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13-0104_CHARLES KING COMPANY_Construction Contract 1-5 and Ortega Highway Interchange Pipeline Relocation Proiect(CIP No 118051 CONSTRUCTION CONTRACT THIS CONTRACT is made and entered into, to be effective, this 0day of lko, 2013, by and between the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "City," and Charles King Company, Inc., hereinafter referred to as "Contractor." City and Contractor mutually agree as follows: Section 1. General Conditions. Contractor certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the work is to be performed have been thoroughly reviewed, and enters into this Contract based upon Contractor's investigation of all such matters and is in no way relying upon any opinions or representations of City. It is agreed that this Contract represents the entire agreement between the parties. It is further agreed that the Contract Documents including the Notice Inviting Bids, Special Instructions to Bidders, Plans, Specifications and Special Provisions, the Standard Specifications for Public Works Construction, 2012 Edition, including all Supplements, Contract Bonds if any, and the Contractor's Proposal are incorporated in this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that Contractor and its subcontractors, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the work covered by this Contract. "Project" as used herein defines the entire scope of the work covered by all the Contract Documents; but not the items of work covered by bid line items 15, 16, 17, 55, 58, 59, 60, 61, & 67; and also not including 1h of the work covered in bid line items 65, & 66. Anything mentioned in the Specifications and not indicated in the Plans, or CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-1 indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the matter shall be immediately submitted to City's Engineer, without whose decision Contractor shall not adjust said discrepancy save only at Contractor's own risk and expense. The decision of the Engineer shall be final. Section 2. Materials and Labor. Contractor shall furnish, under the conditions expressed in the Plans and Specifications, at Contractor's own expense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by the City, to construct and complete the Project, in good workmanlike and substantial order. If Contractor fails to pay for labor or materials when due, City may settle such claims by making demand upon the surety to this Contract. In the event of the failure or refusal of the surety to satisfy said claims, City may settle them directly and deduct the amount of payments from the Contract price and any amounts due to Contractor. In the event City receives a stop notice from any laborer or material supplier alleging non-payment by Contractor, City shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees. Section 3. Description of Project. The Project is described as: Pipeline Construction Work as delineated in the Plans and Specifications prepared by Dexter Wilson Engineers, dated October 4, 2012. Work to include: the construction of Improvement Plans for the 1-5 and Ortega Highway Interchange Pipeline Relocation, and all appurtenant work. Section 4. Plans and Specifications. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-2 The work to be done is shown in a set of detailed Plans and Specifications entitled: IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION, Dated October 4, 2012. Said Plans and Specifications and any revisions, amendments or addenda thereto are attached hereto and incorporated herein as part of this Contract and referred to by reference. Section 5. Time of Commencement and Completion. Contractor agrees to commence the Project within ten (10) calendar days from the date set forth in the "Notice to Proceed" sent by City and shall diligently prosecute the work to completion within the time allocated in sections 5a and 5b below; excluding delays caused or authorized by the City as set forth in Sections 7, 8 and 9 hereof. 5a) All work listed as "Pre-Caltrans Work" must be completed within 75 Calendar days after the date specified in the Notice to Proceed. Liquidated damages will be assessed as set forth in the Agreement (Section 10a) for failure to meet the specified completion date. 5b) All other work listed as "Caltrans Stage" work must be completed within the work windows provided in the Caltrans Stage allocations totaling 64 working days, spread out over 15 events, occurring over a time span of seven hundred (700) calendar days from the date of the Notice to Proceed has been set for the completion of the work. Liquidated damages will be assessed as set forth in the Agreement (Section 10b) for failure to meet the specified completion date. Section 6. Time is of the Essence. Time is of the essence of this Contract. As required by the Contract Documents, Contractor shall prepare and obtain approval of all shop drawings, details and samples, CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-3 and do all other things necessary and incidental to the prosecution of Contractor's work in conformance with an approved construction progress schedule. Contractor shall coordinate the work covered by this Contract with that of all other Contractors, subcontractors and of the City, in a manner that will facilitate the efficient completion of the entire work in accordance with Section 5 herein. City shall have complete control of the premises on which the work is to be performed during the Pre-Caltrans phase; September 1, 2012 to January 31, 2013; and shall have the right to decide the time or order in which the various portions of the work shall be installed or the priority of the work of other subcontractors, and, in general, all matters representing the timely and orderly conduct of the work of Contractor on the premises. The Caltrans Roadway and Bridge Contractor shall have complete control of the premises on which the work is to be performed during the Caltrans Work Stage Phase; February 1 2013 to June 2015; and shall have the right to decide the time or order in which the access to the site is to be provided to the Contractor for the various portions of the work shall be installed or the priority of the work of other subcontractors, and, in general, all matters representing the timely and orderly conduct of the work of Contractor on the premises. Section 7. Excusable Delays. Contractor shall be excused for any delay in the prosecution or completion of the Project caused by acts of God; inclement weather which exceeds the number of calendar days estimated by the City and set forth in Section 5 hereof; damages caused by fire or other casualty for which Contractor is not responsible; any act, neglect or default of City; failure of City to make timely payments to Contractor; late delivery of materials required by this Contract to be furnished by City; combined action of the workers in no way caused by or resulting from default or collusion on the part of CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION 134 Contractor; a lockout by City; or any other delays unforeseen by Contractor and beyond Contractor's reasonable control. City shall extend the time fixed in Section 5 for completion of the Project by the number of days Contractor has thus been delayed, provided that Contractor presents a written request to City for such time extension within fifteen (15) days of the commencement of such delay and City finds that the delay is justified. City's decision will be conclusive on the parties to this Contract. Failure to file such request within the time allowed shall be deemed a waiver of the claim by Contractor. No claims by Contractor for additional compensation or damages for delays will be allowed unless Contractor satisfies City that such delays were unavoidable and not the result of any action or inaction of Contractor and that Contractor took all available measures to mitigate such damages. Extensions of time and extra compensation as a result of incurring undisclosed utilities will be determined in accordance with Section C- 9(f) of the General Provisions. The City's decision will be conclusive on all parties to this Contract. Section 8. Extra Work. The Contract price includes compensation for all work performed by Contractor, unless Contractor obtains a written change order signed by a designated representative of City specifying the exact nature of the extra work and the amount of extra compensation to be paid all as more particularly set forth in Section 9 hereof. City shall extend the time fixed in Section 5 for completion of the Project by the number of days reasonably required for Contractor to perform the extra work, as determined by City's Engineer. The decision of the Engineer shall be final. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-5 Section 9. Chances in Project A. City may at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the Contract, including but not limited to changes: 1) in the Specifications (including drawings and designs); 2) in the time, method or manner of performance of the work; 3) in the City-furnished facilities, equipment, materials, services or site; or 4) directing acceleration in the performance of the work. B. A change order shall also be any other written order (including direction, instruction, interpretation or determination) from the City which causes any change, provided Contractor gives the City written notice stating the date, circumstances and source of the order and that Contractor regards the order as a change order. C. Except as provided in this Section 9, no order, statement or conduct of the City or its representatives shall be treated as a change under this Section 9 or entitle Contractor to an equitable adjustment. D. If any change under this Section 9 causes an increase or decrease in Contractor's actual, direct cost or the time required to perform any part of the work under this Contract, whether or not changed by any order, the City shall make an equitable adjustment and modify the Contract in writing. Except for claims based on defective specifications, no claim for any change under paragraph (B) above shall be allowed for any costs incurred more than twenty (20) days before the Contractor gives written notice as required in paragraph (B). In the case of defective specifications for which the City is responsible, the equitable adjustment shall include any increased direct cost Contractor reasonably incurred in attempting to comply with those defective specifications. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-6 E. If Contractor intends to assert a claim for an equitable adjustment under this Section 9, it must, within thirty (30) days after receipt of a written change order under paragraph (A) or the furnishing of a written notice under paragraph (B), submit a written statement to the City setting forth the general nature and monetary extent of such claim. The City may extend the thirty (30) day period. Contractor may'include the statement of claim in the notice under paragraph (B)of this Section 9. F. No claim by Contractor for an equitable adjustment shall be allowed if made after final payment under this Agreement. G. Contractor hereby agrees to make any and all changes, furnish the materials and perform the work that City may require without nullifying this Contract. Contractor shall adhere strictly to the Plans and Specifications, unless a change therefrom is authorized in writing by the City. Under no condition shall Contractor make any changes to the Project, either in additions or deductions, without the written order of the City and the City shall not pay for any extra charges made by Contractor that have not been agreed upon in advance in writing by the City. Contractor shall submit to the City written copies of its firm's cost or credit proposal for change in the work. Disputed work shall be performed as ordered in writing by the City and the proper cost or credit breakdowns therefore shall be submitted without delay by Contractor to City. Section 10. Liquidated Damages for Delay. 10a) Liquidated Damages for work performed during the Pre-Caltrans Phase, before February 1, 2013: The parties agree that if the total work called for under this Contract, in all parts and requirements, is not completed within the time specified in Section 5a plus the allowance made for delays or extensions authorized under Sections 7, 8 and 9, the City will sustain damage, which would be extremely difficult and impracticable to ascertain. The parties therefore agree that Contractor will pay to City the sum of Five Hundred Dollars and No Cents ($500.00) per day, as CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-7 liquidated damages, and not as a penalty, for each and every calendar day during which completion of the Project is so delayed. Contractor agrees to pay such liquidated damages and further agrees that City may offset the amount of liquidated damages from any monies due or that may become due Contractor under this Contract. 10b) Liquidated Damages for work performed during the Caltrans Work Stages Phase, after February 1, 2013: The parties agree that if the total work called for under this Contract, in all parts and requirements, is not completed within the time specified in Section 5b plus the allowance made for delays or extensions authorized under Sections 7, 8 and 9, the City will sustain damage, which would be extremely difficult and impracticable to ascertain. The parties therefore agree that Contractor will pay to City the sum of Two Thousand Dollars and No Cents ($2,000.00) per day, as liquidated damages, and not as a penalty, for each and every calendar day during which completion of the Project is so delayed. Contractor agrees to pay such liquidated damages and further agrees that City may offset the amount of liquidated damages from any monies due or that may become due Contractor under this Contract. Section 11. Contract Price and Method of Payment. City agrees to pay and Contractor agrees to accept as full consideration for the faithful performance of this Contract, subject to any subsequent additions or deductions as provided in approved change orders, the sum of One Million Six Hundred Ninety Five Thousand, Four Hundred Twenty Two dollars and no cents ($1,695,422) as itemized on 'the attached Exhibit 'A" ; but not the items of work covered by bid line items 15, 16, 17, 55, 58, 59, 60, 61, & 67; and also not including '/z of the work covered CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-8 in bid line items 65, & 66, removing $294,691 of the work and lowering the bid price for the remaining work from $1,990,113 to $1,695,422. Described as the Bid; and, Exhibit "B," described as the Bid Schedule. Within Sixty (60) days from the commencement of work, and within thirty (30) days from the submission of invoice, there shall be paid to the Contractor a sum equal to One Hundred percent (100%) of the value of the actual work completed plus a like percentage of the value of material suitably stored at the worksite, treatments plant or approved storage yards subject to or under the control of the City, since the commencement of the work as determined by the City. Thereafter, On a schedule issued by the City at the commencement of the job which shows a minimum of one payment made to the Contractor per month for each successive month as the work progresses and the request for payment due dates from the Contractor to meet the payment schedule, the Contractor shall be paid such sum as will bring the total payments received since the commencement of the work up to One Hundred percent (100%) of the value of the work completed since the commencement of work as determined by the City, less all previous payments, provided that the Contractor submits the request for payment prior to the end of the day required to meet the payment schedule. No retainage will be withheld by the City of San Juan Capistrano from progress payments due the Prime Contractor. No retainage will be held by the Prime Contractor from progress due Sub-Contractors. Any violation of this provision shall subject the violating Prime Contractor or Sub-Contractors to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Prime Contractor or Sub-Contractor in the event of a dispute involving late payment or nonpayment by the Prime Contractor or CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-9 deficient Sub-Contractor performance, or noncompliance by a Sub-Contractor. This provision applies to both Disadvantaged Business Enterprises (DBE) and non-DBE Prime Contractors and Sub-Contractors. The Contractor shall return all monies withheld in retention from the subcontractor within 30 days after receiving payment for work satisfactorily completed, even if the other contract work is not completed and has not been accepted in conformance with Section 6-8.2, "Acceptance of Contract," of Standard Specifications. Federal Law (49 CFR 26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with agency's prior written approval. Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the Contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the Contractor or deficient subcontract performance or noncompliance by a subcontractor. Payments shall be made on demands drawn in the manner required by law, accompanied by a certificate signed by the City's Engineer, stating that the work for which payment is demanded has been performed in accordance with the terms of the Contract, and that the amount stated in the certificate is due under the terms of the Contract. Partial payments on the Contract price shall not be considered as an acceptance of any part of the work. Section 12. Substitution of Securities in Lieu of Retention of Funds. to post appre" CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-10 In rnnir- ��. Not Applicable. Section 13.' Completion. Within ten (10) days after the contract completion date of the Project, Contractor shall file with the City's Engineer its affidavit stating that all workers and persons employed, all firms supplying materials, and all subcontractors upon the Project have been paid in full, and that there are no claims outstanding against the Project for either labor or material, except those certain items, if any, to be set forth in an affidavit covering disputed claims, or items in connection with Stop Notices which have been filed under the provisions of the statutes of the State of California. City may require affidavits or certificates of payment and/or releases from any subcontractor, laborer or material supplier. Section 14. Contractor's Employees' Compensation. A. Davis-Bacon Act: Contractor will pay and will require all subcontractors to pay all employees on said Project a salary or wage at least equal to the prevailing rate of per diem wages as determined by the Secretary of Labor in accordance with the Davis-Bacon Act for each craft or type of worker needed to perform the Contract. The provisions of the Davis-Bacon Act shall apply only if the Contract is in excess of Two Thousand Dollars ($2,000.00) or when twenty-five percent (25%) or more of the Contract is funded by federal assistance. If the aforesaid conditions are met, a copy of the provisions of the Davis-Bacon Act to be complied with are incorporated herein as a part of this Contract and referred to by reference. B. General Prevailing Rate: City has ascertained from the State of California Director of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for legal CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-11 holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Contract, and copies of the same are on file in the Office of the Engineer of City. The Contractor agrees that not less than said prevailing rates shall be paid to workers employed on this public works contract as required by Labor Code Section 1774 of the State of California. C. Forfeiture For Violation: Contractor shall, as a penalty to the City, forfeit Fifty Dollars ($50.00) for each calendar day or portion thereof for each worker paid (either by the Contractor or any subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California. D. Travel and Subsistence Pay: Section 1773.8 of the Labor Code of the State of California, regarding the payment of travel and subsistence payments, is applicable to this Contract and Contractor shall comply therewith. E. Apprentices: Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices, is applicable to this Contract and the Contractor shall comply therewith if the prime contract involves Thirty Thousand Dollars ($30,000.00) or more or twenty (20) working days, or more; or if contracts of specialty Contractors not bidding for work through the general or prime Contractor are Two Thousand Dollars ($2,000.00) or more or five (5)working days or more. F. Workday: CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-12 In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and Contractor shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (B) above. Contractor shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seg.) of the Labor Code of the State of California and shall forfeit to the City as a penalty, the sum of Twenty-five Dollars ($25.00) for each worker employed in the execution of this Contract by Contractor or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one calendar day and forty (40) hours in any one week in violation of said Article. Contractor shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by Contractor in connection with the Project. G. Record of Wages: Inspection: Contractor agrees to maintain accurate payroll records showing the name, address, social security number, work classification, straight-time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its subcontractors does the same. All payroll records shall be certified as accurate by the applicable Contractor or subcontractor or its agent having authority over such matters. Contractor further agrees that its payroll records and those of its subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-13 Section 15. Surety Bonds. Contractor shall, before entering upon the performance of this Contract, furnish bonds approved by the City Council one in the amount of one hundred percent (100%) of the Contract price bid, to guarantee the faithful performance of the work, and the other in the amount of one hundred percent (100%) of the Contract price bid to guarantee payment of all claims for labor and materials furnished. This Contract shall not become effective until such bonds are supplied to and approved by the City. Section 16. Insurance. A. Contractor is also aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for Workers' Compensation or undertake self-insurance in accordance with the provisions of that Code and will comply with such provisions before commencing the performance of the work of this Contract. B. Contractor and all subcontractors will carry workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against City, its officers, agents and employees and shall issue a certificate to the policy evidencing same. C. Contractor shall at all times carry, on all operations hereunder, bodily injury, including death, and property damage liability insurance, including automotive operations, bodily injury and property damage coverage. All insurance coverage shall be in amounts specified by City in the Insurance Requirements and shall be evidenced by the issuance of a certificate in a form prescribed by the City and shall be underwritten by insurance companies satisfactory to City for all operations, subcontract CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-14 work, contractual obligations, product or completed operations, all owned vehicles and non-owned vehicles. Said insurance coverage obtained by the Contractor, excepting workers' compensation coverage, shall name the City, its Directors, Officers, Agents, Employees, Engineers, and Consultants for this contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the City, as additional insureds on said policies. D. Before Contractor performs any work at, or prepares or delivers materials to, the site of construction, Contractor shall furnish certificates of insurance evidencing the foregoing insurance coverages and such certificates shall provide the name and policy number of each carrier and policy and that the insurance is in force and will not be canceled without thirty(30) days' written notice to City. Contractor shall maintain all of the foregoing insurance coverages in force until the work under this Contract is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of City by Contractor under Section 17 of this Contract. Notwithstanding nor diminishing the obligations of Contractor with respect to the foregoing, Contractor shall subscribe for and maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and issued by a company admitted in California and having a Best's Guide Rating of A-Class VII or better: Worker's Compensation Statutory Limits as required by the State of California Employers liability with a Minimum of $1,000,000 Public Liability, in the form of either Comprehensive General $5,000,000, per occurrence, or Liability or Commercial General alternatively, Liability written on a per-occurrence $5,000,000 aggregate, separate CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-15 basis for this project. Automobile liability, including $2,000,000 per occurrence non-owned and hired vehicles Pollution Liability $1,000,000 per occurrence City or its representatives shall at all times have the right to inspect and receive the original or a certified copy of all said policies of insurance, including certificates. Contractor shall pay the premiums on the insurance hereinabove required. Section 17. Risk and Indemnification. All work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of Contractor alone. Contractor agrees to save, indemnify and keep City, its Directors, Officers, Agents, Employees, Engineers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees harmless against any and all liability, claims, judgments, costs and demands, including demands arising from injuries or death of persons (Contractors' employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by Contractor, save and except claims or litigation arising through the sole negligence or sole willful misconduct of City, and will make good to and reimburse City for any expenditures, including reasonable attorneys' fees City may incur by reason of such matters, and if requested by City, will defend any such suits at the sole cost and expense of Contractor. Section 18. Stop Notice Administration. City reserves the right to charge Contractor for City's actual administrative time (including attorney's time) to administer and process stop notices filed by Contractor's subcontractors, material men, or any other claimant or lienholder. Section 19. Termination. A. This Contract may be terminated in whole or in part in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Contract through no fault of the terminating party, provided that no termination may CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-16 be effected unless the other party is given: (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested)of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination. B. This Contract may be terminated in whole or in part in writing by the City for its convenience, provided that the Contractor is given (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination. C. If termination for default or convenience is effected by the City, an equitable adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the Contractor at the time of termination may be adjusted to cover any additional costs to the City because of the Contractor's default. If termination for default is effected by the Contractor, the equitable adjustment shall include a reasonable profit for services or other work performed, but no adjustment will be allowed for anticipated profits. The equitable adjustment for any termination shall provide for payment to the Contractor for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by the Contractor relating to commitments which had become firm prior to the termination. D. Upon receipt of a termination action under paragraphs (A) or (B) above, the Contractor shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the Contractor in performing this Contract whether completed or in process. E. Upon termination under paragraphs (A) or (B) above, the City may take over the work and may award another party an agreement to complete the work under this Contract. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-17 Section 20. Guarantee Contractor agrees to perform all work under this Contract in accordance with the City's designs, drawings and specifications. The Contractor guarantees for a period of at least one (1) year from the date of substantial completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and that he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs of any damage to other parts of the system resulting from such defects. The City shall promptly give notice to the Contractor of observed defects. In the event that the Contractor fails to make adjustments, repairs, corrections or other work made necessary by such defects, the City may do so and charge the Contractor the cost incurred. The performance bond shall remain in full force and effect through the guarantee period. The Contractor's obligations under this clause are in addition to the Contractor's other express or implied assurances under this Contract or state law and in no way diminish any other rights that the City may have against the Contractor for faulty materials, equipment or work. Section 21. Assignment. No assignment by the Contractor of this Contract or any part hereof, or of funds to be received hereunder, will be recognized by the City unless such assignment has had prior written approval and consent of the City and the surety. Section22. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Contract, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which it may be entitled. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-18 If any action is brought against the Contractor or any subcontractor to enforce a Stop Notice or Notice to Withhold, which names the City as a party to said action, the City shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the City. The City shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not. Section 23. Resolution of Disputes. The City and the Contractor shall comply with the revisions of California Public Contracts Code Section 20104, et sea., regarding resolution of construction claims for any claims which arise between the Contractor and the City. Section 24. Notices. Any notice required or permitted under this Contract may be given by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing. To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Director of Public Works To Contractor: contact Company name. address city, state, zip Section 24. Federal Project. This project is partially or wholly federally funded. The provisions of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City of San Juan Capistrano's adopted DBE program require that Underutilized Disadvantaged Business Enterprises CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-19 (UDBEs) and Disadvantaged Business Enterprises (DBEs) have the opportunity to participate in federal-aid capital improvement projects. The "Federal Requirements for Federal-Aid Construction Projects" Exhibit C, attached apply; and are incorporated into this contract. In the event that there are conflicts between this Construction Contract and the provisions of the Federal Requirements for Federal-Aid Construction Projects, the Federal requirements will prevail. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-6 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-20 IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract as of the date first hereinabove written. CITY OF SAN JUAN CAPISTRANO By: k /1 � o Taylor, yor CON 0 By: KKK -Peu/sc ATTE By: ri 0 's, City C rk APPE TO FORM: By: Hans an Li an, ttorney Exhibits: A— Bid B— Bid Schedule C — Federal Requirements for Federal Aid Construction Projects CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION 9-20 BID This Is EXHIBIT A,consisting of two pages, referred to In made and a part of the AGREEMENT between the OWNER and the CONTRACTOR BID TO: CITY OF SAN JUAN CAPISTRANO The undersigned Bidder proposes and agrees,if this Bid is accepted,to enter Into an Agreement with the City In the form Included in the Contract Documents(as defined In Article 1 of the Construction Contract)to perform the Work as specified or Indicated in sold Contract Documents entitled: IMPROVEMENT PLANS FOR I-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION CIP No.11805 Bidder accepts all of the terms and conditions of the Contract Documents,Including without Amitat€on those In the Notice i Inviting Bids and the Instructions to Bidders dealing with the disposition of the Bid Security. This Bid will remain open for the period stated in the Notice Inviting Bids,unless otherwise required by law. Bidder will enter Into an Agreement within the time and In the manner required In the instructions to Bidders,and will furnish the Insurance certificates,Payment Bond,Performance Bond,and all Permits required by the Contract Documents. Bidder has read, understands, and will comply with the requirements of the requirements for the attached'Federal Requirements For Federel-Aid Construction Projects' In addition the Bidder hes completed the'Federal Requirements For Federal-Ald Construction Projects.' Exhibit 12E,Attachment A—The'Participation by Disadvantaged Business Enterprises in Subcontracting;'(if applicable); Exhibit 12E;Attachment C—The Equal Opportunity Certification; Exhibit 12E,Attachment E—the'Debamment and Suspension Certification;' Exhibit 12E,Attachment G—the'Disclosure of Lobbying Acthritloo Exhibit 15.61-the'Local Agency Bidder Underu lIzed Disadvantaged Business Enterprise(UDBE)Commitment;' Exhibit 15-62—the"Local Agency Bidder Disadvantaged Business Enterprise(DBE)Information; Exhibit 15-H--the`UDBE Information—Good Faith Efforts"(If applicable) Bidder has examined copies of all the Contract Documents,Including the following Addenda(receipt of which is hereby acknowledged): Number Date it 9- Number Date Number Date Number Date Bidder has familiarized itself with the nature and extent of the Contract Documents,the Work,the site,the locality where the Work is to be performed,the legal requirements(federal,state,and local laws,ordinances,rules,and regulations),and the conditions affecting cost,progress,or performance of the Work,and has made such independent Investigations as Bidder deems necessary. In conformance with the current statutory requirements of California Labor Cade Section 1860,at seq.,the undersigned confirms the fallowing as its certification: I am aware of the provisions of Section 3700 of the Labor Code,which require every employer to be insured against(lability for worker's compensation,or to undertake self-insurance in accordance with the provisions, before commencing the performance of the Work of this Contract. To all the foregoing,and Including all Bid Schedule(s),List of Subcontractors,Non-collusion Affidavit,Bidder's General Information,and Bid Bond contained In these Bid Forms,said Bidder further agrees to complete the Work required under the Contract Documents within the Contract Time stipulated In said Contract Documents,and to accept in full payment therefor the Contract Price based on the Lump Sum or Unit Bid Prlce(s) named In the aforementioned Bidding FORM U-M EXHIBIT A *" BID(PROPOSAL) BID FORMS-PAGE 1 Schadure(a). Dared: Biddar.cha✓ILf kln(l C=inc By. (S Wre) rna:�C�rrt KI rL Pctir igl-c .t .+m BID(PROPOSAL) BID FORMS-PAGE 2 r' INFORMATION REQUIRED OF BIDDER LIST OF SUBCONTRACTORS As required under Section 4100,et seq.,of the Public ContractCode,the Bldder shell Itet below the name and business address of each subcontractor who will perform Worts under this Bid in excess of one-half of one percent of the Contractor's Total Bid Price,and shall also list the portion of the Work which will be done by such subcontractor. After the opening of Bids,no changes orsubstitutlons will be allowed except as otherwise provided by law.The fisting of more than one subcontractor for each item of Work to be performed with the words"and/or"will not be permitted. Fallureto comply with this requirement will render the Bid as nen-responelve end may cause Its rejection. Contractors License Work to be Performed Number Subcontractors Name&Address 1_ A22.9 MM dqn filhHEMN3AAl Q4 2 3 4 5 6 7 8 f 1W430 °V*d LIST OF SUBCONTRACTORS A1p2 M BID FORMS-PAGE 8 NON-COLLUSION AFFIDAVIT TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID State of California ) ss. CountyofLtd ) I. b-ek VA KI VLDI being twat duly swom,deposes and says that he or she is .� tIQ -SI al-CW— of G VI CS ISI VlU L,9 -To -the party making the foregoing Bid,that the Bid Is not made In the Interest of, 'o 'if" if ,any undisclosed person,partnership, company,association,organization,orcorporetlon;that the Bid Is genuine and not collusive orsham;that the Bidder has not directly or Indirectly Induced or solicited any other Bidder to put in a false or sham Bid,and has not directly or Indirectly colluded,conspired,connived,or agreed with any Bidder or anyone else to put in a sham Bid, or that anyone shall refrain from bidding; that the Bidder has not In any manner, directly or Indirectly,sought by agreement,communication,or conference with anyone to fix the Bid price of the Bidderor any other Bidder,or to fix any overhead,profit,or cost element of the Bid price,or of that of any other Bkider, or to secure any advantage against the public body awarding the Contract of anyone Interested In the proposed Contract;that all statements contained In the Bid are true;and,further, that the Bidder has not, directly or Indirectly, submitted his or her Bid price, or any breakdown thereof, or the contents thereof, or divulged Information or data relative thereto,or paid,and will not pay,any fee to any corporation,partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham Bid. Bidder 'CS G, By Tide b6&V/n I<t rtA - Plein dzu+ Organization rJ Ay I-CC kl Y-IA Ca True , Address 2 f)Al 4"tted-C 14A .91grw I-Lill Cd} �1P756 uaieom:ya NON-COLLUSION AFFIDAVIT "'s PO n BID FORMS-PAGE 9 Jurat State of California County of Lczs /rAi-,("<S Subscribed and swam, to(or affirmed)before me on this I.S" day of K.l0y t;dNt 6W , 20 proved to me on the basis of satisfactory evidence to be the persongwho appeared before me. Signature OPTIONAL INFORMATION INSTRUCIFONS FOR COMPLETING THIS FORM ]hr wwdlne gfgffJww rompinedM Cdlfomfa gder Jmmm /.10f0mwr be In dr tussle✓dwlX". Jar jbr 'errese,, a and , he fo Jo mrmfefed doer nor/olfow de I mp rhe w—1, .'.tact dr verb'gge by-M9.1-0 rfmnp mnroinlv de mnr<f.wJing w armd! DESCRIMONOFTELE ATTACHED DOCUMENT ,eva.ao-iwofhmm,.ehmde mrt wn+eh doer ronwn/nppr.»oNx�In addli., he nofory—1 epufrt an and w gpLmenonf.de d.rernf NMImo,, rljner I Zsosl M1f de INM1)J{ . of de .." Oi the doa.ngl n, 111L / 1(.0 daoummtmurf#rfBned AfrER de WA w gRrmoMn.If Me doammf war (TNe wdwlptlwornmchM damimem) prtviowlY+lBned.ie marl be rtrfened ln/ra/drnorarypidffeluHy de Aft jtool omr. (fftlemdaee wn of.mchMdocuvuet oomberW • Sum .ed Cowry iNeeseo n men Is, We Stale rod Cowry Wert the dmnment.lpeg9 Perrolt W.pe les,he t time the rourypwlic. Number of Pegs_ Dtuumenl Date o.m of nokvnioe mart x We tl.m Wet the sisnee(»pememlly rypmM which mmtalwbethe ume d.edejunt pmrm a wmpk+nd. • pent We oam<(s)of dpcmocpt viepmfr)who pertomliy appear el We time of nolerivlim (Addabml lnfoemeaon) Sieowge of the mtny public mutt moth We siyuwc oo Ilk wiie thc o1Rce d0t.rowry.leee. • The wWy wl sevreuiog owt be 4..nd phows stsee.1ty rtpmd ale. Iniprmsioo mwt oat cover lent or loss.V.1 imprtrtioa emW,.,m.if. wR Imt.rm permils,. r W complete.differtmiuen f. o AMitioeel iof tine is tee mguhed bm Could"to gimme this imn is set .•"•d watuched the dinnem doeam.et. P lodirate Wk wlype of.mchet do wem,emvheralpBu redo. • 5ttumly.eech Wu dacummtththerisned daumem 2008 Version CAPAvl.9.a7 800.873-9865 w NoteryClasses.com BIDDER'S GENERAL INFORMATION The Bidder shall furnish the following Information. Failure to complete all Items will cause the Bid to be nonresponsive and may cause Its rejection. 1. BBI/I''D�DERICONTRACTOR'S Name and Street Address: l/ylL1,Y 2 ��I YLA P9• .EVIG. 29 11 (aaveftna Ave, 9'lnvra_1 14,II !aA 610755 2. CONTRACTORS Telephone Number: (.5( z) (4Z/ —am 74 Facsimile Number: (562) 4426— 4 7144 E-mail address 601 C 0 C k'C' W 3. CONTRACTOR'S License: Primary Classification /r State LicenseNumbers) -1SlQ '.ZSb Supplemental License Classifications -byj 4. Surely Company and Agent who will proWde the required Bonds on this Contract Namsof Surety flys"4- AImf-Iov,Al 3S 00 c;( A-b'I4eAiCk- Address pi3��h ,]�d �.r 0.1Vof , UyE44 at30b Surety Company Agent V5Y0Y1— TelephoneNumbers: Agent(7(q ) 1- 2 sundy(goD) '763 -q2k S. Type of Firm(Individual,Partnership or Corporation): &Wle va-hey- 6. Corporation organized under the laws of the State of: 60-11 fY.e AA. 7. List the names and addresses of the principal members of the firm or names and lutes of the principal officers of the corporation or firm: e� I �leul,Fu/mets . fS VI /C /�Ytf raw u.�v BIDOER'S GENERAL INFORMATION •"u' 'roa BID FORMS-PAGE 10 w,mor BIDDER'S GENERAL INFORMATION(Continued) 8. Number of year:experience as a contractor in this specific type of construction work: 9. List at least three related projects of comparable size and complexity completed to date: 1. Owners(f34 0-f 1 ea I Address 211 S� S'f'. 1't't�t ( 1�-CGc.(;IL C/� Contact_ /L L l Sp 2 Class of work Se wa re Uckct my-IL, Phone5( ELly3(X517 Contractamount 000 Project(M1f4-[ P&v k 1Q4_oQOate completed 2. Ownee,(bj ef .-r tnn i Va 16/ Address410.9 U A� v da l,b�M l�SI fM1 VA f ley 44 Contact Class of workpeu.- Y r of&& to Phone&,0 Contract amount 2 5 9. o o a Project( t1/Q_( Ave, 91111—I'D Date completed_ q 12 0 IZ 3. Owner d BCaGk WLt & iddress 1900 6 W&w ,l.(u,,v. LQ A a BaC4 CA Contact VPf1(-6(45 Class ofwork?eWd,r. Phone 5l�0ZJ 570--1 S99 Contract amount u L( 0 D U Project CA SOW I Date completed 10. List the name and title of the person who will supervise full-time the proposed work for your firm: 11. Is full-time supervisor an employee contract services 7 12. A financial statement or other information and references sufficiently comprehensive to permit an appraisal of your current financial condition may be required by the Engineer. VVIII be 9(419,011-eOL wrwwzo BIDDER'S GENERAL INFORMATION ;'Wi:C�ftwP° BID FORMS-PAGE 11 No acol - BID BOND Road No. 115 KNOW ALL MEN BY THESE PRESENTS, That Charles King Company, Inc. as Principal,and First National Insurance Company of Ameriraas Surely,are held and firmly bound unto The City of San Juan Capistrano,hereinafter called the'Owear"in the sum of TEN PERCENT OF THE AMOUNT OF TBE BID (l0i)vMse*easeeseeaseseass dollars (sa lona Iaen is pacamof aebYl srswAel Ns ant) for the payment of which sum, well and truly to be made, w0 bird ourselves, our heirs, execNors, administrators,successors,and assigns,jointly and severally,firmly by these presents. WHEREAS,said Principal has submitted a Did to sold Owner to perform the Work required under the Bid Schedule(s)of the Ownels Contract Dooumenta entified: IMPROVEMENT PLANS FOR 1-E ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION CIP No.11606 NOW THEREFORE,If said Principal Is awarded a Contact by said Owner,and within the lime and In the mannerrequked In the"Nouns Inviting Bde'end the'Inehuctions to Blddem'entm In(oa wrillenAgreement on the Form of Agreement bound with said Contract Documents, furnishes the required CorlBcales of Insurer,and furnishes the required Performance Bond and Payment Bond,than this obligation ahell be roll and vont,otherwise It shall remain in full force and affect. In the event suit Is broughlupon this Bond by said Owner,and Droner prevalls,said Surery,shall pay all coals Incurred by said Owner In such suit,h)dudlrg a reasonable eila0e0 fee to be fixed by Urs court. SIGNED AND SEALED,this 91:11 dayoliNovember 2012 Charles King Company, Inc. (SEAL) (SEAL AND NOTARIALSy: (SEAL) ACKNOWLEDGMENT OF SURETY) Debra K. Kim — President (SEAL) First tie 1 Ine -aeee Company of America 6w ry) By: Rven L. Montle — Att Attorney in Put rewwa BID BOND(BID SECURITY FORM) .aw,osro"rr BID FORMS-PAGE 12 w.son California All-Purpose Acknowledgement Slate of California) County of Los Anaele6 On I 12 before me, Sarah Criseuolo ,e Notary Public Personally appeared Debra King who proved to me on the basis of satisfactory evidence to be the persan(tl whose name(35 is/adi subscribed to the within instrument and acknowledged to me that W shehlfdj executed the same in I)(s/bedtl(& authorized capacity(A), and that by Ip/her/thmr signature(p on _ - the instrument the person($(, m the entity upon behalf of which the persm(,4 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. /WITTy'NEE^SSS myhand and official seal. Jt / �4 CA Notary Public Seal Notary Public Signature OPTIONAL Description of AttachedD/�ocument Title or Type of Document:aj d is-fm6c - Document Date: Number of Pages: Signer(s)Other than Named Above: Capacity(fes)Claimed by Signer(s) 7 ❑Individual ❑Individual p Corporate Officer;Lmd Sad.Tree. ❑Corporate Officer: ❑Panner- O Limited Z1 General ❑Partner- O Limited O General OAticmey-in-Pact ❑Altomey-in-Pact ❑Trustee D Trustee ❑Guardian or Conservator ❑Guardian or Conservator. ❑Other. O Other: Signer is Representing: Signer is Representing: THISt"'OWER OA �� ttaoi� �e°� amuND• at 449783 T.;; olmorre funibtla ot� they have nPRINTED bind ompany«w manner oa toftedEdKarae • Certificete No- • Ftret Netlonel bsurmhoa Compety aArnelca General Ineumnos CompanyaAmerica tialeoe Itweattoe Company aArmelca POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS: TM FM NdaW Immo Company of America,General Inwrance Company of America,and Safeco Itteutwtoe Company of America ere corporations dy apnlzed under the tears of M State of New Hempshlre(herein cdeclfvey called to Tarp mIml,pursuant to and by a dhor ly bob set forth.does hMW mama,oxsttute MW appoint LED M.MSM M.tern e.MAMLE aaathectVof R► =dates CA each In"vely Itheve be more than one named.b bvo and WU Mmay4ri-fadto Make,OMM.14 adnwMp and deitver,for and an W beheM as surety and as ffs ad and deed,any aid d tmdet kW.bond,recoVJnnoas and atter aurey oblgat M to put>mertoe of theme present and shall be ra btndlrnM upon the Companies as M they have been dry signed by the president end abated by the secretary of the Companies In their own proper persons. IN WITNESS WHEREOF.this Power ofAtorney has been edu toed by an aubhodred otloar or dlclal of the Companies and the corporate seat of the Companies have been aMaed thereto this fru+ days Mara acts First National Insurance Company dAmerke General insurance Company of America Sd m tnsuranoe Company of Amerta Yi Gregory Vic Davenrport,Asalatent Secretary = STATEOFWASHOGM ss COLPM OF KING c to 112 On tote-Mg—day of .torte sora •before me pmcrxl y appeared Gray W.Davenport who admorAedb be himself e the Assbtent Secretary of FM National F. v m Insurance Company of America.General beer m Company of America,and Safeco lawance Company of America,and thal he,as ouch,beteg adWnd so to do,exearte the to o brag"troWment for the p uposes thereln oordelned by stgrhing on behalf of the corpoallo s by kmsg as a duly authorized Spleen. � m IN WITNESS WHEREOF.I have heeurdo subeated my name and athecl my nobrtal sash al Soak Washitgbru,on the day and year first abovetwitbnt pa CD { By: .. ' KO Reoy,Notarym r7 d This POW Of Attorney b monde and exsected pusued to and by a rda*of the Byaew and Autlprkdons of First National fnnsnaatnoe Company of America,General .9 c �� Irsurenoa Company of America,and Safeco Insurance Company ofAmedc%which are now In M hues and effect reeding es follows: :5 w ps ARTICLE IV-OFFICERS-Section 12 Power a Acton ay. Any attestor ogar otffabl of the Corpaaton authorked for Mat purpose In w&V by the Chelmtan or the Ptesidat,and c p C K*d b such MAatron as the Cfabm an a the Preddmd may praratbe,shay appo<M etrdn aaortaya494 sa may be rneoesseryto ad In betas a Ila Corporation to make,exec* ,o E • seat eckmawladge and daffier as surety any and elf urdebMro,bade,mcogrdxences and other w*obltgatbns. Suds ator eye•hr44 owb the keaftrs set IoM in tour s= m °«� respe0e paves of aMonelr,sial have fol power to Wed to Capotaft by their slgnabae and=MIA such bstftnnenb shell be as bbdkV as lf aignad by the President and >.Q attested to by the Secretary. Any power or wilhor y granted to any tepresentetlre Of attoray404at under the provisions of this adcio may be avdad at say time by the Soard,the m;Cc ChRkM the Pmsgerd a by ore odea a ekes gm n tg mxh power a aomft. $N .. Certfiate of Oestgnallon-The president a the Compaq,acing pi netatnt b the Bylaws a the Company,autharFass CAM W.Davenport Assisbtd Secretary b appoint such r4 Zfade be necessary to ad an MW a the Company to make,owile,seal,acteawbdgs and delve as surely arty l un and all hada.nagrntrartoes andWw surely EEE$o Authorba lon-By unanb"amsent of the Comparys Board of Okoam.UtaC Company oorsents that tecabmua or mednanbely reproduced signebre of any assistant seaetey of the Company.Wnerever appea*upon a oeaW coq of any parer of attorney issued by the Company in aDrtterum vM surely bub,alai be vaW and tddlrng upon Me CanPT wish the same force and offed as though mi mua4 affixed. I.David k Carey,the underalgnel.Assism Secretary,of Fist National Irsaamoe Company of Amedxs,General Insurance Company of America,and Safes►i nsaence Company of America do hereby orxtify drat the oegMh power a etomq of which the foregatng be M true and carted copy tithe Power xdAtamnq axeatted by said Companies,b in M hones and eff em hes not baso revoked IN TESTIMONY WHEREOF,I have hereunto sat my hand and a4&ed the seeb d Bald Comperdes M 9th dy a November.20-IL. Oavw K Carey,Assistant Secretary von-FWA MDAS exon lM9_12a74_04t0t2-3o ro Local Assistance Procedures Manual EMBIT 1541 Local Agaacy Bldder UDDE Conuoltment(Construction Contracts) EXHIBIT 15-61 LOCAL AGENCY BIDDER UDBE COMMITMENT(CONSTRUCTION CONTRACi'B) NO QI,P B rE T NSTRUCTIONS ON THE RMT 1OFSTH S FORM LOCAL AOBNCY: LOCATION: 45M!_ PROJECT DOMP7ION: Reamed 'DOTAL COHTM� -r A OUNTs I _ =DAM 1�! BIDDBXNJ d_AMJJB: CONTRACT UDBB GOAIa CONTRACT T6ZN OF WOXK AND DESCRIPTION DBS CWtT NO- ME OF EACH UDBE DOLLAR AMOUNT ITEM NO R SERVICBS TO BS ND EXPIRATION (Must be cwtiRad on the dau ft DBT: " C ONTRACTED OR MATERIALS DATE am opawd-Includo UDBE 1 O BB PROVIDED(os wntneind trft sod phone atunEpr) cr is a UDBS) For Meal Agency to Complete: Toad Claimed UBBE $ Lout AgeacyConbact Number: PatkipatEon Pedual-vid Pm*lNumber. % Federal Shwa: Coabort Awad Data: n r Lotrel Ageacy conifta that all UDBE warteWew have beta va i(ted and e e B di dada In(brtnatlon b complete and accurate. 1 L r 1eL(o•c�7'f owe (Ares ode) PrintNeme 8igrmttae Data �lloyb M� Leval Agency Repu m Wo Pertwn to CMACt cues Type or Prmt) (Area Code)Talephorm Number: Lead Ayeary Blida WIRE Cbeamtlaneat(O msatndta cutwb) (RLI 44w) Obtsibutlow (t)OdStul—Local# Wf0as • - Page 1531 LPP 09-0i July 31,2909 nr3-7 Local Asslabloce Frocedura Manuel EXHIBIT TS-02 Local Agency Bidder DBE Iatormation(ConAnctloh Contracts) EXInBfT 13-G2 LOCAL AGENCY BIDDER DBE INMRMATION(CONTRUCTION CONTRACTS) (Inclustva of all DBEs Inoluding the UDSEs listed at bid proposal) NOTEI 1 SEE! RST_Q ;NSTRUCTIONS ON THE REVEM SIDE OF THIS FORM Ir LOCALAOSNCY• W�1 LOCATIOJI.M 4M PROJECT DESCRIPTION; TOTAL CONTRACT AAtOLWr tr BID DATIL. I in 12— MODER'S NAME CONTRACT UDBE GOAL: 270 CON'TRACr OF WORK AND DLSCRIlMON D8$CERT NQ NAME OF EACH DBE R AMOUNT rrRM NO. SERVICES TO BE AND EXPIRATION (Man Ire o&OW on dro data bids OBE IBCONTRAiTFA OR MATERIALS DATE opssed-1ne11rde DBB oddm:r BEPROVIDED(orconhs todIrds Phone number) er a e D311 For Local Agency to Complete: Total calmed DHE s Load AgencyControot Numbs. Pattisipotleo -". roderal4ud rr*cl Number PW=l Shue Ceruaa Awad DsIC Local Agomy eeAllies tbat dl DBE cer0ricatfon have beenvedried nerd dntbma den Is compkto end aeewase. Signature otHidder PrtraNsnte &igrmtttr Dsta - Loed Agency Repmseetativa Date (Arca de)Tel.?lo (Mw To Number For Caltran9 Review: to Comet C7°ernf°°r "` Pdn%Neme Signenn Date LordAga*VF1Wder DBE trdarmartoo(Cov"It"Coearatr) Cdtrw DIWW local Assistance EnShwer (Rev 64&w) Dislrlbatlon: (I)Copy-Pas or sewn copy coda Cduars District local Atuletance H*new(DI.AE)MWo iS dsyo of eomact esmudon.Failure to coed a spy to dto OI.AE withtn 15 days orconbaet ac ndon nay resell In do-obliption orfirreds for this protea. (4)Cnpy-tneluda In avrord p ckago to Cal nas District total Assistance (3 Original-Local agency(Bei Page 15-32a UP 09-02 July 31,2009 fR-3� Th's is Page l of Exhibit 11 consisting of 9 pages,referred to In and made a part of the AGREEMENT between the OWNER and the CONTRACTOR. BID SCHEDULE CIP No. 11805 1.5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION IT ITEM DESCRIPTION IJNTT ESTIMATED UNTT ITEM NO. QUANTITY PRICE COST GENERAL 1. Mobilization. L.S. Lump sum Lump sum $ Sheeting, Shoring and Bracing, 2' Complete and In Place L.S. Lump sum Lump sum $ 5b�Q0 Storm water pollution control/BMP/ 3' Diversion and control of water. L.S. Lump sum Lump sum $�rf 00 Soil Testing for Hydrocarbons at 4. Chevron West Location L'$' Lumpm sum Lump su $ Disposal of Hydrocarbon 5' Contaminated Soil C.Y. 150 C.Y. $ ! $ /7 Zip Abandon AC Pipe In Place (This 6 shall include Capping the pipe and L.F. filling the pipe to be abandoned with 1,900 L.F. $ $ sand) 9 DO Remove and Dispose of AC Pipe, From STA 10+80 to STA 12+97; 7A. this shall include legal disposal and L.F. 217 L.F. $ $ proper handling of the AC pipe;Pipe shall be excavated by Caltrans Remove and Dispose of AC Pipe, Within Future Ramp Area;this shall 7B, include legal disposal and proper L.F. 200 L.F. $ $ handling of the AC pipe; Pipe shall be excavated by Caltrans Ab Excavate, Remove and Dispose of Miscelaneous AC Pipe; this shall 7C. include legal disposal and proper L' F' 150 L.F. $ �� handlingof the AC pipe EXHIBIT B FORM Ua ZUNIT PRICE UNIT PRICE BID SCHEDULE rv�wz�2i 1`"d BIDFORMS-PAGE 1 ITEM ITEM DESCRIPTION UNIT ESTIMATED UNIT ITEM NO. UANTM PRICE COST Excavate, Remove and Dispose of AC Pipe from STA 15+90 to STA 18+35(Remove only if there are 7D. conflicts with W6 and W6A) ; this L.F. 245 L.F. $ $ shall include legal disposal and Ss g2� proper handling of the AC pipe Utility Relocations for Water and Sewer Work Items per U-I through 8 U-3 of the Caltrans Drawings, L.S. Lump sum Lump sum 7000 Complete and In Place r PRE-CALTRANS—PIPELINE W7 9. Implement Traffic Control for W7 L.S. Lump sum Lump sum $ X00 Supply and Install 8" PVC, C900, 10. DR14, PR 305, Complete and In L.F. 38 L.F. $ $ Place Connection of W7 to Existing 11. Pipeline at STA 0+93.47, Complete L.S. Lump Sum Lump Sum S Tl� and In Place Connection of W7 to Existing Pipeline at STA 1+26.26, Including 12. Reducer and 6' Gate Valve L.S. Lump Sum Lump Sum $ Com lete and In Place Relocate Existing Fire Hydrant and Install new Lateral and Gate Valve at 13. STA 0+93.47 Per CSIC STD DWG L.S. Lump Sum Lump Sum $ W-7 and W-13, Complete and In Place �d QOQ PRE-CALTRANS—PIPELINE W6,W613 and W6C Implement Traffic Control for W6, 14. W6B and W6C L.S. Lump sum Lump sum $ 500 Supply and Install 12" PVC, C900, 15. DR 14,PR 305,(W6),Complete and L.F. 268 L.F. $ / $ Z Place 16 Connection of W6 to Pipeline W12 T— at STA 16+16.00 Complete and In L.S. Lump Sum Lump Sum Place Connection of Pipeline W6 to W6B at STA 28+99.31,Including 12"DIP 17. Tee, 3- 12"Gate Valve and Fittings, L.S. Lump Sum Lump Sum $ Complete and In Place 'L FORM NMU d MICEMU� UNIT PRICE BID SCHEDULE NwM BID FORMS-PAGE 2 ITNEM ESTIMATED UNIT ITEM O. ITEM DESCRIPTION UNIT QUANTITY PRICE COST Supply and Install 2" Blow Off at 18. STA 28+99.35 Per CSJC STD DWG L.S. Lump Sum Lump Sum $ zj W-11 Complete and In Place Supply and Install 12" PVC, C900, 19. DR 14, PR 305, (W6B) Complete L.F. 51 L.F. $ SD $ �7i and Place l 760 Connection to Pipeline W6A to W6B 20. at STA 18+40.99 Complete and In L.S. Lump Sum Lump Sum $ Place Supply and Install 12" PVC, C900, 21. DR 14, PR 305, (W6C) Complete L.F. 42 L.F. and Place Relocate and Install New Fire Hydrant, Gate Valve and Lateral at 22. STA 29 +12.04 Per CSJC STD L.S. Lump Sum Lump Sum $ DWG W-7 and W-13,Complete and /O In Place Connection to Existing 14" ACP 23. Waterline at STA 29+41.26 L.S. Lump Sum Lump Sum $ Complete and In Place D Supply and Install 14" Linestop 24. Complete and In Place L'S' Lump Sum Lump sum $ Remove and Dispose of Existing Steel Casing on 14"ACP Pipe(Only the Piping Interfering with the New 25. Pipeline Installation), Including L.F. 50 L. F. $ $ Removal and Disposal of 14" ACP Pipe inside casing Complete and In O`�J3 IJ Place PRE-CALTRANS - FIRE HYDRANT AND SEWER WITH PIPELINE W6 Relocate Existing Fire Hydrant Lateral and Two(2)Meters Per CSJC 26. STD DWG W-2; Lower 6" Fire L.S. Lump Sum Lump Sum $ Hydrant Lateral Below Caltrans Wall No. 80 Complete and In Place OTv Supply and Install New 48"Manhole 27 at STA DWG 01 +48.50 Per CSJC STD L.S. Lump Sum Lump Sum $ 1� 5 PRE-CALT'RANS—PIPELINE W6A,W61) and W6E oio Implement Traffic Control for MA, 28. W61) and W6E L.S. Lump sum Lump sum $ FORM u-302 UNIT PRICE UNIT PRICE BID SCHEDULE X Nusozu" N-201 BID FORMS-PAGE 3 ITEM ITEM DESCRIPTION UNIT ESTIMATED UNIT ITEM NO. QUANTITY PRICE COST Supply and Install 12" PVC, C900, 29. DR 14, PR 305, (W6A), Complete L.F. 225 L.F. $ $ and Place Connection of W6A to Pipeline W3 30. at STA 16+16.00 Complete and In L.S. Lump Sum Lump Sum $ / Place %pQ Supply and Install 12"Gate Valve at 31. STA 17 +70.00 per CSJC STD L.S. Lump Sum Lump sum $ 3 30d DWG W-13 Complete and In Place Supply and Install 12" PVC, C900, 32. DR 14, PR 305, (W6D), Complete L.F. 102 L.F. $ 5S $ and Place Supply and Install 12" PVC, C900, 33. DR 14, PR 305, (W6E), Complete L.F. 10 L.F. $ 665 - $ SD and Place I Temporary Connection of W6D to 34. WISE at STA 520+44.92 Per Detail H L.S. Lump Sum Lump Sum $ on Sheet 26 Complete and In Place Supply and Install 2" Blow-Off, STA 520+64.77 (W6D) per CSJC 35. STD DWG W-11, Complete and In L.S. Lump sum Lump sum $ �OD Place Connection of W6E to Existing 14" Pipeline at STA 520+54.91, 36. Including 12" Gate Valve Per CSJC L.S. Lump Sum Lump Sum $ STD DWG W-I I Complete and In /� Place Supply and Install 14"Linestop 3T Complete and In Place L'S' Lump Sum Lump sum $ it 4yo Supply and Install New Water Service Lateral and Meter Per CSJC STD DWG W-2, Below Caltrans 38. Wall Footing,Including Connections L.S. Lump Sum Lump sum $ to Existing 14" ACP and Abandoning Existing Water n Services, Complete and In Place / CALTRANS STAGE 2B—PIPELINE W8A, W4 and WI Implement Traffic Control for W8A, 39. W4 and W I L.S. Lump sum Lump sum $ Supply and Install 8" PVC, C900, 40. DR14,PR 305,(W8A)Complete and L.F. 280 L.F. In Place MRa U.am UaR FREE UNIT PRICE BID SCHEDULE "9IJ-Weun1t"d NOY Ypp1 BIDFORMS -PAGE 4 ITEM ITEM DESCRIPTION UNIT ESTIMATED UNIT ITEM NO. QUANTITY PRICE COST Supply and Install 2" Blow-Off, 41. STA 6+98.68 per CSJC STD DWG L.S. Lump sum Lump sum $ W-1 I Complete and In Place Connection of W8A to Existing 42. Pipeline at STA 6+3133+/- L.S. Lump sum Lump sum $ 6 Complete and In Place Connection of 8A to Existing Pipeline at STA 8+88.69, Including 43. I"Air Vac per CSJC STD DWG W- L.S. Lump sum Lump sum 16 Complete and In Place Supply and Install 12" PVC, C900, 44. DR14, PR 305,(W4) Complete and L.F. 39 L.F. $ $ In Place Supply and Install 12" DIP Tee, Fittings and 2- 12" Gate Valve and 45. End Caps at STA 7+40.00 Complete L.S. Lump Sum Lump Sum $ and In Place Supply and Install 2" PRV, Fittings and 2-8" Gate Valves 46. at STA 7 +40.00 Complete and In L.S. Lump Sum Lump Sum $ /, 3 D Place Supply and Install 12" PVC, C900, 47. DR 14,PR 305,(WI),Complete and L.F. 221 L.F. $ $ Place Supply and Install 4" Blow Off at 48. STA 9+09.00 Per CSJC STD DWG L.S. Lump Sum Lump Sum $ / D W-3 Complete and In Place Supply and Install Gate Valve and Fire Hydrant at STA 8+85.00 Per 49. CSJC STD DWG W-7 and W-13, L.S. Lump Sum Lump Sum $ / Com lete and In Place Connection to Pipeline W2 at STA 50. 9+51.26 (8+77.00) Complete and In L.S. Lump Sum Lump Sum $ Place Y� G CALTRANS STAGE 1F—PIPELINE W2, W3A, W4A AND W12A Sl. Implement Traffic Control for W2 1 �0 L.S. and W3A Lump sum Lump sum $ t Supply and Install 12" PVC, C900, 52. DR 14,PR 305,(W2),Complete and L.F. 143 L.F. $ a $ 3� Place Connection of W2 to Pipeline W3A 53. at STA 10+00.00 Complete and In L.S. Lump Sum Lump Sum $ A� Place .,,pa PRICE UNIT PRICE BID SCHEDULE "°Ml BIDFORMS-PAGE 5 ITEM ESTIMATED UNIT ITEM NO. ITEM DESCRIPTION UNIT QUANTITY PRICE COST Connection of W2 to Pipeline W1 at 54. STA 8+77.00 Complete and In Place L.S. Lump Sum Lump Sum $ Supply and Install 2" Pipeline 55. Bypass,Including all Appurtenances, L.S. Lump Sum Lump Sum $ Complete and In Place Supply and Install 12" PVC, C900, 56. DR 14, PR 305, (W3A), Complete L.F. 291 L.F. $ $ and Place Connection W3A to Pipeline W3 at 57. STA 12+87.00 Complete and In L.S. Lump Sum Lump Sum $ Place BOD Supply and Install 12" PVC, C900, 58. DR 14, PR 305, (W12A), Complete L.F. 284 L.F. and Place Connection W12A to Pipeline W12 59. at STA 12+87.00 Complete and In L.S. Lump Sum Lump Su $ Place W Supply and Install 12" PVC, C900, 60. DR 14, PR 305, (W 4A), Complete L.F. 55 L.F. $ $ / and Place Connection to 12" Bend at STA 10+10.00,Including 4"Blow Off Per 61. CSJC STD DWG W-3 and 2" Air L.S. Lump Sum Lump Sum $ Vac Per STD DWG W-16,Complete Al�D and In Place SEWER STA 7+48.50 Plug and Abandon 62. Existing Sewer Main and Cleanout, L.S. Lump Sum Lump Sum $ �/ D Complete and In Place CALTRANS STAGE 2B—PIPELINE W3 AND W12 63. Implement Traffic Control for W3 I and W12 L.S. Lump sum Lump sum $ Ott Supply and Install 12" Steel Pipe CML and Epoxy Coated, Class 150, (W3) Including the Steel Casing for 64. a portion of the Pipeline, and the L' F' 329 L.F. $ $ 12" PVC, C900, DR 14, PR 305, Complete and In Place o� 7 Supply and Install Double Ball 65. Expansion Joint Complete and In E.A. 4 E.A. $ -7 $ � Place MW Ua=WHIT PnsE UNIT PRICE BID SCHEDULE uwzro"iA1'wp° BID FORMS -PAGE 6 ITEM ESTIMATED UNIT ITEM NO. ITEM DESCRIPTION UNIT QUANTITY PRICE COST Supply and Install 2" Air Vac per 66. CSJC STD DWG W-16 Complete E.A. 2 E A $ $ and In Place Supply and Install 12" Steel Pipe CML and Epoxy Coated, Class 150, (W12)Including the Steel Casing for 67. a portion of the Pipeline, and the L.F. 329 L.F. $ $ 12" PVC, C900, DR 14, PR 305, 1 /- O Complete and In Place v S(O I EASEMENT—PIPELINE W6F AND W6G(WORK TO BE DONE WITH W5 AND W5A) Implement Traffic Control for W6F 68. and W6G L'S' Lump sum Lump sum $ �� Supply and Install 12" PVC, C900, 69. DR 14, PR 305, (W6F), Complete L.F. 28 L.F. $ $ and Place lit Am Supply and Install 2" Air/Vac at STA 520+39.23 Per CSJC STD 70. DWG W-16,(W6F)Complete and In L.S. Lump Sum Lump Sum $ Place D Connection of W6F to Pipeline W6D 71. at STA 520+45.06 Complete and In L.S. Lump Sum Lump Sum $ 6 Place Supply and Install 12" PVC, C900, 72, DR 14, PR 305, (W6G), Complete L.F. 28 L.F. $ $ and Place Supply and Install 2" A Nac at STA 520+39.23 Per CSJC STD 73. DWG W-16, (W6G) Complete and L'S' Lump Sum Lump Sum $ In Place One) Supply Supply and Install 2"Service Lateral Per CSJC STD DWG W-7 and W-2, 74. Fire Hydrant and 6" Gate Valve Per L.S. Lump Sum Lump Sum $ CSJC STD DWG W-13, Complete and In Place !8 QO Connection W6G to Pipeline W6F at 75. STA 520+44.92 Complete and In L.S. Lump Sum Lump Sum $ 3 Place Connection to Pipeline W5 at STA 520+17.62 Including 12"Tee and 76. 3- 12"-Gate Valves Complete and In L'S' Lump Sum Lump Sum $ Place '; OG1� FORM UO UNIT FR¢E UNIT PRICE BID SCHEDULE Nw2DO,2uTl""' BIDFORMS-PAGE 7 ITEM ESTIMATED IJNTT ITEM NO. ITEM DESCRIPTION UNIT UANTITY PRICE COST SEWER Supply and Install New 48"Manhole at STA 19+20.00 Per CSJC STD - 77. DWG 801, Including Plugging and L.S. Lump Sum Lump Sum $ Abandoning Existing Sewer, Complete and In Place OD EASEMENT-PIPELINE W5(WORK TO BE DONE WITH W61F AND W6G) Supply and Install 12" PVC, C900, 78. DR 14,PR 305,(W5),Complete and L.F. 644 L.F. $ $ Place (0641 Connection of WS to Existing 12" ACP Pipeline at STA 513+97.84 79' Including 12" Gate Valve Complete L.S. Lump Sum Lump sum $ and In Place W EASEMENT—PIPELINE W5A(WORK TO BE DONE WITH W6F AND W6G) Supply and Install 6" PVC, C900, 80. DR14, PR 305, Complete and In L.F. 79 L.F. $ $� Place Connection of W5A to Existing 81. Pipeline at STA 514+40.82, L.S. Lump Sum Lump Sum $ Complete and In Place Connection of WSA to Existing 82. Pipeline at STA 515+22.05, L.S. Lump Sum Lump Sum $ 760 Complete and In Place Abandon In Place Private 6" PVC 83' Pipe, Complete and In Place L'F' 150 L.F. $ $ 5 -1610 EXISTING STEEL PIPE Remove Existing Steel Pipe from the 84. Bridge to be Demolished and L.S. Lump Sum Lump sum $a5 Dispose of the Steel Pipe MISCELLANEOUS PIPE APPUTENANCES Install 1"Air Vac Tap,438'North of Ortega Hwy on Rancho Viejo Road, 85. Including all Required Traffic L.S. Lump Sum Lump sum $ Control, As Directed by the CSJC, Complete and In Place i FORM uaoz urvn mice UNIT PRICE BID SCHEDULE rv10e9+ia 1inirtwpe BIDFORMS -PAGE 8 ITEM ESTIMATED UNIT ITEM NO. ITEM DESCRIPTION UNIT UANTITY PRICE COST Install I"Air Vac Tap,North End of Galano Way, Including all Required 86. Traffic Control, As Directed by the L.S. Lump Sum Lump sum $ CSJC Complete and In Place Install 1"Air Vac Tap, 352' East on Ganado Road,Including all Required 87. Traffic Control, As Directed by the L.S. Lump Sum Lump sum CSJC, Complete and In Place Install 2" Blow Off Per CSJC STD DWG W-11, 1300' South of Ortega Hwy(Blow Off Location is approximately 200 feet west of the 88. west end of Calle Arroyo),Including L'S' Lump Sum Lump sum $ all Required Traffic Control, As Duetted by the CSJC,Complete and 4121J�Gb In Place Install I"Air Vac Tap,733'North of Ortega Hwy on Avenida Los 89, Cerritos, Including all Required L.S. Lump Sum Lump sum $ Traffic Control, As Directed by the CSJC Complete and In Place Install l"Air Vac Tap, 127'North of Ortega Hwy on Avenida Los 90. Cerritos, Including all Required L.S. Lump Sum Lump sum $ Traffic Control, As Directed by the CSJC Complete and In Place MISCELLANEOUS Supply and Install All Work Items 91. Not Included in the Items Listed L.S. Lump Sum Lump sum $ I . 3R,61 Above Complete and In Place TOTAL BID PRICE: $ f 9 9 0 l 1 1 3 Opf. MtU to�1 9�1i�r iluwna N, �+ rW 1�b�sn h oc� , V,c o Tt+tars Dollar amount in written form DOt-t.+d� Additive Bid Items: None FORM U.3W UNIT Pace UNIT PRICE BID SCHEDULE + +¢vnhwe BIDFORMS-PAGE 9 Exhibit 12-E Attachment B FHWA-1273— Revised May 1,2012 REQUIRED CONTRACT PROVISIONS FEDERAL,AID CONSTRUCTION CONTRACTS 1. General 3. A' P1 of any d the stipulations,contained In these If. Nordbatminstlon Required Contract Provisions may be sufficient grounds for Ill. Nonsegregated FadWas wdthhobft of progress payments,wlthhactdmrp of final IV. Davis-Bacon and Related Act Provision payment,termination at the contract,suspension I debarment V. Contract Work Hours and Safety Standards Ad or any other action determined to be appropriate by the Provisions contracting agency and FHWA. VI. Subleltfmrp or Assigning the Contract VII. Safety:Accident Prevention 4. Selection of Labor.During the perfor iwwo of this oordrad, Vlll. False Statements Concerning H%PnM Projects the contractor shelf not use convict labor for any purpose IX. Impbmantagon of Clean Air Act and Federal Water within the limits of a construction project on a Fedwal-eId Pollution Control Act highway unless I Is tsbor performed by convicts who are an X. Compliance with Oovsmmwftide Suspension and parole,supervised release.or probation. The tern FederaFald Debarment Requirements htghway does not Include roadways functionally ctsnftd as XI. Certification Repardtng the of Contract Funds for local roads or rural minor coketors LabbyGg ATTACHMENTS U. NONDISCRIMINATION A.Employment and Materials Prefereatca for Appalachian The provisions of tib section related to 23 CFR Part 230 are Development Highway System or Appalachian Local Access applicatole to all Federal-aid construction contracts and to all Read Contracts(Included In Appalachian contracts only) related constnactton subcontracts of$10,000 or mom. The pravlolons of 23 CFR Pant 230 are not applicable to material supply.engineering,or architectural service contracts. 1. GENERAL In addRion,the contractor and all subcontractors must comply 1. Form FHWA•1273 must be physically Incorporated In each vAth the folkn tg policies:Executive Order 11248,41 CFR W. construction ventrad funded under Tete 23(excluding 29 CFR 1825-1827,Title 23 USC Section 140,the emergency contracts solely Intended for debris removal). The Rehabilitation Act of 1973,as amended(29 USC 794),Title VI contractor(or subcontractor)must Insert tits form In each tithe CIvIl Rights Act of 1984,as amended,and related subcontract and further require its Inclusion In all lower tier regulations Including 49 CFR Parts 21,28 and 27.and 23 CFR subcontracts(excluding purchase order,rental agreements Parts 200,230,and 833. and other agreements for supplies or servtoes). The oorhhaotor and all arrbcordraclore must campy with: the The appilcable requirements of Form FHWA4273 aro requirements of the Equal Opporhmity Clause In 41 CFR 60- incorporated by reference for work dame under any purchase I A(b)and,for ail construction contracts exceeding$10,000, order,rental agreement or agreenemt for other services. The the Standard Federal Equal Employment Opw u* pelma,contractor shell be responsible for compliance by any Construction Cortrect Specifications In 41 CFR 80-4.3. subcontractor,Iowroaller subcontractor or service provider. Nola The U.B.Department of Labor has exclusive authority to Foran FHWA4273 must be Included In all Fedwakid design determine compliance with Executive Order 11248 and the buYd contacts,In all subcontrads and in Iwuer tier policies of the Secretary of Labor Including 41 CFR 80,and 29 subcontracts(exetuding subcontracts for design services. CFR 10254027. The contracting agency and the FHWA have purchase orders,rental agreements and Other agreements for the authority and the responsibility to ensure compliance with supplies or servlcw} The deslgnbulder shall be responsible Title 23 USC Section 140.the Rehabilitation Act of 1973.as for compliance by any subcortVator,lower4ler subcontractor amended(29 USC 794).and Title VI of the ChM Rights Ad of or service provider. 1984,as arrnended.•and related regulations Including 49 CFR Pants 21,28 and 27;and 23 CFR Parts 200.23%and 633. Contracting apenctee may reference Form FMA-1273 In bid _ FFammFFMA or-1273 mustuest for�hyyal physically Incorporated(not with appropriate ft The following en Is adopted revisions �W tin U.S.23 CFR •��ts idemnoed)In all contracts,subcontracts and lowar4ler Department of Labor(US DOL)and FHWA requirements. subcontracts(excluding pumhue orders,rental agreements and other agreements for supplies or services related to a 1.Equal Employment Opportunity:Equal employment cc 13buwon conba90. opportunity(EEO)requirements not to discriminate end to tslxe afibmalive action to assure equal opportunity as art forth 2. Subjed to the applteablllry criteria noted In the folfow1ni; under tswa,executive orders,rules,regultllons(28 CFR 35, sedkm these contract provisions shall appy to all work 29 CFR 1630.29 CFR 1625.1627.41 CFR 60 and 49 CFR 27) performed on the contract by the cantradoes own organization and orders of due Secretary of Labor as modified by the and with the assistance of workers under the contractors provisions presafbed 6mobo,and Imposed pursuant to 23 immediate superintendence and to all work pwfarmed on the U.S.C.140 shall constitute the EEO and specific alfemative contract by piacework,station work,or by subcontraa action standards for the contractors project activities under FR-3 EXHIBIT C Exhibit 12-E Attachment B this contract.The provisions of the Americium with Dlsabiilles 4.Racruttmarrt When advertising for employees,the Act of 1000(42 U.S.C.12101 at seq.)act forth under 20 CFR contractor will Include In all advertisements for empk yeas the 35 and 20 CFR 1430 ars Ir mpoiatad by reference in this notation:"An Equal OpporbAlly Employer." N such contract.In the execution dd is contmet,the contractor advardsoments will be placed in publicalions having s large agrees to cempy with the following minimum specific dmulation among rnhoritles and worm In the area from cerement aWvliss of EEO: which the project work force world normally be derived. a.The contractor will weak WIN the contracting agency and a. The contractor will,unless precluded by a valid the Federal Government to ensure that It has shade every bargaining agreanerd.conduct systematic and direct db tonna and ffaith eflort�lions dovide f and and In their opportunity with areviewto� sources Ifludy recruitment through�[Ifledprivate employee d > woman. To of activities under the contract. meet this requirement,the contractor will Identify sources of potential minority group employees.and establish with such b.The contractor will accept as its oporeting policy the identified sources procedures whereby minadly and woman following ststament: applicants may be referred to the contractor for employment "Il Is the policy of this Company to assure that applicants are employed.and that employees aro treated during b. in the evert the contractor has a valid bargaining emptayment,without regard to their race.rellgiorh.Behr,color, agreement providing for exclusive hiring hall referrals,tie national origin,age or dlsebMW. Such action shall Include: contractor is anxm led to observe the provisions of that employment,upgrading,demotion,or transfer,recruitment or agreement to tins extent that the system meets the contractor's recruitment advortising;layoNar termination:rates of pay or compliance with EEO contract provisions. Where other(an=of compensation:and ealedlon for training. Implementation of such an agreement has the effect of lnduding apprentlosshlp,pre.apprerhticeship,andlorow4he- discriminating against minorities or women.orobltgolea the job training." contractor to do the some,such implementation violates Federal nondiscrimination provision. 2. EEO Officer:The contractor will designate and make known to thecefocUrtp al icam an EEO Ofla cer who will have The contractor will encourage Its present employees to the responsibilityresponsibilityfor and must be capable of effectively refer mtnoddes and women as applicants for employment. administering and promoting an active EEO program snd who Information and procedures with regard to referring such must be assigned adequate authority and responsibility to do applicants wilt be discussed with employees. so. 5.Personnel Actions:Wages,working conditions,and 3. Dissemination of Policy:N members of the contractors employee benefits shall be established and administered,and staff who are authorized to hire,supervise,promote,and personnel actions of every type,Including hiring.upgrading, discharge employees,or who recommend such action,or who promotion.transfer,demotion,layoff.and tennlnallon,shall be aro substantially Involved In such action,will be made fully taken without regard to race,color,mllglon,sax,national cognizant of,and will imptament,the contractors EEO policy origin,age or disabilRy. The following procedures shall be and contractual responsibilities to provide EEO In each grade followed: and clasWicatton of employment. To ensure that the above agreanant will be met,the follaWng act=will be taken as a a. The contractor will conduct periodic Inspections of project m1nimum: edea to Insure that working conditions and employee facillles do net indicate discriminatory treatment of project eta a. Periodic meoWW of supervisory and pensomhal office personnel. employees will be conducted before the start of weak and then not Isar often than once every abc months,at wlhloh time the b. The contractor will pedodlrwly,evskude the spread of contractors EEO policy and Us tnplemadslton will be wages paid within each elessiircatiah to determine any reviewed and explained The meetings will be conducted by evidence of discriminatory wage predices. the EEO OMm. G The contractor will periodically review selected pemmnel b. N new supervisory or personnel oftion employees will be actions In depth to detamine whathar Dom Is evidence at given a thorough indoctrination by the EEO Officer,covering discrimination. Whore evidence is found,the contractor will all major aspects of the contractors EEO obligations within prampty take conedive action. 11 the review Indicates that ire thirty days follw ft their reporting for duly with the contractor. discnMrtation may Mond beyond the actions nrAswed,such corrective action shell Include an ante, A persons. a. Ail personnel who are engaged in dined recrultment for the project will be Instructed by the EEO Officer to the d. The contractor will promptly Investlgale s0 corn Wit of contractors procedures for locating and firing minorities and alleged discrimbutUon made to the contractor In connection women. with Us obligations under this contract,will attempt to resolve such complaints.and will take appropriate connotive motion d. Notices and pasters scolia forth the contractors EEO within a me noble time. If the investigation Indicates that the policy will be placed in areas readily accessible to employees, discrimination may affcot persons other than the complainant. applicants for employment and potential anployeas. such corrective action shall Include such other persons. Upon completion of each InvedWatton,the contractor wll Warm L The catreetoes EEO policy and the procedures to every complatned of as dthel►avenues of appeal. fmplema d such policy will be brought to the attention of employees by moans of meetings,employee handbooks,or G.Tralning and Promotion: other appropriate means. e. The contractor will assist In boating,auaHyG+g,and Increasing the sklile of minorities and women who are FR-4 Exhibit 12-E Attachment B appltoanb for employment or cineol employsta Such elfarts with the requlranents for and campy with the Americans wth should be aimed at developing full journey level status Disabilities Act and all rales and regulations established there employees in the type of trade or job classification involved. under. Employers must provide ressomabte aeoon[modation In all ampleyment activilles unless to do so would cause an b. Constaterd with the conftctofs work force requirements undue hardship. and as permissible under Federal and State regulations,the cony shall make full use of training programs.Le.. 9.Selection of Subcontractors,Procurement of Malarlale apprenticeship,and on4w4ob training programs for the and Leasing of Equipment:The contractor shall not gaogrophical area cf oantract performance. In the avant s discriminate on the grounds of race,solar.religion,sex. special provision for this subparagraph w8 be superseded as Indicated In the subcontng Is provided under Oft contract. national ractors,age or ft&bPAy In the selection and n odora Including mdefttsis special provision. The contracting agency may ream tesses of equip nerd. The contractor shall take at neasemy training positions;far parsons who receive waffere assistance and reasonable steps to ensure randiscdminWon In the in accordance with 23 U.S.C.140(a). odministralion of this contract. c. The contractor will advise employees and applicants for a. The contractor shall notify all potential subconttrsctors and employment of available training programs and entrance suppliers and lessors of their EEO obllodlons under this requirements for each. coact• d. The contractor will perlia"ly review the babdng and b. The contractor will use good faith efforts to ensue promotion end will patent" or employees le am arra roes c: n and far subcontractor compliance YAM their EEO oblgathms. w such training and promotion 10.Assurance Required by 49 CFR 28.131b): 7.Unions:If the contractor ratios In whole or in part upon unions ea a source of employees,the contractor NRI)use good a. The requirements of 49 CFR Part 20 and the State faith efforts to obtain the cooperation of such unions to DOT*U.S.DOT-approved DBE program aro Incorporated by Increase opportundbs for mhnortlea and woman. Actions by reference. the contractor,either directly or through a eordractoft association acting as ager*will ktciude the procedures set b. The contractor or subcontractor shall not discriminate on forth below. the basis of rete,color.national origin,or sex In the performance of thls contract. The cents"shell carry cut a The contractor will use good lath efforts to develop.in apptcable requirements of 49 CFR Part 20 in the award and ocoperetion with the unions,joint training programs almsd administration or DOT eaststed contracts. Failure by time toward qualifying more minorities and women for membership contractor to carry out these requirements Is a material broach In the untons and inrxsssing the sldh of minerities and women of this contract,which may result In the termination of this so that they may qualify for higher paying employment. conlraet or such other remady as the contracting agency deems appropriate b. Tia contndor will use good fath efforts to Incorporate an EEO clause Into each union agreement to the and that such 11.Records and Reports:The contractor shall keep such union will be conVactualy bound to refer eppticorft WMWA records as necessary to document compliance with the EEO regard to their race,color.re11004 sax,national origin,age or requirements. Such records shall be retained for a period of disabilty. Ones years following the date of the final payment to the contractor for ell contract work and shell be avallable at c. The contractor Is to obtain Information as to the referral reasonable timea and places for inspection by au wftd practices and policies of the labor union except that to the representatives of the contracting agency and the FKWA. ardent such intormadon Is within the exclusive possession of the labor union and such labor union refuses to furnish such a. The recoda kept by the canbacior shalt document Ore tnfammien to the cardractor,the contractor shall so certIy to following: the contracting agency and shall oat forth what efforts have been mads to obtain such knfbnnattar. (1)The number and work hours of minodty and non- mIrtodty group membere and woman employed in each work d. In the event the union is unable to provide the contractor classification on the project; with a reasonable Raw of referrals within the time Ikrdt act font In the collective bwgmlrJng agree.erd,the contractor will, (2)The progress and efforts being made In coaparadon through Independent recruitment efforts.1111 the employment with unions,when applicable,to Increase employment vocanclas without regard to race,calor,m%lon,sex,national opportunities for minorities and women;and orW.age ordlsabilty;nuMig full efforts to obtain quaUfied "or guwftble mincrfties and women. The Mure of a union (3)The progress and offotts being made In loeattng,firing, to provide sufficient referrals(even though k Is obligated to training.qusM*g,and upgrading mirnontles and women; Provide exclusive referrals under the terms of a collective bargaining agreement)does not relieve the contractor from the b. The contractors and suix ordraetas will submit an annual requirements of this paragraph. in the event Oa union retoral report to the contracting agency each July for the duration of practice prevents the contractor from meeting the obligations the project,Indicating the number of minority,women,and pursuant to Executive Order 11240,as amended,and these non-minority group employees currently engaged In each work special provisions,such contractor shall Immediately nctily the classification required by the contract work. This Information Is contracting agency. to be reported on Fane FHWA-1391. The atatTing date should represent the project work force on board in all or any pall of 9. ReasonableAccommodation for Applicants l the test payroll period preceding the end of July. If crAho job Emptoyaas with Disabilities: The contractor must be famWer balning to being required by special provision,the contractor FR-5 Exhibit 12-E Attachment B wdl be required to tolled and report training dale. The of paragraph 1.t of this section;also,regular contributions employment data should reflect the work force on board during made or costs Incurred for mora then a weekly period(but not all or any port of the last payroll period protecting the and of less often than quarterly)under pians,funds,or programs July. which cover the particular vveaRly period,are teemed to be constructively made or Incurred during such weekly period. Such laborers and machartica shall be paid the appropriate III.NONSEGREGATED FACILITIES wage rate and fringe benefits on the wage detenninallon for the clesafficetion of work sclually performed,without regard to This provlstcn is applicable to all Federabald eortstruction aWd,oxeept as provided in 20 CFR 6.6{ah)(4).Laborer or contracts and to all related conatnrctlan sutacoatrads of mechanics performing worts In mora than one clasatfi adon $10,000 or more. may be cornpeneatad at the rate specified for each classification for the time actually worked theroln:Provided, The contractor must ensure that tadtities provided for That the employer's payroll records accurately set forth the employees aro provided In such a manner that uVrogettah on time spent In each claasffication In which work is performed. the basis of race,color,religion,sex,or national origin cannot The wage dd mhtation(Including any additional classification result The contractor may neither require such segregated and wage rates conformed under paragraph 1 b.of this use by written or and policies nor tolerate such use by section)and the Davle-Bacon poster(WH-1321)Ad be employee custom. The contractor's�aodands Uther posted at ori times by the contractor and Its subcontractors at to ensue that its employees are not to perform their the ate of the work In a prominent and accessible place whore services at any location.under the contractors control,whore t can be easly aeon by the workers. the tseil&tea are segregated. The farm't Odes•brdudes waNkg rooms.work areas.restasants and otter eefbg areas, b.(1)The contracting aflkhar shat require lintel any dans of firma dodo.resing res washrooms.iodcnr rooms,and other laborers or mechanise.Including helpers,which is not listed In storage or crossing areas,parking drinking,a ntabrs, to�determination and which Is to be employed under fine recreation for a ploy n . T arose,transportation,arae towing contract shall be classified in conformance with the wage provided far r restr ems. The contractornecessary shat provide separate determinator.The c:ordrading aficar shallapprove an a ekr to ass r metrooma and ne sexes,dross[ng a steeping addition$clasaffintion and wage rate and fringe benefits sroes to assure privacy between sexes, therefore only when the following aiteda have been met. W. DAVIS43ACON AND RELATED ACT PROVISIONS 0)The work to be performed by the clessfflcstion requeefed to not performed by a classification In the wage This sedion Is applicable to a0 Federal-eld construction determination;and projects exceeding$2,000 and to all related subcontracts and lower tier subcontraoa(regardless orsubcontrad stze). The (11)The ctamIllcaton Is utdzsd in the arca by the requirements appy to all projada located within the rightof- construction industryr,and way of■a roadway tet Is functionally classified sa Federal-ald h1ahway This excdrdes roadways h nclicr sly dassiisd ore (D)The proposed wage rate,Including any bona Ode Conlocal roads ar rural miner ccda, lydh are exempt dugs benelW,boars a reasonable rolaftamhp to the Other rpo p agencies may clad to d apply fleas raquhsmerhts to wage rates oontatned In the wage determination. The fodowtnp provisions are from the U.S.Department of (2)H the oadnador and the[dome and mechanics to be Labor regulations in 29 CFR&6'Conti provisions and employed In Be classification(d form).or their related matters•wfth minor rovisiorm to conform to the FHWA- rept and the contracting officer agree on the 1273 format and FHWA program requirements. clasalliceton and wage rate(Irtduding the amount designated for hinge benefits where appropriate).a report of the action taloen shad be sent by the contracting officer to the I. minimum wages Administrator or the Wage and Hour Division,Employment Standards Admkdstratlon,U.S.Department of Labor, a. Ail laborers and machanlcs employed or working upon Washington.DC 20210.The Admtnlatrator,or an authorized the site of the work,will be paid unconditionally and not less representative,will approve,modify,or disapprove every often than once a week,and without subsequent deduction or additional clesaffioaton action within 30 days of receipt and rebate an any account(except such payroll deduction as are to advise the contracting aMloer or will notffy,the contracting pennited by regulations Issued by the Secretary of labor oficerwithin the 30-day pedod that additional tree Is under the Copeland Ad(29 CFR part 3)),the full amount of ncessary' wages and bona Ade idngs beneifs(or cash equivalents thereof)due at time of payment computed at rates rot lose (3)In the event the contractor,the leborars or mechanics than those contained In the wage detarminaton of the to be employed In the deseffication or their representatives, Boas"of Labor which le atac had hereto and made a pad and the contree tog officer do not agree on the proposed hereat,regardless of any contractual relataneNp which may deseftetion and wage rate(Including the amount be alleged to allot bshveen the contractor and such laborers designated for fringe barefds,wham appropriate).the and machantcs. eontredbhg officer shad refer the questions.Induding to views of ad fnterested parties and the recommendation of the Corddbutions made or costs reasonably anticipated for bona cane off•to the Wage and Hour AdmhYstmtor for Ade fringe beneft under section 1(b)(2)of the Davis-Bacon determination.The Wage and Hour Administrator,or an Act on behalf of laborers or machaela are consideredwages authorized representative.will Issue a determination within paid to such laborers or mechanics,subject to the provisions 30 days of receipt and so advise the contracting corset or FR-6 Exhibit 12-E will the aefficarwithm Attachment B noltl)r may period that Bacon Act,the contractor shall rtwkhtaln reooNa rhAttcth show additional titre Is necessary. that the commitment to provide such benaf is is anforceable, that the plan or program is 8nandalty responsible,and that the (4)The wage rate(inchrding fringe benefits where Plan or program has been communicated In writing to the appropriate)determined pursuant to paragraphs 1.b.(2)or laborers or mechanics affected,and records which show the 1.b.(3)of this section,"I be paid to all workers performing costs anticipated or the actual cost Incurred in providing such work In the classification under this contract from the first benefits.Contractors employing apprentices«tralneas under day an which work Is pedommad In the elesstikatiom. approved Programs shall malntsin written evidence of the regisballon of apprenticeship programs and earliftcation of traineee.Whenever the minimum wage rate presafted in the trainees wand tin tregistrationrarnsthe apprentices ali and wage contract for a daof taborer*or mechanics Includes a fringe applicable programs. gs rates prescribed In the and ce beneM which 1s not expressed as an hourly rete,the contractor shall alther pay the benefit as stated in the wage determination weeklyb.(1)The contractor shall submit er an l pay erreofbona fide fringe bnrcefil«an hourly cash which contract work Is performed a coopy o all Payrolls to equivalent thereof.. the contracting agency. The payrolls submitted shall ad cut accurately and completely all of the Information required to be d.If the contractor does not maks payments to a busts or maintabrad under 29 CFR 6.6(a)(3)(q,except that fuU soot other third persem On contractor may consider as pad of the security numbers and home addressee stag not be Included wages of any taborer or mechanic the amount of any caste an weekly transmittals.instead qts payrolls shall only need to reasonably anik 4mded In providing bone tido fringe benefile include an Individually identifying number for each employes under a plan or program,Provided,That the Secretary of e.g.,the last bur digits of the employee's social security Labor has fcund,upon the written request of the contractor, number).The required weekly psyrdl information may be that the applicable standards of the Bauer Act have submitted In any forth desired.Optional Forth WH-347 is bean met.The Secretary of Labor may require the contractor evetlabte for this purpose from the Wage and Harr Division to est aside In a separate account assets for the meeting of Web site at htWiAvww:doLgwdesaM Mftmalwh347Mstr.him ebUgatleos under the plan or program. or its sum«site.The prima contractor is responsible for the submission of copies of payrolls by all subcontractors. 2. Withholding Contractors and subcontractors shall malntsln the fug social security number and currant address of each covered worker, and ehall provide them upon request to the contracting agency The contracting agency skein upon Its own action or upon for Irenarnlaslon to the State DOT,the FHWA or the Wage and written request of an authorized representative of the Hour Division of the Depadment of Labor for purposes of an Department of labor,withhold or cause to be withheld from Investigation or audit of compliance with prevailing wage the contractor under this contract,or any other Federal regdrernents.it Is not a violation of this section for a prime contract with the awns prime contractor,or any otharfedamlly. ventrad«to require a subcontractor to provide addresses and assisted car 1 1 subject to Davia•Baoon Prevailing wage social securely numbers to the panne contractor for ifs awn requlremerts,which Is held by the owns primo contract«,so records,without weekly submission to the contracting agency.. much of the accrued payments ar advances as may be considered necessary to pay laborers and mechanics. (2)Each payroll submitted shag be aoeompanbd by a Including apprentices,trainees.and helpers,anployed by the 'Statement of Compliance,"signed by the contractor or eorlb,-eDor or arty subcontractor the full amount of wages sueoo or«his«her agentwho pays or supervises the required by the contract. ghs event of taUureto pay any payment of the persons employed under the eontmet and shalt Ietaborer«mactardc.Including any apprentice,tractrtae,or helper.employed or working an the ate of the work,all at part Oaf*Me of the wages required by the contract,the contracting agency may.after written notice to the contractor.take such action as (i)That the payroll for the payroll period contains the may be necessary to cause the suspension of any further irdormation required to be provided under¢6.6(a)(3XII)of payment,advance,or guarantee of funds until such violations Regulations,29 CFR pad 6,the appropriate information Is haus cassed. being maintained under§6.6(03)(1)of Regulations,29 CFR pad 6,and that such information le correct and 3. Payrolls and basic records complete; a. Payrolls and basic records relating thereto shall be (4)That each laborer or mechanic pnduding each maintained by the contractor during the course of the work and helper.apprentice,and trelnee)employed on the contract preserved for s period of three years thereafter for all laborers during the payroll period has been paid the full weekly and mechanics working at the site of the work.Such records wages earned'without rebate,either direly or Indirectly, shill contain the mantle,address,and social sacuriy number of and that no deductions have been made either directly« each such worker.his«her correct desocallon,hourly rates indirectly from the fun wages oemed,other than of wages paid(including rates of oatUfbullons or costs part 3' permissible deductiena as sof forth In Regulations,28 CFR antidpslad for bona fide fringe banafts or cash equivalents thereof of the types described In section 1(b)(2)(B)of the DaviaBaoa►Act),defy and weekly number of hours worked, (ill)That each taborer or mechanic has been paid not deductions made and actual wages peid.Whenever the less than the applicable wage rtes and fringe beneftts or Secretary of Lsb«has found under 29 CFR 6.6(a)(11)(iv)that cash equivalents for the classification of work pertamed, the wages of eny taborer«mechanic include the emourd of as specilled in the applicable wage dshrmtnnlion any coats reasonably anticipated In providing benefds undo a incorporated into the contract. plan or program described In section 1(bx2)(B)of the Davis- FR-7 Exhibit 12-E (3)The weakly subm4slon of a property executed rate Attachment B specified in the applicable wags determination. certHtostton ad forth on the revers side of Optional Form Appranitoes shaft be paid fringe bane is in accordance with WH-347 shall satl*the requirement for submission of the the provisions of the apprentleeshlp program,tf the 'Statement of Compliance required by paragraph 3.b.(2)of apprenticeship program does net specify fringe benatits, this seWort. apprentices must be paid the full amount or binge benefits listed on the wage determination for the apprrceble (4)The falalli ation of any of the above csrglicasons may classification.If the Administrator determines that a different subject the contractor or eubcontrector to cprli or criminal practice prevails for the applicable apprentice clsestloation, fringes shalt be pard in accordance prosecution under section 1601 of titre 18 and section 231 of with flat determination. title 31 of the united tomes Code. In the event the Office of Apprendoeship Tralning.Employer a The=draft or suboontnador shall make the recoc In end Labor Services,or e State Apprenticeship Agency required under paragraph 3.a of this section available for recognized by the Office.v fthdraws approval of an apprenticeship program,the contractor will no be representatives copying,or transMpt a e cy.the to permitted to utilze apprentices at less than applicable repreaentetives of the contracting agency,lits State DOT,the FHWA, or the Department of Labor,and shop permit such predetermined rale for the work performed until an eooeptabla representatives to Interview employees during working hours Program Is approved. on the job.If the contractor or subcontractor faits to submit the required records or to make them evaltable,the FHWA may, b.Trainees(programs of the USDOL). after written notice to the contractor,the contracting agency or the State DOT,take such action as may be necessary to cause the suspension W any further payment.advance,or Except 8d provided In Z8 CFR 6.18,traitress will not be guarantee of funds.Furthermore.fallure to submit the required permit to work at Was then the predstermined rate for the records upon request or to make such records evageblerosy work Warned unless they aro amp"pursuant to and be grounds for debarment action pursuant to 28 CFR 5.12 Individually registered in a program which lura received prior approval,evidenced by formal certification by the U.S. Depaent ofbor 4. Apprentices and trainees Addmiinl�stration� ,Employment and Training a.Apprentices(programs orthe USOOL). The ratio or trainees to journeyman an the job eft*shag not be greater than pwnlbd under the plan approved by the Apprentices Will be permitted to work at less then the Employment and Training Administration. predetermined rate for the work they performed when they are employed pursuant to and fndMdually registered In a bone fide Every trainee must be pall at not teas than the rate specified apprendooshtp program registered with the U.S.Oepatmerd of in the approved program for the tralaWs level of progress, Labor,Employment and Training Adminlstrettan,Office of expressed as a percentage of the journeymen hourly rate Apprenticeship Training,Employer and Labor Services.or with specriled In the applicable wage determination.Trainees shag a State Apprenticeship Agency recognized by the Office,or K a be paid fringe banafita in accordance with the provisions of the person is employed in his or her first 8o days of probationary trainee program.It the trainee program does not mention employment as an apprentice In such an apprenticeship fringe beneftis,trainees shall be paid the full amount of fringe program,who is not Individually registered In the program,but benefits gated on the wage determination unless the who has been coddled by the Office of Apprenticeship AdminMrstar of the Wege and Hour Mien defe Ines that Training.Employer and labor Services or a State Hare Is an apprenticeship program associated with the Apprentksshtp AgerW(whets appropriate)to be eigibia for corresponding journeyman wage rate an the wage _ probetlenary employment as an apprentos. determination apprentices.Any employee listed on the payrthan full oll at a trainee The allowable ratio of apprentices to journeymen an the job rate who to notregisteredand pahicipating In a bWnb g plan site In any craft classification shag not be greater than the ratio aped by the Employment and Training Administration shall perbe paid not lase than the applicable wage rate on the wage the registered to d program.contractor ere to the entire n a force under determination for the classification of wort actually Warmed. the registeredaate. Any worker listed on r otherwollise a an In addition,any tralase Worming work an the job efts In apprentice were rata,who is not registered or otherwise amptoyed as slated above.shall be paid not toss then the excess of the ratio permitted under the registered program applicable wage rate on the wage determination for the shag be paid not leas than the appik;ehie wage rate on the cEassihcation of work actually performed.In addfvon any sago determination for the oak actually performed. apprentice performing work on the job she in excess of the rano permitted under the registered program shag be paid not In the event the Employment and Th dning Administration Ins than the applicable wage rate an the wage determination withdraws approval of a training program,the eontrsdor will no far the work actually performed.Where a contractor Is longer be permitted to utilize trela es at less than the performing construction an a project In a locality other than applicable predetemtned rate for On work performed until an that In which its program is registered,the ratios and wage acceptable program Is approved. rates(expressed In percentages of the joumsyman's hourly rate)specified In the contractors or 3ubcontmclofe registered program shag be observed. a Equal employment P oyment opportunity.The utilization of apprentices,trainees and joumaymen under this part shag be In conformity with the equal employment opporturfty Every apprentice must be paid at not toes tun the rate requirements of Executive Order 11248,as amended,and 29 specified In the registered program for the apprentioeb lend of CFR pad 30. progress,expressed as a percentage of the journ*ymen handy FR-8 Exhibit 12-E Attachment B d. Apprentices and Trainees(programs of the U.S.DOT). Apprentices and trainees working under apprenticeship and V. DARD CT WORK HOURS AND SAFETY skill training programs which have been certified by the STANDARDS ACT Secretary of Transportation as promoting EEO In connection with FedenFaid highway construcHon programs are not The following douses appy to any FederaNid construction subject to the requirements of paragraph 4 of this Section IV. centrad In an amount In excess of$100.000 and subjsd to the The straight time hourly wage rates for apprentices and overfte provisions of the Contract Work Hours and Safety tndnm under such programa will be astabbbed by the Standards AcL These douses shall be inserted in addition to ps did*programs'.The ratio of opprenttoes and tminses to axe dawn required by 20 CFR 6.6(e)or 20 CFR 4.8. As joumeymen shall not be greater than permh0ed by the terns of used in this paragraph,the terns laborers and mechartkw axe particular prog1 am. include watchmen and guards. IL Compionce with Copeland Act aequIlon nts. The 1.0varti ne requirements. No contractor or subcontractor wrtrector shall comply WM the roqu MMM is of 20 CFR part contracting for any part of the conMd work which may m4uks 3,which are Incorporated by reference In this contract. or Involve the employment of laborers or mechank s shall require or psrmit any such laborer or mechanic In any 0.Subcontracts. The acntrador of subcontractor shad Insert work in which he or she to employed on such work to Form FHWA-1273 in any subcontracts and also require the work 5h or maccess of forty hours c such workweek unlessariot such subcontractors to include Form FHWA-1273 In any lower tier laborer�mechanic fVffm a basic rate ata rate not ours subconkaift The prime contractor shall be responsible for the than one arhd ess o foUmes the bastes rate d pay for all noun compliance by any subcontractor or lower tier subcontractor worked to excess d lorry hour!n such workweek with all the contract clauses In 20 CFR B.S. 2.Violation;liability for unpaid wages;liquidated 7.Contract terminators:debarment. A breach d the damages. In the event of any violation of the douse set forth tenlrec causes to 29 CFR 6.6 may be grounds for termination in paragraph(1.)of this sedon,the contractor and any d the contract,and for debarment rm s groupcontractorfand a subcordrodar responsible therefor shall be Roble for the of condor,a provided In 20 CFR 6.f2. unpaid wages.In addition,such contractor and subcontractor shall be liable to the United States(In the case of work dons under contract for the OWN:of Columbia or a territory,to ouch 0.Compliance with Davb.Bacon and Related Act District or to such territory),for liquidated damages.Such requirements. All rulings and Interprelettona of the Davis- liquidated damages shag be computed with rasped to each Bacon and Related Acts contained In 20 CFR parts 1.3,and 6 individual labomr or mechanic,Including watchmen and are herein Incorporated by reference In this contract. guards,employed In violation of the dam set forth In paragraph(1.)of this section,In the atm d:10 for each 0.Disputes concerning labor standards.Disputes arlsing calendar day on which such Ind vidual was required or out of the labor standards pons of this contract shall not hourswithoutwwithoout rmitted to paymeIn nt offtthee overtime wages reof On standard quired by� be subject to the generalisd putes dause of this contract.Such clause act fto in paragraph(1.)or this section. disputes shall be resolved In accordance with the procedures of the Department of Labor set forth in 20 CFR parts 6.S.and 7.Disputes within the meaning of this clause include disputes 3.Wlthholding for unpaid wages and liquidated damages. between the eonbador(or any of Its subcontndom)and the The FHWA or the vada ft agency shag upon ds own action c m 6ade9 agency,the U.S.Department of tabor.or the or upon written request of an outhafted representative of Ina employees or their ropmeartWves. Deperbnerd of labor wMdtdd or cavae to be withheld,from any moneys payable on account of work performed by the 10.Csttf{eston of stlglb0[ty. conn dor or subcontractor under any such contract or arty other Federal contract with the same prime corthador,or any other wed contract subject to the Contract Work a.By entering Into this contrast.the contractor cordes awl Hours and Safety Standards Act,which Is held by the same neither it(nor he or she)ncr eny pemon or tlnn who has an prime caxtrsctor.such sums as may be determined to be Interest in the contractor's firm is s prion or firm irtdigible to necessary to satisfy any HaMos of such contractor or be awarded Government contracts by virtue of section 3(s)of subcordrador for hmpaof wages and Ikluidsted damages as the Davia-Seton Ad or 20 CFR&1211011 pfmilp in the douse set forth in paragraph(2.)of this b.No put of this centrad ship be subcontracted to any t»non or firm beligtble for award of a Government contract by virtue 4.Subcontracts. The contracar crouboo ntrador shag Insert daub 3(o)of the Davis-Bacon Act cr 20 CFR 6.12(a)(1). In any subcontracts the clauses act forth In paragraph(1.) through(4.)of this section and also a douse requiring the c.The pertalry for making false stelarents la proscribed lo the subcontractors to include these clauses in army lower tier U.S.Chi nn for 10 U.S.C.M.ate subcontracts.The p�contractor shag be responsible for compliance by say subcontractor or lower tier subcontrsotor WIth the douses set forth In paragraphs(1.)through(4.)of We section. FR-9 Exhibit 12-E Attachment B In w"and that it contahspertinent provisions VL BUBLETTINO OR ASSWNM THE CONTRACT GVWandreq�idremad Me prime contract. all This provlslon Is applicable to all Fadafal alt constnrdlon G.The 30%saffLperformance requirement of paragraph(1)is contracts on the National Hlghway System. not applicable to deslgn•build contract;however,contracting agencies may establish their own self-Wormance 1.The contractor shall perfdmn with It own organb2tion requirements. contract watts amounting to not teas then 30 percent(or a greater percentage If apecifie slsawhars in the contract)of the total original conftd price,srocludtng any specialty Items Vg.SAFETY:ACCIDENT PREVENTION designated by the contracting agecy. Specialty Items may be performed by subcontract and the amount of any such This provision Is applkable te sa Feden9l-ald specialty Items performed may be deducted from the total construction contracts and to all related subcontract. original anther trice before computing the amount of work required to be pafomad by the contractors own organisation 1. In the performance of this contract the contractor$hall (23 CFR 835.118). comply with all appleabb Federal,State,and kxal laws governe. The term*perform work with No own organlzetion'refers coontndor shallprovideall and selety devic3 CFFt es and to worker employed or leased by the prime contactor,end protective equipment and take any other needed actions as N egulprnad awned or rented by the prime ooriracicr,with or datemdnes.or ss the contracting atBoer may determine,to be without operates. Such term does not Include emphlyses or reasonably nacessaryto protect the life and health of equipment of s suboontraetor or lower ter subcontractor, employees on tha Job and the safety of the public and to owls of tM prime contractor,or any other assignees. The protect property to connection with the performance of the tern may Include payments for the costs of hiring based work covered by the contend. employees from an employee esstng firm meeting all relevant Federal and State regulatory regcdremerts. leased 2. It to a cmW tion of this contract,and shall be made a employees may only be knchrded In 96 tern If the prime condition of each subcontract,ist"Be eontrodar entero into contractor meats all ofthe following amdlUow.. pursuant to this contract,that Ito contractor and any s bcontaator shall not permit any employee.In performance (1)the prime contractor maintains control over the of the contraA to work In surroundings or under conditions arpemblon of the day-to-day activities of the based which aro unsanttery,hazardous or dangerous to his/her employees; haft or safety,as determined whaler construction safety and (2)the prime oornI,clor remains responsible for the quality health standards(II9 CFR 1828)promulgated by the Secretory of firs work of tha leased employees; of Labor.In accordance with Section 107 of the Contract Work !de Individual employees tains oil power the pJe contractor accept or and Hours and Safety Standards Act(40 U.S.C.3704). etx (4)the prime contractor remains ultimately responsible for S.Pursuant to 20 CFR 1828.3,N Is a condition of this contract the payment of Predetermined mlNmum wages,the that the Secretary of Labor or authorized mpresents" submission of payrolls.staA=nls of compliance and all thereof,shall have right of entry to any site of contact other Federal regulatory requirements. performance to moped or Investigate the matter of complar" with the construction safety and health standards and to cavy b."Specially Items"shall be construed to be limited to work out the duties of the 8ecrelary wander Section 107 of the that requires highly specialized knowledge,ablittles,or Controd Work Hours and Safety Standards Ad(40 equipment not ordinerNy available In the type of contacting U.S.C.3704). oVenlz♦tians qud tied and expeded to Wd or propose on the contact as a whole end In general aro to be WnIted to minor components of the avarall contact VNL FALSE STATEMENTS CONCERNIN10 HIGHWAY PROJECTS 2.The contract amount upon which the requirements set forth In paragraph(1)of Section VI Is computed Includes the coat of T h i s p r o v I a I o n I a applicable to art Faderel-rid mderW and rnonubdured produde which are to be conatnrcilon contracts and to alt related subcontracts. purchased or produced by the contractor under tM contract Provisions. in order to assure high quality and durabt earstuWon In confonnny with approved plans and specifications and a high 3.The contractor shall furnish(a)a competent superintendent degree of relabliy,on statement and representations made or supervisor who is employed by the firm,has full authority to by engines,contactors,suppliers,and workers on federal- dired performance of the work In accordance with the contract aid highway projects,N Is esacnfiaf that all persons coneemed requkoments,and Is In charge of oil construction operations with the prOod penton their furnctians a carefully.thoroughly, (regardless of who performs the work)and(b)such other of Its and honestly ae possible. Willful falsification,distortion.or own orgsntzoonal reaouross(supervision.management,and mWeprosardstbri with respect to any fads related to the enginearing services)as the cwftc Ing officer determines is project Is a violation of Federal law. To prevent any necessary to assure the performance of the=*red. misunderslanding regsidIng the seriousness of these and similar ads,Form FHWA•1022 shall be posted on each 4.No portion of the contract shall be aubtet,assigned or Federa4aid highway project(23 CFR 835)In one or more otherwise disposed of except with the writlen amsentof the places where it Is ready avallable to alt persona concerned contracting officer,or sullm Bird rapresenttive,and such with the project consent when glven shag not be canal ued to refieve the contractor of any responsibillty for the fulfillment of the contract. Written consent will be given only otter the 18 U.B.C.1020 reads as follows. oordrading agency has assured that each suboontract Is FR-10 Exhibit 12-E Wreover,being an draw.agent,oramployes of the United covered transaction.The prospective find tier participant sholl ��men Stales,or of any State or Territory,or whoever,whalher a submit an Wirmatlon of why It cannot provide Me eertiticatim person,association,ffrm,or corporation.knowingly makes any set orri below.The certification or explanation will be faire statement,false representation,or false report as to the considered In connection with the department or agency's charseW qualitY,quantity.or cast of the material used orto determination whether to enter Into this transaction.However. be used,at the quantity or quality of the work performed or to fal une of the prospective fust tier pariidpard to Nmlah a be performed,orthe cost thereof In camp din rh with the dation or an expWmftn shall d equally such a person submission of plans,maps,specifications,contracts,or costs from participation In this barreadian. of construction an any highway or related pm)ed submitted for approval to the Beat"of Transportation:or a The coRdtauon in No clause is a material reprsssntatlon of fact upon which repartee was placed when the contracting Whoever knowingly makes any false statement,false agency determined to enter Into this transaction.If it is later representation,false report or false dolm with reaped to the determined that the prospective participant knowingly rendered character,quality,quantity,or coat of any work performed or to an enonecus certlCcation.In addition to other remedies be porformod,or materials furnished or to be fumished.In available to the Federal Government,taro contracting agency eonneellon with the construction of any highway or related may terminate this transection for cause of default. project approved by tiro Boom"of Transportation:or d.The prospective list tlar partkolpant shd provide Whoever knowI ngly makes any false Moment or false immediate writtah notion to the contracting agency to whom representation as to material fact In any staterrrent,cwuf do. thio proposal to submitted U any lime the prespectin fist tier or report submitted pursuant to provisions of the Fademl-ald participant learns that its certifmtlon was erroneous when Roads Act approved July 1,1916,(39 Stat 366),as amended submitted or has become wronsous by reason of changed and supplemented; circumstances. Shall be lined under this title or Imprisoned not more than 6 e.The ftme'bovered transaction,""debarred," years or " , and Wuntarily excluded,'as toad In lista cim ,aro defined In 2 CFR Paris 180&W any OL YAPLEMENTATION OF CLEAN AIR ACT AND FEDERAL Tn msdbns'reform to c 'Fest Tier Covered any screed transaction between e WATER POLLUTION CONTROL ACT grantee or subgronlea of Federal funds and a participant(such as the prime or general contract). 'Lower Tier Covered This provision Is applicable to all Faderel-old construction Treneactione refers to any covered transaction under a HIM contracts and to all related subcontracts. Tier Covered Transaction(such as subcontrade). 'Flat Tier Pa►tidpenr refers to the par6dpant who has entered Into a By submission of this bidipmposal or the execution of thio covered tmnsadion with a grantee a subgrantee ofFederal contred,of subcontract.as appropriate,the bidder,proposer. funds(such as the prime or general contractor). lower Tier Fedetef•akl construction contractor.or subcontractor.a PwWpant'refers any participant who hos entered Into a appropriate,wpb be deemed to have stipulated a follows: covered in nsectlan with a First Tier Participant of other Lower Tier Participants(such as subcontractors and supp0ere). 1.That any parson who Is or will be utilized in the performance of this contract Is not prohibited from receiving an L The prospective first tier pariidpant agrees by submitting award due to a violation of Section 608 of the Clean Water Act this proposal that,should the proposed covered transection be or Section 3C8 of the Clean Alt Act. entered tufo,C shall tial knowingly enter Into any lower tier 2.That the contractor agrees to Include or rause to be covered transaction with a poison who is debarred, Included the requirements of paragraph(1)of this Section X in suspended.declared inellgible,or voluntarily enrdudad from every suticontrack and furlher the contracting agency may Wed as means of enforcing department agency entertnew to take such action as partiolpallon In this covered p�into t by transaction. such requherrronts g.The prospective brat tier partidpart Gather spree by submitting this proposal that it will Include the clause tilled X.CERTIFICATION REGARDING DEBARiNENT, 'Cefiftwon Regarding Debarment,Suspension,Inailglblllly SUSPENSION,INELIGIBILITY AND VOLUNTARY and Voluntary Exclusion-Wwor Tier Covered Transactions," EXCLUSION provided by fisc department or contracting agency,entering into this covered transadian.without modMcation.In all lower This provision is applicable to all Federal-cid construction tier covered transactions and In art sak&done for power tier contracts.design•buld contracts,subcontracts.IowaMMr covered transactions exceeding tiro$28,000 threshold. auboortrads,purchase ordure,loose agrawards,consultant contracts or any other covered transaction requiring F1,WA h.A participant in a covered transaction may rely upon a approval or that is estimated to cost=26.000 or more— a oertptallon of a prospective participant in a lower tier covered defined In 2 CFR Parts 180 and 1200. transection that Is not debarred,suspended.Ineligible,or voluntarily excluded from the covered transaction,unless k Won that the certification b erroneous. A participant Is responsible for ensuring that its principals are not suspended, 1.instructions for Certification—First Tier Participants: debarred,or otherwise ineligible to participate In covered transactions. To verify the epgibW of Its prindpafs,as wag as L By signing and submitting itis proposal,the prospective the eAplblity of any(ower tier prospective participants,each first tier participant is providing the ce0cation sat out below. participant rosy,but Is not requhed to.duocit the Excluded Parties Ust System webeite(huoarMiwmects.cavD.which Is b.The inabliy of a person to provlde the certlflcapon eat out compilad by the General Services Admintstratlom below will not necessarily result to denial of pattlelpation In this FRAI Exhibit 12-E Att L Nothing contained In the foregoing shall be construed to this transaction originated may pursue avalla4b ret, lest B require the establishment of a system of records In order to induding suspension and/or debarment. render in good faith the certification required by this clause. The knowledge and Information of the prospective participant c.The prospective lower tier participant shall provide Is not required to exceorl that which Is normally possessed by knmedlate written notice to the person to which this proposal is a prudent person in the ordinary course of business dealings. submitted If at any time the prospeeft lower fire participant /same that Its oertificatbn was am meaus by reason of I Except for trarsaetlona suUmized under paragraph M of changed circumstances. time tnstrudions,If a participant In a covered transaction knowingly entero into a lower tier covered transaelion with a d.The terms"covered transaction,""debarred," person who is suspended,debarred,ineligible,or voluntarily "ampanded,"OljW%i6ls."'pwildpant""person""principal," amduded from participation in this transaction,In addition to and"voluntarily excluded,'as used In this clause,are defined other rornedles available to the Federal Government to In 2 CFFt Parts 180 and 1200. You may content the person to department or agency may terminate this trarsadion for cause which this proposal is submitted for assistance In obbining a or defaulL copy of those regulations. "Fist Tier Covered TrsrsadioW Were to any covered transaction between a grantee or ••••• subgrantee of Federal funds and a participant(such as the prime or general contract). 'Lowar Tier Covered Transactions' 2. Certticatlon Regarding Debamrent,Susperslon, refers to any covered transaction under a First Tier Covered Inalglbtitty and Voluntary Exclusion—First Tier Transaction(such as subcontmcle). 'Fiat Tier Participant' Paatieipants: refers to the participant who has entered Irhto a covered transaction with a grantee or subgrantee of Federal funds a. The prospective first Ser partkdpaM certifies to the but of (such as tho prime or general contractor). 'Lower Tlor is knowledge and belief,$tat t and Its pdnalpshi: Participant'Were any partlClpard who has enbred Into e covered transaction with a First Tier Participant or other tower � dAm W presently dolloaffeck ebarment declared taskvet y excluded from Tier Participants(such as subcontractors awed suppifars} d participating In covered transactions by any Federal a The prospective ower liar participant agrees by department or agency. submttng this proposal that,should the proposed covered transaction be entared Into,it shall not knowingly enter into (2) Have not within a Oweayear period preceding this any lower ter covered transaction with a person who Is proposal been convicted of or had a civil judlimerd rendered debarred suspended,declared Ineligible.arvolurduty against them for commlsslon of fraud or a criminal offense In excluded from participation In this Covered transaction,unless connection with obtaining,attempting to obtain,or performing authorized by the department or agency with which thea a pub(lo(Federal.State or local)transaction or contract under transaction originated a public transaction;violation of Federal or State antitrust statutes or aorarhbolon of embezzlement theft,forgery, f.The prospective lower tier porildpant further agrees by bribery.fsislficalton or destruction of records.making false submitting We proposal that it will include this disuse Wed sbtemor-I ,at reodit stolen property. TAdificaoon Ragatding Debommi.Suspension.Ineligibility and Voluntary Ehrduston-.ower Tier Coveted Transaction' (3) Are not presently indicted for or otherwise afminatly or wi4hout mod'dicotion,In ell lower tier covered transection and civilly charged by a governmental entity(Federal.State or in all sollcitatlors for lower tier covered transactions mfc I A Ing local)with corrunbakm of any of tiro offenses enumerated In the$25,000 threshold. paragraph(a)(2)of this cxrdfReallon;and g.A parttdpant In a covered transaction may rely upon a (4) Have not within a Mme-year period preaod ng$hie cartERoatton of a prospadhro pertdpard in a lower tier covered apppcatt Wproposat led one or more public transactions transaction that Is not debarred.suspended.Ineligible,or (Federal,Slate or total}terminated for cause or default vole inows thntebxaludedee�f fication le erroneous.A participant Is t IL Where the prospective participant Is unable to ce"to responaible for ensuring that to principals are not suspended, gay parHcntam 1pant e to Participate In cavemd shall a�m enexpla��thisProprospective posa transaclions. To vww a ftbW of Its prtndpais,es veep as the epgiblity of any lower tier prospective participants,each 2.Instructions for Certification-Lower Tier Participants: participant may,but to not required to,chedt the Excluded Parties List System webate(hays$/Mmaeola.aoy/),which Is (Appkable to all subcothtraets,purchase orders snit other compiled by the General Services Administration. lower tier transactions requiring prior FHWA approval or estimated to cost$25,000 or more-2 CFR Parts 180 and hh.Nothing contained in the foregoing shall be Construed to 1200) require estabbliment of a system of records In order to render In good faith the certification requlred by this clause.The s.By signing and aubmtting this proposal,the PM8PeWV6 knowledge and Information of participant Is not required to tower tier is providing the certification act out below. exceed that which is normally possessed by a prudent Person In the ordinary course of business dealings. b.The certification in this douse is a material representation of feet upon which reliance was placed when this transadlon L Except for transadtora audnort and under paragraph a of was entered Into.If t Is later determined that the prospective these irstnucfion,r a partdpard In a Covered transaction lower tier participant tum Mngy rendered an erroneous knowingly enters into a lower tier covered transaction with a carlticetion,In addition to other remedies available to the person who is suspended,debarred,Ineligible,or voluntarily Federal Govermnent the departmerht,or aperwy with which ahrciudW from parttdpation in this transaction,in addilton to other remedies ovallable to the Federal Govenhment,the FR-12 Exhibit 12-E Attachment B department or agency with which this transaction originated may pursue available remedies,Including suspension"or debarment. .good Certification Regarding Debarment,Suspension, Mallet btilty and Voluntary F.xcluslon-Lower Tier Participants: 1.The prospective lower liar participant cer i ftca,by submisdon of this proposal,that neldw It nor Its principals Is posently d hellmlK�orvopmtarllf�ax*dW from participatingM covered transections by any Federal departmard or agency. 2.Where the prospective lower tier participant Is unable to car*to any of the statements In this cmtiflcation,such prospective participant shall attech an explanation to this Proposal. ..*go XI.CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision Is applicable to all Federal-eld construction contracts and to d ratsted subcontracts which soacead $100.000(49 CFR 20). 1.The prospective participant certifies.by signing and submining this bld or propoeat,to the best of his or her knowledge and belief,that: a.No Federal appropriated funds have been paid or wen be pall.by or an beW of the undersigned,to any person for Influencing or atteEnptlrp to IMluence an officer of employee of any Federal agency,a Irtember of Congress.an officer or employee of Cangress,or an employee of a Member of Congress in cmumetion with the awaMng of any Federal contract,the making of any Federal grant,fits malting of any Federal loen,the entering Into of any cooperative agreereent. surd fire extension,continuation,renewal,smarxdment,or rnodNesti m of any Federal contract,graK lom or conpo-dwoegreement b.t<any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or amplayee of any Federal agency.a Member of C comes.an oflfoer or employee of Congress,or an employee of a Member of Congress In oorr-action with tiris Federal contract,grant,ban.or cooperative agreement,the undersigned shall compute and submit Standard Form-LLL,001aclosure Form to Report Lobbying."in accordance with Its fnstnutiona. 2.This certification Is a material representation of fad upon which reliance was placed when this bansacdon was made or entered Into. Submisslon of this certification is a prenquWW for nuddng or entering lento this transaction Imposed by 31 U.S.C.1352. Any pin who tsiis to Ills the required certtficafion shall be subject to a avll penalty of not lea than $10,000 and not more than$J OO,000 for each such failure. 3.The prospective participant also agrees by submitting Its bid or proposal that the participant shall require that the language of this certifkeltan be included in all lower tier subcontracts.which exceed$100,000 and the all such recipients shall certify and cradoee aocordin*. FR-13 Exhibit 12-E Attachment B ATTACHMENT A-EMPLOYMENT AND MATERIALS 8.The contractor sisal Include the provisions of Sections 1 PREFERENCE FOR APPALACHIAN DEVELOPMENT through 4 of this Attachment A In every subcontrecd for work HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS which is,or reasonably may be,done as on ells work ROAD CONTRACTS This provision Is applfeable to elf Feder"d pmjerla funded under the Appalachian Regional Development Act of 18!15. t.Durtng the perfomu mce of this,, I ,A,the c g I d a r underto"to do work which Is,or reasonably may be.done a onslte work,shall on premie to qualified persons who regularly reside in the labor arca as designated by the DOL wherein the contract work Is abated.or the srtbr kn%or the Appalsddan counties of the State wherein the eontred work Is sbuded,except: a.To the extern that qusilled persons regularly resiling In the arae aro not evalable. b.Forthe reasonable needs of the contractor to employ supervisory or speceiy►eperlenced pe somW necessary to assure on etRefemt execWon of the contractwork. c.For the obligation of the contracer to atfar amplaymert to Present or former amplayees a the result of a lawful comect!" bargalo tng contract,pmvlded that Me number of nonresident underpersons employed this ex 2D p f nt othe total nu rtep aragraph o employees;employed by the contractor on the contract work,except as provided in subparagraph(4)below. 2.The contrsctar shelf place a Jab order with the State Employment Service Indicating(a)the cleaslttcatlons of the laborers,mechanics and other employee required to perform the contract work,(b)tine number of amplayaee mqL*od to each class«Iallon,(c)the date an which the participant edMralas such employees will be required,and(d)my other pertinent Information MWmd eMoe to aorrtptats the Side Employment thejob oral form. Thojobodernoybe placed with the State Employmerd Service to afty or by tdopmt � pathe rt tbn submittedby e contractor in do original l job order Is substentiaW modffled,the perticpard shallpromptly nottiy the State Employment Service. 3.The contracorshall gks fall conslderalton to all quaifted job applicants referred to him by the State Employment Service. The contractor Is not required to grant employment to any job applicants who,In his opir"are not qualflfad to poAorm tine elasellicallon of work required. 4.ti,within one week following;the pladng of a job order by the cordrador with the State Employment Service,the State Employment Service is unable to refer any quaHfled job appicaada to the cordractor,or lea than the number requested,the State Employment Service will rawacd a cecttficate to the contractor Indicating the unaysYsbQlhr of applicants. Such certificate&half be made a part of the contrarxars permanent project records. Upon receipt of thle canto ets,the contractor may employ persons who do not nonmalfy reeide In the labor arca to All positions covered by the ceAtlfeate,notwithstanding the provisions of subpsragreph(10) above. S. The pmvlslons of 23 CFR 033.207(e)slow the contradng agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region. FR-14 32400 PASED ADELAMM MEMMt3 0FTM crrY cm=& AN BJUAN CALMMANO.cA 92875 L (049)493-1171 MI1171 ,% �. .wuan EAUA A+ro 1049)493-1053 FAX li 1961 ROY L SOMS.M 0. ivw•s LVMKRAMBR q q OEHEK REM JOHN TAYLOR TO: Charles King Company 1502 Simpson Way Escondido, CA 92029 Project: 1-5 and Ortega Highway Interchange Pipeline Relocation Amount of Contract: $1,695,422. Charles King Company, Inc. is hereby notified to commence work 10 days from this Notice to Proceed, and to fully complete all of the work of said contract described as uPre-Caltrans" work within 60 consecutive calendar days of this Notice to Proceed. And, Charles King Company, Inc. is to fully complete all of the work of said contract described as "Caltrans° work within 700 consecutive calendar days, of this Notice to Proceed. The Contract, in Section 10 provides for an assessment of Liquidated Damages. Dated this 15th ay of anuary, 2012 Christy Jakel Deputy City Clerk ACCEPTANCE OF NOTICE Receipt of the foregoing Notice to Proceed Ig hereby acknowledged by L'�j& lo,,/n�. This day of 7 , dot Dated: By: Title:��*4n;� $17.600.00 PRE24UM IS FOR CONTRACT TERM AND IS SUBJECT Bond No. 024047208 TO ADJUSTMENT BASED ON FINAL CONTRAT PRICE EXECUTED IN DUPLICATE PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, That Charles Rina Company Inc. as Contractor, And The Ohio Casualty Insurance Company as Surety, are held firmly bound unto the City of San Juan Capistrano, a legal entity, organized and existing in the County of Orange,California, hereinafter called the"Owner,"in the sum of: ONE MILLION SIR HUNDRED NINETY FIVE THOUSAND FOUR HUNDRED TGfEN1q Tf40 AND 00/100 (j1.695.422.00)*******************dollars, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, finely by these presents. WHEREAS said Contractor has been awarded and is about to enter into the annexed Agreement with said Owner to perform the Work as specified or indicated in the Contract Documents entitled: IMPROVEMENT PLANS FOR 1.5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION,CIP No. 11805 NOW THEREFORE,if said Contractor shall perform all the requirements of said Contract Documents required to be performed on its part, at the limes and in the manner specified herein, then this obligation shall be null and void,otherwise it shall remain in full force and effect. PROVIDED,that any alterations in the Work to be done or the materials to be furnished,or changes in the time of completion,which may be made pursuant to the terms of said Contract Documents,shall not in any way release said Contractor or said Surety thereunder,nor shall any extensions of time granted under the provisions of said Contract Documents, release either said Contractor or said Surety, and notice of such alterations or extensions of the Agreement is hereby waived by said Surety. SIGNED AND SEALED,this 10th day of January , 2013 Charles King The Ohio Casualty Contractor Surety By By Title Debra R. Ring. President Title Ry S. Mantle, Attorney—in—Fact (SEAL AND NOTARIAL _ - - ACKNOWLEDGMENT = OF SURETY) raw us,a PERFORMANCE BOND AGREEMENT AND BONDS-PAGE 4 w.xmr CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT rwu.....-rr rc.•m.-rnrecrN <i .N.,. State of California 1 County of Orange 11 On before me. Hazy Narti¢noni — Notary Public rev nm xxmuorxaxmo. ' personally appeared Ryan S. Mantle --ix.x.n'7o e who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/am subscribed to the within instrument and acknowledged to me that _ MARY MARTIGNONI he/sheAhey orecuted the same in hLaher/their authorized COMM.1111947853 c'pa'm'(�)•and that by hisrherMeir signamre(s) on the Z instrument the person(s), or the entity upon behalf of Z - NOTARY Pull-1 1FOI1NIAr which the eaAxoe cWl(IrY parsons)acted,executed the instrument. My Comm.Expires Sept 9.2015 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and comecl. WITNESS my hand and official seal. n�.xw seance. Signatu"--v' ry syi m ia.nnm OPTIONAL irwuanme mWrrwrion Oerow is ror reomred exraw.it mavpmre valwde ro persors rek+x9 m me dccvmenr arM muMpmxm vewwenr.emx-ar.,xe.eanammxu or mrs rwx xo exor�.aoammr Description of Attached Document 7te or Type of Document: Document Date: Number of Pages: Signer(s)Other Than Named Above: Capecity(ies)Claimed by Signer(s) Signers Name: Ryan S. Mantle Signers Name: CI Individual ❑Individual LI Corporate Officer—Tlle(S): __- ❑Corporate 011iwr—TII1e(S): _ C Parmer—C Limited C General _ Li Partner-7 Umiled C General SI Attorney in Pact Ll Attorney in Fad C Trustee rw'mU.a, ❑Trustee nmrvi..ma'.,• U Guardian or Conservator LI Guard ler or Conservalor :1 Olhec_. f-!Other: Signer Is Representing: Signer Is Reperserding: The Ohio Casualty Tnmxranra r..... encu.rWa.xxwiv•+®.••,•wenws.,.w...roro+am•m.x»n.m.0 vun.x+rc•.....wx.wu.v�.a mm.ssn- amaore�r*a.r�..veaoareun .THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 5428934 This Power ofAOomey limits the aea of Nose named hi and they have re,authority to bind the Company except in the manner and to the were herein stated. Candace No. American Fre and Casualty Company Uberty Mutual Insurance Company The Ohio Casually insurance Company Peerless Insurance Company WestAmerloan Insurance Company POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS: TNIAmenlan Fire B Casualty Cons any and The Ohio Casually Insurance Company are comomlkva duty organized under have laws of the Slate dOhio,that Liberty WWI Issuance Company a a mryomdon duty organized under the laws ofess Slate of Messachusells,that Femme Insurance Company is a coryormed duty onganbetl under me awe of tiro State of New Hampshire,and West American Insurance Company Is a corporation duly organized under the laws of the Stale of adorn therein collectively culled IN'Companva'I, pursuant Wand by authority herein sai does hereby name,wnstaute and appoint _CSeMAmE;RYANa MAxna...................................... .....................-...................-.................................................................................._......._.........-..................................................................,................................................................................................. ......................................................-.....................___.......__............................................................................................................................................................................................................................... alloffir,d of FULLERTON ,sateo CA each irdMtlualry S there be moe than one named,its We and lawful atimaydmfad m make,execute,seal,acknowledge and delver,fa and on its behaff as sumty and as its tech and deed any and all undertakings,bonds,reicgnizancffi and other surely oblgalians,in pwsoanoe of bele pesen s add shall beffi binl upon the Companies as if Mey have been duly signed by the president and arrested by the secretary of the Companies in their own proper persore. IN WITNESS WHEREOF,this PoHrerotAhaney has been subscribed by an aubwnzedaRrarorolficial ofdaCompaniasendthemWateseaa ofNeCompanies have been affixed thereto tNs 11m day of dune 012, American Fire and Casualty Coonan a .8emf 1/ 319N0a1v�g!g� 3gl nNearEoa` The Ohio Casualty Insurance Company u Liberty Mutual Insurance Company d � so 03;F s SEA], sSFAL Peerless Insurance Company West AmenCompany vHCEIow By; STATE OF WASHINGTON is mc Gregory W Davenport,Assistant excreter, m c COUNTY OF KING — O m ad (sm Could nda sayer dome xan ,before me personally appeared Gregory W.OavenpoM1 who ecknaMedgetl himself to bethe Assistant Secretary OlAmedan Fire ata Pro) Dq CasualtyCompany,Uberty Mutual Insurance Company,The Oho Casualty Company,Peadess lmurame Company and WestAmerican Insurance Company,and thathe,assuch,being mW `m > amborced se,to do,execute the foregoing Instrument far the Wrpoeas therein mnained bysgning on bei of the corporations by hlormas a duty authonzed officer of did IN WITNESS WHEREOF,I have hereunto subscribed my name all affixed my notarial seal al Seadk,Washington,on thedayaofyearffWabevewr m. Qn a Cy ¢° 1't�y/ Ori O am. _ BY. F�t.JLt IIL,h. m m m0 KD Riley,Not"Public C 0 6q I. I! This PowerofAhomey a madeand executed pursumttomM by autholtyof Uefollowing By4vwsaMAuthoiizatlons ofAmencan Fire and Casualty Company,The Ohio Casualtylnsumnce oro �w Company,UbeM Mutual lnourarroe Company,WedAmerkan Insurance Compznyand Peeress InsuranceCompany,which reseludore are mrsn full fameandefiectreadirgasfoibws: �m an CC me ARTICLE III OFFICERS-Section 12.PoweuofAltaney Any olficeroroMerolfiaal clubs Corpo pion authaizetl for that impose investing by Me Charman orlhe President.and subject o o C to such timilation as rix Chaiman or OM President may prescribe,shall appoint such atlaneys-infact as may be necessary to ad in behall of the Corporation b make,execute,seal, :p E 0 ackMYatedgeand deliver a surety any and all undertakings,bonds,nN%fnitdlNRaand oelersurey,oblgratio s. Suchattomeys dnfad subject to the hnlatmer selform in theinreSpeCtiVa '� Mm powers W adomey,shall have full power to bind the Corporation by their signature and execution of any such instruments and to atlach thereto the seal of the Corporation, When so > p ermuted,such Instruments shall be as binding as ifsgned by the Proddenland attested to by the Secretary,Any power ormthontygranted toany repmsenatNa orammey-imladunder «y the provisions of this article may be revoked at anytime by the Bantu,the Chairman,the president or by the officer or officers granting such power or authority. R al > do ARTICLE XIII-Execution of Conhams-SECTION 5.Surely Bonds and Undertakings.Any olit of the Company authorized for that purpose in wlitidg by the chairman or the president t-e`P" 2u and subject tosuch limitations as the chairman orthe president may prescribe,shad appdnlsuch affamvesr d as may be necessary bacon behalfol the Company m make,exert 00 seal,acknowledge and deliver m surety any all all undertakings,bods,remgnizances all cher surely olugations. Such altaneys4nact subbed to the Incomes set forth in dmtr u mspective powers of adomey.shad have full power to bind the Company by their signature all execution of any such Instruments and to attach mereto mesal elms Company. Whence go? executed such instruments shall be as NMing as if signed by the president all attested by the secretary. CaRlhcate of Designation-The President of the Company,acting pursuant to the Bylaws of the Company,authotlzes Gregory W.Davenport,Assistant Secmary to appoint such aflomey-In-acl as may be necessary to act on behalf of me Company to make,execute,seal,acknowledge and deliveras surety any and all undertakings,bonds,rcvmgnizences and other surety obligations. Authormi-By unanimous Consent of the Company's Board ol0lrtttas,the Company consents that facsimse or numerically reproduced sgneum of any assaant secretary of me Commmy,whenever appearing union mrlified comp of any power of attorney issued by the Company in mmnecdpn with surety bonds,shall he valid all biding upon the Company wish IN same face and effect as Iho gIn manually affixed I,David M.Carey,the aderefeed,Assistant Secretary,of American Fire abs Casualty Company,The Ohio Casualty Insurance Company,Liberty Mutual Insurance Coni any,West Amerimn Insurance Company all Peerless Insurance Company do hereby mrlity that the original power of attorney of which the foregoing is a full.Midland mrteer copy of the Pourer of Attorney executed by said Communist,Is In full faceand effect and has not been revoked IN TESTIMONY WHEREOF,I have bareunaselm hand anti affixed the seen of said Companies this 10 player J8nu&rY ,2013. , - epxcwxlrHgY op YY lxasgan w'ryx• � �y�µMryS^ /5,t�=w�x�sgrn� SH,t"°+.pt ecevc 60Cst 1901 °q,' •= I� BY: tiLU1L y; David M.Carey,Assaant Seaaary g1rY CewN Ht hw aA a HaENE,Nr' gHCE cmwa POA AFCOWIC,OCIC,PIC Is WAIC LMB 11813 ea1p12 PREMIUM INCLUDED IN PERFORMANCE BONI) Bond No. 024047208 EXECUTED IN DUPLICATE PAYMENTBOND KNOW ALL MEN BY THESE PRESENTS, That The Ohio Casualty Insurance Company, as Surety, are heltl firmly bound unto the City of San Juan Capistrano,a legal entity,organized and existing in the County of Orange, State of California, hereinafter called the'Owner,"in the sum of: ONE MILLION SIX HUNDRED NINETY FIVE THOUSAND FOUR HUNDRED TWENTY TWO AND 00/100 ($1 695 422.00)*****************dollars, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns,jointly and severally, firmly by these presents. WHEREAS,said Contractor has been awarded and is about to enter into the annexed agreement with said Owner to perform the Work as specified or indicated in the Contract Documents entitled: IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION CIP No. 11805 NOW THEREFORE,if said Contractor,its subcontractors,its heirs,executors,administrators,successors,or assigns shall fail to pay for any materials,provisions,provender,equipment,or other supplies used in,upon, for,or about the performance of the Work contracted to be done,or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code,or for any amounts required to be deducted. withheld, and paid over to the Employment Development Department from the wages of employees of the Contractor and its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such labor,all as required by the provisions of Tifle XV,Chapter 7,Sections 3247-3252,inclusive, of the Civil Code of the Stale of California and acts amendatory thereof,and Sections of other Codes of the State of California referred to therein and acts amendatory thereof,and provided that the persons,companies, or corporations so furnishing said materials,provisions,equipment,or other supplies, appliances, or power used in,upon,for,or about performance of the Work contracted to be executed or performed,or any person, company,or corporation renting or hiring implements or machinery or power for,or contributing to,said work to be done,or any person who performs work or labor upon the same,or any person who supplies both work and materials therefor,shall have complied with the provisions of said laws,then said surety will pay the same in an amount not exceeding the sum hereinbefore set forth,and also will pay,in case suit is brought upon this bond,a reasonable attorney's fee as shall be fixed by the Court. This Bond shall inure to the benefit of any and all persons named in Section 3181 of the Civil Code of the Slate of California so as to give aright of action to them or their assigns in any suit brought upon this bond. PROVIDED,that any alterations in the Work to be done or the materials to be furnished,or changes in the time of completion,which may be made pursuant to the terms of said Contract Documents,shall not in any way release said Contractor or said Surety thereunder, nor shall any extensions of time granted under the provisions of said Contract Documents release either said Contractor or said Surety, and notice of said alterations or extensions of the Agreement is hereby waived by said Surety. SIGNED AND SEALED,this 10th day of January 2013 Charles Xing The Ohio Casualty Contractor//��Company, Inc. Surety uraac Coma By A " r By Title Debra E. Xing, President Tille R an S. Mantle, Attorney-in—Fact (SEAL AND NOTARIAL ACKNOWLEDGMENT OF SURETY) .Omuo PAYMENT BOND w)aw,a wa .o xm, AGREEMENT AND BONDS-PAGE 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT f State of California l County of Orange 11 On -�D -ZO/? betere me, Hary Marti¢aoni — Rotary Public Personally appeared Ryan S. Mantle x.realasgixbl who proved to me on the basis of satisfactory evidence to be the Person(s)whose camels)islare subscribed to the within instrument and acknowledged to me that he'sheAhey executed the same in hisrher/thek authorized MARY MARTIGNONI capatlly(ies),and that by hisTherMeir signature(s)on the COMM.# 1947853 E instrument the persnn(s), or the entity upon behalf of z1101 Y PUBLtG•CAD MAIC which the person(s)acted.executed the instrument. ONANOE COUNTY Omy Comm.Expires Sept.9,2015 1 certify under PENALTY OF PERJURY under the laws of the Slate of California that the foregoing paragraph is true and coned. WITNESS my hand and official seal. na�xa.ry semnon. Signalu Sryuw W nary F,tle OPTIONAL Vh rrh me twormer nerowu'xw nc..oy raw nmararaw veruape roce.reymg on me aon mev a,ar cardpmerrc treuewmrrmm,er arw rearcativrem amrs roan mxxomeraxvmmr. Description of Attached Document Title or Type of Document: Document Dale: Number of Pages: Signer(s)Other Than Named Above: Capaciy(ies)Claimed by Signer(s) Signer's Name:.Ryan S. Mantle Signer's Name: n Individual ❑Individual fJ Corpomta Olflcer—Titlets): ❑Corporate Officer—Tille(s): ❑ Partner—❑Limiled ❑General LiPartner—O United OGtmi EI Attorney in Fadn Attorney in Fad ❑ Trustee mnnim.m ❑Trustee "`"""`•• C Guaroian or Conservator ❑Guardian or Conservator 7 Other:_- ❑Other: Signer Is Representing: Signer Is Representing: The Ohio Casualty Ism.ranre rp®py neJvxeeW xxn/avv,nTSn LY St�M.,eewv t✓,:•Ou�a�n,U O,AlS31S•ww MnaulUaryap Yid IST] RaMr Cy iYFna SV49lB�': THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 5428933 ,This Power of Attorney limb the acts of those named herein,and they have no authority to bind the Company except In the manner and to the extent herein staled. Conrad,No. American Fire and Casualty Company Liberty Mutual Insurance Company The Ohio Casualty Insurance Company Peerless Insurance Company WestAmerican Insurance Company POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS: ThatAmeriden Fire&Casualty Company and The Ohio Casualty Insurance Company are mrporetions duly organized under the laws of We State of Ohlo,that Liberty Mutual Insurance Company is a ormordon duly organized under the laws of Ne Slate of Massachusetts,that Peerless Insurance Company a a mrporden duly organized under the lava of the State M New Hampshire,and West American Insurance Company Is a mrpersion duly organized under the laws of the State of Indiana Mereln collectively called the'COmpaniesj,pursuant Nand by authority herein set forth,dead hereby name,constitute and appoint, LESM MANTLE;RYANS MANTLE.........................- ..................._............................................_........_..................................................................-............................................................................................................................................................................ Oil of the city of ruuERTON state of CA each individually if there be more than one named,its hue and lawful attomaydn-fact to make,execute,seal,acknowledge and tlallver,for and on its behalf as surety and as its act and deed any and all Undertakings,bonds,recognizm¢es and Other surety obligations,in pursuance of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and Noted by Ne secretary of the Companies in their own proper Persons. IN WITNESSWHEREOF,this PoverutAtiomey has been subscribed by an authorized officerorOfdal of Me Companies andthemryorate sealsofNeCompanies havebeen affixed thereto this 111h dayof J.. 2a_,2. OAN row tv lxs4 „a.wav+w ysumAvc 1PNea, American Fire and Casualty Company AQ o „�' 'Gy , .a e �,e' erg The Ohio Casualty Insurance Company °w++f �'t� 01 °mi'x'es Liberty Mutual Insurance Company u q g� eAi.J SEAL r � W '�.J n 6L.n. z Peerless Insurance Company Y �gtrr coyvv� °,.y 010 °s,�r.,.. a REexr,M` Fq+xcs cO+as We riCan Inaura�nC mpany d d CBY: .r.10. STATE OF WASHINGTON ss Gregor,W.Davenport,Assistant Secretary d COUNTYOFKING w d vis On Nis Co day Li M won ,beforee Ohio Caally sualty pearedCompo Gregory W.Dsuranc Company and dgedWest himself edInsuraAssistantmpny,and that he,as Fire and >, p2 Casualty Company,Liberty Mutualegoing Insurance Company,The Ohoes the Company,Peerless by Insurance Companyand West Amended InsuranceCompany,amhorizand Natha,as such,being d d y > authorized Soto execute the foregoing InsWment for the therein contained signing on behalf of thecombat ions himself as duly authorized officer re9 � 9 purposes M g �rgtry y c _A IN WITNESS WHEREOF,I have hereunto subscribed my name and affixed my notarial seal at Seattle,Washington,on the day and year first above writer. Q m O �0 KD RlIey,Not Pobllc10 3 pd 0L L° This Power ofAtlameyis made and ezecutetl pursuant to and by auNorffy of thefallowirg Bylaws and A'utliairatiasofAmencen Fine and Casualty Company,The Ohio Casualty Insurance An priorCompany,Liberty Mutual Insurance Company,WestAmencan Insurance Company and Poor Insurance Company,which msolufons are new in kill force and effect reading as follows .. dr C� ARTICLE N-OFFICERS-Section l2.Power otAMRwy.Any officerorother othdal of the Corporation authorized for that purpom In wutirg by the Chairmen or the PresiOent,and subjern O p e to such limitation as the Chairman Or the President may prescribe,shall appoint such attemeys-in-fact as may be necessary to act In behalf of the Compound to make,execute,seal, y Ey acknowledge and deliver as surety any and all undertakings,bonds,recognisances and other surety obligations. Such attomeyeinfact,subject M the limitations set forth in their respective 'q powers of allomey,shall have full power to bind the Comancion by their signature and exsmtlon of any such Insbuments and to attach thereto the seal Of the Corporation. When so >IS w executed,such instruments shall be as binding as ff signed by the President and attested to by Ne Secretary.Any power or authority granted to any representative or Shansi under ora .� u the provisions of this an de may be revoked at any time by the Board,the Chalman,the President or by the officer or officers granting such Power or authorityN me > ARTICLE XIII-Execulbo ofContracts-SECTION 5.Surety Bonds and Undertakings,Any officer of to Company authorized for that purpose in writing bylhechairmanorlhepresident, €n 2 andsubjecitosuch limitations asthechakman orthepRsMenlmay prescribe,shall appolnlsuchattomeys-in-fad,as maybne ecessarytoaclln behalfemeCompany lomake,execute, e"7 Seal,acknowledge.and deliver as surety any and all undertakings,bands,remgnirances and other surety obligators. Such atlomeys-in-fact subject N the limitations at fond in tlleir 00 0 respective powers of al nney,Shall have kill power to bind the Company by their signature and saturation carry such instruments and to attach Hereto the Seal ofthe Company. Whenso 10x4 executed such Instruments shall be as dndirg as if signed byte preaident and attested by the secretary. Certificate of Designation-The President of the Company,adding pursuant 0 the Bylaws of the Company,aulhoMes Gregory W.Davenpod,Assistant Secretary N appoint such attorney-In-fact as may be necessary to scion behalf of the Company to make,execute,seal,acknowledge and deliveras surety any and all undertakings,bands,moogiffences and other surety obligations. Authorization-By unanimous=sent of the Company's Board of Directors,the Company mnsomLs that famial le a mechanically reproduced skill of any assistant secretary of the Company,wherever appearing upon a certified ropy of any power of aftomey Issued by the Company In connection with surety bonds,shall be valid and bill upon the Company who the saris force and effect as though manually athwart. I,David M.Carey,the undemgned Assistant Secretary,of American Fire and Casualty Company,The Ohio Casualty insurance Company,Liberty Mutual Insurance Call West American Insurance Company and Peerless Insurance Company do hereby certify that the orginal power of attomey of which Ne foregoing is a full,toward comedo copy of the Power of Alto"emputed by said Companies,a in full force and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and Signed the seals of said Companies thio 10 dayof January ,2013 pGPN Flgw �tY IN94 µw04 Sx1Gw t, .� ANF/C y -� war°w,E cera=°�,m .s Il,aaa .,a 1901 wv'w" y45F.-1�r xq x.1„11�y 3��Y y� H g BY s�4SEAV David M. secretary 1`0A-AFC4_ssw.00w,GIC a WAIC LMS 12BT3 M1n12 AFFIDAVIT OF PUBLICATION PROOF OF PUBLICATION STATE OF CALIFORNIA, ) )as. County of Orange ) NOTICE INVITING BIDS n IMPROVEMENT It"NS FOB.-S Oa1'EGq NIONWLV I am a citizen of the United States and a resident INTERCHANGE PIPELINE RELOCITION 5 OH E'Gq CE ryjGNWAlBNiE GIVEN PIPEGN1 RELOCA of the County aforesaid; I am over the age of TON W111 n.•.cnomm In to.mr..m con en cm�x m Inn LM M Sm Juan Cvm.tl VTIcn noo in vole,] —on eighteen years,and not a parry to or interested in • !"M,3•]GI; .y,„' n°.p.^°e wa. the above entitled matter.I am the principal clerk °wham-b1nWBm Son III I.°R«a•p,aetl.nm... P P ei emee n'M It- .n.91n env m Aupvn AIz. Io nn cnr cmnce chambers. IDe common,.hill' of the Capistrano Voile News, a newspaper he.e m.nPP.mmy m,maan.tlmn or mtmP�m.' In.1 my P YrPa I°r unnu I ggoo 1 wenm me Crum on -olun 11 noc�M1ml n.. I h me rombauor i,eSPnnrl. that has been adjudged to be a newspaper of "'M t°b°'"°nenean�•I In.nom—^°^m min..n"r J Bmm•ma.nn esai«ea e.•na m. ,.ee.a�BS.tm m.em.l sin Juv,c.Pinan.Snail«t 8 em.•mte anr,.In*p oI general circulation b the Superior Court of the '^°w"'°'ou am.:re m ontlin maema mm mm III B Y P ,�,p-run°o.o, o, m on J°in Laommnn nn.0 nm v l.mmmi.m, nlinitl^n,or nor County of Orange, State of California,on Lune 7, m•°'°e°n Pla °' 'n° ns, Sponoao , ne n NP�i,mmme t.inn ninnm.nu—,anv moon.,. 1984, Case No. A-122949 in and for the City ofmS°v�oi°wog:o�m"r n"'"'P""`e"m"m °'"B°°' puNnint or m.VVin°.CepMownl°I San Junn CaP:54wo. Slb] Pn:e. Atlruo., Ban Juan San Juan Capistrano,County of Orange,State of caPsean.. CA vcJs. wmmInn a m..M Land P tY B ox�mnnlI mer m p.m"aena t�nm in.co aw a..w n, o Imn mom al nn,I,—,cvMmbyr,{p y A California; that the notice, of which the annexed yam,In In amenm of Into, n,emnamN,I N]uhL m, ommmna mum no..'I...one.Pndrvwtbn.. No n0une is a true rimed co has been published in each M I n ieefuaw iIn%aapQrin, no,11;�D br I.o°"m alma P copy, P MI oie..um.w by ental III regular and entire issue of said newspaper and mue.AuausrBJtlSm, MARw MoaalsZli� not N any supplement thereof on the following an'OF SAN JUAN cgnsrnwo PumleMe.caP�vmE wuxlr�raulaRNM ry auN19,fi1E BSW891 dales,to wit: - August 16,2012 "7 certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana,Orange County, California,on y t' z Date: August 16,2012 r_ � ®/ N n nn c m r Signature y z 3 m —t �! v 3 N Capistrano Valley News a 625 N.Grand Ave. o Q cn Santa Ana,CA 92701 (714)796-2209 AFFIDAVIT OF PUBLICATION PROOF OF PUBLICATION STATE OF CALIFORNIA, ) )as. County of Orange ) I am a citizen of the United States and a resident IYVpOV[YENrSRI ALR NS FOR 1-5 ORTEGA NIONWaY O 010. of the County aforesaid; I am over the age of fNrapExAxoE ININUA E pELOOtTON NOTCE..NEpEOY OVEN"Al A-1.1 Was Iw the L eighteen years,and not a party to or interested in E Op1EGA HIGHWAY INiEECHANGE PIPELINE RELOCA- TION MIS nu ble'ved At the olna of the Crt 2 pm AP Clerk OI Ne the above entitled matter.i am CM O. Sen Juan COPisfrano Caabuaie, a the principal clerk :7rmner 53,M2,at w6me lane they well be epena l RAA aseea of the Capistrano Valley News, a newspaper ullYdd� vim leen o.<na A ou.y Ed mppuI P012. In LM elry Cwmn GhemEero IDohcnnlO¢laa.hell that has been adjudged to be a newspaper of n.m me oppmuA m,neene.unna uI.ia0N...I Any pO1M AP paths Of Vuarlkn Were IM plem W cmEtl eonuAA or ane Ik:eool..ars..m,mmeM1,npow. general circulation by the Superior Court of the laly m m In alMnse,a,R aI Int.�nmd.be he RYiR RAT "ma,m,non ei.sm.a SW her FAA gvm San Juan caper shell IM Jruern le vry,xdeO N County of Orange,State of California,on June 7, o e om�;o",Po,ro city nils: i�aaldcacA.end:n>n°,m bo IOnPan.Iolo Iry aAI mewmm�q e.vlannvono.O mRr. 1984, Case No. A-122949 in and for the City of Im,a„nan m In.PMn...pe<nmannn,, no eanund dour. ems O,eaOnlM Inln.II nwy mannm San Juan Capistrano, County of Orange,State of cAna Debee"�""Weens o.oararo„, ,0„4,o u°`nn o,r,,,,OW At E. n Juan capMlMA. a2aOJ r,Abu Aeelem., san Juan California; that the notice, of which die annexed oobEl em;,�.�a p�',n,""rat i�o�,io eceoa:Prld C Blare. nu Pmn,wm m Ann Nvux<ouWIA. A A is a true printed copy,hes been published in each rate eo An Ino amwIa m ssd.na,,.emneaea.a,wu,.e Or ne,o,ha�q oath,m oI RIOne end.Reemeanone.ua,.hares vnI Ee nWe OI any Ohu ee w,w6 OI COnuecl Oca regular and entire issue of said newspaper and wm iea�InPOiMm,.evComoal�el�a.Olde or mm d.IrR,y of not in any supplement thereof on the following GI Auouar E,2m2 AAA—Mor dales,to wit: MARK MORAIS CI arcs sAN JUAN aastRANo ncmur— August 16,2012 wblw,.a:c.Rm.ORA++iovdl.°y°xUwi ri„ rii eslvm, "7 certify (or declare) under the penalty of III under the laws of die State of California that the foregoing is true and correct": Executed at Santa Ana,Orange County, California,on Date: August 196,2/012 vY Signature Capistrano Valley News 625 N.Grand Ave. Santa Ana,CA 92701 (714)796-2209 S0'd 7U101 C 1a-C 5T,\j-- A'�> �-- `�sc) � Rvu 7,�Acc s3�ll��l`L MOi1Cti 161YR1110 8[t1S IMMMMIM PLANS"M I.ti AWIM M WINAV WERC11AMQE PIPUM NIMA i T M Manz a MAY Alt M ttxtt sealed bC8fpr the E Mal Ab HfGHWAY MITfftfto of p[pEUNE REb OC.A . TION wNl b0 reCeiVed a81 rrlhp0 OflkA of tlt0(1y CW*of the Iieilb0/1�'101?a Mhith Uel@ 0h Q. ittI t2 S=Sr feed cloud. Prospective bidders are irrwod to ettatd a pp+yww coonnw- 20f2 in (`ty CauneiRChambers The oW�ttp�Ctot sha[I have the opportunty for dadcatlon or tftterpretation of arty point ar OOiM1 01 4vestior►Vr the plans end contract documents or specatca tree.It!s tI,oanlrBCtOf s reeponsl blur to ba In attendance at this conference to rocalve any lnrarmatiat dlecbsed during the tftgs,for are car of San Jwn Capistrano shall not any records of ate conference.Eurus*of wrMw adderift and this pre- bud conterenca.the CRY of San Juin Caphtrarw shad not be resporaiMs for any lffSbrtrcdm%mWaewaom.or Inter- P"Mtten Of the pleas.spd6'Mft tlW"end eor&W docw meets presented to the bkldero to any manner. Contract Documents may be Inspected without charge at the Pubae Works Department or aq UtYitiss Department of Sen Juan Capistrano.32400 Pass*AdelaKo.San Juan Ce pisbario CA 920M Complete sats at said Contract ooctu"may bo purcbesed from the Coastal Blue web ste.Ondine plan roam at A charge in lted far obfaembg�h$tet Of pis and p�iciMstlonIn,i No eMhX4 will be made of any ch for sets of Contract tocw malts. Adc twnst tees ap for msRing at load deNvay of sets of docunwo by Coastal Blue. Dated:AUGUST 8,2012 wMaria Morris CITY OF SAN JtIMI CAPISTRANO ORANGE COUNTYGWPDRNIA Pubteshad:Capistrano van"News A gulf 18.2012 0502681 S0ii0'd ZZ9£ 96L 17TL N31SI03M .11NR00 39NU80 9S:£t awz-60-snu T0'd 14101 At> X50 2g$ 1 cO<- T 1111I1PNOVE11111111111T PLAINS FOA"ONTEM MMMAY 111Nrote"Am"POPUME RELACAtfItWf NOTICE Is HMW OMEN that sealed bids for the I- 5 S ORTEOA HOMAY INTERCHANGE PIPELINE RELOCA- TION w41 be received at the office of the City Clerk of the City of San Juan Capistrano,Cal[tomle,Lira 2 pm on ftlP. tembor 12,2012,at which Sato they will be opened and read abud Prospective bidders are Wiled to adend a probld confer• a scheduled at 1,00 pin.on the 27th day of Atreus[ 2012.in the City Council Ctwnbora.The contractor OW have tho opporAaNy for dardkaSon or ehterpretalcm of any palM or oowts of qquestion wiUdn tho piano and re -1 documerts or soaciicalimm R h the oontratwe responsi- inrform�atbn discloseedd during the ngs,for the City ce as this conference to movive o1 San Juan Capistrano shall not dismoortMate mw records of the oonforence.Exclusive of written addenda and this pre- bid conference,Me City of San Juan Capistrano shelf not be responsible for Any hatrucUonbS. ofimer- r�c°e�e the ro the tN�kmet mer. Cornrset oocumants may be inspected without amrfle at ure Public Wbj Oeparbnert or the tftl W oePartinaac of Jean Cac>iistram.32400 Paseo Adefft San Juan tranc�,CA 9267L Complete sets of said Corrtrad Down+errts may be purchased tom the Coastal Blue web site.ggoondhe plan room at h1to/Avww. lbiumccorn/d. A in c�bt r ing�h�of plof M And apee�tlo w.Nou ratunndd will bo made at any chmgsa for sets of C vect Oocu• ments. Additional tees nopry for malfing or bcal delivery of sets of doeurnents by Coasadl Blue. Faced:AUGM&2012 fWaria MARIA �C ORANGE OOUNTY CALL Published:Capistrano Valley News h7w—i 18.2012 95MM Z 0i i 0'd ZE9£ 96L 17 T L d31S I J38 .11NR00 30NU60 8b:£Z Z T OZ-60—stili NOTICE OF TRANSMITTAL CAPISTRANO VALLEY NEWS Legal Publications CHARGE TO ACCOUNT NO: 0041125000 FOR PUBLICATION ON: AUGUST 16, 2012 AUGUST 30, 2012 DOCUMENT TO BE PUBLISHED NOTICE INVITING BIDS — 1-5 Ortega Highway Interchange Pipeline Relocation (CIP 11805) PROOF OF PUBLICATION: Please fax to: City Clerk's Office, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 fax(949)493-1053 telephone (949) 493-1171 AUTHORIZED BY: 461 Mo ris, CiClerk DATE: August 8, 2012 Date of Bid Opening - 09/13/2012 Date(s) notice published - 08/161201 2t 08/30/2012 Date affidavit received - Date notice posted in - 08/16/2012 designated posting places NOTICE INVITING BIDS IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION NOTICE IS HEREBY GIVEN that sealed bids for the 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION will be received at the office of the City Clerk of the City of San Juan Capistrano, California, until 2 pm on September 13. 2012, at which time they will be opened and read aloud. Prospective bidders are invited to attend a pre-bid conference scheduled at 1:00 p.m. on the 27th day of August 2012, in the City Council Chambers. The contractor shall have the opportunity for clarification or interpretation of any point or points of question within the plans and contract documents or specifications. It is the contractor's responsibility to be in attendance at this conference to receive any information disclosed during the proceedings, for the City of San Juan Capistrano shall not disseminate any records of the conference. Exclusive of written addenda and this pre-bid conference, the City of San Juan Capistrano shall not,be responsible for any instructions, explanations, or interpretation of the plans, specifications, and contract documents presented to the bidders in any manner. Contract Documents may be inspected without charge at the Public Works Department or the Utilities Department of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. Complete sets of said Contract Documents may be purchased from the Coastal Blue web site, on-line plan room at http://www.coastalblue.com/. A chargin the amount of $90, non-refundable, is required for obtaining each set of plans and spzc ificat ons. No refund will be made of any charges for sets of Contract Documents. Addiiic n,9 I fes apply for mailing or local delivery of sets of documents by Coastal Blue. I Dated: AUGUST 8, 2012 MART S, CITY L RK CITY OF SAN JUAN CA IS RANO ORANGE COUNTY, CALTFORNIA NOTICE INVITING BIDS IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION C.I.P. No. 11805 N-1. NOTICE IS HEREBY GIVEN that sealed bids for the 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION will be received at the office of the City Clerk of the City of San Juan Capistrano, California, until 2 Pm on September 13. 2012, at which time they will be opened and read aloud. N-2 DESCRIPTION OF THE WORK: The Work comprises of constructing approximately 3,500 linear feet of 12-inch PVC C905 pipe, and 700 linear feet of 12-inch CML&C line to be constructed in the 1-5 Bridge. The work will have to accommodate the construction timing and phases as directed by the needs of Caltrans as it designs and constructs a replacement of the Ortega Hwy Bridge crossing over the 1-5. Additionally the Work will include the abandonment and/or relocation of water lines, services and appurtenances, and the removal and Asbestos Concrete Pipe. N-3 LOCATION OF THE WORK: The 1-5 Interchange at Ortega Hwy. N-4 COMPLETION OF THE WORK: Time is of the essence. All work listed as "Pre- Caltrans Work" must be completed within 75 Calendar days after the date specified in the Notice to Proceed. Liquidated damages will be assessed as set forth in the Agreement for failure to meet the specified completion date. All other work must be completed within the work windows provided in the Caltrans Stage allocations totaling 64 working days, spread out over 15 events, occurring over a time span of seven hundred (700) calendar days from the date of the Notice to Proceed has been set for the completion of the work. Liquidated damages will be assessed as set forth in the Agreement for failure to meet,the specified completion date. N-5 AWARD OF CONTRACT: (a) The City reserves the right after opening bids to reject any or all bids, to waive any informality (non-responsiveness) in a bid, or to make award to the lowest responsive, responsible bidder and reject all other bids, as it may best serve the interest of the City. (b) As a condition of award, the successful bidder will be required to submit payment and performance bonds and insurance in an amount of 100 percent of the contract price. N-6 BID SECURITY: Each bid shall be accompanied by a certified or cashier's check or Bid Bond in the amount of 10 percent of the total bid price, payable to the City of San Juan Capistrano. FORM U-030 NOTICE INVITING BIDS x05U-030std.wpd PAGE 1 Nov 2001 N-7 BIDS TO REMAIN OPEN: The Bidder shall guarantee the total Bid price for a period of 60 calendar days after the date of Bid opening. N-8 CONTRACTOR'S LICENSE CLASSIFICATION: The Contractor shall possess a valid Class A or C-34 Contractor license at the time of submitting bids. N-9 CALIFORNIA WAGE RATE REQUIREMENTS: The Contractor shall pay the general prevailing rate of per diem wages as determined by the Director of the Department of Industrial Relations of the State of California for the locality where the work is to be performed. A copy of said wage rates is on file at the office of the City. The Contractor and any subcontractors shall pay not less than said specified rates and shall post a copy of said wage rates at the project site. N-10 RETAINAGE FROM PAYMENTS: No retainage will be withheld by the City of San Juan Capistrano from progress payments due the Prime Contractor. No retainage will be held by the Prime Contractor from progress due Sub-Contractors. Any violation of this provision shall subject the violating Prime Contractor or Sub-Contractors to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code.This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Prime Contractor or Sub- Contractor in the event of a dispute involving late payment or nonpayment by the Prime Contractor or deficient Sub-Contractor performance,or noncompliance by a Sub-Contractor. This provision applies to both DBE and non-DBE Prime Contractors and Sub-Contractors. N-11 PRE-BID VISIT TO WORK SITE: (a) Prospective bidders are invited to attend a pre-bid conference scheduled at 1:00 p.m. on the 27th day of August 2012, in the City Council Chambers.The contractor shall have the opportunity for clarification or interpretation of any point or points of question within the plans and contract documents or specifications. It is the contractor's responsibility to be in attendance at this conference to receive any information disclosed during the proceedings, for the City of San Juan Capistrano shall not disseminate any records of the conference. Exclusive of written addenda and this pre-bid conference, the City of San Juan Capistrano shall not be responsible for any instructions, explanations, or interpretation of the plans, specifications, and contract documents presented to the bidders in any manner. (b) Failure to participate in the pre-bid walk will not disqualify a bidder as being non- responsive. (c) The pre-bid visit will be conducted at the City Hall Council Chambers; and will not include a job site visit. j FORM U-030 NOTICE INVITING BIDS x05U-=s1d.wpd PAGE 2 Nov 2001 N-12 OBTAINING OR INSPECTING CONTRACT DOCUMENTS: (a) Contract Documents may be inspected without charge at the Public Works Department or the Utilities Department of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. (b) Complete sets of said Contract Documents may be purchased from the Coastal Blue web site, on-line plan room at http://www.coastalblue.com/ A charge in the amount of$90, non-refundable, is required for obtaining each set of plans and specifications. No refund will be made of any charges for sets of Contract Documents. (c) Additional fees apply for mailing or local delivery of sets of documents by Coastal Blue. N-13 ADDRESS AND MARKING OF BIDS:The envelope enclosing the Bid shall be sealed and addressed to the City of San Juan Capistrano, and shall be delivered or mailed to the City Clerk at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. The envelope shall be plainly marked in the upper left hand corner with the name and address of the Bidder and shall bear the words"Bid For..."followed by the Project title, date and hour of opening Bids. The certified or cashier's check or Bid Bond shall be enclosed in the same envelope with the Bid. N-14 UDBE/DBE PARTICIPATION: This project is federally funded. The provisions of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City of San Juan Capistrano's adopted DBE program require that Underutilized Disadvantaged Business Enterprises(UDBEs)and Disadvantaged Business Enterprises(DBEs)have the opportunity to participate in federal-aid capital improvement projects.The City has established an overall goal of 6.00% DBE participation for this consultant contract, with a UDBE participation goal of 1.00%; for a total DBE/UDBE goal of 7.00%. The proposer must make good faith efforts to meet the UDBE/DBE goal established for the contract. If the goal is not met,the proposer must document adequate good faith efforts. Failure to do so may result in the rejection of the proposal. N-14 STANDARDS: The contractor shall perform his work in accordance with the Standard Specifications for Public Works Construction, 2012 Edition, including all Supplements, hereinafter referred to as the Standard Specifications and the Standard Specifications for the Construction of Domestic Water and Recycled Water Facilities, August 2006. BY ORDE OF HE CITY OF SAN JUAN CAPISTRANO Date CITY O S JUAN CAPISTRANO B (rKky '; Man'aris, CMC City terk FORM U-M NOTICE tINV�ITINDS x05U-030:1d.wpd PAGE 3 Nov 2001 Christy Jalcl From: David Ward <DWard@ocregister.com> Sent: Monday, September 10,2012 11:29 AM To: Christy Jakl Subject: City of SJC(Pipeline Relocation) Run Dates Christy- I apologize for running the Pipeline Relocation notice for the 16th only and not the additional date of the 30th as well as you requested. I will be even more careful in the future to make sure the dates requested are the dates scheduled. I apologize forany inconvenience this has caused. DAVID WARD Ph:71A7966 " V ,kyd Adve�7 A Ph:714796676[ Efo471 aJ0.2]2d Ercall;dxard&�xrpide..cwn 1 1!4!2013 Vn C1 City of San Juan Qapistrano Supplement da Report TO: Karen P. Brust, City.kfan FROM: Keith Van Der Maaten, U itie Director / Prepared by: Eric Bauman, Utilities Enginee DATE: January 4, 2013 SUBJECT: Consideration of Awarding a Construction Contract for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project, Appropriation of Funds, and a Budget Transfer(CIP 11805) (Charles King Company, Inc.) RECOMMENDATION: By motion: 1. Award a Construction Contract with Charles King Company, Inc. in the amount of $1,695,422 for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project and reject all other bids; and, 2. Adopt the Resolution Approving the Adjustments to the City's Fiscal Years 2013- 2019 Seven-Year Capital Improvement Program and Fiscal Years 2012-2013 and 2013-2014 Operating Budget SITUATION: The original staff report had the incorrect document included as Attachment 3 (the notice from Caltrans authorizing reimbursement of $890,000 for Caltrans fair share costs of the relocation work). The correct Attachment has been included in this supplemental agenda report (Attachment 3). FISCAL IMPACT: Not Applicable. ATTACHMENT(S): Attachment 3 — Caltrans Utility Agreement No. 12-UT-2002 (Relocation Claim Approval for$890,000) STATE OF CALIFORNIA•DEPARTMENT OF TRANSPORTATION Pagel of 4 UTILITY AGREEMENT RW 13-5(Rev.6/2010) DISTRICT COUNTY ROUTE POST MILE EA 12 ORA 5/74 9.3/10.0,0.0/0.2 OE3101 (Project# 12-0000-0102) FEDERAL AID NUMBER: N/A OWNER'S FILE NUMBER:City of San Juan Capistrano CIP: 11805 FEDERAL PARTICIPATION: On the Project ❑ Yes ® No On the Utilities ❑ Yes ® No Owner Payee Data No. VC0000023703 or Form STD 204 is attached. ❑ UTILITY AGREEMENT NO. 12-UT-2002 DATE The State of California,acting by and through the Department of Transportation,hereinafter called"STATE,"proposes to reconstruct the I-5/SR-74 interchange in the City of San Juan Capistrano in Orange County,and City of San Juan Capistrano,Utilities Department,32400 Paseo Adelanto,San Juan Capistrano,California 92675, hereinafter called"OWNER,"owns water facilities,within the limits of STATE's project,which requires relocation to accommodate the STATE's project. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Notice to Owner No. 12-UT-2002,dated April 5,2012,OWNER shall remove,relocate,or adjust your water and sewer lines and attendant facilities including meters,valves,pipe,manholes,and fire hydrants,in order to clear the State's construction project. All work shall be performed substantially in accordance OWNER's Plan I-5 and Ortega Highway Interchange Pipeline Relocation,Construction Set dated 12/1212012,consisting of twenty-six(26)sheets,a copy of which is on file in the District office of the Department of Transportation at 3347 Michelson Drive,Suite 100,Irvine,CA 92612-8894. Deviations from the OWNER's plan described above initiated by either the STATE or the OWNER,shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner,approved by the STATE and agreed to/acknowledged by the OWNER, will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. H. LIABILITY FOR WORK Part A:The existing facilities are located in their present position pursuant to rights superior to those of the STATF,and will be relocated at STATE expense. Part 8:The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under the provisions of Section 703 of the Streets and Highways Code. Part C:The existing facilities will be relocated at 100%OWNER expense,per Streets&Highway Code Section 673. Part D:The existing facilities will be relocated at 15%STATE and 85%OWNER in accordance with Sections 673 and 703 of the Streets&Highways Code,in accordance with the foilowing proration: 474 1f in State R/W,82 if in City R/W=556 if total. 111. PERFORMANCE OF WORK OWNER agrees to perform the herein described work with its own forces and to provide and furnish all necessary labor,materials, tools,and equipment required therefore,and to prosecute said work diligently to completion. Attachment 3 UTILITY AGREEMENT(Cont.) Page 2 of 4 RW 13-5(Rev.62010) UTILITY AGREEMENT NO. 12-UT-2002 OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder,selected pursuant to a valid competitive bidding procedure,and to furnish or cause to be v p g p furnished all necessary labor,materials,tools,and equipment required therefore,and to prosecute said work diligently to completion. Engineering services for locating,making of surveys,preparation of plans,specifications,estimates,are to be furnished by the consulting engineering firm of Dexter Wilson Engineering,Inc.,on a fee basis previously approved by STATE.Cost principles for determining the reasonableness and allowability of consultant costs shall be determined in accordance with 48 CFR,Chapter 1, Part 31;23 CFR Chapter 1,Part 645;and 18 CFR,Chapter 1,Parts 101,201 and OMB Circular A-87,as applicable. Engineering services for construction management are to be furnished by the consulting engineering firm of RBF Consulting,on a fee basis previously approved by STATE.Cost principles for determining the reasonableness and allowability of consultant costs shall be determined in accordance with 48 CFR,Chapter 1,Part 31;23 CFR Chapter 1,Part 645;and 18 CFR,Chapter 1,Parts 101,201 and OMB Circular A-87,as applicable. Use of out-of-state personnel(or personnel requiring lodging and meal"per diem"expenses)will not be allowed without prior written authorization by STATE's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary preliminary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-State personnel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the STATE's Department of Personnel Administration travel expense guidelines. Pursuant to Public works Case No.2001-059 determination by the California Department of Industrial Relations dated October 25, 2002,work performed by OWNER's contractor is a public work under the definition of Labor Code section 1720(a)and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK The STATE shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five(5) copies of OWNER's itemized bill,signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead, compiled on the basis of the actual and necessary cost and expense.The OWNER shall maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that the STATE will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the STATE for the accumulated depreciation or"used life"of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. Not more frequently than once a month,but at least quarterly,OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work.Payment of progress bili: not to exceed the amount of this Agreement may be made under the terms of this Agreement.Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by STATE of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to the STATE within 360 days after the completion of the work described in Sectio: I above. 4 the STATE has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I o this Agreement,and STATE has delivered to OWNER fully executed Director's Deeds,Ccnsents to Common Use or Joirt Use Agreements(if required)for OWNER's facilities,STATE will provide written notification to OWNER of its intent to close its file within 30 days and OWNER hereby acknowledges,to the extent allowed by law,that alp remaining costs will be deemed it hu.e been abandoned. if the STATE processes a final bill for payment more than 360 days after noxi0cativn of completion ofOWNT-T':,work. payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. UTILITY AGREEMENT(Cont.) Page 3 of 4 RW I3-5(Rev.6/2010) UTILITY AGREEMENT NO. 12-UT-2002 The final billing shall be in the form of an itemized statement of the total costs charged to the project,less the credits provided for in this Agreement,and less any amounts covered by progress billings.However,the STATE shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by STATE.Except,if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I,a copy of said revised Notice to Owner shall suffice as documentation.In either case,payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125%of the estimated cost of this Agreement,an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill.Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement,shall have the prior concurrence of STATE. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors.Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR,Chapter 1,Part 31,et seq.,23 CFR,Chapter 1,Part 645.If a subsequent State and/or Federal audit determines payments to be unallowable,OWNER agrees to reimburse STATE upon receipt of STATE billing. It is understood that a portion of the relocation as herein contemplated includes betterment to OWNER's facilities by reason of increased capacity from an 8"to 12"inch water pipe. Said 67%-33%split shall be applied to the actual and necessay cost of work done,and OWNER shall credit the STATE for the actual and necessary cost of said betterment,all of the accumulated depreciation and the salvage value of any materials or parts salvaged and retained by OWNER. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of STATE's request of March 30,2011,to review,study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If STATE's project,which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER, STATE will notify OWNER in writing and STATE reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. All obligations of STATE under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit a Notice of Completion to the STATE within 30 days of the completion of the work described hareir.. STATE will acquire new rights of way in the name of either the STATE or OWNER through negotiation or condemnation and when acquired in STATE's name,shall convey same to OWNER by Director's Easement Deed.STATE's liability for such righte of way will be at the proration shown for relocation work involved under this Agreement. it is understood that said highway is a Federal aid highway and accordingly,23 CFR,Chapter 1,Part 645 is hereby incorporated into this Agreement. UTILITY AGREEMENT(Cont) Page 4 of RW 13-5(Rev.62010) UTILITY AGREEMENT NO. 12-IIT-2002 IN WITNESS WHEREOF,the above parties have executed this Agreement the day and year above written. STATE: OWNER: City of San Juan Capistrano, Utilities Department BylZ- Hy(sign) Robert Enriquez l5atc Name(Print) Date District 12 Utility C000 LnjRight of Way Title APPROVAL RECOMMENDED: By ulabua, Johykman Date Utili Coordinator DO NOT WRITE BELOW-FOR ACCOUNTNG PURPOSES ONLY PLANNING AND MANAGEMENT TO COMPLEIE UNSHADED FIELDS: UTILITY COMPLETES: T DOCUMENT CHG SUB SPECIAL OBJ DOLLAR CODE NUMBER SUFFIX DIST UNIT DIST EA JOB DESIGNATION IFFY FA CODE AMOUNT UA 9- �i0 eL 31 7 054 8890,000.00 UA la- 1 DL EA FUNDINSi.VFRIFIED: ^ REVIEW/REQUEST FUNDING: Si r:> ! f / I IS I Si n> Print> Eva gelina Washf gran Date Print, V John Dykmau Date R/W Planning and Management Utility Coordinator THE ESTIMATED COST TO THE STATE FOR ITS SHARE OF THF ABOVE DESCRIBED WORK IS S 890,000,00. CERTIFICATION OF FUNDS FUND TYPG 1 EA I AMOUNT 1 hereby cemly.pun my own personal knowledge that budgeted Design Funds I OE3101 Is 0.00 funds arc available for the period and purpose of the expenditure Construction Funds OE3104 S 0.00 shown lmrc. R/W Funds OE3109—� 890,000.00 Iv 15 I HO Ac uoting Officer Date ITEM CHAP STT I FY I AMOUNT Distribution: 2 originals to FJ%l Accounting I original to Utility Owner 1 original to Utility File 1/4/2013 "c C 1 City of San Juan Capistrano AgertiesDirecto port TO: Karen P. Brust, City FROM: Keith Van Der Maaten, r'1q/�/{//J Prepared by: Eric Bauman, Utilities Engi a DATE: January 4, 2013 SUBJECT; Consideration of Awarding a Construction Contract for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project, Appropriation of Funds, and a Budget Transfer (CIP 11805) (Charles King Company, Inc.) RECOMMENDATION: By motion: 1. Award a Construction Contract with Charles King Company, Inc. in the amount of $1,695,422 for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project and reject all other bids; and, 2. Adopt the Resolution Approving the Adjustments to the City's Fiscal Years 2013- 2019 Seven-Year Capital Improvement Program and Fiscal Years 2012-2013 and 2013-2014 Operating Budget EXECUTIVE SUMMARY: The Caltrans Project (Caltrans Project 12-OE3104) to reconstruct the Ortega Highway Bridge and roadway, including the freeway on and off ramps at the intersection of the 1-5 freeway and Ortega Highway, will require the City to relocate water and sewer lines. Staff recommends the approval of a Construction Agreement with Charles King Company, Inc., in the amount of$1,695,422 for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project (Attachment 1). Staff submitted a relocation claim to the State of California for reimbursement of City expenses for the relocation work in the amount of $1,038,157 (Attachment 2). On December 19, 2012, the City received notice from Caltrans authorizing reimbursement of $890,000 for Caltrans fair share costs of the relocation work (Attachment 3). Staff recommends appropriating these funds to CIP 11805. Based on the proposed construction contract and projected construction management costs, the budget for this project will need to be increased by $304,232 for a total budget amount for Fiscal Year 2012-2013 through Fiscal Year 2014-2015 of$2,105,211. City Council Agenda Report January 4, 2013 Page 2 of 4 In order to provide adequate funding for the project over the next three years, Staff recommends making adjustments to the City's 2013-2019 Seven-Year Capital Improvement Program and the Fiscal Years 2012-2013 and 2103-2014 Water Operations (60) and GWRP Operations (62) Funds to pay for the increase in costs. These adjustments are outlined in Exhibits A and B to the Resolution and summarized as follows: CIP 11805 Funding Requirements: Total CIP 11805 Funding Requirements: Adjusted Budget. $2,105,211 CalTrans Reimbursement (890,000) Total CIP 11805 Funding Requirements - City $1,215,211 Total Funds Available for FY 2013 through FY 2015 $1,050,716 Additional Funding Required $164,495 Recommended Funding: CIP 08804 Pump Station Improvements- Unfund $100,000 CIP 13802 GWRP Chemical Tank Upsizing - Unfund $25,000 Increase in funding from Water Operations 39,495 Total Additional Funding Available $164,495 DISCUSSION/ANALYSIS: On November 15, 2012, the City received four bids for the relocation of the impacted water and sewer lines. The following is a tabulation of the bid results: Charles King Company;Inc._ -1,990,113 Steve P. Rados, Inca _ _ _ - _$2,490,154 GRIFCO, h6._'--- M.S. Construction Management Group -- _ - - $2,386,885 The construction bid from Charles King Company, Inc. includes the construction of an additional waterline in the Ortega Bridge that would be paid for by the Plaza Banderas Hotel (Hotel) to satisfy the fire flow requirements of the Hotel as required in the Development Agreement for the Hotel. The City is working with the Hotel on an agreement to pay for the cost to construct the Hotel pipeline ($366,289) plus the fair share costs of construction management, survey and design work, and staff time, for a total of $476,156 (up to $520,371 including a contingency). As the City and Hotel currently do not have an agreement, the recommended Construction Agreement and bid award have been reduced from $1,990,113 to $1,695,422 to reflect the removal of the construction costs of the Hotel pipeline work from the bid. At such time that an agreement is reached, staff will return to the City Council to award the portion of the bid for the construction of the additional pipeline in the Ortega Bridge. Staff has discussed with Charles King Company, Inc. the removal of the work directly related to the City Council Agenda Report January 4, 2013 Page 3 of 4 aforementioned waterline and they are amenable to the removal of the work and the addition of the work at a later date. Based on the construction bid results, the project is estimated to cost $2,256,470 as follows: Bid-Award Breakdown Total Total Construction Bid Amount $ 1,990,113 Hotel Only Construction Bid Items $ (294,691) Note: This amount is for"hotel only"items that can be (to be excluded from the bid award removed and added back in once an agreement is reached until an agreement is made with the with the hotel. The hotel's total fair share of construction hotel for payment of fair share costs including a share of general construction costs is costs) $366,289. The hotel's share of the total project,including Total Bid Award $ 1,695,422 staff costs and design costs,is$476,156. Project Costs Total Water Sewer Construction Bid Cost $ 1,695,422 $ 1,651,888 $ 43,534 Staff time, Estimate $ 218,992 $ 213,369 $ 5,623 Eng.&Survey(Dexter Wilson) $ 184,765 $ 180,021 $ 4,744 Construction Mngt(RBF) 1 $ 157,291 $ 153,2521 $ 4,039 Total Project Costs 1 $ 2,256,470 1 $ 2,198,530 1 $ 57,940 The total cost for this project is $2,256,470 which includes $1,695,422 in construction costs, $218,992 in staff costs, $184,765 in engineering costs, and $157,291 in construction management costs. In Fiscal Years 2010-2011 and 2011-2012, the City spent $151,259 on this project. The remaining project costs for Fiscal Year 2012-2013 through 2014-2015 are $2,105,211. Pursuant to California State Law; "Liability for the cost of relocating facilities to provide for conventional highway construction is primarily based on occupancy rights. The Owner (City) is generally obligated to remove, relocate, etc., their facilities at their sole expense unless such facilities are in place pursuant to rights prior and superior to those of the State." Staff has identified certain components of the impacted waterlines that have rights prior and superior to the State of California based upon the date of construction of the original waterlines preceding the construction of the 1-5 freeway. Staff submitted a relocation claim to the State of California for reimbursement of City expenses in the amount of $1,038,157. On December 19, 2012, the City received notice from Caltrans authorizing reimbursement of $890,000 for Caltrans fair share costs of the relocation work. City Council Agenda Report January 4, 2013 Page 4 of 4 FISCAL IMPACT: The City's Fiscal Years 2013-2019 Seven-Year Capital Improvement Program is able to fund the CIP 11805 with an additional $39,495 of funding from Water Operations. Based on the projections presented as part of the May 29, 2012, budget workshop, the projected ending fund balance available for the Water Operations is $258,867 with all operational funds being positive. The end result is expected to be $219,372 by June 30, 2015, with all operational funds being positive. Any additional funding sources made available to offset any of these project costs and/or replace this funding would continue to improve the Water Operations available fund balance. ENVIRONMENTAL IMPACT: The proposed project was found to be statutorily exempt from review under the California Environmental Quality Act (CEQA). The Environmental Administrator signed a Notice of Exemption and posted it on August 17, 2012 (Attachment 4). PRIOR CITY COUNCIL REVIEW: • On August 7, 2012, the City Council approved the plans and specifications prepared for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project for bid; and, authorized staff to proceed with negotiations with the owners of the Plaza Banderas Hotel. • On October 2, 2012, the City Council rejected the one bid submitted by Steve R Rados, Inc., ("Rados") and directed Staff to rebid the project. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: • On July 17, 2012, the Utilities Commission recommended the City Council authorize the project for bid, authorize staff to proceed with negotiations with the owners of the Plaza Banderas Hotel, and recommended option three (heightened awareness) with regard to the closure of the waterline due to the north bound off- ramp construction. NOTIFICATION: Charles King Company, Inc. ATTACHMENTS: Attachment 1 —Construction Agreement Attachment 2 — Relocation Claim Letter, Revised Attachment 3—Caltrans Notice to Owner (Relocation Claim Approval for $890,000) Attachment 4 — CEQA, Posted Notice of Exemption Attachment 5 — Resolution 1-5 and Ortega Highway Interchange Pipeline Relocation Project(CIP No. 11805) CONSTRUCTION CONTRACT THIS CONTRACT is made and entered into, to be effective, this day of 2012, by and between the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "City," and Charles King Company, Inc., hereinafter referred to as "Contractor." City and Contractor mutually agree as follows: Section 1. General Conditions. Contractor certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the work is to be performed have been thoroughly reviewed, and enters into this Contract based upon Contractor's investigation of all such matters and is in no way relying upon any opinions or representations of City. It is agreed that this Contract represents the entire agreement between the parties. It is further agreed that the Contract Documents including the Notice Inviting Bids, Special Instructions to Bidders, Plans, Specifications and Special Provisions, the Standard Specifications for Public Works Construction, 2012 Edition, including all Supplements, Contract Bonds if any, and the Contractor's Proposal are incorporated in this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that Contractor and its subcontractors, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the work covered by this Contract. "Project" as used herein defines the entire scope of the work covered by all the Contract Documents. Anything mentioned in the Specifications and not indicated in the Plans, or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-1 Attachment 1 Specifications, the matter shall be immediately submitted to City's Engineer, without whose decision Contractor shall not adjust said discrepancy save only at Contractor's own risk and expense. The decision of the Engineer shall be final. Section 2. Materials and Labor. Contractor shall furnish, under the conditions expressed in the Plans and Specifications, at Contractor's own expense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by the City, to construct and complete the Project, in good workmanlike and substantial order. If Contractor fails to pay for labor or materials when due, City may settle such claims by making demand upon the surety to this Contract. In the event of the failure or refusal of the surety to satisfy said claims, City may settle them directly and deduct the amount of payments from the Contract price and any amounts due to Contractor. In the event City receives a stop notice from any laborer or material supplier alleging non-payment by Contractor, City shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees. Section 3. Description of Proiect. The Project is described as: Pipeline Construction Work as delineated in the Plans and Specifications prepared by Dexter Wilson Engineers, dated October 4, 2012. Work to include: the construction of Improvement Plans for the 1-5 and Ortega Highway Interchange Pipeline Relocation, and all appurtenant work. Section 4. Plans and Specifications. The work to be done is shown in a set of detailed Plans and Specifications entitled: IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION, Dated October 4, 2012. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION &2 Said Plans and Specifications and any revisions, amendments or addenda thereto are attached hereto and incorporated herein as part of this Contract and referred to by reference. Section 5. Time of Commencement and Completion. Contractor agrees to commence the Project within ten (10) calendar days from the date set forth in the "Notice to Proceed" sent by City and shall diligently prosecute the work to completion within the time allocated in sections 5a and 5b below; excluding delays caused or authorized by the City as set forth in Sections 7, 8 and 9 hereof. 5a) All work listed as "Pre-Caltrans Work" must be completed within 75 Calendar days after the date specified in the Notice to Proceed. Liquidated damages will be assessed as set forth in the Agreement (Section 10a) for failure to meet the specified completion date. 5b) All other work listed as "Caltrans Stage" work must be completed within the work windows provided in the Caltrans Stage allocations totaling 64 working days, spread out over 15 events, occurring over a time span of seven hundred (700) calendar days from the date of the Notice to Proceed has been set for the completion of the work. Liquidated damages will be assessed as set forth in the Agreement (Section 10b) for failure to meet the specified completion date. Section 6. Time is of the Essence. Time is of the essence of this Contract. As required by the Contract Documents, Contractor shall prepare and obtain approval of all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of Contractor's work in conformance with an approved construction progress schedule. Contractor shall coordinate the work covered by this Contract with that of all other Contractors, CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-3 subcontractors and of the City, in a manner that will facilitate the efficient completion of the entire work in accordance with Section 5 herein. City shall have complete control of the premises on which the work is to be performed during the Pre-Caltrans phase; September 1, 2012 to January 31, 2013; and shall have the right to decide the time or order in which the various portions of the work shall be installed or the priority of the work of other subcontractors, and, in general, all matters representing the timely and orderly conduct of the work of Contractor on the premises. The Caltrans Roadway and Bridge Contractor shall have complete control of the premises on which the work is to be performed during the Caltrans Work Stage Phase; February 1 2013 to June 2015; and shall have the right to decide the time or order in which the access to the site is to be provided to the Contractor for the various portions of the work shall be installed or the priority of the work of other subcontractors, and, in general, all matters representing the timely and orderly conduct of the work of Contractor on the premises. Section 7. Excusable Delays. Contractor shall be excused for any delay in the prosecution or completion of the Project caused by acts of God; inclement weather which exceeds the number of calendar days estimated by the City and set forth in Section 5 hereof; damages caused by fire or other casualty for which Contractor is not responsible; any act, neglect or default of City; failure of City to make timely payments to Contractor; late delivery of materials required by this Contract to be furnished by City; combined action of the workers in no way caused by or resulting from default or collusion on the part of Contractor; a lockout by City; or any other delays unforeseen by Contractor and beyond Contractor's reasonable control. City shall extend the time fixed in Section 5 for completion of the Project by the number of days Contractor has thus been delayed, provided that Contractor presents a CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B4 written request to City for such time extension within fifteen (15) days of the commencement of such delay and City finds that the delay is justified. City's decision will be conclusive on the parties to this Contract. Failure to file such request within the time allowed shall be deemed a waiver of the claim by Contractor. No claims by Contractor for additional compensation or damages for delays will be allowed unless Contractor satisfies City that such delays were unavoidable and not the result of any action or inaction of Contractor and that Contractor took all available measures to mitigate such damages. Extensions of time and extra compensation as a result of incurring undisclosed utilities will be determined in accordance with Section C- 9(f) of the General Provisions. The City's decision will be conclusive on all parties to this Contract. Section 8. Extra Work. The Contract price includes compensation for all work performed by Contractor, unless Contractor obtains a written change order signed by a designated representative of City specifying the exact nature of the extra work and the amount of extra compensation to be paid all as more particularly set forth in Section 9 hereof. City shall extend the time fixed in Section 5 for completion of the Project by the number of days reasonably required for Contractor to perform the extra work, as determined by City's Engineer. The decision of the Engineer shall be final. Section 9. Changes in Project. A. City may at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the Contract, including but not limited to changes: 1) in the Specifications (including drawings and designs); 2) in the time, method or manner of performance of the work; CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-5 3) in the City-furnished facilities, equipment, materials, services or site; or 4) directing acceleration in the performance of the work. B. A change order shall also be any other written order (including direction, instruction, interpretation or determination) from the City which causes any change, provided Contractor gives the City written notice stating the date, circumstances and source of the order and that Contractor regards the order as a change order. C. Except as provided in this Section 9, no order, statement or conduct of the City or its representatives shall be treated as a change under this Section 9 or entitle Contractor to an equitable adjustment. D. If any change under this Section 9 causes an increase or decrease in Contractor's actual, direct cost or the time required to perform any part of the work under this Contract, whether or not changed by any order, the City shall make an equitable adjustment and modify the Contract in writing. Except for claims based on defective specifications, no claim for any change under paragraph (B) above shall be allowed for any costs incurred more than twenty (20) days before the Contractor gives written notice as required in paragraph (B). In the case of defective specifications for which the City is responsible, the equitable adjustment shall include any increased direct cost Contractor reasonably incurred in attempting to comply with those defective specifications. E. If Contractor intends to assert a claim for an equitable adjustment under this Section 9, it must, within thirty (30) days after receipt of a written change order under paragraph (A) or the furnishing of a written notice under paragraph (B), submit a written statement to the City setting forth the general nature and monetary extent of such claim. The City may extend the thirty (30) day period. Contractor may-include the statement of claim in the notice under paragraph (B) of this Section 9. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-6 F. No claim by Contractor for an equitable adjustment shall be allowed if made after final payment under this Agreement. G. Contractor hereby agrees to make any and all changes, furnish the materials and perform the work that City may require without nullifying this Contract. Contractor shall adhere strictly to the Plans and Specifications, unless a change therefrom is authorized in writing by the City. Under no condition shall Contractor make any changes to the Project, either in additions or deductions, without the written order of the City and the City shall not pay for any extra charges made by Contractor that have not been agreed upon in advance in writing by the City. Contractor shall submit to the City written copies of its firm's cost or credit proposal for change in the work. Disputed work shall be performed as ordered in writing by the City and the proper cost or credit breakdowns therefore shall be submitted without delay by Contractor to City. Section 10. Liquidated Damages for Delay. 10a) Liquidated Damages for work performed during the Pre-Caltrans Phase, before February 1, 2013: The parties agree that if the total work called for under this Contract, in all parts and requirements, is not completed within the time specified in Section 5a plus the allowance made for delays or extensions authorized under Sections 7, 8 and 9, the City will sustain damage, which would be extremely difficult and impracticable to ascertain. The parties therefore agree that Contractor will pay to City the sum of Five Hundred Dollars and No Cents ($500.00) per day, as liquidated damages, and not as a penalty, for each and every calendar day during which completion of the Project is so delayed. Contractor agrees to pay such liquidated damages and further agrees that City may offset the amount of liquidated damages from any monies due or that may become due Contractor under this Contract. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 ANO ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-7 10b) Liquidated Damages for work performed during the Caltrans Work Stages Phase, after February 1, 2013: The parties agree that if the total work called for under this Contract, in all parts and requirements, is not completed within the time specified in Section 5b plus the allowance made for delays or extensions authorized under Sections 7, 8 and 9, the City will sustain damage, which would be extremely difficult and impracticable to ascertain. The parties therefore agree that Contractor will pay to City the sum of Two Thousand Dollars and No Cents ($2,000.00) per day, as liquidated damages, and not as a penalty, for each and every calendar day during which completion of the Project is so delayed. Contractor agrees to pay such liquidated damages and further agrees that City may offset the amount of liquidated damages from any monies due or that may become due Contractor under this Contract. Section 11, Contract Price and Method of Payment. City agrees to pay and Contractor agrees to accept as full consideration for the faithful performance of this Contract, subject to any subsequent additions or deductions as provided in approved change orders, the sum of One Million Six Hundred Seventy Five Thousand, Four Hundred Seventy Eight dollars and no cents ($1,675,478) as itemized on the attached Exhibit 'A," described as the Bid; and, Exhibit "B," described as the Bid Schedule. Within Sixty (60) days from the commencement of work, and within thirty (30) days from the submission of invoice, there shall be paid to the Contractor a sum equal to One Hundred percent (100%) of the value of the actual work completed plus a like percentage of the value of material suitably stored at the worksite, treatments plant or approved storage yards subject to or under the control of the City, since the CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-S commencement of the work as determined by the City. Thereafter, on a schedule issued by the City at the commencement of the job which shows a minimum of one payment made to the Contractor per month for each successive month as the work progresses and the request for payment due dates from the Contractor to meet the payment schedule, the Contractor shall be paid such sum as will bring the total payments received since the commencement of the work up to One Hundred percent (100%) of the value of the work completed since the commencement of work as determined by the City, less all previous payments, provided that the Contractor submits the request for payment prior to the end of the day required to meet the payment schedule. No retainage will be withheld by the City of San Juan Capistrano from progress payments due the Prime Contractor. No retainage will be held by the Prime Contractor from progress due Sub-Contractors. Any violation of this provision shall subject the violating Prime Contractor or Sub-Contractors to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Prime Contractor or Sub-Contractor in the event of a dispute involving late payment or nonpayment by the Prime Contractor or deficient Sub-Contractor performance, or noncompliance by a Sub-Contractor. This provision applies to both Disadvantaged Business Enterprises (DBE) and non-DBE Prime Contractors and Sub-Contractors. The Contractor shall return all monies withheld in retention from the subcontractor within 30 days after receiving payment for work satisfactorily completed, even if the other contract work is not completed and has not been accepted in conformance with Section 6-8.2, "Acceptance of Contract," of Standard Specifications. Federal Law (49 CFR 26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with agency's prior written approval. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-9 Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the Contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the Contractor or deficient subcontract performance or noncompliance by a subcontractor. Payments shall be made on demands drawn in the manner required by law, accompanied by a certificate signed by the City's Engineer, stating that the work for which payment is demanded has been performed in accordance with the terms of the Contract, and that the amount stated in the certificate is due under the terms of the Contract. Partial payments on the Contract price shall not be considered as an acceptance of any part of the work. Section 12. Substitution of Securities in Lieu of Retention of Funds. �. Not Applicable. Section 13. Completion. Within ten (10) days after the contract completion date of the Project, Contractor shall file with the City's Engineer its affidavit stating that all workers and persons employed, all fines supplying materials, and all subcontractors upon the Project have been paid in full, and that there are no claims outstanding against the Project for either labor or material, except those certain items, if any, to be set forth in an affidavit CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-10 covering disputed claims, or items in connection with Stop Notices which have been filed under the provisions of the statutes of the State of California. City may require affidavits or certificates of payment and/or releases from any subcontractor, laborer or material supplier. Section 14. Contractor's Employees' Compensation. A. Davis-Bacon Act: Contractor will pay and will require all subcontractors to pay all employees on said Project a salary or wage at least equal to the prevailing rate of per diem wages as determined by the Secretary of Labor in accordance with the Davis-Bacon Act for each craft or type of worker needed to perform the Contract. The provisions of the Davis-Bacon Act shall apply only if the Contract is in excess of Two Thousand Dollars ($2,000.00) or when twenty-five percent (25%) or more of the Contract is funded by federal assistance. If the aforesaid conditions are met, a copy of the provisions of the Davis-Bacon Act to be complied with are incorporated herein as a part of this Contract and referred to by reference. B. General Prevailing Rate: City has ascertained from the State of California Director of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Contract, and copies of the same are on file in the Office of the Engineer of City. The Contractor agrees that not less than said prevailing rates shall be paid to workers employed on this public works contract as required by Labor Code Section 1774 of the State of California. C. Forfeiture For Violation: Contractor shall, as a penalty to the City, forfeit Fifty Dollars ($50.00) for each calendar day or portion thereof for each worker paid (either by the Contractor or any CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-11 subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California. D. * Travel and Subsistence Pay: Section 1773.8 of the Labor Code of the State of California, regarding the payment of travel and subsistence payments, is applicable to this Contract and Contractor shall comply therewith. E. Apprentices: Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices, is applicable to this Contract and the Contractor shall comply therewith if the prime contract involves Thirty Thousand Dollars ($30,000.00) or more or twenty (20) working days, or more; or if contracts of specialty Contractors not bidding for work through the general or prime Contractor are Two Thousand Dollars ($2,000.00) or more or five(5)working days or more. F. Workday: In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and Contractor shall not require more than eight(8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (B) above. Contractor shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seg.) of the Labor Code of the State of California and shall forfeit to the City as a penalty, the sum of Twenty-five Dollars ($25.00) for each worker employed in the execution of this Contract by Contractor or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one calendar CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1.5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION &12 day and forty (40) hours in any one week in violation of said Article. Contractor shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by Contractor in connection with the Project. G. Record of Wages: Inspection: Contractor agrees to maintain accurate payroll records showing the name, address, social security number, work classification, straight-time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its subcontractors does the same. All payroll records shall be certified as accurate by the applicable Contractor or subcontractor or its agent having authority over such matters. Contractor further agrees that its payroll records and those of its subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general. Section 15. Surety Bonds. Contractor shall, before entering upon the performance of this Contract, furnish bonds approved by the City Council one in the amount of one hundred {percent (100%) of the Contract price bid, to guarantee the faithful performance of the work, and the other in the amount of one hundred percent (100%) of the Contract price bid to guarantee payment of all claims for labor and materials furnished. This Contract shall not become effective until such bonds are supplied to and approved by the City. Section 16. Insurance. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-13 A. Contractor is also aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for Workers' Compensation or undertake self-insurance in accordance with the provisions of that Code and will comply with such provisions before commencing the performance of the work of this Contract. B. Contractor and all subcontractors will cant' workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against City, its officers, agents and employees and shall issue a certificate to the policy evidencing same. C. Contractor shall at all times cant', on all operations hereunder, bodily injury, including death, and property damage liability insurance, including automotive operations, bodily injury and property damage coverage. All insurance coverage shall be in amounts specified by City in the Insurance Requirements and shall be evidenced by the issuance of a certificate in a form prescribed by the City and shall be underwritten by insurance companies satisfactory to City for all operations, subcontract work, contractual obligations, product or completed operations, all owned vehicles and non-owned vehicles. Said insurance coverage obtained by the Contractor, excepting workers' compensation coverage, shall name the City, its Directors, Officers, Agents, Employees, Engineers, and Consultants for this contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the City, as additional insureds on said policies. D. Before Contractor performs any work at, or prepares or delivers materials to, the site of construction, Contractor shall furnish certificates of insurance evidencing the foregoing insurance coverages and such certificates shall provide the name and CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:I-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-14 policy number of each carrier and policy and that the insurance is in force and will not be canceled without thirty (30) days'written notice to City. Contractor shall maintain all of the foregoing insurance coverages in force until the work under this Contract is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of City by Contractor under Section 17 of this Contract. Notwithstanding nor diminishing the obligations of Contractor with respect to the foregoing, Contractor shall subscribe for and maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and issued by a company admitted in California and having a Best's Guide Rating of A-Class VII or better: Worker's Compensation Statutory Limits as required by the State of California Employers liability with a Minimum of $1,000,000 Public Liability, in the form of either Comprehensive General $5,000,000, per occurrence, or Liability or Commercial General altematively, Liability written on a per-occurrence $5,000,000 aggregate, separate basis for this project. Automobile liability, including $2,000,000 per occurrence non-owned and hired vehicles Pollution Liability $1,000,000 per occurrence City or its representatives shall at all times have the right to inspect and receive the original or a certified copy of all said policies of insurance, including certificates. Contractor shall pay the premiums on the insurance hereinabove required. Section 17. Risk and Indemnification. All work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of Contractor alone. Contractor agrees to save, indemnify and keep City, its Directors, Officers, Agents, Employees, CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION &15 Engineers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees harmless against any and all liability, claims, judgments, costs and demands, including demands arising from injuries or death of persons (Contractors' employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by Contractor, save and except claims or litigation arising through the sole negligence or sole willful misconduct of City, and will make good to and reimburse City for any expenditures, including reasonable attorneys' fees City may incur by reason of such matters, and if requested by City, will defend any such suits at the sole cost and expense of Contractor. Section 18. Stop Notice Administration. City reserves the right to charge Contractor for City's actual administrative time (including attorney's time) to administer and process stop notices filed by Contractor's subcontractors, material men, or any other claimant or lienholder. Section 19. Termination. A. This Contract may be terminated in whole or in part in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Contract through no fault of the terminating party, provided that no termination may be effected unless the other party is given: (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination. B. This Contract may be terminated in whole or in part in writing by the City for its convenience, provided that the Contractor is given (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination. C. If termination for default or convenience is effected by the City, an equitable adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the Contractor at the time of termination may be adjusted to CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION &16 cover any additional costs to the City because of the Contractor's default. If termination for default is effected by the Contractor, the equitable adjustment shall include a reasonable profit for services or other work performed, but no adjustment will be allowed for anticipated profits. The equitable adjustment for any termination shall provide for payment to the Contractor for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by the Contractor relating to commitments which had become firm prior to the termination. D. Upon receipt of a termination action under paragraphs (A) or (B) above, the Contractor shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the Contractor in performing this Contract whether completed or in process. E. Upon termination under paragraphs (A) or (B) above, the City may take over the work and may award another party an agreement to complete the work under this Contract. Section 20. Guarantee Contractor agrees to perform all work under this Contract in accordance with the City's designs, drawings and specifications. The Contractor guarantees for a period of at least one (1) year from the date of substantial completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and that he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs of any damage to other parts of the system resulting from such defects. The City shall promptly give notice to the Contractor of observed defects. In the event that the Contractor fails to make adjustments, repairs, corrections or other work made necessary by such defects, the City may do so and charge the CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION &17 Contractor the cost incurred. The performance bond shall remain in full force and effect through the guarantee period. The Contractor's obligations under this clause are in addition to the Contractor's other express or implied assurances under this Contract or state law and in no way diminish any other rights that the City may have against the Contractor for faulty materials, equipment or work. Section 21. Assignment. No assignment by the Contractor of this Contract or any part hereof, or of funds to be received hereunder, will be recognized by the City unless such assignment has had prior written approval and consent of the City and the surety. Section22. Attomeys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Contract, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which it may be entitled. If any action is brought against the Contractor or any subcontractor to enforce a Stop Notice or Notice to Withhold, which names the City as a party to said action, the City shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the City. The City shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not. Section 23. Resolution of Disputes. The City and the Contractor shall comply with the revisions of California Public Contracts Code Section 20104, et seg., regarding resolution of construction claims for any claims which arise between the Contractor and the City. Section 24. Notices. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-18 Any notice required or permitted under this Contract may be given by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing. To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Director of Public Works To Contractor: contact Company name. address city, state, zip Section 24. Federal Proiect. This project is partially or wholly federally funded. The provisions of Title 49, Part 26, Code,of Federal Regulations (49 CFR 26) and the City of San Juan Capistrano's adopted DBE program require that Underutilized Disadvantaged Business Enterprises (UDBEs) and Disadvantaged Business Enterprises (DBEs) have the opportunity to participate in federal-aid capital improvement projects. The "Federal Requirements for Federal-Aid Construction Projects" Exhibit C, attached apply; and are incorporated into this contract. In the event that there are conflicts between this Construction Contract and the provisions of the Federal Requirements for Federal-Aid Construction Projects, the Federal requirements will prevail. CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION &19 IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract as of the date first hereinabove written. CITY OF SAN JUAN CAPISTRANO By: Larry Kramer, Mayor CONT O By: 77 )>6�A ATTEST: By: Maria Morris, City Clerk APPJLUien�, * O FORM: By: Hans Van ttorney Exhibits: A— Bid B — Bid Schedule C — Federal Requirements for Federal Aid Construction Projects CITY OF SAN JUAN CAPISTRANO AGREEMENT PROJECT NAME:1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION B-20 Exhibit 12-E Attachment B FHWA-1273— Revised May 1,2012 REQUIRED CONTRACT PROVISIONS FEDERAL4UD CONSTRUCTION CONTRACTS I, General 3. A breach of any of the stipulations contained in these It. Nondiscrimination Required Contract Provisions may be suf iclent grounds for III. Nonsegregated Facilities withholding of progress payments,withholding of final IV. Davis-Bacon and Related Act Provisions payment,termination of the contract,suspension 1 debarment V. Contact Work Hours and Safety Standards Act or any other action determined to be appropriate by the Provisions contracting agency and FHWA. VI. Subletting or Assigning the Contract VII. Safety:Accident Prevention 4. Selection of Labor.During the performance of this contract, VIII. False Statements Concerning Highway Projects the contractor shall not use convict labor for any purpose IX Implementation of Clean Air Act and Federal Water within the limits of a construction project on s Federal-aid Pollution Control Act highway unless it Is labor performed by convicts who are on X Compliance with Govemmentwide Suspension and parole,supervised release,or probation. The tern Federal-ald Debarment Requirements highway does not Include roadways functionally classified as XI. Certification Regarding Use of Contract Funds for local made or rural minor collectors. Lobbying ATTACHMENTS It. NONDISCRIMINATION A.Employment and Materials Preference for Appalachian The provisions of this section related to 23 CFR Part 230 are Development Highway System or Appalachian Local Access applicable to all Federal-ald construction contracts and to all Road Contracts(included In Appalachian contracts only) related construction subcontracts of$10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply,engineering,or architectural service contracts. 1. GENERAL In addition,the contractor and all subcontractors must comply 1. Forth FHWA-1273 must be physically incorporated In each with the following policies:Executive Order 11246,41 CFR 60, construction contract funded under Title 23(excluding 29 CFR 1625-1827,Title 23 USC Section 140,the emergency contracts solely Intended for debris removal). The Rehabilitation Act of 1973,as amended(29 USC 794),Title VI contractor(or subcontractor)must Insert this form In each of the Civil Rights Act of 1984,as amended,and related subcontract and further require its inclusion In all lower tier regulations Including 49 CFR Parts 21,26 and 27;and 23 CFR subcontracts(excluding purchase orders,rental agreements Parts 200,230,and 633. and other agreements for supplies or services). The contractor and all subcontractors must comply with: the The applicable requirements of Forth FHWA-1273 are requirements of the Equal Opportunity Clause in 41 CFR 60- incorporated by reference for work done under any purchase 1.4(b)and,for all construction eordracts exceeding$10,000, order,rental agreement or agreement for other services. The the Standard Federal Equal Employment Opportunity prime contractor shall be responsible for compliance by any Construction Contract Specifications in 41 CFR 80-4.3. subcontractor,tower-tier subcontractor or service provider. Note:The U.S.Department of labor has exclusive authority to Form FHWA-1273 must be Included in all Federal-ald design- determine compliance with Executive Order 11246 and the build contracts,In all subcontracts and In lower tier policies of the Secretary of Labor including 41 CFR 60,and 29 subcontracts(excluding subcontracts for design services. CFR 1625-1627. The contracting agency and the FHWA have purchase orders,rental agreements and other agreements for the authority and the responsibility to ensure compliance with supplies or services). The design-builder shall be responsible Title 23 USC Section 140,the Rehabiiitetlon Act of 1973,as for compliance by any subcontractor,lower-fer subcontractor amended(29 USC 794),and Title VI of the Civil Rights Act of or service provider. 1984,as amended,.and related regulations including 49 CFR Parts 21,28 and 27;and 23 CFR Parts 20D,230,and 633. Contracting agencies may reference Form FHWA-1273 In bid proposal or request for proposal documents,however,the The following provision Is adopted from 23 CFR 230,Appendix Forth FHWA-1273 must be physically Incorporated(not A,with appropriate revisions to conform to the U.S. referenced)in an contracts,subcontracts and lower-tier Department of Labor(US DOL)and FHWA requirements. subcontracts(excluding purchase orders,rental agreements and other agreements for supplies or seMees related to a 1.Equal Employment Opportunity:Equal employment construction contract). opportunity(EEO)requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth 2. Subject to the applicability criteria noted in the following under laws,executive orders,rules,regulations(28 CFR 35, sections,these contract provisions shall apply to ail work 29 CFR 1630,29 CFR 1625-1627,41 CFR 60 and 49 CFR 27) performed on the contract by the contractor's own organization and orders of the Secretary of Labor as modified by the and with the assistance of workers under the contractor's provisions prescribed herein,and imposed pursuant to 23 Immediate superintendence and to all work performed on the U.S.C.140 shall constitute the EEO and specific affirmative contract by plecework.station work,or by subcontract. action standards for the contractors project activities under FR-3 Exhibit 12-E Attachment B this contract.The provisions of the Americans with Dlsabilltles 4.Recruitment:When advertising for employees,the Act of 1990(42 U.S.C.12101 at seq.)sat forth under 28 CFR contractor will Include In all advertisements for employees the 35 and 29 CFR 1830 are incorporated by reference In this notation:"An Equal Opportunity Employer." All such contract.In the execution of this contract,the contractor advertisements will be placed In publications having a large agrees to comply with the following minimum specific circulation among minorities end women In the area from requirement activities of EEO: which the project work torte would normally be derived. a.The contractor will work with the contracting agency and a. The contractor will,unless precluded by a valid the Federal Government to ensure that it has made every bargaining agreement,conduct systematic and direct good faith effort to provide equal opportunity with reaped to all recruitment through public and private employee referral of its terms and conditions of employment and In their review sources likely to yield qualified minorities and women. To of activities under the contract. meet this requirement,the contractor will Identify sources of potential minority group employees,and establish with such b.The contractor will accept as its operating policy the Identified sources procedures whereby minority and women following statement: applicants may be referred to the contractor for employment conskleration. "h is the policy of this Company to assure that applicants are employed,and that employees are treated during b. In the event the contractor has a valid bargaining employment,without regard to their race,religion,sax,calor, agreement providing for exclusive hiring hall referrals,the national origin,age or disabllity. Such action shalt Include: contractor Is expected to observe the provisions of that employment,upgrading,demotion,or transfer,recruitment or agreement to the extent that the system masts the contractor's recruitment advertising;layoff or termination;rates of pay or compliance with EEO contract provisions. Where other forms of compensation;and selection for training. Implementation of such an agreement has the effect of including apprenticeship,pm4apprenticeship,and/or orWhe- discriminating against minorities or women,or obligates the job training." contractor to do the same,such Implementation violates Federal nondiscrimination provisions. 2. EEO Officer:The contractor will designate and make known to the contracting officers an EEO Officer who will have c. The contractor will encourage its present employees to the responsibility for and must be capable of effectively refer minorities and women as applicants for employment administering and promoting an active EEO program and who Information and procedures with regard to referring such must be assigned adequate authority and responsibility to do applicants will be discussed with employees. $a. 5.Personnel Actions:Wages,working conditions,and 3. Dlsseminatlon of Policy:AI members of the contractors employee benefits shall be establielted and administered,and staff who are authorized to hire,supervise,promote,and personnel actions of every type.Including hiring,upgrading, discharge employees,or who recommend such action,or who promotion,transfer,demotion,layoff,and termination,shall be are substantially involved In such action,will be made fatly taken without regard to race,cruor,mII9lart,sax,national cognizant of,and will implement,the contradoes EEO policy origin,age or disability. The following prooedures shall be and contractual responsibilities to provide EEO In each grade followed: and classification of employment To ensure that the above agreement will be met,the fallowing actions will be taken as a a. The contractor will conduct periodic inspections of project minimum: sites to insure that working conditions and employee facilities do not Indicate discriminatory treatment of project site a Periodic meetings of supervisory and personnel office personnel. employees will be conducted before the start of work and than not less often than once every six months.at which time the b. The contractor will periodically evaluate the spread of contractor's EEO policy and Its Implementation will be wages paid within each classification to determine any reviewed and explained The meetings will be eonductad by evidence of discriminatory wage practices. the EEO Officer. Q The oorktrector will periodically review aefected personnel b. All new supervisory or personal office employees will be actions in depth to determine whether there Is evidence of given a thorough Indoctrination by the EEO Officer,covering discrimination. Where evidence Is found,the contractor will all major aspects of the contractors EEO obligations within promptly take corrective action. If the review Indicates that the thirty days following their reporting for duty with the contractor. discrimination may extend beyond the actions reviewed,such corrective action shall Include all affected persons. a All personnel who are engaged in direct recruitment for the project wig be instructed by the EEO Officer in the d. The contractor will promptly investigate all cwnplairds of contractors procedures for locating and hiring minorities and alleged discrimination made to the contractor In connection women. with its obligations under this contract,will attempt to resolve such complaints.and will take appropriate corrective action d {notices and posters setting forth the contractors EEO within a reasonable time. If the investigation Indicates that the policy will be placed In areas readily accessible to employees, discrimination may affect persons other than the complainant, applicants for employment and potential employees. such txurective action shell Include such other persons. Upon completion of each Investigation,the contractor will Inform e. The coMrectoes EEO policy and the procedures to every complainant of all of their avenues of appeal. implement such policy will be brought to the attention of employees by means of meetings,employee handbooks,or 8.Training and Promotion: other appropriate means. a The contractor will assist in locating,qualifying,and [note Ing the skills of mincritles and women who are FR-4 Exhibit 12-E Attachment B applicants for employment or current employees. Such efforts with the requirements for and comply with the Americans with should be aimed at developing full journey level status Disabilities Act and all rules and regulations established there employees In the type of trade or job classification involved. under. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an b. Consistent with the contractor's work force requirements undue hardship. and as permissible under Federal and State regulations,the contractor shall make full use of training programa,i.e., 9.Selection of Subcontractors,Procurement of Materials apprenticeship,and cn-theaob training programs for the and Leasing of Equipment:The contractor shall not geographical area of contract performance. In the event a discriminate on the grounds of moo,color,religion,sex, special provision for training Is provided under this contract, national origin,age or disability In the selection and retention this subparagraph will be superseded as Indicated In the of subcontractors,including procurement of materials and special provision. The contracting agency may reserve leases of equipment The contractor shall take all necessary training positions for persons who receive welfare assistance and reasonable steps to ensure nondiscrimination In the In accordance with 23 U.S.C.140(x). administration of this contract. c. The contractor will advise employees and applicants for a. The contractor shall notify all potential subcontractors and employment of available training programs and entrance suppliers and lessors of their EEO obligations under this requirements for each. contract. d. The contractor will periodically review the training and b. The contractor will use good faith efforts to ensure promotion potential of employees who are minorities and subcontractor compliance with their EEO obligations. women and will encourage WWble employees to apply for such training and promotion. 10.Assurance Required by 49 CFR 28.13(b): 7.Unions:If Use contractor relies In whole or In part upon unions as a source of employees,the contractor will use good a. The requirements of 49 CFR Part 26 and the State faith efforts to obtain the cooperation of such unions to DOTs U.S.DOT-approved DBE program are Incorporated by increase opportunities for minorities and women. Actions by reference. the contractor,either directly or through a contractors essodation acting as agent,will Include the procedures set b. The contractor or subcontractor shag not discriminate an forth below: the basis of race,color,national origin,or sex in the performance of this contract The contractor shall carry out a. The contractor will use good faith efforts to develop.In applicable requirements of 49 CFR Part 28 in the award and cooperation with the unions,joint training programs aimed administration of DOT-assisted contracts. Fallum by ft toward qualifying more minorities and worsen for membership contractor to carry out these requirements Is a material breach in the unions and Increasing the skills of minorities and women of this contract,which may result In the termination of this so that they may qualify for higher paying employment contract or such other remedy as the contracting agency deems appropriate. b. The contractor Will use good faith efforts to Incorporate an EEO clause into each union agreement to the end that such 11.Records and Reports:The contractor shall keep such union will be contractually bound to refer applicants without records as necessary to document compliance with the EEO regard to their race,color,religion,sex,national origin,age or requirements. Such records shall be retained for a period of disability. three years following the date of the final payment to the contractor for all contract work and shall be available at c. The contractor Is to obtain information as to the referral reasonable times and places for inspection by suthorbW practices and policies of the labor union except that to the representatives of the contracting agency and the FKNA, extent such information Is within the exclusive possession of the labor union and such labor union refuses to furnish such a. The records kept by the contractor shall document the information to the contractor;the contractor shall so certify to following: the contracting agency and shag act forth what efforts have been made to obtain such Information. (1)The number and work hours of minority and non- minority group members and women employed in each work d. In the event the union Is unable to provide the contractor classification on the project; with a reasonable lbw of referrals within the time lWd set forth In the collective bargaining agreemant,the contractorwiil, (2)The progress and efforts being made In cooperation through independent recruitment efforts,fill the employment with unions,when applicable,to increase employment vacancies without regard to race,color,raltgion,sex,national opportunities for minorities and women;and origin,age or disability;making fug efforts to obtain qualified andlor qualifiable minargiea and women. The fallure of a union (3)The progress and efforts being made In locating,hiring. to provide sufficient referrals(even though it is obligated to training,qualifying.and upgrading minorities snd women; provide exclusive referrals under the tombs of a collective bargaining agreement)does not relieve the contractor from the b. The contractors and subcontractors wig submit an annual requirements of this paragraph. In the event the unlon referral report to the contracting agency each July for the duration of practice prevents the contractor from meeting ft obligations the project,indicating the number of minority,women,and pursuant to Executive Order 11246,as amended,and thane non-minodly group employees currently engaged In each work special provisions,such contractor shall immediately notify the classification required by the contract work. This Information Is contracting SPcoy. to be reported on Form FHWA-1391. The staffing date should represent the project work force on board in all or any part of 6. Reasonable Accommodation for Applicants/ the last payroll period preceding the end of July. If on-the-job Employees with Disabilities: The contractor must be familiar training is being required by special provision,the contractor FR-5 Exhibit 12-E Attachment B will be required to collect and report training data. The of paragraph 1.d.of this section;also,regular contributions employment data should reflect the work force on board during made or costs incurred for more than a weekly period(but not all or any part of the last payroll period preceding the end of lass aften than quarterly)under plena,funds,or programs July. which cover the particular weekly period,aro deemed to be constructively made or Incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate III.NONSEGREGATED FACILITIES wage rate and finge benefits an the wage determination for the classification of work actually performed,without regard to This provision Is applicable to all Federal-aid construction skill,except as provided In 29 CFR 54(a)(4).Laborers or contracts and to all related construction subcontracts of mechanics performing work In more then one classification $10,000 or more. may be compensated at the rate specified for each classification for the time actually worked thereln:Provided. The contractor must ensure that facilities provided for That the amployers payroll records accurately set forth the employees aro provided in such a manner that segregstion an time spent in each classification in which work is performed. the basis of race,color,religion,sex,or national origin cannot The wage determination(Including any additional classification resuit. The contractor may neither require such segregated and wage rates conformed under paragraph 1.b.of this use by written or oral policies nor tolerate such use by section)and the Davls-Bacon poster(WH-1321)shall be employee custom. The contractors obligation extends further posted at all times by the contractor and ifs subcontractors at to ensure that its employees are not assigned to perform their the eke of the work in a prominent and accessible place where services at any location,under the contractors control,where it can be easily seen by the workers. the faeillties aro segregated. The term"factlitieC includes wailing rooms,work areas,restaurants and other eating areas, b,(1)The contracting officer shell require that any class of time clocks,restrooms,washrooms,locker rooms,and other laborers or mechanics,including helpers,which is not listed in recreation or dressing areas,parkas,Iota,drinking fountains, the wage determination and which is to be employed under the recreation or entertainment T arson, actor hell pr,and housing contract shall be classified In conformance with the wage provided far employees. The contractor shad provide separate determination.The contracting officer shall approve an or as to assure srestrocma and necessary dressing or steeping additional classification and wage rate and fringe benefits areas to assure privacy between sexes. additional only when the fallowing criteria have been met: IV. DAVIS43ACON AND RELATED ACT PROVISIONS p)The work to be performed by the classification requested Is not performed by a classification in the wage This section is applicable to all Federal-aid construction determination;and projects exceeding$2,000 and to all related subcontracts end lower-tier subcontracts(regardless of subcontract size). The pl)The classification Is utilized In the area by the requirements appy to ad projects located within the right-0f- construction Industry;and way of a roadway that is functionally classified as Federel-akd highway. This excludes roadways functionally classified as local roads or rural minor collectors,which are exempt (Ill) be proposed wage rate,reasonable relationship any bona tide Contracting agencies may elect to appy these requirements to fangs rates contained bears a resswage relationship . the other projects. wage rates contained in the wage determination. The following provisions are from the U.S.Department of (2)If the contractor and the laborers and mechanics to be Labor regulations In 29 CFR 5.6'Contract provlslons and employed in the classification Of known),or their related matters'with minor revisions to conform to the FHWA- representatives,and the contracting officer agree on the 1273 format and FHWA program requirements. classification and wage rate(including the amount designated for fringe benefits where appropriate),a report of the action taken shad be sent by the contracting aificer to the 1. Minimum wages Administrator of the Wage and Hour Division,Employment Standards Administration,U.S.Department of labor, a. Ad laborers and mechanics employed or working upon Washington,DC 20210.The Administrator,or an authorized the site of the work,will be paid unconditionally and not less representative,will approve,modify,or disapprove every often than once a week,and without subsequent deduction or additional classification action within 30 days of receipt and rebate on any account(except such payroll deductions as are so advise the contracting officer or will notify the contracting permitted by regulations Issued by the Secretary of Labor officer within the 30-day period that additional time Is under the Copeland Act(29 CFR part 3)),the full amount of necessary. wages and bona fide fringe benefits(or cash equivalents thereof)due at time of payment computed at rates not less (3)In the event the contractor,the laborers or macharsies than those contained in the wage determination of the to be employed in the classification or their represertatives. Secretary of Labor which is attached hereto and made a part and the contracting officer do not agree on the proposed hereof,regardless of any contractual relationship which may classification and wage rate(Including the amount be alleged to exist between the contractor and such laborers designated for fringe benefits,where appropriate),the and mechanics. contracting officer shall refer the questions,including the views of all interested parties and the recommendation of the Contributions made or costs reasonably anticipated for bona contracting officer,to the Wage and Hour Administrator for fide fringe bensfits under section 1(b)(2)of the Davis-Bacon determination.The Wage and Hour Administrator,or an Act on behalf of laborers or mechanics are considered wages authorized representative,will Issue a determination within paid to such laborers or mechanics,subject to the provisions 30 days of receipt and so advise the contracting officer or FR-6 Exhibit 12-E Attachment B w!g notify the contracting officer within the 30-day period that Bacon Ad,the contractor shall maintain records which show additional time Is necessary. that the commitment to provide such benefits is enforceable, that the plan or program Is financially responsible,and that the (4)The wage rete{inducting fringe benefits where p�or program has been communicated in writing to the appropriate)determinedto(Inc pursuant to paragraphs 1.b.(2)or lebarem or mechanics affected,and records which show the appropriate) of this ,shall be paid to all workers performing costa anticipated or the actual cost Incurred in providing such Werk in the isclassificationcoon,shall under this oallwcontract from the Brat bele•Contractors employing apprentices or trainees under day on which work b perforated in the afrom the approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programa,the registration of the appreMlces and c.Whenever the minimum wage rate prescribed In the trainees,and the repos and wage rates prescribed In the contract for a class of laborers or mechanics Includes a fringe applicable programs. benefit which is not expressed as an hourly rate,the contractor shall either pay the benefit as stated In the wage determination b.(1)The contractor shall submit weekly for each week in or shall pay another bona fide tinge benefit or an hourly cash which any contract work Is performed a copy of all payrolls to equivalent thereof. the contracting agency. The payrolls submitted shall set out accurately and completely all of the lnformation required to be d.If the contractor does not make payments to a trustee or maintained under 29 CFR 5.5(a)(3xl),except that full social other third person,the contractor may consider as part of the security numbera and home addresses shall not be Included wages of any laborer or mechanic the amount of any costs an weekly trensmktels.Instead the payrolls shall only need to reasonably anticipated in providing bona fide fringe benefits include an individually identifying number for each employee under a plan or program,Provided,That the Secretary of e.g.,the last four digits of the employee's social security Labor has found,upon the written request of the contractor, number).The required weekly payroll Information may be that the applicable standards of the Davis-Mean Act have submitted In any farts desired.Optional Forth WH-347 Is been met.The Secretary of Labor may require the contractor available for this purpose from the Wege and Hour Division to set aside In a separate account assets for the meeting of Web site at httpl/Www.dol.govlosahfidM=uhvh3471nslr htm obligations under the plan or program. or its successor ate.The prime contractor Is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social 2. Withholding security number and current address of each covered worker, and shall provide them upon request to the contracting agency The contracting agency shall upon Its own action or upon for transmission to the Stale DOT,the FHWA or the Wage and written request of an authorised representative of the Hour Division of the Department of Labor for purposes of an Department of Labor,withhold or cause to be withheld from investigation or audit of compliance with prevailing wage the contractor under this contract,or any other Federal requirements.It is not a violation of this section for a prime contract with the same prime contractor,or any other federally- contractor to require a subcontractor to provide addresses and assisted contract subject to Davis-Baser prmiting wage social security numbers to the prime contractor for its own requirements,which is held by the same prime contractor,so records,without weekly submission to the contracting agency.. much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, (2)Each payroll submitted shall be accompanied by a including apprentices,trainees,and helpers.employed by the Statement of Compliance;signed by the contractor or contractor or any subcontractor the full amount of wages subcontractor or his or her agent who pays or supervises the required by the cantrad. In the event of failure to pay any payment of the persons employed under the contract and shall laborer or mechanic.Including any apprentice,trainee.or certify the following: helper,employed or working on the ado of the work,all or part of the wages required by the centrad,the contracting agency may.atter written notice to the contractor,take such action as (q That the payroll for the payroll pariod contains the may be necessary to cause the suspension of arty further Information required to be provided under§5.5(a)(3)(I)of payment,advance,or guarantee of funds until such violations Regulations,29 CFR part S,the appropriate information is have ceased. being maintained under§5.5(aH3xq of Regulations,29 CFR part S.and that such information is coned and 3. Payrolls and basic records complete' a. Payrolls and basic records relating thereto shall be (!i)That each laborer or mechanic(Induding each helper,apprentice,and trainee)employed an meintalned by the contractor during the course of the work and the contract preserved for a period of three years thereafter far all laborers during the payroll period has been pail the fug weekly t and mechanics workingat the site of the work.Such records wages tamed.without rebate,either directly or Indirectly, and that no deductions have been made either directly or shag contain the name,address,and social security number of Indirectly from the full wages earned,other than each such worker,his or her correct classification,hourly rates permissible deductions as set forth in Regulations,29 CFR of wages paid(Including rates of contributions or costs part 3; anticipated for bona fide fringe benefits or cash equivalents thereof of the typea described In section 1(b)(2)(B)of the Davis-Bacon Act),daily and weekly number of hours worked, pg)That each laborer or mechanic has been paid not deductions made and actual wages paid.Whenever the less than the applicable wage rates and fringe benefits or Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv)that cash equivalents for the classification of work performed, the wages of any laborer or mechanic include the amount of as specified in the applicable wage determination any costs reasonably anticipated In providing benefits under a incorporated Into the contract. plan or program described In section 1(b)(2)(8)of the Davis- FR-7 Exhibit 12-E Attachment B (3)The weekly submission of a properly executed rate specified In the applicable wage determination. certification set forth an the reverse side of Optional Form Apprentices shall be paid fringe benefds in accordance with WH-347 shall satisfy the requirement for submission of the the provisions of the apprenticeship program.If the 'Statement of Compliance'required by paragraph 3.b.(2)of apprenticeship program does not specify Mnge benefits, this section. apprentices must be paid the full amount of fringe benefits Wed on the wage determination for the applicable (4)The falsitieation of arty of the above ceriificetions may classification.If the Administrator determines that a different subject the contractor or subcontractor to twit or criminal practice hallprebe far the accordance applicable apprentice termination. prosecution under section 1001 ortitie 16 and section 231 of fringes shall be paid In accordance with that determination. title 31 of the United States Code. In the event the Office of Apprenticeship Training,Employer c.The contractor or subcontractor shall make the records and Labor Services,or a State Apprenticeship Agency required under paragraph 3.s.of this section available for recognized by the Office,withdraws approval of an Inspection,copying,or transcription by authorized app heed t utilize program,the sant Weth ill the longer be representatives of the contracting agency,the State DOT,the permitted to d rat apprentices at less than the applicable FHWA, or the Department of Labor,and shall permit such predetermined rete for the work performed until an acceptable representatives to interview employees during woddng hours program is approved. an the job.If the contractor or subcontractor falls to submit the required records or to make them available,the FHWA may, b.Trainees(programs of the USDOL). after written notice to the contractor,the contracting agency or the Stele DOT,take such action as may be necessary to Except as provided in 29 CFR 5.16,trainees will not be cause the suspension of any further payment,advance,or permitted to work at less than the predetermined rate for the guarantee of funds.Furthermore,failure to submit the required work performed unless they are employed pursuant to and records upon request or to make such records available may Individually registered in a program which has received prior be grounds for debarment action pursuant to 29 CFR 5.12 approval,evidenced by formal certification by the U.S. Department of Labor,Employment and Training 4. Apprentices and trainees Administration. a.Apprentices(programs of the USDOL). The ratio of trainees to journeymen on the Job site shall not be greater than permitted under the plan approved by the Apprentices will be permitted to work at less than the Employment and Training Administration. predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide Every trainee must be paid at not Iwo than the rate specified apprenticeship program registered with the U.S.Department of in the approved program for the trainee's level of progress, Labor.Employment and Training Administration,Office of expressed as a percentage of the journeyman hourly rate Apprenticeship Training,Employer and Lobar Services,or with specified In the applicable wage determination.Trainees shall a State Apprenticeship Agency recognixed by the Office,or K a be paid fringe benefits in accordance with the provisions of the person Is employed in his or her first 90 days of probationary trainee program.If the trainee program does not mention employment as an apprentice in such an apprenticeship fringe benefits,trainees shall be paid the full amount of fringe program,who is not Individually registered in the program,but benefits Gated on the wage determination unless the who has been certified by the Office of Apprenticeship Administrator of the Wage and Hour Division determines that Training,Employer and Labor Services or a State them is an apprenticeship program associated with the Apprenticeship Agency(where appropriate)to be eligible for coresponding journeyman wage rate on the wage probationary employment as an apprentice. determination which provides for less than full fringe benefits for apprentices.Any employee listad on the payroll at a trainee The allowable retro of apprentices to journeymen an the jab rate who to not registered and participating in a training plan site In any craft classification shall not be greater then the ratio bep� the than the applenticable and Training to a nthe wag shall permitted to the contractor as to the entire work force under de paid not less than the app cation wage rate on the wage the registered program.Any worker listed on a payroll at an determination for the aclassification pe f performing of work actually performed. apprentice wage rate,who Is not registered or otherwise In excess t any trainee heed n de work an the job aloe in employed as stated above,shall be paid not less than the shales of the roto s the ted ureter the a wage rate program applicable wage rate on the wage determination for the shall be paid not lona than the applicable wage rete an time wage determination for the welt actually performed. 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 in the event the Employment and Training Administration less than the applicable wage rate on the wage determination withdraws approval of a training program,the contractor will no for the work actually performed.Where a contractor is longer be permitted to ut8ize trainees at less then the performing construction on a project in a locality other than applicable predetermined rate for the work performed until an that In which Its program is registered,the ratios and wage acceptable program is approved. rates(expressed In percentages of the Journeyman's hourly rate)specified In the contractor's or subcontractor's registered c.Equal employment opportunity.The utilization of program shall be observed. apprentices,trainees and Journeymen under this part shell be in conformity with the equal employment opportunity Every apprentice must be paid at not less than the rate requirements of Executive Order 11246,as amended,and 29 specified In the registered program for the apprentice's level of CFR part 30. progress,expressed as a percentage of the jeumeymen hourly FR-8 Exhibit 12-E Attachment B d. Apprentices and Trainees(programs of the U.S.DOT). Apprentices and trainees working under apprenticeship and V. CONTRACT WORK HOURS AND SAFETY skill training programa which have been certified by the STANDARDS ACT m Secretary of Transportation as promating EEO In connection with Federal-ald highway construction programs are not The following douses appy to any Federal-aid constriction subject to the requirements of paragraph 4 of this Section M contract In an amount In excess of$100,000 and subject to the The straight time hourly wage rates for apprentices and overtime provisions of the Contract Work Hours and Safety trainees under such programs will be established by the Standards Act.These douses shall be inserted in addition to particular programs.The rade of apprentices and trainees to the douses required by 29 CFR 6.5(a)or 28 CFR 4.6. As Journeymen shall not be greater than permitted by the terms of used in this paragraph,the terns laborers and mechanics the particular program. Include watchmen and guards. 6.Compliance with Copeland Act requirements. The 1.0vertime requirements. No contradoror subcontractor contractor shall comply with the requlroments of 29 CFR part contracting for any part of the contract work which may require 3,which aro Incorporated by reference in this contract. or Involve the employment of laborers or mechanics shall require or permit any such taborer or mechanic In any 6.Subcontracts. The contractor or subcontractor shall insert workweek In which he or she Is employed on such work to Fane FHWA-1273 In any subcontracts and aim require the work in excess at forty hours compensation such workweek unless such subcontractors to Include Form FHWA-1273 in any lower tier laborer er mechanic l f tim s I eata rata rat leas subcontracts.The prime contractor shall be responsible for the than arta and exconeess of ho the basic rate k pay for all hours compliance by any subcontractor or lower tier subcontractor worked In excess of forty hours In such workweek. with all the contract clauses In 29 CFR 5.5. 2.Vtotatldn;liability for unpaid wages;liquidated 7.Contract termination:debarment. A breach of the damages. In the event of any violation of the douse sat forth contract clauses in 29 CFR 5.5 may be grounds for termination subcontractor paragraph(1.)of Hilo section,the contractor and any of the contract,and for debarment as a contractor and a subcontractorresponsibleIn addition. on therefor shall liable for the subcontractor as provided In 29 CFR 5.12. unpaid wages.In addition,such inthecontractor and subcontractor shall be Noble to the linked States(In the case df work dors under contract for the District of Columbia or a territory,to such 8.Compliance with Davis-Bacon and Related Act District or to such territory),for liquidated damages.Such requirements. Ali rulings and interprotetions of the Davis- liquidated damages shall be computed with respect to each Bacon and Related Acts contained in 29 CFR parts 1,3,and 6 Individual laborer or mechanic,Including watchmen and are herein Incorporated by reform In this contract. guards,employed In violation of the douse set forth in paragraph(1.)of this section,in the sum of$10 far each 9.Disputes concerning labor standards.Disputes arising calendar day an which such individual was required or permitted to work in excess of the standard workweek of forty out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract.Such hours without payment paragraph(1.)of this section. the overtime wages required by the disputes shall be resolved In accordance with the procedures clause set forth to paragr of the Department of Labor set forth in 20 CFR parts S.6,and 7.Disputes within the meaning of this clause include disputes 3.Withholding for unpaid wages and liquidated damages. between the contractor(or any of its subcontractors)and the The FMA or the contacting agency shall upon Its own action contracting agency,the U.S.Department of Labor,or the or upon written request of an authorized representative of the employees or their representatives. Department of Labor withhold or cause to be withheld.from any moneys payable an account of work performed by the 10.Certification of eligibility. other or subcontractor under any such contract or any other Federal contract with the same prime contractor,or any other fsdendy-aaelsted contract subject to the Contract Work a.By entering Into this contract,the contractor certifies that Hours and Safety Standards Act,which Is held by the some neither It(nor he or she)nor any person or firm who has an prime contractor,such sums as may be determined to be interest In the contractor's firm is a person or firm Ineligible to necessary to satisfy any liablfilies of such contractor or be awarded Government contracts by virtue of sedan 3(a)of subcontractor for unpaid wages and liquidated damages as the Davis-Bacon Ad or 29 CFR 5.12(ax1). pied in the clause set forth in paragraph(2)of this section. b.No part of this contract shall be subcontracted to any person or firm Ineligible for award of a Government contract by virtue 4.Subcontracts. The contractor or subcontractor shag Insert of section 3(a)of the 0avia-Bacon Act or 29 CFR 5.12(a)(1). In any subcontracts the douses set forth in paragraph(1.) through(4.)of this section and also a clause requiring the c.The penalty for making ate g false statements Is prescribed In the subcontractors to include these clauses in any lower tier U.S.Criminal Code, ld U.S.C.1 tate subcontracts.The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the douses set forth in paragraphs(1.)through(4.)of this section. FR-9 Exhibit 12-E Attachment B evidenced In writing and that It contains all pertinent provisions Vt.SUBLETTING OR ASSIGNING THE CONTRACT and requirements of the prime contracL This provision is applicable to all Federal-ald construction 5.The 30%aeK-performance requirement of paragraph(1)Is contracts on the National Highway System. not applicable to design-build contracts;however,contracting agencles may establish their own sell-performance 1.The contractor shall perform with Its awn organization requirements. contract work amounting to not less then 30 percent(or a greater percentage If specified elsewhere In the contract)of the total original contract price,excluding any specialty Items VII.SAFETY:ACCIDENT PREVENTION designated by the contracting agency. Specialty time may be performed by subcontract and the arrrcunt of any such T his provision Is applicable to an Federal-atd specialty items perfamred may be deducted from the total construction contracts and to an related subcontracts. original contract price before computing the amount of work required to be performed by the contractors own organization 1. In the performance of this contract the contractor shall (23 CFR 835.118). comply with an applicable Federal,State,and local laws governing safety,health,and sanitation(23 CFR 035).The a. The term'perform work with Its own organization'refers contractor shall provide all safeguards,safety devices and to workers employed or leased by the prime contractor,and protective equipment and take any other needed actions as It equipment owned or rented by the prime contractor,whh or determine,or as the contracting offioer may determine,to be without operators. Such tens does not include employees or reasonably necessary to protect the life and health of equipment of a subcontractor or lower tier subcontractor, employees an the job and the safety of the public and to agents of the prime contractor,or any other assignees. The protect property In connection with the performance of the tern may include payments for the casts of hiring leased work covered by the eontracL employees from an employee leasing firm meeting an relevent Federal and State regulatory requirements. Leased 2. It is a condition of this contract,and shall be made a employees may only be Included In this term If the prime condition of each subcontract,which the contractor enters Into contractor meets an of the following condition: pursuant to this contract,that the contractor and any subcontractor shall not permit any employee,In performance (1)the prime contractor maintains control over the of the contract,to work in surroundings or under condttions supervision of the day-to-day activities of the leased which are unsanitary,hazardous or dangerous to his/her employees; health or safety,as determined under construction safety and (2)the prime contractor remains responsible for the quality health standards(29 CFR 1928)promulgated by the Secretary of the work of the leased employees; of Labor,In accordance with Section 107 of the Contract Work (3)the prime contractor retains all power to accept or Hours and Safety Standards Act(40 U.S.C.3704). exclude Individual employees from work on the project;and (4)the prime contractor remains ultimately responsible for 3.Pursuant to 29 CFR 1928.3,it Is a condition of this contract the payment of predetermined minimum wages,the that the Secretary of Labor or authorized representative submission of payrolls,statements of compliance and all thereof,shall have right of entry to any site of contract other Federal regulatory requirements. performance to Inspect or Investigate the matter of compliance with the construction safety and health standards and to carry b.-Specially Items"shall be construed to be limited to work out the duties of the Secretary under Section 107 of the that requires highly specialized knowledge,abilities,or Contract Work Hours and Safely Standards Act(40 equipment not ordinarily available In the type of contracting U.S.C.3704). organizations qualified and expected to bid or propose on the contract as a whale and In general are to be limited to minor components of the overall contract. Vill.FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS 2.The contract amount upon which the requirements set forth In paragraph(1)of Section VI Is computed Includes the cost of T h I a p r o v 1 a 1 o n I a applicable to all Federel-aid material and manufactured products which are to be construction contracts and to all related subcontracts. purchased or produced by the contractor under the contract provisions. In order to assure high quality and durable construction In conformity with approved pians and specifications and a high 3.The contractor shall furnish(a)a competent superintendent degree of reliability on statements and representations made or supervisor who Is employed by the firth,has fun authority to by engineers,contractors,suppliers,and workers an Federal- direct performance of the work in accordance with the contract aid highway projects,It Is essential that all persons conoemed requirements,and is In charge of all construction operations with the project perforn their functions as carefully.thoroughly, (regardless of who performs the worts)and(b)such other of its and honestly as possible. Willful falsification,distortion,or own organizational resources(supervision.management,and misreprosentation with respect to any facts related to the engineering services)as the contracting officer determines is project Is a violation of Federal law. To prevent any necessary to assure the performance of the contract misunderstanding regarding the seriousness of these and similar acts,Folin FHWA-1022 shalt be posted on each 4.No portion of the contract shall be sublet,assigned or Federal-ald highway project(23 CFR 835)in one or more otherwise disposed of except with the written consent of the places where it Is readily available to all persons concerned contracting officer,or authorized representative,and such with the project: consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only atter the 18 U.S.C.1020 reads as follows: contracting agency has assured that each subcontract is FR-10 Exhibit 12-E Attachment B "Whoever,being an aHieer,agent,or employee of the United covered transaction.The prospective first tier participant shall States,or of any Slate or Territory,or whoever,whether a submit an explanation of why it cannot provide the certification person,association,firth,or corporation,knowingly makes any set out below.The certification or explanation will be false statement,false representation,or false report as to the considered In connection with the department or agency's character,quality,quantity,or cost of the material used or to determination whether to enter Into this transaction.However, be used,or the quantity or qualityof the work performed or to failure of the prospective first tier participant to furnish a be performed,or the cost thereof In connection with the certification or an explanation shall disqualify such a person submission of plans,maps,specifications,contracts,or costs from participation In this transaction. of construction an any highway or related project submitted for approval to the Secretary of Transportation;or e.The certlftcatlon in this dam Is a material representation of fact upon which reliance was placed when the contracting Whoever knowingly makes any false statement,false agency determined to enter into this transaction.N it Is later representation,false report or false claim with respect to the determined that the prospective participant knowingly rendered character.quafrty,quantity,or cost of any work performed or to an erroneous certification,in addition to other remedies be performed,or materials furnished or to be furnished,In available to the Federal Government,the contracting agency connection with the constn ctlon of any highway or related may terminate this transaction for cause of defaulL project approved by the Secretary of Transportation;or d.The prospective first tier participant shall provide Whoever knowingly makes any false statement or false Immediate written notice to the contracting agency to whom representation as to material fact In any statement,certificate, this proposal Is submitted if any time the prospective first Her or report submitted pursuant to provisions of the Federal-aid participant learns that its certification was erroneous when Roads Act approved July 1,1916,(39 Stat.355),as amended submitted or has become erroneous by reason of changed and supplemented; circumstances. Shall be fined under this tide or Imprisoned not more then 5 e.The terms"covered transaction,""debarred," years or both." "susmnded""Irnelegible,* participant,'"person," "principal," and"voluntarily excluded."as used In this clause,are defined In 2 CFR Parts 180 and 1200. `Finn!Tier Covered DL IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL Transactions'refers to any covered transaction between a WATER POLLUTION CONTROL ACT grantee or subgrantee of Federal funds and a participant(such as the prime or general contract). 'Lower Tier Covered This provision is applicable to all Federal-ald construction Transactions"refers to any covered transaction under a First contracts and to all related subcontracts. Tier Covered Transaction(such as subcontracts). 'First Tier Participant"refers to the participant who has entered Into a By submission of this bldiproposel or the execution of this covered transaction with a grantee or subgrantee of Federal contract,or subcontract,as appropriate,the bidder,proposer, funds(such as the prime or general contractor). `Lower Tier FedemWd construction contractor,or subcontractor,as Participant"refers any participant who has entered Into a appropriate,will be deemed to have stipulated as follows: covered transaction with a First Tier Participant or other Lower Tier Participants(such as subcontractors and suppliers). 1.That any person who is or will be utilized in the performance of this contract Is not prohibited from receiving an L The prospective first tier participant agneas by submitting award due to a violation of Section 508 of the Clean Water Act this proposal that,should the proposed covered transaction be or Section 306 of the Clean Air Act. entered Into,it shag not knowingly enter Into any lower bar 2.That the contractor agrees to Include or cause to be covered transaction with a person who is debarred, Included the requirements of paragraph(1)of this Section X In suspended,declared ineligible,or voluntarily excluded from every subcontract,and fuller agrees to take such action as participation In this coy red transaction,unless authorized by the contracting agency may direct as a means of enforcing the department or agency entering Into this transaction. such requirements. g.The prospective fast tier participant further agrees by submitting this proposal that it will include the clause tilled X.CERTIFICATION REGARDING DEBARMENT, "Certification Regarding Debarment,Suspension.Ineligibility SUSPENSION,INELIGIBILITY AND VOLUNTARY and Voluntary Excluslon-Lower Tier Covered Transactions," EXCLUSION provided by the department or contracting agency,entering Into this covered transaction,without modification,In all lower This provision is applicable to all Federal-akt construction der covered transactions and in all solicitations for lower tier contracts,design-build contracts,subcontracts,lower-tier covered transactions exceeding the$25,000 threshold. subcontracts"purchase orders,lease agreements,consultant contracts or any other covered transaction requiring FIRWA h.A participant In a covered transaction may rely upon a approval or that is estimated to cost$25.000 or more— as certification of a prospective participant in a lower der covered defined In 2 CFR Parts 180 and 1200, transaction that Is not debarred,suspended,Ineligible,or voluntarily excluded from the covered transaction,unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, 1.Instructions for Certification—First Tier Participants: debarred,or otherwise Ineligible to participate in covered transactions. To verify the eligibility of its principals,as wail as a.By signing and submitting this proposal,the prospective the eligibility of any lower tier prospective participants,each first tier participant Is providing the certification set out below. participant may,but Is not required to,check the Excluded Parties List System website(httms:/ .eois.gov/1,which is b.The inability of a person to provide the certification set out compiled by the General Services Administration. below will not necessarily result In denial of participation in this FRA I Exhibit 12-E Attachment B L Nothing contained In the foregoing shall be construed to this transaction originated may pursue available remedies, require the establishment of s system of records In order to including suspension and/or debarment render in good faith the certification required by this clause. The knowledge and Information of the prospective participant a The prospective lower tier participant shag provide Is not required to exceed that which Is normally possessed by immediate written notice to the person to which this proposal Is a prudent person In the ordinary course of business dealings. submitted if at any time the prospective lower tier participant le:ams that Its eertilfcatlon was erroneous by reason of j.Except for transactions authorized under paragraph(f)of changed circumstances. these instructions,If a participant In a covered transaction knowingly enters Into a lower tier covered transaction with a d.The terms"covered transaction,""debarred," person who is suspended,debarred,ineligible,or voluntarily "suspended,""Inellglble,""particlpant,""person,""principal," excluded from participation in this transaction,In addition to and"voluntarily excluded,"as used in this clause,aro defined other remedies available to the Federal Government,the In 2 CFR Parts 180 and 1200. You may contect the person to department or agency may terminate this transaction for cause which this proposal Is submitted for assistance In obtaining a or defaulL copy of those regulations. 'First Tier Covered Transactions` refers to any covered transaction between a grantee or ••••• subgrantee of Federal funds and a participant(such as the prime or general contract}. 'Lower Tier Covered Transactions' 2. Certification Regarding Debarment,Suspension, refers to any cowered transaction under a Firs!Tier Covered Ineligibility and Voluntary Exclusion—First Tier Transaction(such as subcontracts). 'First Tier Participant' Participants: refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds a. The prospective first tier participant certifies to the best of (such as the prime or general contractor). "Lower Tier Its knowledge and belief,that it and he principals: Participant'refers any participant who has entered Into a covered tnimuctlon with a First Tier Participant or other Lower (1) Are not presently debarred,suspended,proposed for Tier Participants(such as subcontractors and suppliers). debarment,declared ineligible,or voluntarily excluded from participating In covered transactions by any Federal t~The prospective lower tier participant agrees by department or agency; submitting this proposal that,should the proposed covered transaction be entered Into,It shall not knowingly enter Into (2) Have not within a three-year period preceding this any tower tier covered transaction with a person who Is proposal been convicted of or had a civil Judgment rendered debarred,suspended,declared Ineligible,or voluntedly against them for commission of fraud or a criminal offense In excluded from participation In this covered transaction,unless connection with obtaining,attempting to obtain,or performing authorized by the department or agency with which this a public(Federal.State or local)transaction or contract under transaction originated. a public transaction;violation of Federal or State antitrust statutes or commission of embezzlement,theft,forgery, f The prospective lower tier participant further agrees by bribery,falsificegon or destruction of records,making false submitting this proposal that It will Include this clause titled statements,or receiving stolen property; "Certification Regarding Debarment,Suspension,Ineligibility and Voluntary Excluslon-I-ower Tier Covered Trensactlon," (3) Aro not presently Indicted for or otherwise criminally or without modification,in all lower tier covered transactions and clvaty charged by a governmental entity(Federal.State or in all solicitations for lower tier covered transactions exceeding local)with commission of any of the oRer►ses enumerated In the$25,000 threshold. paragraph(a}(2)of this certification;and g.A participant In a covered transaction may rely upon e (4) Have not withln a three-year period preceding this certification of a prospective participant In a lower tier covered application/proposal had one or more public transactions transaction that Is not debarred,suspended,ineligible,cr (Federal,State or local)terminated for cause or defauft. voluntarily excluded from the covered transaction,unless it knows that the certification is erroneous.A participant Is b. Where the prospective participant is unable to certify to responsible for ensuring that Its principals are not suspended, any of the statements In this certification,such prospective debarred,or otherwise ineligible to participate In covered participant shag attach an explanation to this proposal. transactions. To verify the eligibility of Its principals,as well as the eligibility of any lower tier prospective particlpards,each 2.Instructions for Certification-Lower Tier Participants: participant may,but Is not requited to,check the Excluded Parties List System website iMtas:/ ecls.eov/l,which is (Apptieable to all subcontracts,purchase orders and other compiled by the General Services Administration. lower tier transactions requiring prier FHWA approval or estimated to cost$25.000 or more-2 CFR Parts ISO and h.Nothing contained In the foregoing shag be construed to 1200) require establishment of a system of records in order to rander In good faith the certification required by this clause.The a.By signing and submitting this proposal,the prospective knowledge and Information of participant Is not required to tower tier is providing the certification set out below. exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. b.The certification in this clause is a material representation of fact upon which reliance was placed when this transaction L Except for transections authorized under paragraph a of was entered Into.If it Is later determined that the prospective these instructions,if a participant in a covered transaction tower tier participant knowingly rendered an erroneous knowingly enters Into a lower tier covered transaction with a certification,In addition to other remedies available to the person who Is suspended,debarred,ineligible,or voluntarily Federal Government,the department,or agency with which excluded from participation in this transaction,In addition to other remedies available to the Federal Govemment,the FR-12 Exhibit 12-E Attachment B department or agency with which this transaction originated may pursue available remedies,including suspension and/or debarment. ..... Certification Regarding Debarment,Suspension, Insligibfllty and Voluntary hxcluslon—Lower Tier Participants: 1.The prospective lower tier participant certifies,by submission of this proposal,that neither It nor Its prindpals Is presently debarred,suspended,proposed for debarment, declared Ineligible,or voluntarily excluded from participating in covered transactions by any Federal department or agency. 2.Where the prospective lower tier participant is unable to certify to any of the statements In this ceR[flcetion,such prospective participant shall attach an explanstlon to this proposal. •..". XI.CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision Is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000(49 CFR 20). 1.The prospective participant cardfies,by signing and submitting this bid or proposal,to the best of his or her knowledge and belief,that- a. hata.No Federal appropriated funds have bean paid or will be paid,by or an behalf of the undersigned,to any person for intluendng or attempting to Influence an officer or employee of any Federal agency,a Member of Congress,an officer or employee or Congress,or an employee of a Member of Congress in connection with the awarding of any Federal contract,the making of any Federal grant,the making of any Federal loan,the entering into of any cooperative agreement, and the codancicn,continuation,renewal,amendment,or modification of any Federal contract,grant loan,or cooperative agreement. b.If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to Influence an offioer or employee of any Federal agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress In connection with this Federal contract,grant,loan,or cooperativeagreement, n red shat to�and submit Standard ort Lobbying,"In accordance with its instructions. 2.This certification Is a material representation of fed upon which reliance was placed when this transaction was made or entered Into. Submission of this certification Is a prerequisite for making or ordering into this transaction Imposed by 31 U.S.C.1352. Any person who fails to file the required cartiflcatien shag be subject to s civil penalty of not teas than $10,000 and not more than$100,000 for each such failure. 3.The prospective participant also egress by submitting Its bid or proposal that the participant shall require that the language of this certification be Included in all lower tier subcontracts,which exceed$100,000 and that all such recipients shag certify and disclose accordingly. FR-13 Exhibit 12-E Attachment B ATTACHMENT A-EMPLOYMENT AND MATERIALS S.The contractor shall include the provisions of Sections 1 PREFERENCE FOR APPALACHIAN DEVELOPMENT through 4 of this Attachment A In every subcontract for work HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS which Is,or reasonably may be,done as on-aite work. ROAD CONTRACTS This provision Is applicable to all Federal-aid projects funded under the Appalachian Regional Development Act of 1965. 1.During the performance of this contract,the contractor undertaking to do work which is,or reasonably may be,done as on-site work,shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work Is atiustad,or the subregion,or the Appalachian counties of the State wherein the contract work is situated,except s.To the extent that qualified persons regularly melding In the area aro not avellable. b.For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work. c.For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract,provided that the number of nonresident persons employed under this subparagraph(1c)shall not exceed 20 percent of the total number of employees employed by the contractor an the contract work,except as provided in subparagraph(4)below. 2.The contractor shall place a job order with the State Employment Service Indicating(a)the classifications of the laborers,mechanics and other employees required to perform the contract work,(b)the number of employees required In each classification,(c)the date on which the participant estimates such employees will be required,and(d)any other pertinent Information required by the State Employment Service to complete the job order form. The job order may be placed with the State Employment Service In writing or by telephone. If during the course of the contract work,the Information submitted by the contractor in the original job order Is substantially mom,the participant shall promptly natty the State Employment Servlre. 3.The contractor shag give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who,In his opinion,are not qualified to perform the classification of work required. 4.ff,within one week following the placing of a job order by the contractor with the State Employment Service,the State Employment Service is unable to refer any qualified job applicants to the contractor,or lees than the number requested,the State Employment Service will forward a certificate to the contractor Indicating the unsvallability of applicants. Such certincate shag be made a part of the contractor's permanent project records. Upon receipt of this certificate,the contractor may employ persons who do not normally melde In the labor area to III poddm cowered by the certificate,notwithstanding the provisions of subparagraph(1c) above. 5. The provisions of 23 CFR 633.207(e)allow the contracting agency to provide a contractual preference for the use of mineral reseuree materials native to the Appalachian region. FR-14 BID This Is EXHIBIT A,consisting of two pages, referred to In made and a part of the AGREEMENT between the OWNER and the CONTRACTOR BID TO: CITY OF SAN JUAN CAPISTRANO The undersigned Bidder proposes and agrees,if this Bid is accepted,to enter into an Agreement with the City in the form Included in the Contract Documents(as defined in Article 1 of the Construction Contract)to perform the Work as specified or Indicated in said Contract Documents entitled: IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION j CIP No.11805 Bidder accepts all of the terms and conditions of the Contract Documents,Including without limitation those in the Notice Inviting Bids and the Instructions to Bidders dealing with the disposition of the Bid Security. t This Bid will remain open for the period stated In the Notice Inviting Bids,unless otherwise required by law. Bidder will enter Into an Agreement within the time and In the manner required In the Instructions to Bidders,and will furnish the insurance certificates,Payment Bond,Performance Bond,and all Permits required by the Contract Documents. Bidder has read, understands, and will comply with the requirements of the requirements for the attached 'Federal Requirements For Federal-Aid Construction Projects." In addition the Bidder has completed the'Federal Requirements For Federal-Aid Construction Projects:" Exhibit 12E,Attachment A—The"Participation by Disadvantaged Business Enterprises In Subcontracting;(If applicable); Exhibit 12E;Attachment C—The Equal Opportunity Certification; Exhibit 12E,Attachment E—the'Debarment and Suspension Certification;' Exhibit 12E,Attachment G—the'Disclosure of Lobbying Activities Exhibit 15-G1 -the"Local Agency Bidder Underutilized Disadvantaged Business Enterprise(UDBE)Commitment;" Exhibit 15-G2—the'Local Agency Bidder Disadvantaged Business Enterprise(DBE)Information; Exhibit 15-H—the"UDBE Information—Good Faith Efforts'(If applicable) Bidder has examined copies of all the Contract Documents,Including the following Addenda(receipt of which is hereby acknowledged): Number Date It 15L -2— Number Number Date Number Date Number Date Bidder has familiarized itself with the nature and extent of the Contract Documents,the Work,the site,the locality where the Work is to be performed,the legal requirements(federal,state,and local laws,ordinances,rules,and regulations),and the conditions affecting cost,progress,or performance of the Work,and has made such Independent investigations as Bidder deems necessary. In conformance with the current statutory requirements of California Labor Code Section 1860,at seq.,the undersigned confirms the following as its certification: I am aware of the provisions of Section 3700 of the Labor Code,which require every employer to be insured against liability for workers compensation,or to undertake self-insurance in accordance with the provisions, before commencing the performance of the Work of this Contract. To all the foregoing,and Including all Bid Schedule(s),List of Subcontractors,Non-collusion Affidavit,Bidders General Information,and Bid Bond contained in these Bid Forms,said Bidder further agrees to complete the Work required under the Contract Documents within the Contract Time stipulated in said Contract Documents,and to accept in full payment therefor the Contract Price based on the Lump Sum or Unit Bid Price(s) named in the aforementioned Bidding EXHIBIT A amu. ."d BID(PROPOSAL) "d"Z001 BID FORMS-PAGE 1 Schedule(s). �{/ f,, Dated: L/b3L— Bidd,,; C {� AI"j C4 1<1 " L VLA By: 9t ��nn taiy��eWre) TiOe: b-r,i KiVL�- T�tiGIL{tLt-�" FOflMw BID(PROPOSAL) Hmim�`p° BID FORMS-PAGE 2 INFORMATION REQUIRED OF BIDDER LIST OF SUBCONTRACTORS As required under Section 4100,at seq.,of the Public Contract Code,the Bidder shall list below the name and business address of each subcontractor who will perform Work under this Bid In excess of one-half of one percent of the Conbaclofs Total Bid Price,and shall also list the portion of the Workwhich will be done by such subcontractor. Aflerthe opening of Bids,no changes orsubsdtuticns will be allowed except as otherwise provided bylaw. The listing of more than one subcontractor for each Item of Work to be performed with the words'and/or"will not be permitted. Failure to comply with this requirement will render the Bid as non-responsive and may cause its rejection. Contactors License Work to be Performed Number Subcontractors Name 8 Address 1 94 lig 5a"CZ5 IV V WIREz 3 4 5 6 7 B 1 rom^u+�o LIST OF SUBCONTRACTORS ow mw q BID FORMS-PAGE 8 NON-COLLUSION AFFIDAVIT TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID State of California ) as. County ofLtnT ) I. b-(�Val KL vil . being i ,,first duly sworn, deposes and says that he or she Is CVt �11LSI O�TM.� of LLVl tf KI VI,Lt CA ..the party making the foregoing Bid,that the Bid is not made in the Interest of,or on behalf ,any undlsclosed person,partnership, company,association,organization,orcorporetion;that the Bid Is genuine and not collusive or sham;that the Bidder has not directly or indirectly induced or solicited any other Bidder to put In a false or sham Bid,and has not directly or indirectly colluded,conspired,connived,or agreed with any Bidder or anyone else to put in a sham Bid, or that anyone shall refrain from bidding; that the Bidder has not in any manner, directly or Indirectly,sought by agreement,communication,or ocnference with anyone to fix the Bid price of the Bidder or any other Bidder,or to fix any overhead,profit,or cost element of the Bid price,or of that of any other Bidder, or to secure any advantage against the public body awarding the Contract of anyone Interested In the proposed Contract; that all statements contained in the Bid are true; and,further, that the Bidder has not, directly or indirectly, submitted his or her Bid price, or any breakdown thereof, or the contents thereof, or divulged Information or data relative thereto,or paid,and will not pay,any fee to any corporation,partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham Bid. Bidder t , v r/r. -CS G. By Title bi(,b Y/� dYM.'{" Organization / InGV t< 1c I YlA CIO SVIC Address 29)4 (a Gt-V/.�Y lh�t /'flit • MRU v.eo NON-COLLUSION AFFIDAVIT '"jppia'ngO BID FORMS-PAGE 9 Jurat State of California County Of Subscribed and mom to(or affirmed)before me on this_ 2'u" day of NBV t.Wt b(— 20_L2:_ by y t2 YGt 1<I E!4 proved to me on the basis of satisfactory evidence to be the personKwho appeared before me. �- , Sipatme (I:otar.seal) �---fig•' OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM Ax ui,o(dlJ an roanpleaed In CdiibmlagPerlanuary 1.2W8 mmr be In rheform aaaxje A wI&ic lhxc Jmat there areno exaspima.l/aduror in h ronralerN does not follow Mur form. he mean most correcl the rcrb'age by acing ahoar Music oenminug Me mnc wn 1,or almchlnea xlararrj he on ao A m this ma watch din mnrdn proper wNin,¢ /n DESCR�'CION OF THEATTACHED DOCUMENT fiver n, he nosy rare ngdrc an oath or qMe,, of from rhr do, Th( signer ngauclW the ul AFTneaa n'Meronttne of the document. Par Nem II �JI ,atooay sac6e cgated&re-jthe oathort4theXoral/rArdoeumemsvar (title ardamipdav afauvLed d«Imem7 pmima(Y tired,irmn br rc-asrMlnfront ofNrnvrarypub(in durine the Sealre and Cepnd c (Tick or desengivnofatuehW daummleoetivved) owry mfoslaution ran he the State eM Cwhom We document,iter(,)pcnwally eppealdbe(art Ue notary public.lm. Number of Pages Document Date • Date of Imariatioa moat be the dale that be sire,(,)pecr nail, cppmrtd Which mon also be the same Jute the jurat process is worplOw. • Pubic too aallm(a)ord ummt sires)who iconically appear at ate lime of oma eadua (AJdieeml bfmmalian) • Strath,of the tmary public non euW ae aircere on file wiW the tree ofthe touary ekes. • The once,sal imp essiov most be clear end photoaeaphically mpmducble. Impression must cot cover test or loves.Ifaeal'unpreesion smudges,ne-acal if suff ient me pertains,otherwise complete a diaocrujunt bon. a Aions[ivfomation is not required but could help to 1.this j=u out mismed m vNehcd to a diaartnt documml. L IvJicotc line ar type of almchW document,number vfpega mad Nle. • StturtlY aNch lira docwant to the signml docmnrnt 2008Vcrsion CAPA,1.9.07 800473-9865 www.NotaryClasses.com BIDDER'S GENERAL INFORMATION The Bidder shall furnish the following Information. Failure to complete all Items will cause the Bid to be non-responsive and may cause its rejection. 1. BIDDER/CONTRACTOR'S Name and Street Address: rA'1&V I-as 1<, nc1 ('o DOC. 2t<ll (aAVA-r ice A-VK4 S'I pial 111 aA 6107r7 2. CONTRACTOR'S Telephone Number: (502_) y 26 —2q 74 Facsimile Number: .,�i (562)�274 b — 91 t)* E-mail address C 2 4_9 C V C'. CO 3. CONTRACTOR'S License: Primary Classification /4/ State License Number(s) 7 39 9-S b Supplemental License Classifications I)VI 4. Surety Company and Agent who will provide the required Bonds on this Contract: Name of Surety Tj VS4- ^imh ryna I IVIS 01v of hyln?A we —. Address A.Iwd . W-ec+ si3on Surety Company Agent I--e5YUYi— k { _ Telephone Numbers: Agent(71k ) ,qI ' 2 Surety( 'boo) '763 —gZ,6yf 5. Type of Finn(Individual,Partnership or Corporation): t7Y��i.-a+r 0✓l 6. Corporation organized under the laws of the State of: dN t I f'r( rt.t.0_ 7. List the names and addresses of the principal members of the firm or names and titles of the principal officers of the corporation or firm: V - kinA -P te-GS/P-C c4-m"Q 5- . V1 tS ki AA Vr r 111{'-nS row,vam BIDDER'S GENERAL INFORMATION .nwza,a...ye BIO FORMS -PAGE 10 w.aio+ BIDDER'S GENERAL INFORMATION (Continued) 8. Number of years experience as a contractor in this speck type of construction work:L 9. List at least three related projects of comparable size and complexity completed to date: 1. Owns Cl fir at Fcm 1 ae :Ct Address 211 NJdn rF `reit 1 (a- 4t a4 r.4Contact'l/A L I A CO 1 'f?- Class of work(eore+ I /e (LL12c( yay k 'r Phone L621g31 -2527 Contractamount--1 `(2q O0O Project((&JI P.t�t P v k le?.I ate completed 1-:�120( I 2. OwnerGf4yTIT Addre"g211 Tapp 66t YpyM J& Sl Wtr Vcflky L,¢ Contact IbLidad Class ofworkpayf; * ✓L(0.fYlt_ Phone(Q - Contractamount-�1 25�t 004 Project( ,YA l A,f6 -,VII-1`b Date completed g 'ZO I'L 3. OwnertMJA Befte1, WOO& I�lfliddress 1900 E Ward lay., LM YetrA '(A � — ContactPoll VPXCfi('rd Class ofworkfCyviCxr Phone g^kg�t:�' 570—1397 Contract amount L 00 O Project C& sow 1 Date completed ��ZO I I 10. List the name and tide of the person who will supervise full-time the proposed work for your firm: k via // 11. Is full-time supervisor an employee /contract services_7 12. A financial statement or other information and references sufficiently comprehensive to permit an appraisal of your current financial condition may be required by the Engineer. will bt suPpllTeC ..... uLivoYi red weO . wsra usm BIDDER'S GENERAL INFORMATION ciao+ma.ws BID FORMS-PAGE 11 ne moi BID BOND Bond No. 115 KNOW ALL MEN BY THESE PRESENTS, That Charles Ring Company, Inc. as Principal,and First National Insaur meCompany f Am rice as Surely,are held and firmly bound Unto The City or San Juan Capistrano,hereinafter called the"Owner In the sum of Teti PERCENT OF THE AMOUNT OF THE BID (10S) xxxxxxxxxxxxxxxxxxx dollars (nd lase Nan 10 eercenl of We loaf amount of ow bid) for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators,successors,and assigns,jointly and severally,firmly by these presents. WHEREAS,said Principal has submitted a Bid to Bald Owner to perform the Work required under the Bid Schedule(s)of the Owner's Contract Documents enlilled- IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION CIP No,11605 NOW THEREFORE,if said Pdncipal is awarded a Contract by said Owner,and within the time and in the manner requhed In the"Notice Inviting Blds"and the'lnsauclions to Bidders^enters into a wdllen Agreement on the Form of Agreement bound with said Contract Documents, furnishes the required Certificates of Insurance,and furnishes the required Performance Bond and Payment Bond,than this obligation shall be null and void,m n3miss It Shall remain In full tome and effect. In the event suit Is brought upon this Bond by said Owner,and Owner prevails,Bald Surety shall pay all costs Incurred by said Owner in such suit,including a reasonable attorneys fee to be fixed by the court. SIGNED AND SEALED,this 91:11 day of November pp 12 Charles Ring Company Inc. (SEAL) (SEAL AND NOTARIAL By_��_" ACKNOWLEDGMENT OF SURETY) (SEAL) Debra R. Ring — President (SEAL) First xtio 1 IneyT^ance Company of America BY: sv ) (manelure) Ryan . Mantle — Atto y in Fact BID BOND(BID SECURITY FORM) " .H BID FORMS-PAGE 12 California All-Purpose Acknowledgement State of California) County of i Los Angeles On (� �•'�2 before me, Sarah Criseuolo ,a Notary Public personally appeared Debra Klnq who proved to me on the basis of satisfactory evidence to be the person(K whose nari is/aM subscribed to the within instrument and acknowledged to me that W she/tW executed the same in Q(slherlt fd@ authorized ^_ •'��,"'"; ca acit (AG , and that b p y ) y F)0er/thy4r signaturc04 on the instrument the person($L or the entity upon behalf - = of which the personN 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. WITNESS my hand and official seal. �f/ A . . L— Notary Public Seal Notary Public Signature OPTIONAL Description ofAttachedDocumlent Title or Type of Document:Y/[O I d( isdMLL Document Date: Number of Pages: Signers)Other than Named Above: Capacity(ies)Claimed by Signer(s) O Individual ❑Individual go Corporate Officer:Pres./Sad.Tres. ❑Corporate Officer. ❑Partner- ❑Limited>General Ll Panner- ❑Limited O General ❑Attomey-in-Fact ❑Attomey-in-Fact ❑Trustee ❑Trustee ❑Guardian or Conservator ❑Guardian or Conservator O Other: ❑Other: Signer is Representing: Signer is Representing: THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 5449783 T•»i Pgwer of Attorney limits the acts of those named herein,and they have no authority to bled the Company except In tine ntanuter artd to the extant herein stated. Certificate No. Flrst National Insww=Cco pang otArmhWo General Insurance Company of America Safeco Insurance Company of America POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS: That Fest National insuranoe Company of America,General Insurance Company of Amato,and Safeco lnsuranca Company of America are aorporstions duly oWrtized trader the laws of the State of Now Hampshire(herein collectively called the Twpanies'),pursuant to and by authority herein set forth.does hereby name,consiEhrtte and appobt Las m.uAwu;RYAN&uANTu...._ all of the city at PuuPmom state of CA each 6hdvidualy 17tihere be mtore than one named,itstrueand frond and deliver,for and on Its behalf as surety and as its ad and deed,any and all and In pure,nce of Mese adurowsaand shag be as blrxUg upon the Companies 89 It they have been du ��bonds,reoogrdzances axil other surety abligattorta,In pursuance of tlmase presents end y signed by the president and attested by the secretary of the Companles In their own proper persons. IN WITNESS WHEREOF.this Poorer of Atlamey has been subscribed by an authA d dim or ol6aal of the Ccrmp m and the corporate seats of the Companies have been allbW thereto flits 27m day of JUNE sols . bN�E C .aGECOQ ~% 4` = a� ;.,•R'i;+: JT:�'J` �< First National Mum=Company of America 1928 1923 I� �(, 1953" !T General lnsuraneeCompany ofAmerica a I mm I;\!_ > �.Y�`L y'� J`��-•,y�P jar SafeoD Insurances Company of America m By: YrD Gregory w Davenport,Assistant Secretary .o C i STATE OF WASHINGTON as COUNTY OF KNG R E w On this 27th day of JUNE 2012 .before me personally � gory W.Dm�pA who acluvoiedged himself to be the Assistant Secretary of First Nsttonal out c U m thsmranc�e Cortpany of America,General tnhsmrartce Company of Amerce,and Sateoo trmsmaartoe Company ct Arrmertca,and timet he,as strctm,befog autlladzed so to do,exeade tine °fA "63 faregotg Instrument for the purposes therein cortained by signtg on behalf of the corporations by hftelf as a duty authorized of&aer. tv a. m EE IN WITNESS WHEREOF,I have hereunto subscribed my name and affixed my notarial seal at Seattle.Washington,on the day and year first above w liten. a 1C,bLi'i,tf�. C j KD May.Not"Miblic 3 W riE This Power of Attorney b made and executed puxsuaxd to and by aux nilly of the Mooft By larr and Authorizations of First National Insummoe Company of knerica,Generel 2 o mom" hm m=Company dAmerica,and Safeco insurance Company otAmarloa,which are now In full(once and effect rea ft as follows: R mARTICLE N—OFFICERS—Section 12.Power of Attorney, Any officer or other official of the Corporation authorized for that purpose in writhg by the Chairmanw the President and � m p c su*d to such itntiation as the Chairman or the President may prescribe,shall appoint such attarteys-h-fact,as my be necessary to ad in behalf of the Corporation to make,execute, 9 m E ai seal,acknowledge and defhrer as surely any and all undwkkhV%bonds,reoogniza oss and other surely obligations. Such attcrnerAn4ad,emrb)ed to the Tarnflatiorms set forth In their `o respective powers of allorrrmey,shag have tug power to bund the Cerporatiort by their signature and executed,such Insbunterds shall be as Wdirtg as If signed by the PMWOnt and attested to by the Secretary. My power or authority granted to any representative or ettomey-ht-fact under ft provisions of this article may be revoked at any time by the Board.the m cCletmmh,the President or by the officer or officers Wwft such power or authority. �CIA . Certificate of Designation—The President of the Company.edtg pursuant to the bylaws of the Company,auAhadzes Gregory W.Davenport Assistant Secretary to appoint such 11 M Zo allomeys.49ad as may be necessary to ad on behalf of th Company to wAe.execute.seat admowlallp and deliver as surely any and al and ,hands,recognizanoss and o 0 other surely obrgadons, v m Authorizalion—By unanlmous consent of the Company's Board of Dltedas,the Company consents that fame or marina C Nally reproduced sigrmturre of any assistant secretary of the Company, wherever appearing upon a cetified copy of any power of attorney issued by the Company In connection with surety bonds, shag be valid and bidhg upon lite Company with the same faros and effect as though rmmararaly afbled. I,David K Carey.the undest ted.Ascent Secretary,of First NatiOrel Insurance Company of Anmerkx,General Insurance Company of America,and Safeco Insurance Company of America do hereby w*that the original power of attorney of which the foragolng Is a fu%true and correct copy of the Power of Attomey executed by said Companies,is In full farce and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed the sM of ea d Companies this 9th day d Novettaher.2012 19J181'r 1923 `- 195. -){Ijt David M.Carey. taut Secretary POA-FNICA,GICAS SICA LMS_12074 041012-3 Compwv f i, Local Assistance Procedures Manual EXHIBIT IS-GI Local 4geucy Bidder UDBE Commitment(Constriction Contracts) EXHIBIT 15-61 LOCAL AGENCY BIDDER UDBE COMMITMENT(CONSTRUCTION CONTRACTS) NOTE:P RE T NSTRUCTIONS ON THE REVERE SIDE OF THOS FORM IACALAOHNCY: LOCATION: _ PROJECT DESCRIPT(ON: 16/W 26A [WAW 1919U" OR Pp"A-16r ';L-1 TOTAL CONT'R'AyT AIVOUNT.s BID DATE: {4I BIDDER'S NAM8' IC446M 91W2 CONTRAt:f lJDHB GOAL: NTRACT 'TEM OP WOkK AND DESCRIPTION DBE CURT N0. ME OF EACH UDBE LLAR AMOUNT ITEM NO RSERVICESTO BE ND EXPIRATION (Must beoertiflod an thodate bids DBE UBCOWMCTEDORMA'TERIALS DATE roopened-include UDBE TO B6 PROVIDED(or contracted lrthe ntW PIS numbo) ddor if a UDBE) For Local Agency to Complete: Total claimed LMBE 3 Local Agency Canbw Number: Participation — u/o Faderal-aid ProjeciNumba: Federal Shote: Conboa Avlatd Data: r Local Agency txfdAw that all UD86 certitiatlorrs have baa verified and Sl o oreidder infbmtatioa is complete and accurate. 1 / 1l, �' 7 Due �1 �i (Atm de)TaI.No. Printme NaSignal= Dam /// �r"! Local Agency Reptssentattva Person to ConWa Pleara Typr ar Pant) (Area Code)Talephono Number: toad Aaen.y Biddu unne CbMmivnenl(Cowtrwtio*C-tnQu) (Rev 6►JM) I)tstrlbutlan: (1)Origirat—Local Agency files I Page 15,31 LFP 09-02 Sulr 31,2009 Local Assistance Procedures Manuel EXHIBIT 15-02 Local Agency Bidder DEE Information(Construction COmolels) EXHIBIT 1542 LOCAL AGENCY BIDDER DBE INFORMATION(CONTRUCTION CONTRACTS) (Inclusive of all DBEs including the UDBEs listed N bid proposal) NOTE.-O LEASE JTO INSTRUCTIONS ON THE REVERSE EIDE O'F�THIS 1FORM LOCALAOEPI Y' 'S� iM L(OrCAATT�IO,rNII��{7ry 4W MIMAW PRO)lUTDW=PTONW ��t}ssl�¢J� "14l�) P1PELh& fY .'slS TOTAL CONTRAI�l1C��A—�MOO ..T9 BD DATE OMDER'S NAME///••• --- " 1ONTRA(7TUD1E00AL: /JO cW1TltAL7 TTEMDPWORKANDDESC ION OBE MT NO. NAME OF EACH DOE df RAMOUNT REM NO. ORSaltvICDS TO DE ANDEIWIRATION D82 DRWNTRACTEDORMATERIAIS DATE rtopnnud,Inc1Wc DbEcd. 9EPROMED(o...*nctcdir . na Mone-ot,cr) IJdr ne HDP. For Local Agency to Complete: Toml aelmnaoaE s Local Nency Coneeet Number: PetliciPJen redenbnd Pm4n Number Wo Feceol slum Gmon Awnd Dam'. Looe)A{e cy coshes that all DBE cnifuJon hoc bem vedled end InAmnllon ie eomplae Intl we.nm. 91{vnn uleiddar Prin Neme Simvmm Deft 'pyft tpna futic)hl.No Lod AEeoey AepmeenmJm fArx GST Aone Numbar For Caltrans Review: Plvenmeonun IeaetyPccvein) Prost Nemo SiCWeve Der Lpd NmevnN]rr DatanlinNe ;([nuvr+Im eevmv) Glbms DiWiet Leal Aoblenee En{itm D4tribution: (I)Gpy-PeaorfmnpeePyrotlu Wens Dhttitl LVO)Assielenm fiNircv(DI.AE7 xiNb:iS Wye ofun�nctexem�tlon.Riluero nmtl a egrym 6a DLAEwINIn IS Wya olmnaece neaten mrymaull In dooNi{etlon offu�lor Ule project (})GPY-ln[IWa N ewd pehp{o b Waw DimiGlaal Amiylenn p)Ori{net-Incl e{enry frlw Page]5-32a LFP 09-02 Joly 31,2009 K-39 a This is Page 1 of Exhibit B consisting of 9 pages,referred to in and made a part of the AGREEMENT between the OWNER and the CONTRACTOR. BID SCHEDULE CIP No.11805 1-5 ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION ITEM ITEM DESCRIPTION UNIT ESTIMATED UNIT ITEM NO. QUANTITY PRICE COST GENERAL ' 1. Mobilization. L.S. Lump sum Lump sum Ifnalo Sheeting, Shoring and Bracing, 2' Complete and In Place L.S. Lump sum Lump sum $ Jrb�QO Storm water pollution control/BMP/ 3. Diversion and control of water. L.S. Lump sum Lump sum $ DD Soil Testing for Hydrocarbons at 4' Chevron West Location L.S. Lump sum Lump sum $ Iwo Disposal of Hydrocarbon 5' Contaminated Soil C'Y' 150 C.Y. $ 1160 $ !7 Abandon AC Pipe In Place (This 6 shall include Capping the pipe and LY filling the pipe to be abandoned with 1,900 L.F. $ $ sand) IT 1 DD Remove and Dispose of AC Pipe, From STA 10+80 to STA 12+97; 7A. this shall include legal disposal and L.F. 217 L.F. $ $ proper handling of the AC pipe;Pipe shall be excavated by Caltrans Remove and Dispose of AC Pipe, Within Future Ramp Area;this shall 7B. include legal disposal and proper L.F. 200 L.F. $ $ handling of the AC pipe; Pipe shall be excavated by Caltrans ?� Excavate, Remove and Dispose of Miscelaneous AC Pipe; this shall 7C. include legal disposal and proper L.F. 150 L.F. $ $ �7go handling of the AC pipe Exhibit B FORM U-M UMT PRICE UNIT PRICE BID SCHEDULE Hw Nov 2oo>I 001 wod BID FORMS-PAGE 1 ITEM ESTIMATED UNIT ITEM NO. ITEM DESCRIPTION UNIT QUANTITY PRICE COST Excavate, Remove and Dispose of AC Pipe from STA I5+90 to STA 18+35(Remove only ifthere are 7D. conflicts with W6 and W6A) ; this L.F. 245 L.F. $ $ shall include legal disposal and 85. proper handling of the AC pipe Utility Relocations for Water and Sewer Work Items per U-1 through 8 U-3 of the Caltrans Drawings, L.S. Lump sum Lump sum 7000 Complete and In Place r PRE-CALTRANS—PIPELINE W7 9. Implement Traffic Control for W7 L.S. Lump sum Lump sum $ SOO Supply and Install 8" PVC, C900, 10. DR14, PR 305, Complete and In L.F. 38 L.F. $ $ Place Connection of W7 to Existing 11. Pipeline at STA 0+93.47, Complete L.S. Lump Sum Lump Sum $ 246and In Place oil Connection of W7 to Existing Pipeline at STA 1+26.26, Including 12. Reducer and 6" Gate Valve L.S. Lump Sum Lump Sum $ Complete and In Place Relocate Existing Fire Hydrant and Install new Lateral and Gate Valve at 13. STA 0+93.47 Per CSIC STD DWG L.S. Lump Sum Lump Sum $ W-7 and W-13, Complete and In Place l0 pOQ PRE-CALTRANS—PIPELINE W6, W613 and W6C Implement Traffic Control for W6, 14. W6B and W6C L'$' Lump sum Lump sum $ 500 Supply and Install 12" PVC, C900, t;.F. 268 L.F. Place Connection of W6 to Pipeline W12 L.S. Place 3 0 , II Connection of Pipeline W6 to W6B Iv at STA 28+99.31 Including 12"DIP Tee,3- 12"Gate Valve and Fittings, Emp Lump Sum Complete and In Place 77 raouaU-M Fnweuxz uxn unite UNIT PRICE BID SCHEDULE e w 201 BID FORMS-PAGE 2 ESIMVIATED UNIT ITEM NOM ITEM DESCRIPTION UNIT QUANTITY PRICE COST Supply and Install 2" Blow Off at 18. STA 28+99.35 Per CSIC STD DWG L.S. Lump Sum Lump Sum $ W-11 Complete and In Place Supply and Install 12" PVC, C900, 19. DR 14, PR 305, (W6B) Complete L.F. 51 L.F. $ 5 $ ` and Place Connection to Pipeline W6A to W613 0 at STA 19 140.99 Gemplet, And Tn 12 Lump L Place 0 Supply and Install 12" PVC, C900, 21. DR 14, PR 305, (W6C) Complete L.F. 42 L.F. $ and Place Ot d Relocate and Install New Fire Hydrant, Gate Valve and Lateral at 22. STA 29 +12.04 Per CSIC STD L.S. Lump Sum Lump Sum $ DWG W-7 and W-13,Complete and /O In Place Connection to Existing 14" ACP 23. Waterline at STA 29+41.26 L.S. Lump Sum Lump Sum $ Complete and In Place D 24. Supply and Install 14" Linestop L.S. Complete and In Place Lump Sum Lump sum $ Remove and Dispose of Existing Steel Casing on 14"ACP Pipe(Only the Piping Interfering with the New 25. Pipeline Installation), Including L.F. 50 L.F. $ $ Removal and Disposal of 14" ACP Pipe inside casing Complete and In Place PRE-CALTRANS -FIRE HYDRANT AND SEWER WITH PIPELINE W6 Relocate Existing Fire Hydrant Lateral and Two(2)Meters Per CSIC Lump Sum Lump Sum $ Hydrant Lateral Below Caltrans Wall No. 80 Complete and In Place Supply and Install New 48"Manhole DWG 80l &S. ump um ump um 5 PR&CALTRANS—PIPELINE W6A,W61) and W6E Implement Traffic Control for W6A, 28. L.S. W61)and W6E Lump sum Lump sura $ MWUu :uxnmice UNIT PRICE BID SCHEDULE BID FORMS-PAGE 3 NOM ITEM DESCRIPTION UNIT UANTITY PRICE OST Supply and Install 12" PVC, C900, 29. DR 14, PR 305, (W6A), Complete L.F. 225 L.F. $ $ and Place Connection of W6A to Pipeline W3 30. at STA 16+16.00 Complete and In L.S. Lump Sum Lump Sum $ goo Supply and Install 12"Gate Valve at 31. STA 17 +70.00 per CSJC STD L.S. Lump Sum Lump sum $ 3 3oD DWG W-13.Com leteandInPlace Supply and Install 12" PVC, C900, 32. DR 14, PR 305, (W6D), Complete L.F. 102 L.F. $ 5S $ and Place ftim Supply and Install 12" PVC, C900, 33. DR 14, PR 305, (W5E), Complete L.F. 10 L.F. $ 17f $ �0 and Place S Temporary Connection of W61) to 34. W6E at STA 520+44.92 Per Detail H L.S. Lump Sum Lump Sum $ on Sheet 26 Complete and In Place Supply and Install 2" Blow-Off, 35. STA 520+64.77 (W6D) per CSJC L.S. STD DWG W-11, Complete and In Lump sum Lump sum $ Place 7 Apo Connection of W6E to Existing 14" Pipeline at STA 520+54.91, 36. Including 12"Gate Valve Per CSJC L.S. Lump Sum Lump Sum $ STD DWG W-11 Complete and In Place Supply and Install 14"Linestop 37. Complete and In Place L'S' Lump Sum Lump sum IlIt 404 Supply and Install New Water Service Lateral and Meter Pat CSJC STD DWG W-2, Below Caltrans 38. Wall Footing,Including Connections L.S. Lump Sum Lump sum $ to Existing 14" ACP and Abandoning Existing Water n�� Services Complete and In Place / CALTRANS STAGE 2B—PIPELINE W8A,W4 and Wl 39. Implement Traffic Control forW8A, W4 and WI L.S. Lump sum Lump sum $ Supply and Install 8" PVC, 0900, 40. DR14,PR305,(W8A)Completeand L.F. 280 L.F. $ q $ 5 In Place FEW wa .e ansa UNIT PRICE BID SCHEDULE Noi 3001 BIDFORMS -PAGE 4 ITEM ITEM DESCRIPTION UNESTIMATED UNIT ITEM NO. UANTITY PRICE COST Supply and Install 2" Blow-Off, 41. STA 6+98.68 per CSJC STD DWG L.S. Lump sum Lump sum $ W-11 Complete and In Place Um Connection of W8A to Existing. 42. Pipeline at STA 6+31.33+/- L.S. Lump sum Lump sum $ 6 Complete and In Place Connection of 8A to Existing 43. Pipeline at STA 8+88.69, Including L.S. 1"Air Vac per CSJC STD DWG W- Lump sum Lump sum $ 95 16 Complete and In Place (.� Supply and Install 12" PVC, C900, Ju5,C" Complete arid L.F. 39 L.F. $ $ In Place / Supply and Install 12" DIP Tee, Fittings and 2- 12" Gate Valve and 45. End Caps at STA 7+40.00 Complete L.S. Lump Sum Lump Sum $ /5 and In Place Supply and Install 2" PRV, Fittings and 2-8"Gate Valves 46. at STA 7 +40.00 Complete and In L.S. Lump Sum Lump Sum $ /, 3DO Place Supply and Install 12" PVC, C900, 47. DR 14,PR 305,(W 1),Complete and L.F. 221 L.F. $ $ Place Supply and Install 4" Blow Off at 48. STA 9+09.00 Per CSJC STD DWG L.S. Lump Sum Lump Sum $ O W-3 Complete and In Place Supply and Install Gate Valve and Fire Hydrant at STA 8+85.00 Per 49. CSJC STD DWG W-7 and W-13, L.S. Lump Sum Lump Sum $ ryry Complete and In Place JGY� Connection to Pipeline W2 at STA 50. 9+51.26(8+77.00) Complete and In L.S. Lump Sum Lump Sum $ /_ y� Place Y' G CALTRANS STAGE 1F—PIPELINE W2,W3A,W4A AND W12A Implement Traffic Control for W2 51. and W3A L.S. Lump sum Lump sum $ Supply and Install 12" PVC, C900, 52. DR 14,PR 305,(W2),Complete and L.F. 143 L.F. $ S Place Place Connection of W2 to Pipeline W3A 53. at STA 10+00.00 Complete and In L.S. Lump Sum Lump Sum $ O� Place roweuao:uwrmice UNIT PRICE BID SCHEDULE xneumn Mwpe "� + BID FORMS-PAGE 5 ITEM ESTIMATED UNIT ITEM NO. ITEM DESCRIPTION UNIT QUANTITY PRICE COST Connection of W2 to Pipeline WI at 54. STA 8+77.00 Complete and In Place L.S. Lump Sum Lump Sum $ Supply and Install 2" Pipeline 55. Bypass,Including all Appurtenances, L.S. Lump Sum Lump Sum $ Complete and In Place Supply and Install 12" PVC, C900, 56. DR 14, PR 305, (W3A), Complete L.F. 291 L.F. $ $ and Place Connection W3A to Pipeline W3 at 57. STA 12+87.00 Complete and In L.S. Lump Sum Lump Sum $ dyOD Place Supply and Install 12" PVC, C900, 284 L.F. and Place Connection W12A to Pipeline W12 at STA "U87,00 Complete aud L, T S Lamp Surn p Place \l. Supply and Install 12" PVC, C900, , -eL.F. and Place / S Connection to 12" Bend at STA 10+10.00,Including 4"Blow Off Per 61. CSJC STD DWG W-3 and 2" Air L.S. Lump Sum Lump Sum $ Vac Per STD DWG W-16,Complete /jam pri0 and In Place / SEWER STA 7+48.50 Plug and Abandon 62. Existing Sewer Main and Cleanout, L.S. Lump Sum Lump Sum $ D Com Tete and In Place CALTRANS STAGE 2B—PIPELINE W3 AND W12 Implement Traffic Control for W3 63. and W 12 L.S. Lump sum Lump sum $ 0� Supply and Install 12" Steel Pipe CML and Epoxy Coated, Class 150, (W3) Including the Steel Casing for 64. a portion of the Pipeline,and the L' F' 329 L.F. $ $ 12" PVC, C900, DR 14, PR 305, ^,meg q,[ �5 Complete and In Place ' 7 Supply and Install Double Ball 65. Expansion Joint Complete and In E.A. 4 E.A. $ 7300 $ � Place wwu umz ""*a+KE UNIT PRICE BID SCHEDULE BID FORMS-PAGE 6 ITEM ITEMDESCRIPTION UNIT ESTIMATED UNIT ITEM NO. UANTITY PRICE COST Supply and Install 2" Air Vac per 66. CSJC STD DWG W-16 Complete E.A. 2 E.A. $�3DD $ and In Place ©0 Supply and Install 12" Steel Pipe CML and Epoxy Coated,Class 150, N 12 Including the Steel Casing for a portion of the Pipeline,and the E.F. 12" PVC, C900, DR 14, PR 305, Complete and In Place gill W& EASEMENT—PIPELINE W6F AND W6G(WORK TO BE DONE WITH W5 AND W5A) Implement Traffic Control for W6F 68' and W6G L.S. Lump sum Lump sum $ �� Supply and Install 12" PVC, C900, 69. DR 14, PR 305, (W6F), Complete L.F. 28 L.F. $ $ f and Place Supply and Install 2" Air/Vac at STA 520+39.23 Per CSJC STD 70. DWG W-16,(W6F)Complete and In LS DWG Lump Sum Lump Sum $ Place O Connection of W6F to Pipeline W61) 71. at STA 520+45.06 Complete and In L.S. Lump Sum Lump Sum $ Place Supply and Install 12" PVC, C900, 72. DR 14, PR 305, (W6G), Complete L.F. 28 L.F. $ $ and Place Supply and Install 2" AirNac at STA 520+3923 Per CSJC STD 73. DWG W-16, (W6G) Complete and L.S. Lump Sum Lump Sum $ In Place t� Supply and Install 2"Service Lateral Per CSJC STD DWG W-7 and W-2, 74. Fire Hydrant and 6"Gate Valve Per L.S. Lump Sum Lump Sum $ CSJC STD DWG W-13, Complete and In Place O Connection W60 to Pipeline W6E at 75. STA 520+44.92 Complete and In L.S. Lump Sum Lump Sum $ 3 Place Connection to Pipeline W5 at STA 520+17.62 Including 12"Tee and 76. 3-12"-Gate Valves Complete and In S. Lump Sum Lump Sum $ Place OLb FORM uanx unn RRR:e UNIT PRICE BID SCHEDULE ..wma�R.m° BIDFORMS-PAGE 7 ITEM rrF.M DESCRIPTION UNrr ESTIMATED UNIT ITEM NO. UANTITY I PRICE COST SEWER Supply and Install New 48"Manhole at STA 19+20.00 Per CSJC STD 77. DWG 801, Including Plugging and L.S. Lump Sum Lump Sum $ Abandoning Existing Sewer, Complete and In Place EASEMENT-PIPELINE W5(WORK TO BE DONE WITH W6F AND W6G) Supply and Install 12" PVC, C900, 78. DR 14,PR 305,(WS),Complete and L.F. 644 L.F. $ $ Place Qv- Connection of W5 to Existing 12" ACP Pipeline at STA 513+97.84 79. Including 12"Gate Valve Complete L'S' Lump Sum Lump sum $ and In Place EASEMENT—PIPELINE W5A(WORK TO BE DONE WITH W6F AND W6G) Supply and Install 6" PVC, C900, 80. DR14, PR 305, Complete and In L.F. 79 L.F. $ $, Place Connection of WSA to Existing 81. Pipeline at STA 514+40.82, L.S. Lump Sum Lump Sum $ Complete and In Place Connection of WSA to Existing 82. Pipeline at STA 515+22.05, L.S. Lump Sum Lump Sum $ 7 Complete and In Place Abandon In Place Private 6" PVC 83. Pipe, Complete and In Place L.F. 150 L.F. J $ $ EXISTING STEEL PIPE Remove Existing Steel Pipe from the 84. Bridge to be Demolished and L.S. Lump Sum Lump sum $�5 Dispose of the Steel Pipe WSCELLANEOUS PIPE APPUTENANCES Install I"Air Vac Tap,43 8'North of Ortega Hwy on Rancho Viejo Road, 85. Including all Required Traffic L.S. Lump Sum Lump sum $ Control, As Directed by the CSJC, Complete and In Place FORM U-M2 WO PMCE UNIT PRICE BID SCHEDULE WY 2 o�n.wpa BID FORMS-PAGE 8 ITEM ITEM DESCRIPTION UNIT ESTIMATED UNIT ITEM NO. QUANTITY PRICE COST Install 1"Air Vac Tap,North End of Galan Way,Including all Required 86. Traffic Control, As Directed by the L.S. Lump Sum Lump sum S CSJC Complete and In Place Install 1"Air Vac Tap,352' East on Ganado Road,Including all Required 87. Traffic Control, As Directed by the L.S. Lump Sum Lump sum $ CSJC Complete and In Place Install 2"Blow Off Per CSJC STD DWG W-11, 1300'South of Ortega Hwy(Blow Off Location is approximately 200 feet west of the 88. west end of Calle Arroyo),Including L'S' Lump Sum Lumpsum $ all Required Traffic Control, As Directed by the CSJC,Complete and In Place Install I"Air Vac Tap,733'North of Ortega Hwy on Avenida Los 89. Cerritos, Including all Required L.S. Lump Sum Lump sum $ Traffic Control, As Directed by the CSJC Complete and In Place Install I"Air Vac Tap, 127'North of Ortega Hwy on Avenida Los 90. Cerritos, Including all Required L.S. Lump Sum Lump sum $ Traffic Control, As Directed by the CSJC Complete and In Place /aJ MISCELLANEOUS Supply and Install All Work Items 91. Not Included in the Items Listed L.S. Lump Sum Lump sum $ I aq �,61 Above Complete and In Place TOTAL BID PRICE: $ 119 9 01 113 OP L MILLIOr,I l✓r� rlrroyir� pl�w5.ctt/ "C(M�5(�-N) OC't- EWwN tSO j'6{ tt2J'S.w Dollar amount in written form �OLIg Additive Bid Items: None mnu uam urm�cr UNIT PRICE BID SCHEDULE xoruamux..m w^'r0° BID FORMS-PAGE 9 32400 PAsw A=Amro �yAYl UMM OF T"E my OWma SAN JOAN CAPISTRANO,CA 92879 (949)4931171 114111 .J SMALL WAM (949)4931083 PA% j WHO IAURArREE6E uuuno 1961 LAMY KROAM wmasanjuancopitlrano.oig 1776 DEREcnEEVE • • JOM UVLOR Mr. Robert Enriquez, Chief September 29, 2012 RNV Utilities Branch Attention John Dykman State of California Dept of Transportation, Dist. 12 3347 Michelson Dr., Ste. 100 Irvine CA 92612-8894 Re: 12-ORA-5, 74-PM EA-OE3101 Relocation Claim Letter, Revised Dear Mr. Enriquez: This letter replaces the City of San Juan Capistrano's claim letter of April 14, and adds additional claims that have since been discovered. This letter covers the claim by the City of San Juan Capistrano (San Juan) for impacts to its water and sewer system created by the above referenced project. It also places the relocation claims in context of related projects that are not a matter of any relocation claim. The City's total relocation claim amount is: $1,038,157; lessened by a depreciation credit of $112,233;_for an adjusted claim amount of 925 933 The City is asking for reimbursement of its incurred costs including construction costs based on bids, and a proportionate share of Engineering, and Construction Management services obtained by a competitive selection process, along with a proportionate share of the staff and overhead costs. Please find attached: Exhibit A, Plan Set: titled the 1-5 and Ortega Highway Interchange Pipeline Relocation" for the relocation work conducted by San Juan; breaking down and detailing the work elements for the water sewer lines falling within or adjacent to the project; Exhibit B, Cost Summary and Division dated 10/29/2012: A matrix of the work items responding to the information requested in Caltrans' Relocation Claim ATTACHMENT 2 Letter of 0313112011. The Cost Summary and Division, details the division of cost between Caltrans and the City; Exhibit C, 1-5x Pipeline Cost Estimate: Estimate used to calculate the cost of the major cost components used in the Cost Summary and Division; Exhibit D, Cost of Minor City Utilities Relocations per Caltrans Sheets U-1 to U-7; Exhibit E, Easement documentation for W5 pipeline relocation; Exhibit F, Documentation regarding pre-existing right of line replaced by W1, W2, W3A, W3, and W6a. The elements of work are depicted in Exhibit A, the Plan Set for the relocation work along with the rational for the claims of compensation are described below. Exhibit B details the amount of the claims. W1/ Sheet 7 of 26: A replacement 12-inch PVC water line in the new alignment of Ortega Hwy -to replace existing 8-inch ACP line between station 7+40 and 9+51 on line "H". If left in its position relative to the newly created parcel, the existing pipeline bisects the property, as opposed to traveling adjacent to the property line. This complicates the continued maintenance and operation of the pipe line upon the construction of future structures over the property line. This line predates the 15 and is in City right of way. See the discussion on the cover of Exhibit F regarding the pre-existing right of this line prior to Caltrans 1-5 Right of way. W2/Sheet 8 of 26: A replacement 12-inch PVC water line in the new alignment of Ortega Hwy from Station 8+77 to Station 10+00 of line "B". If left in its position relative to the newly created parcel, the existing pipeline bisects the property, as opposed to traveling adjacent to the property line. This complicates the continued maintenance and operation of the pipe line upon the construction of future structures over the property line. This line predates the 15 and is in City right of way. See the discussion on the cover of Exhibit F regarding the pre- existing right of this line prior to Caltrans 1-5 Right of way. W3A/Sheet 8 of 26: A replacement 12-inch PVC water line in the new alignment of Ortega Hwy from Station 10+00 to Station 12+87 of line "B". Line W3A must be relocated to allow the installation of the Geofoam in this area. This line predates the 15, and is in City right of way. See the discussion on the cover of Exhibit F regarding the pre-existing right of this line prior to Caltrans 1-5 Right of way. W3/ Sheet 9 of 26: A replacement 12-inch Welded Steel water line, including welded Steel casings passing through bridge abutments, within a cell in the 1-5 Bridge. The water line will have flex ball connections at each end, in a vault structure to allow access and maintenance. The reconstruction of this line is required since the existing line travels in a portion of existing bridge scheduled for demolition. This line predates the 15. See the discussion on the cover of Exhibit F regarding the pre-existing right of this line prior to Caltrans 1-5 Right of way. W4/Sheet 8 of 26: A replacement 12-inch PVC water connecting line W1 to the point of connection with the existing pipeline. Line W1 predates the 15 and is in City right of way. See the discussion on the cover of Exhibit F regarding the pre- existing right of W1 prior to Caltrans 1-5 Right of way. W5. W6E, & W6G/ Sheets 14,11, & 12 of 26: A replacement 12-inch line on the east side of the north bound off ramp to replace line displaced by the new north bound off ramp/ on ramp. The line W5 replaces predates the 15; having been placed in an easement on private property east of the Caltrans Right of Way. Segments W6E & W6G are needed to connect W5 its original completion line. See the discussion on the cover of Exhibit E regarding the pre-existing rights of W5 prior to the expanded Caltrans 1-5 Right of way. W5A/ Sheet 13 of 26: The existing line is on private property and is privately owned. The line must be relocated as part of Caltrans's property acquisition for its north bound off ramp. The City is relocating the line for Caltrans since the City is equipped to do so. The City is asking Caltrans for re-imbursement of its costs. W6/ Sheet 10 of 26: A new 12-inch line constructed as a parallel line to the original line crossing the freeway. The City is constructing it as part of its Downtown Master Plan. The City is not requesting funds from Caltrans for this work. (Note that line W6 is parallel to line W6a.) W6A & W6131 Sheets 10 & 11 of 26: A replacement 12-inch for an existing 8- inch line that has a prior right. The City is replacing this line at its own expense to avoid operational and maintenance concerns, and complications brought about by the relocation of lines W6C — W6E, and the construction of lines W12, and W6. W610, W6101, W6E, W6Fl Sheets 10. 11, & 12 of 26: A replacement 12-inch for an existing 14-inch line that crosses the Ortega Hwy at a diagonal and travels in what will be in the future the center alignment of the north bound off ramp and the north bound looped on-ramp. The existing line is being replaced to avoid dangerous working conditions for operations and maintenance in the future. The City is replacing this line at its own expense. W7/ Sheet 13 of 26: A new 8-inch connection line from 14-inch line in Rancho Viejo to 6-inch line in Ganado Way. This work is off site from the project, but needed as part of the proper abandonment of the decommissioned 4-inch and 8- inch lines in Ortega Hwy related to work elements W-11, and W6D. The City is constructing this line at its own expense. W8/ no sheet: Abandon existing below ground PRV in A. L. Cerritos. This work has been cancelled. No cost issues apply. W8a/ Sheet 6 of 12: A new 8-inch PVC water line in the new alignment of Ortega Hwy between station 6+31 and 8+89 on line "H". This project is a City project with no cost implications for Caltrans. This line is in City right of way. W9/ Caltrans Sheets U-1 to U-7: Relocations, service removals, valve and manhole adjust to grade for City facilities in Caltrans right of way. No cost to Caltrans. W101 no sheet: Dropped. No cost to Caltrans. W11/ Sheets 11. & 13 of 26: Abandon in place the existing 8-inch steel line and 4-inch ACP line in Ortega Hwy between Ave Los Cerritos and Rancho Viejo. Run new service lines to remaining 14-inch line in Ortega Hwy to replace connection disrupted by abandonment of 8-inch steel line. W12A/ Sheet 8 of 26: A new 12-inch PVC water line, between station 10+10 and 12+87 on line "B". This line is to be parallel to W3a. This line is in City right of way. The City is constructing it as part of its Downtown Master Plan. No Cost to Caltrans. W12 / Sheet 9 of 26: A new 12-inch Welded Steel water line, including welded Steel casings passing through bridge abutments, within a cell in the 1-5 Bridge, between station 10+10 and 12+87 on line "B." This line is to be parallel to W3. The City is constructing it as part of its Downtown Master Plan. No Cost to Caltrans. W13/ Caltrans Sheets U-1 to U-7: Relocations, service removals, valve and manhole adjust to grade for City facilities in the City's right of way. The City is requesting reimbursement for the expenses. W4a/ Sheet 8 of 26: A new 12-inch, at station 10+10 on line "B." This line is an extension of the westerly end of line W12a. The City is constructing it as part of its Downtown Master Plan. No Cost to Caltrans. S11 Sheets 8 & 12 of 26, and Caltrans Sheets U-1 to U-7: Abandon sections of existing sewer structures, and sewer lines, and attached laterals in Del Obispo and Ortega Highway. S2/ Sheets 6 & 12 of 26, and Caltrans Sheets U-1 to U-7: Construct relocated sewer structures to remove existing structures from high traffic areas. The Structure on Del Obispo will be in the center of the traffic lane; the structure in Ortega Hwy will be fall in the alignment of the north bound off ramp and north bound on ramp traffic. The relocated structures will be in median areas. If you have any question please contact me at 949.487.4312, or via e-mail at ebauman(osanivancaoistrano ora. Sincerely, City of San Juan Capistrano — Public Works Eric Bauman Utilities Engineer CC: Keith Van Der Masten, Director Utilities Enclosures: Exhibits A, B, C, D, E, & F STATE OF CALIFORNIA-DEPARTMENT OF TRANSPORTATION PAGE 1 OF 1 REVISED NOTICE TO OWNER RW 134R(Rev.0112009) NOTICE TO OWNER Dist. County Route KP(PM) E.A. 12 ORA 5 8.519.4 OE5701 Federal Aid No.: NIA Number 12-UT-1122 Owners File: Date: October 29, 2009 Freeway: [X] Yes [ ] No REVISION I-DATED September 10,2012 This revision is acknowledged and agreed to by the Owner referred to herein. By: To: City of San Juan Capistrano Utilities Department 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Because of the State Highway construction project: In the City of San Juan Capistrano,construct an auxiliary lane and widen the south bound Camino Capistrano Off-Ramp, Ramp Intersection and Camino Capistrano Frontage Road on Interstate 5 in Orange County, Which affects your facilities: Existing 2 air vac cans along Camino Capistrano at approximately 31 ft Lt of"A"Linc;Sta 134+46 and 134+75,within the limits of the State proposed construction project, You are hereby ordered to: relocate your existing 2 air vac cans,and per your plan Typical Cross Section X-2 as redlined,consisting of 1 (one)sheet;Air&Vacuum Relief Valve Assembly STD.No. W-16 as redlined,consisting of two (2)sheets,all in order to clear the State's proposed construction project, Your work schedule shall be as follows: schedule your forces to perform your relocation concurrent with State's Construction Contract 12-OE5704,and as directed by the State's Resident Engineer. Notify Resident Engineer Saeed Mandavi,at telephone number(949)509-5023, 72 hours prior to initial start of work,and 24 hours prior to subsequent restart when your work schedule is interrupted. Liability for the cost of the work is: The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under the provisions of Section 703 of the Streets and Highways Code. BRENT GREEN Acting District 12 Director RICKY RODRIGUEZ R/W Project Delivery Manager rc 2 CC: Ct Design ROBERT P. E U EZ R/W District 12 ►Tt' rty :ordinator 'CHIS NOTICE DOES NOT CONSTITUTE A PERMIT. OBTAIN AN ENCROACHMENT PERMIT BEFORE STARTING WORK. Attachment 3 STATE OF CALIFORNIA•DEPARTMENT OF TRANSPORTATION Page 1 of 4 UTILITY AGREEMENT RW 13-5(Rev.6/2012) DISTRICT COUNTY ROUTE POST MILE PROJECT ID 12 ORA 5 8.5/9.4 12-0000-0103 (EA OE5701) FEDERAL AID NUMBER: N/A OWNER'S FILE NUMBER: FEDERAL PARTICIPATION: On the Project ❑ Yes ® No On the Utilities ❑ Yes ® No Owner Payee Data No. VC0000023703 or Form STD 204 is attached. ❑ UTILITY AGREEMENT NO. 12-UT-1122 DATE The State of California,acting by and through the Department of Transportation,hereinafter called"STATE,"proposes to widen the southbound Camino Capistrano Off-Ramp,Ramp Intersection and Camino Capistrano Frontage Road on and adjacent to Interstate 5 in the City of San Juan Capistrano in Orange County,and City of San Juan Capistrano,Utilities Department-Water,32400 Paseo Adelanto, San Juan Capistrano,California 92675, hereinafter called"OWNER,"owns and maintains 2 air vacs,within the limits of STATE's project,which requires relocation to accommodate the STATE's project. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Revision 1,dated September 10,2012, of Notice to Owner No. 12-UT-1122, dated October 29,2009, OWNER shall relocate your 2 Air Vacs and attendant water facilities, in order to clear the State's construction project. All work shall be performed substantially in accordance OWNER's Plan,Typical Cross Section X-2 as redlined, consisting of one(l)sheet;Air&Vacuum Relief Valve Assembly STD.No. W-16 as redlined,consisting of two(2) sheets,a copy of which is on file in the District office of the Department of Transportation at 3347 Michelson Drive, Suite 100,Irvine,CA 92612-8894. Deviations from the OWNER's plan described above initiated by either the STATE or the OWNER,shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by the STATE and agreed to/acknowledged by the OWNER, will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prig to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. H. LIABILITY FOR WORK The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under provisions of Section. 703 of the Streets and Highways Code. UTILITY AGREEMENT(Cont.) Page 2 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 III. PERFORMANCE OF WORK OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding procedure,and to furnish or cause to be furnished all necessary labor, materials,tools, and equipment required therefore,and to prosecute said work diligently to completion. Use of out-of-state personnel(or personnel requiring lodging and meal"per diem"expenses)will not be allowed without prior written authorization by STATE's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary preliminary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-State personnel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the STATE's Department of Personnel Administration travel expense guidelines. Pursuant to Public works Case No.2001-059 determination by the California Department of Industrial Relations dated October 25,2002,work performed by OWNER's contractor is a public work under the definition of Labor Code section 1720(a)and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK The STATE shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five(5)copies of OWNER's itemized bill,signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead,compiled on the basis of the actual and necessary cost and expense.The OWNER shall maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that the STATE will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the STATE for the"used life"or accumulated depreciation of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. Not more frequently than once a month,but at least quarterly,OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work. Payment of progress bills not to exceed the amount of this Agreement may be made under the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by STATE of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to the STATE within 360 days after the completion of the work described in Section I above. If the STATE has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I of this Agreement,and STATE has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements(if required)for OWNER's facilities, STATE will provide written notification to OWNER of its intent to close its file within 30 days and OWNER hereby acknowledges,to the extent allowed by law,that all remaining costs will be deemed to have been abandoned. If the STATE processes a final bill for payment more than 360 days after notification of completion of OW'NER's work, payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. UTILITY AGREEMENT(Cont.) Page 3 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement,and less any amounts covered by progress billings. However,the STATE shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by STATE. Except, if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I, a copy of said revised Notice to Owner shall suffice as documentation.In either case, payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125%of the estimated cost of this Agreement,an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill. Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement, shall have the prior concurrence of STATE. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors.Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR,Chapter 1,Part 31,et seq.,23 CFR,Chapter 1,Part 645. If a subsequent State and/or Federal audit determines payments to be unallowable,OWNER agrees to reimburse STATE upon receipt of STATE billing. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of STATE's request of January 26, 2009,to review, study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If STATE's project,which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER, STATE will notify OWNER in writing and STATE reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. All obligations of STATE under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit a Notice of Completion to the STATE within 30 days of the completion of the work described herein. It is understood that said highway is a Federal aid highway and accordingly,23 CFR, Chapter 1, Part 645 is hereby incorporated into this Agreement. UTILITY AGREEMENT(Cont.) Page 4 of RW 13-5(Rev.62012) UTILITY AGREEMENT NO. 12-UT-I 122 IN WITNESS WHEREOF,the above parties have executed this Agreement the day and year above written. STATE: OWNER: City of San Juan Capistrano, C Utilities Department-Water By 0 1/ 12- By(Siga) _ Robert Enriquez ate Name(Print) Date District 12 Utility C ordma[or, Right of way Title APPROVAL RECOMMENDED: By L�_ ). leho Q- By JO Ailliactordinator kman Date Name Date Title FTHIS AGREEMENT SHALL NOT BE EXECUTED BY THE STATE OF CALIFORNIA-DEPARTMENT OF TRANSPORTATION UNTIL FUNDS ARE CERTIFIED DO NOT WRITE BELOW-FOR ACCOUNTNG PURPOSES ONLY PLANNING AND MANAGEMrNI 10 COMPLETE UNSHADED FIELDS: UTILITY COMPLETES: T DOCUMENT' CHG PROJECT SPECIAL OBJ DOLLAR CODE NUMBER SUFFIX DIST UNIT DIST m PHASE DESIGNATION FFY FA CODE AMOUNT UA 14. 1 CIE 51 C '1 1 13 117 1054 $31,000.00 uA a Jct PROJECT IDLING VERIFIED: REVIEW/REQUEST FUNDING: Si n,> ) -� ' 7 1 Si > let 001JL- Print> Evan elina Washingtq Date I Prim> John Dykman Date R/W Planning and MAna ement Utility Coordinator THE ESTIMATED COST TO THE STATE FOR ITS SHARE OF THE ABOVE DESCRIBED WORK IS$ 31.000.00. CERTIFICATION OF FUNDS FUND TYPE PROJECTID AMOUNT 1 hereby certify upon my own personal knowledge that budgeted Design Funds 1200000103 (1) $ 0.00 funds are ava for the period and purpose of the expenditure Construction Funds 1200000103 4 $ 0.00 shown here. �n1 R/W Funds 1200000103 9 $ 31,000.00 Planning Manuremenl j Date ITEM I eHAP I STA ' FY .AMOUNT a66o-301 - w Distribution: 2 originals to R/W Accounting I original to Utility Owner 1 original to Utility File STATE OF CALIFORNIA a DEPARTMENT OF TRANSPORTATION Page I of 4 UTILITY AGREEMENT RW 13-5(Rev..6/2012) DISTRICT COUNTY ROUTE POST MILE PROJECT ID 12 ORA 5 8.5/9.4 12-0000-0103 (EA OE5701) FEDERAL AID NUMBER: N/A OWNER'S FILE NUMBER: FEDERAL PARTICIPATION: On the Project ❑ Yes ® No On the Utilities ❑ Yes ® No Owner Payee Data No. VC0000023703 or Form STD 204 is attached. ❑ UTILITY AGREEMENT NO. 12-UT-1122 DATE The State of California,acting by and through the Department of Transportation, hereinafter called"STATE,"proposes to widen the southbound Camino Capistrano Off-Ramp, Ramp Intersection and Camino Capistrano Frontage Road on and adjacent to Interstate 5 in the City of San Juan Capistrano in Orange County,and City of San Juan Capistrano,Utilities Department-Water,32400 Paseo Adelanto, San Juan Capistrano, California 92675, hereinafter called"OWNER,"owns and maintains 2 air vacs,within the limits of STATE's project, which requires relocation to accommodate the STATE's project. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Revision 1,dated September 10,2012,of Notice to Owner No. 12-UT-1122,dated October 29,2009, OWNER shall relocate your 2 Air Vacs and attendant water facilities, in order to clear the State's construction project. All work shall be performed substantially in accordance OWNER's Plan,Typical Cross Section X-2 as redlined, consisting of one(1)sheet;Air&Vacuum Relief Valve Assembly STD.No. W-16 as redlined,consisting of two(2) sheets,a copy of which is on file in the District office of the Department of Transportation at 3347 Michelson Drive, Suite 100, Irvine, CA 92612-8894. Deviations from the OWNER's plan described above initiated by either the STATE or the OWNER,shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by the STATE and agreed to/acknowledged by the OWNER, will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. H. LIABILITY F'OR WORK The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under provisions of Section 703 of the Streets and Highways Code. UTILITY AGREEMENT(Cont.) Page 2 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 III. PERFORMANCE OF WORK OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding procedure,and to furnish or cause to be furnished all necessary labor, materials,tools,and equipment required therefore,and to prosecute said work diligently to completion. Use of out-of-state personnel(or personnel requiring lodging and meal"per diem"expenses)will not be allowed without prior written authorization by STATE's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary preliminary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-State personnel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the STATE's Department of Personnel Administration travel expense guidelines. Pursuant to Public works Case No.2001-059 determination by the California Department of Industrial Relations dated October 25,2002,work performed by OWNER's contractor is a public work under the definition of Labor Code section 1720(a)and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK The STATE shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five(5)copies of OWNER's itemized bill, signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead,compiled on the basis of the actual and necessary cost and expense.The OWNER shall maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that the STATE will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the STATE for the"used life"or accumulated depreciation of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. Not more frequently than once a month, but at least quarterly,OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work. Payment of progress bills not to exceed the amount of this Agreement may be made under the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by STATE of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to the STATE within 360 days after the completion of the work described in Section I above. If the STATE has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I of this Agreement,and STATE has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements(if required) for OWNER's facilities, STATE will provide written notification to OWNER of its intent to close its file within 30 days and OWNER hereby acknowledges,to the extent allowed by law,that all remaining costs will be deemed to have been abandoned.If the STATE processes a final bill for payment more than 360 days after notification of completion of OWNER's work,payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. UTILITY AGREEMENT(Cont.) Page 3 of 4 RW 13-5(Rev. 6/2012) UTILITY AGREEMENT NO. 12-UT-1122 The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement, and less any amounts covered by progress billings.However, the STATE shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by STATE.Except,if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I,a copy of said revised Notice to Owner shall suffice as documentation.In either case,payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125%of the estimated cost of this Agreement,an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill. Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement,shall have the prior concurrence of STATE. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors.Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR,Chapter 1,Part 31,et seq.,23 CFR,Chapter 1, Part 645. If a subsequent State and/or Federal audit determines payments to be unallowable,OWNER agrees to reimburse STATE upon receipt of STATE billing. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of STATE's request of January 26,2009,to review,study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If STATE's project,which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER, STATE will notify OWNER in writing and STATE reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. All obligations of STATE under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit.a Notice of Completion to the STATE within 30 days of the completion of the work described herein. It is understood that said highway is a Federal aid highway and accordingly,23 CFR,Chapter 1, Part 645 i5 hereby incorporated into this Agreement. UTILITY AGREEMENT(Cont.) Page 4 of 4 RW 13-5(Rev.62012) UTILITY AGREEMENT NO. 12-UT-1122 IN WITNESS WHEREOF,the above parties have executed this Agreement the day and year above written. STATE: OWNER: City of San Juan Capistrano, Utilities Department-Water By _c.c' /7 /C- Z- By(Sign) Robert Enriquez Dat Name(Print) Date District 12 Utilityoordmator, Right of Way Title APPROVAL RECOMMENDED: By n I By John "man ate Name Date Utility Claordinalor Title THIS AGREEMENT SHALL NOT BE EXECUTED BY THE STATE.OF CALIFORNIA—DEPARTMENT OF 77771 TRANSPORTATION UNTIL FUNDS ARE CERTIFIED DO NOT WRITE BELOW-FOR ACCOUNTNG PURPOSES ONLY PLANNING AND MANAGEMENT TO COMPLETE UNSHADED FIELDS: UTILITY COMPLETES: T I DOCUMENT `- CHG PROJECT SPECIAL OBJ DOLLAR CODE NUMBER DIST UNIT DIST ID PHASE DESIGNATION FFY FA CODE AMOUNT UA 22 'f?': r�. IJ- `I Ih 7 054 $31,000.00 PROJECT ID FUNDING VERIFIED: REV IEW/REQUEST FUNDING: Si n:> Iz ( + I sosa> i1 IrtIJC - Print> Ev ngelina Washington Date Pnnt> John Dykman Date R Plannine and Management Utih Coordinator THE ESTIMATED COST TO THE STATE FOR ITS SHARE OF THE ABOVE DESCRIBED WORK IS$31.000.00. CERTIFICATION OF FUNDS FUND TYPE PROJECT ID AMOUNT I hereby certify upon my own personal knowledge that budgeted Design Funds 1200000103 I $ 0.00 funds are availabl the period and purpose of the expenditure Construction Funds 1200000103 4 $ 0.00 shown here. ) R/W Funds 1200000103 (9) E 31,000.00 Plannir. & lana amen[ Date fl'EM CHAP STAT ' FY AMOUNT ZGEx; -3et- ,2012 h 31 p"C U. O� Distribution: ',originals to R/W Accounting I original to Utility Owner 1 original to Utility File STATE OF CALIFORNIA•DEPARTMENT OF TRANSPORTATION Page 1 of 4 UTILITY AGREEMENT RW 13-5(Rev.6/2012) DISTRICT COUNTY ROUTE POST MILE PROJECT ID 12 ORA 5 8.5/9.4 12-0000-0103 (EA OE5701) FEDERAL AID NUMBER: N/A OWNER'S FILE NUMBER: FEDERAL PARTICIPATION: On the Project ❑ Yes ® No On the Utilities ❑ Yes ® No Owner Payee Data No. VC0000023703 or Form STD 204 is attached. ❑ UTILITY AGREEMENT NO. 12-UT-1122 DATE The State of California,acting by and through the Department of Transportation,hereinafter called"STATE,"proposes to widen the southbound Camino Capistrano Off-Ramp, Ramp Intersection and Camino Capistrano Frontage Road on and adjacent to Interstate 5 in the City of San Juan Capistrano in Orange County,and City of San Juan Capistrano,Utilities Department-Water,32400 Paseo Adelanto, San Iuan Capistrano,California 92675, hereinafter called"OWNER,"owns and maintains 2 air vacs,within the limits of STATE's project,which requires relocation to accommodate the STATE's project. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Revision 1,dated September 10,2012,of Notice to Owner No. 12-UT-1122,dated October 29,2009, OWNER shall relocate your 2 Air Vacs and attendant water facilities, in order to clear the State's construction project. All work shall be performed substantially in accordance OWNER's Plan,Typical Cross Section X-2 as redlined, consisting of one(l)sheet;Air&Vacuum Relief Valve Assembly STD.No. W-16 as redlined,consisting of two(2) sheets,a copy of which is on file in the District office of the Department of Transportation at 3347 Michelson Drive, Suite 100, Irvine,CA 92612-8894. Deviations from the OWNER's plan described above initiated by either the STATE or the OWNER, shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by the STATE and agreed to/acknowledged by the OWNER, will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. H. LIABILITY FOR WORK The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under provisions of Section 703 of the Streets and Hilhwayy Code. UTILITY AGREEMENT(Cont.) Page 2 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 III. PERFORMANCE OF WORK OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding procedure, and to furnish or cause to be furnished all necessary labor, materials,tools, and equipment required therefore, and to prosecute said work diligently to completion. Use of out-of-state personnel(or personnel requiring lodging and meal "per diem"expenses)will not be allowed without prior written authorization by STATE's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary preliminary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-State personnel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the STATE's Department of Personnel Administration travel expense guidelines. Pursuant to Public works Case No.2001-059 determination by the California Department of Industrial Relations dated October 25,2002, work performed by OWNER's contractor is a public work under the definition of Labor Code section 1720(a)and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK The STATE shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five(5)copies of OWNER's itemized bill, signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead,compiled on the basis of the actual and necessary cost and expense.The OWNER shall maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that the STATE will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the STATE for the"used life"or accumulated depreciation of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. Not more frequently than once a month,but at least quarterly, OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work. Payment of progress bills not to exceed the amount of this Agreement may be :Wade under the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by STATE of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to the STATE,within 360 days after the completion of the work described in Section I above.If the STATE has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I of this Agreement,and STATE has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements(if required)for OWNER's facilities, STATE will provide written notification to OWNER of its intent to close its file within 3J days and OWNER hereby acknowledges, to the extent allowed by law,that all remaining costs will be deemed to have been abandoned.If the STATE,processes a final bill for payment more than 360 days after notification of completion of OWNER's work, payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. UTILITY AGREEMENT(Cont.) Page 3 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement,and less any amounts covered by progress billings.However,the STATE shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by STATE. Except, if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I,a copy of said revised Notice to Owner shall suffice as documentation.In either case,payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125%of the estimated cost of this Agreement,an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill.Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement,shall have the prior concurrence of STATE. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors.Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR,Chapter 1,Part 31,et seq.,23 CFR,Chapter 1, Part 645. If a subsequent State and/or Federal audit determines payments to be unallowable,OWNER agrees to reimburse STATE upon receipt of STATE billing. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of STATE's request of January 26,2009,to review, study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If STATE's project,which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER,STATE will notify OWNER in writing and STATE reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. All obligations of STATE under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit a Notice of Completion to the STATE within 30 days of the completion of the work described herein. It is understood that said highway is a Federal aid highway and accordingly, 23 CFR, Chapter 1,Part 645 is hereby incorporated into this Agreement. UTILITY AGREEMENT(Cont.) Page 4 of RW I3-5(Rev. 6/2012) UTJLITY AGREEMENT NO. 12-UT-1122 IN WITNESS WHEREOF,the above parties have executed this Agreement the day and year above written. STATE: OWNER: City of San Juan Capistrano, Utilities Department-Water to , By /?- /1 /Z By(Sign) _ Robert Enriquez Date Name(Print) Date District 12 Utility oordinator, Right of Way Title APPROVAL RECOMMENDED: By I'a l'o i By John bAman Date Name Date Utility Coordinator Title THIS AGREEMENT SHALL NOT BE EXECUTED BY THE STATE OF CALIFORNIA-DEPARTMENT OF TRANSPORTATION UNTIL FUNDS ARE CERTIFIED DO NOT WRITE BELOW-FOR ACCOUNTNG PURPOSES ONLY PLANNING AND MANAGEMENT TO COMPLETE UNSHADED FIELDS: UTILITY COMPLETES: T DOCUMENTCHG I PROJECT SPECIAL OBJ DOLLAR CODE NUMBER SUFFIX DIST UNIT DIST ID PHASE DESIGNATION FFY FA CODE AMOUNT UA �.lI I i� 160IX9-7aI 'I II 7 054 $3],000.00 UA I I I I I2- PROJECT713ING VERIFIED: REVIEW/REQUEST FINDING: Si n:> U !v 19 I Si > 1d�1�%O1J-,-- Print> -Ev gelina Washington Dale Print> ij John Dykman Date R/W Planning and;Mana ement Utility Coordinator THE ESTIMATED COST TO THE STATE FOR ITS SHARE OF THE ABOVE DESCRIBED WORK IS $ 31 00 . 0. CERTIFICATION OF FUNDS FUND"TYPE PROJECT ID I AMOUNT I hereby certif-upon my own personal knowledge that budgeted Desi Funds 1200000103 (1) $ 0.00 funds are availablclor the period and purpose of the expenditure ConsWction Funds 1200000103 4) $ 0.00 shown here. R/W Funds 1200000103 (9) $� 31,000.00 anri �Nlana ementDate ITEM CHAP STAT' FY AMOUNT _13 Distribution: 2 originals to R/W Accounting I original to Utility Owner I original to Utility File STATE OF CALIFORNIA•DEPARTMENT OF TRANSPORTATION Page 1 of 4 UTILITY AGREEMENT RW 13-5(Rev.6/2012) DISTRICT COUNTY ROUTE POST MILE PROJECT ID 12 ORA 5 8.5/9.4 12-0000-0103 (EA OE5701) FEDERAL AID NUMBER: N/A OWNER'S FILE NUMBER: FEDERAL PARTICIPATION: On the Project ❑ Yes ® No On the Utilities ❑ Yes ® No Owner Payee Data No. VC0000023703 or Form STD 204 is attached. ❑ UTILITY AGREEMENT NO. 12-UT-1122 DATE The State of California,acting by and through the Department of Transportation,hereinafter called"STATE,"proposes to widen the southbound Camino Capistrano Off-Ramp, Ramp Intersection and Camino Capistrano Frontage Road on and adjacent to Interstate 5 in the City of San Juan Capistrano in Orange County,and City of San Juan Capistrano, Utilities Department-Water,32400 Paseo Adelanto, San Juan Capistrano,California 92675, hereinafter called"OWNER,"owns and maintains 2 air vacs,within the limits of STATE's project, which requires relocation to accommodate the STATE's project. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Revision 1,dated September 10,2012,of Notice to Owner No. 12-UT-1122,dated October 29,2009, OWNER shall relocate your 2 Air Vacs and attendant water facilities, in order to clear the State's construction project. All work shall be performed substantially in accordance OWNER's Plan,Typical Cross Section X-2 as redlined, consisting of one(1)sheet;Air&Vacuum Relief Valve Assembly STD.No. W-16 as redlined,consisting of two(2) sheets,a copy of which is on file in the District office of the Department of Transportation at 3347 Michelson Drive, Suite 100, Irvine,CA 92612-8894. Deviations from the OWNER's plan described above initiated by either the STATE or the OWNER,shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by the STATE and agreed to/acknowledged by the OWNER,will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agrcement in addition to the revised Notice to Owner. H. LIABILITY FOR WORK The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under provisions of Section 703 of the Streets and Highways Code. UTILITY AGREEMENT(Cont.) Page 2 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 III. PERFORMANCE OF WORK OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding procedure,and to furnish or cause to be furnished all necessary labor, materials,tools,and equipment required therefore,and to prosecute said work diligently to completion. Use of out-of-state personnel(or personnel requiring lodging and meal"per diem"expenses)will not be allowed without prior written authorization by STATE's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary preliminary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-State personnel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the STATE's Department of Personnel Administration travel expense guidelines. Pursuant to Public works Case No.2001-059 determination by the California Department of Industrial Relations dated October 25,2002, work performed by OWNER's contractor is a public work under the definition of Labor Code section 1720(a)and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK The STATE shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five(5)copies of OWNER's itemized bill, signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead, compiled on the basis of the actual and necessary cost and expense.The OWNER shall maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that the STATE will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the STATE for the"used life"or accumulated depreciation of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. Not more frequently than once a month, but at least quarterly,OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work. Payment of progress bills not to exceed the amount of this Agreement may be made ander the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by STATE of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to the STATE within 360 days after the completion of the work described in Section I above. If the STATE has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I of this Agreement,and STATE has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements(if required)for OWNER's facilities, STATE will provide written notification to OWNER of its intent to close its file within 30 days and OWNER hereby acknowledges,to the extent allowed by law,that all remaining costs will be deemed to have been abandoned.If the STATE processes a final bill for payment more than 360 days after notification of completion of OWNER's work,payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. UTILITY AGREEMENT(Cont.) Page 3 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement,and less any amounts covered by progress billings.However,the STATE shall not pay final bills which is the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by STATE. Except, if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I,a copy of said revised Notice to Owner shall suffice as documentation. In either case,payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125%of the estimated cost of this Agreement,an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill.Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement,shall have the prior concurrence of STATE. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors.Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR,Chapter 1,Part 31,et seq.,23 CFR,Chapter 1,Part 645. If a subsequent State and/or Federal audit determines payments to be unallowable,OWNER agrees to reimburse STATE upon receipt of STATE billing. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of STATE's request of January 26, 2009,to review, study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If STATE's project,which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER, STATE will notify OWNER in writing and STATE reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. All obligations of STATE under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit a Notice of Completion to the STATE within 30 days of the completion of the work described herein. It is understood that said highway is a Federal aid highway and accordingly, 23 CFR, Chapter i, Part 645 is hereby incorporated into this Agreement. UTILITY AGREEMENT(Cont.) Page 4 of RW I3-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 IN WITNESS WHEREOF,the above parties have executed this Agreement the day and year above written. STATE: OWNER: City of San Juan Capistrano, Utilities Department- Water By e �..o�K.! / 2 /2 By(Sign) Robert Enriquez Da Name(Print) Date District 12 Uti14 Coordinator, Right of Way Title APPROVAL RECOMMENDED: By A� -- lal �/a +t By Johrilbylonan Date Name Date Utility Coordinator Title THIS AGREEMENT SHALL NOT BE EXECUTED BY THE STATE OF CALIFORNIA—DEPARTMENT OF TRANSPORTATION UNTIL FUNDS ARE CERTIFIED DO NOT WRITE BELOW-FOR ACCOUNTNG PURPOSES ONLY PLANNING AND MANAGEMENT TO COMPLETE UNSHADED FIELDS: UTILITY COMPLETES: "T ' DOCUMENT CI IG PROJECT SPECIA OBJ DOLLAR CODE NUMBER SUFFIX DIST UNIT DIST ID PHASEDESfGNATICJN FFY FAI'CODEIIII AMOUNT . UA It Z7.- I� 3G�1 L_R- C'L S�OTI 5 I� 7 054 €31,000.00 PROJECT m FUNDING VERIFIED: REVIEW/REQUEST FUNDING: - Si n:> �l �U I z. i 1 I Si ti t,�- Print Evan elina Washingto D [e Print John Dyk�mn Date R/W Planning and M�nageme It Utili Coordirotor THE ESTIMATED COST TO'n IF. STATE FOR,ITS SHARE OF THE ABOVE DESCRIBED WORK IS $31.000.(:0. CERTIFICATION OF FUNDS FUND TYPE PROJECT IDAMOUNT I hereby eerti y upon my own personal knmvle (dge that budgeted Design Funds 1200000103 1) S 0.00 funds are avails `or the period and purpose of the expenditure Construction Funds 1200000103 (4) $ 0.00 shown here. 1 R/W Funds 1200000103 (9? A 3L000.00 Pl1aanin24Mans emem Date ITEMCHAP ST FY AMOUNT Distribution: 2 originais to R)W Accounting I original to Oility Owner I original to Utility File STATE OF CALIFORNIA•DEPARTMENT OF TRANSPORTATION Page I of 4 UTILITY AGREEMENT RW 13-5(Rev.6/2012) DISTRICT COUNTY ROUTE POST MILE PROJECT ID 12 ORA 5 8.5/9.4 12-0000-0103 (EA OE5701) FEDERAL AID NUMBER: N/A OWNER'S FILE NUMBER: FEDERAL PARTICIPATION: On the Project ❑ Yes ® No On the Utilities ❑ Yes ® No Owner Payee Data No. VC0000023703 or Form STD 204 is attached. ❑ UTILITY AGREEMENT NO. 12-UT-1122 DATE The State of California,acting by and through the Department of Transportation, hereinafter called"STATE,"proposes to widen the southbound Camino Capistrano Off-Ramp,Ramp Intersection and Camino Capistrano Frontage Road on and adjacent to Interstate 5 in the City of San Juan Capistrano in Orange County,and City of San Juan Capistrano,Utilities Department-Water,32400 Paseo Adelanto,San Juan Capistrano,California 92675, hereinafter called"OWNER,"owns and maintains 2 air vacs,within the limits of STATE's project, which requires relocation to accommodate the STATE's project. It is hereby mutually agreed that: I. WORK TO BE DONE In accordance with Revision 1,dated September 10, 2012,of Notice to Owner No. 12-UT-1122, dated October 29,2009, OWNER shall relocate your 2 Air Vacs and attendant water facilities, in order to clear the State's construction project. All work shall be performed substantially in accordance OWNER's Plan,Typical Cross Section X-2 as redlined, consisting of one(1)sheet;Air&Vacuum Relief Valve Assembly STD.No. W-16 as redlined,consisting oftwo(2) sheets,a copy of which is on file in the District office of the Department of Transportation at 3347 Michelson Drive, Suite 100, Irvine.CA 92612-8894. Deviations from the OWNER's plan described above initiated by either the STATE or the OWNER, shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by the STATE and agreed to/acknowledged by the OWNER,will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. H. LIABILITY FOR WORK The existing facilities are lawfully maintained in their present location and qualify for relocation at STATE expense under provisions of Section 703 of the Streets and Highways Code. UTILITY AGREEMENT(Cont.) Page 2 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-UT-1122 III. PERFORMANCE OF WORK OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding procedure,and to furnish or cause to be furnished all necessary labor, materials,tools,and equipment required therefore,and to prosecute said work diligently to completion. Use of out-of-state personnel(or personnel requiring lodging and meal"per diem"expenses)will not be allowed without prior written authorization by STATE's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary preliminary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non-State personnel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the STATE's Department of Personnel Administration travel expense guidelines. Pursuant to Public works Case No.2001-059 determination by the California Department of Industrial Relations dated October 25,2002,work performed by OWNER's contractor is a public work under the definition of Labor Code section 1720(a)and is therefore subject to prevailing wage requirements. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK The STATE shall pay its share of the actual and necessary cost of the herein described work within 45 days after receipt of five(5)copies of OWNER's itemized bill, signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead,compiled on the basis of the actual and necessary cost and expense.The OWNER shall maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles. It is understood and agreed that the STATE will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the STATE for the"used life"or accumulated depreciation of the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER. Not more frequently than once a month, but at least quarterly,OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work. Payment of progress bills not to exceed the amount of this Agreement may be made under the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by STATE of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement. The OWNER shall submit a final bill to the STATE within 360 days after the completion of the work described in Section I above. If the STATE has not received a final bill within 360 days after notification of completion of OWNER's work described in Section I of this Agreement,and STATE has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements(if required)for OWNER's facilities, STATE will provide written notification to OWNER of its intent to close its file within 30 days and OWNER hereby acknowledges,to the extent allowed by law,that all remaining costs will be deemed to have been abandoned. If the STATE processes a final bill for payment more than 360 days after notification of completion of OWNER's work,payment of the late bill may be subject to allocation and/or approval by the California Transportation Commission. UTILITY AGREEMENT(Cont.) Page 3 of 4 RW 13-5(Rev.6/2012) UTILITY AGREEMENT NO. 12-t7T-1122 The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement,and less any amounts covered by progress billings. However,the STATE shall not pay final bills which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER and approval of documentation by STATE.Except, if the final bill exceeds the OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in Section I,a copy of said revised Notice to Owner shall suffice as documentation.In either case, payment of the amount over the estimated cost of this Agreement may be subject to allocation and/or approval by the California Transportation Commission. In any event if the final bill exceeds 125%of the estimated cost of this Agreement,an Amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER'S final bill.Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement,shall have the prior concurrence of STATE. Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit by State and/or Federal auditors.Owner agrees to comply with Contract Cost Principles and Procedures as set forth in 48 CFR,Chapter 1, Part 31,et seq., 23 CFR,Chapter 1,Part 645. If a subsequent State and/or Federal audit determines payments to be unallowable,OWNER agrees to reimburse STATE upon receipt of STATE billing. V. GENERAL CONDITIONS All costs accrued by OWNER as a result of STATE's request of January 26,2004,to review,study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement. If STATE's project,which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER, STATE will notify OWNER in writing and STATE reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement. Al l obligations of STATE under the terms of this Agreement are subject to the passage of the annual Budget Act by the State Legislature and the allocation of those funds by the California Transportation Commission. OWNER shall submit a Notice of Completion to the STATE within 30 days of the completion of the work described herein. It is understood that said highway is a Federal aid highway and accordingly,23 CFR,Chapter 1, Part 645 is hereby incorporated into this Agreement. UTILITY AGREEMENT(Cont.) Page 4 of RW 13-5(Rev.62012) UTILITY AGREEMENT NO. 12-UT-1122 IN WITNESS WHEREOF,the above parties have executed this Agreement the day and year above written. STATE: OWNER: City of San Juan Capistrano, Utilities Department-Water By ti-c..l /Z- / /�_ By(Sign) Robert Enrique / Dat Name(Print) Date District 12 Util C ordinator,Right of Way Title APPROVAL RECOMMENDED: By '0u— Lt j ri20 Lk By John IUykman Date Name Date Utility Coordinator Title THIS AGREEMENT SHALL NOT BE EXECUTED BY THE STATE OF CALIFORNIA-DEPARTMENT OF TRANSPORTATION UNTIL FUNDS ARE CERTIFIED DO NOT WRITE BELOW-FOR ACCOUNTNG PURPOSES ONLY PLANNING AND MANAGEMENT TO COMPLETE.UNSHADED FIELDS: UTILITY COMPLETES: T DOCUMENT I CHG I PROJF-CT SPECIAL I OBJ DOLLAR CODE NUMBER SUFFIX DIST UNIT DIST ID PIIASE DESIGNATION FFY FA CODE AMOUNT UA 'i "t- 3C' 105-70 q 7 054 S31,000.00 UA 63-103 PROJECT ID FUNDING VERIFIED: r REVIEW/REQUEST FUNDING: S /" e Si ns 'L2 P > EWgelinaWashington Dae Print, John Dykman Date Planning and Mana_ement Utility Coordinator THE ESTIMATED COST TO THP: STATE FOR ITS SHARE OF THE ABOVE DESCRIBED WORK IS$31 000.00. CERTIFICATION OF FUNDS FUND TYPE PROJECT ID AMOUNT I hereby certify upon my own personal knowledge that budgeted Design Funds 1200000103 t) $ 0.00 funds are available for the period and purpose of the expenditure ConslTuction Funds 1200000103 4 $ 0.00 sho,ai here. �� n , '� R/W Funds __ 12(10000103 (9) S 31,000.00 tannin Man ement Da e ITEM STA FY AMOUNT of 2— 1.2 3� OTiU l� Distribution: 2 originals to R/W Accounting 1 original to Utility Owner I original to Utility File Recorded In official Records,Orange County POSTED Tom Dal ,Cou Recorder I� �g --�l E D I�IQIf(��I �� NO FEE AUG V720� sR000 070067 $ * AUG 17 2012 20128500078611:58 am 08/17112 Tom DALY, ER 46 SC2 Z01 Olt TOM DALY,CIER • CORDER DEPUTY 0.00 50.00 0.00 0.00 0.00 0.00 0.00 0.00 By DEPUTY (above for use by County Clerk-Recordees Office only NOTICE OF EXEMPTION is From: Development Services Department 32400 Paseo Adelanto San Juan Capistrano,California 92675 1. APPLICANT: City of San Juan Capistrano 2. ADDRESS: 32400 Paseo Adelanto, San Juan Capistrano, CA, 92675 3. PHONE NUMBER: (714)443-6302 4. LEAD AGENCY: City of San Juan Capistrano 5. PROJECT MGR.: Eric Bauman P. E., Utilities Engineer 6. PROJECT TITLE: 1-5 and Ortega Hwy Interchange Pipeline Relocation Project 7. DESCRIPTION: The proposed project consists of the relocation of 2,346 If of pipe in trenched areas, 694 If of pipe in cells of the new 15 bridge, for a total of 3,040 If of 12-inch replacement pipeline; the abandonment of 2,864 If of water and sewer lines, and the relocation of two sewer system manholes within the area of potential effect for the "Interstate 51 State Route 74 (Ortega Highway) Interchange Improvement Project." Installation of the sewer and water facilities integrates with the proposed interchange improvement project; currently under final design by the California Department of Transportation (Caltrans). By installing the pipelines in coordination with Caltrans' demolition and grading operations, and during Caltrans' construction period, the City minimizes direct impacts of the project and avoids the need to disrupt the street in the future. The project maintains the existing reliability and quality of service within the existing water distribution system and sewer system to adequately serve existing users, and to meet increasing fire safety demands. Paved roadway covers 2,360 If of the pipeline route and existing parking lots with non-native vegetation cover 680 If of the pipeline outside the road right of way. The pipeline construction depth ranges from approximately 4 to 5 feet below the existing surface. The project includes trenching excavation, pipeline installation, backfilling, compacting, and soil replacement all within the construction zone of the Caltrans interchange improvement project. ADMINISTRATIVE DETERMINATION: City staff has completed a preliminary review of this project in accordance with the City of San Juan Capistrano's Environmental Review Guidelines and the California Environmental Quality Act (CEQA). Based on that review, the staff finds that the proposed project constitutes a ministerial action because it require an encroachment permit/license agreement which are ministerial actions under the City's permit processing requirements. Therefore, staff has determined that further environmental evaluation is not required because: Attachment 4 jan Juan Capistrano, California ,nd Ortega Hwy Interchange Pipeline Relocation Project .otice of Exemption [) "The activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA" (Section 15061(b)(3)); or, [x] The project is statutorily exempt, Section 15282(k) (The installation of new pipeline or maintenance, repair, restoration, removal, or demolition of an existing pipeline as set forth in Section 21080.21 of the Public Resources Code, as long as the project does not exceed one mile in length); or, [] The project is categorically exempt, Class , <name> (Section 15301- 15329);'or, [] The project does not constitute a "project" as defined by CEQA (Section 15378). r ls'JE� William A. Ramsey, AICP, Environ en al Administrator Assistant Development Services irect r cc: [j project file []CEQA file []County Clerk POSTED FILED AUG 17 2012 AUG 17 2012 MUQALY •RECORDER DEPUTY TON DALY. R CORDER IDEMY RESOLUTION NO. 13-01-04-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING THE FISCAL YEARS 2013-2019 SEVEN-YEAR CAPITAL IMPROVEMENT PROGRAM AND FISCAL YEARS 2012113 AND 2013114 OPERATING BUDGET FOR CAPITAL IMPROVEMENT PROJECT (CIP) 11805 WHEREAS, Caltrans Project (Caltrans Project 12-0E3104) to reconstruct the Ortega Highway Bridge and roadway, including the freeway on and off ramps at the intersection of the I- 5 freeway and Ortega Highway, will require the City to relocate water and sewer pipelines; and, WHEREAS, the City's Fiscal Years 2013-2019 Seven-Year City Capital Improvement Program includes $1,800,979 for Capital Improvement Project(CIP) 11805 (Water and Sewer Lines at Ortega Highway, Del Obispo, and the Interstate 5) to relocate the water and sewer pipelines during Fiscal Years 2012113 through Fiscal Years 2014115 which needs to be amended by$304,232 for a total project cost of$2,105,211 as outlined in Exhibit A to this Resolution; and, WHEREAS, Caltrans has agreed to reimburse the City for $890,000 of the cost of relocating the pipelines, leaving a net City cost of$1,215,211; and, WHEREAS, the total funding available for CIP 11805 in the Fiscal Years 2013-2019 Capital Improvement Program is$1,050,716 leaving$164,495 to be funded as outlined in Exhibit B to this resolution; and, WHEREAS, CIP 11805 also requires adjustments to the annual funding from water rate revenues to be transferred from Water Operations to fund the project cost each year as outlined in Exhibit B to the Resolution NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby 1. Amend the City's Fiscal Years 2012-2019 Seven-Year Capital Improvement Program as follows: a. Increase estimated Other Revenues in the Water Capital Replacement Fund (Acct No. 63-00000-48101-11805-000) by $167,000 for Fiscal Year 2012-2013; $673,000 for Fiscal Year 2013-2014; and $50,000 for Fiscal Year 2014-2015;for a total of $890,000 to be reimbursed by the State of California Department of Transportation (Caltrans). b. Increase the estimated Transfers-In from the Water Operations Fund to the Water Capital Replacement Fund (Account No. 63-00000-49060-00000-000) by $169,132 for Fiscal Year 2012-2013, and $870,128 for Fiscal Year 2013-2014; and reduce the same account by $999,765 for Fiscal Year 2014-2015; for a net total increase of $39,495 over three years. ATTACHMENT 5 c. Eliminate project funding of $100,000 for CIP 08804 (Pump Station Improvements); and $25,000 for CIP 13802 (GWRP Chemical Tank Upsizing) d. Appropriate and eliminate project funding in the Fiscal Years 2013-2019 Seven- Year Capital Improvement Program for a total amount of $304,232 for CIP 11805 as follows: FY 2013 FY 2014 FY 2015 Total CIP 11805—Cost Adjustments by Year Water Capital Replacement Fund (60,447) 605,368 27,331 572,252 Water Capital Improvement Fund (113,623) (156,146) (4,220) (273,989) Sewer Capital Replacement Fund (17,530) 24,175 (676) 5,969 Total-CIP 11805 Cost Adjustments ($191,600) $473,397 $22,435 $304,232 2. Make the following adjustments to the Water Operations(60)and GWRP Operations(62) Funds: a. Increase the estimated water commodity revenues to the Water Operations Fund (Account No. 60-00000-45220-00000-000) by $129,637 for Fiscal Year 2012- 2013, and $870,128 for Fiscal Year 2013-2014; and decrease the same account by $999,765 for Fiscal Year 2014-2015; for a net total increase of $39,495 over three years, and decrease the estimated water commodity revenues(Account No. 62-00000-45220-00000-000) by $129,637 for Fiscal Year 2012-2013, and $870,128 for Fiscal Year 2013-2014; and increase the same account by$999,765 for Fiscal Year 2014-2015; for a net change of$0 over three years. b. Appropriate an additional $169,132 for Fiscal Year 2012-2013, and $870,128 for Fiscal Year 2013-2014 to Transfers Out of the Water Operations Fund (Account No. 60-00000-69063-00000-000) to the Water Capital Replacement Fund and expect to include a reduction of$999,765 for Fiscal Year 2014-2015;for a net total increase of$39,495 over three years. PASSED, APPROVED, AND ADOPTED this day of 20xx. JOHN TAYLOR, MAYOR ATTEST: MARIA MORRIS, CITY CLERK EXHIBIT A CIP 11805 Project Costs CIP 11805 Project Costs CIP 11805 Adjusted Budget') FY 2013 FY 2014 FY 2015 Total Water Capital Replacement Fund $612,809 $843,190 $22,904 $1,478,903 Water Capital Improvement Fund 113,623 156,146 4,220 273,989 Total CIP 11805 Adjusted Budget-Water $726,432 $999,336 $27,124 $1,752,892 Sewer Capital Replacement Fund 32,087 14,000 2,000 48,087 Total CIP 11805 Adjusted Budget $758,519 $1,013,336 $29,124 $1,800,979 CIP 11805-Additional Costs Water Capital Replacement Fund ($60,447) $605,368 $27,331 $572,252 Water Capital Improvement Fund (113,623) (156,146) (4,220) (273,989) Sewer Capital Replacement Fund (17,530) 24,175 (676) 5,969 Total -CIP 11805-Additional Costs ($191,600) $473,397 $22,435 $304,232 CIP 11805 Project Costs (FY2013-FY2015) $566,919 $1,486,733 $51,559 $2,105,211 Prior Year(FY2011 - FY2012) Costs 151,259 CIP 11805 Total Projects Costs $2,256,470 MAdjusted budget for FY2013 includes carryover of unspent funding from FY2012. EXBHIIT B CIP 11805 Funding Requirements CIP 11805 Funding Requirements: FY 2013 FY 2014 FY 2015 Total CIP 11805 Funding Requirements-City: Adjusted Budget $566,919 $1,486,733 $51,559 $2,105,211 CalTrans Reimbursement (167,000) (673,000) (50,000) (890,000) Total CIP 11805 Funding Requirements-City $399,919 $813,733 $1,559 $1,215,211 Funds Available _ Water Replacement Fund(')(21 $91,230 ($94,570) $1,000,000 $996,660 Sewer Replacement Fund(3) 14,557 38,175 1,324 54,056 Total Funds Available $105,787 ($56,395) $1,001,324 $1,050,716 Additional Funding Required $294,132 $870,128 ($999,765) $164,495 Recommended Funding: CIP 08804 Pump Station Improvements(Unfunded) $100,000 $0 $0 $100,000 CIP 13802 GWRP Chemical Tank Upsizing 25,000 25,000 (Unfunded) Reallocation of transfers from operations(4) 169,132 870,128 (999,765) 39,495 Total Additional Funding Available $294,132 $870,128 ($999,765) $164,495 Amount Remaining $0 $0 I $0 $0 (')The funding source for the Water Capital Replacement Fund is water rate revenue available from operations. (2)Funds available are based on the adjusted beginning available fund balance for the Water Capital Replacement Fund,the planned Transfers In from Water Operations Fund, and funding of all other projects included in FY 2013-2019 Seven-Year Capital Improvement Program for the applicable year. (3)Sewer rate revenues transferred to the Sewer Capital Replacement Fund as well as reserves. (4J The net change to the Water Operations Funds available fund balance as of June 30, 2015 is a reduction of $39,495. Christy Jaid From: Eric Bauman Sent: Thursday,January 03, 2013 4:16 PM To: grfcoinc@gmail.com;vanessa@mnrconst.com; Scott King (scott@ckc.co);Sandra Lucero-Po (spo@radoscompanies.com); Bean, Luanne; Bob Ohlund (BOhlund@dudek.com); bseitz@rbf.com; LPenna@andpen.com; Psomas (mswan@psomas.com) Cc: Christy Jakl Subject: FW: City of San Juan Capistrano: City Council and Successor Agency Special Meeting,15x Construction Award,15x Construction Management Award This message is to notify you that the City Council will consider for award the projects detailed below: Consideration of Approving a Construction Agreement for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project, Appropriation of Funds, and a Budget Transfer (Capital Improvement Project 11805) (Charles King Company, Inc.) Consideration of Approving a Personal Services Agreement for Construction Management Services for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project. (Capital Improvement Project 11805) (RBF Consulting) The full agenda item can be seen from the links below. Eric Bauman City of San Juan, Utilities From: eNewsftsanivancaoistrano.oro fmailto•eNewsCasanivancaoistrano.orol Sent:Thursday,January 03, 2013 1:03 PM To: Eric Bauman Subject: City of San Juan Capistrano: City Council and Successor Agency Special Meeting S r-111 Capistrano i It CJ City Council and Successor Agency Special Meeting City Council and Successor Agency Special Meeting Date: 1/4/2013 1:00 PM Location: City Council Chambers 32400 Paseo Adelanto San Juan Capistrano, California 92675 Please CLICK HERE to access the City Council and Successor Agency Agendas. CLICK HERE to watch the meeting live the day of the meeting. 1 ........................................................................................................................................................................................................................................................................................... l To change your City of San Juan Capistrano eNews preferences, click here or visit following link: htto://www,sanivancal2istrano.org/index,aSDX?Da =1 7& u riberguid=291b4b61-9cec-45d7-b609-fd223cfda59b To unsubscribe from all City of San Juan Capistrano eNews, click here or visit the following link: http://www.sanjuancapistrano-org/index.asr)x?paqe=197&subscriberguid=291b4b61-9cec-45d7-b609 fd223cfda59b&unsubscribe=l i............................................................................................................................................................................................................................................................................................ City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 phone: (949) 493-1171 fax: (949) 493-1053 2 12. RECEIPT OF ONE BID FOR THE 1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION PROJECT, ACKNOWLEDGED AND REJECTED; STAFF DIRECTED TO REVISE THE PROJECT AND RE-BID THE PROJECT; AND STAFF AUTHORIZED TO CONTINUE NEGOTIATIONS WITH THE OWNER AND/OR THE DEVELOPER OF THE PLAZA BANDERAS HOTEL FOR THE CONSTRUCTION AND PAYMENT FOR THE ALTERNATE PIPELINE (600.30) 13. ERSONAL SERVICES AGREEMENT WITH NBS GOVERNMENT FINANCE GRQUP, DBA NBS (NBS) IN THE AMOUNT NOT TO EXCEED $49,070 TO UPDATE THE CITY'S COST ALLOCATION PLAN, CONDUCT A CITY-WIDE USER E STUDY, AND REVIEW THE CITY'S PARK AND RECREATION AND CAPIST O Cl RCULATION FEE PROGRAM (CCFP) FEES, APPROVED; AND AP=R RIATION OF $14,350 FROM CAPISTRANO CIRCULATION FEE PROGRAMND RESERVES TO FUND THE REVIEW OF THE CIRCULATION F PROGRAM (CCFP) FEES, APPROVED (600.30) Council Action: M ved by Council Member Freese, seconded by Council Member Allevat and carried unanimously to approve a Personal Services Agreement with S Government Finance Group, dba NBS in the amount not to exceed $49,076�o update the City's Cost Allocation Plan, conduct a city-wide user fee study, an ,review the City's Park and Recreation and Capistrano Circulation Fee Program,(CCFP) fees, approved; and appropriation of $14,350 from Capistrano Circulation ee Program Fund Reserves to fund the review of the Circulation Fee Program (\EAN fees. PUBLIC HEARINGS: 1. INTRODUCTION AND FIRST READINORDINANCE AMENDING THE GENERAL PLAN, PARKS AND REIO ELEMENT, FIGURE PR-1, PARKS AND RECREATION FACILITAST PLAN OF TRAILS) BY ADDING THE 2C RANCH TRAIL CONNS (42 . 0) William A. Ramsey, Assistant Devet Services irector, provided a PowerPoint presentation and respondeestions.Mayor Kramer opened the public heariinvited testimony.Public Testimony: Renee Ritchie, Cdent; Ilse Byrnes, City sident; and tinny Kerr, City resident. Mayor Kramer closed the public hearinMaria Morris, City Clerk, read the title ordinance. 4 10/02/2012 Bid Opening Report Bids Opened September 27, 2012 at 3:00 p.m. CIP 11805 Improvement Plans for 1-5 Ortega Highway Interchange Project Title Pipeline Relocation Project Engineer Eric Bauman, Utilities Eng. Pre Bid Estimate $1,348,000.00 Bidder Bid Amount Bid BondlAdd1 n2-4 1. Steve P. Rados, Inca , 2. 3. $ 4. 5. $ I 6. 7. $ 8. Sign Date cc: City Clerk Staff(3) Project Department(3) The above bid amounts have not been checked. The bid totals are subject to correction after the bids have been completely reviewed. Attachment 1 Bid Opening Report Bids Opened September 27 2012 at 3:00 p.m. CIP 11805 Improvement Plans for 1-5 Ortega Highway Interchange Project Title Pipeline Relocation Project Engineer Eric Bauman, Utilities Eng. Pre Bid Estimate $1,348,000.00 Bidder Bid Amount Bid Bond/Add1 n 635�- 1. Steve P. Rados, Inc $ Q , I 0'd dt kA". 39)4 . 2. $TbTl�t 2, L9 501 ,cgQC4 , ou 3. $ 4. 5. $ 6. 7. 8. Sign Date cc: City Clerk Staff(3) Project Department (3) The above bid amounts have not been checked. The bid totals are subject to correction after the bids have been completely reviewed. 10/2/2012 d` w ��. D12 City of San Juan Capistrano Agenport TO: Karen P. Brust, City MdnPlitiesDirector 1� J�� FROM: Keith Van Der Maaten, U Prepared by: Eric Bauman, Utilities Engine DATE: October 2, 2012 SUBJECT: Consideration of Bid Award for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project; and Continued Negotiations with Plaza Banderas Hotel Representatives Regarding Alternate Pipeline (CIP 11805) RECOMMENDATION: By motion: 1. Award the bid to the lowest responsible bidder for the work, to be presented in a supplemental report; and, 2. Authorize staff to continue negotiations with the owner and or the developer of the Plaza Banderas Hotel for the construction and payment for the alternate pipeline. EXECUTIVE SUMMARY: At its meeting of August 7, 2012, the City Council approved the plans and specifications prepared for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project for bid and authorized staff to proceed with negotiations with the owners of the Plaza Banderas Hotel regarding the construction and payment for an alternate pipeline (Attachment 1). To date nineteen (19) bidders, have picked up plans and expressed an intention to bid (Attachment 2). The bids are due September 27, 2012. The final results of the bid and the recommendations for award will be provided in a supplemental agenda report. The negotiations with the owner of the Plaza Banderas Hotel, regarding the reimbursement agreement, have not been completed to date. Should the owner agree to participate in this project, staff will return with a subsequent agenda item to award an agreement for the additional work to be performed by the Contractor awarded the construction agreement for the base work. City Council Agenda Report October 2, 2012 Page 2 of 3 FISCAL IMPACT: CIP No. 11805 has a total project budget of $2,182,460 and a total engineer's estimated cost of $2,115,355 for the water piping, and $55,024 for the sewer work; for a total cost of $2,170,379, inclusive of all project elements (Attachment 3). No new appropriations of funds are necessary at this time. Of this $2,170,379, staff is currently working with Caltrans on the reimbursement for its share of cost, for the relocation of water ($203,231) and sewer ($33,014) facilities (Attachment 3). Staff will prepare an agenda report detailing the final reimbursement by Caltrans at a later date. In addition, staff has had discussions with the owner of the Plaza Banderas Hotel but thus far has not received any commitment from the owner to construct the pipeline that would avoid the need for the Plaza Banderas Hotel to construct the EL Horno line noted in previous agenda items. The engineer's estimate for this work is $463,617; however staff anticipates this cost to be less, once bids have been received. Based upon these estimates, the total cost less reimbursements for the City is $1,470,516. ENVIRONMENTAL IMPACT: The proposed project was found to be statutorily exempt from review under the California Environmental Quality Act (CEQA). The Environmental Administrator signed a Notice of Exemption, and posted it on August 17, 2012. (Attachment 4) PRIOR CITY COUNCIL REVIEW: • On June 30, 2011, the City Council approved the first reading of an ordinance approving the Development Agreement between the City and Plaza Banderas. • On July 5, 2011, the City Council approved the second reading of an ordinance approving the Development Agreement between the City and Plaza Banderas. • On August 7, 2012, the City Council approved the plans and specifications prepared for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project for bid; and, authorized staff to proceed with negotiations with the owners of the Plaza Banderas Hotel. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: • On July 17, 2012, the Utilities Commission recommended the City Council authorize the project for bid, authorize staff to proceed with negotiations with the owners of the Plaza Banderas Hotel, and recommended option three (heightened City Council Agenda Report October 2, 2012 Page 3 of 3 ramp construction. At this meeting the Utilities Commission was updated on the scheduling of the project and that due to the timeline that needed to be maintained, they would not always review the items coming before the City Council in advance, however they would be updated at their next regularly scheduled meeting. • Staff will present the bid results to the Utilities Commission at its meeting of October 16, 2012. NOTIFICATION: Bidders listed on Attachment 2. ATTACHMENT(S): Attachment 1— City Council Agenda Report of August 7, 2012 Attachment 2— Bidders List Attachment 3— Budget Summary Attachment 4—CEQA, Posted Notice of Exemption 8/7/2012 D15 City of San Juan Capistrano Agend ort TO: Karen P. Brust, City Ml r FROM: Keith Van Der Maaten, Ut les Dlrecto Prepared by: Eric Bauman, Utilities Engineer DATE: August 07, 2012 SUBJECT: Consideration of Solicitation of Bids for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project(CIP No. 11805) RECOMMENDATION: By motion: 1. Approve the plans and specifications prepared by Dexter Wilson Engineering for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project, and direct staff to advertise for competitive bids; and, 2. Authorize staff to proceed with negotiations with the owners of the Plaza Banderas Hotel. EXECUTIVE SUMMARY: The Caltrans Project (Project 12-OE3104) to reconstruct the Ortega Highway Bridge and roadway, including the freeway on and off ramps at the intersection of the 1-5 freeway and Ortega Highway, will impact water and sewer lines (Attachment 1). The City is required to relocate the water and sewer pipelines that are impacted by the realignment (Attachment 5). Due to the available construction window provided by Caltrans, it is necessary to complete certain components of the relocation work before February 2013 (Attachment 2). The remainder of the work is to be completed as Caltrans makes the work site available. The City's contracted engineer, Dexter Wilson Engineering, has prepared bid plans (Attachment 3) and specifications. Staff recommends authorizing to bid the water and sewer line relocation project. As part of the Development Agreement (Attachment 4)for the construction of the Plaza Banderas Hotel, the owner must construct a pipeline along EI Homo to provide the necessary fire flow protection for the hotel (Attachment 6). As part of the Caltrans project, a secondary pipeline can be installed in the 1-5/Ortega Bridge that would fulfill the fire flow requirements for the hotel and eliminate the need for the EI Homo line. The secondary pipeline in the 1-5/Ortega Bridge is estimated to cost much less than the EI Attachment 1 City Council Agenda Report August 7, 2012 Page 2 of 3 Homo line; therefore, staff recommends approaching the owner to discuss paying for the secondary line through the 1-5/Ortega Bridge as an alternative to the EI Homo line. Should the owner decline to pay for the alternative line, then the alternative line would not be constructed at this time. DISCUSSION/ANALYSIS: The construction of the north bound on-ramp loop will impact an existing water line requiring that it be taken out of service for about a year. Closure of this line will not impact service but will affect the system looping. Staff presented three options to the Utilities Commission; • Construction of a temporary line, • Construction of a temporary above ground line, • Heightened alert of construction activity on Calle Arroyo from Rancho Viejo traveling west. Staff recommended the heightened alert of construction activity as this option would be the lowest cost and not have an adverse impact on the water system. The Utilities Commission concurred with staff's recommended action. FISCAL IMPACT: CIP No. 11805 has a total project budget of $2,1.82,460 and a total estimated cost of $2,171,404, inclusive of all project elements listed in Attachment 6. The Plaza Banderas project component will be constructed at the expense of the hotel developer. No new appropriations of funds are necessary at this time. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: • On June 30, 2011, the City Council approved the first reading of an ordinance approving the Development Agreement (Attachment 4) between the City and Plaza Banderas. • On July 5, 2011, the City Council approved the second reading of an ordinance approving the Development Agreement (Attachment 4) between the City and Plaza Banderas. City Council Agenda Report August 7, 2012 Page 3 of 3 COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: • On July 17, 2012, the Utilities Commission recommended the City Council authorize the project for bid, authorize staff to proceed with negotiations with the owners of the Plaza Banderas Hotel, and recommended option three (heightened awareness) with regard to the closure of the waterline due to the north bound off- ramp construction. NOTIFICATION: Not applicable. ATTACHMENT(S): Attachment 1—Project Location Map Attachment 2—Project Schedule Attachment 3—Plans Attachment 4—Development Agreement Attachment 5—Project Components Attachment 6—EI Homo Line Map INDEX OF PLANS ._��r• m..t oaArt. AN/1[ STATE OF CALIFORNIA12' Oro 5.74 00%0.2 ` DEPARTMENT OF TRANSPORTATION _ ( w PROJECT PLANS FOR CONSTRUCTION ON � - - STATE HIGHWAY IN ORANGE COUNTY IN SAN JUAN CAPISTRANO ON ROUTE 6 FROM 0.2 MILE SOUTH OF ROUTE 5/74 SEPARATION TO 0.5 MILE NORTH OF ROUTE 5174 SEPARATION AND ON ROUTE 74 FROM 0.1 MILE WEST OF ROUTE 5/74 SEPARATION ` TO 0.1 MILE EAST OF ROUTE 5/74 SEPARATION TO BE SUPPL£N M0 ON STACA,"PLANS DATED Jai 200& Limit of work (Dol Obispo St) 5ta S"4+80.00 LOCATION W END CONSTRUCTION (ROUTES). Ste 'A" 539+00 PM 10.00 \ BEGIN WORK AND CONSTRUCTION (ROUTE 74) BEGIN CONSTRUCTION (ROUTES) \\\ Ste "B" 11+05.70 PM 0.00 Ste `A` 503+00 PM 9,30 ` 'e Limit of Work (Ortega Hwy) c Ste "N" 4+55.52 h 1 •� AMM QTY rRANSoOp:ATfON\WiNORI'.(OCTA?NETR*t.iN ,r+A2Lg0A0\` ; / t•o C�ts�� CANINO CAPISTRANO c gyp ' '! 5 44 Ies•\ s _ � & eartc a Puu ON ae -+��.--- 410- End work (Route 5) sao �' tr••+r e'• ° Ste "A" 550+00 cif* ! \/--. - -- AvFN70A•.. 4p Be in work (Route 5) Sto "A" 495+00 SAN JUAN v R CAPISTRANO \ 'aAO•i,row°amu,�,sw 04S a,"•�•�y ya END CONSTRUCTION (_ROUTE 74) 4�A End work (Rowe 741 \r" Ste «B« 26+00 {:`F,n4.'�t'..`r".rM i'. «. "x 0 o Stn "6" 22+20 PM 0.20 t �`s lstlfTrlF er:..+urr c'1rf.:+,a•1��!+Ir.. E •`l\ NO SCALE 1t, t'ONTRACT No. 12-OE3104 H [ o.e.:,a s«a t-muss na eu»�w a Aaxat • PROJECT 10 11200000102 d tlgLLSi as SOTCiF,m IY r«t'DrIR r0 E7LDL"S.' C 1-5 Interchan a Pi eline Relocation Schedule: 7/31/2012 Bid Plans and Specifications received from Engineer Bid Plans and Specifications to City Council for 8/7/2012 Authorization to Bid 8/9/2012 Bid Posted 1st time 8/14/2012 Planning Commission, CEQA Update Utilities Commission and City Council action on 8/21/2012 CEQA 8/31/2012 Bids Due 9/4/2012 Bid Award Considered by Ci Council 9/5/2012 Notice of Award to Contractor, Request Submittals 9/18/2012 Update Utilities Commission Receive Insurance and Bonds and Issue Notice to 9/20/2012 Proceed to Contractor 10/5/2012 Complete Submittal Process, Issue Start work order 10/15/2012 Contractor on Site within 10 days of Start Work order Contractor to move off Site to accommodate Holiday 12/21/2012 Season 1/2/2013 Contractor back on site to complete remaining work Caltrans Contractor on site, City's Contractor off site until Caltrans provides property, and or the work window and 2/1./2013 site access to allow City to complete its work The specific components of work to be completed during this specific phase are: • Water Element-6* • Water Element-7* • Water Element-8* • Water Element-11* *Detailed in Attachment 5 .:2 co ' I IMPROVEMENT PLAN FOR 1-5 AND ORTEGA HIGHWAY INTERCHANGE PIPELINE RELOCATION IN THE CITY OF SAN JUAN CAPWRANO a r ORANGE COUNTY, CALIFORNIA 9acr aooa .in .-Wva lHw y- I I wau•aar:,.w e- (•aq ly Rl•1 ��'' - t 1� J!W w•,,,yr. . to a CAaa. !�'I,•[Cba CM61ira ra0♦,r �' ! � J Wi• aww¢w w.« I t•! a le,e •M,rm vl•a¢r'mr.., _ ♦. , 'II , 1 u• t4IA,•a 61t6.1ap -,� -,¢�� y } '! w[er foaur.w K.t . 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CITY and STROSCHER are sometimes hereinafter referred to as the"Parties." RECITALS This Agreement is predicated upon the following facts: A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The Parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Development Agreement Legislation authorizes CITY to enter into binding development agreements with persons having legal or equitable interests-in real property for the development of such property in order to, among other things: ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of housing and'other development to the consumer; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing policies, rules, and regulations, subject to the applicable conditions of approval, in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the private and public economic costs of development; and encourage and provide for the development of public infrastructure and amenities to support the development of new housing and commercial projects. C. STROSCHER is the fee owner of that certain real property consisting of 3.18 acres of land located at the comer of Ortega Highway and El Camino Real in the City of San Juan Capistrano, County of Orange, State of California, that is more particularly described and depicted in Exhibit "A"attached hereto and made a part hereof(the"Property"). D. The Property consists of 3.18 acres, with a three-story, 124-room hotel, consisting of 76,363 square feet ("Hotel") on approximately 2 acres; 10,169 square feet two story office/retail building consisting of 6,467 square feet of retail on the first floor ("Retail Component") and 3,702 square feet of private office on the second floor(the"Private Office Space") ; 6,095 square feet for a restaurant ("Restaurant") and 190 parking spaces (the Hotel, Retail Component, the Private Office Space,Restaurant and parking spaces are collectively,the"Project"). E. In connection with approval of the Project, STROSCHER applied for, and CITY approved, General Plan Amendment 10-001; Rezone 10-001; Architectural Control 10-002; Grading Plan Modification 10-001; Tree Removal Permit 10-003; Floodplain Land Use Permit 10-001; and Tentative Parcel Map 10-001 (collectively, the "Development Plan Approvals"), in accordance with -1- the provisions of this Agreement, and other applicable regulations of the CITY and other governmental agencies having jurisdiction over the Property and the "Project" as defined in Section 1.24 below. F. STROSCHER has applied for, and CITY has approved, this Agreement in order to create a beneficial development project and a physical environment that will conform to and complement the goals of CITY,be sensitive to human needs and values,and facilitate efficient traffic circulation. By its approval and execution of this Agreement CITY .has determined that CITY (including, without limitation the existing and future residents of CITY) will receive the following direct and indirect benefits from the implementation of this Agreement: 1. The Project will conform to CITY's goal to manage growth through the use of, among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. 2. The traffic and circulation elements of the Development Plan will conform to CITY's General Plan by reducing the impact of the average daily trips generated by the Development of the Project on arterial roads and thoroughfares adjacent to the Expansion Parcels consistent with Transportation and Traffic Mitigation Measures set forth in the Mitigation Monitoring and Reporting Program("MMRP")for the Project. 3. Dedication to CITY of an easement interest in the air space over a portion of the Property, to be used by the City as a parking lot or parking facility ("Parking Lot Air Space Parcel"),to increase the number of parking spaces available for visitors to the Mission San Juan Capistrano. The Parking Lot Air Space Parcel shall not eliminate any of the Project's parking spaces and improvements to this air space shall not disrupt Development or operation of the Proiect. A depiction of the Parking Lot Air Space Parcel is attached hereto at Exhibit "B"and made a part hereof. 4. Development of the Project will generate significant increases in revenue to the City, through Project generation of Transit Occupancy Tax revenues (San Juan Municipal Code ("SJMC") Section 3-3.601 et seq.), sales tax revenues and increased property tax revenues. G. The following actions have been taken with respect to this Agreement and the Project: 1. On or about October 5, 2010, pursuant to the applicable provisions of the ' California Environmental Quality Act, Public Resources Code Section 21000 et seg., and the regulations promulgated by the Secretary of Resources pursuant thereto (Title 14 of the California Code of Regulations, Section 15000 etseq.) (collectively, "CEQA"), the City Council of CITY found and determined that all of the significant environmental impacts of the Project, including this Agreement, were adequately mitigated and adopted an Environmental Impact Report; 2. On or about September 14, 2010, following three duly noticed and conducted public hearings, the Planning Commission of CITY took action on the Project; -2- 3. On or about October 5, 2010, the City Council of CITY approved the Development Plan Approvals; 4. On or about June 30, 2011, atter a duly noticed and conducted public hearing, the City Council of CITY determined that the provisions of this Agreement were consistent with the General Plan of CITY; 5. On or.about June 30, 2011, pursuant to CEQA, the CITY Council of CITY found and determined that the previously certified Environmental Impact Report for the Project adequately describes the Agreement's environmental setting, impacts and alternatives and mitigation measures related to each significant impact; and 5. On or about June 30, 2011, after a duly noticed and conducted public hearing, the City Council of CITY introduced Ordinance No. 988 approving and authorizing the execution of this Agreement and on_July 5, 2011, the City Council of CITY adopted said Ordinance(hereinafter the "Authorizing Ordinance"),a copy of which Authorizing Ordinance is on file in the City Clerk's office at City Hall. H. In consideration of the substantial public improvements and benefits to be provided by STROSCHER and the Project,-and in order to strengthen the public planning process and provide significant educational and economic benefits to the City of San Juan community,by this Agreement CITY.intends to provide to STROSCHER the assurance that it can proceed with Development of the Project for the Term of this Agreement pursuant to the terms and conditions of this Agreement and in accordance with the CITY's General Pian, ordinances,policies, rules, and regulations existing as of the Effective Date. In reliance on CITY's covenants in this Agreement concerning Development of the Property, STROSCHER has and will in the future incur substantial costs in site preparation and the construction and installation of major infrastructure and facilities in order to make the Master Plan feasible. 1. Pursuant to Section 65867.5 of the Development Agreement Legislation, the City Council has found and determined that: (i) this Agreement and the Development Plan for the Project implement the goals and policies of CITY's General Plan,provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within the City of San Juan Capistrano, (ii) this Agreement is in the best interests of and not detrimental to the public health, safety,and general welfare of CITY and its residents; (iii)adopting this Agreement is consistent with CITY's General Plan and constitutes a present exercise of CITY's'police power; and (iv) this Agreement is being entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement legislation. J. CITY and STROSCHER agree that it may be beneficial to enter into additional agreements and operating memoranda, or to modify this Agreement with respect- to the implementation of the separate components of the Development Plan when more information concerning the details of each component is available, and that this Agreement should expressly allow for such contemplated additional agreements, operating memoranda, and modifications to this Agreement. -3- K. Project Mitigation Measure MM 4.1 l.201b and Project Condition of Approval No. 48 require STROSCHER to construct a loop system to run from a POC in the 350C system at the intersection of E1 Homo and the I-5 Freeway ("El Homo Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). The "Ortega Section"to which the El Homo Section is to connect includes the water line from a point 200 foot east of the intersection of Camino Capistrano and Ortega Hwy., then continuing easterly on Ortega Hwy. to the intersection of Ortega Highway and Avenida Los Cerritos. Compliance of these conditions may be resolved as follows: 1. During the future reconstruction of the Ortega Bridge over the I-5, CITY has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Homo Section provide sufficient fire flow as determined by the fire marshall, STROSCHER shall not. be required to construct the Ortega Section: Prior to the time the Ortega Section is to be constructed, STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction and/or the Parties may enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the Ortega Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 2. STROSCHER shall construct the El Homo Section to provide sufficient fire flow to the Property as determined by the fire marshall. STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction should new development be proposed, which would benefit from the El Homo Section construction. The Parties may further enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the El Homo Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the El Homo Section. 3. Subject to exercising its legislative discretion, the CITY shall consider the creation of a utility district to fund the undergrounding of power lines along El Camino Real ("Undergrounding of Power Lines"). L. CITY agrees, subject to exercising its legislative discretion, to assist STROSCHER in its attempts to have Caltrans reconstruct the entryway to the Project, which may be required due to the future relocation and expansion of Ortega Highway by Caltrans. CITY's assistance to STROSCHER shall not include the provision of any financial assistance, unless CITY, in its sole discretion,deterzhines to provide financial assistance. M. The Stroscher Family previously conveyed to the County of Orange rights-of-way which were to be used in the construction of the Ortega Highway. Ultimately, the City succeeded to the interest of the County of Orange, and presently owns the rights-of-way, which no longer are needed for future improvement of the Ortega Highway ("Excess Ortega Rights-of-Way"). The Excess Ortega Rights-of-Way are depicted on Exhibit "C"attached hereto and made a part hereof. AGREEMENT NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Article XI, Section 2 of the California Constitution, -4. and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement, and for the further consideration described in this Agreement,the Parties agree as follows: 1. Definitions. The following words and phrases are used as defined terms throughout this Agreement and each defined term shall have the meaning set forth below: 1.1 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No. 988 approving this Agreement. 1.2 CEA. "CEQA" has the meaning ascribed to that term in Recital F.I of this Agreement. 1.3 CITY. "CITY" means the City of San Juan Capistrano, a California municipal corporation, duly organized and existing under the Constitution and laws of the State of California, and all of its officials,employees,agencies,and departments. 1.4 City Council. "City Council"means the duly elected and constituted city council of CITY. 1.5 Default. "Default",has the meaning ascribed in Section 91 or 9.2 of this Agreement, as applicable. 1.6 Develop. Development or Developing. "Develop," "Development" or "Developing" means the improvement and use of the Property, as the term "Development" is defined in California Government Code Section 65927, for purposes consistent with the Project and this Agreement, all in accordance with the provisions of this Agreement, but does not include the maintenance, repair, reconstructiop; or redevelopment of any building, structure, improvement, or facility after the initial construction and completion thereof. 1.7 DeveloVer. Developer means Stroscher G3, LLC, all successors in interest, in whole or part, to the right,title, and interest of any of such entity in and to this Agreement with respect to all or any portion of the Property. 1.8 Development Agreement Legislation. "Development Agreement Legislation"means Sections 65864 through 65869.5 of the California Government Code as it exists on the Effective Date. 1.9 Development Exactions. "Development Exactions" means any requirement of CITY in connection with the Existing or Subsequent Land Use Regulations or Development Plan Approvals, for the dedication of land(including without limitation through the encumbrance of land with an easement or use restriction), the construction or improvement of public improvements or facilities(including without limitation improvements or facilities located on land that is encumbered with an easement or use restriction in favor of a public-agency, the public, or a private non-profit entity), or the formation of any Financing District and/or payment of any special taxes, assessments, or fees, in order to provide any such public improvements or facilities in conjunction with -S- Development or to lessen, offset, mitigate, or compensate for the impacts of development on the environment or other public interests consistent with the Project and this Agreement_ 1.10 Development Impact Fees. "Development Impact Fees" shall mean those fees established and adopted by CITY with respect to development and its impacts pursuant to applicable governmental requirements, including Section 66000 et seq., of the California Government Code, including impacts fees, linkage fees, exactions, assessments or fair share charges or other similar impact fees or charges imposed on or in connection with new development by the CITY. Development Impact Fees do not mean or include Processing Fees. The Development Impact Fees are the only Development Impact Fees that the City may impose or levy on the Project. 1.11 Development Plan.. "Development Plan"means the plan for Developing the Project on the Property in accordance with this Agreement, the Development Plan Approval(s), and the Future Approvals: As of the Effective Date,the Development Plan consists of the.Master Plan,provisions of CITY's General Plan (as amended through the General Plan Amendment referred to in Recital E) applicable to the Property, the narrative description of the Project set forth in Exhibit "D" to this Agreement, the Development Plan Approvals set forth in Exhibit "E" to this Agreement, and the express provisions set forth in this Agreement that define or describe the Project. The Future Development Approvals automatically shall become a part of the Development Plan and included within the scope of STROSCHER's vested rights provided for in this Agreement without the need for any amendment of this Agreement when the same are issued or approved by CITY and become effective. Each of the-documents memorializing the Development Plan is (or will be)maintained in the official records of CITY and shall be utilized whenever required to interpret or apply this Agreement. 1.12 Development Plan Mproval(s). "Development Plan Approval(s)" means the approvals of the City Council descn'bed in Exhibit "E" hereto insofar as the same relate to the Property and the Development Plan, including those amendments to this Agreement made in accordance with Section 3.8 hereof,those amendments to the Development Plan Approval(s)made in accordance with Section 3.9 hereof, and those Future Development Approvals made in accordance with Section 3.6 hereof. 1.13 Development Transferee. "Development Transferee" means a person or entity that expressly assumes obligations under this Agreement pui-suant to Section 2.5 hereof.' 1.14 Discretionary Action(s) or Discretionary Anproval(s). "Discretionary Action(s)" or "Discretionary Approval(s)"weans an action which requires the exercise of judgment,deliberation or discretion on the part of the CITY including any board, agency, commission or department and any officer of employee thereof, in the process of approving or disapproving a particular activity, as distinguished from an activity which is defined herein as a Ministerial Permit or Ministerial Approval. 1.15 Effective Date. "Effective Date" means the date the Authorizing Ordinance becomes effective. 1.16 Existing Land Use Reeulations. "Existing Land Use Regulations" means all ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other action of CITY, including but not limited to the CITY's General Plan Municipal Code and Zoning -6- Code and including all Development Impact Fees, which affect, govern or apply to the Development and use of the Property, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes,and the'design, improvement and construction standards and specifications applicable to the Development of the Property, subject to the terms of this Agreement,whether adopted by the City Council or the voters in an initiative, which are in effect on the Effective Date,pursuant to California Government Code Section 65866. 1.17 Future Development Approvals. "Future Development Approvals" means those entitlements and approvals that are: (a) made in accordance with Section 3.6 hereof; and (b)requested by STROSCHER in order to authorize the Development to occur upon the Property in a manner consistent with the Development Plan Approval(s). . By way of enumeration, and not limitation of the foregoing, the Future Development Approvals include such development permits, development plan reviews, use permits, variances, grading permits, building permits, and occupancy permits that are required as a condition to STROSCHER's right to Develop pursuant to the Development Approvals for all or any portion of the Project. There is no intention to include any approvals that are beyond the implementation of the specific development listed on Exhibit "D". 1.18 Ministerial__Approval(s) _ or Ministerial Act(s). "Ministerial Approval(s)" or "Ministerial Act(s)" means a permit approval or clearance, conformance with the Existing Land Use Regulations, including,without limitation,conformance maps for tentative tract maps,determinations of compliance with the Project Conditions of Approval of the Existing Project Approvals, site plans, grading plans, improvement plans,building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits,wall permits, building permits, lot line adjustments, encroachment permits, temporary use permits, certificates of use and occupancy, and approvals and entitlements and related matters as necessary for the completion of the Development of the Property as distinguished from an activity which is included in the definition of Discretionary Action or Discretionary Approval. 1.19 On-Site Improvements. "On-Site improvements" means physical infrastructure improvements or facilities that are or will be located on the Property consistent with the Development Plan Approvals. . 1.20 Owner. "Owner"means STROSCHER. 1.21 P'ari:,v or Parties. "Party" means either CITY or STROSCHER,as the context dictates, and "Parties"means CITY and STROSCHER. 1.22 Planning Commission. "Planning Commission" means the duly appointed and constituted planning commission of CITY. 1.23 Processing Fees. "Processing Fees" means all fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Future Development Approvals. 1.24 Project. "Project" means the Development and Approvals summarized in Recital E, the planning elements of which are more specifically described in Exhibit "E"hereto. -7- 1.25 roe . "Property." means the Property referred to in Recital C and more particularly described in Exhibit "A"to this Agreement. 1.26 Tenn. "Term" means the period of time that this Agreement remains in effect with respect to the Property or any portion thereof,as provided in Section 2.3. 2. General Provisions. 2.1 Binding Covenants. The provisions of this Agreement to the.extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the Parties and all successors in interest to the Parties hereto. 2.2 Interest of STROSCHER. As of the date this Agreement is being executed by the Parties, STROSCHER represents that STROSCHER is the fee owner of that certain real property consisting of 3.18 acres of land located at the northwest comer of Ortega Highway and El Camino Real in the City of San Juan Capistrano, County of Orange, State of California, that is more particularly described and depicted in Exhibit "A" attached. hereto and made a part hereof (the "Property"). 2.3 Term. In addition to the provisions of Section 10.4 of this Agreement,the initial term (hereinafter called "Term") of this Agreement shall commence on the Effective Date and shall terminate at the end of the day immediately preceding the fifth (5d) anniversary of the Effective Date, subject to the termination provisions set forth herein; provided, however, that so long as STROSCHER is not in Default of this Agreement and the Agreement has not been otherwise terminated, STROSCHER may request CITY to extend the Term for up to three (3) one-year extensions of the Term. City shall have the discretion as to whether to approve or deny any such extension request(s)made by STROSCHER. STROSCHER's request(s)to extend the Term shall be submitted not more than one hundred eighty (180) days and no less than sixty(60) days before the end of the Term. Pursuant to California Government Code Sections 65863.9 and 66452.6(a), the expiration date of all Development Plan Approvals shall be extended for the greater of the Term of this Agreement, in which case no such extension application need be filed,or such time approved in accordance with state law or the Existing Land Use Regulations. The Parties agree that phased final subdivision maps maybe processed and recorded. 2.4 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (i) If termination occurs pursuant to any specific provision of this Agreement;or (ii) As to provisions of this Agreement governing On-Site improvements on any separate legal lot(s) or parcel(s) within the Property, upon the completion of On-Site Improvements on and with respect to said lot(s) or parcel(s) pursuant to the terms of this Agreement and CITY's issuance of all required occupancy permits or final inspections,-as applicable, and acceptance of all dedications and improvements required to complete such On-Site Improvements;or (iii) Entry after all appeals have been exhausted of a final judgment or issuance of a final order directed to CITY invalidating this Agreement. -8- The termination of this Agreement in its entirety or with respect to a particular lot(s) or parcel(s) shalt not affect any right or duty of STROSCHER arising from any provisions of this Agreement that remain effective or from a source other than this Agreement. In the event this Agreement terminates in its entirety or with respect to a particular lot(s) or Parcel(s), and notwithstanding any other provision set forth herein,upon request by STROSCHER,or any other successor or assignee of either of them, CITY shall cooperate, at no cost to CITY, in executing in recordable foam a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof. 2.5 Transfers and AssignnmeM. 2.5.1 STROSCHER ("Owneel shall not assign all or any part of this Agreement without the prior written approval of the CITY. Such written approval by the CITY shall not be unreasonably withheld,provided that: (a) if Owner's•proposed assignee is an entity, such entity shall be legally formed and qualified to condtict business in the State of California; (b) Owner shall have delivered evidence to CITY that Owner's proposed assignee has the ability to comply with the Agreement; (c) Owner and -its/their assignee execute an assignment and assumption agreement pursuant to which the assignee expressly assumes all of Owner's obligations under the Agreement; and(d)CITY shall bear no expenses in connection with such assignment. Notwithstanding any other provision of this Agreement, Owner need not obtain the prior written approval of CITY for the assignment of this Agreement to a limited liability company, limited partnership or corporation wholly-owned by,or under Owner's control. 3. Development Provisions. 3.1 Vesting. 3.1.1 r 'ect. CITY covenants STROSCHER has and shall have the right to Develop the Project on the Property consistent with the Development flan and the Development Plan Approval(s), including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective("vested right"). 3.1.2 Limits on Development. The California Supreme Court held in Pardee Construction Company v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties to address certain limits on a city's ability to condition, restrict, or regulate a development allowed a later adopted initiative to restrict the development. This Agreement is intended to cure that deficiency by expressly addressing the timing for.the Development,the vested rights afforded by this Agreement, and the scope of CITY's reserved authority described in Section 3.2 hereof. Except as expressly set forth in the Development PIan and Development Plan Approval(s), regardless of any future enactment, whether by initiative or otherwise, STROSCHER shall have the vested right to Develop the various components of the Project in such order, at such rate, and at such times as STROSCHER deems appropriate within the exercise of its subjective business judgment. Specifically, CITY agrees that STROSCHER shall be entitled to apply for and receive the Future Development Approvals and to Develop and use the Property at any time, provided that such application is made and such Development occurs in accordance with this Agreement and the other Development Plan Approval(s). No future amendment of any CITY law and no future- adoption of any CITY law or other action that purports to limit the scope, rate; or timing of Development on the -9- Property or to alter the sequencing of the Development in a manner inconsistent with the Development Plan or the Development Plan Approval(s) (including without limitation the Future Development Approvals when issued by CITY), whether the same are adopted or imposed by the City Council or through the initiative or referendum process, shall .apply to the Property. Notwithstanding the foregoing, nothing in this Section 3.1 shall limit or restrict CITY's reserved authority as described in Section 3.2. 3.1.3 l ntidements.'Permits,and Approyals—Cooperation. 3.1.3.1 Processing. CITY agrees that it shall accept and expeditiously process, pursuant to CITY's regular procedures, • complete applications for the Future Development Approvals and, if applicable, STROSCHER's complete applications for amendments to this Agreement, to the Development Plan Approval(s), and to any of the Future Development Approvals(after the some have been initially approved). 3.1.3.2 Other Permits. CITY further agrees to reasonably cooperate with STROSCHER, at no cost to CITY, in securing any County, State, and Federal permits or authorizations which may be required in connection with Development of the Property that are consistent with the Development PIan and Development Plan Approval(s); provided, that nothing in this Section 3.1.3.2 shall be deemed to require CITY's assumption of any obligations under any said permits or authorizations. 3.1.3.3 Acquisition of Off-Site PropM. CITY shall not postpone or refuse approval of any Future Development Approval because STROSCHER or a Development Transferee has failed to acquire off-site property required for the construction or installation of offsite improvements. To the,extent CITY, STROSCHER, or a Development Transferee does not have sufficient title or interest to permit any of such offsite improvements that are such entity's responsibility to be constructed or installed at the time the application for a Future Development Approval is processed or approved by CITY, STROSCHER or the Development Transferee shall make a good faith effort to acquire the required property. If STROSCHER or the Development Transferee is unable to acquire the required property, CITY shall.consider in good faith the acquisition of the required property. If CITY is unable to acquire the required property by negotiation or condemnation within the time frame provided for in Government Code Section 66462.5, CITY shall continue to issue the Future Development Approval(s) for the Property despite the fact that the offsite improvement has not been completed. Notwithstanding the foregoing, CITY's obligation to continue to issue the Future Development Approvals as provided for in this Section is contingent upon: (i)STROSCHER or the Development Transferee submitting the improvement plans required for the improvement to CITY; and (ii)consistent with Government Code Section 66462.5, STROSCHER or the Development Transferee entering into a mutually acceptable agreement with CITY that requires STROSCHER or the Development Transferee to pay or reimburse or secure the future payment or reimbursement of CITY for STROSCHER's fair share of the costs incurred in acquiring the land and constructing the applicable offsite improvement(s) at such time as CITY acquires the required land -10- 3.2 Reserved Authority. 3.2.1 Reservation of Authority With Respect to Future Development Anprovals• Future Changes in Development,Exactions. Notwithstanding any other provision set forth in this Agreement to the contrary, CITY reserves the right after the Effective Date-of this Agreement to change the Existing Land Use Regulations applicable to the Property and the Project and to exercise the same degree of discretion and control in its consideration of Future Development Approvals that it would have in the absence of this Agreement to impose conditions under CEQA and other applicable laws and regulations that apply to all similar development throughout the CITY in order to mitigate the Project's impact on the environment,subject to the following limitations: (i) Although CITY reserves the authority to change its Existing Land Use Regulations, no such future changes in the Existing Land Use Regulations shall apply to the Project, if such future changes in the Existing Land Use Regulation would be inconsistent with the Development Plan, the Project Development Approvals, or any of the provisions of this Agreement, nor shall any such future changes applicable to the Project materially jeopardize or impair the rights of STROSCHER thereunder or materially increase the cost of Developing the Project; (ii) Upon request by STROSCHER,CITY shall provide written support to STROSCHER, if STROSCHER files a request for waiver or reduction of a Development Exaction imposed by any governmental or quasi-governmental agency, aside from the CITY 3.2.2 Uniform Codes. This Agreement shall not prevent CITY from applying-to the Project new uniform construction standards adopted by the State of California as State Codes, such as the Uniform Building Code, National Electrical Code; Uniform Mechanical Code, and Uniform Fire Code, provided those same standards are applied to all other development within the City of San Juan Capistrano. 3.2.3 State and Federal Laws and Regulations. STROSCHER shall comply with all applicable state and federal Iaws and regulations,provided that nothing in this Agreement shall be deemed to limit or restrict the right of STROSCHER to contest or challenge the validity of any such laws or regulations or their applicability to the Property or the Project. In the event that either CITY or STROSCHER determines that a state or federal law or regulation prevents the full implementation of the Development Plan and/or any of the Development Plan Approval(s), that Party shall provide the other Party with written notice of the state or federal law or regulation, a.copy of the law or regulation,and a written statement of the conflicts between such state or federal law or regulation and this Agreement. Promptly thereafter CITY and STROSCHER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement is required, provided that each Party reserves its discretion with respect thereto. CITY agrees to cooperate with STROSCHER in resolving the conflict in a manner which minimizes any adverse fiscal or other impact of the conflict upon STROSCHER, provided only that in no event does CITY agree*that in such event it will materially increase its financial obligations set forth in this Agreement or otherwise materially increase its obligations. CITY also agrees to process in a prompt manner STROSCHER's proposed changes to the Development Plan and/or Development Plan Approval(s)as may be necessary to comply with such federal or state law or regulation; provided, however, that the -H- approval of such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement. 3.2.4 Suspension of Development in Order to Protect Health and Safety_. Nothing in this Agreement shall be construed to be in derogation of CITY's police power to suspend the-right of STROSCHER to develop all or any portion of the Project in order to protect the public health and safety (e.g., in the event of the unavailability of adequate water, wastewater treatment, or storm drainage facilities). In the event that CITY determines that the public health or safety require a suspension of STROSCHER's right to develop all or any portion of the Project, the scope of the suspension shall be limited to the extent determined by CITY to be reasonably necessary to protect the public health or safety, the term of the suspension shall be limited to the period of time during which the public health or safety concern continues, and CITY shall exercise reasonable good faith efforts to minimize the period of such suspension to the extent that the cause thereof is within CITY's control. As soon as is reasonably practicable after the commencement of an event that results in a suspension of the rights of STROSCHER to develop hereunder due to public health or safety concerns, CITY shall provide STROSCHER with written notice of the existence of such event, a detailed explanation of CITY's proposed action, and a written statement of any conflicts with the provisions of this Agreement that require a suspension of any of the terms hereof. Promptly thereafter CITY and STROSCHER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement in whole or in part, is necessary. In such negotiations, CITY and STROSCHER agree to preserve the terms of this Agreement and the rights of STROSCHER as derived from this Agreement to the maximum feasible extent while resolving the conflict. CITY agrees to cooperate with STROSCHER in a good faith reasonable effort to resolve any such conflict in a manner which minimizes any adverse financial or other impact of the conflict upon STROSCHER without materially increasing the obligations of CITY under this Agreement. CITY also agrees in such 'event to process in an expedited manner STROSCHER's proposed changes to the Development Plan and any previously issued Development Plan Approval(s) as may be necessary to appropriately respond to the public health and safety concern with respect.to the portion of the Property owned by STROSCHER; provided, however, that the approval of any such changes by CITY shall be subject to the discretion of CITY,consistent with this Agreement,and no such change shall apply to any other portion of the Property without the prior written consent of the owner(s).thereof. 3.3 1~urther Assurances to STRO5CHER Regarding Exercise of Reserved Authority. The Parties further acknowledge that the public benefits to be provided by STROSCHER to CITY pursuant to this Agreement are in consideration for and reliance upon assurances that the Property may be developed and used in accordance with the Development Plan and.the Development Plan Approval(s). Accordingly, while recognizing that the Development of the Property may be affected by the exercise of the authority and rights reserved and excepted as provided in Sections 3.1 ("Vesting") and 3.2 ("Reserved Authority"), STROSCHER is concerned that normally the judiciary extends to local agencies significant deference in the adoption of rules, regulations,and policies and that in the.absence of an express provision set forth in this Agreement such judicial deference might be construed to permit CITY, in violation of the limitations on its reserved authority, to attempt to apply rules, regulations, and policies that are inconsistent with the Development Plan and the Development Plan Approval(s). Accordingly, STROSCHER desires assurances that CITY shall not, and CITY agrees that it shall not, further restrict or limit the Development of the Property in violation of this Agreement except in strict accordance with the reserved authority described in Section 3.2 hereof, which exercising of CITY's reserved authority shall not be considered to be a -12- violation of this Agreement. In this regard, from and after the date that CITY approves the Project, if STROSCHER judicially (including by way of a reference proceeding) challenges CITY's purported exercise of its reserved authority as being in violation of this Agreement, STROSCHER shall bear the burden of alleging that such purported exercise by CITY of its Reserved Authority is inconsistent with the Development Plan or the Development Plan Approval(s) and CITY thereafter shall bear the burden of proof in establishing by a preponderance of the evidence that such exercise of its Reserved Authority is in accordance with and not a violation of this Agreement. 3.4 Vested Right. By entering into this Agreement and relying thereupon, STROSCHER is obtaining certain vested rights to proceed with the Development anticipated by the Development Plan and the Development Approvals and in accordance with the terms and conditions of this Agreement(as the same may be amended and supplemented from time to time as expressly set forth herein) and the Existing Land Use Regulations. By entering into this Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public,health, safety; and welfare. CITY therefore agrees to the following: 3.4.1 No Conflicting Enactments. Except as provided in Section 3.2 of this Agreement, after the Effective Date neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance, or other measure (collectively, "law") applicable to the Property which is inconsistent or in conflict with this Agreement. Not by way of limitation of the foregoing, any law, whether by specific reference to this Agreement or otherwise, shall be considered to be inconsistent and in conflict with this Agreement if it has any of the following effects: (i) It limits or reduces the occupancy; density or intensity of the Project as provided for in the Development Plan or the Development Plan Approval(s);or (ii) it imposes Development Exactions on the Property other than those in effect on the Effective Date or as otherwise expressly permitted by Section 3.2.1 of this Agreement. 3.4.2 Consistent Enactments. By way of enumeration and not limitation, the following types of laws shall be considered consistent and not in conflict with this Agreement: (i) . Laws that provide for the relocation of structures within the.Property pursuant to an application from STROSCHER;and (ii) Any law that is expressly authorized by this Agreement. 3.4.3 Initiative Measures. In accordance with state law, in addition to and not in limitation of the foregoing, it is the intent of STROSCHER and CITY that no moratorium or other limitation(whether relating to the Development of all or any part of the Property and whether enacted by initiative or otherwise)affecting site development permits, precise plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within CITY,or portions of CITY,shall apply to the Property to the extent such moratorium or other limitation would restrict STROSCHER's right to Develop the various elements of the Project on the Property in such order and at such rate as STROSCHER deems appropriate. 3.5 Subsequent CEQA Review. -13- 3.5.1 The E The CITY certifies that the EIR prepared on behalf of the CITY in conjunction with the Project is a complete and accurate document which satisfies all the requirements of the California Environmental Quality Act ("CEQA," Califbmia Public Resources Code Section 21000 et seq.) and the State CEQA Guidelines (14 California Code of Regulations 15000 et seg.) with respect to the Project and this Agreement. CITY agrees that no mitigation measures arising out of environmental concerns that are not included in the MMRP for the EIR or this Agreement shall be imposed on the Project except as otherwise provided in this Section. In exercising its legislative discretion to enter into this Agreement and to commit CITY to the completion of the Project, CITY has further reviewed and considered from a variety of perspectives, and has analyzed pursuant to a variety of assumptions,the projected future regional and cumulative environmental demands that will compete with the Project for available capacities and cumulatively add to potential adverse impacts. 3.5.2 Subsequent CEQA Review. In accordance with state law, the Parties to this Agreement intend that the EIR fully and adequately addresses all potential adverse environmental impacts from full development of the Project. After consideration of the potential adverse environmental impacts'associated with the Project, the CITY has imposed mitigation measures in accordance with CEQA, as specified in the MMRP to the fullest extent the CITY considers feasible and necessary. The CITY has determined that the Development of the Project in the manner contemplated by the Project Approvals and this Agreement will provide the mitigation measures needed to alleviate short-run and Iong-run potential adverse environmental impacts created by the Project, and that the public benefits to be derived from the Development of the Project override any potential adverse environmental impacts which may arise from the Development of the Project. Therefore, the CITY agrees that no subsequent or supplemental EIR shall be required by the CITY for any Subsequent Discretionary Project Approvals implementing the Development of the Project unless required pursuant to California Public Resources Code Section 21166 and Title 14 California Code of Regulations,Section 15162. For purposes of this analysis, the term "new information"does not mean discovery that probabilities of adverse (or beneficial)results considered in the approval of this Agreement, the Existing Project Approvals or the EIR may prove incorrect, or that such probabilities are or are not becoming, or have or have not become, realities; but instead, "new information" requires that the actual quantitative or qualitative extent of the underlying issues were not considered and could not have been considered in the environmental analysis associated with the approval of the Existing Project Approvals,this Agreement and the EIR. 3.6 Subsequent Project Annrovals. 3.6.1 Basis for Denying or Conditional Granting Subsequent Prgject Annrovals. The CITY is bound to permit the uses on the Property that are permitted by the Existing Land Use Regulations and the Development Plan Approvals. The CITY agrees to grant and implement all Ministerial Approvals, as long as the Ministerial Approvals comply with the Existing Land•Use Regulations, the Agreement, and are consistent with the Development Plan Approvals, including but not limited to,building plans and permits,specifications, reclamation plans, landscape plans, grading plans and permits, and use permits reasonably necessary or desirable to accomplish the goals, objectives, policies and plans described in this Agreement. This Agreement shall not prevent the CITY.from denying or conditionally approving any Discretionary Approval on the basis of the Existing Land Use Regulations, subject, however, to the provisions of Sections 3.1 and 3.4 of this Agreement. -14- 3.6.2 Duty to Grant and Implement. Subject to the requirements of state law and the CITY Municipal Code, the CITY's obligation to grant and implement any Ministerial or Discretionary Approvals shall not infringe upon the CITY's right to withhold such Future Development Approvals for failure of the applicable Application to conform to the Existing Land Use Regulations. If the CITY rejects an application for a Ministerial or Discretionary Approval, it shall provide, in good faith, a specific list of reasons why the application was rejected, along with a description of reasonable measures ("Measures to Correct") to correct each basis for rejection. If Developer resubmits its application incorporating all the Measures to Correct, the CITY shall not unreasonably deny Developer's application. 3.6.3 Processing Obligations. The CITY hereby agrees that it will accept from the Developer. for processing and review all applications for Future Development Approvals, in accordance with the Existing Land Use Regulations. To the fullest extent allowed by law,the CITY shall process all applications filed in connection with the Development of the Project as expeditiously as possible and shall complete at the earliest possible time all steps necessary for the implementation of this Development Agreement and the Development of the Project, including,but not limited to,the following: (a) The processing of applications for and the issuance of all Project Approvals requiring the exercise of judgment and deliberation by the CITY, including without limitation,the Subsequent Project Approvals; (b) The retention, upon the Developer's request, of outside plan check consultants, to be selected by CITY, in consultation with STROSCHER, to assist in processing of applications and plans(including infrastructure and storm drain plans),at the Developer's cost; (c) The holding of any required public hearings;and (d) CITY performance of all required inspections called for by Developer within fifteen(15)business days following the request for inspection by Developer. 3.6.4 Changes in the Project. In accordance with the City Municipal Code, CITY acknowledges that the Developer may in the future desire to change or modify the Project based on precise planning, changes in market demand for aggregate products, changes in development occurring in the vicinity of the Property, or other factors. All such Project revisions shall be subject to the provisions of Subsections 3.5.1, 3.5.2;3.6.1, 3.6.2 and 3.6.3 of this Agreement. In such event, CITY shall cooperate with Developer to expeditiously review and take final action on such requested changes in accordance with the Existing Land Use Regulations. No change to the Project which is consistent with the Existing Land Use Regulations shall require an amendment to this Agreement and, in the event any change to the Project proposed by Developer is approved by the CITY, the references in this Agreement to the Project of applicable portion thereof shall be deemed to refer to the Project as so changed 3.7 Development Impact Fees. Notwithstanding anything to the contiary in this Agreement, and subject to the provisions of Section 3.7.1, the only Development Impact Fees that may be applied to the Project, Developer or Property in connection with the Project shall be those existing on the Entry Date. Development Impact Fees shall be paid at the fee rate in effect at the -15- time when payment for such fees is due and payable, for the portion of the Property to which such fees apply. 3.7.1 Applicability of Temporary Reductions in Development Impact Fees. On July 20,2010,the City Council adopted Resolution No. 10-7-20-01,mandating a seventy-five percent (75%) reduction in sewer, traffic, and water Development Impact Fees for hotels and vehicle dealerships from the rate otherwise applicable for commercial/industrial uses (collectively, the "Decreased Impact Fees"). Notwithstanding the July 31, 2011 expiration date of Resolution No. 10- 07-20-01, the Project shall be subject to the Decreased Impact Fees, as long as the first building permit for construction of the hotel building is issued on or before the second(2°d)anniversary of the Effective Date. If the first building permit for construction of the hotel building is issued after the second (2"d) anniversary of the Effective Date and before the third (3'd) anniversary of the Effective Date, then the Project shall qualify for a fifty percent'(50%) reduction in sewer, traffic and water Development Impact Fees. If the first building permit for construction of the hotel building is issued after the third (3`d) anniversary of the Effective Date and before the fourth (0) anniversary of the Effective Date,then the Project shall qualify for a fifty percent (25%)reduction in sewer, traffic and water Development Impact Fees. No reduction will be available after the fourth(4`)anniversary of the Effective Date. Pursuant to Resolution No. 10-7-20-01,the Decreased Impact Fees shall apply to the hotel portion of the Project. Furthermore, the parties agree that if the expiration date of Resolution 10-7-20-01 is extended or a similar fee reduction program is established which provides lower fees than those stipulated to herein,the lower fee program shall apply. 3.7.2 Develoner's,Riiaht to Contest Increases in Development Impact Fees. Nothing in this Agreement shall prevent Developer from contesting, in any appropriate forum, the imposition or the amount of any new Processing Fees or any increase in the Development Impact Fees. Such right of protest shall not extend to the current amount of any Development Impact Fees or Processing Fees in effect as of the Entry Date of this Agreement,and the Developer hereby agrees to pay the same pursuant to the terms of this Agreement and the ClWs normal fee payment schedule. Notwithstanding any pending contest of such fees, CITY shall proceed with issuance of all required Project Approvals and shall not withhold or delay issuance of those Project Approvals based upon any pending protest or appeal with respect to such fee. 3.8 Amendment of Development Agreement. 3.8.1 Initiation of Amendment. Any Party may propose an amendment to this Agreement, and all Parties agree that it may be beneficial to enter into additional written agreements or modifications of this Agreement in connection with the Development of the separate components of the Development Plan. Notwithstanding any provision of this Agreement to the contrary, no amendment to the Development Plan or to any conditions of approval contained therein shall require an amendment of this Agreement. 3.8.2 Procedure. Except as set forth in Section 3.8.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance. -16- 3.8.3 . C. onsent. Except as expressly provided in this Agreement, any amendment to this Agreement shall require the written consent of all affected Parties. An amendment to this Agreement shall not be deemed to affect a portion of the Property if it does not alter,jeopardize, or impair the rights and does not increase the obligations of STROSCHER that owns said portion of the Property. No amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the affected Parties. 3.8.4 Operating Memoranda. The Parties acknowledge that refinements and further development of the Development Plan may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Development Plan and with respect to those items covered in general terms under this Agreement. If and when the Parties mutually find that changes, adjustments,or clarifications are minor in nature and are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications without amendment to this Agreement through operating memoranda mutually approved by the Parties, which, after execution, shall be attached hereto as addenda and become a part hereof and which may be further changed and amended from time to time. The City Manager shall have the authority, on behalf of CITY, to approve and execute such operating memoranda and STROSCHER shall have the authority, on behalf of STROSCHER, to approve and enter into such operating memoranda. Unless otherwise required by law or by the Development Plan Approval(s),no such changes,adjustments,or clarifications shall require prior notice or hearing. 3.9 Future Amendments to Development Plan. Subject to the provisions of Sections 3.5 and 3.6 of this Agreement. The following rules apply to future amendments to the Development Plan: 3.9.1 STROSCHER's Written Consent. Any Development Plan amendment to which STROSCHER does not agree in writing shall not apply to the Property while this Agreement is in effect. 3.9.2 Concurrent Development Agreement Amendment. Any Development Plan amendment requiring amendment of this Agreement shall be processed concurrently with an amendment to this Agreement. 3.9.3 Effect of Amendment. Except as expressly set forth in the Development Plan amendment itself or this Agreement, a Development Plan amendment shall not alter, affect, impair, or otherwise impact the rights, duties, and obligations of the Parties set forth in this Agreement. 4. Miscellaneous Obligations of the Parties. 4.1 STROSCHER's Obligations. 4.1.1 Proiect Conformance with CITY Policies and Its General Plan. The Project shall conform to CITY's goal to manage growth through the use of, among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. The traffic and circulation elements of the Development Plan will conform to CITY's General Plan. -17- 4.1.2 Dedication of Easement Interest for Parking Lot AiE Space' Parcel. As depicted in Exhibit 'B", prior to approval of a final map for the Property, STROSCHER shall dedicate to the CITY,an easement interest in the Parking Lot Air Space Parcel. If the CITY does not accept this dedication before this Agreement expires,then the CITY agrees that the Parking Lot Air Space Parcel will revert to STROSCHER. In no event shall dedication of the easement interest of the Parking Lot Air Space Parcel eliminate any of the Project's parking spaces, and future improvements in this air space shall not disrupt the Development or operation of the Project. 4.1.3 Wager System Upgrade. Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No. 48 require STROSCHER to construct a loop system to run from a POC in the 350C system at the intersection of El Homo and the I-5 Freeway("El Homo Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). Compliance of these conditions may be resolved as follows: a. During the future reconstruction of the Ortega Bridge over the I-5, CITY has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Homo Section provide sufficient fire flow as determined by the fire marshall, STROSCHER shall not be required to construct the Ortega Section. Prior to the time the Ortega Section is to be constructed, STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction and/or the Parties may enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the Ortega Section construction. • City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. b. STROSCHER shall construct the El Homo Section to provide sufficient fire flow to the Property as determined by the fire marshall. STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction should new-development be proposed, which would benefit from -the El Homo Section construction. The Parties may further enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the EI Homo Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 4.2 M's Obligations. 4.2.1 Under unding of Power Lines. Subject to exercising its legislative discretion, CITY shall consider the creation of a utility district ("Utility District") to fund the Undergrounding of Power Lines. Regardless of when the Utility District is formed, the Utility District shall be responsible for funding, designing, and constructing the Undergrounding of Power Lines. STROSCHER shall support creation of a Utility District, and agrees to have the Property subject to assessment, if such a district is formed by CITY. In such a situation, STROSCHER shall be deemed to have satisfied Project Condition of Approval No. 118. If formed, the Utility District shall consist of additional benefitted properties, in addition to the Property. If CITY has not created the Utility District, and not imposed the assessment on relevant properties in the area, including the Property, before issuance of the first (?) certificate of occupancy for the Project, CITY agrees that STROSCHER shall have no obligation to Underground the Power Lines,and STROSCHER shall not be required to comply with Project Condition of Approval No. 118. If CITY forms and funds the Utility District after the issuance of the first (I ') certificate of occupancy, STROSCHER shall support creation of the Utility District and agrees to have the Property subject to assessment, if such -18- district is formed by the CITY. If CITY or the Utility District elects to Underground the Power Lines, STROSCHER agrees to provide CITY or Utility District'with a temporary construction easement, with the terms of such easement to be mutually agreed upon by the Parties, to allow the undergrounding of the lines to occur. 4.2.2 Reconstruction of Project Entryway. Subject to exercising.its legislative discretion, CITY agrees to assist STROSCHER in its attempts to have Caltrans reconstruct the Project entryway, due to the future relocation and expansion of Ortega Highway. CITY's assistance to STROSCHER shall not include any financial assistance unless CITY, in its sole discretion, determines to provide financial assistance. 4.2.3 Reversion of Portions of the Ortega Highway Rights-of-Way. Subject to exercising of its legislative discretion, CITY agrees to undertake all reasonable good faith efforts to reconvey to STROSCHER the Excess Ortega Rights-of-Way. 5. Indemnification. Except to the extent of the gross negligence or willful misconduct of CITY and its agents, officers, contractors, attorneys, and employees (the "Indemnified Parties"), STROSCHER, and with respect to the portion of the Property transferred to them, the Development Transferee agree: to indemnify,defend, and hold harmless the Indemnified Parties from and against each and every claim, action,proceeding,cost, fee, legal cost,damage,award or liability of any nature arising from alleged damages caused to third parties and alleging that CITY is liable therefor as a direct or indirect result of CITY's approval of or performance under this Agreement. The duties of STROSCHER under this Section 5 are solely subject to and conditioned upon the Indemnified Parties' written request to STROSCHER to defend and/or indemnify CITY. Without in any way limiting the provisions of this Section 5, the Parties hereto agree that this Section 5 shall be interpreted in accordance with the provisions of California Civil Code Section 2778 in effect as.of the-Effective Date. 6. Relationship of Parties. The contractual relationship between CITY and STROSCHER is such that STROSCHER is an independent contractor and not an agent or employee of CITY. CITY and STROSCHER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with the Property shall be construed as making CITY and STROSCHER joint venturers or partners. 7. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties in the manner provided for in Government Code Section 65868. No amendment or modification of this Agreement'or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each Party hereto. This provision shall not limit any Party's remedies as provided by Section 9. -19- 8. Periodic Review of Com liance with A eement. 8.1 Periodic Review. CITY and STROSCHER shall review this Agreement at least once every 12-month period from the date this Agreement is executed,in September or such other month as the CITY may notify STROSCHER. CITY shall notify STROSCHER in writing of the date for review at least thirty(30)days prior thereto. Such periodic review shall be conducted in accordance with Government Code Section 65865.1. 8.2 - Good Faith Cam lice. During each periodic review, STROSCHER shall be required to demonstrate good faith compliance with the terms of this Agreement. STROSCHER agrees to furnish such reasonable evidence of good faith compliance as CITY, in the exercise of its reasonable discretion, may require. If requested by STROSCHER, CITY agrees to provide to STROSCHER a certificate that STROSCHER or its Development Transferee is in compliance with the terms of this Agreement,provided STROSCHER reimburses CITY for all actual and direct costs and fees incurred by CITY with respect thereto'. If CITY fails to undertake the annual review process specified in Section 8.1 of this Agreement, STROSCHER shall be deemed to be in full compliance with the Agreement,and the Agreement shall be deemed to be in full force and effect. 8.3 Failure to Conduct Annual Review. The failure of CITY to conduct the annual review shall not be a Default by STROSCHER, nor shall any such failure alter, suspend, or terminate any of the Parties' other rights and obligations hereunder. Aside from the provisions of Section 8.2 of this Agreement, STROSCHER shall not be entitled to any remedy for a failure.by CITY to conduct this annual review. 8.4 initiation of Review by City Council. In addition to the annual review, the City Council may at any time initiate -a review of this Agreement by giving written notice to STROSCHER. Within thirty(30) days following receipt of such notice,STROSCHER shall submit evidence to the City Council of STROSCHER's good faith compliance with this Agreement and such review and determination shall proceed in the same manner as is provided in Sections 8.1 and 8.2 and the Development Agreement Legislation for the annual review. The City Council shall initiate its review pursuant to this Section 8.4 only if it has probable cause to believe CITY's general health,safety,or welfare is at risk as-a result of specific acts or failures to act by STROSCHER. 8.5 AdministMtion of Agreement. Any final decision by the CITY's staff concerning the interpretation and administration of this Agreement and Development of the Property in accordance herewith may be appealed by STROSCHER to the City Council,provided that any such appeal shall be filed with the City Clerk within ten (10)days after STROSCHER receives written notice that the staff decision is final. The City Council shall render, at a noticed public hearing, its decision to affirm,reverse,or modify the staff decision within thirty(30)days after the appeal is so filed. 8.6 Availability of Documents. If requested by STROSCHER, CITY agrees to provide to STROSCHER copies of any documents, reports, or other items reviewed, accumulated, or prepared by or for CITY in connection with any periodic compliance review by CITY, provided STROSCHER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. CITY shall respond to STROSCHER's request on or before ten (10)business days have elapsed from CITY's receipt of such request. -20- 9. Events of Default:Remedies and Termination. 9.1 Defaults by STROSCHER. If CITY determines on the basis of a preponderance of the evidence that STROSCHER has not complied in good faith with the terms and conditions of this Agreement, CITY may,. by written notice to STROSCHER, specify the manner in which STROSCHER has failed to so comply and state the steps STROSCHER must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from CITY specifying the manner in which STROSCHER has failed to so comply, STROSCHER does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then STROSCHER shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, CITY may terminate this Agreement pursuant to Government Code Section 65865.1 with respect to the Property. In material event of Default by STROSCHER,except as provided in Section 9.3, CITY's Tole remedy for any breach of this Section 9.1 shall be CITY's right to terminate this Agreement. 9.2 Defaults by CITY. If STROSCHER determines on the basis of a preponderance of the evidence that CITY has not complied in good faith with the terms and conditions of this Agreement, STROSCHER may, by written notice to CITY, specify the manner in which CITY has Wed to so comply and state the steps CITY must take to bring itself into compliance. If, within sixty(60)days after the effective date of notice from STROSCHER specifying the manner in which CITY has failed to so comply, CITY does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then CITY shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, STROSCHER's sole remedy is to terminate this Agreement with respect to the Property or pursue specific performance as set forth in Section 9.3. 9.3 Specific Performance Remedy. Due to -the size, nature, and scope of the Development Plan, it will not be practical or-possible to restore the Property to its pre-development condition once implementation of this Agreement has begun. After such implementation, STROSCHER may be foreclosed from other choices they may have had to utilize the Property and provide for other benefits. STROSCHER has invested significant time and resources and performed extensive planning and processing of the Development Plan and Development Plan Approval(s) in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Development Plan and Development Plan Approval(s) in reliance upon the terms of this Agreement,and it is not possible to determine the sum of money which would adequately compensate STROSCHER for such efforts. For the above reasons, CITY and STROSCHER agree that damages would'not be an adequate remedy if CITY fails to carry out its obligations under this Agreement and that STROSCHER shall have the right to seek and obtain injunctive relief and specific performance as a remedy for any Default by CITY hereunder. CITY and STROSCHER further acknowledge that, if STROSCHER fails to carry out its obligations under this Agreement, CITY shall have the right to refuse to issue any permits or other approvals which STROSCHER otherwise would have been entitled to pursuant to this Agreement that are related to and depend upon STROSCHER's performance hereunder. Therefore, CITY's remedy of specific performance pursuant to Section 9.1, or else the remedy of terminating this Agreement as to the portion of the Property as to which a material breach of Section 9.1 exists shall be sufficient in most circumstances if STROSCHER fails to carry out its obligations hereunder. Notwithstanding the foregoing, if CITY issues a permit or other approval pursuant to this Agreement in reliance (explicitly stated in writing) upon a specified condition being satisfied in the future, and if -2i- STROSCHER then fails to satisfy such condition,CITY shall be entitled to specific performance for the sole purpose of causing STROSCHER to satisfy such condition. CITY's right to specific performance shall be limited to those circumstances set forth above,and CITY shall have no right to seek specific performance to cause STROSCHER to otherwise proceed with the Development of the Property in any manner. 9.4 Institution of Lection. Except to the extent a non-Defaulting Party's rights or remedies are limited by the express provisions set forth herein,STROSCHER or CITY may institute legal action to cure, correct, or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages for any Dcfault, or to obtain any other remedies consistent with the purpose of this Agreement. Such legal action shall be heard by a reference from the Orange County Superior Court. 9.5 Estow-el Cerci pates. Any Party or the holder or prospective holder of a mortgage or deed of trust secured by an interest in any portion of the Property (a "holder") may at any time during the Tenn of this Agreement deliver written notice to the other Party requesting an estoppel certificate(the"Estoppel Certificate")stating: (i) The Agreement is in full force and effect and is a binding obligation of the Parties; (ii) This Agreement has not been amended or modified either orally or in writing or, if so amended,identifying the amendments; (iii) No Default exists hereunder, nor would any Default exist with the passage of time or the giving of notice, or both, or, if a Default or failure does exist,'the nature thereof and the actions required to be taken by the non-performing Party to cure the Default or prevent the same from occurring;and (iv) Any other matter affecting the status of the rights and obligations of the Parties hereunder as to which the requesting Party or the holder may inquire. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party or holder within thirty (30) days after receipt of the request. The City Manager or any person designated by the.City Manager may sign Estoppel Certificates on behalf of CITY. An Estoppel Certificate may be relied on by the holder and by Development Transferees. In the event that one Party requests an Estoppel Certificate from another Party of Parties, the requesting Party shall reimburse the other Parry or Parties for all actual and direct costs and fees .incurred by such Party or Parties with respect thereto. 10. Waivers and Delays. 10.1 No.Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by another Party, and failure by a Party to exercise its rights upon a Default by another Party hereto, shall not constitute a waiver of such Party's right to demand strict compliance by such other Party or Parties in the future for the same, similar, or any different Default. -22- 10.2 Third Parties. The Parties'respective performance obligations hereunder shall not be delayed or excused because of any act or failure to act by a third person, except as provided in Section 10.3. 10.3 Force Majeure. Notwithstanding any other provision set forth in this Agreement to the contrary, STROSCHER shall not be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fines, wars, riots or similar hostilities, strikes and other labor difficulties beyond STROSCHER's control, STROSCHER's inability to obtain required permits or approvals from governmental agencies with jurisdiction over the applicable portions of the Property and the Project, government regulations (including, without limitation, local, state, and federal environmental and natural resource regulations), voter initiative or referenda, moratoria (including, without limitation, any "development moratorium" as that term is applied in'Government Code Section 66452.6), litigation, or any other causes that are without the fault and beyond the reasonable control of STROSCHER. 10.4 Extensions. In addition to qualifying for a possible extension of the Term of this Agreement, as provided in Section 2.3, the Term of this Agreement and the times for performance by STROSCHER or CITY of any of its obligations hereunder or pursuant to the Development Plan Approval(s) shall be extended by the period of time that any of the events described in Section 10.3 exist and/or prevent performance of such obligations. In addition, the Term shall be extended for delays arising from the following events for a time equal to the duration of each delay which occurs during the Term: (i) The period of time after the Effective Date during which litigation challenging the validity or enforceability of this Agreement or related to the Development Plan Approval(s) or having the actual effect of delaying implementation of the Development Plan is pending, including litigation pending on the Effective Date. This period shall include any time during which appeals may be,filed or are pending;and (ii) Any delay resulting from the acts or omissions of CITY or any other governmental agency or public utility and beyond the reasonable control of STROSCHER. 10.5 Notice of Delay. STROSCHER shall give notice to CITY of any delay which STROSCHER believes to have occurred as a result of the occurrence of any of the events described in Section 10.3. For delays of six months or longer, this notice shall be given within a reasonable time after STROSCHER becomes aware that the delay has lasted six months or more. In no event, however, shall notice of a delay of any length be given later than thirty days after the end of the delay or thirty days before the end of the Term,whichever comes first. 11. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail,postage prepaid,return receipt requested. Notices to CITY shall be addressed as follows: City of San Juan Capistrano 32400 Paseo Adelanto -23- San Juan Capistrano,CA 92675 Attention: City Manager with a copy to: Woodruff, Spradlin&Smart 555 Anton Boulevard,Suite 1200 Costa Mesa,CA 92626 Attention: Omar Sandoval,City Attorney Notices to STROSCHER shall be addressed as follows: Gretchen Stroscher Thomson Stroscher G3,LLC P.O.Box 129 San Juan Capistrano,CA 92693 Tom Merrell Civic Solutions,Inc. 27362 Calle Arroyo San Juan Capistrano,CA 92675 with a copy to: Allen Matkins Leck Gamble Mallory&Natsis LLP 1900 Main Street, 5"Floor Irvine,CA 92614 Attention: John Condas,Esq. Any notice given as required herein shall be deemed given only if in writing and upon delivery personally or by independent courier service. A Party may change its address for notices by. giving notice in writing to the other Parties as required herein and thereafter notices shall be addressed and transmitted to the new address. CITY shall additionally provide written notice of any Default by STROSCHER(including, as applicable, any Development Transferee) and any act or omission by STROSCHER (or such Development Transferee)that would constitute a Default with the passage of time or giving of notice or both, to the holder of any mortgage or deed of trust secured by all or any interest in the Property which(i)delivers a written notice to CITY requesting such notices and (ii)provides CITY with such holder's address(es)for notice purpose`s. 12. Attorneys' Fees. If legal action-is brought by one Party against another Party for breach of this Agreement, including actions derivative from the performance of this Agreement, or to compel performance under this Agreement, the prevailing Party shall be entitled to an award of its costs, including reasonable attorneys' fees, and shall also be entitled to recover its contribution to the casts of the referee'referred to in Section 9.4 above as an item of damage and/or recoverable costs. •24. 13. Recordina, This Agreement and any amendment or cancellation hereto shall be recorded against the Property at no cost to CITY, in the Official Records of Orange County by the City Clerk within the period required by Section 65868.5 of the Government Code. Notwithstanding the foregoing, in no event shall any failure or delay in recording this Agreement and any amendment to this Agreement limit or restrict the validity or enforceability of this Agreement. 14. Effect of Agreement on Title. 14.1 Effector Title. The Parties agree that this Agreement shall not continue as an encumbrance against the Property once the Agreement has terminated. 14.2 Encumbrances and Lenders' Rights. The Parties hereby agree that this Agreement shall not prevent or limit STROSCHER(including without limitation any Development Transferee hereunder), at any time or from time to time in any manner, at its or their sole discretion, from encumbering the Property, the improvements thereon; or any portion thereof with any mortgage, deed of trust, sale and leaseback arrangement,or other security device. CITY acknowledges that the holder of any such security interest in all or any portion of the Property may require certain clarifications, interpretations, or modifications to this Agreement or the Development Plan and CITY agrees, upon request, from time to time, to meet with the applicable Party and/or representatives of any such holder to negotiate in good faith any such request. for clarification, interpretation, or modification. CITY further agrees that it will not unreasonably withhold its consent to any such requested clarification or interpretation to the extent such clarification or interpretation is consistent with the intent and purpose of this Agreement. A Default under this Agreement shall not defeat,render invalid, diminish,or impair the lien of any such holder. The mortgagee of a mortgage or beneficiary of a deed of trust or holder of any other security interest in the Property or any portion thereof and its or their successors and assigns, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a.person or entity which obtains title by deed-in-lieu of foreclosure(collectively, a "holder")shall be entitled to receive a copy of any notice of Default (as defined in Section 9.1 hereof) delivered to STROSCHER as to whose portion of the Property such a Default exists and, as a pre-condition to the institution of legal proceedings or termination proceedings, CITY shall deliver to all such holders written notification of any Default by STROSCHER in the performance of its obligations under this Agreement which is not cured within sixty (60) days (the "Second Default Notice") and shall allow the holder(s) an opportunity to cure such Defaults as set forth herein. The Second Notice of Default shall specify in detail the alleged Default and the suggested means to cure it. After receipt of the Second Default Notice, each such holder shall have the right, at its sole option, within ninety (90)days to cure such Default or, if such Default cannot reasonably be cured within•that ninety (90) day period, to commence to cure such Default, in which case no Default shall exist and CITY shall take no further action. Notwithstanding the foregoing,if such Default shall be a Default which can only be-remedied by such holder obtaining possession of the applicable portion of the Property, and such holder seeks to obtain possession, such holder shall have until ninety (90) days after the date obtaining such possession to cure or, if such Default cannot reasonably be cured within such period, then to continence to cure such Default. Further, a holder shall not be required to cure any non-curable Default of STROSCHER, and any such Default shall be deemed cured if any lender obtains possession. -25- 15. Severability of Terms. If any term,provision, covenant, or condition of this Agreement shall be determined invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a material part of consideration for the affected Party or Parties. The covenants contained herein are mutual covenants. The covenants contained herein constitute conditions to the concurrent or subsequent performance by each Parry benefited thereby of the covenants to be performed hereunder by such benefited Party. 16. Subsequent Amendment to Authorizinix Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that subsequent amendments to the Development Agreement Legislation would affect the provisions of this Agreement, such amendments shall not be applicable to this Agreement unless necessary for this Agreement-to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Sectien 65868 as in effect on the Effective Date, 17. Rules of Construetiog and Miscellaneous Terms. 17.1 lnterpretation and Governing_Law. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California, with regard to conflict of laws rules. The Parties understand and agree that. this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, CITY's police powers. In this regard, the Parties understand and agree that this Agreement is a current exercise of CITY's police powers and except as expressly provided for herein this Agreement shall not be deemed to prevent the future exercise by CITY of its lawful governmental powers over the Property. 17.2 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 17.3 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall"is mandatory, "may" is permissive. 17.4 Time of Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 17.5 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 17.6 Entire Agreement. This Agreement constitutes the entire agreement between and among the Parties with respect to the subject matter hereof, and this Agreement supersedes all previous negotiations, discussions, and agreements between and among the Parties with respect thereto. -26- I& Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the exclusive• benefit of CITY and STROSCHER and their respective Development Transferees and shall not be construed to benefit or be enforceable by any third party, excepting only to the extent of the limited rights provided to the, holders of security interests in all or a portion of the Property. 19. Cooperation in Event of Legal Challenge. CITY agrees to cooperate with STROSCHER as may be needed in order to keep this Agreement in full force and effect during the entire Term. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity or enforceability of any provision of this Agreement or any of the Development Plan Approval(s) (including without limitation any Future Development Approvals after the same have been issued by CITY), the Parties hereby agree to cooperate in defending such action and, in this regard, CITY shall not allow its default to be taken in such legal action or otherwise compromise the Iegal action without STROSCHER's prior written consent. In the event of any such litigation, to the maximum extent permitted by law this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. Notwithstanding the foregoing, STROSCHER shall be responsible for all costs, including but not limited•to attorney's fees, costs, expert witness fees, and the like, incurred with respect to any such litigation. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. Dated: ' 2011 "CITY" CITY OF SAN JUAN CAPISTRANO,a municipal corporation By: Nam Title: Mayor ATTE Ci ARPROVED AR TO j City Attordey -2-6 2011 "STROSCHER" -27- PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California } County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814&Civil Code 118 1) On July 28, 2011 before me, Maria Morris, City CIerk. personally appeared Sam,Allevato,Mayor,who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/thev executed the same in his/her/their authorized capacity, and that by his/her/there signature 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. (SEAL) •WI hand�and official seal. Ma ' 's,City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Tide or Type of Document Mayor Development Agreement (Plaza Banderas Title Hotel and Mixed Use Project) City of San Juan Capistrano and Stroscher G3, LLC Signer is Representing Date of Document:July 5,2011 City of San Juan Capistrano Number of Pages: 194 STROSCHER G3, LLC, a California limited liability company By: Stroscher Capistrano,LLC,a Delaware limited liability company Its: Sole MaAber By. Gretchen Stroscher Thomson,as Trustee of the Thomson Family Trust u/d/t dated October 8, 1990 Its: Authorized Person -28- STATE OF CALIFORNIA ) )ss COUNTY OF ORANG • ) } On before me, 1 !t a Notary Public,personally appeared -QQ6 rt R Fiy R:7 Q nSrJa� �T��C^Ae 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 declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. AVNEET BEDI p) M B 1812388 o ublic •ros�at Z Em.OFC 1a, a f 3 [SEAL] STATE OF CALIFORNIA ) )ss COUNTY OF ORANGE ) On ,before me, a Notary Public,personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)whose name(s)istare 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 declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official sea]. Notary Public [SEAL] EXHIBIT"A" LEGAL DESCRIPTION OF THE STROSCHER PROPERTY PARLZiT.DATIONS PMCK 1: THATTORTUINOF LOT 12OFTRACTNO.103•INTIM COIMTYOfOL004BT7tT OFMfift- BBODO!MATAPONT ONTOWE17MYWEOFSAM LOT 12.NORTH f1170rWEST ISC NIA,ASMMAYMCORMINBOOK 1i.PAOSS39T+0MeNOLUMVBOFIO.ICUAAX0U91tM OOPF8iMMTlBiBO111HA=ODM=OPBAiDIATl2;TEWMSOUTH S1'2ROr&W M TBE OMM OF THE COUNTY MCORiM OF SAM COtMPY,DESCRIBED AS FOLLOWS: 129,ODPESTPARAIIM WTII TIB NOR77BRLY LBBOP 3 m TAT 1;T116NC6 SOUTH f w d1 WODMMATTIBSOUTHMSTCDRNEROISAiDLOT12,MENOENOR7Rt+iSi07'WEST131:00 .MSY13300FF81;MOREORLFBS 1OTTi6TAYLE1EOFTHATCBRTAINSOHOFOOT PBBTAlA WITHTHENOX YLDTUMOF AMLOr,U04RN UTHV!'BAST129AOFEBT SHO(WIAMCONVWMIOTIBETATROFCALIVMUBYD®RBDORDWA=2E, M R Z OR U S. TlIB 1RMITI ILY L LINE Ol AID L01;TiBNC890 FO T TRIP EASt l33A0 FBBG INOIN BOOK i049.PAW 319.OFPRIAi.RBOORM OEM A CURVB CONCAVE N MDR8ORL638,TOTIBNOitTIQRIYIBBOFTRMCBRLIDIO6AOPOQ[fTR1POFIANICON- V ABADAAOP900AOP�S TIIHNCEBAi7Y]{IYl1dOF8HTAWKO3AKfCURVH VBMTOTIBSTAMOtCAIg NUABYDMRBWRDBDA=2RL1940WBOOKIWAA02319 OFOPNK'IALRECORDQMMACURVBCOWAVKNOSRMMYAND HAVBIOARADWSOPORM TOTHOMMWOT>3<tL IMCP71ML NDDEB RMWASMRCT4,IDIABMEDTOTHE PB8'PTMCBWB$nRLYAWNODAla1OMERLYLDMANDAIANOTR83otMMLYLMCF BTATBOFCALORNIARECORDEDNOVEOBER21.19371NBOOK4110,TA06320.OFFICAL SAID LOT M TOT11E POiNT OP BBaM]X(L APN:124-1.1x14 RNCMM.THENCE NOMME MMYALONO MMNOIaTHWUSYMY I=TO?HE SOM WESTERLY LBO OF 71M LAND D>SClUBSD AS PAECEL2OF SAID DRED RECORDED IN BOOK RARCM 2: 4110.PAM SM OFFICIAL XSCORD8;'UMM ALONG SAID SOU171WE3i>iRLYL018,NORTH 31' TMT PORTION OF LOT 12 IN TRACT NO.103.IN THE COUNTY OF02A)OE,STATE OFCALQORNN• 2tf07.weer 174l9PNNTToTHE mari1 LINE or3AB)tar 12:'lIB3(LBALmumNom ASPBRMAPRECORDEDINBOOKIT,PAGES2970"INCLUSTWOF1OSCMAANBOUSMAPS,IN LMR NORTH W2"OrWFST49321PMTOAPOW SOUTH W2"OrEAST 1200PEXT 7]M O M OV77ID COUNTYRBODRDE'R OF SAM C01M1Y•DBSCRIEM AS FCUMS FROM 17B NORTItWBOTOORIOBt OF SAID LOT l2;YTBNCB AT RiOTTTAN0Lm 401JfD S>27 BEE FROM IMST A O THWESON TBWNEIHOFSAM OF 12;THSAID OT12.NUTH f "071EAST 29 A0 if•WBSI60A0FI:8I;TIMMATRKBTTANOLRSNOM31St2"OrWEST10921FESITOTBB FiBTPAOM TIM SOUTHWEST OOR9EROF SAID LOT 12;77ib210E SOUTH 84'27107•EAST 129.00 FBBTFARATI,BLW17R7IMNORTIH}R[YLOMOFSAM LOT 12*.THENC6SOUTH fIS?071EAST WEST LINE OPBAmLOT MTHBNCRSOUT VMOrEAST 16AIFBBTTOTIIEMMOF ISSAOPEBT,MORBORLESB,701TBNORTnuI.YLTIBOCTHATCERTADIUMFOOTEMIPOF 0SOINKING. LAND CONVEYEDTOTTBSTATE OFCATIlMMBYDBEDRBCORMIUi112L1910DIB00K EXCEPTTHATPORIMTHEREOF DKSCIBEDASFOLLOWS: 1019.PA063 MOFPK7ALRECORDS,BEMACURVBCDM&VENORTHERLY ANDRAVDtOA BBONINDIOATAPOWTONTRRWE676RLYLRBOPSAIDLOT1%NORTH r197#rweer 154. RAM OF960.00PMM71MMEASIBRI.YHAD FEBTALONO3AIDCURVBTOTHENOWNWEST 00P=PR0i1TIBSOUTI iWCORNEROFSAMLOT12;THINCESOUTH6#27107•EAST ERLY UXB OYMM L UM OBSCRI B D AS PARCEL 1,II111IEDEED TO TIB fWS OP CALIFORNIA MNWORMIROMMISB21.R937FNROOK41R0 FAGS 320 OF OFFICIAL 129AOPEBTPARALlELWITH7HEtiORITIBRLYIJNBOFSAIDLOTI TABIICBS01Ti8f1St • PARALLEL E WITH 71l£10 MORIN 07.EAST 1IS.D0 FEET.MORB OR Las TO TIB NO RTIMIRLYLRIB OF TEAT CBR7INN TOAD FOOT 73'02712FJMXMASLONOSA ORTAKWESiSRI.YLOBT SIDES RMEDWRHANDBASIiBLY MBOPLOCONVBYP111V'II>BSTATBOPCALTPDRMABYDMRECORDPDADM21. OF S UTH I'EA$URSAST!TOR CR AI B8 F/AOr7R6 WT DEMENORT V I HAV1N0 A BRAADOb I9101N BOOK ION,MOB 219,OMMMAL RBOMM BERM ACURVB CONCAVBNgQHERLY OF BOUIII I'11707'BAST:TIDDICB ATAND SAIDTARALL@.LBBNQRTH f ip 07'WEST TO A LD PARALLMW22RANDNOR' MLY70,00=ZMEASURFyATRMHTAMMMIRDM"M ANDHAVVM ARADIUS079SM FM.THENCEBASTERLY11AOF>BTALOMSAMCORVE COURSE DBSCRIBEDABOVE ASBEARMSOUTH S4'27TOrE&TT129MFEiMTMNCSMRM' MTIM NORTHMSTERLYLINE OPTIM LAND D11 cum AsFARCM1,INTHE DEBDTOTIB 2TI OT WESTALONO SAM PARALLEL LINE10 TIMVMrMRLY LINE Of SAM IM 12.THENCE 9MM OF CALIFORNIA.RECDEDED NOVEM Mt21,1957IN BOOK 4110,PAGE 720,OFFICIAL SOUTH f BOT 07'BAST 72.10 FEET TO TIM POINT OF BBMMNQ RELDRDS;THENCE NORM 7r 027 tr BAST ALCW SAID NORTHWESTERLYLINE TO AI= AM IZ4.170.12 PARAUEL WITH AND EASTERLY70.00PEST,MEASURREO Q RIORTANMM FRCM TIB LAST DBSCRMM LDM HAVTNO A WARM OF MUTH f M OrBAST, UENCE ALONG NAD PAR- PAtC1S'3: ALLEI.LTNENORTR f In 0'r EAST U 9.00 F7l8T TIBNCO NORM It 27701•WEST ALONG THAT PORTION 07LOT 12OFTRACTKQIMINTRE01TYOFSAN IUANCAPMRANO.ASSHOWN SAID PARAILMLDi670TNEWESTERLYLOOIOrSAD)LOT12:7HIOCBSOUTH Vill or GH AMAPTHIMM RECORONDIN BOOK 11.FACES 2970 31 INCLUSIVE,MlSCMlAMUS KAP% MST72.iOFEET70THE PONT OFEBOONNOiO. RECORDS OPSAIDOMMB COUNM DRMMED AS FOU+OWS APN:12b170•li tcd 124.170•!6 arc b'� t ...;>'' ':^- - .: :' , --»� ..� •�---•' 1•:., ,v:,.r, •,:};'•S X. ' :.. i.—sr.+ t ' `1 �'`1 •t t 1 •I.,- .: ;y ..-�� '�7r^••' ��S"^`•. •�' .., ..�^.... R:�.r,i`t" �r.4 .. "Y..t, ' ,i' l 'N:1 '1Ilk � +....� ._ _i=��^.' 131 •-�.�.•y:.n•'�:.'.,: ..`^.. r:.~..�._��t,�ti. r •.�./ Pak Em ,,` } •:{ .� •t.a/Irl no u4 i7 ., v. "mow. '�� 1.-,..>-....- .i , ...`. ♦•., ./ i n Y. 60 t' ` � 7t' 'i, 1 ':, �t ; !.� aa+,. '�:i' •�%ar'.'G.� ,' r..��7' : 7 t ��j°�• P' CQ. 2 .J 0.�5 AC,,4 M r 49,�AC: to 1 0 PARKi .1s;; SIM a.a 9 . 3j �I.e• s em . �� .ocuo n y'.z...•.aa. '� r.-.`an„ ..•- ;.. -� •• ._,,,.ltd.% ••• t �, /• �svtl •• 11WY •�-+-. -• \r+'.�-�-�rri •� �',.,:.�.;�,9 ,`'.'L+moi r 11 14 vt1-• ' f I'i + I rT; `�,r:" �.'�..}..•{ 'f 5, 't EXHIBIT"A" EXHIBTT "B" DEPICTION AND LEGAL DESCRIPTION OF PARKING LOT AIR SPACE PARCEL s yy Ud 13 �H��. 0 Parking Lot Air Space Parcel LEGAL DESCRIPnON THAT PORTION OF LOT 12 OF TRACT NO.103,IN THE CITY OF SAN JUAN CAPISTRANO,COUNTY OF ORANGE,STATE OF CALIFOR- NIA,AS SHOWN ON A MAP RECORDED IN BOOK 11,PAGES 29 TO 33 INCLUSIVE,OF MISCELLANEOUS MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY DESCRIBED AS FOLLOWS:BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 12;THENCE SOUTH 00"29'25"WEST ALONG THE WESTERLY LINE OF SAID LOT 12 ADISTANCE OF 76.70 FEET TO THE TRUE POINT OF BEGINNING;THENCE SOUTH M9'25"WEST ALONG THE WESTERLY LINE Of SAID LOT 12 A DISTANCE OF 4&11 FEET;THENCE SOUTH 69"4598"WEST ALONG A LINE PARALLEL WITH AND DISTANT NORTHERLY 40.00 FEET,MEASURED AT RIGHT ANGLES,FROM THE CENTER LINE OF ORTEGA HIGHWAY AS DESCRIBED IN EASEMENT DEED TO THE STATE OF CALIFOR- NIA RECORDED IN BOOK 1049 AT PAGE 349 OF OFFICIAL RECORDS,A DISTANCE OF 155,16 FEET,THENCE NORTH 20"3T55"WEST, A DISTANCE OF 63.31 FEET TO A POINT OF NON TANGENCY WITH A CURVE,CONCAVE NORTHERLY,HAVING ARADIUS OF 442.00 FEET,THENCE EASTERLY ALONG SAID CURVE,THROUGH A CENTRAL ANGLE OF 4°48'57",A DISTANCE OF 37.15 FEET;THENCE NORTH 62"58'27"EAST,A DISTANCE OF 53.96 FEET;THENCE NORTH 65'40'5D-WEST,ADISTANCE OF 69.32 PUT,THENCE NORTH 94"2657"WEST,A DISTANCE OF 11.82 FEET;THENCE NORTH 11'15-29'EAST,A DISTANCE OF 65.32 FEET,SAID POINT LYING ON THE NORTHERLY LINE OF SAID LOT 12;THENCE SOUTH 58°2757"EAST,A DISTANCE OF 174.39 FEET TO THE TRUE POINT OF BEGINNING. Exhibit "B" EXHIBIT"C' DEPICTION AND LEGAL DESCRIPTIONS OF EXCESS ORTEGA RIGHTS-OF-WAY 1967 OR 8171-88 k` -"�~ SPRING S T La w Ile•ario ti PARCEL 2 PARCEL 3 8 0.56 AC. 2.09 AC. a'-,t/a tam ,„ taxuK oor 1 1 PARCEL 0.45 AC. ��+ "fit��'. �, t f• w� R�� IJl7el hOr{IbY , W R ^T }y J�. .y ' J t.+wwv i a .w Mro as •P1....... fes. a u� ��'• ' rw acana r� LEGAL DESCRIPTION THAT PORTION OF LOT 12 OF TRACT NO. 103,IN THE CITY OF SAN JUAN CAPISTRANO COUNTY OF ORANGE,STATE OF CALIFOR- NIA AS SHOWN ON A MAP RECORDED IN BOOK 11 PAGES 29 TO 33 INCLUSIVE,OF OCELLANEOUS MAPS,IN THE OFFICE OF THIP COUNTY RECORDER OF SAID ORANGE COWH DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 12;THENCE SOUTH 00°29125"WEST ALONG THE WESTERLY LINE OF SAID LOT 12 A DISTANCE OF 76.70 FEET TO THE TRUE POINT OF BEGINNING.THENCE SOUTH 00.29'25'WEST ALONG THE WESTERL Y LINE OF SAID LOT 12 A DISTANCE OF 48.11 FEET;THENCE SOUT' 6904518"WEST ALONG A LINE PARALLEL WITH AND DISTANT NORTHERLY 40.00 FEET MEASURED AT RIGHT ANGLES,FROM THB CENTER LINE OF ORTEOA MGHWAY AS DESC UBED IN EASEMENT DEED TO ffi STATE OF CALIFORNIA RECORDED IN BOOK 1049 AT PAGE 349 OF OFFICIAL RECORDS,A DISTANCE OF 177.30 FEET TO A POINT OF TANGENCY WITH A CURVE,CONCAVE NORTHERLY HAVING A RADIUS OF 960M FEET, THENCE WESTERLY ALONG SAID CURVE,THROUGH A CENTRAL ANGLE OF 21°21'48',A DISTANCE OF 357.95 FEET,THENCE NORTH 73°01'58"EAST,A DISTANCE OF 119.12 FEET TO A POINT OF NON TANGENCY WITH A CURVE,CONCAVE NORTHERLY HAVING A RADIUS OF 729.69 FEET,11MCE EASTERLY ALONG SAID CURVE,THROUGH A CENTRAL ANGLE OF I 1-18'25',A DIS- TANCE OF 144.00 FEET,THENCE NORTH 69045'380 EAST,A DISTANCE OF 282. 5 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT"C" EXHIBIT"D" NARRATIVE DESCRIPTION OF THE PROJECT The Project consists of a three-story,76,363 square feet,124-room hotel,on approximately 2 acres;a 10, 169 square foot two story officeiretail building consisting of 6,467 square feet of retail on the first floor and 3,702 square feet of private office and balcony sea an the second floor and H 6,095 square foot restau- rant.The Project provides190 parldng spaces to serve all uses on the 3.15 acre site. Access to the Project will be from one right turn in and out only driveway on Ortega Highway,one full amen driveway on EI Camino Real and one full access driveway at the easterly terminus of Spring Street Upon the ultimate realignment of Ortega Highway as part of the freeway interchange reconstruction project by Ca1TYans,the access onto Ortega Highway will be extended as shown on the plans approved by the City of San Juan Capistrano. The Project site and landscape plan is shown in the exhibit below. 5< EXHIBIT"Da Exhibit"E" CITY COUNCIL RESOLUTION NO. 10-10-05-05 AND ORDINANCE NO. 974 EXHIBIT"E" The work undertaken by the City consists of the components detailed below. See the following pages of this attachment for a graphic representation of each element. The depiction of the components is shown on Caltrans layout sheets as denoted by [brackets]. 1. W1:A new 12-Inch PVC water line in the new alignment of Ortega Hwy. [U1] 2. W2: A new 12-inch PVC water tine in the alignment of Ortega Hwy. from the Dei Obispo Street to the beginning of the 1-5 Bridge. [U1] 3. W3: New 12-inch welded steel water line, including welded steel casings pasting through bridge abutments, within a cell in the 1-5 Bridge under design by Caltrans. The water line will have flex ball connections at each end, in a vault structure to allow access and maintenance. [U1, U2] 4. W4: A new 12-inch stub out, which will serve future hotel complex. [U1] 5. W5: A new 12-inch line on the east site of the north bound off ramp to replace the line abandoned due to off ramp relocation. [U2, U3] 6. W6: A 12-inch connection line, at the intersection of Ortega Hwy. and Ave. Los Cerritos joining components W3 & W5 to the remaining portion of the 14-inch line to remain in Ortega Hwy., and remaining portion of the 14-inch line to remain in Ave. Los Cerritos. [U2] 7. W7: An 8-inch connection line from 14-inch line in Rancho Viejo to 6-inch line serving Ganado Way.' [1-2] 8. W8: Abandon existing below ground PRV in A. L. Cerritos. [U2] 9. W9: To coordinate with the grade changes and numerous expansions of the right of way by Caltrans: 1) Adjust to grade all water valve lids impacted by the project and any grade changes; 2) relocate meters, backflow devices, air-vacs, and other appearances as may be required; 3)Abandon sections of pipe to be relocated. 10.W10:Abandon existing 8-inch lines in place at Denny's & Gas Stations. [U2] 11.W11: Abandon in place the existing 8-inch steel line and 4-inch ACP line in Ortega Hwy. between Avenida Los Cerritos and Rancho Viejo. Run new service lines to remaining 14-inch line in Ortega Hwy. to replace connection disrupted by abandonment of 8-inch steel line. [U2] 12.W12: A new 12-inch welded steel water line, including welded steel casings pasting through bridge abutments, within a cell In'the 1-5 Bridge. The water line will have flex ball connections at each end, in a vault to allow access and maintenance. [U1, U2] 13.S1: Abandon a section of an existing sewer structure and line in Del Obispo. [U1] 14.S2: New sanitary structure in Del Obispo where abandonment of S1 ends. [U1] 15.S3: Abandon sections of sewer line and laterals at site of former Denny's (restaurant)and gas stations. [U2] 16.S4: Abandon sewer laterals to all properties acquired by Caltrans. (Locations throughout the project see sheets U1 — U2 for locations of affected sewer facilities.) 17.S5: Abandon sections of sewer structure and sewer line in Ortega Hwy.) [U2]. 18.S6: Construct a new sanitary structure where the abandonment(of'S5)ends. [U2] 19.S7: Identify and include measure to protect in place and raise all sanitary sewer structures and or lids impacted by the project and any grade changes. Page 1 ATTACHMENT 5 �g Tltli Axcgc•p R Pv � 3� � I' . >[�SR�RIWI 6 Yf S[¢i3 YM1.mn[[i RI Wr xr[r Y uglux r[L[nRM uO iR[rIYS¢Brae Sr.IL'sl[I-rn 6 t1[ [ ME o153RIR 6lI4. [Y WS 2Y[WurIGT Y"Y ✓TviviL– y �' ' 3. MJir i[CItIr1E5 SMIY rEl[fel.ix!RW SW SVRxEY utlrgMll us wr[xe r-Y 4'YRq If3FHlr®i 5 al[RS r{plb5 YO.G SIaR RmYS A aPK R. �[ Yx VRW Ytµex[�Rrt RI IF IaiYHnO ��j�-� t zixvo ��g�y. r e � �*��rlx Y .n.nr IA..o�.x...l � tx �' _ �'°"PdaT�Lk'•� •e•.�/'• 9 Iryi. x.R.xni w E 1 Rn .- 16iHV� '• Y n � rrwr[[ zra LLL S ly Y 1-w� y a � Y�V2��VRiIP RIT[5 �Ii l�Ellli arl lR®� � $Sm ..•• � n.¢ Egtenni 1a14n Its lY cam, ��((1 6¢ _-`' /n rVLI[L1R[o�Wix YSCIL[FI-IV[e-10[ I[�[[hR � •• p "ED ,' L[��pjfj�R3I'1[Y[I-[F IL MIR up-In I 2. Z 3 Y[ 1[L[ XVtm�urP �iM li u R !6%1 %- 'Sy:WI�T- [' rxy.RR lbi[I+I , i O$ aM i � rt Yltr4N4 � \ 1[Sl[1-%I.Y IjIRYI- � �—�116Y-Y)O�l 6 v !II[Q4ry I. }w i ;nt a.Hn� lm[cuv a.H .\�t�®lVlYhw� p :-- . _• � a ®V WS 154'hvn 1556Q1 •' yp SF ICL[I / n ®.�•�R-r, tYtcnl 1 w _ � '3[-�'-,o,y, e•tae Irl / ® ISG}Pn ICSRHI 1 • 1 I-IV® II ® / ICtFY iie3[Ii � [( IIDSYFILLp / 0 ®Iq IWc[Elllt ar}In ry t r } •i .415W¢}Rt0 �� Y Y Y YRR I[LCIYIP® t �lp a� ! �W ISEu[IISi[r}n �Y vE IC[KI-n0 �fgSrrlW[}rP� �arl o3 [-r0 MIeV). �yie �•' � ISWYw rsn.— � fir" •1:—��.. 'J.�� Svxt=sc .,a,aeY` UTILITY PLAN )e (EXISTING) s gyp: ®. r Srr l[L[hlYtl.ur– / LISWYuzro..Y.F+w� sued r. so• I- - y U'� • __. _. It n.x emwrz!a mwn Iwm.nrw exL.. 2 ^y wumenl u nln wa vrsmr wv rlw .. 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IKl . s .��znaonlm I e� '�' �' � �\- 11i�'� 3 s' m t:i:attata.l a ' �9r I,.,K:NI ari�rvr �! � � 1. F � I � s iowuWt Ki:.su �n®..ziiii%tK�w sr it R I �Fy I � � \\ I - ©e.v-n,anuoKl rso...Nawuwwr.m+.0 '--+ ;i.- '. f . �y®��sas..w.z �Iz• •. � x I i � ' soman-t.z znsirmsl wxmnalwiuvwvsxsetsl�w °pjK-i ian .m °e'us` �; r /�®at.rml m � \ e '9_ _ �.wwl e°rm`muv.p.�1 nw.�u�Nw wls wuar. .raz �/ ""�"K..e.zwaemt w.— � a t r- 0. ��.:Z�� m.�"�a'-moi +nl+o�c /�ys- na-u sNweninKt..= - � •smr- "'��a" .0-nrot.K a]NJ© �" a.'i` ®uriml-fres . pe�ivW'i-umm�:� ��` ..o gym. .® � p.u-urosNa...e.,.— \�.. Leyyy wusiesml w® �pua..INuvra`"``sz�.Waim'in a iwiN unm'''r.m. _u.-unn � , vm•s m a —urot vv w® ,3� n.-aN zq®.nom. sem- �m.ammz� pA'W.�..upm wx a �.Y..a ••.® •- e i yt •n M ul&t n i „a100 3AMJ p Ll— — W 4 - pwmlp3p ]mac - = <„f 51 Al mr[N y S �il�]bM1 lE�m 1n x�l•i .. 3rw Horno Lina•Altemate Routes A d B Active Water MainM Abandoned Water Main • Water Valvei Hydrant i�• I I - !� • Altaude Valve Flow Control 1` Pressure Reducing Pressure Sustaining '•�/ Control Valve / A - � Air Vac Blowoff •. Meter • Pump - S Reservoir • Well Sewn Syerem �, \ Active Sewer Mein Abandoned Sewer Main -'- --_ Manholes - Laterals 4 Directional Flow � � _ / fel Casing ATTACHMENT 1. G.C. Plan Room — San Diego Bid Brown, Pat 4355 Ruffin Road Documents PH: 8588748560 San Diego, CA 92123 Fax: 8588748569 2. GCI Construction, Inc. Russell, Janet 245 Fischer Avenue, B3 Full Set PH: 7149570233 Costa Mesa, CA 92626 Fax: 7145401148 3. Beador Construction Company Inc. Beador, David 26320 Lester Circle Full Set PH: 9516747352 Corona, CA 92883 Fax: 9516747495 4. McGraw-Hill Bid Mok, Mary 1333 mayflower Ave Documents PH: 6269308991 Monrovia, CA 91016 Fax: 6269326153 5. Reed Construction Data Bid Litson, Mary 8878 S Barrons Blvd Ste 100 Documents PH: 303-265-6529 Highlands Ranch, CO 80129 Fax: 6. Southern California Builders Association Bid Redder, Cindy 7740 Painter Ave. #205 Documents PH: 5623203600 Whittier, CA 90602 Fax: 5623203603 7. Construction Bidboard, Inc Bid Schafer, Mike 4420 Hotel Circle Court Documents PH: 8004795314 San Diego, CA 92108-5314 Fax: 6196880585 8. San Diego Daily Transcript Bid Gradall, Allison 2131 Third Avenue Documents PH: 619-232-4381 San Diego, CA 92101 Fax: 619-239-6625 9. J. Fletcher Creamer& Son, Inc. Scott, Bree 12874 San Fernando Rd. Full Set PH: 8183679748 Sylmar, CA 91342 Fax: 8183679749 10.Paulus Engineering, Inc. Franzen, Eric 2871 E. Coronado St. Full Set PH: 7146323975 Anaheim, CA 92806 Fax: 7146329792 11.ARB Inc Miller, Jack 26000 Commercentre Dr Full Set PH: 9494547365 Lake Forest, CA 92630 Fax: 9495875786 12.Steve P. Rados, Inc. Po, Sandra 2002 E. McFadden Ave., Ste 200 Full Set PH: 7148354612 Santa Ana, CA 92705 Fax: 7148352186 13.Steve P. Rados, Inc. Po, Sandra 2002 E. McFadden Ave., Ste 200 Full Set PH: 7148354612 Santa Ana, CA 92705 Fax: 7148352186 14.Cedro Construction, Inc. Verner, Michael 120 E Santa Maria St. Full Set PH: 8055250599 Santa Paula, CA 93060 Fax: 8055250509 Attachment 2 1-5 and Ortega Highway Interchange Pipeline Relocation Project (CIP No. 11805) Budget Summay Total Water Sewer Construction Cost $1,427,881 $1,391,681 $36,200 Staff time $214,182 $208,752 $5,430 Engr&Survey $171,346 $167,002 $4,344 Construction Mn t $142,788 $139,168 $3,620 Contingency $214,182 $208,752 $5,430 Grand Total $2,170,379 $2,115,355 $55,024 Ct-Reimb. Sewer(1) $33,014 Ct-Reimb. Water 1 $203,231 City Cost After Ct Reimbursement $1.934,134 Plaza Banderas Water Lines ($463,617 y L;ost Atter Pima Banderas Reimbursement $1,470,516 S:\Departments\Public Wor sMepart ent\Water-EngAPIPE_LINES\I-5_Rt 7411udgehl& Cost_Estimatl5x_Cost_Est Attachment 3 Recorded in Official Records,Orange County Tom Daly,Coun Recorder t � L�E0 POSTE NO FEE IaIQIIQ1Ql�ll�ll�ill��ll�l�QII�IIQI��ll�ll��ll AUG 1 7 2012 AUG 7 2012 2012850007861158 am 08/17/12 TOM DALY,C K � 46 SC2 Z01 TOM DALY.!WER DEPUTY 0.00 60.00 0.00 0.00 0.00 0.00 0.00 0.00 By DEPUTY (above for use by County Clerk•Recordees Office only NOTICE OF EXEMPTION 41 From: Development Services Department 32400 Paseo Adelanto San Juan Capistrano,California 92676 1. APPLICANT: City of San Juan Capistrano 2. ADDRESS: 32400 Paseo Adelanto, San Juan Capistrano, CA, 92675 3. PHONE NUMBER: (714) 443-6302 4. LEAD AGENCY: City of San Juan Capistrano S. PROJECT MGR.: Eric Bauman P. E., Utilities Engineer 6. PROJECT TITLE: 1-5 and Ortega Hwy Interchange Pipeline Relocation Project 7. DESCRIPTION: The proposed project consists of the relocation of 2,346 If of pipe in trenched areas, 694 If of pipe in cells of the new 15 bridge, for a total of 3,040 If of 12-inch replacement pipeline; the abandonment of 2,864 If of water and sewer lines, and the relocation of two sewer system manholes within the area of potential effect for the "Interstate 5/ State Route 74 (Ortega Highway) Interchange Improvement Project." Installation of the sewer and water facilities integrates with the proposed interchange improvement project; currently under final design by the California Department of Transportation (Caltrans). By installing the pipelines in coordination with Caltrans' demolition and grading operations, and during Caltrans' construction period, the City minimizes direct impacts of the project and avoids the need to disrupt the street in the future. The project maintains the existing reliability and quality of service within the existing water distribution system and sewer system to adequately serve existing users, and to meet increasing fire safety demands. Paved roadway covers 2,360 If of the pipeline route and existing parking lots with non-native vegetation cover 680 If of the pipeline outside the road right of way. The pipeline construction depth ranges from approximately 4 to 5 feet below the existing surface. The project includes trenching excavation, pipeline installation, backfilling, compacting, and soil replacement all within the construction zone of the Caltrans interchange improvement project. ADMINISTRATIVE DETERMINATION: City staff has completed a preliminary review of this project in accordance with the City of San Juan Capistrano's Environmental Review Guidelines and the California Environmental Quality Act (CEQA). Based on that review, the staff finds that the proposed project constitutes a ministerial action because it require an encroachment permit/license agreement which are ministerial actions under the City's permit processing requirements. Therefore, staff has determined that further environmental evaluation is not required because: Attachment 4 jan Juan Capistrano, California ,nd Ortega Hwy Interchange Pipeline Relocation Project .otice of Exemption [] "The activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA" (Section 15061(b)(3)); or, [x] The project is statutorily exempt, Section 15282(k) (The installation of new pipeline or maintenance, repair, restoration, removal, or demolition of an existing pipeline as set forth in Section 21080.29 of the Public Resources Code, as long as the project does not exceed one mile in length); or, [] The project is categorically exempt, Class , <name> (Section 15301- 15329); or, [ ] The project does not constitute a "project' as defined by CEQA (Section 15378). Willihm A. Ramsey,AICP, Environpienjal Administrator Assistant Development Services irect r cc: []project file [)CEQA file [I County Clerk POSTED FILED AUG 17 2017 AUG 1 7 2012 TOMDALY- -RECORDER TO:M DALY, CORDER QEPUTY DEPUTY Jwa1�� 32409 PA.EO ADELANMEMBERS OF THE CRYCWNCIL TO { i� 1p .AN JUAN CAPITR=. CA 92675 LN• 51qµiEVAIO (949)4931171 !�' nnNlnu uuRAFREESE (949)4931963 FAX IRUI 1161 uw+r RRAMER Irwwsanjunncapistruno.aig 1716 DEREK REEVE • wRV TAnoR NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL The City Council of San Juan Capistrano will meet at 6:00 p.m. on Tuesday, October 2, 2012, in the City Council Chamber in City Hall, to consider: "1. Consideration of Bid Award for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project; and Continued Negotiations with Plaza Banderas Hotel Representatives Regarding Alternate Pipeline (CIP 11805) (600.30)" — Item No. D12. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, October 1, 2012, to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Eric Bauman, Utilities Director. You may contact that staff member at (949) 487-4312 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanouancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: citvclerkt@sanivancaoistrano oro. Maria Morris, CMC City Clerk cc: Minako America Corporation; SRD Engineering, Inc.; The Fishel Company; GRFCO; Paulus Engineering, Inc.; ARB, Inc.; Steve P. Rados, Inc.; Cedro Construction, Inc.; G.C. Plan Room- San Diego; GCI Constuction, Inc.; Beador Construction Company, Inc.; McGraw-Hill; Reed Construction Data; Southern California Builders Association; Construction Bidboard, Inc.; San Diego Daily Transcript; J. Fletcher Creamer& Sons, Inc.; Vido Artukovich &Son, Inc. .ton./nan C'apistrana: Pmverving the Prey! to F,nhonce the Future d 8/7/2012 D15 City of San Juan Capistrano Agend .ort TO: Karen P. Brust, City M/a, r FROM: Keith Van Der Maaten, Ut ies DirectoE' Prepared by: Eric Bauman, Utilities Engineer DATE: August 07, 2012 SUBJECT: Consideration of Solicitation of Bids for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project(CIP No. 11805) RECOMMENDATION: By motion: 1. Approve the plans and specifications prepared by Dexter Wilson Engineering for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project, and direct staff to advertise for competitive bids; and, 2. Authorize staff to proceed with negotiations with the owners of the Plaza Banderas Hotel. EXECUTIVE SUMMARY: The Caltrans Project (Project 12-OE3104) to reconstruct the Ortega Highway Bridge and roadway, including the freeway on and off ramps at the intersection of the 1-5 freeway and Ortega Highway, will impact water and sewer lines (Attachment 1). The City is required to relocate the water and sewer pipelines that are impacted by the realignment (Attachment 5). Due to the available construction window provided by Caltrans, it is necessary to complete certain components of the relocation work before February 2013 (Attachment 2). The remainder of the work is to be completed as Caltrans makes the work site available. The City's contracted engineer, Dexter Wilson Engineering, has prepared bid plans (Attachment 3) and specifications. Staff recommends authorizing to bid the water and sewer line relocation project. As part of the Development Agreement (Attachment 4) for the construction of the Plaza Banderas Hotel, the owner must construct a pipeline along EI Horno to provide the necessary fire flow protection for the hotel (Attachment 6). As part of the Caltrans project, a secondary pipeline can be installed in the 1-5/Ortega Bridge that would fulfill the fire flow requirements for the hotel and eliminate the need for the EI Horno line. The secondary pipeline in the I-5/Ortega Bridge is estimated to cost much less than the EI City Council Agenda Report August 7, 2012 Page 2 of 3 Horno line; therefore, staff recommends approaching the owner to discuss paying for the secondary line through the 1-5/Ortega Bridge as an alternative to the EI Horno line. Should the owner decline to pay for the alternative line, then the alternative line would not be constructed at this time. DISCUSSION/ANALYSIS: The construction of the north bound on-ramp loop will impact an existing water line requiring that it be taken out of service for about a year. Closure of this line will not impact service but will affect the system looping. Staff presented three options to the Utilities Commission; • Construction of a temporary line, • Construction of a temporary above ground line, • Heightened alert of construction activity on Calle Arroyo from Rancho Viejo traveling west. Staff recommended the heightened alert of construction activity as this option would be the lowest cost and not have an adverse impact on the water system. The Utilities Commission concurred with staff's recommended action. FISCAL IMPACT: CIP No. 11805 has a total project budget of $2,1.82,460 and a total estimated cost of $2,171,404, inclusive of all project elements listed in Attachment 6. The Plaza Banderas project component will be constructed at the expense of the hotel developer. No new appropriations of funds are necessary at this time. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: • On June 30, 2011, the City Council approved the first reading of an ordinance approving the Development Agreement (Attachment 4) between the City and Plaza Banderas. • On July 5, 2011, the City Council approved the second reading of an ordinance approving the Development Agreement (Attachment 4) between the City and Plaza Banderas. City Council Agenda Report August 7, 2012 Pa-ge 3 of 3 COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: On July 17, 2012, the Utilities Commission recommended the City Council authorize the project for bid, authorize staff to proceed with negotiations with the owners of the Plaza Banderas Hotel, and recommended option three (heightened awareness) with regard to the closure of the waterline due to the north bound off- ramp construction. NOTIFICATION: Not applicable. ATTACHMENT(S): Attachment 1—Project Location Map Attachment 2—Project Schedule Attachment 3—Plans Attachment 4—Development Agreement Attachment 5—Project Components Attachment 6—EI Horno Line Map INDEX OF PLANS STATE OF CALIFORNIA 121 Ora 5,74 0.0%0 2` DEPARTMENT OF TRANSPORTATION al _ PROJECT PLANS FOR CONSTRUCTION ON STATE HIGHWAY ,,. IN ORANGE COUNTY IN SAN JUAN CAPISTRANO ON ROUTE 5 FROM 0.2 MILE SOUTH OF ROUTE 5/74 SEPARATION TO 0.5 MILE NORTH OF ROUTE 5/74 SEPARATION AND ON ROUTE 74 FROM 0.1 MILE WEST OF ROUTE 5/74 SEPARATION o TO 0.1 MILE EAST OF ROUTE 5/74 SEPARATION TO BE SLWPLEWNTED DY STANDARD PLANS DATED WAY 20D6 I Limit of Work (Del Obispo St) Sto "B" 4+80.00 LOCATION MAP pe END CONSTRUCTION (ROUTES). Sta "A" 539+00 PM 10.00 BEGIN CONSTRUCTION (ROUTE 5) BEGIN WORK AND CONSTRUCTION (ROUTE 74) $to "B" 11+05.70 PM 0.00 Sta "A" 503+00 PM 9.30 ,o Limit of work (Ortega Hwy) Sto "H" 4+55.52 OCEntTy TRARSPDRTATtON AUTNORITY(OCTA)IETROL(NK RAILROAD s I N toA ' .••\ v CAy}ND 019 LOS �D LOS GSAV 9 CAttlttD CAPISTRANO i ! ROt1 :.� TE T4/ SEPARATION .>D 0.S RA!/TF •� / r b.5- 1 - Ott End Work (Route 5) S SOO ar . s"°a`./d. SD a Sto "A" 550+00 AYENIOA Go n 518.47.70(ROUTE S Be in Work (Route 5) Sto "A" 495+00 SAN JUAN q r P •"""�, 3a Pnmxsr I Cam (D CAPIBTRANO � ao ¢v amt,apsurd.10 • !E rEND CONSTRUCTION (ROUTE 74) End work (Route 74) .,,,,,,,o,wC.n am • " t^ Sto "B" 26+00 x srur a trvay.a in •�'•yd°• rr • Sta "B" 22+20 PM 0.20 '�'��'zr am p y cnaM is o au.ro cans a ncnr srt. ` o T Na. 1200000102 3104 : TR[CONTRA c1 1 SNALI POSSES'TNI CLASS COA CLASSES t a NO SCALE CONTRAC12-OE n Of LICENSE AS SPEC9t1E0 IN nu'+CnCE .0 0 MRS: PROJECT ID S 1-5 Interchange Pi eline Relocation Schedule: 7/31/2012 Bid Plans and Specifications received from Engineer Bid Plans and Specifications to City Council for 8/7/2012 Authorization to Bid 8/9/2012 Bid Posted 1 st time 8/14/2012 Planning Commission, CEQA Update Utilities Commission and City Council action on 8/21/2012 CEQA 8/31/2012 Bids Due 9/4/2012 Bid Award Considered by City Council 9/5/2012 Notice of Award to Contractor, Request Submittals 9/18/2012 Update Utilities Commission Receive Insurance and Bonds and Issue Notice to 9/20/2012 Proceed to Contractor 10/5/2012 Com lete Submittal Process, Issue Start work order 10/15/2012 Contractor on Site within 10 days of Start Work order Contractor to move off Site to accommodate Holiday 1'2/21/2012 Season 1/2/2013 Contractor back on site to complete remaining work Caltrans Contractor on site, City's Contractor off site until Caltrans provides property, and or the work window and 2/1/2013 1 site access to allow City to complete its work The specific components of work to be completed during this specific phase are: e Water Element-6* e Water Element-7* Water Element-8* e Water Element-11* *Detailed in Attachment 5 Attachment 2 M Z W U IMPROVEMENT PLAN FORPR= 1-5 AND ORTEGA HIGHWAY INTERCHANGE ,�®r PIPELINE RELOCATION I4 4 IN THE CITY OF SAN JUAN CAPISTRANO ORANGE COUNTY.CALIFORNIA .,, e awr sw It= t 1 ti� r -r rk�mtMC1019w rzrT R IatOrQ u'tlL q -�� 1 - �� , -- w tm,w•In r r r.t O Ina M m w14 rot wr fl�.aot r r M tanc 1 1 - , .atm t a-. tip taro-ata .j aaatota ! a a I tfaR 1 A n•IL•QI M w t H •IIDO NIq wwr tial fttc]ftr-7a7 '� o.- � 1 n v.a f.vrol w • oa i Ipptgr 71-a Mw 4rMrG 14M r07 pw hila.ware t1t// ', 1 tt nu f.aaw16 tw • F IrOT lrlYl(tr)tii•ttn __�` r 1• 'I /, wt n.aml r as s t u i /Op fa 0[4 !aRtt••aT _ - ,o ! 1 ,1 1 /'/ _ 1ttn.IrPalrOi i• M wwi a�itoa4G&W st0tfro�a.ts» __ -- ,�s a l i�/ f! 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'� I �;a��' II ✓�k•r as s.4m -��I ,\ .Inry �a 4Qk.. r..re.t naav •:•nc woo a•�.om ;m9=3Ir .s um• w a Nrmaa r.ra.t - e•m •r ne cum&a,. • t I r •/.-•�al K; f 'g" - ,r as wt ,.• or•rt/v tor• Ir)ac woo.wk-an Id 51 vrw,vv I I wr ,r Pc woo,w,a W ��- ) �' -1' �`�/I _ a. _�_ �_ + Ie+..•. e\ vaxnv mw whemac"kPom (7 �� \.��11 i 1 1 -r"� '�I I/ I '� -OIC - ' r/' 1\ /��""` � � O.t�aonl•�o \ '\ \ � - wawc.un!+a roalun..ca u.au nrortat 7�. CITY OF SAN JUAN CAPISTRANO L I - \,:A PUBLIC WORKS—TWArER DIVISION } 1. I I \ IMPROVEMENT PLANS FOR 1 o- II'I ' \ 1{It I 1 t ► 1-5 AND ORTEGA HIGHWAY INTERCHANGE g.. ! l I 1 ,�a I I - 111+ I \ PIPBUNE RELOCATION g I \ PRE-CALTRANS - PIPELINE WOA,WOD,1►OE OOQERn>Wr�mnYi�'EEAMtG I + I-nr ..nw I, Ott m u>,nl � I 'Iw c+r� ,10 en.a m r.n ALL— m wwaa I Od 17 Q lil I / I II . . . . . . . . _ _ . . _ . . ._._. . . . . . . . . . . �._----_-._•�_•_ if-. _____-_ _ .�Q __-•__-___ . . . . 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WATER AItPO[EMI'WTA 1p C �,\\ � \ ♦ �� - - - _ j./ �� nts.rat s.ac r pe tl00,arti V ♦ ,`, � ` ♦ /�- - _ _ � c:c 1u,cm.a ro a.ssa.�wns a•m�w CITY OF SAN JUAN CAPISTRANO P•IQUC WORKS - wATER OIMS10% }a ♦ , \ /R�Ar�s_ �GL�- / / /+" IMPROVEMEN- PLANS FOR - f \Iowa f..s e.s m,44 �9ft em-1 ./ I-5 AND ORT6GA BIG6lIAY INTERCHANGE ma s.icl W� ��✓ // -�' - '^ PIPELINE RELOCATION = R.00Aa M lllEtY ' A. . —Kaa.. PRE-CALTRANS - PIPELINE iY7, 115A w Wmu[. 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PRE-MlR<E�'Sblm16+58.00 lWE'8'SiAMtB a&00/ 1 ' i_r � SEGMENT W12/W6 & SEGMENT W3/WA x¢srea=. — , 1 CONNECnON QETAIL n ^ ou¢m aor K.oc,r r.c � / r� 'i \. rs.osr roar:sn•-rd' m y M-4 CITY OF ea5 WDA S - ATER C.1901 PITRANO } IMPROVEMEN7 PLANS FOR a 1-5 AND ORTEGA HIGHWAY INTERCHANGE " PIPELINE RELOCATION x A DETAILS IV DD6 WSM SEGMENT 7 WEST SEGMENT 7 EAST '� o CONNECTION ETAIL CONNECTION DETAIL ►.rr t'a'�' `p"r«0N° "" OD 1 "' co r Dr swc ur•rd• = t� r0 17 r.17 Z .f ao m ro u r,. v w/wrafa '� RECORDING REQUESTED BY AND Recorded in Official Records,Orange County WHEN RECORDED MAIL TO: Tom �� City Clerk NO FEE City of San Juan Capistrano 201100038283911:21 am 08/04/11 82 417 Al2 184 32400 Paseo Adelanto San Juan Capistrano,CA 92675 0.00 0.00 0.00 0.00 578.00 0.00 0.00 0.00 (Space Above This Line for Recorder's Office Use Only) (Exempt from Recording Fee per Gov.Code¢ 6103 and 27383) N f DEVELOPMENT AGREEMENT (PLAZA BANDERAS HOTEL AND MIXED USE PROJECT) by and between CITY OF SAN JUAN CAPISTRANO and STROSCHER G39 LLC Effective August 3,2011 (Ordinance No. 988 adopted July 5,2011) ATTACHMENT 4 DEVELOPMENT AGREEMENT (PLAZA BANDERAS HOTEL AND MIXED USE PROJECT) This DEVELOPMENT AGREEMENT (PLAZA BANDERAS HOTEL AND MIXED USE PROJECT)(the "Agreement")is dated for reference purposes only as of the ltday of July, 2011, and is being entered into by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, organized and existing under the laws of the State of California ("CITY"), and STROSCHER G3, LLC, a California limited liability company ("STROSCHER"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Legislation") and Article XI, Section 2, of the California Constitution. CITY and STROSCHER are sometimes hereinafter referred to as the"Parties." RECITALS This Agreement is predicated upon the following facts: A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The Parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Development Agreement Legislation authorizes CITY to enter into binding development agreements with persons having legal or equitable interests -in real property for the development of such property in order to, among other things: ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of housing and'other development to the consumer; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing policies, rules, and regulations, subject to the applicable conditions of approval, in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the private and public economic costs of development; and encourage and provide.for the development of public infrastructure and amenities to support the development of new housing and commercial projects. C. STROSCHER is the fee owner of that certain real property consisting of 3.18 acres of land located at the comer of Ortega Highway and El Camino Real in the City of San Juan Capistrano, County of Orange, State of California, that is more particularly described and depicted in Exhibit "A"attached hereto and made a part hereof(the"Property"). D. The Property consists of 3.18 acres, with a three-story, 124-room hotel, consisting of 76,363 square feet ("Hotel") on approximately 2 acres; 10,169 square feet two story office/retail building consisting of 6,467 square feet of retail on the first floor ("Retail Component") and 3,702 square feet of private office on the second floor(the "Private Office Space") ; 6,095 square feet for a restaurant ("Restaurant") and 190 parking spaces (the Hotel, Retail Component, the Private Office Space,Restaurant and parking spaces are collectively,the "Project"). E. In connection with approval of the Project, STROSCHER applied for, and CITY approved, General Plan Amendment 10-001; Rezone 10-001; Architectural Control 10-002; Grading Plan Modification 10-001; Tree Removal Permit 10-003; Floodplain Land Use Permit 10-001; and Tentative Parcel Map 10-001 (collectively, the "Development Plan Approvals"), in accordance with -l- the provisions of this Agreement, and other applicable regulations of the CITY and other governmental agencies having jurisdiction over the Property and the "Project" as defined in Section 1.24 below. F. STROSCHER has applied for, and CITY has ap)roved, this Agreement in order to create a beneficial development project and a physical environment that will conform to and complement the goals of CITY, be sensitive to human needs and values, and facilitate efficient traffic circulation. By its approval and execution of this Agreement CITY has determined that CITY (including, without limitation the existing and future residents of CITY) will receive the following direct and indirect benefits from the implementation of this Agreement: 1. The Project will conform to CITY's goal to manage growth through the use of, among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. 2. The traffic and circulation elements of the Development Plan will conform to CITY's General. Plan by reducing the impact of the average daily trips generated by the Development of the Project on arterial roads and thoroughfares adjacent to the Expansion Parcels consistent with Transportation and Traffic Mitigation Measures set forth in the Mitigation Monitoring and Reporting Program("MMRP")for the Project. 3. Dedication to CITY of an easement interest in the air space over a portion of the Property, to be used by the City as a parking lot or parking facility ("Parking Lot Air Space Parcel"),to increase the number of parking spaces available for visitors to the Mission San Juan Capistrano. The Parking Lot Air Space Parcel shall not eliminate any of the Project's parking spaces and improvements to this air space shall not disrupt Development or operation of the Project. A depiction of the Parking Lot Air Space Parcel is attached hereto at Exhibit "B"and made a part hereof. 4. Development of the Project will generate significant increases in revenue to the City, through Project generation of Transit Occupancy Tax revenues (San Juan Municipal Code ("SJMC") Section 3-3.601 et seq.), sales tax revenues and increased property tax revenues. G. The following actions have been taken with respect to this Agreement and the Project: 1. On or about October 5, 2010, pursuant to the applicable provisions of the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and the regulations promulgated by the Secretary of Resources pursuant thereto (Title 14 of the California Code of Regulations, Section 15000 et seq.) (collectively, "CEQA"), the City Council of CITY found and determined that all of the significant environmental impacts of the Project, including this Agreement, were adequately mitigated and adopted an Environmental Impact Report; 2. On or about September 14, 2010, following three duly noticed and conducted public hearings, the Planning Commission of CITY took action on the Project; -2- 3. On or about October 5, 2010, the City Council of CITY approved the Development Plan Approvals; 4. On or about June 30, 2011, after a duly noticed and conducted public hearing, the City Council of CITY determined that the provisions of this Agreement were consistent with the General Plan of CITY; 5. On or about June 30, 2011, pursuant to CEQA, the CITY Council of CITY found and determined that the previously certified Environmental Impact Report for the Project adequately describes the Agreement's environmental setting, impacts and alternatives and mitigation measures related to each significant impact;and 5. On or about June 30, 2011, after a duly noticed and conducted public hearing, the City Council of CITY introduced Ordinance No. 988 approving and authorizing the execution of this Agreement and on July 5, 2011, the City Council of CITY adopted said Ordinance (hereinafter the "Authorizing Ordinance"), a copy of which Authorizing Ordinance is on file in the City Clerk's office at City Hall. H. In consideration of the substantial public improvements and benefits to be provided by STROSCHER and the Project,-and in order to strengthen.the public planning process and provide significant educational and economic benefits to the City of San Juan community,by this Agreement CITY-intends to provide to STROSCHER the assurance that it can proceed with Development of the Project for the Tenn of this Agreement pursuant to the terms and conditions of this Agreement and in accordance with the CITY's General Plan, ordinances, policies, rules, and regulations existing as of the Effective Date. In reliance on CITY's covenants in this Agreement concerning Development of the Property, STROSCHER has and will in the future incur substantial costs in site preparation and the construction and installation of major infrastructure and facilities in order to make the Master Plan feasible. I. Pursuant to Section 65867.5 of the Development Agreement Legislation, the City Council has found and determined that: (i) this Agreement and the Development Plan for the Project implement the goals and policies of CITY's General Plan,provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within the City of San Juan Capistrano, (ii) this Agreement is in the best interests of and not detrimental to the public health, safety, and general welfare of CITY and its residents; (iii) adopting this Agreement is consistent with CITY's General Plan and constitutes a present exercise of CITY's police power; and (iv) this Agreement is being entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Legislation. J. CITY and STROSCHER agree that it may be beneficial to enter into additional agreements and operating memoranda, or to modify this Agreement with respect to the implementation of the separate components of the Development Plan when more information concerning the details of each component is available, and that this Agreement should expressly allow for such contemplated additional agreements, operating memoranda, and modifications to this Agreement. -3- K. Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No. 48 require STROSCHER to construct a loop system to run from a POC in the 350C system at the intersection of El Homo and the I-5 Freeway ("El Homo Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). The "Ortega Section"to which the El Homo Section is to connect includes the water line from a point 200 foot east of the intersection of Camino Capistrano and Ortega Hwy., then continuing easterly on Ortega Hwy. to the intersection of Ortega Highway and Avenida Los Cerritos. Compliance of these conditions may be resolved as follows: 1. During the future reconstruction of the Ortega Bridge over the I-5, CITY has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Homo Section provide sufficient fire flow as determined by the fire marshall, STROSCHER shall not be required to construct the Ortega Section: Prior to the time the Ortega Section is to be constructed, STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction and/or the Parties may enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the Ortega Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 2. STROSCHEA shall construct the El Homo Section to provide sufficient fire flow to the Property as determined by the fire marshall. STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction should new development be proposed, which would benefit from the El Homo Section construction. The Parties may further enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the El Homo Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the El Homo Section. 3. Subject to exercising its legislative discretion, the CITY shall consider the creation of a utility district to fund the undergrounding of power lines along El Camino Real ("Undergrounding of Power Lines"). L. CITY agrees, subject to exercising its legislative discretion, to assist STROSCHER in, its attempts to have Caltrans reconstruct the entryway to the Project, which may be required due to the future relocation and expansion of Ortega Highway by Caltrans. CITY's assistance to STROSCHER shall not include the provision of any financial assistance, unless CITY, in its sole discretion, determines to provide financial assistance. M. The Stroscher Family previously conveyed to the County of Orange rights-of-way which were to be used in the construction of the Ortega Highway. Ultimately, the City succeeded to the interest of the County of Orange, and presently owns the rights-of-way, which no longer are needed for future improvement of the Ortega Highway ("Excess Ortega Rights-of-Way"). The Excess Ortega Rights-of-Way are depicted on Exhibit "C"attached hereto and made a part hereof. AGREEMENT NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Article XI, Section 2 of the California Constitution, -4- and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement, and for the further consideration described in this Agreement,the Parties agree as follows: 1. Defmitions. The following words and phrases are used as defined terms throughout this Agreement and each defined term shall have the meaning set forth below: 1.1 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No. 988 approving this Agreement. 1.2 CEOA. "CEQA" has the meaning ascribed to that term in Recital F.1 of this Agreement. 1.3 CITY. "CITY" means the City of San Juan Capistrano, a California municipal corporation, duly organized and existing under the Constitution and laws of the State of California, and all of its officials,employees,agencies, and departments. 1.4 City Council. "City Council"means the duly elected and constituted city council of CITY. 1.5 Default. "Default".has the meaning ascribed in Section 9.1 or 9.2 of this Agreement, as applicable. 1.6 Develop. Development or Developin¢. "Develop," "Development" or "Developing" means the improvement and use of the Property, as the term "Development" is defined in California Government Code Section 65927, for purposes consistent with the Project and this Agreement, all in accordance with the provisions of this Agreement, but does not include the maintenance, repair, reconstruction; or redevelopment of any building, structure, improvement, or facility after the initial construction and completion thereof. 1.7 Developer. Developer means Stroscher G3, LLC, all successors in interest, in whole or part, to the right,title,and interest of any of such entity in and to this Agreement with respect to all or any portion of the Property. 1.8 Development Agreement Legislation. "Development Agreement Legislation" means Sections 65864 through 65869.5 of the California Government Code as it exists on the Effective Date, 1.9 Development Exactions. "Development Exactions" means any requirement of CITY in connection with the Existing or Subsequent Land Use Regulations or Development Plan Approvals, for the dedication of land (including without limitation through the encumbrance of land with an easement or use restriction), the construction or improvement of public improvements or facilities (including without limitation improvements or facilities located on land that is encumbered with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity), or the formation of any Financing District and/or payment of any special taxes, assessments, or fees, in order to provide any such public improvements or facilities in conjunction with -5- Development or to lessen, offset, mitigate, or compensate for the impacts of development on the environment or other public interests consistent with the Project and this Agreement. 1.10 Development Impact Fees. "Development Impact Fees" shall mean those fees established and adopted by CITY with respect to development and its impacts pursuant to applicable governmental requirements, including Section 66000 et .seg., of the California Government Code, including impacts fees, linkage fees, exactions, assessments or fair share charges or other similar impact fees or charges imposed on or in connection with new development by the CITY. Development Impact Fees do not mean or include Processing Fees. The Development Impact Fees are the only Development Impact Fees that the City may impose or levy on the Project. 1.11 Development Plan. "Development Plan" means the plan for Developing the Project on the Property in accordance with this Agreement, the Development Plan Approval(s), and the Future Approvals.' As of the Effective Date,the Development Plan consists of the Master Plan,provisions of CITY's General Plan (as amended through the General Plan Amendment referred to in Recital E) applicable to the Property, the narrative description of the Project set forth in Exhibit "D" to this Agreement, the Development Plan Approvals set forth in Exhibit "E" to this Agreement, and the express provisions set forth in this Agreement that define or describe the Project. The Future Development Approvals automatically shall become a part of the Development Plan and included within the scope of STROSCHER's vested rights provided for in this Agreement without the need for any amendment of this Agreement when the same are issued or approved by CITY and become effective. Each of the-documents memorializing the Development Plan is (or will be) maintained in the official records of CITY and shall be utilized whenever required to interpret or apply this Agreement. 1.12 Development Plan Approval(s). "Development Plan Approval(s)" means the approvals of the City Council described in Exhibit "E" hereto insofar as the same relate to the Property and the Development Plan, including those amendments to this Agreement made in accordance with Section 3.8 hereof,those amendments to the Development Plan Approval(s)made in accordance with Section 3.9 hereof, and those Future Development Approvals made in accordance with Section 3.6 hereof. 1.13 Development Transferee. "Development Transferee" means a person or entity that expressly assumes obligations under this Agreement puisuant to Section 2.5 hereof. 1.14 Discretionark► Action(s) or Discretionary Approval(s). "Discretionary Action(s)" or "Discretionary Approval(s)"means an action which requires the exercise of judgment,deliberation or discretion on the part of the CITY including any board, agency, commission or department and any officer of employee 'thereof, in the process of approving or disapproving a particular activity, as distinguished from an activity which is defined herein as a Ministerial Permit or Ministerial Approval. 1.15 Effective Date. "Effective Date" means the date the Authorizing Ordinance becomes effective. 1.16 Existing Land Use Regulations.ations. "Existing Land Use Regulations" means all ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other action of CITY, including but not limited to the CITY's General Plan Municipal Code and Zoning -6- Code and including all Development Impact Fees, which affect, govern or apply to the Development and use of the Property, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes,and the design, improvement and construction standards and specifications applicable to the Development of the Property, subject to the terms of this Agreement, whether adopted by the City Council or the voters in an initiative,which are in effect on the Effective Date,pursuant to California Government Code Section 65866. 1.17 Future Development Approvals. "Future Development Approvals" means those entitlements and approvals that are: (a) made in accordance with Section 3.6 hereof; and (b)requested by STROSCHER in order to authorize the Development to occur upon the Property in a manner consistent with the Development Plan Approval(s). . By way of enumeration, and not limitation of the foregoing, the Future Development Approvals include such development permits, development plan reviews, use permits, variances, grading permits, building permits, and occupancy permits that are required as a condition to STROSCHER's right to Develop pursuant to the Development Approvals for all or any portion of the Project. There is no intention to include any approvals that are beyond the implementation of the specific development listed on Exhibit "D". 1.18 Ministerial Approvals) or Ministerial ActUs,). "Ministerial Approval(s)" or "Ministerial Act(s)" means a permit approval or clearance, conformance with the Existing Land Use Regulations,including,without limitation,conformance maps for tentative tract maps, determinations of compliance with the Project Conditions of Approval of the Existing Project Approvals, site plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits,wall permits, building permits, lot line adjustments, encroachment permits, temporary use permits, certificates of use and occupancy, and approvals and entitlements and related matters as necessary for the completion of the Development of the Property as distinguished from an activity which is included in the definition of Discretionary Action or Discretionary Approval. 1.19 On-Site Improvements. "On-Site Improvements" means physical infrastructure improvements or facilities that are or will be located on the Property consistent with the Development Plan Approvals. 1.20 Owner. "Owner"means STROSCHER. 1.21 Party or Parties. "Party" means either CITY or STROSCHER, as the context dictates, and"Parties"means CITY and STROSCHER. 1.22 Planning Commission. "Planning Commission" means the duly appointed and constituted planning commission of CITY. 1.23 Processing Fees. "Processing Fees" means all fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Future Development Approvals. 1.24 Project. "Project" means the Development and Approvals summarized in Recital E, the planning elements of which are more specifically described in Exhibit "E"hereto. -7- 1.25 Pro e . "Property." means the Property referred to in Recital C and more particularly described in Exhibit "A to this Agreement. 1.26 Term. "Term" means the period of time that this Agreement remains in effect with respect to the Property or any portion thereof,as provided in Section 2.3. 2. General Provisions. 2.1 Binding Covenants. The provisions of this Agreement to the-extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereot and the benefits and burdens of this Agreement shall bind and inure to the benefit of the Parties and all successors in interest to the Parties hereto. 2.2 Interest of STROSCHER. As of the date this Agreement is being executed by the Parties, STROSCHER represents that.STROSCHER is the fee owner of that certain real property consisting of 3.18 acres of land located at the northwest corner of Ortega Highway and El Camino Real in the City of San Juan Capistrano, County of Orange, State of California, that is more particularly described and depicted in Exhibit "A" attached hereto and made a part hereof (the "Property"). 2.3 Term. In addition to the provisions of Section 10.4 of this Agreement,the initial term (hereinafter called "Term") of this Agreement shall commence on the Effective Date and shall terminate at the end of the day immediately preceding the fifth (5h) anniversary of the Effective Date, subject to the termination provisions set forth herein; provided, however, that so long as STROSCHER is not in Default of this Agreement and the Agreement has not been otherwise terminated, STROSCHER may request CITY to extend the Term for up to three (3) one-year extensions of the Term. City shall have the discretion as to whether to approve or deny any such extension request(s)made by STROSCHER. STROSCHER's request(s)to extend the Term shall be submitted not more than one hundred eighty (180) days and no less than sixty (60) days before the end of the Term. Pursuant to California Government Code Sections 65863.9 and 66452.6(a), the expiration date of all Development Plan Approvals shall be extended for the greater of the Term of this Agreement, in which case no such extension application need be filed, or such time approved in accordance with state law or the Existing Land Use Regulations. The Parties agree that phased final subdivision maps maybe processed and recorded. 2.4 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (i) If termination occurs pursuant to any specific provision of this Agreement;or (ii) As to provisions of this Agreement governing On-Site Improvements on any separate legal lot(s) or parcel(s) within the Property, upon the completion of On-Site Improvements on and with respect to said lot(s) or parcel(s) pursuant to the terms of this Agreement and CITY's issuance of all required occupancy permits or final inspections, as applicable, and acceptance of all dedications and improvements required to complete such On-Site Improvements;or (iii) Entry after all appeals have been exhaustcd of a final judgment or issuance of a final order directed to CITY invalidating this Agreement. -8- The termination of this Agreement in its entirety or with respect to a particular lot(s) or parcel(s) shall not affect any right or duty of STROSCHER arising from any provisions of this Agreement that remain effective or from a source other than this Agreement. In the event this Agreement terminates in its entirety or with respect to a particular lot(s) or parcel(s),and notwithstanding any other provision set forth herein,upon request by STROSCHER,or any other successor or assignee of either of them, CITY shall cooperate, at no cost to CITY, in executing in recordable form a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof. 2.5 Transfers and Assn Ments. 2.5.1 STROSCHER ("Owner") shall not assign all or any part of this Agreement without the prior written approval of the CITY. Such written approval by the CITY shall not be unreasonably withheld, provided that: (a) if Owner's.proposed assignee is an entity, such entity shall be legally formed and qualified to conduct business in the State of California; (b) Owner shall have delivered evidence to CITY that Owner's proposed assignee has the ability to comply with the Agreement; (c) Owner and -its/their assignee execute an assignment and assumption agreement pursuant to which the assignee expressly assumes all of Owner's obligations under the Agreement; and(d)CITY shall bear no expenses in connection with such assignment. Notwithstanding any other provision of this Agreement, Owner need not obtain the prior written approval of CITY for the assignment of this Agreement to a limited liability company, limited partnership or corporation wholly-owned by,or under Owner's control. 3. Development Provisions. 3.1 Vestine. 3.1.1 Project. CITY covenants STROSCHER has and shall have the right to Develop the Project on the Property consistent with the Development Plan and the Development Plan Approval(s), including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective("vested right"). 3.1.2 Limits on Development. The California Supreme Court held in Pardee Construction Company v. City of Camarillo, 37 Cai.3d 465 (1984), that the failure of the parties to address certain limits on a city's ability to condition, restrict, or regulate a development allowed a later adopted initiative to restrict the development. This Agreement is intended to cure that deficiency by expressly addressing the timing for the Development, the vested rights afforded by this Agreement, and the scope of CITY's reserved authority described in Section 3.2 hereof. Except as expressly set forth in the Development Plan and Development Plan Approval(s), regardless of any future enactment, whether by initiative or otherwise, STROSCHER shall have the vested right to Develop the various components of the Project in such order, at such rate, and at such times as STROSCHER deems appropriate within the exercise of its subjective business judgment. Specifically, CITY agrees that STROSCHER shall be entitled to apply for and receive the Future Development Approvals and to Develop and use the Property at any time, provided that such application is made and such Development occurs in accordance with this Agreement and the other Development Plan Approval(s). No future amendment of any CITY law and no future adoption of any CITY law or other action that purports to limit the scope, rate; or timing of Development on the -9- Property or to alter the sequencing of the Development in a manner inconsistent with the Development Plan or the Development Plan Approval(s) (including without limitation the Future Development Approvals when issued by CITY), whether the same are adopted or imposed by the City Council or through the initiative or referendum process, shall .apply to the Property. Notwithstanding the foregoing, nothing in this Section 3.1 shall limit or restrict CITY's reserved authority as described in Section 3.2. 3.1.3 Entitlements,Permits.and Approvals—Cooperation. 3.1.3.1 Processing. CITY agrees that it shall accept and expeditiously process, pursuant to CITY's regular procedures,•complete applications for the Future Development Approvals and, if applicable, STROSCHER's complete applications for amendments to this Agreement, to the Development Plan Approval(s), and to any of the Future Development Approvals(after the same have been initially approved). 3.1.3.2 Other Permits. CITY further agrees to reasonably cooperate with STROSCHER, at no cost to CITY, in securing any County, State, and Federal permits or authorizations which may be required in connection with Development of the Property that are consistent with the Development Plan and Development Plan Approval(s); provided, that nothing in this Section 3.1.3.2 shall be deemed to require CITY's assumption of any obligations under any said permits or authorizations. 3.1.3.3 Acquisition of Off-Site Property. CITY shall not postpone or refuse approval of any . Future Development Approval because STROSCHER or a Development Transferee has failed to acquire off-site property required for the construction or installation of offsite improvements. To the-extent CITY, STROSCHER, or a Development Transferee does not have sufficient title or interest to permit any of such offsite improvements that are such entity's responsibility to be constructed or installed at the time the application for a Future Development Approval is processed or approved by CITY, STROSCHER or the Development Transferee shall make a good faith effort to acquire the required property. If STROSCHER or the Development Transferee is unable to acquire the required property, CITY shall-consider in good faith the acquisition of the required property. If CITY is unable to acquire the required property by negotiation or condemnation within the time frame provided for in Government Code Section 66462.5, CITY shall continue to issue the Future Development Approval(s) for the Property despite the fact that the offsite improvement has not been completed. Notwithstanding the foregoing, CITY's obligation to continue to issue the Future Development Approvals as provided for in this Section is contingent upon: (i) STROSCHER or the Development Transferee submitting the improvement plans required for the improvement to CITY; and (ii)consistent with Government Code Section 66462.5, STROSCHER or the Development Transferee entering into a mutually acceptable agreement with CITY that requires STROSCHER or the Development Transferee to pay or reimburse or secure the future payment or reimbursement of CITY for STROSCHER's fair share of the costs incurred in acquiring the land and constructing the applicable offsite improvement(s) at such time as CITY acquires the required land. -10- 3.2 Reserved Authority. 3.2.1 Reservation of Authority With Respgct to Future Development Approvals; Future Changes in Development Exactions. Notwithstanding any other provision set forth in this Agreement to the contrary, CITY reserves the right after the Effective Date-of this Agreement to change the Existing Land Use Regulations applicable to the Property and the Project and to exercise the same degree of discretion and control in its consideration of Future Development Approvals that it would have in the absence of this Agreement to impose conditions under CEQA and other applicable laws and regulations that apply to all similar development throughout the CITY in order to mitigate the Project's impact on the environment,subject to the following limitations: (i) Although CITY reserves the authority to change its Existing Land Use Regulations, no such future changes in the Existing Land Use Regulations shall apply to the Project, if such future changes in the Existing Land Use Regulation would be inconsistent with the Development Plan, the Project Development Approvals, or any of the provisions of this Agreement, nor shall any such future changes applicable to the Project materially jeopardize or impair the rights of STROSCHER thereunder or materially increase the cost of Developing the Project; (ii) Upon request by STROSCHER, CITY shall provide written support to STROSCHER, if STROSCHER files a request for waiver or reduction of a Development Exaction imposed by any governmental or quasi-governmental agency, aside from the CITY 3.2.2 Uniform Codes. This Agreement shall not prevent CITY from applying to the Project new uniform construction standards adopted by the State of California as State Codes, such as the Uniform Building Code, National Electrical Code, Uniform Mechanical Code, and Uniform Fire Code, provided those same standards are applied to all other development within the City of San Juan Capistrano. 3.2.3 State and Federal Laws and Regulations. STROSCHER shall comply with all applicable state and federal laws and regulations, provided that nothing in this Agreement shall be deemed to limit or restrict the right of STROSCHER to contest or challenge the validity of any such laws or regulations or their applicability to the Property or the Project. In the event that either CITY or STROSCHER determines that a state or federal law or regulation preyents the full implementation of the Development Plan and/or any of the Development PIan Approval(s), that Party shall provide the other Party with written notice of the state or federal law or regulation, a copy of the law or regulation, and a written statement of the conflicts between such state or federal law or regulation and this Agreement. Promptly thereafter CITY and STROSCHER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement is required, provided that each Party reserves its discretion with respect thereto. CITY agrees to cooperate with STROSCHER in resolving the conflict in a manner which minimizes any adverse fiscal or other impact of the conflict upon STROSCHER, provided only that in no event does CITY agree that in such event it will materially increase its financial obligations set forth in this Agreement or otherwise materially increase its obligations. CITY also agrees to process in a prompt manner STROSCHER's proposed changes to the Development Plan and/or Development Plan Approval(s)as may be necessary to comply with such federal or state law or regulation; provided, however, that the -11- approval of such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement. 3.2.4 Suspension of Development in Order to Protect Health and Safety. Nothing in this Agreement shall be construed to be in derogation of CITY's police power to suspend the right of STROSCHER to develop all or any portion of the Project in order to protect the public health and safety (e.g., in the event of the unavailability of adequate water, wastewater treatment, or storm drainage facilities). In the event that CITY determines that the public health or safety require a suspension of STROSCHER's right to develop all or any portion of the Project, the scope of the suspension shall be limited to the extent determined by CITY to be reasonably necessary to protect the public health or safety, the term of the suspension shall be limited to the period of time during which the public health or safety concern continues, and CITY shall exercise reasonable good faith efforts to minimize the period of such suspension to the extent that the cause thereof is within CITY's control. As soon as is reasonably practicable after the commencement of an event that results in a suspension of the rights of STROSCHER to develop hereunder due to public health or safety concerns, CITY shall provide STROSCHER with written notice of the existence of such event, a detailed explanation of CITY's proposed action, and a written statement of any conflicts with the provisions of this Agreement that require a suspension of any of the terms hereof. Promptly thereafter CITY and STROSCHER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement in whole or in part, is necessary. In such negotiations, CITY and STROSCHER agree to preserve the terms of this Agreement and the rights of STROSCHER as derived from this Agreement to the maximum feasible extent while resolving the conflict. CITY agrees to cooperate with STROSCHER in a good faith reasonable effort to resolve any such conflict in a manner which minimizes any adverse financial or other impact of the conflict upon STROSCHER without materially increasing the obligations of CITY under this Agreement. CITY also agrees in such event to process in an expedited manner STROSCHER's proposed changes to the Development Plan and any previously issued Development Plan Approval(s) as may be necessary to'appropriately respond to the public health and safety concern with respect to the portion of the Property owned by STROSCHER, provided, however, that the approval of any such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement, and no such change shall apply to any other portion of the Property without the prior written consent of the owner(s)-thereof. 3.3 Further Assurances to STROSCHER Regarding Exercise of Reserved Authority. The Parties fiuther acknowledge that the public benefits to be provided by STROSCHER to CITY pursuant to this Agreement are in consideration for and reliance upon assurances that the Property may be developed and used in accordance with the Development Plan and.the Development Plan Approval(s). Accordingly, while recognizing that the Development of the Property may be.affected by the exercise of the authority and rights reserved and excepted as provided in Sections 3.1 ("Vesting") and 3.2 ("Reserved Authority"), STROSCHER is concerned that normally the judiciary extends to local agencies significant deference in the adoption of rules,regulations,and policies and that in the absence of an express provision set forth in this Agreement such judicial deference might be construed to permit CITY, in violation of the limitations on its reserved authority, to attempt to apply rules, regulations, and policies that are inconsistent with the Development Plan and the Development Plan Approval(s). Accordingly, STROSCHER desires assurances that CITY shall not, and CITY agrees that it shall not, further restrict or limit the Development of the Property in violation of this Agreement except in strict accordance with the reserved authority described in Section 3.2 hereof, which exercising of CITY's reserved authority shall not be considered to be a -12- violation of this Agreement. In this regard, from and after the date that CITY approves the Project, if STROSCHER judicially (including by way of a reference proceeding) challenges CITY's purported exercise of its reserved authority as being in violation of this Agreement, STROSCHER shall bear the burden of alleging that such purported exercise by CITY of its Reserved Authority is inconsistent with the Development Plan or the Development Plan Approval(s) and CITY thereafter shall bear the burden of proof in establishing by a preponderance of the evidence that such exercise of its Reserved Authority is in accordance with and not a violation of this Agreement. 3.4 Vested Right. By entering into this Agreement and relying thereupon, STROSCHER is obtaining certain vested rights to proceed with the Development anticipated by the Development Plan and the Development Approvals and in accordance with the terms and conditions of this Agreement (as the same may be amended and supplemented from time to time as expressly set forth herein) and the Existing Land Use Regulations. By entering into this Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public health, safety, and welfare. CITY therefore agrees to the following: 3.4.1 No Conflicting Enactments. Except as provided in Section 3.2 of this Agreement, after the Effective Date neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance, or other measure (collectively, "law") applicable to the Property which is inconsistent or in conflict with this Agreement. Not by way of limitation of the foregoing, any law, whether by specific reference to this Agreement or otherwise, shall be considered to be inconsistent and in conflict with this Agreement if it has any of the following effects: (i) It limits or reduces the occupancy, density or intensity of the Project as provided for in the Development Plan or the Development Plan Approval(s);or (ii) It imposes Development Exactions on the Property other than those in effect on the Effective Date or as otherwise expressly permitted by Section 3.2.1 of this Agreement. 3.4.2 Consistent Enactments. By way of enumeration and not limitation, the following types of laws shall be considered consistent and not in conflict with this Agreement: (i) Laws that provide for the relocation of structures within the.Property pursuant to an application from STROSCHER; and (ii) Any law that is expressly authorized by this Agreement. 3.4.3 Initiative Measures. In accordance with state law, in addition to and not in limitation of the foregoing, it is the intent of STROSCHER and CITY that no moratorium or other limitation(whether relating to the Development of all or any part of the Property and whether enacted by initiative or otherwise) affecting site development permits, precise plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within CITY, or portions of CITY, shall apply to the Property to the extent such moratorium or other limitation would restrict STROSCHER's right to Develop the various elements of the Project on the Property in such order and at such rate as STROSCHER deems appropriate. 3.5 Subsequent CEOA Review. -13- 3.5.1 The EIR. The CITY certifies that the EIR prepared on behalf of the CITY in conjunction with the Project is.a.complete and accurate document which satisfies all the requirements of the California Environmental Quality Act ("CEQA," California Public Resources Code Section 21000 et seg.) and the State CEQA Guidelines (14 California Code of Regulations 15000 et seg.) with respect to the Project and this Agreement. CITY agrees that no mitigation measures arising out of environmental concerns that are not included in the MMRP for the EIR or this Agreement shall be imposed on the Project except as otherwise provided in this Section. In exercising its legislative discretion to enter into this Agreement and to commit CITY to the completion of the Project, CITY has fin-ther reviewed and considered from a variety of perspectives, and has analyzed pursuant to a variety of assumptions,the projected future regional and cumulative environmental demands that will compete with the Project for available capacities and cumulatively add to potential adverse impacts. 3.5.2 Subsequent CEOA Review. In accordance with state law, the Parties to this Agreement intend that the EIR fully and adequately addresses all potential adverse environmental impacts from fill development of the Project. After consideration of the potential adverse environmental impacts"associated with the Project, the CITY has imposed mitigation measures in accordance with CEQA, as specified in the MMRP to the fullest extent the CITY considers feasible and necessary. The CITY has determined that the Development of the Project in the manner contemplated by the Project Approvals and this Agreement will provide the mitigation measures needed to alleviate short-run and long-run potential adverse environmental impacts created by the Project, and that the public benefits to be derived from the Development of the Project override any potential adverse environmental impacts which may arise from the Development of the Project. Therefore, the CITY agrees that no subsequent or supplemental EIR shall be required by the CITY for any Subsequent Discretionary Project Approvals implementing the Development of the Project unless required pursuant to California Public Resources Code Section 21166 and Title 14 California Code of Regulations, Section 15162. For purposes of this analysis, the term "new information"does not mean discovery that probabilities of adverse (or beneficial) results considered in the approval of this Agreement, the Existing Project Approvals or the EIR may prove incorrect, or that such probabilities are or are not becoming, or have or have not become, realities; but instead, "new information' requires that the actual quantitative or qualitative extent of the underlying issues were not considered and could not have been considered in the environmental analysis associated with the approval of the Existing Project Approvals,this Agreement and the EIR. 3.6 Subsequent Proiect Approvals. 3.6.1 Basis for Denying or Conditional Granting Subsequent Project Approvals. The CITY is bound to permit the uses on the Property that are permitted by the Existing Land Use Regulations and the Development Plan Approvals. The CITY agrees to grant and implement all Ministerial Approvals, as long as the Ministerial Approvals comply with the Existing Land.Use Regulations, the Agreement, and are consistent with the Development Plan Approvals, including but not limited to,building plans and permits, specifications, reclamation plans, landscape plans, grading plans and permits, and use permits reasonably necessary or desirable to accomplish the goals, objectives, policies and plans described in this Agreement. This Agreement shall not prevent the CITY .from denying or conditionally approving any Discretionary Approval on the basis of the Existing Land Use Regulations, subject, however, to the provisions of Sections 3.1 and 3.4 of this Agreement. -14- 3.6.2 Duty to Grant and Implement. Subject to the requirements of state law and the CITY Municipal Code, the CITY's obligation to grant and implement any Ministerial or Discretionary Approvals shall not infringe upon the CITY's right to withhold such Future Development Approvals for failure of the applicable Application to conform to the Existing Land Use Regulations. If the CITY rejects an application for a Ministerial or Discretionary Approval, it shall provide, in good faith, a specific list of reasons why the application was rejected, along with a description of reasonable measures ("Measures to Correct") to correct each basis for rejection. If Developer resubmits its application incorporating all the Measures to Correct, the CITY shall not unreasonably deny Developer's application. 3.6.3 Processing Obligations. The CITY hereby agrees that it will accept from the Developer. for processing and review all applications for Future Development Approvals, in accordance with the Existing Land Use Regulations. To the fullest extent allowed by law,the CITY shall process all applications filed in connection with the Development of the Project as expeditiously as possible and shell complete at the earliest possible time all steps necessary for the implementation of this Development Agreement and the Development of the Project, including,but not limited to,the following: (a) The processing of applications for and the issuance of all Project Approvals requiring the exercise of judgment and deliberation by the CITY, including without limitation, the Subsequent Project Approvals; (b) The retention, upon the Developer's request, of outside plan check consultants, to be selected by CITY, in consultation with STROSCHER, to assist in processing of applications and plans(including infrastructure and storm drain plans),at the Developer's cost; (c) The holding of any required public hearings;and (d) CITY performance of all required inspections called for by Developer within fifteen(15)business days following the request for inspection by Developer. 3.6.4 Changes in the Project. In accordance with the City Municipal Code, CITY acknowledges that the Developer may in the future desire to change or modify the Project based on precise planning, changes in market demand-for aggregate products, changes in development occurring in the vicinity of the Property, or other factors. All such Project revisions shall be subject to the provisions of Subsections,3.5.1, 3.5.2, 3.6.1, 3.6.2 and 3.6.3 of this Agreement. In such event, CITY shall cooperate with Developer to expeditiously review and take final action on such requested changes in accordance with the Existing Land Use Regulations. No change to the Project which is consistent with the Existing Land Use Regulations shall require an amendment to this Agreement and, in the event any change to the Project proposed by Developer is approved by the CITY, the references in this Agreement to the Project of applicable portion thereof shall be deemed to refer to the Project as so changed. 3.7 Development Impact Fees. Notwithstanding anything to the contiary in this Agreement, and subject to the provisions of Section 3.7.1, the only Development Impact Fees that may be applied to the Project, Developer or Property in connection with the Project shall be those existing on the Entry Date. Development Impact Fees shall be paid at the fee rate in effect at the -15- time when payment for such fees is due and payable, for the portion of the Property to which such fees apply. 3.7.1 Annlicability of Temporary Reductions in Development Impact Fees. On July 20, 2010,the City Council adopted Resolution No. 10-7-20-01,mandating a seventy-five percent (75%) reduction in sewer, traffic, and water Development Impact Fees for hotels and vehicle dealerships from the rate otherwise applicable for commercial/industrial uses (collectively, the "Decreased Impact Fees"). Notwithstanding the July 31, 2011 expiration date of Resolution No. 10- 07-20-01, the Project shall be subject to the Decreased Impact Fees, as long as the first building permit for construction of the hotel building is issued on or before the second(2"d)anniversary of the Effective Date. If the first building permit for construction of the hotel building is issued after the second (2"d) anniversary of the Effective Date and before the third (3'd) anniversary of the Effective Date, then the Project shall qualify for a fifty percent*(50%) reduction in sewer, traffic and water Development Impact Fees. If the first building permit for construction of the hotel building is issued after the third (P) anniversary of the Effective Date and before the fourth (0) anniversary of the Effective Date, then the Project shall qualify for a fifty percent(25%) reduction in sewer, traffic and water Development Impact Fees. No reduction will be available after the fourth (0) anniversary of the Effective Date. Pursuant'to Resolution No. 10-7-20-01, the Decreased Impact Fees shall apply to the hotel portion of the Project. Furthermore, the parties agree that if the expiration date of Resolution 10-7-20-01 is extended ora similar fee reduction program is established which provides lower fees than those stipulated to herein,the lower fee program shall apply. 3.7.2 Developer's Right to Contest Increases in Development Impact Fees. Nothing in this Agreement shall prevent Developer from contesting, in any appropriate forum, the imposition or the amount of any new Processing Fees or any increase in the Development Impact Fees. Such right of protest shall not extend to the current amount of any Development Impact Fees or Processing Fees in effect as of the Entry Date of this Agreement, and the Developer hereby agrees to pay the same pursuant to the terms of this Agreement and the CITY's normal fee payment schedule. Notwithstanding any pending contest of such fees, CITY shall proceed with issuance of all required Project Approvals and shall not withhold or delay issuance of those Project Approvals based upon any pending protest or appeal with respect to such fee. 3.8 Amendment of Development Agreement. 3.8.1 Initiation of Amendment. Any Party may propose an amendment to this Agreement, and all Parties agree that it may be beneficial to enter into additional written agreements or modifications of this Agreement in connection with the Development of the separate components of the Development Plan. Notwithstanding any provision of this Agreement to the contrary, no amendment to the Development Plan or to any conditions of approval contained therein shall require an amendment of this Agreement. 3.8.2 Procedure. Except as set forth in Section 3.8.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance. 46- 3.8.3 . Consent. Except as expressly provided in this Agreement, any amendment to this Agreement shall require the written consent of all affected Parties. An amendment to this Agreement shall not be deemed to affect a portion of the Property if it does not alter,jeopardize, or impair the rights and does not increase the obligations of STROSCHER that owns said portion of the Property. No amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the affected Parties. 3.8.4 Operating Memoranda. The Parties acknowledge that refinements and further development of the Development Plan may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Development Plan and with respect to those items covered in general terms under this Agreement. If and when the Parties mutually find that changes, adjustments,or clarifications are minor in nature and are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by Iaw, effectuate such changes, adjustments, or clarifications without amendment to this Agreement through operating memoranda mutually approved by the Parties, which, after execution, shall be attached hereto as addenda and become a part hereof and which may be further changed and amended from time to time. The City Manager shall have the authority, on behalf of CITY, to approve and execpte such operating memoranda and STROSCHER shall have the authority, on behalf of STROSCHER, to approve and enter into such operating memoranda. Unless otherwise required by law or by the Development Plan Approval(s), no such changes,adjustments,or clarifications shall require prior notice or hearing. 3.9 Future Amendments to Development Plan. Subject to the provisions of Sections 3.5 and 3.6 of this Agreement. The following rules apply to future amendments to the Development Plan: 3.9.1 STROSCHER's Written Consent. Any Development Plan amendment to which STROSCHER does not agree in writing shall not apply to the Property while this Agreement is in effect. 3.9.2 Concurrent Development Agreement Amendment. Any Development Plan amendment requiring amendment of this Agreement shall be processed concurrently with an amendment to this Agreement. 3.9.3 Effect of Amendment. Except as .expressly set forth in the Development Plan amendment itself or this Agreement, a Development Plan amendment shall not alter, affect, impair, or otherwise impact the rights, duties, and obligations of the Parties set forth in this Agreement. 4. Miscellaneous Obligations of the Parties. 4.1 STROSCHER's Obligations. 4.1.1 Project Conformance with CITY Policies and Its General Plan. The Project shall conform to CITY's goal to manage growth through the use of, among other things, comprehensive planning and design,project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. The traffic and circulation elements of the Development Plan will conform to CITY's General Plan- -17- i 4.L2 Dedication of_Easement Interest for Parkins Lot Air Space' Parcel. As depicted in Exhibit 'B", prior to approval of a final map for the Property, STROSCHER shall dedicate to the CITY, an easement interest in the Parking Lot Air Space Parcel. If the CITY does not accept this dedication before this Agreement expires, then the CITY agrees that the Parking Lot Air Space Parcel will revert to STROSCHER. In no event shall dedication of the easement interest of the Parking Lot Air Space Parcel eliminate any of the Project's parking spaces, and future improvements in this air space shall not disrupt the Development or operation of the Project. 4.l.3 Water System Upgrade. Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No.48 require STROSCHER to construct a loop system to run from a POC in the 350C system at the intersection of El Homo and the I-5 Freeway ("El Homo Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). Compliance of these conditions may be resolved as follows: a. During the future reconstruction of the Ortega Bridge over the I-5, CITY has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Homo Section provide sufficient fire flow as determined by the fire marshall, STROSCHER shall not be required to construct the Ortega Section. Prior to the time the Ortega Section is to be constructed, STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction and/or the Parties may enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the Ortega Section construction. - City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. b. STROSCHER shall construct the El Homo Section to provide sufficient fire flow to the Property as determined by the fire marshall. STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction should new development be proposed, which would benefit from -the El Homo Section construction. The Parties may further enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the El Homo Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 4.2 CITY's Obligations. 4.2.1 Undermunding of Power Lines. Subject to exercising its legislative discretion, CITY shall consider the creation of a utility district ("Utility District") to fund the Undergrounding of Power Lines. Regardless of when the Utility District is formed, the Utility District shall be responsible for funding, designing, and constructing the Undergrounding of Power Lines. STROSCHER shall support creation of a Utility District, and agrees to have thPro shall ll subject to assessment, if such a district is formed by CITY. In such a situation, be deemed to have satisfied Project Condition of Approval No. 118. If formed, the Utility District shall consist of additional benefitted properties, in addition to the Property. If CITY has not created the Utility District, and not imposed theassessmenton relevant properties in the area, including the Property, before issuance of the first (1 ) certificate of occupancy for the Project, CITY agrees that STROSCHER shall have no obligation to Underground the Power Lines, and STROSCHER shall not be required to comply with Project Condition of Approval No. 118. If CITY forms and funds the Utility District after the issuance of the first (1") certificate of occupancy, STROSCHER shall support creation of the Utility.District and agrees to have the Property subject to assessment, if such -18- district is formed by the CITY. If CITY or the Utility District elects to Underground the Power Lines, STROSCHER agrees to provide CITY or Utility District'with a temporary construction easement, with the terms of such easement to be mutually agreed upon by the Parties, to allow the undergrounding of the lines to occur. 4.2.2 Reconstruction of Project Entr ay. Subject to exercising.its legislative discretion, CITY agrees to assist STROSCHER in its attempts to have Caltrans reconstruct the Project entryway, due to the future relocation and expansion of Ortega Highway. CITY's assistance to STROSCHER shall not include any financial assistance unless CITY, in its sole discretion, determines to provide financial assistance. 4.2.3 Reversion of Portions of the Ortega Highway Riehts-of-Way. Subject to exercising of its legislative discretion, CITY agrees to undertake all reasonable good faith efforts to reconvey to STROSCHER the Excess Ortega Rights-of-Way. 5. Indemnification. Except to the extent of the gross negligence or willful misconduct of CITY and its agents, officers, contractors, attorneys, and employees (the "Indemnified Parties"), STROSCHER, and with respect to the portion of the Property transferred to them, the Development Transferee agree: to indemnify, defend, and hold harmless the Indemnified Parties from and against each and every claim, action,proceeding,cost, fee, legal cost,damage, award or liability of any nature arising from alleged damages caused to third parties and alleging that CITY is liable therefor as a direct or indirect result of CITY's approval of or performance under this Agreement. The duties of STROSCHER under this Section 5 are solely subject to and conditioned upon the Indemnified Parties' written request to STROSCHER to defend and/or indemnify CITY. Without in any way limiting the provisions of this Section 5, the Parties hereto agree that this Section'5 shall be interpreted in accordance with the provisions of California Civil Code Section 2778 in effect as of the-Effective Date. 6. Relationshin of parties. The contractual relationship between CITY and STROSCHER is such that STROSCHER is an independent contractor and not an agent or employee of CITY. CITY and STROSCHER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with the Property shall be construed as making CITY and STROSCHER joint venturers or partners. 7. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties in the manner provided for in Government Code Section 65868. No amendment or modification of this Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each Party hereto. This provision shall not limit any Party's remedies as provided by Section 9. -19- 8. Periodic Review of Comnllance with Agreement. 8.1 Periodic Review. CITY and STROSCHER shall review this Agreement at least once every 12-month period from the date this Agreement is executed, in September or such other month as the CITY may notify STROSCHER. CITY shall notify STROSCHER in writing of the date for review at least thirty(30) days prior thereto. Such periodic review shall be conducted in accordance with Government Code Section 65865.1. 8.2 Good Faith Compliance. During each periodic review, STROSCHER shall be required to demonstrate good faith compliance with the terms of this Agreement. STROSCHER agrees to furnish such reasonable evidence of good faith compliance as CITY, in the exercise of its reasonable discretion, may require. If requested by STROSCHER, CITY agrees to provide to STROSCHER a certificate that STROSCHER or its Development Transferee is in compliance with the terms of this Agreement,provided STROSCHER reimburses CITY for all actual and direct costs and fees incurred by CITY with respect thereto: If CITY fails to undertake the annual review process specified in Section 8.1 of this Agreement, STROSCHER shall be deemed to be in full compliance with the Agreement, and the Agreement shall be deemed to be in full force and effect. 8.3 Failure to Conduct Annual Review. The failure of CITY to conduct the annual review shall not be a Default by STROSCHER, nor shall any such failure alter, suspend, or terminate any of the Parties' other rights and obligations hereunder. Aside from the provisions of Section 8.2 of this Agreement, STROSCHER shall not be entitled to any remedy for a failure.by CITY to conduct this annual review. 8.4 Initiation of Review by City Council. In addition to the annual review, the City Council may at any time initiate a review of this Agreement by giving written notice to STROSCHER. Within thirty(30)days following receipt of such notice, STROSCHER shall submit evidence to the City Council of STROSCHER's good faith compliance with this Agreement and such review and determination shall proceed in the same manner as is provided in Sections 8.1 and 8.2 and the Development Agreement Legislation for the annual review. The CityCouncil shall initiate its review pursuant to this.Section 8.4 only if it has probable cause to believe CITY's general health,safety, or welfare is at risk as-a result of specific acts or failures to act by STROSCHER. 8.5 Administration of Agreement. Any final decision by the CITY's staff concerning the interpretation and administration of this Agreement and Development of the Property in accordance herewith may be appealed by STROSCHER to the City Council,provided that any such appeal shall be filed with the City Clerk within ten (10) days after STROSCHER receives written notice that the staff decision is final. The City Council shall render, at a noticed public hearing, its decision to affirm,reverse,or modify the staff decision within thirty(30)days after the appeal is so filed. 8.6 Availability of Documents. If requested by STROSCHER, CITY agrees to provide to STROSCHER copies of any documents, reports, or other items reviewed, accumulated, or prepared by or for CITY in connection with any periodic compliance review by CITY, provided STROSCHER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. CITY shall respond to STROSCHER's request on or before ten (10) business days have elapsed from CITY's receipt of such request. -20- 9. Events of Default: Remedies and Termination. 9.1 Defaults by STROSCHER. If CITY determines on the basis of a preponderance of the evidence that STROSCHER has not complied in good faith with the terms and conditions of this Agreement, CITY may,. by written notice to STROSCHER, specify the manner in which STROSCHER has failed to so comply and state the steps STROSCHER must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from CITY specifying the manner in which STROSCHER has failed to so comply, STROSCHER does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then STROSCHER shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, CITY may terminate this Agreement pursuant to Government Code Section 65865.1 with respect to the Property. In material event of Default by STROSCHER, except as provided in Section 9.3, CITY's sole remedy for any breach of this Section 9.1 shall be CITY's right to terminate this Agreement. 9.2 Defaults by CITY. If STROSCHER determines on the basis of a preponderance of the evidence that CITY has not complied in good faith with the terms and conditions of this Agreement, STROSCHER may, by written notice to CITY, specify the manner in which CITY has failed to so comply and state the steps CITY must take to bring itself into compliance. If, within sixty(60)days after the effective date of notice from STROSCHER specifying the manner in which CITY has failed to so comply, CITY does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then CITY shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, STROSCHER's sole remedy is to terminate this Agreement with respect to the Property or pursue specific performance as set forth in Section 9.3. 9.3 Specific Performance Remedy. Due to the size, nature, and scope of the Development Plan, it will not be practical or-possible to restore the Property to its pre-development condition once implementation of this Agreement has begun. After such implementation, STROSCHER may be foreclosed from other choices they may have had to utilize the Property and provide for other benefits. STROSCHER has invested significant time and resources and performed extensive planning and processing of the Development Plan and Development Plan Approval(s) in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Development Plan and Development Plan Approval(s) in reliance upon the terms of this Agreement,and it is not possible to determine the sum of money which Cch wouulldd adequately compensate STROSCHER for such efforts. For the above reasons, STROSCHER agree that damages would not be an adequate remedy if CITY fails to carry out its obligations under this Agreement and that STROSCHER shall have the right to seek and obtain injunctive relief and specific performance as f STROSCHER failsedy for any toDefault out its obligations unby CITY hereunder. cle and STROSCHER further acknowledge that, this Agreement, CITY shall have the right to refuse to issue any permits or other approvals which STROSCHER otherwise would have been entieled rteo�dursuant to this erefore,CITY' sn remedy of specific that are related to and depend upon STROSCHER!s performan performance pursuant to Section 9.1, at else c ch of e tioemedy of n 9.1 exists shallrminating be sufficient in most portion of the Property as to which a material circumstances if STROSCHER fails to carry out its obligations hereunder. Notwithstanding the foregoing, if CITY issues a permit or other approval pursuant to this Agreement in reliance (explicitly stated in writing) upon a specified condition being satisfied in the future, and if -21- STROSCHER then fails to satisfy such condition,CITY shall be entitled to specific performance for the sole purpose of causing STROSCHER to satisfy such condition. CITY's right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause STROSCHER to otherwise proceed with the Development of the Property in any manner, 9.4 Institution of Legal Action. Except to the extent a non-Defaulting Party's rights or remedies are limited by the express provisions set forth herein,STROSCHER or CITY may institute legal action to cure, correct, or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages for any Default, or to obtain any other remedies consistent with the purpose of this Agreement. Such legal action shall be heard by a reference from the Orange County Superior Court. 9.5 Estonael Certificates. Any Party or the holder or prospective holder of a mortgage or deed of trust secured by an.interest in any portion of the Property (a "holder") may at any time during the Term of this Agreement deliver written notice to the other Party requesting an estoppel certificate(the "Estoppel Certificate")stating; (i) The Agreement is in full force and effect and is a binding obligation of the Parties; (ii) This Agreement has not been amended or modified either orally or in writing or,if so amended,identifying the amendments; (iii) No Default exists hereunder, nor would any Default exist with the passage of time or the giving of notice, or both, or, if a Default or failure does exist,'the nature thereof and the actions required to be taken by the non-performing Party to cure the Default or prevent the same from occurring;and (iv) Any other matter affecting-the status of the rights and obligations of the Parties hereunder as to which the requesting Party or the holder may inquire. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party or holder within thirty (30) days after receipt of the request. The City Manager or any person designated by the City Manager may sign Estoppel Certificates on behalf of CITY. An Estoppel Certificate may be relied on by the holder and by Development Transferees. In the event that one Party requests an Estoppel Certificate from another Party of parties, the requesting Party shall reimburse the other Party or Parties for all actual and direct costs and fees incurred by such Party or Parties with respect thereto. 10. Waivers and Deletes. 10.1 No.Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement d failure by a Party to exercise its rights upon a Default by another Party hereto, shall not constitute a waiver of such Party's right to demand strict by another Party, an compliance by such other Party or Parties in the future for the same, similar, or any different Default. -22- 10.2 Third Parties. The Parties'respective performance obligations hereunder shall not be delayed or excused because of any act or failure to act by a third person, except as provided in Section 10.3. 10.3 Force Majeure. Notwithstanding any other provision set forth in this Agreement to the contrary, STROSCHER shall not be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond STROSCHER's control, STROSCHER's inability to obtain required permits or approvals from governmental agencies with jurisdiction over the applicable portions of the Property and the Project, government regulations (including, without limitation, local, state, and federal environmental and natural resource regulations), voter initiative or referenda, moratoria (including, without limitation, any "development moratorium" as that term is applied in Government Code Section 66452.6), litigation, or any other causes that are without the fault and beyond the reasonable control of STROSCHEP, 10.4 Extensions. In addition to qualifying for a possible extension of the Term of this Agreement, as provided in Section 2.3, the Term of this Agreement and the times for performance by STROSCHER or CITY of any of its obligations hereunder or pursuant to the Development Plan Approval(s) shall be extended by the period of time that any of the events described in Section 10.3 exist and/or prevent performance of such obligations. In addition, the Term shall be extended for delays arising from the following events for a time equal to the duration of each delay which occurs during the Term: (i) The period of time after the Effective Date during which litigation challenging the validity or enforceability of thisAgreement or related to the Development Plan Approval(s) or having the actual effect of delaying implementation of the Development Plan is pending, including litigation pending on the Effective Date. This period shall include any time during which.appeals may be filed or are pending; and (ii) Any delay resulting from the, the acts or control of STROSCHERther governmental agency or public utility and beyond 10.5 Notice of Delay. STROSCHER shall give notice to CITYce of any of thany events described ay which STROSCHER believes to haveoccurred six mo the oras a esult longer,ger,this notice the shall be given within a reasonable in Section 10.3. For delaysIn no event, time after STROSCHER becomes aware that th.delaBas lastter ed six thirty days after the end of the however, shall notice of a delay of any length given delay or thirty days before the end of the Term,whichever comes first- Nod irst. 11. Notires. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail,postage prepaid,return receipt requested. Notices to CYTY shall be addressed as follows: City of San Juan Capistrano 32400 Paseo Adelanto -23- San Juan Capistrano, CA 92675 Attention: City Manager with a copy to': Woodruff, Spradlin&Smart 555 Anton Boulevard, Suite 1200 Costa Mesa,CA 92626 Attention: Omar Sandoval,City Attorney Notices to STROSCHER shall be addressed as follows: Gretchen Stroscher Thomson Stroscher G3,LLC P.O.Box 129 San Juan Capistrano, CA 92693 Tom Merrell Civic Solutions,Inc. 27362 Calle Arroyo San Juan Capistrano,CA 92675 with a copy to: Allen Matkins Leek Gamble Mallory&Natsis LLP 1900 Main Street, 5t'Floor Irvine,CA 92614 Attention: John Condas,Esq. Any notice given as required herein shall be deemed given only if in writing and upon delivery personally or by independent courier service. A Parry may change its address for notices by giving notice in writing to the other Parties as required herein and thereafter notices shall be addressed and transmitted to the new address. CITY shall additionally provide written notice of any Default by. STROSCHER(including, as applicable, any Development Transferee) and any act or omission by STROSCHER (or such Development Transferee) that would constitute a Default with the passage of time or giving of notice or both, to the holder of any mortgage or deed of trust secured by all or any interest in the Property which(i)delivers a written notice to CITY requesting such notices and (ii)provides CITY with such holder's addresses) for notice purposes. 12. Attorneys' Fees. If legal action is brought by one Party against another Party for breach of this Agreement, including actions derivative from the performance of this Agreement, or to compel performance under this Agreement, the prevailing Party shall be entitled to an award of its costs, including reasonable attorneys' fees, and shall alsso bean item toed to recover its d/or recoverable costsbution to the costs of the referee referred to in Section 9.4 above as -24- 13. Recording. This Agreement and any amendment or cancellation hereto shall be recorded against the Property at no cost to CITY, in the Official Records of Orange County by the City Clerk within the period required by Section 65868.5 of the Government Code. Notwithstanding the foregoing, in no event shall any failure or delay in recording this Agreement and any amendment to this Agreement . limit or restrict the validity or enforceability of this Agreement. 14. Effect of Agreement on Title. 14.1 Effect on Title. The Parties agree that this Agreement shall not continue as an encumbrance against the Property once the Agreement has terminated. 14.2 Encumbrances and Lenders' Rights. The Parties hereby agree that this Agreement shall not prevent or limit STROSCHER (including without limitation any Development Transferee hereunder), at any time or from time to time in any manner, at its or their sole discretion, from encumbering the Property, the improvements-thereon, or any portion thereof with any mortgage, deed of trust,sale and leaseback arrangement,or other security device. CITY acknowledges that the holder of any such security interest in all or any portion of the Property may require certain clarifications, interpretations, or modifications to this Agreement or the Development Plan and CITY agrees, upon request, from time to time, to meet with the applicable Party and/or representatives of any such holder to negotiate in good faith any such request for clarification, interpretation, or modification. CITY further.agrees that it will not unreasonably withhold its consent to any such requested clarification or interpretation to the extent such clarification or interpretation is consistent with the intent and purpose of this Agreement. A Default under this Agreement shall not defeat,render invalid, diminish, or impair the lien of any such holder. The mortgagee of a mortgage or beneficiary of a deed of trust or holder of any other security interest in the Property or any portion thereof and its or their successors and assigns, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a.person or entity which obtains title by deed-in-lieu of foreclosure (collectively, a "holder") shall be entitled to receive a copy of any notice of Default-(as defined in Section 9.1 hereof) delivered to STROSCHER as to whose portion of the Property such a Default exists and, as a pre-condition to the institution of legal proceedings or termination proceedings, CITY shall deliver to all such holders written notification of any Default by STROSCHER in the performance of its obligations under this Agreement which is not cured within sixty (60) days (the "Second Default Notice") and shall allow the holder(s) an opportunity to cure such Defaults as set forth herein. The Second Notice of Default shall specify in detail the alleged Default and the suggested means to cure it. After receipt of the Second Default Notice, each such holder shall have the right, at its sole option, within ninety (90) days to cure such Default or, if such Default cannot reasonably be cured within- that ninety (90) day period, to commence to cure such Default, in which case no Default shall exist and CITY shall take no further action. Notwithstanding the foregoing, if such Default shall be a Default which can only be remedied by such holder obtaining possession of the applicable portion of the Property, and such holder seeks to obtain possession, such holder shall have until ninety (90) days after the date obtaining such possession to cure or, if such Default cannot reasonably be cured within sueh period, then to commence to cure such Default. Further, a holder shall not be required to cure any non-curable Default of STROSCHER, and any such Default shall be deemed cured if any lender obtains possession. -25- 15. Severability of Terms. If any term, provision, covenant, or condition of this Agreement shall be determined invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a material part of consideration for the affected Party or Parties. The covenants contained herein are mutual covenants. The covenants contained herein constitute conditions to the concurrent or subsequent performance by each Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 16. Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that subsequent amendments to the Development Agreement Legislation would affect the provisions of this Agreement; such amendments shall not be applicable to this Agreement unless necessary for this Agreement-to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Section 65868 as in effect on the Effective Date. 17. Rules of Construction and Miscellaneous Terms. 17.1 Interpretation and Governing mow. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California, with regard to conflict of laws rules. The Parties understand and agree that this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, CITY's police powers. In this regard, the Parties understand and agree that this Agreement is a current exercise of CITY's police powers and except as expressly provided for herein this Agreement shall not be deemed to prevent the future exercise by CITY of its lawful governmental powers over the Property. 17.2 Section Headings. All section headings and subheadings are inserted for convenience only and shall not-affect any construction or interpretation of this Agreement. 17.3 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall"is mandatory, "may" is permissive. 17.4 Time of Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 17.5 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 17.6 Entire Agreement. This Agreement constitutes the entire agreement between and among the Parties with respect to the subject matter hereof, and this Agreement supersedes all previous negotiations, discussions, and agreements between and among the Parties with respect thereto. -26- 18. Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the exclusive. benefit of CITY and STROSCHER and their respective Development Transferees and shall not be construed to benefit or be enforceable by any third party, excepting only to the extent of the limited rights provided to the holders of security interests in all or a portion of the Property. 19. Cooperation in Event of Legal Challenge. CITY agrees to cooperate with STROSCHER as may be needed in order to keep this Agreement in full force and effect during the entire Term. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity or enforceability of any provision of this Agreement or any of the Development Plan Approval(s) (including without limitation any Future Development Approvals after the same have been issued by CITY), the Parties hereby agree to cooperate in defending such action and, in this regard, CITY shall not allow its default to be taken in such legal action or otherwise compromise the legal action without STROSCHER's prior written consent. In the event of any such litigation, to the maximum extent permitted by law this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. Notwithstanding the foregoing, STROSCHER shall be responsible for all costs, including but not limited'to attorney's fees, costs, expert witness fees, and the like, incurred with respect to any such litigation. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. Dated: `� ,2011 "CITY" CITY OF SAN JUAN CAPISTRANO,a municipal corporation By: Name: Title: Mayor ATTE City APTROVED AS TO 0 rf A 101A City Attorn y Dated: - ,2011 "STROSCHER" -27- PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California } County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814&Civil Code 118 1) On July 28, 2011 , before me, Maria Morris, City Clerk, personally appeared Sam Allevato,Mayor, who proved to me on the basis of satisfactory evidence to the be 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, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) iWl handand official seal. M 's,City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Mayor Development Agreement (Plaza Banderas Title Hotel and Mixed Use Project) City of San Juan Capistrano and Stroscher G3, LLC Signer is Representing Date of Document:July 5,2011 City of San Juan Capistrano Number of Pages: 194 STROSCHER G3, LLC, a California limited liability company By: Stroscher Capistrano,LLC,a Delaware limited liability company Its: Sole MVIber BY: Gretchen Stroscher Thomson,as Trustee of the Thomson Family Trust u/d/t dated October 8, 1990 Its: Authorized Person -28- STATE OF CALIFORNIA ) )ss; COUNTY OF ORANG ) On.- before me, v EE 1 " a Notary Public,personally appeared RF rrlk FAV q"r/?nSC'N�Q TM 04 5Z , / r 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 declare under PENALTY OF PERJURY under the laws of the State of California that d2 the foregoing paragraph is true and correct. Witness my hand and official seal. AVNEEI BEDI Be fib o ublic 444 my Coni Em.CE e,X1�'" [SEAL] STATE OF CALIFORNIA ) )ss COUNTY OF ORANGE ) On ,before me, a Notary Public,personally appeared personally known to me (or 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 declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] EXHIBIT"N' LEGAL DESCRIPTION OF THE STROSCHER PROPERTY PARCELDESCRIPTTONS PARCEL 1: THATPORTIONOFLOT12OFTRACTNO.103.INTBBCOUNIYOFORAMMIT OFCALMR- BBOD1 MATAPOWTOMMMWBMUYLMCPSAm1AT12.NORTHfI707"WEST154. NIA,AS PER MAP RECORDED IN BOOK I I.PAOE&29 TO 33INCLUSIVE OP MISCBL ANBOU9 MAPS• 00 FEST FROM THE SOUr RwBgTOORN SRopZA1D LOT 12;THBNCE SOUTH 84'277 OT BAST IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.DESCRIBED AS FOLLOWS: 129,00 FEST PARALLEL WITH THE NORTHERLY IBM OF SAID IAT 12.THENCE SOUTH V 187 07 BEOINNINO ATMM SOUTHWBSTCORNBR OT&AW LOT 12.THENCENORTH 11 187 OT WEST 154AO .EAST 153.00 PERT,MOREOR LESS„TO THE NORTmERLY LINE OF THAT CERTAIN 80.00 FOOT FEET ALONG THE WESTERLY I=OF&AID IAT;THE CE SOUTH W 277 0-BAST 129.00 FEET STRIP OF LAND CONVEYED TOTHE STATE OF CALIFORNIA BY DEED RECORDED JUNE 28. PARALLEL WITH THE NORTHIBU,Y LINE OF LAW LAT THENCE SOUTH B'187 0r EAST 155.00 PM. 1940IN BOOK 1049.PAGE 349.OFFICIAL AECORDS.B1!ITO A CURVE COINCAVENORT1ipRI Y MORS OR TSS&,TO THE NORTHERLY LINE OF IBM CERlAIN WA FOOT STRIP OF LAND CON VIM TO TIN STATE OTCALIFOIWIABY CEO RECORDED]UNE 28,IWC IN BOOR 1049.PAGE 349 AND HAVING ARADIUS OF 900.00 FEET.THENCE EASTERLY IIA0 PTIST ALONG SAID CURVE CF O"=ALRECOROS,BRING ACURVB CONCAVE NGRTHERLY AND HAVING ARADWS OF 960,00 TO TUB NORTHWESTER EV LINE OF THE LAND DESCRIBED AS PARCEL 1 IN TIM DEED 70 TIM IMP THENCE WESTERLY ALONG SAID NORTHERLY LINE AND ALONG THE SOUTHERLY LINE OF STATE OF CALIFORNIA RECORDED NOVEMBER 21.1"7IN BOOK 4110.PAGE 520,OFFICIAL SAID LOT 12 TO TIB PONT OF BEGINNING.APN:12LM14 RECORDS;THENCE NOR7IlEASTERLY ALONG SAID NORTHVIE&TERLY UNE TO THE SOUTH- WESTERLY LINE OF THE LAND DESCRIBED AS PARCBI.2 OF SAID DEED RECORDED IN BOOK PARCEL 2: 4110.PAGE 520,OFPTCIALREOORIA-TmmAIONO SAID S011T'1TWBSTERLYL/NE•NORTH ST THAT PORTION OF TAT 12 IN TRACT KG.103,IN THE COUNTY OF ORANGE.STATE OF CALIFORNIA, W 05•WEST 17439 FEET TO THE NORTH LONE OF SAID LOT 12:THENCE ALONG SAID NORTH ASPERMAPRECOR 13D IN BOOK IL PAOSS297033 INCLUSIVE OF MLSCELLAMUS MAPS.IN LMHORTRW2770TWBST43SMFELTTOAPCWTSOMW2770TBAST120.0OPERT TTIBOFFICE OFTHE COUNTY RECORDEROF SAM COUNTY,DESCRIBED ASFOLLOW&: FROM THRNORTIWBSTCORNERCFSAID LOT 1%THENCE ATRIOHTANGLSBSOUTH V32T BEGINNING AT APOI TONTHE WESTERLY I=OF SAID TAT M NORTH V I&?OT WEST.134.00 FEETFROMTHESOUTHW84TCGRT@ROF&AIDLOT1%THENCESOUIH5C277OrEAST129AD 53'WBST60AOFEEI;7MWMATRICITANO184NORRRWInOTWWrIO521FBSTTOTIR"s FEBTRARALLML WITH TH111NORTHERLY LOM OF SAM LOT t2,THEKC8 SOUTH V It?07'RAST WESTLWEOP&AMMYrM-nMNCESOUT rl&?0TEA3T86AIFEETMnEPOWTOF 135A0PEBT.MORN ORLR&B,TOTHENORTHElkLYLINEOTTHA7CERTADN80.00FOOTSTRIPOP BBOINNINO. [AND ODNVBM70THE STATE OFCALFORNTABYDEW RECORDED ADM 21,1940INBOOK E7(CBPTTHATPORHONTHERBOFDBSCRIBFAASMADW&: 1049,PAGE 349 OF OEPtQAL RECORD&.BEING AC URVE CONCAVE NORTHERLY AND HAVING A BEOINNINO ATA POINT ON THE WESTERLY LD>B OF SAID IAN'12,NORTH r 117 Or WEST 154. RAMWOF960.0OPEET,THENCERASTUMIIAOPEBTATAHOSAIDCURVRTOTHENORTNWM- OOPMTPROMTIMSOU37MWCORMOFLUDUffl2;TJMCESOUT1184'27T07'L%ST ERLYIENB OF THE LAND DESCRIBED AS PARCEL 1,W THBDEBDTO THR=SOP CALIFORNIA 129.00I=PARALLEL WITHTHE NORTHERLY LINE OF SAID IAT 12;THENCE SOUTH S 187 RECORDED KOVBMBER21,1957IN BOOK 4110.PAGE 510 OF OFFICIAL RECORDS;THENCE NORTH Or FAST 155.00 FEET[MORE OR LESS TO THE NORTHRRLYLINE OF THAT CBRPAIN WW LOOT 73.02713"BASTALONG SAID NORTHWESTERLY LINE TO ALINE PARALLEL WITH AND EASTERLY VW OF LgWCONVBM TT1 MM STKTR OF CALAMM BY DEED RBCORDED SUNS 28. 70.00 FEET.MEASURED AT RIGHT ANGLES FROM THE LAST DESCRIBED LINE HAVING A BEARING OF S0IITTI B'187 or BAST,THENCE ALONG SAID PARALLEL I=NORTH r 187 OT WEST TO A 1940 IN BOOK 1049,PAGE 349,OFFICIAL RECORDS.BEING ACURVE CONCAVE NORTHERLY UNE PARALLEL.WITH AND NORTHERLY 70.00 PW.MEASURED AT RIGHT ANGLES FROM THE AND HAVINO A RADIUS OF%0.00 FE RI;THENCE EASTERLY 11 AO FEET ALONG SAID CURVE COURSE DESCRIBED ABOVE AS BEARING SOUTH 84'27?07*EAST 129.00 FEET:THENCE ORTH 84' TO TIM NOR2HWESTERLYLDIB OF TIM LAND DESCRIBED AS PARCEL 1,W TUB DED TO THE 277 OT WEST ALONG SAID PARALLEL LEVE TO THE WESTERLY LINE OISAID LOT 12:THENCE STATE OF CAUPORNIA,RECORDED NOVEMBER 21,1937 IN BOOK.41106 PAGE 520,OFFICIAL SOUTH S 18707"EAST 72.10I=TO THE POINT OF BEGINNING. RECORDS;THENCE NORTH 73.02713"EAST ALONG SAID 1VQRTfIWEITERLY LINE TO ALINE APN:174.170.12 PARALLEL WITTI AND EASTERLY 70.00 FEET,MEASURED ATRIGHT ANGLES FROM THE LAST DESCRIBED LIQ HAVING A BEARING OF SOUTH V 117 08'BAST THENCE ALONG SAID PAR- PARCIE.3: Al1--SNB NORTH 5187 OP L45T 129AC FIEF THENCE NORTH 14'27707'WEST AL0NO THAT PORTION OF LOT 12 OF TRACT NO.IM IN THE CITY OF SAN IUAN CAPISIRANO.AS SHOWN SAID PARALLEL LINE TO THE WESTERLY LINE OF SAID LOT 12;THENCE SOUTH S 187 07' ON AMAP THEREOF RECORDED IN BOOK 11.PAM 29 TO 33 ENQ.USIVB,MTSCRLLANBOUS MAPS. EAST 72.10 FEET TO THE POINT OF BEGINNING. RSCORDB OP SAD ORANGBOOUNT14DESCRMED AS FOUAWS: APN:124-170.15 and 124-170.16 000�, u `1 r" •=.;-a { .., is 1� j �. 11+t + r`lt�t't�'t �i� jl, .ti,`t`/"t'. ' tit - �_- _._ --'`�.• "�-, J..,._�� T ..� 3 [�, _r..c�••a-... �� •+•Y,--'s�i� �� t r;`: • O � �• inti ro>� •{ �`t>qs�rbc 1 ur .- *-•-�_ _ • :..1a e t--. _ •_)i pit.aat t �� '� �.t � ! >{'' i : , t i ':zFi. tyJ.`�',.a�� r' y:...,' y ��'r'1•, rq ° � ;.\T'i'�,'`. � �'i:.t' PARCEL 2 1. ,FARCE 'PA CrEL �• 1Y AN'�tT t.r � 1. , 77�►"� ! �I'V:.r'�.._ ,„��1�y ;. - } ,'. .toau� II ,�1 Qt.a,ob,~ -:�_~�� r• !_C ••fr��d�a:P,•o �,�d"-" it• <./:r� �\ Hort►�+r�r�:i �»�`�'°°r'ot.,,,��r... •� •..1�� . - ��•tt ° a otiu i'4io. _ OItTEGAHWY ' T'u os '� r. t n s _ < EXHIBIT"A" EXHIBIT "B" DEPICTION AND LEGAL DESCRIPTION OF PARKING LOT AIR SPACE PARCEL rk ° ) � u r n Parking Lot Air Space Parcel LEGALDESCRIPTION THAT PORTION OF LOT 12 OF TRACING.103,IN THE CITY OF SAN JUAN CAPISTRANO,COUNTY OF ORANGE,STATE OF CALIFOR- NIA,AS SHOWN ON A MAP RECORDED IN BOOK 11,PAGES 29 TO 33 INCLUSIVE,OF MISCELLANEOUS MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY DESCRIBED AS FOLLOWS-BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 12;THENCE SOUTH 00°29'25"WEST ALONG THE WESTERLY LINE OF SAID LOT 12 A DISTANCE OF 76.70 FEET TO THE TRUE POINT OF BEGINNING;THENCE SOUTH 00°2925"WEST ALONG THE WESTERLY LINE OF SAID LOT 12 A DISTANCE OF 48.11 FEET;THENCE SOUTH 69°4538"WEST ALONG A LINE PARALLEL WITH AND DISTANT NORTHERLY 40.00 FEET,MEASURED AT RIGHT ANGLES,FROM THE CENTER LINE OF ORTEGAHIGHWAY AS DESCRIBED IN EASEMENT DEED TO THE STATE OF CALIFOR- NIA RECORDED IN BOOK 1049 AT PAGE 349 OF OFFICIAL RECORDS,ADISTANCE OF 155.16 FEET,THENCE NORTH 20°37'55"WEST, A DISTANCE OF 63.31 FEET TO A POINT OF NON TANGENCY WITH A CURVE,CONCAVE NORTHERLY,HAVING ARADIUS OF 442.00 FEET;THENCE EASTERLY ALONG SAID CURVE,THROUGH A CENTRAL ANGLE OF 4°48'57",A DISTANCE OF 37.15 FEET,THENCE NORTH 62°5827"EAST,ADISTANCE OF 53.%FERP;THENCE NORTH 65"40'50%TST,A DISTANCE OF 69.32 FEET;THENCE NORTH 84°26157"WEST,A DISTANCE OF 11.82 FEET;THENCE NORTH 11°15'29"EAST,A DISTANCE OF 65.32 FEET,SAID POINT LYING ON THE NORTHERLY LINE OF SAID LOT 12;THENCE SOUTH 58°27'57"EAST,A DISTANCE OF 174.39 FEET TO THE TRUE POINT OF BEGINNING. Exhibit"B" EX 03IT"C" DEPICTION AND LEGAL DESCRIPTIONS OF EXCESS ORTEGA RIGHTS-OF-WAY 1967 OR 8171-88 m R!h0 am se k - _ -_ SPRING Sr m e.wW '�r•.nG y�1y�Y aN g :,ati GOY �,.b ----•— _ Zip le 1 $.7T TM7�y rrWMIY"am UOOO' t Eltib map / ,1 PARCEL 2 PARCEL 3 k 0.56 AC. 2.09 AC. ;,' as somedet GOY 70 r 1 PARCEL 1 ' 0.45 AC. Mtf.lY s M� s •'.-"„mac' .. p1 rF;A S f"YCW t A .eati „sr'"` f f.. +,yf^,• ,:+ �•,�, .• tm w ML � �svx• �� tIq CfItUN! LEGAL DESCRIPTION THAT PORTION OF LOT 12 OF TRACT NO.103,IN THE CITY OF SAN JUAN CAPISTRANO,COUNTY OF ORANGE,STATE OF CALIFOR- NIA,AS SHOWN ON A MAP RECORDED IN BOOK 11,PAGES 29 TO 33 INCLUSIVE,OF MISCELLANEOUS MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 12;THENCE SOUTH 00°29'25"WEST ALONG THE WESTERLY LINE OF SAID LOT 12 A DISTANCE OF 76.70 FEET TO THE TRUE POINT OF BEGINNING*THENCE SOUTH 00°29'25"WEST ALONG THE LEL WITH AWESTERLND DISTANT NORNE THERLY AID 40 00 F12 ADISTANCE OF 48.11 EET,MEASURED AT RIGHT ANGLES SFOROM THE 5'38"WEST CENTER LINE OF ORRTEGA HING A LIKE GHWAY AS DESCRIBED IN EASEMENT DEED TO TfiE STATE OF CALIFORNIA RECORDED IN BOOK 1049 AT PAGE 349 OF OFFICIAL RECORDS,A DISTANCE OF 177.30 FEET TO A POINT OF TANGENCY WITH A CURVE,CONCAVE NORTHERLY,HAVING A RADIUS OF 960.00 FEET; THENCE WESTEny TE1112TCSANGLE OF 1 ' A DISTANCE OF 357-95 NORTH 73001'58"EASA DISTANCE OF119FEfiT O A PONT O ON TANGENCY WITH A CURVE,CONCAVE FEET; HAVING A RADIUS OF 729.69 FEET,THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11018'25",A DIS- TANCE OF 144.00 FEET,THENCE NORTH 69°45'38"EAST,A DISTANCE OF 282.85 FEET TO THE TRUE POINT OF BEGINNING. EXMIT"C" EXHIBIT"D" NARRATIVE DESCRIPTION OF THE PROJECT The Project consists of a three-story,76,363 square feet, 124-room hotel,on approximately 2 acres; a 10, 169 square foot.two story office/retail building consisting of 6,467 square feet of retail on the first floor and 3,702 square feet of private office and balcony sea on the second floor and 116,095 square foot restau- rant.The Project provides190 parldng spaces to serve all uses on the 3.18 acre site. Access to the Project will be from one right turn in and out only driveway on Ortega Highway,one full access driveway on EI Camino Real and one full access driveway at the easterly terminus of Spring Street. Upon the ultimate realignment of Ortega Highway as part of the freeway interchange reconstruction project by CalTrans,the access onto Ortega Highway will be extended as shown on the plans approved by the City of San Juan Capistrano. The Project site and landscape plan is shown in the exhibit below. � r MM E � 0. � EXHIBIT"D" Exhibit"E" CITY COUNCIL RESOLUTION NO. 10-10-05-05 AND ORDINANCE NO. 974 EXHIBIT"E" The work undertaken by the City consists of the components detailed below. See the following pages of this attachment for a graphic representation of each element. The depiction of the components is shown on Caltrans layout sheets as denoted by [brackets]. 1. W1: A new 12-inch PVC water line in the new alignment of Ortega Hwy. [U1] 2. W2: A new 12-inch PVC water line in the alignment of Ortega Hwy. from the Del Obispo Street to the beginning of the 1-5 Bridge. [U1] 3. W3: New 12-inch welded steel water line, including welded steel casings pasting through bridge abutments, within a cell in the 1-5 Bridge under design by Caltrans. The water line will have flex ball connections at each end, in a vault structure to allow access and maintenance. [U1, U2] 4. W4: A new 12-inch stub out, which will serve future hotel complex. [U1] 5. W5: A new 12-inch line on the east site of the north bound off ramp to replace the line abandoned due to off ramp relocation. [U2, U3] 6. W6: A 12-inch connection line, at the intersection of Ortega Hwy. and Ave. Los Cerritos joining components W3 & W5 to the remaining portion of the 14-inch line to remain in Ortega Hwy., and remaining portion of the 14-inch line to remain in Ave. Los Cerritos. [U2] 7. W7: An 8-inch connection line from 14-inch line in Rancho Viejo to 6-inch line serving Ganado Way. [1-2] 8. W8: Abandon existing below ground PRV in A. L. Cerritos. [U2] 9. W9: To coordinate with the grade changes and numerous expansions of the right of way by Caltrans: 1) Adjust to grade all water valve lids impacted by the project and any grade changes; 2) relocate meters, backflow devices, air-vacs, and other appearances as may be required; 3)Abandon sections of pipe to be relocated. 10.W10: Abandon existing 8-inch lines in place at Denny's & Gas Stations. [U2] 11.W1 I: Abandon in place the existing 8-inch steel line and 4-inch ACP line in Ortega Hwy. between Avenida Los Cerritos and Rancho Viejo. Run new service lines to remaining 14-inch line in Ortega Hwy. to replace connection disrupted by abandonment of 8-inch steel line. [U2] 12.W12: A new 12-inch welded steel water line, including welded steel casings pasting through bridge abutments, within a cell in the 1-5 Bridge. The water line will have flex ball connections at each end, in a vault to allow access and maintenance. [U1, U2] 13.S1: Abandon a section of an existing sewer structure and line in Del Obispo. [U1] 14.S2: New sanitary structure in Del Obispo where abandonment of S1 ends. [U1] 15.S3: Abandon sections of sewer line and laterals at site of former Denny's (restaurant)and gas stations. [U2] 16.S4: Abandon sewer laterals to all properties acquired by Caltrans. (Locations throughout the project see sheets U1 — U2 for locations of affected sewer facilities.) 17.S5: Abandon sections of sewer structure and sewer line in Ortega Hwy.) [U2]. 18.S6: Construct a new sanitary structure where the abandonment (of S5) ends. [U2] 19.S7: Identify and include measure to protect in place and raise all sanitary sewer structures and or lids impacted by the project and any grade changes. Page 1 ATTACHMENT 5 I 1. 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NfM1iE r �� cIs<m-wm ® I " � L q New Easement r 1 I Imp PIFyr��f' ma uc s / m �' R` LL nc n 1 f L�l ww rr wIR �IIRILw(�y' T11 IA •En o-i l i ux[ / aeo � e ¢ 1 wm® xl uc I-R b 3 / $,9 £ 3 m 1 n- - I1l L z si'Isw�Rnaf vl nlee 011.j�1 wao Irs(xl Rzo�y e 1 FI �• �nlx 1 1 \�(rW'I�wG �0rt.1•YR w b' 1 \— t Y ® \•LLtJsopcpwe +�3 r[•s a.v i C L 3 �� n n I ® uIR Isml-Plv® ® A: �Y ac ni D o r m `_ .. `. � sos.ISP'Yluz vlMe®f `w(CV[I-RM UTILITY PLAN Be ®n I J 4^�•'. "R Isen[I%x Fvl- r o2R IPr,w,.Hlt�i �' (EXISTING) b . ISGeLEuli Fvl- f� m s. iC Y1w RLr[R ;trlr°nl-wen ,r 1[ IPrlvo,rJj,-�jMo,ne SCILE+ I'a 50' j ®�,S'l.t R lu Icvd-Ru a6 sntlwtl-r10�9 ® U-Z Y" f Is rur•[ppR,E rw Homo Line-Alternate Routes A& B r _ 'Q ce a A ; x x i fi e..• ` cmra°F s6 �e V ' Water System Active Water Main Abandoned Water Main B Water Valve s Hydrant � Altitude Valve 3 • Flow Control r•.. • Pressure Reducing • Pressure Sustaining Control Valve A ® Air Vac "`•s a Blowoff Meter • Pump ® Reservoir --� } I • Well Sewer System Active Sewer Main Abandoned Sewer Main • Manholes Laterals - Directional Flow .. �. Casing „ -- - - —. - WndWs• - I{ L - . 1 Pares's - -- o roo e ew Feet 77� / z M , I i --r ATTACHMENT n-l-ITYDEPARTMENT Charles King Company, Inc. M 17 2013 2841 Gardena Ave. ORY OF Signal Hill,CA 90755 SAN JUAN CAPISTRANO (562)426-2974 FAX(562)426-9714 LETTER OF TRANSMITTAL Our Job No. Submittal No. Transmittal No. To: City of San Juan Capistrano Date: 01/16/13 32400 Paseo Ade/anto San Juan Capistrano, CA 92675 Attention: Eric Bauman Phone: (949)493-1171 Ext: Fax: Subject: NTP 1.5 Ortega Highway Interchange Pipeline Relocation Comments: Eric, Enclosed please find the signed NTP for the above referenced job. Please send all future correspondence to the Signal Hill address per above. Let me know if Sara I 'you/nV�/"^'�^' have any questions. Th' /hanks enc. i Charles King Company, Inc. Contractors License 738236 2841 Gardena Ave. Signal Hill, CA 90755 Ph (562)426-2974 Fx(562)426-9714 LETTER OF TRANSMITTAL Our Job No. Submittal No. Transmittal No. To: City of San Juan Capistrano Date: 1/10113 32400 Paseo Adelanto San Juan Capistrano, CA 926753 Attention: Phone: XT: Subject: Bonds and Insurance-Pipeline Relocation CIP No. 11805 We are sending you: Originals=1 Copies= This is for your: Signature= Information= Action=X Approval= Please return: Originals= Copies= By: Comments: Please rind bonds, insurance and contract for your execution. Please let me know if you need anything additional. Sincerely, AA111A C)-11 Sarah Criscuolo Today's Date: )h-7 /12. Transmittal Routing / (Check All That Apply) �i City Attorney ❑ City Manager ❑ City Clerk CONTRACT TRANSMITTAL COUNCIL MEETING DATE (if applicable): Project Manager's Last ame: �, m at&A, Phone Extension:-4-'s 1 2— CIP No. (if any): 015— ROVING AUTHORITY: (Check One) AAP Mayor ❑ CRA Chair ❑ City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded—only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement — unless the mailing address is included within the body of the agreement: Names Street City St Zi OTHER INSTRUCTIONS: Form Dale:01-2004 D -7 Bid Opening Report Bids Opened November 15, 2012 at 2:00 p.m. IMPROVEMENT PLANS FOR 1-5 ORTEGA HIGHWAY INTERCHANGE Project Title PIPELINE RELOCATION C.I.P. No. 11805 Project Engineer Eric Bauman, Utilities Eng. Pre Bid Estimate $1,348,000 Bidder Bid Amount Bid Bond/Addenda? $ t1 as O 1. Charles King Company, Inc. 2. Steve P. Rados, Inc $ !!a�� /2-1n�7 :J,�'L- t.W T� 3. GRFCO, Inc. $ �1r �91 �S'1 J.� / 4. M.S. Construction Management Group $ 13C,lS1! U `J 5. $ / 6. 7. 8. Sign Date cc: City Clerk Staff(3) Project Department (3) The above bid amounts have not been checked. The bid totals are subject to correction after the bids have been completely reviewed.