MASTER_LABOR_&_MATERIALS_CONTRACT_WITH_EXHIBIT_12-G_ATTACHED.pdf

Master Labor & Materials Contract

R3AZO7J30DADS2

Rev. 12-29-21

LABOR AND MATERIALS CONTRACT NO.

THIS CONTRACT is made between the CITY OF PASADENA ("City"), a municipal corporation, and _______________________, a California [or other state] corporation [or partnership or business or sole proprietorship or other business form] with headquarters at _____________________________________________

("Contractor").

The City and Contractor agree as follows:

1.0 Contractor shall furnish all necessary and incidental labor, material, equipment, transportation and services as described in, and strictly in accordance with, and subject to all terms and conditions set forth in Specifications No. _______ for

_______________________ (“Exhibit A”), and Contractor's “Bidder’s Proposal” to the

City dated_______________, 20__ (“Exhibit B”), both of which are attached hereto and incorporated by reference herein (the “Project”).

2.0 All work shall be done in a manner satisfactory to the [Title of Department Head] or Designee and shall be of workmanlike quality.

3.0 Contractor shall commence work upon the issuance [or receipt] of a

Notice to Proceed and shall perform work requested in writing by the [Title of Department Head] or Designee.

[Alternative provision: 3.0 Contractor shall commence work upon the City’s execution of this Contract [or within ____calendar days after the City’s execution of this Contract].

4.0 The term of the Contract shall be [_____ (__) years]/[____ working days] from the date of execution by the City, or until the amount in section 4.1 below has been expended, whichever occurs first. [This Contract may be extended for [number] additional __-year period(s) for an amount not to exceed $___________, as provided in Section ____ of Exhibit A, subject to approval by the City Manager.]

4.1 In consideration of satisfactory and timely performance of the work hereunder, the City shall pay Contractor no more than the base Contract amount of

_____________________________ ($ _________), in accordance with Section

_______ [Payments or Partial Payments] of Exhibit A, except as expressly provided in section 4.2 below.

4.2 Contractor’s total compensation, including change orders, shall not exceed $_______________, without prior authorization of the City Council.

5.0 Concurrently with the execution of this Contract, Contractor shall furnish bonds of a surety satisfactory to the City, as provided in the specifications and Notice

Inviting Bids. The cost of the bonds shall be paid by Contractor.

6.0 CHANGE ORDERS

6.1 [First alternative provisions] No payment for additional work caused by a change in scope of work or complexity of work, or for any other reason, shall be made unless and until such additional work and a price therefor have been previously authorized in writing and approved by City as a written change order. The change order shall set forth the specific changes of work and extension of time for preparation and adjustment of the fee to be paid by City to Contractor.

6.2 The __________________________ [Title of Department Head] shall have the authority to approve all change orders not to exceed the aggregate sum of $ _________________. Any change order in excess of this aggregate sum must be approved in advance by the City Council. No claim for said additional work shall be made unless specifically authorized in writing by City.

[Second alternative provision] There is no change order authority provided in this Contract.

7.0 GENERAL TERMS AND CONDITIONS.

7.1 INDEPENDENT CONTRACTOR.

7.1.1 It is understood that in the performance of the work herein provided for, Contractor shall be, and is, an independent contractor, and is not an agent or employee of City and shall furnish such services in its own manner and method except as required by this Contract. Further, Contractor has and shall retain the right to exercise full control over the employment, direction, compensation and discharge of all persons employed by Contractor in the performance of the work hereunder. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.

7.1.2 Contractor acknowledges that Contractor and any

subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of the City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers’ compensation insurance benefits.

7.1.3 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 the Project unless currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5. It is not a violation of Labor Code Section 1771.1 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.

7.1.4 This Project is subject to compliance monitoring and

enforcement by the Department of Industrial Relations.

7.1.5 Contractor must post job site notices prescribed by

regulation (See e.g. 8 Cal. Code Reg. Section 16451(d).

7.1.6 Contractors and Subcontractors must furnish electronic

certified payroll records directly to the California Labor Commissioner (aka Division of

Labor Standards Enforcement).

7.2 PREVAILING WAGE. Contractor shall comply with the state

prevailing wage law, California Labor Code Section 1720 et seq. and 8 CCR Section

16000 et seq., as necessary, for any “public work” (as that term is defined by statute) performed pursuant to this Contract. For purposes of compliance with prevailing wage law, Contractor shall comply with the provisions applicable to the contractor under 8

CCR Section 16000(b). Compliance with state prevailing wage law includes, without limitation, payment of at least prevailing rates as determined by the Director of Industrial

Relations, overtime, and working hour requirements, apprenticeship obligations, payroll record-keeping requirements, and other obligations required by law. Pursuant to

California Labor Code Section 1775, Contractor shall forfeit as a penalty to the City the sum of not more than Two Hundred Dollars ($200) as determined by the Labor

Commission, for each calendar day, or portion thereof, for each such worker paid less than the prevailing wage rates by Contractor or by any subcontractor in addition to penalties provided for in sections 1770-1782 of the California Labor Code.

7.3 PASADENA LIVING WAGE. Contractor shall not knowingly pay

less than the Living Wage as that term is defined in the Pasadena Living Wage

Ordinance, Pasadena Municipal Code, Chapter 4.11. If there is a difference between the State minimum wage rates and the Pasadena Living Wage, the Contractor and his subcontractors shall pay not less than the higher wage rate.

7.4 CONTRACTOR NOT AGENT. Except as the City may authorize in writing, Contractor and its subcontractors shall have no authority, express or implied, to act on behalf of or bind the City in any capacity whatsoever as agents or otherwise.

7.5 OWNERSHIP OF WORK. All reports, drawings, plans, specifications, computer tapes, computer drives, disks, compact discs, tapes, digital files, and printouts, studies, memoranda, computation sheets and other documents

(whether on paper or stored in any electronic/digital form) prepared by Contractor in furtherance of the work shall be the sole property of City and shall be delivered to City whenever requested. Contractor shall keep such documents and materials on file and available for audit by the City for at least three (3) years after completion or earlier termination of this Contract. Contractor may make duplicate copies of such materials and documents for its own files or for such other purposes as may be authorized in writing by the City.

7.6 CORRECTION OF WORK. Contractor shall promptly correct any defective, inaccurate or incomplete tasks, deliverables, goods, services and other work, without additional cost to the City. The performance or acceptance of work performed by Contractor shall not relieve the Contractor from the obligation to correct subsequently discovered defects, inaccuracy or incompleteness.

7.7 WAIVER. The City's waiver of any term, condition, breach or default of this Contract shall not be considered to be a waiver of any other term, condition, default or breach, nor of a subsequent breach of the one waived.

7.8 SUCCESSORS. This Contract shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective heirs, successors and/or assigns.

7.9 NO ASSIGNMENT. Contractor shall not assign or transfer this

Contract or any rights hereunder without the prior written consent of the City and approval by the City Attorney, which may be withheld in the City's sole discretion. Any unauthorized assignment or transfer shall be null and void and shall constitute a material breach by the Contractor of its obligations under this Contract. No assignment shall release the original parties or otherwise constitute a novation.

7.10 COMPLIANCE WITH LAWS. Contractor shall comply with all

federal, State, County and City laws, ordinances, rules and regulations, as amended from time to time, which are incorporated herein and applicable to the performance hereof, including without limitation the Pasadena Living Wage Ordinance and as applicable, the following provisions of the California Labor Code:

7.10.1 The provisions of California Labor Code Section 1720 et seq. which requires that the State prevailing wage rate shall be paid to employees where that rate exceeds the federal wage rate;

7.10.2 The provisions of California Labor Code Section 1777.5 which requires the employment of apprentices on all public works projects and the payment of training contributions to the proper agency;

7.10.3 The provisions of California Labor Code Section 3700 which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and will comply with such provisions before commencing the performance of the work of this contract;

7.10.4 The provisions of California Labor Code Section 1861, which require each contractor to whom a public works contract is awarded to sign and file with the awarding body the following certification prior to performing the work of the contract: "I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."

7.10.5 City and Contractor stipulate and agree that, as provided by

California Labor Code Sections1810-1814, the maximum hours a worker is to be employed is limited to eight hours a day and 40 hours a week and the contractor and/or subcontractor shall forfeit, as a penalty, $25 for each worker employed in the execution of this Agreement, or on any contract or subcontract in performance of this Agreement, for each calendar day during which a worker is required or permitted to labor more than eight hours in any calendar day or more than 40 hours in any calendar week.

7.10.6 City and Contractor further stipulate and agree that the provisions of California Labor Code Section 1815, notwithstanding the provisions of sections1810-1814 inclusive, and not withstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors 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 worked in excess of 8 hours per day at not less than 1-1/2 times the basic rate.

7.10.7 Pursuant to California Labor Code Section 1812, every

contractor and subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed by him or her in connection with the public work. The record shall be kept open at all reasonable hours to the inspection of the awarding body and to the Division of Labor Standards Enforcement.

7.10.8 Pursuant to California Labor Code Section 1735, Contractor shall not discriminate in the employment of persons upon public works on any basis listed in subdivision (a) of section 12940 of the California Government Code, as those bases are defined in California Government Code Sections 12926 and 12926.1, except as otherwise provided in California Government Code Section 12940. Every contractor for public works who violates this section is subject to all penalties imposed for a violation of Prevailing Wage Law.

8.0 INTERPRETATION.

8.1 APPLICABLE LAW. This Contract, and the rights and duties of the parties hereunder (both procedural and substantive), shall be governed by and construed according to the laws of the State of California.

8.2 ENTIRE AGREEMENT. This Contract, including any Exhibits

attached hereto, constitutes the entire agreement and understanding between the parties regarding its subject matter and supersedes all prior or contemporaneous negotiations, representations, understandings, correspondence, documentation and agreements (written or oral).

8.3 WRITTEN AMENDMENT. This Contract may only be changed by

written amendment signed by Contractor and the City Manager or other authorized representative of the City, subject to any requisite authorization by the City Council. Any oral representations or modifications concerning this Contract shall be of no force or effect.

8.4 SEVERABILITY. If any provision in this Contract is held by any court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such portion shall be deemed severed from this Contract, and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Contract.

8.5 ORDER OF PRECEDENCE. In case of conflict between the terms of this Contract and the terms contained in any document attached as an Exhibit or otherwise incorporated by reference, the terms of this Contract shall strictly prevail. The terms of the City's Specifications shall control over the Contractor's Bidder’s Proposal.

8.6 CHOICE OF FORUM. The parties hereby agree that this Contract is to be enforced in accordance with the laws of the State of California, is entered into in the City of Pasadena and that all claims or controversies arising out of or related to performance under this Contract shall be submitted to and resolved in a forum within the County of Los Angeles at a place to be determined by the rules of the forum.

8.7 DUPLICATE ORIGINALS. There shall be two (2) fully signed

copies of this Contract, each of which shall be deemed an original in the performance.

Unless prohibited by law, this Contract may be executed by digital signature, provided such digital signature complies with California Government Code Section 16.5.

8.8 TIME OF ESSENCE. Time is strictly of the essence in the

performance of this Contract and each and every covenant, term and provision hereof.

8.9 AUTHORITY OF CONTRACTOR. The Contractor hereby

represents and warrants to the City that the Contractor has the right, power, legal capacity and authority to enter into and perform its obligations under this Contract, and that its execution of this Contract has been duly authorized.

8.10 ARBITRATION OF DISPUTES. Any dispute for under $25,000

arising out of or relating to the negotiation, construction, performance, non-performance, breach or any other aspect of this Contract, shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association at Los

Angeles, California and judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. The City does not waive its right to object to the timeliness or sufficiency of any claim filed or required to be filed against the

City and reserves the right to conduct full discovery.

8.11 INDEMNITY.

8.11.1 Contractor agrees to indemnify, hold harmless and defend at its own expense (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council and each member thereof, and its officers, employees, commission members, agents and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses

(including attorney's fees and costs of litigation) which in whole or in part result from, or arise out of, or are claimed to result from or to arise out of:

A. any activity on or use of City's premises or facilities or any performance under this Contract; or

B. any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this Contract.

8.11.2 This agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and property or other damage (including, but without limitation, contract or tort or patent, copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public). The sole negligence or willful misconduct of City, its employees or agents other than Contractor or Contractor's subcontractors are excluded from this indemnity agreement.

8.12 RELEASE. Contractor agrees to release and covenants not to sue the City, its City Council and each member thereof, and its officers, employees, commission members and representatives for any damage or injury (including death) to itself, its officers, employees, agents and independent contractors damaged or claiming to be damaged from any performance under this Contract.

8.13 INSURANCE.

8.13.1 Contractor shall, at its own expense, procure and maintain policies of insurance of the types and in the amounts set forth in Exhibit __. The policies shall state that they afford primary coverage.

8.13.2 Prior to commencement of performance, Contractor shall furnish City with the required proof of coverage for each policy, in accordance with

Exhibit __.

8.13.3 Failure to maintain insurance as required at all times shall constitute a material breach of the Contract. City, at its sole option, may terminate this

Contract at any time and obtain damages from Contractor resulting from said breach.

Alternatively, City may, but has no obligation to, purchase coverage and, without further notice to Contractor, deduct from sums due to Contractor any premium costs advanced by City for such insurance.

8.14 NOTICES. Any notice or demand to be given by one party to the other shall be given in writing and by personal delivery or prepaid first-class, registered or certified mail, addressed as follows. Notice simply to the City of Pasadena or any other

City department is not adequate notice.

If to the City: ____________________________________ (Name and Title) _________________________(Department) City of Pasadena 100 North Garfield Avenue, Rm. _________ Pasadena, CA 91101

[With a Copy to:] ___________________________________

(Name and Title) (Department) (Street Address) (City, State and zip code)

If to the Contractor: ___________________________________ (Name and Title) (Company Name) (Street Address) (City, State and zip code)

Any such notice shall be deemed to have been given upon delivery, if personally delivered, or, if mailed, upon receipt or upon expiration of three (3) business days from the date of posting, whichever is earlier. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other party.

8.15 TERMINATION.

8.15.1 WITHOUT CAUSE (For Convenience). City may terminate

this Contract in whole or in part at any time, for any cause or without cause, upon fifteen

(15) calendar days' written notice to Contractor. City shall pay Contractor a prorated amount based on the work satisfactorily completed and accepted prior to the effective date of termination. Such payment shall be Contractor's exclusive remedy for termination without cause.

8.15.2 WITH CAUSE (Default). In the event either party materially defaults on its obligations hereunder, the other party may declare a default and terminate this Contract by written notice to the defaulting party. The notice shall specify the basis for the default. The Contract shall terminate unless such default is cured before the effective date of termination as set forth in the notice, which date shall be no sooner than ten (10) days after the date of the notice.

Termination for cause shall relieve the terminating party of further liability or responsibility under this Contract, including the payment of money, except for payment for work satisfactorily and timely performed prior to the service of the notice of termination, and except for reimbursement of (1) any payments made by the City for work not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by the City in obtaining substitute performance.

8.16 ASSIGNMENT OF ANTITRUST CAUSES OF ACTION. Contractor

hereby agrees to assign to the City all rights, title and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U.S.C. Sec 15) or under the

Cartwright Act Chapter 2 (Commencing with section 16700) or part 2 of Division 7 of the

Business and Professions Code, or any similar or successor provisions of Federal or

State law, arising from purchases of goods, services or materials pursuant to this

Contract or the subcontract. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor, without further acknowledgement by the parties.

9.0 ADDITIONAL ASSURANCES BY PASADENA CONTRACTORS.

9.1 EQUAL EMPLOYMENT OPPORTUNITY PRACTICES. Contractor

agrees to comply with Chapter 4.08.035 of the City's Competitive Bidding and

Purchasing Ordinance of the Pasadena Municipal Code, the rules and regulations promulgated thereunder, the California Fair Employment and Housing Act (Government

Code Section 12900 et seq.) and to this end:

9.1.1 Contractor certifies and represents that, during the

performance of this Contract, the contractor and any other parties with whom it may subcontract shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, marital status, or any other bases enumerated in California law.

Contractor further certifies that it will not maintain any segregated facilities.

9.1.2 Contractor shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of this contract, state that it is an

"equal opportunity employer" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, disability, sex, age, medical condition, marital status, or any other basis enumerated in

California law.

9.1.3 Contractor shall, if requested to so do by the City, certify that it has not, in the performance of this contract, discriminated against applicants or employees because of their race, religious creed, color, national origin, ancestry, disability, sex, age, medical condition, marital status, or any other basis enumerated in

California law.

9.1.4 If requested to do so by the City, contractor shall provide the

City with access to copies of all of its records pertaining or relating to its employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law.

9.1.5 Contractor agrees to recruit Pasadena residents initially and to give them preference, if all other factors are equal, for any new positions which result from the performance of this contract and which are performed within the City.

9.1.6 Nothing contained in this contract shall be construed in any manner so as to require or permit any act which is prohibited by law.

9.1.7 Contractor shall include the provisions set forth in paragraphs numbered 8.1.1 through 8.1.6 of this section, inclusive, in each of its subcontracts.

9.2 FEDERALLY REQUIRED PROVISIONS

9.2.1 If applicable, Contractor agrees to comply with all of the requirements set forth in Exhibit __ to this contract (“Exhibit 12-G Required Federal-Aid

Contract Language,” including but not limited to form FHWA-1273), which is attached hereto and incorporated by this reference as though fully set forth herein. Contractor agrees to insert the substance of the provisions of this clause in all subcontracts issued pursuant to this contract.

9.2.2 If applicable, Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended (42

U.S.C. section 7401 et seq.) and the Federal Water Pollution Control Act, as amended

(33 U.S.C section 1251 et seq.).

9.2.3 Contractor agrees to report each violation of the applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended (42

U.S.C. section 7401 et seq.) and the Federal Water Pollution Control Act, as amended

(33 U.S.C section 1251 et seq.) to City and understands and agrees that City will, in turn, report each violation as required to assure notification to the Federal Emergency

Management Agency (“FEMA”) and the appropriate Regional Office of the

Environmental Protection Agency.

9.2.4 Contractor agrees to include the provisions set forth in sections 9.2.2 and 9.2.3 in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.

9.3 PASADENA BUSINESS LICENSE. Contractor shall obtain, and

pay any and all costs associated therewith, any Pasadena business license which may be required by the Pasadena Municipal Code.

9.4 MAINTENANCE AND INSPECTION OF RECORDS. The City, or

its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor's records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the Contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract. The Contractor shall maintain and preserve all such records for a period of at least 3 years after termination of the Contract. The Contractor shall maintain all such records in the City of Pasadena. If not, the Contractor shall, upon request, promptly deliver the records to the City of Pasadena or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than the City of Pasadena, including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.

9.5 CONFLICT. Contractor hereby represents, warrants and certifies that no member, officer or employee of the Contractor is a director, officer or employee of the City of Pasadena, or a member of any of its boards, commissions or committees, except to the extent permitted by law.

10.0 TAXPAYER PROTECTION AMENDMENT. Under the provisions of the

City of Pasadena Taxpayer Protection Amendment of 2000 ("Taxpayer Protection Act"), the Contractor/Organization will be considered a "recipient of a public benefit." The full provisions of the Taxpayer Protection Act are set forth in Pasadena City Charter, Article

XVII. Under the Taxpayer Protection Act, City public officials who approve this

Contract/transaction are prohibited from receiving specified gifts, campaign contributions or employment from Contractor/Organization for a specified time. As well, if this Contract is to be approved by the City Council, Councilmembers or candidates for

Council are prohibited from receiving campaign contributions during the time this

Contract is being negotiated. This prohibition extends to individuals and entities that are specified and identified in the Taxpayer Protection Act and includes

Contractor/Organization and its trustees, directors, partners, corporate officers and those with more than a 10% equity, participation, or revenue interest in

Contractor/Organization. Contractor/Organization understands and agrees that: (A)

Contractor/Organization is aware of the Taxpayer Protection Act; (B)

Contractor/Organization will complete and return the forms provided by the City in order to identify all of the recipients of a public benefit specified in the Taxpayer Protection

Act; and (C) Contractor/Organization will not make any prohibited gift, campaign contribution or offer of employment to any public official who negotiated and/or approved this Contract/transaction.

IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed by their duly authorized representatives as of the date set forth below.

DATED: CITY OF PASADENA

By: _____________________________ Steve Mermell City Manager

ATTEST:

Mark Jomsky, CMC City Clerk

DATED: ___________________________

[COMPANY NAME]

By: _____________________________ [Name] [Title]

APPROVED AS TO FORM:

Attorney Name

[Assistant or Deputy City Attorney]

REVIEWED:

Erika Estrada Purchasing Administrator

Local Assistance Procedures Manual Exhibit 12-G Required Federal-Aid Contract Language

EXHIBIT 12-G: REQUIRED FEDERAL-AID CONTRACT LANGUAGE

(For Local Assistance Construction Projects)

The following language must be incorporated into all Local Assistance Federal-aid construction contracts.

The following language, with minor edits, was taken from the Code of Federal Regulations.

MAINTAIN RECORDS AND SUBMIT REPORTS DOCUMENTING YOUR PERFORMANCE UNDER THIS

SECTION

1. DISADVANTAGED BUSINESS ENTERPRISES (DBE)

A. NONDISCRIMINATION STATEMENT

B. CONTRACT ASSURANCE

C. PROMPT PROGRESS PAYMENT

D. PROMPT PAYMENT OF WITHHELD FUNDS TO SUBCONTRACTORS

E. TERMINATION AND SUBSTITUTION OF DBE SUBCONTRACTORS

F. COMMITMENT AND UTILIZATION

G. DBE RUNNING TALLY OF ATTAINMENTS

2. BID OPENING

3. BID RIGGING

4. CONTRACT AWARD

5. CONTRACTOR LICENSE

6. CHANGED CONDITIONS

A. DIFFERING SITE CONDITIONS

B. SUSPENSIONS OF WORK ORDERED BY THE ENGINEER

C. SIGNIFICANT CHANGES IN THE CHARACTER OF WORK

7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES

8. BUY AMERICA

9. QUALITY ASSURANCE

10. PROMPT PAYMENT FROM THE AGENCY TO THE CONTRACTORS

11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONTRACTS

12. FEMALE AND MINORITY GOALS

13. TITLE VI ASSURANCES

14. FEDERAL TRAINEE PROGRAM

15. PROHIBITIONS OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT AND

SERVICES ………………………………………………………………………………………………………….. 29

November 2022

1. DISADVANTAGED BUSINESS ENTERPRISES (DBE)

The contractor, subrecipient or subcontractor shall take necessary and reasonable steps to ensure that DBEs have opportunity to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the Agency shows a contract goal for DBEs. The prime contractor shall make work available to DBEs and select work parts consistent with available DBE subcontractors and suppliers.

The prime contractor shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal.

It is the prime contractor’s responsibility to verify that the DBE firm is certified as a DBE on the date of bid opening by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and Work Code applicable to the type of work the firm will perform on the contract. Additionally, the prime contractor is responsible to document this verification by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at: https://dot.ca.gov/programs/civil-rights/dbe-search.

All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal.

Credit for materials or supplies the prime contractor purchases from DBEs counts towards the goal in the following manner:

• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.

• 60 percent counts if the materials or supplies are obtained from a DBE regular dealer.

• Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR

26.55 defines "manufacturer" and "regular dealer."

The prime contractor receives credit towards the goal if they employ a DBE trucking company that performs a commercially useful function as defined in 49 CFR 26.55(d) as follows:

• The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals.

• The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract.

• The DBE receives credit for the total value of the transportation services it provides on the Contract using trucks it owns, insures, and operates using drivers it employs.

• The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Contract.

• The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE that leases trucks equipped with drivers from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE leased trucks equipped with drivers not to exceed the value of transportation services on the contract provided by DBE-owned trucks or leased trucks with DBE employee drivers. Additional participation by non-DBE owned trucks equipped with drivers receives credit only for the fee or commission it receives as a result of the lease arrangement.

• The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services.

• A lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.

https://dot.ca.gov/programs/civil-rights/dbe-search

A. Nondiscrimination Statement The contractor, subrecipient or subcontractor will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the Local Agency components of the DBE Program Plan, the contractor, subrecipient or subcontractor will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.

B. Contract Assurance Under 49 CFR 26.13(b): 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 CFR 26 in the award and administration of federal-aid 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:

(1) Withholding monthly progress payments;

(2) Assessing sanctions;

(3) Liquidated damages; and/or

(4) Disqualifying the contractor from future bidding as non-responsible.

C. Prompt Progress Payment The prime contractor or subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work performed by the subcontractors, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the prime contractor or subcontractor to a subcontractor, the prime contractor or subcontractor may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subcontractor, of 2 percent of the amount due per month for every month that payment is not made.

In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non- DBE subcontractors.

D. Prompt Payment of Withheld Funds to Subcontractors The Agency may hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency, of the contract work, and pay retainage to the prime contractor based on these acceptances. The Agency shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor to a subcontractor. The Agency shall include either Method 1, Method 2, or Method 3 below and delete the other two.

Method 1: No retainage will be held by the Agency from progress payments due to the prime contractor.

Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Method 2: No retainage will be held by the Agency from progress payments due to the prime contractor.

Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor within seven (7) days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval.

Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Method 3: The Agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within seven (7) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Agency. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval. Any violation of these provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Any violation of these provisions of Prompt Progress Payment and Prompt Payment of Withheld Funds to Subcontractors shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.

E. Termination and Substitution of DBE Subcontractors The prime contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the contractor obtains the Agency’s written consent. The prime contractor shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without prior written authorization from the Agency. Unless the Agency’s prior written consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid.

The Agency authorizes a request to use other forces or sources of materials if the bidder shows any of the following justifications:

1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.

2. The Local Agency stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the Local Agency’s bond requirements.

3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law.

4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).

5. Listed DBE's work is unsatisfactory and not in compliance with the contract.

6. Listed DBE is ineligible to work on the project because of suspension or debarment.

7. Listed DBE becomes bankrupt or insolvent.

8. Listed DBE voluntarily withdraws with written notice from the Contract

9. Listed DBE is ineligible to receive credit for the type of work required.

10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.

11. The Agency determines other documented good cause.

The prime contractor shall notify the original DBE of the intent to use other forces or material sources and provide the reasons, allowing the DBE 5 days to respond to the notice and advise the prime contractor and the Agency of the reasons why the use of other forces or sources of materials should not occur.

The prime contractor’s request to use other forces or material sources must include:

1. One or more of the reasons listed in the preceding paragraph.

2. Notices from the prime contractor to the DBE regarding the request.

3. Notices from the DBEs to the prime contractor regarding the request.

If the Agency authorizes the termination or substitution of a listed DBE, the prime contractor must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must (1) perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal, and (2) be certified as a DBE with the most specific available NAICS codes and work codes applicable to the type of work the DBE will perform on the contract at the time of the prime contractor’s request for substitution. The prime contractor shall submit their documentation of good faith efforts within 7 days of their request for authorization of the substitution. The Agency may authorize a 7-day extension of this submittal period at the prime contractor’s request. More guidance can be found at 49 CFR 26 app A regarding evaluation of good faith efforts to meet the DBE goal.

F. Commitment and Utilization Note: In the Agency’s reports of DBE participation to Caltrans, the Agency must display both commitments and attainments.

The Agency’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.

The bidder shall submit the Exhibit 15-G Construction Contract DBE Commitment, included in the Bid book. This exhibit is the bidder’s DBE commitment form. If the form is not submitted with the bid, the bidder must remove the form from the Bid book before submitting their bid.

The bidder shall complete and sign Exhibit 15-G Construction Contract DBE Commitment included in the contract documents regardless of whether DBE participation is reported. The bidder shall provide written confirmation from each DBE that the DBE is participating in the Contract. A copy of a DBE's quote serves as written confirmation. If a DBE is participating as a joint venture partner, the bidder shall submit a copy of the joint venture agreement.

If the DBE Commitment form, Exhibit 15-G, is not submitted with the bid, it must be completed and submitted by all bidders to the Agency within five (5) days of bid opening. If the bidder does not submit the DBE Commitment form within the specified time, the Agency will find the bidder’s bid nonresponsive.

The prime contractor shall use each DBE subcontractor as listed on Exhibit 12-B Bidder’s List of Subcontractors (DBE and Non-DBE), and Exhibit 15-G Construction Contract DBE Commitment form unless they receive authorization for a substitution.

The Agency shall request the prime contractor to:

1. Notify the Resident Engineer or Inspector of any changes to its anticipated DBE participation

2. Provide this notification before starting the affected work

3. Maintain records including:

• Name and business address of each 1st-tier subcontractor

• Name and business address of each DBE subcontractor, DBE vendor, and DBEtrucking company, regardless of tier

• Date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment)

If the prime contractor is a DBE contractor, they shall include the date of work performed by their own forces and the corresponding value of the work.

Before the 15th of each month, the prime contractor shall submit a Monthly DBE Trucking Verification (LAPM Exhibit 16-Z1) form.

If a DBE is decertified before completing its work, the DBE must notify the prime contractor in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify the prime contractor in writing of the certification date. The prime contractor shall submit the notifications. Upon work completion, the prime contractor shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form within 30 days of contract acceptance.

Upon work completion, the prime contractor shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it within 90 days of contract acceptance. The Agency will withhold $10,000 until the form is submitted. The Agency releases the withhold upon submission of the completed form.

G. DBE RUNNING TALLY OF ATTAINMENTS

After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant shall complete and email the Exhibit 9- F: Disadvantaged Business Enterprise Running Tally of Payments to…