18-0515_RICH CONSTRUCTION, INC._Construction ContractCITY OF SAN JUAN CAPISTRANO
SAN JUAN CAPISTRANO, CALIFORNIA
CONTRACT DOCUMENTS FOR
EASTERN IRRIGATION WATER SYSTEM, CIP 17808
May 2018
00 52 13 — CONTRACT
This CONTRACT, No. 17808 is made and entered into this 15th day of May, 2018, by and
between City of San Juan Capistrano, sometimes hereinafter called "City," and Rich Construction
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 5, below, for the following Project:
Eastern Irrigation Water System Project, CIP 17808
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 City's Notice to Proceed. The Contractor shall
complete all Work required by the Contract Documents within 90 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 Four Hundred Eighty Four
Thousand Dollars ($484,000). 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
Public Works Contractor Registration Certification
Performance Bond
61147.02100\20950242.4 -2- 00 52 13 - CONTRACT
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]
61147.02100\20950242.4 -3- 00 52 13 - CONTRACT
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on
the day and year above written.
CITY OF SAN JUAN CAPISTRANO
Rich Construction Inc.
By
Name and Title:
License No.
Date:
(CONTRACTOR'S SIGNATURE MUST BE
NOTARIZED AND CORPORATE
SEAL AFFIXED, IF APPLICABLE)
By �7 '
B-wgff le , Ci anager
PC
Date:
Approved as to form this day of 2010
ome for Cit of San Juan Capistrano
END OF CONTRACT
ATTEST:
Ma rris, Cit Jerk
61147.0 21 0 0120950242.4 -4- 00 52 13 - CONTRACT
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on
the day and year above written,,
7) �(_ c�4'1f3I ?it A 0x) - G CITY OF SAN JUAN CAPISTRANO
Rich Construction Inc.
z
By BY
Benjamin Siegel, City Manager
N 4� and Tits Date:
License No.
--- -------- �1,_5'4 ° // -
Date:
(CONTRACTOR'S SIGNATURE MUST BE
NOTARIZED AND CORPORATE
SEAL AFFIXED, IF APPLICABLE)
Approved as to form this day of 20_
Attorney for City of San Juan Capistrano
END OF CONTRACT
61147.02100120950242.4 -4- 00 52 13 - CONTRACT
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
COUNTY
OFF `(
On (� C r.� 20A before me,
appeared
b"00'eU" %Z, Notary Public, personally
— , who proved to me on the basis of satisfactory
evidencePe
be the person(4 whose name(') i are subscribed to the within instrr ment and ackno ledged to
me that she/they executed the same ' i /her/their authorized capacity(it ), and that by �i lher!#heir
signatureon the instrument the person(] or the entity upon behalf of which he person(acte executed
the instrunt.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true a .....— – –
�Iat.mwujr
°01""''"x"`c.wa�,. Y WITNESS m hand and official seal.
►��•
AyCWm LV&" AC 02,201
Signature of Notary 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 and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
F] Individual
❑ Corporate Officer
Titles) Title or Type of Document
Partner(s) _ Limited
General Number of Pages
❑ Attorney -In -Fact
❑ Trustee(s)
❑ Guardian/Conservator Date of Document
❑ Other.
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
61147.02100\20950242.4 -5- 00 52 13 — CONTRACT
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 CCU) -- 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 ("COR") -- 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\20950242.4 -6- 00 72 13 - GENERAL CONDITIONS
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.
O. 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.
Y. Engineer, whenever not qualified, shall mean the City Engineer, acting either directly
or through properly authorized agents, such agents acting severally within the scope
61147.02100\20950242.4 -7- 00 72 13 - GENERAL CONDITIONS
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. Engineer 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 III disposal site in accordance with
provisions of existing law, whichever is more restrictive.
CC. Holiday — 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. Notice 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.
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.
61147.02100\20950242.4 -8- 00 72 13 - GENERAL CONDITIONS
GG. Proiect -- 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.
Il. 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.
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.
61147.02100\20950242.4 -9- 00 72 13 - GENERAL CONDITIONS
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 the
Contractor in dividing Project Work among subcontractors or in establishing the extent
of Work to be performed by any trade.
61147.02100\20950242.4 _10- 00 72 13 - GENERAL CONDITIONS
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, five (5) 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, order the
improper Work removed, remade or replaced by the Contractor at the Contractor's
expense.
61147.02100\20950242.4 -11- 00 72 13 - GENERAL CONDITIONS
ARTICLE 6. MOBILIZATION
A. When a bid item is included in the Bid Form 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 .
tems:
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 thejob site as required herein.
12. Submittal of Construction Schedule as required by the Contract Documents.
61147.02100\20950242.4 _12- 00 72 13 - GENERAL CONDITIONS
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
2. those drawings known to the City of physical conditions relating to existing surface
or subsurface structures at the site (except Underground Facilities).
61147.02100\20950242.4 -13- 00 72 13 - GENERAL CONDITIONS
B. Limited Reliance by Contractor on Technical Data Authorized. 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:
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.
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
61147.02100\20950242.4 -14- 00 72 13 - GENERAL CONDITIONS
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.
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
61147.02100\20950242.4 -15- 00 72 13 - GENERAL CONDITIONS
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.
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.
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, subcontractor, 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
61147.02100\20950242.4 _16_ 00 72 13 - GENERAL CONDITIONS
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 six (6) corrected copies 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.
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.
61147.02100\20950242.4 -17- 00 72 13 - GENERAL CONDITIONS
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 performing 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
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 (Cal/OSHA) trench/excavation permit.
61147.02100\20950242.4 -18- 00 72 13 - GENERAL CONDITIONS
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 III 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 traffic control permit(s) and
construction inspection by the Agency(s) of Jurisdiction only. The Permit and
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.
61147.02100\20950242.4 _19_ 00 72 13 - GENERAL CONDITIONS
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.
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 Cal/OSHA regulations. The toilets and
hand washing facilities shall be maintained in 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 Cal/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.
61147.02100\20950242.4 -20- 00 72 13 - GENERAL CONDITIONS
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 the City of the date fixed for such inspection.
Required certificates of inspection (or similar) 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 shall be paid 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 Contractor 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.
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 must 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
61147.02100\20950242.4 -21- 00 72 13 - GENERAL CONDITIONS
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 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
61147.02100\20950242.4 -22_ 00 72 13 - GENERAL CONDITIONS
week in violation of the provisions of Article 3 (commencing at section 1810), 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; LABOR COMPLIANCE
A. Pursuant to Labor Code section 1776, Contractor and all subcontractors shall maintain
weekly certified payroll records, showing the names, addresses, Social 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 prescribed 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.
The requirement to submit certified payroll records directly to the Labor Commissioner
under Labor Code section 1771.4 shall not apply to work performed on a public works
project that is exempt pursuant to the small project exemption specified in Labor Code
Section 1771.4.
C. Any stop orders issued by the Department of Industrial Relations against Contractor
or any subcontractor that affect Contractor's performance of Work, including any
delay, shall be Contractor's sole responsibility. Any delay arising out of or resulting
from such stop orders shall be considered Contractor caused delay subject to any
applicable liquidated damages and shall not be compensable by the City. Contractor
61147.02100\20950242.4 -23- 00 72 13 - GENERAL CONDITIONS
shall defend, indemnify and hold the City, its officials, officers, employees and agents
free and harmless from any claim or liability arising out of stop orders issued by the
Department of Industrial Relations against Contractor or any subcontractor.
D. 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.
E. 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.
F. Any copy of records 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.
G. 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 10 -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.
H. The responsibility for compliance with this Article shall rest upon the Contractor.
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
61147.02100\20950242.4 -24_ 00 72 13 - GENERAL CONDITIONS
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. Notwithstanding the foregoing, the contractor registration
requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work
performed on a public works project that is exempt pursuant to the small project exemption
specified in Labor Code Sections 1725.5 and 1771.1.
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.
61147.02100\20950242.4 _25- 00 72 13 - GENERAL CONDITIONS
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.
Employment Eligibility; Failure 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
61147.02100\20950242.4 -26- 00 72 13 - GENERAL CONDITIONS
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 Cal/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 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,
61147.02100\20950242.4 _27_ 00 72 13 - GENERAL CONDITIONS
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 Servant/Alternate 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 $1,000,000 per occurrence for 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.
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,
61147.02100\20950242.4 -28- 00 72 13 - GENERAL CONDITIONS
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.
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.
61147.02100\20950242.4 -29- 00 72 13 - GENERAL CONDITIONS
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.
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,
61147.02100\20950242.4 -30- 00 72 13 - GENERAL CONDITIONS
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 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 (10) 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.
61147.02100\20950242.4 -31- 00 72 13 - GENERAL CONDITIONS
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:
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.
61147.02100\20950242.4 -32- 00 72 13 - GENERAL CONDITIONS
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 exception of subsections (13)(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.
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.
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,
61147.02100\20950242.4 -33- 00 72 13 - GENERAL CONDITIONS
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.
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 Initiated 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.
61147.02100\20950242.4 _34_ 00 72 13 - GENERAL CONDITIONS
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
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:
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
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
61147.02100\20950242.4 -35- 00 72 13 - GENERAL CONDITIONS
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.
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 Orders.
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.
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.
61147.02100\20950242.4 -36- 00 72 13 - GENERAL CONDITIONS
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 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.
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.
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.
61147.02100\20950242.4 _37_ 00 72 13 - GENERAL CONDITIONS
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.
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.
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
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
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 Time 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.
61147.02100\20950242.4 _38- 00 72 13 - GENERAL CONDITIONS
(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.
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.
(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.
61147.02100\20950242.4 -39- 00 72 13 - GENERAL CONDITIONS
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.
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.
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.
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.
Overhead 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;
Office Expenses. Expenses of Contractor's principal and branch offices;
iii. Capital Expenses. 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. Negligence. 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;
61147.02100\20950242.4 _40_ 00 72 13 - GENERAL CONDITIONS
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. Anticipated 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;
Special Consultants and Attorneys. 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.
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:
"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.
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.
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.
61147.02100\20950242.4 -41- 00 72 13 - GENERAL CONDITIONS
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
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.
61147.02100\20950242.4 -42- 00 72 13 - GENERAL CONDITIONS
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.
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.
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.
61147.02100\20950242.4 -43- 00 72 13 - GENERAL CONDITIONS
c. Utility -Related Delays.
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.
7. Content for Requests for Contract Extension. 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 Damages for Reasonable Delay.
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
61147.02100\20950242.4 -44- 00 72 13 - GENERAL CONDITIONS
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.
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 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
61147.02100\20950242.4 _45_ 00 72 13 - GENERAL CONDITIONS
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
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;
61147.02100\20950242.4 -46- 00 72 13 - GENERAL CONDITIONS
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
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
Contractor shall timely comply with all notices and requests for changes to the Contract Time or
Contract Price, including but not limited to all requirements of Article 44, Changes and Extra Work,
as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice
of delay or notice of change, or to timely request a change to the Contract Price or Contract Time,
or to timely provide any other notice or request required herein shall constitute a waiver of the
right to further pursue the claim under the Contract or at law.
A. Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public
Contract Code prescribes a process utilizing informal conferences, non-binding judicial
supervised mediation, and judicial arbitration to resolve disputes on construction
claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public
Contract Code prescribes a process for negotiation and mediation to resolve disputes
on construction claims. The intent of this Article is to implement Sections 20104 et seq.
and Section 9204 of the California Public Contract Code. This Article shall be
construed to be consistent with said statutes.
B. Claims. For purposes of this Article, "Claim" means a separate demand by the
Contractor, after a change order duly requested in accordance with Article 44
"Changes and Extra Work" has been denied by the City, for (A) a time extension, (B)
payment of money or damages arising from Work done by or on behalf of the
Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed
by the City. Claims governed by this Article may not be filed unless and until the
Contractor completes all procedures for giving notice of delay or change and for the
requesting of a time extension or change order, including but not necessarily limited
to the procedures contained in Article 44, Changes and Extra Work, and Contractor's
request for a change has been denied in whole or in part. Claims governed by this
Article must be filed no later than the date of final payment. The claim shall be
submitted in writing to the City and shall include on its first page the following in 16
point capital font: "THIS IS A CLAIM." Furthermore, the claim shall include the
documents necessary to substantiate the claim. Nothing herein is intended to extend
the time limit or supersede notice requirements otherwise provided by contract for the
filing of claims, including all requirements pertaining to compensation or payment for
61147.02100\20950242.4 -47- 00 72 13 - GENERAL CONDITIONS
extra Work, disputed Work, and/or changed conditions. Failure to follow such
contractual requirements shall bar any claims or subsequent lawsuits for
compensation or payment thereon.
C. Supporting Documentation. The Contractor shall submit all claims in the following
format:
1. Summary of claim merit and price, reference Contract Document provisions
pursuant to which the claim is made
2. List of documents relating to claim:
a. Specifications
b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other
3. Chronology of events and correspondence
4. Analysis of claim merit
5. Analysis of claim cost
6. Time impact analysis in CPM format
D. City's Response. Upon receipt of a claim pursuant to this Article, City shall conduct
a reasonable review of the claim and, within a period not to exceed 45 Days, shall
provide the Contractor a written statement identifying what portion of the claim is
disputed and what portion is undisputed. Any payment due on an undisputed portion
of the claim will be processed and made within 60 Days after the City issues its written
statement.
If the City needs approval from its governing body to provide the Contractor a
written statement identifying the disputed portion and the undisputed portion of the
claim, and the City's governing body does not meet within the 45 Days or within
the mutually agreed to extension of time following receipt of a claim sent by
registered mail or certified mail, return receipt requested, the City shall have up to
three Days following the next duly publicly noticed meeting of the City's governing
body after the 45 -Day period, or extension, expires to provide the Contractor a
written statement identifying the disputed portion and the undisputed portion.
2. Within 30 Days of receipt of a claim, the City may request in writing additional
documentation supporting the claim or relating to defenses or claims the City may
have against the Contractor. If additional information is thereafter required, it shall
be requested and provided pursuant to this subdivision, upon mutual agreement
of City and the Contractor. The City's written response to the claim, as further
61147.02100\20950242.4 _48_ 00 72 13 - GENERAL CONDITIONS
documented, shall be submitted to the Contractor within 30 Days (if the claim is
less than $15,000, within 15 Days) after receipt of the further documentation, or
within a period of time no greater than that taken by the Contractor in producing
the additional information or requested documentation, whichever is greater.
E. Meet and Confer. If the Contractor disputes the City's written response, or the City
fails to respond within the time prescribed, the Contractor may so notify the City, in
writing, either within 15 Days of receipt of the City's response or within 15 Days of the
City's failure to respond within the time prescribed, respectively, and demand in writing
an informal conference to meet and confer for settlement of the issues in dispute. Upon
receipt of a demand, the City shall schedule a meet and confer conference within 30
Days for settlement of the dispute.
F. Mediation. Within 10 business Days following the conclusion of the meet and confer
conference, if the claim or any portion of the claim remains in dispute, the public entity
shall provide the Contractor a written statement identifying the portion of the claim that
remains in dispute and the portion that is undisputed. Any payment due on an
undisputed portion of the claim shall be processed and made within 60 Days after the
public entity issues its written statement. Any disputed portion of the claim, as identified
by the Contractor in writing, shall be submitted to nonbinding mediation, with the public
entity and the Contractor sharing the associated costs equally. The public entity and
Contractor shall mutually agree to a mediator within 10 business Days after the
disputed portion of the claim has been identified in writing, unless the parties agree to
select a mediator at a later time.
1. If the parties cannot agree upon a mediator, each party shall select a mediator and
those mediators shall select a qualified neutral third party to mediate with regard
to the disputed portion of the claim. Each party shall bear the fees and costs
charged by its respective mediator in connection with the selection of the neutral
mediator.
2. For purposes of this section, mediation includes any nonbinding process,
including, but not limited to, neutral evaluation or a dispute review board, in which
an independent third party or board assists the parties in dispute resolution through
negotiation or by issuance of an evaluation. Any mediation utilized shall conform
to the timeframes in this section.
3. Unless otherwise agreed to by the public entity and the Contractor in writing, the
mediation conducted pursuant to this section shall excuse any further obligation
under Section 20104.4 to mediate after litigation has been commenced.
4. The mediation shall be held no earlier than the date the Contractor completes the
Work or the date that the Contractor last performs Work, whichever is earlier. All
unresolved claims shall be considered jointly in a single mediation, unless a new
unrelated claim arises after mediation is completed.
G. Procedures After Mediation. If following the mediation, the claim or any portion
remains in dispute, the Contractor must file a claim pursuant to Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part
3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation. For
purposes of those provisions, the running of the period of time within which a claim
61147.02100\20950242.4 _49_ 00 72 13 - GENERAL CONDITIONS
must be filed shall be tolled from the time the Contractor submits his or her written
claim pursuant to subdivision (a) until the time the claim is denied, including any period
of time utilized by the meet and confer conference.
H. Civil Actions. The following procedures are established for all civil actions filed to
resolve claims of $375,000 or less:
Within 60 Days, but no earlier than 30 Days, following the filing or responsive
pleadings, the court shall submit the matter to non-binding mediation unless
waived by mutual stipulation of both parties or unless mediation was held prior to
commencement of the action in accordance with Public Contract Code section
9204 and the terms of this Agreement. The mediation process shall provide for
the selection within 15 Days by both parties of a disinterested third person as
mediator, shall be commenced within 30 Days of the submittal, and shall be
concluded within 15 Days from the commencement of the mediation unless a time
requirement is extended upon a good cause showing to the court.
2. If the matter remains in dispute, the case shall be submitted to judicial arbitration
pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of
the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The
Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter
3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding
brought under this subdivision consistent with the rules pertaining to judicial
arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title
3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be
experienced in construction law, and (B) any party appealing an arbitration award
who does not obtain a more favorable judgment shall, in addition to payment of
costs and fees under that chapter, also pay the attorney's fees on appeal of the
other party.
Government Code Claims. 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 satisfied, no action against the City may be filed. A
Government Code claim must be filed no earlier than the date the Work is
completed or the date the Contractor last performs Work on the Project,
whichever occurs first. A Government Code claim shall be inclusive of all
unresolved claims unless a new unrelated claim arises after the Government
Code claim is submitted.
J. Non -Waiver. The City's failure to respond to a claim from the Contractor within the
time periods described in this Article or to otherwise meet the time requirements of this
Article shall result in the claim being deemed rejected in its entirety.
61147.02100\20950242.4 -50- 00 72 13 - GENERAL CONDITIONS
ARTICLE 49. CITY'S RIGHT TO TERMINATE CONTRACT
A. Termination for Cause by the City:
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 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 (10) 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:
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.
61147.02100\20950242.4 -51- 00 72 13 - GENERAL CONDITIONS
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.
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.
61147.02100\20950242.4 _52_ 00 72 13 - GENERAL CONDITIONS
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.
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 (10) 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
61147.02100\20950242.4 -53- 00 72 13 - GENERAL CONDITIONS
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 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
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.
61147.02100\20950242.4 -54- 00 72 13 - GENERAL CONDITIONS
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.
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.
61147.02100\20950242.4 _55_ 00 72 13 - GENERAL CONDITIONS
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
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.
61147.02100\20950242.4 -56- 00 72 13 - GENERAL CONDITIONS
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 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.
61147.02100\20950242.4 _57_ 00 72 13 - GENERAL CONDITIONS
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.
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 Work 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.
61147.02100\20950242.4 -58- 00 72 13 - GENERAL CONDITIONS
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 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.
61147.02100\20950242.4 -59- 00 72 13 - GENERAL CONDITIONS
00 73 13 — SPECIAL CONDITIONS
1.1 Status of the Project Area and Rights -of -Way.
A. City, at its expense, will provide all rights-of-way or permits, or both, covering the
crossing of private property and public and private 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 has acquired or is negotiating to acquire any rights-of-way, or both, necessary for
the permanent Work.
C. If such permits are required, all operations of Contractor shall conform to the
restrictions, regulations, and requirements set forth in said permits, copies of which
will be included in the Contract Documents.
D. Contractor may be required, as a condition for receiving final payment, to obtain, and
provide City's Representative with copies of, executed damage releases from the
owners of public and private property 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.
1.2 Designation of City's Representative.
A. Unless otherwise modified by City, City's Representative shall be Mike Marquis, P.E.
1.3 Modification of Hours of Work.
The Contractor shall be allowed to work from 7:30 AM to 4:30 PM, Monday thru Friday.
1.4 Proiect Retention
In accordance with Public Contract Code § 7201, City will withhold 5% of each progress
payment as retention on the Project.
1.5 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
61147.02100\20950242.4 1 00 73 13 - SPECIAL CONDITIONS
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.
1.6 Liquidated 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.
1.7 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.
1.8 Schedule Constraints.
A. The Contractor is alerted that Arroyo Toads may be present and that work will occur
during the Nesting Bird Season. If the Biologist finds that Construction Activities are
having a negative impact on Arroyo Toads or nesting birds, he has the authority to call
for mitigation measures or to halt construction to avoid potential adverse effects in
accordance with the project Mitigation Monitoring and Reporting Plan (MMRP). The
Contractor shall coordinate his work and adjust his schedule according to the direction
provided by the biological monitor.
B. The Contractor is alerted that work at the Point of Delivery site involves connecting to
the well discharge piping of a privately owned facility. The Contractor shall coordinate
his work with the City and the San Juan Hills Golf Club to minimize down-time of the
well.
C. City has considered these Schedule Constraints when determining the Contract Times
and no additional time or compensation will be added to the Contract due to these
Constraints.
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1.9 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 Cal/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.
1.10 Safety Programs.
[NOT USED.
1.11 Coordination with Other Contractors.
NOT USED.
END OF SPECIAL CONDITIONS
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