HomeMy WebLinkAboutR 2025-04265501.00014\43890926.1
RESOLUTION NO. 2025-042
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE AWARDING A CONSTRUCTION
CONTRACT FOR THE PARKSIDE PARK PLAY
STRUCTURE PROJECT TO LANDSCAPE STRUCTURES,
INC. (PW 2024-09)
WHEREAS, residents in the City of Arroyo Grande Parkside Village Assessment District
previously requested the replacement of the existing playground equipment in the park
area of that district; and
WHEREAS, on June 25, 2024, the City Council adopted a Resolution directing the levy
of the annual assessment for the Parkside Village Assessment District pursuant to the
Landscaping and Lighting Act of 1972 (Streets and Highways Code Sections 22500 et.
seq.) for Fiscal Year 2024-25 which included $250,000 for playground replacement; and
WHEREAS, City staff met with Parkside residents to develop design elements for the
new playground and prepared a Request for Proposals (“RFP”) that reflected these
elements; and
WHEREAS, an RFP was issued on April 7, 2025, for the design and construction of the
Parkside Park Play Structure (the “Project”) which is further described in the RFP set forth
in Exhibit “A” attached hereto and incorporated herein by reference; and
WHEREAS, the City solicited input from the Parkside Village residents regarding the
responsive proposals. The playground design that received the most votes was
submitted by Landscape Structures, Inc. (the “Current Proposal”) for a cost of
$223,980.25; and
WHEREAS, pursuant to Public Contract Code section 22160 and section 22162, the City
is authorized to procure design-build contracts public works projects in excess of one
million dollars ($1,000,000), awarding the contract either the low bid or the best value;
and
WHEREAS, the estimated cost of this project is approximately $223,980.25, less than
one million dollars, which would otherwise prevent the City from utilizing the design-build
procurement method; and
WHEREAS, playground projects are typically designed and supplied by specialized
vendors who also install the equipment, and the traditional design -bid-build model—
requiring separate architectural plans and specifications —can result in misaligned or
unusable designs; and
WHEREAS, utilizing the Design-Build delivery method for such projects is expected to be
more cost-effective, reduce the risk of incompatibilities between design and equipment,
RESOLUTION NO. 2025-042
PAGE 2
and streamline the project schedule by consolidating design, supply, and installation
responsibilities under a single contract. This approach better aligns with industry practice,
reduces administrative burdens, and ensures that the final product meets bot h technical
and community needs, thereby serving the City’s best interests; and
WHEREAS, “[a] public entity's award of a contract, and all of the acts leading up to the
award, are legislative in character. [T]he letting of contracts by a governmental entity
necessarily requires an exercise of discretion guided by consideration of the public
welfare[]”. (Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th
1294, 1303); and
WHEREAS, “where competitive proposals work an incongruity and are unavailing as
affecting the final result, or where competitive proposals do not produce any advantage,
or where it is practically impossible to obtain what is required and to observe such form,
competitive bidding is not applicable.” (Graydon v. Pasadena Redevelopment Agency
(1980) 104 Cal.App. 3d 631, 636); and
WHEREAS, “[t]he law neither does nor requires idle acts.” (Civil Code, § 3532); and
WHEREAS, City staff has determined on the basis of the RFP and Landscape Structures,
Inc.’s Proposals that awarding a design-build contract for the Project to Landscape
Structure Inc. without further competitive solicitation is in the best interest of the City as
guided by consideration of the public welfare for the foregoing reasons (“Staff Findings”).
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of City of Arroyo
Grande that:
1.The above recitals are true and correct and are incorporated herein in their
entirety.
2.The City Council adopts the Staff Findings as its own (“Council Findings”).
3.The City Manager or designee is hereby authorized and directed to enter into a
design-build contract with Landscape Structure Inc. to design and construct the
Project, in substantially the same form as shown as attached in Exhibit B (the
“Proposed Contract”), consistent with the Current Proposal and RFP, subject to
minor revisions, if any, approved by the City Manager and City Attorney to comply
with applicable law or otherwise ensure that the City contracts for the Project on
clear, unambiguous terms that are in the best interest of the City.
4.The Project is categorically exempt from the California Environmental Quality Act
(CEQA) pursuant to CEQA Guideline Section 15302 as replacement or
reconstruction of existing structures and facilities where the new structure will be
located on the same site as the structure replaced and will have substantially the
same purpose and capacity as the structure replaced. The proposed Project is
intended to replace the existing playground facility, and will be used for the same
RESOLUTION NO. 2025-042
PAGE 3
playground purposes. The capacity of each structure is substantially similar and
intended for playground use.
Further, none of the exceptions to the use of categorical exemptions stated in State
CEQA Guidelines section 15300.2 apply: The Project is not located in a particularly
sensitive environment because it is proposed in an area already developed with a
play structure. No cumulative impact would occur from the Project as only one play
structure is proposed, there will be no significant effect on the environment
because the Project involves no unusual circumstances and only the ordinary
construction of a playground, and involves no damage to scenic resources. The
Project is not located on a hazardous waste site, and the project does not involve
substantial impacts to a historical resource.
On motion of Council Member Secrest, seconded by Council Member Loe, and on the
following roll call vote, to wit:
AYES: Council Member Secrest, Loe, Maraviglia, Guthrie, and Mayor Ray Russom
NOES: None
ABSENT: None
the foregoing Resolution was passed and adopted this 24th day of June, 2025.
CAREN RAY RUSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
MATTHEW DOWNING, CITY MANAGER
APPROVED AS TO FORM:
ISAAC ROSEN, CITY ATTORNEY
RESOLUTION NO. 2025-042
PAGE 4
REQUEST FOR PROPOSAL
FOR
PARKSIDE PARK PLAY STRUCTURE
PW 2024-09
Date Released: April 7, 2025
Mail/Deliver to:
City of Arroyo Grande
Attention: Theresa Wren, CIP Manager
1375 Ash Street
Arroyo Grande, CA 93420
Proposals Due:
2:00 P.M.
Tuesday, April 29, 2025
EXHIBIT A
REQUEST FOR PROPOSAL
PARKSIDE PARK PLAY STRUCTURE
PW 2024-09
The City of Arroyo Grande is inviting qualified firms to submit proposals for project scope
including demolition and removal of existing playground equipment, remove and replace
existing rubber surface in existing play area, design of new playground equipment with
requested elements, purchase and installation of new playground equipment at Parkside Park
(484 Bakeman Lane) in Arroyo Grande.
This Request for Proposals is posted on the City’s website at
http://www.arroyogrande.org/Bids.aspx
Any changes, additions, or deletions to this Request for Proposal will be in the form of written
addenda issued by the City. Any addenda will be posted on the website. Prospective
proposers must check the website for addenda or other relevant new information during the
response period. The City is not responsible for the failure of any prospective proposer to
receive such addenda. All addenda so issued shall become a part of this Request for Proposal.
A nonmandatory pre-bid conference will be held on April 15, 2025, at 10:00 AM on-site. Any
questions related to this RFP shall be submitted in writing to the attention of Theresa Wren,
Capital Improvement Project Manager, via email at twren@arroyogrande.org. Questions shall
be submitted before 2:00 pm on April 18, 2025. No oral questions or inquiries about this RFP
shall be accepted.
If your firm is interested and qualified, please submit three (3) hard copies of your proposed
package, one (1) Adobe Acrobat Portable Document Format (PDF) file of the proposal on flash
drive. Proposals must be clearly marked and delivered no later than 2:00 pm, Tuesday, April
29, 2025. Late submissions after the deadline or proposals delivered via fax will not be
accepted.
Submit and label as follows:
PROPOSAL for
PARKSIDE PARK PLAY STRUCTURE PW 2024-09
City of Arroyo Grande
Attention: Theresa Wren, CIP Manager
1375 Ash Street
Arroyo Grande, CA 93420
City of Arroyo Grande
RFP: Parkside Park Play Structure
Contents
GENERAL INFORMATION AND BACKGROUND ..................................................................................... 1
OUTLINE OF SERVICES TO BE PROVIDED ........................................................................................... 1
DESIGN ELEMENTS ................................................................................................................................. 2
IMPORTANT NOTES ................................................................................................................................. 2
DISCRETION AND LIABILITY WAIVER .................................................................................................... 3
VICINITY MAP AND PROJECT AREA ...................................................................................................... 4
PROJECT SITE PHOTOS .......................................................................................................................... 6
FORMAT OF PROPOSAL .......................................................................................................................... 8
EVALUATION OF PROPOSALS .............................................................................................................. 10
SCHEDULE OF PROPOSAL ACTIVITIES (Pacific Standard Time) ........................................................ 10
PAYMENT AND PERFORMANCE BOND ............................................................................................... 10
FINAL COMMENTS.................................................................................................................................. 10
ATTACHMENT A – SAMPLE CITY AGREEMENT .................................................................................. 11
City of Arroyo Grande
RFP: Parkside Park Play Structure
1
GENERAL INFORMATION AND BACKGROUND
The City of Arroyo Grande (City) is located on California’s central coast
approximately halfway between Los Angeles and San Francisco and has a
population of approximately 17,555. The City is currently a General Law city,
operating under the City Council/City Manager form of government. Arroyo Grande is
a full-service city, with police, streets, engineering, parks, recreation, water and
sewer services. Additionally, residents in the neighboring cities of Pismo Beach,
Grover Beach, and Oceano use many of Arroyo Grande’s recreational services. Fire
services are provided through the Five Cities Fire Authority, a joint powers authority
established between the City of Arroyo Grande, the City of Grover Beach, and the
Oceano Community Services District.
BACKGROUND:
Approximately twenty years ago, the current playground at Parkside Park in Arroyo
Grande was constructed during development of the adjacent residential
neighborhood. That residential neighborhood is part of an assessment district that
pays for Parkside Park and this playground.
The rubber surfacing within the concrete border around the play structure is beyond
repair and needs to be removed and replaced. The existing playground equipment
needs to be removed and replaced with playground equipment that meets the
requirements outlined below. The City also wants new surfacing, and a playhouse
installed in an adjacent area as indicated below. The City will evaluate all the
proposals received. The designs of the qualified proposers will be presented to the
neighborhood residents within the assessment district to vote on their preferred
design. Equipment design must meet the requirements of the Americans with
Disabilities Act (ADA) and utilize International Playground Equipment Manufacturers
Association (IPEMA) certified equipment that meets or exceeds all federal and state
guidelines and conforms to the playground-related technical standards set by the
American Society of Testing Materials International (ASTM) and the U.S. Consumer
Products Safety Commission.
OUTLINE OF SERVICES TO BE PROVIDED
1. Demolish and remove existing play structure.
2. Demolish and remove the existing rubber surface.
3. All materials demolished or removed are the property and responsibility of the
Contractor.
4. Provide and install new playground equipment, including equipment within the
existing play area and the playhouse requested for the adjacent trapezoidal area.
5. Install new rubber surface within the existing play area and the trapezoidal area.
6. Provide warranty and maintenance information for the installed equipment.
City of Arroyo Grande
RFP: Parkside Park Play Structure
2
DESIGN ELEMENTS
• ADA compliant
• All ages playground
• Utilize the space efficiently. Residents feel there is a lot of wasted space,
especially between the existing play structure and existing swings.
• Elements preferred include a slide and swings.
• A small playhouse in the trapezoidal area as noted on the vicinity map.
• Budget Limit: $225,000
• Must meet all national playground safety code requirements
• All equipment shall be installed by a factory trained and certified installer.
IMPORTANT NOTES
• Contractor(s) must be prepared to comply with all state, federal and local
requirements for play structure equipment. Contractors are responsible for
verifying site conditions. No allowances will be made if a Contractor fails to
adequately examine a location before submitting a Proposal.
• Following installation, a thorough audit of all newly installed play equipment will
be performed by an independent Certified Playground Safety Inspector (CPSI)
hired by the City. Contractor(s) will be required to address and resolve any
identified deficiencies within five (5) days of notification of the deficiencies by
the General Contractor or City Representative.
• All materials demolished or removed are the property and responsibility of the
Contractor.
The City has made every effort to include sufficient information within this Request for
Proposal for a Contractor to prepare a responsive, comprehensive proposal. To
achieve an equitable dissemination of information, a nonmandatory pre-bid onsite
meeting will be held to allow all interested firms to ask questions for the mutual
benefit of all involved. The timing of the proposal process is subject to change,
depending on the needs of the City, but is anticipated as follows:
a) Distribution of Request for Proposals: April 7, 2025
b) Questions: If you have questions, please submit your questions no later than April
18, 2025, to Theresa Wren, Capital Improvement Project Manager at (805) 473-
5441 or twren@arroyogrande.org.
c) Proposal Submission: Proposals must be clearly marked and delivered as noted
below no later than 2:00 pm, April 29, 2025. Late submissions after the deadline
or proposals delivered via fax will not be accepted. A total of three (3) identical
proposals and one (1) Adobe Acrobat Portable Document Format (PDF) file of the
proposal on flash drive must be submitted and labeled as follows:
City of Arroyo Grande
RFP: Parkside Park Play Structure
3
PROPOSAL for
PARKSIDE PARK PLAY STRUCTURE PW 2024-09
City of Arroyo Grande
Attention: Theresa Wren, CIP Manager
1375 Ash Street
Arroyo Grande, CA 93420
d) Proposal Review: Our review committee will evaluate each proposal submitted.
It is anticipated that the review process will be completed by May 20, 2025.
e) Notification to all proposers: We anticipate sending written notification to all
Contractors regarding the outcome of the review and contract award process by
June 11, 2025.
DISCRETION AND LIABILITY WAIVER
The City reserves the right to exercise discretion and apply its judgment with respect
to all proposals submitted.
The City reserves the right to reject all proposals, either in part or in its entirety, or
to request and obtain, from one or more of the consulting firms submitting proposals,
supplementary information as may be necessary for City staff to analyze the
proposals.
The Contractor, by submitting a response to this RFP, waives all rights to protest or
seek any legal remedies whatsoever regarding any aspect of this RFP.
The City reserves the right to cancel this RFP, in part or in its entirety, including, but
not limited to selection procedures, submittal date, and submittal requirements. The
City reserves the right to waive any minor irregularities and to request additional
information from proposing firms. If the City cancels or revises the RFP, all interested
firms will be notified using email.
By requesting proposals, the City is in no way obligated to award a contract or pay
expenses of the proposing Contractor in connection with the preparation or
submission of a proposal.
All proposals submitted in response to this RFP become the property of the City and
public records and, as such, may be subject to public review.
City of Arroyo Grande
RFP: Parkside Park Play Structure
4 Approx. 65’ NTS
Approx. 24’
Approx. 1785 SF of
rubber surface to be
removed and
replaced. New play
equipment to be
installed.
VICINITY MAP AND PROJECT AREA
Approx. 75 SF of
existing dirt. New
rubber surface and
playhouse to be
installed.
City of Arroyo Grande
RFP: Parkside Park Play Structure
5
City of Arroyo Grande
RFP: Parkside Park Play Structure
6
PROJECT SITE PHOTOS
Existing playground and surface, facing west.
Existing playground and surface, facing east.
City of Arroyo Grande
RFP: Parkside Park Play Structure
7
Existing swings and surface, facing east.
Trapezoid area for new rubber surface and small playhouse, facing northwest.
City of Arroyo Grande
RFP: Parkside Park Play Structure
8
FORMAT OF PROPOSAL
To adequately compare and evaluate proposals objectively, all proposals must be
twenty-five (25) pages or less.
One (1) original, two (2) copies, and one (1) Adobe Acrobat Portable Document Format
(PDF) file of the proposal on flash drive shall be submitted in sealed packages. The
Proposer’s name and address should be marked on the outside of the envelope.
Facsimile, e-mail transmittals or offers communicated by telephone will not be accepted
or considered. Proposal information that is not submitted in sealed packages will not be
considered. The Proposal should contain the following information:
I. INTRODUCTION
A cover letter containing the following information:
a. A description of the capability and history of the contractor.
b. A summary of the contractor’s understanding of the project, including a brief
description of how the project would be organized and built.
c. Signed by a signatory who is authorized to bind the company to this
proposal.
II. RELEVANT EXPERIENCE
History of similar projects completed within the last three years, including cost and
client contact information.
III. LICENSES AND CERTIFICATIONS
a. California State Contractors License Board contractor license number and type
of licenses held.
b. Proof of installer factory certification
IV. REFERENCES
A list of three (3) references including product or service provided, name of
agency, contact person, phone number and/or e-mail.
V. DESIGN NO. 1
The following items shall be provided in a section labeled DESIGN NO. 1. If any
required items listed below are missing from the proposal, DESIGN NO. 1 will not
be considered:
A. EQUIPMENT
1. A scaled site plan showing the proposed equipment and relationship
to existing boundaries.
2. Drawings and manufacturer’s printed literature and specifications for
each component of the modular equipment being proposed.
3. Information regarding the rubber surface proposed.
B. SCHEDULE
Anticipated lead time for equipment procurement, delivery and installation.
City of Arroyo Grande
RFP: Parkside Park Play Structure
9
B. COST
Breakdown of cost including, but not limited to:
1. Equipment (including structures, components, signage, hardware,
equipment manuals and operations manuals)
2. Demolition and removal of existing structures and surface. All
materials demolished or removed are the property and responsibility
of the Contractor.
3. Installation of equipment
4. Installation of rubber surface.
D. WARRANTIES
Submit equipment warranty for review, including availability of replacement
components, and proof of Manufacturer's Product Liability Insurance
VI. DESIGN NO. 2
The Contractor may choose to submit a second design. NO MORE THAN TWO
DESIGNS WILL BE CONSIDERED. If the Contractor chooses to submit a
second design, the following items shall be provided in a section labeled
DESIGN NO. 2. If any required items listed below are missing from the proposal,
the design will not be considered:
A. EQUIPMENT
1. A scaled site plan showing the proposed equipment and relationship
to existing boundaries.
2. Drawings and manufacturer’s printed literature and specifications for
each component of the modular equipment being proposed.
3. Information regarding the rubber surface proposed.
B. SCHEDULE
Anticipated lead time for equipment procurement, delivery and installation.
C. COST
Breakdown of cost including, but not limited to:
1. Equipment (including structures, components, signage, hardware,
equipment manuals and operations manuals)
2. Demolition and removal of existing structures and surface. All
materials demolished or removed are the property and responsibility
of the Contractor.
3. Installation of equipment
4. Installation of rubber surface.
D. WARRANTIES
Submit equipment warranty for review, including availability of replacement
components, and proof of Manufacturer's Product Liability Insurance
City of Arroyo Grande
RFP: Parkside Park Play Structure
10
EVALUATION OF PROPOSALS
The Proposals received will be evaluated in a two-step process.
Step 1: City staff evaluate for responsiveness based on the following criteria:
• Inclusion of the requested Design Elements
• Thoroughness and understanding of the tasks to be completed
• Cost within the established budget
• Relevant experience
• Installation within 90 days of Notice to Proceed
Proposals that are unresponsive based on the criteria in Step 1 will not move onto Step 2.
Step 2: Final Selection by the Parkside Park Assessment District Residents
The City will present the designs of the responsive proposers from Step 1 to the residents
within the Parkside Park Assessment District. The residents of the Parkside Park
Assessment District will be able to cast one vote for their preferred design. The City will
tabulate the results to determine the Contractor to be awarded the Contract.
SCHEDULE OF PROPOSAL ACTIVITIES (Pacific Standard Time)
Estimated and subject to change
Schedule
Distribution of RFP April 7, 2025
Pre-Bid Conference April 15, 2025 @10:00AM
Questions due April 18, 2025
Proposal submission April 29, 2025 @ 2:00 PM
Proposal review May 1, 2025
Assessment District Voting May 2 – 16, 2025
Contract approval by City Council June 10, 2025
Project to commence July 14, 2025
PAYMENT AND PERFORMANCE BOND
Pursuant to California Civil Code Section 9550 et seq, any successful bidder for
cumulative work more than $25,000 shall be furnished to the City at the time of contract
execution a payment bond approved by the City in an amount equal to one hundred
percent (100%) of the contract price. The successful bidder for cumulative work in
excess of $25,000 shall also furnish to the City at the time of execution of the contract a
faithful performance bond approved by the City in an amount equal to one hundred
percent (100%) of the contract price.
FINAL COMMENTS
The City of Arroyo Grande appreciates the efforts all the Contractors have put forth in
responding to the Request for Proposal.
ATTACHMENT A – SAMPLE CITY AGREEMENT
ARROYO GRANDE
CONSTRUCTION CONTRACT
PARKSIDE PARK PLAY STRUCTURE - PW 2024-09
1. PARTIES AND DATE.
This contract ("Contract" or "Contract Documents") is made and entered into this _____
day of _________, 20__ by and between the Arroyo Grande, a public agency of the State of
California ("City") and Landscape Structures, Inc., a California Corporation with its principal place
of business at P.O. 86, Minneapolis, MN 55486 ("Contractor''). City and Contractor are
sometimes individually referred to as "Party" and collectively as "Parties" in this Contract.
2. RECITALS.
2.1 City. City is a public agency organized under the laws of the State of
California, with power to contract for services necessary to achieve its purpose.
2.2 Contractor. Contractor desires to perform and assume responsibility for the
provision of certain construction, site work and equipment procurement services required by the
City on the terms and conditions set forth in this Contract. Contractor represents that it is duly
licensed and experienced in providing playground installation services to public clients, that it
and its employees or subcontractors have all necessary licenses and permits to perform the
services in the State of California, and that it is familiar with the plans of City. The following
license classifications are required for this Project: A
2.3 Project. City desires to engage Contractor to render such services for the
PARKSIDE PARK PLAY STRUCTURE - PW 2024-09, as detailed in the Request for Proposal,
Addendum #1 and proposal/quote included herein by reference ("Project") as set forth in this
Contract.
2.4 Project Documents & Certifications. Contractor has obtained, and delivers
concurrently herewith, a performance bond, a payment bond, and all insurance documentation,
as required by the Contract.
3. TERMS
3.1 Incorporation of Documents. This Contract and the Contract Documents
hereby incorporates in full by reference the following documents, including all exhibits,
drawings, specifications and documents therein, and attachments and addenda thereto:
• Plans and Specifications
• Bid and Addenda
• Payment and Performance Bonds
• Bid (Exhibit "B"). Unit prices as corrected by contractor will be used as basis
for payment.
3.2 Contractor's Basic Obligation; Scope of Work. Contractor promises and
agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment,
services, and incidental and customary work necessary to fully and adequately complete the
Project, for the agreed price. All Work shall be subject to, and performed in accordance with the
above referenced documents, as well as the exhibits attached hereto and incorporated herein
by reference.
3.2.1 Change in Scope of Work. Any change in the scope of the Work, method
of performance, nature of materials or price thereof, or any other matter materially affecting the
performance or nature of the Work shall not be paid for or accepted unless such change, addition or
deletion is approved in writing by a valid change order executed by the City. Should Contractor request
a change order due to unforeseen circumstances affecting the performance of the Work, such request
shall be made within five (5) business days of the date such circumstances are discovered or shall
waive its right to request a change order due to such circumstances. If the Parties cannot agree on
any change in price required by such change in the Work, the City may direct the Contractor to proceed
with the performance of the change on a time and materials basis.
3.2.2 Substitutions/"Or Equal". Pursuant to Public Contract Code Section 3400(b), the City
may make a finding that designates certain products, things, or services by specific brand or trade
name. Unless specifically designated in this Contract, whenever any material, process, or article is
indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such
Specifications shall be deemed to be used for the purpose of facilitating the description of the material,
process or article desired and shall be deemed to be followed by the words "or equal."
Contractor may, unless otherwise stated, offer for substitution any material,
process or article which shall be substantially equal or better in every respect to that so indicated or
specified in this Contract. However, the City may have adopted certain uniform standards for certain
materials, processes and articles. Contractor shall submit requests, together with substantiating data,
for substitution of any "or equal" material, process or article no later than thirty-five (35) days after
award of the Contract. To facilitate the construction schedule and sequencing, some requests may
need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding
submission of "or equal" requests shall not in any way authorize an extension of time for performance
of this Contract. If a proposed "or equal" substitution request is rejected, Contractor shall be
responsible for providing the specified material, process or article. The burden of proof as to the
equality of any material, process or article shall rest with Contractor.
The City has the complete and sole discretion to determine if a material, process
or article is an "or equal" material, process or article that may be substituted. Data required to
substantiate requests for substitutions of an "or equal" material, process or article data shall include a
signed affidavit from Contractor stating that, and describing how, the substituted "or equal" material,
process or article is equivalent to that specified in every way except as listed on the affidavit.
Substantiating data shall include any and all illustrations, specifications, and other relevant data
including catalog information which describes the requested substituted "or equal" material, process
or article, and substantiates that it is an "or equal" to the material, process or article. The substantiating
data must also include information regarding the durability and lifecycle cost of the requested
substituted "or equal" material, process or article. Failure to submit all the required substantiating data,
including the signed affidavit, to the City in a timely fashion will result in the rejection of t he proposed
substitution.
Contractor shall bear all of the City's costs associated with the review of substitution requests.
Contractor shall be responsible for all costs related to a substituted "or equal" material, process or
article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant
to Public Contract Code section 3400.
3.3 Period of Performance and Liquidated Damages. Contractor shall perform
and complete all Work under this Contract beginning the effective date of the Notice to Proceed
(“Contract Time”). Contractor shall perform its Work in strict accordance with any completion
schedule, construction schedule or project milestones mutually agreed upon by the City and
Contractor. Such schedules or milestones shall be separately documented in writing. Contractor
agrees that if such Work is not completed within the aforementioned Contract Time and/or
pursuant to any such completion schedule, construction schedule or project milestones
developed pursuant to provisions of the Contract and if such delay is caused by Contractor’s
acts or omissions, it is understood, acknowledged and agreed that the City will suffer damage.
Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and
liquidated damages the sum of Two Hundred Dollars ($200) per day for each and every calendar
day of delay beyond the Contract Time or beyond any completion schedule, construction
schedule or Project milestones established pursuant to the Contract.
3.4 Standard of Performance: Performance of Employees. Contractor shall
perform all Work under this Contract in a skillful and workmanlike manner, and consistent with
the standards generally recognized as being employed by professionals in the same discipline
in the State of California. Contractor represents and maintains that it is skilled in the professional
calling necessary to perform the Work. Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Work assigned to them.
Finally, Contractor represents that it, its employees and subcontractors have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to perform the
Work, including any required business license, and that such licenses and approvals shall be
maintained throughout the term of this Contract. As provided for in the indemnification provisions
of this Contract, Contractor shall perform, at its own cost and expense and without
reimbursement from the City, any work necessary to correct errors or omissions which are
caused by Contractor's failure to comply with the standard of care provided for herein. Any
employee who is determined by the City to be uncooperative, incompetent, a threat to the safety
of persons or the Work, or any employee who fails or refuses to perform the Work in a manner
acceptable to the City, shall be promptly removed from the Project by Contractor and shall not
be re-employed on the Work.
3.5 Control and Payment of Subordinates; Contractual Relationship. City
retains Contractor on an independent contractor basis and Contractor is not an employee of City.
Any additional personnel performing the work governed by this Contract on behalf of Contractor
shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all
wages, salaries, and other amounts due such personnel in connection with their performance
under this Contract and as required by law. Contractor shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, and workers' compensation insurance.
3.6 City's Basic Obligation. City agrees to engage and does hereby engage
Contractor as an independent contractor to furnish all materials and to perform all Work according
to the terms and conditions herein contained for the sum set forth above. Except as otherwise
provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory
performance by Contractor of the services and obligations required by this Contract, the below-
referenced compensation in accordance with compensation provisions set forth in the Contract.
3.7 Compensation and Payment.
3.7.1 Amount of Compensation. As consideration for performance of the Work
required herein, City agrees to pay Contractor for services performed provided that such amount
shall be subject to adjustment pursuant to the applicable terms of this Contract or written change
orders approved and signed in advance by the City.
3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less
calendar days, City will arrange for payment of the Total Contract Price upon completion and
approval by City of the Work. If the Work is scheduled for completion in more than thirty (30)
calendar days, City will pay Contractor on a monthly basis as provided for herein. On or before
the fifth (5th) day of each month, Contractor shall submit to the City an itemized application for
payment in the format supplied by the City indicating the amount of Work completed since
commencement of the Work or since the last progress payment. These applications shall be
supported by evidence which is required by this Contract and such other documentation as the
City may require. The Contractor shall certify that the Work for which payment is requested has
been done and that the materials listed are stored where indicated. Contractor may be required
to furnish a detailed schedule of values upon request of the City and in such detail and form as
the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses
involved in order to provide a basis for determining the amount of progress payments.
3.7.3 Prompt Payment. City shall review and pay all progress payment requests
in accordance with the provisions set forth in Section 20104.50 of the California Public Contract
Code. However, no progress payments will be made for Work not completed in accordance with
this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to
the proper payment of its employees, subcontractors, suppliers or others.
3.7.4 Reserved.
3.7.5 Other Retentions. In addition to Contract retentions, the City may deduct
from each progress payment an amount necessary to protect City from loss because of: (1)
liquidated damages which have accrued as of the date of the application for payment; (2) any
sums expended by the City in performing any of Contractor's obligations under the Contract which
Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied;
(4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for
the unpaid balance of the Total Contract Price or within the scheduled completion date; (6)
unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the
Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient
documentation as required by the Contract or by City during the prosecution of the Work; (9)
erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums
representing expenses, losses, or damages as determined by the City, incurred by the City for
which Contractor is liable under the Contract; and (11) any other sums which the City is entitled
to recover from Contractor under the terms of the Contract or pursuant to state law, including
Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums
from a progress payment shall not constitute a waiver of the City's right to such sums.
3.7.6 Substitutions for Contract Retentions. In accordance with California Public
Contract Code Section 22300, the City will permit the substitution of securities for any monies
withheld by the City to ensure performance under the Contract. At the request and expense of
Contractor, securities equivalent to the amount withheld shall be deposited with the City, or with
a state or federally chartered bank in California as the escrow agent, and thereafter the City shall
then pay such monies to Contractor as they come due. Upon satisfactory completion of the
Contract, the securities shall be returned to Contractor. For purposes of this Section and Section
22300 of the Public Contract Code, the term "satisfactory completion of the contract" shall mean
the time the City has issued written final acceptance of the Work and filed a Notice of Completion
as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any
securities substituted for monies withheld and shall receive any interest thereon. The escrow
agreement used for the purposes of this Section shall be in the form provided by the City.
3.7.7 Title to Work. As security for partial, progress, or other payments, title to Work
for which such payments are made shall pass to the City at the time of payment. To the extent
that title has not previously been vested in the City by reason of payments, full title shall pass to
the City at delivery of the Work at the destination and time specified in this Contract. Such
transferred title shall in each case be good, free and clear from any and all security interests,
liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate,
or otherwise encumber the items in any manner that would result in any lien, security interest,
charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by
the City, nor relieve Contractor from the responsibility to strictly comply with the Contract and shall
not relieve Contractor of responsibility for any loss of or damage to items.
3.7.8 Labor and Material Releases. Contractor shall furnish City with labor
and material releases from all subcontractors performing work on, or furnishing materials for, the
Work governed by this Contract prior to final payment by City.
3.7.9 Prevailing Wages. Contractor is aware of the requirements of California
Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations,
Title 8, Section 16000 et seq., ("Prevailing Wage Laws"), which require the payment of prevailing
wage rates and the performance of other requirements on "public works" and "maintenance"
projects. Since the Services are being performed as part of an applicable "public works" or
"maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is
$25,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall
provide Contractor with a copy of the prevailing rates of per diem wages in effect at the
commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem
wages for each craft, classification or type of worker needed to execute the Services available to
interested parties upon request and shall post copies at Contractor's principal place of business
and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers,
employees and agents free and harmless from any claim or liability arising out of any failure or
alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall
forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than
the prevailing wage rates.
3.7.10 Apprenticeable Crafts. If the Total Contract Price exceeds $35,000
and if Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply
with the provisions of Section 1777.5 of the California Labor Code with respect to the employment
of properly registered apprentices upon public works. The primary responsibility for compliance
with said section for all apprenticeable occupations shall be with Contractor. The Contractor or
any subcontractor that is determined by the Labor Commissioner to have knowingly violated
Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar
day of noncompliance, or such greater amount as provided by law.
3.7.11 Hours of Work. If the Total Contract Price exceeds $25,000, Contractor is
advised that eight (8) hours labor constitutes a legal day's work. Pursuant to Section 1813 of the
California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that
each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40)
hours in any one calendar week, except when payment for overtime is made at not less than one
and one-half (1-1/2) times the basic rate for that worker.
3.7.12 Payroll Records. If the Total Contract Price exceeds $25,000,
Contractor and each subcontractor shall keep an accurate payroll record, 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 by him or her in connection with the public work. The payroll records
shall be certified and shall be available for inspection at all reasonable hours at the principal office
of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance
with the requirements of this section, Contractor shall have 10 days in which to comply
subsequent to receipt of written notice specifying in what respects such Contractor must comply
with this section. Should noncompliance still be evident after such 10-day period, Contractor shall,
as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for
each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined
by the Labor Commissioner. A contractor who is found to have violated the provisions of law
regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public
Works contracts for a period of one to three years as determined by the Labor Commissioner.
Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards
Enforcement, such penalties shall be withheld from progress payments then due. The
responsibility for compliance with this section is on Contractor. The requirement to submit certified
payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not
apply to work performed on a public works project that is exempt pursuant to the small project
exemption specified in Labor Code Section 1771.4.
3.7.13 Contractor and Subcontractor Registration. If the Total Contract Price
exceeds $25,000, then pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and
subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform
public work must be registered with the Department of Industrial Relations. No bid will be accepted
nor any contract entered into without proof of the contractor's and subcontractors' current
registration with the Department of Industrial Relations to perform public work. Contractor is
directed to review, fill out and execute the Public Works Contractor Registration Certification prior
to contract execution. Notwithstanding the foregoing, the contractor registration requirements
mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a
public works project that is exempt pursuant to the small project exemption specified in Labor
Code Sections 1725.5 and 1771.1.
3.7.14 Labor Compliance: Stop Orders. If the Total Contract Price exceeds
$25,000, Contractor acknowledges that it is aware that this Project is subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor's
sole responsibility to evaluate and pay the cost of complying with all labor compliance
requirements under this Contract and applicable law. Any stop orders issued by the Department
of Industrial Relations against Contractor or any subcontractor that affect Contractor's
performance of Work, including any delay, shall be Contractor's sole responsibility. Any delay
arising out of or resulting from such stop orders shall be considered Contractor caused delay
subject to any applicable liquidated damages and shall not be compensable by the City.
Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents
free and harmless from any claim or liability arising out of stop orders issued by the Department
of Industrial Relations against Contractor or any subcontractor.
3.8 Performance of Work; Jobsite Obligations.
3.8.1 Water Quality Management and Compliance.
3.8.1.1 Water Quality Management and Compliance. Contractor
shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance
with all local, state and federal laws, rules and regulations that may impact, or be implicated by
the performance of the Work including, without limitation, all applicable provisions of the Federal
Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter -Cologne Water Quality
Control Act (Cal Water Code§§ 13000-14950); local ordinances regulating discharges of storm
water; and any and all regulations, policies, or permits issued pursuant to any such authority
regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality
Control Act, to any ground or surface water in the State.
3.8.1.2 Compliance with the Statewide Construction General
Permit. Contractor shall comply with all conditions of the most recent iteration of the National
Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated
with Construction Activity, issued by the California State Water Resources Control Board
("Permit"). It shall be Contractor's sole responsibility to file a Notice of Intent and procure coverage
under the Permit for all construction activity which results in the disturbance of more than one
acre of total land area or which is part of a larger common area of development or sale. Prior to
initiating work, Contractor shall be solely responsible for preparing and implementing a Storm
Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be
responsible for procuring, implementing and complying with the provisions of the Permit and the
SWPPP, including the standard provisions, and monitoring and reporting requirements as required
by the Permit. The Permit requires the SWPPP to be a "living document" that changes as
necessary to meet the conditions and requirements of the job site as it progresses through
difference phases of construction and is subject to different weather conditions. It shall be
Contractor's sole responsibility to update the SWPPP as necessary to address conditions at the
project site.
3.8.1.3 Other Water Quality Rules Regulations and Policies.
Contractor shall comply with the lawful requirements of any applicable municipality, drainage City,
or local agency regarding discharges of storm water to separate storm drain systems or other
watercourses under their jurisdiction, including applicable requirements in municipal storm water
management programs.
3.8.1.4 Cost of Compliance. Storm, surface, nuisance, or other
waters may be encountered at various times during construction of The Work. Therefore, the
Contractor, by submitting a Bid, hereby acknowledges that it has investigated the risk arising from
such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising
therefrom.
3.8.1.5 Liability for Non-Compliance. Failure to comply with the Permit is
a violation of federal and state law. Pursuant to the indemnification provisions of this Contract,
Contractor hereby agrees to defend, indemnify and hold harmless the City and its officials,
officers, employees, volunteers and agents for any alleged violations. In addition, City may seek
damages from Contractor for any delay in completing the Work in accordance with the Contract,
if such delay is caused by or related to Contractor's failure to comply with the Permit.
3.8.1.6 Reservation of Right to Defend. City reserves the right to
defend any enforcement action brought against the City for Contractor's failure to comply with the
Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification
provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City
for the costs (including the City's attorney's fees) associated with, any settlement reached
between the City and the relevant enforcement entity.
3.8.1.7 Training. In addition to the standard of performance
requirements set forth in paragraph 3.4, Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Work assigned to them
without impacting water quality in violation of the laws, regulations and policies described in
paragraph 3.8.1.
.
3.8.2 Safety. Contractor shall execute and maintain its work so as to avoid injury
or damage to any person or property. Contractor shall comply with the requirements of the
specifications relating to safety measures applicable in particular operations or kinds of work. In
carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state
and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety
of employees appropriate to the nature of the Work and the conditions under which the Work is
to be performed. Safety precautions as applicable shall include, but shall not be limited to,
adequate life protection and lifesaving equipment; adequate illumination for underground and
night operations; instructions in accident prevention for all employees, such as machinery guards,
safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching
and shoring, fall protection and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the
proper inspection and maintenance of all safety measures. Furthermore, Contractor shall
prominently display the names and telephone numbers of at least two medical doctors practicing
in the vicinity of the Project, as well as the telephone number of the local ambulance service,
adjacent to all telephones at the Project site.
3.8.3 Laws and Regulations. Contractor shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner affecting
the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give
all notices required by law. Contractor shall be liable for all violations of such laws and regulations
in connection with Work. If Contractor observes that the drawings or specifications are at variance
with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes
shall be made by written change order. If Contractor performs any work knowing it to be contrary
to such laws, rules and regulations and without giving written notice to the City, Contractor shall
be solely responsible for all costs arising therefrom. City is a public entity of the State of California
subject to certain provisions of the Health & Safety Code, Government Code, Public Contract
Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law
applicable to the public contracts of a municipality are a part of this Contract to the same extent
as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold
City, its officials, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Contract, from any claim or liability arising out of any failure or
alleged failure to comply with such laws, rules or regulations.
3.8.4 Permits and Licenses. Contractor shall be responsible for securing City
permits and licenses necessary to perform the Work described herein, including, but not limited
to, any required business license. While Contractor will not be charged a fee for any City permits,
Contractor shall pay the City's business license fee, if any. Any ineligible contractor or
subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this
Project.
3.8.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work
governed by this Contract entails excavation of any trench or trenches five (5) feet or more in
depth, Contractor shall comply with all applicable provisions of the California Labor Code,
including Section 6705. To this end, Contractor shall submit for City's review and approval a
detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for
worker protection from the hazard of caving ground during the excavation of such trench or
trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a
registered civil or structural engineer.
3.8.6 Hazardous Materials and Differing Conditions. As required by California
Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations
that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to
disturbance of any conditions, notify City of: (1) any material discovered in excavation that
Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II
or Class Ill disposal site; (2) subsurface or latent physical conditions at the site differing from those
indicated by City; and (3) unknown physical conditions of an unusual nature at the site,
significantly different from those ordinarily encountered in such contract work. Upon notification,
City shall promptly investigate the conditions to determine whether a change order is appropriate.
In the event of a dispute, Contractor shall not be excused from any scheduled completion date
and shall proceed with all Work to be performed under the Contract but shall retain all rights
provided by the Contract or by law for making protests and resolving the dispute.
3.8.7 Underground Utility Facilities. To the extent required by Section 4215 of
the California Government Code, City shall compensate Contractor for the costs of: (1) locating
and repairing damage to underground utility facilities not caused by the failure of Contractor to
exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in
the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall
not be assessed liquidated damages for delay caused by failure of City to provide for removal or
relocation of such utility facilities.
3.8.8 Air Quality. Contractor must fully comply with all applicable laws, rules and
regulations in furnishing or using equipment and/or providing services, including, but not limited
to, emissions limits and permitting requirements imposed by the California Air Resources Board
(CARB). Although CARB limits and requirements are more broad, Contractor shall specifically be
aware of their application to "portable equipment", which definition is considered by CARS to
include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against
any fines or penalties imposed by CARS, or any other governmental or regulatory agency for
violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others
for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.8.9 State Recycling Mandates. Contractor shall comply with State Recycling
Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly
diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.
3.9 Completion of Work. When Contractor determines that it has completed the Work
required herein, Contractor shall so notify City in writing and shall furnish all labor and material
releases required by this Contract. City shall thereupon inspect the Work. If the Work is not
acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items
of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed
the incomplete or unsatisfactory Work, Contractor may request a reinspection by the City. Once
the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to
be paid, less any amount which City may be authorized or directed by law to retain. Payment of
retention proceeds due to Contractor shall be made in accordance with Section 7107 of the
California Public Contract Code.
3.10 Claims; Government Code Claim Compliance.
3.10.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California
Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial
supervised mediation, and judicial arbitration to resolve disputes on construction claims of
$375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes
a process for negotiation and mediation to resolve disputes on construction claims. The intent of
this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public
Contract Code. This Section shall be construed to be consistent with said statutes.
3.10.2 Claims. For purposes of this Section, "Claim" means a separate demand
by the Contractor, after a change order duly requested in accordance with the terms of this
Contract has been denied by the City, for (A) a time extension, (B) payment of money or damages
arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an
amount the payment of which is disputed by the City. Claims governed by this Section may not
be filed unless and until the Contractor completes all procedures for giving notice of delay or
change and for the requesting of a time extension or change order, including but not necessarily
limited to the change order procedures contained herein, and Contractor's request for a change
has been denied in whole or in part. Claims governed by this Section must be filed no later than
fourteen (14) days after a request for change has been denied in whole or in part or after any
other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall
include on its first page the following in 16-point capital font: "THIS IS A CLAIM." Furthermore, the
claim shall include the documents necessary to substantiate the claim. Nothing in this Section is
intended to extend the time limit or supersede notice requirements otherwise provided by contract
for the filing of claims, including all requirements pertaining to compensation or payment for extra
Work, disputed Work, and/or changed conditions. Failure to follow such contractual requirements
shall bar any claims or subsequent lawsuits for compensation or payment thereon.
3.10.3 Supporting Documentation. The Contractor shall submit all claims in the
following format:
3.10.3.1 Summary of claim merit and price, reference Contract Document
provisions pursuant to which the claim is made
3.10.3.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
3.10.3.3 Chronology of events and correspondence
3.10.3.4 Analysis of claim merit
3.10.3.5 Analysis of claim cost
3.10.3.6 Time impact analysis in CPM format
3.10.3.7 If Contractor's claim is based in whole or in part on an
allegation of errors or omissions in the Drawings or Specifications for the Project, Contractor shall
provide a summary of the percentage of the claim subject to design errors or omissions and shall
obtain a certificate of merit in support of the claim of design errors and omissions.
3.10.3.8 Cover letter and certification of validity of the claim, including
any claims from subcontractors of any tier, in accordance with Government Code section 12650
et seq.
3.10.4 City's Response. Upon receipt of a claim pursuant to this Section, City
shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall
provide the Contractor a written statement identifying what portion of the claim is disputed and
what portion is undisputed. Any payment due on an undisputed portion of the claim will be
processed and made within 60 days after the public entity issues its written statement.
3.10.4.1 If City needs approval from its governing body to provide the
Contractor a written statement identifying the disputed portion and the undisputed portion of the
claim, and the governing body does not meet within the 45 days or within the mutually a greed to
extension of time following receipt of a claim sent by registered mail or certified mail, return receipt
requested, City shall have up to three days following the next duly publicly noticed meeting of the
governing body after the 45-day period, or extension, expires to provide the Contractor a written
statement identifying the disputed portion and the undisputed portion.
3.10.4.2 Within 30 days of receipt of a claim, City may request in
writing additional documentation supporting the claim or relating to defenses or claims City may
have against the Contractor. If additional information is thereafter required, it shall be requested
and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor.
3.10.4.3 City's written response to the claim, as further documented,
shall be submitted to the Contractor within 30 days (if the claim is less than $50,000, within 15
days) after receipt of the further documentation, or within a period of time no greater than that
taken by the Contractor in producing the additional information or requested documentation,
whichever is greater.
3.10.5 Meet and Confer. If the Contractor disputes City's written response, or City
fails to respond within the time prescribed, the Contractor may so notify City, in writing, either
within 15 days of receipt of City's response or within 15 days of City's failure to respond within the
time prescribed, respectively, and demand an informal conference to meet and confer for
settlement of the issues in dispute. Upon receipt of a demand, City shall schedule a meet and
confer conference within 30 days for settlement of the dispute.
3.10.6 Mediation. Within 10 business days following the conclusion of the meet
and confer conference, if the claim or any portion of the claim remains in dispute, City shall provide
the Contractor a written statement identifying the portion of the claim that remains in dispute and
the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be
processed and made within 60 days after City issues its written statement. Any disputed portion
of the claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation,
with City and the Contractor sharing the associated costs equally. City and Contractor shall
mutually agree to a mediator within 10 business days after the disputed portion of the claim has
been identified in writing, unless the parties agree to select a mediator at a later time.
3.10.6.1 If the Parties cannot agree upon a mediator, each Party
shall select a mediator and those mediators shall select a qualified neutral third party to mediate
with regard to the disputed portion of the claim. Each Party shall bear the fees and costs charged
by its respective mediator in connection with the selection of the neutral mediator.
3.10.6.2 For purposes of this section, mediation includes any
nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in
which an independent third party or board assists the Parties in dispute resolution through
negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes
in this section.
3.10.6.3 Unless otherwise agreed to by City and the Contractor in
writing, the mediation conducted pursuant to this section shall excuse any further obligation under
Section 20104.4 to mediate after litigation has been commenced.
3.10.6.4 The mediation shall be held no earlier than the date the Contractor
completes the Work or the date that the Contractor last performs Work, whichever is earlier. All
unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim
arises after mediation is completed.
3.10.7 Procedures After Mediation. If following the mediation, the claim or any
portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing
with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title
1 of the Government Code. For purposes of those provisions, the running of the period of time
within which a claim must be filed shall be tolled from the time the Contractor submits his or her
written claim pursuant to subdivision (a) until the time the claim is denied, including any period of
time utilized by the meet and confer conference or mediation.
3.10.8 Civil Actions. The following procedures are established for all civil actions
filed to resolve claims subject to this Section:
3.10.8.1 Within 60 days, but no earlier than 30 days, following the
filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless
waived by mutual stipulation of both parties or unless mediation was held prior to commencement
of the action in accordance with Public Contract Code section 9204 and the terms of these
procedures. The mediation process shall provide for the selection within 15 days by both parties
of a disinterested third person as mediator, shall be commenced within 30 days of the submittal,
and shall be concluded within 15 days from the commencement of the mediation unless a time
requirement is extended upon a good cause showing to the court.
3.10.8.2 If the matter remains in dispute, the case shall be submitted
to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part
3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery
Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code
of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with
the rules pertaining to judicial arbitration.
3.10.8.3 In addition to Chapter 2.5 (commencing with Section
1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible,
be experienced in construction law, and (B) any party appealing an arbitration award who does
not obtain a more favorable judgment shall, in addition to payment of costs and fees under that
chapter, also pay the attorney's fees on appeal of the other party.
3.10.9 Government Code Claims. In addition to any and all contract requirements
pertaining to notices of and requests for compensation or payment for extra work, disputed work,
claims and/or changed conditions, Contractor must comply with the claim procedures set forth in
Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such
Government Code claims and any subsequent lawsuit based upon the Government Code claims
shall be limited to those matters that remain unresolved after all procedures pertaining to extra
work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no
such Government Code claim is submitted, or if any prerequisite contractual requirements are not
otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining
a valid lawsuit against the City. A Government Code claim must be filed no earlier than the date
the work is completed or the date the Contractor last performs work on the Project, whichever
occurs first. A Government Code claim shall be inclusive of all unresolved claims unless a new
unrelated claim arises after the Government Code claim is submitted.
3.10.10 Non-Waiver. City's failure to respond to a claim from the Contractor
within the time periods described in this Section or to otherwise meet the time requirements of
this Section shall result in the claim being deemed rejected in its entirety. City's failure to respond
shall not waive City's rights to any subsequent procedures for the resolution of disputed claims.
3.11 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be
responsible for all loss and damage which may arise out of the nature of the Work agreed to
herein, or from the action of the elements, or from any unforeseen difficulties which may arise or
be encountered in the prosecution of the Work until the same is fully completed and accepted by
City.
3.12 Indemnification.
3.12.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall
defend, indemnify and hold the City, its officials, employees, agents and authorized volunteers
free and harmless from any and all claims, demands, causes of action, suits, actions,
proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage
or injury of any kind, in law or equity, to property or persons, including wrongful death, that are
alleged by a third party (collectively, "Claims") to the extent arising out of any alleged acts, errors
or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors,
consultants or agents in connection with the performance of the Contractor's services, the Project
or this Agreement, including without limitation the payment of all consequential damages, expert
witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the
foregoing, to the extent required by Civil Code section 2782, Contractor's indemnity obligation
shall not apply to liability for damages for death or bodily injury to persons, injury to property, or
any other loss, damage or expense arising from the sole or active negligence or willful misconduct
of the City or the City's agents, servants, or independent contractors who are directly responsible
to the City, or for defects in design furnished by those persons.
3.12.2 Additional Indemnity Obligations. Contractor shall defend, at Contractor's
own cost, expense and risk, any and all Claims covered by this section that may be brought or
instituted against City or its officials, employees, agents and authorized volunteers. In addition,
Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or
its officials, employees, agents and authorized volunteers as part of any such Claim. Contractor shall
also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and
authorized volunteers as part of any such Claim, if Contractor has approved such settlement. Such
reimbursement shall include payment for City's reasonable out-of-pocket fees and costs, including
expert witness fees. Contractor shall reimburse City and its officials, employees, agents and
authorized volunteers, for any and all reasonable out-of-pocket legal expenses and costs incurred by
each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its
officials, employees, agents and authorized volunteers.
3.13 Insurance.
3.13.1 Time for Compliance. Contractor shall not commence Work under
this Contract until it has provided evidence satisfactory to the City that it has secured all insurance
required under this section. In addition, Contractor shall not allow any subcontractor to commence
work on any subcontract until it has provided evidence satisfactory to the City that the
subcontractor has secured all insurance required under this section. Failure to provide and
maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
3.13.2 Minimum Requirements. Contractor shall, at its expense, procure
and maintain for the duration of the Contract insurance against claims for injuries to persons or
damages to property which may arise from or in connection with the performance of the Work
hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor
shall also require all of its subcontractors to procure and maintain the same insurance for the
duration of the Contract. Such insurance shall meet at least the following minimum levels of
coverage:
3.13.2.1 Minimum Scope of Insurance. Coverage shall be at least
as broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 00 01} OR Insurance Services Office
Owners and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for
operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business
Auto Coverage form number CA 00 01, code 1 (any auto); and (3) Workers'
Compensation and Employer's Liability: Workers' Compensation insurance as required by the
State of California and Employer's Liability Insurance. Policies shall not contain exclusions
contrary to this Contract.
3.13.2.2 Minimum Limits of Insurance. Contractor shall maintain
limits no less than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 aggregate
for bodily injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per
accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's
Liability: Workers' compensation limits as required by the Labor Code of the State of California.
Employer's Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and
each employee bodily injury or disease. Defense costs shall be available in addition to the limits.
Notwithstanding the minimum limits specified herein, any available coverage shall be provided to
the parties required to be named as additional insureds pursuant to this Contract.
3.13.3 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Contractor shall provide endorsements (amendments) on forms supplied
or approved by the City to add the following provisions to the insurance policies:
3.13.3.1 General Liability. (1) Such policy shall give the City, its
officials, employees, agents and authorized volunteers additional insured status using ISO
endorsements CG20 10 12 19 plus CG20 37 12 19, or endorsements providing the exact same
coverage, with respect to the Work or operations performed by or on behalf of Contractor,
including materials, parts or equipment furnished in connection with such work; (2) all policies
shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by
the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any
person named as an additional insured pursuant to this Contract, and Contractor agrees to waive
all such rights of subrogation; and {3) the insurance coverage shall be primary insurance as
respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall
stand in an unbroken chain of coverage excess of Contractor's scheduled underlying coverage.
Any insurance or self-insurance maintained by the City, its officials, employees, agents and
authorized volunteers shall be excess of Contractor's insurance and shall not be called upon to
contribute with it.
3.13.3.2 Automobile Liability. (1) Such policy shall give the City, its
officials, employees, agents and authorized volunteers additional insured status with respect to
the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive
or shall permit Contractor to waive all rights of subrogation which may be obtained by the
Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person
named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such
rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the
City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of Contractor's scheduled underlying coverage. Any
insurance or self-insurance maintained by the City, its officials, employees, agents and authorized
volunteers shall be excess of Contractor's insurance and shall not be called upon to contribute
with it in any way.
3.13.3.3 Workers' Compensation and Employer's Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the City, its officials, employees,
agents and authorized volunteers for losses paid under the terms of the insurance policy which
arise from work performed by Contractor.
3.13.3.4 All Coverages. Each insurance policy required by this Contract
shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled
except after thirty (30) days prior written notice by certified mail, return receipt requested, has
been given to the City; and (2) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the City, its
officials, employees, agents and authorized volunteers.
3.13.4 Separation of Insureds; No Special Limitations. All insurance
required by this Section shall contain standard separation of insureds provisions. In addition, such
insurance shall not contain any special limitations on the scope of protection afforded to the City,
its officials, employees, agents and authorized volunteers.
3.13.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the City. Contractor shall guarantee that,
at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects the City, its officials, employees, agents and authorized
volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to
the City guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
3.13.6 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best's rating no less than A:VII, licensed to do business in California.
Exception may be made for the State Compensation Insurance Fund when not specifically rated.
3.13.7 Verification of Coverage. Contractor shall furnish City with original
certificates of insurance and endorsements effecting coverage required by this Contract on forms
satisfactory to the City. The certificates and endorsements for each insurance policy shall be
signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms
supplied or approved by the City. All certificates and endorsements must be received and
approved by the City before work commences.
3.13.8 Subcontractors. All subcontractors shall meet the requirements of
this Section before commencing Work. Contractor shall furnish separate certificates and
endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall
name the City, its officials, employees, agents and authorized volunteers as additional insureds
using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages
for subcontractors shall be subject to all of the requirements stated herein except as otherwise
agreed to by the City in writing.
3.13.9 Reporting of Claims. Contractor shall report to the City, in addition
to Contractor's insurer, any and all insurance claims submitted by Contractor in connection with
the Work under this Contract.
3.14 Bond Requirements.
3.14.1 Payment Bond. If required by law or otherwise specifically requested by
City and incorporated herein by reference, Contractor shall execute and provide to City
concurrently with this Contract a Payment Bond in an amount required by the City and in a form
provided or approved by the City. If such bond is required, no payment will be made to Contractor
until the bond has been received and approved by the City.
3.14.2 Performance Bond. If specifically requested by City and incorporated
herein by reference, Contractor shall execute and provide to City concurrently with this Contract
a Performance Bond in an amount required by the City and in a form provided or approved by the
City. If such bond is required, no payment will be made to Cont ractor until the bond has been
received and approved by the City.
3.14.3 Bond Provisions. Should, in City's sole opinion, any bond become
insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the
effected bond within (ten) 10 days of receiving notice from City. In the event the surety or
Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written
notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least
ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due
or will be made under this Contract until any replacement bonds required by this Section are
accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance
with the Contract, Contractor shall, upon request of the City, cause the amount of the bon d to be
increased accordingly and shall promptly deliver satisfactory evidence of such increase to the
City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.
3.14.4 Surety Qualifications. Only bonds executed by an admitted surety insurer,
as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a
California-admitted surety insurer issuing bonds does not meet these requirements, the insurer
will be considered qualified if it is in conformance with Section 995.660 of the California Code of
Civil Procedure, and proof of such is provided to the City.
3.15 Warranty. Contractor warrants all Work under the Contract (which for purposes of
this Section shall be deemed to include unauthorized work which has not been removed and any
non-conforming materials incorporated into the Work) to be of good quality and free from any
defective or faulty material and workmanship. Contractor shall provide and honor its standard
manufacturer’s warranty for the goods provided hereunder per that described in the Proposal .
Contractor shall, promptly after being notified in writing by the City of any defect in the Work or
non-conformance of the Work to the Contract, commence and prosecute with due diligence all
Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contracto r shall
act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at
its sole cost and expense, repair and replace any portions of the Work (or work of other
contractors) damaged by its defective Work or which becomes damaged in the course of repairing
or replacing defective Work. For any Work so corrected, Contractor's obligation hereunder to
correct defective Work shall be reinstated for an additional one-year period, commencing with the
date of acceptance of such corrected Work.. All costs associated with such corrective actions,
including the removal, replacement, and reinstitution of equipment and materials necessary to
gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of
subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether
express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless
of whether or not such warranties and guarantees have been transferred or assigned to the City
by separate agreement and Contractor agrees to enforce such warranties and guarantees, if
necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under
this Section, or under any other warranty or guaranty under this Contract, to the reasonable
satisfaction of the City, the City shall have the right to correct and replace any defective or non -
conforming Work and any work damaged by such work or the replacement or correction thereof
at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any
expenses incurred hereunder upon demand.
3.16 Employee/Labor Certifications.
3.16.1 Contractor's Labor Certification. By its signature hereunder, Contractor
certifies that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to undertake
self-insurance in accordance with the provisions of that Code and agrees to comply with such
provisions before commencing the performance of the Work. A certification form for this purpose
and incorporated herein by reference, shall be executed simultaneously with this Contract.
3.16.2 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or other interests
protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be
limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff or termination.
3.16.3 Verification of Employment Eligibility. By executing this Contract, Contractor
verifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the Immigration
Reform and Control Act of 1986, as may be amended from time to time, and shall require all
subcontractors and sub-subcontractors to comply with the same.
3.17 General Provisions.
3.17.1 City's Representative. The City hereby designates the City Manager, or
his or her designee, to act as its representative for the performance of this Contract ("City's
Representative"). City's Representative shall have the power to act on behalf of the City for all
purposes under this Contract. Contractor shall not accept direction or orders from any person
other than the City's Representative or his or her designee.
3.17.2 Contractor's Representative. Before starting the Work, Contractor shall
submit in writing the name, qualifications and experience of its proposed representative who shall
be subject to the review and approval of the City ("'Contractor's Representative"). Following
approval by the City, Contractor's Representative shall have full authority to represent and act on
behalf of Contractor for all purposes under this Contract. Contractor's Representative shall
supervise and direct the Work, using his best skill and attention, and shall be responsible for all
construction means, methods, techniques, sequences and procedures and for the satisfactory
coordination of all portions of the Work under this Contract. Contractor's Representative shall
devote full time to the Project and either he or his designee, who shall be acceptable to the City,
shall be present at the Work site at all times that any Work is in progress and at any time that any
employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible
supervision, acceptable to the City, shall be made for emergency Work which may be required.
Should Contractor desire to change its Contractor's Representative, Contractor shall provide the
information specified above and obtain the City's written approval.
3.17.3 Termination. This Contract may be terminated by City at any time, either
with our without cause, by giving Contractor fifteen (15) days advance written notice. In the event
of termination by City for any reason, City shall pay Contractor for all Work performed (including
all goods produced) up to the effective date of termination. In the event of breach of the Contract
by Contractor, City may terminate the Contract immediately upon notice if Contractor fails to cure
the breach within 5 days of its receipt of notice, and City may pursue any available recourse
against Contractor. Contractor may not terminate this Contract except for cause. In the event this
Contract is terminated in whole or in part as provided, City may procure, upon such terms and in
such manner as it may determine appropriate, services similar to those terminated. Further, if this
Contract is terminated as provided, City may require Contractor to provide all finished or
unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by
Contractor in connection with its performance of this Contract.
3.17.4 Contract Interpretation. Should any question arise regarding the meaning
or import of any of the provisions of this Contract or written or oral instructions from City, the
matter shall be referred to City's Representative, whose decision shall be binding upon
Contractor.
3.17.5 Anti-Trust Claims. This provIs1on shall be operative if this Contract is
applicable to California Public Contract Code Section 7103.5. In entering into this Contract to
supply goods, services or materials, Contractor hereby offers and agrees to assign to the City all
rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton
Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section
16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of
goods, services, or materials pursuant to the Contract. This assignment shall be made and
become effective at the time the City tender final payment to Contractor, without further
acknowledgment by the Parties.
3.17.6 Notices. All notices hereunder and communications regarding
interpretation of the terms of the Contract or changes thereto shall be provided by the mailing
thereof by registered or certified mail, return receipt requested, postage prepaid and addressed
as follows:
CONTRACTOR:
Contractor Name
Contractor Address Contractor
Address Attn: Contact Person
CITY:
Arroyo Grande
300 E. Branch St.,
Arroyo Grande, CA 93420
Attn: Matthew Downing, City Manager
Any notice so given shall be considered received by the other Party three (3) days after deposit
in the U.S. Mail as stated above and addressed to the Party at the above address . Actual notice
shall be deemed adequate notice on the date actual notice occurred, regardless of the method of
service.
3.17.7 Time of Essence. Time is of the essence in the performance of this
Contract.
3.17.8 Assignment Forbidden. Neither City nor Contractor shall, either voluntarily
or by action
of law, assign or transfer this Contract or any obligation, right, title or interest assumed by it herein
without the prior written consent of the other party. If a Party attempts an assignment or transfer
of this Contract or any obligation, right, title or interest herein, the other Party may, at its option,
terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to
the other Party or its assignee or transferee.
3.17.9 No Third-Party Beneficiaries. There are no intended third-party
beneficiaries of any right or obligation assumed by the Parties.
3.17.10 Laws, Venue, and Attorneys' Fees. This Agreement shall be
interpreted in accordance with the laws of the State of California. If any action is brought to
interpret or enforce any term of this Agreement, the action shall be brought in a state or federal
court situated in the County of San Luis Obispo, State of California.
3.17.11 Counterparts. This Contract may be executed in counterparts, each
of which shall constitute an original.
3.17.12 Successors. The Parties do for themselves, their heirs, executors,
administrators, successors, and assigns agree to the full performance of all of the provisions
contained in this Contract.
3.17.13 [Reserved]
3.17.14 Solicitation. Contractor maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Contractor or a bona fide agency, to solicit or secure this Contract. Further, Contractor warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona fide
employee working solely for Contractor or a bona fide agency, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or making
of this Contract. For breach or violation of this warranty, City shall have the right to terminate this
Contract without liability
3.17.15 Conflict of Interest. Contractor maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee working
solely for Contractor or a bona fide agency, to solicit or secure this Agreement. Further, Contractor
warrants that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Contractor or a bona fide agency, any fee, commission,
percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award
or making of this Agreement. For breach or violation of this warranty, City shall have the right to
rescind this Agreement without liability. For the term of this Contract, no official, officer or
employee of City, during the term of his or her service with City, shall have any direct interest in
this Contract, or obtain any present or anticipated material benefit arising therefrom. In addition,
Contractor agrees to file, or to cause its employees or subcontractors to file, a Statement of
Economic Interest with the City's Filing Officer as required under state law in the performance of
the Work.
3.17.16 Certification of License.
3.17.16.1 Contractor certifies that as of the date of execution of this
Contract, Contractor has a current contractor's license of the classification indicated below under
Contractor's signature.
3.17.16.2 Contractors are required by law to be licensed and regulated
by the Contractors' State License Board which has jurisdiction to investigate complaints against
contractors if a complaint regarding a patent act or omission is filed within four (4) years of the
date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural
defects must be filed within ten (10) years of the date of the alleged violation. Any questions
concerning a contractor may be referred to the Registrar, Contractors' State License Board, P.O.
Box 26000, Sacramento, California 95826.
3.17.17 Authority to Enter Contract. Each Party warrants that the
individuals who have signed this Contract have the legal power, right and authority to make this
Contract and bind each respective Party.
3.17.18 Entire Contract: Modification. This Contract contains the entire
agreement of the Parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Contract may only be modified by a writing
signed by both Parties.
3.17.19 Non-Waiver. None of the provisions of this Agreement shall be
considered waived by either party, unless such waiver is specifically specified in writing.
3.17.20 City's Right to Employ Other Contractors. City reserves right to
employ other contractors in connection with this Project or other projects.
3.17.21 Federal Requirements. Coronavirus State and Local Fiscal Recovery
Funds ("SLFRF") will be used to fund all or a portion of this Contract. The Contractor shall
comply with all federal requirements including, but not limited to, the following:
• Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American
Rescue Plan Act of 2021, U.S. Department of the Treasury Coronavirus State and Local
Fiscal Recovery Fund Award Terms and Conditions, Treasury's Final Rule, and SLFRF
reporting requirements, as applicable (collectively, the "SLFRF Compliance
Requirements"). The SLFRF Compliance Requirements are expressly incorporated
herein by reference.
• 2 C.F.R. Part 200 - Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards, which is expressly incorporated herein by reference.
• Federal Contract Provisions attached hereto as Exhibit "A" and incorporated herein by
reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions
stipulated in the Contract, including but not limited to, SLFRF Compliance Requirements, 2 C.F.R.
Part 200, and the Federal Contract Provisions. With respect to any conflict between such federal
requirements and the terms herein and/or the provisions of state law and except as otherwise
required under federal law or regulation, the more stringent requirement shall control.
Contractor agrees to accept any additional conditions governing the use of funds from the
SLFRF or other funding source as may be required by executive order, federal, state or local
statute, ordinance, rule or regulation or by policy announced by the City.
Contractor shall cooperate with City, including providing any necessary documentation
and records, in order for City to comply with the federal requirements in Exhibit A.
Contractor will maintain all records pertaining to this Project for a period of five (5) years
following completion of the Project
[SIGNATURES ON NEXT PAGE]
SIGNATURE PAGE FOR CONSTRUCTION CONTRACT
BETWEEN THE ARROYO GRANDE
AND [CONTRACTOR]
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the ___
day of ___________, 20___.
ARROYO GRANDE [CONTRACTOR]
By: By:
Matthew Downing
City Manager Its:
Printed Name: _
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
Exhibit A:
PARKSIDE PARK PLAY STRUCTURE - PW 2024-09
[attach Quote/Proposal]
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
ADDENDUM NO. 1
Date: April 19, 2025
To: All Plan Holders
From: Theresa Wren, Capital Improvement Projects Manager
Subject: RFP Parkside Park Play Structure – Addendum 1
Receipt of this Addendum must be acknowledged by writing “Addendum No. 1” on the
outside of the bid envelope.
This addendum forms a part of the Contract Documents and modifies the original plans and/or Special Provisions
dated April 7, 2025, as noted herein. This addendum contains the following information:
Add. Item Clarifications / Questions / Answers
1.01 Are there any preferences on play set that will be installed: type, make, model, size, colors?
The required Design Elements are discussed in the RFP. There is no type, make, model, or color
specified by the City or Parkside development. The primary focus is on the play structures and
layout. If multiple color schemes are available for the play structure selected by the Parkside
residents, City staff will discuss those options with the selected Contractor.
1.02 Is there a total square footage area for pour in place surfaces, color preferences and thickness
requirements?
a. The approximate square footage for the pour in place shown in the RFP was estimated
from Google Earth and wheel roller. Contractor is responsible for verifying site
conditions. No allowance will be made if Contractor fails to adequately examine a
location before submitting a Proposal.
b. There is no color or thickness specified.
1.03 Does the City use CMAS or BuyBoard for purchasing playground equipment? The City belongs
to cooperative purchasing entities; however, the Contractor will procure all equipment,
components, signage, hardware, manuals, etc., required to complete the project.
1.04 Is there a preference for the pour and play underlayment?
There is no preference specified. The current surface under the pour in play surface is compacted
aggregate base.
1.05 Are shade structures required?
Shade structures were not specified in the required Design Elements. The Proposer is welcome to
include shade structures in their design.
1.06 Are spinners accepted?
Spinners were not specified in the required Design Elements. The Proposer is welcome to include
spinners in their design.
1.07 Clarification on Project Area Page 4 of the RFP
The concrete curb between the existing pour in place surface and the dirt trapezoid area is to be
sawcut and demolished. Updated Page 4 is attached as Attachment 1.
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
1.08 Clarification on “swings” in Design Elements, page 2 of RFP.
a. In the Design Elements, the “swings” requirement is clarified as a minimum of one swing
for older children and one toddler swing.
b. In light of the Design Element to utilize the space more efficiently, a T-swing or other
creative configuration could be considered.
c. Tire swings were not specified in the required Design Elements. The Proposer is welcome
to include tire swings or other type of swing in their design.
1.09 Clarification on “small playhouse” in Design Elements, page 2 of RFP.
For the small playhouse, the desire is for a playhouse structure used for pretend play that will not
trigger the fall zone. No or minimal step up into said playhouse is needed.
1.10 What is the criteria to award the project?
Refer to the RFP Section Evaluation of Proposals on page 10 of the RFP, as well as the
clarifications provided in this Addendum No. 1
1.11 Clarification on Evaluation of Proposals, Step 1, page 10 of RFP.
The criteria in Step 1 which read, “Installation within 90 days of Notice to Proceed” is revised to
“Contractor’s proposed schedule demonstrates ability to meet the following Milestones:
Milestone 1: Order equipment within 10 working days of Notice to Proceed.
Milestone 2: Equipment delivered within 12 weeks (maximum) of ordering.
Milestone 3: Complete installation within 20 working days.
1.12 Will the City provide a utility site plan?
a. The City does not have utility records for this site.
b. Underground Service Alert will be needed to determine location of existing utilities.
1.13 Can Parkside Park be closed during construction/installation?
a. Yes, the Contractor shall provide adequate safety measures to close the park to the
public for the duration of construction, including the entrance at Bakeman Lane and the
pedestrian access on the west side.
b. The Contractor to provide all equipment, components, signage, etc., required to close
and secure the park during construction.
1.14 Can the basketball court be used for staging?
a. The Contractor cannot stage or drive heavy equipment on the basketball court.
b. The Contractor can make its needs known regarding access to the site and the City will
discuss with the Contractor prior to start of construction. Any surfaces, including the
basketball court, that equipment must traverse to access the site must be protected and
the Contractor will be responsible for any damages.
1.15 Can storage containers be parked on the basketball court or Bakeman Lane?
a. The Contractor may choose to stage equipment and/or park a storage container on
Bakeman Lane and must apply for a City encroachment permit at no additional cost.
b. Storage container or heavy equipment is not permitted on the basketball court.
c. Any damages or problems caused by the staging or storage containers will be the
Contractor’s responsibility.
d. The City will not provide any storage containers.
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
1.16 Update to RFP Attachment A, Sample City Agreement, Liquidated Damages.
Section 3.3 which read “Reserved.” is revised as follows:
“Section 3.3 Period of Performance and Liquidated Damages. Contractor shall perform and
complete all Work under this Contract beginning the effective date of the Notice to Proceed
(“Contract Time”). Contractor shall perform its Work in strict accordance with any completion
schedule, construction schedule or project milestones developed by the City. Such schedules or
milestones may be included, or may be provided separately in writing to Contractor. Contractor
agrees that if such Work is not completed within the aforementioned Contract Time and/or
pursuant to any such completion schedule, construction schedule or project milestones
developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed
that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor
shall pay to the City as fixed and liquidated damages the sum of Six Hundred Dollars ($600) per
day for each and every calendar day of delay beyond the Contract Time or beyond any
completion schedule, construction schedule or Project milestones established pursuant to the
Contract.”
1.17 Plan Holder List
a. The current plan holder list is attached to this Addendum in Attachment 2.
1.18 Pre-Bid Meeting Sign In Sheet
a. The scanned sign-in sheet for the Non-Mandatory Pre-Bid Meeting (4/15/2025) is
attached. See Attachment 3.
1.19 Pre-Bid Meeting Agenda Handout
a. Non-Mandatory Pre-Bid Meeting (4/15/2025) agenda is attached. See Attachment 4.
Addendum 1 Attachments:
1. Updated Project Area, Page 4 of RFP
2. Plan Holders List
3. Pre-Bid Meeting Sign-in Sheet
4. Pre-Bid Meeting Agenda Handout
Please contact Theresa Wren at (805) 473-5441, twren@arroyogrande.org, if you have any questions.
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
Attachment 1 – Updated Project Area
City of Arroyo Grande RFP: Parkside Park Play Structure 4 Approx. 65’ NTS Approx. 24’ Approx. 1785 SF of rubber surface to be removed and replaced. New play equipment to be installed. Sawcut & Demo Concrete Curb between the trapezoid and existing PIP VICINITY MAP AND PROJECT AREA Approx. 75 SF of existing dirt. New rubber surface and playhouse to be installed.
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
Attachment 2 – Planholders List
City of Arroyo GrandeBid Document Distribution List Project Title:Project Manager: Project No.:PW 2024-09Bid Date: April 29, 2025 2:00 pm Account No.350-5567-XXXXNo.Phone Website E-mail Date Add. 1 dateE(800) 479-5314www.bidnet.compublishbids@bidnet.com danderson@bidnet.com kpitzer@bidnet.com04/09/25 04/19/25E(877) 784-9556www.construction.comsupport@construction.com04/09/25 04/19/25E(831) 758-1624www.ccbabuilds.org/staff@ccbabuilds.org04/09/25 04/19/25E(559) 237-1831http://cencalbx.cominfo@cencalbx.com 04/09/25 04/19/25E(805) 543-7330www.slocbe.complanroom@slocbe.com04/09/25 04/19/25E(805) 925-1191www.smvca.orginfo@smvca.org04/09/25 04/19/25E(805) 481-1655www.blueprintexp.cominfo@blueprintexp.com04/09/25 04/19/25E(877) 761-4347www.constructconnect.comcontent@constructconnect.com 04/09/25 04/19/25E(949) 336-2729 (820) 667-9440www.zoomrecreation.comdan@zoomrecreation.com norma@zoomrecreation.com04/09/25 04/19/25E(805) 375-1111www.jaynesbrothers.comoffice@jaynesbrothers.com chase@jaynesbrothers.com04/09/25 04/19/25E(805) 846-8122david@cocreatorsinc.com rmiddleton@bydesignlph.com04/09/25 04/19/25E(805) 934-1814matt@centralcoastplaygrounds.com04/09/25 04/19/25E661-964-7626www.playandpark.comKathy.Wiggins@playandpark.com04/09/25 04/19/25E435-760-4103www.gwpark.comtyler@gwpark.com04/09/25 04/19/25E818-661-9181www.recwest.comNate@recwest.com04/09/25 04/19/25E661-249-6642www.mtzbuildingsolutions.comscottbaxter@mtzbuildingsolutions.com04/09/25 04/19/25H(805) 473-5444www.arroyogrande.orgtwren@arroyogrande.org04/09/25 04/19/25RFP Parkside Park Playground1244 North Mariposa StreetFresno CA 93703153 Cross Street, Suite 130San Luis Obispo CA 93401830 Third Avenue, 6th FloorNew York, NY 10022242 East Romie LaneSalinas, CA 9390711622 El Camino Real, Suite 100San Diego, CA 92130AddressName/CompanyDodge Data & AnalyticsRequired Trade Journal #3Construction Bidboard (BidNet)Required Trade Journal #2Central California Builders ExchangeTrade Journal #19SLO County Builders Exchange (SLO)Trade Journal #22Central Coast Builders AssociationTrade Journal #18Santa Maria Valley Contractors Association2003 Preisker Lane, Suite ASanta Maria CA 93454618 East Grand AvenueArroyo Grande, CA 93420BluePrint Express1375 Ash StreetArroyo Grande, CA 93420------City Copy (CIP Manager)------Play and Park (Kathy Wiggins)CMD (now Construct Connect)Trade Journal #13825 Edwards Rd., Suite 800 Cincinatti, OH 45209MTZ Building Solution, Inc. (Scott Baxter)Zoom Recreation (Norma Rojas, Central CA)Jaynes Brothers Construction (Chase Jaynes)Co-Creators, Inc. (David Christensen)jonathanmartinez@mtzbuildingsolution.comCentral Coast Playgrounds, Inc. (Matt Norris)Great Western Recreation (Tyler KyriopoulosLandscape Structures / Recwest (Nate Stutz)Theresa Wren300 E. Esplanade Dr. 9th Floor Oxnard, CA 93036
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
Attachment 3 – Pre-Bid Meeting Sign In Sheet
RFP Parkside Park Play Structure – PW 2024-09
Addendum No. 1
Attachment 4 – Pre-Bid Meeting Agenda Handout
Page 1 of 3
City of Arroyo Grande
Arroyo Grande Public Works
Parkside Park Playground Project (PW 2024-09)
Non-Mandatory Pre-Bid Meeting
Tuesday, April 15, 2025 - 10:00 a.m.
Parkside Park, 484 Bakeman Lane, Arroyo Grande, CA 93420
AGENDA
1. SIGN-INS AND INTRODUCTIONS
2. PROPOSALS DUE
a. Date: Tuesday, April 29, 2025
b. Time: 2:00 p.m.
c. Location: Public Works Administration Building
1375 Ash Street
Arroyo Grande, CA
3. GENERAL WORK DESCRIPTION
a. General
The rubber surfacing within the concrete border around the play structure is
beyond repair and needs to be removed and replaced. The existing
playground equipment needs to be removed and replaced with playground
equipment that meets the requirements outlined below. The City also wants
new surfacing, and a playhouse installed in an adjacent area as indicated
b. Design Elements
ADA compliant
All ages playground
Utilize the space efficiently. Residents feel there is a lot of wasted space,
especially between the existing play structure and existing swings.
Elements preferred include a slide and swings.
A small playhouse in the trapezoidal area as noted on the vicinity map.
Must meet all national playground safety code requirements
All equipment shall be installed by a factory trained and certified installer.
c. Budget $225,000
4. INSTRUCTION TO BIDDERS
a. Basis of Award
Step 1 Evaluation for Responsiveness:
Inclusion of the requested Design Elements
Thoroughness and understanding of the tasks to be completed
Page 2 of 3
Cost within the established budget
Relevant experience
Installation within 90 days of Notice to Proceed
Proposals that are deemed unresponsive in Step 1 will not move onto Step 2.
Step 2 Selection by Assessment District Residents:
Designs of the responsive proposals from Step 1 will be presented to the residents
of the Parkside Park Assessment District who will be able to cast one vote for their
preferred design.
b. Prevailing Wage
Required, see Notice to Bidders
Prime and all subcontractors must be registered with DIR prior to bidding
c. Qualifications
Current Licensing
All equipment shall be installed by a factory trained and certified installer.
Relevant Experience
References
5. CONTRACT TIME
a. Time for Completion
Installation with 90 days of Notice to Proceed
Assumed construction start date of July 14, 2025
6. BOND REQUIREMENTS, FORMS, INSURANCE AND GUARANTEES
a. Bonding
Payment Bond (for Labor and Material) – 100 percent of Contract Price
Faithful Performance Bond – 100 percent of Contract Price
b. Insurance Requirements
Section 7-1.06 of the City’s Standard Specifications and Engineering
Standards and is included in the Sample Contract in the RFP.
7. CONSTRUCTION HOURS / ACCESS
a. On-Site Work Hours
Typical: 7:00 am to 5:00 pm (Monday - Friday) excluding City holidays
b. Access
Access to the project site is from Bakeman Lane.
8. PUBLIC AWARENESS
a. City will post on City website and social media project information, including
contractor contact information, prior to start of construction
Page 3 of 3
b. No parking signs shall be posted (depicting dates and times) and maintained
by the Contractor for a minimum period of 72 hours prior to the restrictions
becoming effective.
9. CONSTRUCTION STAGING
a. Contractor is to provide a proposed staging area for use during construction
prior to commencing mobilization.
10. PROJECT ADMINISTRATION
a. Project Documentation
Submittals, RFIs, meeting agendas and minutes, permits, schedules, and
daily logs will be submitted and responded to via email to CIP Manager
b. Payment Estimates and Change Orders
Applications for payment and change order can be submitted via email to CIP
Manager
c. Certified Payroll
Certified payroll to be submitted to DIR and to CIP Manager (only SSN
redacted)
d. Inspection
Inspections to be provided by Cit Engineering Inspector and Playground
Inspection contract services
11. QUESTIONS
a. All questions to be submitted in writing by April 18, 2025.
ARROYO GRANDE
CONSTRUCTION CONTRACT
PARKSIDE PARK PLAY STRUCTURE - PW 2024-09
1.PARTIES AND DATE.
This contract ("Contract" or "Contract Documents") is made and entered into this 24th day
of June, 2025 by and between the Arroyo Grande, a public agency of the State of California ("City")
and Landscape Structures, Inc., a California Corporation with its principal place of business at
P.O. Box 86, Minneapolis, MN 55486 ("Contractor''). City and Contractor are sometimes
individually referred to as "Party" and collectively as "Parties" in this Contract.
2.RECITALS.
2.1 City. City is a public agency organized under the laws of the State of
California, with power to contract for services necessary to achieve its purpose.
2.2 Contractor. Contractor desires to perform and assume responsibility for the
provision of certain construction, site work and equipment procurement services required by the
City on the terms and conditions set forth in this Contract. Contractor represents that it is duly
licensed and experienced in providing playground installation services to public clients, that it
and its employees or subcontractors have all necessary licenses and permits to perform the
services in the State of California, and that it is familiar with the plans of City. The following
license classifications are required for this Project: A
2.3 Project. City desires to engage Contractor to render such services for the
PARKSIDE PARK PLAY STRUCTURE - PW 2024-09, as detailed in the Request for Proposal,
Addendum #1 and proposal/quote included herein by reference ("Project") as set forth in this
Contract.
2.4 Project Documents & Certifications. Contractor has obtained, and delivers
concurrently herewith, a performance bond, a payment bond, and all insurance documentation,
as required by the Contract.
3.TERMS
3.1 Incorporation of Documents. This Contract and the Contract Documents
hereby incorporates in full by reference the following documents, including all exhibits,
drawings, specifications and documents therein, and attachments and addenda thereto:
•Plans and Specifications
•Bid and Addenda
•Payment and Performance Bonds
•Bid (Exhibit "B"). Unit prices as corrected by contractor will be used as basis
for payment.
3.2 Contractor's Basic Obligation; Scope of Work. Contractor promises and
agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment,
services, and incidental and customary work necessary to fully and adequately complete the
Project, for the agreed price. All Work shall be subject to, and performed in accordance with the
above referenced documents, as well as the exhibits attached hereto and incorporated herein
by reference.
3.2.1 Change in Scope of Work. Any change in the scope of the Work, method of
performance, nature of materials or price thereof, or any other matter materially affecting the
performance or nature of the Work shall not be paid for or accepted unless such change, addition or
deletion is approved in writing by a valid change order executed by the City. Should Contractor request
a change order due to unforeseen circumstances affecting the performance of the Work, such request
shall be made within five (5) business days of the date such circumstances are discovered or shall
waive its right to request a change order due to such circumstances. If the Parties cannot agree on
any change in price required by such change in the Work, the City may direct the Contractor to proceed
with the performance of the change on a time and materials basis.
3.2.2 Substitutions/"Or Equal". Pursuant to Public Contract Code Section 3400(b), the City
may make a finding that designates certain products, things, or services by specific brand or trade
name. Unless specifically designated in this Contract, whenever any material, process, or article is
indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such
Specifications shall be deemed to be used for the purpose of facilitating the description of the material,
process or article desired and shall be deemed to be followed by the words "or equal."
Contractor may, unless otherwise stated, offer for substitution any material, process or article which
shall be substantially equal or better in every respect to that so indicated or specified in this Contract.
However, the City may have adopted certain uniform standards for certain materials, processes and
articles. Contractor shall submit requests, together with substantiating data, for substitution of any "or
equal" material, process or article no later than thirty-five (35) days after award of the Contract. To
facilitate the construction schedule and sequencing, some requests may need to be submitted before
thirty-five (35) days after award of Contract. Provisions regarding submission of "or equal" requests
shall not in any way authorize an extension of time for performance of this Contract. If a proposed "or
equal" substitution request is rejected, Contractor shall be responsible for providing the specified
material, process or article. The burden of proof as to the equality of any material, process or article
shall rest with Contractor.
The City has the complete and sole discretion to determine if a material, process or article is an "or
equal" material, process or article that may be substituted. Data required to substantiate requests for
substitutions of an "or equal" material, process or article data shall include a signed affidavit from
Contractor stating that, and describing how, the substituted "or equal" material, process or article is
equivalent to that specified in every way except as listed on the affidavit. Substantiating data s hall
include any and all illustrations, specifications, and other relevant data including catalog information
which describes the requested substituted "or equal" material, process or article, and substantiates
that it is an "or equal" to the material, process or article. The substantiating data must also include
information regarding the durability and lifecycle cost of the requested substituted "or equal" material,
process or article. Failure to submit all the required substantiating data, including the signed affidavit,
to the City in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the City's costs associated with the review of substitution requests.
Contractor shall be responsible for all costs related to a substituted "or equal" material, process or
article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant
to Public Contract Code section 3400.
3.3 Period of Performance and Liquidated Damages. Contractor shall perform
and complete all Work under this Contract beginning the effective date of the Notice to Proceed
(“Contract Time”). Contractor shall perform its Work in strict accordance with any completion
schedule, construction schedule or project milestones mutually agreed upon by the City and
Contractor. Such schedules or milestones shall be separately documented in writing. Contractor
agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant
to any such completion schedule, construction schedule or project milestones developed pursuant
to provisions of the Contract and if such delay is caused by Contractor’s acts or omissions, it is
understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government
Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum
of Two Hundred Dollars ($200) per day for each and every calendar day of delay beyond the
Contract Time or beyond any completion schedule, construction schedule or Project milestones
established pursuant to the Contract.
3.4 Standard of Performance: Performance of Employees. Contractor shall
perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the
standards generally recognized as being employed by professionals in the same discipline in the
State of California. Contractor represents and maintains that it is skilled in the professional calling
necessary to perform the Work. Contractor warrants that all employees and subcontractors shall
have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor
represents that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Work, including any required
business license, and that such licenses and approvals shall be maintained throughout the term
of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall
perform, at its own cost and expense and without reimbursement from the City, any work
necessary to correct errors or omissions which are caused by Contractor's failure to comply with
the standard of care provided for herein. Any employee who is determined by the City to be
uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who
fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed
from the Project by Contractor and shall not be re-employed on the Work.
3.5 Control and Payment of Subordinates; Contractual Relationship. City
retains Contractor on an independent contractor basis and Contractor is not an employee of City.
Any additional personnel performing the work governed by this Contract on behalf of Contractor
shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all
wages, salaries, and other amounts due such personnel in connection with their performance
under this Contract and as required by law. Contractor shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, and workers' compensation insurance.
3.6 City's Basic Obligation. City agrees to engage and does hereby engage
Contractor as an independent contractor to furnish all materials and to perform all Work according
to the terms and conditions herein contained for the sum set forth above. Except as otherwise
provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory
performance by Contractor of the services and obligations required by this Contract, the below-
referenced compensation in accordance with compensation provisions set forth in the Contract.
3.7 Compensation and Payment.
3.7.1 Amount of Compensation. As consideration for performance of the Work
required herein, City agrees to pay Contractor for services performed provided that such amount
shall be subject to adjustment pursuant to the applicable terms of this Contract or written change
orders approved and signed in advance by the City.
3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty
(30) or less calendar days, City will arrange for payment of the Total Contract Price upon
completion and approval by City of the Work. If the Work is scheduled for completion in more than
thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein. On
or before the fifth (5th) day of each month, Contractor shall submit to the City an itemized
application for payment in the format supplied by the City indicating the amount of Work completed
since commencement of the Work or since the last progress payment. These applications shall
be supported by evidence which is required by this Contract and such other documentation as
the City may require. The Contractor shall certify that the Work for which payment is requested
has been done and that the materials listed are stored where indicated. Contractor may be
required to furnish a detailed schedule of values upon request of the City and in such detail and
form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other
expenses involved in order to provide a basis for determining the amount of progress payments.
3.7.3 Prompt Payment. City shall review and pay all progress payment requests in
accordance with the provisions set forth in Section 20104.50 of the California Public Contract
Code. However, no progress payments will be made for Work not completed in accordance with
this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to
the proper payment of its employees, subcontractors, suppliers or others.
3.7.4 Reserved.
3.7.5 Other Retentions. In addition to Contract retentions, the City may deduct from
each progress payment an amount necessary to protect City from loss because of: (1) liquidated
damages which have accrued as of the date of the application for payment; (2) any sums
expended by the City in performing any of Contractor's obligations under the Contract which
Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied;
(4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for
the unpaid balance of the Total Contract Price or within the scheduled completion date; (6)
unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the
Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient
documentation as required by the Contract or by City during the prosecution of the Work; (9)
erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums
representing expenses, losses, or damages as determined by the City, incurred by the City for
which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to
recover from Contractor under the terms of the Contract or pursuant to state law, including Section
1727 of the California Labor Code. The failure by the City to deduct any of these sums from a
progress payment shall not constitute a waiver of the City's right to such sums.
3.7.6 Substitutions for Contract Retentions. In accordance with California Public
Contract Code Section 22300, the City will permit the substitution of securities for any monies
withheld by the City to ensure performance under the Contract. At the request and expense of
Contractor, securities equivalent to the amount withheld shall be deposited with the City, or with
a state or federally chartered bank in California as the escrow agent, and thereafter the City shall
then pay such monies to Contractor as they come due. Upon satisfactory completion of t he
Contract, the securities shall be returned to Contractor. For purposes of this Section and Section
22300 of the Public Contract Code, the term "satisfactory completion of the contract" shall mean
the time the City has issued written final acceptance of the Work and filed a Notice of Completion
as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any
securities substituted for monies withheld and shall receive any interest thereon. The escrow
agreement used for the purposes of this Section shall be in the form provided by the City.
3.7.7 Title to Work. As security for partial, progress, or other payments, title to Work
for which such payments are made shall pass to the City at the time of payment. To the extent
that title has not previously been vested in the City by reason of payments, full title shall pass to
the City at delivery of the Work at the destination and time specified in this Contract. Such
transferred title shall in each case be good, free and clear from any and all security interests,
liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate,
or otherwise encumber the items in any manner that would result in any lien, security interest,
charge, or claim upon or against said items. Such transfer of title shall not imply acceptanc e by
the City, nor relieve Contractor from the responsibility to strictly comply with the Contract and shall
not relieve Contractor of responsibility for any loss of or damage to items.
3.7.8 Labor and Material Releases. Contractor shall furnish City with labor and
material releases from all subcontractors performing work on, or furnishing materials for, the Work
governed by this Contract prior to final payment by City.
3.7.9 Prevailing Wages. Contractor is aware of the requirements of California Labor
Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8,
Section 16000 et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage
rates and the performance of other requirements on "public works" and "maintenance" projects.
Since the Services are being performed as part of an applicable "public works" or "maintenance"
project, as defined by the Prevailing Wage Laws, and if the total compensation is $25,000 or more,
Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor
with a copy of the prevailing rates of per diem wages in effect at the commencement of this
Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft,
classification or type of worker needed to execute the Services available to interested parties
upon request and shall post copies at Contractor's principal place of business and at the project
site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and
agents free and harmless from any claim or liability arising out of any failure or alleged failure to
comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty
of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing
wage rates.
3.7.10 Apprenticeable Crafts. If the Total Contract Price exceeds $35,000
and if Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply
with the provisions of Section 1777.5 of the California Labor Code with respect to the employment
of properly registered apprentices upon public works. The primary responsibility for compliance
with said section for all apprenticeable occupations shall be with Contractor. The Contractor or
any subcontractor that is determined by the Labor Commissioner to have knowingly violated
Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar
day of noncompliance, or such greater amount as provided by law.
3.7.11 Hours of Work. If the Total Contract Price exceeds $25,000, Contractor is
advised that eight (8) hours labor constitutes a legal day's work. Pursuant to Section 1813 of the
California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that
each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40)
hours in any one calendar week, except when payment for overtime is made at not less than one
and one-half (1-1/2) times the basic rate for that worker.
3.7.12 Payroll Records. If the Total Contract Price exceeds $25,000, Contractor and
each subcontractor shall keep an accurate payroll record, 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 by him or her in connection with the public work. The payroll records shall be certified
and shall be available for inspection at all reasonable hours at the principal office of Contractor in
the manner provided in Labor Code section 1776. In the event of noncompliance with the
requirements of this section, Contractor shall have 10 days in which to comply subsequent to
receipt of written notice specifying in what respects such Contractor must comply with this section.
Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to
City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until
strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor
Commissioner. A contractor who is found to have violated the provisions of law regarding wages
on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for
a period of one to three years as determined by the Labor Commissioner. Upon the request of the
Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such
penalties shall be withheld from progress payments then due. The responsibility for compliance
with this section is on Contractor. The requirement to submit certified payroll records directly to
the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on
a public works project that is exempt pursuant to the small project exemption specified in Labor
Code Section 1771.4.
3.7.13 Contractor and Subcontractor Registration. If the Total Contract Price
exceeds $25,000, then pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and
subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform
public work must be registered with the Department of Industrial Relations. No bid will be accepted
nor any contract entered into without proof of the contractor's and subcontractors' current
registration with the Department of Industrial Relations to perform public work. Contractor is
directed to review, fill out and execute the Public Works Contractor Registration Certification prior
to contract execution. Notwithstanding the foregoing, the contractor registration requirements
mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a
public works project that is exempt pursuant to the small project exemption specified in Labor
Code Sections 1725.5 and 1771.1.
3.7.14 Labor Compliance: Stop Orders. If the Total Contract Price exceeds
$25,000, Contractor acknowledges that it is aware that this Project is subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor's
sole responsibility to evaluate and pay the cost of complying with all labor compliance
requirements under this Contract and applicable law. Any stop orders issued by the Department
of Industrial Relations against Contractor or any subcontractor that affect Contractor's
performance of Work, including any delay, shall be Contractor's sole responsibility. Any delay
arising out of or resulting from such stop orders shall be considered Contractor caused delay
subject to any applicable liquidated damages and shall not be compensable by the City.
Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents
free and harmless from any claim or liability arising out of stop orders issued by the Department
of Industrial Relations against Contractor or any subcontractor.
3.8 Performance of Work; Jobsite Obligations.
3.8.1 Water Quality Management and Compliance.
3.8.1.1 Water Quality Management and Compliance. Contractor shall keep itself and
all subcontractors, staff, and employees fully informed of and in compliance with all local, state
and federal laws, rules and regulations that may impact, or be implicated by the performance of
the Work including, without limitation, all applicable provisions of the Federal Water Pollution
Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal
Water Code§§ 13000-14950); local ordinances regulating discharges of storm water; and any and
all regulations, policies, or permits issued pursuant to any such authority regulating the discharge
of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground
or surface water in the State.
3.8.1.2 Compliance with the Statewide Construction General Permit. Contractor
shall comply with all conditions of the most recent iteration of the National Pollutant Discharge
Elimination System General Permit for Storm Water Discharges Associated with Construction
Activity, issued by the California State Water Resources Control Board ("Permit"). It shall be
Contractor's sole responsibility to file a Notice of Intent and procure coverage under the Permit for
all construction activity which results in the disturbance of more than one acre of total land area
or which is part of a larger common area of development or sale. Prior to initiating work, Contractor
shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention
Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring,
implementing and complying with the provisions of the Permit and the SWPPP, including the
standard provisions, and monitoring and reporting requirements as required by the Permit. The
Permit requires the SWPPP to be a "living document" that changes as necessary to meet the
conditions and requirements of the job site as it progresses through difference phases of
construction and is subject to different weather conditions. It shall be Contractor's sole
responsibility to update the SWPPP as necessary to address conditions at the project site.
3.8.1.3 Other Water Quality Rules Regulations and Policies.
Contractor shall comply with the lawful requirements of any applicable municipality, drainage City,
or local agency regarding discharges of storm water to separate storm drain systems or other
watercourses under their jurisdiction, including applicable requirements in municipal storm water
management programs.
3.8.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be
encountered at various times during construction of The Work. Therefore, the Contractor, by
submitting a Bid, hereby acknowledges that it has investigated the risk arising from such waters,
has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.
3.8.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation
of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor
hereby agrees to defend, indemnify and hold harmless the City and its officials, officers,
employees, volunteers and agents for any alleged violations. In addition, City may seek damages
from Contractor for any delay in completing the Work in accordance with the Contract, if such
delay is caused by or related to Contractor's failure to comply with the Permit.
3.8.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement
action brought against the City for Contractor's failure to comply with the Permit or any other relevant
water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract,
Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including the City's
attorney's fees) associated with, any settlement reached between the City and the relevant
enforcement entity.
3.8.1.7 Training. In addition to the standard of performance requirements set forth in paragraph
3.4, Contractor warrants that all employees and subcontractors shall have sufficient skill and
experience to perform the Work assigned to them without impacting water quality in violation of the
laws, regulations and policies described in paragraph 3.8.1.
3.8.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage
to any person or property. Contractor shall comply with the requirements of the specifications relating
to safety measures applicable in particular operations or kinds of work. In carrying out its Work,
Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules
and regulations, and shall exercise all necessary precautions for the safety of employees appropriate
to the nature of the Work and the conditions under which the Work is to be performed. Safety
precautions as applicable shall include, but shall not be limited to, adequate life protection and
lifesaving equipment; adequate illumination for underground and night operations; instructions in
accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders,
bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other
safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent
accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety
measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at
least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of
the local ambulance service, adjacent to all telephones at the Project site.
3.8.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with
all local, state and federal laws, rules and regulations in any manner affecting the performance of the
Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law.
Contractor shall be liable for all violations of such laws and regulations in connection with Work. If
Contractor observes that the drawings or specifications are at variance with any law, rule or regulation,
it shall promptly notify the City in writing. Any necessary changes shall be made by written change
order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations
and without giving written notice to the City, Contractor shall be solely responsible for all costs arising
therefrom. City is a public entity of the State of California subject to certain provisions of the Health &
Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated
and agreed that all provisions of the law applicable to the public contracts of a municipality are a part
of this Contract to the same extent as though set forth herein and will be complied with. Contractor
shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless,
pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
3.8.4 Permits and Licenses. Contractor shall be responsible for securing City permits and
licenses necessary to perform the Work described herein, including, but not limited to, any required
business license. While Contractor will not be charged a fee for any City permits, Contractor shall pay
the City's business license fee, if any. Any ineligible contractor or subcontractor pursuant to Labor
Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.8.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work
governed by this Contract entails excavation of any trench or trenches five (5) feet or more in
depth, Contractor shall comply with all applicable provisions of the California Labor Code,
including Section 6705. To this end, Contractor shall submit for City's review and approval a
detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for
worker protection from the hazard of caving ground during the excavation of such trench or
trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a
registered civil or structural engineer.
3.8.6 Hazardous Materials and Differing Conditions. As required by California Public
Contract Code Section 7104, if this Contract involves digging trenches or other excavations that
extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to
disturbance of any conditions, notify City of: (1) any material discovered in excavation that
Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II
or Class Ill disposal site; (2) subsurface or latent physical conditions at the site differing from those
indicated by City; and (3) unknown physical conditions of an unusual nature at the site,
significantly different from those ordinarily encountered in such contract work. Upon notification,
City shall promptly investigate the conditions to determine whether a change order is appropriate.
In the event of a dispute, Contractor shall not be excused from any scheduled completion date
and shall proceed with all Work to be performed under the Contract but shall retain all rights
provided by the Contract or by law for making protests and resolving the dispute.
3.8.7 Underground Utility Facilities. To the extent required by Section 4215 of the California
Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing
damage to underground utility facilities not caused by the failure of Contractor to exercise
reasonable care; (2) removing or relocating underground utility facilities not indicated in the
construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not
be assessed liquidated damages for delay caused by failure of City to provide for removal or
relocation of such utility facilities.
3.8.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations
in furnishing or using equipment and/or providing services, including, but not limited to, emissions
limits and permitting requirements imposed by the California Air Resources Board (CARB).
Although CARB limits and requirements are more broad, Contractor shall specifically be aware of
their application to "portable equipment", which definition is considered by CARS to include any
item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines
or penalties imposed by CARS, or any other governmental or regulatory agency for violations of
applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom
Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.8.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates.
Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse
or recycling must be hauled by the appropriate handler for reuse or recycling.
3.9 Completion of Work. When Contractor determines that it has completed the Work
required herein, Contractor shall so notify City in writing and shall furnish all labor and material
releases required by this Contract. City shall thereupon inspect the Work. If the Work is not
acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items
of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed
the incomplete or unsatisfactory Work, Contractor may request a reinspection by the City. Once
the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to
be paid, less any amount which City may be authorized or directed by law to retain. Payment of
retention proceeds due to Contractor shall be made in accordance with Section 7107 of the
California Public Contract Code.
3.10 Claims; Government Code Claim Compliance.
3.10.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public
Contract Code prescribes a process utilizing informal conferences, non-binding judicial
supervised mediation, and judicial arbitration to resolve disputes on construction claims of
$375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes
a process for negotiation and mediation to resolve disputes on construction claims. The intent of
this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public
Contract Code. This Section shall be construed to be consistent with said statutes.
3.10.2 Claims. For purposes of this Section, "Claim" means a separate demand by the
Contractor, after a change order duly requested in accordance with the terms of this Contract has
been denied by the City, for (A) a time extension, (B) payment of money or damages arising from
Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the
payment of which is disputed by the City. Claims governed by this Section may not be filed unless
and until the Contractor completes all procedures for giving notice of delay or change and for the
requesting of a time extension or change order, including but not necessarily limited to the change
order procedures contained herein, and Contractor's request for a change has been denied in
whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days
after a request for change has been denied in whole or in part or after any other event giving rise
to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page
the following in 16-point capital font: "THIS IS A CLAIM." Furthermore, the claim shall include the
documents necessary to substantiate the claim. Nothing in this Section is intended to extend the
time limit or supersede notice requirements otherwise provided by contract for the filing of claims,
including all requirements pertaining to compensation or payment for extra Work, disputed Work,
and/or changed conditions. Failure to follow such contractual requirements shall bar any claims
or subsequent lawsuits for compensation or payment thereon.
3.10.3 Supporting Documentation. The Contractor shall submit all claims in the following
format.
3.10.3.1 Summary of claim merit and price, reference Contract Document provisions pursuant
to which the claim is made
3.10.3.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
3.10.3.3 Chronology of events and correspondence
3.10.3.4 Analysis of claim merit
3.10.3.5 Analysis of claim cost
3.10.3.6 Time impact analysis in CPM format
3.10.3.7 If Contractor's claim is based in whole or in part on an allegation of errors or
omissions in the Drawings or Specifications for the Project, Contractor shall provide a summary of the
percentage of the claim subject to design errors or omissions and shall obtain a certificate of merit in
support of the claim of design errors and omissions.
3.10.3.8 Cover letter and certification of validity of the claim, including any claims from
subcontractors of any tier, in accordance with Government Code section 12650 et seq.
3.10.4 City's Response. Upon receipt of a claim pursuant to this Section, City shall
conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the
Contractor a written statement identifying what portion of the claim is disputed and what portion is
undisputed. Any payment due on an undisputed portion of the claim will be processed and made within
60 days after the public entity issues its written statement.
3.10.4.1 If City needs approval from its governing body to provide the Contractor a
written statement identifying the disputed portion and the undisputed portion of the claim, and the
governing body does not meet within the 45 days or within the mutually agreed to extension of time
following receipt of a claim sent by registered mail or certified mail, return receipt requested, City shall
have up to three days following the next duly publicly noticed meeting of the governing body after the
45-day period, or extension, expires to provide the Contractor a written statement identifying the
disputed portion and the undisputed portion.
3.10.4.2 Within 30 days of receipt of a claim, City may request in writing additional
documentation supporting the claim or relating to defenses or claims City may have against the
Contractor. If additional information is thereafter required, it shall be requested and provided pursuant
to this subdivision, upon mutual agreement of City and the Contractor.
3.10.4.3 City's written response to the claim, as further documented, shall be submitted
to the Contractor within 30 days (if the claim is less than $50,000, within 15 days) after receipt of the
further documentation, or within a period of time no greater than that taken by the Contractor in
producing the additional information or requested documentation, whichever is greater.
3.10.5 Meet and Confer. If the Contractor disputes City's written response, or City
fails to respond within the time prescribed, the Contractor may so notify City, in writing, either within
15 days of receipt of City's response or within 15 days of City's failure to respond with in the time
prescribed, respectively, and demand an informal conference to meet and confer for settlement of the
issues in dispute. Upon receipt of a demand, City shall schedule a meet and confer conference within
30 days for settlement of the dispute.
3.10.6 Mediation. Within 10 business days following the conclusion of the meet and
confer conference, if the claim or any portion of the claim remains in dispute, City shall provide the
Contractor a written statement identifying the portion of the claim that remains in dis pute and the
portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed
and made within 60 days after City issues its written statement. Any disputed portion of the claim, as
identified by the Contractor in writing, shall be submitted to nonbinding mediation, with City and the
Contractor sharing the associated costs equally. City and Contractor shall mutually agree to a mediator
within 10 business days after the disputed portion of the claim has been identified in writing, unless
the parties agree to select a mediator at a later time.
3.10.6.1 If the Parties cannot agree upon a mediator, each Party shall select a mediator
and those mediators shall select a qualified neutral third party to mediate with regard to the disputed
portion of the claim. Each Party shall bear the fees and costs charged by its respective mediator in
connection with the selection of the neutral mediator.
3.10.6.2 For purposes of this section, mediation includes any nonbinding process,
including, but not limited to, neutral evaluation or a dispute review board, in which an independent third
party or board assists the Parties in dispute resolution through negotiation or by issuance of an
evaluation. Any mediation utilized shall conform to the timeframes in this section.
3.10.6.3 Unless otherwise agreed to by City and the Contractor in writing, the mediation
conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to
mediate after litigation has been commenced.
3.10.6.4 The mediation shall be held no earlier than the date the Contractor completes
the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved claims
shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation
is completed.
3.10.7 Procedures After Mediation. If following the mediation, the claim or any portion
remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section
900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the
Government Code. For purposes of those provisions, the running of the period of time within which a
claim must be filed shall be tolled from the time the Contractor submits his or her written claim pursuant
to subdivision (a) until the time the claim is denied, including any period of time utilized by the meet
and confer conference or mediation.
3.10.8 Civil Actions. The following procedures are established for all civil actions filed
to resolve claims subject to this Section.
3.10.8.1 Within 60 days, but no earlier than 30 days, following the filing or responsive
pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual
stipulation of both parties or unless mediation was held prior to commencement of the action in
accordance with Public Contract Code section 9204 and the terms of these procedures. The mediation
process shall provide for the selection within 15 days by both parties of a disinterested third person as
mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days
from the commencement of the mediation unless a time requirement is extended upon a good cause
showing to the court.
3.10.8.2 If the matter remains in dispute, the case shall be submitted to judicial
arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of
the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery
Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the
Code of Civil Procedure) shall apply to any proceeding brought under this subdivision
consistent with the rules pertaining to judicial arbitration.
3.10.8.3 In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3
of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in
construction law, and (B) any party appealing an arbitration award who does not obtain a more
favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay
the attorney's fees on appeal of the other party.
3.10.9 Government Code Claims. In addition to any and all contract
requirements pertaining to notices of and requests for compensation or payment for extra work,
disputed work, claims and/or changed conditions, Contractor must comply with the claim
procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against
the City. Such Government Code claims and any subsequent lawsuit based upon the
Government Code claims shall be limited to those matters that remain unresolved after all
procedures pertaining to extra work, disputed work, claims, and/or changed conditions have
been followed by Contractor. If no such Government Code claim is submitted, or if any
prerequisite contractual requirements are not otherwise satisfied as specified herein,
Contractor shall be barred from bringing and maintaining a valid lawsuit against the City. A
Government Code claim must be filed no earlier than the date the work is completed or the
date the Contractor last performs work on the Project, whichever occurs first. A Government
Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after
the Government Code claim is submitted.
3.10.10 Non-Waiver. City's failure to respond to a claim from the Contractor
within the time periods described in this Section or to otherwise meet the time requirements of
this Section shall result in the claim being deemed rejected in its entirety. City's failure to
respond shall not waive City's rights to any subsequent procedures for the resolution of
disputed claims.
3.11 Loss and Damage. Except as may otherwise be limited by law,
Contractor shall be responsible for all loss and damage which may arise out of the nature of
the Work agreed to herein, or from the action of the elements, or from any unforeseen
difficulties which may arise or be encountered in the prosecution of the Work until the same is
fully completed and accepted by City.
3.12 Indemnification.
3.12.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor
shall defend, indemnify and hold the City, its officials, employees, agents and authorized
volunteers free and harmless from any and all claims, demands, causes of action, suits,
actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss,
damage or injury of any kind, in law or equity, to property or persons, including wrongful death,
that are alleged by a third party (collectively, "Claims") in any manner arising out of, pertaining
to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its
officials, officers, employees, subcontractors, consultants or agents in connection with the
performance of the Contractor's services, the Project or this Agreement, including without
limitation the payment of all consequential damages, expert witness fees and attorneys' fees
and other related costs and expenses. Notwithstanding the foregoing, to the extent required
by Civil Code section 2782, Contractor's indemnity obligation shall not apply to liability for
damages for death or bodily injury to persons, injury to property, or any other loss, damage or
expense arising from the sole or active negligence or willful misconduct of the City or the City's
agents, servants, or independent contractors who are directly responsible to the City, or for
defects in design furnished by those persons.
3.13 Insurance.
3.13.1 Time for Compliance. Contractor shall not commence Work under this Contract
until it has provided evidence satisfactory to the City that it has secured all insurance required
under this section. In addition, Contractor shall not allow any subcontractor to commence work
on any subcontract until it has provided evidence satisfactory to the City that the subcontractor
has secured all insurance required under this section. Failure to provide and maintain all
required insurance shall be grounds for the City to terminate this Contract for cause.
3.13.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain
for the duration of the Contract insurance against claims for injuries to persons or damages to
property which may arise from or in connection with the performance of the Work hereunder by
Contractor, its agents, representatives, employees or subcontractors. Contractor shall also
require all of its subcontractors to procure and maintain the same insurance for the duration of
the Contract. Such insurance shall meet at least the following minimum levels of coverage.
3.13.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the
latest version of the following: (1) General Liability: Insurance Services Office Commercial
General Liability coverage (occurrence form CG 00 01} OR Insurance Services Office Owners
and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations
of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto
Coverage form number CA 00 01, code 1 (any auto); and (3) Workers' Compensation and
Employer's Liability: Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance. Policies shall not contain exclusions contrary to this
Contract.
3.13.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less
than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 aggregate for bodily
injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per accident
for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability:
Workers' compensation limits as required by the Labor Code of the State of California.
Employer's Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and
each employee bodily injury or disease. Defense costs shall be available in addition to the
limits. Notwithstanding the minimum limits specified herein, any available coverage shall be
provided to the parties required to be named as additional insureds pursuant to this Contract.
3.13.3 Insurance Endorsements. The insurance policies shall contain the following
provisions, or Contractor shall provide endorsements (amendments) on forms supplied or
approved by the City to add the following provisions to the insurance policies:
3.13.3.1 General Liability. (1) Such policy shall give the City, its officials,
employees, agents and authorized volunteers additional insured status using ISO
endorsements CG20 10 12 19 plus CG20 37 12 19, or endorsements providing the exact same
coverage, with respect to the Work or operations performed by or on behalf of Contractor,
including materials, parts or equipment furnished in connection with such work; (2) all policies
shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained
by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to
any person named as an additional insured pursuant to this Contract, and Contractor agrees
to waive all such rights of subrogation; and {3) the insurance coverage shall be primary
insurance as respects the City, its officials, employees, agents and authorized volunteers, or if
excess, shall stand in an unbroken chain of coverage excess of Contractor's scheduled
underlying coverage. Any insurance or self-insurance maintained by the City, its officials,
employees, agents and authorized volunteers shall be excess of Contractor's insurance and
shall not be called upon to contribute with it.
3.13.3.2 Automobile Liability. (1) Such policy shall give the City, its officials,
employees, agents and authorized volunteers additional insured status with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired
or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or
shall permit Contractor to waive all rights of subrogation which may be obtained by the
Contractor or any insurer by virtue of payment of any loss or any coverage provided to any
person named as an additional insured pursuant to this Contract, and Contractor agrees to
waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance
as respects the City, its officials, employees, agents and authorized volunteers, or if excess,
shall stand in an unbroken chain of coverage excess of Contractor's scheduled underlying
coverage. Any insurance or self-insurance maintained by the City, its officials, employees,
agents and authorized volunteers shall be excess of Contractor's insurance and shall not be
called upon to contribute with it in any way.
3.13.3.3 Workers' Compensation and Employer's Liability Coverage. The insurer shall
agree to waive all rights of subrogation against the City, its officials, employees, agents and
authorized volunteers for losses paid under the terms of the insurance policy which arise from
work performed by Contractor.
3.13.3.4 All Coverages. Each insurance policy required by this Contract shall be
endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled
except after thirty (30) days prior written notice by certified mail, return receipt requested, has
been given to the City; and (2) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the City, its
officials, employees, agents and authorized volunteers.
3.13.4 Separation of Insureds; No Special Limitations. All insurance required by this
Section shall contain standard separation of insureds provisions. In addition, such insurance
shall not contain any special limitations on the scope of protection afforded to the City, its
officials, employees, agents and authorized volunteers.
3.13.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City. Contractor shall guarantee that, at
the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self -
insured retentions as respects the City, its officials, employees, agents and authorized
volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable
to the City guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
3.13.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best's rating no less than A:VII, licensed to do business in California. Exception may be made for the
State Compensation Insurance Fund when not specifically rated.
3.13.7 Verification of Coverage. Contractor shall furnish City with original certificates of
insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the
City. The certificates and endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf and shall be on forms supplied or approved
by the City. All certificates and endorsements must be received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
3.13.8 Subcontractors. All subcontractors shall meet the requirements of this Section before
commencing Work. Contractor shall furnish separate certificates and endorsements for each
subcontractor. Subcontractor policies of General Liability insurance shall name the City, its officials,
employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or
endorsements providing the exact same coverage. All coverages for subcontractors shall be subject
to all of the requirements stated herein except as otherwise agreed to by the City in writing.
3.13.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor's
insurer, any and all insurance claims submitted by Contractor in connection with the Work under this
Contract.
3.14 Bond Requirements.
3.14.1 Payment Bond. If required by law or otherwise specifically requested by City and
incorporated herein by reference, Contractor shall execute and provide to City concurrently with this
Contract a Payment Bond in an amount required by the City and in a form provided or approved by the
City. If such bond is required, no payment will be made to Contractor until the bond has been received
and approved by the City.
3.14.2 Performance Bond. If specifically requested by City and incorporated herein by
reference, Contractor shall execute and provide to City concurrently with this Contract a Performance
Bond in an amount required by the City and in a form provided or approved by the City. If such bond is
required, no payment will be made to Contractor until the bond has been received and approved by
the City.
3.14.3 Bond Provisions. Should, in City's sole opinion, any bond become insufficient or any
surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten)
10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel
any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor
shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds.
No further payments shall be deemed due or will be made under this Contract until any replacement
bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract
Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause
the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of
such increase to the City. If Contractor fails to furnish any required bond, the City may terminate th e
Contract for cause.
3.14.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in
California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety
insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is
in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is
provided to the City.
3.15 Warranty. Contractor warrants all Work under the Contract (which for purposes of this
Section shall be deemed to include unauthorized work which has not been removed and any non-
conforming materials incorporated into the Work) to be of good quality and free from any defective or
faulty material and workmanship. Contractor shall provide and honor its standard manufacturer’s
warranty for the goods provided hereunder per that described in the Proposal . Contractor shall within
ten (10) days after being notified in writing by the City of any defect in the Work or non -conformance
of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill
the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by
the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair
and replace any portions of the Work (or work of other contractors) damaged by its defective Work or
which becomes damaged in the course of repairing or replacing defective Work. For any Work so
corrected, Contractor's obligation hereunder to correct defective Work shall be reinstated for an
additional one-year period, commencing with the date of acceptance of such corrected Work.. The
City will hire an independent playground inspector who shall verify whether any corrective actions to
the Work are necessary. All costs associated with such corrective actions, including the removal,
replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole
responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and
manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be
obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and
guarantees have been transferred or assigned to the City by separate agreement and Contractor
agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that
Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty
under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct
and replace any defective or non-conforming Work and any work damaged by such work or the
replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully
reimburse the City for any expenses incurred hereunder upon demand.
3.16 Employee/Labor Certifications.
3.16.1 Contractor's Labor Certification. By its signature hereunder, Contractor certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require every employer
to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance
with the provisions of that Code and agrees to comply with such provisions before commencing the
performance of the Work. A certification form for this purpose and incorporated herein by reference,
shall be executed simultaneously with this Contract.
3.16.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity
employer and that it shall not discriminate against any employee or applicant for employment because
of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or
Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination.
3.16.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that
it fully complies with all requirements and restrictions of state and federal law respecting the
employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control
Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub -
subcontractors to comply with the same.
3.17 General Provisions.
3.17.1 City's Representative. The City hereby designates the City Manager, or his or her
designee, to act as its representative for the performance of this Contract ("City's Representative").
City's Representative shall have the power to act on behalf of the City for all purposes und er this
Contract. Contractor shall not accept direction or orders from any person other than the City's
Representative or his or her designee.
3.17.2 Contractor's Representative. Before starting the Work, Contractor shall submit in writing
the name, qualifications and experience of its proposed representative who shall be subject to the
review and approval of the City ("'Contractor's Representative"). Following approval by the City,
Contractor's Representative shall have full authority to represent and act on behalf of Contractor for
all purposes under this Contract. Contractor's Representative shall supervise and direct the Work,
using his best skill and attention, and shall be responsible for all construction means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work
under this Contract. Contractor's Representative shall devote full time to the Project and either he or
his designee, who shall be acceptable to the City, shall be present at the Work site at all times that
any Work is in progress and at any time that any employee or subcontractor of Contractor is present
at the Work site. Arrangements for responsible supervision, acceptable to the City, shall be made for
emergency Work which may be required. Should Contractor desire to change its Contractor's
Representative, Contractor shall provide the information specified above and obtain the City's written
approval.
3.17.3 Termination. This Contract may be terminated by City at any time, either with our without
cause, by giving Contractor fifteen (15) days advance written notice. In the event of termination by City
for any reason, City shall pay Contractor for all Work performed (including all goods produced) up to
the effective date of termination. In the event of breach of the Contract by Contractor, City may
terminate the Contract immediately upon notice if Contractor fails to cure the breach within 5 days of
its receipt of notice, and City may pursue any available recourse against Contractor. Contractor may
not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part
as provided, City may procure, upon such terms and in such manner as it may determine appropriate,
services similar to those terminated. Further, if this Contract is terminated as provided, City may require
Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or
other matter prepared or built by Contractor in connection with its performance of this Contract.
3.17.4 Contract Interpretation. Should any question arise regarding the meaning or import of
any of the provisions of this Contract or written or oral instructions from City, the matter shall be
referred to City's Representative, whose decision shall be binding upon Contractor.
3.17.5 Anti-Trust Claims. This provIs1on shall be operative if this Contract is applicable to
California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services
or materials, Contractor hereby offers and agrees to assign to the City all rights , title, and interest in
and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or
under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the
Business and Professions Code) arising from purchases of goods, services, or materials pursuant to
the Contract. This assignment shall be made and become effective at the time the City tender final
payment to Contractor, without further acknowledgment by the Parties.
3.17.6 Notices. All notices hereunder and communications regarding
interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof
by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CONTRACTOR:
Landscape Structures, Inc.
P.O. Box 86
Minneapolis, MN 55486
Attn: Brant Dennis
brantdennis@playlsi.com
CITY:
City of Arroyo Grande
300 E. Branch St.,
Arroyo Grande, CA 93420
Attn: Matthew Downing, City Manager
Any notice so given shall be considered received by the other Party three (3) days after deposit
in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice
shall be deemed adequate notice on the date actual notice occurred, regardless of the method of
service.
3.17.7 Time of Essence. Time is of the essence in the performance of this Contract.
3.17.8 Assignment Forbidden. Neither City nor Contractor shall, either voluntarily or by action
of law, assign or transfer this Contract or any obligation, right, title or interest assumed by it herein
without the prior written consent of the other party. If a Party attempts an assignment or transfer
of this Contract or any obligation, right, title or interest herein, the other Party may, at its option,
terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to
the other Party or its assignee or transferee.
3.17.9 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right
or obligation assumed by the Parties.
3.17.10 Laws, Venue, and Attorneys' Fees. This Agreement shall be interpreted in accordance
with the laws of the State of California. If any action is brought to interpret or enforce any term of
this Agreement, the action shall be brought in a state or federal court situated in the County of San
Luis Obispo, State of California.
3.17.11 Counterparts. This Contract may be executed in counterparts, each of which shall
constitute an original.
3.17.12 Successors. The Parties do for themselves, their heirs, executors, administrators,
successors, and assigns agree to the full performance of all of the provisions contained in this
Contract.
3.17.13 [Reserved]
3.17.14 Solicitation. Contractor maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for Contractor or a bona
fide agency, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor
has it agreed to pay any company or person, other than a bona fide employee working solely for
Contractor or a bona fide agency, any fee, commission, percentage, brokerage fee, gift or other
consideration contingent upon or resulting from the award or making of this Contract. For breach
or violation of this warranty, City shall have the right to terminate this Contract without liability.
3.17.15 Conflict of Interest. Contractor maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely for Contractor
or a bona fide agency, to solicit or secure this Agreement. Further, Contractor warrants that it has
not paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Contractor or a bona fide agency, any fee, commission, percentage, brokerage fee, gift
or other consideration contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, City shall have the right to rescind this Agreement without
liability. For the term of this Contract, no official, officer or employee of City, during the term of his
or her service with City, shall have any direct interest in this Contract, or obtain any present or
anticipated material benefit arising therefrom. In addition, Contractor agrees to file, or to cause its
employees or subcontractors to file, a Statement of Economic Interest with the City's Filing Officer
as required under state law in the performance of the Work.
3.17.16 Certification of License.
3.17.16.1 Contractor certifies that as of the date of execution of this Contract, Contractor has
a current contractor's license of the classification indicated below under Contractor's signature.
3.17.16.2 Contractors are required by law to be licensed and regulated by the Contractors'
State License Board which has jurisdiction to investigate complaints against contractors if a complaint
regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A
complaint regarding a latent act or omission pertaining to structural defects must be filed within ten
(10) years of the date of the alleged violation. Any questions concerning a contractor may be referred
to the Registrar, Contractors' State License Board, P.O. Box 26000, Sacramento, California 95826.
3.17.17 Authority to Enter Contract. Each Party warrants that the
individuals who have signed this Contract have the legal power, right and authority to make this
Contract and bind each respective Party.
3.17.18 Entire Contract: Modification. This Contract contains the entire agreement of the Parties
with respect to the subject matter hereof, and supersedes all prior negotiations, understandings
or agreements. This Contract may only be modified by a writing signed by both Parties.
3.17.19 Non-Waiver. None of the provisions of this Agreement shall be considered waived by
either party, unless such waiver is specifically specified in writing.
3.17.20 City's Right to Employ Other Contractors. City reserves right to employ other contractors
in connection with this Project or other projects.
3.17.21 Federal Requirements. Coronavirus State and Local Fiscal Recovery Funds ("SLFRF")
will be used to fund all or a portion of this Contract. The Contractor shall comply with all federal
requirements including, but not limited to, the following:
• Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American
Rescue Plan Act of 2021, U.S. Department of the Treasury Coronavirus State and Local
Fiscal Recovery Fund Award Terms and Conditions, Treasury's Final Rule, and SLFRF
reporting requirements, as applicable (collectively, the "SLFRF Compliance
Requirements"). The SLFRF Compliance Requirements are expressly incorporated
herein by reference.
• 2 C.F.R. Part 200 - Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards, which is expressly incorporated herein by reference.
• Federal Contract Provisions attached hereto as Exhibit "A" and incorporated herein by
reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions
stipulated in the Contract, including but not limited to, SLFRF Compliance Requirements, 2 C.F.R.
Part 200, and the Federal Contract Provisions. With respect to any conflict between such federal
requirements and the terms herein and/or the provisions of state law and except as otherwise
required under federal law or regulation, the more stringent requirement shall control.
Contractor agrees to accept any additional conditions governing the use of funds from the
SLFRF or other funding source as may be required by executive order, federal, state or local
statute, ordinance, rule or regulation or by policy announced by the City.
Contractor shall cooperate with City, including providing any necessary documentation
and records, in order for City to comply with the federal requirements in Exhibit A.
Contractor will maintain all records pertaining to this Project for a period of five (5) years
following completion of the Project
[SIGNATURES ON NEXT PAGE]
SIGNATURE PAGE FOR CONSTRUCTION CONTRACT
BETWEEN THE ARROYO GRANDE
AND LANDSCAPE STRUCTURES, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the ___
day of ___________, 20___.
ARROYO GRANDE LANDSCAPE STRUCTURES, INC.
By: By:
Matthew Downing
City Manager Its:
Printed Name: _
ATTEST:
By:
Jessica Matson
City Clerk
APPROVED AS TO FORM:
By:
Isaac Rosen
City Attorney
Jlih landscape structures®
•INTRODUCTION:
PARKSIDE PARK PLAYGROUND PROPOSAL
I.INTRODUCTION / COVER LETTER
o Company History: Since 1971, Landscape Structures Inc. has been a leadi'ng manufacturer of commercial playground
equipment in the world. Our 100% employee�owned company designs community and school playgrounds that encourage kids
of all ages and abilities to learn persistence, leadership, competition, bravery, support and empathy through play. We push the
limits of our designs to help kids realize there is no limit to what they can do today and in the future. We have of manufactured
over 75,000 playgrounds and county that serve communities both locally, and worldwide.
o Central Coast History: Landscape Structure has been a preferred playground manufacture for many municipalities and school
districts throughout the.Central Coast for over 35 years. Some recent project highlights include, the iconic Dinosaur Caves Park,
and local community gem, Chumash Park in Pismo Beach, along with Orcutt Community Park for the County of Santa Barbara,
and several playground throughout Barney Schwartz Park in Paso Robles.
o Understanding of Project Scope: We understand the Turnkey Replacement of the play equipment and play surfacing at Parkside
Park, should include:
■The demo and removal of the existing play equipment and surfacing, including removal a small section of playground curb
to create a "bump out area" for a playhouse as shown on the documents provided in the HFP.
■The Design, Manufacturing and installation of new play equipment for all ages, including a main play structure, toddler play
house and swings.
■The provide and installation of Poured-In-Place Rubberized surfacing, at a depth compliant with the installed equipment.
•The equipment and surfacing installed should be compliant with all ASTMi ADA, and CPSC guidelines for Playgrounds.
"EXHIBIT A"
Net 30 from ShipmentCredit Terms
6-8 Week from Full and Complete Order
Submittal
Lead Time
6/13/2025Expiration Date
5/15/2025Created Date
00000336Quote Number
City Of Arroyo GrandeEnd Account Owner
Parkside Park PlaygroundOpportunity Name
$7,800.00Freight
$106,930.00Labor
$100,460.00Product
- Quote is for line items listed below only.
- Additional work, not listed below, will require a change order, or separate proposal.
Exclusions &
Additional Notes
A 3% service fee will be added to the Total Proposal Amount with the use of a Credit Card for Payment.
Engineering and Structural Calculation are NOT included unless stated/quoted otherwise.
Direct Bury is assumed all projects unless advised otherwise by the client.
Matt Norris 805-266-611724 Hour call prior
401 Bakeman Lane
Arroyo Grande, CA 93420
United States
Ship To
Central Coast PlaygroundsShip To Name
1375 Ash Street
Arroyo Grande, CA 93420
United States
Bill To
City of Arroyo GrandeBill To Name
Exclusions & Additional Notes
WE ARE PLEASED TO SUBMIT THIS PROPOSAL TO PROVIDE THE FOLLOWING ITEMS:
Product Item No Line Item Description Quantity Sales Price Total Price
Custom
Playground
Equipment
1195710-02-03
Custom Nature-Base 2-12 Playground Design, including Discovery
Tree Playground Structure, Toddler Playhouse, Inclusive Sensory Play
Center, Toodler/Belt Swing Combo Swing Set.
1.00 $100,460.00 $100,460.00
Surfacing
Provide and Install up to 1850 SF of SpectraPour Rubberized
Surfacing, thickness to be compliant with CFH of play equipment.
Standard Colors, 67%CLR/33% BLK Mix. No Graphics.
1.00 $40,334.00 $40,334.00
Mobilization Offloading, Portable Bathroom, Temp Security Fencing, Equipment
Moves 1.00 $3,465.00 $3,465.00
Demo Remove and Dispose of all existing play equipment, including the main
play structure and swing set.1.00 $7,808.00 $7,808.00
Demo Demo and Dispose of 16' of Existing Concrete Play Curb.1.00 $1,386.00 $1,386.00
Demo Demo and Dispose of up to 1850 SF of Existing Rubberized Surfacing.1.00 $10,568.00 $10,568.00
Site Work Provide and Install up to 1850 SF of Compacted Base Subsurface 4"
Depth.1.00 $8,455.00 $8,455.00
Site Work Provide and install up to 11 LF of new Concrete Play Curb for Bump
Out Area.1.00 $1,733.00 $1,733.00
Installation Installation of all Playground Equipment shown on Design
#1195710-02-02 1.00 $26,657.00 $26,657.00
Freight 120-25-107 Shipping to Arroyo Grande, CA 1.00 $7,800.00 $7,800.00
Bonding Payment and Performance Bonds 1.00 $6,524.00 $6,524.00
"EXHIBIT B"
Net 30 from ShipmentCredit Terms
6-8 Week from Full and Complete Order
Submittal
Lead Time
6/13/2025Expiration Date
5/15/2025Created Date
00000336Quote Number
City Of Arroyo GrandeEnd Account Owner
Parkside Park PlaygroundOpportunity Name
$223,980.25Grand Total
$8,790.25Tax
8.75%Tax Rate
Nate StutzOpportunity Owner
OFFICIAL CERTIFICATION
I, JESSICA MATSON, City Clerk of the City of Arroyo Grande, County of San Luis
Obispo, State of California, do hereby certify under penalty of perjury, that the
attached Resolution No. 2025-042 was passed and adopted at
a regular meeting of the City Council of the City of Arroyo Grande on the 24th
day of June, 2025.
WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 26th day
of June, 2025.
JESSICA MATSON, CITY CLERK