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Home My WebLink AboutR41-Economic Development Agency CITY OF SAN BERNARDINO ECONOMIC DEVELOPMENT AGENCY FROM: Emil A. Marzullo Interim Executive Director SUBJECT: Phillips Construction, Inc. Construction Contract for the Americans with Disahilities Act ("ADA") Ramps and Sidewalks Project Phase n - various locations Citywide DATE: May 20, 2011 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------. SvnoDsis of Previous Commission/Council/Committee Action(s): On May 19, 2011, Redevelopment Committee Members Johnson, and Marquez unanimously voted to recommend that the Community Development Commission consider this action for approval. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------. Recommended Motion(s): lCommunitv Develonment Commission) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute a Construction Contract by and between the Agency and Phillips Construction, Inc., for construction of Americans with Disabilities Act ("ADA") Ramps and Sidewalks Project Phase [] - various locations Citywide (40th Street, South Valle, and Northwest Redevelopment Project Areas) __________________________n__________________________________n_______________n_____________________________________________________________ Contact Person(s): Brian Turnbull 40th Street, South Valle, Northwest Redevelopment Project Areas Phone: (909) 663-1044 Project Area(s): Ward(s): 3rd, 4th, 6th, 7th Supporting Data Attached: "" Staff Report "" Resolution(s) "" Agreement(s)/Contract(s) 0 Map(s) 0 Letter(s) FUNDING REQUIREMENTS: Amount: $ $270,809 Source: HUD CDBG-R and Redevelopment Funds 20 I 0-20 11 Budget Budget Authority: Signature: Emil A. Marzullo, Interim Fiscal Review: Lori Panzino-Tillery, Interi --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------. Commission/Council Notes: P:\AgendasIComm Dev Commission\CDC 2010106-06-201 I Phillips Construction ADA Phase II SRdoc COMMISSION MEETING AGENDA Meeting Date: 06/06/2011 Agenda Item Numher: g if ( ~f'fP ECONOMIC DEVELOPMENT AGENCY STAFF REPORT ---------------------------------------------------------------------------------------------------------------------------- PHILLIPS CONSTRUCTION, INC. - CONSTRUCTION CONTRACT FOR THE AMERICANS WITH DISABILITIES ACT ("ADA") RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS CITYWIDE BACKGROUND: On February 17,2009, Congress passed the American Recovery and Reinvestment Act of 2009 ("ARRA") which provided stimulus funding to a variety of programs for shovel-ready projects. Under the ARRA, Community Development Block Grant-Recovery Funds ("CDBG-R") were provided to the City of San Bernardino ("City"). The availability of these funds allowed for the design and construction of the Americans with Disabilities Act ("ADA") Ramps and Sidewalks Project to be constructed at various locations Citywide. CURRENT ISSUE: On June 1,2009, the Mayor and Common Council of the City of San Bernardino ("Council") approved the allocation of $451,548 in CDBG-R Funds for the Redevelopment Agency of the City of San Bernardino ("Agency") to administer and construct a Citywide handicapped access improvements project. Phase I of the project was completed in July, 20 I O. Bids for Phase 11 of the project were solicited on May 7, 2011, and a bid opening was held on May 16, 2011. Phillips Construction, Inc. ("Contractor") was the lowest, responsible bidder. The bid amount was $270,809 and the project will construct improvements in the 3'd, 4'h, 6th and 7'h Wards; impacting the 40th Street, South Valle and Northwest Redevelopment Project Areas. The Contractor will be required to comply with Federal Davis-Bacon Prevailing Wage requirements because of the CDBG-R funding source. ENVIRONMENTAL IMPACT: This Project is exempt under California Environmental Quality Act (CEQA) pursuant to Section 15301. A Notice Of Exemption will be filed for the Project. FISCAL IMPACT: $270,809 from HUD CDBG-R and Redevelopment Funds are budgeted for this project. RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. ~(;;e --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- P:\AgendasIComm Dev CommissionlCDC 2010\06-06-2011 Phillips Construction ADA Phase II SR.doc COMMISSION MEETING AGENDA Meeting Date: 06/06/2011 Agenda Item Number: t L..{ I 1 2 3 4 5 6 7 8 9 10 RESOLUTION NO. RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE A CONSTRUCTION CONTRACT BY AND BETWEEN THE AGENCY AND PHILLIPS CONSTRUCTION, INC., FOR CONSTRUCTION OF AMERICANS WITH DISABILITIES ACT ("ADA") RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS CITYWIDE (40TH STREET, SOUTH VALLE, AND NORTHWEST REDEVELOPMENT PROJECT AREAS) WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a 11 community redevelopment agency duly created, established and authorized to transact business and 12 exercise its powers, all under and pursuant to the California Community Redevelopment Law (the 13 "CRL"), codified under Division 24, Part I of the California Health and Safety Code commencing at 14 Section 33000 and is authorized to construct improvements located within the approved 15 redevelopment project areas in the City of San Bernardino (the "City") in accordance with the CRL; 16 and 17 WHEREAS, the 40th Street, South Valle, and Northwest Redevelopment Project Areas (the 18 "Project Areas") display substantial and pervasive symptoms of blight that cannot be remedied by private parties acting alone without community redevelopment assistance; and 19 20 WHEREAS, on February 17, 2009, Congress passed the American Recovery and 21 Reinvestment Act of 2009 ("ARRA") which provided Community Development Block Grant- 22 Recovery Funds ("CDBG-R") to the City; and 23 WHEREAS, on June I, 2009, the Mayor and Common Council of the City of San 24 Bernardino ("Council") approved the allocation of $451 ,548 in CDBG-R Funds for the construction 25 of the ADA Ramps and Sidewalks Project (the "Project"); and 26 27 WHEREAS, Phase I of the Project was completed in July, 2010; and WHEREAS, the scope of work for Phase II of the Project will include construction of ramps, curb cuts and sidewalk to ensure compliance with the ADA; and 28 I P:\Agendas\ResolutionsIResolutions\2011\06_06-11 Phillips Consmetion - ADA Construction Contracr Phase II CDC Reso.doc 1 WHEREAS, bids to construct Phase II of the Project were solicited on May 7, 2011, and a 2 bid opening was held on May 16, 2011, with Phillips Construction, Inc. ("Contractor"), as the 3 lowest responsible bidder in the amount of$270,809; and 4 WHEREAS, the Community Development Commission of the City of San Bernardino (the 5 "Commission"), as the governing board of the Agency, seeks to enter into a Construction Contract 6 ("Contract") with Contractor, to construct Phase II of the Project located at various locations 7 Citywide (see list of locations attached hereto as Exhibit "A"), in San Bernardino, in the Project 8 Areas; and 9 WHEREAS, the Project is exempt under California Environmental Quality Act ("CEQA") 10 pursuant to Section 15301 and a Notice of Exemption will be filed for Phase II of the Project. 11 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 12 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 13 FOLLOWS: 14 Section 1. The information set forth in the above recitals of this Resolution is true and 15 correct. 16 Section 2. The Commission hereby awards the publicly bid contract to the Contractor as 17 the lowest responsible bidder and approves the Contract between the Agency and the Contractor 18 attached hereto, incorporated herein by reference, and waives any irregularities in the bid as 19 submitted by the Contractor as permitted by the bid documents. 20 Section 3. The Interim Executive Director of the Agency is hereby authorized to execute 21 the Contract on behalf of the Agency in substantially the form attached hereto as Exhibit "B", 22 together with such changes therein as may be approved by the Interim Executive Director of the 23 Agency, Agency Counsel and City Attorney. The Interim Executive Director of the Agency or such 24 other designated representative of the Agency is further authorized to do any and all things and take 25 any and all actions as may be deemed necessary or advisable to effectuate the purposes of the 26 Contract, including making non-substantive modifications to the Contract. 27 Section 4. This Resolution shall take effect from and after its date of adoption by this 28 Commission. 2 P:\Agendas\Resoltuions\Resolutions\2011106_06_11 Phillips Consmetion - ADA Construction Contract Phase II eDC Reso,doc 1 Section 5. The Interim Executive Director or his designee shall post and file a Notice of 2 Exemption within five (5) days of adoption of the Resolution. 3 III 4 III 5 III 6 III 7 III 8 III 9 III 10 III 11 III 12 III 13 III 14 III 15 III 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III 3 P\AgendasIResolutionsIResolutions\2011\06_06_ll Phillips ConsTUdion - ADA Construction Contract Phase II CDC Reso.doc 1 2 3 4 5 6 7 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE A CONSTRUCTION CONTRACT BY AND BETWEEN THE AGENCY AND PHILLIPS CONSTRUCTION, INC., FOR CONSTRUCTION OF AMERICANS WITH DISABILITIES ACT ("ADA") RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS CITYWIDE (40TH STREET, SOUTH VALLE, AND NORTHWEST REDEVELOPMENT PROJECT AREAS) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 8 Development Commission of the City of San Bernardino at a 9 thereof, held on the day of 10 Commission Members: Aves 11 MARQUEZ 12 VACANT 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 MC CAMMACK 18 19 20 meeting ,2011, by the following vote to wit: Navs Abstain Absent Secretary 21 The foregoing Resolution is hereby approved this 22 23 24 25 day of ,2011. Patrick J. Morris, Chairperson Community Development Commission of the City of San Bernardino 26 Approved as to Form: 27 By: 28 F ,m~j1V Agency Couf{sel 4 P:\Agendas\Resoll.ltions\Resolutions\2011\06-06_J] Phillips Consmetion - ADA Construction Contract Phase II eDC Resodoc EXHIBIT "A" LOCATION LIST PLANS & SPECIAL PROVISIONS NO. 12759 ADA ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS (SS-B 2007/08-2) MT. VIEW A VENUE BETWEEN 30TH STREET AND MARSHALL BLVD MT. VIEW A VENUE AND 30TH STREET . (2) @ NWC and NEC MT. VIEW AVENUE AND 31sT STREET · (2) @ NWC and NEC . (2) @ SWC and SEC . (2) @ THE CENTER MEDIAN MT. VIEW AVENUE AND MARSHALL BLVD. . (1) @ SEC . (2) @ THE CENTER MEDIAN 40TH STREET BETWEEN SIERRA WAY AND WATERMAN AVENUE 40TH STREET AT THE ALLEY EAST OF SEPULVEDA . (2) @ NWC and NEC 40TH STREET AT LEROY STREET . (1)@NWC 40TH STREET AT THE DWY ENTRANCE EAST OF LEROY STREET . (2) @ SWC and SEC 40TH STREET AND SEPULVEDA · REALIGN STRIPING @ NWC and NEC · REALIGN STRIPING EX RAMPS AT STATERS ENTRANCE P:\Agendas\Agenda Attachments\Agenda Attachments\E~hibjt5\2011\06-06-11 Phillips Construction ADA Construction Contract Phase II E~hibjt5 SP-56 LOCATION LIST (CONTINUED) PLANS & SPECIAL PROVISIONS NO. 12759 ADA ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS (SS-B 3007/08-2 WATERMAN AVENUE AT CAROLINE STREET . (1)@NEC PICO STREET BETWEEN BASELINE STREET AND 13TH STREET PICO AT 13TH STREET . (2) @ NEC and SEC . (1) @ OPPOSITE NEC SP-57 P:\Arendas\Agenda Aftaehments\Agenda Atlaehments\Exhibits\2011\06..Q6_11 Phillips Construetion ADA Construction Contl1lct Phase II Exhibits EXHIBIT "B" PUBLIC WORKS CONSTRUCTION CONTRACT REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AMERICANS WITH DISABILITIES ACT ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS SAN BERNARDINO, CA 92401-10 THIS PUBLIC WORKS CONSTRUCTION CONTRACT for the construction of AMERICANS WITH DISABILITIES ACT ("ADA") ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II for the City of San Bernardino project (this "Contract"), is made and entered into this 6th day of June, 2011, by and between Redevelopment Agency of the City of San Bernardino (referred to herein as the "Owner" or the "Agency") and Phillips Construction, Inc. (the "Contractor"). IN WITNESS HEREOF, THE UNDERSIGNED PARTIES HAVE MUTUALLY COVETED AND AGREE TO THE FOLLOWING: 1. THE CONTRACT DOCUMENTS. The complete contract is comprised of and includes: I) the Notice of Inviting Bids; 2) the Instructions to Bidders; 3) this Contract; 4) Contractor'slBidder's Bid, 5) Contractor's/Bidder's Statement of Experience; 6) Contractor'slBidder's Certification Concerning No Suspension and Debarment Requirements for Public Works Contracts Under the Public, Contracts Code and for all Contracts over $25,000 (49 CFR 29); 7) Contractor's/Bidder's Certification Concerning Clean Air and Water Pollution Control; 8) Contractor's/Bidder's Certification Concerning Designation of Subcontractors; 9) Non-Collusion Affidavit; 10) Contractor'slBidder's Certification Relating to Campaign Contributions; II) Contractor's/Bidder's Certification Concerning Worker's Compensation Insurance; 12) Certification ofInsurance Coverage; 13) Contractor'slBidder's Certification Concerning Disadvantaged Business Enterprises (DBE) Information-Good Faith Efforts; 14) Contractor's/Bidder's Certification Concerning Buy American; 15) Contractor'slBidder's Certification Concerning Trade Restrictions; 16) Contractor's/Bidder's Certification Concerning Labors Standards and Prevailing Wage Requirements; 17) Contractor's/Bidder's Certification Concerning Equal Employment Opportunity; 18) Contractor's/Bidder's Certification Concerning "Section 3" Clause; 19) Contractor's/Bidder's and Vendors Certification Concerning Affirmative Action Policy; 20) Contractor's/Bidder's Certification Concerning Nonsegregated Facilities; 21) Subcontractor's Certification Concerning Labors Standards and Prevailing Wage Requirements; 22) Subcontractor's Certification Concerning Equal Employment Opportunity; 23) Copies of State of California Contractor's Licenses, City of San Bernardino Business License, Worker's Compensation Insurance, Comprehensive General Liability Insurance per Contract; 24) Form of Performance Bond; 25) the complete Project Construction Plans and Specifications and Provisions; 26) General Conditions (including without limitation, Part I, Sections 1-9 of "Standard Specifications for public Works Construction, 2000 editorial (the "Greenbook") as supplemented by the 2002 "Cumulative Supplement to Greenbook"); 27) any Addenda issued under the Instructions to Bidders; 28) Any Regulations, Ordinances, Codes, and Laws incorporated therein or herein by reference or otherwise applicable to the Project; 29) Any Agency approved Change Order(s) submitted during construction. All of the above documents are intended to cooperate as one (1) contract so that any work called for in one (1) and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract are hereinafter referred to collectively as the "Contract Documents". Page I 1':......\g('lHLo,..,\gfJld" .\II:!<'h""'rll,'.,\rymL, .. \ \lad""""l,.. \~r1ll1'- \""",,1 ~llll'.fI(,-II(,-ll Phillip., (:"'''1,-",'1 ;"" \ IlA 1'"hli,- \, "d" (:"1),1 "'1\'1 ion ( '",,1""'1 I'h",~ [!.d." 2. THE WORK. The Contractor agrees to furnish all tools, apparatus, facilities, equipment, labor and materials (except that specifically mentioned as being furnished by others) necessary to perform and complete the work in a good and worker like manner as called for, and in the manner designated in, and in strict conformity with the Project Construction Plans, Detail Specifications, and other Contract Documents which are identified by the signatures of the parties to this Contract and are, collectively, entitled: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ADA ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS SAN BERNARDINO, CA 92401-10 3. CONTRACT PRICE. The Agency agrees to pay and the Contractor agrees to accept, in full payment for the work above agreed to be done, the following compensation, to-wit: Amounts as determined by applying the information contained in the Contractor's bid for the 'ADA Ramps and SIDEWALKS PHASE II - VARIOUS LOCATIONS Various Locations in San Bernardino, CN (the "Project"). The amount of this Contract for the Project is Two Hundred Seventy Thousand Eight Hundred Nine Dollars ($270,809). 4. CONTRACT AMENDMENTS. The Interim Executive Director of the Agency is authorized to sign on his or her own authority amendments to this Contract which are of routine or technical nature, including minor adjustments to the Schedule of Performance unless otherwise specified in this Contract. All other amendments require the mutual agreement of both the Agency and the Contractor. 5. INCORPORATION BY REFERENCE OF PART 1, SECTIONS 1-9 OF THE GREENBOOK, 2000 EDITION, AS SUPPLEMENTED. The Greenbook, as supplemented by the publication entitled, "2002 Cumulative Supplement to Greenbook", is hereby incorporated by this reference into this Contract. The word "Project" means and refers to the "Project", as this term is defined in the Instruction to Bidders. To the extent that any provision of the printed text which appears in this Contract is in conflict with the printed text of the provisions of the Greenbook as incorporated into this Contract by this reference, then in such event, the printed text of this Contract shall take precedence over such printed text in the Greenbook. 6. PAYMENT. Not later than the 20th day of each calendar month, the Contractor shall make a partial payment request to the Agency on the basis of an estimate approved by the Construction Manager, Architect and Agency of the work performed since the last partial payment request during the preceding month by the Contractor with (10%) ten percent of the amount of each such estimate retained by the Agency, until completion of the Project and the recordation of a Notice of Completion of all work covered by this Contract. The Agency shall make any partial payments provided for in this contract to the Contractor v'ithin thirty (30) calendar days of the Agency's receipt of an undisputed and properly executed partial payment request from the Contractor. The Agency shall pay the Contractor interest on the amount of any portion of a partial payment, excluding retention amounts, not made to the Contractor within thirty (30) calendar days of the Agency's receipt of an undisputed and properly executed partial payment request from the Contractor at the legal rate set forth in California Code of Civil Procedure Section 685.010. Upon receipt of a Page 2 P:\AgendasV\gel1da Attachments\Agcnda Attachmcnh\.l,grmts-Amcnd 2011\06-0601 I Phillips Construction - ADA Public Works Construc1iGlI ('onlract Phase If.doc partial payment request from the Contractor, the Agency shall review the partial payment request for the purpose of determining whether or not the partial payment request is a proper partial payment request. Any partial payment request determined by the Agency not to be a proper partial payment request suitable for payment shall be returned to the Contractor by the Agency within ten (10) working days of the Agency's receipt of such partial payment request. A partial payment request returned to the Contractor by the Agency under the provisions of this section shall be accompanied by a written document setting forth the reason(s) why the partial payment request is not proper. The number of days for the Agency to make a certain partial payment provided for in this Contract, without incurring interest pursuant to this section, shall be reduced by the number of days by which the Agency exceeds the ten (10) working days return period for such partial payment request, if determined to be improper, as set forth in this section. For the purposes of this section, a "partial payment" means all payments due to the Contractor under this contract, exclusive of that portion of the final payment designated as retention earnings. Also, for the purposes of this section, a partial payment request shall be considered properly executed by the Agency, if funds are available to pay the partial payment request and payment is not delayed due to an audit inquiry by the Agency's financial officer. The Agency will release the Contractor's retention earnings within forty-five (45) days after recordation of Notice of Completion, as defined in California Civil Code Section 3093. Recordation ofa Notice of Completion for the Project by the Agency shall constitute the Agency's acceptance of the Project work. 7. STOP NOTICE. The Contractor shall promptly pay all valid bills and charges for material, labor, equipment or otherwise in connection with or arising out of the performance of this Contract, and will hold the Agency free and harmless against all liens and/or claims of lien for material, labor or equipment filed against the Agency, and from and against all expenses and liability in connection therewith, including, but not limited to, court costs and attorney's fees resulting or arising therefrom. In the event any liens and/or claims of lien are filed for record against the Agency or any property owned by the Agency, or the Agency receives notice of any unpaid bill or charge in connection with the performance of this Contract, the Contractor shall forthwith either pay and discharge the liens and/ or claims of lien and cause same to be released of record, or the Contractor shall furnish the Agency with proper indemnity, either by satisfactory corporate Surety Bond or satisfactory title policy. Said indemnity shall also be subject to approval of Lien Holder. 8. TIME FOR COMPLETION. All work under this Contract shall be completed by a date no later than September 5, 2011, or within a period of ninety (90) calendar days from the date of the Contractor's receipt of Notice to Proceed from the Agency which date may first occur; provided, however that the Contractor shall have received its Notice to Proceed by a date no later than June 7, 2011. 9. EXTENSION OF TIME. If the Contractor is delayed by acts of negligence of the Agency, or its employees or those under it by Contract or otherwise, or by changes ordered in the work, or by strikes, lockouts, fire, unavoidable casualties, or any causes beyond the Contractor's control, or by delay authorized by the Agency, or by any justifiable cause which the Architect and Agency shall authorize, then the Contractor shall make out a written claim addressed to the Agency setting forth the reason for the delay and the extension of the time requested and forward a copy of the claim to the Architect and Agency for approval. The Architect and Agency will evaluate the claim and if the claim is justifiable, will request the Agency's approval. No such extension will be allowed unless written claim therefore has been made within three (3) working days after the delay became apparent. 10. LIQUIDATED DAMAGES FOR DELAY. The provisions of Section 6.9 of the Greenbook are hereby modified to provide for a liquidated damages amount of Five Hundred Dollars ($500) per working day. Page 3 P:\Ag~",J",\Agenda AttHhmmts"u\gerula Attllchmeuts'Agnnts-Amello 2011\06-06(111 Phillips ConstructiUIl - ADA "ublir Works COll\lruclion Contract )'hase IT.d"... 11. CHANGE ORDERS. No change in work, as described in the Contract Documents, shall be made except upon the approval of the Agency. The Contractor shall not be entitled to any compensation for any additional work unless such Project Change Order is written and entered into by the Contractor and the Agency. The Project Change Order shall describe the nature of the additional work in detail, the location of the work, the time for completion thereof, and terms of compensation to be paid to the Contractor for its performance in accordance with this Contract, as modified by the Project Change Order. 12. REAL PROPERTY LIENS. The Contractor shall promptly pay all valid bills and charges for material, labor or otherwise in connection with or arising out of the performance of this Contract, and will hold the Agency free and harmless against all liens and/or claims of lien for material and labor filed against the real property or any part thereof, and from and against all expense and liability in connection therewith, including, but not limited to, court costs and attorney's fees resulting or arising therefrom. In the event any liens and/or claims of lien are filed for record against the real property, or the Agency receives notices of any unpaid bill or charge in connection with the performance of this Contract, the Contractor shall forthwith either pay and discharge the liens and/or claims of lien and cause same to be released of record, or the Contractor shall furnish the Agency with proper indemnity, either by satisfactory corporate surety bond or satisfactory title policy. Said indemnity shall also be subject to approval ofthe lien holder. 13. INDEMNIFICATIONS AND HOLD HARMLESS. The Contractor shall defend, indemnify, protect and hold free and harmless the Agency, its officers, employees, and agents from and against any and all actions, suits, proceedings, claims, demands, losses, costs, injuries to or death of any person or persons and expenses, including attorney's including attorney's fees, for injury or damage of any type claimed which is brought by any individual or entity, whether public or private, as a result of the acts, errors or omissions of the Contractor, its officers, employees, agents, and its Subcontractors arising from or related to performance of the work required hereunder to complete the Project. 14. INSURANCE. The provisions of Section 7-3 and Section 7-4 of the Greenbook are hereby amended to read as follows for the purposes of this Contract: The Contractor shall procure and maintain insurance policies meeting the minimum requirements set forth below. Insurance shall be provided by insurers satisfactory to the Agency. Certificates evidencing insurance coverage shall be delivered to the Agency for each policy required herein prior to commencement of any work. All insurance certificates shall name the Agency as an additional insured and provide for thirty (30) days prior to written notice of cancellation to the Agency. a. Comprehensive General Liabilitv Insurance. The Contractor shall maintain comprehensive general liability insurance of not less the One Million Dollars ($1,000,000) combined single limit per occurrence. The Contractor must provide Comprehensive General Liability Insurance Policy with appropriate endorsement for builder's course of construction and fire casualty loss. b. Automobile Insurance. The Contractor shall maintain comprehensive automobile liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence. c. Worker's Compensation. The Contractor shall maintain worker's compensation coverage in accordance with the Laws of the State of California for all workers under it employ and Subcontractors performing the work required herein. Page 4 P:'Agcntla!\>\genda Allachmcllls\Agcnda AltHhmcnl~V.grmlS-Amend 2011\06-06011 Phillip~ Corulruclion - ADA Public Work.\ Conslruction ('onlract Phase ll.doc 15. LABOR PROVISIONS. a. Prevailing Wages. (I) All laborers and mechanics employed or working upon the site of the Project will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination ofthe Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section I (b )(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to laborers or mechanics, subject to the provisions of subparagraph a.(4) below; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraph d. of this clause. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under a.(2) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its Subcontractors at the site of the Project in a prominent and accessible place where it can easily be seen by the workers. (2) (i) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under this Contract shall be classified in conformance with the wage determination. The Agency shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (A) The work to be performed by the classification requested IS not performed by a classification in the wage determination; and (B) The classification is utilized in the area by the construction industry; and (C) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (ii) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the Agency agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the Agency to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within thirty (30) days of receipt and so advise the Agency or will notify the Agency within the 30-day period that additional time is necessary. Page 5 1':\..\gendas\Agcnda Atlachmtllls\Agcnda AlIachmcllts\Agrmts-Amend 2011106-06011 Philli[}s COllstruction - ADA Publjc \\'ork~ Construction COllfracll'hasc lI.doc (iii) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives and the Agency do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits where appropriate), the Agency shall refer the questions, including the views of all interested parties and the recommendation of the Agency, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within thirty (30) days ofreceipt and so advise the Agency or will notify the Agency within the thirty (30) day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215-0140.) (iv) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (2)(ii) or (iii) of this paragraph, shall be paid to all workers performing work in the classification under this Contract from the first day on which work is performed in the classification. (3) Whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (4) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. b. Withholding. The Agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this Contract or any other Federal contract with the same Contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the Project, all or part of the wages required by the contract, the Agency may after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. c. Payrolls and Basic Records. (1) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three (3) years thereafter for all laborers and mechanics working at the site of the Project. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section I (b )(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under paragraph a(4) of this clause that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1 (b )(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, Page 6 P:\A.gfnd~s\Agcnd~ Atlllrhments\AgeTld~ All1\chmcnts\Agnnh-AlllClld 2Ul 1\06-0601 1 Phillips ('lInstruction - ADA PllbJic Works Conslruct;orl Contrad Phase lI.doc and records which show the costs anticipated or the actual costs incurred in providing such benefits. If the Contractor employs apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (2) (i) The Contractor shall submit weekly for each week in which any Contract work is performed a copy of all payrolls to the Agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph c(l) above. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029- 005-00014-1), U.S. Government Printing Office, Washington, D.C. 20402. The Contractor is responsible for the submission of copies of payrolls by all Subcontractors. (ii) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or Subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following: (A) That the payroll for the payroll period contains the information required to be maintained under paragraph c(l) above and that such information is correct and complete; (B) That each laborer and mechanic (including each helper, apprentice and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3; (C) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract. (iii) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph c.(2)(b) of this section. (iv) The falsification of any of the above certifications may subject the Contractor or Subcontractor to civil or criminal prosecution under Section 100 I of Title 18 and Section 231 of Title 31 of the United States Code. (3) The Contractor or Subcontractor shall make the records required under paragraph c(l) of this section available for inspection, copying or transcription by authorized representatives of the Agency, the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the Contractor or Subcontractor fails to submit the required records or to make them available, the Department of Labor may, after written notice to the Contractor or the Agency take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for Debarment of the Contractor or Subcontractor pursuant to 29 CFR 5.12. Page 7 P:\'\gentlas\Al!fllda ,\tladwlenls\Ag;enlla Altad\lmlll.~\.-\~rtnls-AlI1fntl2011\06-0('OIl Phillips Construction ,\0'\ Public Worl,-, Construction Contrncll'hase I1.doc d. Apprentices and Trainees. (1) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the United States Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first ninety (90) days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the Project site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination of the work actually performed. Where a Contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or Subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (2) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the United States Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the Project site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the Project site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a Page 8 P;\A~ew.l<l$\;\g"llda Attatbmellt.'v\gentla Altadunelll,\.,\grmth\lIlend Wj J\06-()r.OIl Phillips Cnll,>lrurtillll _ AD:\ Publir '''nrks r\ll1,tl1lc!iun ('nnlnK! ]'h:I.<;" ILdoc trammg program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (3) Equal Employment Opportunitv. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended and 29 CFR Part 30. e. Compliance with Copeland Act Requirements. The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference into this Contract. f. Subcontracts. The Contractor and each Subcontractor shall insert in any subcontracts the clauses contained in paragraphs a. through j. of this Contract and such other clauses may by appropriate instructions require, and also a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for the compliance by any Subcontractor or lower tier Subcontractor with all the Contract clauses in 29 CFR 5.5. g. Contract Termination: Debarment. A breach of this Contract clauses in paragraphs a. through j. of this Section IS and a. through e. of Section 16 below are grounds for termination of this Contract, and for the Debarment of the Contractor or Subcontractor as provided in 29 CFR 5.12. h. Compliance with Davis-Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts I, 3, and 5 are herein incorporated by reference in this Contract. i. Disputes Concerning Labor Standards. Disputes ansmg out of the labor standards provisions of this Contract shall not be subject to the general disputes provision of this Contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6 and 7. Disputes within the meaning of this clause include disputes between the Contractor (and any of its subcontracts) and the Agency, the U.S. Department of Labor, or the employees or their representatives. J. Certification of Eligibility. (I) By entering into this Contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(l ). (2) No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(l). (3) The penalty for making false statements or certifications in the making of this Contract is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. 16. CONTRACT WORK HOURS AND SAFETY STANDARDS REQUIREMENTS. As used in the following provision, the term "laborers" and "mechanics" include watchmen and guards. a. Overtime Requirements. Neither the Contractor nor any Subcontractor contracting for any part of the Project which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on Page 9 r:v.g~nda!\Agenda Allachments\Agenda Altachmellts\A~rmls-Amelld 20] 1\06-06011 Pl1i1tips ('OIl~lru('ljOIl. ADA Public Works Construclion COlllracl Phase lI.doc such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-halftimes the basic rate of pay for all hours worked in excess of forty (40) hours in such workweek, whichever is greater. b. Violation; Liabilitv for Unpaid Wages; Liquidated Damages. In the event of any violation of the clause set forth in paragraph a. above, the Contractor and any Subcontractor responsible therefore shall be liable for the unpaid wages. In addition, the Contractor and Subcontractor shall be liable to the Agency for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph a. above, in the sum of Ten Dollars ($10) for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty (40) hours without payment of the overtime wages required by the clause set forth in paragraph a. above. c. Withholding for Unpaid Wages and Liquidated Damages. The Agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any monies payable on account of work performed by the Contractor or Subcontractor under any such contract or any other Federal contract with the same Contractor, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or Subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph b. above. d. Working conditions. Neither the Contractor nor any Subcontractor may require any laborer or mechanic employed in the performance of any contract to work in surroundings or under working conditions that are unsanitary, hazardous or dangerous to his health or safety as determined under construction safety and health standards (29 CFR Part 1926) issued by the Department of Labor. e. Subcontracts. The Contractor and any Subcontractor shall insert in any subcontracts the clauses set forth in paragraphs a. through d. and also a clause requiring the Subcontractor to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any Subcontractor or lower tier Subcontractor with the clauses set forth in paragraphs a. through d. 17. NONDISCRIMINATION. The Contractor, with regard to the work performed by it during the Contract, shall not discriminate on the grounds ofrace, color, or national origin in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. The Contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Contract covers a program set forth in Appendix B of the Regulations. 18. DISADVANTAGED BUSINESS ENTERPRISE PROGRAM PROVISIONS. The Contractor, sub recipient or Subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the perfonnance of this contract. Failure by the Contractor to carry out these requirements is a material breach of this Contract, which may result in the tennination of this Contract or such other remedy as recipient deems appropriate. The Contractor agrees to pay each Subcontractor under this Contract for satisfactory performance of its Contract no later than ten (10) days from the receipt of each payment the Contractor receives from Agency. The Contractor agrees further to return retainage payments to each Subcontractor within seven (7) days after the Subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written Page 10 1':\Agcndas\A.gcllda AtlachmcnlsV.gmda Atf~c!llnClll~\Agrml~-^mcnd 2011\(16-06011 Phillips COlls/ructioll - ADA Public Works Conslruclion Contract Phaw Il.doc approval of the Agency. This clause applies to both Disadvantage Business Enterprises (DB E) and non-Disadvantage Business Enterprises Subcontractors. 19. CIVIL RIGHTS. The Contractor assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This Provision binds the Contractor from the bid solicitation period through the completion of this Contract. This provision shall be inserted in all subcontracts, subleases and other agreements at all tiers. 20. SOLICITATIONS FOR SUBCONTRACTS, INCLUDING PROCUREMENTS OF MATERIALS AND EQUIPMENT. In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Contract and the Regulations relative to nondiscrimination on the grounds ofrace, color or national origin. 21. INFORMATION AND REPORTS. The Contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the Agency to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the The Contractor shall so certify to the Agency, as appropriate, and shall set forth what efforts it has made to obtain the information. 22. SANCTIONS FOR NONCOMPLIANCE. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Contract, the Agency shall impose such contract sanctions as determine to be appropriate, including but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. 23. INSPECTION OF RECORDS. The Contractor shall maintain an acceptable cost accounting system. The Agency, the Comptroller General of the United States or any of their duly authorized representatives shall have access to any books, documents, paper, and records of the Contractor which are directly pertinent to this Contract or the Project for the purposes of making an audit, examination, excerpts, and transcriptions. The Contractor shall maintain all required records for three (3) years after the Agency makes final payment and all other pending matters are closed. 24. RIGHTS IN INVENTIONS. All rights to inventions and materials generated under this Contract are subject to regulations issued by the Agency. Information regarding these rights is available from the Agency. 25. BREACH OF CONTRACT TERMS. Any violation or breach of terms of this Contract on the part of the Contractor or its subcontractors may result in the suspension or termination of this Contract or such other action that may be necessary to enforce the rights of the Agency under this Contract. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and Page 11 r:\Ag~lld~s,"<l.gel1da A1l8chmcnl,\Agcnda AtlachmcntsIAg,"mj,_Amcnd 2111 1106-0601 J Phillips Construction - AllA Public Works Construction Contract I'hase lI.doc remedies otherwise imposed or available by law. This Contract shaIl be interpreted under the laws of the State of California. The venue for any legal proceeding to interpret any provisions of this Contract shaIl be in the Superior Court ofthe County of San Bernardino. In the event that legal proceedings may be initiated by one (1) party to enforce its rights under this Contract, than the prevailing party in such legal proceedings shaIl be entitled to recover from the other party, its reasonable attorneys' fees either in such legal proceedings or in a separate action to recover such reasonable attorneys' fees. In the case of the Agency, the words "reasonable attorneys' fees" include the cost and expenses calculated on an hourly basis, of all lawyers retained by the Agency in connection with the legal representation of the Agency in any matter arising from this Contract, including, without limitation, attorneys in the Office of the City Attorney and Agency Counsel. 26. TERMINATION OF CONTRACT BY AGENCY. a. The Agency may, by written notice, terminate this Contract in whole or in part at any time, either for the Agency's convenience or because of the Contractor's failure to fulfiIl its Contract obligations. Upon receipt of such notice, services shaIl be immediately discontinued (unless the notice directs otherwise) and all materials as may have been accumulated in performing this Contract, whether completed or in process, delivered to the Agency. b. If the termination is for the convenience of the Agency, an equitable adjustment in the Contract price shaIl be made, but no amount shaIl be aIlowed for anticipated profit on unperformed services. c. If the termination is due to failure to fulfiIl the Contractor's obligations, the Agency may take over the work and prosecute the same to completion by Contract or otherwise. In such case, the Contractor shaIl be liable to the Agency for any additional cost occasioned to the Agency thereby. d. If, after notice of termination for failure to fulfiIl Contract obligations, it is determined that the Contractor had not so failed, the termination shaIl be deemed to have been effected for the convenience of the Agency. In such event, adjustment in the contract price shaIl be made as provided in paragraph 2 of this clause. e. The rights and remedies of the Agency provided in this clause are in addition to any other rights and remedies provided by law or under this contract. 27. INCORPORATION OF PROVISIONS. The Contractor shaIl include the provisions ofthis Contract in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations of directives issued pursuant thereto. The Contractor shaIl take such action with respect to any subcontract or procurement as the Agency may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the Agency to enter into such litigation to protect the interests of the Agency and, in addition, the Contractor may request the United States to enter into such litigation to protect the interests of the United States and the Department of Industrial Relations to protect the interests of the State of California. 28. CONTRACTOR CLAIMS OF $375,000 OR LESS. Claims by the Contractor relating to the Project for (a) a time extension, (b) money or damages arising from work done by, or on behalf of, the Contractor on the Project for which payment is not expressly provided for or to which the Contractor is not otherwise entitled, or (c) an amount that is disputed by the Agency, with a value of $375,000 or less, are subject to the claims procedures set forth in California Public Contract Code Sections 20 104, Page 12 P:\A::~ndas\Agcnda Allacnmcnts\Agcndu Allllchmcuts\Agrmls-Amcnd 2011\06-06011 Phillips Construction - ADA Public Works ConstrUClion ('ol11ract Phase ll.doc et seq., except as otherwise provided in this Contract and the incorporated documents, conditions and specifications. A copy of California Public Contract Code Sections 20104 through 20104.6 is attached to this Contract. 29. LOBBYING AND INFLUENCING FEDERAL EMPLOYEES. (I) No Federal appropriated funds shall be paid, by or on behalf of the Contractor or its Subcontractors, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant or the amendment or modification of any Federal grant. (2) If any funds other than Federal appropriated funds have been paid or will be paid by the Contractor or its Subcontractors to any person for influencing or attempting to influence an officer or employee of the Agency, any Federal Agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal grant, the Contractor shall complete and submit Standard Form-LLL, "Disclosure of Lobby Activities," in accordance with its instructions. 30. ASSIGNMENT OF CERTAIN RIGHTS TO THE AGENCY. In entering into this Contract or a subcontract to supply goods, services, or materials pursuant to this Contract, the Contractor and/or Subcontractor offers and agrees to assign to the Agency all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 V.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to this Contract or the subcontract. This assignment shall be made and become effective at the time the Agency tenders final payment to the Contractor, without further acknowledgement by the parties. 31. ENERGY CONSERVATION REQUIREMENTS. The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Public Law 94- 163) 32. PROTECTION. The Contractor shall, at all times, provide protection against weather, rain, wind, storm and heat so as to maintain all work, materials, apparatus and fixtures free from injury and damage. At the end of a day's work, all new work, and the premises, likely to be damaged by failure to provide protection as required above shall be replaced or repaired at the Contractor's expense. 33. CONTRACTORS BEST SKILL. The Contractor shall supervise and direct the work using its best efforts, skill and attention to ensure the workmanship and materials are of good quality and that the work is completed in accordance with this Contract. The Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures; safety on the work; and coordinating all portions on the Project to be performed by the Contractor's Laborers, Employees, Vendors and Subcontractors, if any. 34. UTILITY SERVICES. The Contractor will be able to use existing utilities without charge, including electric power and water. If the Contractor must disconnect or otherwise interrupt such services, including plumbing fixtures, to effect repairs or replacement, the use or availability of such services shall not be deprive the Project's occupants, unless the Project's occupants has been relocated. Where disruptions or disconnections will occur, other than during normal business hours, the Page 13 )';\A:::endns\Agenda Altacbmcnts\Agenda AllachHlenlslAgnnls-.<\mcnd !ll]l\06-lf601 1 "hillips Conslruelion - ADA Public Works Conslruclion Contrl\ct Phase lI.doc Contractor shall obtain approval of Project's occupant, at least twenty-four (24) hours prior to such interruption. 35. LEAD-BASED PAINT. The Contractor agrees that the use of any lead-based paints is strictly prohibited and shall not be used on this Project. The Contractor agrees to submit to the Agency an Abatement Plan pursuant to the State of California Department of Health Services Regulations, and pursuant to the South Coast Air Quality Management District, prior to the commencement of work on the Project, if applicable. The Agency assumes no liability for damages for personal injury, illness, disability, or death to the Contractors, or to any Consultant or employees, agents, or invitees of the Contractor or any Consultant, or to any other person, including members of the general public, arising from or incident to the Agency Investigation Work or other activity causing or leading to contact of any kind whatsoever with lead-based paint on the Agency Site, whether the Agency has properly warned, or failed to properly warn, any persons injured. The Contractor agrees to cause all removal, transportation and disposal of the lead-based paint removal pursuant to this Contract and the Contract Documents without any cost or liability to the Agency whatsoever. The Contractor shall execute all required documents and pay such fees, taxes and other charges and assessments as may be charged, levied or assessed as to the removal, transportation and disposal of the lead-based paint pursuant to this Contract. The Contractor represents and warrants that all such additional fees, taxes and other charges and assessments are included within the Contract price set forth in Section 3 hereof, if applicable. 36. ASBESTOS CONTAINING MATERIALS. The Contractor agrees to submit to the Agency an Abatement Plan pursuant to the State of California Department of Health Services Regulations, and pursuant to the South Coast Air Quality Management District, prior to the commencement of work on the Project, if applicable. The Agency assumes no liability for damages for personal injury, illness, disability, or death to the Contractors, or to any Consultant or employees, agents, or invitees of the Contractor or any Consultant, or to any other person, including members of the general public, arising from or incident to the Agency Investigation Work or other activity causing or leading to contact of any kind whatsoever with Asbestos on the Agency Site, whether the Agency has properly warned, or failed to properly warn, any persons injured. The Contractor agrees to cause all removal, transportation and disposal of the asbestos removal pursuant to this Contract and the Contract Documents without any cost or liability to the Agency whatsoever. The Contractor shall execute all required documents and pay such fees, taxes and other charges and assessments as may be charged, levied or assessed as to the removal, transportation and disposal of the asbestos pursuant to this Contract. The Contractor represents and warrants that all such additional fees, taxes and other charges and assessments are included within the Contract price set forth in Section 3 hereof, if applicable. 37. HAZARDOUS WASTE NOTIFICATION. The Contractor shall promptly, and before the following conditions are disturbed, notify the Agency, in writing, of any of the following: (I) Material that the Contractor believes may be hazardous waste, as defined in Section 25117 of the California Health and Safety Code that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law. Page 14 1':\Ag~rJ(Jas\AgendR Attscltmcnls\Agcnds AllschmentslAgrmts-Anwnd 20] 1106-06011 Phillips Conslrllclion - ADA Public Works Cllllstruclion COlllrRC! "hase Il.tlQC (2) Subsurface or latent physical conditions at the site differing from those indicated by information about the site made available to bidder prior to the deadline for submitting bids. (3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract. After promptly investigating the conditions of such material, if the Agency finds that the conditions do materially differ from that indicated in the information about the site in the bid packet made available to bidders prior to the deadline for accepting bids, or if the Agency finds that the conditions do involve hazardous waste, the Agency shall cause a decrease or increase in the Contractor's cost of the Project, or time required for performance of any part of the work for the Project, and shall issue a written Project Change Order under the procedures described in Section II of this Contract. In the event that a dispute arises between the Contractor and the Agency regarding whether the conditions materially differ, or whether the conditions involve hazardous waste, or whether such conditions cause a decrease or increase in the Contractor's cost of, or time required for, performance of any part of the work for the Project, the Contractor shall not be excused from any scheduled completion date provided for by this Contract, but shall proceed with all work to be performed under this Contract, retaining any and all rights provided by this Contract or law which pertain to the resolution of disputes under this Contract. 38. CLEANUP. The Contractor shall keep the subject Project clean and orderly during the course of the work. Upon completion of the work contemplated by this Contract, the Contractor shall cause all debris resulting from such construction to be removed from the subject Project and shall leave the subject Project in a neat and "broom-clean" condition. 39. BUSINESS REGISTRATION CERTIFICATION. The Contractor warrants that it possesses, or shall obtain immediately after the execution and delivery of this Contract, and maintain during the period of time that this Contract is in effect, a business registration certification pursuant to Title 5 of the City Municipal Code, together with any and all other licenses, contractor license, permits, qualification, insurance and approvals of whatever nature that are legally required to be maintained by the Contractor to conduct its business activities within the City. /1/ //1 /1/ /1/ /1/ /1/ //1 Page 15 P:\Agendas\Agenda Aflachmcnts\Agcnda A118Chrl1enls\A~rnm-ArneIl[12()11\06-06011 fllHli]>s Construction - ADA Public Works Construction Contract I'hase Il.doe IN WITNESS WHEREOF, three identical counterparts of this Contract, each of which shall for all purposes be deemed an original thereof, have been duly executed by the parties hereinabove named, on the day and year first herein written. AGENCY: Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date: By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: By: f);,,-o tuJ-I\.-..J1'l(.t ($j~ Kgency Counsel CONTRACTOR: Phillips Construction, Inc. Date: By: Type or Print Contractor's/Bidder's Business Address (City, State and Zip Code) Contractor's License Contractor License Classification Contractor's License Expiration Date Bond Number Page 16 P;\.4.g~nda!\Agl.'llda Atlllrlullcnl~\..l,.gelLdll Al1l1chl1lcnl~\Agrn1lS.AmcJld 20] 1106.060] I Phillips COIlSl'"uctiOJl - AnA I'llblic Work. Conslruction ('olllrHl l'hase IloiloI.' FORM OF PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS: That WHEREAS, State of California, on ,20 , awarded hereinafter designated as the "Principal", the contract to REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ADA ACCESS RAMPS AND SInEW ALKS PROJECT PHASE II - VARIOUS LOCA nONS SAN BERNARDINO, CA NOW THEREFORE, we the Principal, and as Surety, are held and firmly bound unto the RedeveloDment Al!encv of the Citv of San Bernardino. hereinafter called the "Owner" and/ or the "Agency", in the penal sum of Dollars ($ in lawful money of the United States, for the payment of which sum we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally firmly by these presents. THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, if the above bounden Principal, his/ her or its heirs, executors, administrators, successors or assign, shall in all things stand to and abide by and keep and truly and faithfully perform its duties, all undertakings, covenants, terms, conditions and agreements in the said Contract and any alteration thereof made as therein provided, on his/ her or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the Agency, its officers and agents, as therein stipulated, then this obligation shall become null and void: otherwise, it shall be and remain in full force and virtue, and also in case suit is brought upon such Bond, the above bounden Principal and the said surety will pay a reasonable attorney's fee which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment therein rendered. And the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed or materials and/ or equipment to be furnished thereunder or the Specifications accompanying the same, shall in anywise affect its obligations on this Bond; and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the Specifications. IN WITNESS WHEREOF (3) three identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the day of ,20_ By [SIGNATURE OF AUTHORIZED PRINCIPAL! OFFICER REPRESENTATIVE OF SURETY COMPANY] By [SIGNATURE OF AUTHORIZED PRINCIPAL/ OFFICER REPRESENT A TIVE OF CONTRACTOR] [TYPE OR PRINT NAME OF CONTRACTOR] [TYPE OR PRINT NAME OF SURETY COMPANY] 00-61-13 Page I7 P:\Agendas\Agcuda AHadllllcllls\Agcllda ,lI,ttachmcntsIAgrmls-Amcnd 2011106-06011 rhillip~ Con>lruclion - ADA Public Works ("ollstrud;nll Conlrad Pha~c ll.dllC FORM OF LABOR AND MATERIAL BOND as Surety, , as Principal, are held and finnly Redevelopment Al!encv of the Citv of San Bernardino , in the penal sum of Dollars ($ ), said sum being (100% of the estimated amount of the foregoing and annexed Contract, to be paid to said , for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors or assigns, jointly and severally, finnly by these presents. KNOW ALL PERSONS BY THESE PRESENTS: That we and bound unto THE CONDITION OF THIS OBLIGATION IS SUCH: That if the above bounden Principal, as Contractor in the annexed Contract or his/ her Subcontractors, shall fail to pay for any materials, provisions, provender, or other supplies or teams used in, upon, for or about the perfonnance of the work contracted to be done, or shall fail to pay any person, company or corporation renting or hiring teams or implements or machinery for or contributing to said work to be done, or any person who supplies both work and materials therefore, or the amount due under the Employment Insurance Act with respect to such work or labor, the Surety will promptly pay for the same, in an amount not exceeding the above obligation, and also, in case suit is brought upon such Bond, the above bounden Principal and the said Surety will pay a reasonable attorney's fee which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment therein rendered. This obligation and Bond shall insure to the benefit of any and all persons entitled to file claims under Section I 184C of the Code of Civil Procedure and said persons or any of them or their assigns shall have a right to action thereunder. IN WITNESS WHEREOF, we have hereunto set our hands and seals on this ,20_. day of [PRINCIPAL] [SURETY] [BY] [SIGNATURE - ATTORNEY IN FACT] STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO ) ) ss. State of California County of ) On before me, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. [SIGNATURE OF NOTARY PUBLIC] (Seal) 00-61-13.1 Page 18 r;\A~endas'v\llcnda Atlachmcllls\Agcnda AUachmcI11s\Agrmls-AmClld 2011\06-06011 Phillips ("(lllstructioll - ADA I'llblk Works Construction Cmllracl Phase lI.dlle CERTIFICATION OF INSURANCE COVERAGE THIS IS TO CERTIFY that the Contractor identified below is insured as of this date against all of the risks required to be insured against by the specifications for the project identified below, including, but not limited to, the types and amount of insurance, and the named insured required by said specifications. The undersigned further certifies that the premiums for aforesaid insurance have been paid in full for a term not less than the time between the estimated commencement and completion dates of the project, that the insurance policies will not be reduced as to limits of liability or coverage's without the prior written consent of Agency, and that Agency shall be given (30) thirty days prior written notice, delivered to the Agency by registered mail, of any intent to cancel said policies in which event Agency shall have the right, in its sole discretion, to continue the respective coverage's without alteration until satisfactory substitute coverage is provided. Dated: ,20_ [TYPE OR PRINT NAME AND ADDRESS OF CONTRACTOR] [TYPE OR PRINT NAME AND ADDRESS OF INSURANCE COMPANY AND! OR AGENT] [NAME] [NAME] [ADDRESS] [ADDRESS] [SIGNATURE OF AUTHORIZED PRINCIPAL! OFFICER! REPRESENTATIVE] [SIGNATURE OF AUTHORIZED PRINCIPALI OFFICER! REPRESENTATIVE] [TYPE OR PRINT NAME OF AUTHORIZED PRINCIPAL! OFFICER! REPRESENTATIVE] [TYPE OR PRINT NAME OF AUTHORIZED PRINCIP ALl OFFICER! REPRESENTATIVE] [TYPE OR PRINT TITLE OF AUTHORIZED PRINCIPALI OFFICER! REPRESENTATIVE] [TYPE OR PRINT TITLE OF AUTHORIZED PRINCIP ALl OFFICER! REPRESENTATIVE] [NAME OF PROJECT]: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ADA ACCESS RAMPS AND SIDEWALKS PHASE II - VARIOUS LOCATIONS SAN BERNARDINO, CA NOTE: POLICY COPIES OF CERTIFICATES OF INSURANCE COVERAGE FROM INSURANCE COMPANIES TO BE INCLUDED WITH THE BID 00-62-16 Page 19 P:V\I:.ntla.\Ag~lIda AttachmCllts\/\.gcnc.la AflaclllllCllh\AgrmIH\mcnd 20J 1106-060]] Phillips COlIslruction - ADA Public Works Construction Conlrnd Pha,. lI.doc LICENSES & INSURANCES REQUIREMENTS COPIES OF STATE OF CALIFORNIA CONTRACTOR'S LICENSES. CITY OF SAN BERNARDINO BUSINESS LICENSE. WORKER'S COMPENSATION INSURANCE. LIABILITY INSURANCE DOCUMENTS BID BOND COPIES OF STATE OF CALIFORNIA CONTRACTOR'S LICENSES, CITY OF SAN BERNARDINO BUSINESS LICENSE, WORKER'S COMPENSATION INSURANCE, LIABILITY INSURANCE DOCUMENTS 00-73-16 Page 20 r;\Agcnd~~\AgclII]lI AUlIchmCIlI.\Agcndll Atlachmenls\Agrmts-Amcnd 2011106-0601 J Phillipl COllslruclioll - AnA Public Work, Construction Contract I'hase II.doc CONTRACT CHANGE ORDER FORM Project: Redevelopment Agency of the City of San Bernardino ADA ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS SAN BERNARDINO, CA 92404 Change Order Number: Date of Change Order: To Contract: Redevelopment Agency of the City of San Bernardino ADA ACCESS RAMPS AND SIDEWALKS PROJECT PHASE II - VARIOUS LOCATIONS SAN BERNARDINO, CA Dated: By and between Redevelopment Agency of the City of San Bernardino [AGENCY], and [CONTRACTOR], Contractor is hereby directed to make the following change in contract work: By reason of Change Order No. , the time of expiration shall be adjusted as follows: calendar days shall be added / subtracted to the Contract schedule. Adjusted contract completion date shall be Recommended by [ARCHITECT]: Date: Accepted by [CONTRACTOR]: Date: Recommended by [AGENCY]: Date: 00-63-63 Page 2] r:\A~enda!\AgelldA AUAchm(>lIu\Agenda Allachmellls\Agrmts-Amclld 201l\06-06011 Phillips Construction - ADA Public Works Construction Contnlcll'l1asc H.doc PUBLIC CONTRACT CODE SECTION 20104-20104.6 20104. (a) (1) This article applies to all public works claims of three hundred seventy-five thousand dollars ($375,000) or less which arise between a contractor and a local agency. (2) This article shall not apply to any claims resulting from a contract between a contractor and a public agency when the public agency has elected to resolve any disputes pursuant to Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2. (b) (1) npublic workll has the same meaning as in Sections 3100 and 3106 of the Civil Code, except that I1public work" does not include any work or improvement contracted for by the state or the Regents of the University of California. (2) IIClaiml1 means a separate demand by the contractor for (A) a time extension, (B) payment of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public work and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to, or (C) an amount the payment of which is disputed by the local agency. (c) The provisions of this article or a summary thereof shall be set forth in the plans or specifications for any work which may give rise to a claim under this article. (d) This article applies only to contracts entered into on or after January 1, 1991. 20104.2. For any claim subject to this article, the following requirements apply: (a) The claim shall be in writing and include the documents necessary to substantiate the claim. Claims must be filed on or before the date of final payment. Nothing in this subdivision is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims. (b) (1) For claims of less than fifty thousand dollars ($50,000), the local agency shall respond in writing to any written claim within 45 days of receipt of the claim, or may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the local agency may have against the claimant. (2) If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the local agency and the claimant. (3) The local agency1s written response to the claim, as further documented, shall be submitted to the claimant within 15 days after receipt of the further documentation or within a period of time no greater than that taken by the claimant in producing the additional information, whichever is greater. (c) (1) For claims of over fifty thousand dollars ($50,000) and less than or equal to three hundred seventy-five thousand dollars ($375,000), the local agency shall respond in writing to all written claims within 60 days of receipt of the claim, or may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the local agency may have against the claimant. (2) If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the local agency and the claimant. Page 22 P:\Ag:cnda!\A!(enda Al1aduncnlS\Agenda AtlachmcntsIAg,.mth\mcnd 201 ]\116-116011 Phillips Construction ADA Puhlic Works COllstruc1iol1 CUlltrHI Phase lI.doe (3) The local agency's written response to the claim, as further documented, shall be submitted to the claimant within 30 days after receipt of the further documentation, or within a period of time no greater than that taken by the claimant in producing the additional information or requested documentation, whichever is greater. (d) If the claimant disputes the local agency's written response, or the local agency fails to respond within the time prescribed, the claimant may so notify the local agency, in writing, either within 15 days of receipt of the local agency's response or within 15 days of the local agency's failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon a demand, the local agency shall schedule a meet and confer conference within 30 days for settlement of the dispute. (e) Following the meet and confer conference, if the claim or any portion remains in dispute, the claimant may file a claim as provided in Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the claimant submits his or her written claim pursuant to subdivision (a) until the time that claim is denied as a result of the meet and confer process, including any period of time utilized by the meet and confer process. (f) This article does not apply to tort claims and nothing in this article is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. 20104.4. The following procedures are established for all civil actions filed to resolve claims subject to this article: (a) Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to nonbinding mediation unless waived by mutual stipulation of both parties. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court or by stipulation of both parties. If the parties fail to select a mediator within the IS-day period, any party may petition the court to appoint the mediator. (b) (1) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that code. The Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. (2) Notwithstanding any other provision of law, upon stipulation of the parties, arbitrators appointed for purposes of this article shall be experienced in construction law, and, upon stipulation of the parties, mediators and arbitrators shall be paid necessary and reasonable hourly rates of pay not to exceed their customary rate, and such fees and expenses shall be paid equally by the parties, except in the case of arbitration where the arbitrator, for good cause, determines a different division. In no event shall these fees or expenses be paid by state or county funds. Page 23 P:\Agendas\Agemla Attachments\.l.gcnda Atlacl1mentsV.grmts-Arnend 2011\06.06011 Philli]IS Construction - ADA Public Works Construction Conllllct Phasc lJ.doc (3) In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, any party who after receiving an arbitration award requests a trial de novo but does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, pay the attorney's fees of the other party arising out of the trial de novo. (c) The court may, upon request by any party, order any witnesses to participate in the mediation or arbitration process. 20104.6. (a) No local agency shall fail to pay money as to any portion of a claim which is undisputed except as otherwise provided in the contract. (b) In any suit filed under Section 20104.4, the local agency shall pay interest at the legal rate on any arbitration award or judgment. The interest shall begin to accrue on the date the suit is filed in a court of law. Page 24 P:\AgCIHh\\\Agenda AtlachmCllls\Agcmla AllHhmcnls\Ag,-mts-Amcnd 2011\06-06011 Phillips ConstrUClion - ADA Public Works Construdioll Contracl Phase lI.doc