate, City may have the work done by others
and deduct the cost from the Contract Price. Contractor will immediately remove any
excess excavated material from the Project site and any dirt deposited on public streets.
(C) Clean up. Before discontinuing Work in an area, Contractor must clean the area
and remove all debris and waste along with the construction equipment, tools, machinery,
and surplus materials.
(1) Except as otherwise specified, all excess Project materials, and the materials
removed from existing improvements on the Project site with no salvage value or
intended reuse by City, will be Contractor's property.
(2) Hauling trucks and other vehicles leaving the Project site must be cleaned of
exterior mud or dirt before traveling on City streets. Materials and loose debris
must be delivered and loaded to prevent dropping materials or debris. Contractor
must immediately remove spillage from hauling on any publicly traveled way.
Streets affected by Work on the Project must be kept clean by street sweeping.
(D) Disposal. Contractor must dispose of all Project debris and waste materials in a
safe and legal manner. Contractor may not burn or bury waste materials on the Project
site. Contractor will not allow any dirt, refuse, excavated material, surplus concrete or
mortar, or any associated washings, to be disposed of onto streets, into manholes or into
the storm drain system.
(E) Completion. At the completion of the Work, Contractor must remove from the
Project site all of its equipment, tools, surplus materials, waste materials and debris,
presenting a clean and neat appearance. Before demobilizing from the Project site,
Contractor must ensure that all surfaces are cleaned, sealed, waxed, or finished as
applicable, and that all marks, stains, paint splatters, and the like have been properly
removed from the completed Work and the surrounding areas. Contractor must ensure
that all parts of the construction are properly joined with the previously existing and
adjacent improvements and conditions. Contractor must provide all cutting, fitting and
patching needed to accomplish that requirement. Contractor must also repair or replace
all existing improvements that are damaged or removed during the Work, both on and off
the Project site, including curbs, sidewalks, driveways, fences, signs, utilities, street
surfaces and structures. Repairs and replacements must be at least equal to the
previously existing improvements, and the condition, finish and dimensions must match
the previously existing improvements. Contractor must restore to original condition all
property or items that are not designated for alteration under the Contract Documents
and leave each Worksite clean and ready for occupancy or use by City.
(F) Non -Compliance. If Contractor fails to comply with its maintenance and cleanup
obligations or any City clean up order, City may, acting in its sole discretion, elect to
suspend the Work until the condition(s) is corrected with no increase in the Contract Time
or Contract Price, or undertake appropriate cleanup measures without further notice and
deduct the cost from any amounts due or to become due to Contractor.
7.10 Instructions and Manuals. Contractor must provide to City three copies each of all
instructions and manuals required by the Contract Documents, unless otherwise
specified. These must be complete as to drawings, details, parts lists, performance data,
and other information that may be required for City to easily maintain and service the
materials and equipment installed for this Project.
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(A) Submittal Requirements. All manufacturers' application or installation
instructions must be provided to City at least ten days prior to the first such application.
The instructions and manuals, along with any required guarantees, must be delivered to
City for review.
(B) Training. Contractor or its Subcontractors must train City's personnel in the
operation and maintenance of any complex equipment or systems as a condition
precedent to Final Completion, if required in the Contract Documents.
7.11 As -built Drawings. Contractor and its Subcontractors must prepare and maintain at the
Project site a detailed, complete and accurate as -built set of the Plans which will be used
solely for the purpose of recording changes made in any portion of the original Plans in
order to create accurate record drawings at the end of the Project.
(A) Duty to Update. The as -built drawings must be updated as changes occur, on a
daily basis if necessary. City may withhold the estimated cost for City to have the as -built
drawings prepared from payments otherwise due to Contractor, until the as -built drawings
are brought up to date to the satisfaction of City. Actual locations to scale must be
identified on the as -built drawings for all runs of mechanical and electrical work, including
all site utilities installed underground, in walls, floors, or otherwise concealed. Deviations
from the original Plans must be shown in detail. The exact location of all main runs,
whether piping, conduit, ductwork or drain lines, must be shown by dimension and
elevation. The location of all buried pipelines, appurtenances, or other improvements
must be represented by coordinates and by the horizontal distance from visible above-
ground improvements.
(B) Final Completion. Contractor must verify that all changes in the Work are
depicted in the as -built drawings and must deliver the complete set of as -built drawings to
the Engineer for review and acceptance as a condition precedent to Final Completion
and Final Payment.
7.12 Existing Utilities.
(A) General. The Work may be performed in developed, urban areas with existing
utilities, both above and below ground, including utilities identified in the Contract
Documents or in other informational documents or records. Contractor must take due
care to locate identified or reasonably identifiable utilities before proceeding with
trenching, excavation, or any other activity that could damage or disrupt existing utilities.
This may include excavation with small equipment, potholing, or hand excavation, and, if
practical, using white paint or other suitable markings to delineate the area to be
excavated. Except as otherwise provided herein, Contractor will be responsible for costs
resulting from damage to identified or reasonably identifiable utilities due to Contractor's
negligence or failure to comply with the Contract Documents, including the requirements
in this Article 7.
(B) Unidentified Utilities. Pursuant to Government Code § 4215, if, during the
performance of the Work, Contractor discovers utility facilities not identified by City in the
Contract Documents, Contractor must immediately provide written notice to City and the
utility. City assumes responsibility for the timely removal, relocation, or protection of
existing main or trunkline utility facilities located on the Project site if those utilities are not
identified in the Contract Documents. Contractor will be compensated in accordance with
the provisions of the Contract Documents for the costs of locating, repairing damage not
due to Contractor's failure to exercise reasonable care, and removing or relocating utility
facilities not indicated in the Plans or Specifications with reasonable accuracy, and for
equipment on the Project necessarily idled during such work. Contractor will not be
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assessed liquidated damages for delay in completion of the Work, to the extent the delay
was caused by City's failure to provide for removal or relocation of the utility facilities.
7.13 Notice of Excavation. Contractor must comply with all applicable requirements in
Government Code §§ 4216 through 4216.5, which are incorporated by reference herein.
Government Code § 4216.2 requires that, except in an emergency, Contractor must
contact the appropriate regional notification center, or Underground Services Alert, at
least two working days, but not more than 14 calendar days, before starting any
excavation if the excavation will be conducted in an area that is known, or reasonably
should be known, to contain subsurface installations. Contractor may not begin
excavation until it has obtained and submitted to Engineer an inquiry identification
number from Underground Services Alert.
7.14 Trenching and Excavations of Four Feet or More. As required by Public Contract
Code § 7104, if the Work includes digging trenches or other excavations that extend
deeper than four feet below the surface, the provisions in this Section apply to the Work
and the Project.
(A) Duty to Notify. Contractor must promptly, and before the following conditions
are disturbed, provide written notice to City if Contractor finds any of the following
conditions:
(1) Material that Contractor believes may be a hazardous waste, as defined in §
25117 of the Health and Safety Code, that is required to be removed to a Class I,
Class II, or Class III disposal site in accordance with the provisions of existing
Laws;
(2) Subsurface or latent physical conditions at the Project site differing from
those indicated by information about the Project site made available to bidders
prior to the deadline for submitting bids; or
(3) Unknown physical conditions at the Project site of any unusual nature,
materially different from those ordinarily encountered and generally recognized
as inherent in work of the character required by the Contract Documents.
(B) City Investigation. City will promptly investigate the conditions and if City finds
that the conditions materially differ from those indicated, apparent, or reasonably inferred
from information about the Project site made available to bidders, or involve hazardous
waste, and cause a decrease or increase in Contractor's cost of, or the time required for,
performance of any part of the Work, City will issue a Change Order.
(C) Disputes. In the event that a dispute arises between City and Contractor
regarding any of the conditions specified in subsection (B) above, or the terms of a
Change Order issued by City, Contractor will not be excused from completing the Work
within the Contract Time, but must proceed with all Work to be performed under the
Contract. Contractor will retain any and all rights provided either by the Contract or by
Laws which pertain to the resolution of disputes between Contractor and City.
7.15 Trenching of Five Feet or More. As required by Labor Code § 6705, if the Contract
Price exceeds $25,000 and the Work includes the excavation of any trench or trenches of
five feet or more in depth, a detailed plan must be submitted to City for acceptance in
advance of the excavation. The detailed plan must show the design of shoring, bracing,
sloping, or other provisions to be made for worker protection from the hazard of caving
ground during the excavation. If the plan varies from the shoring system standards, it
must be prepared by a California registered civil or structural engineer. Use of a shoring,
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sloping, or protective system less effective than that required by the Construction Safety
Orders is prohibited.
7.16 New Utility Connections. Except as otherwise specified, City will pay connection
charges and meter costs for new permanent utilities required by the Contract Documents,
if any. Contractor must notify City sufficiently in advance of the time needed to request
service from each utility provider so that connections and services are initiated in
accordance with the Project schedule.
7.17 Lines and Grades. Contractor is required to use any benchmark provided by the
Engineer. Unless otherwise specified in the Contract Documents, Contractor must
provide all lines and grades required to execute the Work. Contractor must also provide,
preserve, and replace if necessary, all construction stakes required for the Project. All
stakes or marks must be set by a California licensed surveyor or a California registered
civil engineer. Contractor must notify the Engineer of any discrepancies found between
Contractor's staking and grading and information provided by the Contract Documents.
Upon completion, all Work must conform to the lines, elevations, and grades shown in
the Plans, including any changes directed by a Change Order.
7.18 Historic or Archeological Items.
(A) Contractor's Obligations. Contractor must ensure that all persons performing
Work at the Project site are required to immediately notify the Project Manager, upon
discovery of any potential historic or archeological items, including historic or prehistoric
ruins, a burial ground, archaeological or vertebrate paleontological site, including
fossilized footprints or other archeological, paleontological or historical feature on the
Project site (collectively, "Historic or Archeological Items").
(B) Discovery; Cessation of Work. Upon discovery of any potential Historic or
Archeological Items, Work must be stopped within an 85 -foot radius of the find and may
not resume until authorized in writing by City. If required by City, Contractor must assist in
protecting or recovering the Historic or Archeological Items, with any such assistance to
be compensated as Extra Work on a time and materials basis under Article 6, Contract
Modification. At City's discretion, a suspension of Work required due to discovery of
Historic or Archeological Items may be treated as Excusable Delay pursuant to Article 5,
or as a suspension for convenience under Article 13.
7.19 Environmental Control. Contractor must not pollute any drainage course or its tributary
inlets with fuels, oils, bitumens, acids, insecticides, herbicides or other harmful materials.
Contractor must prevent the release of any hazardous material or hazardous waste into
the soil or groundwater, and prevent the unlawful discharge of pollutants into City's storm
drain system and watercourses as required below. Contractor and its Subcontractors
must at all times in the performance of the Work comply with all Laws concerning
pollution of waterways.
(A) Stormwater Permit. Contractor must comply with all applicable conditions of
the State Water Resources Control Board National Pollutant Discharge Elimination
System General Permit for Waste Discharge Requirements for Discharges of Stormwater
Runoff Associated with Construction Activity ("Stormwater Permit").
(B) Contractor's Obligations. If required for the Work, a copy of the Stormwater
Permit is on file in City's principal administrative offices, and Contractor must comply with
it without adjustment of the Contract Price or the Contract Time. Contractor must timely
and completely submit required reports and monitoring information required by the
conditions of the Stormwater Permit. Contractor also must comply with all other Laws
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governing discharge of stormwater, including applicable municipal stormwater
management programs.
7.20 Noise Control. Contractor must comply with all applicable noise control Laws. Noise
control requirements apply to all equipment used for the Work or related to the Work,
including trucks, transit mixers or transient equipment that may or may not be owned by
Contractor.
7.21 Mined Materials. Pursuant to the Surface Mining and Reclamation Act of 1975, Public
Resources Code § 2710 et seq., any purchase of mined materials, such as construction
aggregate, sand, gravel, crushed stone, road base, fill materials, and any other mineral
materials must originate from a surface mining operation included on the AB 3098 List,
which is available online at:
ftp://ftp.consrv.ca.gov/pub/ornr/AB3098°/a20List/AB3908List.pdf.
Article 8 - Payment
8.1 Schedule of Values. Prior to submitting its first application for payment, Contractor must
prepare and submit to the Project Manager a schedule of values apportioned to the
various divisions and phases of the Work, including mobilization and demobilization. If a
Bid Schedule was submitted with Contractor's bid, the amounts in the schedule of values
must be consistent with the Bid Schedule. Each line item contained in the schedule of
values must be assigned a value such that the total of all items equals the Contract Price.
The items must be sufficiently detailed to enable accurate evaluation of the percentage of
completion claimed in each application for payment, and the assigned value consistent
with any itemized or unit pricing submitted with Contractor's bid.
(A) Measurements for Unit Price Work. Materials and items of Work to be paid for
on the basis of unit pricing will be measured according to the methods specified in the
Contract Documents.
(B) Deleted or Reduced Work. Contractor will not be compensated for Work that
City has deleted or reduced in scope, except for any labor, material or equipment costs
for such Work that Contractor reasonably incurred before Contractor learned that the
Work could be deleted or reduced. Contractor will only be compensated for those actual,
direct and documented costs incurred, and will not be entitled to any mark up for
overhead or lost profits.
8.2 Progress Payments. Following the last day of each month, or as otherwise required by
the Special Conditions or Specifications, Contractor will submit to the Project Manager a
monthly application for payment for Work performed during the preceding month based
on the estimated value of the Work performed during that preceding month.
(A) Application for Payment. Each application for payment must be itemized to
include labor, materials, and equipment incorporated into the Work, and materials and
equipment delivered to the Project site, as well as authorized and approved Change
Orders. Each payment application must be supported by the unit prices submitted with
Contractor's Bid Schedule and/or schedule of values and any other substantiating data
required by the Contract Documents.
(B) Payment of Undisputed Amounts. City will pay the undisputed amount due
within 30 days after Contractor has submitted a complete and accurate payment
application, subject to Public Contract Code § 20104.50. City will deduct a percentage
from each progress payment as retention, as set forth in Section 8.5, below, and may
withhold additional amounts as set forth in Section 8.3, below.
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8.3 Adjustment of Payment Application. City may adjust or reject the amount requested in
a payment application, including application for Final Payment, in whole or in part, if the
amount requested is disputed or unsubstantiated. Contractor will be notified in writing of
the basis for the modification to the amount requested. City may also deduct or withhold
from payment otherwise due based upon any of the circumstances and amounts listed
below. Sums withheld from payment otherwise due will be released when the basis for
that withholding has been remedied and no longer exists.
(A) For Contractor's unexcused failure to perform the Work as required by the
Contract Documents, including correction or completion of punch list items, City may
withhold or deduct an amount based on the City's estimated cost to correct or complete
the Work.
(B) For loss or damage caused by Contractor or its Subcontractors arising out of or
relating to performance of the Work or any failure to protect the Project site, City may
deduct an amount based on the estimated cost to repair or replace.
(C) For Contractor's failure to pay its Subcontractors and suppliers when payment is
due, City may withhold an amount equal to the total of past due payments and may opt to
pay that amount separately via joint check pursuant to Section 8.6(B), Joint Checks.
(D) For Contractor's failure to timely correct rejected, nonconforming, or defective
Work, City may withhold or deduct an amount based on the City's estimated cost to
correct or complete the Work.
(E) For any unreleased stop notice, City may withhold 125% of the amount claimed.
(F) For Contractor's failure to submit any required schedule or schedule update in
the manner and within the time specified in the Contract Documents, City may withhold
an amount equal to five percent of the total amount requested until Contractor complies
with its schedule submittal obligations.
(G) For Contractor's failure to maintain or submit as -built documents in the manner
and within the time specified in the Contract Documents, City may withhold or deduct an
amount based on the City's cost to prepare the as-builts.
(H) For Work performed without Shop Drawings that have been accepted by City,
when accepted Shop Drawings are required before proceeding with the Work, City may
deduct an amount based on the estimated cost to correct unsatisfactory Work or
diminution in value.
(1) For fines, payments, or penalties assessed under the Labor Code, City may
deduct from payments due to Contractor as required by Laws and as directed by the
Division of Labor Standards Enforcement.
(J) For any other costs or charges that may be withheld or deducted from payments
to Contractor, as provided in the Contract Documents, including liquidated damages, City
may withhold or deduct such amounts from payment otherwise due to Contractor.
8.4 Early Occupancy. Neither City's payment of progress payments nor its partial or full use
or occupancy of the Project constitutes acceptance of any part of the Work.
8.5 Retention. City will retain five percent of the full amount due on each progress payment
(i.e., the amount due before any withholding or deductions pursuant to Section 8.3,
Adjustment of Payment Application), or the percentage stated in the Notice Inviting Bids,
whichever is greater, as retention to ensure full and satisfactory performance of the Work.
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Contractor is not entitled to any reduction in the rate of withholding at any time, nor to
release of any retention before 35 days following City's acceptance of the Project.
(A) Substitution of Securities. As provided by Public Contract Code § 22300,
Contractor may request in writing that it be allowed, at its sole expense, to substitute
securities for the retention withheld by City. Any escrow agreement entered into pursuant
to this provision must fully comply with Public Contract Code § 22300 and will be subject
to approval as to form by City's legal counsel. If City exercises its right to draw upon such
securities in the event of default pursuant to section (7) of the statutory Escrow
Agreement for Security Deposits in Lieu of Retention, pursuant to subdivision (f) of Public
Contract Code § 22300 ("Escrow Agreement"), and if Contractor disputes that it is in
default, its sole remedy is to comply with the dispute resolution procedures in Article 12
and the provisions therein. It is agreed that for purposes of this paragraph, an event of
default includes City's rights pursuant to these Contract Documents to withhold or deduct
sums from retention, including withholding or deduction for liquidated damages,
incomplete or defective Work, stop payment notices, or backcharges. It is further agreed
that if any individual authorized to give or receive written notice on behalf of a party
pursuant to section (10) of the Escrow Agreement are unavailable to give or receive
notice on behalf of that party due to separation from employment, retirement, death, or
other circumstances, the successor or delegee of the named individual is deemed to be
the individual authorized to give or receive notice pursuant to section (10) of the Escrow
Agreement.
(B) Release of Undisputed Retention. All undisputed retention, less any amounts
that may be assessed as liquidated damages, retained for stop notices, or otherwise
withheld pursuant to Section 8.3, Adjustment of Payment Application, will be released as
Final Payment to Contractor no sooner than 35 days following recordation of the notice of
completion, and no later than 60 days following acceptance of the Project by City's
governing body or authorized designee pursuant to Section 11.1(C), Acceptance, or, if
the Project has not been accepted, no later than 60 days after the Project is otherwise
considered complete pursuant to Public Contract Code § 7107(c).
8.6 Payment to Subcontractors and Suppliers. Each month, Contractor must promptly
pay each Subcontractor and supplier the value of the portion of labor, materials, and
equipment incorporated into the Work or delivered to the Project site by the
Subcontractor or supplier during the preceding month. Such payments must be made in
accordance with the requirements of Laws pertaining to such payments, and those of the
Contract Documents and applicable subcontract or supplier contract.
(A) Withholding for Stop Notice. Pursuant to Civil Code § 9358, City will withhold
125% of the amount claimed by an unreleased stop notice, a portion of which may be
retained by City for the costs incurred in handling the stop notice claim, including
attorneys' fees and costs, as authorized by law.
(B) Joint Checks. City reserves the right, acting in its sole discretion, to issue joint
checks made payable to Contractor and a Subcontractor or supplier, if City determines
this is necessary to ensure fair and timely payment for a Subcontractor or supplier who
has provided services or goods for the Project. As a condition to release of payment by a
joint check, the joint check payees may be required to execute a joint check agreement in
a form provided or approved by the City Attorney's Office. The joint check payees will be
jointly and severally responsible for the allocation and disbursement of funds paid by joint
check. Payment by joint check will not be construed to create a contractual relationship
between City and a Subcontractor or supplier of any tier beyond the scope of the joint
check agreement.
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8.7 Final Payment. Contractor's application for Final Payment must comply with the
requirements for submitting an application for a progress payment as stated in Section
8.2, above. Corrections to previous progress payments, including adjustments to
estimated quantities for unit priced items, may be included in the Final Payment. If
Contractor fails to submit a timely application for Final Payment, City reserves the right to
unilaterally process and issue Final Payment without an application from Contractor in
order to close out the Project. For the purposes of determining the deadline for Claim
submission pursuant to Article 12, the date of Final Payment is deemed to be the date
that City acts to release undisputed retention as final payment to Contractor, or otherwise
provides written notice to Contractor of Final Payment or that no undisputed funds remain
available for Final Payment due to offsetting withholdings or deductions pursuant to
Section 8.3, Adjustment of Payment Application. If the amount due from Contractor to
City exceeds the amount of Final Payment, City retains the right to recover the balance
from Contractor or its sureties.
8.8 Release of Claims. City may, at any time, require that payment of the undisputed
portion of any progress payment or Final Payment be contingent upon Contractor
furnishing City with a written waiver and release of all claims against City arising from or
related to the portion of Work covered by those undisputed amounts subject to the
limitations of Public Contract Code § 7100. Any disputed amounts may be specifically
excluded from the release.
8.9 Warranty of Title. Contractor warrants that title to all work, materials, or equipment
incorporated into the Work and included in a request for payment will pass over to City
free of any claims, liens, or encumbrances upon payment to Contractor.
Article 9 - Labor Provisions
9.1 Discrimination Prohibited. Discrimination against any prospective or present employee
engaged in the Work on grounds of race, color, ancestry, national origin, ethnicity,
religion, sex, sexual orientation, age, disability, or marital status is strictly prohibited.
Contractor and its Subcontractors are required to comply with all applicable Laws
prohibiting discrimination, including the California Fair Employment and Housing Act
(Govt. Code § 12900 et seq.), Government Code § 11135, and Labor Code §§ 1735,
1777.5, 1777.6, and 3077.5.
9.2 Labor Code Requirements.
(A) Eight Hour Day. Pursuant to Labor Code § 1810, eight hours of labor constitute
a legal day's work under this Contract.
(B) Penalty. Pursuant to Labor Code § 1813, Contractor will forfeit to City as a
penalty, the sum of $25.00 for each day during which a worker employed by Contractor
or any Subcontractor is required or permitted to work more than eight hours in any one
calendar day or more than 40 hours per calendar week, except if such workers are paid
overtime under Labor Code § 1815.
(C) Apprentices. Contractor is responsible for compliance with the requirements
governing employment and payment of apprentices, as set forth in Labor Code § 1777.5,
which is fully incorporated by reference.
(D) Notices. Pursuant to Labor Code § 1771.4, Contractor is required to post all job
site notices prescribed by Laws.
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9.3 Prevailing Wages. Each worker performing Work under this Contract that is covered
under Labor Code §§ 1720 or 1720.9, including cleanup at the Project site, must be paid
at a rate not less than the prevailing wage as defined in §§ 1771 and 1774 of the Labor
Code. The prevailing wage rates are on file with the City and available online at
hft :Ilwww.dir.ca. ovldlsr. Contractor must post a copy of the applicable prevailing rates
at the Project site.
(A) Penalties. Pursuant to Labor Code § 1775, Contractor and any Subcontractor
will forfeit to City as a penalty up to $200.00 for each calendar day, or portion thereof, for
each worker paid less than the applicable prevailing wage rate. Contractor must also pay
each worker the difference between the applicable prevailing wage rate and the amount
actually paid to that worker.
(B) Federal Requirements. If this Project is subject to federal prevailing wage
requirements in addition to California prevailing wage requirements, Contractor and its
Subcontractors are required to pay the higher of the currently applicable state or federal
prevailing wage rates.
9.4 Payroll Records. Contractor must comply with the provisions of Labor Code §§ 1771.4,
1776, and 1812 and all implementing regulations, which are fully incorporated by this
reference, including requirements for monthly electronic submission of payroll records to
the DIR.
(A) Contractor and Subcontractor Obligations. Contractor and each
Subcontractor must keep accurate payroll records, showing the name, address, social
security number, work classification, straight time and overtime hours worked each day
and week, and the actual per diem wages paid to each journeyman, apprentice, worker,
or other employee employed in connection with the Work. Each payroll record must
contain or be verified by a written declaration that it is made under penalty of perjury,
stating both of the following:
(1) The information contained in the payroll record is true and correct; and
(2) Contractor or the Subcontractor has complied with the requirements of Labor
Code §§ 1771, 1811, and 1815 for any Work performed by its employees on the
Project.
(B) Certified Record. A certified copy of an employee's payroll record must be
made available for inspection or furnished to the employee or his or her authorized
representative on request, to City, to the Division of Labor Standards Enforcement, to the
Division of Apprenticeship Standards of the DIR, and as further required by the Labor
Code.
(C) Enforcement. Upon notice of noncompliance with Labor Code § 1776,
Contractor or Subcontractor has ten days in which to comply with the requirements of this
section. If Contractor or Subcontractor fails to do so within the ten-day period, Contractor
or Subcontractor will forfeit a penalty of $100.00 per day, or portion thereof, for each
worker for whom compliance is required, until strict compliance is achieved. Upon
request by the Division of Apprenticeship Standards, or the Division of Labor Standards
Enforcement, these penalties will be withheld from payments then due to Contractor.
9.5 Labor Compliance. Pursuant to Labor Code § 1771.4, the Contract for this Project is
subject to compliance monitoring and enforcement by the DIR.
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Article 10 - Safety Provisions
10.1 Safety Precautions and Programs. Contractor and its Subcontractors are fully
responsible for safety precautions and programs, and for the safety of persons and
property in the performance of the Work. Contractor and its Subcontractors must at all
times comply with all applicable health and safety Laws and seek to avoid injury, loss, or
damage to persons or property by taking reasonable steps to protect its employees and
other persons at any Worksite, materials and equipment stored on or off site, and
property at or adjacent to any Worksite.
(A) Reporting Requirements. Contractor must immediately notify the City of any
death, serious injury or illness resulting from Work on the Project. Contractor must
immediately provide a written report to City of each recordable accident or injury
occurring at any Worksite within 24 hours of the occurrence. The written report must
include: (1) the name and address of the injured or deceased person; (2) the name and
address of each employee of Contractor or of any Subcontractor involved in the incident;
(3) a detailed description of the incident, including precise location, time, and names and
contact information for known witnesses; and (4) a police or first responder report, if
applicable. If Contractor is required to file an accident report with a government agency,
Contractor will provide a copy of the report to City.
(B) Legal Compliance. Contractor's safety program must comply with the
applicable legal and regulatory requirements. Contractor must provide City with copies of
all notices required by Laws.
(C) Contractor's Obligations. Any damage or loss caused by Contractor arising
from the Work which is not insured under property insurance must be promptly remedied
by Contractor.
(D) Remedies. If City determines, in its sole discretion, that any part of the Work or
Project site is unsafe, City may, without assuming responsibility for Contractor's safety
program, require Contractor or its Subcontractor to cease performance of the Work or to
take corrective measures to City's satisfaction. If Contractor fails to promptly take the
required corrective measures, City may perform them and deduct the cost from the
Contract Price. Contractor agrees it is not entitled to submit a Claim for damages, for an
increase in Contract Price, or for a change in Contract Time based on Contractor's
compliance with City's request for corrective measures pursuant to this provision.
10.2 Hazardous Materials. Unless otherwise specified in the Contract Documents, this
Contract does not include the removal, handling, or disturbance of any asbestos or other
Hazardous Materials. If Contractor encounters materials on the Project site that
Contractor reasonably believes to be asbestos or other Hazardous Materials, and the
asbestos or other Hazardous Materials have not been rendered harmless, Contractor
may continue Work in unaffected areas reasonably believed to be safe, but must
immediately cease work on the area affected and report the condition to City. No
asbestos, asbestos -containing products or other Hazardous Materials may be used in
performance of the Work.
10.3 Material Safety. Contractor is solely responsible for complying with § 5194 of Title 8 of
the California Code of Regulations, including by providing information to Contractor's
employees about any hazardous chemicals to which they may be exposed in the course
of the Work. A hazard communication program and other forms of warning and training
about such exposure must be used. Contractor must also maintain Safety Data Sheets
("SDS") at the Project site, as required by Laws, for materials or substances used or
consumed in the performance of the Work. The SDS will be accessible and available to
Contractor's employees, Subcontractors, and City.
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(A) Contractor Obligations. Contractor is solely responsible for the proper
delivery, handling, use, storage, removal, and disposal of all materials brought to the
Project site and/or used in the performance of the Work. Contractor must notify the
Engineer if a specified product or material cannot be used safely.
(B) Labeling. Contractor must ensure proper labeling on any material brought onto
the Project site so that any persons working with or in the vicinity of the material may be
informed as to the identity of the material, any potential hazards, and requirements for
proper handling, protections, and disposal.
10.4 Hazardous Condition. Contractor is solely responsible for determining whether a
hazardous condition exists or is created during the course of the Work, involving a risk of
bodily harm to any person or risk of damage to any property. If a hazardous condition
exists or is created, Contractor must take all precautions necessary to address the
condition and ensure that the Work progresses safely under the circumstances.
Hazardous conditions may result from, but are not limited to, use of specified materials or
equipment, the Work location, the Project site condition, the method of construction, or
the way any Work must be performed.
10.5 Emergencies. In an emergency affecting the safety or protection of persons, Work, or
property at or adjacent to any Worksite, Contractor must take reasonable and prompt
actions to prevent damage, injury, or loss, without prior authorization from the City if,
under the circumstances, there is inadequate time to seek prior authorization from the
City.
Article 11 - Completion and Warranty Provisions
11.1 Final Completion.
(A) Final Inspection and Punch List. When the Work required by this Contract is
fully performed, Contractor must provide written notification to City requesting final
inspection. The Engineer will schedule the date and time for final inspection, which must
include Contractor's primary representative for this Project and its superintendent. Based
on that inspection, City will prepare a punch list of any items that are incomplete, missing,
defective, incorrectly installed, or otherwise not compliant with the Contract Documents.
The punch list to Contractor will specify the time by which all of the punch list items must
be completed or corrected. The punch list may include City's estimated cost to complete
each punch list item if Contractor fails to do so within the specified time. The omission of
any non-compliant item from a punch list will not relieve Contractor from fulfilling all
requirements of the Contract Documents. Contractor's failure to complete any punch list
item within the time specified in the punch list will not waive or abridge its warranty
obligations for any such items that must be completed by the City or by a third party
retained by the City due to Contractor's failure to timely complete any such outstanding
item.
(B) Requirements for Final Completion. Final Completion will be achieved upon
completion or correction of all punch list items, as verified by City's further inspection, and
upon satisfaction of all other Contract requirements, including any commissioning
required under the Contract Documents and submission of all final submittals, including
instructions and manuals as required under Section 7.10, and complete, final as -built
drawings as required under Section 7.11, all to City's satisfaction.
(C) Acceptance. The Project will be considered accepted upon City Council action
during a public meeting to accept the Project, unless the Engineer is authorized to accept
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11.2
the Project, in which case the Project will be considered accepted upon the date of the
Engineer's issuance of a written notice of acceptance. In order to avoid delay of Project
close out, the City may elect, acting in its sole discretion, to accept the Project as
complete subject to exceptions for punch list items that are not completed within the time
specified in the punch list.
(D) Final Payment and Release of Retention. Final Payment and release of
retention, less any sums withheld pursuant to the provisions of the Contract Documents,
will not be made sooner than 35 days after recordation of the notice of completion. If
Contractor fails to complete all of the punch list items within the specified time, City may
withhold up to 150% of City's estimated cost to complete each of the remaining items
from Final Payment and may use the withheld retention to pay for the costs to self -
perform the outstanding items or to retain a third party to complete any such outstanding
punch list item.
Warranty.
(A) General. Contractor warrants that all materials and equipment will be new
unless otherwise specified, of good quality, in conformance with the Contract Documents,
and free from defective workmanship and materials. Contractor further warrants that the
Work will be free from material defects not intrinsic in the design or materials required in
the Contract Documents. Contractor warrants that materials or items incorporated into
the Work comply with the requirements and standards in the Contract Documents,
including compliance with Laws, and that any,Hazardous Materials encountered or used
were handled as required by Laws. At City's request, Contractor must furnish satisfactory
evidence of the quality and type of materials and equipment furnished. Contractor's
warranty does not extend to damage caused by normal wear and tear, or improper use or
maintenance.
(B) Warranty Period. Contractor's warranty must guarantee its Work for a period of
one year from the date of Project acceptance (the "Warranty Period"), except when a
longer guarantee is provided by a supplier or manufacturer or is required by the
Specifications or Special Conditions. Contractor must obtain from its Subcontractors,
suppliers and manufacturers any special or extended warranties required by the Contract
Documents.
(C) Warranty Documents. As a condition precedent to Final Completion,
Contractor must supply City with all warranty and guarantee documents relevant to
equipment and materials incorporated into the Work and guaranteed by their suppliers or
manufacturers.
(D) Subcontractors. The warranty obligations in the Contract Documents apply to
Work performed by Contractor and its Subcontractors, and Contractor agrees to be co -
guarantor of such Work.
(E) Contractor's Obligations. Upon written notice from City to Contractor of any
defect in the Work discovered during the Warranty Period, Contractor or its responsible
Subcontractor must promptly correct the defective Work at its own cost. Contractor's
obligation to correct defects discovered during the Warranty Period will continue past the
expiration of the Warranty Period as to any defects in Work for which Contractor was
notified prior to expiration of the Warranty Period. Work performed during the Warranty
Period ("Warranty Work") will be subject to the warranty provisions in this Section 11.2 for
a one-year period that begins upon completion of such Warranty Work to City's
satisfaction.
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(F) City's Remedies. If Contractor or its responsible Subcontractor fails to correct
defective Work within ten days following notice by City, or sooner if required by the
circumstances, City may correct the defects to conform with the Contract Documents at
Contractor's sole expense. Contractor must reimburse City for its costs in accordance
with subsection (H), below.
(G) Emergency Repairs. In cases of emergency where any delay in correcting
defective Work could cause harm, loss or damage, City may immediately correct the
defects to conform with the Contract Documents at Contractor's sole expense. Contractor
or its surety must reimburse City for its costs in accordance with subsection (H), below.
(H) Reimbursement. Contractor must reimburse City for its costs to repair under
subsections (F) or (G), above, within 30 days following City's submission of a demand for
payment pursuant to this provision. If City is required to initiate legal action to compel
Contractor's compliance with this provision, and City is the prevailing party in such action,
Contractor and its surety are solely responsible for all of City's attorney's fees and legal
costs expended to enforce Contractor's warranty obligations herein, in addition to any
and all costs City incurs to correct the defective Work.
11.3 Use Prior to Final Completion. City reserves the right to occupy or make use of the
Project, or any portions of the Project, prior to Final Completion if City has determined
that the Project or portion of it is in a condition suitable for the proposed occupation or
use, and that it is in its best interest to occupy or make use of the Project, or any portions
of it, prior to Final Completion.
(A) Non -Waiver. Occupation or use of the Project, in whole or in part, prior to Final
Completion will not operate as acceptance of the Work or any portion of it, nor will it
operate as a waiver of any of City's rights or Contractor's duties pursuant to these
Contract Documents, and will not affect nor bear on the determination of the time of
substantial completion with respect to any statute of repose pertaining to the time for
filing an action for construction defect.
(B) City's Responsibility. City will be responsible for the cost of maintenance and
repairs due to normal wear and tear with respect to those portions of the Project that are
being occupied or used before Final Completion. The Contract Price or the Contract Time
may be adjusted pursuant to the applicable provisions of these Contract Documents if,
and only to the extent that, any occupation or use under this Section actually adds to
Contractor's cost or time to complete the Work within the Contract Time.
11.4 Substantial Completion. For purposes of determining "substantial completion" with
respect to any statute of repose pertaining to the time for filing an action for construction
defect, "substantial completion" is deemed to mean the last date that Contractor or any
Subcontractor performs Work on the Project prior to City acceptance of the Project,
except for warranty work performed under this Article.
Article 12 - Dispute Resolution
12.1 Claims. This Article applies to and provides the exclusive procedures for any Claim
arising from or related to the Contract or performance of the Work.
(A) Definition. "Claim" means a separate demand by Contractor, submitted in
writing by registered or certified mail with return receipt requested, for a change in the
Contract Time, including a time extension or relief from liquidated damages, or a change
in the Contract Price, when the demand has previously been submitted to City in
accordance with the requirements of the Contract Documents, and which has been
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12.2
rejected or disputed by City, in whole or in part. A Claim may also include that portion of a
unilateral Change Order that is disputed by the Contractor.
(B) Limitations. A Claim may only include the portion of a previously rejected
demand that remains in dispute between Contractor and City. With the exception of any
dispute regarding the amount of money actually paid to Contractor as Final Payment,
Contractor is not entitled to submit a Claim demanding a change in the Contract Time or
the Contract Price, which has not previously been submitted to City in full compliance
with Article 5 and Article 6, and subsequently rejected in whole or in part by City.
(C) Scope of Article. This Article is intended to provide the exclusive procedures for
submission and resolution of Claims of any amount and applies in addition to the
provisions of Public Contract Code § 9204 and § 20104 et seq., which are incorporated
by reference herein.
(D) No Work Delay. Notwithstanding the submission of a Claim or any other dispute
between the parties related to the Project or the Contract Documents, Contractor must
perform the Work and may not delay or cease Work pending resolution of a Claim or
other dispute, but must continue to diligently prosecute the performance and timely
completion of the Work, including the Work pertaining to the Claim or other dispute.
(E) Informal Resolution. Contractor will make a good faith effort to informally
resolve a dispute before initiating a Claim, preferably by face-to-face meeting between
authorized representatives of Contractor and City.
Claims Submission. The following requirements apply to any Claim subject to this
Article:
(A) Substantiation. The Claim must be submitted to City in writing, clearly
identified as a "Claim" submitted pursuant to this Article 12 and must include all of the
documents necessary to substantiate the Claim including the Change Order request that
was rejected in whole or in part, and a copy of City's written rejection that is in dispute.
The Claim must clearly identify and describe the dispute, including relevant references to
applicable portions of the Contract Documents, and a chronology of relevant events. Any
Claim for additional payment must include a complete, itemized breakdown of all known
or estimated labor, materials, taxes, insurance, and subcontract, or other costs.
Substantiating documentation such as payroll records, receipts, invoices, or the like, must
be submitted in support of each component of claimed cost. Any Claim for an extension
of time or delay costs must be substantiated with a schedule analysis and narrative
depicting and explaining claimed time impacts.
(B) Claim Format and Content. A Claim must be submitted in the following format:
(1) Provide a cover letter, specifically identifying the submission as a "Claim"
submitted under this Article 12 and specifying the requested remedy (e.g.,
amount of proposed change to Contract Price and/or change to Contract Time).
(2) Provide a summary of each Claim, including underlying facts and the basis
for entitlement, and identify each specific demand at issue, including the specific
Change Order request (by number and submittal date), and the date of City's
rejection of that demand, in whole or in part.
(3) Provide a detailed explanation of each issue in dispute. For multiple issues
included within a single Claim or for multiple Claims submitted concurrently,
separately number and identify each individual issue or Claim, and include the
following for each separate issue or Claim:
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(C)
a. A succinct statement of the matter in dispute, including Contractor's
position and the basis for that position;
b. Identify and attach all documents that substantiate the Claim,
including relevant provisions of the Contract Documents, RFls,
calculations, and schedule analysis (see subsection (A), Substantiation,
above);
c. A chronology of relevant events; and
d. Analysis and basis for claimed changes to Contract Price, Contract
Time, or any other remedy requested.
(4) Provide a summary of issues and corresponding claimed damages. If, by the
time of the Claim submission deadline (below), the precise amount of the
requested change in the Contract Price or Contract Time is not yet known,
Contractor must provide a good faith estimate, including the basis for that
estimate, and must identify the date by which it is anticipated that the Claim will
be updated to provide final amounts.
(5) Include the following certification, executed by Contractor's authorized
representative:
"The undersigned Contractor certifies under penalty of perjury that its statements
and representations in this Claim submittal are true and correct. Contractor
warrants that this Claim submittal is comprehensive and complete as to the
matters in dispute, and agrees that any costs, expenses, or delay not included
herein are deemed waived."
Submission Deadlines,
(1) A Claim disputing rejection of a request for a change in the Contract Time or
Contract Price must be submitted within 15 days following the date that City
notified Contractor in writing that a request for a change in the Contract Time or
Contract Price, duly submitted in compliance with Article 5 and Article 6, has
been rejected in whole or in part. A Claim disputing the terms of a unilateral
Change Order must be submitted within 15 days following the date of issuance of
the unilateral Change Order. These Claim deadlines apply even if Contractor
cannot yet quantify the total amount of any requested change in the Contract
Time or Contract Price. If the Contractor cannot quantify those amounts, it must
submit an estimate of the amounts claimed pending final determination of the
requested remedy by Contractor.
(2) With the exception of any dispute regarding the amount of Final Payment,
any Claim must be filed on or before the date of Final Payment or will be deemed
waived.
(3) A Claim disputing the amount of Final Payment must be submitted within 15
days of the effective date of Final Payment, under Section 8.7, Final Payment.
(4) Strict compliance with these Claim submission deadlines is necessary to
ensure that any dispute may be mitigated as soon as possible, and to facilitate
cost-efficient administration of the Project. Any Claim that is not submitted
within the specified deadlines will be deemed waived by Contractor.
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12.3 City's Response. City will respond within 45 days of receipt of the Claim with a written
statement identifying which portion(s) of the Claim are disputed, unless the 45 -day period
is extended by mutual agreement of City and Contractor or as otherwise allowed under
Public Contract Code § 9204. However, if City determines that the Claim is not
adequately substantiated pursuant to Section 12.2(A), Substantiation, City may first
request in writing, within 30 days of receipt of the Claim, any additional documentation
supporting the Claim or relating to defenses to the Claim that City may have against the
Claim.
(A) Additional Information. If additional information is thereafter required, it may be
requested and provided upon mutual agreement of City and Contractor. If Contractor's
Claim is based on estimated amounts, Contractor has a continuing duty to update its
Claim as soon as possible with information on actual amounts in order to facilitate prompt
and fair resolution of the Claim.
(B) Non -Waiver. Any failure by City to respond within the times specified above will
not be construed as acceptance of the Claim, in whole or in part, or as a waiver of any
provision of these Contract Documents.
12.4 Meet and Confer. If Contractor disputes City's written response, or City fails to respond
within the specified time, within 15 days of receipt of City's response or within 15 days of
City's failure to respond within the applicable 45 -day time period under Section 12.3,
respectively, Contractor may notify City of the dispute in writing sent by registered or
certified mail, return receipt requested, and demand an informal conference to meet and
confer for settlement of the issues in dispute. If Contractor fails to notify City of the
dispute and demand an informal conference to meet and confer in writing within the
specified time, Contractor's Claim will be deemed waived.
(A) Schedule Meet and Confer. Upon receipt of the demand to meet and confer,
City will schedule the meet and confer conference to be held within 30 days, or later if
needed to ensure the mutual availability of each of the individuals that each party
requires to represent its interests at the meet and confer conference.
(B) Location for Meet and Confer. The meet and confer conference will be
scheduled at a location at or near City's principal office.
(C) Written Statement After Meet and Confer. Within ten working days after the
meet and confer has concluded, City will issue a written statement identifying which
portion(s) of the Claim remain in dispute, if any.
(D) Submission to Mediation. If the Claim or any portion remains in dispute
following the meet and confer conference, within ten working days after the City issues
the written statement identifying any portion(s) of the Claim remaining in dispute, the
Contractor may identify in writing disputed portion(s) of the Claim, which will be submitted
for mediation, as set forth below.
12.5 Mediation and Government Code Claims.
(A) Mediation. Within ten working days after the City issues the written statement
identifying any portion(s) of the Claim remaining in dispute following the meet and confer,
City and Contractor will mutually agree to a mediator, as provided under Public Contract
Code § 9204. Mediation will be scheduled to ensure the mutual availability of the selected
mediator and all of the individuals that each party requires to represent its interests. If
there are multiple Claims in dispute, the parties may agree to schedule the mediation to
address all outstanding Claims at the same time. The parties will share the costs of the
mediator and mediation fees equally, but each party is otherwise solely and separately
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responsible for its own costs to prepare for and participate in the mediation, including
costs for its legal counsel or any other consultants.
(B) Government Code Claims.
(1) Timely presentation of a Government Code Claim is a condition precedent to
filing any legal action based on or arising from the Contract. Compliance with the
Claim submission requirements in this Article 12 is a condition precedent to filing
a Government Code Claim.
(2) The time for filing a Government Code Claim will be tolled from the time
Contractor submits its written Claim pursuant to Section 12.2, above, until the
time that Claim is denied in whole or in part at the conclusion of the meet and
confer process, including any period of time used by the meet and confer
process. However, if the Claim is submitted to mediation, the time for filing a
Government Code Claim will be tolled until conclusion of the mediation, including
any continuations, if the Claim is not fully resolved by mutual agreement of the
parties during the mediation or any continuation of the mediation.
12.6 Tort Claims. This Article does not apply to tort claims and nothing in this Article is
intended nor will be construed to change the time periods for filing tort -based
Government Code Claims.
12.7 Arbitration. It is expressly agreed, under Code of Civil Procedure § 1296, that in any
arbitration to resolve a dispute relating to this Contract, the arbitrator's award must be
supported by law and substantial evidence.
12.8 Burden of Proof and Limitations. Contractor bears the burden of proving entitlement to
and the amount of any claimed damages. Contractor is not entitled to damages
calculated on a total cost basis, but must prove actual damages. Contractor is not entitled
to speculative, special, or consequential damages, including home office overhead or any
form of overhead not directly incurred at the Project site or any other Worksite; lost
profits; loss of productivity; lost opportunity to work on other projects; diminished bonding
capacity; increased cost of financing for the Project; extended capital costs; non-
availability of labor, material or equipment due to delays; or any other indirect loss arising
from the Contract. The Eichleay Formula or similar formula will not be used for any
recovery under the Contract. The City will not be directly liable to any Subcontractor or
supplier.
12.9 Legal Proceedings. In any legal proceeding that involves enforcement of any
requirements of the Contract Documents, the finder of fact will receive detailed
instructions on the meaning and operation of the Contract Documents, including
conditions, limitations of liability, remedies, claim procedures, and other provisions
bearing on the defenses and theories of liability. Detailed findings of fact will be
requested to verify enforcement of the Contract Documents. All of the City's remedies
under the Contract Documents will be construed as cumulative, and not exclusive, and
the City reserves all rights to all remedies available under law or equity as to any dispute
arising from or relating to the Contract Documents or performance of the Work.
12.10 Other Disputes. The procedures in this Article 12 will apply to any and all disputes or
legal actions, in addition to Claims, arising from or related to this Contract, including
disputes regarding suspension or early termination of the Contract, unless and only to the
extent that compliance with a procedural requirement is expressly and specifically waived
by City. Nothing in this Article is intended to delay suspension or termination under Article
13.
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Article 13 - Suspension and Termination
13.1 Suspension for Cause. In addition to all other remedies available to City, if Contractor
fails to perform or correct Work in accordance with the Contract Documents, including
non-compliance with applicable environmental or health and safety Laws, City may
immediately order the Work, or any portion of it, suspended until the circumstances giving
rise to the suspension have been eliminated to City's satisfaction.
(A) Notice of Suspension. Upon receipt of City's written notice to suspend the
Work, in whole or in part, except as otherwise specified in the notice of suspension,
Contractor and its Subcontractors must promptly stop Work as specified in the notice of
suspension; comply with directions for cleaning and securing the Worksite; and protect
the completed and in -progress Work and materials. Contractor is solely responsible for
any damages or loss resulting from its failure to adequately secure and protect the
Project.
(B) Resumption of Work. Upon receipt of the City's written notice to resume the
suspended Work, in whole or in part, except as otherwise specified in the notice to
resume, Contractor and its Subcontractors must promptly re -mobilize and resume the
Work as specified; and within ten days from the date of the notice to resume, Contractor
must submit a recovery schedule, prepared in accordance with the Contract Documents,
showing how Contractor will complete the Work within the Contract Time.
(C) Failure to Comply. Contractor will not be entitled to an increase in the Contract
Time or Contract Price for a suspension occasioned by Contractor's failure to comply with
the Contract Documents.
(D) No Duty to Suspend. City's right to suspend the Work will not give rise to a duty
to suspend the Work, and City's failure to suspend the Work will not constitute a defense
to Contractor's failure to comply with the requirements of the Contract Documents.
13.2 Suspension for Convenience. City reserves the right to suspend, delay, or interrupt the
performance of the Work in whole or in part, for a period of time determined to be
appropriate for City's convenience. Upon notice by City pursuant to this provision,
Contractor must immediately suspend, delay, or interrupt the Work and secure the
Project site as directed by City except for taking measures to protect completed or in -
progress Work as directed in the suspension notice, and subject to the provisions of
Section 13.1(A) and (B), above. If Contractor submits a timely request for a Change
Order in compliance with Articles 5 and 6, the Contract Price and the Contract Time will
be equitably adjusted by Change Order pursuant to the terms of Articles 5 and 6 to reflect
the cost and delay impact occasioned by such suspension for convenience, except to the
extent that any such impacts were caused by Contractor's failure to comply with the
Contract Documents or the terms of the suspension notice or notice to resume. However,
the Contract Time will only be extended if the suspension causes or will cause
unavoidable delay in Final Completion. If Contractor disputes the terms of a Change
Order issued for such equitable adjustment due to suspension for convenience, its sole
recourse is to comply with the Claim procedures in Article 12.
13.3 Termination for Default. City may declare that Contractor is in default of the Contract
for a material breach of or inability to fully, promptly, or satisfactorily perform its
obligations under the Contract.
(A) Default. Events giving rise to a declaration of default include Contractor's refusal
or failure to supply sufficient skilled workers, proper materials, or equipment to perform
the Work within the Contract Time; Contractor's refusal or failure to make prompt
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payment to its employees, Subcontractors, or suppliers or to correct defective Work or
damage; Contractor's failure to comply with Laws, or orders of any public agency with
jurisdiction over the Project; evidence of Contractor's bankruptcy, insolvency, or lack of
financial capacity to complete the Work as required within the Contract Time; suspension,
revocation, or expiration and nonrenewal of Contractor's license or DIR registration;
dissolution, liquidation, reorganization, or other major change in Contractor's
organization, ownership, structure, or existence as a business entity; unauthorized
assignment of Contractor's rights or duties under the Contract; or any material breach of
the Contract requirements.
(B) Notice of Default and Opportunity to Cure. Upon City's declaration that
Contractor is in default due to a material breach of the Contract Documents, if City
determines that the default is curable, City will afford Contractor the opportunity to cure
the default within ten days of City's notice of default, or within a period of time reasonably
necessary for such cure, including a shorter period of time if applicable.
(C) Termination. If Contractor fails to cure the default or fails to expediently take
steps reasonably calculated to cure the default within the time period specified in the
notice of default, City may issue written notice to Contractor and its performance bond
surety of City's termination of the Contract for default.
(D) Waiver. Time being of the essence in the performance of the Work, if
Contractor's surety fails to arrange for completion of the Work in accordance with the
Performance Bond within seven calendar days from the date of the notice of termination
pursuant to paragraph (C), City may immediately make arrangements for the completion
of the Work through use of its own forces, by hiring a replacement contractor, or by any
other means that City determines advisable under the circumstances. Contractor and its
surety will be jointly and severally liable for any additional cost incurred by City to
complete the Work following termination, where "additional cost" means all cost in excess
of the cost City would have incurred if Contactor had timely completed Work without the
default and termination. In addition, City will have the right to immediate possession and
use of any materials, supplies, and equipment procured for the Project and located at the
Project site or any Worksite on City property for the purposes of completing the remaining
Work.
(E) Compensation. Within 30 days of receipt of updated as-builts, all warranties,
manuals, instructions, or other required documents for Work installed to date, and
delivery to City of all equipment and materials for the Project for which Contractor has
already been compensated, Contractor will be compensated for the Work satisfactorily
performed in compliance with the Contract Documents up to the effective date of the
termination pursuant to the terms of Article 8, Payment, subject to City's rights to withhold
or deduct sums from payment otherwise due pursuant to Section 8.3, and excluding any
costs Contractor incurs as a result of the termination, including any cancellation or
restocking charges or fees due to third parties. If Contractor disputes the amount of
compensation determined by City, its sole recourse is to comply with the Claim
Procedures in Article 12, by submitting a Claim no later than 30 days following notice
from City of the total compensation to be paid by City.
(F) Wrongful Termination. If Contractor disputes the termination, its sole recourse
is to comply with the Claim procedures in Article 12. If a court of competent jurisdiction or
an arbitrator later determines that the termination for default was wrongful, the
termination will be deemed to be a termination for convenience, and Contractor's
damages will be strictly limited to the compensation provided for termination for
convenience under Section 13.4, below. Contractor waives any claim for any other
damages for wrongful termination including special or consequential damages, lost
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opportunity costs, or lost profits, and any award of damages is subject to Section 12.8,
Burden of Proof and Limitations.
13.4 Termination for Convenience. City reserves the right, acting in its sole discretion, to
terminate all or part of the Contract for convenience upon written notice to Contractor.
(A) Compensation to Contractor. In the event of City's termination for
convenience, Contractor waives any claim for damages, including for loss of anticipated
profits from the Project. The following will constitute full and fair compensation to
Contractor, and Contractor will not be entitled to any additional claim or compensation:
(1) Completed Work. The value of its Work satisfactorily performed as of the
date notice of termination is received, based on Contractor's schedule of values
and unpaid costs for items delivered to the Project site that were fabricated for
incorporation in the. Work;
(2) Demobilization. Demobilization costs specified in the schedule of values, or
if demobilization costs were not provided in a schedule of values pursuant to
Section 8.1, then based on actual, reasonable, and fully documented
demobilization costs; and
(3) Termination Markup. Five percent of the total value of the Work performed
as of the date of notice of termination, including reasonable, actual, and
documented costs to comply with the direction in the notice of termination for
convenience, and demobilization costs, which is deemed to cover all overhead
and profit to date.
(B) Disputes. If Contractor disputes the amount of compensation determined by City
pursuant to paragraph (A), above, its sole recourse is to comply with the Claim
procedures in Article 12, by submitting a Claim no later than 30 days following notice
from City of total compensation to be paid by City.
13.5 Actions Upon Termination for Default or Convenience. The following provisions
apply to any termination under this Article, whether for default or convenience, and
whether in whole or in part.
(A) General. Upon termination, City may immediately enter upon and take
possession of the Project and the Work and all tools, equipment, appliances, materials,
and supplies procured or fabricated for the Project. Contractor will transfer title to and
deliver all completed Work and all Work in progress to City.
(B) Submittals. Unless otherwise specified in the notice of termination, Contractor
must immediately submit to City all designs, drawings, as -built drawings, Project records,
contracts with vendors and Subcontractors, manufacturer warranties, manuals, and other
such submittals or Work-related documents required under the terms of the Contract
Documents, including incomplete documents or drafts.
(C) Close Out Requirements. Except as otherwise specified in the notice of
termination, Contractor must comply with all of the following:
(1) Immediately stop the Work, except for any Work that must be completed
pursuant to the notice of termination and comply with City's instructions for
cessation of labor and securing the Project and any other Worksite(s).
(2) Comply with City's instructions to protect the completed Work and materials,
using best efforts to minimize further costs.
Sun Valley Park Playground 2022 Form GENERAL CONDITIONS
Page 56
(3) Contractor must not place further orders or enter into new subcontracts for
materials, equipment, services or facilities, except as may be necessary to
complete any portion of the Work that is not terminated.
(4) As directed in the notice, Contractor must assign to City or cancel existing
subcontracts that relate to performance of the terminated Work, subject to any
prior rights, if any, of the surety for Contractor's performance bond, and settle all
outstanding liabilities and claims, subject to City's approval.
(5) As directed in the notice, Contractor must use its best efforts to sell any
materials, supplies, or equipment intended solely for the terminated Work in a
manner and at market rate prices acceptable to City.
(D) Payment Upon Termination. Upon completion of all termination obligations, as
specified herein and in the notice of termination, Contractor will submit its request for
Final Payment, including any amounts due following termination pursuant to this Article
13. Payment will be made in accordance with the provisions of Article 8, based on the
portion of the Work satisfactorily completed, including the close out requirements, and
consistent with the previously submitted schedule of values and unit pricing, including
demobilization costs. Adjustments to Final Payment may include deductions for the cost
of materials, supplies, or equipment retained by Contractor; payments received for sale of
any such materials, supplies, or equipment, less re -stocking fees charged; and as
otherwise specified in Section 8.3, Adjustment of Payment Application.
(E) Continuing Obligations. Regardless of any Contract termination, Contractor's
obligations for portions of the Work already performed will continue and the provisions of
the Contract Documents will remain in effect as to any claim, indemnity obligation,
warranties, guarantees, submittals of as -built drawings, instructions, or manuals, record
maintenance, or other such rights and obligations arising prior to the termination date.
Article 14 - Miscellaneous Provisions
14.1 Assignment of Unfair Business Practice Claims. Under Public Contract Code §
7103.5, Contractor and its Subcontractors agree to assign to 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. § 15) or under the Cartwright Act (Chapter 2 (commencing with § 16700) of Part 2
of Division 7 of the Business and Professions Code), arising from purchases of goods,
services, or materials pursuant to the Contract or any subcontract. This assignment will
be effective at the time City tenders Final Payment to Contractor, without further
acknowledgement by the parties.
14.2 Provisions Deemed Inserted. Every provision of law required to be inserted in the
Contract Documents is deemed to be inserted, and the Contract Documents will be
construed and enforced as though such provision has been included. If it is discovered
that through mistake or otherwise that any required provision was not inserted, or not
correctly inserted, the Contract Documents will be deemed amended accordingly.
14.3 Waiver. City's waiver of a breach, failure of any condition, or any right or remedy
contained in or granted by the provisions of the Contract Documents will not be effective
unless it is in writing and signed by City. City's waiver of any breach, failure, right, or
remedy will not be deemed a waiver of any other breach, failure, right, or remedy,
whether or not similar, nor will any waiver constitute a continuing waiver unless specified
in writing by City.
Sun Valley Park Playground 2022 Form GENERAL CONDITIONS
Page 57
14.4 Titles, Headings, and Groupings. The titles and headings used and the groupings of
provisions in the Contract Documents are for convenience only and may not be used in
the construction or interpretation of the Contract Documents or relied upon for any other
purpose.
14.5 Statutory and Regulatory References. With respect to any amendments to any
statutes or regulations referenced in these Contract Documents, the reference is deemed
to be the version in effect on the date that bids were due.
14.6 Survival. The provisions that survive termination or expiration of this Contract include
Contract Section 11, Notice, and subsections 12.1, 12.2, 12.3, 12.4, 12.5, and 12.6, of
Section 12, General Provisions; and the following provisions in these General Conditions:
Section 2.2(J), Contractor's Records, Section 2.3(C), Termination, Section 3.7,
Ownership, Section 4.2, Indemnity, Article 12, Dispute Resolution, and Section 11.2,
Warranty.
END OF GENERAL CONDITIONS
Sun Valley Park Playground 2022 Form GENERAL CONDITIONS
Page 58
Exhibit A
General Info
Alt Total: $700.00
Total:
$453,710.00
Number
Description
Sun Valley Park Playground
As described in the plans and specifications, the project scope of work consists of
Improvements
construction of an accessible path entering and through the park, sidewalk, hand rails,
Deadline
drainage improvements, removal and replacement of playground equipment, benches,
and fencing with a gate.
10/18/2022 02:00 PM PDT
Estimated Cost: $546,000
Vendor
Bauman Landscape and
1 Bid Opening on Microsoft Teams 1
Construction, Inc.
Meeting ID: 216 582 566 804
Passcode: A3AY6e
Submitted
Or call in (audio only)
10/18/2022 01:21 PM PDT
+1 209-215-5196„245384437# United States, Stockton
Signed by
Phone Conference ID: 245 384 437#
Angela Bauman
Allows zero unit prices and labor
Account Holder Angela
No
Bauman
Allows negative unit prices and labor
Opened
10/18/2022 02:03 PM PDT By
No
john.agcaoili@cityofsanrafael.org
Page 1 of 13 10/24/2022
ATTACHMENT LIST
Final Plans—Sun Valley Park.pdf (9.71 MB)
Final Specifications—Sun Valley Park.pdf (1.77 MB)
Appendix A - Wage Determination. pdf (369 KB)
Addendum #1 - Sun Valley.pdf (117 KB)
2022-10-14 Sun Valley Park - Addendum #1 Plans.pdf (1.69 MB)
Page 2 of 13 10/24/2022
BID PROPOSAL
("Bidder") *
Bauman Landscape & Construction Inc.
hereby submits this Bid Proposal to the City of San Rafael ("City") for the above -referenced project ("Project") in response to the
Notice Inviting Bids and in accordance with the Contract Documents referenced in the Notice.
1. Base Bid. Bidder proposes to perform and fully complete the Work for the Project as specified in the Contract Documents,
within the time required for full completion of the Work, including all labor, materials, supplies, and equipment and all other direct
or indirect costs including, but not limited to, taxes, insurance and all overhead for the following price ("Base Bid"):
$453,709.00
2. Addenda. Bidder agrees that it has confirmed receipt of or access to, and reviewed, all addenda issued for
this Bid. Bidder waives any claims it might have against the City based on its failure to receive, access, or review
any addenda for any reason. Bidder specifically acknowledges receipt of the following addenda (click "+" to add
addenda. Type "N/A" if no addenda have been issued):
Addendum M *
Addendum Date: *
10/17/2022
3. Bidder's Certifications and Warranties. By signing and submitting this Bid Proposal, Bidder certifies and warrants the
following:
3.1 Examination of Contract Documents. Bidder has thoroughly examined the Contract Documents and represents that,
to the best of Bidder's knowledge, there are no errors, omissions, or discrepancies in the Contract Documents, subject to
the limitations of Public Contract Code§ 1104.
3.2 Examination of Project Site. Bidder has had the opportunity to examine the Project site and local conditions at the
Project location.
3.3 Bidder Responsibility. Bidder is a responsible bidder, with the necessary ability, capacity, experience, skill,
qualifications, workforce, equipment, and resources to perform or cause the Work to be performed in accordance with the
Contract Documents and within the Contract Time.
Page 3 of 13 10/24/2022
3.4 Responsibility for Bid. Bidder has carefully reviewed this Bid Proposal and is solely responsible for any errors or
omissions contained in its completed Bid. All statements and information provided in this Bid Proposal and enclosures are
true and correct to the best of Bidder's knowledge.
3.5 Nondiscrimination. In preparing this Bid, the Bidder has not engaged in discrimination against any prospective or
present employee or Subcontractor on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual
orientation, age, disability, or marital status.
3.6 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Bidder is not identified on a list created under the Iran
Contracting Act, Public Contract Code § 2200 et seq. (the "Act"), as a person engaging in investment activities in Iran, as
defined in the Act, or is otherwise expressly exempt under the Act.
4. Award of Contract. By signing and submitting this Bid Proposal, Bidder agrees that if Bidder is awarded the Contract for the
Project, within ten days following issuance of the Notice of Award to Bidder, Bidder will do all of the following:
4.1 Execute Contract. Enter into the Contract with City in accordance with the terms of this Bid Proposal, by signing and
submitting to City the Contract prepared by City using the form included with the Contract Documents;
4.2 Submit Required Bonds. Submit to City a payment bond and a performance bond, each for 100% of the Contract
Price, using the bond forms provided and in accordance with the requirements of the Contract Documents; and
4.3 Insurance Requirements. Submit to City the insurance certificate(s) and endorsement(s) as required by the Contract
Documents.
This Bid Proposal is hereby submitted on [Date]
10/18/22
s/
AB
Name and Title
Angela Bauman, Corporate Secretary
s/ *
MB
Name and Title
Mike Bauman, President
Page 4 of 13 10/24/2022
Company Name *
Bauman Landscape and Construction, Inc.
License #, Expiration Date, and Class
372478, 6-30-2023, A C27
Address *
2920 LYON STREET
DIR Registration #
1000024797
City, State, Zip *
San Francisco, CA 94123
Phone *
(415) 447-4800
Contact Name
Angela Bauman
Contact Email
angela@baumanland.com
END OF BID PROPOSAL
Page 5 of 13
10/24/2022
BID SCHEDULE - DIRECTIONS
This Bid Schedule must be completed in ink and included with the sealed Bid Proposal. Pricing must be provided for each Bid
Item as indicated. Items marked "(SW)" are Specialty Work that must be performed by a qualified Subcontractor. The lump sum or
unit cost for each item must be inclusive of all costs, whether direct or indirect, including profit and overhead. The sum of all
amounts entered in the "Extended Total Amount' column must be identical to the Base Bid price entered in Section 1 of the Bid
Proposal form.
AL = Allowance LF = Linear Foot CF = Cubic Feet LS = Lump Sum CY = Cubic Yard SF = Square Feet EA = Each TON
= Ton (2000lbs)
LB = Pounds
Page 6 of 13 10/24/2022
BID SCHEDULE
$453,710.00
Bid Item No.
Item Description
Est Qty.
Unit
Unit Cost
Extension
1
Mobilization/ Demobilization
1.00
LS
$10,000.00
$10,000.00
2
Temporary Traffic Control
1.00
LS
$5,000.00
$5,000.00
3
Water Pollution Control
1.00
LS
$650.00
$650.00
Tree Protection
1.00
LS
$3,500.00
$3,500.00
Construction Layout
1.00
LS
$15,050.00
$15,050.00
6
Clearing and Grubbing
1.00
LS
$48,000.00
$48,000.00
Demolition
1.00
LS
$15,000.00
$15,000.00
8
Earthwork and Excavation
1.00
LS
$65,000.00
$65,000.00
9
Concrete Paving (Pedestrian)
3,483.00
SF
$17.00
$59,211.00
10
12" Wide Play Curb
315.00
LF
$84.00
$26,460.00
11
Rolled Curb & Gutter
60.00
LF
$110.00
$6,600.00
Curb Ramp @ Accessible Parking
1.00
EA
$2,100.00
$2,100.00
13
Curb Ramp @ Play Area
1.00
EA
$3,100.00
$3,100.00
14
Concrete Ramp @ Accessible Parking Stall
255.00
SF
$10.00
$2,550.00
15
Detectable Warning Surface
1.00
EA
$600.00
$600.00
16
Hot Mix Asphalt
6.00
TON
$1,660.00
$9,960.00
17
I
2" Asphalt Grind
225.00
SF
$20.00
$4,500.00
18
I
4" Storm Drain Pipe
120.00
LF
$65.00
$7,800.00
19
4" Storm Drain Subdrain (HDPE)
225.00
LF
$80.00
$18,000.00
20
Storm Drain Inlet
2.00
EA
$6,000.00
$12,000.00
21
Storm Drain Clean-out
3.00
EA
$300.00
$900.00
22
1/2" Water Line
15.00
LF
$250.00
$3,750.00
Total: $453,710.00
Page 7 of 13 10/24/2022
Bid Item No. Item Description
23
Striping
24
42" Ht. Chain Link Fence
25
42" Ht. Chain link Gate
26
Handrails
27
Play Equipment and Fibar Surfacing (O.F.O.I.)
28
Drinking Fountain
29
Trash receptacle
30
Bench
31
6" Wide Play Curb
32
Wood Retaining Wall
Est Qty. Unit Unit Cost Extension
1.00
LS
$4,100.00
$4,100.00
310.00
LF
$40.00
$12,400.00
2.00
EA
$4,500.00
$9,000.00
96.00
LF
$338.00
$32,448.00
1.00
LS
$1.00
$1.00
1.00
LS
$11,000.00
$11,000.00
4.00
EA
$4,400.00
$17,600.00
6.00
EA
$4,900.00
$29,400.00
82.00
LF
$75.00
$6.
72.00
LF
$165.00
$11,880.00
Total: $453,710.00
Page 8 of 13 10/24/2022
Bid ,Alternative
Item Code
Description
:..Iternate: Owner -agency may award independently from entire bid.
(Hidden Banner) Component is not included in bid total.
Alternates are not included in bid total.
Install one (1) new 24" box tree with Gator Watering Bag
Quantity Units Unit Price Extension
1.00 LS $700.00 $700.00
Alternate Total: MOM
Total:
Page 9 of 13 10/24/2022
SUBCONTRACTOR LIST - INSTRUCTIONS
For each Subcontractor that will perform a portion of the Work in an amount in excess of one-half of 1 % of the bidder's total
Contract Price,[1] the bidder must list a description of the Work, the name of the Subcontractor, its California contractor license
number, the location of its place of business, its DIR registration number, and the portion of the Work that the Subcontractor is
performing based on a percentage of the Base Bid price.
[1] For street or highway construction this requirement applies to any subcontract of $10,000 or more.
Page 10 of 13 10/24/2022
SUBCONTRACTOR LIST
Description of Subcontractor California Contractor Location of DIR Reg Percent of
Work Name License Number Business No. Work
Fence CIC eira Fence 404243 Santa Clare 1004043214 4%
Striping Striping 576756 Cotati 1000006495 1%
Graphics
Page 'I 1 of 13 10124/2022
NON -COLLUSION DECLARATION
TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
The undersigned declares:
I am the *
Corporate Secretary
of: *
Bauman Landscape & Construction Inc.
the party making the foregoing bid.
The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or
corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other
bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any
bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly,
sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any
overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The
bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged
information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any
member or agent thereof, to effectuate a collusive or sham bid, and has not paid and will not pay, any person or entity for such
purpose.
This declaration is intended to comply with California Public Contract Code § 7106 and Title 23 U.S.0 § 112.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this
declaration is executed on
[date], * [city] * [state]
10/18/2022 San Francisco CA
❑✓ I agree that my digital or electronic signature applies
to this form
Name *
Angela Bauman
Page 12 of 13 10/24/2022
REQUIRED DOCUMENTS LIST
Name Omission Terms Submitted File
Scan of Bond Forms
The original hardcopy must be received by DOC101822-001.pdf
Public Works within 48 hours after the bid
opening from the Apparent Low Bidder
I Required Document
Page 13 of 13 10/24/2022
Bid Bond
Bauman Landscape and Construction, Inc. ("Bidder") has submitted a
bid, dated October 18 _,2022 ("Bid"), to the City of San Rafael ("City")
for work on the Sun Valley Park Playground ("Project"). Under this duly executed bid bond ("Bid
Bond"), Bidder as Principal and Philadelphia Indemnity Insurance Company _, its surety ("Surety"), are
bound to City as obligee in the penal sum of ten percent of the maximum amount of the Bid (the
"Bond Sum"). Bidder and Surety bind themselves and their respective heirs, executors,
administrators, successors and assigns, jointly and severally, as follows:
1. General. If Bidder is awarded the Contract for the Project, Bidder will enter into the
Contract with City in accordance with the terms of the Bid.
2. Submittals. Within ten days following issuance of the Notice of Potential Award to Bidder,
Bidder must submit to City the following:
2.1 Contract. The executed Contract, using the form provided by City in the Project
contract documents ('Contract Documents");
2.2 Payment Bond. A payment bond for 100% of the maximum Contract Price,
executed by a surety licensed to do business in the State of California using the
Payment Bond form included with the Contract Documents;
2.3 Performance Bond. A performance bond for 100% of the maximum Contract Price,
executed by a surety licensed to do business in the State of California using the
Performance Bond form included with the Contract Documents; and
2.4 Insurance. The insurance certificate(s) and endorsement(s) required by the
Contract Documents, and any other documents required by the Instructions to
Bidders or Notice of Potential Award.
3. Enforcement. If Bidder fails to execute the Contract and to submit the bonds and
insurance certificates as required by the Contract Documents, Surety guarantees that
Bidder forfeits the Bond Sum to City. Any notice to Surety may be given in the manner
specified in the Contract and delivered or transmitted to Surety as follows:
Attn: Erin Sullivan - Philadelphia Indemnity Insurance Company
Address: 1277 Treat Boulevard. Suite 650
City/State/Zip: Walnut Creek. CA 94597
Phone: _ G2.r, 446'11;98
Fax: 868 227-7125
Email: erin.sullivan(aDnhly.com
4. Duration and Waiver. If Bidder fulfills its obligations under Section 2, above, then this
obligation will be null and void; otherwise it will remain in full force and effect for 60 days
following the bid opening or until this Bid Bond is returned to Bidder, whichever occurs first.
Surety waives the provisions of Civil Code §§ 2819 and 2845.
[Signatures are on the following page.]
Sun Valley Park Playground 2021 Form BID BOND
11391 Page 14
This Bid Bond is entered into and effective on October 4
SURETY:
Philadelphia Indemnity Insurance Company_
Business Nerve — — —
K. Zero pian, Attor y -In -Fact
Name, T41e
2022
October 4, 2022
Date
(Attach Acknowledgment with Notary Seal and Power of Attorney)
BIDDER:
Ba
and Construction. Inc.
WL -" 1�-fb �0- x2 -
Date
END OF BID BOND
Sun Valley Park Playground 2021 Form BID BOND
11391 Page 15
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Francisco
OnbG% >r'�e c-(, ZbZ2. before me,
M. Moody, Notary Public
(insert name and title of the officer)
personally appeared K. Zerounian
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
• ::::t:t :•:.:::v.:•:.::v.•:.:•r.-r<vn :a•: :v.�tiurasts�
DY
WITNESS m hand and official seal.�x co M.0086403
NOTARY PUBLIC oCALIFORNIA t!
San Rancisco County
f ti Commission Expires January 8, 2028
J �yti:w •.::ti :•.vuv.::v: fr: fvuax :•r::.s
Signature
(Seal)
PHILADELPHIA INDEMNITY INSURANCE COMPANY
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004-0950
Power of Attoruey
KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Maureen O'Connell, Kevin Re, Robert Wrixon, M. Moody,
Susan M. Exline, Janet C. Rojo, Betty L. Tolentino, Susan Hecker, Virginia L. Black, Gillian Bhaskaran, Julia Ortega, Thuyduong Le, Brittany Kavan, K.
Zerounian and Misty R. Hemje of Arthur J. Gallagher Insurance Brokers of CA, Inc. its true and lawful Attorney-in-fact with full authority to execute on its
behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind
the Company thereby, in an amount not to exceed S50, I�I,QM.
This Power of Attorney is granted and is signed and scaled by facsimile und'.r and by the authority of the following Resolution adopted by the Board of Directors of
PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 14'h of November, 2016.
RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the
Company: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute
on behalf of the Company bonds and undertakings, contracts of indemnity and other
writings obligatory in the nature thereof and to attach the seal of the Company thereto; and
(2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given And,
be it
FURTHER
RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any
such Power of Attorney or certificate relating thereto by facsimile, and any such Power of
Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid
and binding upon the Company in the future with respect to any bond or undertaking to
which it is attached.
IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS
CORPORATE SEALTO BE AFFIXED BY ITS AUTHORIZED OFFICE THIS 5TH DAY OF MARCH, 2021.
J �J27
(Seal)
Job Glomb. President & CEO
Philadelphia Indemnity insurance Company
On this 51 day of March, 2021 before me came the individual who executed the preceding instrument, tome personally known, and being by me duty sworn said that he
is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the
Corporate seal ofsaid Company; that the said Corporate Seal and his signature were duly affixed.
fslthotpennaylranp•MauSeri
Vinessa �4ekentle. Notary Puha
I,tantgorneryCevnty
My commission expires November3, 2024
Commisalon numbe r 1 a66794
Mercsar. Pane ryrvr.+►sse n 010A cr N 01 he
Notary Public: , 1/
residing at: Bala Cynwyd, PA
My commission expires: November -3,2024
1, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of
Directors and the Power of Attorney issued pursuant thereto on the 5h day March, 2021 are true and correct and are still in full force and effect. I do further certify that
John Glomb, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of
PHILADELPHIA INDEMNITY INSURANCE COMPANY.
In Testimony Whereof have subscribed my name and affixed the facsimile sea] ofeach Company this 4th day of October -2022.
Edward Sayago, Corporate Secretary
PHILADELPHIA INDEMNITY INSURANCE COMPANY
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Francisco
On October 12, 2022
before me, Kayan Ng, Notary Public
(insert name and title of the officer)
personally appeared Angela M. Bauman
who proved to me on the basis of satisfactory evidence to be the person( whose name is!
subscribed to the within instrumentd acknowledged to me that (shelf executed the same in
.PdsIherlth16ir authorized capacity " s), and that by P Iherl"r signatureon the instrument the
person(}, or the entity upon behalf of which the persan,W acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
U YAM NG
Notary Public - California
3 r San Francisco County
Commission 4 2283502
My Comm. Expires Mar 29. 2023
Bond No. PBO1524100057
Premium Included in Performance Bond
Issued in 2 Counterparts
Payment Bond
The City of San Rafael ("City") and Bauman Landscape and Construction, Inc. ("Contractor')
have entered into a contract for work on the Sun Valley Park Playground Project ("Project"). The
Contract is incorporated by reference into this Payment Bond ("Bond").
1. General. Under this Bond, Contractor as principal and Philadelphia Indemnity Insurance Company
its surety ("Surety"), are bound to City as obligee in an amount not less than
$ 453.710.00-- * , under California Civil Code § 9550 et seq., to ensure payment to
authorized claimants. This Bond is binding on the respective successors, assigns, owners,
heirs, or executors of Surety and Contractor.
*Four Hundred Fifty Three Thousand Seven Hundred Ten Dollars and No/100
2. Surety's Obligation. If Contractor or any of its Subcontractors fails to pay a person
authorized in California Civil Code § 9100 to assert a claim against a payment bond, any
amounts due under the Unemployment Insurance Code with respect to work or labor
performed under the Contract, or any amounts required to be deducted, withheld, and paid
over to the Employment Development Department from the wages of employees of
Contractor and its Subcontractors under California Unemployment Insurance Code § 13020
with respect to the work and labor, then Surety will pay the obligation.
3. Beneficiaries. This Bond inures to the benefit of any of the persons named in California
Civil Code § 9100, so as to give a right of action to those persons or their assigns in any
suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon
request by any person with legal rights under this Bond.
4. Duration. If Contractor promptly makes payment of all sums for all labor, materials, and
equipment furnished for use in the performance of the Work required by the Contract, in
conformance with the time requirements set forth in the Contract and as required by
California law, Surety's obligations under this Bond will be null and void. Otherwise,
Surety's obligations will remain in full force and effect.
5. Waivers. Surety waives any requirement to be notified of alterations to the Contract or
extensions of time for performance of the Work under the Contract. Surety waives the
provisions of Civil Code §§ 2819 and 2845. City waives the requirement of a new bond for
any supplemental contract under Civil Code § 9550. Any notice to Surety may be given in
the manner specified in the Contract and delivered or transmitted to Surety as follows:
Attn: _ Erin Sullivan - Philadelphia Indemnity Insurance Company
Address: 1277 Treat Boulevard, Suite 650
City/State/Zip: Walnut Creek, CA 94597
Phone: 925.446.3528
Email: Erin. Sullivan@phly.com
6. Law and Venue. This Bond will be governed by California law, and venue for any dispute
pursuant to this Bond will be in the Marin County Superior Court, and no other place.
Surety will be responsible for City's attorneys' fees and costs in any action to enforce the
provisions of this Bond.
(Signatures are on the following page.)
Sun Valley Park Playground 2022 Form PAYMENT BOND
Page 5
7. Effective Date; Execution. This Bond is entered into and is effective on December 29
2022,
SURETY:
Philadelphia Indemnity Insurance Company
Business NWID
K. Zerouni n, Attomey- n -Fact
Name, Title
December 29, 2922
Date
(Attach Acknowledgment with Notary Seal and Power of Attorney)
CONTRACTOR:
and Construction, Inc.
s/
Name, Title ' !
APPROY D BY CITY:
s/
ROBEU. . EPSTEIN, Ci Attorney
4A
vv
Date
END OF PAYMENT BOND
f"'t�
l�z
Date
Sun Valley Park Playground 2022 Form PAYMENT BOND
Page 6
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Francisco
On`De.CAi'mtie. Z , ZaZ before me,
M. Moody, Notary Public
(insert name and title of the officer)
personally appeared K. Zerounian
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
wa.•vntiws ry tv.:vaw.:x ::•rvnvmr:.:w:::. .
S M. MOODY }
COMM. #2386403
y y�' NOTARY PUBLIC *CALIFORNIA
WITNESS my hand official seal. } San Frandsco County
commission Expires January 8, 2026
�.:•x�tiwnv-xvuvwuwr.K•.
Signature (Seal)
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of California
County of !/ydt2r/l� _ }
On before me, 12� ,
(Hers Amen deme sne pile ill We Miter)
personally appeared ,d q_e_Lex- _
Lex -
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and rk J C uRloSTEGuI LOPEZ
7�
NOW Pubilo California x
Marin County
Commission R 2318135
My Comm, Expires Jan 7, 2024
Notary Public Signature v (Notary Public Seal)
ADDITIONAL OPTIONAL INFORMATIO
DESCRIPTION OF THE ATTACHED DOCUMENT
�a-Yltiicy�� �e12�
(Title or desc iption of attached document)
(Title or description of attached document continued)
Number of Pages Document Date.
CAPACITY CLAIMED BY THE SIGNER
ElIndividual (s)
❑ Corporate Officer
(Title)
❑ Partner(s)
❑ Attorney -in -Fact
E]Trustee(s)
E]Other
2015 Version www.NotaryClasses.com 800-873-9865
N
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with cun•ent California statutes regarding notary wording and,
if needed, should be completed and attached to the document. Acknowledgments
from other states may be completed for documents being sent to that state so long
as the wording does not require the California notary to violate California notary
law.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
he/she/they,— is /ere ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. -If seal impression smudges, re -seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document. with a staple.
PHH.ADELPHIA INDEMNITY INSURANCE COMPANY
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004-0950
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Maureen O'Connell, Kevin Re, Robert Wrixon, M. Moody,
Susan M. Exline, Janet C. Rojo, Betty L. Tolentino, Susan Hecker, Virginia L. Black, Gillian Bhaskaran, Julia Ortega, Thuyduong Le, Brittany Kavan, K.
Zerounian and Misty R. Hemje of Arthur J. Gallagher Insurance Brokers of CA, Inc. its true and lawful Attomey-in-fact with full authority to execute on its
behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereat issued in the course of its business and to bind
the Company thereby, in an amount not to exceed $50.000.000.
This rower of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of
PHILADELPHIA INDEMNITY INSURANCE COMPANY on the I4s' of November, 2016.
RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the
Company: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute
on behalf of the Company bonds and undertakings, contracts of indemnity and other
writings obligatory in the nature thereof and to attach the seal of the Company thereto; and
(2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And,
be it
FURTHER
RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any
such Power of Attorney or certificate relating thereto by facsimile, and any such Power of
Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid
and binding upon the Company in the future with respect to any bond or undertaking to
which it is attached.
IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS
CORPORATE SEALTO BE AFFD('D BY ITS AUTHORIZED OFFICE THIS 5TH DAY OF MARCH, 2021.
1927 = _
(Seal) """"
J❑11 Gl❑mb. President & CED
Philadelphia Indemnity Insurance Company
On this 5ie day of March, 2021 before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he
is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the
Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed.
commonwetl;h o f Po amyl ya nia - No' e ry seal
Ve nas5a Mtk@r. zi?, N a l a ry Pu In tic
Montgomery County
My commission expires November 3, 2024
Commission number 1366394
Member Pa Mlytus- , A ssw atlan of Natant%
Notary Public:
residing at: Bala Cynwyd, PA
My commission expires: November 3, 2024
I, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of
Directors and the Power of Attorney issued pursuant thereto on the 5' day March, 2021 are true and correct and are still in full force and effect. I do further certify that
John Glomb, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of
PHILADELPHIA INDEMNITY INSURANCE COMPANY.
In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this 29th day ofDeCember_ _2022.
_ 2022.
1 �t= Edward Sayago, Corporate Secretary
PHILADELPHIA INDEMNITY INSURANCE COMPANY
Bond No. PB01524100057
Premium: $6,533.00
Issued in 2 Counterparts
Performance Bond
The City of San Rafael ("City") and Bauman Landscape and Construction, Inc. ("Contractor„)
have entered into a contract for work on the Sun Valley Park Playground Project ("Project"). The
Contract is incorporated by reference into this Performance Bond ("Bond").
1. General. Under this Bond, Contractor as principal and Philadelphia Indemnity insurance Company
its surety ("Surety"), are bound to City as obligee for an amount not less than
$ 453.710,00-- " to ensure Contractor's faithful performance of its obligations under
the Contract. This Bond is binding on the respective successors, assigns, owners, heirs, or
executors of Surety and Contractor.
*Four Hundred Fifty Three Thousand Seven Hundred Ten Dollars and No/100
2. Surety's Obligations. Surety's obligations are co -extensive with Contractor's obligations
under the Contract. If Contractor fully performs its obligations under the Contract, including
its warranty obligations under the Contract, Surety's obligations under this Bond will
become null and void. Otherwise, Surety's obligations will remain in full force and effect.
3. Waiver. Surety waives any requirement to be notified of and further consents to any
alterations to the Contract made under the applicable provisions of the Contract
Documents, including changes to the scope of Work or extensions of time for performance
of Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845.
4. Application of Contract Balance. Upon making a demand on this Bond for completion of
the Work prior to acceptance of the Project, City will make the Contract Balance available
to Surety for completion of the Work under the Contract. For purposes of this provision, the
Contract Balance is defined as the total amount payable by City to Contractor as the
Contract Price minus amounts already paid to Contractor, and minus any liquidated
damages, credits, or backcharges to which City is entitled under the terms of the Contract.
5. Contractor Default. Upon written notification from City of Contractor's termination for
default under Article 13 of the Contract General Conditions, time being of the essence,
Surety must act within the time specified in Article 13 to remedy the default through one of
the following courses of action:
5.1 Arrange for completion of the Work under the Contract by Contractor, with City's
consent, but only if Contractor is in default solely due to its financial inability to
complete the Work;
5.2 Arrange for completion of the Work under the Contract by a qualified contractor
acceptable to City, and secured by performance and payment bonds issued by
an admitted surety as required by the Contract Documents, at Surety's expense;
or
5.3 Waive its right to complete the Work under the Contract and reimburse City the
amount of City's costs to have the remaining Work completed.
6. Surety Default. If Surety defaults on its obligations under the Bond, City will be entitled to
recover all costs it incurs due to Surety's default, including legal, design professional, or
delay costs.
7. Notice. Any notice to Surety may be given in the manner specified in the Contract and
sent to Surety as follows:
Attn: Erin Sullivan - Philadelphia Indemnity Insurance Company
Sun Valley Park Playground 2022 Form PERFORMANCE BOND
Page 7
Address: 1277 Treat Boulevard, Suite 650
City/State/Zip: Walnut Creek CA 94597
Phone: 925.446.3528
Fax:
Email: Erin.Sullivan@phly.com
8. Law and Venue. This Bond will be governed by California law, and venue for any dispute
pursuant to this Bond will be in the Marin County Superior Court, and no other place.
Surety will be responsible for City's attorneys' fees and costs in any action to enforce the
provisions of this Bond.
9. Effective Date; Execution. This Bond is entered into and effective on
December 29 , 20 22.
SURETY:
Philadelphia Indemnity Insurance Company
Business N
s/
K. Zerouni n, Attorn -ln- Fact
Name, Title
December 29. 2022
Date
(Attach Acknowledgment with Notary Seal and Power of Attorney)
CONTRACTOR:
Bauman Landscape and Construction Inc.
Busine Name
'(d JVV ti h it,
s!
ft Date
Name, -0ifle7 I
APPRO 9Y r CITY:
y
s/
ROBEE STEIN, ity A oiney
1 9 I r
Date
END OF PERFORMANCE BOND
Sun Valley Park Playground 2022 Form PERFORMANCE BOND
Page 8
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Francisco
On Z`Y, 2.�z before me,
M. Moody, Notary Public
(insert name and title of the officer)
personally appeared K. Zerounian
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of ttlq State of California thatthe-foregoing
paragraph is true and correct. m MOODY
f COMM #2386403
�s NOTARY PUBLIC OMIFQRNIA b
San FmIdsm Carly
WITNESS my hand and official seal. commssonJanuays,zo2s
f
Signature (Seal)
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of California
County of JUr, 4
On o/130Z20 2 3 before me, PSC a�f�fi. • �o '_Vw ai""I/c
ere nsen an uTa Shia nfiim7
personally appeared G �l
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official eal.*my
J C MOSTEGUI LOPEZ
Notary Public - California
Marin CountyCommission k 2318135
Comm. Expires Jan 7, 2024
Notary F'rrbiiG Signature (Notary Public Seal)
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current California statutes regarding notary wording and,
DESCRIPTION OF THE ATTACHED DOCUMENT
f needed, should be completed and attached to the document. Acknowledgments
from other states may be completed for documents being sent to that state so long
as the wording does not require the California notary to violate California notary
f m'd C o
law.
(Title or description of attached document)
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
—
• Date of notarization must be the date that the signer(s) personally appeared which
(Title or description of attached document continued)
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
Number of Pages Document Date
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
he/she/they, is /are ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re -seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
t ffid' t +1, #4+1 ' CEO CFO S t
corpora e o cer, m rca e e a (i.e. I , ecre ary).
2015 Version www.NotaryClasses.com.800-873-9865 Securely attach this document to the signed documentwith a staple.
PHILADELPHIA INDEMNTPY INSURANCE COMPANY
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004-0950
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Maureen O'Connell, Kevin Re, Robert Wrixon, M. Moody,
Susan ry Exline, Janet C. Rojo, Betty L. Tolentino, Susan Hecker, Virginia L. Black, Gillian Bhaskaran, Julia Ortega, Thuyduong Le, Brittany Kavan, K.
Zerounian and Misty R. Hemje of Arthur J. Gallagher Insurance Brokers of CA, Inc. its true and lawful Attomey-in-fact with full authority to execute on its
behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind
the Company thereby, in an amount not to exceed S_-50.000 0641.
This Powcr of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of
PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 14' of November, 2016.
RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the
Company: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute
on behalf of the Company bonds and undertakings, contracts of indemnity and other
writings obligatory in the nature thereof and to attach the seal of the Company thereto; and
(2) to remove, at any time, any such Attorney -in -Fact and revoke the authority given. And,
be it
FURTHER
RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any
such Power of Attorney or certificate relating thereto by facsimile, and any such Power of
Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid
and binding upon the Company in the future with respect to any bond or undertaking to
which it is attached.
IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS
CORPORATE SEALTO BE AFFE-CED BY ITS AUTHORIZED OFFICE THIS 5TH DAY OF MARCH, 2021.
(Seal) LO p4k7
Joh Glomb, President &: CEO
Philadelphia Indemnity Insurance Company
On this 51 day of March, 2021 before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he
is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the
Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed.
Notary Public: -
CommCAweallholPonn3ylraNa-NRiuryScai
Yaneaaa Mckenzie, Notary Public
Montgomery County
My commisslon expires November 3, 2024
Commission number 1366394
mam"t PannsyWa, M Asseeiauen of Nolaries residing at: Bala Cynwyd, PA
My commission expires: November 3, 2024
I, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of
Directors and the Power of Attorney issued pursuant thereto on the 5''` day March, 2021 are true and correct and are still in full force and effect. I do further certify that
John Glomb, who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of
PHILADELPHIA INDEMNITY INSURANCE COMPANY.
In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this 29th day of , December -2022.
i
1927 Edward Sayago, Corporate Secretary
' PHILADELPHIA INDEMNITY INSURANCE COMPANY
�: a
RAF,
s z
� yd
�fTr WITH A'
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Public Works
Project Manager: Nataly Torres (for JC Agcaoili) Extension: 3353
Contractor Name: Bauman Landscape & Construction Inc.
Contractor's Contact: Angela Bauman Contact's Email: angela@baumanland.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step RESPONSIBLE
DEPARTMENT
1 I Project Manager
2 1 City Attorney
3 Department Director
4 1 Project Manager
5 1 Project Manager
DESCRIPTION
a. Email PINS Introductory Notice to Contractor
b. Email contract (in Word) and attachments to City
Attorney c/o Laraine.Gittens@cityofsanrafael.org
a. Review, revise, and comment on draft agreement
and return to Project Manager
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
Approval of final agreement form to send to
contractor
Forward three (3) originals of final agreement to
contractor for their signature
When necessary, contractor -signed agreement
agendized for City Council approval *
*City Council approval required for Professional Services
Agreements and purchases of goods and services that exceed
$75,000; and for Public Works Contracts that exceed $175,000
COMPLETED
DATE
Click here to
enter a elate.
10/28/2022
REVIEWER
Check/Initial
El
❑X NT
11/18/2022
11/18/2022 ❑X GC
❑X GC
11/18/2022 X❑ AM
11/21/2022
❑ N/A
Or
11/7/2022
Date of City Council approval
PRINT
CONTINUE ROUTING PROCESS WITH HARD COPY
6
Project Manager
Forward signed original agreements to City
1/03/2023
NT
Attorney with printed copy of this routing form
7
City Attorney
Review and approve hard copy of signed
agreement
Review and approve insurance in PINS , and bonds
(�
8
City Attorney
for Public Works Contracts
Agreement executed by City Council authorized
9
City Manager/ Mayor
official
_
10
City Clerk
Attest signatures, retains original agreement and
forwards copies to Project Manager
��