1 ALLIANCE INSTALLATION AGREEMENT
This Installation Agreement (“Agreement”) dated / / (“Effective Date”) is made by and between:
City of Commerce
(“Owner”) with its principal place of business at
2535 Commerce Way, Commerce, CA 90040
and
Alliance Building Solutions, Inc.
(“ABS”) with its principal place of business at
12520 High Bluff Drive, Ste 345, San Diego, CA 92130
“Owner” and “Contractor” agree as follows:
1. DEFINITIONS.
“Affiliate” means, with respect to any Person, any other Person (other than an individual) that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” means the direct or indirect ownership of fifty percent (50%) or more of the outstanding capital stock or other equity interests having ordinary voting power. “Applicable Law” means, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, act, code, ruling, proclamation, resolution, declaration, requirement or interpretive or advisory opinion or letter of such Governmental Authority, as construed from time to time by any Governmental Authority, in each case, applicable to the Work, the Site, the Project, the Parties or any other matter bearing on interpretation or performance of this Agreement, as applicable.
“Payment Application” has the meaning set forth in Section 4.4. “Assessment” means all investigations, feasibility and configuration assessments conducted by the Contractor to fulfill its obligations under this Agreement. “Beneficial Use” means when major new equipment and systems included in the Work are properly installed, inspected, operational, and are capable of being used for their intended purpose. “Change Order” means a written instrument prepared by the Owner and the Contractor pursuant to Section 8 stating their agreement upon: (a) a change in the Work or Equipment; (b) the amount of the adjustment in the Contract Price, if any; and (c) an adjustment in the Project Schedule, if any. “Claim” has the meaning set forth in Section 7.6.
2 “Completion Date” means the date set forth in the Project Schedule by which Contractor is guaranteeing Substantial Completion of the Project will be achieved, except as may be adjusted by a Change Order.
“Consultant” means any Person performing or providing expert or professional advice in connection with the Work.
“Contract Documents” means this Agreement and all final Drawings, Specifications, Change Orders, Warranties, surveys, plans, models, reports and designs, and addenda thereto (whether or not attached due to their size), Engineering Documents, Non-Collusion Declaration, and other documents referred to in the Agreement, and authorized written modifications issued after execution of the Agreement.
“Contract Price” shall mean the amount set forth in Section 2.1(a), which is the total payable by Owner in consideration for Contractor’s performance of the Work and delivery of the Project under this Agreement, except as may be adjusted by a Change Order. “Contractor Event of Default” shall have the meaning set forth in Section 7.1. “Drawings” mean graphic and pictorial portions of the Contract Documents prepared for the Project and approved changes thereto, wherever located and whenever issued, showing the design, location, and the Work, generally including plans, elevations, sections, details, schedules, and diagrams as drawn by Contractor, or Contractor’s Subcontractor or Consultants. “Equipment” shall mean all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required or included in the Work and comprise part of the Project by the terms of the Contract Documents and all Legal Requirements.
“Equipment Documentation” shall mean copies or originals of (i) all operating specifications, warranties and other similar information obtained by Contractor from Equipment vendors or Subcontractors or prepared by Contractor or Subcontractors as part of the Work, (ii) a complete inventory list of all Equipment comprising the Project, and (iii) all documentation and identification information with respect to all Equipment comprising part of the Project, including reference or serial numbers for all photovoltaic panels, inverters and other equipment included in the Work. “Equipment Warranties” shall mean the product warranty from any Supplier for the Equipment incorporated into the Project.
“Energy Conservation Measures” or “ECMs” shall mean those renewable energy generation and energy efficiency improvements to be constructed or installed as part of the Work and utilized as part of the System.
“Engineering Documents” shall mean all documents including Drawings, diagrams, plans, Equipment Documentation, Equipment Warranties, Shop Drawings, Assessments, addenda, reports calculations, performance models and other models, designs schedules, and other documents prepared or furnished by Contractor pursuant to this Agreement in respect of the design, engineering and construction of the Project.
“Environmental Law” means all Applicable Laws related to health, safety, the protection of the environment or regulation or prohibition of the environmental pollution or contamination, including laws relating to land use, emission and pollution, discharges into or pollution of water, and Hazardous Materials.
“Equipment Deposits” shall have the meaning set forth in Section 4(a)(ii). 3 “Excusable Event” means any reasonably unforeseeable act, event, occurrence, condition or cause beyond the control of Contractor, or against which Contractor could not have reasonably anticipated before the Effective Date or mitigated upon discovery, and so long as the act, event, occurrence, condition or cause was not attributable to errors or omissions of Contractor, or Contractor’s Subcontractors or Consultants. Subject to the foregoing, Excusable Events may include the following: (i) any wrongful act or wrongful failure to act of, or other unreasonable delay caused by Owner; (ii) the failure to obtain, or delay in obtaining, any Interconnection Agreement or Governmental Approval; (iii) changes in the design, scope or schedule of the Work required by any Governmental Authority, Owner, and any delays caused thereby; (iv) undisclosed or unforeseen conditions encountered at the Sites; (v) changes in Applicable Laws having a material impact on the Project or this Agreement, but excluding impacts to Contractor’s cost to perform; (vi) Force Majeure Events; (vii) work or requirement by Utility affecting the Work; (viii) labor, equipment or material shortages or delays beyond existing known conditions and/or circumstances present as of the Effective Date of this Agreement; (ix) abnormally severe weather conditions, which shall mean weather conditions resulting documented delays or stoppage of Work for more than 21 cumulative days during the Performance Schedule, or causes damage or destruction to the Project prior to Final Completion); (x) Owner’s delay in issuing, or failure to issue the Notice to Proceed. “Final Completion Date” shall mean the actual date on which the Final Completion of the Project has been achieved, as set forth in the Notice of Completion issued by Owner. “Force Majeure Event” shall mean, when used in connection with the performance of a Party’s obligations under this Agreement, any act or event (to the extent not caused by the fault or negligence of such Party or its agents or employees) which is unforeseeable, or being foreseeable, reasonably unavoidable (including by completing industry standard inspections or taking prudent commercially reasonable protective and preventative measures) and outside the reasonable control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its material obligations under this Agreement including natural disasters, acts of God, drought, flood, earthquake, storm, fire, explosion, lightening, epidemic, pandemic, war, riot, civil disturbance, sabotage, terrorism or threat of terrorism, and strikes, lockouts or other labor disturbances or disputes of a national or regional scope.
Notwithstanding the foregoing to the contrary, Force Majeure Events shall not include any of the following:
(a) mechanical or equipment failures (except to the extent any failure is itself caused by a Force Majeure Event);
(b) any condition of the Site for which the affected Party is responsible under this Agreement; (c) strikes, walkouts, lockouts or other labor disturbances or disputes specific to the Project or such Party claiming a Force Majeure Event; or
(d) Economic hardship of either Party.
“Governmental Approval” shall mean each and every national, autonomic, regional and local license, approval, authorization, certification, registration, exemption, filing, recording, permit or other approval with or of any Governmental Authority, including each and every construction or operating permit and any agreement, consent or approval from or with any other Person that is required by any Applicable Law or that is otherwise necessary for the performance of the Work and completion of the Project. “Governmental Authority” shall mean any national, autonomic, regional, provincial, town, city, local or municipal government, authority, body, agency, ministry, court, judicial or administrative body, taxing authority or other governmental organization having jurisdiction over the Work, the Site, the Project, the Parties or any other matter in question (as applicable). “Hazardous Material” shall mean oil or petroleum and petroleum products, asbestos and any asbestos containing materials, radon, polychlorinated biphenyls (“PCBs”), urea formaldehyde insulation, lead paints and coatings, any chemicals, substances, materials, controlled substances, objects, conditions 4 and waste or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any Applicable Law.
Incentive Funds” shall have the meaning set forth in Section 2.9. “Incentive(s)” means subsidies, rebates, credits, reductions, allowances or other financial incentives which the Contractor shall apply for on behalf of the Owner. “Industry Standards” means those standards of care and diligence generally practiced or accepted by reasonably prudent contractors of the energy services industry in engineering, designing, constructing, installing and operating energy efficiency and/or renewable energy generation projects of substantially similar scope, equipment, and geographic region to the Project and in accordance with good engineering and design practices, sound construction procedures, Governmental Approvals, the Contract Documents and other generally accepted standards established for such Work. Industry Standards are not intended to be limited to optimum practice, methods, equipment specifications or acts to the exclusion of all others, but rather to be a spectrum of reasonable and prudent practices and methods generally accepted within the energy services industry to accomplish the desired results and must take into consideration the conditions specific to any given facility, including to the extent such conditions would require a person to (a) perform its duties in good faith, (b) perform its duties in compliance with the Contract Documents, (c) use sufficient and properly trained and skilled personnel, and (d) use parts and supplies that meet the specifications set forth in the Contract Documents, in all cases with respect to (a) through (d) herein, taking into account all of the costs, expenses and benefits of operation of the System. “Instruments of Service” has the meaning set forth in Section 12(h)(iii). “Interconnection Agreement” means an agreement entered into by and between Owner and the Utility for the System.
“LD Rate” has the meaning set forth in Section 5.7(e).
“Legal Requirement” means the requirement of any Applicable Law. “Liquidated Damages” has the meaning set forth in Section 5.7(e). “Mobilization Payment” has the meaning set forth in Section 4(a)(ii). “Notice to Proceed” means a written notice issued by Owner authorizing and directing Contractor to commence Work on the Project as described herein, the anticipated date of such issuance being set forth in the Project Schedule.
“Person” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority or other entity recognized by Applicable Law. “Progress Payment” means a payment made by Owner to Contractor in accordance with the provisions of Section 4.7.
“Project” shall mean the engineering, design, procurement, installation, and construction of the System as further described in Attachment 1, and completion of the Work in accordance with the Contract Documents.
“Project Manual” shall mean the volume assembled for the Work which shall include, without limitation, to the extent within Contractor’s possession, Contract Documents, Governmental Approvals, Equipment Documentation, Equipment Warranties, results of start-up, operational, and other test conducted under the Testing and Commissioning Plan, Engineering Documents including as-built drawings, an operations & maintenance manual, and all other documents that are reasonably applicable to the Work, as required, with reasonably specific instructions and in reasonably sufficient scope and 5 detail to permit Owner to safely operate, monitor and maintain the System at its tested output level in the ordinary course of business. The Project Manual shall include a table of contents in a format agreed upon by the Contractor and Owner, which agreement will not be unreasonably withheld, conditioned or delayed. “Project Schedule” shall mean the schedule for prosecution of the Work, including all development, engineering, permitting, mobilization, construction, equipment procurement, testing and commissioning of the Project, that is set forth in Attachment 2 of this Agreement. “Punchlist” shall mean the list of Work uncompleted upon the achievement of Substantial Completion of the Project, but the lack of which or the failure of which to complete (considered individually or in the aggregate) does not or will not, in the reasonable opinion of Owner, impair the ability of Owner to safely operate, monitor and maintain the System in the ordinary course of business. The Punchlist must be agreed upon by Owner, which agreement will not be unreasonably withheld. “Recovery Plan” means a plan prepared by Contractor, and submitted to the Owner, demonstrating to the Owner’s reasonable satisfaction, the measures that Contractor has taken or will take in order to (i) remedy a delay in completing a portion of the Work by the scheduled dates for such Work as provided in the Project Schedule including achievement of Substantial Completion by the Completion Date.
“Request for Information” means a written request prepared by the Contractor asking the Owner to provide additional information above and beyond that which is available in the Contract Documents and all reference standards, regarding fulfilling the obligations under the Agreement, and the form of which is on file with Owner.
“Schedule of Values” has the meaning set forth in Section 4.7(a)(i). “Schedule of Rates” means the list of rates Exhibit A to be used for invoicing time and materialbased Change Orders. “Shop Drawings” shall mean drawings, diagrams, schedules, and other data, which are prepared by Contractor, or by Contractor’s Subcontractors, Consultants, manufacturers, Suppliers, or distributors illustrating any portion of the Work. The Contractor shall obtain and submit with the Shop Drawings all seismic and other calculations and all product data from Equipment manufacturers. Shop Drawings shall: establish the actual detail of all manufactured or fabricated items, indicate proper relation to adjoining work, amplify design details of mechanical and electrical systems and equipment in proper relation to physical spaces in the structure, and incorporate minor changes of design or construction to suit actual conditions.
“Site” or “Sites” means the location or locations that are owned or controlled by Owner where Contractor is to perform the Work and complete construction of the Project, as more specifically set forth in Attachment 1.
“Site Procedures" shall mean the duly authorized procedures developed and implemented by Contractor and approved by Owner as part of the Safety Plan including procedures addressing access, safety, working hours, security, compliance with legal requirements, environmental compliance, the permit to work system, lock-out procedures, tag-out/tag-in procedures and all other standing orders applicable to work carried out on the Sites.
“Specifications” mean that portion of the Contract Documents consisting of the written requirements for material, equipment, construction systems, instructions, quality assurance standards, workmanship, and performance of related services.
“Subcontract” means any contract, subcontract, purchase order, or other agreement whereby a Subcontractor undertakes either to: (a) perform or provide any portion of the Work; or (b) to provide all or a portion of the Equipment required by any Person performing or providing any portion of the Work. 6 “Subcontractor” means: (a) any Person, other than Contractor, performing or providing any portion of the Work, whether retained by Contractor, any Affiliate of Contractor, or any Person hired by Contractor or any of its Affiliates, and including every tier of Subcontractor, Sub-Subcontractors, and so forth; and (b) any Supplier.
“Substantial Completion” means, in the reasonable discretion of Owner, Beneficial Use of the Project with the exception of the Punchlist.
“Superintendent” has the meaning set forth in Section 2.3(b). “Supplemental Instruction” or “SI” means a written instrument prepared by Owner and submitted to Contractor requesting a minor change to the Work that does not impact the Contract Price or Project Schedule that is mutually agreeable to both parties. “Suppliers” means any Person providing or supplying all or a portion of the Equipment that is included in the Project, or is required by any Person to perform or provide any portion of the Work, whether or not incorporated into the System, including any materialman, vendor or supplier. “System” means the energy efficiency and renewable energy generation components of the ECMs that are necessary to provide a fully integrated and operational Project, at each Site as applicable, in accordance with the Contract Documents and as described in the Work. “Target Annual Energy Production” means the target number of kWh that the renewable energy generation components of the System shall produce in the first year following the Final Completion Date.
“Testing and Commissioning Plan means a plan prepared by Contractor that includes the elements required to implement start-up and operational tests, and otherwise includes all matters relating to testing and commissioning the Project as required by the Contract Documents. “Owner Indemnities” has the meaning set forth in Section 2.3(m). “Utility” means the utility providing electrical services to the Site(s). “Warranties” means, collectively, the warranties provided by Contractor to the Owner hereunder, as described in Section 2.17.
“Warranty Period” has the meaning set forth in Section 2.17(d). “Work” means: (a) complete engineering and design of the System including as-built drawings; (b) the procurement, installation, construction and erection, commissioning, start-up and testing, and all other services, including all labor, materials’ storage, services, demolition, Site preparation, equipping, verification, training, manuals and other things and actions in connection therewith, as necessary for Contractor to fulfill all of its obligations pursuant to this Agreement, the Contract Documents, any Change Orders; and the requirements of Utility and the Interconnection Agreement, the Governmental Approvals, and any other Legal Requirement; (c) the provision of Equipment; (d) transportation and storage of the Equipment; and (e) all of the foregoing that Contractor performs through any Subcontractor or Consultant.
2. SCOPE OF WORK.
2.1 Work.
(a) Subject to and in accordance with the terms and conditions of this Agreement, and conditioned upon the issuance of a Notice to Proceed by Owner, Owner hires Contractor to provide and Contractor agrees to provide all Work and Equipment necessary to delivery to Owner the Project described in this Agreement for the total fixed guaranteed not-to-exceed price of $9,059,952.00 (the “Contract Price”). 7 Unless and until Owner issues a Notice to Proceed, no consideration or compensation or payment of any kind shall be due by Owner to Contractor.
(b) Contractor agrees that the Work and its obligations under this Agreement include to: (1) furnish all engineering, system designs, supervision, labor, equipment and materials, tools, utilities, communications, implements, appliances, and transportation, to procure all Governmental Approvals; (2) completion and execution of Incentive related documents pursuant to Section 2.09 and the Interconnection Agreement and all related applications; (3) coordinate with Utility for any and all requirements to allow the Project to be placed in operation; (4) erect, install, start-up, test and commission the Project; (5) perform all obligations set forth in the Contract Documents; (6) perform related activities for the successful completion of the Work and the delivery of the Project in compliance with the Contract Documents; and (7) perform all the Work in a good and workmanlike manner, free from any and all liens and claims (other than liens and claims created by the non-payment by Owner of an invoice amount hereunder which is not the subject of a good faith dispute or any liens imposed by or through acts or omissions of Owner) from mechanics, material suppliers, Subcontractors, artisans, machinists, teamsters, freight carriers, and laborers required for the Project, all in strict compliance with the Contract Documents, Industry Standards, Legal Requirements and quality control and inspections such that the Project: (i) meets or exceeds the Legal Requirements manufacturer’s Specifications or by methods otherwise approved by the manufacturer; (ii) complies with all requirements of Utility and the Interconnection Agreement; (iii) meets or exceeds the Warranties and guarantees set forth in the Contract Documents; (iv) is safe and adequate for the purpose and conditions specified in the Work; (v) is free from defects in materials and workmanship; and (vi) is comprised of equipment which is new (unless otherwise mutually agreed) and of the agreed quality when installed, designed and manufactured, and of a grade in accordance with generally accepted national standards for the design, manufacture and quality of such equipment.
(b) The Work is further described in Attachment 1 to this Agreement. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, procedures, and coordinating all portions of the Work under the Agreement, unless the Contract Documents give other specific instructions concerning these matters. Notwithstanding anything herein to the contrary, the Work may not exceed that set forth in the Contract Documents, except pursuant to a Change Order. (c) Maintenance. Between the Effective Date of this Agreement and the Final Completion Date, –“”Contractor will store, service and maintain the Equipment, and following the Final Completion Date, Owner shall be responsible for servicing and maintaining the ECMs (and such other equipment) at its own cost.
2.2 Performance of the Work. Contractor shall perform the Work in accordance with requirements of the Contract Documents, the Specifications, and this Agreement. To the extent that any portion of the Work is provided with the Contractor’s own forces, any reference to Subcontractors or Consultants shall be equally applicable to the Contractor. If any of the Work is performed by contractors retained directly by the Owner, Contractor shall be responsible for the coordination and sequencing of the Work of those other contractors so as to avoid any impact on the Project Schedule.
2.3 Contractor Personnel and Labor
(a) Competency. Contractor agrees to use, and agrees that it shall require each Subcontractor to use, only personnel who are qualified and properly trained and who possess every license, permit, registration, certificate or other approval required by Applicable Law or any Governmental Authority to perform the Work. Contractor and each Subcontractor shall: (i) furnish a competent and adequate staff as necessary for the proper administration, coordination, supervision, and superintendence of its portion of the Work; (ii) organize the procurement of all materials and equipment so that the materials and equipment will be available at the time they are needed for the Work; and (iii) keep an adequate force of skilled workers on the job to complete the Work in accordance with all requirements of the Contract Documents. Owner shall have the right, but not the obligation, to require the removal from the Project of any Superintendent, staff member, agent, or employee of any Contractor, Subcontractor, material or equipment supplier, etc., for cause.
8 (b) Superintendent. Contractor shall provide a competent superintendent and assistants as necessary based on the Scope of Work, and who shall be in attendance at the Project Site(s) during performance of the Work (the “Superintendent”). The Superintendent shall represent the Contractor, and communications given to the Superintendent shall be as binding as if given to the Contractor. (c) Prevailing Wages. Contractor acknowledges the Project is a “public work” as defined in Labor Code Section 1720 et seq., and that the Project is subject to: (i) Section 1720, including without limitation Labor Code Section 1771, and (i) the rules and regulations established by the Director of Industrial Relations implementing such statutes. Contractor shall perform all Work on the Project as a public work.
Contractor shall comply with and be bound by all the terms, rules and regulations described in (i) and (ii) as though set forth in full herein. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Project are on file at City of Commerce City Hall (Department of Public Works) and will be made available to any interested party on request. By initiating any Work on the Project Contractor acknowledges receipt of a copy of the Department of Industrial Relations determination of such prevailing rate of per diem wages, and the Contractor shall post such rates at each Site.
(d) Local Hire Goal. Contractor shall implement a “Local Hire Goal” of at least 50% of hours worked by skilled and available laborers be from individuals and businesses residing or located within the jurisdictional limits of the City of Commerce and the surrounding five (5) mile radius. The Project will require specialized labor and equipment but will be subject to the Local Hire Goal.
(e) Failure to Pay Prevailing Rates. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1771, 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. Contractor shall, as a penalty paid to the Owner, forfeit five hundred dollars ($500) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Department of Industrial Relations for the work or craft in which the worker is employed for any public work done pursuant to these Contract Documents by the Contractor or by any Subcontractor.
(f) Compliance Monitoring and Posting Job Sites. The Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Contractor shall post job site notices, as prescribed by Applicable Law.
(g) Employment List. Contractor and each Subcontractor shall keep or cause to be kept an accurate record for Work on this Project showing the names, addresses, social security numbers, work classification, straight time and overtime hours worked and occupations of all laborers, workers and mechanics employed by them in connection with the performance of this Agreement or any Subcontract thereunder, and showing also the actual per diem wage paid to each of such workers, which records shall be open at all reasonable hours to inspection by the Owner, its officers and agents and to the representatives of the Department of Industrial Relations. (h) Apprentices. Contractor shall comply with and be bound by the provisions of Article 12.2, Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Contractor shall be responsible for compliance with these Sections for all apprenticeable occupations. Contractor shall ensure that all apprentices performing Work under the direct supervision of a journey worker from the trade in which the apprentice is indentured. Before commencing Work, Contractor shall provide Owner with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) Days after concluding Work, Contractor and each of its Subcontractors shall submit to Owner a verified statement of the journeyman and apprentice hours performed.
(i) Debarment or Suspension. Contractor shall not perform Work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other Applicable Law providing for the debarment of contractors from public works. Contractor and Subcontractors shall not 9 be debarred or suspended throughout the duration of this Agreement pursuant to Labor Code Section 1777.1 or any other Applicable Law providing for the debarment of contractors from public works. If Contractor or any Subcontractor becomes debarred or suspended during the duration of the Work, Contractor shall immediately notify Owner.
(j) Registration with the DIR. Pursuant to Labor Code sections 1725.5 and 1771.1, before entering into this Agreement or any Subcontract, or before performing any Work on this Agreement, Contractor and Subcontractor must be registered with the Department of Industrial Relations. In compliance with Applicable Law, this Agreement shall not be entered into and shall not be valid without proof to Owner of the Contractor’s and Subcontractors’ current registration with the Department of Industrial Relations to perform public work.
(k) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each Subcontractor to: (1) keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; (2) submit certified payroll to Owner; (3) certify and make such payroll records available for inspection as provided by Section 1776; and (4) inform Owner of the location of the records. Contractor has ten (10) days in which to comply subsequent to receipt of a written notice requesting these records, or as a penalty to Owner, Contractor shall forfeit two hundred dollars ($200) for each day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. (l) Hours of Labor. Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code Section 1810. Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. Contractor shall, as a penalty paid to the Owner, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Project by 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 one (1) calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1-1/2) times the basic rate of pay. (m) Prevailing Wage Indemnity. To the maximum extent permitted by law, Contractor shall indemnify, hold harmless and defend (at Contractor’s expense with counsel reasonably acceptable to Owner) Owner, its officials, officers, employees, agents and independent contractors serving in the role of Owner officials, and volunteers (“Owner Indemnities”) from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed in section by any person (including the Contractor, its Subcontractors, and each of their officials, officers, employees and agents) in connection with any Work undertaken or in connection with the Contract Documents, including without limitation the payment of all consequential damages, attorneys’ fees, and other related costs and expenses. All duties of Contractor under this subsection shall survive expiration or termination of this Agreement.
(n) Subcontractors. For every Subcontractor performing Work, Contractor shall be responsible for such Subcontractor’s compliance with Section 1720 and Labor Code Sections 1860 and 3700, and Contractor shall include in the written contract between it and each Subcontractor a copy of the provisions in this Section 2.3 and a requirement that each Subcontractor shall comply with those provisions.
Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure Subcontractor’s compliance, including without limitation, conducting a periodic review of the certified payroll records of each Subcontractor and upon becoming aware of the failure of a Subcontractor to pay its workers the specified prevailing rate of wages Contractor shall diligently take corrective action to halt or rectify any failure.
10 (o) Undocumented Workers. Contractor hereby promises and agrees to comply with the provisions of federal and/or state law pertaining to the employment of unauthorized aliens as defined therein. Should Contractor so employ unauthorized aliens for the performance of Work covered by this Agreement, and should a federal or state Governmental Authority impose sanctions against Owner for use of unauthorized aliens, Contractor hereby agrees to, and shall, hold harmless, indemnify and defend Owner and Owner Indemnitees for the cost of all such sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by Owner in connection therewith.
2.4 Contractor Responsibility. Contractor shall be responsible to Owner for acts and omissions of the Contractor’s employees, Subcontractors, Consultants, Supplies, and other vendors or services providers, and their respective agents, employees, invitees, and other persons performing portions of the Work under contract with Contractor or any Subcontractor. Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents by tests, inspections, or approvals required or performed by persons other than Contractor. Contractor shall be responsible for inspection of Work already performed under the Contract Documents to determine that such portions are in proper condition to receive subsequent work.
2.5 Subcontractors and Other Contracts for Portions of the Work (a) Subcontractors have been selected by Contractor and presented to for consideration Owner pursuant to the following procedures:
(i) All Subcontractors have been designated, together with the scope and cost of the Work to be performed by each Subcontractor, as well as that portion of the scope and Cost of the Work to be self-performed by Contractor, in the Schedule of Values in Attachment 3. (ii) Contractor has clearly designated the Equipment and ECM’s that will provided directly by Contractor (or Affiliated entities), and the Equipment and ECM’s that will be procured by Contractor from Suppliers or other third-parties, in the Schedule of Values in Attachment 3. (iii) Owner has have the right, without cause or justification, to reject any proposed Subcontractor, Supplier or other materials supplier. Any substitutions of Subcontractors required by Owner may result in an increase in the Contract Price (except to the extent Owner requires a substitution for reasonable safety or performance concerns) and/or the granting of an extension of time for the Project Schedule. Substitutions of Subcontractors made at the election of Contractor shall not result in any increase in the Contract Price. Contractor shall enter into written agreement with each Subcontractor performing any portion of the Work and shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to abide by the terms of the Contract Documents and to assume toward the Contractor all obligations and responsibilities which Contractor, by the Contract Documents, assumes toward the Owner.
Contractor and Subcontractors may not perform work on a public works project with subcontractor who is ineligible to perform work on a public project pursuant to Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the Owner. Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to perform Work.
(b) Each Subcontract for a portion of the Work is assigned by Contractor to Owner provided that:
(i) Assignment is effective only after termination of the Agreement with the Contractor by the Owner for cause pursuant to Section 7.1 and only for those Subcontract agreements which the Owner accepts by notifying the Subcontractor in writing; and
(ii) Assignment is subject to the prior rights of the surety, if any, obligated under any bond relating to the Agreement.
11 2.6 Supply and Procurement of Equipment
(a) Except as expressly provided to the contrary in the Work, Contractor, at its expense, shall purchase all Equipment, and transport and deliver all Equipment and shall inspect, unload, store, construct and install all Equipment required to complete the Project. Contractor shall maintain all Equipment Warranties, obtain required extended warranties when available, and, upon the expiration of the Warranty Period, cause any such remaining Equipment Warranties to be assigned and passed- through to Owner.
Contractor shall at all times perform the Work in a manner consistent with all such Equipment Warranties and will not perform any actions that may violate such warranties. (b) Contractor agrees that all materials and Equipment to be supplied or used by Contractor or any Subcontractor in the performance of its obligations under this Agreement shall be new, unless otherwise specified or mutually agreed (if being incorporated into the System) or in good operating condition (if not being incorporated into the System). Such materials and Equipment shall at all times be maintained, inspected and operated by Contractor pursuant to Industry Standards and as required by Applicable Law until Beneficial Use. Contractor further agrees that all licenses, permits, registrations and certificates or other approvals required by Applicable Law or any Governmental Authority will be procured and maintained for such materials and Equipment at all times during the use of the same by Contractor or any Subcontractor in the performance of any of Contractor’s or such Subcontractor’s obligations under this Agreement. (c) Contractor shall maintain an active inventory list in respect of the Project and, upon completion of any Work with respect to the Equipment (including in respect of any claim under the Warranties), Contractor shall update the active inventory list to reflect the serial numbers and all other information reasonably required by Owner with respect to any new Equipment installed as part of such Work.
2.7 Utilities. Contractor shall supply temporary power (this shall not apply to any power required by Owner as a result of any temporary shutdown by Contractor required in connection with the performance of the Work), telecommunications, water, waste disposal, and other utilities and services to temporary construction trailers required for performance of the Work.
2.8 Utility Rate Changes. If applicable, and subject to Owner’s prior authorization, Contractor shall be responsible for coordinating the desired rate schedule changes with Utility for the Project. Contractor will be responsible for ensuring the Project meets the requirements for inclusion in the desired rate schedules and will promptly inform Owner if there is any discrepancy between such requirements and the specifications for the System set forth in the Work. It is preferred that the switching to these rate schedules happen after the Project has been operational continuously for a thirty (30) day period as required for Final Completion. If Utility only allows the rate schedule to be changed at the time of System interconnection, then the rate schedule change should occur at the time of System interconnection with Utility.
2.9 Incentives. Contractor shall secure on behalf of and for the benefit of, or otherwise payable to Owner, any subsidies, rebates or other incentives, specifically including providing technical assistance in the City’s applying for the Solar Investment Tax Credit Direct Pay, that may be available to Owner from any Governmental Authority or Utility in connection with or relating to the financing, installation, or operation of the Project or otherwise (“Incentive Funds”), including but not limited to those identified in advance by Contractor in Attachment 4. In a timely manner and within the Incentive availability period, Contractor acknowledges that it shall have no right or interest in any such subsidies, rebates or other Incentives. Owner acknowledges that Contractor has no control over final payment or availability of such Incentive Funds, but Contractor shall exercise good faith and sound professional judgement in identifying, applying for, and otherwise obtaining the Inventive Funds on Owner’s behalf. Owner acknowledges and agrees that unless Contractor breaches the foregoing Contractor will have no liability for any failure to receive all or any portion of the Incentive Funds. Procurement, or lack thereof, of the Incentive Funds will not alter the Contract Price or the payment timeline associated with payment of the Contract Price. 12 2.10 Testing and Inspection. Contractor shall at its own expense conduct start -up and operational tests and such other tests described in the Work or Specifications, and shall be responsible for all testing and inspection fees for and coordination with any Governmental Authority for the approval of the Project.
Contractor will notify Owner no less than five (5) days prior to the commencement of testing and Owner or its representative will have the right to observe all such tests. Tests, inspections, and approvals of portions of the Work required by the Contract Documents will comply with the California Building Code (Title 24 of the California Code of Regulations), and with all other Legal Requirements. The following shall apply to the testing and inspection of the Project:
(a) Rejection of Work. Owner’s selected representative may, acting reasonably, recommend to the Owner that the Owner reject Work which does not conform to the Contract Documents. (b) Testing Off-Site. If applicable, any material shipped by Contractor from the source of supply shall not be incorporated in the Project until having satisfactorily passed testing and inspection requirements pursuant to applicable Equipment Specifications, Applicable Law or the requirements of any Governmental Authority.
(c) Responsibility for Errors and Omissions. If after providing ten (10) days written notice for Contractor to cure or begin to commence and diligently pursue to cure completion of the requirements under the Contract Documents, Owner through no fault of its own, is required to provide or secure additional professional services (other than those professional services already within Owner’s scope) Contractor shall be invoiced by Owner for any actual costs incurred for any such additional services, which costs may, among other remedies, be withheld from the progress payments and/or retention until corrected; or deducted from the Contract Price if Owner incurs actual costs of correction. (d) Additional Testing or Inspection, and Costs Related Thereto (i) If Owner or Governmental Authority determines that any portion of the Work on the Project requires additional testing, inspection, or approval, Contractor will, upon Owner’s written authorization, arrange for such additional testing, inspection, or approval. Owner shall bear such costs except as set forth in paragraph (ii), below.
(ii) If the testing or inspection of Work on the Project reveals that Work does not comply with Contract Documents or Legal Requirements, Contractor shall bear all costs arising from such failure, including those of re-testing, re-inspection, approval, or re-approval, including, but not limited to, compensation for services and expenses of the testing laboratory and any other professionals or entities retained by Owner. Any such costs shall be paid for by Owner, and Owner shall then invoice to Contractor and Contractor shall make payment thereof within 30 days after Contractor receives the invoice; if Contractor fails to do so, Owner shall have the right to withhold the amount from any payment due or to be due to Contractor under this Agreement.
(e) Costs for Premature Test. If Contractor requests any test or inspection for any portion of the Project and that portion is not ready for the inspection, Owner shall have the right to invoice Contractor for all costs and expenses relating to the testing or inspection, including, but not limited to, compensation for services and expenses of the testing laboratory, and any other professionals or entities retained by Owner.
Any such costs shall be paid for by Owner, and Owner shall then invoice to Contractor and Contractor shall make payment thereof within thirty (30) days after Contractor receives the invoice; if Contractor fails to do so, Owner shall have the right to withhold the amount from any payment due or to be due to Contractor under the Agreement.
(f) Covered Work. If a portion of the Work is covered or enclosed contrary to the request of any Governmental Authority, Owner’s request, or to requirements specifically expressed in the Contract Documents, it must, if required by the Governmental Authority or Owner, be uncovered for the Governmental Authority, or Owner’s observation and be replaced at Contractor’s expense without change in the Contract Price or Project Schedule.
13 (g) Tests and Inspections Not to Delay Work. Tests and inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work on the Project.
Contractor shall provide Owner a minimum of five (5) working days’ notice. (h) Independent Testing Laboratory. Owner will select and pay for an independent testing laboratory to conduct tests and inspections and, except as included in the scope of work or specifically provided otherwise in the Contract Documents, Owner shall pay for all associated costs. Selection of the materials required to be tested shall be made by, the laboratory or Owner and not by Contractor.
2.11 Local and General Conditions
(a) Contractor has conducted a visual examination of the Sites and acknowledges and agrees that it has satisfied itself as to the general and local conditions and circumstances affecting the Work that could be reasonably ascertained from a visual inspection to ensure that the Project can be built according to all Applicable Laws and Industry Standards in place as of the Effective Date of this Agreement. Contractor acknowledges and agrees that where Assessments were conducted, the results have been provided to the Owner within five (5) days of having been received by the Contractor if requested and all costs associated with the results have been accounted for in the Contract Price. (b) Contractor acknowledges and agrees that it has taken into account all Assessments in any preliminary Engineering Documents that it has provided for use by the Parties in developing the terms and conditions of this Agreement. All preliminary engineering and installation Drawings were completed to be consistent with Applicable Law in place as of the Effective Date of this Agreement, all prevailing construction standards and codes in place as of the Effective Date of this Agreement, and the ECMs that Owner has approved to be incorporated into the Project.
(c) When required by the Work or otherwise required to satisfy this Section 2.11, Contractor will furnish, at its expense, the services of geotechnical engineers or Consultants when reasonably required or as required by Applicable Laws. Such services with reports and appropriate professional recommendations shall include, if applicable, test boring, test pits, soil bearing values, percolation tests, air and water pollution tests, and ground corrosion and resistivity tests, including necessary operations for determining subsoil, air, and water conditions. At Owner’s request, Contractor shall make available to Owner the results of any Site investigation, test borings, analyses, studies or other tests conducted by or in the possession of the Contractor or any of its agents. Nothing herein contained shall be deemed a waiver by Contractor to pursue any available legal right or remedy it may have at any time against any third party who may have prepared any report and/or test relied upon by Contractor.
(d) Unless specifically stated in writing by Owners, Contractor may not rely upon the accuracy of any utility services or site survey information related to private utilities that the Owner may provide. (e) Certain pre-existing conditions may be present within the Sites that: (i) are non-compliant with applicable codes, (ii) may become non-compliant with applicable codes upon completion of Contractor’s Work, (iii) may cause Contractor’s completed Work to be noncompliant with applicable codes, (iv) may prevent Owner from realizing the full benefits of Contractor’s Work, (v) may present a safety or equipment hazard, or (vi) are otherwise outside the scope of Contractor’s Work. Regardless of whether or not such conditions may have been readily identifiable prior to the commencement of Work, Contractor will not be responsible for repairing such pre-existing conditions unless such responsibility is expressly provided for in the Work or an approved Change Order. Contractor, in its sole discretion, may determine whether it will bring said pre-existing conditions into compliance by agreeing to execute a Change Order with Owner for additional compensation and, if appropriate, an extension of time.
2.12 Safety Precautions and Programs
(a) Contractor shall have responsibility for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of this Agreement. Subcontractors have the responsibility for participating in, and enforcing, the safety and loss prevention programs established by the 14 Contractor for the Project including the Safety Plan, which shall cover all Work performed by Contractor and its Subcontractors. Subcontractors shall promptly report in writing and by phone to Contractor all accidents whatsoever arising out of, or in connection with, the performance of the Work, whether on or off the site of Work, which caused death, personal injury, or property damage, giving full details and statements of witnesses. Contractor will provide and maintain first-aid supplies for minor injuries. (b) Prior to beginning construction, Contractor shall provide Owner with a copy of Contractor’s Safety Plan, as well as, if requested, an evaluation and appropriate documentation of the safety record of any licensed first-tier Subcontractor that will be performing Work on the Project. The Safety Plan shall include the location of emergency utility shutoffs (both manual and electronic shutoffs, if applicable).
Contractor shall review the emergency shut off and evacuation plan with Owner prior to start of construction. (c) Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury, or loss to: (A) employees on the Work and other persons who may be affected thereby; (B) the Work, material, and Equipment to be incorporated therein, whether in storage on or off the site of the Work, under the care, custody, or control of Contractor or Contractor’s Subcontractors; and (C) other property at any Site or adjacent thereto such as trees, shrubs, lawns, walks, pavement, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction. Contractor shall give notices and comply with Legal Requirements, ordinances, rules, regulations, and lawful orders of Governmental Authorities bearing on the safety of persons or property or their protection from damage, injury, or loss.
(d) Contractor shall erect and maintain, as required by existing conditions and performance of the contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent sites and utilities, as needed.
(e) Contractor shall have mandatory pre-job safety briefing for all employees and Subcontractor employees on their first day of on-site construction for their company. Hard hat stickers shall be issued as a proof of briefing attendance.
(f) Safety meetings will be held once a week during construction with all Contractor employees and Subcontractors employees attending. Printed names will be taken of those attending the meeting. No individual will start work on the Site without having attended a safety briefing on the dangers and protocols of the Site. Records of this training will be kept and provided to Owner upon request. No individual will operate a piece of equipment on which they have not had certification training. Certification shall be made readily available at the Project Site.
(g) When use or storage of explosives, other hazardous materials or equipment, or unusual methods are necessary for execution of the work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. Contractor shall notify Owner any time that explosives or hazardous materials are expected to be stored on Site. Location of storage shall be coordinated with the Owner and local fire authorities.
(h) Pursuant to Labor Code section 6705, to the extent any portion of the Work involves the excavation of any trench or trenches five (5) feet or more in depth, Contractor shall, in advance of excavation, submit to Owner or a registered civil or structural engineer employed by Owner a detailed plan showing the design of shoring for protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards established by the Safety Plan, the plan shall be prepared by a registered civil or structural engineer, but in no case shall such plan be less effective than that required by the Safety Plan or Applicable Law. Pursuant to Labor Code section 6705, nothing in this Article shall impose tort liability upon Owner or any of its employees.
2.13 Protection of Work and Property. During such times as Contractor or Subcontractors are performing any portion of the Work, they shall protect and secure such Work, materials and Equipment, Owner’s property, and the Site where the Work is being performed from damage or loss arising in connection with 15 operations under the Contract Documents. Contractor and Subcontractors shall repair damage or loss to Equipment or Owner’s property caused by them. Contractor will provide reasonable protection to prevent damage, injury, or loss to employees of Contractor and Subcontractors performing Work under this Agreement. Contractor will not be responsible for Owner’s employees’ safety unless Contractor’s negligence in the performance of its Work is the proximate cause of the employee’s injury. The following shall apply to the protection of Work and property:
(a) Contractor shall at all times comply with the requirements of Applicable Laws and the Safety Plan with respect to the use, occupancy and condition of the Sites, including the location and maintenance of storage and laydown areas used by Contractor.
(b) Contractor will be responsible for all storage and receiving of all Equipment or other freight at the Site(s) or other approved location(s) in a secure manner. Contractor shall obtain Owner approval, for each Site, the location and size of any requested “lay down”, storage, and/or work area. Such approval not to be unreasonably withheld or delayed.
(c) If Equipment or other materials are requested to be stored on-site, prior to construction activities at the Sites, Contractor shall obtain Owner approval, for each Site, the location and size of any requested storage area. Such approval not to be unreasonably withheld or delayed. (d) Contractor shall be solely responsible to timely notify all public and private utilities serving the affected Sites before commencing work on the Sites. Contractor shall notify and receive clearance from any cooperative agency, such as Underground Service Alert, in accordance with Government Code section 4216, et seq. Contractor shall promptly provide a copy of all such notifications to Owner or its designated representative, upon request.
(e) Contractor and Subcontractors shall use only those ingress and egress routes designated by Owner, observe the boundaries of the Sites designated by Owner, park only in those areas designated by Owner, which areas may be on or off the Sites, and comply with any parking control program established by Owner such as furnishing license plate information and placing identifying stickers on vehicles. (f) Contractor shall keep the Sites and surrounding area free from accumulation of waste material or rubbish caused by operations under this Agreement. The Sites shall be maintained in a safe, reasonably neat (as may be expected during active construction or work), and orderly condition. If Contractor fails to reasonably clean up as provided in the Contract Documents, upon providing prior written notice to Contractor and if Contractor fails to respond within five (5) days, Owner may do so and the actual, direct and reasonable cost thereof shall be invoiced to Contractor and withheld from Progress Payments and/or retention. Upon completion of the Project, Contractor and Subcontractor shall dismantle temporary structures, if any, and remove from the Sites all construction and installation equipment, fences, scaffolding, surplus materials, rubbish, and supplies belonging to Contractor or Subcontractor.
2.14 Emergencies. In an emergency affecting the safety of persons or property, Contractor shall take any action necessary, at Contractor’s discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in and requested in accordance with the relevant provisions of this Agreement.
Contractor shall promptly report in writing to Owner all accidents arising out of or in connection with the Work, which caused death, personal injury, or property damage, giving full details, and statements of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to Owner.
2.15 Hazardous Materials. In the event the Contractor encounters or suspects the presence on or in any Site of Hazardous Materials, which have not been rendered harmless, Contractor shall immediately stop Work in the area affected and report the condition to Owner in writing, whether or not such material was generated by Contractor or Owner.
16 (a) Contractor will comply with all Applicable Laws with respect to the identification, removal and proper disposal of any Hazardous Materials known or discovered at or around the Sites, and in connection therewith will execute all generator manifests with respect thereto. Contractor and Subcontractors will comply with all Applicable Laws in connection with the use, handling, and disposal of any Hazardous Substances in the performance of its Work.
(b) To the extent Owner is aware of the presence of any Hazardous Materials at any Site, Owner shall be responsible for informing Contractor in writing of the location of such Hazardous Materials and shall bear responsibility for reasonable damages for personal injury or property damage caused by its failure to disclose the presence of such Hazardous Materials to Contractor. Notwithstanding the foregoing, Owner shall have no affirmative duty or obligation to investigate for Hazardous Materials on any of the Sites.
(c) Any Hazardous Material disposal responsibility of Contractor is explicitly stated in this Agreement or Contract Documents, and otherwise the cost thereof shall be borne by Owner . (d) Owner will indemnify, defend, and hold Contractor harmless from and against any and all actions, claims, demands, damages, disabilities, fines, penalties, losses, costs, expenses (including consultants’ and attorneys’ fees and other defense expenses) and liabilities of any nature that in any way result from, or arise under, such Owner owned or generated Hazardous Materials, except for liabilities to the extent arising from: (1) the negligence or willful misconduct of Contractor, or its Subcontractors, agents or representatives, in the handling, disturbance or release of preexisting Hazardous Materials; (2) Hazardous Materials transported onto the Sites by Contractor, or its Subcontractors, agents or representatives; or (3) as otherwise set forth in this Agreement. This indemnification will survive any termination of this Agreement.
2.16 System Manuals and Drawings
(a) Submittal. Contractor shall obtain and shall submit to Owner all required Engineering Documents and Samples in accordance with the Project Schedule and as required in the Contract Documents with such promptness as to cause no delay in the Work. Owner shall have the right, but not the obligation, to review all Engineering Documents and may direct Contractor to make such changes to the design and engineering of the Project as Owner reasonably believes are necessary and as are requested within a reasonable time after the Engineering Documents are submitted, so long as any such changes are within the scope of Work (or, if not, a Change Order has been executed with respect to such changes); provided however, that no such review or requested change shall impose any liability on Owner (other than to make payment in accordance with any applicable Change Order) or relieve Contractor of any of its responsibility for the design, engineering and performance of the Project as provided in this Agreement.
Any submission, which in Owner’s opinion is incomplete, contains numerous errors, or has been checked only superficially by Contractor, will be returned unviewed by Owner for resubmission by Contractor.
Contractor shall not commence any portion of the Work requiring an Engineering Document or Sample submission until Owner has approved the submission.
(b) Sample. Where samples or mockups are requested by Owner, and Work is approved based on the samples or mockups, all Work shall be in accordance with the approved samples and mockups. (c) Extent of Review. In reviewing Engineering Documents, Owner will not verify dimensions and field conditions. Owner will review and approve Engineering Documents, product data, and samples for aesthetics and for conformance with the design concept of the Work and the information given in the Contract Documents. Owner’s review shall not relieve the Contractor from responsibility for any deviations from the requirements of the Contract Documents unless Owner has given specific written approval.
Contractor and Subcontractors shall be solely responsible for determining any quantities, whether or not shown on the Engineering Documents. Contractor shall submit structural/civil plans and supporting calculations for solar panels system and other applicable improvements for City’s review and approval. 17 (d) Substitution Unless the Contract Documents state that no substitution is permitted, whenever in the Contract Documents any specific brand or trade name is specified such specification shall be deemed to be followed by the words “or equal.” Owner may consider an untimely substitution request if the product specified is no longer commercially available or in Owner’s best interest. (e) Project Manual. A Project Manual shall be assembled by Contractor and provided to Owner as a requirement for achieving Final Completion.
(f) Documents and Samples at the Site. Contractor shall maintain at the Project for the Owner one record copy of the Drawings, specifications, Addenda, Change Orders, and other modifications, in good order and marked currently to record changes and selections made during construction. In addition, Contractor shall maintain at the Sites approved Shop Drawings, Engineering Documents, samples, and similar required submittals.
2.17 Warranties
(a) Contractor Warranties. Contractor warrants that, throughout and until the end of the Warranty Period:
(i) The Project will be developed, designed, engineered and constructed to satisfy all applicable Legal Requirements, the requirements of Utility, the requirements of the Contract Documents, and all descriptions set forth herein, applicable construction codes and standards and all other requirements of this Agreement, and to produce a fully functional Project that is capable of operating free of major defects, assuming customary operation and maintenance.
(ii) All Equipment installed as part of the agreed upon ECMs shall conform in all respects to the requirements of the Contract Documents, Legal Requirements, the requirements of the Owner, the Utility and all other requirements of this Agreement and shall be new, unused (unless otherwise mutually agreed in writing) and undamaged at the time it is put into service upon, and will be installed in accordance with the Equipment Documentation (including all requirements necessary to preserve and maintain in effect any and all Equipment Warranties) and all Equipment Warranties are in effect. (iii) The Work, including all workmanship and materials incorporated therein will be free from defects in design, engineering, materials, construction, and workmanship, and shall conform in all respects with all Legal Requirements, the requirements of Utility, Owner, the Contract Documents, and all descriptions set forth herein, applicable construction codes and standards and all other requirements of this Agreement
(b) Subcontractor and Supplier Warranties. Contractor shall, for the protection of Owner, use commercially reasonable efforts to obtain from all Suppliers and Subcontractors from which Contractor procures machinery, equipment or materials or services, warranties and guarantees with respect to such machinery, equipment, materials or services, which shall be made available to Owner to the full extent of the terms thereof. At all times during performance of Work under the Contract Documents Contractor shall perform the Work in a manner consistent with all such warranties and shall not perform any actions that may violate or void such warranties. Contractor shall assign all remaining Equipment Warranties to Owner upon expiration of the Warranty Period. Contractor shall deliver to Owner promptly following execution or receipt of the applicable agreement copies of all warranties and guarantees received from any Subcontractor or Suppliers, together with copies of such agreements (redacting confidential information as required thereunder).
(c) Independent Warranties. Contractor’s Warranties under this Section are separate and independent of one another. Contractor’s failure to meet any of the foregoing warranties shall be deemed a breach of the Warranties.
(d) Warranty Period. Contractor shall remedy any breach of the Warranties set forth in this Section occurring during the period commencing on the date of Beneficial Use of the entire ECM and ending 18 on the date that is that later of one (1) year after the Beneficial Use of the entire ECM, or the date upon which any applicable manufacturer’s warranty expires (the “Warranty Period”). (e) Remedies.
(i) If any Warranty set forth in this section is breached or a defect or deficiency is discovered during the Warranty Period, Contractor shall, upon written notice from Owner of a Warranty claim prior to the expiration of the Warranty Period, at Contractor’s sole option, re-perform, repair, replace and/or correct the applicable Work and resulting damage to the System caused by such defective Work on a reasonably expedited basis while making reasonable attempts to minimize any impact of the failure on the availability, output and functionality of the System. Contractor shall have reasonable access to the System as necessary to perform its Warranty obligations hereunder. All costs of or incidental to Contractor’s performance of its Warranty obligations shall be borne by Contractor, including, where required, revising or re-engineering any deficient systems, the removal, replacement and reinstallation of all equipment necessary to gain access to defective Work, the repair of any and all damage to any part of the System or the Sites, and the cost of conducting all tests to confirm that all necessary corrective action has occurred.
If the Project Warranties failure has the effect of voiding any Equipment Warranty, then Contractor will at its own expense correct and condition as required in order to ensure that the Equipment Warranty is reinstated by the manufacturer on such item, or that a replacement item with full Equipment Warranty is provided and installed.
(ii) Should Contractor fail to begin to perform such necessary repairs, replacement, or correction within ten (10) Days of notice of a Warranty claim or such shorter period as necessary in the event of an emergency (but not less than twenty-four (24) hours) and thereafter diligently pursue such correction, Owner shall have the right to perform such repair, replacement or correction, and Contractor shall be liable for all reasonable, direct costs, charges and expenses incurred by Owner in connection with such repair or replacement and shall forthwith pay to Owner an amount equal to such costs, charges and expenses upon receipt of invoices certified by Owner. Owner’s action in correcting defects in accordance with this Section shall not void Contractor’s Warranty obligations hereunder, except in the case of Owner’s or it agent’s (other than Contractor or any Subcontractor) negligence or willful misconduct. (f) Warranty Exclusions. Notwithstanding any provision herein to the contrary, the Warranty obligations of Contractor do not extend to (i) Work that is damaged by the negligence or willful misconduct of Owner, (ii) the failure of Owner to maintain and operate the Equipment materially in accordance with all manufacturer’s recommendations and any instructions, practices and procedures of which Owner has been advised in writing by Contractor (except if such failure is caused by Contractor or any Subcontractor), (iii) normal wear and tear, (iv) Force Majeure Events, (v) any alteration, repair or replacement made by a Person other than Contractor or any Subcontractor without the prior written approval of Contractor (excluding alterations, repairs or replacements made pursuant to this Agreement), except in the case of Owner’s or its agent’s (other than Contractor or any Subcontractor) negligence or willful misconduct in the performance thereof) or contrary to instructions from Contractor; and (vi) corrosion, erosion, deterioration and abuse. (g) Waivers. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION, CONTRACTOR
MAKES NO WARRANTIES IN CONNECTION WITH THE WORK PROVIDED UNDER THIS
AGREEMENT, WHETHER EXPRESS OR IMPLIED IN LAW, INCLUDING ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. OWNER WILL HAVE NO REMEDIES AGAINST EITHER CONTRACTOR OR ANY CONTRACTOR’S SUBCONTRACTORS OR
SUPPLIERS FOR ANY DEFECTIVE MATERIALS OR EQUIPMENT INSTALLED, EXCEPT FOR THE
REPAIR OR REPLACEMENT OF SUCH MATERIALS OR EQUIPMENT IN ACCORDANCE WITH THE WARRANTY INDICATED ABOVE. SPECIFICALLY, NEITHER CONTRACTOR, NOR CONTRACTOR’S
SUBCONTRACTORS OR SUPPLIERS, WILL BE LIABLE TO OWNER FOR LOSS OF PROFITS OR FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.
19 2.18 Owner’s Right to Stop the Work. If Contractor fails to correct Work, which is not in accordance with the requirements of the Contract Documents, or persistently fails to carry out Work in accordance with the Contract Documents of fails to follow safety requirements, the Owner, by written order signed personally or by an agent specifically so empowered by the Owner in writing, may order the Contractor to stop the Work or any portion thereof, until the cause for such order has been eliminated.
2.19 Owner’s Right to Carry Out The Work. If Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails (within a sixty (60) day period after receipt of written notice or an alternative reasonable time period expressly stated in the written notice from the Owner) to commence and continue correction of such default or neglect with diligence and promptness, Owner may correct such deficiencies by whatever reasonable method Owner may deem expedient without prejudice to other remedies Owner may have, and may withhold for the cost of such correction from any sums due Contractor under this Agreement
2.20 Owner’s Obligations.
(a) Registration, Permits and Approvals.
(i) Prior to issuing the Notice to Proceed to Contractor, Owner must register the Project with the Department of Industrial Relations, using Form PWC-100. (ii) Owner will cooperate fully with and assist Contractor in obtaining all Governmental Approvals required under this Contract. Contractor is responsible for obtaining and paying for (but including the cost therefor in the Contract Price), Applicable Permits; except those Applicable Permits to be issued by Owner itself. Owner will be responsible for obtaining and paying for all other inspections, certifications, permits or approvals that may be required, including annual operating permits and any approvals or exemptions required by CEQA, as applicable.
(b) Coordination. The Parties will work together in good faith to coordinate the activities of Contractor and Contractor’s Subcontractors and Suppliers with those of Owner to allow Contractor to timely complete the Work.
(c) Access. Owner hereby grants to Contractor, without cost to Contractor, all rights of ingress and egress at the Sites, necessary for Contractor to timely perform the Work contemplated by this Agreement, including without limitation and at no extra cost to Contractor, access to perform Work on Saturdays, Sundays, legal holidays, and non-regular working hours when reasonably required to minimize interruptions to Owner’s normal activities at the Sites. Contractor shall provide Owner access to the Work in preparation and progress wherever located.
(d) Consents; Cooperation. Whenever a Party’s consent, approval, satisfaction, or determination will be required or permitted under this Agreement, and this Agreement does not expressly state that the Party may act in its sole discretion, such consent, approval, satisfaction, or determination will not be unreasonably withheld, qualified, conditioned, or delayed, whether or not such a “reasonableness” standard is expressly stated in this Agreement. Whenever a Party’s cooperation is required for the other Party to carry out its obligations hereunder, each Party agrees that it will act in good faith and reasonably in so cooperating with the other Party or its designated representatives or assignees or subcontractors.
Each Party will furnish decisions, information, and approvals required by this Agreement in a timely manner so as not to delay the other Party’s performance under this Agreement. (e) Owner’s Obligations.
(i) Owner will coordinate with Contractor to provide a temporary staging area for Contractor, or its subcontractors, to use during the construction phase to store and assemble equipment for completion of the Work, if needed. Owner will provide sufficient space at the Sites for the performance of the Work and the storage, installation, and operation of any equipment and materials Owner will not 20 unreasonably restrict Contractor’s access to Sites to make emergency repairs or corrections as Contractor may determine are needed.
(ii) Owner will maintain the portion of each Site that is not directly affected by Contractor’s Work. Owner will keep the designated Site and staging area for the Project free of obstructions, waste, and materials within the reasonable control of Owner.
(iii) Owner will obtain any required environmental clearance from, and any inspections, including special inspections, or permits required by, any federal, state, and local jurisdictions, including but not limited to any clearances required under CEQA, prior to scheduled construction start date. (iv) Subsurface conditions and obstacles (buried pipe, utilities, etc.) that were not reasonably ascertainable by Contractor or are not otherwise previously and accurately documented by Owner and such documentation made available to and reasonably relied upon by Contractor are the responsibility of Owner.
(v) Owner will remove any Hazardous Materials either known to Owner prior to the commencement of the Work or encountered by Contractor during the construction of the Project, if necessary, in order for the Work to progress safely, unless otherwise specifically stated in the Scope of Work. Contractor will respond to the discovery of Hazardous Materials at or around the Sites during the course of Contractor’s construction.
(vi) Owner will coordinate the Work to be performed by Contractor with its own operations and with any other construction project that is ongoing at or around the Sites, with the exception that Contractor will coordinate the interconnection Sites work, if any, which will be performed by the Utility. (f) Appropriation. Owner warrants and represents that Owner has obtained complete funding to compensate Contractor for the Work before issuing a Notice to Proceed to commence Work.
3. TERM AND TERMINATION. The term of this Agreement shall commence upon the date of the Owner’s issuance of a Notice to Proceed with the Work to Contractor, and shall expire upon Contractor’s completion of the Work to the reasonable satisfaction of Owner, which shall be signified by Owner’s issuance of a Notice of Completion in the form prescribed by law. In addition, all of the covenants, representations and warranties set forth in the Contract Documents, including indemnification obligations, that are intended to bind the Parties after the completion of the Project or termination of the Contract Documents will survive such completion or termination for the periods provided for in the Contract Documents or otherwise allowed by law. The Owner or Contractor may terminate the Contract Documents only as provided in the Contract Documents.
4. PRICE AND PAYMENT.
4.1 Contract Price. As full and complete compensation for Contractor’s obligations under the Contract Documents, Owner shall pay to Contractor in installments in accordance with the Progress Payment Milestones as specified in this Section 4, and Contractor shall accept as payment in full by Owner for the delivery of the Project and its other obligations under the Contract Documents, the Contract Price, except as may only be adjusted by Change Orders in accordance with the provisions of this Agreement. Except as otherwise provided in this Agreement, Contractor shall assume the risk of all costs in excess of the Contract Price in the performance the Work and to provide a fully completed and successfully operational Project, complete in every detail according to the provisions of the Contract Documents and shall not be entitled to additional payments because of such excess costs. Should Contractor believe that it is entitled to additional compensation, whether money or time, it must request such compensation pursuant to the provisions governing Change Orders (Section 8) and/or provisions governing Claims (Section 7.6).
4.2 Retention. Owner shall retain an amount equal to 5% of each Progress Payment made for the Project.
21 4.3 Payment Schedule. The Progress Payment Milestones defined in this Section shall be used as the basis for preparation of progress invoices. Subject to Section 4.9 and except as provided in the Agreement, Owner shall pay to Contractor the applicable Progress Payment set forth in the Progress Payment Milestones when:
(a) Contractor has completed the Work associated with such payment in accordance with the Progress Payment Milestones;
(b) Following submittal of the supporting documentation required for the respective Progress Payment Milestones to the satisfaction of the Owner;
(c) Following submittal of an Application for Payment; and (d) Subject to Retention as provided in Section 4.2.
4.4 Application for Payment. Contractor shall submit to Owner an invoice (a “Payment Application”) in the standard form on file with Owner. Each monthly progress report shall be certified by Contractor as being true and correct as of the date of such Payment Application . Contractor warrants that title to all Work covered by a Payment Application will pass to the Owner no later than the time of payment.
4.5 Review of Progress Payment. Owner will, within seven (7) Days after receipt of Contractor’s Payment Application, either approve such payment or notify Contractor in writing of Owner’s reasons for withholding approval in whole or in part. The review of Contractor’s Payment Application by Owner is based on Owner’s observations at the Site and the data comprising the Payment Application whether the Work has progressed to the point indicated and whether, to the best of Owner’s knowledge, information, and belief, the quality of the Work is in accordance with the Contract Documents. Owner will pay Contractor the amount Owner approves pursuant to Section 4.7 within 30 days after the Payment Application was properly submitted.
4.6 Decisions to Withhold Payment. Owner may withhold payment, in whole, or in part, to such extent as may be reasonably necessary to protect the Owner from loss because of any acts or omissions by Contractor, including any rights to withhold mentioned in the Contract Documents.
4.7 Progress Payment Milestones. Progress Payments shall be made in accordance with Public Contract Code section 20104.50. Owner shall pay the Contract Price to Contractor on percent completion basis in accordance with the Schedule of Values in Attachment 3, and after Contractor has complied with the requirements of this Section 4.7 and the Contract Documents (each, a “Progress Payment Milestone”):
(a) General Provision for Progress Payment Milestones.
(i) Progress Payments: As the Work progresses, Contractor will submit to Owner its Applications for Payment based on the progress made on the Project through the date on which Contractor submits such application for payment. Only one Application for Payment shall be submitted per calendar month. Within twenty-one (21) calendar days from the Effective Date, Contractor will prepare and submit to Owner a schedule of values apportioned to the various divisions or phases of the Work (“Schedule of Values”). Each line item contained in the Schedule of Values will be assigned a value such that the total of all items equals the Contract Price. All Applications for Payment will be in accordance with the Schedule of Values.
(ii) Mobilization and Equipment Deposits: Notwithstanding paragraph (i) above, a “Mobilization Payment” equal to five (5) percent of the Contract Price, and an “Equipment Deposits” in equal to five (5) percent of the Contract Price, shall be paid by Owner to Contractor upon Owner’s issuance of a Notice to Proceed. Such amounts shall be deducted from the ensuing Progress Payment made by Owner to Contractor such that all future Progress Payments shall correspond with Progress Completion Milestones. 22 (iii) Final Payment: Five (5) percent of the Contract Price upon filing of the project Notice of Completion, less any amounts properly withheld by Owner in accordance with the Contract Documents, until such time, if any, that such amount or amounts may be or are required to be released in accordance with the Contract Documents.
4.8 Payments and Information to Subcontractors. No later than seven (7) Days after Contractor receives payment from Owner, pursuant to Business and Professions Code section 7108.5, Contractor shall pay to each Subcontractor, out of the amount paid to Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled under the parties Subcontract and payment terms, reflecting percentages actually retained from payments to Contractor on account of such Subcontractor's portion of the Work. Contractor shall, by appropriate Subcontract with each Subcontractor, require each Subcontractor to make payments to sub-subcontractors in a similar manner. Owner has no obligation to pay, or to see to the payment of, money to a Subcontractor except as may otherwise be required by Applicable Law.
4.9 Waivers and Releases. Within thirty (30) days after receipt of each progress payment and the Final Payment, Contractor shall provide (and shall cause its first-tier Suppliers and Subcontractors to provide) to Owner a conditional lien waiver and release (related to the Progress Payment as applicable) in a form substantially similar to the forms attached hereto as Attachment 5.
4.10 Progress Payment Terms. The obligation of the Owner to pay Progress Payments hereunder shall constitute a current expense of Owner and shall not in any way be construed to be a debt of the Owner in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by Owner, nor shall anything contained herein constitute a pledge of the general tax revenues, funds, or moneys of Owner.
4.11 Completion of Work. Upon receipt of the Contractor’s signed Final Completion Certificate, Owner will make an inspection to determine whether the Work, or designated portion thereof, is complete. If Owner’s inspection discloses any item which is not completed in accordance with the requirements of the Contract Documents, Contractor shall, before Owner’s issuance of the Notice of Completion and Final Payment, diligently complete or correct such item.
4.12 Partial Occupancy or Use. To the extent reasonably practicable based on the particular portion of the scope of Work, Owner may occupy or use any completed or partially completed portion of the Work at any stage without accepting that Work and without waiving rights to claim damages as to that Work (to the extent expressly permitted herein). Owner and Contractor shall agree in writing to the responsibilities assigned to each of them for payments, security, maintenance, heat, utilities, damage to the Work, insurance, the period for correction of the Work, and the commencement of warranties required by the Contract Documents.
4.13 Acceptance, Final Completion Certificate and Final Payment. If Owner’s representatives find the Work fully performed under the Contract Documents, they shall so notify Contractor, who shall then submit to Owner its final Application for Payment. After Owner’s representatives find the Work fully performed, Owner’s governing body should accept the Work as fully complete. After completion, Owner may record a Final Completion Certificate with the County Recorder in accordance with Civil Code section 3093. Contractor shall, upon receipt of Final Payment from Owner, pay the amounts due Subcontractors.
Owner shall pay the retainage pursuant to Public Contract Code section 7107. Any application for Final Payment shall be accompanied by the same details required for regular progress payments. Acceptance of the Final Payment shall constitute a waiver of Claims except for those previously identified in writing and identified by that payee as unsettled at the time of final payment.
4.14 Taxes Contractor will pay all applicable Federal, State, and local taxes on all materials, labor, or services furnished by it, and all taxes arising out of its operations under the Contract Documents.
4.15 Limitations on Compensation. The “Contract Price” includes the total, not to exceed compensation that will be paid to Contractor in connection with the Work and Project called for by this 23 Agreement, including: (a) all costs for all labor, materials, or equipment needed to deliver a “turnkey” Project in compliance with the Contract Documents; and (b) any and all construction management fees, overhead, administrative charges, profit, or compensation of any other kind or nature to be paid Contractor in consideration for the Work.
5. COMMENCEMENT AND SCHEDULE
5.1 Project Schedule. Time is of the essence in this Agreement (subject to any notice requirements and cure periods set forth in this Agreement), and, subject to the terms of the Contract Documents, the date for Substantial Completion of the Project shall be the Completion Date as set forth on the Project Schedule, and Contractor shall develop, design, install and commission the Project and perform all Work hereunder in accordance with the Project Schedule, Attachment 2.
5.2 Project Phases and Notice to Proceed. The Effective Date shall not be postponed by the failure to act of Contractor or of persons or entities for which Contractor is responsible. The Work on the Project shall be performed in accordance with the following phased approach:
(a) Design Phase. Contractor shall prepare and deliver all Engineering Documents to Owner for review and approval, which approval shall not be unreasonably withheld. Owner shall diligently review and respond to each submission by Contractor within twenty (20) days. Contractor shall incorporate Owner’s comments and requested changes unless Contractor can demonstrate that such requested changes would materially impact the Contract Price, the Project Schedule, or any other material requirement of the Contract Documents in which case Contractor shall submit a Change Order. Upon resolution of the provision hereinabove set forth, Contractor shall complete and submit revised Engineering Documents as early as is practical but in all cases within 20 days.
(b) Governmental Approval Phase. Upon Owner’s written approval of Engineering Documents, Contractor shall seek all such approvals of all required Engineering Documents and the Project as may be required by any Governmental Authority. Contractor shall exercise all reasonable diligence to ensure that all necessary Governmental Approvals are received by the date specified in the Project Schedule. Owner shall not unreasonably withhold its consent to any modifications to the Engineering Documents that may be requested by any Governmental Authority or quasi-governmental agency with jurisdiction over the Project or the Work, excepting any changes that materially affect the Contract Price or the Target Annual Energy Production, or that materially affect the sitting of the Project and its impact on Owner’s operations.
The Engineering Documents with all changes as necessitated by any Governmental Authority and as approved by Owner shall constitute the 100% Engineering Documents and serve as the basis for construction. The receipt and approval of the one hundred percent (100%) Engineering Documents and copies of all Governmental Approvals by the Owner shall constitute the completion of the Governmental Approval Phase.
(c) Construction Phase. Following approval of the one hundred percent (100%) Engineering Documents and delivery of copies of all Governmental Approvals to Owner necessary to begin construction of the Project, Contractor shall facilitate, or cooperate with Owner in its efforts to facilitate, a kick-off meeting with Owner, any Owner representatives, Contractor, and any other relevant Party to this Agreement.
Following the kick-off meeting, Contractor shall commence the construction of the Project in accordance with the one hundred percent (100%) Engineering Documents and all other Contract Documents. (d) Substantial Completion. When Contractor believes it has achieved Substantial Completion, Contractor shall notify Owner of the same certifying completion of the Construction Phase. Within ten (10) Business Days after Contractor’s submission or Owner’s independent receipt of all items required for Substantial Completion, Owner shall either (i) acknowledge and agree in a writing delivered to Contractor that the Construction Phase has been satisfactorily completed, or (ii) advise Contractor by written notice that Substantial Completion has not been achieved and identify any missing items or defects or deficiencies in the Work for which Contractor is responsible or any other reason why the requirements of Substantial Completion have not been met. Substantial Completion shall be achieved when, and completion of the Construction Phase requires that:
24 (1) The Project has been built in conformance with the terms and conditions of the Contract Documents and the requirements of the Utility;
(2) The Project complies with all applicable Legal Requirements and has passed all required inspections by any applicable Governmental Authority and all applicable Governmental Approvals have been received and copies thereof have been delivered to Owner; (3) Submission of a written request to schedule the Utility permission to operate inspection and a copy thereof provided to Owner.
(4) Contractor shall have delivered a true, correct, and complete certification of Substantial Completion signed by Contractor.
(e) Commissioning Phase. During the construction phase of the work on the Project and before the Completion Date, Contractor shall conduct all commissioning tests in accordance with the Contractor’s Testing and Commissioning Plan which shall include but is not limited to the start up and operational tests.
Contractor shall provide notice to Owner of any scheduled test(s) of installed equipment or the System, and Owner or its designees shall be present, at their option (and should Owner not attend, waive their rights to the same), at any or all such tests conducted by Contractor, any Subcontractor, or manufacturers of the Equipment. Contractor shall be responsible for correcting or adjusting all deficiencies in the System, Work and Equipment operations that Contractor provided and installed that may be observed during Equipment commissioning procedures. Completion of the Commissioning Phase requires that:
(1) If applicable, all requirements of Utility for testing and interconnection of the renewable energy generation systems installed as part of the System have been satisfied, the System is fully interconnected and operating normally to produce electricity and Contractor has obtained written permission to operate from Utility for each Site;
(2) The start up and operational tests and all other related tests have been completed to the Owner’s satisfaction and the results provided to the Owner; (3) All Work has been completed other than the Work solely required for Final Completion (including the Work set forth in the Punchlist);
(f) Final Completion. When Contractor believes it has achieved Final Completion, Contractor shall deliver to Owner the written Final Completion Certificate which certificate shall certify the Final Completion Date and the Contractors achievement of Final Completion. Within ten (10) business days after Contractor’s submission or Owner’s independent receipt of all items required for Final Completion, Owner shall either (i) deliver such certificate to Contractor, acknowledged and agreed by Owner, and confirming the Final Completion Date (the “Final Completion Certificate”). The Project may only be accepted as complete by action of the Owner. Completion of Final Completion requires that:
(1) Contractor has received all local, state and federal Governmental Approvals and other approvals as may be required by Law for the operation and maintenance of the Project, including approvals, if any, required under the CEQA for the Project;
(2) The Project has completed 30 days of continuous operation and is able to conserve, produce and deliver energy to Owner pursuant to the terms of this Agreement; (3) Owner has received from Contractor the final Project Manual (electronic and hardcopy format) including two (2) sets of full size as-built drawings approved and stamped by the engineer of record (as built drawings shall also be provided to Owner in PDF and native file format); 25 (4) Contractor has provided all training to the Owner in the operation, emergency shut-down procedures, and recommended operation and maintenance of the System and has provided Owner with two (2) sets of keys to all locks, equipment, and boxes that are part of the System; (5) All Contractor’s materials and wastes have been removed from the Site and properly disposed of;
(6) All Punchlist Work with respect to the Project and the Site has been completed to the Owner’s reasonable satisfaction;
(7) A final walkthrough of the Project and Sites has been conducted with Contractor and Owner to determine completion of the terms of the Agreement. Any erroneous claims of completion by Contractor resulting in a premature walk through shall be at Contractor’s sole cost and expense and Owner shall make adjustments to the Contract Price by reducing the amount thereof to pay for any costs incurred by the Owner due to the erroneous claims by the Contractor that the Project is complete; and (8) Contractor shall have delivered a true, correct, and complete Final Completion Certificate signed by Contractor.
5.3 Hours of Work
(a) Sufficient Forces Contractors and Subcontractors shall furnish sufficient forces to ensure the prosecution of the Work in accordance with the Project Schedule. (b) Performance During Work Hours Work shall be performed during regular working hours except that in the event of an emergency or when required to complete the Work in accordance with job progress, Work may be performed outside of regular working hours with the advance written consent of the Owner.
Subject to Owner’s advance written approval, Work may also be performed outside of regular working hours to minimize disruption to Owner operations.
5.4 Progress and Completion. Time limits stated in the Contract Documents are of the essence of the Agreement (subject to any notice requirements and cure periods set forth in this Agreement). By executing the Agreement Contractor confirms that the Project Schedule is a reasonable period for performing the Work. Contractor shall not knowingly, except by agreement or instruction of Owner, in writing, commence operations on the Site or elsewhere prior to the effective date of insurance required by this Agreement to be furnished by Contractor. The date of commencement of the Work shall not be changed by the effective date of such insurance. Contractor shall proceed expeditiously with adequate forces and shall achieve Completion within the Project Schedule, subject to any extension rights set forth in this Agreement. Upon request, Contractor shall submit its daily logs for the monthly period with the updated schedule. Float is not for the exclusive use or benefit of either Party but it is a jointly owned expiring Project resource available to both Parties as needed to meet the Project Schedule.
5.5 Progress Meetings. Unless otherwise stated in the Contract Documents and subject to change by Owner, the Parties shall meet at least biweekly during the performance of Contractor’s work to, among other things, review work performed to date and to be performed. Contractor shall organize the meeting, prepare, and distribute meeting notes. Minute notes shall be taken in satisfactory written form and include a three (3) week look-ahead schedule, Request for Information log, and Change Order log, as applicable.
Meeting minutes shall be updated during the meeting and distributed within three (3) Business Days of the meeting and Owner shall have 5busines days after Owner’s receipt of such minutes to object to them in writing and provide corrections in writing. A quorum of meeting attendees will be named at the first meeting.
The named quorum shall be in attendance in all Project meetings.
5.6 Conformity with Project Schedule. Contractor shall prosecute the Work, and shall cause each Subcontractor to prosecute the Work, so that the portion of the Work completed at any point in time shall be not less than as is required by the Project Schedule (subject to any extension rights set forth in this Agreement). If the rate of progress is such that the total amount of Work and/or the degree of completion 26 of the Work accomplished by Contractor within any time period required by the Project Schedule and/or the Contract Documents is less than the amount therein specified to be completed within such time, and it reasonably appears that Contractor will be unable to complete any portion of the Work by the corresponding scheduled date or deadline, Contractor shall so notify Owner within ten (10) Days of Contractor’s knowledge of the delay, or Owner may notify Contractor of the same. Contractor shall, within ten (10) Business Days of Contractor’s knowledge of such delay or receipt of any such notice from Owner, submit a Recovery Plan to Owner allowing for completion of the Work on the Project by the Completion Date. If Owner directs Contractor in writing to implement the Recovery Plan, then Contractor shall do so within ten (10) Business Days or such request. If Owner, acting reasonably, does not agree that Contractor has demonstrated in the proposed Recovery Plan its ability to recapture lost time, meet interim milestones and complete the relevant portion of the Work by the applicable scheduled date or deadline, and the reasons therefor are not an Excusable Delay as outlined in this Agreement, Owner may, without prejudice to any other right or remedies it may have, take one or more of the following actions: (a) require Contractor to employ such extraordinary measures as are necessary to bring the Work into conformity with the Project Schedule, including, without limitation, requiring Contractor to increase its work force, work overtime, and/or extra shifts (at Contractor’s sole cost and expense); and/or (b) withhold Progress Payments or portions thereof until such time as the Work is in conformity with the Project Schedule. If the cause for Contractor’s inability to meet the Completion Date are as a result of an Excusable Delay then the terms of Section 5.7 shall dictate.
5.7 Extensions of Time – Liquidated Damages
(a) Excusable Delay. The Contractor shall be entitled to a Change Order because of any delays in completion of the Work due to Excusable Events. Contractor has the burden of providing reasonable evidence that any delay is excusable.
(b) Notice by Contractor Required. The Contractor shall within 10 days of knowledge of any Excusable Event notify Owner in writing thereof causes of delay. The Parties will then meeting and confer in good faith to determine the reasonableness of Contractor’s claimed Excusable Event, the facts and extent of any claimed or resulting delay, and whether any extension of time for completing the Work is reasonably appropriate. Extensions of time shall apply only to that portion of the Work affected by the delay and shall not apply to other portions of the Work not so affected. Except as otherwise set forth in this Agreement, the sole remedy of Contractor for delays, cost increases, or other harms or injurieis resulting or arising from an Excusable Event shall be an extension of the Project Schedule at no cost to the Owner, and no increase to the Contract Price shall result.
(c) Conditions for Extension of Time. If the Contractor is delayed at any time in progress of the Work by an Excusable Event, by changes in the Work justifying a Change Order, or a Force Majeure Event, then the Project Schedule shall be extended by Change Order for such reasonable time as required under the circumstances. Claims relating to time extensions shall be made in accordance with Section 7.6 of this Agreement.
(d) Early Completion. If Contractor submits a revised schedule showing an earlier completion date for the Project, Owner’s acceptance of this revised schedule shall not entitle Contractor to any additional compensation or Claim due to any such revised schedule (nor shall it subject Contractor to Liquidated Damages based on such earlier completion date). Regardless of the cause therefore, the Contractor may not maintain any Claim or cause of action against Owner for damages incurred as a result of its failure or inability to complete the Work or the Project in a shorter period than established in the Contract Documents. (e) Liquidated Damages. Subject to the limitation of liability specified below, if Contractor fails to cause Substantial Completion to occur on or prior to the Completion Date, as may be extended in accordance with the terms of this Agreement, Contractor shall pay Owner as its sole and exclusive remedy therefore, as liquidated damages and not as a penalty, in an amount equal to the LD Rate (the “Liquidated Damages”). The actual occurrence of damages and the actual amount of the damages which the Owner would suffer if the Work were not completed within the specified times set forth are dependent upon many circumstances and conditions which could prevail in various combinations and it is impracticable and extremely difficult to fix the actual damages. Damages that the Owner would suffer in the event of delay 27 include, but are not limited to, loss of the use of the Project and each individual Site, and the energy savings afforded by the Project and each individual Site, disruption of activities, costs of administration, supervision and the loss suffered by the public. Accordingly, the Parties agree that an amount not to exceed $1000 for each day by which the Work, or portion thereof, is delayed beyond the Completion Date shall be the amount of damages which the Owner shall directly incur upon failure of the Contractor to cause Substantial Completion to occur on or prior to the Completion Date. The rate of LDs shall be calculated as the pro-rated portion for each ECM by building that does not meet Substantial Completion by the Completion Date (the “LD Rate”). If Contractor becomes liable under this Section, Owner, in addition to all other remedies provided by law, shall have the right to withhold any and all retained percentages of payments, and to collect the interest thereon, which would otherwise be or become due the Contractor until the liability of the Contractor under this Section has been finally determined. If the retained percentage is not sufficient to discharge all liabilities of Contractor incurred under this Section, Contractor and its sureties shall continue to remain liable to Owner for such liabilities until all such liabilities are satisfied in full. If Owner accepts any Work or makes any Progress Payment under this Agreement after a default by reason of delays, the payment or payments shall not constitute a waiver or modification of any Agreement provisions regarding time of completion and Liquidated Damages.
5.9 Delays Due to Project Site Activities. Owner shall not be liable for any damages or compensation to Contractor resulting from, arising out of, or related to any delays caused by scheduled activities at Sites where Contractor was notified in writing of such scheduled activities prior to signing this Agreement, including Owner’s construction projects and other events which would require access to Site(s). Where Owner did not inform Contractor in writing of such scheduled activities, or required activities arise during the Project that were not scheduled prior to Agreement signing and that impact the Project Schedule, Contractor shall be entitled to reasonable additional time for the Project Schedule and compensation in accordance with a Change Order. If any part of Contractor’s Work depends on proper execution or results upon work of any other contractor, the Contractor shall inspect and promptly report to Owner in writing any defects in such work that render it unsuitable for such proper execution and results. (a) Contractor will be held liable for damages to Owner for that work which it failed to inspect or should have inspected. Contractor’s failure to inspect and report shall constitute its acceptance of other contractor’s work as fit and proper for reception of its work, except as to defects which may develop in other contractors’ work after execution of Contractor’s work. To ensure proper execution of its subsequent work, Contractor shall measure and inspect work already in place and shall at once report to the Owner in writing any discrepancy between executed work and Contract Documents. (b) It is the obligation of Contractor to ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by Owner in prosecution of the Project to the end that Contractor may perform its Agreement in the light of such other contracts, if any. (c) Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy 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, Owner 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. If Owner directs Contractor to cease Work temporarily for up to 48 hours due to the work of another contractor, Contractor shall be entitled to a Change Order upon documentation of actual, reasonable costs, but such costs shall not include overhead, profit or general conditions for the period of time during which Work has ceased. Should the time extend beyond forty-eight (48) hours, Contractor shall be entitled to a Change Order upon documentation of actual, reasonable costs, and shall include overhead and profit.
(d) If the Project is split into phases and/or separate contracts, then Contractor has made allowances for any delays or damages which may arise from coordination with contractors for other phases or contracts. If any delays should arise from a contractor working on a different phase or contract, Contractor’s sole remedy for damages, including delay damages, shall be against the contractor who caused such damage and not the Owner. Contractor shall provide access to contractors for other phases 28 or contracts as necessary to prevent delays and damages to contractors working on other phases or contracts.
6. REPRESENTATIONS AND WARRANTIES. The Parties represent and warrant (to the extent set forth below) that:
(a) Contractor represents that it is duly organized, validly existing and in good standing as a contractor and licensed contractor under the laws of the State of California; (b) Each Party represents has full power, authority and legal right to enter into and perform its obligations under this Agreement, and the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate actions on the part of Contractor, and all governmental actions on the part of Owner, and do not require any further approvals or consents; (c) Each Party represents that the execution, delivery, and performance of this Agreement does not and will not result in any breach of or constitute a default under any indenture, mortgage, contract, agreement, or instrument to which it is a party by which it or its property is bound; (d) Each Party represents that there is no pending or, to its knowledge, threatened action, or proceeding before any court or administrative agency that will materially adversely affect its ability to perform its obligations under this Agreement.
(e) Should a change in law occur subsequent to the date of execution of the Agreement that increases Contractor’s costs, the parties shall, to the extent allowed by law, negotiate an equitable resolution.
7. BREACH AND TERMINATION
7.1 Termination by the Owner for Cause.
(a) Contractor agrees that Owner shall be entitled to terminate this Agreement upon the occurrence of any of the following circumstances, each of which shall constitute an event of default hereunder (each, a “Contractor Event of Default”):
(i) refuses or fails to supply personnel or materials in accordance with this Agreement; (ii) fails to make payment to Subcontractors for materials or labor in accordance with Public Contract Code section 10262 or Business and Professions Code section 7108.5, as applicable; (iii) disregards Applicable laws, ordinances, rules, regulations, or orders of a Governmental Authority; or
(iv) otherwise is in substantial breach of a provision of the Contract Documents. (b) Owner’s authority to terminate this Agreement for cause shall be contingent upon providing written notice to Contractor of the Contractor Event of Default. Where the Contractor Event of Default can be cured, Contractor shall take action and cure the Contractor Event of Default within thirty (30) Days after the date of Owner’s written notice. In the event the Contractor Event of Default cannot be cured within thirty (30) Days, Contractor shall provide written notice to Owner of the requirement of a longer cure period with a timeline for cure and shall commence actions necessary to cure the Contractor Event of Default within thirty (30) Days and diligently and timely proceed to complete the cure. (c) When any Contractor Event of Default exists and Contractor fails to cure the same pursuant to the procedure set forth above, the Owner may, without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, written notice of seven (7) Days, terminate the Agreement and may, subject to any prior rights of the surety, (A) take possession of the Site 29 and of all material, Equipment, tools, and construction equipment and machinery thereon owned by the Contractor, (B) accept assignment of Subcontracts, and (C) complete the Work by whatever reasonable method the Owner may deem expedient.
(d) If the unpaid balance of the Contract Price exceeds the reasonable, actual and direct costs of completing the Work, including compensation for professional services and expenses made necessary thereby, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay the difference to the Owner. This payment obligation shall survive completion of the Project and termination or expiration of this Agreement.
7.2 Suspension or Termination by the Owner for Convenience. (a) The Owner may, without cause, order the Contractor in writing to suspend, delay, or interrupt the Work in whole or in part for such period of time as the Owner may determine. Contractor shall be entitled to an extension of time and an adjustment shall be made for increases in the cost of performance of the Agreement. No adjustment shall be made to the extent: (i) performance is, was, or would have been so suspended, delayed, or interrupted by another cause for which the Contractor is responsible; or (ii) that an equitable adjustment is made or denied under another provision of this Contract. Adjustments made in the cost of performance may have a mutually agreed fixed or percentage fee. If Owner suspends, delays or interrupts the Work for 60 or more consecutive days, Contractor may terminate this Agreement. (b) Prior to Owner’s issues of a Notice to Proceed (which is conditional upon Owner’s approving and obtaining financing for the Project), Owner may terminate this Agreement, in whole or in part and without payment, consideration, or liability to Contractor of any kind.
7.3 Termination by the Contractor. Contractor may not terminate for convenience. Contractor may only terminate for cause if: (A) Owner fails to make payment when due and such failure is not made within 30 days of Owner’s receipt of written notice from Contractor specifying same; (B) the Work is stopped by others for a period of 90 consecutive days through no act or fault of Contractor, a Subcontractor of any tier, their agents or employees, or any other persons performing portions of the Work for whom Contractor is contractually responsible, and the Work was stopped by others for one of the following reasons: (i) issuance of an order of a court or other public authority having jurisdiction which requires Owner to stop all Work; or (ii) an act of government, such as a declaration of national emergency, making material unavailable which requires Owner to stop all Work; or (iii) Owner is in material breach of a provision of the Contract Documents and such breach is not cured within 30 days of Owner’s receipt of written notice from Contractor specifying same, however, in the event such Owner event of default cannot be cured within 30 days, Owner shall provide written notice to Contractor of the requirement of a longer cure period with a timeline for cure and shall commence actions necessary to cure Owner event of default within 30 days and diligently and timely proceed to complete the cure. If such grounds exist, Contractor may serve written notice of such belief on Owner and demand a meet-and-confer conference to negotiate a resolution in good faith within 7 days of receipt of such notice. If such conference does not lead to resolution and Contractor believes the grounds for termination still exist, Contractor may terminate the Agreement and recover from Owner: (1) Work wholly or partially executed; (2) actual, direct out-of-pocket losses incurred by reason of such termination; (3) any payment or delivery required to have been made on or before the date of termination and not made, including interest on any sums due; and (4) costs and expenses reasonably incurred in exercising the foregoing remedies, if any.
7.4 Not a Waiver Any suspension or termination under this Section 7 shall not act as a waiver of any claims by Owner against Contractor (or vice versa) or others for damages based on breach of contract, negligence or other grounds.
7.5 Indemnification
(a) Subject to the exclusions set forth in this Agreement, to the extent applicable to the Sites, Contractor shall make all necessary efforts to ensure the finished Project complies with all applicable standards imposed by the Americans with Disabilities Act, section 504 of the Rehabilitation Act of 1973, 30 disability access requirements of the State Building Code and any other laws applicable to disability access.
If a court, administrative agency or other trier of fact later determines that Contractor has violated any of the above-referenced laws, Contractor shall remedy the violation at its own cost. Contractor shall indemnify, defend and hold the Owner harmless pursuant to this Section of this Agreement against claims brought by a party other than the Owner due to any breach of these provisions to the extent due to Contractor’s negligence, recklessness or willful misconduct. In the event that either Party is or becomes aware of possible non-compliance with the foregoing standards, such Party shall have a duty to promptly notify the other Party in writing of the possible non-compliance.
(b) Contractor represents and warrants that Contractor has the legal right to license any and all copyrights, designs and other intellectual property embodied in plans, Specifications, studies, Drawings, estimates or other documents that Contractor or its Subcontractors or Consultants prepares or causes to be prepared pursuant to this Agreement. Contractor shall indemnify, defend and hold the Owner harmless against third-party claims brought by a party other than the Owner pursuant to this Section to the extent due to any breach of this representation due to Contractor’s negligence, recklessness or willful misconduct.
7.6 Claims Generally.
(a) A claim is a demand or assertion by Contractor seeking, as a matter of right, adjustment, or interpretation of Agreement terms, payment of money, extension of time, or other relief with respect to the terms of the Agreement (a “Claim”). Claims must be made by written notice. The responsibility to substantiate Claims shall rest with the Contractor. Contractor may only submit a Claim after having complied with the requirements in this Section, as applicable, for the same matters. Claims shall be submitted to Owner and Owner’s designated representative. A timely decision by Owner shall be provided.
Claims must be made by written notice prior to the final Progress Payment. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered. The failure of Contractor to make a Claim within the specified time shall constitute an express waiver of any right to assert such Claim, whether affirmatively or defensively. Despite submission or rejection of a Claim, Contractor shall proceed diligently with performance of the Agreement, and Owner shall continue to make any undisputed payments in accordance with the Agreement. When any excavation or trenching extends greater than four feet below the surface, Public Contract Code section 7104 shall apply. (b) Contractor shall make a certification at the time of submission of a Claim in the form and contents described in Section 7.7. Contractor understands and agrees that any Claim submitted without this certification does not meet the terms of the Contract Documents, that Owner, or Owner’s representatives, may reject the Claim on that basis and that unless Contractor properly and timely files the Claim with the certification, Contractor cannot further pursue the Claim in any forum. A condition precedent will not have been satisfied.
(c) Claims for Concealed or Unknown Conditions
(i) Trenches or Excavations Less Than Four Feet Below the Surface. If Contractor encounters conditions at the Site which are subsurface or otherwise concealed physical conditions, which differ materially from those indicated in the Contract Documents, or unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by Contractor shall be given to Owner promptly before conditions are disturbed and in no event later than 10) days after first observance of the conditions. Owner will promptly investigate such conditions, and if they differ materially and cause an increase or decrease in Contractor’s cost of, time required for, or performance of any part of the Work, will recommend an equitable adjustment in the Contract Price, Project Schedule, or both. If Owner determines that the conditions at the Site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Agreement is justified, Owner shall so notify the Contractor in writing, stating the reasons. In the event a dispute arises between Owner and Contractor regarding whether the conditions materially differ, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, Contractor shall not be excused from any scheduled completion date provided for by the Contract Documents, but shall proceed 31 with all the work to be performed under the Contract Documents. 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 contracting parties.
(ii) Trenches or Excavations Greater Than Four Feet Below the Surface. Pursuant to Public Contract Code section 7104, when any excavation or trenching extends greater than four feet below the surface:
(1) The Contractor shall promptly, and before the following conditions are disturbed, notify the public entity, in writing, of any:
(A) Material that the Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, which is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the provisions of existing law. (B) Subsurface or latent physical conditions at the Site differing from those indicated by information about the Site made available to bidders prior to the deadline for submitting bids.
Responsibility for soil conditions and any associated design considerations are responsibility of Contractor. (C) 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 Agreement.
(2) The public entity shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the 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 Agreement.
(3) In the event that a dispute arises between the public entity and the Contractor 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 Agreement, but shall proceed with all work to be performed under the Agreement. The Contractor shall retain any and all rights provided either by Agreement or by law which pertain to the resolution of disputes and protests between the contracting parties.
7.7 Statutory Claim Procedures. In addition to any other requirements set forth in the Agreement, all Claims shall be filed in accordance with the statutory claim resolution procedures set forth in Public Contract Code sections 9204 and 20104 et seq., the implementation of which is set forth in this Section. The failure to timely submit a notice of delay or notice of change, or to timely request a change in price or 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 Agreement 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 Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes. (b) Supporting Documentation. Contractor shall submit all claims in the following format:
(i) Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
(ii) List of documents relating to claim:
32 (1) Specifications
(2) Drawings
(3) Clarifications (Requests for Information)
(4) Schedules
(5) Other
(iii) Chronology of events and correspondence
(iv) Analysis of claim merit
(v) Analysis of claim cost
(vi) Time impact analysis in CPM format
(c) Owner’s Response. Upon receipt of a claim pursuant to this Section, Owner shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days, shall provide 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 Owner issues its written statement.
(i) If Owner needs approval from its governing body to provide Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and Owner’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, Owner shall have up to 3 days following the next duly publicly noticed meeting of Owner’s governing body after the 45-day period, or extension, expires to provide Contractor a written statement identifying the disputed portion and the undisputed portion.
(ii) Within 30 days of receipt of a Claim, Owner may request in writing additional documentation supporting the Claim or relating to defenses or claims Owner may have against Contractor.
If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of Owner and Contractor. Owner’s written response to the Claim, as further 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 Contractor in producing the additional information or requested documentation, whichever is greater.
(d) Meet and Confer. If Contractor disputes Owner’s written response, or Owner fails to respond within the time prescribed, Contractor may so notify Owner, in writing, either within 15 days of receipt of Owner’s response or within 15 days of Owner’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, Owner shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(e) 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, Owner shall provide 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 Owner issues its written statement. Any disputed portion of the Claim, as identified by Contractor in writing, shall be submitted to nonbinding mediation, with Owner and Contractor sharing the associated costs equally. Owner 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.
(i) 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 33 Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
(ii) 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.
(iii) Unless otherwise agreed to by the Owner and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Public Contract Code Section 20104.4 to mediate after litigation has been commenced. (iv) The mediation shall be held no earlier than the date the Contractor completes the Work or the date that 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. (f) 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 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. (g) Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
(i) 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. (ii) 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. (h) Government Code Claims. In addition to any and all Agreement requirements pertaining to notices of and requests for compensation or payment for extra Work, disputed Work, construction claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code Sections 900, et seq. prior to filing any lawsuit against the Owner. 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 Owner 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.
34 (i) Non-Waiver. Owner’s failure to respond to a claim from Contractor within the time periods described in this Section or to otherwise meet the time requirements of this Section shall result in the claim being deemed rejected in its entirety.
8. Changes and Extra Work
(a) Based upon the services Contractor will have provided in designing the Project, and Contractor’s duties and responsibilities regarding the engineering and design of the Project, Contractor and Owner intend and expect that Contractor will not submit any Change Order requests during the construction of the Project based upon alleged errors or omissions in the Engineering Documents for the Project – including those prepared and provided by Owner and/or Owner’s Consultants. Rather, the Parties intend and expect that Change Order requests will only be submitted for Owner-requested changes in the Work of the Project, or for changes in the work of the Project due to Excusable Events, all in accordance with this Agreement and the Contract Documents of the Project. When possible, under the circumstances, Contractor will make reasonable efforts to mitigate any schedule or cost impact arising from an Excusable Event.
(b) Notwithstanding any other provision of this Agreement or the Contract Documents, in the event a Change Order is caused by, or necessitated as a result of wrongful acts or omissions on the part Contractor, or as a result of any errors or omissions in the Engineering Documents for the Project – excluding those prepared and provided by Owner and/or Owner’s Consultants, or Owner otherwise incurs costs or damages as a result of wrongful acts or omissions on the part Contractor, or as a result of any Contractor errors or omissions in the plans, specifications, Drawings, or designs for the Project, Contractor shall be responsible for the cost of the following:
(i) The direct costs of all engineering, design, labor, and materials necessary to fully correct the wrongful acts or omissions on the part of Contractor, or the error or omission in the Engineering Documents for the Project;
(ii) Any other direct costs or damages which the Owner incurs as a result of wrongful acts or omissions on the part of Contractor, or of errors or omissions in the Engineering Documents for the Project; and
(iii) The reasonable costs of any third-party engineer, contractor or consultant that Owner, in Owner’s sole reasonable discretion, must retain or consult with to ensure the proper rectification of wrongful acts or omissions on the part of Contractor, or of errors or omissions in the Engineering Documents for the Project. Owner may backcharge, and withhold payment from, Contractor for these costs and damages outlined above, and may seek reimbursement for any amount which exceeds any retention of the Agreement amount at the time of collection. When Owner so backcharges and withholds, upon Contractor’s request Owner’s and Contractor’s senior project representatives shall meet and confer in good faith in an effort to reach agreement on (a) whether a wrongful act or omission occurred or whether there was an error or omission in the Engineering Documents for the Project, (b) whether it caused the Change Order expense, (c) what damages have been incurred by Owner, and (d) what portion of the damages are attributable to Contractor as described above. If Contractor’s and Owner’s project representatives fail to meet, or if they are unable to resolve the dispute, senior executives for Contractor and for Owner, neither of whom have had day-to-day management responsibilities for the Project, will meet, within thirty (30) calendar days after notice of the dispute, in an attempt to resolve the dispute and any other identified disputes or any unresolved issues. If Owner and Contractor do not reach agreement on all four of these items when meeting and conferring, then either Owner or Contractor can initiate a court action to resolve the dispute. (c) Owner reserves the right to request Contractor make such alterations, deviations, additions to, or deletions from the Engineering Documents, as may be deemed by the Owner to be necessary or advisable for the proper completion or construction of the Work contemplated. There shall be no change whatsoever in the Engineering Documents, or in the Work without an executed Change Order or Supplemental Instruction by the Owner for a minor change in the Work as herein provided. Owner shall not 35 be liable for the cost of any extra work or any substitutions, changes, additions, omissions, or deviations from the Engineering Documents, and Contractor shall not be required to perform such work, unless the same shall have been authorized by and the cost thereof approved in writing by Change Order. No extension of time for performance of the Work shall be allowed hereunder unless adjusted in writing in the Change Order.
(d) All Requests for Information should be substantially on the Owner’s standard form and shall, to the extent reasonably necessary, reference all the applicable Contract Documents including specification section, detail, page numbers, drawing numbers, and sheet numbers, etc. Contractor shall make suggestions and/or interpretations of the issue raised by the RFI. An RFI cannot modify the Contract Price, Project Schedule, or the Contract Documents. Prior to issuing an RFI Contractor, Subcontractor, material suppliers and the like shall thoroughly review the Contract Documents and refer to all reference standards for the information sought. Owner and Contractor agree that an adequate time period for Owner to respond to an RFI is generally 14 days after Owner’s receipt of a non-priority RFI, or 7 days after Owner’s receipt of a priority RFI, unless Owner and Contractor agree otherwise in writing. However, in all cases, Owner shall take such time, whether more or less than 14 or 7 days, as applicable, as is necessary in the professional judgment of Owner and Owner’s representatives to permit adequate review and evaluation of the RFI.
Contractor shall make efforts to coordinate the work in a timely fashion, so as to alleviate priority RFI’s. If the RFI is considered a priority, Contractor shall state the word “Priority” on the document, and Contractor shall provide weekly RFI Priority Schedules.
(e) The RFI Priority Schedule shall include a listing of pending requests, including the most current request, and rank the RFI’s in order of priority. Owner shall endeavor to respect Contractor’s requested order of priorities and requested response dates. If the RFI response alters the Contract Price and/or Project Schedule, a Change Order may be issued for the changed condition(s). (f) Owner will have authority to order minor changes in the Work provided that there is: (i) no adjustment in the Contract Price, (ii) no extension of the Project Schedule, or (iii) any other change which is inconsistent with the intent of the Contract Documents. Such changes shall be effected by written Change Order and shall be binding once fully executed by Owner and Contractor. Contractor shall carry out such written orders promptly. To request a Change Order, Owner or Contractor shall prepare and submit a draft Change Order in the form of Attachment 6 for review by the other Party. (g) Each Change Order request, whether proposed by Contractor or Owner, shall include: (i) a detailed statement of the reason for and a description of the change; (ii) the estimated price of the proposed change, including the proposed change in the Contract Price and any costs or savings for carrying out the change including a complete itemized cost breakdown of all labor and material showing actual quantities, hours, unit prices, wage rates, required for the change; (ii) the projected effect of such proposed change on the Project Schedule including the relevant scheduled completion dates and deadlines; (iii) the projected effect of such proposed change on Contractor’s ability to comply with any of its obligations hereunder, including the Warranties, Performance Guaranty (iv) and shall be accompanied by supporting documentation necessary to evidence the costs or savings and schedule adjustments requested therein. (h) When Contractor is requesting a Change Order, notice thereof must be provided to Owner within 14 days after Contractor’s knowledge of the occurrence of the event giving rise to the claim. This notice shall be given by Contractor before proceeding to execute the Work, except in an emergency endangering life or property. No notice shall be considered unless made in accordance with this Section; however, the mere presentation of such claim shall not establish the validity of the cause giving rise to such claim, or of the extension of the Project Schedule, and/or the increase in the Contract Price. Any change in the Contract Price or extension of the Project Schedule resulting from such claim shall be authorized by a Change Order.
(i) Within twenty-one (21) days after receipt of a Change Order request from Contractor or Owner, the receiving Party shall either (i) accept such Change Order request by execution thereof and deliver an executed copy to the initiating Party or (ii) reject such Change Order request and provide appropriate written 36 explanation of the reasons therefor (which may include a request for additional information, documentation or cost detail).
(j) The amount of the increase or decrease in the Contract Price resulting from a Change Order, if any, shall be determined in one or more of the following ways as applicable to a specific situation: (A) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (B) unit prices stated in Contractor’s original bid, the Contract Documents, or subsequently agreed upon between Owner and Contractor; (C) cost to be determined in a manner agreed upon by the Parties and a mutually acceptable fixed or percentage fee; or (D) by cost of material and labor and percentage of overhead and profit in accordance with the compensation provisions of this Agreement.
It is expressly understood that the value of such extra work or changes, as determined by any of the aforementioned methods, expressly includes any and all of Contractor's costs and expenses, both direct and indirect, resulting from additional time required on the Project or resulting from delay to the Project.
Any costs or expenses not included are deemed waived. For purposes of determining the cost, if any, of any change, addition, or omission to the Project, all trade discounts, rebates, refunds, and all returns from the sale of surplus materials and equipment shall accrue and be credited to Contractor, and Contractor shall make provisions so that such discounts, rebates, refunds, and returns may be secured, and the amount thereof shall be allowed as a reduction of Contractor's cost in determining the actual cost of construction for purposes of any change, addition, or omissions in the Project as provided herein. (k) With respect to portions of the Work performed by Changer Orders on a time- and-materials, unit-cost, or similar basis, Contractor shall keep and maintain cost-accounting records satisfactory to the Owner, which shall be available to Owner on the same terms as any other books and records Contractor is required to maintain under the Contract Documents.
9. INSURANCE.
(a) Required Coverage At all times commencing no later than commencement of the Work and to remain in effect for the entire term of this Agreement including any extensions of time, Contractor shall, at its expense, obtain and maintain, and shall cause its Subcontractors (commensurate to their work) to obtain and maintain, insurance policies issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by Owner. The insurance policies shall include the minimum types, coverages and limits set forth below:
(i) Commercial General Liability Insurance.
a. Contractor. Contractor agrees to obtain and maintain commercial general liability: CGL Insurance Services Office (ISO) Form CG 00 01 (or its equivalent) covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits not less than $5,000,000 per occurrence, 10,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $5,000,000 completed operations aggregate. Either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04 or their equivalent) or the general aggregate limit shall be twice the required occurrence limit. Contractor may use umbrella or excess insurance with follow form endorsement to satisfy this requirement. b. Subcontractors. Subcontractors in areas of higher risk, such as electric, roofing, or plumbing work, shall have commercial general liability limits of $2,000,000. Such insurance shall protect the Contractor and Owner against loss from liability imposed for damages (1) on account of bodily or personal injuries, including death, disease and sickness, accidentally suffered or alleged to have been suffered by any person or persons that may be caused directly or indirectly by the performance of this Agreement, and (2) on account of injury to or destruction of property, including the resultant loss of use of the Project or other Owner facilities or equipment, resulting from acts of commission or omission by the Contractor, or otherwise resulting directly or indirectly from the Contractor’s operations in the performance of this Agreement. This insurance shall be subject to the approval of Owner, and Owner’s approval shall 37 not be unreasonably withheld. The comprehensive or commercial general liability policy shall also include a severability of interest clause and cross liability if the policy has multiple insureds. The aggregate limit shall apply on a “per project” basis. The policy shall stipulate that the insurance afforded the additional insureds shall apply as primary insurance and that any other insurance carried by Owner identified in this Agreement will be excess only and will not contribute with this insurance; (ii) Automobile Liability. Contractor agrees to obtain and maintain automobile liability insurance: Insurance Services Office (ISO) Form CA 0001 (or its equivalent) covering Code 1 (any auto), with limits of $5,000,000 per accident for bodily injury and property damage. Contractor may use umbrella or excess insurance with follow form endorsement to satisfy this requirement. (iii) Worker’s Compensation Insurance. All engineers, experts, Consultants and Subcontractors the Contractor intends to employ shall have taken out workers’ compensation insurance with an insurance carrier satisfactory to the Owner for all persons whom they may employ in carrying out the work contemplated under this Agreement in accordance with the Workers’ Compensation Laws of the State of California. If Contractor employs any engineer, expert, Consultant or Subcontractor which it did not intend to employ prior to commencement of services, it must furnish such proof of workers’ compensation insurance to the Owner immediately upon employment. If the Contractor is self-insured, the Contractor shall furnish a Certificate of Permission to Self-Insure and a Certificate of Self- Insurance satisfactory to the Owner.
(iv) Employer’s Liability Insurance. All engineers, experts, Consultants and Subcontractors the Contractor intends to employ shall have taken out employer’s liability insurance. with an insurance carrier reasonably satisfactory to the Owner. During the course of Contractor’s services, if Contractor ever intends to employ additional or different Engineers, experts, Consultants or Subcontractors, before so employing them Contractor shall furnish such reasonably satisfactory proof of insurance to the Owner. If the Contractor is self- insured, the Contractor shall furnish a Certificate of Permission to Self-Insure and a Certificate of Self-Insurance reasonably satisfactory to the Owner. (v) Errors and Omissions Insurance. Contractor agrees to obtain and maintain errors and omissions insurance on a claims made basis with limits of Two Million Dollars ($2,000,000) with a deductible in an amount not to exceed the sum of One Million Dollars ($1,000,000), and Contractor will maintain such coverage for a period of five (5) years following the Final Completion Date. (vi) Builder’s All-Risk. Contractor agrees to obtain and maintain Builder’s Risk/Installation Floater insurance, issued on a completed value basis on all insurable Work included under the Contract Documents. This insurance shall be subject to the approval of Owner, and Owner’s approval shall not be unreasonably withheld. This insurance shall insure against all risks, including but not limited to the following perils: vandalism, theft, malicious mischief, fire, sprinkler leakage, civil authority, sonic boom, explosion, collapse, flood, wind, hail, lightning, smoke, riot or civil commotion, debris removal (including demolition) and reasonable compensation for the Owner’s costs and expenses required as a result of such insured loss. This insurance shall provide coverage in an amount not less than the full cost to repair, replace, or reconstruct the Work. Such insurance shall include Owner, Owner’s designated representative, and any other person or entity with an insurable interest in the Work as Loss Payees. (vii) Contractor’s Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions. Contractor shall require subcontractors performing the applicable work to obtain and maintain contractor’s pollution legal liability and/or asbestos legal liability and/or errors and omissions with limits of $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. (viii) Professional Liability (if Design/Build). Contractor agrees to obtain and maintain professional liability insurance with limits of $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
38 (ix) Other Insurance. Contractor shall provide all other insurance required to be maintained under Applicable Laws, ordinances, rules, and regulations. Such insurance shall be subject to the approval of Owner, and Owner’s approval shall not be unreasonably withheld. (b) Consultants. If not covered by Contractor’s coverage, each of Contractor’s Consultants shall carry coverage and limits proportionate to each such Consultant’s scope of work, and Contractor shall include such provisions in its contracts with them.
(c) Occupancy. Owner may partially or fully occupy and/or use the Project before acceptance of the entire Project by the Owner. All of Contractor’s required insurance must allow such occupancy and/or use without prior consent from insurer.
(d) Additional Insured; Primary and Non-Contributory; Waiver of Subrogation. The Contractor shall name the Owner and as additional insureds on Contractor’s commercial general liability (using ISO CG 20 10 and CG 20 37 or exact equivalents). The additional insured endorsement(s) included on such insurance policy shall state that coverage is afforded the additional insured with respect to claims arising out of operations performed by or on behalf of the insured. If the additional insureds have other insurance which is applicable to the loss, such other insurance shall be on an excess or contingent basis. The amount of the insurer’s liability shall not be reduced by the existence of such other insurance. The coverage provided the additional insureds on Contractor’s commercial general liability policy shall apply on a primary and noncontributory basis. The Contractor’s commercial general liability, automobile liability, excess/umbrella, and workers’ compensation/employer’s liability policies shall be endorsed to include a waiver of subrogation in favor of Owner and the Owner’s designated representatives. Any excess/umbrella policies provided by Contractor shall include a follow form endorsement or schedule of underlying coverage showing that such policies sit in excess of and shall follow the form of the underlying policies set forth herein, which Contractor intends the excess/umbrella policy to supplement.
(e) Proof of Carriage of Insurance. Contractor shall not commence Work nor shall it allow any Subcontractor or Consultant to commence Work under this Agreement until all required proof of insurance including certificates of insurance, applicable endorsements, and all required amendatory endorsements (or copies of applicable policy language effecting coverage required by this clause) have been obtained for the period covered by this Agreement and delivered in duplicate to the Owner for approval, and such approval shall not be unreasonably withheld.
(f) Notice of Cancellation or Non-Renewal. Contractor shall provide for thirty (30) Days written notice to Owner of cancellation or shall obligate its insurance carriers or brokers/representatives to issue endorsements to the required insurance policies that provide for thirty (30) Days written notice to the Owner of cancellation.
(g) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the Owner. Owner may require the Contractor to purchase coverage with a lower self-insured retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the self-insured retention. The policy language shall provide or be endorsed to provide that the selfinsured retention may be satisfied by either the named insured or Owner. If there is a self-insured retention, Owner will need to know what the triggering events are for coverage. (h) Compliance. If Contractor fails to maintain such insurance or fails to cure any defects in coverage required herein within five (5) Days of receiving written notice of the defect(s), the Owner may, but shall not be required to, take out such insurance to cover any damages accrued for which Owner might be held liable on account of Contractor’s failure to pay such damages, and deduct and retain the amount of the premiums from any sums due Contractor under this Agreement. (i) Subcontractors and Consultant Obligations. Each of Contractor’s Consultants and Subcontractors shall comply with all applicable (commensurate with their respective scope of work) insurance obligations under this Section, and Contractor shall include such provisions in its contracts with them.
39 10. PAYMENT AND PERFORMANCE BONDS. Contractor shall apply for and furnish Owner a Payment Bond and Performance Bond on the forms attached hereto as Attachment 7, which shall cover one hundred percent (100%) faithful performance of all obligations arising under the Contract Documents and guaranteeing the payment in full of all costs for labor performed and materials supplied for the Work.
Only bonds executed by admitted Surety insurers as defined in Code of Civil Procedure section 995.120 shall be accepted. The surety insurers must, unless otherwise agreed to by Owner in writing, at the time of issuance of the bonds, have a rating not lower than “A” as rated by A.M. Best Company, Inc. or the equivalent if rated by other independent rating companies. Notwithstanding anything to the contrary in the Contract Documents, the liability of the surety on the performance bond will cease one (1) year after the Final Completion Date. Any warranty or guarantee required of Contractor by the Contract Documents shall be the sole obligation of Contractor after termination of the surety's performance bond liability. The liability of the surety on the payment bond shall continue only so long as required by law.
11. INDEMNITY.
(a) Contractor and Owner agree that Owner, its employees, agents and officials (“Owner Indemnitees”) should, to the fullest extent permitted by law, be fully protected from any loss, injury, damage, claim, liability, lawsuit, cost, expense, attorneys’ fees, litigation costs, defense costs, court costs or any other cost arising out of or in any way related to the performance of this Agreement or any Work hereunder.
Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to Owner and Owner Indemnitees.
Contractor acknowledges that Owner would not have entered into this Agreement in the absence of the commitment of Contractor to indemnify and protect Owner and Owner Indemnitees, as set forth in this Agreement.
(b) To the fullest extent permitted by law, Contractor shall, at its sole cost and expense, to protect, defend, hold harmless and indemnify the Indemnitees from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens and losses of any nature whatsoever, including fees of accountants, attorneys and other professionals, and all costs associated therewith, and the payment of all consequential damages (collectively “Damages”), in law or equity, whether actual, alleged or threatened, which arise out of, pertain to, or relate to the acts or omissions of Contractor, its officers, agents, servants, employees, subcontractors, materialmen, suppliers, or contractors, or their officers, agents, servants or employees (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of this Agreement and the Work, including the Indemnitees’ active or passive negligence, except for Damages arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. Contractor shall defend the Indemnitees in any action or actions filed in connection with any Damages with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Contractor shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith.
(d) Notwithstanding the foregoing, to the extent required by California Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of Owner or Owner Persons. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by California Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction or via a settlement reasonably approved by Owner, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault. (e) PERS Eligibility Indemnification. In the event Contractor or any employee, agent, or subcontractor of Contractor claims or is determined by a court of competent jurisdiction or the California 40 Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of Owner , Contractor shall indemnify, defend, and hold harmless Owner for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontracts, as well as for the payment of any penalties and interest on such contributions, which would otherwise by the responsibility of Owner . Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing Work under this Agreement shall not qualify for or become entitled to, and herby agree to waive any claims to, any compensation, benefit, or any incident or employment by Owner , including but not limited to eligibility to enroll in PERS as an employee of Owner and entitlement to any contribution to be paid by Owner for employer contribution and/or employee contributions for PERS benefits.
(f) Obligations Not Limited by Insurance. The obligations of Contractor under this or any other provision of this Agreement shall not be limited by the provisions of any workers’ compensation act or similar act. Contractor expressly waives any statutory immunity under such statutes or laws as to the Indemnitees. Contractor’s indemnity obligation set forth in this section shall not be limited by the limits of any policies of insurance required or provided by Contractor pursuant to this Agreement.
12. MISCELLANEOUS
(a) Representatives. Owner may provide administration of the Agreement as described in the Contract Documents and may designate one or several agents, representatives, or Consultants to provide administration upon written notice of such to Contractor. When such written notice is provided, except as otherwise provided in the Contract Documents or when direct communications are warranted by special circumstances, the Owner and the Contractor shall communicate through the Owner’s selected representative.
(b) Independent Contractor. Contractor is retained by the Owner only to the extent set forth in this Agreement and Contractor 's relationship to Owner is that of an independent contractor. Contractor shall be free to dispose of all portions of Contractor 's time and activities that Contractor is not obligated to devote to Owner in such a manner, and to such persons, firms or corporations, as Contractor sees fit except as expressly provided in this Agreement. Neither Owner nor any of its agents shall have control over the conduct of Contractor or any of Contractor 's employees, except as set forth in this Agreement. Contractor shall have no power to incur any debt, obligation or liability on behalf of Owner or otherwise act on behalf of Owner as an agent. Contractor shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of Owner. Contractor shall pay all required taxes on amounts paid to Contractor under this Agreement and indemnify and hold Owner harmless from any and all taxes, assessments, penalties and interest asserted against Owner by reason of the independent contractor relationship created by this Agreement. Contractor shall fully comply with applicable workers’ compensation laws regarding Contractor and Contractor’s employees. Contractor shall indemnify and hold Owner harmless from any failure of Contractor to comply with applicable workers’ compensation laws. Owner may offset against the amount of any compensation due to Contractor under this Agreement any amount due to Owner from Contractor as a result of Contractor’s failure to promptly pay to Owner any reimbursement or indemnification arising under this section. (c) Ownership of Necessary Licenses. Contractor warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work. Contractor shall defend, indemnify and hold Owner , and its elected officials, officers, employees, servants, attorneys, designated volunteers and agents serving as independent contractors in the role of officials, harmless from any loss, claim or liability in any way related to a claim that any of the Work is violating federal, state or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights or interests in products, ideas or inventions. Contractor shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Work under this Agreement. In the event any the Work Product or other Contractor hereunder is held to constitute an infringement and the use of any of the same is enjoined, CONTRACTOR, at its expense, 41 shall: (a) secure the right to continue using the Work and other deliverables by suspension of any injunction, or by procuring a license or licenses; or (b) modify the Work and other deliverables so that they become non-infringing while remaining in compliance with the requirements of this Agreement. Contractor’s covenants under this Section shall survive the expiration or termination of this Agreement.
(d) Records. Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information relating to the Work, as required by Owner.
Contractor shall maintain adequate records on services provided in sufficient detail to permit an evaluation of the Work. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. At all times during regular business hours, Contractor shall provide access to such books and records to Owner, and shall give Owner the right to examine and audit such books and records and to make transcripts as necessary, and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. (e) Conflicts of Interest. Contractor shall comply with all applicable federal, state and local conflict of Interest laws, including the Political Reform Act (Cal. Gov. Code, § 81000 et seq.) and California Government Code Section 1090, in connection with entering into and performing the Work contemplated by this Agreement. Contractor shall not be financially interested in any contract or subcontract entered into by Contractor with any third-party in connection with completing any portion of the Work or performing this Agreement. During the term of this Agreement, Contractor may perform similar services for other clients, but Contractor and its officers, employees, associates and subconsultants shall not, without the City Manager’s prior written approval, perform work for another person or entity for whom Contractor is not currently performing work that would require Contractor, or one of its officers, employees, associates or subconsultants, to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
In compliance with the Levine Act (Government Code section 84308), Contractor represents and warrants that: (a) neither Contractor nor any agent on behalf of Contractor has made any campaign contributions of more than $250 to any member of the City Council between January 1, 2023 and the Effective Date of this Agreement; and (b) neither Contractor nor any agent on behalf of Contractor will make any campaign contribution of more than $250 to any member of the City Council within twelve (12) months after the date this Agreement is approved by the City Council.
(f) Non-Discrimination. In performing this Agreement, Contractor shall not engage in, nor shall it permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the California Government Code. (g) Occupational Safety and Health. The parties hereto agree to notify each other immediately upon becoming aware of any alleged violation of, the Occupational Safety and Health Act (OSHA) relating in any way to the project or project site.
(h) Ownership and Use of Drawings, Data, Reports and Other Documents (i) Except as expressly provided in this Contract, Owner will not acquire, by virtue of this Agreement, any rights or interest in any formulas, patterns, devices, software, inventions or processes, copyrights, patents, trade secrets, other intellectual property rights, or similar items of property which are or may be used in connection with the Work. Contractor will own all inventions, improvements, technical data, models, processes, methods, and information and all other work products developed or used in connection with the Work, including all intellectual property rights therein. (ii) Solely in connection with the Project, Contractor grants to Owner a limited, perpetual, royalty-free, non-transferrable license for any Contractor intellectual property rights necessary for Owner to operate, maintain, and repair any modifications or additions to Project, or equipment delivered, as a part of the Work.
(iii) All data, reports, proposals, plans, specifications, flow sheets, drawings, and other products of the Work (the “Instruments of Service”) furnished directly or indirectly, in writing or otherwise, 42 to Owner by Contractor under this Agreement will remain Contractor’s property and may be used by Owner only for the Work. Contractor will be deemed the author and owner of such Instruments of Service and will retain all common law, statutory and other reserved rights, including copyrights. The Instruments of Service may not be used by Owner or any Owner Person for future additions or alterations to the Project or for other projects, without the prior written agreement of Contractor Any unauthorized use of the Instruments of Service will be at Owner’s sole risk and without liability to Contractor If Owner uses the Instruments of Service for implementation purposes, including additions to or completion of the Project, without the written permission of Contractor, Owner agrees to waive and release, and indemnify and hold harmless, Contractor, its subcontractors, and their directors, employees, subcontractors, and agents from any and all Losses associated with or resulting from such use.
(iv) If any materials or information provided by Contractor to Owner under this Contract are designated by Contractor as a “trade secret” or otherwise exempt from disclosure under the Public Records Act (California Government Code §6250 et seq., the “Act”) and if a third party makes a request for disclosure of the materials under the Act, as soon as practical (but not later than ten (10) calendar days) after receipt of such request, Owner will notify Contractor of such request and advise Contractor whether Owner believes that there is a reasonable possibility that the materials may not be exempt from disclosure. Contractor may seek to enjoin Owner from disclosing the information requested through a court of competent of jurisdiction. (i) Royalties and Patents. The Contractor shall pay all royalties and license fees incurred by Contractor in performing the Work of this Agreement. Contractor shall defend suits or claims of infringement of patent rights brought by a party other than Owner and shall hold the Owner harmless and indemnify them from loss on account thereof.
(j) Assignment of Antitrust Claims. Pursuant to Government Code section 4552, in entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the Contractor or Subcontractor offers and agrees to assign to the Owner all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act, (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 [commencing with § 16700] of Part 2 of Division 7 of the Bus. & Prof.
Code), arising from the purchase of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the Contractor, without further acknowledgment by the Parties. (k) Audit. Contractor’s Agreement books, records, and files shall be subject to audit and examination under Government Code section 8546.7 and any amendments thereto for a period of four (4) years following Final Completion and will exclude information that is proprietary and confidential unless required to be disclosed as a condition of funding, by law or by court order. (l) Waiver. No delay or omission to exercise any right, power or remedy accruing to Owner or Contractor under this Agreement shall impair any right, power or remedy, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver by Owner or Contractor of any breach, any failure of a condition, or any right or remedy under this Agreement shall be: (1) effective unless it is in writing and signed by the Party making the waiver; (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy; or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
(m) Accomplishment of Work. Contractor shall commence, carry on and complete its assignments with all practicable dispatch, in a sound, economical, and efficient manner in accordance with all applicable laws and generally accepted industry and applicable professional standards. (n) Compliance With Laws. Contractor shall comply with all applicable federal, state, and local laws, rules, regulations, and ordinances that are applicable to Contractor, this Agreement, or the Work. (o) Third Party Beneficiaries. The Parties hereto do not intend to create any rights for, or grant any remedies to, any third-party beneficiary of this Agreement. 43 (p) Governing Law. The terms and conditions of this Agreement shall be governed by the laws of the State of California without regard to conflicts of law principles. (q) Cost of Litigation. If any legal action is necessary to interpret or enforce any provision of this Agreement or for damages by reason of an alleged breach or failure to perform any provisions of this Agreement, the prevailing Party shall be entitled to receive from the losing Party all attorneys’ fees, costs and expenses in such amount as the courts may determine to be reasonable. In awarding the cost of litigation, the court shall not be bound by any court fee schedule, but shall, if it is in the interest of justice to do so, award the full amount of costs, expenses and attorneys' fees paid or incurred in good faith. (r) Severability. If a court of competent jurisdiction shall hold any provision of the Contract Documents invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision hereof.
(s) Notices and Filings. Any notices or filings required to be given or made under this Agreement shall be served, given, or made in writing upon the Owner or Contractor, as the case may be, by personal delivery or commercial overnight courier (with a copy sent via email) to the respective addresses given below, or at such address as such Party may provide in writing from time to time.
Owner:
with a copy to:
Contractor:
with a copy to:
(t) Binding Effect. Contractor, by execution of this Agreement, acknowledges that Contractor has read this Agreement and the other Contract Documents, understands them, and agrees to be bound by their terms and conditions. The Contract Documents shall inure to the benefit of and shall be binding upon the Contractor and the Owner and their respective successors and assign. (u) Amendments. The terms of the Contract Documents shall not be waived, altered, modified, supplemented, or amended in any manner whatsoever except by written agreement signed by the parties and approved or ratified by the Owner’s governing body. (v) Headings. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Agreement (w) Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy, or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
(x) Attachments Incorporated All Recitals, exhibits and Attachments attached to this Agreement are hereby incorporated into the Agreement by this reference as if set forth in full. (y) Entire Agreement This Agreement, and all incorporated Attachments, recitals and documents, including, but not limited to the Contract Documents, constitute the entire agreement between the Parties, and supersedes any prior or contemporaneous agreement between the Parties, oral or written, including the Owner’s award of the Project to Contractor, unless such agreement is expressly incorporated herein. The Owner makes no representations or warranties, express or implied, not specified in the Contract Documents. The Contract Documents are intended as the complete and exclusive statement of the parties’ agreement pursuant to California Code of Civil Procedure section 1856. (z) Execution, Correlation, and Intent. The Contract Documents are complementary and are intended to include all items required for the proper execution and completion of the Work. Any item of 44 Work mentioned in the Specifications and not shown on the Drawings, or shown on the Drawings and not mentioned in the Specifications, shall be provided by Contractor as if shown or mentioned in both. (aa) Conflict in Terms. The several instruments forming part of this Agreement are to be taken as mutually explanatory of one another. Each and every provision of law required by law to be inserted in this Agreement shall be deemed to be inserted herein, and the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either Party the Agreement shall be amended in writing to make such insertion or correction.
(bb) Successors And Assigns The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the other Party hereto and to partners, successors, assigns, and legal representatives of such other Party in respect to covenants, agreements, and obligations contained in the Contract Documents. Neither Party to the Agreement shall assign the Agreement as a whole or in part without written consent of the other. If either Party attempts to make such an assignment without such consent, that Party shall nevertheless remain legally responsible for all obligations under the Agreement. Notwithstanding the foregoing, Contractor may, without Owner’s consent, but with written notice to Owner, assign this Agreement to any Affiliate of Contractor. (cc) Rights and Remedies. Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights, and remedies otherwise imposed or available by law.
(dd) Prohibition Against Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for Owner to enter into this Agreement. Neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of Owner. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of Owner.
(ee) Execution of Other Documents. The parties to this Agreement shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of the Contract Documents.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this Agreement effective as of the date first above written. [ADD SIGNATURE BLOCK]
45 Attachment 1 - Scope of Work and Equipment Specifications Attach Inventory and Specifications List for Equipment to be Installed: on file with Department of Public Works and Dated _____________.
46 Attachment 2 - Project Schedule
The project schedule is based on issuance of the Notice to Proceed by January 15, 2024. Any delay in issuance of the Notice to Proceed shall move the start of construction date back by the number of days equal to the delay with all other deadlines remain unchanged but recalculated from the new Notice to Proceed date.
TO BE ADDED
47 Attachment 3 –
Schedule of Values for Contractor, Subcontractor and Material Suppliers
TO BE ADDED
48 Subcontractor Listing and Registration
As of March 1, 2015 Contractors (and sub-contractors) wishing to perform work on public works contracts shall be registered with the State Division of Industrial Relations and certified to bid on Public Works contracts. Please register at: https://efiling.dir.ca.gov/PWCR/ActionServlet?action=displayPWCRegistrationForm In accordance with Title 49, Section 26.11 of the Code of Federal Regulations, and Section 4104 of the Public Contract Code of the State of California, as amended, the following information is required for each sub-contractor who will perform work amounting to more than one half of one percent (0.5%) of the Total GMAX or $10,000 (whichever is greater). Photocopy this form for additional firms.
Subcontractor Name
and Location
Description of Work Subcontract
Amount
% of Total
Contract Price
Contractor License Number
& DIR Reg Number
Countywide Mechanical
Systems, Inc.
1400 N JOHNSON AVE
114
EL CAJON, CA 92020
HVAC & Controls $1,444,500 15.9% License No. 1111305
DIR No. PW-LR-1001112312
Baja Construction
223 FOSTER ST
MARTINEZ, CA 94553
Solar Carports $1,113,600 12.3% License No. 412390
DIR No. PW-LR-10000409471
Certified Roofing
Applications, Inc.
dba CERTIFIED
GENERAL
CONTRACTORS
11914 FRONT STREET
NORWALK, CA 90650
Roofing $836,400 9.2% License No. 732511
DIR No. PW-LR-1000032132
MB Herzog
15709 ILLINOIS
AVENUE
PARAMOUNT, CA 90723
Electrical & Solar $715,000 7.9% License No. 383811
DIR No. PW-LR-100003429
49 Attachment 4 – Incentive Funds
Solar Investment Tax Credit Direct Pay from the IRS in the expected amount of $1,347,746. 50 Attachment 5 - Waiver and Lien Release Forms
A. Conditional Waiver and Release upon Progress Payment. Use this form when the claimant is required to sign a waiver and release in exchange for, or in order to, induce a progress payment, and the claimant has not yet been paid. This form is useful when the claimant is not yet paid, but will be paid out of a progress payment that is not the final payment. This conditional waiver and release is only effective if the claimant is actually paid. This release does not cover all items.
CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT'S LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A PERSON SHOULD NOT
RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT.
Identifying Information
Name of Claimant:
_____________________________________________________________________ Name of Customer:
_____________________________________________________________________ Job Location:
__________________________________________________________________________ Owner:
_______________________________________________________________________________ Through Date:
_________________________________________________________________________ Conditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job through the Through Date of this document. Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below. This document is effective only on the claimant's receipt of payment from the financial institution on which the following check is drawn:
Maker of Check:
________________________________________________________________________ Amount of Check: $
_____________________________________________________________________ Check Payable to:
_______________________________________________________________________ Exceptions:
51 This document does not affect any of the following:
(1) Retentions.
(2) Extras for which the claimant has not received payment. (3) The following progress payments for which the claimant has previously given a conditional waiver and release but has not received payment:
(4) Contract rights, including (A) a right based on rescission, abandonment, or breach of contract, and (B) the right to recover compensation for work not compensated by the payment.
Date(s) of waiver and release:
_____________________________________________________________ Amount(s) of unpaid progress payment(s): $
_________________________________________________
Signatures
Claimant's Signature:
____________________________________________________________________ Claimant's Title:
________________________________________________________________________ Date of Signature:
_______________________________________________________________________ B. Unconditional Waiver and Release upon Progress Payment. Use this form when the claimant is required to sign a waiver and release in exchange for, or in order to, induce a progress payment, and the claimant asserts in the waiver that he or she has received the progress payment. This release does not cover all items.
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP PAYMENT
NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER AND RELEASE FORM.
Identifying Information
Name of Claimant:
_____________________________________________________________________ Name of Customer:
_____________________________________________________________________ Job Location:
__________________________________________________________________________ 52 Owner:
_______________________________________________________________________________ Through Date:
_________________________________________________________________________ Unconditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job through the Through Date of this document. Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below. The claimant has received the following progress payment: $ ____________________
Exceptions
This document does not affect any of the following:
(1) Retentions.
(2) Extras for which the claimant has not received payment. (3) Contract rights, including (A) a right based on rescission, abandonment, or breach of contract, and (B) the right to recover compensation for work not compensated by the payment.
Signatures
Claimant's Signature:
____________________________________________________________________ Claimant's Title:
________________________________________________________________________ Date of Signature:
_______________________________________________________________________ C. Conditional Waiver and Release upon Final Payment. Use this form when the claimant is required to sign a waiver and release in exchange for, or in order to, induce a final payment, and the claimant has not yet been paid. This release is only binding if there is evidence of payment to the claimant.
Evidence of payment may be demonstrated by: (a) The claimant's endorsement on a single check or a joint check that has been paid by the bank upon which it was drawn; or (b) Written acknowledgment of payment given by the claimant.
CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT'S LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A PERSON SHOULD NOT
RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT.
Identifying Information
53 Name of Claimant:
_____________________________________________________________________ Name of Customer:
_____________________________________________________________________ Job Location:
__________________________________________________________________________ Owner:
_______________________________________________________________________________ Conditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job. Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below. This document is effective only on the claimant's receipt of payment from the financial institution on which the following check is drawn:
Maker of Check:
________________________________________________________________________ Amount of Check: $
_____________________________________________________________________ Check Payable to:
_______________________________________________________________________ Exceptions
This document does not affect any of the following:
Disputed claims for extras in the amount of: $_________________________________ Signatures
Claimant's Signature:
____________________________________________________________________ Claimant's Title:
________________________________________________________________________ Date of Signature:
_______________________________________________________________________ D. Unconditional Waiver and Release upon Final Payment. Use this form when the claimant is required to sign a waiver and release in exchange for, or in order to, induce a final payment and the claimant asserts in the waiver that he or she has received the final payment. 54 UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP PAYMENT
NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER AND RELEASE FORM.
Identifying Information
Name of Claimant:
_____________________________________________________________________ Name of Customer:
_____________________________________________________________________ Job Location:
__________________________________________________________________________ Owner:
_______________________________________________________________________________ Unconditional Waiver and Release
This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for all labor and service provided, and equipment and material delivered, to the customer on this job.
Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below. The claimant has been paid in full.
Exceptions
This document does not affect the following:
Disputed claims for extras in the amount of: $ __________________________________ Signatures
Claimant's Signature:
____________________________________________________________________ Claimant's Title:
________________________________________________________________________ Date of Signature:
_______________________________________________________________________ 55 Attachment 6 - Form of Change Order
56 Attachment 7 - Payment Bond and Performance Bond and Warranty Bond A. Payment Bond
(Use of City Bond Form is Required)
LABOR AND MATERIAL PAYMENT BOND
PUBLIC WORK (CALIFORNIA)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, ________________________________________, as Principal, has entered into a contract dated ___________________, _____, (the "Contract") with the City of ____________________ (Obligee) referred to and made a part hereof to perform the following work of public improvement, to wit:
____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________and all appurtenant work in accordance with the plans and specifications for Project No._______, which requires Principal to file this bond to secure claims made under Civil Code Section 3082 et seq.
NOW THEREFORE, we, ____________________________________, as Principal, and ___________________________________________, a corporation organized under the laws of ______________________ and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of _____________________________, as Obligee, and all subcontractors, laborers, materialpersons and other persons employed in the performance of the referenced agreement, in the sum of _________________________________________________ Dollars ($_______________________), lawful money of the United States of America, which is 100% of the amount of the Contract, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
The address at which the Surety may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ If the above bounden Principal, his or its heirs, executors, administrators, successors, assigns, or any of his or its subcontractors, fails to pay for any materials, provisions, provender, or other supplies, or teams, implements or machinery, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor to persons named in Section 9100 of the Civil Code, or for amounts due under the Unemployment Insurance Code with respect to such work or labor performed under the Contract, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, then the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond, and also, in case suit is brought upon this bond, a reasonable attorney's fee, which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment herein rendered.
As part of the obligation secured hereby, the Surety shall not be exonerated or released from the obligation of the bond by any change, alteration, or modification in or of any contract, plans, 57 specifications, or agreement pertaining or relating to any scheme or work of improvement or pertaining or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme of work of improvement, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement, or under the bond, nor, where the bond is given for the benefit of claimants, by any fraud practiced by any person other than the claimant seeking to recover on the bond.
This bond shall inure to the benefit of any and all persons, companies and corporations named in Civil Code Section 9100 so as to give them a right of action in a suit on this bond.
This bond is executed for the purpose of complying with the laws of the State of California designated as Title 3, Chapter 5, Payment Bond, commencing with Section 9550 of the Civil Code of the State of California and all amendments thereto, and shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code of the State of California.
This document is signed by the respective parties on the dates next to their names.
Principal
By: _________________________________
Title: ________________________________
Surety
By: _________________________________
Title: ________________________________
Date: ________________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Labor and Materials Payment Bond are true and correct, and that I have been duly authorized to sign this Labor and Materials Payment Bond on behalf of Surety. This Declaration is signed on ______ , in the City of _____, State of California.
--OR--
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 California )
)
County of ___________________________ )
On ______________ before me, ____________________________________(here insert name and title of the officer), personally appeared
___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 58 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
________________________
City Attorney
59 B. Performance Bond
(Use of City Bond Form is Required)
FAITHFUL PERFORMANCE BOND
PUBLIC WORK (CALIFORNIA)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, the Principal and the Obligee have entered into a written contract, hereinafter called the Contract, a copy of which is or may be attached hereto, dated the ______ day of ____________________, ______ referred to and made a part hereof for __________________________________________________________________________ and all appurtenant work in accordance with Project No. , which agreement requires the Principal to provide Obligee with this bond.
NOW THEREFORE, we, _______________________________________, as Principal, and ___________________________________________, a corporation organized under the laws of _________________________, and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of _____________________________, as Obligee, in the sum of _________________________________________________________________ Dollars ($_______________________), lawful money of the United States of America, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
The address at which the Surety may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The condition of the foregoing obligation is such that if the Principal, his or its heirs, executors, administrators, successors or assigns, and each of his or its subcontractors shall well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of said contract, and during the life of any guaranty required under the contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of said contract that may hereafter be made, then this obligation shall be void; otherwise it shall be and remain in full force and effect.
As part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the obligee in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications.
This document is signed by the respective parties on the dates next to their names.
Principal
60 By: __________________________________
Title: ________________________________
Surety
By: __________________________________
Title: ________________________________
Date: ________________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Faithful Performance Bond are true and correct, and that I have been duly authorized to sign this Faithful Performance Bond on behalf of Surety. This Declaration is signed on . , in the City of , State of California.
--OR--
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 California )
)
County of ___________________________ )
On ______________ before me, ____________________________________(here insert name and title of the officer), personally appeared
___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
_________________________
City Attorney
61 C. Warranty Bond
(Use of City Bond Form is Required)
WARRANTY BOND
PUBLIC WORKS
WHEREAS, the City Council of the City of _____________________________, State of California, and ________________________________________________, (hereinafter designated as "Principal") have entered into a written contract (the "Contract") dated ________________________ whereby Principal agrees to install and complete certain designated public improvements, which Contract is hereby referred to and made a part hereof; and
WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the guarantee and warranty of the work for a period of one (1) year following the completion and acceptance thereof against any defective work or labor done or defective materials furnished.
NOW, THEREFORE, we, the Principal and __________________________________ ______________________, a corporation organized under the laws of ____________________, and duly authorized to transact business in the State of California, as Surety, are held and firmly bound unto the City of _____________________________, (hereinafter called "City"), in the penal sum of ____________________________________________________________________________Dollars, ($__________________) lawful money of the United States, which is 50% of the amount of the Contract, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The address at which the Surety may be served with notices, papers and other documents is:
__________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
__________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ The condition of this obligation is such that if the above bounded principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said Contract and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless City, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the work or to the specifications.
This document is signed by the respective parties on the dates next to their names. 62 Principal
By: __________________________________
Title: ________________________________
Surety
By: _________________________________
Title: _______________________________
Date: _______________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Warranty Bond are true and correct, and that I have been duly authorized to sign this Warranty Bond on behalf of Surety. This Declaration is signed on ___, in the City of , State of California.
--OR--
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 California )
)
County of _______________ )
On ______________ before me, ____________________________________(here insert name and title of the officer), personally appeared __________________________________________ _____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
__________________________
City Attorney