City of El Centro
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d. A detailed statement setting forth every ground, reason, legal authority and facts in support of the protest, including all documents and evidence including specific references to parts of the bid documents; and e. A clear statement of the relief request
A protest that does not comply with the requirements set forth herein will be returned to the protestor. The protest shall not be amended after filing. Any grounds for protest not raised are waived. The protest is a public document.
Award Protest Statements are public documents. City will notify the affected parties when a protest has been submitted, and will provide copies of the protest to the affected parties as soon as is reasonably practical. (2) Evaluation and Determination
The affected parties may file responsive statements in support of or in opposition to the protest within three (3) business days after the receipt of the protest from City. The Public Works Director shall review the facts and all submittals relative to the protest and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all affected parties.
Unless otherwise required by law, no hearing shall be provided. In the event a hearing is conducted, the Public Works Director, shall issue written notice to the protestor and affected parties identifying the date and time for the hearing, along with rules concerning the hearing.
C. Delay in Award
Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present:
1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or
3. Failure to make prompt award will otherwise cause undue harm to the City.
D. No Limitations on Remedies
Nothing contained herein shall be construed to act as a limitation of the City’s choice of remedies or confer any right upon any interested party or affected party to a remedy.
City of El Centro
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NIB 6
E. Basis for Choice Remedy
In determining the appropriate remedy, City shall consider all of the circumstances surrounding the notice of bids and/or award, including, but not limited to:
1. The seriousness of any deficiency found to exist in the contracting process;
2. The effect of the action on the competitive process;
3. Any urgency surrounding the requirement to enter into a contract; and
4. The effect that implementing the remedy will have on City.
F. Remedies
If City determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedures, City, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, City may issue a new solicitation, make a new selection/award recommendation, or award the contract consistent with applicable statutes, regulations, policies and procedures;
2. In its sole discretion, take no further action; or
3. Take any other action that is permitted by law to promote compliance.
OWNER’S RIGHTS RESERVED: OWNER reserves the right to reject any or all Bids, to waive any informality in a Bid, and to make awards to the lowest responsive Bidder as it may best serve the interest of OWNER.
Date:____________________ OWNER: City of El Centro
_________________________
Norma Wyles, City Clerk
- END OF NOTICE INVITING BIDS -
City of El Centro
TAG Alleyway Paving Project
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BD 1
BIDDING DOCUMENTS
INSTRUCTIONS TO BIDDERS
1. DEFINED TERMS. Terms used in these Instructions to Bidders and the Notice Inviting Bids which are defined in the General Conditions have the meanings assigned to them in the General Conditions. The term “Bidder” means one who submits a Bid directly to OWNER, as distinct from a sub-bidder, who submits a Bid to a Bidder.
2. INTERPRETATIONS AND ADDENDA
2.1 All questions about the meaning or intent of the Contract Documents are to be directed to OWNER. Interpretations or clarifications considered necessary by OWNER in response to such questions will be issued by Addenda. Questions received less than ten (10) Days prior to the date for opening of Bids may not be answered. Only questions answered by formal written Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect.
2.2 Addenda may also be issued to modify the Contract Documents as deemed advisable by OWNER or DESIGN CONSULTANT.
3. COMPETENCY OF BIDDERS. In selecting the lowest responsive Bidder, consideration will be given not only to the financial standing but also to the general competency of the Bidder for the performance of the WORK covered by the Bid. Bidders must possess a valid California contractor’s license applicable to the type of work bid upon at the time of opening Bids.
4. EL CENTRO LICENSE. All Bidders and their Subcontractors not already having a license from the City of El Centro for the WORK will be required to secure the appropriate license from the City of El Centro before the Agreement can be executed.
5. DISQUALIFICATION OF BIDDERS. More than one (1) Bid from an individual, firm, partnership, corporation or association under the same or different names will not be considered. If OWNER believes that any Bidder is interested in more than one (1) Bid for the WORK contemplated, all Bids in which such Bidder is interested will be rejected. If OWNER believes that collusion exists among the Bidders, all Bids will be rejected. A party who has quoted prices to a Bidder is not hereby disqualified from quoting prices to other Bidders, or from submitting a Bid directly for the WORK.
6. BIDDER’S EXAMINATION OF CONTRACT DOCUMENTS AND SITE
6.1 It is the responsibility of each Bidder before submitting a Bid:
(a) To examine thoroughly the Contract Documents and other related data identified in the Bidding Documents (including “technical data” referred to below);
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(b) To visit the site to become familiar with and satisfy Bidder as to the general and local conditions that may affect cost, progress or performance of the WORK; (c) To consider Federal, State and local Laws and Regulations that may affect cost, progress or performance of the WORK;
(d) To study and carefully correlate the Bidder’s knowledge and observations with the Contract Documents and other related data; and
(e) To notify CONSTRUCTION MANAGER of all conflicts, errors, ambiguities or discrepancies in or between the Contract Documents and such other related data.
6.2 Reference is made to the Supplementary General Conditions for identification of:
(a) Those reports of explorations and tests of subsurface conditions at or contiguous to the site which have been utilized by DESIGN CONSULTANT in the preparation of the Contract Documents. The Bidder may rely upon the accuracy of the technical data contained in such reports; however, the interpretation of such technical data, including any interpolation or extrapolation thereof, together with non-technical data, interpretations and opinions contained therein or the completeness thereof is the responsibility of the Bidder. (b) Those drawings of physical conditions in or relating to existing surface and subsurface conditions (except Underground Utilities) which are at or contiguous to the site that have been utilized by DESIGN CONSULTANT in the preparation of the Contract Documents. The Bidder may rely upon the accuracy of the technical data contained in such drawings; however, the interpretation of such technical data, including any interpolation or extrapolation thereof, together with nontechnical data, interpretations and opinions contained in such drawings or the completeness thereof is the responsibility of the Bidder.
Subsurface conditions, including but not limited to groundwater, may have changed significantly between the completion of the soils investigation by the geotechnical engineer and start of construction. Subsurface conditions, including but not limited to groundwater, may change significantly during construction.
6.3 Copies of such reports and drawings will be made available by OWNER to any Bidder on request if said reports and drawings are not bound herein. Those reports and drawings are not part of the Contract Documents, but the technical data contained therein upon which the Bidder is entitled to rely, in Paragraph SGC-4.2 of the Supplementary General Conditions has been identified and established.
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6.4 Information and data reflected in the Contract Documents with respect to Underground Utilities at or contiguous to the site is based upon information and data furnished to OWNER and DESIGN CONSULTANT by the owners of such Underground Utilities or others, and OWNER does not assume responsibility for the accuracy or completeness thereof unless it is expressly provided otherwise in the Supplementary General Conditions or the section entitled “Protection and Restoration of Existing Facilities” of the General Requirements.
6.5 Provisions concerning responsibilities for the adequacy of data furnished to prospective Bidders on subsurface conditions, Underground Utilities and other physical conditions, and possible changes in the Contract Documents due to differing conditions appear in Paragraphs 4.2, 4.3, and 4.4 of the General Conditions.
6.6 Before submitting a Bid, each Bidder will, at Bidder’s own expense, make or obtain any additional examinations, investigations, explorations, tests and studies and obtain any additional information and data which pertain to the physical conditions (surface, subsurface and Underground Utilities) at or contiguous to the site or otherwise which may affect cost, progress or performance of the WORK or which relate to any aspect of the means, methods, techniques, sequences or procedures of construction to be employed by Bidder and Safety precautions and programs incident thereto which the Bidder deems necessary to determine its Bid for performing the WORK in accordance with the time, price and other terms and conditions of the Contract Documents. Interference with existing facility operations will not be permitted.
6.7 On request in advance, OWNER will provide each Bidder access to the site to conduct such examinations, investigations, explorations, tests and studies as each Bidder deems necessary for submission of a Bid. Bidder shall fill all holes and shall clean up and restore the site to its former condition upon completion of such examinations, investigations, explorations, tests and studies.
6.8 The lands upon which the WORK is to be performed, rights-of-way and easements for access thereto and other lands designated for use by CONTRACTOR in performing the WORK are identified in the Contract Documents. All additional lands and access thereto required for temporary construction facilities or storage of materials and equipment are to be provided by CONTRACTOR. Easements for permanent structures or permanent changes in existing structures are to be obtained and paid for by OWNER unless otherwise provided in the Contract Documents.
6.9 The submission of a Bid will constitute an incontrovertible representation by the Bidder that the Bidder has complied with every requirement of this Paragraph 6, “Bidder’s
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Examination of Contract Documents and Site” herein, that without exception the Bid is premised upon performing the WORK required by the Contract Documents and such means, methods, techniques, sequences or procedures of construction (if any) as may be indicated in or required by the Contract Documents, that Bidder has given CONSTRUCTION MANAGER written notice of all conflicts, errors, ambiguities and discrepancies in the Contract Documents and the written resolution thereof by CONSTRUCTION MANAGER is acceptable to Bidder and the Contract Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the WORK.
7. BID FORM.
7.1 The Bid shall be made on the Bid schedule bound herein and the pages may be removed from the bound volume. The envelope enclosing the sealed Bids shall be plainly marked in the upper left-hand corner with the name and address of the Bidder and shall bear the words “BID FOR” followed by “TAG ALLEYWAY PAVING PROJECT.,” El Centro, CA, 92243, and the date and hour of opening of Bids. The Bid security shall be enclosed in the same envelope with the Bid.
7.2 All blanks on the Bid form must be completed in ink.
7.3 Bids by corporations must be executed in the corporate name by the president and a vice-president. Bids signed by other corporate officer or the project manager shall be accompanied by the enclosed certificate of authority to sign, attested by the secretary or assistant secretary, and with the corporate seal affixed. The corporate address and state of incorporation must appear below the signature.
7.4 Bids by partnerships must be executed in the partnership name and be signed by a managing partner, accompanied by evidence of authority to sign and his/her title must appear under the signature and the official address of the partnership must appear below the signature.
7.5 All names must be printed below the signature.
7.6 The Bid shall contain an acknowledgement of receipt of all Addenda, the numbers of which shall be filled in on the Bid form. Failure to acknowledge Addenda shall render the Bid non-responsive and shall be cause for its rejection.
7.7 The address to which communications regarding the Bid are to be directed must be shown.
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7.8 All Bidders must provide evidence of authority to conduct business in California to the extent required by law.
8. QUANTITIES OF WORK. The quantities of work or material stated in unit price items of the Schedule of Values are supplied only to give an indication of the general scope of the WORK; OWNER does not expressly or by implication agree that the actual amount of work or material will correspond therewith, and reserves the right after award to increase or decrease the amount of any unit price item of the WORK in accordance with Article 10 of the General Conditions, to delete any Bid item in its entirety, or to add additional Bid items up to and including an aggregate total amount not to exceed twenty-five (25) percent of the Contract Price.
9. SUBSTITUTE OR “OR EQUAL” ITEMS. Whenever materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier and the name is followed by the words “or equal,” the Bidder may write the name of a substitute supplier (which the Bidder considers as an “or equal”) in the Proposed Substitute Equipment/Material Supplier List in the Bid form.
These substitute suppliers will only be considered after award of the Agreement. The procedure for the submittal of substitute or “or equal” products is specified in section 6.7 of the General Conditions.
10. SUBMISSION OF BIDS. The Bid shall be delivered by the time and to the place set forth in the Notice Inviting Bids. It is the Bidder’s sole responsibility to see that its Bid is received in proper time.
11. BID SECURITY, BONDS AND INSURANCE. Each Bid shall be accompanied by a certified or cashiers’ check or approved Bid bond in the amount stated in the Notice Inviting Bids. Said check or bond shall be made payable to the City of El Centro and shall be given as a guarantee that the Bidder, if awarded the Agreement, will enter into an Agreement with OWNER, and will furnish the necessary insurance certificates, payment bond and performance bond; each of said Bonds to be in the amount stated in the Supplementary General Conditions. In case of refusal or failure to enter into said Agreement, the check or Bid bond, as the case may be, shall be forfeited to OWNER. If the Bidder elects to furnish a Bid bond as its Bid security, the Bidder shall use the Bid bond form bound herein, or one conforming substantially to it in form.
12. DISCREPANCIES IN BIDS. In the event of a discrepancy between words and numbers in the Bid, the words shall govern. In the event there are unit price Bid items in the Schedule of Values and the amount indicated for a unit price Bid item does not equal the product of the unit price and quantity, the unit price shall govern and the amount will be corrected accordingly, and the Bidder shall be bound by said correction. In the event there is more than one (1) Bid item in the Schedule of Values and the total indicated for the schedule does not agree with the sum of the prices bid on the individual items, the prices
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BD 6
bid on the individual items shall govern and the total for the schedule will be corrected accordingly, and the Bidder shall be bound by said correction.
13. MODIFICATIONS AND UNAUTHORIZED ALTERNATIVE BIDS. Unauthorized conditions, limitations or provisos attached to the Bid will render it informal and may cause its rejection as being non-responsive. The completed Bid forms shall be without interlineations, alterations or erasures in the printed text. Alternative Bids will not be considered unless called for. Oral, telegraphic or telephonic Bids or modifications will not be considered.
14. WITHDRAWAL OF BID. The Bid may be withdrawn by the Bidder by means of a written request, signed by the Bidder or its properly authorized representative. Such written request must be delivered to the place stipulated in the Notice Inviting Bids for receipt of Bids prior to the scheduled closing time for receipt of Bids.
15. BID RESULTS. To obtain bid results, provide a self-addressed, stamped envelope, referencing “TAG ALLEYWAY PAVING PROJECT.” Bid tabulation will be mailed to you after verification of extensions. Bid results will not be given out over the telephone.
Bid results may be posted on City’s website.
16. AWARD OF CONTRACT. Award of a contract, if it be awarded, will be on the basis of the Bid proposal estimated quantities and will be made to the lowest responsive Bidder whose Bid complies with all the requirements prescribed. Unless otherwise specified, any such award will be made within the period stated in the Notice Inviting Bids that the Bids are to remain open. Unless otherwise indicated, a single award will be made for all the Bid items in an individual Bid schedule. The lowest Bid shall be the lowest price on the Total BID.
17. RETURN OF BID SECURITY. Within fourteen (14) working Days after award of the Agreement, OWNER will return the Bid securities accompanying such of the Bids as are not considered in making the award. All other Bid securities will be held until the Agreement has been finally executed. They will then be returned to the respective Bidders whose Bids they accompany.
18. EXECUTION OF AGREEMENT. The apparent low Bidder will be required to execute a written Agreement with OWNER on the form of agreement provided, shall secure all insurance and shall furnish all certificates and Bonds required by the Contract Documents within fourteen (14) calendar Days after receipt of notification that the Bidder is the apparent low Bidder. Failure or refusal to enter into an Agreement as herein provided or to conform to any of the stipulated requirements in connection therewith shall be considered non-responsive and result in the forfeiture of the Bid security. If the lowest responsive Bidder refuses or fails to execute the Agreement, OWNER may proceed to the second lowest responsive Bidder. If the second lowest responsive Bidder refuses or fails to execute the Agreement, OWNER may proceed to the third lowest responsive Bidder. On the failure
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or refusal of such second or third lowest Bidder to execute the Agreement, each such Bidder’s Bid securities shall be likewise forfeited to OWNER.
19. LIQUIDATED DAMAGES. Provisions for liquidated damages in the amount of $1,500 per day are set forth in the Agreement Section XVIII.
20. WORKERS’ COMPENSATION REQUIREMENT. The Bidder should be aware that in accordance with section 3700 of the California Labor Code it will, if awarded the Agreement, be required to secure the payment of compensation to its employees and execute the Workers’ Compensation Certification in the form contained in these Contract Documents.
- END OF INSTRUCTIONS TO BIDDERS -
City of El Centro
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BD 8
SECTION 00300A
BID FORMS
BID TO: CITY OF EL CENTRO
1. The undersigned Bidder proposes and agrees, if this Bid is accepted, to enter into an Agreement with OWNER in the form included in the Contract Documents (as defined in Article 6 of the Agreement) to perform the WORK as specified or indicated in said Contract Documents entitled “TAG ALLEYWAY PAVING PROJECT”
2. Bidder accepts all of the terms and conditions of the Contract Documents, including without limitation those in the Notice Inviting Bids and Instructions to Bidders, dealing with the disposition of the Bid security.
3. This Bid will remain open for the period stated in the Notice Inviting Bids unless otherwise required by law. Bidder will enter into an Agreement within the time and in the manner required in the “Notice Inviting Bids” and the “Instructions to Bidders,” and will furnish the insurance certificates, Payment Bond and Performance Bond required by the Contract Documents.
4. Bidder has examined copies of all the Contract Documents including the following Addenda (receipt of all of which is hereby acknowledged):
Number ______ ______ ______ ______ ______ ______
Date ______ ______ ______ ______ ______ ______
5. Bidder has familiarized itself with the nature and extent of the Contract Documents, WORK, site, locality where WORK is to be performed, the legal requirements (Federal, State and local laws, ordinances, rules and regulations) and the conditions affecting cost, progress or performance of the WORK and has made such independent investigations as Bidder deems necessary.
To all the foregoing, and including all Bid schedule(s) and information required of Bidder contained in this Bid form, said Bidder further agrees to complete the WORK required under the Contract Documents within the Contract Time set forth in said Contract Documents, and to accept in full payment therefore the Contract Price based on the total Bid price(s) named in the aforementioned Bid schedule(s).
Dated: Bidder:
By:
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BD 9
(Signature)
Title:
City of El Centro
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BD 10
BID SCHEDULE - PRICES
Pursuant to and in compliance with the Invitation for Bids and other Contract Documents relating to the proposal for the construction of
TAG ALLEYWAY PAVING PROJECT
All in accordance with the Drawings and Project Specifications the undersigned Bidder, having familiarized himself with the terms of the Agreement, the local conditions affecting the performance of the Agreement and the cost of the WORK at the place the WORK is to be done; and with the Drawings, Project Specifications and other Contract Documents, hereby stipulated; CONTRACTOR agrees to complete the Agreement, including all of its component parts and everything required to be performed, and to provide and furnish any and all labor, materials, equipment, tools, expendable supplies, and all utility and transportation services necessary to perform the Agreement, and complete in a workmanlike manner all of the WORK required in connection with the Agreement, all in strict conformance with the Drawings and Specifications for the following prices and sum.
The following Bid Schedule of estimated quantities is included for convenience of bidding and a basis for comparison of Bids only, and CITY does not, expressly, or by implication, agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the WORK, or to delete portions of the WORK, as may be deemed necessary or advisable by CITY.
All Bidders are REQUIRED to use unit prices where indicated and to complete this schedule.
All items shall be complete and in place per Plans and these Bid and Contract Documents.
Note: Payment for all work (labor, material, equipment, etc.) required for the construction and installation of the improvement as shown on the plans which is not specifically identified below in the Bid Schedule shall be considered as included in the CONTRACTOR’s price, as itemized below, for the various items of work for which the work is required, and no additional compensation shall be made therefor.
City of El Centro
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BD 11
PROPOSAL BID FORM
TO THE DIRECTOR OF PUBLIC WORKS OF THE CITY OF EL CENTRO:
The undersigned hereby declares that he has carefully examined the location of the proposed work, that he has examined the plans and specifications and read the accompanying instructions to bidders and hereby proposes to furnish all material except owner furnished materials, and do all work required to complete the said work in accordance with said plans and specifications and special provisions for the unit prices set forth in the following schedule. The bidder shall furnish prices for all items shown in the proposal.
BASE BID
Schedule of Values
Item
No.
Item Description Unit Qua
ntity
Unit
Price
Amount
General Construction
1 Mobilization LS 1
2 Cleaning and Grubbing of Improvements Area LS 1
3 Earthwork LS 1
4 Construction Staking LS 1
5 Furnish, Install & Maintain Traffic Control LS 1
6 Material Testing LS 1
General Construction Sub-Total
ALLEY #1
7 Remove & Dispose of Existing Aggregate Base
Course
SY 828
8 1' wide AC Pavement Sawcut SY 24
9 Remove & Dispose of Existing AC Pavement SY 144
10 New 3" Thick AC Pavement TON 124
11 New 9" Thick Aggregate Base Course TON 269
Alley #1 Sub-Total
ALLEY #2
12 Remove & Dispose of Existing Aggregate Base
Course
SY 996
13 New 3" Thick AC Pavement TON 141
14 New 9" Thick Aggregate Base Course TON 306
Alley #2 Sub-Total
ALLEY #3
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15 Remove & Dispose of Existing Aggregate Base
Course
SY 771
16 1' wide AC Pavement Sawcut SY 90
17 Remove & Dispose of Existing AC Pavement SY 647
18 Remove and Properly dispose of ex. concrete SY 8
19 New 3" Thick AC Pavement TON 91
20 New 9" Thick Aggregate Base Course TON 270
21 New 3' Wide Valley Gutters SY 201
22 Adjust ex. sewer manhole to finished grade EA 1
Alley #3 Sub-Total
ALLEY #4
23 Remove & Dispose of Existing Aggregate Base
Course
SY 109
24 1' wide AC Pavement Sawcut SY 19
25 Remove & Dispose of Existing AC Pavement SY 150
26 New 3" Thick AC Pavement TON 34
27 New 9" Thick Aggregate Base Course TON 89
28 New 3' Wide Valley Gutter SY 54
Alley #4 Sub-Total
ALLEY #5
29 Remove & Dispose of Existing Aggregate Base
Course
SY 1,07
4 30 1' wide AC Pavement Sawcut SY 4
31 New 3" Thick AC Pavement TON 120
32 New 9" Thick Aggregate Base Course TON 315
33 New 3' Wide Valley Gutter SY 190
Alley #5 Sub-Total
ALLEY #6
34 Remove & Dispose of Existing Aggregate Base
Course
SY 1,07
3 35 1' wide AC Pavement Sawcut SY 4
36 Remove & Dispose of Existing AC Pavement SY 17
37 New 3" Thick AC Pavement TON 124
38 New 9" Thick Aggregate Base Course TON 344
39 New 3' Wide Valley Gutters SY 208
40 Adjust ex. sewer manhole to finished grade EA 1
Alley #6 Sub-Total
ALLEY #7
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BD 13
41 Remove & Dispose of Existing Aggregate Base
Course
SY 973
42 1' wide AC Pavement Sawcut SY 4
43 New 3" Thick AC Pavement TON 123
44 New 9" Thick Aggregate Base Course TON 339
45 New 3' Wide Valley Gutters SY 205
Alley #7 Sub-Total
ALLEY #8
46 Remove & Dispose of Existing Aggregate Base
Course
SY 1,03
1 47 1' wide AC Pavement Sawcut SY 4
48 New 3" Thick AC Pavement TON 103
49 New 9" Thick Aggregate Base Course TON 295
50 New 3' Wide Valley Gutters SY 208
Alley #8 Sub-Total
ALLEY #9
51 Remove & Dispose of Existing Aggregate Base
Course
SY 1,07
7 52 New 3" Thick AC Pavement TON 100
53 New 9" Thick Aggregate Base Course TON 289
54 New 3' Wide Valley Gutters SY 204
55 Adjust ex. sewer manhole to finished grade EA 1
Alley #9 Sub-Total
ALLEY #10
56 Remove & Dispose of Existing Aggregate Base
Course
SY 393
57 New 3" Thick AC Pavement TON 45
58 New 9" Thick Aggregate Base Course TON 130
59 New 3' Wide Valley Gutters SY 92
60 Adjust ex. sewer manhole to finished grade EA 1
Alley #10 Sub-Total
ALLEY #11
61 1' wide AC Pavement Sawcut SY 131
62 Remove & Dispose of Existing AC Pavement SY 889
63 New 3" Thick AC Pavement TON 114
64 New 9" Thick Aggregate Base Course TON 315
65 New 3' Wide Valley Gutters SY 190
Alley #11 Sub-Total
ALLEY #12
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BD 14
66 Remove & Dispose of Existing Aggregate Base
Course
SY 890
67 1' wide AC Pavement Sawcut SY 20
68 Remove & Dispose of Existing AC Pavement SY 125
69 New 3" Thick AC Pavement TON 123
70 New 9" Thick Aggregate Base Course TON 341
71 New 3' Wide Valley Gutters SY 206
Alley #12 Sub-Total
ALLEY #13
72 Remove & Dispose of Existing Aggregate Base
Course
SY 933
73 1' wide AC Pavement Sawcut SY 4
74 New 3" Thick AC Pavement TON 153
75 New 9" Thick Aggregate Base Course TON 98
76 New 3' Wide Valley Gutters SY 205
77 Adjust ex. sewer manhole to finished grade EA 1
78 Adjust ex. water valve to finished grade EA 1
Alley #13 Sub-Total
ALLEY #14
79 Remove & Dispose of Existing Aggregate Base
Course
SY 843
80 1' wide AC Pavement Sawcut SY 12
81 Remove & Dispose of Existing AC Pavement SY 37
82 New 3" Thick AC Pavement TON 102
83 New 9" Thick Aggregate Base Course TON 296
84 New 3' Wide Valley Gutters SY 209
85 Adjust ex. sewer manhole to finished grade EA 2
Alley #14 Sub-Total
ALLEY #15
86 Remove & Dispose of Existing Aggregate Base
Course
SY 856
87 1' wide AC Pavement Sawcut SY 17
88 Remove & Dispose of Existing AC Pavement SY 78
89 New 3" Thick AC Pavement TON 102
90 New 9" Thick Aggregate Base Course TON 295
91 New 3' Wide Valley Gutters SY 208
Alley #15 Sub-Total
ALLEY #16
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BD 15
92 Remove & Dispose of Existing Aggregate Base
Course
SY 931
93 New 3" Thick AC Pavement TON 92
94 New 9" Thick Aggregate Base Course TON 259
95 New 3' Wide Valley Gutters SY 208
96 Adjust ex. sewer manhole to finished grade EA 1
Alley #16 Sub-Total
ALLEY #17
97 Remove & Dispose of Existing Aggregate Base
Course
SY 1,18
4 98 1' wide AC Pavement Sawcut SY 18
99 Remove & Dispose of Existing AC Pavement SY 56
100 New 3" Thick AC Pavement TON 114
101 New 9" Thick Aggregate Base Course TON 311
102 New 3' Wide Valley Gutters SY 177
103 Adjust ex. sewer manhole to finished grade EA 1
Alley #17 Sub-Total
ALLEY #18
104 Remove & Dispose of Existing Aggregate Base
Course
SY 1,03
8 105 New 3" Thick AC Pavement TON 120
106 New 9" Thick Aggregate Base Course TON 332
107 New 3' Wide Valley Gutters SY 202
108 Adjust ex. sewer manhole to finished grade EA 2
Alley #18 Sub-Total
ALLEY #19
109 Remove & Dispose of Existing Aggregate Base
Course
SY 413
110 1' wide AC Pavement Sawcut SY 81
111 Remove & Dispose of Existing AC Pavement SY 494
112 New 3" Thick AC Pavement TON 117
113 New 9" Thick Aggregate Base Course TON 299
114 New 3' Wide Valley Gutters SY 128
115 Adjust ex. sewer manhole to finished grade EA 1
Alley #19 Sub-Total
ALLEY #20
116 Remove & Dispose of Existing Aggregate Base
Course
SY 506
117 1' wide AC Pavement Sawcut SY 19
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BD 16
118 Remove & Dispose of Existing AC Pavement SY 88
119 New 3" Thick AC Pavement TON 78
120 New 9" Thick Aggregate Base Course TON 225
121 New 3' Wide Valley Gutters SY 155
122 Adjust ex. sewer manhole to finished grade EA 1
Alley #20 Sub-Total
ALLEY #21
123 Remove & Dispose of Existing Aggregate Base
Course
SY 840
124 Sawcut, Remove and Properly Dispose of Existing
Concrete
SY 11
125 New 3" Thick AC Pavement TON 89
126 New 9" Thick Aggregate Base Course TON 266
127 New 3' Wide Valley Gutters SY 204
128 Adjust ex. sewer manhole to finished grade EA 1
Alley #21 Sub-Total
ALLEY #22
129 Remove & Dispose of Existing AC Pavement and
Aggregate Base Course
SY 157
130 Sawcut, Remove and Properly Dispose of Existing
Concrete
SY 7
131 New 3" Thick AC Pavement TON 27
132 New 9" Thick Aggregate Base Course TON 58
133 Adjust ex. sewer manhole to finished grade EA 1
Alley #22 Sub-Total
ALLEY #23
134 1' wide AC Pavement Sawcut SY 83
135 Remove & Dispose of Existing AC Pavement SY 579
136 New 3" Thick AC Pavement TON 74
137 New 9" Thick Aggregate Base Course TON 243
138 New 3' Wide Valley Gutters SY 123
139 Adjust ex. sewer manhole to finished grade EA 1
Alley #23 Sub-Total
ALLEY #24
140 Remove & Dispose of Existing Aggregate Base
Course
SY 86
141 New 3" Thick AC Pavement TON 10
142 New 9" Thick Aggregate Base Course TON 27
143 New 3' Wide Valley Gutters SY 16
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144 Adjust ex. sewer manhole to finished grade EA 1
Alley #24 Sub-Total
ALLEY #25
145 Remove & Dispose of Existing Aggregate Base
Course
SY 515
146 Sawcut, Remove and Properly Dispose of Existing
Concrete
SY 1
147 New 3" Thick AC Pavement TON 53
148 New 9" Thick Aggregate Base Course TON 148
149 New 3' Wide Valley Gutters SY 91
Alley #25 Sub-Total
ALLEY #26
150 Remove & Dispose of Existing Aggregate Base
Course
SY 746
151 Sawcut, Remove and Properly Dispose of Existing
Concrete
SY 2
152 New 3" Thick AC Pavement TON 91
153 New 9" Thick Aggregate Base Course TON 252
154 New 3' Wide Valley Gutters SY 153
Alley #26 Sub-Total
ALLEY #27
155 1' wide AC Pavement Sawcut SY 145
156 Remove & Dispose of Existing AC Pavement SY 1,00
2 157 New 3" Thick AC Pavement TON 128
158 New 9" Thick Aggregate Base Course TON 355
159 New 3' Wide Valley Gutters SY 216
160 Adjust ex. sewer manhole to finished grade EA 2
Alley #27 Sub-Total
ALLEY #28
161 1' wide AC Pavement Sawcut SY 31
162 Remove & Dispose of Existing AC Pavement SY 204
163 Remove & Dispose of Existing Aggregate Base
Course
SY 624
164 New 3" Thick AC Pavement TON 122
165 New 9" Thick Aggregate Base Course TON 338
166 New 3' Wide Valley Gutters SY 205
167 Adjust ex. sewer manhole to finished grade EA 2
Alley #28 Sub-Total
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BD 18
ALLEY #29
168 1' wide AC Pavement Sawcut SY 29
169 Remove & Dispose of Existing AC Pavement SY 163
170 Remove & Dispose of Existing Aggregate Base
Course
SY 391
171 New 3" Thick AC Pavement TON 103
172 New 9" Thick Aggregate Base Course TON 145
173 New 3' Wide Valley Gutters SY 88
174 Adjust ex. sewer manhole to finished grade EA 1
Alley #29 Sub-Total
ALLEY #30
175 Remove & Dispose of Existing Aggregate Base
Course
SY 1,26
4 176 Remove & Dispose of Existing AC Pavement SY 391
177 Sawcut, Remove and Properly Dispose of Existing
Concrete
SY 4
178 New 3" Thick AC Pavement TON 120
179 New 9" Thick Aggregate Base Course TON 331
180 New 3' Wide Valley Gutters SY 200
Alley #30 Sub-Total
TOTAL BASE BID $_____________________________
Total Base Bid is:
$_____________________ (Amount of Total Base Bid written numerically as dollars and cents, in US dollars)
$ ___________________________________________________________________________ (Amount of Total Base Bid written in words as dollars and cents, in US dollars) NOTE: TOTAL BASE BID WILL BE USED TO DETERMINE LOW BIDDER
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BD 19
-END OF PROPOSAL BID FORMLIST OF SUBCONTRACTORS
The Bidder shall list below the name and the location of the place of business of each Subcontractor who will perform work or labor or render service to CONTRACTOR in or about the construction of the WORK, or a Subcontractor licensed by the State who, under subcontract to CONTRACTOR, specially fabricates and installs a portion of the WORK according to detailed Drawings contained in the plans and specifications, in an amount in excess of one-half (0.5) of one (1.0) percent of CONTRACTOR’s total Bid. The Bidder shall also list below the portion of the WORK which will be done by each Subcontractor under this contract.
CONTRACTOR shall list only one (1) Subcontractor for each portion of the WORK. If Bidder does NOT intend to use ANY subcontractors, state “NONE” in the first block.
Substitutions of subcontractors listed will not be permitted unless approved by the City of El Centro.
The Bidder’s attention is directed to Paragraph 6.5.3 entitled “Subcontract Limitations” of the General Conditions which sets forth the percent of the WORK to be performed with the Bidders’ own forces. Failure to comply with this requirement will render the Bid nonresponsive and may cause its rejection.
PORTION OF WORK NAME OF
SUBCONTRACTOR
DIR REGISTRATION
NUMBER
PLACE OF BUSINESS
ADDRESS/TELEPHONE
No.
USE ADDITIONAL FORMS AS NECESSARY
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BD 20
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BD 21
GENERAL INFORMATION
BIDDER’S GENERAL INFORMATION:
The Bidder shall furnish the information requested below. Additional sheets shall be attached as required. Failure to complete Item Nos. 1 through 3 will cause the Bid to be non-responsive and shall cause its rejection. In any event, no award will be made until all of the Bidder’s general information (i.e., items 1 through 3, inclusive) is delivered to OWNER.
INFORMATION TO BE PROVIDED BY ALL BIDDERS WITH BID SUBMITTAL:
(1) CONTRACTOR’s name and address:
(2) CONTRACTOR’s telephone number: FAX number:
(3) CONTRACTOR’s license: Primary classification
California State License No. and Expiration Date
Supplemental classifications held, if any:
Name of Licensee, if different from (1) above:
To be considered for award, CONTRACTOR shall have met all requirements established by OWNER of the Project.
- END GENERAL INFORMATION –
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BD 22
NONCOLLUSION DECLARATION
TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
The undersigned declares:
I am the __________________ of ______________________, the party making the foregoing bid.
The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding.
The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.
Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________ [date], at ______________________ [city], ________________________ [state]. - END NONCOLLUSION DECLARATION –
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BD 23
City of El Centro
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BD 24
BID BOND
KNOW ALL MEN BY THESE PRESENTS,
That _____________________________ as Principal, and ____________________as Surety, are held and firmly bound unto the City of El Centro, hereinafter called “OWNER,” in the sum of __________________________ dollars, (_______________) (not less than ten (10) percent of the total amount of the Bid) for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
WHEREAS, said Principal has submitted a Bid to said OWNER to perform the WORK required under the Bid schedule(s) of OWNER’s Contract Documents entitled:
NOW THEREFORE, if said Principal is awarded a contract by said OWNER and, within the time and in the manner required in the Notice Inviting Bids and the Instructions to Bidders enters into a written Agreement on the form of agreement bound with said Contract Documents, furnishes the required certificates of insurance and furnishes the required Performance Bond and Payment Bond, then this obligation shall be null and void, otherwise it shall remain in fullforce and effect. In the event suit is brought upon this Bond by said OWNER and OWNER prevails, said Surety shall pay all costs incurred by said OWNER in such suit, including reasonable attorneys’ fee to be fixed by the court and actual costs.
SIGNED AND SEALED, this day of , 20
(SEAL) (SEAL)
(Principal) (Surety)
By: By:
(Signature) (Signature)
(SEAL AND NOTARIAL ACKNOWLEDGEMENT OF SURETY)
- END BID BOND –
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BD 25
CORPORATE CERTIFICATION
OR
PARTNERSHIP INFORMATION
Name of Corporation or Partnership________________________________________________ State of Incorporation___________________________________________________________ List names and addresses of each partner, or titles, names and business addresses of President, Secretary and Treasurer.
______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Date_____________________________ Contractor__________________________ Signature_________________________ Title________________________________ ATTEST:
__________________________________
Signature by
__________________________________
Title
END OF CORPORATE CERTIFICATION OR PARTNERSHIP INFORMATION
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BD 26
DRUG/ALCOHOL TESTING REQUIREMENTS
CONTRACTOR shall execute the following form as required by the Federal Drug and Alcohol, Section 49 CFR Part 382.
I agree to comply with the provisions of Federal Omnibus Transportation Employee Testing Act of 1991, and that I will administer a program of alcohol and drug testing of all commercial vehicle operators, as required by Federal Regulations.
CONTRACTOR certifies compliance with the City of El Centro’s Drug and Alcohol Free Workplace Policy as a condition of the State Drug-Free Workplace Act of 1990 (Government Code sections 8350 et seq.) and the Federal Drug Free Workplace Act of 1988 (41 U.S.C.A. Sections 701 et seq.) In addition, CONTRACTOR agrees to submit a copy of its own drug free workplace policy.
Dated_____________________________
________________________________________
CONTRACTOR’s Name
_________________________________________
CONTRACTOR’s Signature
_________________________________________
Title
- END DRUG/ALCOHOL TESTING REQUIREMENTS –
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BD 27
WORKERS’ COMPENSATION CERTIFICATE
(AS REQUIRED BY SECTION 1861
OF THE CALIFORNIA LABOR CODE)
I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the WORK of this Agreement.
CONTRACTOR:
By:
Title:
- END OF WORKERS’ COMPENSATION CERTIFICATE –
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BD 28
SITE VISIT CERTIFICATE
THIS IS TO CERTIFY that:
I, ___________________________________________________(name of bidder or his representative) of the _____________________________________________________ (name of construction firm) visited the site in connection with the Bid for the ______________________________________________________________ (name of the Project.)
Having examined the bid documents, I certify that I have acquainted with the nature, geographical and exact location of the works; the general conditions of execution; the neighboring buildings and other constraints that might affect the construction methods; the obligation not to obstruct the traffic where requested, or the flow of any water; the physical conditions specific to the construction sites; the climatic conditions; local conditions; means of communication and transport; the possibility of supplying water, electricity and fuel; the availability of labor sufficient in number and quantity; all constraints and obligations resulting from social, tax and customs legislation; and all conditions and circumstances which might influence the execution or price of the works.
I further certify that I am satisfied with the description of the works and the Project Engineer’s explanations and that I understand perfectly the works to be undertaken as specified and implied in the execution of the Contract.
______________________________________________
(Name and Signature of Bidder or his Representative)
Date : ______________________
Note 1: This form shall be completed at the time of the visit to the site where the works are to be carried out.
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BD 29
- END OF SITE VISIT CERTIFICATE –
CONTRACTOR’S CERTIFICATION OF QUALIFICATION
FOR LICENSE CLASSIFICATION
1. If an individual, I hereby certify that I am, or my responsible managing employee ________________________ (insert name) is, qualified for the license classification called for in these contract documents.
2. If a co-partnership or limited partnership, the general partner hereby certifies that the general partner _______________________________ (insert name), or responsible managing employee __________________________________ (insert name), is qualified for the license classification called for in these contract documents.
3. If a corporation, or any other combination or organization, the responsible managing officer _______________________________ (insert name), or a responsible managing employee ________________________________ (insert name), is qualified for the license classification called for in these contract documents.
If the individual who qualifies the Contractor for the license classification called for in these contract documents changes during the progress of the work, then Contractor shall, within seven (7) days of any such change, notify the Director of Public Works in writing of such change, including the name, license number and status of the individual.
For the purpose of this Certification, a responsible managing employee shall mean an individual who is a bona fide employee of the Contractor and is actively engaged in the classification of work for which that individual is the qualifying person on behalf of the Contractor under California law.
DATED:____________________ CONTRACTOR:___________________________________ SIGNATURE:_____________________________ TITLE:______________________________ ATTEST:
SIGNATURE BY:___________________________________________ TITLE:__________________________________________________
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BD 30
- END OF CONTRACTOR’S CERTIFICATION OF QUALIFICATION –
- END OF BIDDING DOCUMENTS –
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CD 1
CONTRACT DOCUMENTS
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CD 2
CITY OF EL CENTRO
TAG ALLEYWAY PAVING PROJECT.
CONSTRUCTION SERVICES AGREEMENT
This CONSTRUCTION SERVICES AGREEMENT (“Agreement”), is made and effective as of the last signature date set forth below “Effective Date” , by and between the City of El Centro, a municipal corporation ("CITY"), and , a [sole proprietorship, partnership, limited liability partnership, corporation] ("CONTRACTOR"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
I. SCOPE OF WORK
The CONTRACTOR shall perform within the time set forth in Article 2 of this Agreement and shall furnish all labor, materials, equipment, tools, utility services, and transportation and perform and complete all work required in connection with the following:
The work to be performed under this contract shall consist of furnishing all labor, materials, equipment, and incidentals necessary to complete the improvements shown on the plans and specified herein. The work includes, but is not limited to: mobilization; traffic control; cleaning and grubbing; construction surveying and staking; saw-cutting and removal of existing asphalt concrete pavement, aggregate base, and concrete improvements; unclassified excavation and grading; disposal of unsuitable materials; installation of new aggregate base course; placement of new asphalt concrete pavement; construction of new concrete valley gutters and related drainage improvements; adjustment of existing utilities to grade; material testing; and restoration of disturbed areas. All work shall be performed in accordance with the City of El Centro Standard Specifications, project plans, and contract documents.
The scope of work is more specifically described on the construction plans and in these Specifications.
By entering into this Agreement, CONTRACTOR acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own.
CONTRACTOR expressly warrants and agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors, the CITY, the Construction Manager, the Architect, or utilities. CONTRACTOR also expressly agrees that, in the event its work is hindered, delayed, interfered with, or otherwise affected by a separate contractor, its sole remedy will be a direct action against the separate contractor. To the extent allowed by law, the CONTRACTOR will have no remedy, and hereby expressly waives any remedy against the CITY, the Construction Manager, or the Architect on account of delay, hindrance, interference or other events caused by a separate contractor.
II. TIME FOR PROJECT COMPLETION
All of CONTRACTOR’s work on the Project shall be completed within durations
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CD 3
established for the individual activities as set forth in the Project Construction Schedule.
All work shall commence within ten (10) calendar days after receiving a written Notice to Proceed from the CITY or Construction Manager, if a Construction Manager is employed by CITY on the Project. CONTRACTOR shall refer to the invitations for bids, and Project Plans and Specifications, all of which, as set forth below, are incorporated herein by reference, for contractual obligations regarding individual activity durations. The aggregate sum total work of all individual Prime Contractors to the CITY comprises the entire “Project” and shall be commenced and completed in conformance with the Project Construction Schedule. The entire Project shall be completed within 90 “Calendar” days as defined by the Caltrans 7-day Workday calendar 2026.
III. THE CONTRACT SUM
The CITY shall pay to the CONTRACTOR for the performance of this Agreement, subject to any additions and deductions provided in the Project documents, the sum of dollars ($ ).
IV. PROGRESS PAYMENTS
Based upon Applications for Payment submitted to the Architect by the CONTRACTOR and Certificates for Payment issued by the Architect, the CITY shall make progress payments on account of the Contract Sum to the CONTRACTOR as provided in the General Conditions.
This Agreement is subject to the provisions of Article 1.7 (commencing at Section 20104.50) of Division 2, Part 3 of the Public Contract Code regarding prompt payment of contractors by local governments. Article 1.7 mandates certain procedures for the payment of undisputed and properly submitted payment requests within 30 days after receipt, for the review of payment requests, for notice to Contractor of improper payment requests, and provides for the payment of interest on progress payment requests that are not timely made in accordance with that Article. This AGREEMENT hereby incorporates the provisions of Article 1.7 as though fully set forth herein.
V. RETENTION OF SECURITIES
Public Contract Code Section 22300 permits the substitution of securities for any monies withheld by a public agency to ensure performance under a contract, at the request and expense of the CONTRACTOR. A copy of Public Contract Code Section 22300 is attached and incorporated as pages CD19 to CD23, as if fully set forth herein.
VI. INDEMNITY, DEFENSE AND HOLD HARMLESS AGREEMENT
CONTRACTOR shall indemnify, defend with legal counsel approved by CITY, and hold harmless CITY, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or
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in connection with CONTRACTOR's negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the CITY. Should conflict of interest principles preclude a single legal counsel from representing both CITY and CONTRACTOR, or should CITY otherwise find CONTRACTOR’s legal counsel unacceptable, then CONTRACTOR shall reimburse the CITY its costs of defense, including without limitation reasonable legal counsels fees, expert fees and all other costs and fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against the CITY (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
CONTRACTOR obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of CITY under any provision of this agreement, CONTRACTOR shall not be required to indemnify and hold harmless CITY for liability attributable to the active negligence of CITY, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where CITY is shown to have been actively negligent and where CITY active negligence accounts for only a percentage of the liability involved, the obligation of CONTRACTOR will be for that entire portion or percentage of liability not attributable to the active negligence of CITY.
VII. PREVAILING WAGES
A. Wage rates for this Project shall be in accordance with the “General Wage Determination Made by the Director of Industrial Relations Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1771, 1773, 1773.1, 1774 and 1815", for Imperial County. Wage rates shall conform with those available at www.dir.ca.gov/OPRL/Pwd and on the Project site.
B. The following Labor Code sections are hereby referenced and made a part of this Agreement:
1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates.
2. Section 1777.4 - Apprenticeship Requirements.
3. Section 1777.5 - Apprenticeship Requirements.
4. Section 1813 - Penalty for Failure to Pay Overtime.
5. Sections 1810 and 1811 - Working Hour Restrictions.
6. Section 1775 - Payroll Records.
7. Section 1773.8 - Travel and Subsistence Pay.
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VIII. RECORD AUDIT
In accordance with Government Code, Section 8546.7, records of both the CITY and the CONTRACTOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.
IX. CLAIM PROCEDURES UNDER PUBLIC CONTRACT CODE SECTION 9204 CONTRACTOR shall comply with the procedure set forth in Public Contracts Code section 9204 for any claim, as that term is defined therein, for one or more of the following:
1) a time extension, including, without limitation, for relief from damages or penalties for delay, 2) payment of money or damages arising from work done pursuant to this Agreement, and/or 3) payment of an amount disputed by the AGENCY under this Agreement. A copy of Public Contracts Code Section 9204 is attached and incorporated as pages CD24 to CD27, as if fully set forth herein.
X. CERTIFICATIONS
A. Contractor shall have a Class A License from the Contractors State License Board of the State of California.
XI. FINAL PAYMENT
Final payment, constituting the entire unpaid balance of the Agreement Sum, shall be paid by the CITY to the CONTRACTOR no sooner than thirty-five (35) days after a Notice of Completion has been recorded, unless otherwise stipulated in the Notice of Completion, provided the work has then been completed, the Agreement fully performed, and a final Certificate for Payment has been issued by the Architect.
XII. CONTRACTOR'S FAILURE TO PROCURE COMPLETION OF PROJECT In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if the CONTRACTOR for a period of three (3) calendar days after receipt of written demand from CITY or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then the CITY may exclude the CONTRACTOR from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this Agreement or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by the CITY to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by the CITY, shall be a charge against the CONTRACTOR, and may be deducted from any money due
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or becoming due to CONTRACTOR from the CITY, or the CONTRACTOR shall pay the CITY the amount of said charge, or the portion thereof unsatisfied. The sureties provided for under this Agreement shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by the CITY.
XIII. INSURANCE
Prior to the beginning of and throughout the duration of the Work, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below. CONTRACTOR will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to CITY.
A. CONTRACTOR shall provide the following types and amounts of insurance:
Without limiting CONTRACTOR’s indemnification of CITY, and prior to commencement of Work, CONTRACTOR shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to CITY.
General liability insurance. CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Umbrella or excess liability insurance. CONTRACTOR shall obtain and maintain an umbrella or excess liability insurance that will provide bodily injury, personal injury and
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property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
CONTRACTOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers.
Pollution liability insurance. Environmental Impairment Liability Insurance shall be written on a CONTRACTOR’s Pollution Liability form or other form acceptable to CITY providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites.
Products/completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The CITY, its officials, officers, agents, and employees, shall be included as insureds under the policy.
Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the CITY has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below.
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The named insureds shall be CONTRACTOR and CITY, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the CITY. The CITY will act as a fiduciary for all other interests in the Project.
Policy shall be provided for replacement value on an "all risk" basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and sub limits and shall be submitted to the CITY prior to commencement of construction.
Other provisions or requirements
Proof of insurance. CONTRACTOR shall provide certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by CITY’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with CITY at all times during the term of this contract. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors.
CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. CITY and its officers, officials, employees, and agents shall continue as additional insureds under such policies.
Primary/noncontributing. Coverage provided by CONTRACTOR shall be primary and any insurance or self-insurance procured or maintained by CITY shall not be required to
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contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before the CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured.
City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, CITY may cancel this Agreement.
Acceptable insurers. All insurance policies shall be 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 the CITY’s risk manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its sub consultants.
Enforcement of contract provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the CONTRACTOR maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for
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nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing.
Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that CONTRACTOR’s insurance shall apply separately to each insured against who claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass through clause. CONTRACTOR agrees to ensure that its sub-consultants, subcontractors, and any other party involved with the project that is brought onto or involved in the project by CONTRACTOR, provide the same minimum insurance coverage and endorsements required of CONTRACTOR. CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to CITY for review.
City’s right to revise requirements. The CITY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90) day advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the CITY and CONTRACTOR may renegotiate CONTRACTOR’s compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY.
Timely notice of claims. CONTRACTOR shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.
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XIV. CONTRACTOR'S LICENSE; CITY BUSINESS LICENSE
CONTRACTOR must possess at the time of commencing work and throughout the Project duration, a Contractor's License, issued by the State of California, which is current and in good standing. CONTRACTOR shall ensure that any subcontractor working on the Project possesses at the time of commencing work and throughout the Project duration, a Contractor's License, issued by the State of California, which is current and in good standing.
CONTRACTOR shall have a current City business license at the time of commencement of work on the project.
XV. REGISTRATION REQUIREMENTS [applicable to public works projects] Pursuant to Section 1771.1(a) of the Labor Code:
“A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” CONTRACTOR must be registered with the Department of Industrial Relations (DIR) of the State of California in order to be eligible to work on public works projects.
CONTRACTOR must ensure registration with the DIR that is active and in good standing.
No contractor or subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
No contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
The CONTRACTOR is not subject to public works requirements (including registration with the DIR) if the public works project is under $1,000, unless the CITY knows that the same CONTRACTOR will be awarded total project costs in excess of $1,000 for a given
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year.
XVI. CORPORATION IN GOOD STANDING
If CONTRACTOR is a corporation, the undersigned hereby represents and warrants that the corporation is duly incorporated and in good standing in the State of California, and that , whose title is , is authorized to act for and bind the corporation.
XVII. PROVISIONS REQUIRED BY LAW
Each and every provision of law and clause 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 currently inserted, then upon application of either party the Agreement shall forthwith be physically amended to make such insertion or correction.
XVIII. SUBSURFACE HAZARDOUS MATERIALS
A. In the event trenches or other excavations extend deeper than four (4) feet below the surface, the CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the CITY in writing of any:
1. Material that the CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code that is required to be removed to a Class I, Class II or Class III disposal site in accordance with the provisions of existing law.
2. Subsurface or latent physical conditions at the site differing from those indicated.
3. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the Work or the character provided for in the CONTRACT.
B. Upon receipt of said notification the CITY will 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, the CITY will issue a change order under the procedures described in the General Conditions.
C. In the event that a dispute arises between the CITY 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
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the resolution of disputes and protests between the contracting parties.
XIX. LIQUIDATED DAMAGES
Pursuant to Government Code Section 53069.85, if work is not completed within the contract time or in strict accordance with the Project Schedule, it is understood, acknowledged and agreed that the CITY will suffer damage. It is therefore agreed that the CONTRACTOR shall pay to the CITY the sum of one thousand and five hundred dollars ($1,500) for each and every calendar day of delay beyond the Contract Time, or beyond any completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule, or beyond the time indicated in the Project Schedule for any individual Contract activity.
CONTRACTOR expressly understands, acknowledges and agrees that such liquidated damages can and shall be imposed if the CONTRACTOR does not meet each and every aspect of any activity schedule, completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule. If the CITY accepts work or makes any payment under this Agreement after a default by reason of delays, the acceptance of such work and/or payment(s) shall in no respect constitute a waiver or modification of any provisions regarding Contract Time, a completion schedule, the Project Schedule or the accrual of liquidated damages. In the event the same is not paid, the CONTRACTOR further agrees that the CITY may deduct the amount thereof from any money due or that may become due the CONTRACTOR under the Agreement. This Article does not exclude recovery of damages under provisions of the Contract Documents, and is expressly in addition to the CITY’s ability to seek other damages.
CONTRACTOR is to refer to Project Construction Schedule for duration of individual activities. Liquidated damages may be assessed if any individual activity duration exceeds the time indicated for that activity on the Project Construction Schedule.
XX. COMPONENT PARTS OF THE CONTRACT
This Agreement entered into consists of the following CONTRACT DOCUMENTS, all of which are component parts of the Agreement as if herein set out in full or attached hereto:
Notice Inviting Bids List of Subcontractors
Scope of Work Bid Bond
Instructions to Bidders Bidder’s General Information
Bid Form Contract
Non-Collusion Declaration Workers’ Compensation Certificate Site Visit Certification Drug/Alcohol Testing Requirements Faithful Performance Bond Construction Plans
Labor and Materials Payment Bond Addenda
General Conditions Drawings
Supplementary General Conditions Change Orders
Corporate Certification or Partnership Shop Drawings Transmittals -Information Contractor’s Certificate Regarding Non
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Project Construction Schedule -Asbestos Containing Materials Project FF&E Specifications Public Contract Code Section 9204 Project Specifications Public Contract Code Section 22300 Contractor’s Certification of Qualification
-For License Classification
All of the above named CONTRACT DOCUMENTS are intended to be complementary.
Work required by one of the above named CONTRACT DOCUMENTS and not by others shall be done as if required by all.
XXI. ENTIRE CONTRACT
This Agreement constitutes the entire contract of the parties. No other agreements or contracts, whether oral or written, pertaining to the work to be performed, exist between the parties. This Agreement can be modified only by an amendment in writing, signed by both parties.
CONTRACTOR CITY
[Name of Contractor] City of El Centro
By: ____________________________ By: ____________________________ Title: __________________________ Title: __________________________ Date: __________________________ Date: __________________________ ATTACHMENTS:
1. Faithful Performance Bond
2. Labor and Materials Bond
3. Public Contract Code Section 22300
4. Public Contract Code Section 9204
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PERFORMANCE BOND
Whereas, The City Council of the City of El Centro, State of California, and _________________________________ (hereinafter designated as “principal”) have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated __________, 20__, and identified as project _____________________________________________________________________________, is hereby referred to and made a part hereof; and
Whereas, Said principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement.
Now, therefore, we, the principal and _____________________________________, as surety, are held and firmly bound unto the City of El Centro (hereinafter designated as “El Centro”) in the penal sum of ______________________________________________________________ dollars ($__________) lawful money of the United States, 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 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 agreement 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 El Centro, 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 El Centro 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 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 Agreement or to the work or to the specifications.
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In Witness Whereof, this instrument has been duly executed by the principal and surety above named, on ______________________, 20__.
(SEAL) (SEAL)
(CONTRACTOR) (Surety)
By: By:
(Signature) (Signature)
- END OF PERFORMANCE BOND –
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PAYMENT BOND
PAYMENT BOND
Whereas, the City Council of the City of El Centro, State of California, and ________________________ (hereinafter designated as ''the Principal") have entered into an Agreement dated _________________ and described as
________________________________________________________________ _______________________________________________________________ whereby the Principal agrees to install and complete certain designated public improvements identified as _________________________which are part of City project ________________________________________________, and which Agreement is hereby referred to and made a part hereof; and
Whereas, under the terms of the Agreement, the Principal is required before entering upon the performance of the work to file a good and sufficient payment bond with the City of El Centro to secure the claims referenced in Civil Code Sections 9550 et seq.; and Now, therefore, the Principal and the undersigned as corporate surety, are held firmly bound unto the City of El Centro and all contractors, subcontractors, laborers, materialmen, and other persons employed in the performance of the Agreement and referenced in Sections 9550 et seq of the Civil Code in the sum of
_________________________________________dollars ($________________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to this work or labor, that the surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City of El Centro in successfully enforcing this obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 9550 et seq of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The surety hereby stipulates and agrees that no change, extension of time, alteration. or addition to the terms of the Agreement or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration, or addition.
In witness whereof, this instrument has been duly executed by
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the principal and surety above named, on___________, 20 _______________________________ __________________
_______
(CONTRACTOR) (Surety)
By:
___________________________ By:_______________________________ (Signature) (Signature)
-END OF PAYMENT BONDPage 486 of 794
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Public Contract Code Section 22300
(a) For purposes of this section, “contractor” includes, but is not limited to, a contractor performing a public works contract, as defined in Section 1101, and any person or entity that would qualify as a contractor under Section 6106.5.
(b) Provisions shall be included in any invitation for bid and in any contract documents to permit the substitution of securities for any moneys withheld by a public agency to ensure performance under a contract; however, substitution of securities provisions shall not be required in contracts in which there will be financing provided by the Farmers Home Administration of the United States Department of Agriculture pursuant to the Consolidated Farm and Rural Development Act (7 U.S.C. Sec. 1921 et seq.), and where federal regulations or policies, or both, do not allow the substitution of securities. At the request and expense of the contractor, securities equivalent to the amount withheld shall be deposited with the public agency, or with a state or federally chartered bank in this state as the escrow agent, who shall then pay those moneys to the contractor. Upon satisfactory completion of the contract, the securities shall be returned to the contractor.
(c) Alternatively, the contractor may request and the owner shall make payment of retentions earned directly to the escrow agent at the expense of the contractor. At the expense of the contractor, the contractor may direct the investment of the payments into securities and the contractor shall receive the interest earned on the investments upon the same terms provided for in this section for securities deposited by the contractor. Upon satisfactory completion of the contract, the contractor shall receive from the escrow agent all securities, interest, and payments received by the escrow agent from the owner, pursuant to the terms of this section. (d) Securities eligible for investment under this section shall include those listed in Section 16430 of the Government Code, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by the contractor and the public agency.
The contractor shall be the beneficial owner of any securities substituted for moneys withheld and shall receive any interest thereon.
Failure to include these provisions in bid and contract documents shall void any provisions for performance retentions in a public agency contract.
For purposes of this section, the term “public agency” shall include, but shall not be limited to, chartered cities.
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(e) (1) Any contractor who elects to receive interest on moneys withheld in retention by a public agency shall, at the request of any subcontractor, make that option available to the subcontractor regarding any moneys withheld in retention by the contractor from the subcontractor. If the contractor elects to receive interest on any moneys withheld in retention by a public agency, then the subcontractor shall receive the identical rate of interest received by the contractor on any retention moneys withheld from the subcontractor by the contractor, less any actual pro rata costs associated with administering and calculating that interest. In the event that the interest rate is a fluctuating rate, the rate for the subcontractor shall be determined by calculating the interest rate paid during the time that retentions were withheld from the subcontractor. If the contractor elects to substitute securities in lieu of retention, then, by mutual consent of the contractor and subcontractor, the subcontractor may substitute securities in exchange for the release of moneys held in retention by the contractor.
(2) This subdivision shall apply only to those subcontractors performing more than five percent of the contractor’s total bid.
(3) No contractor shall require any subcontractor to waive any provision of this section. (f) The Legislature hereby declares that the provisions of this section are of statewide concern and are necessary to encourage full participation by contractors and subcontractors in public contract procedures.
(g) The escrow agreement used hereunder shall be null, void, and unenforceable unless it is substantially similar to the following form:
ESCROW AGREEMENT FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
This Escrow Agreement is made and entered into by and between whose address is
hereinafter called “Owner,”
whose address is
hereinafter called “Contractor” and
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whose address is
hereinafter called “Escrow Agent.”
For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows:
(1) Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for ____ in the amount of ____ dated ____ (hereinafter referred to as the “Contract”). Alternatively, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of ____, and shall designate the Contractor as the beneficial owner. (2) The Owner shall make progress payments to the Contractor for those funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. (3) When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly.
(4) Contractor shall be responsible for paying all fees for the expenses incurred by Escrow Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be determined by the Owner, Contractor, and Escrow Agent. (5) The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner.
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(6) Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor.
(7) The Owner shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven days’ written notice to the Escrow Agent from the owner of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the Owner.
(8) Upon receipt of written notification from the Owner certifying that the Contract is final and complete, and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges.
(9) Escrow Agent shall rely on the written notifications from the Owner and the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement and the Owner and Contractor shall hold Escrow Agent harmless from Escrow Agent’s release and disbursement of the securities and interest as set forth above.
(10) The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows:
On behalf of Owner: On behalf of Contractor:
Title Title
Name Name
Signature Signature
Address Address
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On behalf of Escrow Agent:
Title
Name
Signature
Address
At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above.
Owner Contractor
Title Title
Name Name
Signature Signature
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Public Contract Code Section 9204
(a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner. (b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project. (c) For purposes of this section:
(1) "Claim" means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity. (2) "Contractor" means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project. (3) (A) "Public entity" means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, CITY, special CITY, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
(B) "Public entity" shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that
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department.
(ii) The Department of Transportation as to any project under the jurisdiction of that department.
(iii) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code.
(iv) The Military Department as to any project under the jurisdiction of that department.
(v) The Department of General Services as to all other projects. (vi) The High-Speed Rail Authority.
(4) "Public works project" means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind.
(5) "Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor. (d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45- day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply. (B) (A) If the claimant disputes the public entity's written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for
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settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section.
(C) 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.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties' dispute. (2) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity's failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant.
(3) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum.
(4) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier
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subcontractor. A subcontractor may request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section. (g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.
- END OF CONTRACT DOCUMENTS -
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GENERAL CONDITIONS
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GENERAL CONDITIONS
ARTICLE 1 -- DEFINITIONS
Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof.
Where an entire word is capitalized in the definitions and is found un-capitalized in the Contract Documents it has the ordinary dictionary definition.
Addenda - Written or graphic instruments issued prior to the opening of Bids which make additions, deletions or revisions to the Contract Documents.
Agent - CONSTRUCTION MANAGER is the Agent of OWNER.
Agreement - The written contract between OWNER and CONTRACTOR covering the WORK to be performed; other documents are attached to the Agreement and made a part thereof as provided therein.
Allowance - A Bid item that adds a specified quantity of WORK to the Agreement work scope which OWNER may unilaterally direct CONTRACTOR to perform, or elect not to have performed.
Application for Payment - The form furnished by CONSTRUCTION MANAGER which is to be used by CONTRACTOR to request progress or Final Payment and which is to be accompanied by such supporting documentation as is required by the Contract Documents.
Asbestos - Any material that contains more than one (1) percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration (“OSHA”).
Beneficial Occupancy - Use by OWNER of the WORK prior to final acceptance.
Bidder - Any individual, firm, partnership, corporation or combination thereof, submitting a Bid for the WORK, acting directly or through a duly authorized representative.
Bid - The offer or proposal of the Bidder submitted on the prescribed form setting forth the price or prices for the WORK.
Bidding Documents - The advertisement or Invitation to Bid, Instructions to Bidders, the Bid form, and the proposed Contract Documents (including all Addenda issued prior to receipt of Bids).
Bonds - Bid, Performance and Payment Bonds and other instruments which protect against loss due to inability or refusal of CONTRACTOR to perform its contract.
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Change Order - A document recommended by CONSTRUCTION MANAGER which is signed by CONTRACTOR and OWNER and authorizes an addition, deletion or revision in the WORK, or an adjustment in the Contract Price or the Contract Time, issued on or after the Effective Date of the Agreement.
CITY - OWNER (See OWNER’s definition in this section).
City of El Centro - OWNER (See OWNER’s definition in this section).
Claim - A dispute becomes a Claim only after CONTRACTOR receives and refuses to accept CONSTRUCTION MANAGER’s initial determination, and is certified as required by Article
16.3. Codes - The terms Government Code, Labor Code, etc. refer to codes of the State of California.
CONSTRUCTION MANAGER - The individual, partnership, corporation, joint venture or other legal entity named as such by written notice from OWNER.
Construction Manager Order - A written order issued by CONSTRUCTION MANAGER which clarifies or interprets the Procurement Documents or orders minor changes or alterations in the scope of WORK to be furnished but which does not involve a change in the Contract Price or the Contract Time.
Contract Documents - The Notice Inviting Bids, Instructions to Bidders, Bid forms (including the Bid, Bid schedule(s), information required of Bidder, Bid bond, and all required certificates and affidavits), Agreement, Performance Bond, Payment Bond, General Conditions, Supplementary General Conditions, SPECIAL PROVISIONS, Drawings and all Addenda, and Change Orders executed pursuant to the provisions of the Contract Documents.
Contract Milestone - A principal event specified in the Contract Documents relating to an intermediate completion date of a portion of the WORK, or a period of time within which the portion of the WORK should be performed prior to Substantial Completion of all the WORK.
Contract Price - The total monies payable by OWNER to CONTRACTOR under the terms and conditions of the Contract Documents.
Contract Time - The number of successive calendar Days stated in the Contract Documents for the completion of the WORK.
CONTRACTOR - The individual, partnership, corporation, joint venture or other legal entity with whom OWNER has executed the Agreement.
Day - A calendar day of twenty-four (24) hours measured from midnight to the next midnight.
WORKING DAY MEANS -
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Defective Work - Work that is unsatisfactory, faulty or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents; or work that has been damaged by anyone other than OWNER prior to CONSTRUCTION MANAGER’s recommendation of final payment.
DESIGN CONSULTANT - The individual, partnership, corporation, joint venture or other legal entity named as such in the Contract Documents or succeeding entity. In the lack thereof, DESIGN CONSULTANT shall have the same meaning as OWNER.
Demobilization - The complete dismantling and removal by CONTRACTOR of all of CONTRACTOR’s temporary facilities, equipment and personnel at the site.
Drawings - The drawings, plans, maps, profiles, diagrams and other graphic representations which indicate the character, location, nature, extent and scope of the WORK and which have been prepared by DESIGN CONSULTANT and are referred to in the Contract Documents. Shop Drawings are not Drawings as so defined.
Disputed Work - A dispute exists from the time CONTRACTOR disagrees with a decision or determination made by CONSTRUCTION MANAGER until CONSTRUCTION MANAGER renders an initial determination. If the issue is unresolved, it becomes a Claim.
Effective Date of the Agreement - The date indicated in the Agreement on which it becomes effective, but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver.
Engineer - Wherever the word Engineer is found in these Contract Documents or in any referenced document, it shall mean CONSTRUCTION MANAGER.
Field Order - A written order issued by OWNER which changes the Agreement WORK scope and involves a change in the Contract Price or Contract Time or the intent of the Agreement.
Final Payment - is defined as the last progress payment made to CONTRACTOR for earned funds, less retainage as applicable, less deductions listed in Article 14. CONTRACTOR is entitled to this payment when the Notice of Completion is issued.
General Conditions - Section General Conditions of the Contract Specification.
Hazardous Waste - The term Hazardous Waste shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time or, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a class I, class II or class III disposal site in accordance with provisions of existing law, whichever is more restrictive.
Holidays - Legal Holidays observed by OWNER occur on:
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New Year’s Day - January 1
Martin Luther King’s Birthday - Third (3rd) Monday in January President’s Day - Third (3rd) Monday in February
Good Friday – The afternoon of the Friday before Easter Memorial Day - Last Monday in May
Juneteenth – June 19
Independence Day - July 4
Labor Day - First (1st) Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth (4th) Thursday in November
The Day after Thanksgiving – The Friday after the fourth (4th) Thursday in November Christmas Eve – The afternoon of December 24
Christmas Day - December 25
New Year’s Eve – The afternoon of December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both legal Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both legal Holidays.
Interfacing Work - Work which connects to, abuts or meets with work of another contractor.
Laws and Regulations - Any and all applicable laws, rules, regulations, ordinances, codes and/or orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction.
Lump Sum Work - Work to be paid on the basis of lump sum prices.
Mechanic’s Lien - A form of security, an interest in real property, which is held to secure the payment of an obligation. When referred to in these Contract Documents, Mechanic’s Lien or lien means Stop Notice.
Milestone - See Contract Milestone.
Mobilization - The establishment by CONTRACTOR of the temporary facilities, equipment and personnel at the site thereby enabling the WORK to commence.
Notice of Award - The written notice by OWNER to the apparent low Bidder stating that upon compliance by the apparent low Bidder with the conditions precedent enumerated therein within the time specified, OWNER will enter into an Agreement.
Notice of Completion - A form signed by DESIGN CONSULTANT, CONSTRUCTION MANAGER and CONTRACTOR recommending to OWNER that the WORK is complete and fixing the date of completion. After acceptance of the WORK by OWNER’s governing body, the form is signed by OWNER and filed with the County Recorder. This filing starts the thirty (30) Day lien filing period on the WORK.
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Notice to Proceed - The written notice issued by OWNER to CONTRACTOR authorizing CONTRACTOR to proceed with the WORK and establishing the date of commencement of the Contract Time.
OWNER’s Agent - CONSTRUCTION MANAGER is OWNER’s Agent.
OWNER - The City of El Centro, acting through its legally designated officials, officers or employees.
Partial Utilization - Use by OWNER of a substantially completed part of the WORK for the purpose for which it is intended prior to Substantial Completion of all the WORK. (See Beneficial Occupancy)
PCBs - Polychlorinated biphenyls.
Petroleum - Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (sixty (60) degrees Fahrenheit and fourteen and seventenths (14.7) pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene and oil mixed with other non-Hazardous Wastes and crude oils.
Project - The total construction of which the WORK to be provided under the Contract Documents may be the whole, or a part as indicated elsewhere in the Contract Documents.
Radioactive Material - Source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Sections 2011 et seq.) as amended from time to time.
Request for Information - The standardized form furnished by OWNER for CONTRACTOR’s use when making written requests for information to CONSTRUCTION MANAGER, and upon which the response will be answered and returned.
Request for Proposal - The standardized form used by CONSTRUCTION MANAGER to request a proposal from CONTRACTOR for proposed changes in the WORK.
Samples - Physical examples of materials, equipment or workmanship that are representative of some portion of the WORK and which establish the standards by which such portion of the WORK will be judged.
Safety - Safety includes health and security.
Shop Drawings - All drawings, diagrams, illustrations, schedules and other data which are specifically prepared by or for CONTRACTOR and submitted by CONTRACTOR to illustrate some portion of WORK and all illustrations, brochures, standard schedules, performance charts, instructions and diagrams to illustrate material or equipment for some portion of the WORK.
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Specifications – The directions, provisions and requirements contained in the Bidding Documents, contract forms, conditions of the Agreement and the SPECIAL PROVISIONS, as listed in the Table of Contents.
Stop Notice - A legal remedy for Subcontractors and Suppliers who contribute to public works, but who are not paid for their work, which secures payment from construction funds possessed by OWNER. For public property, the Stop Notice remedy is designed to substitute for Mechanic’s Lien rights.
Submittals - The information which is specified for submission to CONSTRUCTION MANAGER in accordance with Article 6.20 of the General Conditions.
Sub-Consultant - The individual, partnership, corporation, joint venture or other legal entity having a direct contract with DESIGN CONSULTANT, CONSTRUCTION MANAGER or with any of their consultants to furnish services with respect to the Project and who is identified as such in the Supplementary General Conditions.
Subcontractor - An individual, partnership, corporation, joint venture or other legal entity having a direct contract with CONTRACTOR or with any other Subcontractor for the performance of a part of the WORK at the site.
Substantial Completion - Refers to when the WORK has progressed to the point where, in the opinion of CONSTRUCTION MANAGER as evidenced by Notice of Completion as applicable, it is sufficiently complete, in accordance with the Contract Documents, so that the WORK can be utilized for the purposes for which it is intended, and after the operation demonstration is complete, where applicable.
SPECIAL PROVISIONS – That section of the Contract Documents consisting of written technical descriptions of products and execution of the WORK.
Supplementary General Conditions- The part of the Contract Documents which make additions, deletions or revisions to these General Conditions.
Supplier - A manufacturer, fabricator, supplier, distributor, material worker or vendor.
Underground Utilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasement containing such facilities which have been installed underground to furnish any of the following services or materials: electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, sewage and drainage removal, traffic or other control systems or water.
Unit Price Work - Specific WORK scope included in the Agreement WORK scope to be paid for on the basis of unit prices. OWNER may unilaterally direct CONTRACTOR to perform the WORK, or elect not to have the WORK performed.
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WORK - The entire completed construction or the various separately identifiable parts thereof required to be furnished under the Contract Documents. WORK is the result of performing or furnishing labor and furnishing and incorporating materials and equipment into the construction, and performing or furnishing services and furnishing documents, all as required by the Contract Documents.
Work Change Directive - A written directive to CONTRACTOR, issued on or after the Effective Date of the Agreement and recommended by CONSTRUCTION MANAGER, and signed by OWNER ordering an addition, deletion or revision in the WORK, or responding to differing or unforeseen physical conditions under which the WORK is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Time, but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Time.
ARTICLE 2 -- PRELIMINARY MATTERS
2.1 DELIVERY OF BONDS/INSURANCE CERTIFICATES - When CONTRACTOR delivers the signed Agreements to OWNER, CONTRACTOR shall also deliver to OWNER such Bonds and Insurance Policies and Certificates as CONTRACTOR may be required to furnish in accordance with the Contract Documents.
2.2 COPIES OF DOCUMENTS - OWNER shall furnish to CONTRACTOR ten (10) copies of the Contract Documents as specified in the Agreement and ten (10) sets of full-scale Drawings.
Additional quantities of the Contract Documents will be furnished at reproduction cost.
2.3 COMMENCEMENT OF CONTRACT TIME; NOTICE TO PROCEED - The Contract Time will start to run on the commencement date stated in the Notice to Proceed.
2.4 STARTING THE WORK - CONTRACTOR shall begin to perform the WORK within ten (10) Days after the commencement date stated in the Notice to Proceed, but no work shall be done at the site prior to said commencement date. In addition, any requirements in the Supplemental General Conditions must be satisfied.
2.5 CONTRACTOR MUST STUDY CONTRACT DOCUMENTS - Before undertaking each part of the WORK, CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements.
CONTRACTOR shall promptly report in writing to CONSTRUCTION MANAGER any conflict, error or discrepancy which CONTRACTOR may discover and shall obtain a written interpretation or clarification from CONSTRUCTION MANAGER before proceeding with any work affected thereby.
2.6 PRELIMINARY SUBMITTALS - Preliminary submittals shall be provided to CONSTRUCTION MANAGER in accordance with Division 1 requirements.
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2.7 PRECONSTRUCTION CONFERENCE - CONTRACTOR is required to attend a preconstruction conference. This conference will be attended by CONSTRUCTION MANAGER and others as appropriate in order to discuss the WORK in accordance with the applicable procedures specified in the General Requirements.
CONTRACTOR is required to schedule and attend a preconstruction conference with the Imperial Irrigation District (“IID”) prior to the construction or demolition of any electrical improvements.
2.8 SUBCONTRACTOR MOBILIZATION MEETING - Prior to the start of each major Subcontractor’s site work, CONTRACTOR, the involved Subcontractor and CONSTRUCTION MANAGER shall attend a pre-start meeting to discuss the schedule, coordination, procedures and other administrative issues.
2.9 CONTRACTOR DUTY TO ADVISE OWNER OF KNOWN OR DISCOVERED PROBLEMS - CONTRACTOR is reminded of his obligation to advise OWNER of any errors and/or omissions in the Contract Documents, or changes to thereof, which CONTRACTOR may be aware through special knowledge or discovered during the Bid process.
ARTICLE 3 -- CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.1 INTENT - The Contract Documents comprise the entire agreement between OWNER and CONTRACTOR concerning the WORK. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the law of the place of the WORK.
3.2 INTENT OF WORK TO BE FUNCTIONALLY COMPLETE
3.2.1 Work to be Complete - It is the intent of the Contract Documents to describe the WORK to be constructed in accordance with the Contract Documents. Any work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result shall be supplied whether or not specifically called for or identified in the Contract Documents. When words or phrases which have a wellknown technical or construction industry or trade meaning are used to describe work, materials or equipment, such words or phrases shall be interpreted in accordance with that meaning unless a definition has been provided in Article 1 of the General Conditions.
3.2.2 Necessary Utilities - If utilities to equipment/fixtures are not shown but are necessary to operate the equipment/fixtures, the utilities service installation is considered to be part of the WORK. The implied WORK will conform to the appropriate sections of the technical Specifications.
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3.3 CLARIFICATIONS AND INTERPRETATIONS OF THE CONTRACT DOCUMENTS
3.3.1 Referenced Standards - Reference to standard specifications, manuals or Codes of any technical society, organization or association or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of opening of Bids, except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual or code shall be effective to change the duties and responsibilities of OWNER, CONTRACTOR or CONSTRUCTION MANAGER or any of their consultants, agents or employees from those set forth in the Contract Documents.
3.3.2 Discovery of Problem Notice - If, during the performance of the WORK, CONTRACTOR discovers any conflict, error, ambiguity or discrepancy with the WORK within the Contract Documents or between the Contract Documents and any provision of any such Laws and Regulations applicable to the performance of the WORK or of any such standard, specification, manual or code or of any instruction of any Supplier, CONTRACTOR shall report it to CONSTRUCTION MANAGER in writing within seven (7) calendar Days of discovery.
CONTRACTOR shall not proceed with the WORK affected thereby, except in an emergency, unless directed by CONSTRUCTION MANAGER. Any WORK performed by CONTRACTOR that is not directed by CONSTRUCTION MANAGER shall be at its own risk.
3.3.3 Order of Precedence of Contract Documents - In resolving conflicts resulting from errors or discrepancies in any of the Contract Documents, the order of precedence shall be as follows:
3.3.3.1 Permits from other agencies as may be required by law.
3.3.3.2 Change Orders
3.3.3.3 Agreement
3.3.3.4 Addenda
3.3.3.5 CONTRACTOR’s Bid (Bid Form)
3.3.3.6 Notice Inviting Bids
3.3.3.7 Instructions to Bidders
3.3.3.8 Supplementary General Conditions
3.3.3.9 General Conditions
3.3.3.10 SPECIAL PROVISIONS
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3.3.3.11 Drawings
3.3.3.12 Referenced Standard Specifications
3.3.4 Order of Precedence of the Drawings - With reference to the Drawings the order of precedence is as follows:
3.3.4.1 Figures govern over scaled dimensions
3.3.4.2 Detail drawings govern over general drawings
3.3.4.3 Addenda/Change Order drawings govern over Contract Drawings
3.3.4.4 Contract Drawings govern over standard drawings
3.4 AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS
3.4.1 Amending Contract Documents - The Contract Documents may be amended to provide for additions, deletions and revisions in the WORK or to modify the terms and conditions thereof by a Change Order pursuant to Article 10.
3.4.2 Supplementing Contract Documents - The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the WORK may be authorized, by:
3.4.2.1 - A Construction Manager Order issued by CONSTRUCTION MANAGER.
3.4.2.2 - DESIGN CONSULTANT’s approval of a Shop Drawing or Sample pursuant to Article 6
3.4.2.3 - DESIGN CONSULTANT’s written interpretation or clarification
3.5 REUSE OF DOCUMENTS - Neither CONTRACTOR, nor any Subcontractor or Supplier, nor any other person or organization performing any of the WORK under a contract with OWNER shall have or acquire any title to or ownership rights in any of the Drawings, technical Specifications or other documents used on the WORK, and they shall not reuse any of them on the extensions of the Project or any other project without written consent of OWNER.
ARTICLE 4 -- AVAILABILITY OF LANDS; PHYSICAL CONDITIONS; REFERENCE POINTS
4.1 AVAILABILITY OF LANDS - OWNER shall furnish, as indicated in the Contract Documents, the lands upon which the WORK is to be performed, rights-of-way and easements for access thereto, and such other lands which are designated for the use of CONTRACTOR.
Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by OWNER, unless otherwise provided in the Contract Documents. Nothing
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contained in the Contract Documents shall be interpreted as giving CONTRACTOR exclusive occupancy of the lands or rights-of-way provided. CONTRACTOR shall provide, at no additional cost, for all additional lands and access thereto that may be required for temporary construction facilities, borrow areas, waste disposal areas or storage of materials and equipment; provided that CONTRACTOR shall not enter upon nor use any property not under the control of OWNER until a written temporary construction easement agreement has been executed by CONTRACTOR and the property owner, and a copy of said easement furnished to CONSTRUCTION MANAGER prior to said use; and, neither OWNER nor CONSTRUCTION MANAGER shall be liable for any claims or damages resulting from CONTRACTOR’s unauthorized trespass or authorized use of any such properties.
4.2 PHYSICAL SITE CONDITIONS
4.2.1 Reports and Drawings - Reference is made to the Supplementary General Conditions for identification of:
4.2.1.1 Subsurface Condition Reports - Those reports of explorations and tests of subsurface conditions at or contiguous to the site that have been utilized by DESIGN CONSULTANT in preparing the Contract Documents; and
4.2.1.2 Drawings of Existing Structures - Reference is made to the Supplementary General Conditions for identification of those drawings of physical conditions in or relating to existing surface and subsurface structures (except Underground Utilities referred to in section 4.4 of Article 4 herein) which are at or contiguous to the site that have been utilized in the preparation of the Contract Documents.
4.2.2 Limited Reliance By CONTRACTOR On The Technical Data - CONTRACTOR may rely upon the accuracy of the technical data contained in such drawings or reports, however, nontechnical data, interpretations and opinions contained in such drawings or reports are not to be relied on by CONTRACTOR. CONTRACTOR may not rely upon or make any claims against OWNER, DESIGN CONSULTANT or CONSTRUCTION MANAGER with respect to:
4.2.2.1 the completeness of such reports and drawings for CONTRACTOR’s purposes, including, but not limited to, any aspect of the means, methods, techniques, sequences and procedures of construction to be employed by CONTRACTOR and Safety precautions and programs incident thereto, or
4.2.2.2 other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings, or
4.2.2.3 any CONTRACTOR interpretation of or conclusion drawn from any technical data or any such data, interpretations, opinions or information.
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4.3 DIFFERING SITE CONDITIONS - If CONTRACTOR believes that any subsurface or physical condition at or contiguous to the site that is uncovered or revealed either:
4.3.1 is of such a nature as to establish that any technical data on which CONTRACTOR is entitled to rely as provided in paragraphs 4.2.1 is materially inaccurate, or
4.3.2 is of such a nature as to require a change in the Contract Documents, or
4.3.3 differs materially from that shown or indicated in the Contract Documents, or
4.3.4 is of an unusual nature and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents, CONTRACTOR shall immediately report it to CONSTRUCTION MANAGER then CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing conditions thereby or performing any work in connection therewith (except in an emergency as permitted by paragraph 6.23), notify OWNER and CONSTRUCTION MANAGER in writing about such condition. CONTRACTOR shall not further disturb such conditions or perform any work in connection therewith (except as aforesaid) until receipt of written order to do so.
4.3.5 OWNER Responsibility - OWNER shall promptly investigate the conditions, and if it finds that the conditions do materially so differ and cause a decrease or increase in CONTRACTOR’s cost of, or the time required for, performance of any part of the WORK, OWNER shall issue a Change Order under the procedures described in Article 10. If OWNER determines that there is no bona fide work scope change or is a minor change which does not impact time or cost, OWNER shall notify CONTRACTOR of this finding within thirty (30) Days.
4.3.6 Disputed Work – If CONTRACTOR and OWNER are unable to reach agreement on Disputed Work, OWNER may direct CONTRACTOR to proceed with the WORK. Payment shall be as later directed by mediation or arbitration, if OWNER and CONTRACTOR agree thereto, or as fixed in a court of law.
Although not to be construed as proceeding under extra work provisions, CONTRACTOR shall keep and furnish records of Disputed Work in accordance with 11.3.
4.3.7 Disallowance of Entitlement - CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Contract Time or will be deemed to have waived his right to such a claim if:
4.3.7.1 CONTRACTOR knew of the existence of such conditions at the time CONTRACTOR made a final commitment to OWNER in respect of Contract Price and Contract Time by the submission of a Bid or becoming bound under the Agreement; or
4.3.7.2 the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation of the site and contiguous areas suggested or required by the Bidding Documents: or
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4.3.7.3 CONTRACTOR failed to give the written notice within the time and as required by Article
3.3.2. 4.4 UNDERGROUND UTILITIES
4.4.1 Utilities Indicated - The information and data indicated in the Contract Documents with respect to existing Underground Utilities at or contiguous to the site are based on information and data furnished to OWNER or CONSTRUCTION MANAGER by the owners of such Underground Utilities or by others. Unless it is expressly provided in the Supplementary General Conditions and/or the General Conditions, OWNER and CONSTRUCTION MANAGER shall not be responsible for the accuracy or completeness of any such information or data, and CONTRACTOR shall have full responsibility for reviewing and checking all such information and data, for locating all Underground Utilities indicated in the Contract Documents, for coordination of the WORK with the owners of such Underground Utilities during construction, for the Safety and protection thereof and repairing any damage thereto resulting from the WORK, the cost of which will be considered as having been included in the Contract Price.
4.4.2 Utilities Not Indicated - If Underground Utilities are uncovered or revealed at or contiguous to the site which was not indicated in the Contract Documents and which CONTRACTOR could not reasonably have been expected to be aware of, CONTRACTOR shall identify the owner of such Underground Utilities and give written notice thereof to that owner and shall notify CONSTRUCTION MANAGER in accordance with the requirements of the General Conditions and General Requirements.
4.4.3 Action Prior To Starting Work - As provided in section 4216 of the California Government Code, at least two (2) working Days prior to commencing any excavation, CONTRACTOR shall contact the regional notification center (Underground Service Alert of Southern California) and obtain an inquiry identification number.
4.4.4 Locate Utilities - CONTRACTOR shall determine the location and depth of all utilities, including service connections, which have been marked by the respective owners and which may affect or be affected by its operations. Full compensation for such work shall be considered as included in CONTRACTOR’s Bid price.
4.4.5 Protection Of Utilities - CONTRACTOR shall not interrupt the service function or disturb the support of any utility, without authority from OWNER or order from the utility owner. All valves, switches, vaults and meters shall be maintained readily accessible for emergency shutoff.
Where protection is required to ensure support of utilities located as shown on the Plans, CONTRACTOR shall, unless otherwise provided, furnish and place the necessary protection at its expense.
4.4.6 Notification Requirements If Utility Disturbed - CONTRACTOR shall immediately notify CONSTRUCTION MANAGER and utility owner if any utility is disturbed or damaged.
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CONTRACTOR shall bear the costs of repair or replacement of any utility damaged by CONTRACTOR.
4.4.7 Removal Of Abandoned Utilities - Unless otherwise specified, CONTRACTOR shall remove all interfering portions of utilities shown on the Plans or indicated in the Bidding Documents as abandoned. Before starting removal operations, CONTRACTOR shall ascertain from the Utility Owner whether the abandonment is complete. The costs involved in the removal and disposal shall be included in the price for the item of work necessitating such removals.
4.4.8 Relocation Of Utilities
4.4.8.1 When the Plans or Specifications provide for CONTRACTOR to alter, relocate or reconstruct a utility, all costs for such work shall be included in the Bid.
4.4.8.2 Temporary or permanent relocation or alteration of indicated utilities requested by CONTRACTOR for its convenience shall be its responsibility, and CONTRACTOR shall make all arrangements and bear all costs.
4.4.8.3 After award of the Agreement, portions of utilities not indicated in the Contract Documents which are found to interfere with the WORK may be relocated, altered or reconstructed by the utility owner, or CONSTRUCTION MANAGER may order changes in the WORK to avoid interference. Such changes will be paid for in accordance with Article 10.
4.4.9 Delays
4.4.9.1 CONTRACTOR shall immediately notify in writing the utility owner and CONSTRUCTION MANAGER of its construction schedule and any subsequent changes in the construction schedule which will affect the time available for protection, removal or relocation of utilities.
4.4.9.2 CONTRACTOR will not be entitled to damages or additional payment for delays attributable to utility relocations or alterations if correctly located, as noted in the Contract Documents.
4.4.9.3 CONTRACTOR may be given a no cost extension of time for unforeseen delays attributable to unreasonably protracted interferences by others in the relocation of utilities.
4.4.10 Access to the WORK - When necessary, CONTRACTOR shall so conduct its operations as to permit access to the WORK site and provide time for utility work to be accomplished during normal work hours during the progress of the WORK.
4.5 REFERENCE POINTS
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4.5.1 Bench Mark - The CONSTRUCTION MANAGER will provide one (1) benchmark, near or on the site of the WORK, and will provide two (2) points near or on the site to establish a base line for use by CONTRACTOR for alignment control. Unless otherwise specified in the General Requirements, CONTRACTOR shall furnish all other lines, grades and benchmarks required for proper execution of the WORK.
4.5.2 Protection of Bench Marks - CONTRACTOR shall preserve all bench marks, stakes and other survey marks, and in case of their removal or destruction by any party, CONTRACTOR shall be responsible for the accurate replacement of such reference points by personnel qualified under Division 3, Chapter 15 of the California Business and Professions Code. CONTRACTOR shall report to CONSTRUCTION MANAGER whenever a reference point is lost, destroyed or requires relocation.
4.6 ASBESTOS, PCBS, PETROLEUM, HAZARDOUS WASTE OR RADIOACTIVE
MATERIAL
4.6.1 OWNER Responsibility - OWNER shall be responsible for any hazardous material which includes hazardous substances and hazardous waste as defined by sections 25316 and 25117 of the Health and Safety Code, uncovered or revealed at the site which was not identified in the Contract Documents to be within the scope of the WORK. OWNER shall not be responsible for any such materials brought to the site by CONTRACTOR, Subcontractors, Suppliers or anyone else for whom CONTRACTOR is responsible.
4.6.2 CONTRACTOR’s Responsibility - When such hazardous material is encountered, CONTRACTOR shall immediately stop all work in connection with such hazardous condition in any area affected thereby (except in an emergency as required by Article 6) and notify OWNER and CONSTRUCTION MANAGER in writing. OWNER shall promptly evaluate such hazardous condition and take corrective action. CONTRACTOR shall not be required to resume work in any such affected area until after OWNER has delivered to CONTRACTOR written notice specifying that such condition and any affected area has been rendered safe for the re-assumption of work, or specifying any special conditions under which such work may be resumed safely.
4.6.3 Dispute - If, after receipt of such special written notice, CONTRACTOR does not agree to resume work based on a reasonable belief it is unsafe, or does not agree to resume work under such special conditions, then OWNER may order such portion of the work that is in connection with such hazardous condition or in such affected area to be deleted from the WORK. OWNER may have such deleted portion of the work performed by OWNER’s own forces or others in accordance with Article 7. If OWNER and CONTRACTOR cannot agree as to entitlement to or the amount or extent of an adjustment, if any, in Contract Price or Contract Time as a result of work stoppage or of deleting such portion of the WORK, then either party may make a Claim as provided in Article 16.
4.6.4 NOT USED
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ARTICLE 5 -- BONDS AND INSURANCE
5.1 PERFORMANCE, PAYMENT AND OTHER BONDS
5.1.1 Bond Requirement - CONTRACTOR shall furnish Performance and Payment Bonds, each in the amount set forth in the Supplementary General Conditions as security for the faithful performance and payment of all CONTRACTOR’s obligations under the Contract Documents.
These Bonds shall remain in effect at least until one (1) year after the filing date of Notice of Completion, except as otherwise provided by law or regulation or by the Contract Documents.
CONTRACTOR shall also furnish such other Bonds as are required by the Supplementary General Conditions.
5.1.2 Licensed Surety - All Bonds shall be in the form prescribed by the Contract Documents and by such sureties which are admitted insurers in the State of California and are subject to regulation by the Department of Insurance, and which also satisfy the requirements stated in section 995.660 of the Code of Civil Procedure, except as provided otherwise by Laws or Regulations. All Bonds signed by an agent must be accompanied by a certified copy of such agent’s authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue Bonds for the limits so required. Such surety companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary General Conditions.
5.1.3 Bankrupt or Insolvent Surety - If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the WORK is located, CONTRACTOR shall within seven (7) Days thereafter substitute another Bond and Surety, which must be acceptable to OWNER per paragraph 5.1.1 and
5.1.2 above.
5.2 NOT USED
ARTICLE 6 -- CONTRACTOR’S RESPONSIBILITIES
6.1. Responsibility Of CONTRACTOR To Perform - Unless otherwise specified in the Contract Documents, CONTRACTOR shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the WORK. Such support that may need to be provided after normal working hours will be provided by CONTRACTOR at its expense.
6.2 Labor, Materials and Equipment All materials and equipment to be incorporated into the WORK shall be of good quality and new, except as otherwise provided in the Contract Documents.
All warranties and guarantees specifically called for by the Specifications shall expressly run to
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the benefit of OWNER. If required by CONSTRUCTION MANAGER, CONTRACTOR shall furnish satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable Supplier except as otherwise provided in the Contract Documents; but no provisions of any such instructions will be effective to assign to CONSTRUCTION MANAGER, any duty or authority to supervise or direct the furnishing or performance of the WORK.
6.2.1 The completed work shall include all necessary permanent Safety devices, such as machinery guards, emergency stops and similar Safety items required by OSHA, Cal-OSHA and other Federal, State and local health and Safety regulations. In addition, all equipment, products, components and/or package systems shall be designed, fabricated and installed in compliance with Seismic Zone 4 structural criteria. Further, any features of the work (including OWNER-selected equipment) subject to such Safety regulations and structural criteria shall be fabricated, furnished and installed in compliance with Seismic Zone 4 structural criteria. CONTRACTOR shall include provisions of this Article in his agreements with Subcontractors, Suppliers and manufacturers of equipment and/or products.
In selecting and/or accepting equipment and/or products for installation in the WORK, OWNER, DESIGN CONSULTANT and CONSTRUCTION MANAGER assume no responsibility for the injury, property damage or any other damages or claims resulting from failure of the equipment, products, components and/or package systems to comply with applicable Safety Codes or requirements, or the Safety requirements of a recognized agency, or failure due to manufacturer’s faulty design concepts, or Defective Work and materials. CONTRACTOR shall defend, indemnify and hold OWNER, DESIGN CONSULTANT and CONSTRUCTION MANAGER harmless against any and all liability, claims, suits, damages, costs or expenses caused or claimed to be caused in whole or in part by the negligence or willful misconduct of the construction CONTRACTOR connected with the WORK. However, this indemnity will not extend to any loss, damage or expense caused by the established sole gross negligence or willful misconduct of OWNER or OWNER’s Agents, servants or independent contractors.
6.3 SUPERVISION, SUPERINTENDENCE AND QUALITY - CONTRACTOR shall supervise, inspect and direct the WORK competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the WORK in accordance with the Contract Documents. CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences and procedures of construction and Safety precautions and programs incidental thereto. CONTRACTOR shall be responsible to see that the completed WORK complies accurately with the Contract Documents. CONTRACTOR is solely responsible for the quality of the WORK.
6.4 SUPERINTENDENT
6.4.1 Written Designation of Superintendent - CONTRACTOR shall designate in writing and keep on the work site at all times during its progress a technically qualified, English-speaking
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superintendent and an alternate who are employees of CONTRACTOR and who shall not be replaced without written notice to OWNER and CONSTRUCTION MANAGER. The superintendent will be CONTRACTOR’s representative at the site and shall have authority to act on behalf of CONTRACTOR. All communications given to the superintendent shall be as binding as if given to CONTRACTOR. CONTRACTOR shall issue all its communications to OWNER and DESIGN CONSULTANT through CONSTRUCTION MANAGER.
6.4.2 Superintendent’s Presence at Site - CONTRACTOR’s superintendent or alternate shall be present at the site of the WORK at all times while work is in progress, and shall be available by phone for emergencies twenty-four (24) hours per Day, seven (7) Days per week. Failure to observe this requirement shall be considered suspension of the WORK by CONTRACTOR until such time as such the superintendent is again present at the site.
6.4.3 Removal of Superintendent - Upon written notice, OWNER may require replacement and removal from the WORK of CONTRACTOR’s superintendent with cause, in which case CONTRACTOR shall submit a replacement superintendent subject to approval by OWNER, at no increase in Contract Price or Contract Time. Repeated Safety violation on the job site will be sufficient grounds for directing such replacement.
6.5 LABOR - CONTRACTOR shall provide competent, suitably-qualified personnel to survey and lay out the WORK and perform construction as required by the Contract Documents. Any person employed who is found to be incompetent, intemperate, troublesome, disorderly or otherwise objectionable, or who fails or refuses to perform work properly, acceptably and safely, shall be immediately removed from the WORK by CONTRACTOR and not be reemployed on the WORK. CONTRACTOR shall furnish, erect, maintain and remove the construction plant and any temporary works as may be required. CONTRACTOR shall at all times maintain good discipline and order at the site and will not permit the use or consumption of drugs (illegal substances) or alcoholic beverages at the site.
6.5.1 No Additional Compensation for Overtime - Except as otherwise provided in this Article, CONTRACTOR shall receive no additional compensation for overtime work, (i.e., work in excess of eight (8) hours in any one (1) calendar Day or forty (40) hours in any one (1) calendar week) even though such overtime work may be required under emergency conditions and may be ordered by CONSTRUCTION MANAGER in writing. Additional compensation will be paid CONTRACTOR for overtime work only in the event extra work is ordered by CONSTRUCTION MANAGER, and the Change Order specifically authorizes the use of overtime work and then only to such extent as overtime wages are regularly being paid by CONTRACTOR for overtime work of a similar nature in the same locality.
6.5.2 Approval Required to Work Outside Normal Work Hours - Except in connection with the Safety or protection of persons or the WORK or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all work at the site shall be performed during normal working hours, and CONTRACTOR will not permit overtime work or the performance of work on Saturday, Sunday or any holiday observed by OWNER without
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OWNER’s written consent. CONTRACTOR shall apply for this consent through CONSTRUCTION MANAGER. CONSTRUCTION MANAGER has to approve CONTRACTOR working Holidays, weekends or overtime. CONTRACTOR will be responsible for reimbursing OWNER for all cost to provide inspection services required to monitor WORK outside of normal working hours. CONTRACTOR will be charged for this actually incurred direct hourly cost plus OWNER-approved overhead cost plus OWNER-approved profit, and a deductive Change Order will be issued to cover this expense.
6.5.3 SUBCONTRACT LIMITATIONS - CONTRACTOR shall perform not less than twenty (20) percent of the WORK with its own forces without subcontracting. This requirement refers to the WORK whose value will not be less than twenty (20) percent of the Contract Price.
6.6 PROGRESS SCHEDULE - CONTRACTOR shall adhere to the progress schedule established in accordance with the General Requirements as it may be adjusted from time to time as provided below:
6.6.1 Non Impacting Adjustments - CONTRACTOR shall submit to CONSTRUCTION MANAGER for acceptance proposed adjustments in the progress schedule that will not change the Contract Time (or Milestones). Such adjustments will conform generally to the progress schedule then in effect and additionally will comply with any provisions of the General Requirements applicable thereto.
6.6.2 Revisions To Milestones - Proposed revisions in the progress schedule that will change the Contract Times (or Milestones) shall be submitted in accordance with the requirements of Article
12. Such adjustments may only be made by a Change Order in accordance with Article 12 of the General Conditions.
6.7 SUBSTITUTES OR “OR-EQUAL” ITEMS - Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent or “or-equal” item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to CONSTRUCTION MANAGER for review under the circumstances described below.
6.7.1 “Or-Equal” Items: If in CONSTRUCTION MANAGER’s sole discretion an item of material or equipment proposed by CONTRACTOR is functionally equal to that named and sufficiently similar so that no change in the WORK will be required, it may be considered by CONSTRUCTION MANAGER as an “or-equal” item, in which case review and approval of the proposed item may, in CONSTRUCTION MANAGER’s sole discretion, be accomplished without compliance with some or all of the requirements for approval of proposed substitute items. A proposed item of material or equipment will be considered functionally equal to an item so named if:
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a. in the exercise of reasonable judgment CONSTRUCTION MANAGER determines that:
i. it is at least equal in materials of construction, quality, durability, appearance, strength and design characteristics;
ii. it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the WORK as a functioning whole; iii. it has a proven record of performance and availability of responsive service; and
b. CONTRACTOR certifies that, if approved and incorporated into the WORK:
i. there will be no increase in cost to OWNER or increase in Contract Time, and
ii. it will conform substantially to the detailed requirements of the item named in the Contract Documents.
6.7.2 Substitute Items
a. If in CONTRACT MANAGER’s sole discretion an item of material or equipment proposed by CONTRACTOR does not qualify as an “or-equal,” it will be considered a proposed substitute item.
b. CONTRACTOR shall submit sufficient information as provided below to allow CONTRACT MANAGER to determine that the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefore. Requests for review of proposed substitute items of material or equipment will not be accepted by CONTRACT MANAGER from anyone other than CONTRACTOR.
c. The procedure requirements for review by CONTRACT MANAGER will be as set forth in Paragraph 6.7.2.d, and as CONTRACT MANAGER may decide is appropriate under the circumstances.
d. CONTRACTOR shall make written application to CONTRACT MANAGER for review of a proposed substitute item of material or equipment that CONTRACTOR seeks to furnish or use. The application:
i. shall certify that the proposed substitute item will:
1. perform adequately the functions and achieve the results called for by the general design,
2. be similar in substance to that specified, and
3. be suited to the same use as that specified;
ii. will state:
1. the extent, if any, to which the use of the proposed substitute item will prejudice CONTRACTOR’s achievement of Substantial
Completion on time;
2. whether or not use of the proposed substitute item in the WORK will require a change in any of the Contract Documents (or in the provisions of any other direct contract with OWNER for other work on the Project) to adapt the design to the proposed substitute item; and
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3. whether or not incorporation or use of the proposed substitute item in connection with the WORK is subject to payment of any license fee or royalty;
iii. will identify:
1. all variations of the proposed substitute item from that specified, and
2. available engineering, sales, maintenance, repair and replacement services;
iv. and shall contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change.
6.7.3 Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence or procedure of construction is expressly required by the Contract Documents, CONTRACTOR may furnish or utilize a substitute means, method, technique, sequence or procedure of construction approved by CONTRACT MANAGER. CONTRACTOR shall submit sufficient information to allow CONTRACT MANAGER, in CONTRACT MANAGER’s sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The requirements for review by CONTRACT MANAGER will be similar to those provided in Paragraph 6.7.2.d.
6.7.4 Contract Manager’s Evaluation: CONTRACT MANAGER will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to Paragraphs
6.7.2.d and 6.7.3. CONTRACT MANAGER may require CONTRACTOR to furnish additional data about the proposed substitute item. CONTRACT MANAGER will be the sole judge of acceptability. No “or equal” or substitute will be ordered, installed or utilized until CONTRACT MANAGER’s review is complete, which will be evidenced by either a Change Order for a substitute or an approved Shop Drawing for an “or equal.” CONTRACT MANAGER will advise CONTRACTOR in writing of any negative determination.
6.7.5 Special Guarantee: OWNER may require CONTRACTOR to furnish at CONTRACTOR’s expense a special performance guarantee or other surety with respect to any substitute.
6.7.6 Contract Manager’s Cost Reimbursement: CONTRACT MANAGER will record CONTRACT MANAGER’s costs in evaluating a substitute proposed or submitted by CONTRACTOR pursuant to Paragraphs 6.7.2.d and 6.7.3. Whether or not CONTRACT MANAGER approves a substitute item so proposed or submitted by CONTRACTOR, CONTRACTOR shall reimburse OWNER for the charges of CONTRACT MANAGER for evaluating each such proposed substitute. CONTRACTOR shall also reimburse OWNER for the charges of CONTRACT MANAGER for making changes in the Contract Documents (or in the provisions of any other direct contract with OWNER) resulting from the acceptance of each proposed substitute.
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6.7.7 CONTRACTOR’s Expense: CONTRACTOR shall provide all data in support of any proposed substitute or “or-equal” at CONTRACTOR’s expense
6.8 PROJECT SITE COORDINATION
6.8.1 Work By Others - CONTRACTOR shall be responsible for ascertaining the nature and extent of any simultaneous, collateral and essential work by others as described in the General Requirements.
CONTRACTOR shall provide staging areas and include work windows for work by others into the overall construction schedule. No additional working days will be allowed for CONTRACTOR’s failure to coordinate work by others.
6.8.2 Coordination Of Work - OWNER, CONTRACTOR and each of such workers, contractors and others shall cooperate to minimize interference.
6.8.3 Cost Of Coordination - CONTRACTOR shall include in its Bid all costs involved as a result of coordinating its WORK with others. CONTRACTOR will not be entitled to additional compensation from OWNER for damages resulting from such simultaneous, collateral and essential work. CONTRACTOR’s sole and exclusive remedy as a third party beneficiary to other prime contracts for damages caused by another contractor will be a direct action against the separate contractor. If necessary to avoid or minimize such damage or delay, CONTRACTOR shall redeploy its work force to other parts of the WORK.
6.8.4 Obligation to Provide Access - CONTRACTOR shall afford each other contractor who is a party to such a direct contract and each utility owner (or OWNER, if OWNER is performing the additional work with OWNER’s employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work, and shall properly connect and coordinate work performed by others with their WORK as described in these Contract Documents.
6.8.5 CONTRACTOR shall do all cutting, fitting and patching of the WORK that may be required to make its several parts come together properly and integrate with such other work.
6.8.6 CONTRACTOR shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of CONSTRUCTION MANAGER and the others whose work will be affected.
6.9 COORDINATION WITH SUBCONTRACTORS AND SUPPLIERS
6.9.1 CONTRACTOR shall be solely responsible for scheduling and coordinating the WORK of Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the WORK under a direct or indirect contract with CONTRACTOR. CONTRACTOR shall require all Subcontractors, Suppliers and such other persons and organizations performing or furnishing
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any of the WORK to communicate with CONSTRUCTION MANAGER through CONTRACTOR. All WPRL performed by a Subcontractor or Supplier will be pursuant to an appropriate agreement between CONTRACTOR and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents.
6.9.2 Subcontractor has no contractual relationship with OWNER. Nothing contained in this Article shall create any contractual relationship between any Subcontractor and OWNER or CONSTRUCTION MANAGER, nor relieve CONTRACTOR of any liability or obligation under the Agreement. CONTRACTOR shall include these General Conditions and the Supplementary General Conditions as a part of all its subcontract agreements.
6.9.3 DIVISION OF WORK - The divisions and sections of the Specifications and the identifications of any Drawings shall not control CONTRACTOR in dividing the WORK among Subcontractors or Suppliers or delineating the WORK to be performed by any specific trade.
6.10 PATENT FEES AND ROYALTIES - CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the WORK or the incorporation in the WORK of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product or device is specified in the Contract Documents for use in the performance of the WORK and if to the actual knowledge of OWNER, or DESIGN CONSULTANT, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by OWNER in the Contract Documents.
6.11 PERMITS - Unless otherwise provided in the Supplementary General Conditions, CONTRACTOR shall obtain and pay for all construction permits and licenses from the agencies having jurisdiction, including the furnishing of insurance and Bonds if required by such agencies.
The enforcement of such requirements under this Agreement shall not be made the basis for claims for additional compensation. OWNER shall assist CONTRACTOR, only when necessary, in obtaining such permits and licenses. CONTRACTOR shall pay all governmental charges and inspection fees necessary for the prosecution of the WORK, which are applicable at the time of opening of Bids. CONTRACTOR shall pay all charges of utility owners for connections to the WORK.
6.12 LAWS AND REGULATIONS - CONTRACTOR shall observe and comply with all Federal, State and local laws, ordinances, Codes, orders and regulations which in any manner affect those engaged or employed on the WORK, the materials used in the WORK or the conduct of the WORK. If any discrepancy or inconsistency should be discovered in this Agreement in relation to any such law, ordinance, code, order or regulation, CONTRACTOR shall immediately report the same in writing to CONSTRUCTION MANAGER.
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6.13 TAXES - CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the WORK. OWNER is not exempt from sales tax.
6.14 Intentionally Omitted.
6.15 USE OF PREMISES
6.15.1 General - CONTRACTOR shall confine construction equipment, the storage of materials and equipment and the operations of workers to the Project site, the land and areas identified in and permitted by the Contract Documents and the other land and areas permitted by Laws and Regulations, rights-of-way, permits and easements as approved by CONSTRUCTION MANAGER. CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting from the performance of the WORK. Should any claim be made against OWNER or CONSTRUCTION MANAGER by any such owner or occupant because of the performance of the WORK, CONTRACTOR shall promptly attempt to settle with such other party by agreement or otherwise resolve the claim through litigation.
6.16 PROJECT SITE MAINTENANCE AND INTERFERENCE WITH ADJACENT
PROPERTY
6.16.1 Cost of General Requirements in Contract Price - CONTRACTOR is obligated to comply with the General Requirements. All costs associated with this compliance are to be included in the basic Contract Price.
6.16.2 Vehicle Load Limits - When materials are transported in prosecuting the WORK, vehicles shall not be loaded beyond the loading capacity recommended by the manufacturer of the vehicle or prescribed by law or regulation. When it is necessary to cross curbs, sidewalks or drainage facilities CONTRACTOR shall protect them from damage.
6.16.3 Work Outside The Agreement Limits - Despite the designation of Contract Documents or the indication of temporary fences or barricades, the provisions of the Contract Documents governing certain portions of the WORK may require that certain operations be carried out beyond such limits. In those cases, trenching, utility work, site development and landscaping shall be scheduled so as to occasion a minimum of inconvenience or disturbance to or interference with the normal operation of the owner, abutters and the public. CONTRACTOR shall obtain CONSTRUCTION MANAGER’s prior approval and all necessary approvals from other agencies, public entities or the government for such operations, and prosecute such operations expeditiously and restore the premises affected to their original condition immediately upon completion of such operations, unless otherwise specified in the Contract Documents. All existing walks, roadways, paved or landscaped areas on which temporary driveways or walks are rerouted shall be restored to their original condition, immediately upon completion of those phases of the WORK, unless otherwise specified in the Contract Documents. Pumping, draining and control of surface and
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ground water shall be carried out so as to avoid endangering the WORK or any adjacent facility or property, or interrupting, restricting or otherwise infringing or interfering with its use.
6.16.4 Responsibilities For Damage - All damage, injury or loss to any persons or property caused, directly or indirectly, in whole or in part, by CONTRACTOR, any Subcontractor, Supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the WORK or anyone for whose acts any of them may be liable, shall be remedied by CONTRACTOR (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of OWNER or CONSTRUCTION MANAGER or DESIGN CONSULTANT). CONTRACTOR’s duties and responsibilities for Safety and for protection of the WORK shall continue until such time as all the WORK is completed and CONSTRUCTION MANAGER has issued a notice to OWNER and CONTRACTOR in accordance with Article 14 that the WORK is complete.
6.17 CONTRACTOR’S DAILY REPORTS - CONTRACTOR shall complete a daily report indicating his total manpower for each construction trade, major equipment on site, each Subcontractor’s manpower, weather conditions and any other items required by CONSTRUCTION MANAGER. The daily report shall be completed on forms provided by CONSTRUCTION MANAGER and shall be submitted to CONSTRUCTION MANAGER by 9:00 a.m. the following work Day. The report should comment on the daily progress and status of the work within each major component of the WORK. These components will be determined by CONSTRUCTION MANAGER. Submitting acceptable daily reports as required is a precondition to approval of the monthly progress payment. However, these reports are not to be used to meet the notice requirements contained elsewhere in the General Conditions.
6.18 SAFETY
6.18.1 Safety Plan - CONTRACTOR will be required to comply with General Requirements provided by CONSTRUCTION MANAGER. CONTRACTOR shall submit a written Safety plan to CONSTRUCTION MANAGER prior to commencement of any work on site. CONTRACTOR shall be responsible for initiating, maintaining and supervising all Safety precautions and programs in connection with the WORK.
6.18.2 Safety Laws and Regulations - CONTRACTOR shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the Safety of persons or property or to protect them from damage, injury or loss and shall erect and maintain all necessary safeguards for such Safety and protection. CONTRACTOR shall notify owners of adjacent property and of Underground Utilities when prosecution of the WORK may affect them and shall cooperate with them in the protection, removal, relocation and replacement of their property.
6.18.3 Safety Representative - CONTRACTOR shall designate a qualified and experienced Safety representative at the site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of Safety precautions and program. The Safety
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representative must meet the requirements stated in Supplemental General Conditions 6.18 “Safety.”
6.18.4 Safety Orders - CONTRACTOR shall have at the WORK site as applicable, copies or suitable extracts of: Construction Safety Orders, Tunnel Safety Orders and General Industry Safety Orders issued by the State Division of Industrial Safety. CONTRACTOR shall comply with provisions of these and all other applicable laws, ordinances and regulations.
6.18.5 Trench Shoring Plan - Before excavating any trench five (5) feet or more in depth, CONTRACTOR shall submit to OWNER a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for the workers’ protection from the hazard of caving ground during the excavation of such trench. If the plan varies from the shoring system standards, the plan shall be prepared by a California registered civil construction manager. No excavation shall start until CONSTRUCTION MANAGER has accepted the plan and CONTRACTOR has obtained a permit from the State Division of Industrial Safety. A copy of the permit shall be submitted to CONSTRUCTION MANAGER and posted at the site.
6.18.6 Use of Explosives - Explosives may be used only when authorized in writing by CONSTRUCTION MANAGER, or as otherwise stated in the Specifications. Explosives shall be handled, used and stored in accordance with all applicable regulations. CONSTRUCTION MANAGER’s approval of the use of explosives shall not relieve CONTRACTOR from liability for claims caused by blasting operations.
6.18.7 Hazardous Communication Program
6.18.7.1 Notification to employees is required when materials that contain hazardous substances or mixtures are required on the WORK. A material safety data sheet as described in section 5194 of the California Code of Regulations shall be requested by CONTRACTOR from the manufacturer of any hazardous product used.
6.18.7.2 Material usage shall be accomplished with strict adherence to California Division of Industrial Safety requirements and all manufacturer’s warnings and application instructions listed on the material safety data sheet and on the product container label.
6.18.7.3 CONTRACTOR shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the site in accordance with laws or regulations, with copies to CONSTRUCTION MANAGER.
6.18.7.4 Unsafe Products - CONTRACTOR shall notify CONSTRUCTION MANAGER if it considers a specified or required product or its intended usage to be unsafe. This notification must be given to CONSTRUCTION MANAGER prior to the product being ordered, or if provided by some other party, prior to the product being used or incorporated in the WORK.
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6.18.8 Safety Measures In Bid - Payment for performing all work necessary to provide Safety measures shall be included in the prices bid for other items of work except where separate bid items for excavation Safety are provided.
6.18.9 Safety Reporting
6.18.9.1 Weekly First Aid Logs - This log should be delivered to CONSTRUCTION MANAGER three (3) Days after the weekly reporting period.
6.18.9.2 Accident and Injury Reports - This report should be delivered within twenty-four (24) hours of the injury or accident.
6.18.10 CONSTRUCTION MANAGER Safety Deficiency Report - CONTRACTOR is required to respond to this report within two (2) working Days explaining his corrective action and proposed schedule for this action.
6.19 EMERGENCY - In emergencies affecting the Safety or protection of persons or the WORK or property at or adjacent to the site, CONTRACTOR, without special instruction or authorization from CONSTRUCTION MANAGER, is obligated to act to prevent threatened damage, injury or loss. CONTRACTOR shall give CONSTRUCTION MANAGER prompt written notice if CONTRACTOR believes that any significant changes in the WORK have resulted because of the action taken in response to an emergency. If it is determined by OWNER that a change is required, a change shall be authorized by Change Order.
6.20 SHOP DRAWINGS AND SAMPLES
6.20.1 After checking and verifying all field measurements and after complying with applicable procedures specified in the General Requirements, CONTRACTOR shall submit to CONSTRUCTION MANAGER for DESIGN CONSULTANT’s review all Shop Drawings in accordance with the accepted schedule of Shop Drawings Submittals specified in Bidding Documents section Bid Forms.
6.20.2 CONTRACTOR shall also submit to CONSTRUCTION MANAGER for review all Samples in accordance with the accepted schedule of sample Submittals specified in the General Requirements.
6.20.3 Before submittal of each Shop Drawing or Sample, CONTRACTOR shall have determined and verified all quantities, dimensions, specified performance criteria, installation requirements, materials, catalog numbers and similar data with respect thereto and reviewed or coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the WORK and the Contract Documents.
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6.20.4 CONTRACTOR shall, at his own expense, furnish for review, and obtain approval by the CONSTRUCTION MANAGER, three (3) copies each of detailed submittals for materials, installation drawings, and construction procedures for the following:
Any material which differs from that specified with a brand name on the Plans and in this Special Provisions
Public notification flyers
Traffic control plans
Portland cement concrete design mix
Conventional Asphalt mixes
Aggregate Base submittal
Tack Coat Oil
Manhole Lid and/or material pertaining to the adjustment Valve Can, Lid and/or material pertaining to the adjustment Monument Preservation Certificate (prior to any construction/demolition activities) Erosion Control BMP items.
In addition, OWNER’s representative may, at his discretion, require shop drawings on other equipment or construction activities not included in the above list. OWNER’s representative shall have ten (10) working days to review and return the shop drawings to CONTRACTOR after receipt of said drawings.
6.21 SUBMITTAL ACCEPTANCE
6.21.1 DESIGN CONSULTANT Review Scope and Limitation - DESIGN CONSULTANT will review and approve Shop Drawings and Samples. DESIGN CONSULTANT’s review and approval will be only to determine if the items covered by the Submittals will, after installation or incorporation in the WORK, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. DESIGN CONSULTANT’s review and approval will not extend to means, methods, techniques, sequences or procedures of construction except where a particular means, method, technique, sequence or procedure of construction is specifically and expressly called for by the Contract Documents or to Safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. CONTRACTOR shall make corrections required by DESIGN CONSULTANT, and shall return the required number of corrected copies of Shop Drawings and submit as required new Samples for review and approval. CONTRACTOR shall direct specific attention in writing to revisions other than the corrections called for by DESIGN CONSULTANT on previous Submittals.
6.21.2 CONTRACTOR’s Responsibility Not Relieved By Approval - CONSTRUCTION MANAGER’s and DESIGN CONSULTANT’s review and approval of Shop Drawings or
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Samples shall not relieve CONTRACTOR from responsibility for any variation from the requirements of the Contract Documents unless CONTRACTOR has in writing called DESIGN CONSULTANT’s attention to each such variation at the time of submission and DESIGN CONSULTANT has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample approval; nor will any approval by DESIGN CONSULTANT relieve CONTRACTOR from responsibility for complying with the requirements of Article 6.
6.22 COMPLIANCE WITH CONSTRUCTION MANAGER ADMINISTRATIVE PROCEDURES - CONTRACTOR is required to comply with all CONSTRUCTION MANAGER administrative procedures including but not limited to daily reports, Requests for Proposal, Safety reporting, notice requirements, payment procedures, submittal processing, attendance at weekly and special meetings and others designated by CONSTRUCTION MANAGER.
6.23 ASSIGNMENT OF CONTRACT - CONTRACTOR shall not assign, sublet, sell, transfer or otherwise dispose of the Contract Documents or any portion thereof, or its right, title or interest therein, or obligations thereunder, without the written consent of OWNER except as imposed by law. If CONTRACTOR violates this provision, the Agreement may be terminated at the option of OWNER. In such event, OWNER shall be relieved of all liability and obligations to CONTRACTOR and to its assignee or transferee growing out of such termination.
6.24 CONTINUING THE WORK DURING DISPUTES
6.24.1 CONTRACTOR shall carry on the WORK and adhere to the progress schedule during all disputes or disagreements with OWNER over any WORK scope, price or time dispute. No work shall be delayed or postponed pending resolution of any disputes or disagreements, except as CONTRACTOR and OWNER may otherwise agree in writing.
6.24.2 If CONTRACTOR and OWNER are unable to reach agreement on Disputed Work, OWNER may direct CONTRACTOR to proceed with the WORK. Payment shall be as later determined by Article 16.
6.25 GENERAL WARRANTY AND GUARANTEE CONTRACTOR is responsible for providing warranty and guarantee in accordance with Article 13.
6.26.11 Survival of Obligations - All representations, indemnifications, warranties and guarantees made in, required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive Final Payment, completion and acceptance of the WORK and termination or completion of the Agreement.
ARTICLE 7 -- WORK BY OTHERS AT THE SITE
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7.1 OWNER’S RIGHT TO WORK AT SITE - OWNER may perform other work related to the Project at the site by OWNER’s own forces, have other work performed by utility owners, or let other direct contracts which may contain General Conditions similar to these. If the fact that such other work isto be performed was not noted in the Contract Documents, written notice thereof will be given to CONTRACTOR prior to starting any such other work.
7.2 CONTRACTOR REPORT ON DELAYS CAUSED BY OTHERS - If the proper execution or results of any part of CONTRACTOR’s work depends upon the work of any such other contractor or utility owner (or OWNER), CONTRACTOR shall promptly inspect and report to CONSTRUCTION MANAGER in writing any apparent delays, defects or deficiencies in such other work that render it unavailable or unsuitable for such proper execution and results.
CONTRACTOR’s failure to report such delays, defects or deficiencies in writing before commencement of the affected WORK will constitute an acceptance of the other work as fit and proper for integration with CONTRACTOR’s work except for latent defects and deficiencies in the other work.
7.3 DAMAGE TO OTHERS CAUSED BY CONTRACTOR - If CONTRACTOR causes damage to the work, property or person of any other contractor employed by OWNER, or if any claim arising out of CONTRACTOR’s performance of the WORK by any other contractor is made against CONTRACTOR, by OWNER, CONSTRUCTION MANAGER, DESIGN CONSULTANT, any other contractor or any other person, CONTRACTOR shall be responsible to settle and shall promptly attempt to settle and resolve the dispute.
7.4 COORDINATION
7.4.1 Coordination Responsibilities - CONTRACTOR’s coordination responsibilities are in accordance with those found in Article 6 and in the described Supplementary General Conditions if applicable.
7.4.2 Coordination Delays - Should CONTRACTOR be delayed by OWNER, and such delay could not reasonably have been foreseen and prevented by CONTRACTOR, CONSTRUCTION MANAGER will determine the extent of the delay, the effect of the delay on the work as a whole, and any commensurate extension of time. CONSTRUCTION MANAGER shall arrange meetings with other contractors performing work on behalf of OWNER to plan coordination of construction activities. Any difference or conflict arising between CONTRACTOR and any other contractor employed by OWNER shall be submitted to CONSTRUCTION MANAGER for a decision in the matter. CONTRACTOR shall comply with reasonable direction from CONSTRUCTION MANAGER whose decision on coordination matters will be final.
7.5 Remedy For Delays By Others - By entering into this Agreement, CONTRACTOR acknowledges that there may be other contractors on the site whose WORK will be coordinated with that of his own. CONTRACTOR expressly warrants and agrees that he will cooperate with other contractors and will do nothing to delay, hinder or interfere with the WORK of other separate contractors, OWNER, CONSTRUCTION MANAGER or DESIGN CONSULTANT.
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CONTRACTOR also expressly agrees that, in the event his work is hindered, delayed, interfered with or otherwise affected by a separate contractor, his sole remedy will be a direct action against the separate contractor. CONTRACTOR will have no remedy, and hereby expressly waives any remedy, against OWNER and/or CONSTRUCTION MANAGER or DESIGN CONSULTANT on account of delay, hindrance, interference or other event caused by a separate contractor.
7.6 Out Of Sequence Or Accelerated Work - When WORK is performed out of sequence and ahead of Interfacing Work, CONTRACTOR shall be responsible for taking reasonable steps to minimize damage or loss to the WORK which may be caused by others during the performance of their work, including but not limited to furnishing prompt written notice to CONSTRUCTION MANAGER and to the other contractors that WORK has been performed out of sequence and ahead of Interfacing Work.
7.7 NATIONAL LABOR RELATIONS BOARD REQUIREMENTS - CONTRACTOR’s Price shall include all costs associated with complying with National Labor Relations Board requirements for accessing the Project site.
ARTICLE 8 -- OWNER’S RESPONSIBILITIES
8.1 GENERAL - OWNER has the final authority in all matters affecting the WORK.
8.2 COMMUNICATIONS - In general, OWNER and DESIGN CONSULTANT shall issue all written communications to CONTRACTOR through CONSTRUCTION MANAGER.
8.3 PAYMENTS - OWNER shall make payments to CONTRACTOR as provided in Article 14.
8.4 LANDS, EASEMENTS AND SURVEYS - OWNER’s duties in respect to providing lands and easements and providing engineering surveys to establish reference points are set forth in Article 4. OWNER shall identify and make available to CONTRACTOR copies of reports of explorations and tests of subsurface conditions at the site and in existing structures which have been utilized in preparing the Contract Documents as set forth in Article 4.
8.5 CHANGE ORDERS - OWNER shall execute Change Orders as indicated in Article 10.
8.6 INSPECTIONS AND TESTS - OWNER’s responsibility with respect to inspections, tests and approvals is set forth in Article 13.
8.7 SUSPENSION OF WORK - In connection with OWNER’s right to stop work or suspend work, see Articles 13 and 15.
8.8 TERMINATION OF AGREEMENT - Article 15 deals with OWNER’s right to terminate services of CONTRACTOR.
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8.9 OWNER’S RESPONSIBILITY FOR UNDISCLOSED HAZARDOUS MATERIALS - OWNER’S responsibility with respect to undisclosed Asbestos, PCBs, Petroleum, Hazardous Waste or Radioactive Materials uncovered or revealed at the site is set forth in Article 4.
8.10 NO OWNER SUPERVISION INTENDED - Neither OWNER nor CONSTRUCTION MANAGER shall supervise, direct or have control or authority over, nor be responsible for, CONTRACTOR’s means, methods, techniques, sequences or procedures of construction or the Safety precautions and programs incident thereto, or for any failure of CONTRACTOR to comply with Laws and Regulations applicable to the furnishing or performance of the WORK. OWNER and CONSTRUCTION MANAGER will not be responsible for CONTRACTOR’s failure to perform or furnish the WORK in accordance with the Contract Documents.
ARTICLE 9 -- CONSTRUCTION MANAGER’S STATUS DURING CONSTRUCTION
9.1 GENERAL
9.1.1 OWNER’S REPRESENTATIVE - CONSTRUCTION MANAGER will be OWNER’s representative during the construction period. The duties and responsibilities and the authority of CONSTRUCTION MANAGER as CONSTRUCTION MANAGER during construction are set forth in the Contract Documents.
9.1.2 Contract Documents Terms - Whenever in the Contract Documents the terms “as ordered,” “as directed,” “as required,” “as allowed,” “as reviewed,” “as approved,” or terms of like effect or import are used, or the adjectives “reasonable,” “suitable,” “acceptable,” “proper,” or “satisfactory” or adjectives of like effect or import are used to describe a requirement, direction, review or judgment of CONSTRUCTION MANAGER as to the WORK, it is intended that such requirement, direction, review or judgment will be solely to evaluate the WORK for compliance with the requirements of the Contract Documents, and conformance with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents, unless there is a specific statement indicating otherwise. The use of any such term or adjective shall not be effective to assign to CONSTRUCTION MANAGER any duty or authority to supervise or direct the performance of the WORK or any duty or authority to undertake responsibility contrary to the Article 9.
9.2 PRESENCE ON SITE - CONSTRUCTION MANAGER will be on site during construction to observe the progress, quantity and quality of the WORK and to determine, in general, if the WORK is proceeding in accordance with the Contract Documents. CONSTRUCTION MANAGER will not supervise, direct or have control over CONTRACTOR’s work.
9.3 CONTRACT DOCUMENT CLARIFICATIONS AND INTERPRETATIONS - CONSTRUCTION MANAGER will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract Documents (in the form of Drawings or otherwise) as CONSTRUCTION MANAGER may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. Such written
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clarifications and interpretations will be binding on OWNER and CONTRACTOR. If CONTRACTOR believes that a written clarification or interpretation justifies an adjustment in the Contract Price or the Contract Time and the parties are unable to agree to the amount or extent CONTRACTOR may request an adjustment in the Contract Price or an extension of the Contract Time therefore as provided in Articles 11 or 12.
9.4 AUTHORIZED VARIATIONS IN WORK - CONSTRUCTION MANAGER may authorize minor variations in the WORK, (not resulting in changes to the Contract Price or Contract Time), which are consistent with the intent of the Contract Documents. These may be accomplished by a Construction Manager Order. If CONTRACTOR believes that a Construction Manager Order justifies an increase in the Contract Price or an extension of the Contract Time, CONTRACTOR may request an adjustment in the Contract Price or an extension of the Contract Time therefore as provided in Articles 11 or 12. If CONTRACTOR proceeds with the directed work without making such a request or providing notice he will be presumed to be in agreement with CONSTRUCTION MANAGER’s determination that no change in price or time are involved, and will be considered to have waived his right to request an adjustment in Contract Time or Price.
9.5 ACCEPTANCE OF WORK - OWNER has the final authority in all matters affecting the WORK. Within the scope of the Agreement, CONSTRUCTION MANAGER has the authority to enforce compliance with the Plans and Specifications. CONTRACTOR shall promptly comply with instructions from CONSTRUCTION MANAGER or any authorized representative on all matters relating to quantities, the acceptability of material, equipment or work, the execution, progress or sequence of work and the interpretation of Specifications or Drawings. The decision of CONSTRUCTION MANAGER shall be precedent to any payment under the Agreement, unless otherwise ordered by OWNER. CONSTRUCTION MANAGER will recommend final acceptance to OWNER.
9.6 REJECTING DEFECTIVE WORK - CONSTRUCTION MANAGER will have authority to reject work which CONSTRUCTION MANAGER determines to be defective, or not in compliance with the Contract Documents or that DESIGN CONSULTANT or CONSTRUCTION MANAGER believes will not produce a completed Project or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. CONSTRUCTION MANAGER will also have authority to require special inspection or testing of the WORK as provided in Article 13, whether or not the WORK is fabricated, installed or completed.
9.7 CONTRACTOR SUBMITTALS - CONTRACTOR shall provide submittals in accordance with the SPECIAL PROVISIONS.
9.8 CHANGE ORDER - In connection with CONSTRUCTION MANAGER’s responsibilities as to Change Orders, see Articles 10, 11, and 12.
9.9 PAYMENTS In connection with CONSTRUCTION MANAGER’s responsibility as to Applications for Payment, see Article 14.
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9.10 FINAL APPLICATION FOR PAYMENT - CONSTRUCTION MANAGER’s review of the Final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, Bonds and certificates of inspection, tests and approvals and other documentation required to be delivered by Article 14 will only be to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests and approvals that the results certified indicate compliance with the Contract Documents.
9.11 DECISIONS ON DISPUTES
9.11.1 Interpreter Of Contract Documents - CONSTRUCTION MANAGER will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the WORK thereunder. Claims, disputes and other matters relating to the acceptability of the WORK, the interpretation of the requirements of the Contract Documents pertaining to the performance of the WORK and those claims with respect to changes in the Contract Price or Contract Time will be referred initially to CONSTRUCTION MANAGER. The process to be followed is described in Article 16.
9.12 CONSTRUCTION MANAGER LIABILITY FOR INTERPRETATION - When functioning as interpreter under Article 9, CONSTRUCTION MANAGER will not show partiality to OWNER, DESIGN CONSULTANT or CONTRACTOR and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. The rendering of a decision by CONSTRUCTION MANAGER pursuant to Article 9 will be a condition precedent to any exercise by CONTRACTOR of such rights or remedies as he may otherwise have under the Contract Documents or by laws or regulations in respect of any such Claim, dispute or other matter pursuant to Article 16.
9.13 LIMITATION ON CONSTRUCTION MANAGER’S RESPONSIBILITIES
9.13.1 No Duty Arising Out Of Act Or Decision - Neither CONSTRUCTION MANAGER’s authority to act under this Article 9 or other provisions of the Contract Documents, nor any decision made by CONSTRUCTION MANAGER in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of CONSTRUCTION MANAGER to CONTRACTOR, any Subcontractor, any Supplier, any surety for any of them or any other person or organization performing any of the WORK.
9.13.2 No Supervision Role - CONSTRUCTION MANAGER will not supervise, direct, control or have authority over or be responsible for CONTRACTOR’s means, methods, techniques, sequences or procedures of construction, or the Safety precautions and programs incident thereto, or for any failure of CONTRACTOR to comply with Laws and Regulations, applicable to the performance of the WORK. CONSTRUCTION MANAGER will not be responsible for CONTRACTOR’s failure to perform the WORK in accordance with the Contract Documents.
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9.13.3 CONTRACTOR Acts Or Omissions - CONSTRUCTION MANAGER will not be responsible for the acts or omissions of CONTRACTOR nor of any Subcontractor, Supplier or any other person or organization performing any of the WORK.
ARTICLE 10 -- CHANGES IN THE WORK
10.1 CHANGES REQUESTED BY CONTRACTOR
10.1.1 CONSTRUCTION MANAGER Approval - Changes in the Plans and Specifications, requested in writing by CONTRACTOR, which do not materially affect the WORK and which are not detrimental to the WORK or to the interests of OWNER, may be granted to facilitate the WORK, when approved in writing by CONSTRUCTION MANAGER. If the method will result in a cost saving, an appropriate deductive change will be required.
10.1.2 Specified Methods - Changes in specified methods of construction may be made at CONTRACTOR’s request when approved in writing by CONSTRUCTION MANAGER. If the method will result in a cost saving, an appropriate deductive change will be required.
10.1.3 No Right To Change - Nothing herein shall be construed as granting a right to CONTRACTOR to demand acceptance of such changes.
10.1.4 Request for Change Made in Good Faith - The request For change shall be made in good faith, and the amount requested accurately reflects the adjustments in Contract Price or Contract Time for which CONTRACTOR believes OWNER is liable, and covers all direct, supplemental, indirect, consequential, serial and cumulative costs and delays to which CONTRACTOR is entitled as a result of the change.
10.2 OWNER’S RIGHT TO MODIFY WORK
10.2.1 Requirement To Implement Directed Change - Without invalidating the Agreement and without notice to any surety, OWNER may at any time or from time to time, order additions, deletions or revisions in the WORK; these will be authorized by a written Change Order prepared by CONSTRUCTION MANAGER and issued by OWNER. Upon receipt of any such document, CONTRACTOR shall promptly proceed with the work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided).
10.2.2 Request For Proposal - When OWNER desires a change in the WORK, CONSTRUCTION MANAGER will issue a Request for Proposal to CONTRACTOR.
CONTRACTOR will be required to respond within the time indicated by CONSTRUCTION MANAGER or fifteen (15) Days, whichever is less. If CONTRACTOR fails to meet the submittal time required by this provision, CONTRACTOR will be solely liable for any delays or impacts caused by the delayed submittal of the proposal.
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10.3 REQUIREMENT TO PROCEED WITH WORK - If OWNER and CONTRACTOR agree on the value of any work, and the amount of Contract Time that should be allowed as a result of CONTRACTOR’s response to a Request for Proposal, CONTRACTOR shall proceed as directed by OWNER so as to minimize the impact on and delays to the work pending the issuance of a Change Order. If however, OWNER and CONTRACTOR are unable to agree as to the extent of an increase or decrease in the Contract Price or an extension or shortening of the Contract Time that should be allowed as a result of CONTRACTOR’s response to a Request for Proposal, OWNER can direct CONTRACTOR to proceed on the basis of a price for the WORK as estimated by CONSTRUCTION MANAGER or time and materials so as to minimize the impact on and delays to the work, in accordance with Article 11.
10.4 WORK NOT IN CONTRACT - CONTRACTOR shall not be entitled to an increase in the Contract Price nor an extension of the Contract Time with respect to any work performed that is not required by the Contract Documents as amended, modified, supplemented by Change Order or Field Order, except in the case of an emergency and except in the case of uncovering work as provided in Article 13.
10.5 CHANGE ORDER PROCESS - OWNER and CONTRACTOR shall execute appropriate Change Orders covering:
10.5.1 OWNER Ordered Changes - Changes in the WORK which are ordered by OWNER pursuant to Article 10;
10.5.2 Changes Due To Defective Work - changes required because of acceptance of Defective Work under Article 13;
10.5.3 Mutually Agreed Price/Time Changes - changes in the Contract Price or Contract Time which are agreed to by the parties.
10.6 NOTICE TO SURETY - If notice of any change is required by the provisions of any Bond to be given to a surety, the giving of any such notice will be CONTRACTOR’s responsibility, and the amount of each applicable Bond shall be adjusted accordingly.
10.7 ALLOWABLE QUANTITY VARIATIONS - In the event of an increase or decrease in bid item quantity of a unit priced item in the Contract Documents, the total amount of WORK actually done or materials or equipment furnished shall be paid for according to the unit price established for such work under the Contract Documents, wherever such unit price has been established; provided, that an adjustment in the unit price may be made for changes which result in an increase or decrease in excess of the allowable percentage variations as set forth by the Contract Documents.
ARTICLE 11 -- CHANGE OF CONTRACT PRICE (Change Orders, Field Orders and Work Orders)
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11.1 CONTRACT PRICE CHANGE - The Contract Price may only be changed by a written Change Order.
11.2 METHODS FOR DETERMINING ADJUSTMENTS IN CONTRACT PRICE
11.2.1 Methods - The methods to be used to determine an adjustment in Contract Price necessitated by changes ordered or negotiated pursuant to these General Conditions or work covered by a Request for Proposal are limited to the following:
11.2.1.1 Where the work involved is covered by lump sum prices in the Contract Documents: on the basis of a lump sum negotiation;
11.2.1.2 Where the work involved is covered or is of the same character as Unit Price Work: by application of those unit prices to the quantities of the items involved (subject to the provisions covering Unit Price Work);
11.2.1.3 Where the work involved is not covered by either of the preceding methods: by mutual acceptance of a lump sum price negotiated on the basis of CONTRACTOR’s itemized estimate of the anticipated Cost of the WORK involved, determined as specified in this Article, and a contractor’s fee as provided in this Article;
11.2.1.4 Where the work involved is not covered by either of the first two (2) methods, and CONSTRUCTION MANAGER and CONTRACTOR cannot achieve agreement on the anticipated cost of the work involved and OWNER directs CONTRACTOR to proceed with the work with payments to be made on the basis of CONSTRUCTION MANAGER’s determination of the cost of the work involved: on a CONTRACTOR’s profit of eighty (80) percent of the amount allowed by this Article;
11.2.1.5 Where the work involved is not covered by either of the first two (2) methods, and OWNER directs CONTRACTOR to proceed with the work involved with payments to be made on the basis of actual costs: on the basis of the actual cost of the work involved, determined as specified in this Article, and a CONTRACTOR’s profit determined as fifty (50) percent of the amount allowed under this Article.
11.2.1.6 Where the work involved is not covered by any of the preceding methods, and when payment is to be determined by a court of competent jurisdiction, it is agreed that the actual cost method used for actual cost basis work shall be an appropriate method for determining the cost of the work involved.
11.2.2 CONTRACTOR’S Overhead and Profit Limitation - For all negotiated Change Orders the allowance for overhead and profit shall include full compensation for superintendence, insurance premiums, taxes, field office expense, extended overhead, home office overhead and all other items of expense or cost not included in the cost of labor, materials or equipment provided for in this Article. The allowance for overhead and profit will not exceed the following schedule:
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Overhead Profit
Labor = Ten (10) percent Ten (10) percent
Materials = Ten (10) percent Five (5) percent
Equipment = Ten (10) percent Five (5) percent
To the sum of the costs and markups provided for in this Article, one (1) percent shall be added as compensation for bonding.
11.2.3 Subcontractor Mark Up - It is understood that labor, materials and equipment may be furnished by CONTRACTOR or by the Subcontractor on behalf of CONTRACTOR. When all or any part of the extra work is performed by a Subcontractor, the allowance specified herein shall be applied to the labor, materials and equipment costs of the Subcontractor, to which CONTRACTOR may add five (5) percent of the Subcontractor’s total cost for the extra work.
Regardless of the number of hierarchical tiers of Subcontractors, the five (5) percent increase above the performing Subcontractor’s total cost which includes the allowances for overhead and profit may be applied one (1) time only.
11.2.4 Equipment Rental Rates
11.2.4.1 All equipment rental rates shall be in accordance with the rental rate source identified in the Supplementary General Conditions based on a monthly rate for the equipment, and based on an equipment utilization of one hundred seventy-three (173) hours per month. CONTRACTOR will be permitted to charge only for the hours the equipment is actually used in the changed work.
11.2.4.2 Equipment Required Specifically for the Additional Work - Whenever possible, changed work will be accomplished using equipment available on-site or owned by CONTRACTOR. If no on-site equipment can be used, and a specific piece of equipment must be rented to be used exclusively for the changed work, the rental rate will be the invoiced rate.
11.3 COST OF WORK (BASED ON TIME AND MATERIALS)
11.3.1 General - The term “cost of work” means the sum of all costs necessarily incurred and paid by CONTRACTOR for labor, materials and equipment in the proper performance of extra work. Except as otherwise may be agreed to in writing by OWNER, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include any of the excluded costs itemized in this Article.
11.3.2 Labor - The costs of labor will be the actual cost substantiated by certified payroll for wages prevailing for each craft or type of workers performing the extra work at the time the extra work is done, plus employer payments of payroll taxes, Workers’ Compensation insurance, liability insurance, health and welfare, pension, vacation, apprenticeship funds and other direct costs resulting from Federal, State or local laws, as well as assessments or benefits required by lawful collective bargaining agreements. Labor costs for equipment operators and helpers shall
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be paid only when such costs are not included in the invoice for equipment rental. The labor costs for foremen shall be proportioned to all of their assigned work and only that applicable to extra work shall be paid. Nondirect labor costs including the superintendent, Project manager and other labor identified in 11.3.7.1 shall be considered part of the overhead markup identified in this Article.
11.3.3 Materials - The cost of materials reported shall be itemized at invoice or lowest current price at which materials are locally available and delivered to the job in the quantities involved, plus the cost of sales tax, freight, delivery and storage.
11.3.3.1 Trade discounts available to the purchaser shall be credited to OWNER notwithstanding the fact that such discounts may not have been taken by CONTRACTOR.
11.3.3.2 For materials secured by other than a direct purchase and direct billing to the purchaser, the cost shall be deemed to be the price paid to the actual supplier as determined by CONSTRUCTION MANAGER.
11.3.3.3 Payment for materials from sources owned wholly or in part by the purchaser shall not exceed the price paid by the purchaser for similar materials from said sources on extra work items or the current wholesale price for such materials delivered to the work site, whichever price is lower.
11.3.3.4 If in the opinion of CONSTRUCTION MANAGER the cost of material is excessive, or CONTRACTOR does not furnish satisfactory evidence of the cost of such material, then the cost shall be deemed to be the lowest current wholesale price for the total quantity concerned delivered to the work site less trade discount.
11.3.3.5 OWNER reserves the right to furnish materials for the extra work and no claim shall be allowed by CONTRACTOR for costs and profit on such materials.
11.3.4 Equipment - CONTRACTOR will be paid for the use of equipment at the rental rate listed for such equipment specified in the Supplementary General Conditions. Such rental rate will be used to compute payments for equipment whether the equipment is under CONTRACTOR’s control through direct ownership, leasing, renting or another method of acquisition. The rental rate to be applied for use of each item of equipment shall be the rate resulting in the least total cost to OWNER for the total period of use. If it is deemed necessary by CONTRACTOR to use equipment not listed in the publication specified in the Supplementary General Conditions, an equitable rental rate for the equipment will be established by CONSTRUCTION MANAGER.
CONTRACTOR may furnish cost data which might assist CONSTRUCTION MANAGER in the establishment of the rental rate.
11.3.4.1 All equipment shall, in the opinion of CONSTRUCTION MANAGER, be in good working condition and suitable for the purpose for which the equipment is to be used.
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11.3.4.2 Before construction equipment is used on the extra work, CONTRACTOR shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to CONSTRUCTION MANAGER, in duplicate, a description of the equipment and its identifying number and the scheduled work activities planned.
11.3.4.3 Unless otherwise specified, manufacturer’s ratings and manufacturer-approved modifications shall be used to classify equipment for the determination of applicable rental rates.
Equipment which has no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer.
11.3.5 Rental Equipment
11.3.5.1 The rental time to be paid for equipment on the work site shall be the time the equipment is in productive operation on the extra work being performed and, in addition, shall include the time required to move the equipment to the location of the extra work and return it to the original location or to another location requiring no more time than that required to return it to its original location; except, that moving time will not be paid if the equipment is used on other than the extra work, even though located at the site of the extra work.
11.3.5.2 Rental time will not be allowed while equipment is inoperative due to breakdowns.
11.3.5.3 Computation Method - The following shall be used in computing the rental time of equipment on the work site.
11.3.5.3.1 When hourly rates are listed, any part of an hour less than thirty (30) minutes of operation shall be considered to be one-half (.5) hour of operation, and any part of an hour in excess of thirty (30) minutes will be considered one (1) hour of operation.
11.3.5.3.2 When daily rates are listed, any part of a Day less than four (4) hours operation shall be considered to be one-half (.5) Day of operation.
11.3.6 CONTRACTOR-Owned Equipment - For CONTRACTOR-owned equipment, the allowed equipment rental rate will be limited to the monthly equipment rental rate using a utilization rate of one hundred seventy-three (173) hours per month which is found in the Equipment Rental Rate Tables authorized by the Supplementary General Conditions for rental equipment.
11.3.7 Special Services Special work or services are defined as that work characterized by extraordinary complexity, sophistication or innovation or a combination of the foregoing attributes which are unique to the construction industry.
11.3.7.1 When CONSTRUCTION MANAGER and CONTRACTOR determine that a special service is required which cannot be performed by the forces of CONTRACTOR or those of any of its Subcontractors, the special service may be performed by an entity especially skilled in the work. Invoices for special services based upon the current fair market value thereof may be
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accepted without complete itemization of labor, material and equipment rental costs, after validation of market values by CONSTRUCTION MANAGER.
11.3.7.2 All invoices for special services will be adjusted by deducting all trade discounts offered or available, whether the discounts were taken or not. In lieu of the allowances for overhead and profit specified in this Article, herein, an allowance of fifteen (15) percent will be added to invoices for special services.
11.3.8 Excluded Costs - The term “cost of the work” shall not include any of the following costs:
11.3.8.1 Overhead Cost - Payroll costs and other compensation of CONTRACTOR’s officers, executives, principals (of partnership and sole proprietorships) general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or in CONTRACTOR’s principal office, a branch office or material yard and shop for general administration of the Work or not specifically covered by this Article all of which are to be considered administrative costs covered by CONTRACTOR’s allowance for overhead and profit.
11.3.8.2 Office Expense - Expenses of CONTRACTOR’s principal and branch offices.
11.3.8.3 Capital Expenses - Any part of CONTRACTOR’s capital expenses, including interest on CONTRACTOR’s capital employed for the WORK and charges against CONTRACTOR for delinquent payments.
11.3.8.4 Premiums - Cost of premiums for all Bonds and for all insurance whether or not CONTRACTOR is required by the Contract Documents to purchase and maintain the same.
11.3.8.5 Negligence - Costs due to the negligence of CONTRACTOR, any Subcontractor or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of Defective Work, disposal of materials or equipment wrongly supplied and making good any damage to property.
11.3.8.6 Other - Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in this Article.
11.3.8.7 Small Tools - Cost of small tools valued at less than five hundred dollars ($500) and that remain the property of CONTRACTOR.
11.3.8.8 Administrative Costs - Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates or the preparation or filing of claims.
11.3.8.9 Anticipated Lost Profits - Expenses of CONTRACTOR associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings or unpaid retainage.
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11.3.8.10 Home Office Overhead - Costs derived from the computation of a home office overhead rate by application of the Eichleay, Allegheny, Burden Fluctuation or other similar methods.
11.3.8.11 Special Consultants and Attorneys - Costs of special consultants or attorneys, whether or not in the direct employ of CONTRACTOR, employed for services specifically related to the resolution of a claim, dispute or other matter relating to the acceptability of the Work.
11.3.9 CONTRACTOR’s Extra Work Report - In order to be paid for extra work based on time and materials, CONTRACTOR must submit a daily Extra Work Report on a form provided by CONSTRUCTION MANAGER. The form must be completely filled out based on the provisions of this Article and signed by CONTRACTOR and CONSTRUCTION MANAGER at the end of each work Day. Failure to complete the form and obtain appropriate signatures by the next working Day after the work was completed will result in CONTRACTOR’s costs for extra work being disallowed until such form is completed and agreed to by CONSTRUCTION MANAGER.
Delay in submitting the form beyond seven (7) Days will result in CONSTRUCTION MANAGER’s records becoming the official record for payment purposes.
11.4 COSTS RELATING TO WEATHER DAMAGE
CONTRACTOR shall have no cost claims against OWNER for damages for any injury to work, materials or equipment, resulting from the action of the elements or weather. Weather-related adjustment to Contract Time will be made in accordance with Article 12.
11.5 WRITTEN JUSTIFICATION SUBSTANTIATING ADJUSTMENT
11.5.1 CONTRACTOR Initiated Change - Any request by CONTRACTOR for a change in the Contract Price shall be based on written notice delivered by CONTRACTOR to CONSTRUCTION MANAGER promptly (but in no event later than seven (7) Days) after the start of the occurrence or the event giving rise to the request for adjustment and stating the general nature of the request.
11.5.2 Cost and Time Notice Requirements - Notice of the amount of the request for adjustment in cost and/or time with supporting data shall be delivered within fourteen (14) Days after such start of occurrence, unless CONSTRUCTION MANAGER allows an additional period of time to ascertain more accurate data in support of the request.
11.5.3 Proposal Form - CONTRACTOR’s proposal shall be on forms acceptable to CONSTRUCTION MANAGER. CONTRACTOR proposal request shall certify in writing that the amounts included cover all direct, supplemental, indirect, consequential and cumulative costs and delays, as applicable, and that those costs and delays would be or were necessarily incurred,
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despite CONTRACTOR’s reasonable and diligent efforts to mitigate them. Mitigation efforts undertaken by CONTRACTOR should be described.
11.5.4 Proposal Content - Where the change in Contract Price is to be determined on the basis of the cost of the work involved, CONTRACTOR’s itemized estimates shall detail all applicable elements of cost, including, but not limited to, labor hours and payroll costs, quantities, crew mixes, production rates, material costs, Subcontractor and Supplier costs, equipment costs and supplemental costs. Where the change in Contract Price arises from changes in the schedule of all or part of the WORK, or where a change in Contract Time is sought, the submittal shall include analysis required by Article 12. With respect to work during other than normal hours, the labor charges associated with such work shall consist of straight time wages and burden plus the appropriate overtime or shift premium with no additional burden (i.e., fringe benefits) on the premium portion.
11.5.5 Additions and Deletions - The submittal shall cover all aspects of the work involved, whether relating to deleted, added, revised or impacted items of Work. Amounts for Subcontractors or Suppliers at any tier shall be similarly supported.
11.5.6 Requirements for Valid Proposal - No submittal for an adjustment in Contract Price or Contract Time shall be valid unless submitted in accordance with this Article.
11.5.7 Obligation of Surety - All work performed hereunder shall be subject to all of the provisions of the Contract Documents and CONTRACTOR’s sureties shall be bound with reference thereto as under the Agreement. Copies of all amendments to surety Bonds or supplemental surety Bonds shall be submitted to OWNER when requested.
11.5.8 Documentation - CONTRACTOR is required to comply with CONSTRUCTION MANAGER’s documentation requirements regarding format and level of detail for the Change Order process.
11.6 OWNER RIGHT TO DIRECT USE OF COMPETITIVE BID - OWNER reserves the right to direct CONTRACTOR to solicit competitive bids for additional work. If required by OWNER, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to CONTRACTOR and shall deliver such bids to OWNER who will then determine, with the advice of CONSTRUCTION MANAGER, which bids will be accepted.
ARTICLE 12 -- CHANGE OF CONTRACT TIME
12.1 GENERAL
12.1.1 CONTRACTOR Request For Time Extension - The Contract Time may only be changed by a Change Order or Field Order. Any request by CONTRACTOR for an extension of the Contract Time (or Milestones) shall be based on written notice delivered by CONTRACTOR to CONSTRUCTION MANAGER promptly (but in no event later than seven (7) Days) after the
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occurrence of the event giving rise to the request and stating the general nature of the request, unless otherwise noted. Notice of the extent of the request with supporting data shall be delivered within fourteen (14) Days after such occurrence (unless CONSTRUCTION MANAGER allows an additional period of time to ascertain more accurate data in support of the request) and shall be accompanied by CONTRACTOR’S written statement that the adjustment requested is the entire time adjustment to which CONTRACTOR has reason to believe it is entitled as a result of the occurrence of said event. An increase in Contract Time does not mean that CONTRACTOR is due an increase in Contract Price.
12.1.2 CONTRACTOR Required Analysis - An extension in Contract Time will not be granted unless CONTRACTOR can demonstrate through an analysis of the Critical Path Method Progress Schedule critical path that the increases in the time to perform or complete the WORK, or specified part of the WORK, beyond the corresponding Contract Time arise from unforeseeable causes beyond the control and without the fault or negligence of both CONTRACTOR and his Subcontractors, Suppliers or other persons or organizations, and that such causes in fact lead to performance or completion of the WORK, or specified part in question, beyond the corresponding Contract Time, despite CONTRACTOR’s reasonable and diligent actions to guard against those effects.
12.1.3 OWNER’s Right To Grant Time Extension - OWNER may elect, at its sole discretion, to grant an extension in Contract Time, without CONTRACTOR’s request, because of delays or other factors.
12.2 TIME IS OF THE ESSENCE - With regard to all Milestones and all time limits stated in the Contract Documents, time is of the essence.
12.3 CRITERIA FOR DETERMINING ADJUSTMENTS IN CONTRACT TIME
12.3.1 Use Of Float and Critical Path - Use of float is in accordance with the SPECIAL PROVISIONS.
12.3.2 Types Of Delays Beyond CONTRACTOR’s and OWNER’S Control - Delays beyond the control of CONTRACTOR shall include, but not be limited to, acts or neglect by OWNER, acts or neglect of utility owners, fires, floods, epidemics, abnormal weather conditions, labor slowdowns and strikes or acts of God. CONTRACTOR must provide CONSTRUCTION MANAGER written notice of the potential delay within twenty-four (24) hours of the occurrence.
12.3.3 Subcontractor Delays Within CONTRACTOR Control - Delays attributable to and within the control of Subcontractor or Supplier shall be deemed to be delays within the control of CONTRACTOR. No time extension will be allowed for such delays.
12.4 TIME ONLY ENTITLEMENT
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12.4.1 - Where CONTRACTOR is prevented from completing any part of the WORK within the Contract Time (or Milestones) due to delay to a critical path activity beyond the control of both OWNER and CONTRACTOR, an extension of the Contract Time (or Milestones) in an amount equal to the time lost on the critical path of the Project due to such delay shall be CONTRACTOR’s sole and exclusive remedy for such delay.
12.4.2 - In no event shall OWNER be liable to CONTRACTOR, any Subcontractor, any Supplier or any other person or organization, or to any surety for or employee or agent of any of them, for damages arising out or resulting from (i) delays caused by or within the control of CONTRACTOR, or (ii) delays beyond the control of both parties including but not limited to fires, floods, epidemics, abnormal weather conditions, acts of God or acts or neglect by utility owners or other contractors performing other work as contemplated by Article 7. CONTRACTOR must provide CONSTRUCTION MANAGER written notice of the potential delay within twenty-four (24) hours of the occurrence.
12.5 EXTENSIONS OF TIME FOR DELAY DUE TO WEATHER - An inclement weather delay is defined as a delay caused by inclement weather which prevents CONTRACTOR from working on the controlling item in CONTRACTOR’s construction schedule. Should CONTRACTOR experience inclement weather delays over the course of contract duration in excess of the number of Days outlined in the Supplementary General Conditions, CONTRACTOR shall be granted a time extension in accordance with the provisions outlined in this Article. The time extension shall be based on the number of inclement weather Days in excess of the number of Days outlined in the Supplementary General Conditions.
12.5.1 Extension of Time For Delays due to Weather Damage - If, however, in the opinion of CONSTRUCTION MANAGER, CONTRACTOR has made all reasonable efforts to protect the materials, equipment and work, CONTRACTOR may be granted a reasonable extension of Contract Time to make proper repairs, renewals and replacements of the work, materials or equipment in accordance with Article 12.
ARTICLE 13 -- TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK; WARRANTY AND GUARANTEE
13.1 TESTS AND INSPECTIONS
13.1.1 ACCESS TO WORK FOR TESTING AND INSPECTION - OWNER, CONSTRUCTION MANAGER, their consultants, Sub-Consultants other representatives and personnel of OWNER, independent testing laboratories and governmental agencies with jurisdictional interests will have access to the WORK at reasonable times for their observation, inspecting and testing. CONTRACTOR shall provide them proper and safe conditions for such access and advise them of CONTRACTOR’s Safety procedures and programs so that they may comply.
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13.1.2 Cost of Inspection/Notice - CONSTRUCTION MANAGER will make, or have made, such inspections and tests as CONSTRUCTION MANAGER deems necessary to see that the WORK is being accomplished in accordance with the requirements of the Contract Documents.
Unless otherwise specified, the cost of such inspection and testing will be borne by OWNER. In the event such inspections or tests reveal non-compliance with the requirements of the Contract Documents, CONTRACTOR shall bear the cost of corrective measures deemed necessary by CONSTRUCTION MANAGER, as well as the cost of subsequent re-inspection and re-testing.
Neither observations by CONSTRUCTION MANAGER nor inspections, tests or approvals by others shall relieve CONTRACTOR from CONTRACTOR’s obligation to perform the WORK in accordance with the Contract Documents.
CONTRACTOR shall give CONSTRUCTION MANAGER timely notice as specified in the technical specification or five (5) Days if not identified of readiness of the WORK for all required on and off site inspections, tests or approvals, and shall cooperate with inspection and testing personnel to facilitate required inspections or tests.
CONSTRUCTION MANAGER shall provide for the services of an independent testing laboratory to perform inspections, tests or approvals required by the Contract Documents except as otherwise specifically provided.
CONTRACTOR shall be responsible for arranging any inspection required by a public entity.
CONTRACTOR shall provide adequate notice to the public entity and to CONSTRUCTION MANAGER for any required inspection.
13.1.3 Right to Stop Work - CONSTRUCTION MANAGER has the right to stop or suspend work activities which will cover CONTRACTOR work product which is to be inspected or tested, or which will interfere with the inspection or testing activities, for a reasonable time and CONTRACTOR will have no right to additional cost or time he may incur as a result of the work stoppage.
13.2 CONTRACTOR INSPECTION AND TESTING RESPONSIBILITY
13.2.1 - CONTRACTOR shall be responsible for performance of tests and inspections in accordance with the SPECIAL PROVISIONS.
13.2.2 If laws or regulations of any public body having jurisdiction other than OWNER require any work to specifically be inspected, tested or approved, CONTRACTOR shall pay all costs.
13.2.3 CONTRACTOR shall be responsible for and shall pay all costs in connection with any inspection or testing required in connection with OWNER’s or CONSTRUCTION MANAGER’s acceptance of a Supplier of materials or equipment proposed as a substitution or “or-equal” to be incorporated in the WORK, or of materials or equipment submitted for review prior to CONTRACTOR’s purchase thereof for incorporation in the WORK.
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13.2.4 CONTRACTOR shall pay all related costs, schedule related activities at appropriate times and secure and furnish for CONSTRUCTION MANAGER the required certificates of inspection, testing or approval. Any associated cost and time required by CONTRACTOR for inspections required under Article 13.2 shall be considered as having been included in the Contract Price and in CONTRACTOR’s schedule for the performance of the WORK within the Contract Time.
13.2.5 All inspections, tests or approvals other than those required by laws or regulations of any public body having jurisdiction shall be performed by organizations acceptable to CONSTRUCTION MANAGER.
13.2.6 CONTRACTOR shall anticipate at a minimum the following testing and inspection requirements over and above those required by the Contract Documents:
Civil Engineering Inspections/Reviews
1. All form work
2. Crack Seal Placement
3. Slurry Seal Placement
4. Concrete placement
5. Asphalt compaction
6. Class II Base compaction
7. Remove and Replace areas
8. HMA process and materials
9. ARAM process and materials
10. Street cat-tracking prior to final paint striping
13.3 COVERING WORK TO BE INSPECTED
13.3.1 Covered Work Prior To Inspection Or Testing - If any WORK (including the work of others) that is to be inspected, tested or approved is covered without written concurrence of CONSTRUCTION MANAGER, it must, when requested by CONSTRUCTION MANAGER, be uncovered for inspection. CONTRACTOR shall bear all direct, indirect, and consequential costs and damages of such uncovering, unless CONTRACTOR has given CONSTRUCTION MANAGER and/or agencies timely notice of CONTRACTOR’s intention to cover the same, and CONSTRUCTION MANAGER has not acted with reasonable promptness in response to such notice.
13.3.2 Covered Work Contrary To Written Request - If any WORK is covered contrary to the written request of CONSTRUCTION MANAGER, it must, when requested by the CONSTRUCTION MANAGER, be uncovered for CONSTRUCTION MANAGER’s observation and recovered. CONTRACTOR shall bear all direct, indirect and consequential costs and damages of such uncovering.
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13.3.3 CONSTRUCTION MANAGER Right to Direct That Work Be Uncovered For Inspection Or Testing
13.3.3.1 If CONSTRUCTION MANAGER considers it necessary or advisable that covered work be observed by CONSTRUCTION MANAGER or inspected or tested by others, CONTRACTOR, at CONSTRUCTION MANAGER’s request, shall uncover, expose or otherwise make available for observation, inspection or testing as CONSTRUCTION MANAGER may require, that portion of the WORK in question, furnishing all necessary labor, material and equipment.
13.3.3.2 If it is found that such WORK is defective, CONTRACTOR shall bear all direct, indirect and consequential costs and damages of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, including but not limited to fees and charges of engineers, architects, attorneys and other professionals. However, if such work is not found to be defective, CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction based on the time and materials provisions as outlined in Article 11.
13.4 OWNER MAY STOP THE WORK - If the WORK is determined to be defective by CONSTRUCTION MANAGER, and CONTRACTOR fails to immediately correct the defect or CONTRACTOR fails to perform WORK in such a way that the completed WORK will conform to the Contract Documents, CONSTRUCTION MANAGER may order CONTRACTOR to stop the WORK, or any portion thereof, until the cause for such order has been eliminated; however, this right of CONSTRUCTION MANAGER to stop the WORK shall not give rise to any duty on the part of OWNER or CONSTRUCTION MANAGER to exercise this right for the benefit of CONTRACTOR or any other party. CONTRACTOR shall bear all direct, indirect and consequential costs and damages that result from this stop work notice.
13.5 CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
13.5.1 CONTRACTOR’s Responsibility - If required by CONSTRUCTION MANAGER, CONTRACTOR shall promptly, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the WORK has been rejected by CONSTRUCTION MANAGER, remove it from the site and replace it with non-Defective Work. CONTRACTOR shall bear all direct, indirect and consequential costs and damages of such correction or removal.
13.5.2 OWNER Acceptance of Defective Work - If, instead of requiring correction or removal and replacement of Defective Work, OWNER prefers to accept the WORK, OWNER may do so.
CONTRACTOR shall bear all direct, indirect and consequential costs attributable to OWNER’s evaluation of and determination to accept such Defective Work. If any such acceptance occurs prior to Final Payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the WORK, and OWNER shall be entitled to an appropriate
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decrease in the Contract Price, determined by CONSTRUCTION MANAGER and charged to CONTRACTOR through a deductive Change Order.
13.5.3 OWNER May Correct Defective Work
13.5.3.1 If CONTRACTOR after receiving written notice, from CONSTRUCTION MANAGER or from OWNER, or both, fails within a reasonable time as specified in the notice, to correct Defective Work or to remove and replace rejected WORK, OWNER may correct and remedy any such deficiency. If CONTRACTOR after receiving written notice from CONSTRUCTION MANAGER or OWNER, or both, fails within reasonable time as specified in the notice, to perform the WORK in accordance with the Contract Documents, or fails to comply with any other provision of the Contract Documents, OWNER may correct and remedy any such deficiency.
13.5.3.2 In exercising the rights and remedies under this paragraph OWNER shall proceed expeditiously.
13.5.3.3 In connection with such corrective and remedial action, OWNER may exclude CONTRACTOR from all or part of the site, take possession of all or part of the WORK, and suspend CONTRACTOR’s services related thereto, take possession of CONTRACTOR’s tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which OWNER has paid CONTRACTOR but which are stored elsewhere.
13.5.3.4 CONTRACTOR shall allow OWNER, Engineers, Agents and employees, OWNER’s other contractors, CONSTRUCTION MANAGER and DESIGN CONSULTANT access to the site to enable OWNER to exercise the rights and remedies under this paragraph.
13.5.3.5 All claims, costs, losses and damages incurred or sustained by OWNER in exercising such rights and remedies will be charged against CONTRACTOR and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the WORK, and OWNER shall be entitled to an appropriate decrease in the Contract Price, and, if the parties are unable to agree as to the amount thereof, OWNER may unilaterally issue the Change Order through CONSTRUCTION MANAGER.
13.5.3.6 Such claims, costs, losses and damages will include but not be limited to all costs of repair or replacement of work of others destroyed or damaged by correction, removal or replacement of CONTRACTOR’s Defective Work.
13.5.3.7 CONTRACTOR shall not be allowed an extension of the Contract Time (or Milestones) because of any delay in the performance of the WORK attributable to the exercise by OWNER of OWNER’s rights and remedies hereunder.
13.6 WARRANTY AND GUARANTEE
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13.6.1 General - CONTRACTOR warrants and guarantees to OWNER that all work will be in accordance with the Contract Documents and will not be defective. Prompt notice of defects known to OWNER or CONSTRUCTION MANAGER shall be given to CONTRACTOR. All Defective Work, whether or not in place, may be rejected, corrected or accepted as provided in this Article 13. Defective Work may be rejected even if approved by prior inspection.
13.6.2 One (1) Year Warranty Period - The warranty period shall commence when the Notice of Completion is issued, at notice of Beneficial Occupancy or at notice of Partial Utilization of the work to be warranted has been issued, or a later date if so specified in the Agreement, or mutually agreed to, and extend until one (1) year after that date or whatever longer period may be prescribed by laws or regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents.
13.6.3 Correction of Defective Work - If within the designated warranty period, or such longer period as may be required by Laws or Regulations, the WORK, or any part of the WORK, is discovered to be defective, CONTRACTOR shall promptly, without an adjustment in Contract Price and in accordance with OWNER’s or CONSTRUCTION MANAGER’s written instructions, either correct that Defective Work, or if it has been rejected by OWNER or CONSTRUCTION MANAGER, remove it from the site and replace it with non-Defective Work. If circumstances warrant it, including but not limited to, in an emergency, OWNER or CONSTRUCTION MANAGER may have the Defective Work corrected or the rejected WORK removed and replaced. In that event, CONTRACTOR shall not be allowed to recover any associated costs, and he shall reimburse OWNER for all direct, indirect and consequential costs of OWNER, and OWNER shall be entitled to an appropriate decrease in Contract Price, to withhold a set-off against amount recommended for payment, or make a claim on CONTRACTOR’s bond if CONTRACTOR has been paid in full. Where Defective Work (and damage to other WORK resulting therefrom) has been corrected, removed or replaced during the warranty period, the one (1) year warranty period with respect to such WORK will be extended for an additional period of one (1) year after such correction or removal and replacement has been satisfactorily completed.
13.6.4 Early Completion - The one (1) year warranty period will not begin until the Notice of Completion is filed. If CONTRACTOR completes the WORK or portions thereof prior to this time, he shall preserve the equipment and/or facilities by developing and implementing a preventive maintenance program in compliance with manufacturer’s recommendations to maintain the equipment and/or facilities unless OWNER has issued a notice of Beneficial Occupancy or notice of Partial Utilization for the warranted WORK. At start up, CONTRACTOR will be required to get his equipment and/or facilities ready to put into service.
13.7 EXTENDED WARRANTIES AND GUARANTEES - OWNER may at its sole discretion extend the one (1) year warranty period up to twenty-four (24) months, in which case CONTRACTOR shall maintain the warranties and guarantees. If such extension of the one (1) year warranty period causes an increase in the cost of the warranties and guarantees provided by
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CONTRACTOR, an adjustment in Contract Price shall be made as provided by the Contract Documents.
13.7.1 Extended Warranties and Guarantees - OWNER may extend the one (1) year Warranty period for up to twenty-four (24) additional months.
ARTICLE 14 -- PAYMENTS TO CONTRACTOR AND COMPLETION
14.1 BASIS FOR PAYMENT
14.1.1 Lump Sum Items
14.1.1.1 General - Items for which quantities are indicated as Lump Sum shall be paid for at the price indicated in the Bid. Such payment shall be full compensation for the items of WORK and all work appurtenant thereto.
14.1.1.2 Critical Path Method (“CPM”) Schedule Used For Payment - Payment for all lump sum costs and services shall be based on the value of WORK accomplished. The allocation of cost to CPM schedule activities will be utilized for payment computation.
14.1.1.3 Critical Path Method Schedule Required - CONTRACTOR shall submit to CONSTRUCTION MANAGER a detailed cost loaded and manpower loaded CPM schedule, to be used as a basis for determining progress payments in accordance with the General Requirements.
14.1.2 Unit Priced Items
14.1.2.1 General - Unit price items will be paid for based on equivalent quantities installed or performed. Unless otherwise specified, quantities of WORK shall be determined from measurements or dimensions in horizontal planes. However, linear quantities of pipe, piling, fencing and timber shall be considered as being the true length measured along the longitudinal axis. Unless otherwise provided in the Specifications, volumetric quantities shall be the product of the mean area of vertical or horizontal sections and the intervening horizontal or vertical dimension. CONTRACTOR and CONSTRUCTION MANAGER will agree on the unit quantity to be used for payment prior to its installation or removal when possible, or immediately after installation.
14.1.2.2 Methods of Measurement - Materials and items of WORK which are to be paid for on the basis of measurement shall be measured in accordance with the methods stipulated in the particular sections involved.
14.1.2.3 Certified Weight - When payment is to be made on the basis of weight, the weighing shall be done on certified platform scales or, when approved by CONSTRUCTION MANAGER, on a completely automated weighing and recording system. CONTRACTOR shall furnish
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CONSTRUCTION MANAGER with duplicate licensed weighmaster’s certificates showing the actual net weights.
14.1.2.4 Units of Measurement - Measurements shall be in accordance with U.S. standard measures. A pound is an avoirdupois pound. A ton is two thousand (2,000) pounds avoirdupois.
The unit of liquid measure is the U.S. gallon.
14.2 PAYMENT
14.2.1 Wasted Or Rejected Material - Payment will not be made for materials wasted or disposed of in a manner not called for in the Contract Documents. This includes rejected material not unloaded from vehicles, material rejected after it has been placed and material placed outside of the plan lines. No compensation will be allowed for disposing of rejected or excess materials.
14.2.2 CONTRACTOR Retains Ownership - Payment shall not relieve CONTRACTOR from its obligations under the Agreement, nor shall such payment be construed to be acceptance of any of the WORK. Payment shall not be construed as the transfer of ownership of any equipment or materials to OWNER. Responsibility of ownership shall remain with CONTRACTOR who shall be obligated to store, protect, repair, replace, rebuild or otherwise restore any fully or partially completed WORK or structure for which payment has been made, or replace any materials or equipment required to be provided under the Agreement which may be damaged, lost, stolen or otherwise degraded in any way prior to final acceptance of the WORK.
14.2.3 Payment Does Not Affect Warranty - Guarantee and warranty periods shall not be affected by any payment but shall commence as specified in Article 13.6.2.
14.2.4 Stop Notice - If, within the time fixed by law, a properly executed notice to stop payment is filed with OWNER, due to CONTRACTOR’s failure to pay for labor or materials used in the WORK, all money due for such labor or materials will be withheld from payment to CONTRACTOR in accordance with applicable laws.
14.3 APPLICATION FOR PROGRESS PAYMENT
14.3.1 Payment Due Date - CONTRACTOR shall, on the payment application date designated by CONSTRUCTION MANAGER, submit to CONSTRUCTION MANAGER for review, an Application for Payment filled out and signed by CONTRACTOR covering the WORK completed as of the date of the application and accompanied by such supporting documentation as is required by the General Requirements.
14.3.2 Payment Application Content - The Application for Payment shall identify, as a subtotal, the amount of CONTRACTOR’s total earnings to date, plus the value of materials stored at the site which have not yet been incorporated in the WORK, and less a deductive adjustment for materials previously paid. Payment for such material shall not be construed as acceptance of the material.
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14.3.3 Net Payment - The net payment due CONTRACTOR shall be the above-mentioned subtotal from which shall be deducted retainage and the total amount of all previous payments made to CONTRACTOR.
14.3.4 Retention - A retention of five (5) percent of each approved progress payment will be withheld until the work is fifty (50) percent complete; then OWNER may, at its option, refund that portion of retainage held by OWNER that is in excess of five (5) percent of the total of the WORK done to date and thereafter continue to retain five (5) percent of the value of all approved progress payment requests subsequently submitted. When the Notice of Completion is issued, OWNER at its option, may refund any portion of the remaining retention.
14.3.5 Retainage From Payments - CONTRACTOR may elect to receive one hundred (100) percent of payments due under the Contract Documents from time to time, without retention of any portion of the payment by OWNER, by depositing securities of equivalent value with OWNER in accordance with the provisions of section 22300 of the Public Contract Code. Such securities, if deposited by CONTRACTOR, shall be valued by OWNER, whose decision on valuation of the securities shall be final. Securities eligible for investment under this provision shall be limited to those listed in section 16430 of the Government Code, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit or any other security mutually agreed to by CONTRACTOR and OWNER.
14.3.6 Reinstating Retention - OWNER may reinstate up to five (5) percent retention of the total of the WORK done if OWNER determines, at its discretion, that CONTRACTOR is not performing the WORK satisfactorily or there is other specific cause for such withholding.
14.3.7 Products Stored On and Off Site - Storage and payment for material supplies and/or equipment which will be incorporated into the WORK shall be in accordance with the provisions of the General Requirements.
14.4 CONTRACTOR’S WARRANTY OF TITLE - CONTRACTOR warrants and guarantees that title to all work, materials and equipment covered by an Application for Payment, whether incorporated in the WORK or not, will pass to OWNER at the time of Final Payment free and clear of all liens.
14.5 APPLICATIONS FOR PROGRESS PAYMENT - Thirty (30) Days after presentation of undisputed and properly submitted Application for Payment, the amount will become due and when due will be paid by OWNER to CONTRACTOR.
Any payment request that is disputed or determined to be improper shall be returned to CONTRACTOR not later than seven (7) Days after receipt accompanied by documentation describing the reason(s) why the payment request is not proper.
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Any progress payment not made within thirty (30) Days of an undisputed and properly submitted payment request will require OWNER to pay interest as provided by Public Contract Code section 20104.50.
14.6 REJECT PAYMENT FOR DEFECTIVE WORK - CONSTRUCTION MANAGER may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended, to such extent as may be necessary in CONSTRUCTION MANAGER’s opinion to protect OWNER from loss because:
14.6.1 The WORK is defective, or completed WORK has been damaged requiring correction or replacement,
14.6.2 The Contract Price has been reduced by written amendment or Change Order,
14.6.3 OWNER has been required to correct Defective Work or complete WORK in accordance with Article 13.
14.6.4 CONSTRUCTION MANAGER has actual knowledge of the occurrence of any of the events enumerated in Article 15.
14.7 REJECTION OF PAYMENT BY OWNER - OWNER may refuse to make payment of the full amount recommended by CONSTRUCTION MANAGER because claims have been made against OWNER on account of CONTRACTOR’s performance of the WORK or liens have been filed in connection with the WORK or there are other items entitling OWNER to a credit against the amount recommended, but OWNER must give CONTRACTOR written notice within seven (7) Days (with a copy to CONSTRUCTION MANAGER) stating the reasons for such action.
14.8 SUBSTANTIAL COMPLETION
14.8.1 When CONTRACTOR considers the WORK ready for its intended use CONTRACTOR shall notify CONSTRUCTION MANAGER in writing that the WORK is substantially complete.
CONTRACTOR shall attach to this notice a list of all work items that remain to be completed.
14.8.2 Within a reasonable time thereafter, OWNER, CONTRACTOR and CONSTRUCTION MANAGER shall make an inspection of the WORK to determine the status of completion.
14.8.3 If CONSTRUCTION MANAGER does not consider the WORK substantially complete, or the list of remaining work items to be comprehensive, CONSTRUCTION MANAGER will notify CONTRACTOR in writing giving the reasons therefore.
14.8.4 If CONSTRUCTION MANAGER considers the WORK substantially complete, CONSTRUCTION MANAGER will prepare and deliver to OWNER a notice of Substantial
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Completion, which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before Final Payment. At the time of delivery of the notice of Substantial Completion, CONSTRUCTION MANAGER will deliver to OWNER and CONTRACTOR a written recommendation as to division of responsibilities pending Final Payment between OWNER and CONTRACTOR with respect to security, operation, Safety, maintenance, heat, utilities, insurance and warranties and guarantees.
14.8.5 OWNER shall have the right to exclude CONTRACTOR from the WORK after the date of Substantial Completion, but OWNER shall allow CONTRACTOR reasonable access to complete or correct items on the list of remaining WORK items, or for warranty work.
14.9 PARTIAL UTILIZATION AND BENEFICIAL OCCUPANCY
14.9.1 Partial Utilization - OWNER shall have the right to utilize or place into service any item of equipment or other usable portion of the WORK which is substantially complete prior to completion of all of the WORK. Whenever OWNER plans to exercise said right, CONTRACTOR will be notified in writing with a notice of Partial Utilization signed by OWNER identifying the specific portion or portions of the WORK to be so utilized or otherwise placed into service.
Liquidated damages will not be affected.
14.9.2 Beneficial Occupancy - OWNER shall have the right to take control of the entire WORK if it is substantially completed. Whenever OWNER plans to exercise said right CONTRACTOR will be notified in writing with a notice of Beneficial Occupancy. Such use by OWNER will terminate liquidated damages.
14.9.3 Responsibility For Care and Maintenance - It shall be understood by CONTRACTOR that until Beneficial Occupancy or Partial Utilization notices are issued or start up begins, all responsibility for care and maintenance of all of the WORK shall be the responsibility of CONTRACTOR. Upon issuance of said written notice of Beneficial Occupancy or notice of Partial Utilization, OWNER will accept responsibility for the protection and maintenance of all such items or portions of the WORK described in the written notice.
14.9.4 CONTRACTOR Responsible For Completion - CONTRACTOR shall retain full responsibility for satisfactory completion of the WORK, regardless of whether a portion thereof has been partially utilized by OWNER.
14.10 FINAL INSPECTION - Upon written notice from CONTRACTOR that the entire WORK or an agreed portion thereof is complete, CONSTRUCTION MANAGER will make a final inspection with OWNER and CONTRACTOR and will notify CONTRACTOR in writing of all particulars in which this inspection reveals that the WORK is incomplete or defective.
CONTRACTOR shall immediately take such measures as are necessary to complete such WORK or remedy such deficiencies.
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14.11 FINAL APPLICATION FOR PAYMENT - After CONTRACTOR has completed all of the remaining work items referred to in Article 14, removed all temporary structures and utilities, cleared the site, delivered all maintenance and operating instructions, schedules, guarantees, Bonds, certificates of inspection, marked-up record documents and other documents, all as required by the Contract Documents, and after CONSTRUCTION MANAGER has indicated that the WORK is acceptable, CONTRACTOR may make application for Final Payment following the procedure for progress payments. The final Application for Payment shall be accompanied by all documentation called for in the Contract Documents, together with complete and legally effective releases or waivers satisfactory to OWNER of all liens arising out of or filed in connection with the WORK. If CONTRACTOR has specific claims outstanding he shall restate these claims by stating the nature of the claim, the basis for entitlement and the estimated value of the claim.
CONTRACTOR shall specifically release OWNER from any other claims not renewed.
14.12 FINAL PAYMENT AND ACCEPTANCE
14.12.1 If, on the basis of CONSTRUCTION MANAGER’s observation of the WORK during construction and final inspection, and CONSTRUCTION MANAGER’s review of the final Application for Payment and accompanying documentation, all as required by the Contract Documents, CONSTRUCTION MANAGER is satisfied that the WORK has been completed and CONTRACTOR’s other obligations under the Contract Documents have been fulfilled, CONSTRUCTION MANAGER will, within fourteen (14) Days after receipt of the final Application for Payment, indicate in writing CONSTRUCTION MANAGER’s recommendation of payment and present the Application for Payment to OWNER for payment. CONSTRUCTION MANAGER will also prepare a Notice of Completion.
14.12.2 After acceptance of the WORK by OWNER, OWNER will make Final Payment to CONTRACTOR of the amount remaining after deducting all prior payments and all amounts to be kept or retained under the provisions of the Contract Documents. OWNER will sign the Notice of Completion and file the Notice of Completion with the County Recorder.
14.13 LIQUIDATED DAMAGES
14.13.1 - Failure of CONTRACTOR to complete the WORK within the time allowed will result in damages being sustained by OWNER. For each consecutive calendar Day in excess of the time specified for completion of the WORK, CONTRACTOR shall pay to OWNER, or have withheld from monies due it, the sum provided for in the Contract Documents.
14.13.2 Execution of the Agreement shall constitute agreement by OWNER and CONTRACTOR that specified liquidated damages is the minimum value of the costs and actual damage caused by failure of CONTRACTOR to complete the WORK within the allotted time; that such sum is liquidated damages and shall not be construed as a penalty, and that such sum will be deducted from Final Payment due CONTRACTOR if such delay in completion occurs.
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14.14 PARTIAL RELEASE OF RETENTION AT SUBSTANTIAL COMPLETION - If, through no fault of CONTRACTOR, final completion of the WORK is significantly delayed and if CONSTRUCTION MANAGER so confirms, OWNER shall, upon receipt of CONTRACTOR’s final Application for Payment and recommendation of CONSTRUCTION MANAGER, and without terminating the Agreement, make payment of the balance due for that portion of the WORK fully completed and accepted. If the remaining balance to be held by OWNER for WORK not fully completed or corrected is less than the retainage stipulated in the Agreement, and if Bonds have been furnished as required in Article 5, the written consent of the surety to the payment of the balance due for that portion of the WORK fully completed and accepted shall be submitted by CONTRACTOR to CONSTRUCTION MANAGER with the Application for such payment. Such payment shall be made under the terms and conditions governing Final Payment, except that it shall not constitute a waiver of claims.
14.15 WAIVER OF CLAIMS - The making and acceptance of Final Payment will constitute:
14.15.1 OWNER - A waiver of all claims by OWNER against CONTRACTOR, except claims arising from unsettled liens, from Defective Work appearing after final inspection pursuant to Article 14, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from CONTRACTOR’s continuing obligations under the Contract Documents; and
14.15.2 CONTRACTOR - A waiver of all claims by CONTRACTOR against OWNER other than those previously made in writing and still unsettled and specifically renewed in the Application for Payment.
14.16 RELEASE OF RETAINAGE AND OTHER DEDUCTIONS - After executing the necessary documents to initiate the lien period, and not more than thirty-five (35) Days thereafter (based on a thirty (30) Day lien filing period and five (5) Day processing time), OWNER will release to CONTRACTOR the retainage funds withheld pursuant to the Agreement, less any deductions to cover pending third-party claims and liquidated damages against CONTRACTOR.
14.17 CONTRACTOR’S CONTINUING OBLIGATION - CONTRACTOR’s obligation to perform and complete the WORK in accordance with the Contract Documents shall be absolute.
Neither recommendation of any progress or Final Payment by CONSTRUCTION MANAGER, nor the issuance of a Notice of Completion, nor any payment by OWNER to CONTRACTOR under the Contract Documents, nor any use or occupancy of the WORK or any part thereof by OWNER, nor any act of acceptance by OWNER nor any failure to do so, nor any review of a Shop Drawing or sample submittal, will constitute an acceptance of work not in accordance with the Contract Documents or a release of CONTRACTOR’s obligation to perform the WORK in accordance with the Contract Documents.
14.18 TERMINATION OF LIABILITY OF OWNER - The acceptance by CONTRACTOR of final payment referred to in Article 14 herein, shall be a release of OWNER and CONSTRUCTION MANAGER from all claims of liability to CONTRACTOR for anything done
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or furnished for, or relating to, the WORK or for any act or neglect of OWNER or of any person relating to or affecting the WORK, except demands against OWNER for the remainder, if any, of the amounts kept or retained under the provisions of Article 14 herein; and excepting pending, unresolved claims renewed with the final Application for Payment.
ARTICLE 15 -- SUSPENSION OF WORK AND TERMINATION
15.1 SUSPENSION OF WORK BY OWNER - OWNER, acting through CONSTRUCTION MANAGER, may, at any time and without cause, suspend the WORK or any portion thereof for a period of not more than ninety (90) Days by notice in writing to CONTRACTOR.
CONTRACTOR shall resume the WORK on receipt from CONSTRUCTION MANAGER of a notice of resumption of WORK. CONTRACTOR may submit a request for a change in the Contract Price or of the Contract Time, or both, directly attributable to the suspension as provided in Articles 11 and 12.
15.2 ARCHAEOLOGICAL AND PALEONTOLOGICAL DISCOVERIES
15.2.1 If a discovery is made of an archaeological or paleontological interest, CONTRACTOR shall immediately cease operations in the area of the discovery and shall not continue until ordered by CONSTRUCTION MANAGER. This suspension of work may exceed the ninety (90) Day limit without creating a CONTRACTOR right to terminate the Agreement. When resumed, operations within the area of the discovery shall be as directed by CONSTRUCTION MANAGER.
15.2.2 Discoveries which may be encountered may include, but not be limited to, dwelling sites, stone implements or other artifacts, animal bones, human bones, fossils or any item with culturally significance.
15.2.3 CONTRACTOR shall be entitled to an extension of time and compensation in accordance with the provisions of the Contract Documents.
15.3 TERMINATION OF AGREEMENT BY OWNER FOR CAUSE
15.3.1 In the event of default by CONTRACTOR, OWNER shall give fourteen (14) Days written notice to CONTRACTOR of OWNER’s intent to terminate the Agreement and provide CONTRACTOR opportunity to remedy the conditions constituting the default.
15.3.2 CONTRACTOR Default - It shall be considered a default by CONTRACTOR when CONTRACTOR:
15.3.2.1 Declares bankruptcy, becomes insolvent, assigns its assets for the benefit of its creditors, or is unable to pay debts as they become due;
15.3.2.2 Fails to provide materials or workmanship meeting the requirements of the Contract Documents, and fails to correct the Defective Work as required by Article 13;
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15.3.2.3 Disregards or violates provisions of the Contract Documents or CONSTRUCTION MANAGER’s instructions;
15.3.2.4 Fails to prosecute the WORK according to the approved progress schedule;
15.3.2.5 Fails to provide a qualified superintendent, competent workers or materials or equipment meeting the requirements of the Contract Documents;
15.3.2.6 Fails to maintain license or insurance.
15.3.3 If CONTRACTOR fails to remedy the conditions constituting default within the time allowed, OWNER may then issue the notice of termination.
15.3.4 In the event the Agreement is terminated in accordance with Article 15, OWNER may take possession of the WORK and may complete the WORK by whatever method or means OWNER may select. The cost of completing the WORK shall be deducted from the balance which would have been due CONTRACTOR had the Agreement not been terminated and the WORK completed in accordance with the Contract Documents. If such cost exceeds the balance which would have been due, CONTRACTOR shall pay the excess amount to OWNER. If such cost is less than the balance which would have been due, CONTRACTOR shall not have claim to the difference.
15.4 RIGHTS OF OWNER PRESERVED - Where CONTRACTOR’s services have been so terminated by OWNER, the termination will not affect any rights or remedies of OWNER against CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of monies due CONTRACTOR by OWNER will not release CONTRACTOR from liability.
15.5 TERMINATION BY OWNER FOR JUST CAUSE - OWNER may terminate the Contract for just cause at its own discretion or when conditions encountered during the WORK make it impossible or impractical to proceed, or when OWNER is prevented from proceeding with the Agreement by act of God, by law or by official action of a public authority.
15.5.1 Termination for Convenience of OWNER
15.5.1.1 Termination of CONTRACTOR’s Performance of WORK - OWNER may terminate, subject to the express terms and conditions set forth below, CONTRACTOR’s performance of work under this Agreement, in whole or, from time to time, in part, if OWNER’s City Council does not appropriate sufficient monies to fund the Agreement. The City Manager shall terminate on behalf of OWNER by delivering to CONTRACTOR a notice of termination, in writing, specifying the extent of termination and the effective date
15.5.1.2 Notice of Termination - After receipt of the notice of termination, and except as otherwise directed by OWNER’s City Manager, CONTRACTOR shall immediately proceed as follows:
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15.5.1.2.1 Stop WORK immediately or as specified in the notice;
15.5.1.2.2 Immediately place no further subcontracts for materials, services or facilities, except as necessary to complete any authorized, continued portion of the Agreement;
15.5.1.2.3 Immediately terminate all subcontracts to the extent they relate to the WORK terminated;
15.5.1.2.4 With approval by OWNER’s City Manager, settle all outstanding obligations arising from the termination of subcontracts, the approval of which will be final for purposes of this clause;
15.5.1.2.5 As directed by OWNER’s City Manager, transfer the title and deliver to OWNER, completed or partially completed drawings, plans, calculations, Specifications and any other documents and records that, if the Agreement has been completed, would be required to be furnished to OWNER;
15.5.1.2.6 Complete performance of the WORK not terminated;
15.5.1.2.7 Take any action that may be necessary, or that OWNER’s City Manager may direct, for the protection and preservation of the property related to the Contract Documents that is in the possession of CONTRACTOR and in which OWNER has or may acquire an interest.
15.5.1.3 Removal of CITY Property - CONTRACTOR may request OWNER to remove OWNER’s property or enter into an agreement for its storage. Within sixty (60) Days, OWNER will accept title of property and remove it or enter into a storage agreement.
15.5.1.4 Termination Settlement - After termination, CONTRACTOR shall submit a final termination settlement proposal to OWNER’s City Manager in the form and with the certification prescribed by OWNER’s City Manager. CONTRACTOR shall submit the proposal promptly, but not later than six (6) months from the effective date of termination, unless extended in writing, by OWNER’s City Manager upon written request of CONTRACTOR within this six (6) month period. However, if OWNER’s City Manager determines that the facts justify it, a termination settlement proposal may be received and acted on after six (6) months or any extension. If CONTRACTOR fails to submit the proposal within the time allowed, OWNER may, in good faith, determine, on the basis of information available, the fair and reasonable amount, if any, due CONTRACTOR as a result of the termination and pay the amount determined. If CONTRACTOR does not agree that the amount determined by OWNER’s City Manager is fair and reasonable, and if CONTRACTOR gives notice of such disagreement to OWNER in accordance with this paragraph of the Agreement within thirty (30) Days of receipt of payment, then the amount due shall be as fixed in a court of law.
15.5.1.5 Payment for CONTRACTOR Due to Termination - Subject to the above paragraph, CONTRACTOR and OWNER’s City Manager may agree upon the whole or any part of the
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amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. However, the agreed amount, exclusive of costs shown in Paragraph
15.5.1.6.3 below, may not exceed the total dollar amount authorized by OWNER as reduced by (1) the amount of payments previously made; and (2) the Contract Price of work not terminated.
The Contract Documents shall be amended, and CONTRACTOR paid the agreed amount. The paragraph below shall not limit, restrict or affect the amount that may be agreed upon to be paid under this paragraph.
15.5.1.6 Failure to Agree on Payment - If CONTRACTOR and OWNER fail to agree on the whole amount to be paid because of the termination of WORK, OWNER shall pay CONTRACTOR the fair and reasonable amounts determined in good faith by OWNER as follows, but without duplication of any amounts agreed above:
15.5.1.6.1 The Contract Price for completed services accepted by OWNER not previously paid for, adjusted for any saving of freight and other charges.
15.5.1.6.2 The total of:
15.5.1.6.2.1 The costs incurred in the performance of the WORK terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs’ attributable to services paid or to be paid under Paragraph 15.5.1.6;
15.5.1.6.2.2 The fair and reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Agreement if not included in paragraph above; and
15.5.1.6.2.3 A sum, as profit on the above paragraph determined by OWNER’s City Manager to be fair and reasonable under the circumstances; however, if it appears that CONTRACTOR would have sustained a loss on the entire Agreement had it been completed, OWNER shall allow no profit under this paragraph and shall reduce the settlement to reflect the indicated rate of loss.
15.5.1.6.3 The reasonable costs of settlement of the WORK terminated, including:
15.5.1.6.3.1 Accounting, legal, clerical and other expenses reasonably necessary for the preparation of termination of settlement proposals and supporting data;
15.5.1.6.3.2 The termination and settlement of subcontracts (excluding the amounts of such settlements); and
15.5.1.6.3.3 Storage, transportation and other costs incurred, reasonable necessary for the preservation, protection or disposition of property in which OWNER has or may acquire an interest.
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15.5.1.7 Dispute of Payment - If CONTRACTOR does not agree that the amount determined by OWNER’s City Manager under the paragraph above is fair and reasonable and if CONTRACTOR gives notice of such disagreement to OWNER in accordance with Paragraph 15.5.1.4 of this Contract within thirty (30) Days of receipt of payment, then the amount due shall be as determined in a court of law.
15.5.1.8 Payment for Property Destroyed, Lost Stolen or Damaged - Except to the extent that OWNER expressly assumed the risk of loss, OWNER’s City Manager shall exclude from the amounts payable to CONTRACTOR under Paragraph 15.5.1.6 above, the fair value, as determined by OWNER’s City Manager, of property that is destroyed, lost, stolen or damaged so as to become undeliverable to OWNER.
15.5.1.9 Determination of Amount Due CONTRACTOR - In arriving at the amount due CONTRACTOR under this clause, there shall be deducted:
15.5.1.9.1 All unliquidated advance or other payments to CONTRACTOR under the terminated portion of this Agreement;
15.5.1.9.2 Any claim which OWNER has against CONTRACTOR under this Agreement; and
15.5.1.9.3 The agreed price for, or the proceeds of sale of, materials, supplies or other things acquired by CONTRACTOR or sold under the provisions of this clause and not recovered by or credited to OWNER.
15.5.2 Partial Termination - If the termination is partial, CONTRACTOR may file a proposal with OWNER’s City Manager for an equitable adjustment of the price(s) of the continued portion of the Agreement. OWNER shall make any equitable adjustment agreed upon. Any proposal by CONTRACTOR for an equitable adjustment under this clause shall be requested within ninety (90) Days from the effective date of termination unless extended, in writing, by OWNER’s City Manager.
15.5.2.1 Partial Termination Payment - OWNER may, under the terms and conditions it prescribes, make partial payment and payments against costs incurred by CONTRACTOR for the terminated portion of the Agreement if OWNER’s City Manager believes the total of these payments will not exceed the amount to which CONTRACTOR will be entitled. If the total payments exceed amount finally determined to be due, CONTRACTOR shall repay the excess to OWNER upon demand, together with interest. Interest shall be at a rate of six (6) percent per annum compounded daily and shall be computed for the period from the date the excess payment is received by CONTRACTOR to the date the excess is repaid. Interest shall not be charged on any excess payment due to a reduction in CONTRACTOR’s termination settlement proposal because of retention or disposition, or a later date determined by OWNER’s City Manager because of the circumstances.
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15.5.5.3 Records and Documents Relating to Termination - Unless otherwise provided in the Agreement or by statute, CONTRACTOR shall maintain all records and documents relating to the terminated portion of this Agreement for three (3) years after final settlement. This includes all books and other evidence bearing on CONTRACTOR’s costs and expenses under this Agreement.
CONTRACTOR shall make these records and documents available to OWNER, at CONTRACTOR’s office, at all reasonable times, without any direct charge. If approved by OWNER’s City Manager, photographs, microphotographs or other authentic reproductions may be maintained instead of original records and documents.
15.6 TERMINATION OF AGREEMENT BY CONTRACTOR - CONTRACTOR may terminate the Agreement upon ten (10) Days written notice to OWNER, whenever:
15.6.1 the WORK has been suspended under the provisions of Article 15, for more than ninety (90) consecutive Days through no fault or negligence of CONTRACTOR, and notice to resume work or to terminate the Agreement has not been received from OWNER within this time period; or,
15.6.2 OWNER should fail to pay CONTRACTOR any monies due him in accordance with the terms of the Contract Documents and within ninety (90) Days after presentation to CONSTRUCTION MANAGER by CONTRACTOR of a request therefor, unless within said ten (10) Day period OWNER shall have remedied the condition upon which the payment delay was based.
15.6.3 In the event of such termination, CONTRACTOR shall have no claims against OWNER except for those claims specifically enumerated in Article 15, herein, and as determined in accordance with the requirements of said paragraph.
ARTICLE 16 - DISPUTES
16.1 GENERAL - All claims, counterclaims, disputes and other matters in question arising under, or relating to, the Contract Documents and/or the breach thereof shall be processed in accordance with the provisions of this Article and are subject to audit by OWNER’s internal audit staff in accordance with Article 17.
16.2 REQUESTS FOR CHANGE
16.2.1 CONTRACTOR’s Right To Request a Change - In accordance with Articles 11 and 12, CONTRACTOR may request a change in the Contract Price or an extension of the Contract Time.
Such a request shall be in writing, and shall be delivered to CONSTRUCTION MANAGER within the time periods outlined in Articles 11 and 12.
16.2.2 Initial Determination - CONSTRUCTION MANAGER shall make an initial determination on CONTRACTOR’s request in writing, within twenty (20) working Days of receipt of the requested supporting data.
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16.2.3 CONTRACTOR Appeal and Claim - Should CONTRACTOR disagree with CONSTRUCTION MANAGER’s initial determination, CONTRACTOR may file a Claim requesting a final determination from CONSTRUCTION MANAGER. Such a request shall be in writing, and shall be delivered within twenty (20) working Days after receipt of CONSTRUCTION MANAGER’s initial determination, and after certifying his Claim in accordance with Paragraph 16.3.
16.2.4 Waiver Of Rights - Failure of CONTRACTOR to notify CONSTRUCTION MANAGER and deliver supporting data in accordance with the time periods outlined above or failure to respond to CONSTRUCTION MANAGER’s initial determination within the time period outlined in this paragraph, shall be deemed to be a waiver of objection or right to further Claim of this matter.
16.3 CLAIMS
16.3.1 Definition of Claim - A Claim means a written demand by CONTRACTOR seeking an adjustment in Contract Price and payment of monies so due, an extension or shortening in Contract Time, or other relief arising under or relating to the Agreement following denial of CONTRACTOR’s request for a CONSTRUCTION MANAGER’s initial determination. A written demand by CONTRACTOR seeking the payment of money or an extension of time is not a Claim under this Article until certified as required below. A voucher, invoice or other routine Application for Payment that is not in dispute when submitted, is not a Claim under this Article.
16.3.2 Claim Arising Under The Agreement - A Claim arising under the Agreement, unlike a Claim relating to the Agreement, is a Claim that can be resolved under an Agreement provision that provides for or excludes the relief sought by the claimant. Such Claims shall be resolved under the applicable provisions of the Agreement.
16.3.3 Period Of Claim - For any Claim under this Article to be valid, it shall be based upon written notice delivered by CONTRACTOR to CONSTRUCTION MANAGER promptly, but in no event later than twenty (20) working Days, after receipt of CONSTRUCTION MANAGER’s initial determination as outlined in Paragraph 16.2. The responsibility to substantiate Claims shall rest with the party making the Claim.
16.3.4 Claim Certification Requirements - For all CONTRACTOR Claims seeking an increase in Contract Price or Contact Time, CONTRACTOR shall submit with the Claim an affidavit certifying that:
16.3.4.1 Claim Made In Good Faith - The Claim is made in good faith, and the amount claimed accurately reflects the adjustments in Contract Price or Contract Time for which CONTRACTOR believes OWNER is liable, and covers all direct, supplemental, indirect, consequential, serial and cumulative costs and delays to which CONTRACTOR is entitled as a result of the occurrence of the claimed event;