17-0801_DUDEK_Agenda Report_E9TO:
FROM:
Honorable Mayor and Members of the City Council ~Siegel, City Manager
SUBMITTED BY: Steve May, Public Works and Utilities Director ~f(AA._
Ken Al-lmam, Chief Financial Officer d'L
PREPARED BY: Michael Marquis, P.E., Associate Civil Engineer
DATE: August 1, 2017
8/1/2017
E9
SUBJECT: Consideration of a Construction Contract, an Amendment to a
Professional Services Agreement, and an Adjustment to Fiscal
Year 2017-2018 Capital Improvement Program for the Recycled
Water Service Conversion Project (CIP 16601) (STL Landscape
Inc., and Dudek)
RECOMMENDATIONS :
1. Approve and authorize the City Manager to execute Amendment No. 2 to the
Professional Services Agreement with Dudek for additional design services, to
increase the contract amount by $2,280; and
2. Approve and Authorize the City Manager to execute a construction contract with STL
Landscape Inc. in the amount of $289,750, for the Recycled Water Service
Conversions Project; and
3. Approve an adjustment to the Fiscal Year 2017-2018 Capital Improvement Program
to reduce funding for the Non-Potable Water Pipelines Project (CIP 16602) by
$54,300 (from $130,000 to $75,700); and
4. Approve an appropriation to Fiscal Year 2017-2018 Capital Improvement Program to
increase funding for the Recycled Water Service Conversion Project (CIP 16601) by
$54,300 (from $266,700 to $321 ,000).
EXECUTIVE SUMMARY:
The Recycled Water Service Conversion Project has been designed and advertised for
construction, and award of a construction contract is now recommended. Additional
funding in the amount of $54,300 is needed for the Project, and it is recommended that
those funds be transferred from the Non-Potable Water Pipelines Project, with the
expectation that the transferred funds will be replenished from Metropolitan Water
City Council Agenda Report
August 1, 2017
Page 2 of 4
District grant funds once the Project has been completed. It is also necessary to
increase the project design contract with Dudek by $2,280, for additional hydraulic
analysis that was beyond the initial scope of work. The locations of the conversions are
shown on Attachment 1 .
DISCUSSION/ANALYSIS:
The Recycled Water Service Conversion Project is intended to expand the use of
recycled water produced in the local area and to reduce reliance on imported domestic
water. The Metropolitan Water District (MWD) offers an incentive rebate that will offset
approximately 25% of the construction cost of this project once the project has been
completed and the rebate has been submitted and approved.
The original project design included twelve sites and was bid for construction in January
2017. The bids received were significantly higher than the Project budget. Based on
Utility Commission and staff recommendations, the City Council rejected all bids and
approved Amendment No. 1 to the design contract with Dudek to revise and reduce the
scope of the Project. The areas of conversion and the areas that were eliminated from
the Project are shown on Attachment 1.
The reduced scope Project was recently bid for construction and only one bid was
received. The bid of $289,750 from STL Landscape Inc. is responsive and reasonable,
and it is recommended that a construction contract for the Project be awarded to STL
Landscape Inc. The contract amount, plus a 10% contingency, will require an additional
$54,300 that can be transferred from the Non-Potable Water Pipelines Project with the
expectation that an estimated $84,825 rebate from MWD will be available to replenish
the Non Potable Water Capital Improvement Fund. It is recommended that the City
Council transfer the additional needed funds from the Pipelines Project and award a
construction contract to STL Landscape Inc. The conversion project costs and the
necessary transfer of funds are further described in the Fiscal Impact Section of this
report.
In December 2013, the City completed construction of four projects that converted
potable water irrigation accounts to recycled water use. A total of 68 accounts, including
the Marbella Golf Course and various Homeowners' Association landscaped areas,
were converted for an annual potable water offset that totals approximately 700 acre
feet. The current project continues the City's water conservation efforts and would
further offset potable water use by an estimated 87 acre feet each year. This is
equivalent to 28.3 million gallons of additional potable water conserved annually.
FISCAL IMPACT:
The Fiscal Year 2017-2018 Capital Improvement Program Recycled Water Service
Conversion Project has a current balance of $266,700. The proposed construction cost
for the project is $318,725, including a 10% contingency. Staff recommends a transfer
of $54,300 from the Fiscal Year 2017-2018 budget for the Non-Potable Recycled Water
City Council Agenda Report
August 1, 2017
Page 3 of 4
Pipelines Project (CIP 16602) to the Recycled Water Service Conversions Project (CIP
16601) to provide sufficient funding to complete the Conversion Project. Both projects
are funded by the Non-Potable Water Capital Improvement Fund. Staff will be applying
to Metropolitan Water District (MWD) for grant funding through its On-site Retrofit
Program (ORP), which offers $975 per acre foot of potable water offset by the
conversion, resulting in a projected $84,825 in grant funding from MWD for this Project.
The Project must be completed before the City is eligible to apply for monies through
the ORP. The rebate funds would be deposited into the Non-Potable Water Capital
Improvement Fund.
ENVIRONMENTAL IMPACT:
On April 13, 2016, a Notice of Exemption for the Recycled Water Service Conversion
Project, CIP 16601, was filed with the County Clerk stating that the project constitutes a
Statutory Exemption per Public Resource Code Section 21080.08 Recycled Water
Projects, and a Categorical Exemption per Class 2, Section 15302(c) Replacement or
Reconstruction in accordance with Section 15061 of the California Environmental
Quality Act (CEQA) guidelines.
PRIOR CITY COUNCIL REVIEW :
• On November 3, 2015, the City Council approved a Professional Services
Agreement with Dudek in the amount not to exceed $106,020, for design of the
Recycled Water Service Conversions Project.
• On March 21, 2017, the City Council approved Amendment No 1 to the Professional
Services Agreement with Dudek in the amount of $10,000, for revisions to the
Project design, rejected all construction bids received, and authorized staff to reduce
the scope of the Project and to re-advertise and receive construction bids for the
reduced scope Project.
COMMISSION REVIEW AND RECOMMENDATIONS :
• On August 25, 2015, the Utilities Commission recommended that staff issue the
Request for Proposals (RFP) for the design of the Recycled Water Service
Conversion Project, and that staff return to the Commission with a recommendation
for award of a construction contract.
• On October 20, 2015, the Utilities Commission recommended that the City Council
approve a Professional Services Agreement with Dudek in the amount not to exceed
$106,020 for design of the Project.
• On January 17, 2017, the Utilities Commission recommended that the City Council
approve Amendment No. 1 to the Professional Services Agreement with Dudek in
the amount of $10,000, for revisions to the Project design.
City Council Agenda Report
August 1, 2017
Page 4 of 4
• On February 21, 2017, the Utilities Commission recommended that the City Council
reject all bids and authorize staff to reduce the scope of the Project and to re-
advertise and receive construction bids for the modified version of the project.
• On July 18, 2017, the Utilities Commission recommended that the City Council
approved Amendment No. 2 to the Professional Services Agreement with Dudek in
the amount of $2,280 for revisions to the Project design, and that the City Council
award a contract to STL Landscape Inc. in the amount of $289,750 for construction
of the Project.
NOTIFICATIONS :
Dudek
STL Landscape Inc.
ATTACHMENTS :
Attachment 1: Location Map (proposed recycled water service conversion sites)
Attachment 2: Amendment No. 2 to Professional Services Agreement with Dudek for
the Recycled Water Service Conversion Project
Attachment 3: Construction Contract for the Recycled Water Service Conversion
Project
ENCLOSURE:
Plans and specifications for the Recycled Water Service Conversions Project are on file
and available for review at the City Clerk's office.
RECYCLED WATER CONVERSION PROJECT
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Legend
Proposed Recycled
Water Irrigation Areas
._ _______ ..._..J n ... (
00.125025 05 075 1~ .... ..-h
Miles
Recycled Water Conversion Project
Site
No. Site Owner
1 Caltrans
2 City Parkway at Village San Juan
3 City Parkway at Summer Walk
• 4 Summer Walk HOA
5 Junipero Serra High School South Campus
6 Junipero Serra High School North Campus
7 Marbella at Via Ultimo (HOA)
• 8 Tar Farms Equestrian
9 Sun Hollow HOA
10 Campanilla HOA
11 Lomas San Juan Park Slope
• 12 Saint Margaret's Parking Lot
~-Indicates S1te Removed from project for
~b idding
\
REED
@ RESERVOIR
s
ATTACHMENT 1, Page 1 of 1
SECOND AMENDMENT TO
PROFESSIONAL SERVICES AGREEMENT
2015 RECYCLED WATER CONVERSION PROJECT
THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT
between the CITY OF SAN JUAN CAPISTRANO ("City") and Dudek, ("Consultant") is made
and entered into, to be effective the day of , 2017, as follows:
RECITALS
WHEREAS, the City and Consultant have entered into that Professional Services
Agreement dated November 3, 2015 for Engineering and Design Services for the 2015
Recycled Water Service Conversions Project (the "Agreement"); and
WHEREAS, the City and Consultant previously amended the Agreement pursuant to
the FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT for the 2015
RECYCLED WATER SERVICE CONVERSIONS PROJECT (the "First Amendment"); and
WHEREAS, all references to the Agreement shall mean the Agreement as amended by
the First Amendment; and
WHEREAS, the City and Consultant desire to further amend the terms of the
Agreement as provided hereunder.
AMENDMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
therein, City and Consultant agree to the amend Sections 1 and 3.1 of the Agreement as
follows:
Section 1, Scope is amended to include a hydraulic analysis in accordance with the scope of
work outlined in correspondence from Consultant to City dated February 8, 2017 (Exhibit 1 ).
Section 3.1, Compensation Amount, is amended to add $2,280 for a total Compensation
Amount of $118,300.
540028.1
61147.02100\10229925 .1
-1-
ATTACHMENT 2
Page 1 of 3
All other provisions of the Agreement not amended hereunder shall remain In full force and
effect.
ATTEST:
By:~~~~------
CityCierk
APPROVED AS TO FORM: ...
ey Q I :tfoP.t ~
5400ZII
81147.02100\1022911211 .1
-2-
CITY OF SAN JUAN CAPISTRANO
By:~---~-..,-----
Benjamin Siegel, City Manager
CONSULTANT ~
Dudek By:£?/~
Mike Metts
Assistant Secretary
ATTACHMENT 2
Page 2 of 3
From: Elizabeth Caliva <ecaJiva @d udek .com >
Date: 2/8/17 09:58 (GMT-08:00)
To: Michael Marquis <MMarguis@ sa nj uancapjstrano .org>
Cc: Eric Bauman <EBauman@ sanjuancapistrano .org>, John Robinson
<jrobu1son@ johnrobinsonconsulting .com >
Subject: Estimate for Hydraulic Analysis at JSerra High School and Sun Hollow HOA Sites of
the Recycled Water Service Conversions Project.
Hi Mike,
To do a rough analysis at JSerra I'd estimate 4 hours of my time or $760 (pipe takeoffs, flow/demand
estimate, calculations, email results). I'd actually like to do a little more of an accurate analysis by
putting together a little hydraulic model as there are a couple spots that we could add short amounts of
irrigation line to loop the system and a model would allow that to be analyzed really quickly once set up.
I'd estimate 8 hours for that or $1520 (model set up, flow/demand estimates, model analysis, email
results). Of course if we decide to redo the design then we can discuss further what that would entail.
Analysis of the Sun Hollow HOA system will require an additional4 hours at $190/hour for a total not to
exceed amount of $2,280.
Thanks,
ELIZABETH CALIVA, P.E.
SENIOR ENGINEER
DUDEK
ENGINEERING + ENVIRONMENTAL
750 SECOND STREET
ENCINITAS, CALIFORNIA 92024
T 760.479.4114 F 760.942.4508 C 760.846.6184
WWW.DUDEK.COM
PLEASE NOTE: Dudek uses an email filter to clean viruses and filter Spam . Please take the time to verify receipt of any important or time-
sensitive email sent to us.
EXHIBIT 1
ATTACHMENT 2
Page 3 of 3
CITY OF SAN JUAN CAPISTRANO
SAN JUAN CAPISTRANO, CALIFORNIA
CONTRACT DOCUMENTS FOR
RECYCLED WATER SERVICE CONVERSION PROJECT
CIP 16601
61147.02100\20950242 .3
ATTACHMENT 3
Page 1 of 61
00 5213-CONTRACT
This CONTRACT, No. 16601 is made and entered into this __ day of August 2017, by and
between City of San Juan Capistrano, sometimes hereinafter called "City," and STL Landscape
Inc., sometimes hereinafter called "Contractor." ·
WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these
presents do covenant and agree with each other as follows:
a. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated in
the Contract, and shall provide all labor, materials, equipment, tools, utility services, and
transportation to complete all of the Work required in strict compliance with the Contract
Documents as specified in Article e below, for the following Project:
Recycled Water Service Conversions -CIP 16601
The Contractor and its surety shall be liable to the City for any damages arising as a result of
the Contractor's failure to comply with this obligation.
b. TIME FOR COMPLETION. Time is of the essence in the performance of the Work. The
Work shall be commenced on the date stated in the Distric's Notice to Proceed. The Contractor
shall complete all Work required by the Contract Documents within Eighty Seven (87) calendar
days from the commencement date stated in the Notice to Proceed. By its signature hereunder,
Contractor agrees the time for completion set forth above is adequate and reasonable to
complete the Work.
c. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the
performance of the Contract, subject to any additions or deductions as provided in the Contract
Documents, and including all applicable taxes and costs, the sum of Two Hundred Eighty Nine
Thousand Seven Hundred Fifty Dollars ($289, 750). Payment shall be made as set forth in the
General Conditions.
d. LIQUIDATED DAMAGES. In accordance with Government Code section 53069.85, it is
agreed that the Contractor will pay the City the sum set forth in Section 00 73 13, Article 1.11
for each and every calendar day of delay beyond the time prescribed in the Contract Documents
for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event
this is not paid, the Contractor agrees the City may deduct that amount from any money due or
that may become due the Contractor under the Contract. This Article does not exclude recovery
of other damages specified in the Contract Documents.
e. COMPONENT PARTS OF THE CONTRACT. The "Contract Documents" include the
following:
Notice Inviting Bids
Instructions to Bidders
Bid Form
Bid Bond
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
ATTACHMENT 3
Page 1 of 60
Public Works Contractor Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special Conditions
Technical Specifications
Addenda
Plans and Drawings
Standard Specifications for Public Works Construction "Greenbook", latest edition,
Except Sections 1-9
Applicable Local Agency Standards and Specifications, as last revised
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract
The Contractor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the
Contract Documents and not by others shall be done as if required by all. This Contract shall
supersede any prior agreement of the parties.
f. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE. Each and
every provision of law required to be included in these Contract Documents shall be deemed to
be included in these Contract Documents. The Contractor shall comply with all requirements of
applicable federal, state and local laws, rules and regulations, including, but not limited to, the
provisions of the California Labor Code and California Public Contract Code which are
applicable to this Work.
g. INDEMNIFICATION. Contractor shall provide indemnification and defense as set forth
in the General Conditions.
h. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages
in accordance with the Labor Code which such rates shall be made available at the City's
Administrative Office or may be obtained online at http://www.dir.ca.gov and which must be
posted at the job site.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
ATTACHMENT 3
Page 2 of 60
IN WITNESS WHEREOF, this Contract has been duly executed by the abov•named parties,
on the day and year above written.
=
)1-Landsca ~In~ QTY OF SAN JUAN CAPISTRANO
N eofCo ~
~ ~ ~ / . -:e=-e-n':'""ia-m-:-in-=s:-:-le-g-:el~. C=:lty:--:-M:-a-na_g_er __
Name and Title: o,..r-J Pl\:r-n c:..Rsd !J ~ 5£< .. /u:rniJ
license No. '7 ")~ 2 81 A/~ 'Z 7 Date:----------
Date: 7/12/17 j
CONTRACTOR'S SIGNATURE MUST BE
NOTARIZED AND CORPORATE
SEAL AFFIXED
Approved as to ronn this __ /_'T_"" _ ___:day of -~l...JuCc:~(...;f':..---2012
~~~ o y f()(c~n Juan Capistrano
END OF CONTRACT
ATTACHMENT 3
Page 3 of 60
Notary Acknowledgment
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF ~~O~IA ~
COUNTY o ~a_n~-
On tfu..a(., L /7 . 20_H_, before me,hMN L ver~ ~ f:t,,}i (a . Notary Public, personally
appellre{; 0, Da r1 j); f/C (j {)Yl , who proved to me on the basis of satisfactory
evidence to be the person~ whose name(&) is/afQ subscribed to the within instrument and acknowledged to
me that he/5flellhey executed the same in his/nerltheir:-authorized capacity(~es}.-and that by his/h6fl#teir:-
signature~ on the instrument the person~. ~r the entity upon behalf of which the person~ acted, executed
the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true ami -. .... _6
·~ IVONNE LOERA-KHATIB • . 1 --~ NotaryPublic-California ~ WITNESS my hand and official seal.
" ~ Los Angeles County ~ ~ -Commisslonn197353 [ ~/
• MyComm.ExplresJun11,2021J ~'t.&___j
Signature of Nolary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal end reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER
0 Individual
1&J Corporate Officer
Sec rfhqJ
QPartner(s)
0 Attorney-In-Fact
OTrustee(s)
0 Guardian/Conservator
OOther:
Signer is representing:
Tille(s)
0 Limited
0 General
Name Ot Person(s) Or Entity(ies)
sn
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Documen1
Number of Pages
Dale or Documenl
Slgner(s) Olher Than Named Above
ATTACHMENT 3
Page 4 of 60
00 72 13 -GENERAL CONDITIONS
ARTICLE 1. DEFINED TERMS
Whenever used in the Contract Documents and printed with initial capital letters, the terms listed
below will have the meanings indicated which are applicable to both the singular and plural
thereof. In addition to terms specifically defined below, terms with initial capital letters in the
Contract Documents include references to identified articles and paragraphs, and the titles of
other documents or forms.
A. Act of God -An earthquake of magnitude of 3.5 or higher on the Richter scale or a
tidal wave.
B. Addenda --Written or graphic instruments issued prior to the submission of Bids
which clarify, correct, or change the Contract Documents.
C. Additional Work --New or unforeseen work will be classified as "Additional Work"
when the City's Representative determines that it is not covered by the Contract.
D. Applicable Laws --The laws, statutes, ordinances, rules, codes, regulations, permits,
and licenses of any kind, issued by local, state or federal governmental authorities or
private authorities with jurisdiction (including utilities), to the extent they apply to the
Work.
E. Bid --The offer or proposal of a Bidder submitted on the prescribed form setting forth
the prices and other terms for the Work to be performed.
F. Bidder--The individual or entity who submits a Bid directly to the City.
G. Change Order ("CO ") --A document that authorizes an addition, deletion, or revision
in the Work or an adjustment in the Contract Price or the Contract Times, issued on
or after the Effective Date of the Contract, in accordance with the Contract
Documents and in the form contained in the Contract Documents.
H. Change Order Request ("CORU) --A request made by the Contractor for an
adjustment in the Contract Price and/or Contract Times as the result of a Contractor-
claimed change to the Work. This term may also be referred to as a Change Order
Proposal ("COP"), or Request for Change ("RFC").
I. City --The City of San Juan Capistrano.
J. City Council. Council--The City Council of the City.
K. City 's Representative--The individual or entity as identified in the Special Conditions
to act as the City's Representative.
L. Claim --A demand or assertion by the City or Contractor seeking an adjustment of
Contract Price or Contract Times, or both, or other relief with respect to the terms of
the Contract. A demand for money or services by a third party is not a Claim.
61147.02100\20950242.3 -54-00 72 13-GENERAL CONDITIONS
ATTACHMENT 3
Page 5 of 60
M. Contract--The entire integrated written agreement between the City and Contractor
concerning the Work. "Contract" may be used interchangeably with "Agreement" in
the Contract Documents. The Contract supersedes prior negotiations,
representations, or agreements, whether written or oral, and includes all Contract
Documents.
N. Contract Documents --The documents listed in Section 00 52 13, Article 5. Some
documents provided by the City to the Bidders and Contractor, including but not
limited to reports and drawings of subsurface and physical conditions are not
Contract Documents.
0. Contract Price --Amount to be paid by the City to the Contractor as full
compensation for the performance of the Contract and completion of the Work,
subject to any additions or deductions as provided in the Contract Documents, and
including all applicable taxes and costs.
P. Contract Times --The number of days or the dates stated in the Contract Documents
to: achieve defined Milestones, if any; and to complete the Work so that it is ready for
final payment.
Q. Contractor --The individual or entity with which the City has contracted for
performance of the Work.
R. Contractor's Designated On-Site Representative --The Contractor's Designated On-
Site Representative will be as identified in Section 00 72 13, Article 3 and shall not
be changed without prior written consent of the City.
S. Daily Rate --The Daily Rate stipulated in the Contract Documents as full
compensation to the Contractor due to the City's unreasonable delay to the Project
that was not contemplated by the parties.
T. Day --A calendar day of 24 hours measured from midnight to the next midnight.
U. Defective Work --Work that is unsatisfactory, faulty, or deficient; or that does not
conform to the Contract Documents; or that does not meet the requirements of any
inspection, reference standard, test, or approval referenced in the Contract
Documents.
V. Demobilization --The complete dismantling and removal by the Contractor of all of
the Contractor's temporary facilities, equipment, and personnel at the Site.
W. Drawings --That part of the Contract Documents prepared by of the Engineer of
Record which graphically shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings and other Contractor submittals are not
Drawings as so defined.
X. Effective Date of the Contract --The date indicated in the Contract on which it
becomes effective, but if no such date is indicated, it means the date on which the
Contract is signed and delivered by the last of the two parties to sign and deliver.
61147 .02100\20950242.3 -55-00 72 13-GENERAL CONDITIONS
ATTACHMENT 3
Page 6 of 60
Y. Engine e r, whenever not qualified, shall mean the Engineer of the City, acting either
directly or through properly authorized agents, such agents acting severally within
the scope of the particular duties entrusted to them. On all questions concerning the
acceptance of materials, machinery, the classifications of material, the execution of
work, conflicting interest of the contractors performing related work and the
determination of costs, the decision of the Engineer, duly authorized by the City
Council, shall be binding and final upon both parties.
Z. Engine e r of Record--The individual, partnership, corporation, joint venture, or other
legal entity named as such in Section 00 73 13, Article 1.1. or any succeeding entity
designated by the City.
AA.Green Book --The current edition of the Standard Specifications for Public Works
Construction promulgated by the Joint Cooperative Committee of the Southern
California Chapter American Public Works Association and the Southern California
Districts of the Associated General Contractors of California.
BB.Hazardous Waste--The term "Hazardous Waste" shall have the meaning provided
in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from
time to time or, as defined in Section 25117 of the Health and Safety Code, that is
required to be removed to a class I, class II, or class Ill disposal site in accordance
with provisions of existing law, whichever is more restrictive .
CC. Holi da y-The Holidays occur on :
New Year 's Day-January 1
President's Day -Third Monday in February
Memorial Day -Last Monday in May
Independence Day -July 4
Labor Day -First Monday in September
Veteran's Day -November 11
Thanksgiving Day -Fourth Thursday in November
Friday after Thanksgiving
Christmas Eve -December 24
Christmas Day -December 25
Day After Christmas -December 26
New Year's Eve-December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding
Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the
following Monday are both Holidays.
DD. Notice of Award --The written notice by the City to the Successful Bidder stating
that upon timely compliance by the Successful Bidder with the conditions precedent
listed therein, the City will sign and deliver the Contract.
EE.N otice of Completion--The form which may be executed by the City and recorded
by the county where the Project is located constituting final acceptance of the
Project.
61147 .02100\20950242.3 -56-00 72 13-GENERAL CONDITIONS
ATTACHMENT 3
Page 7 of 60
FF. Notice to Proceed--A written notice given by the City to Contractor fixing the date on
which the Contractor may proceed with the Work and when Contract Times will
commence to run.
GG. Project --The total construction of which the Work to be performed under the
Contract Documents may be the whole, or a part.
HH. Recyclable Waste Materials --Materials removed from the Site which are
required to be diverted to a recycling center rather than an area landfill. Recyclable
Waste Materials include asphalt, concrete, brick, concrete block, and rock.
II. Schedule of Submittals --A schedule, prepared and maintained by Contractor, of
required submittals and the time requirements to facilitate scheduled performance of
related construction activities.
JJ. Shop Drawings --All drawings, diagrams, illustrations, schedules, and other data or
information which are specifically prepared or assembled by or for Contractor and
submitted by Contractor to illustrate some portion of the Work.
KK.Specifications --That part of the Contract Documents consisting of written
requirements for materials, equipment, systems, standards and workmanship as
applied to the Work, and certain administrative requirements and procedural matters
applicable thereto.
LL. Stop Payment Notice --A written notice as defined in Civil Code section 8044.
MM. Subcontractor --An individual or entity other than a Contractor having a contract
with any other entity than the City for performance of any portion of the Work at the
Site.
NN . Submittal --Written and graphic information and physical samples prepared and
supplied by the Contractor demonstrating various portions of the Work.
00. Successful Bidder --The Bidder submitting a responsive Bid to whom the City
makes an award.
PP.Supplier --A manufacturer, fabricator, supplier, distributor, material man, or vendor
having a direct contract with Contractor or with any Subcontractor to furnish
materials or equipment used in the performance of the Work or to be incorporated in
the Work.
QQ. Underground Facilities --All underground pipelines, conduits, ducts, cables,
wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and
any encasements containing such facilities, including those that convey electricity,
gases, steam, liquid petroleum products, telephone or other communications, cable
television, water, wastewater, storm water, other liquids or chemicals, or traffic or
other control systems.
RR. Unit Price Work --Work to be paid for on the basis of unit prices as provided by
the Contractor in its bid or as adjusted in accordance with the Contract Documents.
61147.02100\20950242.3 -57-00 72 13 -GENERAL CONDITIONS
ATTACHMENT 3
Page 8 of 60
SS.Warranty --A written guarantee provided to the City by the Contractor that the Work
will remain free of defects and suitable for its intended use for the period required by
the Contract Documents or the longest period permitted by the law of this State,
whichever is longer.
TT. Work --The entire construction or the various separately identifiable parts thereof
required to be provided under the Contract Documents. Work includes and is the
result of performing or providing all labor, services, and documentation necessary to
produce such construction, and furnishing; installing, and incorporating all materials
and equipment into such construction, all as required by the Contract Documents.
ARTICLE 2. CONTRACT DOCUMENTS
A. Contract Documents. The Contract Documents are complementary, and what is
called for by one shall be as binding as if called for by all.
B. Interpretations. The Contract Documents are intended to be fully cooperative and
complementary. If the Contractor observes that any documents are in conflict, the
Contractor shall promptly notify the Engineer in writing. In case of conflicts between
the Contract Documents, the order of precedence shall be as follows:
1. Change Orders
2. Addenda
3. Special Conditions
4. Technical Specifications
5. Plans (Contract Drawings)
6. Contract
7. General Conditions
8. Instructions to Bidders
9. Notice Inviting Bids
10 . Contractor's Bid Forms
11. Standard Specifications for Public Works Construction (Sections 1-9 Excluded)
12. Applicable Local Agency Standards and Specifications
13. Standard Drawings
14. Reference Documents
With reference to the Drawings, the order of precedence shall be as follows :
1. Figures govern over scaled dimensions
2. Detail drawings govern over general drawings
3. Addenda or Change Order drawings govern over Contract Drawings
4. Contract Drawings govern over Standard Drawings
5. Contract Drawings govern over Shop Drawings
C. Conflicts in Contract Documents. Notwithstanding the orders of precedence
established above, in the event of conflicts, the higher standard, higher quality, and
most expensive shall always apply.
D. Organization of Contract Documents. Organization of the Contract Documents
into divisions, sections, and articles, and arrangement of drawings shall not control
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the Contractor in dividing Project Work among subcontractors or in establishing the
extent of Work to be performed by any trade.
ARTICLE 3. PRECONSTRUCTION AND CONSTRUCTION COMMUNICATION
Before any Work at the site is started, a conference attended by the City, Contractor, City's
Representative, and others as appropriate will be held to establish a working understanding
among the parties as to the Work and to discuss the schedules referred to herein, procedures
for handling Shop Drawings and other submittals, .processing Applications for Payment, and
maintaining required records.
At this conference the City and Contractor each shall designate, in writing, a specific individual
to act as its authorized representative with respect to the services and responsibilities under the
Contract. Such individuals shall have the authority to transmit instructions, receive information,
render decisions relative to the Contract, and otherwise act on behalf of each respective party.
ARTICLE 4. CONTRACT DOCUMENTS: COPIES & MAINTENANCE
Contractor will be furnished, free of charge, three (3) copies of the Contract Documents.
Additional copies may be obtained at cost of reproduction.
Contractor shall maintain a clean, undamaged set of Contract Documents, including submittals,
at the Project site.
ARTICLE 5. EXAMINATION OF DRAWINGS, SPECIFICATIONS AND SITE OF WORK
A. Examination of Contract Documents. Before commencing any portion of the
Work, Contractor shall again carefully examine all applicable Contract Documents,
the Project site, and other information given to Contractor as to materials and
methods of construction and other Project requirements . Contractor shall
immediately notify the Engineer of any potential error, inconsistency, ambiguity,
conflict, or lack of detail or explanation. If Contractor performs, permits, or causes
the performance of any Work which is in error, inconsistent or ambiguous, or not
sufficiently detailed or explained, Contractor shall bear any and all resulting costs,
including, without limitation, the cost of correction. In no case shall the Contractor or
any subcontractor proceed with Work if uncertain as to the applicable requirements.
B. Additional Instructions. After notification of any error, inconsistency, ambiguity,
conflict, or lack of detail or explanation, the Engineer will provide any required
additional instructions, by means of drawings or other written direction, necessary for
proper execution of Work.
C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the
best quality of their respective kinds and the Contractor must use all diligence to
inform itself fully as to the required construction and finish.
D. Contractor's Variation from Contract Document Requirements. If it is found that
the Contractor has varied from the requirements of the Contract Documents
including the requirement to comply with all applicable laws, ordinances, rules and
regulations, the Engineer may at any time, before or after completion of the Work,
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order the improper Work removed, remade or replaced by the Contractor at the
Contractor's expense.
ARTICLE 6. MOBILIZATION
k When a bid item is included in the Bid Fdrm for mobilization, the costs of Work in
advance of construction operations and not directly attributable to any specific bid
item will be included in the progress estimate ("Initial Mobilization "). When no bid
item is provided for "Initial Mobilization," payment for such costs will be deemed to be
included in the other items of the Work.
B. Payment for Initial Mobilization based on the lump sum provided in the Bid Form,
which shall constitute full compensation for all such Work. No payment for Initial
Mobilization will be made until all of the listed items have been completed to the
satisfaction of the Engineer. The scope of the Work included under Initial
Mobilization shall include, but shall not be limited to, the following principal items:
1. Obtaining and paying for all bonds, insurance, and permits.
2. Moving on to the Project site of all Contractor's plant and equipment required for
the first month 's operations .
3. Installing temporary construction power, wiring , and lighting facilities, as
applicable.
4 . Establishing fire protection system, as applicable .
5. Developing and installing a construction water supply, if applicable.
6. Providing and maintaining the field office trailers for the Contractor, if necessary,
and the Engineer (if specified), complete, with all specified furnishings and utility
services.
7. Providing on-site sanitary facilities and potable water facilities as specified per
Cal-OSHA and these Contract Documents.
8. Furnishing, installing, and maintaining all storage buildings or sheds required for
temporary storage of products, equipment, or materials that have not yet been
installed in the Work. All such storage shall meet manufacturer's specified
storage requirements, and the specific provisions of the specifications, including
temperature and humidity control, if recommended by the manufacturer, and for
all security.
9. Arranging for and erection of Contractor's work and storage yard.
10. Posting all OSHA required notices and establishment of safety programs per Cal-
OSHA
11 . Full-time presence of Contractor's superintendent at the job site as required
herein.
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12. Submittal of Construction Schedule as required by the Contract Documents.
ARTICLE 7. EXISTENCE OF UTILITIES AT THE WORK SITE
A. The City has endeavored to determine the existence of utilities at the Project site
from the records of the owners of known utilities in the vicinity of the Project. The
positions of these utilities as derived from such records are shown on the Plans.
B. Unless indicated otherwise on the Plans and Specifications, no excavations were
made to verify the locations shown for underground utilities. The service connections
to these utilities are not shown on the Plans. Water service connections may be
shown on the Plans showing general locations of such connections. It shall be the
responsibility of the Contractor to determine the exact location of all service
connections. The Contractor shall make its own investigations, including exploratory
excavations, to determine the locations and type of service connections, prior to
commencing Work which could result in damage to such utilities . The Contractor
shall immediately notify the City in writing of any utility discovered in a different
position than shown on the Plans or which is not shown on the Plans.
C. If applicable, all water meters, water valves, fire hydrants, electrical utility vaults,
telephone vaults, gas utility valves , and other subsurface structures shall be
relocated or adjusted to final grade by the Contractor. Locations of existing utilities
shown on the Plans are approximate and may not be complete. The Contractor shall
be responsible for coordinating its Work with all utility companies during the
construction of the Work.
D. Notwithstanding the above, pursuant to section 4215 of the Government Code, the
City has the responsibility to identify, with reasonable accuracy, main or trunkline
facilities on the plans and specifications. In the event that main or trunkline utility
facilities are not identified with reasonable accuracy in the plans and specifications
made a part of the invitation for Bids, the City shall assume the responsibility for their
timely removal, relocation, or protection.
E. Contractor, except in an emergency, shall contact the appropriate regional
notification center, Southern California Underground Service Alert at 811 or 1-
800-227-2600 or on-line at www.digalert .org at least two working days prior to
commencing any excavation if the excavation will be performed in an area which is
known, or reasonably should be known, to contain subsurface installations other than
the underground facilities owned or operated by the City, and obtain an inquiry
identification number from that · notification center. No excavation shall be
commenced or carried out by the Contractor unless such an inquiry identification
number has been assigned to the Contractor or any subcontractor of the Contractor
and the City has been given the identification number by the Contractor.
ARTICLE 8. SOILS INVESTIGATIONS
A. Reports and Drawings. The Special Conditions identify:
1. those reports known to the City of explorations and tests of subsurface conditions
at or contiguous to the site; and
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2, those drawings known to the City of physical conditions relating to existing
surface or subsurface structures at the site (except Underground Facilities) .
B. Limited Reliance by Contractor on Technical Data Authori zed. Contractor may rely
upon the accuracy of the "technical data" contained in such reports and drawings,
which were expressly not created or obtained to evaluate or assist in the evaluation
of constructability, and are not Contract Documents. Contractor shall make its own
interpretation of the "technical data" and shall be solely responsible for any such
interpretations. Except for reliance on the accuracy of such "technical data,"
Contractor may not rely upon or make any claim against the City, City's
Representative, or Engineer of Record, or any of their officers, directors, members,
partners, employees, agents, consultants, or subcontractors, with respect to:
1. the completeness of such reports and drawings for Contractor's purposes,
including without limitation any aspects of the means, methods, techniques,
sequences, and procedures of construction to be employed by Contractor, and
safety precautions and programs incident thereto; or
2. other data, interpretations, opinions, conclusions and information contained in
such reports or shown or indicated in such drawings; or
3. any Contractor interpretation of or conclusion drawn from any "technical data " or
any such other data, interpretations, opinions, or information.
ARTICLE 9. CONTRACTOR'S SUPERVISION
Contractor shall continuously keep at the Project site, a competent and experienced full-time
Project superintendent acceptable to the City. Superintendent must be able to proficiently
speak, read and write in English and shall have the authority to make decisions on behalf of the
Contractor. Contractor shall continuously provide efficient supervision of the Project.
ARTICLE 10. WORKERS
A. Contractor shall at all times enforce strict discipline and good order among its
employees. Contractor shall not employ on the Project any unfit person or any one
not skilled in the Work assigned to him or her.
B. Any person in the employ of the Contractor whom the City may deem incompetent or
unfit shall be dismissed from the Work and shall not be employed on this Project.
ARTICLE 11. INDEPENDENT CONTRACTORS
Contractor shall be an independent contractor for the City and not an employee. Contractor
understands and agrees that it and all of its employees shall not be considered officers,
· employees, or agents of City and are not entitled to benefits of any kind normally provided
employees of City, including but not limited to, state unemployment compensation or workers'
compensation . Contractor assumes full responsibility for the acts and omissions of its
employees or agents related to the Work.
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ARTICLE 12. SUBCONTRACTS
A. Contractor agrees to bind every subcontractor to the terms of the Contract
Documents as far as such terms are applicable to subcontractor's portion of the
Work. Contractor shall be as fully responsible to the City for the acts and omissions
of its subcontractors and of persons either directly or indirectly employed by its
subcontractors, as Contractor is for acts and omissions of persons directly employed
by Contractor. Nothing contained in these Contract Documents shall create any
contractual relationship between any subcontractor and the City.
B. The City reserves the right to accept all subcontractors. The City's acceptance of
any subcontractor under this Contract shall not in any way relieve Contractor of its
obligations in the Contract Documents.
C. Prior to substituting any subcontractor listed in the Bid Forms, Contractor must
comply with the requirements of the Subletting and Subcontracting Fair Practices Act
pursuant to California Public Contract Code section 4100 et seq.
ARTICLE 13. VERIFICATION OF EMPLOYMENT ELIGIBILITY
By executing this Contract, Contractor verifies that it fully complies with all requirements and
restrictions of state and federal law respecting the employment of undocumented aliens,
including, but not limited to, the Immigration Reform and Control Act of 1986, as may be
· • amended from time to time, and shall require all subcontractors, sub-subcontractors and
consultants to comply with the same. Each person executing this Contract on behalf of
Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the
following shall be grounds for the City to terminate the Contract for cause: (1) failure of the
Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the
requirements provided for in this Article; (2) any misrepresentation or material omission
concerning compliance with such requirements; or (3) failure to immediately remove from the
Work any person found not to be in compliance with such requirements.
ARTICLE 14. REQUESTS FOR SUBSTITUTION
A. For the purposes of this provision, the term "substitution" shall mean the substitution
of any material, method or service substantially equal to or better in every respect to
that indicated in the Standard Specifications or otherwise referenced herein.
B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that
is described in the Notice Inviting Bids that designates certain products, things, or
services by specific brand or trade name.
C. Unless specifically designated in the Special Conditions, whenever any material,
process, or article is indicated or specified by grade, patent, or proprietary name or
by name of manufacturer, such specifications shall be deemed to be used for the
purpose of facilitating the description of the material, process, or article desired and
shall be deemed to be followed by the words "or equal." Contractor may, unless
otherwise stated, offer for substitution any material, process, or article which may be
substantially equal to or better in every respect to that so indicated or specified in the
Contract Documents. However, the City has adopted uniform standards for certain
materials, processes, and articles.
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D. The Contractor shall submit substitution requests, together with substantiating data,
for substitution of any "or equal" material, process, or article no later than thirty-five
(35) calendar days after award of Contract. Provisions regarding submission of
substitution requests shall not in any way authorize an extension of time for the
performance of this Contract. If a substitution request is rejected by the City, the
Contractor shall provide the material, method or service specified herein . The City
shall not be responsible for any costs incurred by the Contractor associated with
substitution requests. The burden. of :proof as to the equality of any material,
process, or article shall rest with the Contractor. The Engineer has the complete and
sole discretion to determine if a material, process, or article is substantially equal to
or better than that specified and to approve or reject all substitution requests.
E. Substantiating data as described above shall include, at a minimum, the following
information:
1. A signed affidavit from the Contractor stating that the material, process, or article
proposed as a substitution is substantially equal to or better than that specified in
every way except as may be listed on the affidavit.
2. Illustrations, specifications, catalog cut sheets, and any other relevant data
required to prove that the material, process, or article is substantially equal to or
better than that specified.
3. A statement of the cost implications of the substitution being requested,
indicating whether and why the proposed substitution will reduce or increase the
amount of the contract.
4. Information detailing the durability and lifecycle costs of the proposed
substitution.
F. Failure to submit all the required substantiating data detailed above in a timely
manner so that the substitution request can be adequately reviewed may result in
rejection of the substitution request. The Engineer is not obligated to review multiple
submittals related the same substitution request resulting from the Contractor's
failure to initially submit a complete package.
G. Time limitations within this Article shall be strictly complied with and in no case will
an extension of time for completion of the contract be granted because of
Contractor's failure to provide substitution requests at the time and in the manner
described herein .
H. The Contractor shall bear the costs of all City work associated with the review of
substitution requests.
I. If substitution requests approved by the Engineer require that Contractor furnish
materials, methods or services more expensive than that specified , the increased
costs shall be borne by Contractor.·
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ARTICLE 15. SHOP DRAWINGS
A. Contractor shall check and verify all field measurements and shall submit with such
promptness as to provide adequate . time for review and cause no delay in its own
Work or in that of any other contractor, Sl.Jbcontractor, or worker on the Project, six
(6) copies of all shop drawings, calculations, schedules, and materials list, and all
other provisions required by the Contract Documents. Contractor shall sign all
submittals affirming that submittals have been reviewed and approved by Contractor
prior to submission to Engineer. Each signed submittal shall affirm that the submittal
meets all the requirements of the • Contract Documents except as specifically · and
clearly noted and listed on the transmittal letter of the submittal.
B. Contractor shall make any corrections required by the Engineer, and file with the
Engineer one copy (electronic, PDF format acceptable) each, and furnish such other
copies as may be needed for completion of the Work. Engineer's acceptance of
shop drawings shall not relieve Contractor from responsibility for deviations from the
Contract Documents unless Contractor has, in writing, called Engineer's attention to
such deviations at time of submission and has secured the Engineer's written
acceptance. Engineer's acceptance of shop drawings shall not relieve Contractor
from responsibility for errors in shop drawings.
ARTICLE 16. SUBMITTALS
A. Contractor shall furnish to the Engineer for approval, prior to purchasing or
commencing any Work, a log of all samples, material lists and certifications, mix
designs, schedules, and other submittals, as required in the Contract Documents .
The log shall indicate whether samples will be provided in accordance with other
provisions of this Contract.
B. Contractor will provide samples and submittals, together with catalogs and
supporting data required by the Engineer, to the Engineer within a reasonable time
period to provide for adequate review and avoid delays in the Work.
C. These requirements shall not authorize any extension of time for performance of this
Contract. Engineer will check and approve such samples, but only for conformance
with design concept of work and for compliance with information given in the
Contract Documents. Work shall be in accordance with approved samples and
submittals.
ARTICLE 17. MATERIALS
A. Except as otherwise specifically stated in the Contract Documents, Contractor shall
provide and pay for all materials, labor, tools, equipment, lights, power,
transportation, superintendence, temporary constructions of every nature, and all
other services and facilities of every nature whatsoever necessary to execute and
complete this Contract within specified time.
B. Unless otherwise specified, all materials shall be new and the best of their respective
kinds and grades as noted and/or specified, and workmanship shall be of good
quality.
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C. Materials shall be furnished in ample quantities and at such times as to ensure
uninterrupted progress of the Work and shall be stored properly and protected as
required by the Contract Documents. Contractor shall be entirely responsible for
damage or loss by weather or other causes to materials or Work.
D. No materials, supplies, or equipment for Work under this Contract shall be
purchased subject to any chattel mortgage or under a conditional sale or other
agreement by which an interest therein or in any part thereof is retained by the seller
or supplier. Contractor warrants good title to all material, supplies, and ,equipment
installed or incorporated in the Work and agrees upon completion of all work to
deliver the Project, to the City free from any claims, liens, or charges.
E. Materials shall be stored on the Project site in such manner so as not to interfere
with any operations of the City or any independent contractor.
F. Contractor shall verify all measurements, dimensions, elevations, and quantities
before ordering any materials or perfotming any Work, and the City shall not be liable
for Contractor's failure to so : No additional compensation, over and above payment
for the actual quantities at the prices set out in the Bid Form, will be allowed because
of differences between actual measurements, dimension, elevations and quantities
and those indicated on the Plans and in the Specifications. Any difference therein
shall be submitted to the Engineer for consideration before proceeding with .the
Work.
ARTICLE 18. PERMITS AND LICENSES
A. City will apply and pay for the review of necessary encroachment permits for Work
within the public rights-of-way. Contractor shall obtain all other necessary permits
and licenses for the construction of the Project, including encroachment permits, and
shall pay all fees required by law and ·shall comply with all laws, ordinances, rules
and regulations relating to the Work and . to the preservation of public health and
safety. Before acceptance of the Project, the Contractor shall submit all licenses,
permits, certificates of inspection and required approvals to the City.
B. The Bid Form contains an allowance for the Contractor's cost of acquiring traffic
control permits and for construction inspection fees that may be charged to the
Contractor by the Agency of Jurisdiction. The allowance is included within .the Bid
Form to eliminate the need by bidders to research or estimate the costs of traffic
control permits and construction inspection fees prior to submitting a bid. The
allowance is specifically intended to account for the costs of traffic control permits
and construction inspection fees charged by the local Agency of Jurisdiction only.
No other costs payable by Contractor to the Agency of Jurisdiction are included
within the allowance. Payment by City to Contractor under the Permit and Inspection
Allowance Bid Item shall be made based on actual cost receipts only and in
accordance with the provisions of these specifications.
ARTICLE 19. TRENCHES
A. Trenches Five Feet or More in Depth. Contractor shall submit to the Engineer at
the preconstruction meeting, a detailed plan showing the design of shoring, bracing,
sloping or other provisions to be made for worker protection from hazards of caving
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ground during the excavation of any trench or trenches five feet or more in depth : If
such plan varies from shoring system standards established by the Construction
Safety Orders of the ,,california Code of Regulations, Department of Industrial
Relations, the plan shall be prepared by a California registered civil or structural
engineer. The plan shall not be less effective than the shoring, bracing, sloping, or
other provisions of the Construction Safety Orders, as defined in the California Code
of Regulations. The Contractor shall designate in writing the "competent person" as
defined in Title 8, California Code -of Regulations, who shall be present at the Work
Site each day that trenching/excavation is in progress. The "competent person" shall
prepare and provide daily trenching/excavation inspection reports to the Engineer.
Contractor shall also submit a copy of its annual California Occupational Safety ·and
Health Administration (Gal/OSHA) trench/excavation permit.
B. Excavations Deeper than Four Feet. If the Work involves excavating trenches or
other excavations that extend deeper than four feet below the surface, Contractor
shall promptly, and before the excavation is further disturbed, notify the City in writing
of any of the following conditions:
1. Material that the Contractor believes may be material that is hazardous waste, as
defined in section 25117 of the Health and Safety Code, that is required to be
removed to a Class I, Class II, or Class Ill disposal site in accordance with
provisions of existing law.
2. Subsurface or latent physical conditions at the site differing from those indicated.
3. Unknown physical conditions at the site of any unusual nature, different
materially from those ordinarily encountered and generally recognized as
inherent in work of the character provided for in the Contract
The City shall promptly investigate the conditions, and if it finds that the conditions do
so materially differ, or do involve hazardous waste , and cause a decrease or
increase in Contractor's cost of, or the time required for, performance of any part of
the Work, shall issue a change order under the procedures described in the Contract
Documents.
In the event that a dispute arises between the City and the Contractor as to whether
the conditions materially differ, or involve hazardous waste, or cause a decrease or
increase in the Contractor's cost of, or time required for, performance of any part of
the Work~ the Contractor shall not be excused from any scheduled completion date
provided for by the Contract, but shall proceed with all Work to be performed under
the Contract. Contractor shall retain any and all rights provided either by contract or
by law which pertain to the resolution of disputes and protests between the parties.
ARTICLE 20. TRAFFIC CONTROL
A. Traffic control plan(s) for the Work may be required by the Agency(s) of Jurisdiction.
Traffic control plans, if required, shall be prepared at Contractor's expense, and
traffic control shall be performed at Contractor's expense in accordance with the
requirements of the Agency(s) of Jurisdiction. The Permit and Inspection Allowance
included within the Bid Form includes the cost of required encroachment permit(s)
and construction inspection by the Agency(s) of Jurisdiction only. The Permit and
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Inspection Allowance does not include costs for preparation of any required traffic
control plans, implementation of any traffic control requirements or for any traffic
signal services that may be required. Costs for traffic control plans, implementation
of traffic control, or traffic signal services required by the Agency(s) of Jurisdiction
shall be included in the Contractor's Bid .
B. All warning signs and safety devices used by the Contractor to perform the Work ·
shall conform to the requirements contained in the State of California, Department of
Transportation's current edition of "Manual of Traffic Controls for Construction and
Maintenance Work Zones" or to the requirements of the local agency. The Contractor
shall also be responsible for all traffic control required by the agency having
jurisdiction over the project on the intersecting streets. Contractor must submit a
traffic control plan to the agency having jurisdiction over the project for approval prior
to starting work.
C. The Contractor's representative on the site responsible for traffic control shall
produce evidence that he/she has completed training acceptable to the California
Department of Transportation for safety through construction zones. All of the streets
in which the Work will occur shall remain open to traffic and one lane of traffic
maintained at all times unless otherwise directed by the agency of jurisdiction.
Businesses and residences adjacent to the Work shall be notified forty-eight (48)
hours in advance of closing of driveways. The Contractor shall make every effort to
minimize the amount of public parking temporarily eliminated due to construction in
areas fronting businesses. No stockpiles of pipe or other material will be allowed in
traveled right-of-ways after working hours unless otherwise approved by the
Engineer.
ARTICLE 21. DIVERSION OF RECYCLABLE WASTE MATERIALS
In compliance with the applicable City's waste reduction and recycling efforts, Contractor shall
divert all Recyclable Waste Materials to appropriate recycling centers as required for
compliance with the local jurisdiction's waste diversion ordinances. Contractor will be required
to submit weight tickets and written proof of diversion with its monthly progress payment
requests. Contractor shall complete and execute any certification forms required by City or
other applicable agencies to document Contractor's compliance with these diversion
requirements. All costs incurred for these waste diversion efforts shall be the responsibility of
the Contractor.
ARTICLE 22. REMOVAL OF HAZARDOUS MATERIALS
Should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB)
or other toxic wastes and hazardous materials which have not been rendered harmless at the
Project site , the Contractor shall immediately stop work at the affected Project site and shall
report the condition to the City in writing. The City shall contract for any services required to
directly remove and/or abate PCBs and other toxic wastes and hazardous materials, if required
by the Project site(s), and shall not require the Contractor to subcontract for such services. The
Work in the affected area shall not thereafter be resumed except by written agreement of the
City and Contractor.
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ARTICLE 23. SANITARY FACILITIES
Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the
use of all workers. All toilets and hand washing facilities shall comply with local codes. and
ordinances. Toilets shall be kept supplied with toilet paper and shall have workable door
fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and
shall be present in a quantity· of not less than 1 per 20 workers as required by Gal/OSHA
regulations. The toilets and hand washing facilities shall be maintained iri a sanitary condition at
all times. Use of toilet and hand washing facilities in the Work under construction shall not be
permitted. Any other Sanitary Facilities required by Gal/OSHA shall be the responsibility of the
Contractor.
ARTICLE 24. AIR POLLUTION CONTROL
Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes,
·including, but not limited to, those required by the South Coast Air Quality Management District.
All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to
indicate that the contents fully comply with the applicable material requirements.
ARTICLE 25. LAYOUT AND FIELD ENGINEERING
All field engineering required for laying out the Work and establishing grades for earthwork
operations shall be furnished by the Contractor at its expense.
ARTICLE 26. TESTS AND INSPECTIONS
A. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or
public authority requires any part of the Work to be tested or Approved, Contractor
shall provide the Engineer at least two (2) working days' notice of its readiness for
observation or inspection. If inspection is by a public authority other, than the City,
Contractor shall_ promptly inform t .he City of the date fixed for such inspection.
Required certificates of inspection (or sirnilar.) shall be secured by Contractor. Costs
for City testing and City inspection shall be paid by the City. Costs of tests for Work
found not to be in compliance . ~hall be p~id by the Contractor.
B. If any Work is done or covered up without the required testing or: approval, the
Contractor shall uncover or deconstruct the Work, and the Work shall be redone after
completion of the testing at the Contractor's cost in compliance with the Contract
Documents .
C. Where inspection and testing, are to be conducted by an independent laboratory or
agency, materials or samples of materials to be inspected or tested shall be selected
by such laboratory or agency, or by the City, and not by Contractor. All tests or
inspections of materials shall be made in accordance with the commonly recognized
standards of national organizations.
D. In advance of manufacture of materials to be supplied by Contr~ctor which must be
tested or inspected, Contractor shall notify the City so that the City may arrange for
testing at the source of supply. Any materials which have not satisfactorily passed
such testing and inspection shall not be incorporated into the Work.
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...
C I
E. If the manufacture of materials to be inspected or tested will occur in a plant or
location greater than sixty (60) miles from the City, the Contractor shall pay for any
excessive or unusual costs associated with such testing or inspection, including but
not limited to excessive travel time, standby time and required lodging.
F. Reexamination of Work may be ordered by the City. If so ordered, Work m~:.~st be
uncovered or deconstructed by Contractor. If Work is found to be in accordance with
the Contract Documents, the City shall pay the costs of reexamination and '
reconstruction. If such work is found not to be in accordance with the Contract
Documents, Contractor shall pay all costs.
ARTICLE 27. PROTECTION OF WORK AND PROPERTY
A. The Contractor shall be responsible for all damages to persons or property that
occurs as a result of the Work. Contractor shall be responsible for the proper care
and protection of all materials delivered and Work performed ;until completion and
final Acceptance by the City. All Work shall be solely at the Contractor's risk .
Contractor shall adequately protect adjacent property from settlement or loss of
lateral support as necessary. Contractor shall comply with all applicable safety laws
and building codes to prevent accidents or injury to persons on, about, ,or adjacent to
the Project site where Work is being performed. Contractor shall erect and properly
maintain at all times, as required :by field conditions and progress of work, all ·
necessary safeguards, signs~ barriers, lights, and watchmen for protection of workers
and the public, and shall post danger signs warning against hazards created in the
course of construction. · ·
B. In an emergency affecting safety of life or of work or of adjoining property,
Contractor, without special instruction or authorization from the Engineer, is hereby
permitted to act to prevent such threatened loss or injury; and Contractor shall so
act, without appeal, if so authorized or instructed by the Engineer or the City. Any
compensation claimed by Contractor on account of emergency work shall be
determined by and agreed upon by the City and the Contractor.
ARTICLE 28. CONTRACTOR'S MEANS AND METHODS
Contractor is solely responsible for the means and methods utilized to perform the Work. In no ·
case shall the Contractor's means and methods deviate from commonly used 'industry
standards. . .
ARTICLE 29. AUTHORIZED REPRESENTATIVES
The City shall designate representatives, who shall have the right to be present at the Project
site at all times. The City may designate an inspector who shall have the right to observe all of
the Contractor's Work . The inspector shall not be responsible for the Contractor's failure to
carry out the Work in accordance with the Contract Documents. Contractor shall provide safe
and proper facilities for such access.
ARTICLE 30. HOURS OF WORK
A. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2
of the Labor Code, Contractor stipulates that eight (8) hours of labor shall constitute
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·,
a legal day's work . The time of service of any worker employed at any time by the
Contractor or by any subcontractor on any subcontract under this Contract upon the
Work or upon any part of the Work contemplated by this Contract is limited and
restricted to eight (8) hours during any one calendar day and 40 hours during any
one calendar week, except as hereinafter provided. Notwithstanding the provisions
herein above set forth, work performed by employees of Contractor in excess of
eight (8) hours per day, and 40 hours during any one week, shall be permitted upon
this public work upon compensation for all hours worked in excess of eight (8) hours
per day at not less than one and one-half times the basic rate of pay.
B. The Contractor and every subcontractor shall keep an accurate record showing the
name of and actual hours worked each calendar day and each calendar week by
each worker employed in connection with the Work or any part of the Work
contemplated by this Contract. The record shall be kept open at all reasonable
hours to the inspection of the City and to the Division of Labor Law Enforcement,
Department of Industrial Relations of the State of California.
C. The Contractor shall pay to the City a penalty of twenty-five dollars ($25.00) for each
worker employed in the execution of this Contract by the Contractor or by any
subcontractor for each calendar day during which such worker is required or
permitted to work more than eight (8) hours in any calendar day and 40 hours in any
one calendar week in violation of the provisions of Article 3 (commencing at section
181 0), Chapter 1, Part 7, Division 2 of the Labor Code.
D. Any work necessary to be performed after regular working hours, or on Saturdays
and Sundays or other holidays, shall be performed without additional expense to the
City.
E. City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m.·
Monday through Friday. Inspection before or after this time will be charged to the
Contractor as reimbursable inspection time. Inspections on weekends requires two
days' notice for review and approvaL Upon written request and approval the 8.5 hour
working day may be changed to other limits subject to city/county ordinance.
F. It shall be unlawful for any person to operate, permit, use, or cause to operate any of
the following at the Project site, other than between the hours of 7:00 a.m. to 5:00
p.m., Monday through Friday, with no Work allowed on the City-observed holidays,
unless otherwise approved by the City:
1. Powered Vehicles
2. Construction Equipment'
3. Loading and Unloading Vehicles
4. Domestic Power Tools
ARTICLE 31. PAYROLL RECORDS
A. Pursuant to Labor Code section 1776, Contractor and all subcontractors shall
maintain weekly certified payroll records, showing the names, addresses, Social
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Security numbers, work classifications, 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 them in connection with the
Work under this Contract. Contractor shall certify under penalty of perjury · that
records maintained and submitted by Contractor are true and accurate. Contractor
shall also require subcontractor(s) to certify weekly payroll records under penalty ·Of
perjury.
B. In accordance with Labor · Code section 1771.4, the Contractor and .each
subcontractor shall furnish the certified payroll records directly to the Department of
Industrial Relations ("DIR") on the specified interval and format prescrib'ed by the
DIR, which may include electronic submission. Contractor shall comply with all
requirements and regulations from the DIR relating to labor compliance monitoring
and enforcement.
C. The payroll records described herein shall be certified and submitted by the
Contractor at a time designated by the City . The Contractor shall also provide the
following:
1. A certified copy of the employee's payroll records shall be made available for
inspection or furnished to such employee or his or her authorized representative
on request.
2. A certified copy of all payroll records described herein shall be made available for
inspection or furnished upon request of the DIR.
D. Unless submitted electronically, the certified payroll records shall be· on forms
provided by the Division of Labor Standards Enforcement ("DLSE") of the DIR or
shall contain the same information as the forms provided by the DLSE.
E. Any copy of record .s made available for inspection as copies and furnished upon ·
request to . the public or any public agency, the City, the Division of Apprenticeship
Standards or the Division of Labor Standards Enforcement shall be marked or
obliterated in such a manner as to prevent disclosure of an individual's name,
address :and social security number. The name and address of the Contractor
awarded the Contract or performing the contract shall not be marked or obliterated.·
F. In the event of noncompliance with the requirements of this Article, the Contractor
shall have ten (10) calendar days in which to comply subsequent to receipt of written
notice specifying in what respects the Contractor must comply with this Article.
Should noncompliance still be evident after such 1 0-day period, the Contractor shall
pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or
portion thereof, for each worker, until strict compliance is effectuated. Upon the
request of the Division of Apprenticeship Standards or the Division of Labor
Standards Enforcement, such penalties shall be withheld from progress payment
then due.
G. The responsibility for compliance with this Article shall rest upon the Contractor .
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ARTICLE 32. PREVAILING RATES OF WAGES
A. The Contractor is aware of the requirements of Labor Code sections 1720 et seq.
and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et
seq. ("Prevailing Wage Laws"), which require the payment of prevailing wage rates
and the performance of other requirements on certain "public workS" and
"maintenance" projects. Since this Project involves an applicable "public works" or
"maintenance" project, as defined by the Prevailing Wage Laws, and since the total
compensation is $1 ;000 or more, Contractor agrees to fully comply with such
Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of
per diem wages at the commencement of this Contract from the website of the
Division of Labor Statistics and Research of the Department of Industrial Relations
located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the
prevailing rate of per diem wages which are on file at the City's Administration Office
and shall be made available to interested parties upon request. Contractor shall
make copies of the prevailing rates of per diem wages for each craft, classification,
or type of worker needed to perform work on the Project available to interested
parties upon request, and shall post copies at the Contractor's principal place of
business and at the Project site. Contractor shall defend, indemnify and hold the
City, its officials, officers, employees and authorized volunteers free and harmless
from any claims; liabilities, costs, penalties or interest arising out of any failure or
allege failure to comply with the Prevailing Wage Laws.
B. The Contractor shall forfeit as a penalty to the City not more than Two Hundred
Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or
portion thereof, for each worker paid less than the prevailing wage rate as
determined by the Director of the Department of Industrial Relations for such work or
craft in which such worker is employed for any public work done under the Contract
by it or by any subcontractor under it. The difference between such prevailing wage
rate and the amount paid to each worker for each calendar day or portion thereof, for
which each worker was paid less than the prevailing wage rate, shall be paid to each
worker by the Contractor.
C. Contractor shall post, at appropriate conspicuous points on the Project site, a
schedule showing all determined general prevailing wage rates and all authorized
deductions, if any, from unpaid wages actually earned .
ARTICLE 33. PUBLIC WORKS CONTRACTOR REGISTRATION
Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its subcontractors
must be registered with the Department of Industrial Relations prior to the execution of a
contract to perform public works. By entering into this Contract, Contractor represents that it is
aware of the registration requirement and is currently registered with the DIR. Contractor shall
maintain a current registration for the duration of the Project. Contractor shall further include the
requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all
subcontractors are registered at the time this Contract is entered into and maintain registration
for the duration of the Project.
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ARTICLE 34. EMPLOYMENT OF APPRENTICES
A. Contractor and all subcontractors shall comply with the requirements of Labor Code
sections 1777.5 and 1777.6 in the employment of apprentices.
B. Information relative to apprenticeship standards, wage schedules, and other
requirements may be obtained from the Director of Industrial Relations, ex officio the
Administrator of Apprenticeship, San Francisco, California, or from the Division of
Apprenticeship Standards and its branch offices.
C. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed
one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to
Labor Code section 1777.7.
D. The responsibility for compliance with this Article shall rest upon the Contractor.
ARTICLE 35. NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY
Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and
its subcontractors shall not discriminate against any employee or applicant for employment
because of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, sexual orientation, or any other
classifications protected by law on this Project. The Contractor will take affirmative action to
insure that employees are treated during employment or training without regard to their race,
religious creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, or any other classifications protected by
law.
Employment Eligibility; Contractor. By executing this Contract, Contractor verifies that it fully
complies with all requirements and restrictions of state and federal law respecting the
employment of undocumented aliens, including, but not limited to, the Immigration Reform and
Control Act of 1986, as may be amended from time to time. Such requirements and restrictions
include, but are not limited to, examination and retention of documentation confirming the
identity and immigration status of each employee of the Contractor. Contractor also verifies that
it has not committed a violation of any such law within the five (5) years immediately preceding
the date of execution of this Contract, and shall not violate any such law at any time during the
term of the Contract. Contractor shall avoid any violation of any such law during the term of this
Contract by participating in an electronic verification of work authorization program operated by
the United States Department of Homeland Security, by participating in an equivalent federal
work authorization program operated by the United States Department of Homeland Security to
verify information of newly hired employees, or by some other legally acceptable method.
Contractor shall maintain records of each such verification, and shall make them available to the
City or its representatives for inspection and copy at any time during normal business hours.
The City shall not be responsible for any costs or expenses related to Contractor's compliance
with the requirements provided for or referred to herein.
Employment Eligibility; Subcontractors. Sub-subcontractors and Consultants. To the same
extent and under the same conditions as Contractor, Contractor shall require all of its
subcontractors, sub-subcontractors and consultants performing any part of the Work or of this
Contract to make the same verifications and comply with all requirements and restrictions
provided for herein.
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Em ployme nt Eli g ib ility ; Fail ure to Comply. Each person executing this Contract on behalf of
Contractor verifies that he or she is a duly authorized officer of Contractor, and understands that
any of the following shall be grounds for the City to terminate the Contract for cause: ( 1) failure
of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the
requirements provided for herein ; (2) any misrepresentation or material omission concerning
compliance with such requirements; or (3) failure to immediately remove from the Work any
person found not to be in compliance with such requirements.
ARTICLE 36. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS
Contractors or subcontractors may not perform work on a public works project with a
subcontractor who is ineligible to perform work on a public project pursuant to Labor Code
section 1777.1 or 1777.7. Any contract on a public works project entered into between a
contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor
may not receive any public money for performing work as a subcontractor on a public works
contract. Any public money that is paid, or may have been paid to a debarred subcontractor by
a contractor on the project shall be returned to the City. The Contractor shall be responsible for
the payment of wages to workers of a debarred subcontractor who has been allowed to work on
the project.
ARTICLE 37. LABOR/EMPLOYMENT SAFETY
The Contractor shall comply with all applicable laws and regulations of the federal, state, and
local government, including Gal/OSHA requirements and requirements for verification of
employees ' legal right to work in the United States.
The Contractor shall maintain emergency first aid treatment for his employees which complies
with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and
California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial
Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical
services for its employees in accordance with California Code of Regulations, Title 8, Section
1512.
The Contractor shall submit the Illness and Injury Prevention Program and a Project site specific
safety program to the City prior to beginning Work at the Project site. Contractor shall maintain
a confined space program that meets or exceeds the City Standards. Contractor shall adhere to
the City's lock out tag out program.
ARTICLE 38. INSURANCE
The Contractor shall obtain , and at all times during performance of the Work of Contract,
maintain all of the insurance described in this Article. Contractor shall not commence Work
under this Contract until it has provided evidence satisfactory to the City that it has secured all
insurance required hereunder. Contractor shall not allow any subcontractor to commence work
on any subcontract until it has provided evidence satisfactory to the City that the subcontractor
has secured all insurance required under this Article. Failure to provide and maintain all
required insurance shall be grounds for the City to terminate this Contract for cause. Contractor
shall furnish City with original certificates of insurance and endorsements effective coverage
required by this Contract on forms satisfactory to the City. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
61147.02100\20950242.3 -75-00 72 13 -GENERAL CONDITIONS
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coverage on its behalf, and shall be on forms acceptable to the City. All certificates and
endorsements must be received and approved by the City before Work commences.
A. Additional Insureds; Waiver of Subrogation. The City, its officials, officers,
employees, agents and authorized volunteers shall be named as Additional Insureds
on Contractor's All Risk policy and on Contractor's and its subcontractors' policies of
Commercial General Liability and Automobile Liability insurance using, for
Contractor's policy/ies of Commercial General Liability insurance, ISO CG forms 20
10 and 20 37 (or endorsements providing the exact same coverage, including
completed operations), and, for subcontractors' policies of Commercial General
Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same
coverage). Notwithstanding the minimum limits set forth in this Contract for any type
of insurance coverage, all available insurance proceeds in excess of the specified
minimum limits of coverage shall be available to the parties required to be named as
Additional Insureds hereunder. Contractor and its insurance carriers shall provide a
Waiver of Subrogation in favor of those parties.
B. Workers' Compensation Insurance. The Contractor shall provide workers'
compensation insurance for all of the employees engaged in Work under this
Contract, on or at the Site, and, in case of any sublet Work, the Contractor shall
require the subcontractor similarly to provide workers' compensation insurance for all
the latter's employees as prescribed by State law. Any class of employee or
employees not covered by a subcontractor's insurance shall be covered by the
Contractor's insurance. In case any class of employees engaged in work under this
Contract, on or at the Site, is not protected under the Workers' Compensation
Statutes, the Contractor shall provide or shall cause a subcontractor to provide,
adequate insurance coverage for the protection of such employees not otherwise
protected. The Contractor is required to secure payment of compensation to his
employees in accordance with the provisions of section 3700 of the Labor Code.
The Contractor shall file with the City certificates of his insurance protecting workers.
Company or companies providing insurance coverage shall be acceptable to the
City, if in the form and coverage as set forth in the Contract Documents.
C. Employer's Liability Insurance. Contractor shall provide Employer's Liability
Insurance, including Occupational Disease, in the amount of at least one million
dollars ($1 ,000,000.00) per person per accident. Contractor shall provide City with a
certificate of Employer's Liability Insurance. Such insurance shall comply with the
provisions of the Contract Documents. The policy shall be endorsed, if applicable, to
provide a Borrowed ServanUAiternate Employer Endorsement and contain a Waiver
of Subrogation in favor of the City.
D. Commercial General Liability Insurance . Contractor shall provide "occurrence"
form Commercial General Liability insurance coverage at least as broad as the most
current ISO CGL Form 00 01, including but not limited to, premises liability,
contractual liability, products/completed operations, personal and advertising injury
which may arise from or out of Contractor's operations, use, and management of the
Site, or the performance of its obligations hereunder. The policy shall not contain
any exclusion contrary to this Contract including but not limited to endorsements or
provisions limiting coverage for (1) contractual liability (including but not limited to
ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured
against another. Policy limits shall not be less than $2,000,000 per occurrence for
61147 .02100\20950242.3 -76-00 72 13-GENERAL CONDITIONS
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bodily injury, personal injury and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this project/location or the general aggregate
limit shall be twice the required occurrence limit. Defense costs shall be paid in
addition to the limits.
1. Such policy shall comply with all the requirements of this Article. The limits set
forth herein shall apply separately to each insured against whom claims are
made or suits are brought, except with respect to the limits of liability. Further the
limits set forth herein shall not be construed to relieve the Contractor from liability
in excess of such coverage, nor shall it limit Contractor's indemnification
obligations to the City, and shall not preclude the City from taking such other
actions available to the City under other provisions of the Contract Documents or
law.
2. All general liability policies provided pursuant to the provisions of this Article shall
comply with the provisions of the Contract Documents.
3. All general liability policies shall be written to apply to all bodily injury, including
death, property damage, personal injury, owned and non-owned equipment,
blanket contractual liability, completed operations liability, explosion, collapse,
under-ground excavation, removal of lateral support, and other covered loss,
however occasioned, occurring during the policy term, and shall specifically
insure the performance by Contractor of that part of the indemnification contained
in these General Conditions relating to liability for injury to or death of persons
and damage to property.
4. If the coverage contains one or more aggregate limits, a minimum of 50% of any
such aggregate limit must remain available at all times; if over 50% of any
aggregate limit has been paid or reserved, the City may require additional
coverage to be purchased by Contractor to restore the required limits. Contractor
may combine primary, umbrella, and as broad as possible excess liability
coverage to achieve the total limits indicated above. Any umbrella or excess
liability policy shall include the additional insured endorsement described in the
Contract Documents.
5. All policies of general liability insurance shall permit and Contractor does hereby
waive any right of subrogation which any insurer of Contractor may acquire from
Contractor by virtue of the payment of any loss.
E. Automobile Liability Insurance. Contractor shall provide "occurrence" form
Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the
amount of, at least, one million dollars ($1,000,000) per accident for bodily injury and
property damage. Such insurance shall provide coverage with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by Contractor or for which Contractor is responsible, in a
form and with insurance companies acceptable to the City. All policies of automobile
insurance shall permit and Contractor does hereby waive any right of subrogation
which any insurer of Contractor may acquire from Contractor by virtue of the
payment of any loss.
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F. Contractor shall require all tiers of sub-contractors working under this Contract to
provide the insurance required under this Article unless otherwise agreed to in
writing by City. Contractor shall make certain that any and all subcontractors hired
by Contractor are insured in accordance with this Contract. If any subcontractor's
coverage does not comply with the foregoing provisions, Contractor shall indemnify
and hold the City harmless from any damage, loss, cost, or expense, including
attorneys' fees, incurred by the City as a result thereof.
ARTICLE 39. FORM AND PROOF OF CARRIAGE OF INSURANCE
A. Any insurance carrier providing insurance coverage required by the Contract
Documents shall be admitted to and authorized to do business in the State of
California unless waived, in writing, by the City's Risk Manager. Carrier(s) shall have
an A.M. Best rating of not less than an A:VII. Insurance deductibles or self-insured
retentions must be declared by the Contractor. At the election of the City the
Contractor shall either 1) reduce or eliminate such deductibles or self-insured
retentions, or 2) procure a bond which guarantees payment of losses and related
investigations, claims administration, and defense costs and expenses. If umbrella
or excess liability coverage is used to meet any required limit(s) specified herein, the
Contractor shall provide a "follow form" endorsement satisfactory to the City
indicating that such coverage is subject to the same terms and conditions as the
underlying liability policy.
B. Each insurance policy required by this Contract shall be endorsed to state that: ( 1)
coverage shall not be suspended, voided, reduced or cancelled except after thirty
(30) days prior written notice by certified mail, return receipt requested, has been
given to the City; and (2) any failure to comply with reporting or other provisions of
the policies, including breaches of warranties, shall not affect coverage provided to
the City, its officials, officers, agents, employees, and volunteers.
C. The Certificates(s) and policies of insurance shall contain or shall be endorsed to
contain the covenant of the insurance carrier(s) that it shall provide no less than thirty
(30) days written notice be given to the City prior to any material modification or
cancellation of such insurance. In the event of a material modification or cancellation
of coverage, the City may terminate the Contract or stop the Work in accordance
with the Contract Documents, unless the City receives, prior to such effective date,
another properly executed original Certificate of Insurance and original copies of
endorsements or certified original policies, including all endorsements and
attachments thereto evidencing coverage's set forth herein and the insurance
required herein is in full force and effect. Contractor shall not take possession, or
use the Site, or commence operations under this Contract until the City has been
furnished original Certificate(s) of Insurance and certified original copies of
endorsements or policies of insurance including all endorsements and any and all
other attachments as required in this Article. The original endorsements for each
policy and the Certificate of Insurance shall be signed by an individual authorized by
the insurance carrier to do so on its behalf.
D. The Certificate(s) of Insurance, policies and endorsements shall so covenant and
shall be construed as primary, and the City's insurance and/or deductibles and/or
self-insured retentions or self-insured programs shall not be construed as
contributory.
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E. City reserves the right to adjust the monetary limits of insurance coverages during
the term of this Contract including any extension thereof if, in the City's reasonable
judgment, the amount or type of insurance carried by the Contractor becomes
inadequate.
F. Contractor shall report to the City, in addition to the Contractor's insurer, any and all
insurance claims submitted by the Contractor in connection with the Work under this
Contract.
ARTICLE 40. TIME FOR COMPLETION AND LIQUIDATED DAMAGES
A. Time for Completion/Liquidated Damages. Time is of .the essence in the
completion of the Work. Work shall be commenced within ten (10) Days of the date
stated in the City's Notice to Proceed and shall be completed by Contractor in the
time specified in the Contract Documents. The City is under no obligation to
consider early completion of the Project; and the Contract completion date shall not
be amended by the City's receipt or acceptance of the Contractor's proposed earlier
completion date. Furthermore, Contractor shall not, under any circumstances,
receive additional compensation from the City (including but not limited to indirect,
general, administrative or other forms of overhead costs) for the period between the
time of earlier completion proposed by the Contractor and the Contract completion
date. If the Work is not completed as stated in the Contract Documents, it is
understood that the City will suffer damage. In accordance with Government Code
section 53069.85, being impractical and infeasible to determine the amount of actual
damage, it is agreed that Contractor shall pay to the City as fixed and liquidated
damages, and not as a penalty, the sum stipulated in the Contract for each calendar
day of delay until the Work is fully completed. Contractor and its surety shall be liable
for any liquidated damages. Any money due or to become due the Contractor may
be retained to cover liquidated damages.
B. Inclement Weather. Contractor shall abide by the Engineer's determination of what
constitutes inclement weather. Time extensions for inclement weather shall only be
granted when the Work stopped during inclement weather is on the critical path of
the Project schedule.
C. Extension of Time. Contractor shall not be charged liquidated damages because of
any delays in completion of the Work due to unforeseeable causes beyond the
control and without the fault or negligence of Contractor (or its subcontractors or
suppliers). Contractor shall within five (5) Days of identifying any such delay notify
the City in writing of causes of delay. The City shall ascertain the facts and extent of
delay and grant extension of time for completing the Work when, in its judgment, the
facts justify such an extension. Time extensions to the Project shall be requested by
the Contractor as they occur and without delay. No delay claims shall be permitted
unless the event or occurrence delays the completion of the Project beyond the
Contract completion date.
D. No Damages for Reasonable Delay. The City's liability to Contractor for delays for
which the City is responsible shall be limited to only an extension of time unless such
delays were unreasonable under the circumstances. In no case shall the City be
liable for any costs which are borne by the Contractor in the regular course of
business, including, but not limited to, home office overhead and other ongoing
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costs. Damages caused by unreasonable City delay, including delays caused by
items that are the responsibility of the City pursuant to Government Code section
4215, shall be based on actual costs only, no proportions or formulas shall be used
to calculate any delay damages.
ARTICLE 41. COST BREAKDOWN AND PERIODIC ESTIMATES
Contractor shall furnish on forms Approved by the City:
A. Within ten (1 0) Days of Notice to Proceed with the Contract, a detailed estimate
giving a complete breakdown of the Contract price, if the Contract amount is a lump
sum.
B. A monthly itemized estimate of Work done for the purpose of making progress
payments. In order for the City to consider and evaluate each progress payment
application, the Contractor shall submit a detailed measurement of Work performed
and a progress estimate of the value thereof before the tenth (10th) Day of the
following month.
C. Contractor shall submit, with each of its payment requests, an adjusted list of actual
quantities, verified by the Engineer, for unit price items listed, if any, in the Bid Form.
D. Following the City's Acceptance of the Work, the Contractor shall submit to the City a
written statement of the final quantities of unit price items for inclusion in the final
payment request.
E. The City shall have the right to adjust any estimate of quantity and to subsequently
correct any error made in any estimate for payment.
Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates
accurately reflect the Work on the Project. -
ARTICLE 42. PROGRESS ESTIMATES AND PAYMENT
A. By the tenth (10th} Day of the following calendar month, Contractor shall submit to
Engineer a payment request which shall set forth in detail the value of the Work done
for the period beginning with the date work was first commenced and ending on the
end of the calendar month for which the payment request is prepared. Contractor
shall include any amount earned for authorized extra work. From the total thus
computed, a deduction shall be made in the amount of five percent (5%) for
retention, except where the City has adopted a finding that the Work done under the
Contract is substantially complex, and then the amount withheld as retention shall be
the percentage specified in the Notice Inviting Bids. From the remainder a further
deduction may be made in accordance with Section B below. The amount
computed, less the amount withheld for retention and any amounts withheld as set
forth below, shall be the amount of the Contractor's payment request.
B. The City may withhold a sufficient amount or amounts of any payment or payments
otherwise due to Contractor, as in his judgment may be necessary to cover:
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1. Payments which may be past due and payable for just claims against Contractor
or any subcontractors for labor or materials furnished in and about the
performance of work on the Project under this Contract.
2. Defective work not remedied.
3. Failure of Contractor to make proper payments to his subcontractor or for
material or labor.
4. Completion of the Contract if there is a reasonable doubt that the Work can be
completed for balance then unpaid.
5. Damage to another contractor or a third party.
6. Amounts which may be due the City for claims against Contractor.
7. Failure of Contractor to keep the record ("as-built") drawings up to date .
8. Failure to provide update on construction schedule as required herein.
9. Site cleanup.
10. Failure to comply with Contract Documents.
11. Liquidated damages.
12. Legally permitted penalties.
C. The City may apply such withheld amount or amounts to payment of such claims or
obligations at its discretion with the exc;eption of subsections (8)(1 ), (3), and (5) of
this Article, which must be retained or applied in accordance with applicable law. In
so doing, the City shall be deemed the agent of Contractor and any payment so
made by the City shall be considered as a payment made under contract by the City
to Contractor and the City shall not be liable to Contractor for such payments made
in good faith. Such payments may be made without prior judicial determination of
claim or obligations. The City will render Contractor a proper accounting of such
funds disbursed on behalf of Contractor.
D. Upon receipt, the Engineer shall review the payment request to determine whether it
is undisputed and suitable for payment. If the payment request is determined to be
unsuitable for payment, it shall be returned to Contractor as soon as practicable but
not later than seven (7) Days after receipt, accompanied by a document setting forth
in writing the reasons why the payment request is not proper. The City shall make
the progress payment within 30 calendar days after the receipt of an undisputed and
properly submitted payment request from Contractor, provided that a release of liens
and claims has been received from the Contractor pursuant to Civil Code section
8132. The number of days available to the City to make a payment without incurring
interest pursuant to this paragraph shall be reduced by the number of days by which
the Engineer exceeds the seven (7) Day requirement.
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E. A payment request shall be considered properly executed if funds are available for
payment of the payment request and payment is not delayed due to an audit inquiry
by the financial officer of the City.
ARTICLE 43. SECURITIES FOR MONEY WITHHELD
Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may
request the City to make retention payments directly to an escrow agent or may substitute
securities for any money withheld by the City to ensure performance under the contract. At the
request and expense of Contractor, securities equivalent to the amount withheld shall be
deposited with the City or with a state or federally chartered bank as the escrow agent who shall
return such securities to Contractor upon satisfactory completion of the contract. Deposit of
securities with an escrow agent shall be subject to a written agreement substantially in the form
provided in section 22300 of the Public Contract Code.
ARTICLE 44. CHANGES AND EXTRA WORK.
A. Contract Change Orders .
1. The City, without invalidating the Contract, may order changes in the Work
consisting of additions, deletions or other revisions, and the Contract Price and
Contract Time shall be adjusted accordingly. Except as otherwise provided
herein, all such changes in the Work shall be authorized by Change Order, and
shall be performed under the applicable conditions of the Contract Documents.
A Change Order signed by the Contractor indicates the Contractor's agreement
therewith, including any adjustment in the Contract Price or the Contract Time,
and the full and final settlement of all costs (direct, indirect and overhead) related
to the Work authorized by the Change Order.
2. Contractor shall promptly execute changes in the Work as directed in writing by
the City even when the parties have not reached agreement on whether the
change increases the scope of Work or affects the Contract Price or Contract
Time. All claims for additional compensation to the Contractor shall be presented
in writing. No claim will be considered after the Work in question has been done
unless a written Change Order has been issued or a timely written notice of claim
has been made by Contractor.
3. Whenever any change is made as provided for herein, such change shall be
considered and treated as though originally included in the Contract, and shall be
subject to all terms, conditions, and provisions of the original Contract.
4. Contractor shall not be entitled to claim or bring suit for damages, whether for
loss of profits or otherwise, on account of any decrease or omission of any item
or portion of Work to be done.
5. No dispute, disagreement, or failure of the parties to reach agreement on the
terms of the Change Order shall relieve the Contractor from the obligation to
proceed with performance of the work, including Additional Work, promptly and
expeditiously.
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6. Contractor shall make available to the City any of the Contractor's documents
related to the Project immediately upon request of the City, as set forth in Article
52.
7. Any alterations, extensions of time, Additional Work, or any other changes may
be made without securing consent of the Contractor's surety or sureties.
B. Contract Price Change.
1. Process for Determining Adjustments in Contract Price.
a. Owner Initiated Change. The Contractor must submit a complete cost
proposal, including any change in the Contract Price or Contract Time, within
seven (7) Days after receipt of a scope of a proposed change order initiated
by the City, unless the City requests that proposals be submitted in less than
seven (7) Days.
b. Contractor In it ia ted Change. The Contractor must give written notice of a
proposed change order required for compliance with the Contract Documents
within seven (7) Days of discovery of the facts giving rise to the proposed
change order.
c. Whenever possible , any changes to the Contract amount shall be in a lump
sum mutually agreed to by the Contractor and the City.
d. Price quotations from the Contractor shall be accompanied by sufficiently
detailed supporting documentation to permit verification by the City, including
but not limited to estimates and quotations from subcontractors or material
suppliers, as the City may reasonably request. Contractor shall certify the
accuracy of all Change Order Requests under penalty of perjury.
e. If the Contractor fails to submit a complete cost proposal within the seven (7)
Day period (or as requested), the City has the right to order the Contractor in
writing to commence the Work immediately on a time and materials basis
and/or issue a lump sum change to the Contract Price and/or Contract Time
in accordance with the City's estimate. If the change is issued based on the
City's estimate, the Contractor will waive its right to dispute the action unless
within fifteen ( 15) Days following completion of the added/deleted work, the
Contractor presents written proof that the City's estimate was in error.
2 . Unit Price Change Orders.
a. When the actual quantity of a Unit Price item varies from the Bid Form,
compensation for the change in quantity will be calculated by multiplying the
actual quantity by the Unit Price. This calculation may result in either an
additive or deductive Final Change Order pursuant to the Contract
Documents.
b. No Mark up for Overhead and Profit. Because the Contract Unit Prices
provided in the Bid Form include Overhead and Profit as determined by
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Contractor at the time of Bid submission, no mark up or deduction for
Overhead and Profit will be included in Unit Price Change Orders.
c. Bid items included on the Bid Form may be deducted from the Work in their
entirety without any negotiated extra costs.
d. Contractor acknowledges that unit quantities are estimates and agrees that
the estimated unit quantities listed on the Bid Form will be adjusted to reflect
the actual unit quantities which may result in an adjustment to the Contract
Unit Prices. Such an adjustment will be made by execution of a final additive
or deductive Change Order following Contractor's completion of the Work.
Upon notification, Contractor's failure to respond within seven (7) Days will
result in City's issuance of a unit quantity adjustment to the Contract Unit
Prices and/or Contract Time in accordance with the Contract Documents.
e. The City or Contractor may make a Claim for an adjustment in the Unit Price
in accordance with the Contract Documents if:
i. the quantity of any item of Unit Price Work performed by Contractor
differs by twenty-five percent (25%) or more from the estimated quantity
of such item indicated in the Contract; and
ii. there is no corresponding adjustment with respect to any other item of
Work; and
iii. Contractor believes that Contractor is entitled to an increase in Unit Price
as a result of having incurred additional expense or the City believes that
the City is entitled to a decrease in Unit Price and the parties are unable
to agree as to the amount of any such increase or decrease ..
3. Lump Sum Change Orders. Compensation for Lump Sum Change Orders shall
be limited to expenditures necessitated specifically by the Additional Work, and
shall be segregated as follows:
a . Labor. The costs of labor will be the actual cost for wages prevailing locally
for each craft or type of worker at the time the Additional Work is done, plus
employer payments of payroll taxes and insurance, health and welfare,
pension, vacation, apprenticeship funds, and other direct costs resulting from
Federal, State or local laws, as well as assessment or benefits required by
lawful collective bargaining agreements. The use of a labor classification
which would increase the Additional Work cost will not be permitted unless
the Contractor establishes the necessity for such new classifications. Labor
costs for equipment operators and helpers shall be reported only when such
costs are not included in the invoice for equipment rental.
b. Materials . The cost of materials reported shall be at invoice or lowest current
price at which such materials are locally available in the quantities involved,
plus sales tax, freight, and delivery. Materials costs shall be based upon
supplier or manufacturer's invoice. If invoices or other satisfactory evidence
of cost are not furnished within fifteen (15) Days of delivery, then the City
shall determine the materials cost, at its sole discretion.
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c. Tool and Equipment Use. Costs for the use of small tools, which are tools
that have a replacement value of $1,000 or less, shall be considered included
in the Overhead and Profit mark-ups established below. Regardless of
ownership, the rates to be used in determining equipment use costs shall not
exceed listed rates prevailing locally at equipment rental agencies, or
distributors, at the time the Work is performed.
4. Time and Materials Change O rders.
a. General. The term Time and Materials means the sum of all costs
reasonably and necessarily incurred and paid by Contractor for labor,
materials, and equipment in the proper performance of Additional Work.
Except as otherwise may be agreed to in writing by the City, such costs shall
be in amounts no higher than those prevailing in the locality of the Project,
and shall include only the following items.
b. Timely and Final Documentation.
i. T&M Daily Sheets. Contractor must submit timesheets, materials
invoices, records of equipment hours, and records of rental equipment
hours to the City's Representative for an approval signature each day
Additional Work is performed. Failure to get the City's Representative's
approval signature each Day shall result in a waiver of Contractor's right
to claim these costs. The City's Representative's signature on time
sheets only serves as verification that the Work was performed and is not
indicative of City's agreement to Contractor's entitlement to the cost.
ii. T&M Daily Summary Sheets. All documentation of incurred costs ("T&M
Daily Summary Sheets") shall be submitted by Contractor within three (3)
Days of incurring the cost for labor, material, equipment, and special
services as Additional Work is performed . Contractor's actual costs shall
be presented in a summary table in an electronic spreadsheet file by
labor, material, equipment, and special services. Each T&M Daily
Summary Sheet shall include Contractor's actual costs incurred for the
Additional Work performed that day and a cumulative total of Contractor's
actual costs incurred for the Additional Work. Contractor's failure to
provide a T&M Daily Summary Sheet showing a total cost summary
within three (3) Days but within five (5) Days of performance of the Work
will result in the Contractor's otherwise allowable overhead and profit
being reduced by 50% for that portion of Additional Work which was not
documented in a timely manner. Contractor's failure to submit the T&M
Daily Summary Sheet within five (5) Days of performance of the Work will
result in a total waiver of Contractor's right to claim these costs.
iii. T&M Total Cost Summary Sheet. Contractor shall submit a T&M Total
Cost Summary Sheet, which shall include total actual costs, within seven
(7} Days following completion of City approved Additional Work.
Contractor's total actual cost shall be presented in a summary table in an
electronic spreadsheet file by labor, material, equipment, and special
services. Contractor's failure to submit the T&M Total Cost Summary
Sheet within seven (7) Days of completion of the Additional Work will
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result in Contractor's waiver for any reimbursement of any costs
associated with the T&M Summary Sheets or the performance of the
Additional Work.
c. Labor. The Contractor will be paid the cost of labor for the workers used in
the actual and direct performance of the Work. The cost of labor will be the
sum of the actual wages paid (which shall include any employer payments to
or on behalf of the workers for health and welfare, pension, vacation, and
similar purposes) substantiated by timesheets and certified payroll for wages
prevailing for each craft or type of workers performing the Additional Work at
the time the Additional Work is done, and the labor surcharge set forth in the
Department of Transportation publication entitled Labor Surcharge and
Equipment Rental Rates, which is in effect on the date upon which the Work
is accomplished and which is a part of the Contract. The labor surcharge
shall constitute full compensation for all payments imposed by Federal, State,
or local laws and for all other payments made to, or on behalf of, the workers,
other than actual wages.
i. Equipment Operator Exception. Labor costs for equipment operators and
helpers shall be paid only when such costs are not included in the invoice
for equipment rental.
ii. Foreman Exception . The labor costs for foremen shall be proportioned to
all of their assigned work and only that applicable to the Additional Work
shall be paid . Indirect labor costs, including, without limitation, the
superintendent, project manager, and other labor identified in the
Contract Documents will be considered Overhead.
d. Materials. The cost of materials reported shall be itemized at invoice or
lowest current price at which materials are locally available and delivered to
the Project site in the quantities involved, plus the cost of sales tax, freight,
delivery, and storage.
i. Trade discounts available to the purchaser shall be credited to the City
notwithstanding the fact that such discounts may not have been taken by
Contractor.
ii. For materials secured by other than a direct purchase and direct billing to
the purchaser, the cost shall be deemed to be the price paid to the actual
supplier as determined by the City's Representative.
iii. Payment for materials from sources owned wholly or in part by the
purchaser shall not exceed the price paid by the purchaser for similar
materials from said sources on Additional Work items or the current
wholesale price for such materials delivered to the Project site, whichever
price is lower.
iv . If, in the opinion of the City's Representative, the cost of materials is
excessive, or Contractor does not furnish satisfactory evidence of the cost
of such materials, then the cost shall be deemed to be the lowest current
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wholesale price for the total quantity concerned delivered to the Project
site less trade discounts.
v . The City reserves the right to furnish materials for the Additional Work
and no Claim shall be allowed by Contractor for costs of such materials or
Indirect Costs or profit on City furnished materials.
e. Equipment.
i. Rental Time . The rental time to be paid for equipment on the Project site
shall be the time the equipment is in productive operation on the
Additional Work being performed and, in addition, shall include the time
required to move the equipment to the location of the Additional Work and
return it to the original location or to another location requiring no more
time than that required to return it to its original location; except that
moving time will not be paid if the equipment is used on other than the
Additional Work, even though located at the site of the Additional Work .
(a) Rental T ime Not Allowed. Rental time will not be allowed while
equipment is inoperative due to breakdowns.
(b) Computation Method. The following shall be used in computing the
rental time of equipment on the Project site.
(i) When hourly rates are paid, any part of an hour less than 30
minutes of operation shall be considered to be 1/2-hour of
operation, and any part of an hour in excess of 30 minutes will be
considered one hour of operation:
(ii) When daily rates are paid, any part of a day less than 4 hours
operation shall be considered to be 1/2-day of operation, and any
part of an hour in excess of 4 hours will be considered one day of
operation.
ii. Rental Rates. Contractor will be paid for the use of equipment at the
lesser of (i) the actual rental rate, or (ii) the rental rate listed for that
equipment in the California Department of Transportation publication
entitled Labor Surcharge and Equipment Rental Rates, which is in effect
on the date upon which the Contract was executed. Such rental rates will
be used to compute payments for equipment whether the equipment is
under Contractor's control through direct ownership, leasing, renting, or
another method of acquisition. The rental rate to be applied for use of
each item of equipment shall be the rate (i.e., daily, monthly) resulting in
the least total cost to the City for the total period of use. If it is deemed
necessary by Contractor to use equipment not listed in the publication, an
equitable rental rate for the equipment will be established by the City's
Representative. Contractor may furnish cost data which might assist the
City's Representative in the establishment of the rental rate.
iii. Contractor-Owned Equipment.
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(a) For Contractor-owned equipment, the allowed equipment rental rate
will be limited to the monthly equipment rental rate using a utilization
rate of 173 hours per month.
(b) For Contractor-owned equipment, the rental time to be paid for
equipment on the Site shall be the time the equipment is in
productive operation, unless, in the instance of standby time, the
equipment could be actively used by Contractor on another project,
then City shall pay for the entirety of the time the equipment is on
Site. It shall be Contractor's burden to demonstrate to the City that
the equipment could be actively used on another project.
iv. All equipment shall, in the opinion of the City's Representative, be in good
working condition and suitable for the purpose for which the equipment is
to be used.
v. Before construction equipment is used on the Additional Work, Contractor
shall plainly stencil or stamp an identifying number thereon at a
conspicuous location, and shall furnish to the City's Representative, in
duplicate, a description of the equipment and its identifying number and
the scheduled Additional Work activities planned.
vi. Unless otherwise specified, manufacturer's rating and manufacturer
approved modifications shall be used to classify equipment for the
determination of applicable rental rates. Equipment which has no direct
power unit shall be powered by a unit of at least the minimum rating
recommended by the manufacturer.
f. Special Services. Special work or services are defined as that Additional
Work characterized by extraordinary complexity, sophistication, or innovation
or a combination of the foregoing attributes which are unique to the
construction industry.
i. Invoices for Special Services . When the City's Representative and
Contractor determine that a special service is required which cannot be
performed by the forces of Contractor or those of any of its
Subcontractors, the special service may be performed by an entity
especially skilled in the Additional Work. Invoices for special services
based upon the current fair market value thereof may be accepted without
complete itemization of labor, material, and equipment rental costs, after
validation of market values by the City's Representative .
ii. Discount and Allowance. All invoices for special services will be adjusted
by deducting all trade discounts offered or available, whether the
discounts were taken or not. In lieu of Overhead and Profit specified
herein, a total allowance not to exceed fifteen percent (15%) for
Overhead and Profit will be added to invoices for Special Services.
iii. When the City determines, in its sole discretion, that competitive bidding
is necessary for certain special services, Contractor shall solicit
competitive bids for those special services.
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g. Excluded Costs. The term Time and Material shall not include any of the
following costs or any other home or field office overhead costs, all of which
are to be considered administrative costs covered by Contractor's allowance
for Overhead and Profit.
i. Overh ea d Cost. Payroll costs and other compensation of Contractor's
officers, executives, principals, general managers, engineers, architects,
estimators, attorneys, auditors, accountants, purchasing and contracting
agents, timekeepers, clerks, and other personnel employed by Contractor
whether at the Site or in Contractor's principal office or any branch office,
material yard, or shop for general administration of the Additional Work ;
ii. Office Expens es . Expenses of Contractor's principal and branch offices;
iii. Ca pi ta l Expen ses. Any part of Contractor's capital expenses, including
interest on Contractor's capital employed for the Additional Work and
charges against Contractor for delinquent payments;
iv. Nea li ae nc e . Costs due to the negligence of Contractor or any
Subcontractor or Supplier, or anyone directly or indirectly employed by
any of them or for whose acts any of them may be liable , including
without limitation the correction of Defective Work, disposal of materials
or equipment wrongly supplied, and making good any damage to
property;
v. Other. Other overhead or general expense costs of any kind and the cost
of any item not specifically and expressly included in the Contract
Documents;
vi. Small Tools. Cost of small tools valued at less than $1,000 and that
remain the property of Contractor;
vii. Administrative Costs. Costs associated with the preparation of Change
Orders (whether or not ultimately authorized), cost estimates, or the
preparation or filing of Claims;
viii. Ant ic ipated Lost Profits. Expenses of Contractor associated with
anticipated lost profits or lost revenues, lost income or earnings, lost
interest on earnings, or unpaid retention;
ix. Home Office Overhead. Costs derived from the computation of a "home
office overhead " rate by application of the Eichleay, Allegheny, burden
fluctuation, or other similar methods;
x. Specia l Consu lta nt s a nd Attorney s . Costs of special consultants or
attorneys, whether or not in the direct employ of Contractor, employed for
services specifically related to the resolution of a Claim, dispute, or other
matter arising out of or relating to the performance of the Additional Work.
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h. Overhead, Profit and Other Charges. The mark-up for overhead (including
supervision) and profit on work added to the Contract shall be according to
the following:
i. "Net Cost" is defined as consisting of costs of labor, materials, and tools
and equipment only excluding overhead and profit. The costs of
applicable insurance and bond premium will be reimbursed to the
Contractor and subcontractors at cost only, without mark-up. Contractor
shall provide City with documentation of the costs, including, but not
limited to, payroll records, invoices, and such other information as City
may reasonably request.
ii. For Work performed by the Contractor's forces, the added cost for
overhead and profit shall not exceed fifteen percent (15%) of the Net Cost
of the Work.
iii. For Work performed by a subcontractor, the added cost for overhead and
profit shall not exceed fifteen percent (15%) of the subcontractor's Net
Cost of the Work to which the Contractor may add five percent (5%) of
the subcontractor's Net Cost.
iv . For Work performed by a sub-subcontractor, the added cost for overhead
and profit shall not exceed fifteen percent (15%) of the sub-
subcontractor's Net Cost for Work to which the subcontractor and general
contractor may each add an additional five percent (5%) of the Net Cost
of the lower tier subcontractor.
v. No additional mark-up will be allowed for lower tier subcontractors, and in
no case shall the added cost for overhead and profit payable by City
exceed twenty-five percent (25%) of the Net Cost as defined herein, of
the party that performs the Work.
5. All of the following costs are included in the markups for overhead and profit
described above, and Contractor shall not receive any additional compensation
for: Submittals, drawings, field drawings, Shop Drawings, including submissions
of drawings; field inspection; General Superintendence; General administration
and preparation of cost proposals, schedule analysis, Change Orders, and other
supporting documentation; computer services; reproduction services; Salaries of
project engineer, superintendent, timekeeper, storekeeper, and secretaries;
Janitorial services; Small tools, incidentals and consumables; Temporary On-Site
facilities (Offices, Telephones, High Speed Internet Access, Plumbing, Electrical
Power, Lighting; Platforms, Fencing, Water), Jobsite and Home office overhead
or other expenses; vehicles and fuel used for work otherwise included in the
Contract Documents; Surveying; Estimating; Protection of Work; Handling and
disposal fees; Final Cleanup; Other Incidental Work; Related Warranties;
insurance and bond premiums .
6. For added or deducted Work by subcontractors, the Contractor shall furnish to
the City the subcontractor's signed detailed record of the cost of labor, material
and equipment, including the subcontractor markup for overhead and profit. The
same requirement shall apply to sub-subcontractors
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7. For added or deducted work furnished by a vendor or supplier, the Contractor
shall furnish to the City a detailed record of the cost to the Contractor, signed by
such vendor or supplier.
8. Any change in the Work involving both additions and deletions shall indicate a
net total cost, including subcontracts and materials. Allowance for overhead and
profit, as specified herein, shall be applied if the net total cost is an increase in
the Contract Price; overhead and profit allowances shall not be applied if the net
total cost is a deduction to the Contract Price. The estimated cost of deductions
shall be based on labor and material prices on the date the Contract was
executed.
9. Contractor shall not reserve a right to assert impact costs, extended job site
costs, extended overhead, constructive acceleration and/or actual acceleration
beyond what is stated in the Change Order for Work. No claims shall be allowed
for impact, extended overhead costs, constructive acceleration and/or actual
acceleration due to a multiplicity of changes and/or clarifications. The Contractor
may not change or modify the City's change order form in an attempt to reserve
additional rights.
10. If the City disagrees with the proposal submitted by Contractor, it will notify the
Contractor and the City will provide its opinion of the appropriate price and/or
time extension. If the Contractor agrees with the City, a Change Order will be
issued by the City. If no agreement can be reached, the City shall have the right
to issue a unilateral Change Order setting forth its determination of the
reasonable additions or savings in costs and time attributable to the extra or
deleted work. Such determination shall become final and binding if the
Contractor fails to submit a claim in writing to the City within fifteen (15) Days of
the issuance of the unilateral Change Order, disputing the terms of the unilateral
Change Order, and providing such supporting documentation for its position as
the City may require.
C. Change of Contract Times .
1. The Contract Times may only be changed by a Change Order.
2. All changes in the Contract Price and/or adjustments to the Contract Times
related to each change shall be included in Contractor's COR pursuant to this
Article. No cost or time will be allowed for cumulative effects of multiple changes.
All Change Orders must state that the Contract Time is not changed or is either
increased or decreased by a specific number of days. Failure to include a
change to time shall waive any change to the time unless the parties mutually
agree in writing to postpone a determination of the change to time resulting from
the Change Order.
3. Notice of the amount of the request for adjustment in the Contract Times with
supporting data shall be delivered within seven (7) Days after such start of
occurrence, unless City's Representative allows an additional period of time to
ascertain more accurate data in support of the request. No extension of time or
additional compensation shall be given for a delay if the Contractor failed to give
notice in the manner and within the time prescribed.
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4. City may elect, at City's sole discretion, to grant an extension in Contract Times,
without Contractor's request, because of delays or other factors .
5. Use of Float and Critical Path .
a. Float is for the benefit of the Project. Float shall not be considered for the
exclusive use or benefit of either the City or the Contractor.
b. Contractor shall not be entitled to compensation, and City will not
compensate Contractor, for delays which impact early completion. Any
difference in time between the Contractor's early completion and the Contract
Time shall be considered a part of the Project float.
6. Contractor's entitlement to an extension of the Contract Times is limited to a City-
caused extension of the critical path, reduced by the Contractor's concurrent
delays, and established by a proper time impact analysis. No time extension shall
be allowed unless, and then only to the extent that, the City-caused delay
extends the critical path beyond the previously approved Contract Time. If
approved, the increase in time required to complete the Work shall be added to
the Contract Time.
a. Contractor shall not be entitled to an adjustment in the Contract Price or
Contract Times for delays within the control of Contractor. Delays attributable
to and within the control of a Subcontractor or Supplier shall be deemed to be
delays within the control of Contractor.
b. If Contractor is delayed in the performance or progress of the Work by fire,
flood, epidemic, abnormal weather conditions (as determined by the City),
Acts of God, acts or failures to act of utility owners not under the control of
City, or other causes not the fault of and beyond control of City and
Contractor, then Contractor shall be entitled to an time extension when the
Work stopped is on the critical path. Such a non-compensable adjustment
shall be Contractor's sole and exclusive remedy for such delays. Contractor
must submit a timely request in accordance with the requirements of this
Article.
c. Utility-Related Delays .
i. Contractor shall immediately notify in writing the utility owner and City's
Representative of its construction schedule and any subsequent changes
in the construction schedule which will affect the time available for
protection, removal, or relocation of utilities. Requests for extensions of
time arising out of utility relocation or repair delays shall be filed in
accordance with this Article.
ii. Contractor shall not be entitled to damages or additional payment for
delays attributable to utility relocations or alterations if correctly located,
as noted in the Contract Documents or by the Underground Service Alert
survey.
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7. Conte nt for Requ est s for Contract Exte nsion . Contractor's justification for
entitlement shall be clear and complete citing specific Contract Document
references and reasons on which Contractor's entitlement is based. At a
minimum, each request for a time extension must include:
a. Each request for an extension of Contract Time must identify the impacting
event, in narrative form, providing a description of the delay event and
sufficient justification as to why the Contractor is entitled to a time extension.
Contractor must demonstrate that the delay arises from unforeseeable
causes beyond the control and without the fault or negligence of both
Contractor and any Subcontractors or Suppliers, or any other persons or
organizations employed by any of them or for whose acts any of them may be
liable, and that such causes in fact lead to performance or completion of the
Work, or specified part in question, beyond the corresponding Contract
Times, despite Contractor's reasonable and diligent actions to guard against
those effects.
b. Each request for an extension of Contract Time must include a time impact
analysis in CPM format, using the Contemporaneous Impacted As-Planned
Schedule Analysis to calculate the impact of the delay event.
8. No Da mages for Reas on a bl e Del ay.
a. City's liability to Contractor for delays for which City is responsible shall be
limited to only an extension of time unless such delays were unreasonable
under the circumstances. In no case shall City be liable for any costs which
are borne by the Contractor in the regular course of business, including, but
not limited to, home office overhead and other ongoing costs.
b. Damages caused by unreasonable City delay that impact the critical path,
including delays caused by items that are the responsibility of the City
pursuant to Government Code section 4215, shall be compensated at the
Daily Rate established in the Special Conditions. No other calculations,
proportions or formulas shall be used to calculate any delay damages.
c. City and City 's Representative, and the officers, members, partners,
employees, agents , consultants, or subcontractors of each of them, shall not
be liable to Contractor for any claims, costs, losses, or damages (including
but not limited to all fees and charges of engineers, architects, attorneys, and
other professionals and all court or arbitration or other dispute resolution
costs) sustained by Contractor on or in connection with any other project or
anticipated project.
9. Contractor's failure, neglect, or refusal to comply with the requirements of the
Contract Documents, or any portion thereof, shall bar Contractor's request for
extensions of the Contract Times. Such failure, neglect, or refusal prejudices
City's and City 's Representative 's ability to recognize and mitigate delay, and
such failure, neglect, or refusal prevent the timely analysis of requests for
extensions of Contract Times, and whether such extensions may be warranted.
Contractor hereby waives all rights to extensions of Contract Times due to delays
or accelerations that result from or occur during periods of time for which
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Contractor fails, neglects, or refuses to fully comply with the requirements of this
Article.
ARTICLE 45. FINAL ACCEPTANCE AND PAYMENT
A. The acceptance of the Work on behalf of the City will be made by the Engineer.
Such acceptance by the City shall not constitute a waiver of defects. When the Work
has been accepted there shall be paid to Contractor a sum equal to the contract
price less any amounts previously paid Contractor and less any amounts withheld by
the City from Contractor under the terms of the contract. The final five percent (5%),
or the percentage specified in the notice inviting bids where the City has adopted a
finding of substantially complete, shall not become due and payable until five (5)
calendar days shall have elapsed after the expiration of the period within which all
claims may be filed under the provisions of Civil Code section 9356. If the
Contractor has placed securities with the City as described herein, the Contractor
shall be paid a sum equal to one hundred percent (100%) of the contract price less
any amounts due the City under the terms of the Contract.
B. Unless Contractor advises the City in writing prior to acceptance of the final five
percent (5%) or the percentage specified in the notice inviting bids where the City
has adopted a finding of substantially complete, or the return of securities held as
described herein, said acceptance shall operate as a release to the City of all claims
and all liability to Contractor for all things done or furnished in connection with this
work and for every act of negligence of the City and for all other claims relating to or
arising out of this work. If Contractor advises the City in writing prior to acceptance
of final payment or return of the securities that there is a dispute regarding the
amount due the Contractor, the City may pay the undisputed amount contingent
upon the Contractor furnishing a release of all undisputed claims against the City
with the disputed claims in stated amounts being specifically excluded by Contractor
from the operation of the release. No payments, however, final or otherwise, shall
operate to release Contractor or its sureties from the Faithful Performance Bond,
Labor and Material Payment Bond, or from any other obligation under this contract.
C. In case of suspension of the contract any unpaid balance shall be and become the
sole and absolute property of the City to the extent necessary to repay the City any
excess in the cost of the Work above the contract price.
D. Final payment shall be made no later than 60 days after the date of acceptance of
the Work by the City or the date of occupation, beneficial use and enjoyment of the
Work by the City including any operation only for testing, start-up or commissioning
accompanied by cessation of labor on the Work, provided that a release of liens and
claims has been received from the Contractor pursuant to Civil Code section 8136.
In the event of a dispute between the City and the Contractor, the City may withhold
from the final payment an amount not to exceed 150% of the disputed amount.
E. Within ten (10) calendar days from the time that all or any portion of the retention
proceeds are received by Contractor, Contractor shall pay each of its subcontractors
from whom retention has been withheld each subcontractor's share of the retention
received. However, if a retention payment received by Contractor is specifically
designated for a particular subcontractor, payment of the retention shall be made to
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the designated subcontractor if the payment is consistent with the terms of the
subcontract.
ARTICLE 46. OCCUPANCY
The City reserves the right to occupy or utilize any portion of the Work at any time before
completion, and such occupancy or use shall not constitute acceptance of any part of Work
covered by this Contract. This use shall not relieve the Contractor of its responsibilities under
the Contract.
ARTICLE 47. INDEMNIFICATION
To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the
City's choosing), indemnify and hold harmless the City, officials, officers, agents, employees,
and representatives, and each of them from and against:
A. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or
liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to,
injury to or death, including wrongful death, of any person, and damages to or
destruction of property of any person, arising out of, related to, or in any manner
directly or indirectly connected with the Work or this Contract, including claims made
by subcontractors for nonpayment, including without limitation the payment of all
consequential damages and attorney's fees and other related costs and expenses,
however caused, regardless of whether the allegations are false, fraudulent, or
groundless, and regardless of any negligence of the City or its officers, employees,
or authorized volunteers (including passive negligence), except the sole negligence
or willful misconduct or active negligence of the City or its officials, officers,
employees, or authorized volunteers.
B. Contractor's defense and indemnity obligation herein includes, but is not limited to
damages, fines, penalties, attorney's fees and costs arising from claims under the
Americans with Disabilities Act (ADA) or other federal or state disability access or
discrimination laws arising from Contractor's Work during the course of construction
of the improvements or after the Work is complete, as the result of defects or
negligence in Contractor's construction of the improvements.
C. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or
liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting
from, or on account of the violation of any governmental law or regulation,
compliance with which is the responsibility of Contractor;
D. Any and all losses, expenses, damages (including damages to the Work itself),
attorney's fees, and other costs, including all costs of defense which any of them
may incur with respect to the failure, neglect, or refusal of Contractor to faithfully
perform the Work and all of Contractor's obligations under the agreement. Such
costs, expenses, and damages shall include all costs, including attorney's fees,
incurred by the indemnified parties in any lawsuit to which they are a party.
Contractor shall immediately defend, at Contractor's own cost, expense and risk, with the City
Council's choosing, any and all such aforesaid suits, actions or other legal proceedings of every
kind that may be brought or instituted against the City, its officials, officers, agents, employees
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and representatives. Contractor shall pay and satisfy any judgment, award or decree that may
be rendered against the City, its officials, officers, employees, agents, employees and
representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse
the City, its officials, officers, agents, employees and representatives for any and all legal
expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. The only limitations on this provision shall be those imposed by Civil
Code section 2782.
ARTICLE 48. PROCEDURE FOR RESOLVING DISPUTES
In accordance with Public Contract Code sections 20104 et seq. and other applicable law,
public works claims of $375,000 or less which arise between the Contractor and the City shall
be resolved under the following statutory procedure unless the City has elected to resolve the
dispute pursuant to Public Contract Code section 10240 et seq.
A. All Claims. All claims shall be submitted in writing and accompanied by
substantiating documentation. Claims must be filed on or before the date of final
payment unless other notice requirements are provided in the contract. "Claim"
means a separate demand by the Contractor for (1) a time extension, (2) payment of
money or damages arising from work done by or on behalf of the Contractor and
payment of which is not otherwise expressly provided for or the Contractor is not
otherwise entitled, or (3) an amount the payment of which is disputed by the City.
B. Claims Under $50,000. The City shall respond in writing to the claim within 45
calendar days of receipt of the claim, or, the City may request, in writing, within 30
calendar days of receipt of the claim, any additional documentation supporting the
claim or relating to defenses or claims the City may have. If additional information is
needed thereafter, it shall be provided upon mutual agreement of the City and the
Contractor. The City's written response shall be submitted 15 calendar days after
receiving the additional documentation, or within the same period of time taken by
the Contractor to produce the additional information, whichever is greater.
'
C. Claims over $50,000 but less than or equal to $375,000. The City shall respond
in writing within 60 calendar days of receipt, or, may request in writing within 30
calendar days of receipt of the claim, any additional documents supporting the claim
or relating to defenses or claims the City may have against the City. If additional
information is needed thereafter, it shall be provided pursuant to mutual agreement
between the City and the Contractor. The City response shall be submitted within 30
calendar days after receipt of the further documents, or within the same period of
time taken by the Contractor to produce the additional information or documents,
whichever is greater. The Contractor shall make these records and documents
available at all reasonable times, without any direct charge.
D. All Claims. The Contractor will submit the claim justification in the following format:
1. Summary of claim merit and price, and Contract clause pursuant to which the
claim is made.
2. List of documents relating to claim :
a. Specifications
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b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other (All Related Documents)
3. Chronology of events and correspondence.
4. Analysis of claim merit.
5. Analysis of claim cost.
6. Analysis of time impact analysis in CPM format.
7. Cover letter and certification of validity of the claim.
E. All Claims. If the Contractor disputes the City's response, or if the City fails to
respond within the statutory time period(s), the Contractor may so notify the City
within 15 calendar days of the receipt of the response or the failure to respond, and
demand an informal conference to meet and confer for settlement. Upon such
demand, the City shall schedule a meet and confer conference within 30 calendar
days.
F. The Contractor must comply with the claims filing procedures set forth in
Government Code sections 900 et seq. for any claim or any portion thereof that
remains in dispute, after the meet and confer conference. For purposes of those
provisions , the time within which a claim must be filed shall be tolled from the time
the Contractor submits the written claim until the time the claim is denied, including
any time utilized for the meet and confer conference. Submission of a claim,
properly certified, with all required supporting documentation, and written rejection or
denial of all or part of the claim by the City, is a condition precedent to any action,
proceeding, litigation , suit, general conditions claim, or demand for arbitration by
Contractor.
G. Government Code Claim. In addition to any and all contract requirements
pertaining to notices of and requests for compensation or payment for extra work,
disputed work, construction claims and/or changed conditions, the Contractor must
comply with the claim procedures set forth in Government Code sections 900 et seq.
prior to filing any lawsuit against the City . Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to
those matters that remain unresolved after all procedures pertaining to extra work,
disputed work, construction claims, and/or changed conditions have been followed
by Contractor. If no such Government Code claim is submitted , or if the prerequisite
contractual requirements are not otherwise satisfied as specified herein, Contractor
shall be barred from bringing and maintaining a valid lawsuit against the City.
ARTICLE 49. CITY'S RIGHT TO TERMINATE CONTRACT
A. Termination for Cause by the City:
1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute
the Work or any separable part thereof with such diligence as will insure its
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completion within the time specified by the Contract Documents, or any
extension thereof, or fails to complete such Work within such time, or if the
Contractor should be adjudged a bankrupt, or if it should make a general
assignment for the benefit of its creditors, or if a receiver should be appointed on
account of its insolvency, or the Contractor or any of its subcontractors should
violate any of the provisions of this Contract, the City may serve written notice
upon the Contractor and its Surety of the City's intention to terminate this
Contract. This notice of intent to terminate shall contain the reasons for such
intention to terminate this Contract, and a statement to the effect that the
Contractor's right to perform this Contract shall cease and terminate upon the
expiration of ten ( 1 0) calendar days unless such violations have ceased and
arrangements satisfactory to the City have been made for correction of said
violations.
2. In the event that the City serves such written notice of termination upon the
Contractor and the Surety, the Surety shall have the right to take over and
perform the Contract. If the Surety does not: (1) give the City written notice of
Surety's intention to take over and commence performance of the Contract within
15 calendar days of the City's service of said notice of intent to terminate upon
Surety; and (2) actually commence performance of the Contract within 30
calendar days of the City's service of said notice upon Surety; then the City may
take over the Work and prosecute the same to completion by separate contract
or by any other method it may deem advisable for the account and at the
expense of the Contractor.
3. In the event that the City elects to obtain an alternative performance of the
Contract as specified above: (1) the City may, without liability for so doing, take
possession of and utilize in completion of the Work such materials, appliances,
plants and other property belonging to the Contractor that are on the site and
reasonably necessary for such completion (A special lien to secure the claims of
the City in the event of such suspension is hereby created against any property
of Contractor taken into the possession of the City under the terms hereof and
such lien may be enforced by sale of such property under the direction of the City
Council without notice to Contractor. The proceeds of the sale after deducting all
expenses thereof and connected therewith shall be credited to Contractor. If the
net credits shall be in excess of the claims of the City against Contractor, the
balance will be paid to Contractor or Contractor's legal representatives.); and (2)
Surety shall be liable to the City for any cost or other damage to the City
necessitated by the City securing an alternate performance pursuant to this
Article.
B. Termination for Convenience by the City:
1'. The City may terminate performance of the Work called for by the Contract
Documents in whole or, from time to time, in part, if the City determines that a
termination is in the City's interest.
2. The Contractor shall terminate all or any part of the Work upon delivery to the
Contractor of a Notice of Termination specifying that the termination is for the
convenience of the City, the extent of termination, and the Effective Date of such
termination.
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3. After receipt of Notice of Termination, and except as directed by the City's
Representative, the Contractor shall, regardless of any delay in determining or
adjusting any amounts due under this Termination for Convenience clause,
immediately proceed with the following obligations:
a. Stop Work as specified in the Notice.
b. Complete any Work specified in the Notice of Termination in a least
cost/shortest time manner while still maintaining the quality called for under
the Contract Documents.
c. Leave the property upon which the Contractor was working and upon which
the facility (or facilities) forming the basis of the Contract Document is
situated in a safe and sanitary manner such that it does not pose any threat
to the public health or safety.
d. Terminate all subcontracts to the extent that they relate to the portions of the
Work terminated .
e. Place no further subcontracts or orders, except as necessary to complete the
continued portion of the Contract.
f. Submit to the City's Representative, within ten (10) calendar days from the
Effective Date of the Notice of Termination, all of the usual documentation
called for by the Contract Documents to substantiate all costs incurred by the
Contractor for labor, materials and equipment through the Effective Date of
the Notice of Termination . Any documentation substantiating costs incurred
by the Contractor solely as a result of the City's exercise of its right to
terminate this Contract pursuant to this clause , which costs the contractor is
authorized under the Contract documents to incur, shall: (1) be submitted to
and received by the Engineer no later than 30 calendar days after the
Effective Date of the Notice of Termination; (2) describe the costs incurred
with particularity; and (3) be conspicuously identified as "Termination Costs
occasioned by the City's Termination for Convenience."
4. Termination of the Contract shall not relieve Surety of its obligation for any just
claims arising out of or relating to the Work performed.
5. In the event that the City exercises its right to terminate this Contract pursuant to this
clause, the City shall pay the Contractor, upon the Contractor's submission of the
documentation required by this clause and other applicable provisions of the
Contract Documents, the following amounts:
a . All actual reimbursable costs incurred according to the provisions of this
Contract.
b. A reasonable allowance for profit on the cost of the Work performed, provided
Contractor establishes to the satisfaction of the City's Representative that it is
reasonably probable that Contractor would have made a profit had the
Contract been completed and provided further, that the profit allowed shall in
no event exceed fifteen ( 15%) percent of the costs.
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c. A reasonable allowance for Contractor's administrative costs in determining
the amount payable due to termination of the Contract under this Article.
C. Notwithstanding any other provision of this Article, when immediate action is
necessary to protect life and safety or to reduce significant exposure or liability, the
City may immediately order Contractor to cease Work on the Project until such safety
or liability issues are addressed to the satisfaction of the City or the Contract is
terminated.
ARTICLE 50. WARRANTY AND GUARANTEE OF WORK
A. Contractor hereby warrants that materials and Work shall be completed in
conformance with the Contract Documents and that the materials and Work provided
will fulfill the requirements of this Warranty. Contractor hereby agrees to repair or
replace, at the discretion of the City, any or all Work that may prove to be defective in
its workmanship, materials furnished, methods of installation or fail to conform to the
Contract Document requirements together with any other Work which may be
damaged or displaced by such defect(s) within a period of one (1) year from the date
of the Notice of Completion of the Project without any expense whatever to the City,
ordinary wear and tear and unusual abuse and neglect excepted. Contractor shall
be required to promptly repair or replace defective equipment or materials, at
Contractor's option. All costs associated with such corrective actions and testing,
including the removal, replacement, and reinstitution of equipment and materials
necessary to gain access, shall be the sole responsibility of the Contractor.
B. For any Work so corrected, Contractor's obligation hereunder to correct defective
Work shall be reinstated for an additional one (1) year period, commencing with the
date of acceptance of such corrected Work. The reinstatement of the one (1) year
warranty shall apply only to that portion of work that was corrected. Contractor shall
perform such tests as City may require to verify that any corrective actions, including,
without limitation, redesign, repairs, and replacements comply with the requirements
of the Contract. In the event of Contractor's failure to comply with the above-
mentioned conditions within ten (1 0) calendar days after being notified in writing of
required repairs, to the reasonable satisfaction of the City, the City shall have the
right to correct and replace any defective or non-conforming Work and any work
damaged by such work or the replacement or correction thereof at Contractor's sole
expense. Contractor shall be obligated to fully reimburse the City for any expenses
incurred hereunder immediately upon demand.
C. In addition to the warranty set forth in this Article, Contractor shall obtain for City all
warranties that would be given in normal commercial practice and assign to City any
and all manufacturer's or installer's warranties for equipment or materials not
manufactured by Contractor and provided as part of the Work, to the extent that such
third-party warranties are assignable and extend beyond the warranty period set
forth in this Article. Contractor shall furnish the City with all warranty and guarantee
documents prior to final Acceptance of the Project by the City as required.
D. When specifically indicated in the Contract Documents or when directed by the
Engineer, the City may furnish materials or products to the Contractor for installation.
In the event any act or failure to act by Contractor shall cause a warranty applicable
to any materials or products purchased by the City for installation by the Contractor
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to be voided or reduced, Contractor shall indemnify City from and against any cost,
expense, or other liability arising therefrom, and shall be responsible to the City for
the cost of any repairs, replacement or other costs that would have been covered by
the warranty but for such act or failure to act by Contractor.
E. The Contractor shall remedy at its expense any damage to City-owned or controlled
real or personal property.
F. The City shall notify the Contractor, in writing, within a reasonable time after the
discovery of any failure, defect, or damage. The Contractor shall within ten (10)
calendar days after being notified commence and perform with due diligence all
necessary Work. If the Contractor fails to promptly remedy any defect, or damage;
the City shall have the right to replace, repair or otherwise remedy the defect, or
damage at the Contractor's expense.
G. In the event of any emergency constituting an immediate hazard to health, safety,
property, or licensees, when caused by Work of the Contractor not in accordance
with the Contract requirements, the City may undertake at Contractor's expense, and
without prior notice, all Work necessary to correct such condition.
H. Acceptance of Defective Work .
1. If, instead of requiring correction or removal and replacement of Defective Work,
the City prefers to accept it, City may do so. Contractor shall pay all claims,
costs, losses, and damages (including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals and all court or
arbitration or other dispute resolution costs) attributable to City's evaluation of
and determination to accept such Defective Work and for the diminished value of
the Work.
2. If any acceptance of defective work occurs prior to release of the Project
Retention, a Change Order will be issued incorporating the necessary revisions
in the Contract Documents with respect to the Work, and City shall be entitled to
an appropriate decrease in the Contract Price, reflecting the diminished value of
Work and all costs incurred by City.
3. If the Project Retention is held in an escrow account as permitted by the Contract
Documents, Contractor will promptly alert the escrow holder, in writing, of the
amount of Retention to be paid to City.
4. If the acceptance of Defective Work occurs after release of the Project Retention,
an appropriate amount will be paid by Contractor to City.
I. City May Correct Defective Work.
1. If Contractor fails within a reasonable time after written notice from City's
Representative to correct Defective Work, or to remove and replace rejected
Work as required by City, or if Contractor fails to perform the Work in accordance
with the Contract Documents, or if Contractor fails to comply with any other
provision of the Contract Documents, City may, after seven (7) Days' written
notice to Contractor, correct, or remedy any such deficiency.
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2. In connection with such corrective or remedial action, City may exclude
Contractor from all or part of the Site, take possession of all or part of the Work
and suspend Contractor's services related thereto, take possession of
Contractor's tools, appliances, construction equipment and machinery at the Site,
and incorporate in the Work all materials and equipment stored at the Site or for
which City has paid Contractor but which are stored elsewhere. Contractor shall
allow City and City's Representative, and the agents, employees, other
contractors, and consultants of each of them, access to the Site to enable City to
exercise the rights and remedies to correct the Defective Work.
3. All claims, costs, losses, and damages (including but not limited to all fees and
charges of engineers, architects, attorneys, and other professionals and all court
or arbitration or other dispute resolution costs) incurred or sustained by City
correcting the Defective Work will be charged against Contractor, and a Change
Order will be issued incorporating the necessary revisions into the Contract
Documents with respect to the Work; and City shall be entitled to an appropriate
decrease in the Contract Price.
4. Such claims, costs, losses and damages will include, but not be limited to, all
costs of repair, or replacement of work of others destroyed or damaged by
correction, removal, or replacement of Defective Work.
5. If the Change Order is executed after all payments under the Contract have been
paid by City and the Project Retention is held in an escrow account as permitted
by the Contract Documents, Contractor will promptly alert the escrow holder, in
writing, of the amount of Retention to be paid to City.
6. If the Change Order is executed after release of the Project Retention, an
appropriate amount will be paid by Contractor to City.
7. Contractor shall not be allowed an extension of the Contract Times because of
any delay in the performance of the Work attributable to City correcting Defective
work.
J. Nothing in the Warranty or in the Contract Documents shall be construed to limit the
rights and remedies available to City at law or in equity, including, but not limited to,
Code of Civil Procedure section 337.15.
ARTICLE 51. DOCUMENT RETENTION & EXAMINATION
A. In accordance with Government Code section 8546.7, records of both the City and
the Contractor shall be subject to examination and audit by the State Auditor General
for a period of three (3) years after final payment.
B. Contractor shall make available to the City any of the Contractor's other documents
related to the Project immediately upon request of the City.
C. In addition to the State Auditor rights above, the City shall have the right to examine
and audit all books, estimates, records, contracts, documents, bid documents,
subcontracts, and other data of the Contractor (including computations and
projections) related to negotiating, pricing, or performing the modification in order to
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evaluate the accuracy and completeness of the cost or pricing data at no additional
cost to the City, for a period of four ( 4) years after final payment.
ARTICLE 52. SEPARATE CONTRACTS
A. The City reserves the right to let other contracts in connection with this Work or on
the Project site. Contractor shall permit other contractors reasonable access and
storage of their materials and execution of their work and shall properly connect and
coordinate its Work with theirs.
B. To ensure proper execution of its subsequent Work, Contractor shall immediately
inspect work already in place and shall at once report to the Engineer any problems
with the Work in place or discrepancies with the Contract Documents.
C. Contractor shall ascertain to its own satisfaction the scope of the Project and nature
of any other contracts that have been or may be awarded by the City in prosecution
of the Project to the end that Contractor may perform this Contract in the light of such
other contracts, if any. Nothing herein contained shall be interpreted as granting to
Contractor exclusive occupancy at site of the Project. Contractor shall not cause any
unnecessary hindrance or delay to any other contractor working on the Project. If
simultaneous execution of any contract for the Project is likely to cause interference
with performance of some other contract or contracts, the Engineer shall decide
which Contractor shall cease Work temporarily and which contractor shall continue
or whether work can be coordinated so that contractors may proceed simultaneously.
The City shall not be responsible for any damages suffered or for extra costs
incurred by Contractor resulting directly or indirectly from award, performance, or
attempted performance of any other contract or contracts on the Project site.
ARTICLE 53. NOTICE AND SERVICE THEREOF
All notices shall be in writing and either served by personal delivery or mailed to the other party
as designated in the Bid Forms. Written notice to the Contractor shall be addressed to
Contractor's principal place of business unless Contractor designates another address in writing
for service of notice . Notice to City shall be addressed to the City as designated in the Notice
Inviting Bids unless City designates another address in writing for service of notice. Notice shall
be effective upon receipt or five (5) calendar days after being sent by first class mail, whichever
is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the
receiving party.
ARTICLE 54. NOTICE OF THIRD PARTY CLAIMS
Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely
notification of the receipt of any third-party claims relating to the Contract. The City is entitled to
recover reasonable costs incurred in providing such notification.
ARTICLE 55. STATE LICENSE BOARD NOTICE
Contractors are required by law to be licensed and regulated by the Contractors' State License
Board which has jurisdiction to investigate complaints against contractors if a complaint
regarding a patent act or omission is filed within four ( 4) years of the date of the alleged
violation. A complaint regarding a latent act or omission pertaining to structural defects must be
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filed within ten (10) years of the date of the alleged violation. Any questions concerning a
contractor may be referred to the Registrar, Contractors' State License Board, P.O. Box 26000,
Sacramento, California 95826.
ARTICLE 56. INTEGRATION
A Oral Modifications Ineffective. No oral order, objection, direction, claim or notice
by any party or person shall affect or modify any of the terms or obligations
contained in the Contract Documents.
B. Contract Documents Represent Entire Contract. The Contract Documents
represent the entire agreement of the City and Contractor.
ARTICLE 57. ASSIGNMENT OF CONTRACT
Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of
interest of any or all of this contract without the prior written consent of the City. Any
assignment or change of Contractor's name of legal entity without the written consent of the City
shall be void. Any assignment of money due or to become due under this Contract shall be
subject to a prior lien for services rendered or Material supplied for performance of Work called
for under the Contract Documents in favor of all persons, firms, or corporations rendering such
services or supplying such Materials to the extent that claims are filed pursuant to the Civil
Code, the Code of Civil Procedure or the Government Code.
ARTICLE 58. CHANGE IN NAME AND NATURE OF CONTRACTOR'S LEGAL ENTITY
Should a change be contemplated in the name or nature of the Contractor's legal entity, the
Contractor shall first notify the City in order that proper steps may be taken to have the change
reflected on the Contract and all related documents . No change of Contractor's name or nature
will affect City's rights under the Contract, including but not limited to the bonds.
ARTICLE 59. ASSIGNMENT OF ANTITRUST ACTIONS
Pursuant to Public Contract Code section 7103.5, in entering into a public works contract or
subcontract to supply goods, services, or materials pursuant to a public works contract,
Contractor or subcontractor offers and agrees to assign to the City all rights, title, and interest in
and to all causes of action it may have under Section 4 of the Clayton Act ( 15 USC, Section 15)
or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7
of the Business and Professions Code), arising from the purchase of goods, services, or
materials pursuant to this contract or any subcontract. This assignment shall be made -and
become effective at the time the City tenders final payment to the Contractor, without further
acknowledgment by the parties. ·
ARTICLE 60. PROHIBITED INTERESTS
No City official or representative who is authorized in such capacity and on behalf of the City to
negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising,
making, accepting or approving any engineering, inspection, construction or material supply
contract or any subcontract in connection with construction of the project, shall be or become
directly or indirectly interested financially in the Contract.
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ARTICLE 61. CONTROLLING LAW
Notwithstanding any subcontract or other contract with any subcontractor, supplier, or other
person or organization performing any part of the Work, this Contract shall be governed by the
law of the State of California excluding any choice of law provisions.
ARTICLE 62. JURISDICTION; VENUE
Contractor and any subcontractor, supplier, or other person or organization performing any part
of the Wqrk agrees that any action or suits at law or in equity arising out of or related to the
bidding, award, or performance of the Work shall be maintained in the Superior Court of Orange
County, California, and expressly consent to the jurisdiction of said court, regardless of
residence or domicile, and agree that said court shall be a proper venue for any such action.
ARTICLE 63. LAWS AND REGULATIONS
A. Contractor shall give all notices and comply with all laws, ordinances, rules and
regulations bearing on conduct of work as indicated and specified . If Contractor
observes that drawings and specifications are at variance therewith, it shall promptly
notify the Engineer in writing and any necessary changes shall be adjusted as
provided for in this Contract for changes in work. If Contractor performs any work
knowing it to be contrary to such laws, ordinances, rules and regulations, and without
such notice to the Engineer, it shall bear all costs arising therefrom.
B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act
("ADA") (42 U .S.C. § 12101 et seq .). The Work will be performed in compliance with
ADA regulations.
ARTICLE 64. PATENTS
Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers
harmless from liability of any nature or kind of claim therefrom including costs and expenses for
or on account of any patented or unpatented invention, article or appliance manufactured,
furnished or used by Contractor in the performance of this contract.
ARTICLE 65. OWNERSHIP OF CONTRACT DOCUMENTS
All Contract Documents furnished by the City are City property. They are not to be used by
Contractor or any subcontractor on other work nor shall Contractor claim any right to such
documents. With exception of one complete set of Contract Documents, all documents shall be
returned to the City on request at completion of the Work.
ARTICLE 66. NOTICE OF TAXABLE POSSESSORY INTEREST
In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may
create a possessory interest subject to personal property taxation for which Contractor will be
responsible .
ARTICLE 67. SURVIVAL OF OBLIGATIONS
All reresentations, indemnifications, warranties, and guarantees made in, required by, or given
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in accordance with the Contract Documents, as well as all continuing obligations indicated in the
Contract Documents, will survive final payment, completion, and acceptance of the Work or
termination or completion of the Contract or termination of the services of Contractor.
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00 73 13 -SPECIAL CONDITIONS
1.1 Engineer of Record .
A. For purposes of this Project, the Engineer of Record or Engineer shall be: Dennis
Michael Metts.
1.2 Location of the Project.
A. The Project is located as shown on sheet G-3 of the Contract Drawings.
B. The general location of the Project is shown on Contract Drawing No. G-1 .
1.3 Status of the Project Area and Rights-of-Way.
A. City, at its expense, will provide permits, covering the City's rights-of-way necessary
for the permanent Work; provided, however, Contractor shall, at its expense, obtain
any bonds or insurance policies or pay any fees and enter into any agreements
required by a controlling authority, e.g., Caltrans or Southern Pacific Railroad
Company, before Contractor enters upon any property or right-of-way under the
jurisdiction of any such controlling authority for the purpose of performing Work.
B. City is pursuing agreeements for temporary access on private property to complete
the permanent work, and will have them in place prior to construction.
C. If permits are required, all operations of Contractor shall conform to the restrictions,
regulations, and requirements set forth in said permits.
D. Contractor is required, as a condition for receiving final payment, to obtain, and
provide City's Representative with copies of, executed damage releases from the
owners whose property has been damaged by the Work. The damage releases will
be on a form provided by City.
E. Contractor shall, also, as a condition for receiving final payment, obtain, and provide
City's Representative with copies of, executed damage releases from the owners of
certain public and private property or areas which have been crossed by the Work or
otherwise affected by the Work. The damage releases will be on a form provided by
City.
1.4 Site Data.
A. The data provided herein is for the information of Contractor and is subject to all
limitations and conditions set forth in the Contract Documents.
B. Subsurface Exploration Data . The following data are included in the Project Manual:
1. None.
C. Other Site Data. The following data are available for inspection at City's office:
1. None .
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Copies of these reports, drawings and other materials when available may be examined
at City's office during regular business hours.
1.5 Pre-Purchased or Pre-Negotiated Material.
[NOT USED.]
1.6 Designation of City's Representative.
A. Unless otherwise modified by City, City's Representative shall be Mike Marquis, P.E.
Associate Civil Engineer.
1. 7 Modification of Hours of Work.
[NOT USED.]
1.8 Project Retention
In accordance with Public Contract Code § 7201, City will withhold 5% of each progress
payment as retention on the Project.
1.9 Reverse Liquidated Damages Due to Unreasonable City Delay .
A. In compliance with the provisions of California Public Contract Code § 7102, the
Contractor will be compensated for damages incurred due to delays in completing
the Work due solely to the fault of the City, where such delay is unreasonable under
the circumstances and not contemplated by the parties and such delay is not the
result of Additional Work. The Contractor and City agree that determining actual
damages is impracticable and extremely difficult. As such, the Contractor shall be
entitled to the appropriate time extension and to payment of liquidated damages in
the sum of $100.00 per Day of delay in excess of the time specified for the
Completion of the Work. Such amount shall constitute the only payment allowed
and shall necessarily include all overhead (direct or indirect), all profit, all
administrative costs, all bond costs, all labor, materials, equipment and rental costs,
and any other costs, expenses and fees incurred or sustained as a result of such
delay. The Contractor expressly agrees to be limited solely to the liquidated
damages for all such delays as defined in this subsection.
1.10 Liqu idated Damages Due to Contractor Delay.
A. Time is of the essence. Should Contractor fail to complete all or any part of the Work
within the time specified in the Contract Documents, City will suffer damage, the
amount of which is difficult, if not impossible, to ascertain and, pursuant to the
authority of Government Code section 53069.85, City shall therefore be entitled to
$100.00 per Day as liquidated damages for each Day or part thereof that actual
completion extends beyond the time specified.
B. Liquidated damages may be deducted from progress payments due Contractor,
Project retention or may be collected directly from Contractor, or from Contractor's
surety. These provisions for liquidated damages shall not prevent City, in case of
Contractor's default, from terminating the Contractor.
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1.11 Utility Outages -Notices to Residents.
A. Should Contractor's operations require interruption of any utility service, Contractor
shall notify City at least ten (10) Days prior to the scheduled outage. Contractor will
notify all impacted residents on a form provided by City at least seven (7) Days prior
to the scheduled outage.
B. Contractor shall be responsible for providing, at its cost, any temporary utility or
facilities necessitated by the utility outage.
1.12 Schedule Constraints.
NOT USED.
1.13 Noise Restrictions
A. Contractor shall use only such equipment on the Work and in such state of repair so
that the emission of sound therefrom is within the noise tolerance level of that
equipment as established by Gal/OSHA.
B. Contractor shall comply with the most restrictive of the following: ( 1) local sound
control and noise level rules, regulations and ordinances and (2) the requirements
contained in these Contract Documents, including hours of operation requirements.
C. No internal combustion engine shall be operated on the Project without a muffler of
the type recommended by the manufacturer. Should any muffler or other control
device sustain damage or be determined to be ineffective or defective, the
Contractor shall promptly remove the equipment and shall not return said equipment
to the job until the device is repaired or replaced. Said noise and vibration level
requirements shall apply to all equipment on the job or related to the job, including
but not limited to, trucks, transit mixers or transit equipment that may or may not be
owned by the Contractor.
1.14 Safety Programs .
The contractor is responsible for site safety at all times. Compensation for site safety is
included in the mobilization item of the bid schedule, and no further compensation will be
allowed.
1.15 Coordination with Other Contractors.
The contractor is responsible for coordination with other contractors, as required to
complete the work. Compensation for coordination with other contractors is included in
the various items of the bid schedule, and no further compensation will be allowed
therefore.
END OF SPECIAL CONDITIONS
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