HomeMy WebLinkAboutChart International Contract - Emergency Repair - Compressed Natural Gas - 08-15-24Docusign Envelope ID: 33DA8910-05EE-4628-BA43-02C24681 BAD5
CONTRACT
CITY OF FRESNO, CALIFORNIA
PUBLIC WORK OF IMPROVEMENT
THIS CONTRACT (Contract) is made and entered into by and between CITY OF
FRESNO, a California municipal corporation (City), and Chart International, Incorporated
(Contractor) as follows:
1. Contract Documents. The "Specifications" including "General Conditions,"
"Special Conditions," "Federal Conditions," "Community Workforce Agreement," "Scope
of Work," "Project Budget," and the Standard Specifications", as modified, for design
services for the following: emergency repair and expedient delive of engineering and
construction services to reconstruct the Compressed Natural Gas CNG fueling station
as permitted under the urgent necessitV resolution adopted by Council on August 15
2024, copies of which are annexed hereto, together with all the drawings, plans, and
documents specifically referred to in said annexed documents, including Performance
and Payment Bonds, if required, and are hereby incorporated into and made a part of this
Contract, and shall be known as the Contract Documents.
2. Price and Work. For the monetary consideration not to exceed three million,
nine hundred thirteen thousand. seventv-seven dollars and zero cents 3 913 077 as
set forth in the contract, Contractor promises and agrees to perform or cause to be
performed, in a good and workmanlike manner, under the direction and to the satisfaction
of the City's "Engineer," and in strict accordance with the Specifications, all of the work as
set forth in the Contract Documents.
3. Payment. City accepts Contractor's Proposal as stated and agrees to pay
the consideration stated, at the times, in the amounts, and under the conditions specified
in the Contract Documents. The Contractor agrees to accept electronic payment from
City.
4. Indemnification. To the fullest extent allowed by law, and in addition to the
express duty to indemnify, CONTRACTOR, whenever there is any causal connection
between the CONTRACTOR's performance or non-performance of the work or services
required under this Contract and any claim or loss, injury or damage of any type,
CONTRACTOR expressly agrees to undertake a duty to defend CITY and any of its
officers, officials, employees, agents, or volunteers, as a separate duty, independent of
and broader that the duty to indemnify. The duty to defend as herein agreed to by
CONTRACTOR expressly includes all costs of litigation, attorney(s) fees, settlement
costs and expenses in connection with claims or litigation, whether or not the claims are
valid, false or groundless, as long as the claims could be in any manner be causally
connected to CONTRACTOR as reasonably determined by CITY.
Upon the tender by CITY to CONTRACTOR, CONTRACTOR shall be bound and
obligated to assume the defense of CITY and any of its officers, officials, employees,
agents, or volunteers, including the a duty to settle and otherwise pursue settlement
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negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements,
judgments, awards, or expenses resulting from or arising out of the claims without
reimbursement from CITY or any of its officers, officials, employees, agents, or
volunteers.
It is further understood and agreed by CONTRACTOR that if CITY tenders a defense of
a claim on behalf of CITY or any of its officers, officials, employees, agents, or volunteers
and CONTRACTOR fails, refuses or neglects to assume the defense thereof, CITY and
its officers, officials, employees, agents, or volunteers may agree to compromise and
settle or defend any such claim or action and CONTRACTOR shall be bound and
obligated to reimburse CITY and its officers, officials, employees, agents, or volunteers
for the amounts expended by each in defending or settling such claim, or in the amount
required to pay any judgment rendered therein.
The defense and indemnity obligations set forth above shall be direct obligations and shall
be separate from and shall not be limited in any manner by any insurance procured in
accordance with the insurance requirements set forth in this Contract. In addition, such
obligations remain in force regardless of whether CITY provided approval for, or did not
review or object to, any insurance CONTRACTOR may have procured in a accordance
with the insurance requirements set forth in this Contract. The defense and indemnity
obligations shall arise at such time that any claim is made, or loss, injury or damage of
any type has been incurred by CITY, and the entry of judgment, arbitration, or litigation of
any claim shall not be a condition precedent to these obligations.
The defense and indemnity obligations set forth in this section shall survive termination
or expiration of this Contract.
If CONTRACTOR should subcontract all or any portion of the work to be performed under
this Contract, CONTRACTOR shall require each subcontractor to Indemnify, hold
harmless and defend CITY and each of its officers, officials, employees, agents and
volunteers in accordance with the terms as set forth above.
5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of
Section 6705 of the California Labor Code and, if said provisions are applicable to this
Contract, agrees to comply therewith.
6. Worker's Compensation Certification. In compliance with the provisions of
Section 1861 of the California Labor Code, Contractor hereby certifies as follows:
"I am 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 I will comply with such
provisions before commencing the performance of work of this
Contract and will make my subcontractors aware of this provision.'
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7. Contractor's duties and services under this Contract shall not include
preparing or assisting the City with any portion of the City's preparation of a request for
proposals, request for qualifications, or any other solicitation regarding a subsequent or
additional contract with the City. The City entering this Agreement shall at all times retain
responsibility for public contracting, including with respect to any subsequent phase of
this Project. Contractor's participation in the planning, discussions, or drawing of project
plans or specifications shall be limited to conceptual, preliminary, or initial plans or
specifications. Contractor shall cooperate with the City to ensure that all bidders for a
subsequent contract on any subsequent phase of this Project have access to the same
information, including all conceptual, preliminary, or initial plans or specifications prepared
by Contractor pursuant to this Agreement.
8. The City Manager, or designee, is hereby authorized and directed to
execute and implement this Agreement. The previous sentence is not intended to
delegate any authority to the City Manager to administer the Agreement, any delegation
of authority must be expressly included in the Agreement.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Contract on the day and
year here below written, of which the date of execution by the City shall be subsequent
to that of Contractor's, and this Contract shall be binding and effective upon
execution by both parties.
CITY OF FRESNO
A California municipal corporation
by:
Y� Stned
B fay�t,t11/18/2024
Greg$'ry' ."9arfield, M.A. Date
Transportation Director
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
,7i^:neo by:
By: CL1 t'jAA' 'P_ C_L,rt,4,i0a/18/2024
ChrQffin6'TMaritar Date
Deputy City Attorney
ATTEST
TODD STERMER, CMC
City Clerk
,,--Signr rf by:
II 'r" lla e� 11/18/2024
D
By: �--yFtg�STlhy `
eputy Date
Tina M. Your
Addresses:
CITY:
City of Fresno
Attention: Linda Taylor
Administrative Manager
2223 G Street
Fresno CA, 93706
Telephone: 559-621-1456
Email: linda.taylor@fresno.gov
Attachments follow on the next page
CHART INTERNATIONAL,
Incorporated
DocuSigned by:
By: Rt,v Ut Nfd&iss
Name:
Herbert Hotchkiss
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
Title: VP, General counsel & secretary
DocuSigned by:
By: ,(, VV 6v' SMi&'
Name:
clintonsSmith
Title: General Manafer Field service
(If corporation or LLC., CFO Treasurer,
Secretary or Assistant Secretary
CONTRACTOR:
Chart International Incorporated
Attention: Ryan Langer
Technical & Field Service Manager
407 7th Street NW
New Prague, MN 56071-1000
Telephone: 952-243-8568
Email: ryan.langer@chartindustries.com
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Attachments:
1. General Conditions
2. Special Conditions
3. Federal Conditions
4. Community Workforce Agreement
5. Insurance Requirements
6. Prevailing Wage Rates
7. Scope of Work
8. Project Budget
9. Standard Specifications
10. Certifications
• Disadvantaged Business Enterprises (DBE) Listing
■ Debarment & Suspension Certification
Non -Lobbying Certification
Federal Tax Liability & Recent Felony Convictions Certification
• Buy America Certification
• Build America Buy America Certification
• Authorization Agreement for Direct Payment
Disclosure of Conflict of Interests
• Non -Collusion Affidavit
Equal Employment Opportunity Certification
+ Payment Bond
• Performance Bond
• PLA Agreement to be Bound
11. Federal Prevailing Wage Rates
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Attachment 1 — General Conditions
GENERAL CONDITIONS
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Attachment 1 — General Conditions
GENERAL CONDITIONS
DEFINITIONS (NONFEDERAL)
Wherever used in the Specifications, including the Instructions to Bidders and the Bid
Proposal, or any of the Contract documents, the following words shall have the meaning
herein given, unless the context requires a different meaning.
1. "Bidder," "Proposer," shall mean and refer to each person or other entity submitting
a bid proposal, whether or not such person or entity shall become a Seller by virtue
of award of a Contract by the Buyer.
2. California Building Code (CBC), Latest Edition; California Plumbing Code (CPC),
Latest Edition; California Mechanical Code (CMC), Latest Edition; National
Electrical Code (NEC), Latest Edition; California Fire Code (CFC), Latest Edition;
California Health and Safety Code (as applicable). For purposes of this definition,
"Latest Edition" shall mean the edition, and to the extent, adopted by the City
through the City of Fresno Municipal Code.
3. "City," "Buyer," "Owner," "Vendee," "City of Fresno" shall each mean and refer to
the City of Fresno, California.
4. "City Standard Specifications" - City of Fresno, Standard Specifications,
Department of Public Works, dated September, 2010 and as amended from time -
to -time.
5. "Construction Manager" shall mean and refer to the Owner's authorized
representative at the Job Site, in responsible charge of administering the Contract.
The Construction Manager shall be the single point of contact for all
correspondence, submittals, progress payment requests, and contacts to and from
the Contractor.
6. "Contract," "Contract Documents" shall mean and refer to these Specifications,
including the Instructions to Bidders, the Bid Proposal, and any addenda thereto,
the Agreement and all other standard Specifications, Buyer's Specifications and
other papers and documents incorporated by reference into or otherwise referred
to in any of the foregoing documents, whether or not attached thereto.
7. "Contractor," "Seller," "Vendor," "Supplier" shall each mean and refer to each
person or other entity awarded a Contract hereunder and named or to be named
in the Agreement with the Buyer to furnish the goods or services, or both, to be
furnished under the Contract.
8. "Council," "City Council" shall each mean and refer to the Council of the Buyer.
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9. "Engineer," "City Engineer," shall mean and refer to the City Engineer and any duly
authorized representative.
10. "Goods," "Merchandise" shall each mean and refer to the equipment, material,
article, supply, or thing to be furnished by the Seller under the Contract.
11. "Purchasing Manager" shall mean and refer to the Purchasing Manager of the
Buyer.
12. "Specifications" shall mean and refer to all of the Contract Documents.
13. "State Standard Specifications" - State of California, Department of Transportation,
Standard Specifications, Latest Edition.
14. "Working day" shall mean and refer to City regular business day.
GENERAL GUARANTY
Neither the final certificate of payment nor any provision in the Contract Documents nor
partial or entire occupancy of the premises by the City shall constitute an acceptance of
work not done in accordance with the Contract Documents or relieve the Contractor of
liability in respect to any express warranties or responsibility for faulty materials or
workmanship. The Contractor shall remedy any defects in the work and pay for any
damage to other work resulting therefrom, which shall appear within a period of 1 year
from the date of final acceptance of work unless a longer period is specified. The Project
Manager will give notice of observed defects with reasonable promptness.
PRECEDENCE OF CONTRACT DOCUMENTS
The order of precedence of documents shall be: (1) Rules and Regulations of Federal
Agencies relating to the source of funds for this project; (2) Permits from other agencies
as may be required by law;(3) Supplemental Agreements, Change Orders, or Contract
the one dated later having precedence over another dated earlier; (4) Special Conditions;
(5) General Conditions; (6) Technical Specifications; (7) Plans;(8) Standard
Specifications; (9) Standard Plans.
Detailed Plans shall have precedence over general Plans.
Whenever any conflict appears in any portion of the Contract, it shall be resolved by
application of the order of precedence.
CONTRACT DOCUMENTS
The Contractor shall submit the required contract documents in a form acceptable to the
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Department of Transportation (Fresno Area Express, 2223 G Street, Fresno, California
93706) within 15 calendar days (except in the event federal funding is applicable to this
Contract, then 10 working days) from the Notice of Award of Bids. Failure to provide said
documents within the designated period shall be sufficient cause to forfeit the Contractor's
Bid Deposit and initiate a departmental recommendation to the Council to award project
to the next lowest responsive and responsible Bidder.
NOTE: Contract Documents consist of the following: Contract, Labor and Materials and
Faithful Performance Bonds, Insurance Certificates, Workers' Compensation Insurance
Certificate, Fair Employment Form, and any other information which may be required by
these Specifications.
PRE -CONSTRUCTION MEETING AND SCHEDULE OF WORK
Prior to the start of construction, City staff will call a meeting with all affected City
Departments, governmental agencies, or utility companies to coordinate the construction
with the Contractor so that no delays will be encountered due to conflicts of operations.
The Contractor will be called upon to indicate, at this meeting, the proposed operations
to accomplish the work. The Contractor's attention is called to Section 6-1, City Standard
Specifications, and the following requirements:
• The Contractor shall submit a written tentative schedule of work to the Project
Manager at the pre -construction meeting.
• The final schedule of work shall be submitted no later than 5 working days after
the preconstruction meeting.
■ If the Project does not require a Stormwater Pollution Prevention Plan (SWPPP),
per the Special Conditions, the awarded Contractor shall begin job site activities
15 calendar days after receiving notice that the contract has been executed by the
City.
ID Modifications to the start of job site activities shall be approved in writing by the
Project Manager.
If the Contractor delays the submittal of the final work schedule, the City may deduct the
number of calendar days beyond the 5 working days allowed for submittal from the
number of working days allowed for completion of the project.
Contractor's proposed schedule shall be in the form of a tabulation, chart, or graph and
shall be in sufficient detail to show the chronological relationship of all activities of the
project including, but not limited to, estimated starting and completion dates of various
activities, procurement of materials, and scheduling of equipment. The construction
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schedule shall reflect completion of all work under the Contract within the specified time
and in accordance with these Specifications. Once submitted to the Project Manager for
review and approval, the Project Manager shall either approve or reject said Project
Schedule. If rejected, it shall be revised to incorporate the necessary changes, deletions
or additions and resubmitted to the Project Manager. If the Project Schedule is approved
by the Project Manager, the Project Schedule shall become the baseline schedule for the
Project. The Project Schedule is subject to change during construction and will be
continually updated and adjusted throughout the Project by Contractor on at least a
monthly basis.
The City will use the Project Schedule for planning, executing and monitoring Project
progress. The Contractor will prepare a monthly schedule update.
The Contractor, at each weekly Project meeting shall provide City with two week look -
ahead schedules identifying its planned prosecution of the Work.
Contractor will exchange scheduling information with subcontractors and suppliers.
Contractor will order work, equipment, and materials with sufficient lead-time to avoid
interruption of the Work.
The City may issue a Notice to Proceed and start contract time upon the required start of
job site activities, as specified herein, unless otherwise approved in writing by the Project
Manager. It is the Contractors responsibility to ensure that all necessary pre -construction
coordination is completed, submittals are approved, and permits issued in order for the
work to commence.
OVERTIME INSPECTION FEES
The Contractor shall promptly pay the City for all overtime inspection in accordance with
existing resolutions or fee schedule of the City unless the charges for such inspection
have been specifically waived elsewhere within this Contract. Overtime inspection
charges will be made for all inspections on Saturdays, Sundays, and City Holidays, and
hours worked by the inspector other than those of the normal City working days. If charges
are not paid within 15 days of invoice, City may elect in its sole discretion to withhold
unpaid charges from any progress payments.
SUBSTITUTION OF MATERIALS
(After Award)
See City of Fresno Standard Specifications, Section 4-1.5 entitled "Trade Names or
Equals," which shall prevail.
Where the Contractor has good and sufficient reason to suggest a substitution after
bidding, he/she will within 14 days after the signing of the Contract, submit his or her
request for substitution in writing and shall indicate all information required thereof
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Attachment 1 — General Conditions
including reasons for substitution, difference in price or cost, difference in size, difference
in color, etc., and it will be approved or disallowed within 30 days.
No consideration shall be given to request for substitution not in accordance with the
above conditions. The Project Manager will be the sole judge in matters concerning
equality of proposed substitutions and the decision shall be final. The burden of proof as
to the quality of any proposed substitutions shall be upon the Contractor.
Supplier must submit a letter to guarantee the replacement of any material that appears
defective on the job for a period of 1 year after acceptance of the project.
ASSIGNMENT OF PAYMENT
Contractor hereby agrees he/she will not assign the payment of any monies due it
(him/her) from the City under the terms of this Contract to any other individual(s),
corporation(s), or entity(s). The City retains the right to pay any and all monies due
Contractor directly to Contractor.
PATENTS
For the purchase of equipment and material, the Vendor shall hold the City of Fresno, its
officers and employees, harmless from any and all liability for damages arising out of the
use of any patented material, equipment, device or process incorporated into or made a
part of or required by the manufacturer's Specifications to be used on or in connection
with the material, equipment or supplies purchased by the Buyer pursuant to these
Specifications, and Vendor agrees, by submission of a proposal hereunder, to defend the
Buyer, at Vendor's sole expense, in any action or suit for damages or injunctive relief on
account of any allegedly unauthorized use of or infringement of patent rights on any
patented material, equipment, device or process, if the Buyer is named as a defendant in
any such action or suit.
CODES AND ORDINANCES
Nothing in these Specifications is to be construed to permit work not conforming to
applicable codes
MAINTENANCE OF RECORDS
Contractor and its subcontractors are required to maintain books, records, and other
documents pertinent to the work of this Contract in accordance with Generally Accepted
Accounting Principles. All such books, records, and other documents pertaining to the
Contract shall be available to City or its authorized representatives upon request during
regular business hours throughout the life of the Contract and for a period of 5 years after
final payment or, if longer, for any period required by law or any State or Federal funding
agreement applicable to this Contract. In addition, all books, documents, papers and
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Attachment 1 — General Conditions
records of Contractor and its subcontractors pertaining to the Contract shall be available
for the purpose of making audits, examinations, excerpts, and transcriptions for the same
period of time by City or its authorized representatives, (and, in the event State or Federal
funding is applicable to this Contract, then the respective State of California, State of
California Department of Transportation (Caltrans), the State of California State Auditor,
the United States, the Federal Transit Administration (FTA), or any authorized
representatives of the aforementioned), and shall allow interviews during normal business
hours of any employees who might reasonably have information related to such records.
If any litigation, claim, negotiations, audit, or other action is commenced before the
expiration of said time period, all records must be retained until such action is resolved,
or until the end of said time period whichever shall later occur. Failure or refusal by
Contractor or its subcontractors to comply with this provision shall be considered a
substantial failure to comply with this Contract, and City may declare Contractor in default
as set forth in these Specifications, withhold payment to Contractor, or take any other
action it deems necessary to protect its interests. This provision shall survive expiration
or termination of this Contract.
Contractor and its subcontractors shall establish and maintain an accounting system and
records that properly accumulate and segregate incurred Project costs by line item for the
Project. The accounting system shall enable the determination of incurred costs at interim
points of completion and provide support for reimbursement payment vouchers or
invoices sent to or paid by the City.
Contractor and its subcontractors shall make the Contract and any State or Federal
funding agreement materials applicable to this Contract available at their respective
offices at all reasonable times during the entire Project period and 5 years from the date
of final payment to Contractor. This provision shall survive expiration or termination of this
Contract.
NONFEDERAL LABOR STANDARD PROVISIONS
GENERAL PROVISIONS: The following Nonfederal Labor Standards Provisions,
including the following provisions concerning: maximum hours of work, minimum rates of
pay, and overtime compensation, with respect to the categories and classifications of
employees hereinafter mentioned are included in the Contract pursuant to the
requirements of applicable State or local laws, but the inclusion of such provisions shall
not be construed to relieve the Contractor or any subcontractor from the pertinent
requirements of any corresponding Federal Labor -Standard Provisions of this Contract.
In cases the minimum rates of pay set forth below shall be higher than the minimum rates
of pay required by or set forth in the Federal Labor -Standards Provisions of this Contract
for corresponding classifications, the minimum rates of pay set forth below shall be
deemed, for the purpose of this Contract, to be the applicable minimum rates of pay for
such classifications. The limitations, if any, in these Nonfederal Labor Standards
Provisions upon the hours per day, per week or month which employees engaged on the
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Attachment 1 — General Conditions
work covered by this Contract may be required or permitted to work thereon shall not be
exceeded.
SCHEDULE OF WAGES AND SALARIES: In accordance with the provisions of sections
1770 to 1781, inclusive of the Labor Code of the State of California and/or section (1)(b)
of the United States Labor Code, the Director of Industrial Relations and/or the United
States Secretary of Labor shall ascertain the general prevailing rate of wages applicable
to the work to be done under this Contract to be included in these Specifications by
reference. (For any questions regarding wage rates or specific wage rate determinations,
contact the Contract Compliance Officer at City of Fresno Capital Projects Department,
Capital Projects Administration Division, 747 R Street, 2nd Floor, Fresno, California
93721, (559) 621-5600.)
LABOR CODE SECTION 1775: PENALTIES FOR UNDER -PAYMENT OF WAGES: The
Contractor and each subcontractor shall comply with California Labor Code section 1775
and pay not less than the wages established by the Director of the Department of
Industrial Relations and/or the Federal government. In accordance with such section
1775, Contractor or such subcontractor shall, as a penalty to the City, forfeit up to
$200.00, as determined by the Labor Commissioner, for each calendar day or portion
thereof for each worker under this Contract paid less than the established wage rates.
These penalties shall be withheld from progress payments then due. The Contractor shall
contain in each subcontract the requirements hereunder.
PENALTIES FOR VIOLATION OF EIGHT HOUR DAY: Eight hours labor constitutes a
regular day's work under this Contract. Contractor or any subcontractor under him/her
shall forfeit as a penalty to the City $25.00 for each worker employed in the execution of
this Contract by contractor or such subcontractor for each calendar day during which any
such worker is required or permitted to labor more than eight hours in any one calendar
day and 40 hours in any one calendar week in violation of sections 1810 to 1815,
inclusive, of the California Labor Code. Notwithstanding the provisions of Sections 1810
to 1814, inclusive, of the California Labor Code, and notwithstanding the foregoing, work
performed by employees of contractors and subcontractors in excess of 8 hours per day,
and 40 hours during any one week, shall be permitted upon public work upon
compensation for all hours in excess of 8 hours per day at not less than one and one-half
(1.5) times the basic rate of pay.
LABOR CODE SECTION 1777.5, EMPLOYMENT OF APPRENTICES: If this Contract
involves $30,000 or more, the Contractor and each subcontractor shall comply with
California Labor Code section 1777.5, as it may be amended from time to time, the entire
provisions of which are incorporated by this reference as if fully set forth herein, and
Article 10, Subchapter 1, Chapter 2, Title 8 of the California Code of Regulations for all
apprenticeable occupations applicable to the work as defined in such laws and
regulations. Contractor shall be responsible for the compliance with such Labor Code
section for all apprenticeable occupations and shall contain in each subcontract the
requirements hereunder. In accordance with section 1777.5 of the California Labor Code
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and the rules and regulations of the California Apprenticeship Council, properly
indentured apprentices shall be employed in the execution of this Contract in at least the
ratio of not less than 1 hour of apprentice work for every 5 hours of journeyman work
(unless the respective contractor or subcontractor has been exempted from such ratio)
and paid the prevailing rate of per diem wages for apprentices in the trade to which he/she
is registered. The employment and training of each apprentice shall be in accordance
with either the apprenticeship standards and apprentice agreements under which he/she
is training, or the rules and regulations of the California Apprenticeship Council. Prior to
commencing work on the Contract, Contractor and each subcontractor shall submit
contract award information to the City, if requested, and to an applicable apprenticeship
program that can supply apprentices to the job site. The information shall include an
estimate of journeyman hours to be performed under the Contract, the number of
apprentices proposed to be employed, and the approximate dates the apprentices would
be employed. Within 60 days after concluding work on the Contract, the Contractor and
each subcontractor shall submit to the City, if requested, and to the apprenticeship
program a verified statement of the journeyman and apprentice hours performed on the
Contract. Contractor shall employ apprentices for the number of hours computed before
the end of the Contract or, in the case of the subcontractor, before the end of the
subcontract and endeavor, to the greatest extent possible, to employ apprentices during
the same time period that the journeymen in the same craft or trade are employed at the
job site.
FRESNO MUNICIPAL CODE SECTION 4-113; LABOR CODE SECTION 1777.5,
EMPLOYMENT OF APPRENTICES: If this Contract involves $500,000 or more, the
Contractor shall contain in each subcontract the requirements hereunder and be
responsible for providing all documentation required hereunder from subcontractor to the
City. The Contractor and each subcontractor shall provide documentation to City
demonstrating compliance with the requirements of California Labor Code section 1777.5
and Article 10, Subchapter 1, Chapter 2, Title 8 of the California Code of Regulations by
providing City copies of each of the following:
All contract award information (e.g., completed form DAS 140) sent by Contractor and by
subcontractors to the State Division of Apprenticeship Standards and each applicable
apprenticeship program in accordance with California Labor Code section 1777.5, as may
be amended from time to time, including identification of addressee.
All requests by Contractor and by subcontractors for approval, and all responses and
certificates from any applicable apprenticeship program disapproving or approving
Contractor or subcontractor(s), to train apprentices; if any.
All requests by Contractor and by subcontractors for dispatch of apprentices from any
applicable apprenticeship program (e.g., completed form DAS 142); and all responses
thereto, if any.
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FRESNO MUNICIPAL CODE SECTION 4-113; LABOR CODE SECTION 1777.5�
EMPLOYMENT OF APPRENTICES: If this Contract involves $500,000 or more, the
Contractor shall contain in each subcontract the requirements hereunder and be
responsible for providing all documentation required hereunder from subcontractor to the
City. The Contractor and each subcontractor shall provide documentation to City
demonstrating compliance with the requirements of California Labor Code section 1777.5
and Article 10, Subchapter 1, Chapter 2, Title 8 of the California Code of Regulations by
providing City copies of each of the following:
a. All contract award information (e.g., completed form DAS 140) sent by
Contractor and by subcontractors to the State Division of Apprenticeship
Standards and each applicable apprenticeship program in accordance with
California Labor Code section 1777.5, as may be amended from time to time,
including identification of addressee.
b. All requests by Contractor and by subcontractors for approval, and all
responses and certificates from any applicable apprenticeship program
disapproving or approving Contractor or subcontractor(s), to train apprentices;
if any.
c. All requests by Contractor and by subcontractors for dispatch of apprentices
from any applicable apprenticeship program (e.g., completed form DAS 142);
and all responses thereto, if any.
d. All certifications, if any, of Contractor and of subcontractor(s) as an individual
employer apprenticeship program by the State Division of Apprenticeship
Standards or the California Apprenticeship Council.
e. All apprenticeship agreements of apprentices employed by Contractor and by
subcontractor(s) and performing work under the Contract.
f. A verified statement by the Contractor and by the subcontractor within 60 days
after concluding the work of the respective journeyperson and apprentice hours
performed on the Contract or subcontract.
g. All certificates of any exemption by the State Division of Apprenticeship
Standards, California Apprenticeship Council or any apprenticeship program of
Contractor or subcontractor from any requirements of California Labor Code
section 1777.5, as may be amended from time to time.
h. Other documentation as may be requested by City.
LABOR CODE SECTION 6705: If this Contract involves an estimated expenditure in
excess of $25,000.00 and excavation of any trench or trenches five feet or more in depth,
then your attention is directed to California Labor Code section 6705 relating to a detailed
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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, the entire provisions of which are incorporated by this reference as if fully set
forth hereinafter. Before execution of the Contract by the City, the Contractor shall submit
to the City and the Engineer shall accept, if satisfactory to him/her, said detailed plan. If,
in the Engineer's opinion, there is any noncompliance with said detailed plan, then the
Contractor shall stop forthwith all trench work until, either in the Engineer's or the State
Division of Industrial Safety's opinion, there is compliance. The City shall not be liable for
costs incurred by the Contractor due to the work stoppage and the Contractor will not be
given nor is entitled to an extension of time to complete the work within the time set forth
in this Contract due to the work stoppage.
WAGE AND PRICE CONTROL: Notwithstanding any provisions of the Contract to the
contrary, the Contractor shall be bound by the orders issued and rules and regulations
adopted pursuant to the Economic Stabilization Act of 1970 (Public Law 91-379, 84
Statutes 799), as amended, or any subsequent Act of Congress.
COMPLIANCE WITH OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970: This
Contract is subject to all terms and conditions of the OCCUPATIONAL SAFETY AND
HEALTH ACT of 1970, the California Occupational Safety and Health Act and their
present and future amendments. Contractor expressly assumes responsibility for
compliance therewith and warrants that all materials, supplies, and equipment provided
or installed pursuant to this Contract, whether provided by the Contractor, subcontractor,
or a supplier, fully satisfy the requirements of said Acts. Contractor shall, upon insertion
in each Contract with a subcontractor or supplier of a clause by which the subcontractor
or supplier warrants such compliance, be relieved of responsibility by the subcontractor
or supplier.
LABOR CODE SECTION 1776; PAYROLLS AND BASIC RECORDS: The Contractor
and each subcontractor shall comply with California Labor Code section 1776, the entire
provisions of which are incorporated by this reference as if fully set forth herein, and
Contractor shall contain in each subcontract the requirements hereunder.
a. Accurate payroll records and basic records relating thereto shall be maintained by
the Contractor and each subcontractor during the course of the work and
preserved for a period as required by law for all journeymen, apprentices, workers,
and other employees employed in connection with the work. Such records shall
contain information as on the payroll record forms provided by the Division of Labor
Standards of the Department of Industrial Relations, the name, address, social
security number, work classification, hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or cash equivalents),
daily and weekly number of hours worked, deductions made and actual per diem
wages paid. The Contractor shall maintain records which show that the
commitment to provide such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been communicated in
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writing to all employees affected, and records which show the costs anticipated or
the actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the apprentices and trainees,
and the ratios and wage rates prescribed in the applicable programs.
b. The Contractor shall submit weekly (7 days after each week ending pay period) for
each week in which any Contract work is performed a certified copy of all payrolls
to the Engineer. The payrolls submitted shall set out accurately and completely all
of the information required to be maintained under paragraph (a) of this clause.
The Contractor is responsible for the submission of certified copies of payrolls by
all subcontractors.
Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the Contractor or subcontractor or his or her agent who pays or
supervises the payment of the persons employed under the Contract and shall
certify under penalty of perjury under the laws of the State of California each of the
following:
i. That the payroll for the payroll period contains the information required to
be maintained under paragraph (a) of this clause entitled "LABOR CODE
SECTION 1776; PAYROLLS AND BASIC' and that such information is true,
correct and complete;
ii. That each employee employed on the Contract during the payroll period
has been paid the full weekly wages earned, without rebate, either directly
or indirectly, and that no deductions have been made either directly or
indirectly from the full wages earned, other than permissible deductions;
iii. That each employee has been paid not less than the applicable wage rates
and fringe benefits or cash equivalents for the classification of work
performed, as specified in the applicable wage determination incorporated
into the Contract;
iv. Contractor has complied with the requirements of California Labor Code
sections 1771, 1811, and 1815 for any work performed hereunder by his or
her employees.
The weekly submission of a properly executed certification set forth on the reverse
side of Optional Form WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph (b) (2) of this clause.
The falsification of any of the above certifications may subject the Contractor or
Subcontractor to civil or criminal prosecution.
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c. The Contractor or subcontractor shall make certified copies of all the records
required under paragraph (a) of this clause available for inspection at all
reasonable hours at the principal office of the Contractor by, and furnished upon
request to, the Engineer, the Division of Labor Standards Enforcement of the
Department of Industrial Relations, the Division of Apprenticeship Standards of the
Department of Industrial Relations, and each of their authorized representatives.
A certified copy of the employee's record shall likewise be made available for
inspection or furnished upon request by the employee or his or her authorized
representative. The Contractor shall provide hereunder the street address, city,
and county of the location of the payroll records maintained by Contractor and shall
provide a notice of any change of location and address within 5 working days of
such change. The Contractor and subcontractors shall permit such representatives
to interview employees during working hours on the job. If the Contractor or
subcontractor fails to submit the required records within 10 days after each week
ending pay period, or to furnish or make them available for inspection within 10
days of request, (Contractor has 10 days to comply) after written notice, the
Contractor shall forfeit $100.00 for each calendar day, or portion thereof, for each
worker, until strict compliance is effectuated, pursuant to California Labor Code
section 1776. These penalties shall be withheld from progress payments then due.
LABOR CODE SECTION 1771.1. CONSTRUCTION REGISTRATION WITH
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS: A Contractor or
Subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the
requirements of Section 4104 of the Public Contract Code or engage in the performance
of any contract for public work, as defined in this chapter, unless currently registered and
qualified to perform public work pursuant to Section 1725.5. It is not a violation of this
section for an unregistered Contractor to submit a bid that is authorized by Section 7029.1
of the Business and Professions Code or by Section 10164 or 20103.5 of the Public
Contract Code, provided the Contractor is registered to perform public work pursuant to
Section 1725.5 at the time the contract is awarded.
This project is subject to compliance monitoring and enforcement by the Department of
Industrial Relations.
The prime Contractor is required to post job site notices prescribed by California
Code of Regulations. All Contractors and Subcontractors must furnish electronic
certified payroll records directly to the Division of Labor Standards Enforcement.
FAIR EMPLOYMENT PRACTICES AND NONDISCRIMINATION
In connection with the performance of work under this Contract, the Contractor agrees as
follows:
a. The Contractor shall not unlawfully discriminate, harass, or allow harassment
against any employee or applicant for employment because of race, religious
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creed, color, national origin, ancestry, physical disability (including HIV and AIDS),
mental disability, medical condition (cancer), marital status, political affiliation, sex,
age (over 40), sexual orientation, and denial of family care leave or on any other
basis prohibited by law. The Contractor shall ensure that the treatment of
employees and evaluation of applicants for employment are free of such
discrimination and harassment. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment, or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Contractor
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the State of California setting forth the
provisions of this Fair Employment Practices section.
b. Contractor and all subcontractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code, Section 12900 et seq.), and the
applicable regulations promulgated thereunder (California Code of Regulations,
Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment
and Housing Commission implementing Government Code Section 12990 (a-f),
set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations,
are incorporated into this Agreement by reference and made a part hereof as if set
forth in full.
c. Contractor assures City that it shall comply with the requirements of the Americans
with Disabilities Act (ADA) of 1990, (42 U.S.C. 12101 et seq.), which prohibits
discrimination on the basis of disability, as well as all applicable regulations and
guidelines issued pursuant to the ADA; the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000d (1988) et seq.; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 794 (1989) and the Age Discrimination Act of 1975, as
amended, 42 U.S.C. 6102 (1994); together with all applicable regulations and
guidelines adopted to implement same. Said group of laws and requirements are
collectively referred to in this Contract as the "anti -discrimination laws".
d. The Contractor will send to each labor union or representative of workers with
which he/she has a collective bargaining agreement or other contract or
understanding, a written notice advising the said labor union or workers'
representative of the Contractor's commitments under this section and shall post
copies of the notice in conspicuous places available to employees and applicants
for employment.
e. The Contractor will permit access to his or her records of employment, employment
advertisements, application forms, and other pertinent data and records by the
City, State of California, the State Fair Employment and Housing Commission, or
any other appropriate agency designated by the City or the State of California, for
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the purposes of investigation to ascertain compliance with the Fair Employment
Practices and Nondiscrimination section of this Contract.
f. Contractor agrees to collect and maintain information to show compliance with the
"anti- discrimination laws" including a list of discrimination complaints, reports of
any compliance reviews conducted by other agencies descriptions of any pending
discrimination -based lawsuits and data on the racial, ethnic, national origin, sex,
and handicap characteristics of the population it serves.
g. Contractor agrees to cooperate with City, and any other appropriate agency
designated by the City, in all manner necessary to permit City and any such agency
to adequately report to the United States Environmental Protection Agency on
Contractor's compliance with the "anti- discrimination laws".
h. A finding of willful violation of the Fair Employment Practices section of this
Contract or of the California Fair Employment and Housing Act shall be regarded
by the City as a basis for determining the Contractor to be not a responsible bidder
as to future contracts for which such Contractor may submit bids, for revoking the
Contractor's prequalification rating, if any, and for refusing to establish, reestablish,
or renew a prequalification rating for the Contractor.
The City will deem a finding of willful violation of the California Fair Employment
and Housing Act to have occurred upon receipt of written notice from the Fair
Employment and Housing Commission that it has investigated and determined that
the Contractor has violated the California Fair Employment and Housing Act and
has issued an order under California Government Code section 12973, section
12970, or obtained an injunction under California Government Code section
12973.
Upon receipt of such written notice from the Fair Employment and Housing
Commission, the City shall notify the Contractor that unless he/she demonstrated
to the satisfaction of the City within a stated period that the violation has been
corrected, that he/she will be reported to the City Council as not a responsible
bidder on any future Contract.
i. The Contractor agrees, that should the City determine that the Contractor has not
complied with the Fair Employment Practices section of this Contract, then
pursuant to Labor Code sections 1735 and 1775, the Contractor shall forfeit, as a
penalty to the City, for each calendar day, or portion thereof, for each person who
was denied employment as a result of such noncompliance, the penalties provided
in the Labor Code for violation of prevailing wage rates. Such monies may be
recovered from the Contractor. The City may deduct any such damages from any
monies due the Contractor from the City. Furthermore, Contractor agrees that the
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City shall have the right to terminate this Contract either in whole or in part, and
any loss or damage sustained by City in securing the goods or services thereunder
shall be borne and paid for by Contractor and by the surety under the performance
bond, if any, and City may deduct from any moneys due or thereafter may become
due to Contractor, the difference between the price named in the Contract and the
actual cost thereof to City to cure Contractor's breach of the Contract.
j. Nothing contained in this Fair Employment Practices section shall be construed in
any manner or fashion so as to prevent the City from pursuing any other remedies
that may be available at law.
k. After award of the Contract, the Contractor shall certify to the City that he/she has
or will meet the following standards for affirmative compliance, which shall be
evaluated in each case by the City:
i. The Contractor shall provide evidence, as required by the City, that he/she
has notified all supervisors, foremen, and other personnel officers in writing
of the content of the antidiscrimination clause and their responsibilities
under it.
ii. The Contractor shall provide evidence, as required by the City, that he/she
has notified all sources of employee referrals (including unions,
employment agencies, advertisement, Department of Employment) of the
content of the antidiscrimination clause.
iii. The Contractor shall file a Fair Employment Practices compliance report, as
required by the City. Willfully false statements made in such reports shall
be punishable as provided by law. The compliance report shall also spell
out the sources of the work force and who has the responsibility for
determining whom to hire, or whether or not to hire. The compliance report
shall be kept current throughout the Contract in that the Contractor shall
report any changes in or additions to the answers therein, including changes
in agreements with others. After the work or supplying materials is
complete, and before final payment, the Contractor shall submit a final
statement of compliance.
iv. Personally, or through his or her representatives, the Contractor shall,
through negotiations with the unions with whom he/she has agreements,
attempt to develop an agreement which will:
(1) The Contractor shall provide evidence, as required by the City, that
he/she has notified all supervisors, foremen, and other personnel
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officers in writing of the content of the antidiscrimination clause and
their responsibilities under it.
(2) The Contractor shall provide evidence, as required by the City, that
he/she has notified all sources of employee referrals (including
unions, employment agencies, advertisement, Department of
Employment) of the content of the antidiscrimination clause.
(3) The Contractor shall file a Fair Employment Practices compliance
report, as required by the City. Willfully false statements made in
such reports shall be punishable as provided by law. The compliance
report shall also spell out the sources of the work force and who has
the responsibility for determining whom to hire, or whether or not to
hire. The compliance report shall be kept current throughout the
Contract in that the Contractor shall report any changes in or
additions to the answers therein, including changes in agreements
with others. After the work or supplying materials is complete, and
before final payment, the Contractor shall submit a final statement of
compliance.
(4) Personally, or through his or her representatives, the Contractor
shall, through negotiations with the unions with whom he/she has
agreements, attempt to develop an agreement which will:
A. Spell out responsibilities for nondiscrimination in hiring,
referral, upgrading and training.
B. Otherwise implement an affirmative antidiscrimination
program in terms of the unions; specific areas of skill and
geography, to the end that qualified disadvantaged
workers will be available and given an equal opportunity
for employment.
I. Contractor's signature on this Contract shall constitute a certification under the
penalty of perjury under the laws of the State of California that Contractor has,
unless exempted, complied with the nondiscrimination program requirements of
Government Code, Section 12990, and Title 2, California Code of Regulations,
Section 8103.
m. The Contractor will include the provisions of the foregoing paragraphs 1 through
12 in every first -tier subcontract so that such provisions will be binding upon each
such subcontractor.
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GENERAL MISCELLANEOUS
Independent Contractor. In the furnishing of the work provided for herein, the Contractor
is acting as an independent contractor. Neither the Contractor, nor any of its officers,
associates, agents, or employees shall be deemed an employee, joint venturer, partner,
or agent of the City for any purpose. However, the City shall retain the right to verify that
the Contractor is performing its respective obligations in accordance with the terms of the
Contract.
Because of its status as an independent contractor, Contractor and its officers, agents
and employees shall have absolutely no right to employment rights and benefits available
to City employees. Contractor shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee benefits
including, without limitation, health, welfare, and retirement benefits. In addition, together
with its other obligations under this Contract, Contractor shall be solely responsible,
indemnify, defend and save City harmless from all matters relating to employment and
tax withholding for and payment of Contractor's employees, including, without limitation,
(i) compliance with Social Security and unemployment insurance withholding, payment of
workers compensation benefits, and all other laws and regulations governing matters of
employee withholding, taxes and payment; and (ii) any claim of right or interest in City
employment benefits, entitlements, programs and/or funds offered employees of City
whether arising by reason of any common law, de facto, leased, or co- employee rights
or other theory. It is acknowledged that during the term of this Contract, Contractor may
be providing services to others unrelated to City or to this Contract.
Notices. Any notice required or intended to be given to either party under the terms of this
Contract shall be in writing and shall be deemed to be duly given if delivered personally
or sent by United States registered or certified mail, with postage prepaid, return receipt
requested, addressed to the party to which notice is to be given at the party's address set
forth on the signature page of the Bid Proposal in the case of the Contractor and at the
address set forth on the signature page of the Contract in the case of the City, or at such
other address as the parties may from time to time designate by written notice. Notices
served by United States mail in the manner above described shall be deemed sufficiently
served or given at the time of the mailing thereof.
Binding. Subject to the following section, once this Contract is signed by all parties, it shall
be binding upon, and shall inure to the benefit of, all parties, and each parties' respective
heirs, successors, assigns, transferees, agents, servants, employees, and
representatives.
Assignment. The Contract is personal to the Contractor and there shall be no assignment,
transfer, sale, or subcontracting by the Contractor of its rights or obligations under the
Contract without the prior written approval of the City. Any attempted assignment,
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transfer, sale or subcontracting by the Contractor, its successors, or assigns, shall be null
and void unless approved in writing by the City.
Compliance with Law. In providing the services required under this Contract, Contractor
and its subcontractors shall at all times comply with all applicable laws of the United
States, the State of California and City, and with all applicable regulations promulgated
by federal, state, regional, or local administrative and regulatory agencies, now in force
and as they may be enacted, issued, or amended during the term of this Contract.
Waiver. The waiver by either party of a breach by the other of any provision of this
Contract shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Contract. No provisions of this Contract
may be waived unless in writing and signed by all parties to this Contract. Waiver of any
one provision herein shall not be deemed to be a waiver of any other provision herein.
Headings. The section headings in this Contract are for convenience and reference only
and shall not be construed or held in any way to explain, modify, or add to the
interpretation or meaning of the provisions of this Contract.
Severability. The provisions of this Contract are severable. The invalidity, or
unenforceability of any one provision in this Contract shall not affect the other provisions.
Interpretation. The parties acknowledge that this Contract in its final form is the result of
the combined efforts of the parties and that, should any provision of this Contract be found
to be ambiguous in any way, such ambiguity shall not be resolved by construing this
Contract in favor of or against either party, but rather by construing the terms in
accordance with their generally accepted meaning.
Exhibits. Each exhibit and attachment referenced in this Contract is, by the reference,
incorporated into and made a part of this Contract.
Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in equity.
No Third -Party Beneficiaries. The rights, interests, duties, and obligations defined within
this Contract are intended for the specific parties hereto as identified in the preamble of
this Contract. Notwithstanding anything stated to the contrary in this Contract, it is not
intended that any rights or interests in this Contract benefit or flow to the interest of any
third parties other than expressly identified within this section. The parties do intend that
in the event that the State of California is funding the Project being constructed hereunder,
that the State of California be a third -party beneficiary under this Contract and all rights,
interest and benefits of this Contract accrue to the State.
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Funding. This Contract is contingent on the appropriation of funds by City. Should funds
not be appropriated, this Contract may be terminated by City upon prior written notice to
Contractor.
Governing Law and Venue. This Contract shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, excluding, however, any
conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes
of the filing of any action regarding the enforcement or interpretation of this Contract and
any rights and duties hereunder shall be Fresno County, California.
Extent of Agreement. Each party acknowledges that they have read and fully understand
the contents of this Contract. This Contract represents the entire and integrated
agreement between the parties with respect to the subject matter hereof and supersedes
all prior negotiations, representations, or agreements, either written or oral. This Contract
may be modified only by written instrument duly authorized and executed by both City
and Contractor in accordance with City's current contract change order resolution for
public works of improvement as may be revised.
CLAIMS FOR ADDITIONAL TIME
Extension of time, when granted, will be based upon the effect of delays to the project as
a whole and will not be granted for noncontrolling delays to minor included portions of the
Work unless it can be shown that such delays did, in fact, delay the progress of the project
as a whole. The Contractor shall not be entitled to damages or additional payment due to
these delays except to the extent the delay exceeds the original Contract duration for
Substantial Completion, and any extension hereunder other than any extension granted
due to Owner caused delay, when Owner is responsible for the delay, the delay is
unreasonable under the circumstances involved, not within the contemplation of the
parties, and such delay causes actual damage to the Contractor. The Owner shall not be
entitled to liquidated damages for Contractor delays unless the delay by Contractor
exceeds the original Contract duration for Substantial Completion and any extension of
time to which the Contractor is entitled to under the Specifications.
If delays are caused by unforeseen events beyond the control of the Contractor, such
delays will entitle the Contractor to an extension of time as provided herein. War,
governmental regulations, priorities, labor disputes, strikes, fires, floods, adverse weather
necessitating cessation of Work, other similar action of the elements, inability to obtain
materials, equipment or labor because of Federal Government restrictions arising out of
the National Defense or War Program, required Extra Work, action or inaction by the
Owner, or other specific reasons as may be further described in the Specifications may
constitute such a delay.
If the Contractor is delayed by the failure of the Owner to furnish necessary rights of way
or materials agreed to be furnished by it, or by failure to supply necessary plans or
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instructions concerning the Work, after written request therefore, the Contractor shall be
entitled to an extension of time as provided herein.
CLAIMS AND DISPUTES
General. The Contractor and Owner shall make good faith efforts to resolve any and all
Claims and disputes in a timely manner that may from time to time arise during
Contractor's performance of the Work. Claims, including those alleging an error or
omission shall be directed to the Owner's Construction Manager for action as provided in
the "Resolution of Claims and Disputes," below.
It shall be a condition precedent to Claims review by the Transportation Director or his or
her designated representative and to mediation or litigation between the Contractor and
Owner as to all such matters arising prior to the date final payment is due, that a formal
decision on all Contractor Claims be made by the Construction Manager. It shall be a
condition precedent that the Contractor appeal any disputed Claim to the Transportation
Director prior to initiating mediation or litigation. It shall be a condition precedent that the
Contractor mediate any disputed Claim through non -binding mediation as provided
herein, prior to initiating litigation. Unless mutually waived in writing by both parties, these
provisions apply regardless of 1) whether such matters relate to execution and progress
of the Work, or 2) the extent to which the Work has been completed.
Notice of Intent to Claim by Contractor must be made within 72 hours after occurrence of
the event giving rise to such Claim, or within 72 hours after the claimant first discovers or
should have reasonably discovered the condition giving rise to the Claim, whichever is
later. Notice of Intent to Claim and Claims must be made by written notice.
At all times during the course of the dispute resolution process pursuant to the "Resolution
of Claims and Disputes," the Contractor shall continue with the Work as directed, in a
diligent manner and without delay, or shall conform to the Owner's decision or order, and
shall be governed by all applicable provisions of the Contract. Records of the Work shall
be kept in sufficient detail to enable payment in accordance with applicable provisions in
the Contract if this should become necessary.
The making of final payment shall not constitute a waiver of Claims by the Owner
including, but not limited to, the following:
a. Liens, Claims, security interests or encumbrances arising out of the Contract and
unsettled;
b. failure of the Work to comply with the requirements of the Contract Documents; or
c. terms of special warranties required by the Contract Documents,
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Contractor shall promptly provide an unconditional waiver and release upon final payment
in accordance with California Civil Code section 3262 and these Contract Documents.
Except to the extent of any Claim arising from City's sole or active negligence, and except
to the extent Contractor expressly describes any other disputed Claims for which prior
written notice has been given the City and lists the respective dollar amounts in an
unconditional waiver and release, the making of final payment shall constitute a waiver of
Claims by the Contractor pertaining to any and all costs, expenses, changes or other
Claims related to Contract Price or Contract Time, including any synergistic effects
attributed to multiple Change Orders. In the event of any disputed Claims between the
City and Contractor, the City may withhold from the final payment an amount not to
exceed 150% of the disputed amount.
Resolution of Claims and Disputes.
a. Decision of Construction Manager:
i. If the Contractor believes any Work or demand to be outside the
requirements of the Contract or believes that omissions, conflicts, errors,
or discrepancies will cause or have caused the Contractor additional costs
or delays in the performance of the Work, he/she shall file a written Notice
of Intent to Claim with the Construction Manager within 72 hours after
occurrence of the event giving rise to the Claim, or within 72 hours after
the Contractor or its subcontractor first discovers or should have
reasonably discovered the condition giving rise to the Claim, whichever is
later. If a written Notice of Intent to Claim is not submitted within this time
period, the Contractor shall waive his or her right to further Claims on the
issue and any synergistic effects related to such Claim.
(1) Within 10 working days following the Notice of Intent to Claim, the
Contractor shall provide a Notice of Claim with complete
supporting data for the Claim of the cost and delay related to such
omissions, conflicts, errors, discrepancies, or Work alleged to be
outside the requirements of the Contract. Notwithstanding the
foregoing, if all supporting data cannot reasonably be made
available within said 10 working days, then Contractor shall
provide all then available supporting data along with a request for
additional time, stating a time certain, to obtain the remainder of
supporting data along with both an explanation of the nature of
such supporting data and the reason why additional time is
necessary to provide same to the Construction Manager.
(2) If a written Notice of Claim, along with complete supporting data
or all then available supporting data and reasonable request for
additional time with explanation as required above, is not
submitted within 10 working days following the Notice of Intent to
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Claim, the Contractor shall waive his or her right to make further
Claims on the issue and any synergistic effects related to such
Claim.
(3) The Contractor's request for additional time to provide the
remainder of its supporting data shall be deemed acceptable to
Owner unless the Construction Manager rejects in writing
Contractor's request within 5 working days from receipt of
Contractor's request. If the Construction Manager rejects
Contractor's request for additional time, then Contractor shall
either provide complete supporting data immediately upon receipt
of such rejection or within any time acceptable to the Construction
Manager as stated in his or her written rejection, whichever is
later (unless otherwise mutually agreed upon in writing by
Contractor and Construction Manager).
ii. The Construction Manager will review any and all Claims and take one or
more of the following preliminary actions in writing within 10 working days
of receipt of written Notice of Claim and complete supporting data: 1)
request additional supporting data from the Contractor; 2) reject the Claim
in whole, or in part, stating reasons for rejection; or, 3) recommend
approval of the Claim. In the event the Construction Manager has not
taken any preliminary action within 10 working days, then the Claim is
deemed rejected unless the Contractor and the Construction Manager
mutually agree in writing to extend the time period for taking preliminary
action. The Construction Manager will make his or her decision on the
basis of the pertinent Contract provisions, together with the facts and
circumstances involved in the dispute. The Construction Manager may
also, but is not obligated to, notify the surety on Contractor's performance
bond of the nature and amount of the Claim.
iii. If the Construction Manager requests additional supporting data from the
Contractor, the Contractor shall supply the additional information to the
Construction Manager within 10 working days unless the Contractor and
the Construction Manager mutually agree in writing to extend the time
period for supplying such information. The Construction Manager will have
10 working days from the receipt of additional supporting data to provide
a written decision unless the Contractor and the Construction Manager
mutually agree in writing to extend the time period for providing such
decision. In the event the Construction Manager has not provided a written
decision within 10 working days, or any extended time period agreed to in
writing by Construction Manager and Contractor, then the Claim is
deemed rejected and this shall constitute Contractor's automatic request
for an appeal meeting with the Director unless the Contractor submits a
written withdrawal of its Claim.
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iv. If the Claim is rejected in whole or in part by a written decision of the
Construction Manager, the Contractor shall notify the Construction
Manager in writing within 10 working days after receiving the written
decision that either: 1) the decision is accepted, and the Claim is amended
accordingly; or 2) the Contractor requests an appeal meeting with the
Transportation Director. Failure to timely request an appeal meeting with
the Transportation Director following receipt of the written decision
constitutes acceptance by the Contractor of the Construction Manager's
decision. If the Owner and Contractor are able to resolve their dispute, the
Owner will promptly process any required Contract changes.
b. Decision of the Transportation Director
The Transportation Director, or his or her designee, shall meet with the
Contractor and the Construction Manager within 15 working days (unless
necessary to accommodate the Transportation Director's schedule, or that
of his or her designee, but in no event longer than 20 working days; or
unless otherwise mutually agreed upon in writing by Contractor and
Construction Manager) from the Contractor's timely submittal of his or her
request, or any automatic request hereunder, for a meeting. The
Contractor may make a presentation in support of his or her Claim. No
attorney may take part in the presentation or defense of the Claim in the
meeting with the Transportation Director, or his or her designee. Nothing
herein shall prevent an attorney from providing advice to a party either
before or after the meeting. In the event the meeting with the
Transportation Director, or his or her designee, has not been conducted
within the time provided herein or as agreed upon in writing by Contractor
and Construction Manager, then the Claim is deemed rejected and, unless
the Contractor submits a written withdrawal of its Claim, the parties shall
proceed to mediation as provided herein.
ii. Within 10 working days (unless otherwise mutually agreed upon in writing
by Contractor and Construction Manager) from the meeting with the
Contractor and the Construction Manager, the Transportation Director, or
his or her designee, shall render a written decision and a copy thereof
shall be personally delivered, or mailed return receipt requested, to the
Contractor. In the event the Transportation Director, or his or her
designee, has not provided a written decision within 10 working days, or
any extended time period agreed to in writing by Construction Manager
and Contractor, then the Claim is deemed rejected and, unless the
Contractor submits a written withdrawal of its Claim, the parties shall
proceed to mediation as provided herein.
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iii. If the Claim is rejected in whole or in part by a written decision of the
Transportation Director, or his or her designee, the Contractor shall notify
the Construction Manager in writing within 10 working days after receiving
the written decision that either: 1) the decision is accepted and the Claim
is amended accordingly; or 2) the Contractor rejects the decision of the
Transportation Director, or his or her designee. Failure to timely notify the
Construction Manager of either following receipt of the Transportation
Director's written decision, or that of his or her designee, shall constitute
acceptance by the Contractor of the Transportation Director's decision, or
that of his or her designee. If the Owner and Contractor are able to resolve
their dispute, the Owner will promptly process any required Contract
changes. If the Contractor rejects the written decision of the
Transportation Director or his or her designee, the parties shall proceed
to mediation as provided herein.
c. Mediation
i, In the event that the Claim is not resolved after exhausting all
aforementioned administrative measures, then the Contractor must
participate in non -binding mediation with City before the Contractor may
initiate litigation.
ii. The parties shall mutually select, in writing, a mediator with at least 5
years' experience in the construction industry. In the event that the parties
are unable to agree on a mediator within 15 working days of Contractor's
rejection of the decision of the Transportation Director or his or her
designee, the City may select the mediator. Mediation, including at least
one session requiring physical attendance by all parties, shall begin within
15 working days of selection of the mediator, unless necessary to
accommodate the mediator's schedule. The parties shall share the
mediator's fees and any administrative costs of mediation equally. The
mediation shall be held in Fresno, California, unless another location is
mutually agreed upon by the parties in writing. In the event the parties are
unable to reach a mutually acceptable resolution of the Claim within 20
working days of the start of mediation, unless extended or otherwise
terminated by written mutual agreement of the parties, mediation shall
terminate.
iii. If the Owner and Contractor are able to resolve their dispute the Owner
will promptly process any required Contract changes. Any settlement
reached in principal must be in writing and is subject to approval by the
City Manager or City Council consistent with City laws and policies.
Should the dispute remain unresolved, the parties may resort to other
dispute resolution procedures.
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iv. All statements made during the mediation shall be confidential and subject
to sections 703.5, 1119 and 1152 of the California Evidence Code.
d. Government Claims Act. Nothing herein is intended by the parties to waive any
requirements of the Contractor to comply with the Government Claims Act
including, without limitation, California Government Code section 905; and
Contractor agrees that it shall remain responsible for complying with said
section regarding any Claim. The parties agree, however, that the timeline for
the Contractor to file a claim under the Government Claims Act is tolled until
exhaustion of the Contractor of its administrative remedies hereunder (i.e.,
either upon termination of mediation, or upon written mutual waiver of
mediation by the parties, whichever first occurs).
e. Litigation
i. If the Contractor continues to dispute the Work demanded of him/her after
exhausting all aforementioned administrative measures, the Contractor
may institute legal proceedings, but only after final acceptance of the
project by the Owner. Unless specifically waived by the Owner, in writing,
the submission of a dispute for mediation in accordance with the above
provisions shall be a condition precedent to the Contractor's right to initiate
a suit, action or other proceeding against the Owner for damages.
ii. In the event Owner initiates suit, action, or other proceeding against the
Contractor for damages, the prevailing party in such suit or action shall be
entitled to recover reasonable attorney's fees and costs of suit.
iii. In the event Contractor initiates suit, action, or other proceeding against
the Owner, the Owner shall be entitled to recover reasonable attorneys'
fees and engineering defense costs if the Contractor is not awarded, by
the arbitrator or court, a dollar amount greater than 50 percent of the
Contractor's original Claim for damages.
iv. The Contractor shall include, or cause to be included, a requirement in all
subcontracts of all tiers of Subcontractors for this project that whenever
the Subcontractor disputes the Work demanded of him/her, he/she shall
cooperate and comply with the Claims and Dispute procedures contained
herein including, without limitation, exhausting all administrative
measures prior to instituting legal proceedings, and instituting legal
proceedings only after final acceptance of the project by the Owner.
COMPLETION
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When Contractor considers the Work ready for its intended use, the Contractor shall notify
the City in writing that the Work is substantially complete. The Contractor shall attach to
this request a list of all work items that remain to be completed and a request that the City
prepare a Certificate of Substantial Completion. Within a reasonable time thereafter, the
City and Contractor shall inspect the Work to determine the status of completion and to
the extent that City agrees the Project is substantially complete. If the City does not
consider the Work substantially complete, the City will notify Contractor in writing of the
reasons therefore and Contractor shall promptly correct all items identified by the City.
The City and Contractor shall repeat the above -referenced procedure until all items are
completed to the City's satisfaction, whereupon City shall issue a Certificate of Substantial
Completion.
On the date that the City issues the Certificate of Substantial Completion, the City shall
provide Contractor with the final punch list identifying the remaining minor corrective items
to be completed for final completion of the Project.
When the Contractor considers the final punch list work to be complete, it shall request
City to perform a final walk through of the Project to determine if said punch list work is
complete and whether Contractor has otherwise completed all of its obligations under the
Contract Documents.
The City shall record the Notice of Completion when the entire Work including, but not
limited to Contractor's closeout document obligations are fully satisfied, Contractor's
punch list(s) and work shall have been completed to the satisfaction of the City.
However, the City, at its sole option, may accept completion of the Contract and have the
Notice of Completion recorded when the entire Work including individual portions of the
Work shall have been completed to the satisfaction of the City, except for minor corrective
items, as distinguished from incomplete items.
Regardless of the cause therefore, the Contractor may not maintain any claim or cause
of action against the City for damages incurred as a result of its failure or inability to
complete its Work on the Project in a shorter period than established in the Contract
Documents, the parties stipulating that the period set forth in the Contract Documents is
a reasonable time within which to perform the work on the Project.
EXTENSION OF TIME - LIQUIDATED DAMAGES
The Contractor and City hereby agree that the exact amount of damages for failure to
complete the work within the time specified is extremely difficult or impossible to
determine. Contractor shall be assessed the sum as set forth in the Contract, as liquidated
damages for each and every week the work required under the Contract Documents
remains unfinished past the time for completion, as set forth in the Contract Documents,
and any extensions of time granted by the City to the Contractor under the terms of the
Contract Documents. The Contractor will pay to the City or City may retain from amounts
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otherwise payable to the Contractor, said amount for each day after failure to meet the
requirements of the contract completion as scheduled in the Contract. For purposes of
this Item, section Work shall be considered complete in accordance with the provisions
of the foregoing section entitled "COMPLETION" and issuance of a Certificate of
Substantial Completion.
Contractor shall not be charged for liquidated damages, as set forth above, because of
any delays in completion of Work which are not the fault or negligence of Contractor, or
its subcontractors, or persons or entities for which it is responsible, including, but not
restricted to acts of God, as set forth herein.
FINAL APPLICATION FOR PAYMENT AND FINAL PAYMENT
After Contractor has completed all of the remaining Work items, and delivered all
maintenance and operating instructions, schedules guarantees, bonds, certificates of
inspection, and As -Built drawings, marked up Record documents, and any other close
out documents required by the Contract Documents, and after the City has indicated that
Contractor has achieved Final Completion (including, without limitation, all final punch list
work), Contractor may make application for final payment following the City's procedure
for progress payments. The final application for payment shall be accompanied by all
documentation called for in the Contract Documents for making of progress payments
together with complete and legally effective releases and waivers of all encumbrances
arising out of or related to the Work.
After Contractor has satisfied all of the conditions of the preceding paragraph, Contractor
shall submit its application for final payment and release of retention. Said application
shall set forth the following information, at a minimum:
a. Cost of the Work in permanent place as of the end of the immediately preceding
month as shown on the updated Project Schedule and Schedule of Values
submitted with the Contractor's application;
b. Less amounts previously paid and previously withheld as retention;
c. The amount currently due; and
d. An itemized list of disputed amounts, if any.
Contractor's application for final payment shall also be accompanied by Conditional
Waivers and Releases Upon Final Payment executed by Contractor and by all
subcontractors for whom payment is requested.
If the Contractor fails to complete the punch list work or corrective items prior to the
expiration of 35 calendar days immediately following issuance of a Certificate of
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Substantial Completion, the City shall withhold from the final payment an amount equal
to 150% of the estimated cost, as determined by the City, of each item until such time as
the item is completed. Alternatively, at the end of such 35-day period, if there are items
remaining to be corrected, the City may elect to proceed to withhold a sufficient amount,
which in City's judgment may be necessary to cover the cost of incomplete and defective
work. In the event of a dispute between the City and Contractor over the amount due, the
City may withhold from the final payment an amount not to exceed 150% of the disputed
amount.
Subject to the provisions of the Contract Documents, City shall make final payment of
undisputed amounts to Contractor no later than 45 calendar days after City's receipt of
Contractor's properly submitted application for final payment.
PAYMENTS WITHHELD
In addition to any amount which City may retain under the Contract Documents, City may
withhold a sufficient amount of the Contract price otherwise due to Contractor, which in
City's judgment may be necessary to cover:
a. Payments which may be past due and payable for just claims against
Contractor or any subcontractors, or against and about the performance of
work on the Project.
b. The cost of defective work, which Contractor has not remedied.
c. Liquidated damages assessed against Contractor.
d. Penalties for violation of any labor laws or deficient certified payroll.
e. The cost of materials or equipment ordered by the City as it may deem
advisable (this right is reserved by City in the event of any neglect by Contractor
in furnishing materials in ample quantities and at such times as to ensure
uninterrupted progress of the Work) in order that the Work may be completed
by the date specified in the Contract documents.
f. The cost of completion of this Contract if there exists a reasonable doubt that
this Contract can be completed for the balance then unpaid to Contractor.
g. Damage caused by Contractor or its subcontractors and the parties for whom
they are responsible.
h. Site clean-up including, but not limited to, removal from site and disposal of
debris if Contractor fails to provide such final cleaning after construction has
been completed.
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i. Payments to indemnify, defend, or hold harmless the City.
j. Any payments due to the City including but not limited to payments for failed
tests, utilities or imperfections.
k. Extra services for the Construction Manager or any City agents, including but
not limited to, services rendered in the evaluation of Contractor substitution
requests, Requests for Information (RFI's), Change Order Requests and
Claims.
I. Extra services for any inspector including, but not limited to, re -inspection
required due to Contractor's failed tests or installation of unapproved or
defective materials and Contractor's requests for inspection and Contractor's
failure to attend the inspection.
m. Costs to complete or submit to City Project Record Documents and other
closeout documents required under the Contract Documents.
n. Submission of daily reports and completeness thereof.
o. Breach of any provision of the Contract Documents.
If the above grounds are in the opinion of the City removed by or at the expense of
Contractor, payment shall be made for amounts withheld because of them.
City may apply, but is not obligated to apply, such withheld amount or amounts to payment
of such claims or obligations at its sole discretion. In so doing, City shall make such
payments on behalf of Contractor. If any payment is so made by City, then such amount
shall be considered as a payment made under contract by City to Contractor and City
shall not be liable to Contractor for such payments made in good faith. Such payments
may be made without prior judicial determination of claim or obligations. City will render
Contractor an accounting of such funds disbursed on behalf of Contractor.
As an alternative to payment of such claims or obligations, City, in its sole discretion, may
reduce the total Contract price or set-off the amount against payments due.
WAIVER AND RELEASE FORMS
Consistent with the provisions of California Civil Code Chapter 3 — Waiver and Release
[8120 — 8138], the Contractor and its subcontractors shall promptly furnish the City with
a release of all claims against the City arising by virtue of the Contract Documents related
to amounts to be paid or which have been paid. This section shall survive expiration or
termination of the Contract. Contractor shall include these requirements in all
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subcontracts for this project. The Contractor and subcontractors from the operation of the
release may specifically exclude disputed contract claims in stated amounts.
Neither the City nor the Contractor by any term of this Contract, or otherwise, shall waive,
affect, or impair the claims and liens of other persons whether with or without notice
except by their written consent, and any term of the Contract to that effect shall be null
and void. Any written consent given by any claimant pursuant to this section shall be null,
void, and unenforceable unless and until the claimant executes and delivers a waiver and
release. Such a waiver and release shall be binding and effective to release the City,
construction lender, and surety on a payment bond from claims and liens only if the waiver
and release follows substantially one of the forms set forth in California Civil Code Chapter
3 — Waiver and Release [8120 — 8138] and this section and is signed by the claimant or
his or her authorized agent, and, in the case of a conditional release, there is evidence of
payment to the claimant. Evidence of payment may be by the claimant's endorsement on
a single or joint payee check that has been paid by the bank upon which it was drawn or
by written acknowledgment of payment given by the claimant.
No oral or written statement purporting to waive, release, impair or otherwise adversely
affect a claim is enforceable or creates any estoppel or impairment of a claim unless:
a. It is pursuant to a waiver and release prescribed herein, or
b. The claimant had actually received payment in full for the claim.
This section does not affect the enforceability of either an accord and satisfaction
regarding a bona fide dispute or any agreement made in settlement of an action pending
in any court provided the accord and satisfaction or agreement and settlement make
specific reference to the stop notice or bond claims.
The waiver and release given by any claimant hereunder shall be null, void, and
unenforceable unless it follows substantially the following forms in the following
circumstances. Each waiver in this provision shall contain the following language, in at
least as large a type as the largest type otherwise on the document:
(Example 1.) Where the claimant is required to execute a waiver and release in exchange
for, or in order to induce the payment of, a progress payment and the claimant is not, in
fact, paid in exchange for the waiver and release or a single payee check or joint payee
check is given in exchange for the waiver and release, the waiver and release shall follow
substantially the following form:
CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT'S LIEN, STOP PAYMENT
NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A
PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE
CLAIMANT HAS RECEIVED PAYMENT.
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Identifying Information
Name of Claimant:
Name of Customer:
Job Location:
Owner:
Through Date:
Conditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights
the claimant has for labor and service provided, and equipment and material delivered,
to the customer on this job through the Through Date of this document. Rights based
upon labor or service provided, or equipment or material delivered, pursuant to a written
change order that has been fully executed by the parties prior to the date that this
document is signed by the claimant, are waived, and released by this document, unless
listed as an Exception below. This document is effective only on the claimant's receipt of
payment from the financial institution on which the following check is drawn:
Maker of Check:
Amount of Check: $
Check Payable to:
Exceptions
This document does not affect any of the following:
a. Retentions.
b. Extras for which the claimant has not received payment.
c. The following progress payments for which the claimant has previously given
a conditional waiver and release but has not received payment:
Date(s) of waiver and release:
Amount(s) of unpaid progress payment(s): $
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d. Contract rights, including (A) a right based on rescission, abandonment, or
breach of contract, and (B) the right to recover compensation for work not
compensated by the payment.
Signature
Claimant's Signature:
Claimant's Title:
Date of Signature:
Exclusions: Listing of Claims, of which prior written Notice has been given to the City of
Fresno:
1. Claim for:
2. Claim for:
3. Claim for:
In the amount of: $
In the amount of: $
In the amount of: $
(Example 2.) Where the claimant is required to execute a waiver and release in exchange
for, or in order to induce payment of, a progress payment and the claimant asserts in the
waiver it has, in fact, been paid the progress payment, the waiver and release shall follow
substantially the following form with the text of the "Notice to Claimant" in at least as large
a type as the largest type otherwise in the form:
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP
PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND
STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS
DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE
NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER
AND RELEASE FORM.
Identifying Information
Name of Claimant:
Name of Customer:
Job Location:
Owner:
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Through Date:
Unconditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights
the claimant has for labor and service provided, and equipment and material delivered,
to the customer on this job through the Through Date of this document. Rights based
upon labor or service provided, or equipment or material delivered, pursuant to a written
change order that has been fully executed by the parties prior to the date that this
document is signed by the claimant, are waived, and released by this document, unless
listed as an Exception below. The claimant has received the following progress payment:
Exceptions
This document does not affect any of the following:
a. Retentions.
b. Extras for which the claimant has not received payment.
c. Contract rights, including (A) a right based on rescission, abandonment, or
breach of contract, and (B) the right to recover compensation for work not
compensated by the payment.
Signature
Claimant's Signature:
Claimant's Title:
Date of Signature:
Exclusions: Listing of Claims, of which prior written Notice has been given to the City of
Fresno:
1. Claim for:
2. Claim for:
3. Claim for:
In the amount of: $
In the amount of: $
In the amount of: $
(Example 3.) Where the claimant is required to execute a waiver and release in exchange
for, or in order to induce the payment of, a final payment and the claimant is not, in fact,
paid in exchange for the waiver and release or a single payee check or joint payee check
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is given in exchange for the waiver and release, the waiver and release shall follow
substantially the following form:
CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT'S LIEN, STOP PAYMENT
NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A
PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE
CLAIMANT HAS RECEIVED PAYMENT.
Identifying Information
Name of Claimant:
Name of Customer:
Job Location:
Owner:
Through Date:
Conditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights
the claimant has for labor and service provided, and equipment and material delivered,
to the customer on this job. Rights based upon labor or service provided, or equipment
or material delivered, pursuant to a written change order that has been fully executed by
the parties prior to the date that this document is signed by the claimant, are waived, and
released by this document, unless listed as an Exception below. This document is
effective only on the claimant's receipt of payment from the financial institution on which
the following check is drawn:
Maker of Check:
Amount of Check: $
Check Payable to:
*Exceptions
This document does not affect any of the following -
Disputed claims for extras in the amount of: $
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Signature
Claimant's Signature:
Claimant's Title:
Date of Signature:
*Listing of Claims, of which prior written Notice has been given to the City of Fresno:
1. Claim for:
2. Claim for:
3. Claim for:
In the amount of: $
In the amount of: $
In the amount of: $
(Example 4.) Where the claimant is required to execute a waiver and release in exchange
for, or in order to induce payment of, a final payment and the claimant asserts in the
waiver it has, in fact, been paid the final payment, the waiver and release shall follow
substantially the following form with the text of the "Notice to Claimant" in at least as large
a type as the largest type otherwise in the form:
UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP
PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND
STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS
DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE
NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER
AND RELEASE FORM
Identifying Information
Name of Claimant:
Name of Customer:
Job Location:
Owner:
Through Date:
Unconditional Waiver and Release
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This document waives and releases lien, stop payment notice, and payment bond rights
the claimant has for all labor and service provided, and equipment and material delivered,
to the customer on this job. Rights based upon labor or service provided, or equipment
or material delivered, pursuant to a written change order that has been fully executed by
the parties prior to the date that this document is signed by the claimant, are waived, and
released by this document, unless listed as an Exception below. The claimant has been
paid in full.
*Exceptions
This document does not affect the following:
Disputed claims for extras in the amount of: $
Signature
Claimant's Signature:
Claimant's Title:
Date of Signature:
*Listing of Claims, of which prior written Notice has been given to the City of Fresno:
1. Claim for:
2. Claim for:
3. Claim for:
In the amount of: $
In the amount of: $
In the amount of: $
SECURITIES IN LIEU OF RETENTION PERMITTED AND ESCROW AGREEMENT
(PUBLIC CONTRACT CODE SECTION 22300)
Pursuant to provisions of section 22300 of the California Public Contract Code, Contractor
may substitute securities for any monies withheld by Owner. Procedures shall be as
provided in section 22300 of the California Public Contract Code.
a. Provisions shall be included in any invitation for bid and in any contract
documents to permit the substitution of securities for any moneys withheld by
a public agency to ensure performance under a contract, provided that
substitution of securities provisions shall not be required in contracts in which
there will be financing provided by the Farmers Home Administration of the
United States Department of Agriculture pursuant to the Consolidated Farm
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and Rural Development Act (7 U.S.C. Sec. 1921 et seq.), and where federal
regulations or policies, or both, do not allow the substitution of securities. At the
request and expense of the contractor, securities equivalent to the amount
withheld shall be deposited with the public agency, or with a state or federally
chartered bank in this state as the escrow agent, who shall then pay those
moneys to the contractor. Upon satisfactory completion of the contract, the
securities shall be returned to the contractor.
b. Alternatively, the contractor may request, and the owner shall make payment
of retentions earned directly to the escrow agent at the expense of the
contractor. At the expense of the contractor, the contractor may direct the
investment of the payments into securities and the contractor shall receive the
interest earned on the investments upon the same terms provided for in this
section for securities deposited by the contractor. Upon satisfactory completion
of the contract, the contractor shall receive from the escrow agent all securities,
interest, and payments received by the escrow agent from the owner, pursuant
to the terms of this section.
c. Securities eligible for investment under this section shall include those listed in
Section 16430 of the Government Code, bank or savings and loan certificates
of deposit, interest -bearing demand deposit accounts, standby letters of credit,
or any other security mutually agreed to by the contractor and the public
agency. The contractor shall be the beneficial owner of any securities
substituted for moneys withheld and shall receive any interest thereon. Failure
to include these provisions in bid and contract documents shall void any
provisions for performance retentions in a public agency contract. For purposes
of this section, the term "public agency" shall include, but shall not be limited
to, chartered cities.
d. (1) Any contractor who elects to receive interest on moneys withheld in
retention by a public agency shall, at the request of any subcontractor, make
that option available to the subcontractor regarding any moneys withheld in
retention by the contractor from the subcontractor. If the contractor elects to
receive interest on any moneys withheld in retention by a public agency, then
the subcontractor shall receive the identical rate of interest received by the
contractor on any retention moneys withheld from the subcontractor by the
contractor, less any actual pro rata costs associated with administering and
calculating that interest. In the event that the interest rate is a fluctuating rate,
the rate for the subcontractor shall be determined by calculating the interest
rate paid during the time that retentions were withheld from the subcontractor.
If the contractor elects to substitute securities in lieu of retention, then, by
mutual consent of the contractor and subcontractor, the subcontractor may
substitute securities in exchange for the release of moneys held in retention by
the contractor. (2) This subdivision shall apply only to those subcontractors
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performing more than five percent of the contractor's total bid. (3) No contractor
shall require any subcontractor to waive any provision of this section.
e. The Legislature hereby declares that the provisions of this section are of
statewide concern and are necessary to encourage full participation by
contractors and subcontractors in public contract procedures.
f. The escrow agreement used hereunder shall be null, void, and unenforceable
unless it is substantially similar to the following form:
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION
This Escrow Agreement is made and entered
whose address is
address is
address is _
consideration
follows:
hereinafter called "Contractor"
into by and between
hereinafter called "Owner," whose
and whose
hereinafter called "Escrow Agent." For the
hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as
(1) Pursuant to Section 22300 of the Public Contract Code of the
Contractor has the option to deposit securities with Escrow Agent
retention earnings required to be withheld by Owner pursuant t
Contract entered into between the Owner and Contractor for
the amount of dated
State of California,
as a substitute for
the Construction
in
(hereinafter referred to as the "Contract"). Alternatively, on written request of the
Contractor, the Owner shall make payments of the retention earnings directly to the
Escrow Agent. When the Contractor deposits the securities as a substitute for Contract
earnings, the Escrow Agent shall notify the Owner within 10 days of the deposit. The
market value of the securities at the time of the substitution shall be at least equal to the
cash amount then required to be withheld as retention under the terms of the Contract
between the Owner and Contractor. Securities shall be held in the name of
and shall designate the Contractor as the beneficial owner.
(2) The Owner shall make progress payments to the Contractor for those funds which
otherwise would be withheld from progress payments pursuant to the Contract provisions,
provided that the Escrow Agent holds securities in the form and amount specified above.
(3) When the Owner makes payment of retentions earned directly to the Escrow Agent,
the Escrow Agent shall hold them for the benefit of the Contractor until the time that the
escrow created under this contract is terminated. The Contractor may direct the
investment of the payments into securities. All terms and conditions of this agreement
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and the rights and responsibilities of the parties shall be equally applicable and binding
when the Owner pays the Escrow Agent directly.
(4) Contractor shall be responsible for paying all fees for the expenses incurred by Escrow
Agent in administering the Escrow Account and all expenses of the Owner. These
expenses and payment terms shall be determined by the Owner, Contractor, and Escrow
Agent.
(5) The interest earned on the securities, or the money market accounts held in escrow
and all interest earned on that interest shall be for the sole account of Contractor and
shall be subject to withdrawal by Contractor at any time and from time to time without
notice to the Owner.
(6) Contractor shall have the right to withdraw all or any part of the principal in the Escrow
Account only by written notice to Escrow Agent accompanied by written authorization
from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount
sought to be withdrawn by Contractor.
(7) The Owner shall have a right to draw upon the securities in the event of default by the
Contractor. Upon seven days' written notice to the Escrow Agent from the owner of the
default, the Escrow Agent shall immediately convert the securities to cash and shall
distribute the cash as instructed by the Owner.
(8) Upon receipt of written notification from the Owner certifying that the Contract is final
and complete, and that the Contractor has complied with all requirements and procedures
applicable to the Contract, Escrow Agent shall release to Contractor all securities and
interest on deposit less escrow fees and charges of the Escrow Account. The escrow
shall be closed immediately upon disbursement of all moneys and securities on deposit
and payments of fees and charges.
(9) Escrow Agent shall rely on the written notifications from the Owner and the Contractor
pursuant to Sections (5) to (8), inclusive, of this agreement and the Owner and Contractor
shall hold Escrow Agent harmless from Escrow Agent's release and disbursement of the
securities and interest as set forth above.
(10) The names of the persons who are authorized to give written notice or to receive
written notice on behalf of the Owner and on behalf of Contractor in connection with the
foregoing, and exemplars of their respective signatures are as follows:
On behalf of Owner: On behalf of Contractor: On behalf of Escrow Agent:
Title Title Title
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Name Name Name
Signature
Address
Signature
Address
Signature
Address
At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the
Escrow Agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper
officers on the date first set forth above.
Owner
Title
Name
Signature
Contractor
Title
Name
Signature
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SPECIAL CONDITIONS
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Attachment 2 — Special Conditions
1. PAYMENT: Progress payments of the total Lump -sum, Fixed Price will be made
to the Contractor according to the Milestone payment schedule below.
Milestone 1: Acceptance of Site Assessment (Sub -part 2.01)
Milestone 2: Completion of Design & Engineering (Sub -part 2.02)
Milestone 3: Completion of Construction, Commissioning, and Training (Part 3 & 4)
Invoices shall conspicuously display the City's contract number and shall be submitted
to:
ATTENTION:
City of Fresno
Department of Transportation/FAX
Accounts Payable
2223 G. Street
Fresno, CA 93706
Contractor hereby agrees not to assign the payment of any monies due Contractor from
City under the terms of this Contract to any other individual(s), corporation(s) or
entity(ies). City retains the right to pay any and all monies due Contractor directly to
Contractor.
2. CHANGES TO CONTRACT DOCUMENTS: The City of Fresno may, from time
to time, without invalidating the Contract, modify the Contract; by adding, deleting or
changing sections of the Contract; by adding deleting or changing usage or space; by
adding, deleting or changing Routine Work or Projects; by adding deleting or changing
Special Conditions; or by adding, deleting or changing Specifications. All such changes
shall be ordered by means of a Written Change Order. Any changes in the
compensation to Contractor resulting from such Change Orders shall be agreed upon
by the City of Fresno and the Contractor. Additionally, the parties may modify the
Contract by written amendment.
Federal Transit Administration (FTA) Federal Funding Source: This contract is
funded in whole or in part using FTA federal funding. As such, any changes to this
contract requires a cost analysis to be performed in accordance with FTA Circular
4220.1 F and 2 CFR 200.324. This requirement obliges the City to perform a cost
analysis that examines each element of the cost of the contract changes, to include
profit as a separate negotiated cost element. The Contractor shall provide sufficient
information to the City for the performance of the cost analysis in conformance with FTA
Circular 4220.1 F and 2 CFR 200.324. The Contractor may request and propose a non-
disclosure agreement to protect sensitive business information, but such an agreement
requires concurrence from the City Attorney's Office.
3. NOTICE TO PROCEED: Contractor shall not commence any work until he/she
has received a written Notice to Proceed.
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4. CONTRACT ADMINISTRATOR: The City of Fresno designates the Director,
Department of Transportation/FAX, as Contract Administrator, who shall act on behalf of
the City with respect to all aspects of this Contract. The City shall promptly notify
Contractor in writing if the Contract Administrator is changed.
The Contract Administrator and designated representative shall have complete authority
to require the Contractor to comply with all provisions of this Contract. Contractor shall
strictly and promptly follow the instructions of the Contract Administrator. The Contract
Administrator's decision upon all questions claims and disputes will be final and
conclusive upon the parties of the Contract. The Contract Administrator shall exercise
any discretionary authority in a reasonable manner.
The Contract Administrator shall decide any and all questions which may arise as to
conformance of and acceptability of tools, equipment, supplies and all other materials
and methods and procedures used in the performance of the Services with regard to the
requirements included herein. The Contract Administrator shall decide all questions
which may arise as to the interpretation of the Contract Documents relative to the
Services and the fulfillment of the Contract on the part of Contractor.
The Contract Administrator will determine the amount and quality of the several kinds of
Services performed and materials furnished which are to be paid for under this
Contract.
The Contract Administrator shall have the authority to require Contractor to make
temporary changes in the assignment of routine work, tasks and task frequencies.
Such temporary changes shall not affect the amount of payment to Contractor.
5. CONTRACT COORDINATOR: The Contract Administrator shall designate the
Project Manager, Department of Transportation/FAX as Contract Coordinator to monitor
and inspect the performance and progress of the Services provided under this Contract.
The Contract Coordinator has no authority to alter, waive or revoke any provision of this
Contract. Any failure of Contractor to comply with the provisions of the Contract may be
called to the attention of the Contract Administrator by the Contract Coordinator.
The Contract Coordinator shall have the authority to suspend the performance of the
Services and compensation to Contractor until the Contract Administrator can decide
any questions at issue.
The Contract Coordinator shall perform frequent inspections of each work assignment.
The emphasis during these inspections should concentrate on the existence of those
factors which significantly affect the probability of the custodial assignment being
performed as specified.
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The Contract Coordinator shall coordinate the activities of Contractor and the occupants
to minimize any interference or delay to either party. The Coordinator shall submit
suggestions regarding revisions of the specifications to the Contract Administrator. The
Coordinator shall receive and respond, with clerical assistance, to requests, complaints,
and suggestions concerning the performance of the work directed under the Contract.
The Contract Coordinator shall in no instance have the authority to act as a supervisor
for Contractor, and shall not interfere with the Contractor in the supervision or direction
of Contractor's employees.
Any advice provided to Contractor by the Contract Coordinator shall in no way be
construed as binding upon the City of Fresno, or release the Contractor from fulfilling
the provisions of the Contract.
6. PERFORMANCE OF THE SERVICES: Contractor shall be responsible for the
complete and timely performance of all the Services under this Contract and for all
manner and type of tools, equipment, supplies and materials of every description
required to successfully perform all Services under this Contract.
7. NON-PERFORMANCE OF SERVICES: Services shall be considered not to
have been performed when, in the judgment of the Contract Administrator, any one or
more of, but not limited to, the following conditions exist:
a. Adherence to established response times
b. Failure to provide reports per schedule and on time
C. Failure to conform to the requirements per Scope of Work
8. DUST CONTROL AND STORM WATER POLLUTION PREVENTION: It shall be
the responsibility of the Contractor to prepare, obtain approval and implement all of the
requirements of the latest Fugitive Dust Control Plan (FDCP) in accordance with the
San Joaquin Valley Air Pollution Control District (District) Regulation Vill. Also, it shall be
the responsibility of the Contractor to prepare, obtain approval and implement all of the
requirements of the latest State National Pollutant Discharge Elimination System
(NPDES) General Permit for Storm Water Discharges Associated with Construction and
Land Disturbance Activities Order No. 2009-0009- DWQ and industry standards
according to the State Water Quality Control Board (SWQCB).
Dust Control
The FDCP and maps must be prepared utilizing the latest requirements of the District.
Once the FDCP and maps have been prepared, it shall be the responsibility of the
Contractor to submit and obtain written approval by the District. Until a written approval
has been obtained by the District. no construction activity shall commence on the
project site. Once a written approval has been obtained, the Contractor shall submit to
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Construction Management Division a copy of the approved FDCP with all maps. The
Contractor shall keep the FDCP current as required by the District. The Contractor shall
keep a copy of the approved FDCP, and amendments thereto, at the job site and in the
general business office of the Contractor.
In addition, the Contractor shall make available to Construction Management Division
copies of all amendments to the FDCP as prepared by the Contractor. The FDCP shall
be made available upon request of a representative of the District or U.S. Environmental
Protection Agency. Requests by the public shall be directed to the Engineer.
Contractor must provide written notification to the District at least 48 hours in advance of
any earthmoving activity. Record keeping is required by the District and must be kept for
each day any dust control measure is used. Copies of record keeping forms and the
Construction Notification form are available on the District's website at www.valleyair.org
under Compliance Assistance/Dust Control. The Contractor shall be familiar with and
shall have a copy of the District's Regulation VIII — Fugitive Dust Control at Construction
Sites. Copies of the regulation may be obtained online at the above -mentioned web site.
The Contractor shall be responsible throughout the duration of the project for street
sweeping, soil stabilization, watering operations, establishing a water source and
associated costs, carryout and track out prevention, notification, installing, inspecting,
maintaining, required record keeping and removing control measures to reduce Visible
Dust Emissions (VDE) and eliminate nuisances from or within the construction site.
Dust control shall conform to Section 7-8 of the Standard Specifications and the cost of
labor and equipment required for the work shall be included in the various bid items and
no separate payment will be allowed. The cost of water will be paid by the Contractor.
Reference to and incorporation of the provisions of Sections 23113, 23114, 23115 and
40,000.16 of the California Vehicle Code regarding containment and transportation of
any aggregate material upon public roadways is made to these Specifications.
Storm Water
It shall be the responsibility of the Contractor to comply with all of the requirements of
the latest NPDES General Permit for Storm Water Discharges Associated with
Construction and Land Disturbance Activities Order No. 2009-0009-DWQ according to
SWQCB and standard industry practice. This includes, but is not limited to, preparing
plans and application, maps as well as all necessary reporting on the SWQCB's Storm
Water Multiple Application and Report Tracking System (SMARTS System). The
Contractor, working with their certified Qualified Storm Water Pollution Prevention Plan
(SWPPP) Developer (QSD), will determine what would be the best course of action to
comply with the latest State NPDES General Permit for Storm Water Discharges
Associated with Construction and Land Disturbance Activities Order No. 2009-0009-
DWQ. If the Contractor's QSD determines a SWPPP is the best course of action, it shall
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be the responsibility of the Contractor and their QSD to submit to Construction
Management Division a completed SWPPP for review. Upon acceptance of the SWPPP
document by Construction Management Division, the QSD shall prepare a Notice of
Intention (NOI) application in the SWQCB's SMARTS System and upload all necessary
documents and maps to be approved by the Legally Responsible Person (LRP). Until a
written approval of the SWPPP has been obtained from the SWQCB, no construction
activity shall commence on the project site. Upon obtaining written approval of the
SWPPP, it shall be the responsibility of the Contractor to implement the SWPPP.
Throughout the course of the project, the Contractor's certified Quality SWPPP
Practitioner (QSP) shall conduct periodic inspections, testing, any reporting on the
SMARTS System as well as coordinate with the QSD to update the SWPPP as
necessary. At the conclusion of construction, it shall be the responsibility of the
Contractor and his or her QSD/QSP to ensure the annual report has been updated on
the SMARTS System as well as prepare the Notice of Termination (NOT) for City's
approval. The Contractor shall keep a copy of the approved SWPPP, and amendments
thereto, at the job site and in the general business office of the Contractor. In addition,
the Contractor shall make available to Construction Management Division copies of all
amendments to the SWPPP as prepared by the Contractor. The SWPPP shall be made
available upon request of a representative of the Fresno Metropolitan Flood Control
District, Regional Water Quality Control Board, State Water Resources Control Board or
U. S. Environmental Protection Agency. Requests by the public shall be directed to the
Engineer.
SWPPP preparation will also include any preparation of Storm Water Annual Reports or
Rain Event Action Plan (REAP). If specified for the risk level, REAP preparation
includes preparing and submitting REAP forms and monitoring weather forecasts.
Storm Water Annual Report preparation includes certifications, training, monitoring and
inspection results, and obtaining Storm Water Annual Report acceptance.
If the Contractor and/or his/her QSD determines that a SWPPP is not necessary, then it
shall be the responsibility of the Contractor to provide a list of Best Management
Practices (BMP) that are to be implemented during the Work to Construction
Management Division. The Contractor shall implement the BMP in a timely manner and
maintain throughout the duration of the project. The Contractor shall keep a copy of the
BMP list and any modification to the list at the job site and in the general business office
of the Contractor. In addition, the Contractor shall make available to the City copies of
all modifications to the BMP list. The BMP list shall be made available upon request of a
representative of the Fresno Metropolitan Flood Control District, Regional Water Quality
Control Board, State Water Resources Control Board or U. S. Environmental Protection
Agency. Requests by the public shall be directed to Construction Management Division.
The Contractor shall be responsible throughout the duration of the project for installing,
inspecting and maintaining the control measures (Best Management Practices — BMP's)
and for properly removing and disposing of temporary control measures. The contactor
shall be responsible for all permit fees and other fees associated with the SWPPP
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including any renewal fees. The Contractor will also be responsible for producing annual
reports, as necessary. The Contractor shall also be responsible for other items
associated with SWPPP implementation including Job Site Management, Storm Water
Sampling and Analysis, and Street Sweeping.
Notice of violation and/or fines for any non-compliance will be the responsibility
of the Contractor
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FEDERAL CONDITIONS
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Attachment 3 — Federal Conditions
This contract/purchase agreement is subject to a financial assistance contract between
the City of Fresno and the Federal Transit Administration, which requires that this
contract/agreement contain the following clauses:
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
(1) The City and contractor/vendor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the purchaser, contractor, or any other party (whether or not a
party to that contract) pertaining to any matter resulting from the underlying contract.
(2) The contractor agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subcontractor who will be subject to its
provisions.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED
ACTS
(1) The contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regulations, "Program
Fraud Civil Remedies, "49 CFR Part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying contract, the contractor certifies or affirms the
truthfulness and accuracy of any statement it has made, it makes, it may make, or causes
to be made, pertaining to the underlying contract or the FTA assisted project for which
this contract work is being performed. In addition to other penalties that may be
applicable, the contractor further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the contractor to the extent the Federal Government deems
appropriate.
(2) The contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. 5307,
the Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49
U.S.C. § 5323(I) on the contractor, to the extent the Federal Government deems
appropriate.
(3) The contractor agrees to include the above two clauses in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the
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clauses shall not be modified, except to identify the subcontractor who will be subject to
the provisions.
ACCESS TO RECORDS AND REPORTS
(1) Record Retention. The Contractor will retain, and will require its subcontractors of all
tiers to retain, complete and readily accessible records related in whole or in part to the
contract, including, but not limited to, data, documents, reports, statistics, sub -
agreements, leases, subcontracts, arrangements, other third party agreements of any
type, and supporting materials related to those records.
(2) Retention Period. The Contractor agrees to comply with the record retention
requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all
books, records, accounts and reports required under this Contract for a period of at not
less than three (3) years after the date of termination or expiration of this Contract, except
in the event of litigation or settlement of claims arising from the performance of this
Contract, in which case records shall be maintained until the disposition of all such
litigation, appeals, claims or exceptions related thereto.
(3) Access to Records. The Contractor agrees to provide sufficient access to FTA and its
contractors to inspect and audit records and information related to performance of this
contract as reasonably may be required.
(4) Access to the Sites of Performance. The Contractor agrees to permit FTA and its
contractors access to the sites of performance under this contract as reasonably may be
required.
FEDERAL CHANGES
(1) Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference
in the Master Agreement between Purchaser and FTA, as they may be amended or
promulgated from time to time during the term of this contract. Contractor's failure to so
comply shall constitute a material breach of this contract.
TERMINATION
(1) Termination for Convenience: The City of Fresno may terminate this contract, in whole
or in part, at any time by written notice to the contractor. The contractor shall be paid its
costs, including contract close out costs, and profit on work performed up to the time of
termination. The contractor shall promptly submit its termination claim to be paid by
contractor. If the contractor has any property in its possession belonging to the City of
Fresno, the contractor will account for the same, and dispose of it in the manner the City
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of Fresno directs.
(2) Termination for Default: If the contractor does not deliver supplies in accordance with
the contract delivery schedule, or, if the contract is for services, the contractor fails to
perform in the manner called for in the contract or if the contractor fails to comply with any
other provisions of the contract and the contractor fails to cure such default in a
reasonable time not to exceed 15 days, the City of Fresno may terminate this contract for
default. Termination shall be effected by serving a notice of termination on the contractor
setting forth the manner in which the contractor is in default. The contractor will only be
paid the contract price for supplies delivered and accepted, or services performed in
accordance with the manner of performance set forth in the contract.
(3) If it is later determined by the City of Fresno that the contractor had an excusable
reason for not performing, such as a strike, fire, or flood, events which are not the fault
of, or are beyond the control of the contractor, the City of Fresno, after setting up a new
delivery or performance schedule, may allow the contractor to continue work, or treat the
termination as a termination for convenience.
DISADVANTAGED BUSINESS ENTERPRISE DBE
(1) Non -Discrimination Assurances. The contractor, subrecipient or subcontractor shall
not discriminate on the basis of race, color, national origin, or sex in the performance of
this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26
in the award and administration of DOT -assisted contracts. Failure by the contractor to
carry out these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy as the recipient deems appropriate,
which may include, but is not limited to:
a. Withholding monthly progress payments;
b. Assessing sanctions;
c. Liquidated damages; and/or
d. Disqualifying the contractor from future bidding as non -responsible. 49 C.F.R. §
26.13(b).
(2) Prompt Payment. The Contractor is required to pay its subcontractors performing work
related to this Contract for satisfactory performance of that work no later than thirty (30)
days after the Contractor's receipt of payment for that work from the City. In addition, the
Contractor may not withhold retainage from its subcontractors.
(3) DBE Participation list. As required by 49 CFR Part 26.11, the City is required to create
and maintain a list of all firms bidding on prime contracts and bidding or quoting
subcontracts on Department of Transportation, Federal Transit Administration -assisted
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contracts. To comply with this requirement, the City requests the Contractor provide the
information required by the Federal Transit Administration on Page 19. This information
is not used in determining award of Contract or in evaluating your Proposal in any
way.
INCORPORATION OF FTA 4220.1 F TERMS
(1) The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract provisions.
All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 F, dated
November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA-mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The contractor shall not
perform any act, fail to perform any act, or refuse to comply with any City of Fresno
request, which would cause the City of Fresno to be in violation of the FTA terms and
conditions.
(2) Flow Down — The incorporation of FTA terms has unlimited flow down.
SUSPENSION AND DEBARMENT
The Contractor shall comply and facilitate compliance with U.S. DOT regulations,
"Nonprocurement Suspension and Debarment," 2 C.F.R. part 1200, which adopts and
supplements the U.S. Office of Management and Budget (U.S. OMB) "Guidelines to
Agencies on Government Wide Debarment and Suspension (Nonprocurement)," 2 C.F.R.
part 180. These provisions apply to each contract at any tier of $25,000 or more, and to
each contract at any tier for a federally required audit (irrespective of the contract amount),
and to each contract at any tier that must be approved by an FTA official irrespective of
the contract amount. As such, the Contractor shall verify that its principals, affiliates, and
subcontractors are eligible to participate in this federally funded contract and are not
presently declared by any Federal department or agency to be:
a) Debarred from participation in any federally assisted Award;
b) Suspended from participation in any federally assisted Award;
c) Proposed for debarment from participation in any federally assisted Award;
d) Declared ineligible to participate in any federally assisted Award;
e) Voluntarily excluded from participation in any federally assisted Award; or
f) Disqualified from participation in any federally assisted Award.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the City.
If it is later determined by the City that the bidder or proposer knowingly rendered an
erroneous certification, in addition to remedies available to the City, the Federal
Government may pursue available remedies, including but not limited to suspension
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and/or debarment. The bidder or proposer agrees to comply with the requirements of 2
C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is
valid and throughout the period of any contract that may arise from this offer. The bidder
or proposer further agrees to include a provision requiring such compliance in its lower
tier covered transactions.
BUILD AMERICA BUY AMERICA
(1) The contractor agrees to comply with Public Law 117-58 and 2 CFR 200, which require
that federal funds for an infrastructure project may not be obligated unless all of the iron,
steel, manufactured products, and construction materials incorporated into the project are
produced in the United States.
(2) Certification — A bidder or offeror must submit with their bids or proposals the Build
America Buy America certification, unless the expenditure is exempt in accordance with
2 CFR 184.8.
(3) Flow Down — The incorporation of FTA terms has unlimited flow down.
BUY AMERICA
(1) The contractor agrees to comply with 49 U.S.C. 53230), 49 C.F.R. part 661, and Public
Law 117-58, which provide that Federal funds may not be obligated unless all steel, iron,
and manufactured products used in FTA funded projects are produced in the United
States, unless a waiver has been granted by FTA or the product is subject to a general
waiver. General waivers are listed in 49 C.F.R. § 661.7. Separate requirements for rolling
stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. § 661.11.
(2) A bidder or offeror must submit to the FTA recipient the appropriate Buy America
certification with all bids on FTA-funded contracts, except those subject to a general
waiver. Bids or offers that are not accompanied by a completed Buy America
certification must be rejected as nonresponsive. This requirement does not apply to
lower tier subcontractors.
RESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION
(1) The validity of this Agreement and of any of its terms and provisions, as well as the
rights and duties of the parties, shall be governed by the laws of the State of California.
In the event of litigation between the two parties, proper venue shall be laid in a court of
competent jurisdiction in the County of Fresno, State of California.
(2) Disputes arising in the performance of this Contract which are not resolved by
agreement of the parties shall be decided in writing by the authorized representative of
(Recipient)'s Maintenance Manager. This decision shall be final and conclusive unless
with ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise
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furnishes a written appeal to the Maintenance Manager. In connection with any such
appeal, the Contractor shall be afforded an opportunity to be heard and to offer
evidence in support of its position. The decision of the Maintenance Manager shall be
binding upon the contractor and the Contractor shall abide by the decision.
(3) Pending final resolution of a dispute in hereunder, the Contractor shall proceed
diligently with the performance of this Agreement and in accordance with the City's
decision.
LOBBYING
The prospective participant certifies, by signing and submitting this bid or proposal, to
the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or
employee of any Federal agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with the awarding of
any Federal contract, the making of any Federal grant, the making of any Federal loan,
the entering into of any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or employee of any
Federal agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and submit Standard
Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by Section 1352, Title
31, U.S. Code. Any person who fails to file the required certification shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each such
failure.
(3) The prospective participant also agrees by submitting his or her bid or proposal that
he or she shall require that the language of this certification be included in all lower tier
subcontracts, which exceed $100,000 and that all such subrecipients shall certify and
disclose accordingly.
CLEAN AIR
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(1) The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et sec.. The
Contractor agrees to report each violation to the Purchaser and understands and agrees
that the Purchaser will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
CLEAN WATER
(1) The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251
et seg. The Contractor agrees to report each violation to the Purchaser and understands
and agrees that the Purchaser will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
CARGO PREFERENCE REQUIREMENTS.
Use of United States -Flag Vessels. The contractor agrees:
(1) To use privately owned United States -Flag commercial vessels to ship at least 50
percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners,
and tankers) involved, whenever shipping any equipment, material, or commodities
pursuant to the underlying contract to the extent such vessels are available at fair and
reasonable rates for United States -Flag commercial vessels.
(2) To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 days following the date of loading for
shipments originating outside the United States, a legible copy of a rated, "on -board"
commercial ocean bill -of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington D.C. 20590 and the FTA recipient (through the
contractor in the case of a subcontractor's bill -of lading).
(3) To include these requirements in all subcontracts issued pursuant to the contract when
the subcontract may involve the transport of equipment, materials, or commodities by
ocean vessel.
FLY AMERICA
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Fly America Requirements:
(1) Definitions. As used in this clause- "International air transportation" means
transportation by air between a place in the United States and a place outside the United
States or between two places both of which are outside the United States. "United States"
means the 50 States, the District of Columbia, and outlying areas. "U.S.-flag air carrier"
means an air carrier holding a certificate under 49 U.S.C. Chapter 411.
(2) When Federal funds are used to fund travel, Section 5 of the International Air
Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America
Act) requires contractors, recipients, and others use U.S.-flag air carriers for U.S.
Government -financed international air transportation of personnel (and their personal
effects) or property, to the extent that service by those carriers is available. It requires the
Comptroller General of the United States, in the absence of satisfactory proof of the
necessity for foreign -flag air transportation, to disallow expenditures from funds,
appropriated or otherwise established for the account of the United States, for
international air transportation secured aboard a foreign -flag air carrier if a U.S.-flag air
carrier is available to provide such services.
(3) If available, the contractor, in performing work under this contract, shall use U.S.-flag
carriers for international air transportation of personnel (and their personal effects) or
property.
(4) In the event that the contractor selects a carrier other than a U.S.-flag air carrier for
international air transportation, the contractor shall include a statement on vouchers
involving such transportation essentially as follows:
Statement of Unavailability of U.S.-Flag Air Carriers
International air transportation of persons (and their personal effects) or property by
U.S.-flag air carrier was not available or it was necessary to use foreign -flag air carrier
service for the following reasons. See FAR § 47.403.
Stated
Reason(s):
(5) The contractor shall include the substance of this clause, including this paragraph, in
each subcontract or purchase under this contract that may involve international air
transportation.
ENERGY CONSERVATION
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(1) The contractor agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
RECYCLED PRODUCTS
The contractors must comply with section 6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act. The requirements of
Section 6002 include procuring only items designated in guidelines of the Environmental
Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of
recovered materials practicable, consistent with maintaining a satisfactory level of
competition, where the purchase price of the item exceeds $10,000 or the value of the
quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid
waste management services in a manner that maximizes energy and resource
recovery; and establishing an affirmative procurement program for procurement of
recovered materials identified in the EPA guidelines.
CONFORMANCE WITH ITS NATIONAL ARCHITECTURE
(1) Contractor shall conform, to the extent applicable, to the National Intelligent
Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23
U.S.C. Section 512 and as amended by MAP-21 23 U.S.C. § 517(d), note and follow
the provisions of FTA Notice, "FTA National Architecture Policy on Transit Projects," 66
Fed. Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA
may issue at a later date, except to the extent FTA determines otherwise in writing.
ADA ACCESS
(1) In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101
et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq.,
and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not
discriminate against individuals on the basis of disability. In addition, the Contractor
agrees to comply with any implementing requirements FTA may issue.
SAFE OPERATION OF MOTOR VEHICLES
(1) Seat Belt Use - The Contractor is encouraged to adopt and promote on-the-job seat
belt use policies and programs for its employees and other personnel that operate
company -owned vehicles, company -rented vehicles, or personally operated vehicles.
The terms "company -owned" and "company -leased" refer to vehicles owned or leased
either by the Contractor or City.
(2) Distracted Driver - The Contractor agrees to adopt and enforce workplace safety
policies to decrease crashes caused by distracted drivers, including policies to ban text
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messaging while using an electronic device supplied by an employer, and driving a
vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately -
owned vehicle when on official business in connection with the work performed under this
agreement.
ROMPT PAYMENT
(1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily
performed no later than thirty (30) days from the date of the Prime Contractor's receipt of
each payment made by the City of Fresno. Additionally, within thirty (30) days of
satisfactory completion of all work required of the Subcontractor, the Prime Contractor
shall release any retainage payments withheld to the Subcontractor.
NOTICE OF LEGAL MATTERS AFFECTING THE FEDERAL GOVERNMENT
(1) The Contractor agrees that if a current or prospective legal matter that may affect the
Federal Government emerges, the Contractor shall promptly notify the City of the legal
matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220.
(2) The types of legal matters that require notification include, but are not limited to, a
major dispute, breach, default, litigation, or naming the Federal Government as a party to
litigation or a legal disagreement in any forum for any reason.
(3) Matters that may affect the Federal Government include, but are not limited to, the
Federal Government's interests in the Award, the accompanying Underlying Agreement,
and any Amendments thereto, or the Federal Government's administration or
enforcement of federal laws, regulations, and requirements.
(4) Additional Notice to U.S. DOT Inspector General. The contractor must promptly notify
the City and U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional
Counsel for the Region in which the City is located, if the contractor has knowledge of
potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA.
The notification provision applies if a person has or may have submitted a false claim
under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a
criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid
rigging, misappropriation or embezzlement, bribery, gratuity, or similar misconduct
involving federal assistance. This responsibility occurs whether the Project is subject to
this Agreement or another agreement between the City and FTA, or an agreement
involving a principal, officer, employee, agent, or Third -Party Participant of the City. It also
applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but
is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local
law enforcement or other investigative agency, a criminal indictment or civil complaint, or
probable cause that could support a criminal indictment, or any other credible information
in the possession of the contractor. In this paragraph, "promptly" means to refer
information without delay and without change. This notification provision applies to all
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divisions of the Recipient, including divisions tasked with law enforcement or investigatory
functions.
(5) The Contractor further agrees to include the above clause in each subcontract, at
every tier, financed in whole or in part with Federal assistance provided by the FTA.
PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT
The Contractor agrees to comply with 2 CFR 200.216 and Public Law 115-232, Section
889, and may not 1) procure or obtain; 2) extend or renew a contract to procure; or 3)
enter into a contract (or extend or renew a contract) to procure or obtain equipment,
services, or systems that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical technology as part of
any system for this federally funded agreement. As described in Public Law 115-232,
section 889, covered telecommunications equipment is telecommunications equipment
produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or
affiliate of such entities).
a) For the purpose of public safety, security of government facilities, physical
security surveillance of critical infrastructure, and other national security
purposes, video surveillance and telecommunications equipment produced by
Hytera Communications Corporation, Hangzhou Hikvision Digital Technology
Company, or Dahua Technology Company (or any subsidiary or affiliate of such
entities).
b) Telecommunications or video surveillance services provided by such entities or
using such equipment.
c) Telecommunications or video surveillance equipment or services produced or
provided by an entity that the Secretary of Defense, in consultation with the
Director of the National Intelligence or the Director of the Federal Bureau of
Investigation, reasonably believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered foreign country.
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COMMUNITY WORKFORCE AGREEMENT
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INTRODUCTION/FINDINGS
This Community Workforce Agreement is entered into this 29th day of September
2021, by and between the City of Fresno (hereinafter the "City"), and the Fresno, Madera,
Kings and Tulare Counties Building and Construction Trades Council (hereinafter the
"Trades Council") and its affiliated Unions that have executed this Agreement (referred to
collectively herein as the "Union(s)"). Contractors and subcontractors of all tiers who work
on City construction projects covered by this Agreement (hereinafter the "Contractor(s)/
Employer(s)"), shall become signatory to this Agreement by signing the "Agreement to
be Bound" attached hereto as Addendum A
A central purpose of this Agreement is to provide employment and training
opportunities that build pathways into high -quality, sustainable construction careers for
local workers, to create a pool of skilled construction labor for future City construction
projects, to develop the regional workforce and economy, and to combat unemployment
and underemployment in the region. Equally important, this Agreement is designed to
promote the efficiency of construction operations through the use of skilled labor resulting
in quality construction outcomes, and to provide for the peaceful settlement of labor
disputes and grievances without strikes or lockouts, thereby promoting the public interest
in assuring the timely and economical completion of City Projects covered by this
Agreement.
WHEREAS, this Agreement encourages construction employment and training
opportunities in ways calculated to mitigate the harms caused by geographically
concentrated poverty, unemployment and underemployment in economically
disadvantaged areas and among City residents; and
WHEREAS, this Agreement reflects a commitment by all parties to diversity,
workforce equity, and open opportunity in employment and training on City -funded
projects; and
WHEREAS, the City places high priority upon the development of comprehensive
programs for the recruitment, training and employment of local area residents and military
veterans, and recognizes the ability of local pre -apprenticeship and apprenticeship
programs to provide meaningful and sustainable career pathways in the construction
industry; and WHEREAS, the timely and successful completion of City Projects is an
important fiduciary responsibility of the City of Fresno; and
WHEREAS, large numbers of workers of various skills will be required in the
performance of construction work on City Projects and the timely and successful
completion of City Projects is of the utmost importance to meet the needs of the City and
avoid increased costs from delays in construction; and
WHEREAS, the use of skilled labor on construction work increases the safety of
construction projects as well as the quality of completed work; and
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WHEREAS, it is recognized that on City Projects with multiple contractors and
bargaining units on the job site at the same time over an extended period of time, the
potential for work disruption may be substantial without an overriding commitment to
maintain continuity of work; and
WHEREAS, the interests of the general public, the City, the Unions, and the
Contractors/Employers are best served when construction work proceeds in an orderly
manner without disruption because of strikes, sympathy strikes, work stoppages,
picketing, lockouts, slowdowns or other interferences with work; and
WHEREAS, the Contractors/Employers and the Unions desire to mutually
establish and stabilize wages, hours and working conditions for the workers employed on
City Projects and to encourage close cooperation among the Contractors/Employers and
the Unions so that a satisfactory, continuous and harmonious relationship will exist; and
WHEREAS, the parties seek to avoid the tensions that would arise on City Projects
if Union and non -union workers of different employers were to work side by side on City
Projects, potentially leading to labor disputes that could delay completion of City Projects;
and
WHEREAS, this Agreement is not intended to replace, interfere with, abrogate,
diminish or modify existing local or national collective bargaining agreements in effect
during the duration of City Projects, insofar as a legally binding agreement exists between
the Contractors/Employers and the Unions, except to the extent that the provisions of this
Agreement are inconsistent with said collective bargaining agreements, in which event
the provisions of this Agreement shall prevail; and
WHEREAS, the contract(s) for construction work on City Projects will be awarded
in accordance with the applicable provisions of all state, local and federal laws; and
WHEREAS, the parties to this Agreement pledge their full good faith and trust to
work toward the mutually satisfactory completion of the City Projects;
NOW, THEREFORE, IT IS AGREED BETWEEN AND AMONG THE PARTIES
HERETO, AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.1 "Agreement" means this Community Workforce Agreement.
1.2 "Agreement to be Bound" means the agreement (attached hereto as Addendum
A) that shall be executed by each and every Contractor/Employer as a condition of
working on a Project.
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1.3 "City" means the City of Fresno, California and its governing board, officers,
agents and employees, including managerial personnel.
1.4 "City Resident" means an individual domiciled in the City. "Domiciled" has the
meaning set forth in section 349(b) of the California Election Code, which cannot be a
post office box.
1.5 "Completion" means that point at which there is Final Acceptance by the City of a
Construction Contract and the City has filed a Notice of Completion. For purposes of this
definition, "Final Acceptance" means that point in time at which the City has determined
upon final inspection that the work has been completed in all respects and all required
contract documents, contract drawings, warranties, certificates, manuals and data have
been submitted and training completed in accordance with the contract documents and
the City has executed a written acceptance of the work.
1.6 "Construction Contract" means the public works or improvement contract(s)
(including design -bid, design -build, lease -leaseback or other contracts under which
construction of City Projects is done) awarded by the City that are necessary to complete
City Projects.
1.7 "Contractor(s)/Employer(s)" or "Contractor(s)" or "Employer(s)" means any
individual, firm, partnership or corporation (including the prime contractor, general
contractor, construction manager, project manager, design -build entity, lease -leaseback
entity or equivalent entity), or combination thereof, including joint ventures, and their
successors and assigns, that is an independent business enterprise and enters into a
contract with the City with respect to the construction of any part of City Projects, and all
contractors and subcontractors of any tier.
1.8 "Covered Work" means work on a Project that is described in Section 2.3, and not
excluded pursuant to Section 2.4.
1.9 "Master Agreement" or "Schedule A" means the Master Collective Bargaining
Agreement of each craft Union signatory hereto.
1.10 "New Local Apprentice" means a City Resident who both (i) is enrolled (or can be
immediately enrolled) in a state -approved joint labor-management apprenticeship
program and has progressed less than halfway toward the work hours needed to graduate
from such program; and (ii) is a graduate of a Trades Council -recognized pre -
apprenticeship program.
1.11 "Party" means the City, the Trades Council, and the Unions.
1.12 "Project" means a City awarded public works project as defined in California Labor
Code Section 1720, where the engineer's estimate of the total cost of the project exceeds
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one million dollars ($1,000,000). All Construction Contracts required to complete an
integrated Project shall be considered in determining whether this threshold is met. For
the purpose of application of this threshold to Job Order Contracts, the threshold shall be
applied to each job order, rather than to the job order contract aggregate maximum; any
individual job order above the threshold shall require application of this Agreement to such
individual job order. The City and the Trades Council may mutually agree in writing to add
additional projects or components to be covered by this Agreement.
1.13 "Project Manager" means the person(s) or entity(ies) designated by the City to
oversee all phases of construction on a Project and the implementation of this Agreement.
1.14 "Trades Council" means the Fresno, Madera, Kings and Tulare Counties Building
and Construction Trades Council.
1.15 "Transitional Housing" means housing the purpose of which is to facilitate the
movement of homeless individuals and families into permanent housing within 24 months.
1.16 "Union" or "Unions" means the Trades Council and its affiliated local unions
signatory to this Agreement, acting on their own behalf and on behalf of their respective
affiliates and member organizations whose names are subscribed hereto and who have
through their officers executed this Agreement.
ARTICLE II
SCOPE OF AGREEMENT
2.1 Parties: This Agreement applies to and is limited to all Contractors/Employers
performing work under a Construction Contract on a Project (including subcontractors at
any tier), and their successors and assigns, the City, the Trades Council, and its affiliated
Unions signatory to this Agreement.
2.2 Applicability: This Agreement governs all Construction Contracts awarded on City
Projects. For purposes of this Agreement, Construction Contracts shall be considered
Completed as set forth in Section 1.5, except when the City directs a Contractor to engage
in repairs, warranty work, modifications, or punch list work under a Construction Contract
or when a Contractor performs work under a change order for a Construction Contract.
2.2.1 The terms of this Agreement will cover, and will fully apply to, any Contractor
performing Project work, without regard to whether that Contractor performs work
at other sites on either a union or non -union basis. This Agreement shall not apply
to any work of any Contractor other than the Project work specifically covered by
this Agreement. No Contractor shall be required to become signatory to a Union
Schedule AAgreement as a result of performing Project work.
2.3 Covered Work: This Agreement covers, without limitation, all site preparation,
surveying, construction, alteration, demolition, installation, improvement, remediation,
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retrofit, painting or repair of buildings, structures and other works, and related activities
for a Project that is within the craft jurisdiction of one of the Unions and that is directly or
indirectly part of a Project, including, without limitation to the following examples,
landscaping and temporary fencing, temporary HVAC, geotechnical and exploratory
drilling, soils and materials testing and inspection, pipelines (including those in linear
corridors built to serve a Project), pumps, pump stations, start-up, modular furniture
installation, and final clean-up. This Agreement covers work done for a Project in
temporary yards, dedicated sites, or areas adjacent to a Project, and at any on -site or off -
site batch plant constructed to supply materials to a Project.
2.3.1 This Agreement applies to any start-up, calibration, commissioning,
performance testing, repair, maintenance, and operational revisions to systems
and/or subsystems for a Project performed after Completion, unless performed by
City employees.
2.3.2 This Agreement covers all on -site fabrication work over which the City,
Contractor(s)/Employer(s) or subcontractor(s) possess the right of control
(including work done for a Project in any temporary yard or area established for a
Project). This Agreement also covers any off -site work, including fabrication, that
is traditionally performed by the Unions and is directly or indirectly part of a Project,
provided such work is covered by a current Master Agreement or current local
addenda to a national agreement of the applicable Union(s).
2.3.3 Except for the delivery of supplies, equipment or materials that are stockpiled
for later use, this Agreement covers all construction trucking work, including the
hauling and delivery of ready -mix, asphalt, aggregate, sand, soil or other fill or
similar material that is directly incorporated into the construction process as well
as the off- hauling of soil, sand, gravel, rocks, concrete, asphalt, excavation
materials, construction debris and excess fill, material and/or mud.
Contractor(s)/Employer(s), including brokers, of persons providing construction
trucking work shall provide certified payroll records to the City within ten (10) days
of written request or as required by the bid specifications.
2.3.4 Work covered by this Agreement within the following craft jurisdictions shall
be performed under the terms of their National Agreements as follows: the National
Transient Lodge (NTL) Articles of Agreement, the National Stack/Chimney
Agreement, the National Cooling Tower Agreement, the National Agreement of
Elevator Constructors, and any instrument calibration work and loop checking shall
be performed under the terms of the UA/IBEW Joint National Agreement for
Instrument and Control Systems Technicians, with the exception that Articles IV,
XIV and XV of this Agreement shall apply to such work.
2.4 Exclusions: The following shall be excluded from the scope of this Agreement.
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2.4.1 This Agreement shall not apply to work performed by the City's own
employees as permitted by the Public Contract Code.
2.4.2 This Agreement shall not apply to a Contractor/Employer's non -construction
craft employees, managerial employees, administrative personnel, and
supervisors above the level of general foreman, unless covered by a Master
Agreement.
2.4.3 This Agreement shall not apply to a contract entered into with a professional
service provider for a Project, as defined in Section 1.12, unless the professional
service provider performs or subcontracts Covered Work, in which event the entity
self -performing the Covered Work shall execute an Agreement to be Bound.
Where applicable, the City shall include this requirement in the professional
services contract.
2.4.4 This Agreement shall not apply to any non -Project work performed on or near
or leading to the site of work covered by this Agreement that is undertaken by state,
county, city, or other governmental bodies or their contractors. Work performed by
public or private utilities including all electrical utility, voice -data -video, and security
installation work ahead of and up to the electrical service entry connection or the
main point of entry into the building shall be excluded. All electrical utility, voice -
data -video, and security installation work performed after the electrical utility
service entrance or the main point of entry shall be Covered Work. Additionally, all
contracted work performed ahead of the service entrance connection and main
point of entry that is inside the property line and provides for access to the building
via a conduit or series of conduits shall be Covered Work.
2.4.5 This Agreement shall not apply to the off -site maintenance of leased
equipment and on -site supervision of such work.
2.4.6 This Agreement does not apply to work by employees of, or contractors
retained by, a manufacturer or vendor necessary to maintain such manufacturer's
or vendor's warranty or guaranty, provided the manufacturer or vendor provides
documentation showing that the warranty or guarantee specifically requires such
employees or contractors to perform the work in order to preserve the warranty or
guarantee, or provided the manufacturer or vendor demonstrates by an
enumeration of specific tasks that the work cannot be performed by craft workers
covered by this Agreement.
2.4.7 In circumstances requiring special knowledge, work may be performed by
persons not covered by this Agreement provided that the Contractor/Employer or
manufacturer responsible for such work demonstrates by an enumeration of
specific tasks that the work cannot be performed by craft workers covered by this
Agreement. A Contractor/Employer invoking this provision shall give notice to the
Trades Council and the relevant Union(s), and such work shall be identified and
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discussed by the Contractor/Employer at its Pre -Job Conference, or, if not known
at the time of the Pre -Job Conference, shall be identified and discussed with the
Trades Council and the relevant Union(s) once the work becomes known, including
by holding a Pre -Job Conference if requested by the Trades Council or the relevant
Union(s).
2.4.8 This Agreement shall not apply to work substantially funded by any federal,
state, other local or public agency that prohibits the use of project labor
agreements on projects receiving its funding, or the funding of projects on which
such agreements are used. With respect to such work, the City agrees that it will
make a reasonable effort to defend the application of this Agreement, including by
making a written request to the funding source. Notwithstanding the foregoing,
however, should only a specific provision of the Agreement be prohibited by the
funding source, the parties shall modify the requirements of this Agreement
accordingly, to advance the purposes of this Agreement to the maximum extent
feasible without the loss of funding.
2.4.9 This Agreement shall not apply to work that is jointly performed with another
public agency, unless the work is awarded by the City, or unless otherwise agreed
to by the Parties on a case -by -case basis. With respect to such work jointly
performed with another public agency, the City will make a request to the other
public agency to apply the terms of this Agreement, or in the alternative, request
that the other public agency communicate with City representatives and the Trades
Council to discuss application of this Agreement.
2.4.10 This Agreement shall not apply to renovation of Transitional housing
buildings or units, given the time sensitivity of such work. For the avoidance of
doubt, this exclusion does not apply to new construction, nor to a total remodel
where residents are not occupying the building or units.
2.5 Award of Contracts: It is understood and agreed that the City has the right to select
any qualified bidder for the award of a Construction Contract under this Agreement. The
bidder need only be willing, ready and able to execute and comply with this Agreement.
It is further agreed that this Agreement shall be included in all invitations to bid or
solicitations for proposals from contractors or subcontractors for work on a Project. The
City shall provide a copy of all such invitations to bid to the Trades Council at the time of
issuance.
ARTICLE III
EFFECT OF AGREEMENT
3.1 By executing this Agreement, the Trades Council, the Unions and the City agree
to be bound by each and all of the provisions of the Agreement.
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3.2 By accepting the award of work under a Construction Contract for a Project,
whether as a Contractor or subcontractor thereunder, all Contractors/Employers agree to
be bound by each and every provision of this Agreement and agree to evidence their
acceptance prior to the commencement of work by executing the Agreement to be Bound
in the form attached hereto as Addendum A.
3.3 At the time that any Contractor/Employer enters into a subcontract with any
subcontractor providing for the performance of work under a Construction Contract, the
Contractor/Employer shall provide a copy of this Agreement to said subcontractor and
shall require the subcontractor, as a condition of accepting the award of a construction
subcontract, to agree in writing, by executing the Agreement to be Bound, to be bound by
each and every provision of this Agreement prior to the commencement of work. The
obligations of a Contractor may not be evaded by subcontracting. If the subcontractor
refuses to execute the Agreement to be Bound, then such subcontractor shall not be
awarded a Construction Contract on a Project.
3.4 This Agreement shall only be binding on the signatory parties hereto, and their
successors and assigns, and shall not apply to the parents, affiliates, subsidiaries, or
other ventures of any such party. Each Contractor shall alone be liable and responsible
for its own individual acts and conduct and for any breach or alleged breach of this
Agreement, except as otherwise provided by law or the applicable Master Agreement.
Any dispute between the Union(s) and the Contractor(s) with respect to compliance with
this Agreement shall not affect the rights, liabilities, obligations and duties between the
Union(s) and other Contractor(s) party to this Agreement.
3.5 It is mutually agreed by the parties that any liability by a Union signatory to this
Agreement shall be several and not joint. Any alleged breach of this Agreement by a
Union shall not affect the rights, liabilities, obligations and duties between the
Contractor(s) and the other Union(s) party to this Agreement.
3.6 The provisions of this Agreement, including the Schedule As incorporated herein
by reference, shall apply to the work covered by this Agreement, notwithstanding the
provisions of any other local, area and/or national agreements which may conflict with or
differ from the terms of this Agreement. To the extent a provision of this Agreement
conflicts with a Schedule A, the provision of this Agreement shall prevail. Where a
provision of a Schedule A does not conflict with this Agreement, the provision of the
Schedule A shall apply.
ARTICLE IV
WORK STOPPAGES, STRIKES. SYMPATHY STRIKES AND LOCKOUTS
4.1 The Unions, the City, and the Contractor(s)/Employer(s) covered by this
Agreement agree that for the duration of a Project:
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4.1.1 There shall be no strikes, sympathy strikes, work stoppages, picketing,
handbilling or otherwise advising the public that a labor dispute exists, or
slowdowns of any kind, for any reason, by the Unions or employees employed on
a Project, at the job site of a Project or any other City facility because of a dispute
on a Project. Disputes arising between the Unions and Contractor(s)/ Employer(s)
on other City projects are not governed by the terms of the Agreement or this
Article.
4.1.2 There shall be no lockout of any kind by a Contractor/Employer of workers
employed on a Project.
4.1.3 If a Master Agreement expires before the Contractor/Employer completes
the performance of work under a Construction Contract and the Union or
Contractor/Employer gives notice of a demand for a new or modified Master
Agreement, the Union agrees that it will not strike on work covered by this
Agreement and the Union and the Contractor/Employer agree that the expired
Master Agreement will continue in full force and effect for work covered under this
Agreement until a new or modified Master Agreement is reached. If the new or
modified Master Agreement provides that any terms of the Master Agreement shall
be retroactive, the Contractor/ Employer agrees to comply with any retroactive
terms of the new or modified Master Agreement that are applicable to any
employee(s) on a Project during the interim, with retroactive payment due within
seven (7) calendar days of the effective date of the new or modified Master
Agreement.
4.1.4 In the case of nonpayment of wages or trust fund contributions on a Project,
the Union shall give the City and the Contractor/Employer three (3) business days'
notice when nonpayment of trust fund contributions has occurred, and one (1)
business day's notice when nonpayment of wages has occurred or when
paychecks being tendered to a financial institution normally recognized to honor
such paychecks will not honor such paycheck, of the intent to withhold labor from
the Contractor/Employers' or their subcontractor's workforce, during which time the
Contractor/Employer may correct the default. In this instance, a Union's
withholding of labor (but not picketing) from a Contractor/Employer who has failed
to pay its fringe benefit contributions or failed to meet its weekly payroll shall not
be considered a violation of this Article.
4.1.5 Notification: If the City or any Contractor contends that any Union has
violated this Article, it will so notify in writing the Senior Executive of the Trades
Council and the Senior Executive of the Union, setting forth the facts alleged to
violate the Article, prior to instituting the expedited arbitration procedure set forth
below. The Trades Council will immediately use its best efforts to cause the
cessation of any violation of this Article. The leadership of the Union will
immediately inform the workers of their obligations under this Article. A Union
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complying with this obligation shall not be held responsible for the unauthorized
acts of employees it represents.
4.2 Expedited Arbitration: Any party to this Agreement shall institute the following
procedure, prior to initiating any other action at law or equity, when a breach of this Article
is alleged to have occurred.
4.2.1 A party invoking this procedure shall notify Robert Hirsch, as the permanent
arbitrator, or Barry Winograd, as the alternate arbitrator, under this procedure. In
the event the permanent arbitrator is unavailable at any time, the alternate will be
contacted. If neither is available, the parties shall select the arbitrator from the list
in Section 14.4. Notice to the arbitrator shall be by the most expeditious means
available, with notice by email and telephone to the City, the involved Contractor,
and the party alleged to be in violation, and to the Trades Council and involved
local Union if a Union is alleged to be in violation.
4.2.2 Upon receipt of said notice, the City will contact the permanent arbitrator
named above, or the alternate if the permanent arbitrator is not available, who will
attempt to convene a hearing within twenty-four (24) hours if it is contended that
the violation still exists.
4.2.3 The arbitrator shall notify the parties by email and telephone of the place
and time for the hearing. Said hearing shall be completed in one session, which,
with appropriate recesses at the arbitrator's discretion, shall not exceed twenty-
four (24) hours unless otherwise agreed upon by all parties. A failure of any party
to attend said hearings shall not delay the hearing of evidence or the issuance of
an award by the arbitrator.
4.2.4 The sole issue at the hearing shall be whether or not a violation of Section
4.1 of the Agreement has occurred. The arbitrator shall have no authority to
consider any matter of justification, explanation or mitigation of such violation or to
award damages, which issue is reserved for court proceedings, if any. The award
shall be issued in writing within three (3) hours after the close of the hearing, and
may be issued without a written opinion. If any party desires a written opinion, one
shall be issued within fifteen (15) calendar days, but the parties shall not delay
compliance with or enforcement of the award due to the issuance of a written
opinion. The arbitrator may order cessation of the violation of this Article, and the
arbitrator's award shall be served on all parties by hand or registered mail upon
issuance. Should a party found in violation of this Article fail to comply with the
arbitrator's award ordering the party to cease the violation, the party in violation
shall pay to the affected party as liquidated damages the sum of ten thousand
dollars ($10,000.00) per shift for which it failed to comply, or portion thereof, until
such violation is ceased. The arbitrator shall retain jurisdiction to resolve any
disputes regarding the liquidated damages claimed under this section.
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4.2.5 The arbitrator's award may be enforced by any court of competent
jurisdiction upon the filing of this Agreement and all other relevant documents
referred to above in the following manner. The party filing such enforcement
proceedings shall give written notice to the other party. In a proceeding to obtain a
temporary order enforcing the arbitrator's award as issued under this Article, all
parties waive the right to a hearing and agree that such proceeding may be ex
parte. However, such agreement does not waive any party's right to seek or
participate in a hearing for a final order of enforcement. Any court order enforcing
the arbitrator's award shall be served on all parties by hand or delivered by certified
mail.
4.2.6 Any rights created by statute or law governing arbitration proceedings
inconsistent with the above procedure, or which interfere with compliance with the
above procedure, are waived by the parties.
4.2.7 The fees and expenses of the arbitrator shall be divided equally between
the party instituting the arbitration proceedings provided in this Article and the party
alleged to be in breach of its obligation under this Article.
4.2.8 Should either the permanent or the alternate arbitrator identified above no
longer work as a labor arbitrator, the City and the Trades Council shall mutually
agree to a replacement.
ARTICLE V
PRE -JOB CONFERENCES
5.1 Timing: The Project Manager shall convene and conduct, at a location and time
mutually agreeable to the Trades Council, a pre job conference with the Unions and the
representatives of all involved Contractors/Employers, who shall be prepared to
announce craft assignments and discuss in detail the scope of work and the other issues
set forth below, at least fourteen (14) calendar days prior to:
(a) The commencement of any Project work, and
(b) The commencement of Project work on any subsequently awarded
Construction Contract.
5.2 The pre job conference shall be attended by a representative of each participating
Contractor and each affected Union, and the Trades Council and City may attend at their
discretion.
5.3 The pre job conference shall include but not be limited to the following subjects:
(a) A listing of each Contractor and subcontractor and their scope of work;
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(b) The craft assignments;
(c) The estimated number of craft workers required to perform the work;
(d) Transportation arrangements;
(e) The estimated start and completion dates of the work; and
(f) Discussion of pre -fabricated materials.
5.4 Joint Administrative Committee: This Agreement is intended to provide close
cooperation between management and labor. To that end, the City shall designate two
representatives and the Trades Council shall designate two representatives to serve on
a Joint Administrative Committee ("JAC"), each of whom may designate an alternate. JAC
members may invite participation by a Contractor or Union as needed. The JAC shall
meet quarterly and at the request of any member, to review progress of Projects and to
discuss matters of general concern, such as safety and security. The JAC shall serve as
a forum to foster communication between management and labor, and to assist the
Unions and the Contactors to complete Projects in an economically efficient manner
without interruption, delays or work stoppages.
5.4.1 The JAC shall participate in the drafting of reports to City Council regarding
the status of targeted objectives under this Agreement, including the local hiring
and apprenticeship provisions herein.
5.4.2 The JAC shall have no authority to review grievances or disputes involving
this Agreement, which are subject to the applicable grievance procedure.
ARTICLE VI
NO DISCRIMINATION
6.1 The Contractors/Employers and the Unions agree to comply with all anti-
discrimination provisions of federal, state, and local law, to protect employees and
applicants for employment, on a Project.
ARTICLE VII
UNION SECURITY
7.1 The Contractors/Employers recognize the Unions as the sole bargaining
representative of all craft employees working within the scope of this Agreement, and all
such employees must be represented by a Union for the duration of their employment on
a Project.
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7.2 The Contractors/Employers shall make and transmit all deductions for Union
dues, fees, and assessments that have been authorized by employees in writing in
accordance with the applicable Master Agreement. This Agreement does not require any
employee of a non -union Contractor/Employer to join a Union or to pay dues or fees to a
Union as a condition of working on a Project; however, nothing in this Article is intended
to supersede the independent requirements of the applicable Master Agreements as to
Contractors/Employers signatory to such Master Agreements and as to employees of
those Contractors/Employers who are performing Covered Work.
7.3 Authorized representatives of the Unions shall have access to a Project whenever
work covered by this Agreement is being, has been, or will be performed on a Project.
ARTICLE VIII
REFERRAL
8.1 Contractor(s)/Employer(s) performing construction work on a Project shall, in
filling craft job requirements, utilize and be bound by the registration facilities and referral
systems established or authorized by the Unions signatory hereto. The
Contractor(s)/Employer(s) shall have the right to reject any applicant referred by the
Union(s), in accordance with the applicable Master Agreement.
8.2 Contra cto r(s)/E m ploye r(s) shall have the unqualified right to select and hire
directly all supervisors above the level of general foreman it considers necessary and
desirable, without such persons being referred by the Union(s), unless such craft
construction employee is covered by a Master Agreement.
8.3 Core Workers: Contractor(s)/Employer(s) that are not signatory to a Master
Agreement may request by name, and the Union will honor, referral of Core Workers as
journeypersons for Project work who have been on the Contractor/Employer's active
payroll for at least sixty (60) out of the one hundred (100) working days prior to the
request, and who possess all licenses and certifications required to perform the work
("Core Workers").
8.3.1 The Union will refer to the Contractor one journeyperson employee from the
hiring hall then one Core Worker for the affected trade or craft. This process shall
be repeated, one and one, until the Contractor's workforce has a maximum of
five(5) Core Workers. Thereafter, all of the Contractor's additional employees
performing Covered Work shall be hired from the Union's hiring hall out -of -work
list(s).
8.3.2 When the Contractor's workforce is reduced, employees shall be reduced so
as to maintain the same ratio of Core Workers to hiring hall referrals as was applied
in the initial hiring.
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8.3.3 The Contractor shall provide the appropriate Union with the name and all
necessary information for each Core Worker, and each Core Worker shall register
with the Union's hiring hall and comply with Article VI before commencing work on
a Project. If there is any question regarding an employee's eligibility as a Core
Worker under this section, the Contractor shall provide the Union with written
records demonstrating eligibility.
8.4 In the event that referral facilities maintained by the Union(s) are unable to fill the
requisition of a Contractor/Employer for employees within a forty-eight (48) hour period
(Saturdays, Sundays and Holidays excluded) after such requisition is made by the
Contractor/Employer, the Contractor/Employer shall be free to obtain the worker(s) from
any source. A Contractor/Employer who hires a worker(s) to perform Covered Work on a
Project pursuant to this section shall immediately provide the appropriate Union with the
name and address of such worker(s) and shall immediately refer such worker(s) to the
appropriate Union to satisfy the requirements of this Agreement.
ARTICLE IX
LOCAL HIRING PROGRAM
9.1 It is in the interest of the parties to this Agreement to facilitate employment of City
Residents to construct City Projects. To that end, the Unions agree to exert their utmost
efforts to recruit a sufficient number of craft persons to fulfill the referral requests of
Contractors/Employers for City Projects, consistent with this Article.
9.2 To the maximum extent allowed by law and consistent with the Unions' hiring hall
referral provisions set forth in Master Agreements, City residents shall be requested by
the Contra ctor(s)/E m p loye r(s) and dispatched by the applicable Union(s).
9.3 Each Contractor shall either demonstrate satisfaction of the Percentage
Requirements in Section 9.4 below, or demonstrate satisfaction of the good faith efforts
set forth in Section 9.5 below.
9.4 Percentage Requirements: For each Project, each Contractor shall make best
faith efforts to satisfy the following percentage requirements (the "Percentage
Requirements"):
9.4.1 at least 50 percent of all journey -level Project work hours performed by City
Residents;
9.4.2 at least 55 percent of all apprentice -level Project work hours performed by
City Residents;
9.4.3 at least 30 percent of all apprentice -level Project work hours performed by
New Local Apprentices.
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9.5 Each Contractor must take the following steps in an attempt to utilize City
Residents to satisfy the Percentage Requirements:
9.5.1 City Residents/Journey level Hours. Contractor may assign current crew
members who are City Residents to a Project. If staffing with Contractor's current
crew members does not enable satisfaction of the Percentage Requirement of
Section 9.4.1, the Contractor shall request referral of needed City Residents from
the appropriate Union hiring hall, using "name call," "rehire," or other available
procedures to satisfy the Percentage Requirement of Section 9.4.1. All requests
for referrals under this subsection shall be in writing.
9.5.2 City Residents/Apprentice Hours. Contractor may assign current crew
members who are City Residents and apprentices registered in a joint labor-
management apprenticeship program to a Project. If staffing with Contractor's
current crew members does not enable satisfaction of the Percentage
Requirement of Section 9.4.2, the Contractor shall request referral of needed City
Resident apprentices from the appropriate Union hiring hall or joint labor
management apprenticeship program, using "name call," "rehire," or other
available procedures to satisfy the Percentage Requirement of Section 9.4.2. All
requests for referrals under this subsection shall be in writing.
9.5.3 New Local Apprentices. Contractor may assign current crew members who
are New Local Apprentices to a Project. If staffing with Contractor's current crew
members does not enable satisfaction of the Percentage Requirement of Section
9.4.3, the Contractor shall request referral of New Local Apprentices from the
appropriate Union hiring hall or joint labor management apprenticeship program,
using "name call," "rehire," or other available procedures to satisfy the Percentage
Requirement of Section 9.4.3. All requests for referrals under this subsection shall
be in writing.
9.6 Union hiring halls and, where applicable, joint apprenticeship programs, will refer
apprentices to non -signatory Contractors/Employers upon request provided the
Contractors/Employers submit the forms required by the Department of Industrial
Relations.
9.7 Oversight and Enforcement. Contractor requirements of the Local Hiring Program
shall be terms of the prime contracts awarded by the City and subcontracts awarded by
Contractors. Enforcement actions shall be pursuant to contract compliance procedures
set forth in such contracts. Hours worked by workers who reside in states other than
California shall not be considered in compliance determinations regarding the Local Hiring
Program. Upon request by the City, Contractors shall submit copies of all information
necessary to determine Contractor compliance with the Local Hiring Program, including
dispatch requests and responses, records regarding hiring decisions of City Residents
and New Local Apprentices who were referred but not hired, and any other relevant
information requested by the City.
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9.8 Federally -Funded Projects: The requirements of this Article IX shall not apply to
Projects for which a federal funding source prohibits such application. However, if a
federal funding source requires alternative hiring goals or requirements (such as in federal
Executive Order 11246), then such requirements shall apply, and all requirements and
procedures set forth in this Article shall be utilized to implement the alternative hiring goals
or requirements imposed by the federal funding source. The City shall notify the Trades
Council in the event that federal hiring goals supplant this Article.
ARTICLE X
WAGES AND BENEFITS
10.1 The Contractors/Employers agree to pay contributions to the vacation, pension
and/or other deferred compensation plan, apprenticeship, worker protection and
assistance, and health benefit funds established by the applicable Master Agreement(s)
for each hour worked on a Project, in the amounts designated in the applicable Master
Agreement(s).
10.2 By signing this Agreement, the Contractors/Employers adopt and agree to be
bound by the written terms of the legally established Trust Agreements described in
Section 10.1, which may from time to time be amended, specifying the detailed basis
upon which payments are to be made into, and benefits paid out of, such Trust Funds.
The Contractors/Employers authorize the parties to such local Trust Agreements to
appoint trustees and successor trustees to administer the Trust Funds and hereby ratify
and accept the trustees so appointed as if they were appointed by the
Contractors/Employers. The Contractors/Employers agree to execute a separate
subscription agreement(s) when such Trust Fund(s) requires such document(s).
10.3 Wages, Hours, Terms and Conditions of Employment: The wages, hours and other
terms and conditions of employment on City Projects shall be governed by the Master
Agreement of the respective craft, to the extent such MasterAgreement is not inconsistent
with this Agreement. Where a subject is covered by the Master Agreement and not
covered by this Agreement, the Master Agreement will prevail. When a subject is covered
by both the Master Agreement and this Agreement, to the extent there is any
inconsistency, this Agreement will prevail.
10.4 Holidays: Holidays shall be as set forth in the applicable Master Agreement.
ARTICLE XI
APPRENTICES
11.1 Recognizing the need to develop adequate numbers of competent workers in the
construction industry, including on public works projects, the Contractors/Employers shall
employ apprentices from a California state -approved Joint Apprenticeship Training
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Program in their respective crafts, to perform such work as is within their capabilities and
that is customarily performed by the craft in which they are indentured.
11.2 Apprentice ratios will be in compliance with the provisions of the California Labor
Code and the applicable state prevailing wage determination.
11.3 Consistent with the Master Agreements, there shall be no restriction on the
utilization of apprentices in performing the work of their craft provided they are properly
indentured and supervised.
ARTICLE XII
HELMETS TO HARDHATS
12.1 The Contractors/Employers and Unions recognize a desire to facilitate the entry
into the building and construction trades of veterans who are interested in careers in the
building and construction industry. The Contractors/Employers and Unions agree to utilize
the services of the Center for Military Recruitment, Assessment and Veterans
Employment (hereinafter "Center") and the Center's "Helmets to Hardhats" program to
serve as a resource for preliminary orientation, assessment of construction aptitude,
referral to apprenticeship programs or hiring halls, counseling and mentoring, support
network, employment opportunities and other needs as identified by the parties.
12.2 The Unions and Contractors/Employers agree to coordinate with the Center to
participate in an integrated database of veterans interested in working on Projects and of
apprenticeship and employment opportunities for Projects. To the extent permitted by law,
the Unions will give credit to such veterans for bona fide, provable past experience.
ARTICLE XIII
COMPLIANCE
13.1 It shall be the responsibility of the Contractors/Employers and Unions to
investigate and monitor compliance with the provisions of Article IX of this Agreement.
Nothing in this Agreement shall be construed to interfere with or supersede the usual and
customary legal remedies available to the Unions and/or employee benefit Trust Funds
to collect delinquent wages or Trust Fund contributions from Contractors/Employers on
the Projects. Because the Projects are public works subject to the California Labor Code,
the City shall monitor and enforce the Contractors/Employers' compliance with state
prevailing wage requirements as well as this Agreement.
ARTICLE XIV
GRIEVANCE ARBITRATION PROCEDURE
14.1 Project Labor Disputes: All disputes involving the application or interpretation of a
Master Agreement to which a Contractor/Employer and a Union are parties shall be
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resolved pursuant to the resolution procedures of the Master Agreement. All disputes
relating to the interpretation or application of this Agreement, other than disputes under
Article IV and Article XV, shall be subject to resolution by the grievance arbitration
procedures set forth in this Article.
14.2 Employee Discipline: All disputes involving the discipline and/or discharge of an
employee working on a Project shall be resolved through the grievance and arbitration
provisions contained in the Master Agreement for the craft of the affected employee. No
employee working on a Project shall be disciplined or discharged without just cause.
14.3 No grievance shall be recognized unless the grieving party (Union or District Council
on its own behalf, or on behalf of an employee whom it represents, or a
Contractor/Employer on its own behalf) provides notice in writing to the party with whom
it has a dispute within five (5) business days after becoming aware of the dispute but in
no event more than thirty (30) business days after it reasonably should have become
aware of the event giving rise to the dispute. Time limits may be extended by mutual
agreement of the parties.
14.4 Grievances shall be settled according to the following procedures:
Step 1: Within five (5) business days after the receipt of the written notice of the
grievance, the representative of the involved Union or District Council, or his/her
designee, and the representative of the involved Contractor/Employer, shall confer
and attempt to resolve the grievance.
Step 2: If the grievance is not resolved at Step 1, within five (5) business days of
the Step 1 meeting or the conclusion of efforts to resolve the grievance at Step 1,
the alleged grievance may be referred in writing by either involved party to the
Business Manager(s) of the affected Union(s) involved and the Labor Relations
Manager of the Contractor/Employer, or the Contractor/Employer's designated
representative, for discussion and resolution. This time limit may be extended by
mutual consent of both parties. Regardless of which party has initiated the
grievance, the Union shall notify its International Union representative prior to the
Step 2 meeting, and the International Union representative shall advise if it intends
to participate in the Step 2 meeting. The Project Manager and the Trades Council
shall have the right to participate in any efforts to resolve the dispute at Step 2.
Step 3: If the grievance is not resolved at Step 2, either party may request the
dispute be submitted to arbitration within five (5) business days of the Step 2
meeting or the conclusion of efforts to resolve the grievance at Step 2. This time
limit may be extended by mutual consent of both parties. Within five (5) business
days after referral of a dispute to arbitration, the representatives shall notify the
permanent arbitrator designated in Article IV, or if not available, the alternate
arbitrator designated in Article IV, for final and binding arbitration. If the permanent
arbitrator or the alternate is not available, an arbitrator shall be selected by the
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alternate striking method from the list of three (3) below. The order of striking
names from the list of arbitrators shall be determined by a coin toss, the winner of
which shall decide whether they wish to strike first or second.
1. Carol Vendrillo
2. David Weinberg
3. Mark Keppler
14.5 The decision of the arbitrator shall be final and binding on all parties. The arbitrator
shall have no authority to change, amend, add to or detract from any of the provisions of
the Agreement. The expense of the arbitrator shall be borne equally by both parties. The
arbitrator shall arrange for a hearing on the earliest available date from the date of his/her
selection. A decision shall be given to the parties within five (5) calendar days after
completion of the hearing unless such time is extended by mutual agreement. A written
opinion may be requested by a party from the presiding arbitrator.
14.6 The time limits specified at any step of the grievance procedure may be extended
by mutual agreement of the parties. However, failure to process a grievance, or failure to
respond in writing within the time limits provided above, without an agreed upon extension
of time, shall be deemed a waiver of such grievance without prejudice, or without
precedent to the processing and/or resolution of like or similar grievances or disputes.
14.7 In order to encourage the resolution of disputes and grievances at Steps 1 and 2
of this grievance procedure, the parties agree that such settlements shall not be
precedent setting.
14.8 Should any of the arbitrators listed in this Article or Article IV no longer work as a
labor arbitrator, the City and the Trades Council shall mutually agree to a replacement.
ARTICLE XV
WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES
15.1 The assignment of Covered Work will be solely the responsibility of the Employer
performing the work involved; and such work assignments will be in accordance with the
Plan for the Settlement of the Jurisdictional Disputes in the Construction Industry (the
"Plan") or any successor Plan.
15.2 All jurisdictional disputes on this Project between or among the building and
construction trades Unions and the Employers parties to this Agreement, shall be settled
and adjusted according to the present Plan established by the Building and Construction
Trades Department or any other plan or method of procedure that may be adopted in the
future by the Building and Construction Trades Department. Decisions rendered shall be
final, binding and conclusive on the Employers and Unions parties to this Agreement.
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15.3 If, a dispute arising under this Article involves the Northern California Carpenters
Regional Council or any of its subordinate bodies, an arbitrator shall be chosen by the
procedures specified in Article V, Section 5 of the Plan from a list composed of John
Kagel, Thomas Angelo, Robert Hirsch and Thomas Pagan, and the arbitrator's hearing
on the dispute shall be held at the offices of the California State Building and Construction
Trades Council in Sacramento, California within fourteen (14) calendar days of the
selection of the arbitrator. All other procedures shall be as specified in the Plan.
15.4 All jurisdictional disputes shall be resolved without the occurrence of any strike,
work stoppage, or slow -down of any nature, and the Employer's assignment shall be
adhered to until the dispute is resolved. Individual employees violating this section shall
be subject to immediate discharge.
15.5 Each Employer will conduct a pre -job conference with the Trades Council prior to
commencing work. The City and the Project Manager will be advised in advance of all
such conferences and may participate if they wish. Pre -job conferences for different
Employers may be held together.
ARTICLE XVI
MANAGEMENT RIGHTS
16.1 Consistent with the Schedule A agreements, the Contractor(s)/Employer(s) shall
retain full and exclusive authority for the management of their operations, including the
right to direct their work force in their sole discretion. No rules, customs or practices shall
be permitted or observed which limit or restrict production, or limit or restrict the working
efforts of employees, except that all lawful manning provisions in the Master Agreement
shall be recognized.
ARTICLE XVII
DRUG AND ALCOHOL TESTING
17.1 The use, sale, transfer, purchase and/or possession of a controlled substance,
alcohol and/or firearms at any time during the work day is prohibited.
17.2 Drug and alcohol testing shall be conducted in accordance with the substance
abuse prevention policies set forth in the applicable Schedule A.
ARTICLE XVIII
SAVINGS CLAUSE
18.1 If any article, provision, clause, sentence or word of this Agreement is determined
to be illegal or void as being in contravention of any applicable law, by a court of
competent jurisdiction, the remainder of the Agreement shall remain in full force and
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effect. The parties further agree that if any article, provision, clause, sentence or word of
the Agreement is determined to be illegal or void, by a court of competent jurisdiction, the
parties shall substitute, by mutual agreement, in its place and stead, an article, provision,
clause, sentence or word that will meet the objections to its validity and will be in
accordance with its original intent. If the parties are unable to agree on substitute
language, then the entire Agreement shall be null and void.
18.2 If a court of competent jurisdiction determines that all or part of the Agreement is
invalid and/or enjoins the City from complying with all or part of the Agreement's
provisions, and the City accordingly determines that compliance with this Agreement will
not be required in order to perform work under a Construction Contract, the Unions will
no longer be bound by the provisions of Article IV.
ARTICLE XIX
TERM
19.1 This Agreement shall be included in all bid documents, requests for proposals, or
other equivalent Project solicitations, which shall indicate that entering into this
Agreement is a condition of the award of a Construction Contract(s) for each Project.
19.2 This Agreement shall apply until the Completion of each Project in accordance
with Sections 1.5 and 2.2.
19.3 This Agreement shall become effective 120 days after it is executed by the City
and the Trades Council and shall remain in effect until the five (5) year anniversary of the
effective date. During this term, the City administration shall prepare annual reports to the
City Council on Agreement implementation and results of the Local Hiring Program, which
reports shall be provided to the JAC for review and comment prior to submission to the
City Council. The Unions, Trades Council, and Contractors shall provide to the
administration requested information relevant to such reports, including information
regarding referrals from hiring halls for Covered Work on Projects. Upon the two-year
anniversary of the effective date, if the Percentage Requirements set forth in the Local
Hiring Program are not being met on all Projects in aggregate, the City shall provide the
Trades Council with written notice. Upon receipt of such notice, the Trades Council and
the City shall meet and confer regarding whether to modify the Local Hiring Program in
order to improve outcomes and meet the Percentage Requirements, with any such
modifications made upon mutual agreement by the Trades Council and the City. A similar
process will take place on the third and fourth anniversaries of the effective date.
19.4 Approximately ninety (90) days prior to the five (5) year anniversary of the effective
date of this Agreement, at the request of either party, the City and Trades Council shall
meet to discuss whether to extend this Agreement, and, if so, the proposed terms of such
extension including any proposed changes to the Agreement.
ARTICLE XX
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MISCELLANEOUS PROVISIONS
20.1 The section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this Agreement. All
defined terms used in this Agreement shall be deemed to refer to the singular and/or
plural, in each instance as the context and/or particular facts may require.
20.2 This Agreement may be executed in counterparts, such that original signatures
may appear on separate pages and when bound together all necessary signatures shall
constitute an original. Faxed or emailed signature pages transmitted to other parties to
this Agreement shall be deemed the equivalent of original signatures.
20.3 Each of the persons signing this Agreement represents and warrants that such
person has been duly authorized to sign this Agreement on behalf of the party indicated,
and each of the parties signing this Agreement warrants and represents that such party
is legally authorized and entitled to enter into this Agreement.
20.4 The parties acknowledge that this is a negotiated agreement, that they have had
the opportunity to have this Agreement reviewed by their respective legal counsel, and
that the terms and conditions of this Agreement are not to be construed against any party
on the basis of such party's draftsmanship thereof.
20.5 All defined terms used in this Agreement shall be deemed to refer to the singular
and/or plural, in each instance as the context and/or particular facts may require.
Addendum A
AGREEMENT TO BE BOUND
[Date]
[Addressee]
[Address]
Re: City of Fresno Community Workforce Agreement
Agreement to be Bound
Dear:
The undersigned confirms that it agrees to be a party to and bound by the City of Fresno
Community Workforce Agreement ("Agreement") as such Agreement may, from time to
time, be amended by the parties or interpreted pursuant to its terms.
By executing this Agreement to be Bound, the undersigned subscribes to, adopts and
agrees to be bound by the written terms of the legally established trust fund documents
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as set forth in Section 10.1 of the Agreement, as they may from time to time be amended,
specifying the detailed basis upon which contributions are to be made into, and benefits
made out of, such trust funds, and ratifies and accepts the trustees appointed by the
parties to such trust funds. The undersigned agrees to execute a separate subscription
agreement(s) for such trust funds when such trust fund(s) require(s) such document(s).
The obligation to be a party to and bound by the Agreement shall extend to all work
covered by the Agreement undertaken by the undersigned. The undersigned shall require
all of its subcontractors, of whatever tier, to become similarly bound for all their work within
the scope of the Agreement by signing an identical Agreement to be Bound.
This letter shall constitute a subscription agreement, to the extent of the terms of the letter.
CONTRACTOR/SUBCONTRACTOR:
California Contractor State License No. or Motor Carrier (CA) Permit No.:
Name of Authorized Person (Print):
Signature of Authorized Person:
Title of Authorized Person: Telephone Number of Authorized Person:
(Continued)
Address of Authorized Person
State Public Works Registration Number
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Addendum B
SIDE LETTER
The parties recognize that the capacity to perform slurry seal maintenance work
may not exist locally. Their mutual intent is to facilitate the creation of such capacity locally
over time, Accordingly, the parties agree that with respect to slurry seal maintenance work
that may otherwise be covered by this agreement, in the event the City receives no
responsive bids, the parties agree to meet and confer. The parties may mutually agree to
exclude such projects from coverage under this Agreement, or agree to modify the terms
of this Agreement for the purpose of such projects. If the parties cannot agree, the City
Manager may recommend to the City Council the exclusion of such projects from PLA
coverage.
The parties further recognize that significant, new federal resources may become
available after the effective date of this Agreement, and that such resources may require
changes to this Agreement in order to ensure that the City can take full advantage of such
resources. The parties' mutual goal is to ensure that nothing in this Agreement will impair
the City's ability to apply for and receive such new funding, and that they will endeavor to
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agree on any necessary changes to ensure compliance with any new federal regulations
governing such funding.
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INSURANCE REQUIREMENTS
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INSURANCE REQUIREMENTS
1. Throughout the life of this Agreement, CONTRACTOR shall pay for and maintain in
full force and effect all insurance as required herein with an insurance company(ies)
either (i) admitted by the California Insurance Commissioner to do business in the
State of California and rated no less than "A-VII" in the Best's Insurance Rating
Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her
designee at any time and in his/her sole discretion. The required policies of
insurance as stated herein shall maintain limits of liability of not less than those
amounts stated therein. However, the insurance limits available to CITY, its officers,
officials, employees, agents, and volunteers as additional insureds, shall be the
greater of the minimum limits specified therein or the full limit of any insurance
proceeds to the named insured.
2. If at any time during the life of the Agreement or any extension, CONTRACTOR or
any of its subcontractors fail to maintain any required insurance in full force and
effect, all services and work under this Agreement shall be discontinued immediately,
and all payments due or that become due to CONTRACTOR shall be withheld until
notice is received by CITY that the required insurance has been restored to full force
and effect and that the premiums therefore have been paid for a period satisfactory
to CITY. Any failure to maintain the required insurance shall be sufficient cause for
CITY to terminate this Agreement. No action taken by CITY pursuant to this section
shall in any way relieve CONTRACTOR of its responsibilities under this Agreement.
The phrase "fail to maintain any required insurance" shall include, without limitation,
notification received by CITY that an insurer has commenced proceedings, or has
had proceedings commenced against it, indicating that the insurer is insolvent.
3. The fact that insurance is obtained by CONTRACTOR shall not be deemed to
release or diminish the liability of CONTRACTOR, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify
CITY shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by CONTRACTOR. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the
liability of CONTRACTOR, vendors, suppliers, invitees, consultants, sub -contractors,
subcontractors, or anyone employed directly or indirectly by any of them. Coverage
shall be at least as broad as:
a. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage arising
out of your business operations. The Commercial General Liability policy shall be
written on an occurrence form and shall provide coverage for "bodily injury,"
"property damage" and "personal and advertising injury" with coverage for
premises and operations (including the use of owned and non -owned
equipment), products and completed operations, and contractual liability
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(including, without limitation, indemnity obligations under the Agreement) with
limits of liability not less than those set forth under "Minimum Limits of
Insurance."
b. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance, or use of
automobiles in the course of your business operations. The Automobile Policy
shall be written on an occurrence form and shall provide coverage for all owned,
hired, and non -owned automobiles or other licensed vehicles (Code 1- Any Auto).
c. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
CONTRACTOR shall procure and maintain for the duration of the contract, and for 5
years thereafter, insurance with limits of liability not less than those set forth below.
However, insurance limits available to CITY, its officers, officials, employees, agents,
and volunteers as additional insureds, shall be the greater of the minimum limits
specified herein or the full limit of any insurance proceeds available to the named
insured:
1. COMMERCIAL GENERAL LIABILITY
a. $2,000,000 per occurrence for bodily injury and property damage;
b. $2,000,000 per occurrence for personal and advertising injury;
c. $4,000,000 aggregate for products and completed operations; and,
d. $4,000,000 general aggregate applying separately to the work performed under
the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation Insurance as required by the State of California with
statutory limits and EMPLOYER'S LIABILITY with limits of liability not less than:
a. $1,000,000 each accident for bodily injury;
b. $1,000,000 disease each employee; and,
c. $1,000,000 disease policy limit.
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4. BUILDERS RISK (Course of Construction) insurance in an amount equal to the
completed value of the project with no coinsurance penalty provisions. (Only required if
the project includes new construction of a building, or renovation of, or addition to, an
existing building.)
5. CONTRACTORS' POLLUTION LEGAL LIABILITY with coverage for bodily injury,
property damage or pollution clean-up costs that could result from of pollution condition,
both sudden and gradual. Including a discharge of pollutants brought to the work site, a
release of pre-existing pollutants at the site, or other pollution conditions with limits of
liability of not less than the following:
a. $1,000,000 per occurrence or claim; and,
b. $2,000,000 general aggregate per annual policy period.
In the event this Agreement involves the transportation of hazardous material,
either the Commercial Automobile policy or other appropriate insurance policy
shall be endorsed to include Transportation Pollution Liability insurance
covering materials to be transported by CONTRACTOR pursuant to the
Agreement.
UMBRELLA OR EXCESS INSURANCE
In the event CONTRACTOR purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form"
and afford no less coverage than the primary insurance policy(ies). In addition, such
Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-
contributory basis for the benefit of the CITY, its officers, officials, employees, agents,
and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
CONTRACTOR shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and CONTRACTOR shall also be responsible for
payment of any self -insured retentions. Any self -insured retentions must be declared on
the Certificate of Insurance, and approved by, the CITY'S Risk Manager or his/her
designee. At the option of the CITY'S Risk Manager or his/her designee, either:
The insurer shall reduce or eliminate such self -insured retentions as respects CITY,
its officers, officials, employees, agents, and volunteers; or
2. CONTRACTOR shall provide a financial guarantee, satisfactory to CITY'S Risk
Manager or his/her designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall CITY be
responsible for the payment of any deductibles or self -insured retentions.
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OTHER INSURANCE PROVISIONS/ENDORSEMENTS
All policies of insurance required herein shall be endorsed to provide that the
coverage shall not be cancelled, non -renewed, reduced in coverage or in limits
except after thirty (30) calendar days written notice has been given to CITY, except
ten (10) days for nonpayment of premium. CONTRACTOR is also responsible for
providing written notice to the CITY under the same terms and conditions. Upon
issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or
reduction in coverage or in limits, CONTRACTOR shall furnish CITY with a new
certificate and applicable endorsements for such policy(ies). In the event any policy
is due to expire during the work to be performed for CITY, CONTRACTOR shall
provide a new certificate, and applicable endorsements, evidencing renewal of such
policy not less than fifteen (15) calendar days prior to the expiration date of the
expiring policy.
2. The Commercial General, Pollution and Automobile Liability insurance policies shall
be written on an occurrence form.
3. The Commercial General, Pollution and Automobile Liability insurance policies shall
be endorsed to name City, its officers, officials, agents, employees, and volunteers
as an additional insured. CONTRACTOR shall establish additional insured status for
the City and for all ongoing and completed operations under both Commercial
General and Pollution Liability policies by use of ISO Forms or an executed
manuscript insurance company endorsement providing additional insured status.
The Commercial General endorsements must be as broad as that contained in ISO
Forms: GC 20 10 11 85 or both CG 20 10 & CG 2037.
4. The Commercial General, Pollution and Automobile Liability insurance shall contain,
or be endorsed to contain, that the CONTRACTORS' insurance shall be primary to
and require no contribution from the City. The Commercial General and Pollution
Liability policies are required to include primary and noncontributory coverage in
favor of the City for both the ongoing and completed operations coverage. These
coverages shall contain no special limitations on the scope of protection afforded to
City, its officers, officials, employees, agents, and volunteers. If CONTRACTOR
maintains higher limits of liability than the minimums shown above, City requires and
shall be entitled to coverage for the higher limits of liability maintained by
CONTRACTOR.
5. Should any of these policies provide that the defense costs are paid within the Limits
of Liability, thereby reducing the available limits by defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
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6. For any claims related to this Agreement, CONTRACTOR'S insurance coverage
shall be primary insurance with respect to the CITY, its officers, officials, agents,
employees, and volunteers. Any insurance or self-insurance maintained by the CITY,
its officers, officials, agents, employees, and volunteers shall be excess of the
CONTRACTOR'S insurance and shall not contribute with it.
7. The Workers' Compensation insurance policy shall contain, or be endorsed to
contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees,
and volunteers.
8. The Builder's Risk Insurance shall have the policy endorsed to provide the City of
Fresno to be named as a Loss Payee.
9. The Commercial General, Pollution and Automobile Liability insurance policies shall
contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers,
officials, agents, employees, and volunteers
PROVIDING OF DOCUMENTS - CONTRACTOR shall furnish CITY with all
certificate(s) and applicable endorsements effecting coverage required herein all
certificates and applicable endorsements are to be received and approved by the
CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement
and before work commences. All non- ISO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker. Upon request of CITY,
CONTRACTOR shall immediately furnish CITY with a complete copy of any insurance
policy required under this Agreement, including all endorsements, with said copy
certified by the underwriter to be a true and correct copy of the original policy. This
requirement shall survive expiration or termination of this Agreement. All subcontractors
working under the direction of CONTRACTOR shall also be required to provide all
documents noted herein.
CLAIMS -MADE POLICIES - If any coverage required is written on a claims -made
coverage form:
1. The retroactive date must be shown and must be before the effective date of the
Agreement or the commencement of work by CONTRACTOR.
2. Insurance must be maintained, and evidence of insurance must be provided for at
least five (5) years after completion of the work or termination of the Agreement,
whichever first occurs.
3. If coverage is canceled or non -renewed, and not replaced with another claims -made
policy form with a retroactive date prior to the effective date of the Agreement, or
work commencement date, CONTRACTOR must purchase "extended reporting"
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Attachment 5 — Insurance Requirements
period coverage for a minimum of five (5) years after completion of the work or
termination of the Agreement, whichever first occurs.
4. A copy of the claims reporting requirements must be submitted to CITY for review.
5. These requirements shall survive expiration or termination of the Agreement.
SUBCONTRACTORS - If CONTRACTOR subcontracts any or all of the services to be
performed under this Agreement, CONTRACTOR shall require, at the discretion of the
CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side
Agreement with the City to provide required indemnification and insurance protection.
Any required Side Agreement(s) and associated insurance documents for the
subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If
no Side Agreement is required, CONTRACTOR will be solely responsible for ensuring
that it's subcontractors maintain insurance coverage at levels no less than those
required by applicable law and is customary in the relevant industry.
PERFORMANCE AND PAYMENT BONDS
The Contractor shall provide two good and sufficient surety bonds from a corporate
surety admitted by the California Insurance Commissioner to do business in the State of
California, on forms as those provided by the City in these Specifications and approved
by the City.
The "Payment Bond" shall be for not less than 100% under $10M; 110% $10M and
over of the Contract price, to satisfy claims of material suppliers and of mechanics
and laborers employed by Contractor on the work. The bond shall be maintained by
the Contractor in full force and effect until the work is completed and accepted by the
City, and until all claims for materials and labor are paid, and shall otherwise comply
with Chapter 5, Title 3, Part 6, Division 4 of the California Civil Code.
2. The "Faithful Performance Bond" shall be for 100% under $10M; 110% $10M and
over of the Contract price to guarantee faithful performance of all work, within the
time prescribed, in a manner satisfactory to the City, and that all materials and
workmanship will be free from original or developed defects.
INDEMNIFICATION
To the furthest extent allowed by law including California Civil Code section 2782,
Contractor shall indemnify, hold harmless and defend City and each of its officers,
officials, employees, agents and volunteers from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in Contract, tort or strict liability,
including, but not limited to personal injury, death at any time and property damage)
incurred by City, Contractor or any other person, and from any and all claims, demands
and actions in law or equity (including attorney's fees and litigation expenses), arising or
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Attachment 5 — Insurance Requirements
alleged to have arisen directly or indirectly out of performance of this Contract.
Contractor's obligations under the preceding sentence shall apply regardless of whether
City or any of its officers, officials, employees, agents, or volunteers are passively
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active or sole negligence, or willful misconduct, of City or any of
its officers, officials, employees, agents or volunteers.
If Contractor should subcontract all or any portion of the work to be performed under
this Contract, Contractor shall require each subcontractor to indemnify, hold harmless
and defend City and each of its officers, officials, employees, agents, and volunteers in
accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract
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Attachment 6 — Prevailing Wage Rates
PREVAILING WAGE RATES
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Attachment 6 — Prevailing Wage Rates
Federal Prevailing Wage
Federal Prevailing Wages can be found in Attachment 11.
California State Prevailing Wage:
The link below is for details of prevailing wage rates:
iov/Public-Works/Prevailin -Wa e.html
Copies of the wage rates or specific wage rate determinations may be obtained from the
Contract Compliance Officer at City of Fresno, Department of Transportation/FAX, 2223
G Street, Fresno, California 93706, (559) 621-7433.
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Attachment 7 — Scope of Work
SCOPE OF WORK
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Attachment 7 — Scope of Work
PART 1 - OVERVIEW
1.01 INTRODUCTION
A. The City of Fresno's Department of Transportation/Fresno Area Express (hereafter
referred to as FAX), in addition to providing public transit services within the City's
boundaries, owns, operates and maintains a Compressed Natural Gas (CNG)
fueling facility which is located at 2223 G. Street, Fresno, CA 93706. The CNG
fueling facility supports the operation of over 120 transit buses, municipal fleet,
waste management fleet, and other private customers. On average FAX's CNG
fueling station dispenses 2.9 million therms and over 55,000 fueling events
annually into motor vehicles. As of March 2024, the equipment is being serviced
by Chart Industries.
B. The project will include the design and installation of new CNG equipment at the
site. A fast -fill dispenser system shall be designed and installed, which will fill
vehicles in 5-10 minutes. In addition, the project will involve the installation of all
equipment needed to operate those dispensers, including, but not limited to, CNG
compressors, gas dryers, dryer skids, CNG storage vessels, electrical equipment,
and several natural gas pipelines.
C. The City has budgeted $4 Million for this project. While the Proposer is encouraged
to include the required elements in the most effective and cost-efficient manner
possible, the Proposer shall note that the lowest -cost proposal will not necessarily
be selected.
D. The following list are the objectives of this project:
i. Provide turnkey engineering and construction services, including all
permitting, design, commissioning, and training activities.
ii. Upgrade CNG station to meet current and future demand.
iii. Upgrade CNG station in a manner that minimizes station shutdowns.
iv. Upgrade CNG station with equipment well known within the industry and
easy access to new parts.
v. Replace all compressors, dispensers, storage, electronics, and other
components as needed.
vi. Accommodate all types of CNG vehicles from passenger cars to Class 8
heavy-duty trucks.
vii. Complete upgrades in a fast and efficient manner.
1.02 CNG STATION EQUIPMENT
A. The following is a current list of equipment at the CNG fueling facility:
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Item
Compressor
Compressor
Dryer
Design -Build for CNG Station Upgrade
Attachment 7 — Scope of Work
Table 1: CNG Station Equipment
Qty i Description
2 Greenfield C3T210, 3 stage compressor skid.
The compressor is driven by a 300HP motor
and produces SCFM 1400 based on 150 psig
maximum inlet gas pressure. The compressor
is designed for 24/7 fueling.
1 IMW, 3 stage twin compressor skid. Each
compressor is driven by a 200 HP motor and
produces 724 SCFM based on 300 psig
maximum inlet gas pressure. The compressors
_ I are designed for 24/7 fueling.
1 XEBEC Dual tower dryer with manual
regeneration by-pass valve rated at 4000
SCFM based on 300 psig max pressure.
Model STR24NGX-3. Includes a Digital Dew
Point meter with sensor and alarm
Storage 6
Dispenser 1
Dispenser 3
Priority Panel 1
ASME certified storage vessel holding
approximately 10,500 SCF
Krus 3500 SCFM single hose, single buffer
line, CNG dispenser. 3600 psi filling pressures,
with one OPW CT5000 and one OPW CT1000
nozzle. Kraus KAF402 solenoid fill control.
Greenfield Model G1E-T121362 Ser. NO:
0101 Greenfield Model G2E-S.12.1.36.1.30.1
Ser. No: GE104 Greenfield Model G1 E-
T121362 Ser. No: 0102
IMW Priority Panel Model No: 3C-3D-1S For
time -fill and fast -fill fueling
ESD System 1 Emergency Shut Down
Gas Detection 1 Sierra Monitor Corporation Sentry IT
www.sierramonitor.com 408-262-6611
' Motor Control 3 The three units will be inclusive of 2 units that
Center (MCC) control the Greenfields compressors and the 1
unit that controls the IMW compressor.
B. Failing Equipment: The following is a list of equipment that has failed or
degraded:
Table 2: Failed or Degraded Equipment
Equipment Status
CNG Compressor 1 & 2 Degraded
CNG Compressor 5&6 Failed
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Priority Panel XX
Electronic Panel 1
Electronic Panel 2
Dryer
Disge
sers1,2,3,&4
C. Current Equipment Layout:
Compressor 5 &
Storage
Priority Panel
Electronic
Panel 1
De-fueler Compressor 3 &4
Degraded
Failed
Failed
Degraded
Degraded
-.� Dryer
6^ Compressor 1 &2
r
Electronic
ti
Panel
Dispenser
a
I,
— + Dispenser 2
... A6
1.03 ANTICIPATED WORK
! Dispenser 3
! r ■ .i
Dispenser4 ! !
r
I
A. Design & Engineering: The contractor will be responsible for producing all
project plans, which include but are not limited to civil plans (site plans,
foundation plans, etc.) and utility plans (natural gas piping plans, electrical
plans, etc.). The contractor shall collaborate with City staff in the development
of all plans.
B. Equipment Replacement: Per the finalized design and engineering plans, the
contractor will be responsible for the installation of all equipment, to include:
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Attachment 7 — Scope of Work
i. CNG Compressors
ii. Storage
iii. Dryers
iv. Dispensers
V. Gas detection
vi. Electrical components
vii. Motors
viii. Gas lines
1.04 CODES & STANDARDS
A. Equipment and assemblies shall comply with all relevant provisions of the
latest revisions of approved codes and standards and current industry
practices including the following:
i. American Petroleum Institute (API): API Recommended Practice 520 -
Sizing, Selection, and Installation of Pressure Relieving Devices in
Refineries.
ii. American Society of Mechanical Engineers (ASME):
(1) ASME Section Vill, Division I - Boiler and Pressure Vessel Code
— Pressure Vessels
(2) ASME Section V - Boiler and Pressure Vessel Code
Nondestructive Examination
(3) ASME Section IX - Boiler and Pressure Vessel Code - Welding
and Brazing Qualifications
(4) ASME 831.J - Chemical and Petroleum Plant Piping
(5) ASME BJ 1.1 - Power Piping
iii. American Welding Society (AWS)
iv. National Fire Protection Association (NFPA)
V. Occupational Safety and Health Administration (OSHA)
vi. California Building Code (CBC)
vii. California Fire Code (CFC)
viii. California Electrical Code (CEC)
ix. Department of Industrial Relations - California Code of Regulations (CCR):
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X. National Environmental Policy Act (NEPA)
A. California Environmental Quality Act (CEQA)
1.05 PERMITS & LICENSES
A. The Contractor shall solely be responsible for obtaining all project permits,
including those required by the City, Pacific Gas & Electric (PGE), and by any
other companies or agencies. Contractor shall perform all necessary work
needed to obtain the permits. This may include but is not limited to
determining the existing gas pressure, modifying and/or adding a power
supply and electrical system, preparing soils reports, and paying permit fees.
1.06 OWNERSHIP AND USE OF CONSTRUCTION DOCUMENTS
A. The Construction Documents, and all copies thereof, furnished to, or provided by,
the contractor are the property of the City. The City and the contractor explicitly
agree that all materials and documents developed in the performance of this
Contract are the property of the City. The City shall have unlimited rights, for the
benefit of the City, in all drawings, designs, specifications, notes and any other
documentation and other work developed in the performance of this Contract for
the Project, including the right to reuse details of the Design on any other City
work at no additional cost to the City. The contractor agrees to, and hereby does,
grant to the City a royalty free license to all such data that the contractor may
cover by copyright and to all designs as to which the contractor may assert any
right or establish any claim to under the patent or copyright laws. The contractor,
for a period up to five (5) years from the Date of Substantial Completion of the
Project, agrees to furnish and to provide access to the originals or copies of all
such materials immediately upon the written request of the City. Any use or reuse
by City of the Construction Documents on any project other than this Project
without employing the services of the contractor shall be at City's own risk with
respect to third parties. If the City uses or reuses the Construction Documents on
any project other than this Project, they shall remove the contractor's Design
Professional of Record's seal from the Construction Documents and hold
harmless contractor and its officers, directors, agents and employees from claims
arising out of the negligent use or re -use of the Construction Documents on such
other project. Contractor shall not be responsible or liable for any revisions to the
Construction Documents made by any party other than the contractor, a party for
which the contractor is legally responsible or liable, or anyone approved by the
contractor.
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Attachment 7 — Scope of Work
1.07 WARRANTY
A. The contractor shall supply a one-year warranty on all furnished equipment
covering all non -consumable parts and labor. The warranty shall be for a period
of one year from the date of final written acceptance of the equipment by the City.
PART 2 — DESIGN & ENGINEERING
2.01 SITE ASSESSMENT
A. The contractor shall perform a site assessment of the CNG station area to
assess equipment conditions and inform the design & engineering of the
project. The site assessment shall include at a minimum:
i. Condition assessment of CNG equipment.
ii. Condition assessment of gas lines.
iii. Condition assessment of valves and gauges.
iv. Condition assessment of electronics.
V. Condition assessment of foundations.
B. The site assessment may include:
i. Land survey
ii. Soil testing
iii. Electrical system check
iv. Equipment compatibility
V. Other relevant testing as a result of the site assessment
C. The contractor shall produce a site assessment report, which will be reviewed
by City staff for approval. The report will inform the design & engineering for
the CNG station upgrades.
2.02 DESIGN & ENGINEERING PLANS
A. The contractor shall prepare and submit all plans and specifications for City
review, including civil, structural, architectural, mechanical, electrical, and
instrumentation. The contractor must receive written acceptance of
conceptual plans, 50% design, 90% design, and 100% design. The contractor
must make themselves available to City staff to clarify any portion of the
design and engineering.
B. The contractor is responsible for submitting a project schedule for
construction.
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Attachment 7 — Scope of Work
C. The design and engineering must meet the objectives listed in part 1.01(D).
D. Design and engineering work will be prepared and stamped by a professional
engineer certified in the State of California.
2.03 QUALITY CONTROL/QUALITY ASSURANCE PLAN
A. The contractor must submit a Project (design -build) QA/QC Plan prior to
construction. The Plan must describe the responsible staff, procedures,
standards, review or hold points, requirements for inspection, testing,
documentation, and control of non-conformance.
2.04 SAFETY PLAN
A. The contractor must submit a safety plan that that includes, but is not limited to:
i. Listing personal protective equipment (PPE) that workers should use
while on the job site.
ii. Construction site rules and regulations.
iii. Listing of employee roles and responsibilities.
iv. Operating procedures and safety precautions.
V. Consideration of extreme weather conditions.
vi. Emergency contact information.
vii. Reporting instructions and procedures.
viii. Procedures for identify hazards and forming protocols.
ix. Applicability to subcontractors.
B. The Safety Plan must be reviewed and approved by FAX's Safety and Security
Officer prior to the commencement of construction.
PART 3 — CONSTRUCTION
3.01 The contractor shall be responsible for furnishing all necessary materials and
equipment for construction (e.g., power supply, portable toilets, trailers, traffic cones,
cranes, etc.), preparing specifications for subcontractors; submittal review, inspection,
storage, delivery, and installation.
3.02 The contractor is responsible for preparing site for construction, which may
include removal of existing asphalt, concrete, walls and debris for the site to be properly
graded for drainage and have a suitable base for construction, per the design plans.
3.03 The contractor is responsible for the removal and proper disposal of all
construction waste.
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Attachment 7 — Scope of Work
3.04 The contractor shall provide a certification statement that all equipment has been
installed in accordance with the design specifications and that the CNG fueling facility is
constructed in conformance with all applicable codes.
3.05 The contractor is responsible for restoring the site after completion of
construction.
3.06 The contractor is responsible for all dust control, traffic control, safety perimeters,
and other like activities.
PART 4 — COMMISSIONING & TRAINING
4.01 COMMISSIONING
A. The contractor shall be responsible for thoroughly testing equipment and
safety devices in accordance with the manufacturer's instructions. The test
may include, but is not limited to:
i. Run -test for proper operation including calibrating all instrumentation
ii. Test the ESD system
iii. Test compressor control panels and shutdowns.
iv. Test dryer system.
V. Test dispensing systems.
vi. Testing for gas leaks throughout the system
vii. Any discrepancies in the equipment found as a result of these
inspections and tests shall be corrected by the Supplier at no cost to
the City (including the cost for making the corrections and repeating
the tests within two (2) weeks).
B. Acceptance by the City's Representative of the fueling station and associated
items furnished by the contractor under this specification shall occur only after
the following requirements have been met:
It has been demonstrated to the satisfaction of the City's Representative
that the fueling station, meets and conforms to the requirements of the
specification and drawings.
ii. All testing required by this specification have been successfully completed
and have been accepted by the City's Representative.
4.02 TRAINING
A. All product data and related information appropriate for City's maintenance and
operation of all products and systems provided under this Contract shall be
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Attachment 7 — Scope of Work
compiled into an integrated operating and maintenance manual. A minimum of
one hard copy and one digital copy shall be provided to the City prior to
acceptance.
B. The contractor shall provide an informal training class in station operation,
service, and maintenance while on -site. The Supplier shall instruct the City's
designated operating and maintenance personnel in the correct and safe
operation, adjustment, and maintenance of all equipment and systems. The basis
of instruction shall be the station operating and maintenance manual.
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Attachment 8 — Project Budget
PROJECT BUDGET
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Attachment 8 — Project Budget
Cost for design and construction will be broken up into three phases and agreed upon
by both parties. Both parties agree to work collaboratively and work in good faith to
agree to cost in accordance with FTA Circular 4220.1 F and 2 CFR 200.324, which
requires a price or cost analysis in connection with every procurement action. The
project cost and budget will be achieved as follows:
Activity
Site Assessment
Design
Construction
uOM
Lump Sum
Lump Sum
Lump Sum
Costs
$99,900.00
*To be negotiated after the completion
of the Site Assessment and in
accordance with FTA Circular 4220.1 F
and 2 CFR 200.324.
*To be negotiated after the completion
of the Design and in accordance with
FTA Circular 4220.1 F and 2 CFR
200.324.
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Attachment 9 — Standard Specifications
STANDARD SPECIFICATIONS
Please refer to City of Fresno Standard Specifications and
Drawings Updated May 2024 and as Amended thereafter
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Attachment 9 — Standard Specifications
STANDARD SPECIFICATIONS
The City of Fresno Standard Specifications and Drawings, Department of Public Works,
dated February 2016 and as amended from time -to -time, are hereby referred to and
incorporated herein as though set forth in full. It is recommended that bidders obtain the
most current issue of these Specifications.
The Standard Specifications are available on the City of Fresno's website
(www.fresno.gov) by clicking on Public Works Department and checking Department
Technical Library.
If you do not have access to the Internet, copies of the Standard Specifications with
Standard Drawings may be obtained for $40 at City Hall, Public Works Counter, Room
4064N, 2600 Fresno Street, Fresno CA93721- 3623, Telephone (559) 621-8800. (If
mailed, a mailing charge of $6.00 per book will be required.)
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CERTIFICATIONS
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Attachment 10 — Certifications
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Attachment 10 — Certifications
PROPOSER'S NAME:
(Submit with Proposal)
DISADVANTAGED BUSINESS ENTERPRISES (DBE) LISTING
Bidders are advised that, as required by federal law, the City is required to report to the Federal Transit
Administration on DBE participation for all Federally aided contracts each year so the attainment efforts may be
evaluated.
The proposal will be considered non -responsive if this form is not fully completed.
Complete all information below (whether DBE or not) and list all Subcontractor information including, without
limitation, DBE's that will perform any portion of the work or provide any products for this project, even if the
dollar amount of the work the DBE will perform is less than one half ('/2) of one percent (1 %) of the total bid
amount.
Prime Contractor:
Name:
Address:
City: State: Zip Code:
Check one: ❑ DBE or ❑ Non -DBE
Race of firm's majority owner:
Gender of firm's majority owner:
NAICS code(s) (applicable to each scope of work the firm seeks to perform in its bid): ❑ Check if N/A
Age of firm:
Annual Gross: ❑ less than $1 million ❑ $1-3 million ❑ $3-6 million ❑ $6-10 million ❑ over $10 million
Subcontractors: ❑ Check as N/A if a subcontractor(s) will not be used
Name -
Address:
City: State: Zip Code:
Check one: ❑ DBE or ❑ Non -DBE
Race of firm's majority owner:
Gender of firm's majority owner:
NAICS code(s) (applicable to each scope of work the firm seeks to perform in its bid)
❑ Check if N/A
Age of firm:
Annual Gross: ❑ less than $1 million ❑ $1-3 million ❑ $3-6 million ❑ $6-10 million ❑ over $10 million
Name:
Address:
City: State: Zip Code:
Check one: ❑ DBE or ❑ Non -DBE
Race of firm's majority owner:
Gender of firm's majority owner:
NAICS code(s) (applicable to each scope of work the firm seeks to perform in its bid): ❑ Check if N/A
Age of firm:
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Attachment 10 — Certifications
Annual Gross: ❑ less than $1 million ❑ $1-3 million ❑ $3-6 million ❑ $6-10 million ❑ over $10 million
NOTE: Use additional sheets of paper if necessary Revised 6/11/24
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Attachment 10 — Certifications
PROPOSER'S NAME:
DEBARMENT AND SUSPENSION CERTIFICATION
Contractor and all subcontractors shall meet debarment,
exclusion requirements pursuant to Executive Order 12549.
Specifications. A list of excluded parties may be
https://sam.gov/content/home
Contractor shall return with its Proposal this form.
(Submit with Proposal)
suspension, ineligibility, and voluntary
See Federal Requirements, of these
found at the following website:
Note: Providing false information may result in criminal prosecution or administrative sanctions.
The above certification is part of the Proposal. Signing this Proposal on the
signature portion thereof shall also constitute signature of this Certification.
Date
Signature
Company Name
Title
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Attachment 10 — Certifications
PROPOSER'S NAME:
(Submit with Proposal)
NONLOBBYING CERTIFICATION
LOBBY RESTRICTIONS
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned,
to any person for influencing or attempting to influence an officer or employee of an agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal contract, the making of any Federal grant,
the making of any Federal loan, the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person
for influencing or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance
with its instructions.
3. The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file
the required certification shall be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature of Contractor's Authorized Official
Name and Title of Contractor's Authorized Official
Date
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Bid Proposal)
Federal Tax Liability and Recent Felony Convictions Certification
FTA Master Agreement Section 4(g)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that they and their
organization:
1. Does not have any unpaid Federal tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely
manner pursuant to an agreement with the authority responsible for collecting the tax liability; and
2. Was not convicted of felony criminal violation under any Federal law within the preceding 24
months.
The Contractor agrees to flow this requirement down to participants at all lower tiers, without regard to
the value of any sub -agreement.
Date
Signature
Company Name
Title
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PROPOSER'S NAME
Design -Build for CNG Station Upgrade
Attachment 10 — Certifications
(Submit with Bid Proposal)
BUILD AMERICA BUY AMERICA CERTIFICATION
Pub. L. 117-58, div. G, tit. IX, §§ 70911 — 70927 & 2 CFR 184,
Build America, Buy America Act
A bidder or offeror must submit the appropriate Build America Buy America certification (below) with all
bids or offers on federally funded contracts, except those subject to a general waiver.
Certificate of Compliance with Pub. L. 117-58 div. G tit. IX §§ 70911 — 70927 & 2 CFR 184
The bidder or offeror hereby certifies that it will comply with the requirements of Public Law 117-58 and
2 CFR 184.
Date
Signature
Company Name
Title
OR
Certificate of Non -Compliance with Pub. L. 117-58, div. G, tit. IX, 70911 — 70927 & 2 CFR 184
The bidder or offeror hereby certifies that it cannot comply with the requirements of Public Law 117-58
& 2 CFR 184, but it may qualify for an exception to the requirement pursuant to Public Law 117-58 & 2
CFR 184.
Date
Signature
Company Name
Title
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Bid Proposal)
BUY AMERICA CERTIFICATION
49 C.F.R. § 661.6, for the Procurement of Steel, Iron, or Manufactured Products
A bidder or offeror must submit the appropriate Buy America certification (below) with all bids or offers
on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not
accompanied by a completed Buy America certification must be rejected as nonresponsive.
Certificate of Compliance with 49 U.S.C. 5323 ' 1
The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 53230)(1),
and the applicable regulations in 49 C.F.R. part 661.
Date
Signature
Company Name
Title
Certificate of Non -Compliance with 49 U.S.C. 5323 ' 1
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230),
but it may qualify for an exception to the requirement pursuant to 49 U.S.C. 53230)(2), as amended,
and the applicable regulations in 49 C.F.R. § 661.7.
Date
Signature
Company Name
Title
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Attachment 10 — Certifications
(Submit with Proposal)
Initial
CITY OF FRESNO
FINANCE DEPARTMENT
ACCOUNTS PAYABLE SECTION
AUTHORIZATION AGREEMENT FOR DIRECT PAYMENTS (ACH CREDITS)
Company
Name
Contact Name
Contact Email
Address
Telephone Number
(Required)
The City of Fresno, Finance Department, (FINANCE DEPARTMENT), is authorized to initiate credit
entries to the company above, (COMPANY), in the account below at the depository financial
institution named below, (DEPOSITORY), and to credit the same account. Company acknowledges
that the origination of ACH transactions to its account must comply with the provisions of U.S. law.
Depository
Name
City
Routing
Number
Branch
State
Account
Number
Zip Code
O ACH Authorization Agreement Form already on file with City.
This authorization is to remain in the full force and affect until FINANCE DEPARTMENT has
received written notification of its termination. The FINANCE DEPARTMENT and DEPOSITORY
have a reasonable time to process the termination.
Name(s
Signature
Title
(Please Print)
Date
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Proposal)
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Attachment 10 — Certifications
DISCLOSURE OF CONFLICT OF INTEREST
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of
❑
❑
its agents?
2
Do you represent any firm, organization, or person who is in
❑
❑
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who
❑
❑
do business with the City of Fresno?
4
Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with
❑
❑
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5
Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee
❑
❑
who has any significant role in the subject matter of this
service?
6
Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
❑
❑
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
E Additional page(s) attached.
Signature
Date
Name
Company
Address
City, State, Zip
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Proposal)
NONCOLLUSION AFFIDAVIT
In accordance with Title 23 United States Code, Section 112 and Public Contract Code, Section 7106,
the Bidder declares under penalty of perjury under the laws of the State of California that the bid is not
made in the interest of, or on behalf of, any undisclosed person, partnership, company, association,
organization, or corporation; that the bid is genuine and not collusive or sham; that the Bidder has not
directly or indirectly induced or solicited any other Bidder to put in a false or sham bid, and has not
directly or indirectly colluded, conspired, connived, or agreed with any Bidder or anyone else to put in
a sham bid, or that anyone shall refrain from bidding; that the Bidder has not in any manner, directly or
indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the
Bidder or any other Bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of
any other Bidder, or to secure any advantage against the City of anyone interested in the proposed
Contract; that all statements contained in the Bid Proposal are true; and, further, that the Bidder has
not, directly or indirectly, submitted his/her bid price or any breakdown thereof, or the contents thereof,
or divulged information or date relative thereto, or paid, and will not pay, any fee to any corporation,
partnership, company association, organization, bid depository, or to any member or agent thereof to
effectuate a collusive or sham bid.
The above Noncollusion Affidavit is part of the Bid Proposal. Signing this Bid Proposal
on the signature page thereof shall also constitute signature of this Noncollusion
Affidavit. Bidders are cautioned that making a false declaration may subject the certifier to
criminal prosecution.
This affidavit is to be filled out and executed by the Bidder; if a corporation makes the bid, then by its
properly executed agent. The name of the individual swearing to the affidavit should appear on the line
marked "Name of Affiant." The affiant's capacity, when a partner or officer of a corporation, should be
inserted on the line marked "Capacity." The representative of the Bidder should sign his or her individual
name at the end, not a partnership or corporation name, and swear to this affidavit before a notary
public, who must attach his or her seal.
(Continued)
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Attachment 10 - Certifications
PROPOSER'S NAME
County of
(Name of Affiant) being first duly sworn, do hereby state that
(Submit with Proposal)
I am of
(Capacity) (Name of Firm, Partnership or Corporation)
whose business is
and who resides at
and that
(Give names of all persons, firms, or corporations interested in the bid)
is/are the only person(s) with me in the profits of the herein contained Contract; that the Contract is made without
any connection or interest in the profits thereof with any persons making any bid or Bid for said Work; that the said
Contract is on my part, in all respects, fair and without collusion or fraud, and also that no members of the Board of
Trustees, head of any department or bureau, or employee therein, or any employee of the City, is directly or indirectly
interested therein.
Signature of Affiant
Sworn to before me this day of
Notary public My commission expires
Date
20,_
- Seal
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Proposal)
EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION
The Bidder hereby certifies under penalty of perjury under the laws of the state of California that he/she
has , has not , participated in a previous contract or subcontract subject to the equal
opportunity clauses, as required by Executive Orders 10925, 11114, or 11246, and that, where
required, he/she has filed with the Joint Reporting Committee, the Director of the Office of Federal
Contract Compliance, a Federal Government contracting or administering agency, or the former
President's Committee on Equal Employment Opportunity, all reports due under the applicable filing
requirements.
Note: The below certification is required by the Equal Employment Opportunity Regulations of the
Secretary of Labor (41 CFR 60-1.7(b) (1)), and must be submitted by bidders and proposed
subcontractors only in connection with contracts and subcontracts which are subject to the
equal opportunity clause. Contracts and subcontracts which are exempt from the equal
opportunity clause are set forth in 41 CFR 60-1.5. (Generally only contracts or subcontracts of
$10,000 or under are exempt.)
Currently, Standard Form 100 (EEO-1) is the only report required by the Executive Orders or
their implementing regulations.
Proposed prime contractors and subcontractors who have participated in a previous contract or
subcontract subject to the Executive Orders and have not filed the required reports should note
that 41 CFR 60-1.7(b) (1) prevents the award of contracts and subcontracts unless such
contractor submits a report covering the delinquent period or such other period specified by the
Federal Highway Administration or by the Director, Office of Federal Contract Compliance, U.S.
Department of Labor.
The below Equal Employment Opportunity Certification is part of the Bid
Proposal. Signing this Bid Proposal on the signature page thereof shall also
constitute signature of this Equal Employment Opportunity Certification.
Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.
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Job of File No._
Name or Title of
Department No.
Job -
Design -Build for CNG Station Upgrade
Attachment 10 —Certifications
Cq of
r`y'fC V ,
1. Name and Address of Contractor PRIME [ ] SUB[ ]
Yes No
2. Have you established a company -wide employment policy to assure that equal employment opportunity is given to all
persons without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation or on any other basis prohibited by law?
3. Have you notified all supervisors, foreman and other personnel officers in writing of the contents of the anti -discrimination
clause and their responsibilities under it?
4. Have notices setting forth the provisions of the Fair Employment Practice Section used in City of Fresno Contracts been
posted in conspicuous places available to employees and applicants for employment on this Project?
5. Have each of the Company's employee referrals including unions, employment agencies, advertisements, Department of
Employment, etc, been notified of the contents of the anti -discrimination clause?
5a. Has this been done in writing?
6. Has each employee referral advised the Company that it will refer all qualified applicants for employment to the Company
without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation or on any other basis prohibited by law?
7. Has a collective bargaining agreement or other contract or understanding been made with a labor union (or unions) which
covers the performance of any work or supplying of any materials under this Contract?
7a. Do you operate under an Association Master Labor Agreement?
If your answer is "yes", state the name of the Association.
Are copies of those agreements on file with the City? [ ] Yes [ ] No With whom?
7b. If you do not operate under an Association Master Labor Agreement then indicate what steps you have taken to attempt to develop an
agreement which will:
(1) Spell out responsibilities for nondiscrimination in hiring, referral, upgrading and training.
(2) Otherwise implement an affirmative anti -discrimination program in terms of the unions' specific area of skill and geography, to the end that
qualified minority workers will be available and given an equal opportunity for employment.
In addition, if you have reached such an agreement, attach a copy of the provisions thereof which bear on (1) and (2) above.
8. Have you encountered any opposition to the anti -discrimination clause by individuals, firms or organizations?
If your answer to No. 8 is "Yes", identify the individual, firm or organization and briefly describe the nature of the opposition.
9. Check principal sources DEPT OF EMP. EMP. AGENCIES DIRECT HIRING UNION OTHER
for employee referrals.
a. Const. Workers
b. Other Workers
10. The following person or persons are responsible for determining whom to hire or whether or not to hire workers on this particular Project:
QUESTIONS 11 THROUGH 13 TO BE FILLED OUT BY PRIME CONTRACTOR ONLY:
11. Have you awarded any subcontracts for work covered by your Contract?
12. Have the anti -discrimination provisions been included in each of said subcontracts?
13. Have all such Subcontractors been instructed to file compliance reports and have they been furnished with report forms?
14. Dated this day of 20_, at
(City and State)
15. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct.
(Contractor)
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Proposal)
FAIR EMPLOYMENT PRACTICES COMPLIANCE REPORT
(continued)
INSTRUCTIONS TO CONTRACTORS
This Compliance Report is required by the Fair Employment Practices provisions of City of Fresno Contracts for the
supplying of work, materials, or both.
This report is to be completed in its entirety for each prime Contract and all first tier subcontracts. The reports shall
be submitted to the City after award of the Contract and prior to Notice to Proceed.
Additional sheets of paper may be attached if necessary to submit explanations or further information.
If the answers to any of the questions indicate non-compliance with the anti -discrimination provision of the Contract,
a brief explanation of such answer must accompany the report.
It shall be the further responsibility of the Contractor to keep the information contained in the compliance report
current and should there be changes in the Contractor's agreements with employee referrals, including unions or in the
individuals responsible for hiring, etc., which would change the answers submitted by the Contractor in his/her original
questionnaire, the Contractor should file a supplementary report containing revised answers to the applicable questions.
Such changes from the original report are to be submitted in duplicate.
Upon completion of the Contract the Contractor must submit a final statement of compliance including statements
that the original compliance report was submitted, that any changes in the original report were reported, and that the
requirements of the Fair Employment Practices section were complied with during the Contract. If such a statement cannot
be submitted in its entirety, a statement along the same lines with the exceptions noted must be submitted.
The City may require submission of additional information or reports on compliance at any time.
FINAL STATEMENT OF FAIR EMPLOYMENT PRACTICES COMPLIANCE
Name of Job or Contract
The undersigned is responsible to see that the Contractor has complied with the Fair Employment Practices section of the
City of Fresno Contract indicated above. The original compliance report was submitted and no changes or additions to the
original report became known to the Contractor or the undersigned except as noted below. The Contractor, in performance
of the Contract, to the best of my knowledge, complied with said section of the Contract, except as noted below.
Dated this day of
Changes or additions to the original compliance report
Deviations from compliance
20 at
City and State
City
By
Title
Contractor
By
Title
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Attachment 10 — Certifications
CITY OF FRESNO
PAYMENT BOND
PUBLIC WORK
KNOW ALL MEN BY THESE PRESENTS: That [NAME OF CONTRACTOR]
as Principal (herein called 'Principal') and
as Surety (herein called 'Surety') are held and firmly bound onto the City of Fresno (herein called 'Obligee') in the just and full sum of
[WRITTEN $ AMOUNT] DOLLARS AND [WRITTEN CENTS AMOUNT] CENTS ($[DOLLAR AMOUNT])
lawful money of the United States of America (said sum being equal to 100 percent of the estimated amount payable by the terms of the hereinafter
described contract), for the payment of which, well and truly to be made, we hereby bind ourselves and ours, and each of our, heirs, executors,
administrators, successors, and assigns, jointly and severally firmly by these presents.
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That
WHEREAS, Principal has been awarded a contract for the following described work of improvement and is required by Obligee to give
this bond in connection with the execution of the written contract therefor (insert brief description of work of improvement):
[TITLE AND WORK]
(Bid File No. [BID FILE NO.]) [ALTERNATES (if any)]
NOW, THEREFORE, if Principal or subcontractors of Principal shall fail to pay any of the persons named in the Section 9100 of the
Civil Code, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or prevailing
wages due and penalties incurred pursuant to Sections 1774, 1775, 1813, or 1815 of the Labor Code, or for any amounts required to be deducted,
withheld, and paid over to the Employment Development Department from the wages of employees of the Prinicipal and subcontractors pursuant
to Section 13020 of the Unemployment Insurance Code, with respect to the work and labor, the Surety will pay for the same, in an amount not
exceeding the sum specified above, and also, in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and
reasonable expenses and fees, including reasonable attorney's fees, incurred by Obligee in successfully enforcing this obligation, to be awarded
and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.. The benefit of this bond shall inure to any
of the persons named in Section 9100 of the Civil Code so as to give the right of action to those persons or their assigns in any suit brought upon
this bond.
Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in
full force and effect.
No extension of time granted to the Principal and no change, alteration or addition in any of the terms of the contract or any of the
contract documents or the work to be performed thereunder, whether made after notice or not, shall release or otherwise affect the obligations of
the Surety hereunder, and the Surety waives notice of any such extension, change, alteration or addition. The Surety, by the execution of this
bond, represents and warrants that this bond has also been duly executed by the Principal and proper authority, and the Surety hereby waives
any defense which it might have by reason of any failure of the Principal to execute or properly execute this bond.
In witness whereof, this instrument has been duly executed by the Principal and Surety above named, on the _ day of , 20_
[NAME OF CONTRACTOR]
PRINCIPAL SURETY
No signature of City Attorney required. APPROVED:
Standard Document #IDPw 32.0 has been used City Manager, or his/her designee
without modification, as certified by the undersigned.
By: By:
Title: Title: _
Department of Public Works
Date:
DPW 32.0112-20-12
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Attachment 10 — Certifications
CITY OF FRESNO
PERFORMANCE BOND
PUBLIC WORK
KNOW ALL MEN BY THESE PRESENTS: That [NAME OF CONTRACTOR]
as Principal (herein called 'Principal') and
as Surety (herein called 'Surety') are held and firmly bound onto the City of Fresno (herein called 'Obligee') in the just and full sum of
[WRITTEN $ AMOUNT] DOLLARS AND [WRITTEN CENTS AMOUNT] CENTS ($[DOLLAR AMOUNT])
lawful money of the United States of America (said sum being equal to 100 percent of the estimated amount payable by the terms of the hereinafter
described contract), for the payment of which, well and truly to be made, we hereby bind ourselves and ours, and each of our, heirs, executors,
administrators, successors, and assigns, jointly and severally firmly by these presents.
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That
WHEREAS, Principal has been awarded a contract for the Following described work of improvement and is required by Obligee to give
this bond in connection with the execution of the written contract therefor (insert brief description of work of improvement):
[TITLE AND WORK]
(Bid File No. [BID FILE NO.]) [ALTERNATES (if any)]
NOW, THEREFORE, if Principal shall well and truly do and perform each and all of the covenants, conditions, and agreements of said
contract on the Principal's part to be done and performed, and any and all alterations thereof made as therein provided, at the time and in the
manner therein specified, and shall indemnify and save harmless the Obligee, its officers, officials, agents, employees and volunteers, as therein
stipulated, then this obligation shall be null and void; otherwise, it shall remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and
reasonable expenses and fees, including reasonable attorney's fees, incurred by Obligee in successfully enforcing such obligation, all to be taxed
as costs and included in any judgment rendered.
No extension of time granted to the Principal and no change, alteration or addition in any of the terms of the contract or any of the
contract documents or the work to he performed thereunder, whether made after notice or not, shall release or otherwise affect the obligations of
the Surety hereunder, and the Surety waives notice of any such extension, change, alteration or addition. The Surety, by the execution of this
bond, represents and warrants that this bond has also been duly executed by the Principal and proper authority, and the Surety hereby waives
any defense which it might have by reason of any failure of the Principal to execute or properly execute this bond.
In witness whereof, this instrument has been duly executed by the Principal and Surety above named, on the _ day of , 20_
[NAME OF CONTRACTOR]
PRINCIPAL
No signature of City Attorney required.
Standard Document #DPW 22.0 has been used
without modification, as certified by the undersigned.
By:
Department of Public Works
DPW 22.0/03-31-11
APPROVED:
City Manager, or his/her designee
By:
Title:
Date:
SURETY
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Attachment 10 — Certifications
PROPOSER'S NAME
(Submit with Proposal)
PLAAGREEMENT TO BE BOUND
[Date]
[Addressee]
[Address]
Re: City of Fresno Community Workforce Agreement
Agreement to be Bound
Dear:
The undersigned confirms that it agrees to be a party to and bound by the City of Fresno Community
Workforce Agreement ("Agreement") as such Agreement may, from time to time, be amended by the
parties or interpreted pursuant to its terms.
By executing this Agreement to be Bound, the undersigned subscribes to, adopts and agrees to be
bound by the written terms of the legally established trust fund documents as set forth in Section 10.1
of the Agreement, as they may from time to time be amended, specifying the detailed basis upon which
contributions are to be made into, and benefits made out of, such trust funds, and ratifies and accepts
the trustees appointed by the parties to such trust funds. The undersigned agrees to execute a separate
subscription agreement(s) for such trust funds when such trust fund(s) require(s) such document(s).
The obligation to be a party to and bound by the Agreement shall extend to all work covered by the
Agreement undertaken by the undersigned. The undersigned shall require all of its subcontractors, of
whatever tier, to become similarly bound for all their work within the scope of the Agreement by signing
an identical Agreement to be Bound.
This letter shall constitute a subscription agreement, to the extent of the terms of the letter.
CONTRACTOR/SUBCONTRACTOR:
California Contractor State License No. or Motor Carrier (CA) Permit No.:
Name of Authorized Person (Print):
Signature of Authorized Person:
Title of Authorized Person: Telephone Number of Authorized Person:
Address of Authorized Person
State Public Works Registration Number
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