Sample_Construction_Contract_-_MRF_Stormwater_Treatment_System_REV_1.pdf

Construction Contract 1

CONSTRUCTION CONTRACT

This Construction Contract (“Contract”) is entered into and effective this ____day of

______________________, by and between the CITY OF SANTA CRUZ (“City”), and __________________________ (“Contractor”) referred to herein individually as a “Party” and collectively as “the Parties.”

WHEREAS, the City seeks to procure and install a flow-through storm water treatment system at the City’s Resource Recovery Facility;

WHEREAS, City agrees to hire Contractor for the MRF Permanent Stormwater Treatment System (“Project”); and

WHEREAS, Contractor represents that it has the required license, expertise, means, and ability to perform said work as outlined in the proposal and MRF Permanent Stormwater Treatment System RFP No. PW-0238, which is attached as Exhibit “A” and Exhibit “B”, respectively, to this Contract;

NOW, THEREFORE, in consideration of each other’s mutual promises, and incorporating the above Recitals, the Parties hereto agree as follows:

1. Term of Contract. Contractor shall commence work within ten (10) days after receipt of a written Notice To Proceed from the City and complete the temporary installation by Dec 15, 2025, and the permanent installation by August 15, 2026, based on an agreed upon work schedule. All time limits stated herein are of the essence. This Contract shall terminate upon the completion of Contractor’s work, unless terminated sooner pursuant to the terms of this Contract.

2. Scope of Work and Work Schedule. Contractor will perform the work consistent with the scope of work and work schedule as defined and described in the proposal attached hereto as Exhibit A, in accordance with scope of work - attached hereto in Exhibit “B”, incorporated herein. Contractor represents and warrants that Contractor: (i) is fully experienced and properly qualified to perform the class of work and service provided for herein, (ii) has the financial capability required for the performance of the work and services, and (iii) is properly equipped and organized to perform the work and services in a competent, timely, and proper manner, in accordance with the requirements of this Contract. Contractor shall supply all necessary labor, tools, materials, supplies, and equipment to perform the required work.

2.1 Change in Scope of Work or Work Schedule.

(a) Any change in the scope of work to be done, method of performance, nature of materials or price thereof, work schedule changing the number of working days, or to any other matter materially affecting the performance or nature of the services will not be paid for or accepted unless such change, addition or deletion is approved in advance by the City, in a written Contract Change Order.

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(b) The changes will be set forth in written Contract Change Orders which specify the work to be done in connection with the changes, the basis of compensation for the work, and any adjustments to the work schedule or work completion date. Such Change Orders shall be approved by the City. Upon receipt of an approved Contract Change Order, or of a written authorization from the City setting forth a description of the change and agreed upon changes in contract price, the Contractor shall proceed with the work so ordered.

(c) In the absence of an approved Contract Change Order or written authorization, the

Contractor shall not be entitled to payment for any changed or extra work or any adjustment to the work schedule or work completion date.

(d) When the changes increase or decrease the cost of the work, an adjustment of the

Contract price will be made as set forth in the Change Order. Contractor shall receive compensation at the fees and rates previously agreed upon in writing.

(e) Contractor shall not be entitled to an adjustment in the compensation or work schedule for delay, disruption, or interference caused by or within the control of Contractor. Delay, disruption, and interference attributable to and within the control of a subcontractor or supplier shall be deemed to be within the control of contractor.

(f) If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of work or the provisions of the Contract (including, but not limited to, compensation or work schedule), the giving of any such notice will be Contractor’s responsibility. The amount of each applicable bond will be adjusted to reflect the effect of any such change.

3. Authorized Representatives. The authorized representatives shall be individuals with the necessary authority to direct work within the scope of this Contract and shall serve as the principal point of contact for the Project for each respective party.

3.1 City. City designates the following individual(s) as CITY’s authorized representative(s): _________________. Only City’s authorized representative(s) is authorized to approve changes to this Contract on behalf of the City.

3.2 Contractor. Contractor designates the following individual(s) as Contractor’s authorized representative(s): _________________. Only Contractor’s authorized representative(s) is authorized to approve changes to this Contract on behalf of Contractor.

4. Hours of Work. All work will be performed during regular working hours between 8:00 a.m. and 5:00 p.m., Monday through Friday. No work will be done between the hours of 5:00 p.m. and 8:00 a.m., nor on Saturdays, Sundays or legal holidays except with the permission of the ______, or except in case of an emergency.

5. Failure to Complete Work on Time (Liquidated Damages)

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All time limits stated in the Contract Documents are of the essence. If the work is not completed by Contractor in the time specified in the Contract, or within any period of extension authorized by City, it is understood that City will suffer damage; and it being impracticable and infeasible to determine the amount of the actual damage, it is agreed that Contractor will pay City, as fixed and liquidated damages, and not as a penalty, the sum of five hundred dollars ($500.00) for each calendar day of delay until the work is completed and accepted, provided, however, that Contractor will not be charged liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor.

6. Licenses; Standard of Care; Quality Materials.

6.1 Contractor represents and agrees that all personnel engaged by Contractor in performing work and services are and shall be fully qualified and are authorized or permitted under state and local law to perform such work and services. Contractor represents and warrants to the City that it has all required licenses and qualifications to perform the work and services required under this Contract, and will furnish satisfactory proof to City upon request.

6.2 The materials and equipment furnished and used shall be new and unused and of the highest commercial quality currently available. The materials and equipment shall be manufactured, handled, and used in a workmanlike manner to ensure completed work in accordance with the work specifications.

6.3 Contractor shall perform the work and services under this Contract in a skillful and competent manner. Contractor shall be responsible to the City for any errors or omissions in the performance of work pursuant to this Contract. Should any errors caused by Contractor be found in such work and services, Contractor shall correct the errors at no additional charge to the City by redoing the work and agree to fulfill any and all warranty obligations for the work pursuant to Section 17 of this Contract.

7. Permits. Permits and/or regulatory approvals required by governmental authorities will be obtained by Contractor at Contractor’s expense

8. Compensation/Contract Price.

Lump Sum/Budget Limit. Lump Sum/Budget Limit. City will pay Contractor, for actual and complete performance of the work and services at the rates and fees set forth in the Proposal detailed in Exhibit “A”, attached to this Contract. Contractor will not be reimbursed for any costs or expenses at any rates that exceed the rates set forth in the Schedules of Values within the Proposal in Exhibit “A”, unless agreed to by City through a Change Order. The total fees for the scope of work shall not exceed the following contract amount: $______. Such contract amount shall be considered the full compensation for all personnel, materials, supplies, and equipment used by Contractor in the scope of work.

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8.1 Progress Payments- as otherwise agreed to in the Proposal, Contractor shall prepare and submit to the City, detailed invoice(s) on a monthly basis for fees and costs incurred based on the percentage of completion of the various portions/tasks of work identified in the scope of work during the previous 30 day billing period. The invoice shall describe the progress of work rendered and shall be based on all labor and direct expense charges made for work performed hereunder. Labor charges shall be in accordance with the proposal. City shall pay the undisputed amounts due within thirty (30) days after the receipt of the invoice, subject to amounts it is contractually entitled to withhold or retain.

The making of progress payments shall not be considered: (i) as City having inspected or approved Contractor’s work; (ii) to be an acceptance by City of any defective work or use of improper materials by Contractor. City is entitled to reduce the payment amount requested to account for defective work or if the estimate of the value of the work eligible for payment was incorrect.]

8.2 Retention. City may retain out of any payment due the Contractor up to 5% of the value of the work done and 20% of the value of the materials so estimated to have been furnished and delivered and unused. Under no circumstances shall any provision of this section be construed to limit the ability of City to withhold 150 percent of the value of any disputed amount of work from the final payment, as provided for Public Contract Code section 7107(c). In the event of a good faith dispute, nothing in this section shall be construed to require a public entity to pay for work that is not approved or accepted in accordance with the proper plans or specifications.

8.2.1 Securities in Lieu of Retention. In accordance with Public Contract Code

Section 22300, except where federal regulations or polices do not permit substitution of securities, the Contractor may substitute securities for any moneys withheld by the City to ensure performance of the work. At the Contractor’s request and expense, securities equivalent to the amount withheld will be deposited with the City, or with a state or federally chartered bank in California as the escrow agent, who will then pay those moneys to the Contractor under the terms of an Escrow for Security Deposit agreement, in a form as approved by the City. Upon satisfactory completion of the work, the securities will be returned to the Contractor. Securities eligible for investment in accordance with this provision include those listed in Government Code Section 16430, 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 City. The Contractor will be the beneficial owner of any securities substituted for moneys withheld and will receive any interest thereon.

8.2.2 Escrow for Security Deposit . Alternatively, at the Contractor’s request and expense, the City will pay retentions earned directly to the escrow agent. At the Contractor’s expense, the Contractor may direct investment of the payments into securities. Upon satisfactory completion of the work, the Contractor will receive from the escrow agent all securities, interest, and payments received by the escrow agent from the City pursuant to this

Construction Contract 5 provision and the terms of the Escrow for Security Deposit agreement, in a form as approved by the City. The Contractor will, within 20 days of receipt of payment, pay to each subcontractor the respective amount of interest earned, less costs of retention withheld from each subcontractor, on monies withheld to ensure the Contractor’s performance of the work under this Contract.

8.3 Final Payment. After completion of the work, the Contractor shall provide the final invoice of the work done and all payments due under the Contract, which show any deductions or amounts retained, if applicable. The amount determined due, less any retained amount, is payable 30 days after the completion and acceptance of the work in the manner provided by law and until after the Contractor has furnished the City a release by all claims by the Contractor and its subcontractors against City arising by virtue of the Contract, except such claims in definite amounts as the Contractor may specifically exempt from the operation of the release. City shall pay the retention amount to Contractor within 60 days after completion of the work pursuant to Public Contract Code §7107. The making of a final payment will not constitute a waiver by City of claims or rights against Contractor.

9. Acceptability of Work. City’s authorized representative shall decide all questions which may arise as to the quality or acceptability of materials furnished and work performed and as to the manner of performance and rate or progress of the work. When the authorized representative has made the final inspection and determines that the Contract has been completed in all respects in accordance with the specifications and requirements, s\he will recommend that the work be formally accepted. Acceptance of the work shall not waive City’s rights and remedies related to the work.

10. Site Conditions and Safety.

(a) During the course of performing the scope of work under this Contract, the security and safety of the work area/site and construction materials and equipment will be Contractor’s sole responsibility. Contractor shall at its sole cost and expense, ensure that the work site is properly maintained as to avoid injury or damage to any person or property in accordance with applicable legal and safety requirements, that all necessary barriers or signage to deter unauthorized entry and to protect the public are in place, such as notifying, warning, and protecting the public of any dangerous conditions on the property related to the work, installing a secure construction fence, security surveillance and patrol, and other reasonable measures, and as further requested by City to protect public health and safety during the course of the work.

(b) No material or equipment shall be stored where it will interfere with the safe passage of public traffic or the traffic of City or any other adjacent jurisdiction; and at the end of each day’s work and at other times when construction operations are suspended for any reason, Contractor shall remove all equipment and other obstructions from that portion of the roadway open for use by public traffic, the City, and other adjacent jurisdiction.

Spillage resulting from hauling operations along or across any public traveled way shall be removed promptly.

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(c) Contractor shall not unreasonably interfere with the public’s use of the public right-of-way to the extent the public right-of-way is usable and accessible during the course of performing the Work. When Contractor’s operations require one-way traffic or creates a condition hazardous to public traffic, Contractor shall provide and station competent flaggers whose sole duties shall consist of directing the movement of public traffic through or around the work, and as further required to comply with applicable traffic rules of the California Manual on Uniform Traffic Control Devices (CA MUTCD).

(d) Contractor shall exercise due care to avoid damage to existing improvements, utility facilities, and adjacent property. The fact that any pipe or underground facility is not shown on the drawings shall not relieve the Contractor of responsibility or ascertaining the existence of any underground improvements or facilities which may be subject to damage by reason of the work.

(e) In carrying out its work, Contractor shall at all times, exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed, and be in compliance with all federal, state and local statutory and regulatory requirements including State of California, Division of Industrial Safety (Cal/OSHA) regulations, and the U.S. Department of Transportation Omnibus Transportation Employee Testing Act (as applicable). Safety precautions as applicable shall include instructions in accident prevention for all employees and the public, such as safe walkways, scaffolds, fall protection, ladders, bridges, gang planks, confined space procedures, trenching & shoring, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries or damage to public or private property.

(f) Contractor agrees to keep the construction site and other areas related to the work in a neat and sanitary condition as reasonably possible at all times. All waste, rubbish, other debris, and any excess excavated material shall be removed from the work site in a manner that conforms to all applicable state, federal, and local laws and regulations. If dust problems should occur, dust control will be provided by the Contractor in a manner approved by the City at no additional expense to the City. At the start of the project, if applicable, Contractor will place filter fabric in all storm drain inlets in the project area so as to prevent soil particles from entering. If applicable, trench dewatering must be conducted so as to minimize sediment from entering storm drains in compliance with state laws.

(g) Upon completion of the work, Contractor shall leave the City property and public right-of-way in a clean and orderly condition and except for the work under this Contract, shall restore or replace in-kind any improvements or landscaping damaged by Contractor, including any public property impacted by the work.in this Contract. The cost of such repairs shall be borne by the Contractor and may be deducted from any monies due or to become due the Contractor under the Contract. In the event Contractor fails to carry out its obligations pursuant to this Section, the City shall have the right to make any corrections or repair any damages caused by Contractor and Contractor shall be responsible to pay the City all costs, including City administrative staff time, arising

Construction Contract 7 therefrom within thirty (30) days of the date of an invoice therefor.

(h) Any loss or damage to Contractor’s materials and equipment in the work area is

Contractor’s sole responsibility, and the City shall not have any liability for any such loss or damage. Contractor is also solely responsible for any personal injury or property damage related to Contractor’s activities on or outside of City property, on private property, and in the public right-of way under this Contract, except to the extent caused by City’s gross negligence or willful misconduct.

11. Hazardous Materials.

(a) Contractor shall not engage in any activity on, under, or about the City property, public right-of-way, or work site that violates any Federal, State or local laws, rules or regulations pertaining to hazardous, toxic or infectious substances or materials (“Hazardous Substances” or “Hazardous Materials”), and shall promptly, at Contractor’s expense, take all investigatory and/or remedial action required or ordered for clean-up of any contamination of the City property, public right-of-way, work site, or affected area of the elements surrounding the same created, released, or exacerbated by Contractor.

For the purposes of this Contract, the term “Hazardous Substances” or “Hazardous Materials” shall mean any substance or material which is capable of posing a risk of injury to health, safety or property, including all those materials and substances designated as hazardous or toxic by any federal, state or local law, ordinance, rule, regulation or policy, including but not limited to, all of those materials and substances defined as “Toxic Materials” in Sections 66680 through 66685 of Title 22 of the California Code of Regulations, Division 4, Chapter 30, as the same shall be amended from time to time, or any other materials requiring remediation under federal, state or local laws, ordinances, rules, regulations or policies.

(b) If Contractor encounters, uncovers, or reveals the presence of Hazardous Materials at the work site or in any way related to the work, which removal or remediation is not expressly identified in the Contract as being within the scope of the work, or if Contractor or anyone for whom Contractor is responsible for the release, the presence or exacerbating the presence of Hazardous Materials, then Contractor shall immediately:

(1) secure or otherwise isolate such condition; (2) stop all work in connection with such condition and in any area affected thereby; and (3) notify City within 24 hours of Contractor’s knowledge of the presence of the Hazardous Materials.

(c) If Contractor or anyone for whom Contractor is responsible for the release, the presence or exacerbating the presence of Hazardous Materials, Contractor is responsible for its remediation in compliance with all applicable laws and regulations. If Contractor fails to do so within a reasonable period of time, then City may remove and remediate the Hazardous Materials Condition, and impose a set-off against payments to account for the associated costs, including administrative fees..

(d) To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the City, its officials, officers, employees, and agents from any and all costs, Construction Contract 8 claims, expenses, penalties and attorney’s fees and costs arising out of a breach by Contractor of the subsection (a) above, including, but not limited to, the investigation, remediation and abatement of any contamination therein involved where the contamination was caused, released, or exacerbated by the acts or omissions of Contractor, its employees, subcontractors, suppliers, or agents or by anyone who was acting under Contractor’s authority or control.

i. The obligations of the Contractor under this Section 11 of the Contract shall survive expiration or termination of this Contract to the fullest extent permitted by law.

ii. Contractor is only exempt from this indemnity obligation to the extent that the Hazardous Materials were not created or released, or the presence of the Hazardous Materials was not exacerbated by the acts of omissions of Contractor, its employees, subcontractors, suppliers, agents, or by anyone who was acting under Contractor’s authority or control.

12. Access for Inspection.

Contractor shall at all times maintain proper, safe, and secure facilities and provide safe access for inspection by City, its employees, or agents, to all parts of the work, as is reasonably possible. Nothing in this Contract is intended or shall be construed to limit in any way access by City to the work area at all reasonable times during the duration of this Contract, or the right of entry or inspection that City, its employees, agents, or any other governmental agency may have by operation of law. All work done and all materials furnished shall be subject to City’s inspection and approval. The right of general supervision shall not make the Contractor an agent of City and the liability of the Contractor for all damages to persons or to public or private property arising from the execution of the work shall not be reduced or waived because of such general supervision. The day-to-day inspection performed by the various inspectors employed by the City shall not constitute approval or ratification of work improperly done by the Contractor.

13. Indemnification.

(a) To the fullest extent permitted by law, Contractor agrees to indemnify, defend, and hold harmless the City, its officials, officers, and employees from and against any and all claims, demands, actions, damages, or expenses, (including attorney’s fees and costs) arising in any way related to the obligations or performance of this Contract by the Contractor, Contractor’s employees, subcontractors, or agents, except where caused by the sole or active negligence, or willful misconduct of the City.

Contractor’s obligation under this Section 13 of the Contract to defend shall arise regardless of any claim or assertion that City and its related parties caused or contributed to any claims. The obligations of the Contractor under this Section 13 of the Contract shall survive expiration or termination of this Contract to the fullest extent permitted by law.

(b) Contractor shall require its subcontractors to agree to the indemnification obligations

Construction Contract 9 stated in this Section 13 to the same extent and under the same terms and conditions as Contractor is required to defend, indemnify, and hold harmless City, its officials, officers and employees, as stated herein.

14. Insurance. Contractor agrees to procure and maintain the insurance coverages and limits, as required by City prior to the commencement of work, as specified in Exhibit “C”.

15. Subcontractors.

(a) Except as provided in the scope of work or unless with the prior written approval of the

City, Contractor shall not enter into any subcontract with any other party for purposes of providing any work or services covered by this Contract. Any subcontractors used on this public work project must be registered with the DIR in compliance with Labor Code sections 1771.1 and 1725.5, and Contractor shall provide proof of registration thereof.

(b) In the event that Contractor employs any subcontractor, sub-tier contractor, or any person or entity involved for, with, or on behalf of Contractor in the performance of this Contract under Contractor’s control or authority (“subcontractor”), it shall be the Contractor’s responsibility to require and confirm that each subcontractor meets the minimum insurance requirements specified in Exhibit C. Contractor shall require all subcontractors to provide a valid certificate of insurance and the required endorsements to name the City as an additional insured under the liability insurance policies prior to commencing any work, and will provide proof of compliance to the City.

(c) Subcontractors are to be bound to Contractor and to City in the same manner and to the same extent as the Contractor is bound to City under this Contract. Contractor shall be responsible to the City for the performance of any and all subcontractors who perform work under this Contract and any acts of negligence on their part. Contractor is solely responsible for all payments due to any subcontractor.

16. Bonds/Security for Work. It is agreed that Contractor shall furnish, concurrently with the execution hereof, cash, bond or other security authorized by the regulations of the City, naming the City as the beneficiary or loss payee, as set forth below:

16.1 Labor and Material Bond, Performance Bond, and Maintenance Bond. City also requires:

1) Labor and Material Bond in the amount of 100% of the estimated cost of the work to ensure payment to all contractors, subcontractors, laborers, suppliers, and materialmen performing work or supplying materials (attached hereto as Exhibit D), and

2) Performance Bond in the amount of 100% of the estimated cost of the work to ensure faithful performance of the work (attached hereto as Exhibit E), and

3) a Maintenance Bond (attached hereto as Exhibit F) equal to 10% of the contract price is required. The Maintenance Bond shall remain in effect to guarantee the

Construction Contract 10 repair and replacement of defective equipment, materials and work, discovered within three (3) years after final payment has been accepted by the Contractor and Contractor has paid to the City all damages sustained by it on account of such defects. After three (3) years from the date of acceptance of the completed work or after satisfaction of the three (3) year warranty period, whichever is later, and after any deficiencies have been corrected and in the absence of any claim against such Security, the City shall release the Maintenance Bond.

16.2 Form of Security. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

The surety on each of said above bonds or other form of security (collectively, “Security”), and the form thereof shall be satisfactory to the City. If Contractor seeks to replace any Security instrument with another Security instrument, the replacement shall: (1) comply with all the requirements for Security in this Contract; (2) be provided by Contractor to City; and (3) upon its written acceptance by the City, be deemed a part of this Contract. Upon the City’s acceptance of a replacement Security, the former Security may be released by the City upon Contractor’s written request.

16.3 Release of Security. City may withhold from any security to be released pursuant to this Section amounts sufficient to cover City’s costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred as a result of a breach or an event of default. The City shall release the Performance Bond and Labor and Materials Bond amounts remaining after withholding, if any, as follows:

i. At six (6) months from the date of acceptance of the completed work, and after all deficiencies have been corrected and in the absence of any claim against such Security, whichever is later, City shall release 100% of the Labor and Materials Bond attributable to the accepted work. If claims against the Labor and Material Bond have been filed, such Security shall be reduced to an amount equal to the total amount claimed by all claimants for whom liens have been filed and of which notice has been given to City. The balance of the Security shall be released upon settlement or release of all claims and obligations for which the Security was given.

ii. Where a Maintenance Bond is required, 100% of the Performance Bond will be released from the date of acceptance of the completed work, and after all deficiencies have been corrected and in the absence of any claim against such Security, whichever is later. The Maintenance Bond will remain in effect to guarantee the repair and replacement of defective equipment, materials and work, discovered within the period of the duration of the Maintenance Bond, after final payment has been accepted by the Contractor and Contractor has paid to the City all damages sustained by it on account of such defects. After satisfaction of the

Construction Contract 11 warranty period, and after any deficiencies have been corrected and in the absence of any claim against such Security, the City shall release the Maintenance Bond.

17. California Air Resources Board (CARB). Contractor agrees as follows:

a. Contractor and Subcontractors shall maintain compliance with CARB requirements for certificate of reported compliance regarding in-use off-road diesel-fueled fleets regulation as stated in California Code of Regulations, Title 13 § 2449 et seq. Non-compliant vehicles are not permitted onsite unless and until Contractor provides City with a valid Certificate of Reported compliance.

b. Contractor must provide a statement verifying whether they comply or whether they are exempt from the regulation concurrently with the execution hereof. If in-use off-road diesel-fueled fleets regulation is applicable to the project, the Contractor shall submit a CARB’s Certificate of Reported Compliance (Certificate), attached and incorporated herein as Exhibit G, for vehicles subject to Cal. Code Regs., Title 13 § 2449 et seq..

c. Contractor is solely liable for all costs associated with compliance of all regulations imposed by CARB including, without limitation, Title 13 and all pending amendments, as well as all penalties, fines, damages, or costs associated with violations or failures to comply with these regulations. Contractor shall defend, indemnify, and hold harmless the City, its officials, officers, employees, agents, and authorized volunteers free and harmless from any claims, liabilities, costs, penalties, or interest arising from failure to comply with the aforementioned regulations.

18. Warranty of Work and Correction Guaranty. Contractor guarantees and warrants the work under this Contract, and agrees to correct any deficiencies and defects in materials, equipment, supplies and workmanship; and Contractor agrees to remedy any damages arising from faulty or defective materials, equipment, or work at no cost to the City for a period of one (1) year after City’s acceptance of the work or the work’s completion, whichever is later. A longer warranty period may apply where the supplier or manufacturer of the equipment or material provides a longer guaranty period. During the one year warranty or other applicable time period, Contractor at its sole cost and expense agrees to promptly make all needed repairs or replacements arising out of defective materials, equipment, or workmanship. City is hereby authorized to make such repairs if, within 10 business days after delivery of a notice in writing to the Contractor or its agent, the Contractor neglects to commence or undertake with due diligence the aforesaid repairs, replacements, or reconstruction; provided, however, that in case of an emergency where, in City’s reasonable discretion, delay would cause serious loss or damage, repairs may be made without notice being sent to the Contractor. In the event that the City is required to perform the repair work during the warranty period, Contractor shall pay all costs, losses, and damages arising out of or relating to such repair, removal, replacement, or reconstruction plus the City’s overhead fee of an additional 15% of all costs incurred by the City. This warranty provision does not affect or limit the City’s remedies in law or equity, including but not limited to, applicable statutes of limitations relating to defective work and breach of this Contract.

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19. Title to Improvements.

Title to, and ownership of, all improvements constructed hereunder by Contractor shall vest absolutely in the City, upon completion and acceptance of such improvements by the City.

20. State Labor Code.

20.1 Prevailing Wages. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations (DIR). Contractor will be responsible for verifying compliance with all prevailing wage laws and regulations for all subcontractors. Pursuant to Section 1774 of the Labor Code, the Contractor and any subcontractors shall pay not less than the specified prevailing rates of wages to workers performing work and services under this Contract. If the Contract is federally-funded, the Contractor and any subcontractors shall not pay less than the higher of these rates or the rates determined by the United States Department of Labor. Pursuant to Section 1775 of the Labor Code, the Contractor and any subcontractors, shall, as a penalty to the City, forfeit the prescribed amounts per calendar day, or portion thereof, for each worker paid less than the prevailing wage rates. The Contractor is responsible for posting job site notices as prescribed by regulation pursuant to Labor Code section 1771.4(a)(2). The Contractor and each subcontractor, if any, must be registered with the DIR pursuant to Labor Code section 1725.5 and section 1771.1. The Contractor and each subcontractor, if any, must submit electronic certified payroll records at regular intervals (weekly, biweekly, or monthly), to the Labor Commissioner pursuant to Labor Code 1771.4.

Payroll records will contain all the information required pursuant to Labor Code Section 1776 and be signed under penalty of perjury.

20.2 Apprentices. Apprentices shall be employed on the work under this Contract in accordance with Labor Code Section 1777.5. The Contractor is responsible for compliance with Labor Code Section 1777.5 for all apprenticeable occupations whether employed directly or through subcontractors.

20.3 Contractors’ Duties Concerning Labor Code Compliance. As required by Labor Code 1775(b)(1), Labor Code Sections 1771, 1775, 1776, 1777.5, 1813 and 1815 are required to be included in the contract between the Contractor and subcontractors. The Contractor agrees to comply with these sections and all remaining provisions of the Labor Code.

20.4 Hours of Labor. Pursuant to Section 1810 of the Labor Code, 8 hours of labor shall constitute a legal day’s work. Pursuant to Section 1813 of the Labor Code, the Contractor and any subcontractors, shall, as a penalty to the City, forfeit the prescribed amount per calendar day for each worker required or permitted to work more than 8 hours in any 1 calendar day and 40 hours in any 1 calendar week without being compensated in accordance with Section 1815. Contractor shall include terms in its subcontracts as required to make this paragraph effective as to each Subcontractor. Upon written request, Contractor shall withhold penalties forfeited by a Subcontractor pursuant to Labor Code section 1813 and this paragraph from payments due to such Subcontractor and remit such penalties withheld to the City.

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20.5 Failure to Comply with Prevailing Wage. Any failure of Contractor and/or its subconsultant to comply with the above requirements relating to a public work project shall constitute a breach of this Contract that excuses the City’s performance of this Contract at the City’s sole and absolute option and shall be at the sole risk of Contractor. Contractor on behalf of itself and any subcontractor, agree to indemnify, defend and hold harmless the City and its officials, officers, employees, and agents from and against any and all claims, liabilities, losses, costs, expenses, attorney’s fees, damages, expenses, fines, financial consequences, interest, and penalties, of any kind or nature, arising from or relating to any failure (or alleged failure) of the Contractor and any subcontractor to pay prevailing wages or to otherwise comply with the requirements of prevailing wage law relating to a public work.

21. Local Hiring. Contractor and Subcontractors shall comply with Santa Cruz Municipal Code

(SCMC) Chapter 3.10, which is incorporated into the Contract by reference. SCMC Chapter

3.10 specifically requires the City’s contractors and their subcontractors to make good faith efforts to hire qualified individuals who are local residents, as workers on City public works projects valued greater than the limit for formal bidding.

21.1 Good Faith Effort Statement. Contractor and listed subcontractors in the subcontractor’s Form must complete and submit to the City, prior to City’s issuance of the Notice to Proceed, the form entitled, “Good Faith Effort Statement for Local Hire,” as contained in Exhibit H.

21.2 Local Hire Residency Compliance. Contractor must also complete and submit to the City, on a weekly basis, documentation of local hiring. The “Local Hire Residency Compliance” form set forth in Exhibit I must be submitted with certified payroll records.

21.3 Records. SCMC Chapter 3.10 requires the maintenance of documents demonstrating that the Contractor has requested an apprentice from a minimum of two viable apprenticeship programs after the Contractor is awarded the contract and prior to commencing work. The Contactor or subcontractor will, prior to commencing work, submit to the City and the appropriate apprenticeship program, a DAS Form 140, provided as Exhibit J. The Contractor or subcontractor will also submit DAS Form 142, Request for Dispatch of Apprentice Form, provided as Exhibit K, at least three (3) working days before the date on which one or more apprentices are required. These forms are also available from the DAS web site (http://www.dir.ca.gov/das/PublicWorksForms.htm ).

21.4 Failure To Comply. Failure to comply with any of the provisions of SCMC Chapter 3.10, including the maintenance of records, shall be deemed a breach of the Contract and may result in the Contractor being declared “non-responsible” by the City and ineligible for the award of future City contracts.

22. Business License Tax. Contractor agrees that Contractor, its subcontractors and/or agents (if any) will comply with all applicable federal, state, and local licensing requirements and agrees to provide proof of a current City of Santa Cruz Business Tax Certificate if:

Construction Contract 14

• Contractor, its subcontractor(s) and agent(s) or its business is/are located in the City of Santa Cruz;

• Will perform actual work in the City of Santa Cruz for 6 or more days annually; or

• Will use company vehicles to deliver within the City of Santa Cruz for 6 or more days annually.

For additional information and licensing requirements, view the City’s Business Licenses and Permits webpage or call the Revenue and Taxation division at 831/420-5070

23. Compliance with Laws. All activities of Contractor will be carried out in compliance with all applicable federal, state, and local laws and regulations, including applicable ordinances and resolutions. City, and its officials, officers, and employees, shall not be liable at law or in equity by reason of the failure of the Contractor to comply with this paragraph.

24. Storm Water Requirements. To the extent applicable to the Scope of Work under this Agreement, Consultant, Consultant’s employees, subcontractors, and agents are required to abide by the applicable City of Santa Cruz Storm Water Best Management Practices (BMPs) for the duration of the work. The City’s mandatory Storm Water BMPs, which are listed according to the type of work, operations, or business, are located on the City website at: https://www.cityofsantacruz.com/government/city-departments/public-works/stormwater/best-management-practices

25. Equal Employment Opportunity. Contractor agrees to refrain from discriminatory employment practices on the basis of race, religious creed (including religious dress and grooming practices), color, national origin (including language use restrictions), ancestry, religion, disability (mental and physical), medical condition, sex, gender (including gender identity and gender expression), physical characteristics, marital status, age, sexual orientation, genetic information (including family health history and genetic test results), organizational affiliation, and military or veteran status, or any other consideration made unlawful by local, state or federal law, regarding any employee of, or applicant for employment with, such Contractor.

26. Event of Default and Notice. If Contractor (i) refuses or fails to proceed with the work with such diligence as will insure its completion within the time specified, including any extensions, (ii) fails to obtain completion of said work or improvement within such time,

(iii) if the Contractor should be adjudicated as bankrupt, (iv) if Contractor should make a general assignment for the benefit of Contractor’s creditors, (v) if a receiver should be appointed in the event of Contractor’s insolvency, or (vi) if Contractor, or any of its subcontractors, agents, or employees should violate any of the provisions of this Contract, such occurrence or action shall constitute a “Default” under the Contract, and constitute cause for termination. City may serve written notice upon Contractor and it’s surety of the event of Default under this Contract. City shall have the right, subject to this Section, to draw upon or use the appropriate security to do or cause to be done acts required of Contractor that Contractor has failed to perform or to otherwise mitigate City’s damages in the event of Default by Contractor. City’s right to draw upon or use the Security is in addition to any other remedy available to City. The Parties acknowledge that the estimated

Construction Contract 15 costs and surety amounts may not reflect the actual cost of construction of the work and, therefore, City’s damages reimbursable by Contractor for Contractor’s Default shall be all of the actual costs of completing the required work, or severable improvement thereof, regardless of whether the City’s costs of completion exceeds the amount of the surety amounts. City also is entitled to recover all associated costs of enforcing the terms of this Contract including City administrative costs for staff time, consultant fees, court fees, and attorneys’ fees and costs.

27. Termination.

(a) City may terminate this Contract at any time, with or without cause, in its sole discretion, by giving written notice to Contractor at least ten (10) calendar days prior to such termination. City may, at its option, allow Contractor to cure its failure to perform within 10 business days (or longer period authorized in writing by City) from the date of the City’s termination notice. The termination shall be become effective if Contractor has not cured within the specified time period to the City’s satisfaction.

(b) Contractor may terminate this Contract for cause by providing written notice of intent to terminate not less than thirty (30) calendar days prior to an effective termination date.

Contractor may terminate for cause if the City fails to cure a material default in performance within a period of thirty (30) calendar days (or such longer period agreed to by Contractor), from the date of the Contractor’s written termination notice specifying the default in performance.

(c) Upon notice of termination by either the City or Contractor, Contractor will immediately act to not incur any additional obligations, costs or expenses, except as may be reasonably necessary to terminate its activities. City’s only obligation to Contractor will be payment for work authorized by and received to the satisfaction of the City up to and including the effective date of termination less any amounts withheld by the City for any expenses or damages sustained by City related to Contractor’s acts or omissions under the Contract.

(d) In the event of Contractor’s failure to perform pursuant to the Contract, the City reserves the right to obtain services elsewhere and Contractor will be liable for the difference between the Contract costs set forth in the terminated Contract and the actual full cost to the City to complete the Project. When exercising any rights or remedies under this paragraph, the City shall not be required to obtain the lowest price for the work performed.

(e) Subject to the terms and operation of any applicable performance bond, if the City has terminated the Contract for cause, it may exclude Contractor from the work site, take possession of the work, incorporate in the work all materials and equipment stored at the site or for which the City has paid Contractor but which are stored elsewhere, and complete the work as the City may deem expedient.

(f) Termination of the Contract pursuant to this Section shall not relieve Contractor of any liability to the City for additional costs, expenses, or damages sustained by the City due

Construction Contract 16 to failure of Contractor to perform pursuant to the Contract. City reserves all remedies available to it at law or in equity for breach of Contractor’s obligations under this Contract, or failure to pay the City any damages due or penalties assessed within the time prescribed. City may withhold any payments to Contractor for the purpose of set off until such time as the exact amount of damages due the City from Contractor is determined. After the effective date of termination, Contractor will have no further claims against the City under the Contract. City shall not be liable for costs incurred by Contractor or its subcontractor(s) after receipt of a notice of termination No other compensation will be payable to Contractor for any loss of anticipated profits on unperformed services or other economic loss arising out of or resulting from such termination.

28. Dispute Resolution. The Parties agree to attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Contract.

Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested. Promptly upon such notification, the Parties shall meet at a mutually agreeable time and place in order to exchange relevant information and perspective, and to attempt to resolve the dispute. In the event that no resolution is achieved, and if, but only if, the parties mutually agree, then prior to pursuing formal legal action, the parties shall make a good faith effort to resolve the dispute by non-binding mediation or negotiations between representatives with decision-making power, who, to the extent possible, shall not have had substantive involvement in the matters of the dispute. If the dispute is not resolved by these negotiations, the matter will be handled as the parties may agree or, otherwise as allowed by applicable law. Notwithstanding the foregoing provisions, nothing contained in this Contract shall impair the parties’ right to immediately pursue any and all legal remedies which may be available should there be a default in the terms of this Contract, and a failure to cure said default after notice as required under this Contract. If required by statute (e.g. applicable statute of limitation) to perfect or preserve a claim, either party may file the required notice of claim and/or commence litigation.