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Any Public Works or related professional services Contract or subcontract that is not awarded in accordance with the requirements or which does not comply with the provisions of this Chapter 6 shall be null and void; and no recovery shall be had thereon. Any officer, board or commission who shall sign, execute or approve such a Contract shall be deemed guilty of misfeasance in office.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015)
If any provision of this Chapter 6 or any application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of this Chapter 6 which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter 6 are declared to be severable.
(Added by Ord. 7-02, File No. 011675, App. 1/25/2002; amended by Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015)
Except as otherwise expressly provided by law or Contract, no subcontractor, subconsultant, supplier, or other person or business entity shall be a third-party beneficiary to any Contract awarded in accordance with this Chapter 6, or to any modification or any resolution of any claim arising out of any such Contract.
(Added by Ord. 58-05, File No. 041571, App. 4/1/2005; amended by Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015)
Public Work Contracts Generally. | |
Requirements for Bids and Quotes. | |
Public Work Construction Contract Terms and Working Conditions. | |
Public Works to be Performed by the City; Bids by City Departments; Procedure Upon Rejection or Failure of Bids. | |
Office of Labor Standards Enforcement; Prevailing Wage Requirements. | |
Contract Requirements for Clean Construction. | |
Citywide Project Labor Agreement Ordinance. | |
(a) Public Works In Excess of the Threshold Amount. Except as otherwise provided by the Charter or the Administrative Code, any Public Work or Improvement estimated to cost more than the Threshold Amount shall be performed under Contracts awarded to the Responsible Bidder submitting the lowest Responsive Bid. To split or divide any Public Work or Improvement into two or more Contracts for the purpose of evading this Section 6.20 shall constitute official misconduct.
(b) Public Works Less Than or Equal to the Threshold Amount. Any Public Work or Improvement estimated to cost less than or equal to the Threshold Amount may be performed (1) under Contract or (2) by City employees. If the work is to be performed under Contract, the department shall obtain not fewer than three Quotes and shall award the Contract to the Responsible Bidder offering the lowest Quotation. If the department is unable to obtain three Quotes, the Award may be based on the Quote or Quotes received. For Contracts for Public Works or Improvements less than or equal to $10,000, no competitive solicitation is required, however departments are encouraged to solicit Quotes, especially from LBE Contractors, and award the Contract to the Responsible Bidder offering the lowest Quotation. The total contract value for Contracts for Public Works or Improvements less than or equal to $10,000 cannot exceed $200,000 per department per fiscal year.
The department administering the Contract shall maintain records as to whom the request for Quotations was directed and the Quotations received. It is the policy of the Board of Supervisors for contracting departments to make every effort to eradicate prejudice and favoritism in the Award of City Contracts. In order to effectuate this policy, Department Heads and their staff members shall collaborate with CMD periodically to create a list of Responsible Contractors qualified to perform various types of Public Work or Improvements for projects estimated to be less than the Threshold Amount, making every effort to include qualified, Responsible, and certified LBE contractors on that list. CMD shall be responsible for outreach efforts to make sure that certified LBE Contractors are aware of the opportunity to be considered for the list. The departments or commissions shall be responsible for evaluating and determining whether Contractors are Responsible and qualified to perform the various scopes of work.
(c) Estimates Required. For Public Works or Improvements in excess of the Threshold Amount, no Department Head shall recommend a construction Contract for or issue an order of Award without preparing detailed program requirements and detailed estimates for the work to be performed. There shall be a separate accounting for each work or improvement, which accounting shall include all direct, indirect, and supervisory elements of costs chargeable to such work or improvement. All such accounts shall be reported to the Controller and to either the Mayor or to the board or commission concerned, as appropriate.
(d) Comparison of Bids on Basis of Time of Completion or Cost of Compensable Delay. Department Heads may compare Bids on the basis of time of completion and/or the cost of any compensable delay, and any Contract awarded in consideration, in whole or in part, of the relative time estimate of Bidders for completion of the work and/or the cost of any compensable delay in completing the work, shall be subject to the provisions of this Chapter 6.
(e) Time for Award. Except when a Contract is funded by Federal or State grants or funds, all Public Work Contracts shall be awarded within 90 days of the date the City receives the Bids. Such time may only be extended prior to award of the Contract and only upon written agreement of the apparent Responsible Bidder with the lowest Responsive Bid and approval by the Department Head.
(f) Prequalification. Department Heads may require that prospective Bidders be prequalified to Bid either on a specific project or on an identified group of projects. The procedure for prequalification is as follows:
(1) The Department Head shall issue a prequalification statement. The prequalification statement may, at the discretion of the Department Head, be issued in conformance with California Public Contract Code Section 20101 and/or the California Department of Industrial Relations Model Pre-Qualification Questionnaire. The Department Head may, at his/her own discretion, apply the Model Pre-Qualification Questionnaire guidelines for scorable questions and scoring as the basis for any prequalification. The Department Head may also, at his/her own discretion, issue the Model Pre-Qualification Questionnaire with additional questions or may use an alternative questionnaire. The Department Head responsible for the Public Work may include in any questionnaire a request for special qualifications, experience or expertise necessary to perform the project or projects for which the prequalification is sought. For any project-specific information required, the department shall set objective scoring criteria and incorporate the criteria into any scoring procedure.
(2) The department responsible for the Public Work shall advertise any prequalification questionnaire in the same manner required for Bids, as set forth in Section 6.21.
(3) Prequalification shall be valid for not more than two years following the date of initial prequalification.
(4) A prospective Bidder may dispute a finding that he/she is not prequalified. The dispute and request for review must be in writing and received by the department within ten calendar days from the date the department issued notice of non-prequalification. The department shall then provide the prospective Bidder with the basis for its finding and any supporting evidence used in the determination. The department shall give the prospective Bidder the opportunity to rebut the evidence provided and to present evidence as to why the prospective Bidder should be found qualified. If a Bidder fails to avail itself of this dispute process, the department's finding shall become final without further notice. Failure to be prequalified shall not by itself preclude a prospective Bidder from participating in other or future prequalifications.
(a) Bids. All Advertisements For Bids for construction Contracts in excess of the Threshold Amount shall conform to and at a minimum require the following:
(1) Published Advertisement. The Department Head shall advertise for competitive Bids in at least one local newspaper, periodical of general circulation, or on a publically available website of the City's Office of Contract Administration and the department concerned. Such advertisement shall be published not fewer than 10 days prior to Bid opening. The department may, in its discretion, include in the published advertisement the amount of the engineer's estimate for the work to be performed.
(2) Award and Certification Required. All published advertisements and Advertisements For Bid shall contain the following language [wording in brackets should be chosen as appropriate to the department]:
In accordance with San Francisco Administrative Code Chapter 6, no Bid is accepted and no contract in excess of [the Threshold Amount] is awarded by the City and County of San Francisco until such time as [(1) for departments with boards or commissions, (a) the Department Head recommends the contract for award and (b) the board or commission then adopts a resolution awarding the contract]; or [(2) for departments under the Mayor, (a) the Mayor approves the contract for award and (b) the Department Head then issues an order of award.] Pursuant to Charter Section 3.105, all contract awards are subject to certification by the Controller as to the availability of funds.
Failure of a department to include such language in a published advertisement or Advertisement For Bids does not give rise to a contract right by a Bidder or Contractor outside of the requirements of the Charter or Administrative Code.
(3) Form of Bid. All Bids shall be sealed and directed to the Department Head advertising for Bids, in the format prescribed by the Department Head.
(4) Bid Security Requirement. All Bids shall be accompanied by a corporate surety bond, or an irrevocable standby letter of credit on a bank or trust company doing business and having an office in the State of California, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority, or a certified check on a bank or trust company doing business and having an office in the State of California, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority, payable on sight to the City and County of San Francisco, the amount of which corporate surety bond, irrevocable standby letter of credit, or certified check shall be fixed by the Department Head or officer as stated in the Advertisement For Bids, which amount shall not be less than 10% of the amount Bid for the cost of the proposed work of improvement, and no Bid shall be considered unless accompanied by a corporate surety bond or irrevocable standby letter of credit or certified check. Any irrevocable standby letter submitted pursuant to this Chapter shall be on a form provided by the City. If the amount of security required is fixed by the Department Head or officer in an amount in excess of $15,000, the form of security required shall be that of a corporate surety bond or irrevocable standby letter of credit. The requirement for a corporate surety bond, irrevocable standby letter of credit, or certified check described in this subsection shall be referred to collectively as the "bid security requirements."
Notwithstanding the above, the bid security requirements for a particular Contract may be modified by the Department Head in accordance with Administrative Code Chapter 14B.
(5) Fees. The Department Head or officer calling for Bids may specify in the Advertisement For Bids for any project a nonrefundable fee to be paid by each prospective Bidder for each set of Bidding documents (including plans and specifications), such fee to defray the cost of reproducing each set of Bidding documents as determined by the Department Head or officer, and all such fees shall be deposited as an abatement of the expenditure of the appropriation against which the cost of reproducing said Bidding documents was charged.
(6) License. The Department Head shall specify in all Advertisements For Bids and plans for Public Work projects the classification of the Contractor's license which a Contractor shall possess at the time Bids are submitted. Except as provided in California Business and Professions Code Section 7000 et seq., Bidders and their subcontractors are required to be properly licensed at the time of Bid.
(7) Qualifications. The Department Head responsible for the Public Work shall require from all Bidders information concerning their experience and financial qualifications, and shall take such information into consideration in the Award of any Contract. At a minimum the Department Head shall require (A) information concerning the Contractor's experience, financial qualifications and ability to perform the terms and conditions of the Contract, and (B) information as to whether the Contractor possesses, or can obtain in time to perform the Contract, the necessary equipment. A Department Head may satisfy this requirement through a Bidder prequalification process that meets the requirement of Section 6.20(f).
(8) Business Tax Registration Certificate. All Advertisement For Bids shall require that Bidders submit proof of a current Business Tax Registration Certificate. Failure of a Bidder to provide such proof prior to Award, or as otherwise required in the Advertisement For Bids, could, at the discretion of the Department Head, constitute a refusal to enter into the Contract and result in a forfeiture of the Bid bond.
(9) Designation of Subcontractors; Subcontracting and Subletting. All Bidders shall designate their subcontractors in accordance with and shall be subject to the Subletting and Subcontracting Fair Practices Act, at California Public Contract Code Section 4100 et seq., as amended from time-to-time. In addition to the penalties provided by Public Contract Code Section 4100 et seq., violation of this subsection 6.21(a)(9) may be grounds for a determination of nonresponsibility under Article V of this Chapter 6.
(10) Work to Be Performed by General Contractor. The Advertisement For Bids may specify the scope of work which must be performed by the General Contractor using his/her own forces, or the specification may require the General Contractor to perform with his/her own forces up to 25% of the base Contract work. Bidders must certify with their Bids that, if awarded the Contract, they will perform with their own forces the specified scope or percentage of the total bid price (excluding alternate Bid items).
(b) Quotes. All requests for Quotes for construction Contracts less than or equal to the Threshold Amount shall be posted with three-days' notice. Such requests shall at a minimum require a Contractor's license, qualifications, a Business Tax Registration Certificate, participation in an apprenticeship program and compliance with subcontractor listing laws, all in accordance with the listed provisions of Sections 6.21 and 6.22.
(c) Right to Reject Any or All Bids or Quotes. The Department Head shall have the right to reject any or all Bids or Quotes for any reason or no reason. All Advertisement For Bids shall reserve this right, but failure to make such reservation shall not abrogate the right to reject.
(d) Bid Protests. Only a Bidder may submit a bid protest. The Department Head concerned shall prescribe in the Advertisement For Bids procedures for submitting Bid protests. Such procedures shall set the time by which Bid protests must be received but may not require that Bid protests be submitted fewer than five business days after the date Bids are due.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 153-00, File No. 000805, App. 6/30/2000; Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 208-02, File No. 021221, App. 10/18/02; Ord. 58-05, File No. 041571, App. 4/1/2005; Ord. 19-10, File No. 091163, App. 2/10/2010; Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; Ord. 220-20, File No. 200949, App. 11/6/2020, Eff. 12/7/2020)
All construction Contracts awarded under this Chapter 6 by the City shall contain the following minimum terms and conditions:
(a) Bonds. Before the execution of any Contract for Public Work or Improvement in excess of $25,000, the Department Head shall require the successful Bidder to file corporate surety bonds for the faithful performance thereof and to guarantee the payment of wages for services engaged and of bills contracted for material, supplies and equipment used in the performance of the Contract. Each bond shall be for a sum not less than 100% of the awarded Contract amount.
The City, acting through the City Administrator, intends to provide guarantees to private bonding assistance companies and financial institutions in order to induce those entities to provide required bonding and financing to eligible Contractors bidding on and performing City Public Work Contracts. This bonding and financial assistance program is subject to the provisions of Administrative Code Chapter 14B.
(b) Insurance. All construction Contracts awarded under this Chapter 6 must conform to the insurance requirements established by the Risk Manager. The Risk Manager shall develop uniform insurance requirements for City Contracts subject to this Chapter 6. The Risk Manager shall review and update such insurance requirements as necessary to protect the City’s interests.
Every Contractor and subcontractor shall comply with the provisions of California Labor Code Section 3700. Prior to commencing the performance of work under any Public Work Contract, the Contractor and all of its subcontractors shall file with the awarding department a certificate of insurance against liability for workers compensation or proof of self-insurance in accordance with the provisions of the California Labor Code.
(c) Indemnification. All construction Contracts awarded under this Chapter 6 shall require that the Contractor fully indemnify the City to the maximum extent provided by law, such that each Contractor must save, keep, bear harmless and fully indemnify the City and any of its officers or agents from any and all liability, damages, claims, judgments or demands for damages, costs or expenses in law or equity that may at any time arise.
This indemnification requirement may not be waived or abrogated in any way for any Contract without the recommendation of the Risk Manager and the express permission and approval of the Board of Supervisors.
(d) Assignment. No Contract shall be assigned except upon the recommendation of the Department Head concerned and with the approval of the Mayor, relative to the department under the Mayor's jurisdiction, or the approval of the board or commission concerned for departments not under the Mayor.
(e) Prevailing Wages. All Contractors and subcontractors performing a Public Work or Improvement for the City shall comply with the requirements of through of the Labor and Employment Code, as applicable.
(f) Hours and Days of Labor. Contractors and subcontractors performing a Public Work or Improvement for the City shall comply with the Hours and Days of Labor requirements of Labor and Employment Code .
(g) Local Hiring Policy. All Contracts and subcontracts for performance of Public Works or Improvements that exceed the Threshold Amount are subject to the requirements of the San Francisco Local Hiring Policy for Construction as set forth in Chapter 82 of the Administrative Code (“Local Hiring Policy”) and shall include compliance with the Local Hiring Policy as a material term of the Contract, directly enforceable by the City as described therein. As a condition of performance of Project Work, as that term is defined in Administrative Code Section 82.3, each Contractor and subcontractor agrees: to comply with all provisions of the Local Hiring Policy; that provisions of the Local Hiring Policy are reasonable and are achievable by the Contractor or subcontractor, including the reporting requirements and consequences for noncompliance described in Chapter 82 of the Administrative Code; and that the Contractor or subcontractor had a full and fair opportunity to review and understand terms of the Local Hiring Policy, in consultation with counsel if so desired.
(h) Modifications - Requirements. If it becomes necessary in the prosecution of any Public Work or Improvement Contract to make alterations or modifications or to provide for extras, such alterations, modifications or extras shall be made only on written recommendation of the Department Head responsible for the supervision of the Contract, together with the approval of the Mayor or the board or commission, as appropriate to the department, and also the approval of the Controller, except as hereafter provided. The Mayor or the board or commission, as appropriate to the department, may delegate in writing the authority to approve such alterations, modifications or extras to the Department Head, except as provided below. The Controller may delegate in writing the authority to encumber funds from prior appropriations for such alterations, modifications or extras to the Department Head prior to the certification for payment. Such authority, when granted, will clearly state the limitations of the changes to be encompassed.
(1) Increasing or Decreasing Price. Alterations, modifications, or extras in any Contract, which will increase or decrease the Contract cost or scope, may be made or allowed only on the written recommendation of the Department Head responsible for the supervision of the Contract stating the amount and basis for such increase or decrease. For any cumulative increase or decrease in price in excess of 10% of the original Contract price or scope, the Department Head shall obtain the approval of the Mayor or the board or commission as appropriate and also the approval of the Controller notwithstanding any delegation provided for above.
(2) Extensions of Time. Upon finding that work under a construction Contract cannot be completed within the specified time because of an unavoidable delay as defined in the Contract, the Department Head may extend the time for completion of the work. If the cumulative extensions of time exceeds 10% of the original Contract duration, the Department Head shall obtain the approval of the Mayor, board or commission, as appropriate to the department notwithstanding any delegation provided for above. The Department Head may seek such approval after completion of the work if the Department Head makes a written finding in the time extension that no basis exists to assess liquidated damages for delay against the Contractor. All time extensions shall be in writing, but in no event shall any extension be granted subsequent to the issuance of a certificate of final acceptance.
(A) Time Extension Not Waiver of City's Rights. The granting of an extension of time because of unavoidable delays shall in no way operate as a waiver on the part of the City or the Department Head, Mayor, board or commission of the right to collect liquidated damages for other delays or of the right to collect other damages or of any other rights to which the City is entitled.
(B) No Extension Granted When Contract Based on Time Estimates. When any Award of Contract has been made in consideration, in whole or in part, of the relative time estimates of Bidders for the completion of the work, no extension of time may be granted on such Contract beyond the time specified for completion, unless the liquidated damages for each day the work is uncompleted beyond the specified time shall be collected; provided, however, that this shall not apply to unavoidable delays as specified in the Contract.
(C) Avoidable and Unavoidable Delay; Limitation of Damages for Delay. The Department Head administering the Public Work or Improvement shall have the authority to specify in the Contract the delays that shall be deemed avoidable or unavoidable. The City shall not pay damages or compensation of any kind to a Contractor because of delays in the progress of the work, whether such delays be avoidable or unavoidable; provided, however, the City may pay for (1) delays caused to the Contractor by the City and (2) such unavoidable delays as may be specifically stated in the Contract. Such latter delays will be compensated for only under the conditions specified in the Contract.
(D) Notice of Delay Required. The Contractor shall promptly notify the Department Head in writing, of all anticipated delays in the prosecution of the work and, in any event, promptly upon the occurrence of a delay, the notice shall constitute an application for an extension of time only if the notice requests such extension and sets forth the Contractor's estimate of the additional time required together with a full recital of the causes of unavoidable delays relied upon. The Department Head may take steps to prevent the occurrence or continuance of the delay, may classify the delay as avoidable or unavoidable, and may determine to what extent the completion of the work is delayed thereby.
(i) Liquidated Damages. Any Contract may provide a time within which the Contract work, or portions thereof, shall be completed and may provide for the payment of agreed liquidated damages to the City for every calendar or working day thereafter during which such work shall be uncompleted.
(j) Progressive Payments Authorized; Retentions. Any Contract for construction services may provide for progressive or milestone payments, if the Advertisement For Bids shall so specify. Each progress or milestone payment shall constitute full compensation for the value of work performed and materials furnished for a specified period, less amounts withheld as a result of dispute or as required by law.
(1) For all Contracts entered into on or after the effective date of this subsection 6.22(j), from every progress payment, the City shall hold 5% in retention.
(2) Notwithstanding the subsection 6.22(j)(1) above, the City may hold greater than 5% but not more than 10% in retention if the Department Head responsible for the Public Work determines that the Public Work or Improvement is substantially complex and therefore warrants a higher retention amount, and the retention amount is specified in the Advertisement For Bids. For Contracts with retention amounts greater than 5%, if the Department Head responsible for the Public Work determines that the Contract is 50% or more complete, that the Contractor is making satisfactory progress, and that there is no specific cause for greater withholding, the Department Head, upon the written request of Contractor, may authorize one of the following two options: (A) the City shall release part of the retention to the Contractor so that the amount held in retention by the City, after release to the Contractor, is reduced to an amount not less than 5% of the total value of the labor and materials furnished, and the City shall proceed to retain 5% of any subsequent progress payment under the Contract; or (B) the City shall continue to hold the already withheld retention amount, up to 5% of the total Contract price, and shall not deduct further retention from progress payments.
(3) The Department Head shall authorize the release of retention, in whole or in part, for work completed by subcontractors certified by CMD as LBEs. The Department Head shall do so only upon a written request by the Contractor certifying (A) the work by the certified LBE subcontractor is completed and satisfactory in accordance with the plans and specifications for the project; (B) the total amount paid to the certified LBE subcontractor by the Contractor as of the date of the written request and the total amount of the subcontract; and (C) the amount of retention associated with the work performed by the certified LBE subcontractor. Following a release of such retention, and in order to calculate retention and retention withholding from further progress or milestone payments, the City will reduce the total retention required under the foregoing paragraphs (1) and (2) by the amount paid to the certified LBE subcontractor(s) for whom the City released the retention. The release of retention under this subsection 6.22(j)(3) shall not reduce the responsibilities or liabilities of the Contractor or its surety under the Contract or applicable law.
(4) The Department Head shall authorize the release of retention, in whole or in part, for work completed by subcontractors under any Public Work Contract awarded under this Chapter 6 with a duration of more than two years. The Department Head shall do so only upon a written request by the Contractor certifying (A) the work by the subcontractor is completed and satisfactory in accordance with the plans and specifications for the project; (B) the total amount paid to the subcontractor by the Contractor as of the date of the written request and the total amount of the subcontract; and (C) the amount of retention associated with the work performed by the subcontractor. The City may issue or authorize the release of retention within six months of the date of the request. Following a release of such retention, and in order to calculate retention and retention withholding from further progress or milestone payments, the City will reduce the total retention required under the foregoing subsections (1) and (2) by the amount paid to the subcontractor(s) for whom the City released retention. The release of retention under this subsection 6.22(j)(4) shall not reduce the responsibilities or liabilities of the Contractor or its surety under the Contract or applicable law.
(5) Retention shall be withheld solely for the benefit and protection of the City.
(6) When the Department Head responsible for the Public Work determines that the Contract is 98% or more complete, the Department Head may reduce retention funds to an amount equal to 200% of the estimated value of work yet to be completed, plus any amount necessary to cover offsets by the City for liquidated damages, defective work, stop notices, forfeitures, and other charges. The City shall release retention to the Contractor upon the following conditions: (A) the Contractor has reached final completion under the Contract terms and conditions and (B) the Contract is free of offsets by the City for liquidated damages, defective work and the like, and is free of stop notices, forfeitures, and other charges.
(7) For all Contracts awarded under this Chapter 6, in no event shall the City be liable for interest or charges arising out of or relating to the date the City issues any progress, milestone, or other payment, or the date the City releases all or part of the retention, except that the City will pay interest at the legal rate, as set forth in Section 685.010(a) of the California Code of Civil Procedure, as may be amended from time to time, on any improperly withheld amounts commencing no earlier than 90 days after the date the City should have made any progress payment or released all or part of the retention. Under no circumstances shall the legal rate of interest paid by the City under this provision exceed 10% per annum. The payment of interest under this provision is the limit of the City's liability with respect to any claim for interest on improperly withheld amounts.
(k) Inspection and Acceptance of Completed Work; Final Payment. The Department Head shall be responsible for the inspection and acceptance of Public Works or Improvements on completion. Such acceptance shall be in writing and shall include the certificate of the Department Head concerned that the work covered by the Contract has been fully and satisfactorily completed in accordance with the plans and specifications therefor. Receipt of copy of such acceptance in writing shall constitute the Controller's authority to complete any payments due the Contractor under the Contract; provided that the Controller may make such additional investigation or inspection as is provided by Administrative Code Section 10.07.
(l) Termination for Convenience. In all Contracts for the construction of any Public Work or Improvement, the Department Head may include in the specifications setting forth the terms and conditions for the performance of the Contract a provision that the City may terminate the performance of work under the Contract whenever the Department Head shall determine, with the approval of the Mayor or the board or commission concerned, that such termination is in the best interest of the City. Any such termination shall be effected by delivery to the Contractor of a notice of termination specifying the extent to which performance of work under the Contract is terminated and the date upon which such termination becomes effective. The Department Head is hereby authorized to include within such construction Contract the appropriate language to implement this subsection 6.22(l).
(m) Articles Not to be Prison Made. No article furnished under any Contract awarded under the provisions of this Chapter 6 shall have been made in a prison or by convict labor except for articles made in prisons or by convicts under the supervision and control of the California Department of Corrections and limited to articles for use by the City's detention facilities.
(n) Employment of Apprentices. All construction Contracts awarded under this Chapter 6 shall require the Contractor to comply with the requirements of the State Apprenticeship Program (as set forth in the California Labor Code, Division 3, Chapter 4 [commencing at Section 3070] and Section 1777.5), as it may be amended from time to time, and shall require the Contractor to include in its subcontracts the obligation for subcontractors to comply with the requirements of the State Apprenticeship Program.
(o) Safety. All construction Contracts awarded under this Chapter 6 shall require the Contractor and all of its subcontractors to abide by the applicable Occupational Safety and Health statutes and regulations.
(p) Claims. The City shall consider only those claims for additional payment under a Contract that are certified and that conform to the Contract requirements for claims, pricing, and schedule.
(1) Claims by Contractors. The Contractor shall certify under penalty of perjury that (A) the claim is made in good faith; (B) the supporting data are accurate and complete to the best of Contractor's knowledge and belief; and (C) the amount request accurately reflects the Contract adjustment for which the Contractor believes the City is liable. An individual or officer authorized to act on behalf of the Contractor shall execute the certification.
(2) Claims by Subcontractors. Subcontractors at any tier are not third-party beneficiaries of any Contract awarded under this Chapter. The City shall not consider a direct claim by any subcontractor. A Contractor presenting to the City any claim on behalf of a subcontractor must certify the subcontractor's claim in the same manner the Contractor would certify its own claim under the foregoing subsection 6.22(p)(1).
(q) Contractor Prompt Payment. All construction Contracts under this Chapter 6 shall require the Contractor to pay its subcontractors within seven calendar days after receipt of each progress payment from the City, unless otherwise agreed to in writing in advance by both Contractor and subcontractor. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from a Contractor to a subcontractor, the Contractor may withhold the disputed amount but shall pay the undisputed amount.
Any Contractor who violates this subsection 6.22(q) shall pay to the subcontractor a penalty of 2% of the amount due per month for every month or portion thereof that payment is not made. This subsection 6.22(q) is enforceable in a court of competent jurisdiction, and is not intended to create a private right of action against the City.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 153-00, File No. 000805, App. 6/30/2000; Ord. 237-00, File No. 001207, App. 10/20/2000; Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 208-02, File No. 021221, App. 10/18/2002; Ord. 58-05, File No. 041571, App. 4/1/2005; Ord. 107-05, File No. 050215, App. 6/10/2005; Ord. 131-06, File No. 060444, App. 6/22/2006; Ord. 119-08, File No. 080277, App. 7/11/2008; Ord. 19-10, File No. 091163, App. 2/10/2010; Ord. 23-10, File No. 091233, App. 2/11/2010; Ord. 311-10, File No. 101311, App. 12/23/2010; Ord. 79-11, File No. 110330, App. 5/19/2011, Eff. 6/18/2011; Ord. 225-12, File No. 120750, App. 11/1/2012, Eff. 12/1/2012; Ord. 27-13
, File No. 121200, App. 2/19/2013, Eff. 3/21/2013; Res. 80-14, File No. 140091, App. 3/21/2014; Ord. 32-14
, File No. 140090, App. 3/27/2014, Eff. 4/26/2014, Oper. 6/25/2014; Ord. 85-14
, File No. 140151, App. 6/19/2014, Eff. 7/19/2014, Oper. 9/17/2014 (part); Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; Ord. 224-15, File No. 150817, App. 12/22/2015, Eff. 1/21/2016, Oper. 4/20/2016; Ord. 84-17, File No. 170004, App. 3/30/2017, Eff. 4/29/2017, Retro. 3/25/2017; Ord. 220-20, File No. 200949, App. 11/6/2020, Eff. 12/7/2020; Ord. 164-23, File No. 230647, App. 7/28/2023, Eff. 8/28/2023; Ord. 296-24, File No. 240985, App. 12/19/2024, Eff. 1/19/2025, Oper. 2/19/2025)
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