Contractor shall be responsible for all claims, costs, losses, damages, expenses and liabilities incurred or sustained by Owner in exercising rights and remedies under this Paragraph.
Contractor shall be responsible for any and all claims, costs, losses and damages caused by or resulting from such correction or removal. A Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work and the Contract Sum.
If the parties are unable to agree to the amount of an appropriate decrease in the Contract Sum, Owner may decide the proper amount or, in its discretion may elect to leave the Contract Sum unchanged and deduct from monies due Contractor, all such claims, costs, losses and damages caused by or resulting from exercising its rights and remedies. If Contractor disagrees with Owner’s calculations, it may make a claim as provided in Article 12 of this Document 00 7200.
These Owner rights and remedies are entirely discretionary on the part of Owner, and shall not give rise to any duty on the part of Owner to exercise the rights for the benefit of Contractor or any other party. Owner’s rights under this Paragraph shall be in addition to any other rights it may have under the Contract Documents or by law. Owner’s failure to demand correction of defective work does not relieve the Contractor from delivering a Project that comports with the Project’s plans and specifications.
Acceptance of Defective Work
Owner may in its sole discretion elect to accept Defective Work. Contractor shall pay all claims, costs, losses and damages attributable to Owner’s evaluation of and determination to accept such Defective Work. If Owner accepts any Defective Work prior to final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work and the Contract Sum. If the parties are unable to agree to the amount of an appropriate decrease in the Contract Sum, Owner may deduct from monies due Contractor, all claims, costs, losses, damages, expenses and liabilities attributable to the Defective Work. If Contractor disagrees with Owner’s calculations, Contractor may make a claim as provided in Article 12 of this Document 00 7200. If Owner accepts any Defective Work after final payment, Contractor shall pay to Owner, an appropriate amount as determined by Owner.
Rights upon Inspection, Correction or Acceptance
Contractor shall not be allowed an extension of Contract Time because of any delay in the performance of Work attributable to the exercise by Owner of its rights and remedies under this Article. Where Owner exercises its rights under this Article, it retains and may still exercise all other rights it has by law or under the Contract Documents including, without limitation, the right to terminate Contractor’s right to proceed with the Work under the Contract Documents for cause and/or make a claim or back charge where a Change Order cannot be agreed upon.
Observation or inspection by Owner or its authorized agents or representatives shall not relieve Contractor of its obligation to have furnished material and workmanship in accordance with Contract Documents. Payment for Work completed through periodic progress payments, final payment or otherwise shall not operate to waive Owner’s right to require full compliance with Contract Documents and shall in no way be deemed as acceptance of any defective Work paid therefor. Contractor’s obligation to complete the Work in accordance with Contract Documents shall be absolute, unless Owner agrees otherwise in writing.
Proof of Compliance of Contract Provisions
In order that Owner may determine whether Contractor has complied or is complying with requirements of Contract Documents not readily enforceable through inspection and tests of Work and materials, Contractor shall at any time, when requested, submit to Owner properly
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authenticated documents or other satisfactory proofs of compliance with all applicable requirements.
Before commencing any portion of Work, Contractor shall inform Owner in writing as to time and place at which Contractor wishes to commence Work, and nature of Work to be done, in order that proper provision for inspection of Work may occur, and to assure measurements necessary for record and payment. Information shall be given to Owner a reasonable time in advance of time at which Contractor proposes to begin Work, so that Owner may complete necessary preliminary work without inconvenience or delay to Contractor.
Correction Period and Project Warranty Period
If within one year after the date of Final Acceptance, or such longer period of time as may be prescribed by laws, regulations or by the terms of Contract Documents or any extended warranty or guaranty, any Work (completed or incomplete) is found to be Defective, Contractor shall promptly without cost to Owner and in accordance with Owner’s written instructions, correct such Defective Work. Contractor shall remove any Defective Work rejected by Owner and replace it with Work that is not Defective, and satisfactorily correct or remove and replace any damage to other Work or the work of others resulting therefrom. If Contractor fails to promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the Defective Work corrected or the rejected Work removed and replaced. Contractor shall pay for all claims, costs, losses and damages caused by or resulting from such removal and replacement. Where Contractor fails to correct Defective Work, or defects are discovered outside the correction period, Owner shall have all rights and remedies granted by law.
In special circumstances where a part of the Work is occupied or a particular item of equipment is placed in continuous service before Final Acceptance of all the Work, the correction period for that part of Work or that item may start to run from an earlier date if so provided by Change Order.
Where Defective Work or rejected Work (and damage to other Work resulting therefrom) has been corrected, removed, or replaced under this Paragraph after the commencement of the correction period, the correction period hereunder with respect to such Work shall be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed.
No Waiver
Neither recordation of Final Acceptance, nor final certificate for payment, nor provision of the Contract, nor partial or entire use or occupancy of premises by Owner shall constitute acceptance of Work not done in accordance with Contract Documents nor relieve Contractor of liability in respect to express warranties or responsibility for faulty materials or workmanship.
If, after installation, operation, or use of materials or equipment to be provided under Contract proves to be unsatisfactory to Owner, Owner shall have the right to operate and use materials or equipment until said materials and equipment can, without damage to Owner, be taken out of service for correction or replacement. Period of use of Defective materials or equipment pending correction or replacement shall in no way decrease guarantee period required for acceptable corrected or replaced items of materials or equipment.
Nothing in the Contract Documents shall be construed to limit, relieve, or release Contractor’s, Subcontractors’, and equipment suppliers’ liability to Owner for damages sustained as result of latent defects in materials or equipment caused by negligence of Contractor, its agents, suppliers, employees, or Subcontractors.
MODIFICATIONS OF CONTRACT DOCUMENTS
Owner’s Right to Direct Changed Work
Owner may, without notice to the sureties and without invalidating the Contract, make changes in the Work (Changed Work), including without limitation: alterations, deviations, additions to, or deletions from Contract Documents; increase or decrease the quantity of any item or portion of the Work; expand, reduce or otherwise change the Contract Time; delete any item or portion of
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the Work; and require extra Work. Contractor shall perform such Work under applicable provisions of the Contract Documents, unless specifically provided otherwise at the time the change is ordered. In the case of any ordered extra Work, Owner reserves the right to furnish all or portions of associated labor, material, and equipment, which Contractor shall accept and use without payment for costs, markup, profit, or otherwise for such Owner-furnished labor, materials, and equipment.
If Changed Work is of such a nature as to increase or decrease the time or cost of any part of Work, price fixed in Contract shall be increased or decreased by amount as the Contractor and Owner may agree upon as reasonable and proper allowance for increase or decrease in cost of Work using the cost guidelines set forth in this Article, and absent such agreement, then as Owner may direct (with Contractor retaining its rights under Article 12 herein).
Required Documentation for Changed Work
Changes affecting the Contract Time or Contract Sum of the Work shall be set forth in a written Change Order or Change Directive that shall specify:
The Work performed in connection with the change to be made; The amount of the adjustment of the Contract Sum, if any, and the basis for compensation for the Work ordered; and
The extent of the adjustment in the Contract Time, if any.
A Change Order or Change Directive will become effective when signed by Owner, notwithstanding that Contractor has not signed it. A Change Order will become effective without Contractor’s signature, provided Owner indicates same thereon (by indicating it as a “unilateral change order”).
All changes in any plans and specifications approved by any authority with jurisdiction may also require addenda or change orders approved by that authority.
Where Owner requests, a performance bond rider covering the changed Work must be executed and delivered to Owner before proceeding with the changed Work or shortly in time thereafter.
Procedures and Pricing of Changed Work
Procedures for changed work and pricing of changed work, claims and all forms of extra compensation, are set forth in Section 01 2600 (Modification Procedures).
TIME ALLOWANCES
Time Allowances
Time is of the essence. Contract Time may only be changed by Change Order, and all time limits stated in the Contract Documents are to mean that time is of the essence.
Float. Float shall be treated as a Project resource. Contractor shall not be entitled to a time extension for impacts that consume float, but do not impact the critical path.
Time extensions will not be granted unless substantiated by the Critical Path Method (CPM) Schedule, and then not until the CPM project float becomes zero. If Contractor fails to submit a Time Impact Evaluation (TIE), as required by Section 01 2600 (Modification Procedures) and Section 01 3200 (Progress Schedules and Reports), within the required time period, then Contractor shall be deemed to have agreed that there is no time impact and that Contractor has irrevocably waived its rights to any additional Contract Time.
Excusable Delay and Inexcusable Delay Defined
Excusable Delay. Subject to the provisions on Notice of Delay below, Contract Time may be adjusted in an amount equal to the time lost due to:
Changes in the Work ordered by Owner (Changes);
Acts or neglect by Owner, Architect, any Owner Representative, utility owners or other contractors performing other work, not permitted or provided for in the Contract Documents, provided that Contractor has performed its responsibilities under the Contract Documents (including, without limitation, pre-bid investigations) (Acts or Neglect); or
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Acts of God, fires, floods, earthquake, other natural disasters, epidemics and pandemics (other than COVID-19 or variants), abnormal weather conditions beyond the parameters otherwise set forth in this Article, nuclear accidents, strikes, lockouts, freight embargos, interruptions in service by a regulated utility, or governmental statutes or regulations enacted or imposed after the fact (together, “force majeure events”), provided damages or delays resulting therefrom are not the result of Contractor’s fault or negligence, including without limitation failure to protect the Work or mitigate any adverse impacts as required by Contract Documents (Force Majeure).
Inexcusable Delay. Contract Time shall not be extended for any period of time where Contractor (and/or any Subcontractor) is delayed or prevented from completing any part of the Work due to a cause that is within Contractor’s risk or responsibility under the Contract Documents. Delays attributable to or within the control of a Subcontractor, or its subcontractors, or supplier, are deemed delays within the control of Contractor.
Notice of Delay
Within seven Days of the beginning of any delay (excepting adverse weather delays), Contractor shall notify Owner in writing, by submitting a notice of delay that shall describe the anticipated delays resulting from the delay event in question. If Contractor requests an extension of time, Contractor shall submit a TIE, in accordance with by Section 01 2600 (Modification Procedures) and Section 01 3200 (Progress Schedules and Reports), within ten days of the notice of delay.
Owner will determine all claims and adjustments in the Contract Time. No claim for an adjustment in the Contract Time will be valid and such claim will be waived if not submitted in accordance with the requirements of this subparagraph. In cases of substantial compliance with the seven-day notice requirement here (but not to exceed twenty-one days from the beginning of the delay event), Owner may in its sole discretion recognize a claim for delay accompanied with the proper TIE, provided Contractor also shows good faith and a manifest lack of prejudice to Owner from the late notice.
Compensable Time Extensions
Subject to other applicable provisions of the Contract Documents, Contractor may be entitled to adjustment in Contract Sum in addition to Contract Time for:
Excusable delay caused solely by Changes in the Work ordered by Owner, as provided above, and/or
Excusable delay caused solely by Acts or Neglect by Owner or other person, as provided above.
Non-Compensable Time Extensions
Subject to other applicable provisions of the Contract Documents, Contractor may be entitled to adjustment in Contract Time only, without adjustment in Contract Sum, for Periods of excusable delay caused solely by weather or Force Majeure events as provided above in this Article, or
Periods of concurrent delay, where delay results from two or more causes, one of which is compensable (resulting from Changes or Acts or Neglect as set forth above in this Article), and the other of which is non-compensable or unexcusable, such as: acts or neglect of Contractor, Subcontractors or others for whom Contractor is responsible; other acts, omissions and conditions which would not entitle Contractor to adjustment in Contract Time; adverse weather; and/or actions of Force Majeure as provided above in this Article.
Adverse Weather
Adverse weather delays may be allowed only if the number of workdays of adverse weather exceeds the parameters listed or referenced immediately below in this subparagraph and Contractor proves that adverse weather actually caused delays to work on the critical path.
Contractor shall give written notice of intent to claim an adverse weather day within one Day of the adverse weather day occurring.
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Claims for extension of time for rain delay will not be granted unless the number of days work is prevented by rain exceeds [insert either] 100% of the historical average number of rain days for the period of the Contract Time, based on the records of the National Oceanic & Atmospheric Administration (NOAA) weather station identified in Supplemental Conditions or, if not, the station closest to the Project Site (in either case, Weather Station), as measured and reported by NOAA. (For example, for California, Oregon and Washington, these figures are contained in the “>=0.10 inch” column at the applicable weather station’s “General Climate Summary Table” for “Precipitation” at http://www.wrcc.dri.edu/climate-summaries/), pro-rated in the individual month Contractor starts and finishes Work. [or] the total number of adverse weather days indicated in the Supplemental Conditions, based on the records of the National Oceanic & Atmospheric Administration National Weather Service (NOAA) weather station identified in Supplemental Conditions or, if not, the station closest to the Project Site (in either case, Weather Station). [Whichever of the above alternatives is selected, continue] Delays due to adverse weather conditions will not be allowed for weather conditions that fall within these parameters.
In order to qualify as an adverse weather delay day with respect to the foregoing parameters, daily rainfall must exceed 0.1 inch at the Weather Station, as measured and reported by NOAA.
Notwithstanding these allowances, Contractor shall at all times employ all available mitigation measures to enable Work to continue, Contractor shall take reasonable steps to mitigate potential weather delays, such as dewatering the Site, lime treatment, and covering Work and material that could be affected adversely by weather. Failure to do so shall be cause for Owner to not grant a time extension due to adverse weather, where Contractor could have avoided or mitigated the potential delay by exercising reasonable care.
Contractor shall include the foregoing precipitation parameters as a monthly activity in its progress schedule. As Work on the critical path is affected by precipitation, Contractor shall notify Owner and request that the days be moved to the affected activities. Any adverse weather days remaining shall be considered Project float available to either Owner or Contractor.
Adverse weather delay for precipitation shall be recognized for the actual period of time Contractor proves it was delayed by precipitation exceeding the specified parameters. For example, and not by way of limitation, if precipitation exceeding the specified parameters does not in fact delay Contractor’s progress on the critical path, then no time extension shall be recognized; and conversely, if Contractor proves to Owner’s satisfaction that precipitation exceeding the specified parameters causes delay to Contractor for a period longer than the number of precipitation days incurred (e.g., if it rains or snows during grading work), then Contractor shall be entitled to a time extension equal to the actual period of such delay.
During unfavorable weather, wet ground, or other unsuitable construction conditions, Contractor shall employ best practices to protect the Work, manage the construction site and rainwater during inclement weather. Persons performing the Work shall examine surfaces to receive their Work and shall report in writing to Contractor, with copy to Owner representative and the Architect conditions detrimental to the Work. Failure to examine and report discrepancies makes the Contractor responsible, at no increase in Contract Sum, for corrections Owner may require.
Commencement of Work constitutes acceptance of surface.
Liquidated Damages
Time is of the essence. Execution of Contract Documents by Contractor shall constitute its acknowledgement that Owner will actually sustain damages in the form of Contract administration expenses (such as Project management and consultant expenses) in the amount fixed in the Contract Documents for each and every Day during which completion of Work required is delayed beyond expiration of time fixed for completion plus extensions of time allowed pursuant to provisions hereof.
Contractor and Owner agree that because of the nature of the Project, it would be impractical or extremely difficult to fix the amount of such actual damages incurred by Owner because of a delay in completion of all or any part of the Work. Contractor and Owner agree that specified measures of liquidated damages shall be presumed to be the amount of such damages actually sustained by Owner, and that because of the nature of the Project, it would be impracticable or extremely difficult to fix the actual damages.
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Liquidated damages for delay shall cover administrative, overhead, interest on bonds, and general loss of public use damages suffered by Owner as a result of delay. Liquidated damages shall not cover the cost of completion of the Work, damages resulting from Defective Work, lost revenues or costs of substitute facilities, or damages suffered by others who then seek to recover their damages from Owner (for example, delay claims of other contractors, subcontractors, tenants, or other third-parties), and defense costs thereof. Owner may deduct from any money due or to become due to Contractor subsequent to time for completion of entire Work and extensions of time allowed pursuant to provisions hereof, a sum representing then-accrued liquidated damages.
Contractor and Owner agree that the Key Personnel listed in Contractor’s Statement of Qualifications (Document 00 4513) were a material factor in Owner’s assessment of Contractor’s experience and the adequacy of Contactor’s supervisory personnel. Accordingly, Contractor and Owner agree that Contractor shall not remove, reassign or make changes to any of the Key Personnel without Owner’s prior written approval. In the event that any Key Personnel leaves the Project, is reassigned and/or is removed and replaced by Contractor before Project Final Completion, for any reason other than departure from Contractor, Contractor agrees to pay Owner liquidated damages as set forth in the Agreement (Document 00 5200), unless Contractor can demonstrate to Owner’s satisfaction that the Key Personnel were reassigned and/or removed and replaced for reasons beyond Contractor’s control.
CLAIMS BY CONTRACTOR
Obligation to File Claims for Disputed Work
Should it appear to Contractor that the Work to be performed or any of the matters relative to the Contract Documents are not satisfactorily detailed or explained therein, or should any questions arise as to the meaning or intent of the Contract Documents, or should any dispute arise regarding the true value of any work performed, work omitted, extra work that the Contractor may be required to perform, time extensions, payment to the Contractor during performance of this Contract, performance of the Contract, and/or compliance with Contract procedures, or should Contractor otherwise seek extra time or compensation FOR ANY REASON WHATSOEVER (collectively, Disputed Work), then Contractor shall first follow procedures set forth in the Contract Documents (including, without limitation, Paragraphs 11.03, 11.04, 13.03 and 13.04 of this Document 00 7200 and Section 01 2600.) If a dispute remains, then Contractor shall give written notice to Owner that expressly invokes this Article 12. Owner shall decide the issue in writing within 15 days; and Owner’s written decision shall be final and conclusive. If Contractor disagrees with Owner’s decision, or if Contractor contends that Owner failed to provide a decision timely, then Contractor’s SOLE AND EXCLUSIVE REMEDY is to file a written claim within the time limits set forth in Paragraph 12.02 of this Article setting forth Contractor’s position as required herein.
Duty to Work During Disputes. Notwithstanding any dispute or Disputed Work, Contractor shall continue to prosecute the Work and the Disputed Work in accordance with the Owner’s determinations. Contractor’s SOLE AND EXCLUSIVE REMEDY for Disputed Work is to file a written claim within the time limits set forth in Paragraph 12.02 of this Article setting forth Contractor’s position as required herein.
Form and Contents of Claim
Contractor’s written claim must identify itself as a Claim under this Article 12 and must include the following: (i) a narrative of pertinent events; (ii) citation to contract provisions; (iii) theory of entitlement; (iv) complete pricing of all cost impacts; (v) a Time Impact Evaluation of all time delays that shows actual time impact on the critical path; (vi) documentation supporting items (i) through (v); and (vii) a verification under penalty of perjury of the claim’s accuracy. The Claim shall be submitted to Owner within thirty (30) calendar days of receiving Owner’s written decision, or the date Contractor contends such decision was due, and shall be priced like a change order according to Section 01 2600, and must be updated monthly as to cost and entitlement if a continuing claim. Routine contract materials, for example, correspondence, RFI, Change Order
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requests, or payment requests shall not constitute a claim. Contractor shall bear all costs incurred in the preparation and submission of a claim.
Regarding delay and impact costs of any nature, Contractor may not seek delay compensation for on-Site or off-Site costs based on formulas, e.g., “Eichleay” or other formula. Rather, Contractor shall prove actual costs resulting from such delays. If Contractor requests compensation for delay to the construction, then Contractor shall prove and document actual costs plus markup per the cost categories and procedures in Section 01 2600 (Modification Procedures) in order to request, claim or prove compensation for delay.
Administration During/After Claim Submission
Owner may render a final determination based on the Claim or may in its discretion conduct an administrative hearing on Contractor’s claim, in which case Contractor shall appear, participate, answer questions and inquiries, and present any further evidence or analysis requested by Owner prior to rendering a final determination. Should Owner take no action on the Claim within 45 days of submission, it shall be deemed denied.
Notwithstanding and pending the resolution of any claim or dispute, Contractor shall diligently prosecute the disputed work to final completion in accordance with Owner’s determination.
Public Contract Code Section 9204 specifies provisions on resolving contract claims of any size, and Public Contract Code Section 20104, et seq., specifies required provisions on resolving contract claims less than $375,000. Those statutes constitute a part of this Contract. In the event any other Contract provision violates such statutes, the applicable statute controls. See Section 01 4100.
Compliance
The provisions of this Article 12 constitute a non-judicial claim settlement procedure that, pursuant to Government Code Section 930.2, shall constitute a condition precedent to submission of a valid Government Code Claim under the Government Code. Contractor shall bear all costs incurred in the preparation, submission and administration of a claim. Any claims presented in accordance with the Government Code must affirmatively indicate Contractor’s prior compliance with the claims procedure herein and the previous dispositions under Paragraph
12.03 above of the claims asserted. No suit may be brought against Owner arising out of or in connection with the Project unless and until Contractor presents to Owner a statutory Government Code Claim, in accordance with Government Code Sections 910, et seq. Pursuant to Government Code Section 930.2, the one-year period in Government Code section 911.2 shall be reduced to 150 days from either accrual of the cause of action, substantial completion or termination of the contract, whichever occurs first; in all other respects, the Government Code shall apply unchanged.
Failure to submit and administer claims as required in Article 12 shall waive Contractor’s right to claim on any specific issues not included in a timely submitted claim. Claim(s) or issue(s) not raised in a timely protest and timely claim submitted under this Article 12 may not be asserted in any subsequent litigation, Government Code Claim, or legal action.
Contractor shall present as its claims all Subcontractor, sub-Subcontractor and supplier claims of any type, and prove them under the terms of the Contract Documents. Owner shall not be directly liable to 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 or extra costs of any type arising out of or resulting from the Project.
Owner shall not be deemed to waive any provision under this Article 12, if at Owner’s sole discretion, a claim is administered in a manner not in accord with this Article 12. Waivers or modifications of this Article 12 may only be made a signed change order approved as to form by legal counsel for both Owner and Contractor; oral or implied modifications shall be ineffective.
Mediation
All Contractor claims not otherwise subject to Public Contract Code Sections 20104, et seq., shall, as a condition precedent to litigation thereon, first be mediated. Mediation shall be confidential, non-binding, pursuant to the construction mediation procedures of JAMS in Pacifica, California, and utilize the services of a mediator mutually acceptable to the parties. If the parties
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are unable to agree, the mediator will be selected by JAMS from its panel of approved construction industry mediators, having a minimum of 20 years’ experience in the construction industry.
All statutes of limitation shall be tolled from the date of the demand for mediation until a date two weeks following the mediation’s conclusion. All unresolved Contractor claims shall be submitted to the same mediator. The cost of mediation shall be equally shared by all parties to the mediation. The parties shall, prior to the commencement of a mediation pursuant to this Paragraph, upon notice of the other party, exchange relevant, non-privileged project documents in compliance with Code of Civil Procedure Sections 2031.010, et seq. Additionally, the parties may agree mutually to engage in additional discovery prior to mediation. Should the parties proceed with additional discovery, they shall, unless mutually agreed otherwise, comply with Code of Civil Procedure Sections 2019, et. seq. The Mediator will have jurisdiction to resolve any discovery disputes relating to the Mediation.
UNDERGROUND CONDITIONS
Contractor to Locate Underground Facilities
During construction, Contractor shall comply with Government Code Sections 4216 to 4216.9, and in particular Section 4216.2 which provides, in part: “Except in an emergency, an excavator planning to conduct an excavation shall notify the appropriate regional notification center of the excavator’s intent to excavate at least two working days, and not more than 14 calendar days, before beginning that excavation. The date of the notification shall not count as part of the twoworking-day notice. If an excavator gives less notice than the legal excavation start date and time and the excavation is not an emergency, the regional notification center will take the information and provide a ticket, but an operator has until the legal excavation start date and time to respond.
However, an excavator and an operator may mutually agree to a different notice and start date.
The contact information for operators notified shall be available to the excavator.” Contractor shall contact USA, and schedule the Work to allow ample time for the center to notify its members and, if necessary, for any member to field locate and mark its facilities. Contractor is charged with knowledge of all subsurface conditions reflected in USA records. Prior to commencing excavation or trenching work, Contractor shall provide Owner with copies of all USA records secured by Contractor. Contractor shall advise Owner of any conflict between information provided in Document 00 3132 (Geotechnical Data and Existing Conditions), the Drawings and that provided by USA records. Contractor’s excavation shall be subject to and comply with the Contract Documents.
Contractor shall also investigate the existence of existing service laterals, appurtenances or other types of utilities, indicated by the presence of an underground transmission main or other visible facilities, such as buildings, manholes, new asphalt, meters and junction boxes, on or adjacent to the Site, even if not shown or indicated in Existing Conditions Data, Contract Documents, or USA records, or discovered during Contractor’s pre- or post-bid investigation. Contractor shall immediately secure all such available information and notify Owner and the utility owner, in writing, of its discovery.
Contractor to Protect Underground Facilities
At all times during construction, all operating Underground Facilities shall remain in operation, unless the Contract Documents expressly indicate otherwise. Contractor shall maintain such Underground Facilities in service where appropriate; shall repair any damage to them caused by the Work; and shall incorporate them into the Work, including reasonable adjustments to the design location (including minor relocations) of the existing or new installations. Contractor shall take immediate action to restore any in service installations damaged by Contractor’s operations.
Prior to performing Work at the Site, Contractor shall lay out the locations of Underground Facilities that are to remain in service and other significant known underground installations indicated by the Existing Conditions Data, Contract Documents, USA records, or any material otherwise reasonably available to Contractor or discovered during Contractor’s pre- or post-bid investigations. Contractor shall further locate, by carefully excavating with small equipment,
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potholing and principally by hand, all such utilities or installations that are to remain and that are subject to damage. If additional utilities whose locations are unknown are discovered, Contractor shall immediately report to Owner for disposition of the same. Additional compensation or extension of time on account of utilities not shown or otherwise brought to Contractor’s attention, including reasonable action taken to protect or repair damage, shall be determined as provided in this Document 00 7200.
If during construction, an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown, indicated, or discovered in the materials and investigations described in Paragraph 13.02B, above, then Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby (and in no event later than seven Days), and prior to performing any Work in connection therewith (except in an emergency), identify the owner of such Underground Facility and give written notice to that owner and to Owner. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility.
The cost of all of the following will be included in the Contract Sum and Contractor shall have full responsibility for (a) reviewing and checking all available information and data including, without limitation, Existing Conditions Data, and information on file at USA; (b) locating all Underground Facilities shown or indicated in the Contract Documents or reasonably available information, or indicated by visual observation including, without limitation, and by way of example only, through performance of all pre-Bid investigations required by this Document 00 7200 and Bidding Documents and post-Bid investigations required by this Document 00 7200, and by engaging qualified locating services and all necessary backhoeing and potholing; (c) coordination of the Work with the owners of such Underground Facilities during construction; and (d) the safety and protection of all such Underground Facilities and repairing any damage thereto resulting from the Work.
Consistent with Government Code Section 4215, as between Owner and Contractor, Owner will be responsible for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Site only if such utilities are not identified in the Contract Documents or information made available for bidding. Owner will compensate for the cost of locating and repairing damage not due to Contractor’s failure to exercise reasonable care, removing and relocating such main or trunk line utility facilities not indicated in the Contract Documents or information made available for bidding with reasonable accuracy, and equipment on the Project necessarily idled during such Work. Contractor shall not be assessed liquidated damages for delay in completion of the Project, when such delay was caused by the failure of Owner or the utility to provide for removal or relocation of such utility facilities.
Concealed or Unknown Conditions
If either of the following conditions is encountered at Site when digging trenches or other excavations that extend deeper than four feet below the surface, Contractor shall give a written Notice of Differing Site Conditions to Owner promptly before conditions are disturbed, except in an emergency as set forth in this Document 00 7200, and in no event later than seven Days after first observance of:
Subsurface or Latent physical conditions which differ materially from those indicated in the Contract Documents; or
Unknown physical conditions of an unusual nature or which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents.
In response to Contractor’s Notice of Differing Site Conditions under this Paragraph, Owner will investigate the identified conditions, and if they differ materially and cause increase or decrease in Contractor’s cost of, or time required for, performance of any part of the Work, Owner will negotiate the appropriate change order following the procedures set forth in the Contract Documents. If Owner determines that physical conditions at the Site are not Latent or are not materially different from those indicated in Contract Documents or that no change in terms of the Contract Documents is justified, Owner will so notify Contractor in writing, stating reasons (with Contractor retaining its rights under Article 12 of this Document 00 7200.)
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Packet Pg. 296 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 21 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
Contractor shall not be entitled to any adjustment in the Contract Sum or Contract Time regarding claimed Latent or materially different Site conditions (whether above or below grade) if Contractor knew or should have known of the existence of such conditions at the time Contractor submitted its Bid, failed to give proper notice, or relied upon information, conclusions, opinions or deductions of the kind that the Contract Documents preclude reliance upon.
Regarding Underground Facilities, Contractor shall be allowed an increase in the Contract Sum or an extension of the Contract Time, or both, to the extent that they are attributable to the existence of any Underground Facility that is owned and was built by Owner only where the Underground Facility:
Was not shown or indicated in the Contract Documents or in the information supplied for bidding purposes or in information on file at USA; and
Contractor did not know of it; and
Contractor could not reasonably have been expected to be aware of it or to have anticipated it from the information available. (For example, if surface conditions such as pavement repairs, valve covers, or other markings, indicate the presence of an Underground Facility, then an increase in the Contract Sum or an extension of the Contract Time will not be due, even if the Underground Facility was not indicated in the Contract Documents, in the information supplied to Contractor for bidding purposes, in information on file at USA, or otherwise reasonably available to Contractor.) Contractor shall bear the risk that Underground Facilities not owned or built by Owner may differ in nature or locations shown in information made available by Owner for bidding purposes, in information on file at USA, or otherwise reasonably available to Contractor. Underground Facilities are inherent in construction involving digging of trenches or other excavations on Owner’s Project, and Contractor is to apply its skill and industry to verify the information available.
Contractor’s compensation for claimed Latent or materially different Site conditions shall be limited to the actual, reasonable, incremental increase in cost of that portion of the Work, resulting from the claimed Latent or materially different Site conditions. Such calculation shall take into account the estimated value of that portion of the Work and the actual value of that portion of the Work, using for guidance Contractor’s or its subcontractor’s bid amount and actual amounts incurred for that portion of the Work and the reasonable expectation (if any) of differing or difficult site conditions in the Work area based on the available records and locale of the Work. For example, if Contractor excavates in an area unexpected, then such costs would be recoverable entirely; while if Contractor extends an existing excavation, then such costs would be recoverable if the resulting excavation costs in that work area exceeded the reasonable expectations therefore.
Notice of Hazardous Waste or Materials Conditions
Contractor shall give a written Notice of Hazardous Materials Condition to Owner promptly, before any of the following conditions are disturbed (except in an emergency as set forth in this Document 00 7200), and in no event later than 24 hours after first observance of any:
Material that Contractor believes may be hazardous waste or hazardous material, as defined in Section 25117 of the California Health and Safety Code (including, without limitation, Asbestos, lead, PCBs, petroleum and related hydrocarbons, and radioactive material) that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law (hazardous material); or Other material that may present an imminent substantial danger to persons or property exposed thereto in connection with Work at the Site (other materials).
Except as otherwise provided in the Contract Documents or as provided by applicable law, Contractor shall not be required to give any notice for the disturbance or observation of any such hazardous materials or other materials where such matter is disturbed or observed as part of the scope of Work under the Contract Documents (such as hazardous waste or hazardous material investigation, remediation or disposal activities which are identified as the subject of Work under the Contract Documents), where Contractor complies with all requirements in the Contract Documents and applicable law respecting such materials.
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Packet Pg. 297 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 22 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
Contractor’s Notice of Hazardous Materials Condition shall indicate whether the hazardous materials or other materials were shown or indicated in the Contract Documents to be within the scope of Work, and whether the hazardous materials or other materials were brought to the Site by Contractor, its Subcontractors, suppliers, or anyone else for whom Contractor is responsible.
Contractor shall not be entitled to any adjustment in the Contract Sum or Contract Time regarding claimed hazardous waste or materials if:
Contractor knew of the existence of such hazardous materials or other materials at the time Contractor submitted its Bid; or
Contractor should have known of the existence of such hazardous material or other materials as a result of its having the responsibility to obtain additional or supplementary examinations, investigation, explorations, tests, studies, and data concerning the conditions at or contiguous to the Site prior to submitting its Bid; or Contractor failed to give the written notice within the required timeframe set forth below.
If Owner determines that conditions involve hazardous materials or other materials and that a change in Contract Document terms is justified, Owner will issue either a Request for Proposal or Construction Change Directive under the procedures described in the Contract Documents. If Owner determines that conditions do not involve hazardous materials or other materials or that no change in Contract Document terms is justified, Owner will notify Contractor in writing, stating the reasons for its determination.
In addition to the parties’ other rights under this Document 00 7200, if Contractor does not agree to resume Work based on a reasonable belief that it is unsafe, or does not agree to resume Work under special conditions, Owner may order the disputed portion of Work deleted from the Work, or performed by others, or Owner may invoke its right to terminate Contractor’s right to proceed under the Contract Documents in whole or in part, for convenience or for cause as the facts may warrant.
If Contractor does not agree with any Owner determination of any adjustment in the Contract Sum or Contract Time under this Article, Contractor may make a claim as provided in Article 12 of this Document 00 7200.
LEGAL AND MISCELLANEOUS
Laws and Regulations
Contractor shall keep fully informed of and shall comply with all laws, ordinances, regulations and orders of any properly constituted authority affecting the Contract Documents, Work and persons connected with Work, and shall protect and indemnify Owner and its officers, employees, consultants and agents against any claim or liability, including attorney’s fees, arising from or based on violation of law, ordinance, regulation or order, whether by Contractor or by Subcontractors, employees or agents. Authorized persons may at any time enter upon any part of Work to ascertain compliance of all applicable laws, ordinances, regulations and orders.
Permits and Taxes
Contractor shall procure all permits and licenses applicable to the Work (including environmental matters to the extent applicable); pay all charges and fees, including fees for street opening permits; comply with, implement and acknowledge effectiveness of all permits; initiate and cooperate in securing all required notifications or approvals therefore; and give all notices necessary and incident to due and lawful prosecution of Work, unless otherwise provided herein.
Owner will pay applicable building permits, sanitation and water fees for the completed construction, except as otherwise provided in the Contract Documents. Contractor shall pay all sales and/or use taxes levied on materials, supplies, or equipment purchased and used on or incorporated into Work, and all other taxes properly assessed against equipment or other property used in connection with Work, without any increase in the Contract Sum. Contractor shall make necessary arrangements with proper authorities having jurisdiction over roads, streets, pipelines, navigable waterways, railroads, and other works in advance of operations, even where Owner may have already obtained permits for the Work.
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Packet Pg. 298 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 23 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
Communications and Information Distribution
All communications recognized under the Contract Documents shall be in writing, in the form of a serialized document, by type of communication. For example, RFI’s shall be serialized beginning with RFI No. 1; payment applications shall be serialized beginning with Payment Application No. 1, submittals shall be serialized per specification section and transmitted with transmittal sheets beginning with Transmittal No. 1; and correspondence shall be serialized beginning with letter No.
1. Contractor may propose other record management and identification systems or protocols, intended to facilitate orderly transmittal of project information, storage and retrieval of such information, which Owner will review consistent with these stated objectives, and accept or reject in its sole discretion.
Documents Requiring Signatures. All documents requiring signatures for approval prior to implementing action, as stipulated in other portions of Contract Documents, shall require a manually signed, serialized letter delivered to the other party at its address for notice otherwise specified in the Contract Documents, either personally or by mail.
Electronic data transfer of such correspondence will serve to expedite preliminary concurrence of information, only. Receipt of “hard copy” signature on forms is required prior to implementing action or work as the conditions may require. For example, change orders and authorizations for extra cost, require signatures. A party may acknowledge receipt of PDF copies of required correspondence by e-mail, but in the absence of such acknowledgment, mail or personal delivery is required.
All emails shall be copied to Owner’s and Contractor’s Project Representative. Owner reserves the right to preclude e-mail communication, in whole or in part, as Project needs may require.
Communication between Owner and Contractor shall not be via Twitter, Facebook, or other types of instant text message systems. Any such communications shall be inadmissible for any purpose related to this Contract.
Suspension of Work
Owner may, without cause, order Contractor in writing to suspend, delay or interrupt Work in whole or in part for such period of time as Owner may determine. An adjustment shall be made for increases in cost of performance of Work of the Contract Documents caused by any such suspension, delay or interruption, calculated using the measures set forth in Section 01 2600 (Modification Procedures). No adjustment shall be made to extent that performance is, was or would have been so suspended, delayed or interrupted by another cause for which Contractor is responsible.
Termination of Contract for Cause
Owner may declare Contractor in default and terminate Contractor’s right to proceed under the Contract Documents, for cause, should Contractor be the subject of a voluntary or involuntary petition in bankruptcy or admit in writing its inability to pay debts as they may become due. The Contractor shall be in default of the Contract Documents and Owner may terminate the Contractor's right to proceed under the Contract Documents, for cause, in whole or in part, should the Contractor commit a material breach of the Contract Documents and not cure such breach within ten (10) calendar days of the date of notice from Owner to the Contractor demanding such cure; or, if such breach is curable but not curable within such ten (10) day period, within such period of time as is reasonably necessary to accomplish such cure. (In order for the Contractor to avail itself of a time period in excess of 10 calendar days, the Contractor must provide Owner within the ten (10) day period with a written cure plan acceptable to Owner that demonstrates actual resources, personnel and a schedule to promptly to cure said breach, and then diligently commence and continue such cure according to the written plan) If Owner at any time reasonably believes that Contractor is or may be in default under the Contract Documents as provided above, then Owner may in its sole discretion notify Contractor of this fact and request written assurances from Contractor of performance of Contract Documents and a written plan from Contractor to remedy any default under the terms of Contract Documents that Owner may advise Contractor of in writing. Contractor shall, within ten (10) Days of Owner’s request, deliver a written cure plan that meets the requirements of the written cure plan as
9.b
Packet Pg. 299 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
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defined above. Failure of Contractor to provide such written assurances of performance and the required written cure plan within ten (10) Days of request will constitute a material breach of Contract Documents sufficient to justify termination for cause.
In the event of termination by Owner for cause as provided herein, the Contractor shall deliver to Owner possession of the Work in its then condition including, without limitation, all designs, engineering, Project records, cost data of all types, plans and specifications and contracts with vendors and subcontractors, all other documentation associated with the Project, and all construction supplies and aids dedicated solely to performing the Work which, in the normal course of construction, would be consumed or only have salvage value at the end of the construction period. The Contractor shall remain fully liable for the failure of any Work completed and materials and equipment provided through the date of such termination to comply with the provisions of the Contract Documents. The provisions of this Section shall not be interpreted to diminish any right that Owner may have to claim and recover damages for any breach of the Contract Documents or otherwise, but rather, the Contractor shall compensate Owner for all loss, cost, damage, expense, and/or liability suffered by Owner as a result of such termination and/or failure to comply with the Contract Documents.
In the event a termination for cause is later determined to have been made wrongfully or without cause, then the termination shall be treated as a termination for convenience, and the Contractor shall have no greater rights than it would have had following a termination for convenience. Any Contractor claim arising out of a termination for cause shall be made in accord with Article 12 herein. No other loss, cost, damage, expense or liability may be claimed, requested or recovered by the Contractor.
Termination of Contract for Convenience
Owner may terminate performance of the Work under the Contract Documents in accordance with this clause in whole, or from time to time in part, whenever Owner shall determine that termination is in Owner’s best interest. Termination shall be effected by Owner delivering to the Contractor notice of termination specifying the extent to which performance of the Work under the Contract Documents is terminated, and the effective date of the termination.
Contractor shall comply strictly with Owner’s direction regarding the effective date of the termination, the extent of the termination, and shall stop work on the date and to the extent specified.
Contractor shall be entitled to a total payment on account of the Contract work so terminated measured by (i.) the actual cost to Contractor of Work actually performed, up to the date of the termination, with profit and overhead limited to twelve percent (12%) of actual cost of work performed, up to but not exceeding the actual contract value of the work completed as measured by the Schedule of Values and Progress Schedule, (ii.) offset by payments made and other contract credits. In connection with any such calculation, however, Owner shall retain all rights under the Contract Documents including, without limitation, claims, indemnities, or setoffs.
Under no circumstances may Contractor recover legal costs of any nature, nor may Contract recover costs incurred after the date of the termination.
Contingent Assignment of Subcontracts
Contractor hereby assigns to Owner each Subcontract for a portion of the Work, provided that:
The assignment is effective only after Owner’s termination of Contractor’s right to proceed under the Contract Documents (or portion thereof relating to that Subcontract) as set forth herein.
The assignment is effective only for the Subcontracts which Owner expressly accepts by notifying the Subcontractor in writing;
The assignment is subject to the prior rights, if any, of the Surety, obligated by Document 00 6113.13 (Construction Performance Bond) provided under the Contract Documents, where the Surety exercises its rights to complete the Contract; After the effectiveness of an assignment, Contractor shall, at its sole cost and expense (except as otherwise provided in this Document 00 7200), sign all instruments and take all
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Packet Pg. 300 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 25 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
actions reasonably requested by Owner to evidence and confirm the effectiveness of the assignment in Owner; and
Nothing in this Paragraph shall modify or limit any of Contractor’s obligations to Owner arising from acts or omissions occurring before the effectiveness of any Subcontract assignment including, without limitation, all defense, indemnity and hold-harmless obligations arising from or related to the assigned Subcontract.
Remedies and Contract Integration
Subject to Contract Documents provisions regarding Contractor claims, claim review, and claim resolution, and subject to the limitations therein, the exclusive jurisdiction and venue for resolving all claims, counter claims, disputes and other matters in question between Owner and Contractor arising out of or relating to Contract Documents, any breach thereof or the Project shall be the applicable court of competent jurisdiction located in the State and County where the Project is located. All Owner remedies provided in the Contract Documents shall be taken and construed as cumulative and not exclusive; that is, in addition to each and every other remedy herein provided; and in all instances Owner shall have any and all other equitable and legal rights and remedies which it would have according to law.
The Contract Documents, any Contract Modifications, Change Orders and Change Directives, as further described in Section 01 2600, shall represent the entire and integrated agreement between Owner and Contractor regarding the subject matters hereof and thereof and shall constitute the exclusive statement of the terms of the parties’ agreement. The Contract Documents, and any Contract Modifications and Change Orders, shall supersede any and all prior negotiations, representations or agreements, written or oral, express or implied, that relate in any way to the subject matter of the Contract Documents or written Modifications. Owner and Contractor represent and agree that, except as otherwise expressly provided in the Contract Documents, they are entering into the Contract Documents and any subsequent written Modification in sole reliance upon the information set forth or referenced in the Contract Documents or Contract Modifications; the parties are not and will not rely on any other information, which shall be inadmissible in any proceeding to enforce these documents.
Either party’s waiver of any breach or failure to enforce any of the terms, covenants, conditions or other provisions of the Contract Documents at any time shall not in any way affect, limit, modify or waive that party’s right thereafter to enforce or compel strict compliance with every term, covenant, condition or other provision hereof, any course of dealing or custom of the trade or oral representations notwithstanding.
Neither acceptance of the whole or any part of Work by Owner nor any verbal statements on behalf of Owner or its authorized agents or representatives shall operate as a waiver or modification of any provision of the Contract Documents, or of any power reserved to Owner herein nor any right to damages provided in the Contract Documents.
Interpretation
Should any part, term or provision of this Contract or any of the Contract Documents, or any document required herein or therein to be executed or delivered, be declared invalid, void or unenforceable, all remaining parts, terms and provisions shall remain in full force and effect and shall in no way be invalidated, impaired or affected thereby. If the provisions of any law causing such invalidity, illegality or unenforceability may be waived, they are hereby waived to the end that this Contract and the Contract Documents may be deemed valid and binding agreements, enforceable in accordance with their terms to the greatest extent permitted by applicable law. In the event any provision not otherwise included in the Contract Documents is required to be included by any applicable law, that provision is deemed included herein by this reference (or, if such provision is required to be included in any particular portion of the Contract Documents, that provision is deemed included in that portion).
Contract Documents shall not be construed to create a contractual relationship of any kind between (i) Project Manager or any Owner’s representative and Contractor; (ii) Owner and/or its Representatives and a Subcontractor, sub-Subcontractor, or supplier of any Project labor, materials, or equipment; or (iii) between any persons or entities other than Owner and Contractor.
9.b
Packet Pg. 301 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 26 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
14.10 Patents
Fees or claims for any patented invention, article or arrangement that may be used upon or in any manner connected with performance of the Work or any part thereof shall be included in the Bid price for doing the Work. Contractor shall defend, indemnify and hold harmless Owner and each of its officers, employees, consultants and agents including, without limitation, the Board and each Owner’s Representative, from all damages, claims for damages, costs or expenses in law or equity, including attorney’s fees, arising from or relating to any claim that any article supplied or to be supplied under the Contract Documents infringes on the patent rights, copyright, trade name, trademark, service mark, trade secret or other intellectual property right of any person or persons or that the person or entity supplying the article does not have a lawful right to sell the same.
Such costs or expenses for which Contractor agrees to indemnify and hold harmless the above indemnities include but are not limited to any and all license fees, whether such fees are agreed by any indemnitee or ordered by a court or administrative body of any competent jurisdiction.
14.11 Substitution for Patented and Specified Articles
Except as noted specifically in Document 00 2113 (Instructions to Bidders) or in Contract Documents, whenever in Specifications, material or process is designated by patent or proprietary name or by name of manufacturer, such designation shall be deemed to be used for purpose of facilitating description of material and process desired, and shall be deemed to be followed by the words “or Approved Equal.” Contractor may offer any substitute material or process that Contractor considers “Equal” in every respect to that so designated and if material or process offered by Contractor is, in opinion of Owner, Equal in every respect to that so designated, its use will be approved. However, Contractor may utilize this right only by timely submitting Document 00 6325 (Substitution Request Form) as provided in Document 00 2113 (Instructions to Bidders). A substitution will be approved only if it is a true “or Equal” item in every aspect of its design and quality including, without limitation, its dimensions, weights, service requirements, durability, functioning, impact on contiguous construction elements, overall schedule and design.
14.12 Interest of Public Officers
No representative, officer, or employee of Owner no member of the governing body of the locality in which the Project is situated, no member of the locality in which Owner was activated, and no other public official of such locality or localities who exercises any functions or responsibilities with respect to the Project, during the tenure of the official or for one year thereafter, shall, as principal, agent, attorney or otherwise, be directly or indirectly interested, in the Contract Documents or the proceeds thereof.
14.13 Limit of Liability
OWNER, AND EACH OF ITS OFFICERS, BOARD MEMBERS, EMPLOYEES, CONSULTANTS
AND AGENTS INCLUDING, WITHOUT LIMITATION, PROJECT MANAGER AND EACH OTHER
OWNER REPRESENTATIVE, SHALL HAVE NO LIABILITY TO CONTRACTOR FOR SPECIAL,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES, EXCEPT TO THE LIMITED EXTENT THAT
THESE CONTRACT DOCUMENTS OR APPLICABLE PUBLIC CONTRACTING STATUTES MAY SPECIFY THEIR RECOVERY.
14.14 Public Records Act.
A. Contractor is aware that this Contract and any documents provided to the Owner may be subject to the California Public Records Act and may be disclosed to members of the public upon request. It is the responsibility of Contractor to clearly identify information in those documents it considers to be confidential under the California Public Records Act. To the extent that Owner agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.
WORKING CONDITIONS AND PREVAILING WAGES
Use of Site/Sanitary Rules
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Packet Pg. 302 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 27 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
All portions of the Work shall be maintained at all times in neat, clean and sanitary condition.
Contractor shall furnish toilets for use of Contractor’s and Subcontractors’ employees on the Site where needed, and their use shall be strictly enforced. All toilets shall be properly secluded from public observation, and shall be located, constructed and maintained subject to Owner’s approval.
Contractor shall confine construction equipment, the storage of materials and equipment and the operations of workers to the Site and land areas identified in and permitted by Contract Documents and other land and areas permitted by applicable laws and regulations, rights of way, permits and easements or as designated by Owner, and shall not unreasonably encumber the premises with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, any improvement located thereon, or to Owner or occupant thereof resulting from the performance of Work.
During the progress of the Work, Contractor shall keep the Site and the Project free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work, Contractor shall clean the site, remove all waste materials, rubbish and debris from and about the Site as well as all tools, appliances, construction equipment and machinery and surplus materials. Contractor shall leave the premises clean and ready for occupancy by Owner at Substantial Completion of Work. Contractor shall restore to original condition all property not designated for alteration by Contract Documents.
Contractor shall not load nor permit any part of any structure or pavement to be loaded in any manner that will endanger the structure or pavement, nor shall Contractor subject any part of Work or adjacent property to stresses or pressures that will endanger it. Contractor shall conduct all necessary existing conditions investigation regarding structural, mechanical, electrical or any other system existing, shall perform Work consistent with such existing conditions, and shall have full responsibility for insufficiencies or damage resulting from insufficiencies of existing systems, equipment or structures to accommodate performing the Work.
Protection of Work, Persons, and Property
Contractor shall be responsible for initiating, maintaining and supervising all safety and site security precautions and programs in connection with Work, and shall develop and implement a site security and safety plan throughout construction. Contractor shall comply with all safety requirements specified in any safety program established by Owner, or required by state, federal or local laws and ordinances. Contractor shall be responsible for all theft or damage to Work, property or structures, and all injuries to persons, either on the Site or constituting the Work (e.g., materials in transit), arising from the performance of Work of the Contract Documents from a cause.
Contractor shall comply with all applicable laws and regulations of any public body having jurisdiction for 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 Facilities and utility Owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property.
Contractor shall remedy all damage, injury or loss to any property referred to above in this Article, 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 Work or anyone for whose acts any of them may be liable. Contractor’s duties and responsibility for safety and for protection of Work shall continue until such time as all the Work is completed and Final Acceptance of the Work. Owner and its agents do not assume any responsibility for collecting any indemnity from any person or persons causing damage to Contractor’s Work.
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 programs.
Owner may, at its option, retain such moneys due under the Contract Documents as Owner deems necessary until any and all suits or claims against Contractor for injury to persons or property shall be settled and Owner receives satisfactory evidence to that effect.
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Packet Pg. 303 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 28 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
Work within the right-of-way lines of any City, County and/or State shall be done in accordance with the standards and specifications of the controlling agency. Permit for such work shall be obtained and paid for by the Contractor before executing the work within such right-of-ways.
Responsibility For Safety and Health
Contractor shall ensure that its and each tier of Subcontractors’ employees, agents and invitees comply with applicable health and safety laws while at the Site. These laws include the Occupational Safety and Health Act of 1970 and rules and regulations issued pursuant thereto, and Owner’s safety regulations as amended from time to time. Contractor shall comply with all Owner directions regarding protective clothing and gear.
Contractor shall be fully responsible for the safety of its and its Subcontractors’ employees, agents and invitees on the Site. Contractor shall notify Owner, in writing, of the existence of hazardous conditions, property or equipment at the Site that are not under Contractor’s control.
Contractor shall be responsible for taking all the necessary precautions against injury to persons or damage to the property of Contractor, Subcontractors or persons from recognized hazards until the responsible party corrects the hazard.
Contractor shall confine all persons acting on its or its Subcontractors’ behalf to that portion of the Site where Work under the Contract Documents is to be performed, Owner-designated routes for ingress and egress thereto, and any other Owner-designated area. Except those routes for ingress and egress over which Contractor has no right of control, within such areas, Contractor shall provide safe means of access to all places at which persons may at any time have occasion to be present.
Emergencies
In emergencies affecting the safety or protection of persons or Work or property at the Site or adjacent thereto, Contractor, without special instruction or authorization from Owner, is obligated to act to prevent threat and damage, injury or loss, until directed otherwise by Owner. Contractor shall give Owner prompt written notice if Contractor believes that any significant changes in Work or variations from Contract Documents have been caused thereby. If Owner determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Change Order or Construction Change Directive will be issued to document the consequences of such action.
Use of Roadways and Walkways
Contractor shall not unnecessarily interfere with use of any roadway, walkway or other facility for vehicular or pedestrian traffic. Before beginning any interference and only with Owner’s prior concurrence, Contractor may provide detour or temporary bridge for traffic to pass around or over the interference, which Contractor shall maintain in satisfactory condition as long as interference continues. Unless otherwise provided in the Contract Documents, Contractor shall bear the cost of these temporary facilities.
Nondiscrimination
No person or entity shall discriminate in the employment of persons upon public works because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sexual preference, or gender of such persons, except as provided in Government Code Section 12940. Every contractor for public works violating the provisions of Labor Code Section 1735 is subject to all the penalties imposed for a violation of Chapter 1, Part 7, Division 2 of the California Labor Code.
Prevailing Wages and Working Hours
Contractor shall pay to persons performing labor in and about Work provided for in the Contract Documents an amount equal to or more than the general prevailing rate of per diem wages for (i) work of a similar character in the locality in which the Work is performed and (ii) legal holiday and overtime work in said locality. The per diem wages shall be an amount equal to or more than the stipulated rates contained in a schedule that has been ascertained and determined by the Director of the State Department of Industrial Relations and Owner to be the general prevailing
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Bid Set - February 25, 2021
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rate of per diem wages for each craft or type of workman or mechanic needed to execute this Contract. Contractor shall also cause a copy of this determination of the prevailing rate of per diem wages to be posted at each Site.
Contractor shall forfeit, as a penalty to Owner, $200.00 for each laborer, worker, or mechanic employed in performing labor in and about the Work provided for in the Contract Documents for each Day, or portion thereof, that such laborer, worker or mechanic is paid less than the said stipulated rates for any Work done under the Contract Documents by him or her or by any Subcontractor under him or her, in violation of Articles 1 and 2 of Chapter 1 of Part 7 of Division II of the Labor Code. The sums and amounts that are forfeited pursuant to this Paragraph and the terms of the Labor Code shall be withheld and retained from payments due to Contractor under the Contract Documents, pursuant to this Document 00 7200 and the Labor Code, but no sum shall be so withheld, retained or forfeited except from the final payment without a full investigation by either the State Department of Industrial Relations or by Owner. The Labor Commissioner pursuant to Labor Code Section 1775 shall determine the final amount of forfeiture.
Contractor shall insert in every subcontract or other arrangement which Contractor may make for performance of Work or labor on Work provided for in the Contract, provision that Subcontractor shall pay persons performing labor or rendering service under subcontract or other arrangement not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the Work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed in the Labor Code.
Contractor stipulates that it shall comply with all applicable wage and hour laws, including without limitation, Labor Code Sections 1776 and 1810-1815. Failure to so comply shall constitute a default under this Contract.
Contractor and its Subcontractors shall be responsible for compliance with Labor Code Sections 1810-1815.
Eight hours of labor performed in execution of the Contract constitutes a legal day’s work.
The time of service of any worker employed on the Project is limited and restricted to 8 hours during any one calendar day, and 40 hours during any one calendar week.
Contractor and its Subcontractors shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed by him or her in connection with the Project. The record shall be kept open at all reasonable hours to the inspection Owner and to the Division of Labor Standards Enforcement.
Contractor or its Subcontractors shall, as a penalty to Owner, forfeit twenty-five dollars ($25) for each worker employed in the execution of the Contract Documents by the respective Contractor or Subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Labor Code Sections 1810-1815.
Work performed on the Project by employees of Contractor or its Subcontractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon compensation for all hours worked in excess of 8 hours per day at not less than 1 1/2 times the basic rate of pay.
Contractor and its Subcontractors shall be responsible for compliance with Labor Code Section 1776. This Project is subject to prevailing wage compliance monitoring and enforcement by the Department of Industrial Relations.
Contractor and Subcontractors must keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the Work of the Contract Documents. Each payroll record shall contain or be verified by a written declaration as required by Labor Code Section 1776.
The payroll records enumerated above must be certified and shall be available for inspection at all reasonable hours at the principal office of the Contractor as required by Labor Code Section 1776.
9.b
Packet Pg. 305 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 30 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
a. Contractor shall inform Owner of the location of records enumerated above, including the street address, city and county, and shall, within five working days, provide a notice of a change of location and address.
b. Contractor or Subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated above. In the event that the Contractor or Subcontractor fails to comply with the ten-day period, he or she shall, as a penalty to Owner on whose behalf the contract is made or awarded, forfeit $100.00 for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. Contractor is not subject to a penalty assessment pursuant to this Paragraph due to the failure of a Subcontractor to comply with this Paragraph.
With each payment application, Contractor shall also deliver certified payrolls to Owner as set forth above in this Document 00 7200 (General Conditions), and concurrently therewith (but in no event less frequently than monthly) directly to the Labor Commissioner in the format prescribed by the Labor Commissioner.
Contractor shall post all jobsite notices if and when prescribed by regulation.
Environmental Controls
Contractor shall comply with all rules, regulations, ordinances, and statutes that apply to any Work performed under the Contract Documents including, without limitation, any toxic, water, stormwater management and soil pollution controls and air pollution controls specified in Government Code Section 11017. Contractor shall be responsible for insuring that Contractor’s Employees, Subcontractors, and the public are protected from exposure to airborne hazards or contaminated water, soil, or other toxic materials used during or generated by activities on the Site or associated with the Project.
Shoring Safety Plan
Any conflict between this Paragraph and the Technical Specifications shall be resolved in favor of the most stringent requirement.
At least five Days in advance of any excavation five feet or more in depth, Contractor shall submit to Owner a detailed plan showing the shoring, bracing and sloping design (including calculations) and other provisions to be made for worker protection from the hazard of caving ground during the excavation, as required by Labor Code Section 6705. A civil or structural engineer registered in California shall prepare and sign any plan that varies from the shoring system standards established by the State Construction Safety Orders.
During the course of Work, Contractor shall be responsible for determining where sloping, shoring, and/or bracing is necessary and the adequacy of the design, installation, and maintenance of all shoring and bracing for all excavation, including any excavation less than five feet in depth. Contractor will be solely responsible for any damage or injuries that may result from excavating or trenching. Owner’s acceptance of any drawings showing the shoring or bracing design or Work schedule shall not relieve Contractor of its responsibilities under this Paragraph.
Appoint a qualified supervisory employee who shall be responsible to determine the sloping or shoring system to be used depending on local soil type, water table, stratification, depth, etc.
END OF DOCUMENT
9.b
Packet Pg. 306 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
General Conditions 00 7200 - 31 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
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9.b
Packet Pg. 307 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
February 2022
Supplemental General Conditions 00 7301 - 1 Civic Center Campus Facilities Project OAK #4886-4988-1861 v2
DOCUMENT 00 7301
SUPPLEMENTAL GENERAL CONDITIONS (NOT USED)
[Optional] Adverse Weather - Document 00 7200 [General Conditions] Paragraph 11.06. [Can (1) use this 1.01 and A. and B. below, (2) use this 1.01 and only A. below, or (3) omit this 1.01 entirely]
The Weather Station (see Document 00 7200 General Conditions) is [San Francisco International Airport] [for consideration].
The total number of adverse weather days is [City to insert]. _______________________
__________________:
__________________
___________________
__________________:
__________________
___________________
9.b
Packet Pg. 308 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2021
Supplemental GC 00 7301 - 02 Civic Center Campus Facilities Project OAK #4895-3651-8405 v3
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9.b
Packet Pg. 309 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2022
COVID Requirements 00 07320 - 1 Civic Center Campus Facilities Project OAK #4862-8523-7511 v2
DOCUMENT 00 7320
COVID REQUIREMENTS
ARTICLE 1 DEFINITIONS
1.01 The following definitions apply to this Document 00 7320:
A. The 2019 novel coronavirus (including all variants) and the disease it causes are collectively referred to herein as COVID-19.
B. A COVID-19 Condition is something attributable to COVID-19 not caused by Contractor (which for purposes herein includes all subcontractors and suppliers) and beyond its reasonable control, including without limitation COVID-19 Proclamations and supply chain disruptions due to COVID19, and other circumstances concerning COVID-19 not caused by Contractor and which are beyond its reasonable control.
C. A COVID-19 Proclamation includes without limitation orders, directives and guidance concerning COVID-19 that have been issued, and which may be issued from time to time, by public agencies or regulatory bodies, including without limitation the CDC, OSHA, Cal/OSHA, County or Owner, including without limitation the CalOSHA COVID-19 Prevention Emergency Temporary Standards.
Contractor acknowledges that those orders, directives and guidance may require the Project to shut down or otherwise increase Contractor’s cost or time of performance by calling for things such as social distancing and the use of personal protective equipment. In the event of conflicting COVID-19 Proclamations, Contractor shall follow the most applicable, restrictive and newest COVID-19 Proclamations.
D. An Unknown COVID-19 Condition is a COVID-19 Condition Contractor did not know about, and reasonably should not have known about, as of the date Contractor submitted its Bid. The requirements contained in COVID-19 Proclamations issued before submission of a Bid are not Unknown COVID-19 Conditions, and Contractor will be deemed to have knowledge of those requirements.
E. An Unknown COVID-19 Cost is a cost that: (i) is solely attributable to an Unknown COVID-19 Condition; (ii) is reasonable under the circumstances; (iii) is not the result of Contractor’s failure to comply with the contract documents or a COVID-19 Proclamation; and (iv) is not the result of a subcontractors’ or suppliers’ failure to comply with a COVID-19 Proclamation while on the Project Site or in connection with performance of the Work.
ARTICLE 2 COVID-19 CONDITIONS AND BID.
2.01 Contractor is expected to know and is deemed to have known about COVID-19 Conditions when it submits its Bid, and COVID-19 Conditions must be accounted for in Contractor’s price and schedule. In order to be entitled to any relief from a COVID-19 Condition, Contractor must demonstrate that the issue, cost or delay is due to an Unknown COVID-19 Condition ARTICLE 3 COMPLIANCE WITH COVID-19 PROCLAMATIONS.
3.01 Contractor shall comply with COVID-19 Proclamations in performance of the Work, irrespective of when the COVID-19 Proclamations are issued, and as they pertain to performance of the Work.
The cost of such compliance is non-compensable, except as otherwise expressly stated in this Document 00 7320.
9.b
Packet Pg. 310 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2022
COVID Requirements 00 07320 - 2 Civic Center Campus Facilities Project OAK #4862-8523-7511 v2
3.02 Contractor is responsible to ensure that its subcontractors and suppliers comply with COVID-19 Proclamations while they are on the Project Site and in connection with the performance of their portion of the Work.
ARTICLE 4 DELAY.
4.01 Contractor is entitled to a reasonable time extension for an Unknown COVID-19 Condition. Such time extension is non-compensable.
ARTICLE 5 OWNER DIRECTED SUSPENSION.
5.01 Owner may suspend work at the Project site due to COVID-19 health concerns, even though Contractor may be allowed to proceed with Work based on COVID-19 Proclamations. Owner may suspend the work for its convenience. Contractor is entitled to a time extension for an Owner Directed Suspension, and the contract amount will be equitably adjusted if and to the extent Contractor incurs increased costs that are Unknown COVID-19 Costs.
ARTICLE 6 COMPENSATION FOR COVID-19 COSTS.
6.01 Owner will reimburse Contractor for costs attributable to COVID-19, and which are not included in the Schedule of Values, only if the cost is an Unknown COVID-19 Cost ARTICLE 7 SAFE WORK PRACTICES.
7.01 Contractor shall implement safe work practices recommended by CDC or OSHA or Cal/OSHA, which may include, inter alia, screening all employees, subcontractors, laborers or suppliers (worker(s)) on the construction site in advance of their arrival on the job site for signs and symptoms of COVID-19; adopting staggered work schedules, e.g., providing alternating workdays or extra shifts, to reduce the total number of employees on a job site at any given time and to ensure physical distancing; identifying choke points where workers are forced to stand together, such as hallways, hoists and elevators, ingress and egress points, break areas, and buses, and implement policies to maintain social distancing; coordinating site deliveries in line with the employer's minimal contact and cleaning protocols; and instituting a rigorous housekeeping program to reduce dust levels on the job site. Contractor remains fully responsible for following and complying with changes to recommended safe work practices from time to time.
ARTICLE 8 MONITORING AND REPORTING.
8.01 Owner may require Contractor to actively monitor the health of its workers through temperature checks and questionnaires of major COVID-19 symptoms, including but not limited to cough, fever above 100.4 degrees Fahrenheit and shortness of breath. Contractor shall immediately report to Owner any outbreaks of COVID-19 among its workers. Contractor shall not knowingly allow any worker who has tested positive with COVID-19 to enter an Owner building. In the event of an outbreak or an exposure to COVID-19, Owner may impose appropriate mitigation strategies which may be in consultation with the public health officer.
ARTICLE 9 PRECEDENCE.
9.01 This Document 00 7320 shall take precedence over any other conflicting Contract Document.
9.b
Packet Pg. 311 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2022
Apprenticeship Program 00 7380 - 1 Civic Center Campus Facilities Project OAK #4893-7530-0101 v2
DOCUMENT 00 7380
APPRENTICESHIP PROGRAM
ARTICLE 1 COMPLIANCE REQUIRED
1.01 Contractor and Subcontractors shall comply with the requirements of Labor Code Sections 1776, 1777.5, and 1777.6 concerning the employment of apprentices by Contractor or Subcontractors.
Willful failure to comply may result in penalties, including loss of the right to Bid on or receive public works contracts.
ARTICLE 2 CERTIFICATION OF APPROVAL
2.01 Labor Code Section 1777.5, as amended, requires a Contractor or Subcontractor employing tradespersons in any apprenticeable occupation to apply to the joint apprenticeship committee nearest the site of a public works project and which administers the apprenticeship program in that trade for a certification of approval. The certificate shall also fix the ratio of apprentices to journeypersons that will be used in performance of the Contract. The ratio of work performed by apprentices to journeypersons in such cases shall not be less than one hour of apprentices work for every five hours of labor performed by journeypersons (the minimum ratio for the land surveyor classification shall not be less than one apprentice for each five journeypersons), except:
A. When unemployment for the previous three month period in the area exceeds an average of 15 percent;
B. When the number of apprentices in training in the area exceeds a ratio of one to five; C. When a trade can show that it is replacing at least 1/30 of its membership through apprenticeship training on an annual basis state-wide or locally; or
D. Assignment of an apprentice to any work performed under a public works contract would create a condition which would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyperson.
ARTICLE 3 FUND CONTRIBUTIONS
3.01 Contractor is required to make contributions to funds established for administration of apprenticeship programs if Contractor employs registered apprentices or journeypersons in any apprenticeable trade on such contracts and if other contractors on the public works site are making such contributions.
ARTICLE 4 APPRENTICESHIP STANDARDS
4.01 Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of the California Department of Industrial Relations, or from the Division of Apprenticeship Standards and its branch offices.
ARTICLE 5 APPRENTICESHIP STANDARDS
5.01 Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of the California Department of Industrial Relations, or from the Division of Apprenticeship Standards and its branch offices.
END OF DOCUMENT
9.b
Packet Pg. 312 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2022
Apprenticeship Program 00 7380 - 2 Civic Center Campus Facilities Project OAK #4893-7530-0101 v2
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9.b
Packet Pg. 313 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2022
Addenda 00 9113 - 1 Civic Center Campus Facilities Project OAK #4863-7670-0421 v2
DOCUMENT 00 9113
ADDENDA
CITY OF PACIFICA
CIVIC CENTER CAMPUS FACILITIES PROJECT
170 SANTA MARIA AVENUE AND 1810 FRANCISCO BOULEVARD, PACIFICA, CA 94044 PROJECT NUMBER PW #2021-23
The following Addenda were issued, modifying the Project Manual:
Addendum No. 1, issued on March 15, 2022
Addendum No. 2, issued on March 16, 2022
Addendum No. 3, issued on March 18, 2022
Addendum No. 4, issued on March 21, 2022
Addendum No. 5, issued on March 22, 2022
Addendum No. 6, issued on March 25, 2022
Addendum No. 7, issued on March 25, 2022
(Addenda have been incorporated into the conformed Project Manual.)
END OF DOCUMENT
9.b
Packet Pg. 314 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
Bid Set - February 25, 2022
Addenda 00 9113 - 2 Civic Center Campus Facilities Project OAK #4863-7670-0421 v2
(This page intentionally left blank)
9.b
Packet Pg. 315 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
February 2022
Allowances 01 2100 – 1 Civic Center Campus Facilities Project OAK #4854-5093-9397 v2
DIVISION 1 GENERAL REQUIREMENTS
SECTION 01 2100
ALLOWANCES
PART 1 GENERAL
1.01 Section Includes
A. Non-Specified Work
1.02 Related Sections
A. Section 01 1100—Summary of Work
B. Section 01 2000—Measurement and Payment
C. Section 01 3300—Submittals
1.03 Owner’s Contingency Reserve Allowance
A. Owner’s Contingency Reserve Allowance in the amount identified in the Agreement (if any) is included in Contract Sum and controlled by Owner.
B. Owner shall determine in its sole discretion which costs, if any, it will authorize in writing to be paid from this Allowance. Generally, Contingency Reserve Allowance will be used only for Owner-initiated changes in scope of Work of Contract Documents.
C. Contractor’s costs for products, delivery, installation, labor, insurance, payroll, taxes, bonding, differing site conditions and equipment rental will be included in Change Orders authorizing expenditure of funds from this Allowance.
D. Funds will be drawn from this Allowance only with Owner’s approval evidenced by deductive Change Order.
E. At Contract closeout, funds remaining in this Allowance will be credited to Owner by deductive Change Order.
1.04 Disposal of Existing Furnishings/Materials Allowance A. Disposal of Existing Furnishings/Materials Allowance in the amount of $5,000 is included in the Contract Sum.
B. Contractor’s costs for products, delivery, installation, labor, insurance, payroll, taxes, bonding, differing site conditions and equipment rental with respect to Disposal of Existing Furnishings/Materials will be included in Change Orders authorizing expenditure of funds from this Allowance.
C. Funds will be drawn from this Allowance only with Owner’s approval evidenced by Change Order.
D. At Contract closeout, funds remaining in this Allowance will be credited to Owner by Change Order.
PART 2 PRODUCTS – NOT USED
PART 3 EXECUTION- NOT USED
END OF SECTION
9.b
Packet Pg. 316 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project Rev. 0
February 2022
Allowances 01 2100 – 2 Civic Center Campus Facilities Project OAK #4854-5093-9397 v2
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9.b
Packet Pg. 317 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project The ACORD name and logo are registered marks of ACORD
CERTIFICATE HOLDER
© 1988-2014 ACORD CORPORATION. All rights reserved.
ACORD 25 (2014/01)
AUTHORIZED REPRESENTATIVE
CANCELLATION
DATE (MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE
JECT LOC PRO- POLICY GEN'L AGGREGATE LIMIT APPLIES PER:
CLAIMS-MADE OCCUR
COMMERCIAL GENERAL LIABILITY
PREMISES (Ea occurrence) $ DAMAGE TO RENTED
EACH OCCURRENCE $
MED EXP (Any one person) $
PERSONAL & ADV INJURY $
GENERAL AGGREGATE $
PRODUCTS - COMP/OP AGG $
DED RETENTION $ CLAIMS-MADE OCCUR
$ AGGREGATE $ UMBRELLA LIAB EACH OCCURRENCE $ EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSR
LTR TYPE OF INSURANCE POLICY NUMBER
POLICY EFF
(MM/DD/YYYY) POLICY EXP(MM/DD/YYYY) LIMITS
PER
STATUTE OTH- ER
E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE
E.L. DISEASE - POLICY LIMIT
$
$
$
ANY PROPRIETOR/PARTNER/EXECUTIVE
If yes, describe under DESCRIPTION OF OPERATIONS below
(Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY Y / N
AUTOMOBILE LIABILITY ANY AUTO
ALL OWNED SCHEDULED
HIRED AUTOS NON-OWNED
AUTOS AUTOS
AUTOS
COMBINED SINGLE LIMIT BODILY INJURY (Per person)
BODILY INJURY (Per accident) PROPERTY DAMAGE $$
$
$
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSD
ADDL WVDSUBR
N / A
$
$
(Ea accident)
(Per accident)
OTHER:
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
INSURED
PHONE
(A/C, No, Ext): PRODUCER
ADDRESS: E-MAIL
FAX
(A/C, No): CONTACT NAME:
NAIC #
INSURER A :
INSURER B :
INSURER C :
INSURER D :
INSURER E :
INSURER F :
INSURER(S) AFFORDING COVERAGE
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
4/15/2022
R. C. Fischer & Co.
P. O. Box 8101
Walnut Creek CA 94596
Glenda Vargas 925-627-5465 925-932-0962 [email protected] Starr Indemnity & Liability Company 38318 WELYONS-01 California Capital Insurance Company 13544 W. E. Lyons Construction Co.
Gregory Lyons
1301 Ygnacio Valley Road
Walnut Creek CA 94598
Everest Premier Insurance Company 16045 Tokio Marine Specialty Insurance Company 23850 Homesite Insurance Company 17221 Monterey Insurance Company 23540 1240021617 D X 1,000,000 X 100,000 5,000 1,000,000 2,000,000 Y Y PPK2265538 4/30/2021 4/30/2022 2,000,000
B
1,000,000 X
X X
X Hired PD X $50K Y Y 2SAA3019131 4/30/2021 4/30/2022
A X 5,000,000 X
0 1000585100211
X
5,000,000
4/30/2021 4/30/2022
C Y 7600011317211 4/30/2021 4/30/2022
X
1,000,000 1,000,000 1,000,000
E
F
F
Umbrella Second Layer
Rented/Leased Equipment
Professional Liability
CXP13737065800
2SSA3019131
ANE141171621
4/30/2021
4/30/2021
4/30/2021
4/30/2022
4/30/2022
4/30/2022
Occ/Agg Limit
Limit
Limit
4,000,000
100,000
2,000,000
General Liability Deductible $5,000
Auto - Comprehensive and Collision Deductible $1,000
Rented/Leased Equipment Deductible $1,000
*Professional Liability - Policy # ANE141171621 - Carrier is Underwriter's At Lloyd's of London RE: Civic Center Facilities Project
The City of Pacifica, including its officers, officials, employees, and volunteers, are named as Additional Insured per CG20100413, CG20370413 & 033300312.
Insurance is Primary PICGLN0201013. Waiver of Subrogation applies per CG24041219, 033300312 & WC040306.
City of Pacifica - Office if the City Engineer
151 Milagra Drive
Pacifica CA 94044
9.b
Packet Pg. 318 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project POLICY NUMBER: PPK2265538 COMMERCIAL GENERAL LIABILITY
CG 20 37 04 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -- OWNERS, LESSEES OR
CONTRACTORS -- COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s)
Or Organization(s) Location And Description Of Completed Operations
AS REQUIRED BY WRITTEN
CONTRACT PRIOR TO AN
"OCCURRENCE".
ALL LOCATIONS.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II ----- Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury" or
"property damage" caused, in whole or in part, by
"your work" at the location designated and
described in the Schedule of this endorsement
performed for that additional insured and
included in the "products-completed operations
hazard".
However:
1. The insurance afforded to such additional
insured only applies to the extent permitted by
law; and
2. If coverage provided to the additional insured
is required by a contract or agreement, the
insurance afforded to such additional insured
will not be broader than that which you are
required by the contract or agreement to
provide for such additional insured.
B. With respect to the insurance afforded to these
additional insureds, the following is added to
Section III - --- Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable Limits of
Insurance shown in the Declarations;
whichever is less.
This endorsement shall not increase the applicable
Limits of Insurance shown in the Declarations.
CG 20 37 04 13 Insurance Services Office, Inc., 2012 Page 1 of 1
9.b
Packet Pg. 319 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project POLICY NUMBER:PPK2265538 COMMERCIAL GENERAL LIABILITY
CG 20 10 04 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s)
Or Organization(s) Location(s) Of Covered Operations
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II – Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only with
respect to liability for "bodily injury", "property
damage" or "personal and advertising injury"
caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured(s) at the location(s)
designated above.
However:
1. The insurance afforded to such additional
insured only applies to the extent permitted by
law; and
2. If coverage provided to the additional insured is
required by a contract or agreement, the
insurance afforded to such additional insured will
not be broader than that which you are required
by the contract or agreement to provide for such
additional insured.
B. With respect to the insurance afforded to these
additional insureds, the following additional
exclusions apply:
This insurance does not apply to "bodily injury" or
"property damage" occurring after:
1. All work, including materials, parts or equipment
furnished in connection with such work, on the
project (other than service, maintenance or
repairs) to be performed by or on behalf of the
additional insured(s) at the location of the
covered operations has been completed; or
2. That portion of "your work" out of which the injury
or damage arises has been put to its intended
use by any person or organization other than
another contractor or subcontractor engaged in
performing operations for a principal as a part of
the same project.
9.b
Packet Pg. 320 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
C. With respect to the insurance afforded to these
additional insureds, the following is added to
Section III – Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable Limits of
Insurance shown in the Declarations;
whichever is less.
This endorsement shall not increase the applicable
Limits of Insurance shown in the Declarations.
9.b
Packet Pg. 321 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
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9.b
Packet Pg. 322 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
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9.b
Packet Pg. 323 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
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9.b
Packet Pg. 324 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
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9.b
Packet Pg. 325 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
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9.b
Packet Pg. 326 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project PIC-GLN-020 (10/13)
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PRIMARY AND NON-CONTRIBUTORY INSURANCE
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
A. SECTION IV –COMMERCIAL GENERAL LIABILITY CONDITIONS, 4. Other Insurance, and all subparts thereof, as contained in the policy is deleted in its entirely and replaced with the following condition:
4. Other Insurance
If all of the other insurance permits contribution by equal shares, we will follow this method unless the insured is required by written contract signed by both parties, to provide insurance that is primary and noncontributory, and the “insured contract”is executed prior to any loss. Where required by a written contract signed by both parties, this insurance will be primary and non-contributing only when and to the extent as required by that contract.
However, under the contributory approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contributory by equal shares, we will contribute by limits. Under this method, each insurer’s share is based on the ratio of its applicable limit if insurance to the total applicable limits of insurance of all insurers.
All other terms, conditions and exclusions under the policy are applicable to this endorsement and remain unchanged.
9.b
Packet Pg. 327 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project POLICY NUMBER: PPK2265538 COMMERCIAL GENERAL LIABILITY
CG 24 04 12 19
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
WAIVER OF TRANSFER OF RIGHTS OF RECOVERY
AGAINST OTHERS TO US (WAIVER OF SUBROGATION)
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
ELECTRONIC DATA LIABILITY COVERAGE PART
LIQUOR LIABILITY COVERAGE PART
POLLUTION LIABILITY COVERAGE PART DESIGNATED SITES
POLLUTION LIABILITY LIMITED COVERAGE PART DESIGNATED SITES
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
RAILROAD PROTECTIVE LIABILITY COVERAGE PART
UNDERGROUND STORAGE TANK POLICY DESIGNATED TANKS
SCHEDULE
The following is added to Paragraph 8. Transfer Of
Rights Of Recovery Against Others To Us of
Section IV –Conditions:
We waive any right of recovery against the person(s)
or organization(s) shown in the Schedule above
because of payments we make under this Coverage
Part. Such waiver by us applies only to the extent that the insured has waived its right of recovery against
such person(s) or organization(s) prior to loss. This
endorsement applies only to the person(s) or
organization(s) shown in the Schedule above.
CG 24 04 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1 Name Of Person(s) Or Organization(s):
AS REQUIRED BY WRITTEN CONTRACT PRIOR TO AN "OCCURRENCE".
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
9.b
Packet Pg. 328 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project
INSURED COPY
- 1998 by the Workers’ Compensation Insurance Rating Bureau of California. All rights reserved.
From the WCIRB’s California Workers’ Compensation Insurance Forms Manual - 1999.
WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -
CALIFORNIA
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.
The additional premium for this endorsement shall be % of the California workers’ compensation premium otherwise due on such remuneration.
SCHEDULE
PERSON OR ORGANIZATION JOB DESCRIPTION
2 ANY PERSON OR ORGANIZATION FOR BLANKET WAIVER OF SUBROGATION
WHOM THE NAMED INSURED HAS AGREED
BY WRITTEN CONTRACT TO FURNISH
THIS WAIVER
9.b
Packet Pg. 329 Attachment: Attachment A - Construction Agreement with W.E. Lyons Construction Co. (4963 : Award Civic Center Campus Facilities Project