Yuba City City Council
February 4, 2025

CONTRACTING REQUIREMENTS
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71. Guarantee - A promise or assurance given by one party to a second party that a third party's obligations will be fulfilled (i.e., Contractor agrees to guaranty the Work performed by one of its Subcontractors to the City). (Also sometimes referred to as Warranty/Guarantee)

72. Hazardous Waste - The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time, or any other material with Hazardous Waste requirements.

73. Herein - Refers to information presented in the Contract Documents.

74. Hold Harmless - Agreement by one (1) party to indemnify and defend a second party when the second party is sued by a third party as a result of the first party’s actions or inactions.

75. Holidays - Legal holidays shall include the following holidays designated by the City: January 1- New Year’s Day, Third Monday in January- Martin Luther King Jr. Day, Third Monday in FebruaryPresident's Day, Last Monday in May- Memorial Day, July 4- Independence Day, First Monday in September- Labor Day, November 11- Veterans Day, Thanksgiving Day, the day after Thanksgiving and December 24 & 25.

76. Incomplete Work - Work required by the Contract Documents that is not yet installed.

77. Inspector – Inspector shall mean an engineering or construction inspector acting within the authorized scope of the particular duties and authority delegated to such inspector by the City.

Inspector may include the person(s), firm(s), or agency(ies) employed by the City to perform inspection during construction of the Work, under the direction of the Construction Manager. It shall also mean any representative of the City who will perform inspections of the Work for code compliance and quality assurance reporting in addition to those inspections performed by the Engineer. Said inspector may be the Construction Manager or may be another representative of the City.

78. Install - The word “install” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment, complete and ready for intended use. Synonymous with “Provide” for the purposes of this Contract.

79. Laboratory - Any laboratory authorized or accepted by City to test materials and Work involved in the Contract.

80. Laws and Regulations; Laws or Regulations - Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction.

81. Liens - Charges, security interests, or encumbrances upon Project funds, real property or personal property.

82. Liquidated Damages - The amount prescribed in the Contract Documents to be paid to City or to be deducted from any payments due or to become due Contractor for each Day’s delay in completing the whole or any specified portion of the Work, beyond the time(s) allowed in the Contract Documents plus approved time extensions, or as otherwise used in provisions for liquidated damages for public hardship.

83. May - “May,” wherever or in whatever manner used, refers to permissive actions.

84. Milestone - A specific portion of the Work identified in the Contract Documents as a Milestone.

85. Milestone Completion - The date determined by the City when the Work of a Milestone is complete. Milestone Completion does not constitute Acceptance but does establish the completion date of the Milestone for the purpose of assessment of Liquidated Damages, if any, associated with the Milestone.

86. Milestone Duration - The time allowed in the Contract Documents, plus approved time extensions, for completion of the work of a Milestone.

87. Must - See definition of "Shall".

88. Named Products - Products identified in the Contract Documents by Manufacturer's product name. Named Products may include Manufacturer’s make or model number or other designation.

89. Notice Inviting Bids - The Section inviting sealed Bids for the Work. See Section 00100, Notice Inviting Bids.

CONTRACTING REQUIREMENTS
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90. Notice of Award - The document from the City notifying Contractor that the City Council accepted Contractor’s Bid and authorized the General Manager to execute the Agreement.

91. Notice of Completion - A document executed by the City, as authorized by the City Engineer and filed with the County Recorder, signifying that the Contract has been Completed and Accepted.

92. Notice to Proceed - The written notice issued by City’s Representative to Contractor whereby the Contractor is notified of the official construction Contract start date and is authorized to proceed with the Work. See Section 00600, Notice to Proceed. Unless otherwise specified in the Contract Documents or Directed by written Order of City’s Representative, the Contractor must begin Work within fourteen (14) Days following the start date for the Work as stated in the Notice to Proceed.

93. Operational Acceptance - Written notice by the Construction Manager accepting the Work, or portions of the Work, as operationally complete. Used for the purpose of placing equipment or facilities in service before all of the Contract Work is completed, thus affording the City beneficial use of the equipment or facilities

94. Paragraph - For reference or citation purposes, a paragraph shall refer to the paragraph, or paragraphs, called out by paragraph number and alphanumeric designator.

95. Party - The City or the Contractor individually, and "Parties" shall mean the City and the Contractor collectively.

96. Perform - Refer to “Provide.”

97. Person - The term, person, includes firms, companies, corporations, partnerships, and joint ventures.

98. Plans - See Drawings

99. Prejudiced - As used herein, the term “Prejudiced” shall include, but is not limited to, material interference with the City's timely consideration of action to prevent increases in the cost or time required to perform the Work, ability to monitor the Contractor’s increased costs resulting from the situation, to timely marshal facts, and to timely plan its affairs. 100. Products - Materials, equipment, systems, shop fabrications, mixtures, and source controls. 101. Progress Schedule - A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising the Contractor’s plan to accomplish the Work within the Contract Times.
102. Project – The total construction of which the Work to be provided under the Contract Documents, may be the whole, or a part thereof as indicated elsewhere in the Contract. 103. Product Data - Illustrations, Manufacturer’s literature, standard schedules, performance charts, instructions, brochures, diagrams and other information submitted by the Contractor to illustrate materials or equipment for some portion of the Work. Product Data are not considered Contract Documents.
104. Punch List – “Minor” Work that remains to be completed before the City’s Representative will issue a Milestone Completion Letter. Punch List work includes minor architectural cosmetic work to correct minor flaws or deficiencies related to painting, trim, ceiling tile, joinery work or other architectural features; minor adjustments to door hardware; minor cleaning to include scuff marks and small stains; correction of minor mechanical or electrical deficiencies such as tightening of plumbing fixtures and connections, affixing electrical cover plates, minor adjustments to HVAC controls and settings; minor corrections to landscaping; etc. Punch List does not include “Major” Work that would prevent City from occupying and using the facility for its intended use. 105. Quality - Conformance to the requirements established by the Contract Documents 106. Quality Control (QC) - The Contractor's system in place during execution of the Work, to manage and control its own, and its Supplier's and Subcontractor's activities to comply with the requirements of the Contract Documents.
107. Reference Specifications - Those standards, rules, method of tests or analysis, codes, and specifications of other agencies, engineering societies, or industrial associations referred to in the contract documents. These refer to the current edition of amendments in effect at the date of Section 00100, Notice Inviting Bids, unless specifically referred to by edition, volume or date.

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108. RFI or Request for Interpretation/Information - A written request by the Contractor for information or clarification regarding the requirements of the Contract Documents.

RFI’s are not to be used in place of a Substitution.

RFI’s are not to be used in lieu of a Corrective Action Plan, described in Article 14 of this Section.

Requests for Information must be numbered sequentially and presented in a format furnished by, or acceptable to, the City’s Representative. The City’s response to an RFI does not change the requirements of the Contract Documents, Contract Time, or Contract Sum. 109. RFP or Request for Proposal - A request for a proposed cost made to the Contractor by the City to add, delete or change the Work. RFP’s shall not be deemed to be directions to proceed with any addition, deletion or change to the Work. RFP’s may also be referred to as “Request for Quotation”.
110. Retention - A defined percentage of the Contract Sum held by the City pending Completion of the Work, or any portion of the Work.
111. Salvage - All items specified to be salvaged shall be carefully removed so as not to damage the item, and neatly stockpiled at the construction Site by the Contractor. The exact location to stockpile items shall be determined by the Construction Manager. The Construction Manager shall then make a determination as to which items are to be retained by the City. All other items shall be properly disposed of at no additional cost to the City. 112. Samples - Physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be evaluated.
113. Schedule of Values – A document submitted by the Contractor to the City reflecting the portions of the Contract Sum allotted for the various parts of the Work. (Sometimes also referred to as “Cost Breakdown.”)
114. Shall - Refers to actions entered into by the Contractor or the City as a covenant with the other party to do or to perform the action.
115. Shop Drawings - Drawings, diagrams, schedules, and other data specially issued for the Work by the Contractor or a Subcontractor, Sub-Subcontractor, and Suppliers to demonstrate and/or illustrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for some specific portion of the Work. Shop Drawings are not considered Contract Documents.
116. Site - Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by City which are designated for the use of Contractor. 117. Specifications - The written directions, provisions and requirements pertaining to the materials to be provided and to the method and manner of performing the Work, including any Addenda and Approved revisions by City. (Also sometimes referred to as “Technical Specifications” or “Specs.”) 118. Standard Drawings, Standard Plans, Standard Specifications – Unless specifically stated otherwise, the latest edition of the City’s Standard Drawings, Standard Plans or Standard Specifications referenced in the Contract Documents.
119. State of California Specifications - The State of California Department of Transportation Standard Specifications in effect at the date of Section 00100, Notice Inviting Bids. Also referred to as State Standard Specifications and Caltrans Standard Specifications. Where the terms the "State" or the "Engineer" are used in the California Standard Specifications, they shall be considered as meaning the "City" or the "Engineer" as defined herein. Paragraphs of the California Standard Specifications on Measurement and Payment shall not apply. 120. State - The State of California.
121. Stop Notice - A legal remedy for subcontractors and suppliers who contribute to public works, but who are not paid for their work which secures payment from construction funds possessed by the City.

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122. Subcontractor - A contractor, within the meaning of the provisions of Chapter 9 (commencing with §7000) of Division 3 of the Business and Professions Code, who contracts directly with the Contractor to perform any Work of the Project. The term Subcontractor is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or its authorized representative.
123. Subsubcontractor - A contractor, within the meaning of the provisions of Chapter 9 (commencing with §7000) of Division 3 of the Business and Professions Code, that has a direct or indirect contract with a Subcontractor to perform any Work of the Project. The term Subsubcontractor is referred to throughout the Contract Documents as if singular in number and means a Subsubcontractor or an authorized representative thereof. 124. Submittal - Data or items required by the Contract Documents to be submitted by the Contractor to the City. Submittals demonstrate the method, materials, plan, or sequence the Contractor proposes to use to conform to the design concept expressed in the requirements of the Contract Documents. Submittals include but are not limited to Shop Drawings, Coordination Drawings, layouts, Progress Schedules, Substitution requests, Samples, mockups, catalogs, Product Data and literature, equipment data sheets, maintenance and operating data. Unless otherwise stated in the Contract Documents, Submittals are not considered Contract Documents. 125. Substantial Completion - Sufficient completion of the Project, or the portion thereof, to permit a utilization of the Project. Determination of substantial completion is solely at the discretion of the City. Substantial completion does not mean complete in accordance with the Contract nor shall substantial completion of all or any part of the Project entitle the Contractor to acceptance under the Contract.
126. Substantial Completion Date - Date when the City puts into service, the Project or that portion of the Project that has been determined to be substantially complete. 127. Substitution - A material and/or process offered by the Contractor in lieu of the specified material and/or process, and accepted by the City’s Representative in writing as being equivalent (equal) to the specified material and/or process, such as an excepted or equal. (Also sometimes referred to as Product Substitution)
128. Supplementary General Conditions - That part of the Contract Documents which amends or supplements the General Conditions.
129. Supplier - A person or organization contracting with Contractor, a Subcontractor or a Subsubcontractor to supply materials and/or equipment for the Work. 130. Surety - A company that provides Contractor’s bonds for bidding, performance and payment and is admitted as a surety insurer as defined in §995.120(a) of the California Code of Civil Procedure. 131. Surveyor - A land surveyor licensed in the State of California. 132. Total Float Time - The time difference between the earliest start date and the latest start date, or between the earliest finish date and the latest finish date, of Project activities. (Also sometimes referred to as “slack time” or “Total Float” or “Float”). 133. Trade Names - Where a certain product is called by its Trade Name, it is intended as a guide for type and quality.
134. Typical Details - Details of standard structures, devices or instructions referred to on the Plans and Specifications by title or number and developed by the Engineer. 135. Unbalance Bid - A Bid containing a combination of lump sum and unit price Contract Items where individual Contract Items contained in the bid do not reflect reasonable actual direct costs plus a reasonable proportionate share of the Bidder’s anticipated indirect costs and profit. 136. Underground Facilities - All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.
137. Unilateral Change Order – A Change Order issued by the City without the consent of the Contractor or signature of the Contractor.

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138. Unit Price Work – Work to be paid for on the basis of unit prices. 139. Utility - Public or private fixed works for the transportation of fluids, gasses, power, signals, or communications.
140. Warranty - A Contractor’s, Subcontractor’s, Manufacturer’s or material Supplier’s promise or assurance, written or otherwise, that it’s Products and services provided meet industry (implied) or contractual (the requirements of the Contract Documents) standards of performance. (Also sometimes referred to as Warranty/Guarantee.)
141. Will - See definition of "Shall".
142. Work - Any and all obligations, duties, and responsibilities necessary to complete the construction assigned to, or undertaken by, the Contractor pursuant to the Contract Documents including all labor necessary to produce such construction and all materials, equipment, and supplies incorporated or to be incorporated in the construction. Also, the completed construction or parts thereof required to be provided under the Contract Documents. 143. Work Day - A working day is defined as any day, except Saturdays, Sundays and City Legal Holidays. Any work scheduled by the Contractor on non-working days (Saturdays, Sundays, and City Legal Holidays) shall be verified with the City at least 72 hours in advance. Unless specifically provided for otherwise in the Contract Documents, the City shall be compensated for inspection work, at an hourly rate, for any work on non-working days and for overtime. A “working day” may also be referred to as a “business day”.

1.03 CONTRACT DOCUMENTS- REPRESENTATIONS, CORRELATION AND INTENT A. Upon Notice to Proceed, the Contractor may obtain from the City, free of charge, five (5) copies of the Drawings (half- size) and Specifications. Drawings and Specifications will include all changes made by Addenda issued during the bid period. The City will also provide one electronic copy of the Contract Documents in PDF format.

B. The Contractor shall keep on the Project Site a complete copy of the Conformed Drawings and Specifications and shall at all times give the Construction Manager and City’s staff access thereto.

C. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The intent of the Contract Documents is to include all labor, materials, equipment, and all other items necessary for the proper execution and completion of the entire Work. Unless otherwise specifically noted, Contractor must provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and all other facilities and services necessary for the proper execution and completion of the Work.

D. Work not explicitly depicted or mentioned in any portion of the Contract Documents is nevertheless required if it is consistent therewith and is reasonably inferable therefrom as being necessary to produce the intended results.

E. Words and abbreviations having well known technical, trade or industry meanings are herein in accordance with such recognized meanings.

F. The intent of the Drawings specifically includes the intent to depict construction that complies with all applicable laws, codes and standards.

G. The Contract Documents prescribe the details for the construction and completion of the Work that Contractor undertakes to perform in accordance with the terms of the Contract.

H. Subject to applicable law, including without limitation to California Public Contract Code sections 4100 et seq., and the terms of the Contract governing subcontracting, the Divisions and Sections of the Specifications and identifications of any Drawings shall not control Contractor in dividing the Work among subcontractors or suppliers or delineating the work to be performed by any specific trade. Paragraphs titled “Section Includes” are not intended to “scope” the Section nor imply a trade responsibility, but serve merely as a listing of significant items in the Section to allow the reader to quickly assess the Section content.

Similarly, Paragraphs titled “Related Sections” or “Related Requirements” or “Related Documents” are not intended to coordinate the Contractor’s work, but merely indicate where certain other significant items that may be related to the Work of the Section are specified.

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I. Reasonably implied parts of the Work shall be performed as “incidental work” even though absent from the Drawings and Specifications. “Incidental” work shall be performed by Contractor without extra cost to City. Incidental work includes any work not shown on Drawings nor described in Specifications, but which is necessary or normally or customarily required as a part of the Work shown on the Drawings or described in the Specifications, or is necessary or required to make each installation satisfactory, legally operable, functional, consistent with the intent of the Drawings and Specifications or the requirements of the Contract Documents. Incidental work shall be treated as if fully described in Specifications and shown on Drawings, and expense thereof shall be included in the Bid Price.

Incidental work includes, but is not limited to, tasks required to be performed under Division 1, GENERAL REQUIREMENTS, of the Specifications.

J. By entering into the Agreement, Contractor represents it is familiar with the Project Site conditions including the availability of labor and materials in the local geographic area where the Work is to be performed and has correlated personal observations with requirements of the Contract Documents.

K. While the City has endeavored to accurately represent the physical conditions which may affect the cost of the proposed work shown on the plans or indicated in the Specifications, the City does not warrant the completeness or accuracy of such information. It is the Contractor’s responsibility to ascertain the existence of any such conditions affecting the cost of the work which would have been disclosed by reasonable examination to the Site.

L. No test, investigation, statement or estimate of a factual situation not incorporated in the Contract shall be relied on by the Contractor. Any test, investigation, statement or estimate of fact incorporated in the Contract shall be considered by the Contractor to be a suggestion only, and he or she may request equal access to the underlying or background informative material or source and shall arrive at his or her own opinion thereon, including his or her own determination of how reliable any conclusion appearing in (or inferred from) the Contract.

M. The Contractor may not rely on “drawings of record” or similarly final or accepted drawings or maps of facilities constructed on public or private property for or under inspection by the City. Such information may be used for reference only. Actual locations and depths shall be determined by field investigations by the Contractor.

N. In the event of any difference, discrepancy, inconsistency, error, omission, or other apparent conflict within the Contract Documents and/or with actual field conditions, Contractor must immediately notify City in writing, requesting clarification. If Contractor is aware the Work is affected and proceeds with the Work without instructions from City, Contractor must make good any resultant damage or defects without additional cost to the City.

O. The misplacement, addition, omission of a word or character shall not change the intent of any part of the Contract form that set forth by the Contract as a whole.

P. When standards of the Federal Government, trade societies, trade associations, or similar commercial standards are referred to in the Contract Documents by specific date of issue, these standards, including amendments or supplements, will be considered as part of the Contract Documents. When such references do not bear date of issue, the current published edition, including amendments or supplements, at the date of the first Notice Inviting Bids will be considered as part of the Contract Documents.

Q. Contractor is responsible for the complete and proper execution of the Work as described in, and as reasonably implied by, the Contract Documents. Contractor is solely responsible for ensuring that all Subcontractors, Suppliers, Manufacturers, etc., working with any portion of the Contract Documents are fully aware that all the Contract Documents apply to their Work, although the other portions of the Contract Documents may not be fully reproduced or repeated therein.

R. The Contract Documents issued by City and copies furnished to the Contractor, are for use solely with respect to the Work of this Project. They are not to be used by the Contractor or any Subcontractor, Sub-Subcontractor or Supplier on other projects, nor for additions to this Project outside the scope of the Work without the specific written consent of City. The Contractor, Subcontractors, SubSubcontractors and Suppliers are granted permission to use and reproduce applicable portions of the

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Contract Documents issued by City appropriate to, and for use in, the execution of their Work pursuant to the requirements of the Contract Documents.

S. Unless otherwise indicated, highlighted, emboldened, italicized, or underlined text is not indented to imply special significance but serves merely as an aid to the reader to distinguish or quickly reference selected text.

1.04 INTERPRETATION OF THE CONTRACT DOCUMENTS
A. Notwithstanding any omission from these Specification or the Drawings it shall be the duty of the Contractor to call the Construction Manager's attention to apparent errors or omissions and request instructions in writing before proceeding with the work. The Contractor, as part of the Contract, shall agree not take advantage of any errors or omissions in the Contract Documents. It is also the duty of the Contractor to promptly notify the Construction Manager in writing of any design, materials, or specified method that the Contractor believes may prove defective or insufficient or for which there are procurement challenges affecting the ability of the Contractor to complete the Work within the times required. If the Contractor believes that a defect or insufficiency exists in design, materials or specified method and fails to promptly notify the Construction Manager in writing of this belief, the Contractor thereby waives any right to assert entitlement to and/or recover any damages and/or time extensions arising from any such that a defect or insufficiency in design, materials or specified method at any later date in any legal or equitable proceeding against the City, or in any subsequent arbitration or settlement conference between the City and the Contractor. The Construction Manager may, by appropriate instructions correct errors and supply omitted information, which instructions shall be as binding upon the Contractor as though contained in the original Specifications or Drawings.

B. Any discrepancies found between the Contract Documents and Project Site conditions or any inconsistencies or ambiguities in the Contract Documents shall be immediately reported, in writing, to the Construction Manager. Questions regarding the meaning and intent of the Contract Documents shall be referred in writing by the Contractor to the Construction Manager with a RFI. The Construction Manager shall respond to the Contractor in writing with a decision within fifteen (15) days of receipt of the request, or if it is necessary to extend this period, the Construction Manager shall notify the Contractor in writing as to when a decision will be provided. RFI procedures are further described in Section 01340, Request for Interpretation.

C. Work done by the Contractor after its discovery of such errors, omissions, discrepancies, inconsistencies or ambiguities without such notice and prior to response from the Construction Manager shall be done at the Contractor’s risk.

1.05 ORDER OF PRECEDENCE OF THE CONTRACT DOCUMENTS
A. In resolving conflicts resulting from errors or discrepancies in any of the Contract Documents, the order of precedence shall be as follows:

1. Permits from other agencies as may be required by law.

2. Addenda, Supplemental Agreements and Change Orders, the one dated later having the precedence over another dated earlier.

3. Agreement (Section 00510).

4. Contractor’s accepted Bid Form (Section 00400).

5. General Requirements (Division 1).

6. Supplementary General Conditions (Section 00800).

7. General Conditions (Section 00700).

8. Instructions to Bidders (Section 00200).

9. Notice Inviting Bids (Section 00100).

10. Technical Specifications including all Tables, Exhibits and Attachments .

11. Contract Drawings.

12. City Standard Specifications.

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13. Reference/Standard Plans.

14. Reference/Standard Specifications.

B. With reference to the Drawings, the order of precedence is as follows:

1. Enumerated dimensions govern over scaled dimensions.

2. Detail drawings govern over general drawings.

3. Addenda/Change Order drawings govern over any other drawings.

4. Contract Drawings govern over standard drawings/plans.

C. The provisions of the Contract Documents shall take precedence over any Laws or Regulations applicable to the performance of the Work unless such an interpretation of the provisions of the Contract Documents would result in a violation of such Law or Regulation.

D. Minor Omissions:

1. If the Contract Documents are not complete as to any minor detail or required construction system or with regard to the manner of combining or Installing of parts, materials, or equipment, but there exists accepted trade standard for good and workmanlike construction, such detail will be deemed to have been included by the requirements of the Contract Documents in accordance with such standard.

1.06 ADDITIONAL DETAILED INSTRUCTIONS
A. City may furnish additional detailed written and/or graphic instructions to explain the Work more fully, and such instructions become a part of the requirements of the Contract Documents. Should Additional Detailed Instructions, in the opinion of the Contractor, constitute Work in excess of the requirements of the Contract Documents, the Contractor must submit written notice to the City within seven (7) Days following receipt of such instructions, and in any event prior to commencement of the Work thereon. If in the City’s judgment the Additional Detailed Instructions constitute Work in excess of the requirements of the Contract Documents, the Additional Detailed Instructions will be revised or the extra Work will be added by Change Order.

1.07 RIGHTS AND REMEDIES
A. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or available by law.

B. No action or failure to act by the City, the Design Engineer, or the Construction Manager shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.
**END ARTICLE 1**

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ARTICLE 2 - CONTRACT ADMINISTRATION

2.01 ADMINISTRATION OF THE CONTRACT
A. The City’s Representative, the Construction Manager, and the Design Engineer will provide administration of the Contract as hereinafter described. These parties are designated in Section 00510, Agreement. If the status of any of the above parties should change, the City will provide written notice to the Contractor of such change.

B. Contractor recognizes that the City is a public agency and that it can act only through its duly authorized agents, and in this regard agrees that only written change orders, executed as specifically authorized by the governing body of the City either directly or through properly authorized agents, shall be valid.

The City’s Representative shall have no authority to issue a change order unless so specifically authorized, and no person shall have authority to issue any oral change order. Unless a valid change order is issued therefore, all changes in the work performed by the Contractor shall be at its own risk, and the Contractor shall not be entitled to any additional compensation on account thereof, and the Contractor may be required to make the work conform to the Specifications. No act or series of acts by the City during the course of the Contract shall be deemed to constitute a waiver of the right of the City to rely upon the provisions of this subparagraph.

C. The City’s Representative shall decide any and all questions which may arise as to the quality or acceptability of materials furnished and work performed and as to the manner of performance and rate of progress of the work; all questions which arise as to the interpretation of the Plans and Specifications; all questions as to the acceptable fulfillment of the Contract on the part of the Contractor; and all questions as to claims and compensations.

D. Any decision of the City’s Representative shall be final and he or she shall have executive authority to enforce and make effective such decisions and orders should the Contractor fail to carry out promptly.

2.02 CITY’S REPRESENTATIVE
A. General:

1. The City's Representative has the authority to act on behalf of the City on change orders, field orders, progress payments, Contract decisions, acceptability of the Contractor's work, or early possession.

B. Change Orders/Field Orders:

1. The City's Representative has the authority to accept or reject change orders, field orders and cost proposals submitted by the Contractor or as recommended by the Construction Manager.

C. Progress Payments:

1. The City's Representative has the authority to accept or reject requests for progress payments which have been submitted by the Contractor and recommended by the Construction Manager.

D. Contract Decisions:

1. Should the Contractor disagree with the Construction Manager's decision with respect to the Contract, the Contractor may appeal to the City's Representative in accordance with the provisions of the Contract.

E. Acceptability of Work:

1. The City's Representative has the authority to make the final determination of the acceptability of the Work. The City's Representative also has the authority to accept or reject the Design Engineer's recommendations regarding retention of defective work as provided.

2.03 CONSTRUCTION MANAGER
A. General:

1. The Construction Manager is a representative of the City employed to act as advisor and consultant to the City in construction matters related to the Contract. The term Construction

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Manager may include more than one individual to perform contract administration and construction observation. Hereinafter, the term Construction Manager includes any and all representatives working under the direction of the Construction Manager.

2. All instructions to the Contractor and all communications from the Contractor to the City or the Design Engineer shall be forwarded through the Construction Manager. The Construction Manager will have authority to act on behalf of the City only to the extent provided in the Contract Documents. The City has delegated its authority to the Construction Manager to make initial decisions regarding questions which may arise as to the quality or acceptability of materials furnished and work performed, and as to the manner of performance and rate of progress of the Work under the Contract. The Construction Manager shall interpret the intent and meaning of the Contract and shall make initial decisions with respect to the Contractor's fulfillment of the Contract and the Contractor's entitlement to compensation. The Contractor shall look initially to the Construction Manager in matters relating to the Contract.

3. The Construction Manager's authority to act under Section 00700- Article 2, Contract Administration, and any decision made by it in good faith either to exercise or not to exercise such authority, shall not be interpreted or construed as control or responsibility of any of the work performed under this Contract.

B. Construction Manager’s Responsibility:

1. The Construction Manager will observe the progress, quality, and quantity of the Work to determine, in general, if the Work is proceeding in accordance with the provisions of the Contract Documents. The Construction Manager shall not be responsible for construction means, methods, appliances techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work.

2. In accordance with the provisions detailed elsewhere in these General Conditions, the Construction Manager will make decisions relative to all matters of interpretation or execution of the Contract Documents.

C. Observation and Inspections of Construction:

1. The Construction Manager shall observe the construction and shall have the authority to reject work and materials which do not conform to the Contract Documents, and to require special inspection or testing.

2. Observation and inspection by an Inspector is not an authorization to revoke, alter, or waive any requirements of the Specifications. Observation and inspection by an Inspector is an authorization to call the attention of the Contractor to any failure of the Work, materials, or workmanship to conform to the Contract Documents. The Inspector shall have this authority including the ability to reject materials or, in any emergency, suspend the Work. The Contractor may appeal any such issue which it disagrees with to the Construction Manager for decision. If the decision of the Construction Manager is not satisfactory to the Contractor, the Contractor may appeal such decision to the City’s Representative.

D. Acceptability of the Work:

1. The Construction Manager has the authority to make a recommendation as to the acceptability of the Work.

E. Change Orders:

1. The Construction Manager has the authority to initiate change orders; to reject change orders proposed by the Contractor or Design Engineer; to negotiate and recommend acceptance of change orders; or to order minor changes in the Work at no cost to the City.

F. Construction Schedule:

1. The Construction Manager has the authority to review and recommend acceptance of the Progress Schedule submitted by the Contractor at the start of the Work and subsequent significant revisions for conformance to the specified sequence of work and logic.

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G. Progress Payments:

1. The Construction Manager has the authority to recommend acceptance or rejection of requests for progress payments which have been submitted by the Contractor.

H. Completion:

1. The Construction Manager, with the assistance of the Design Engineer, will conduct inspections to determine the dates of Substantial Completion of the Work and final completion of the Work, and will receive and forward to the City, for the City's review, written warranties, and related documents required by the Contract and assembled by the Contractor.

2.04 DESIGN ENGINEER
A. General:

1. The Design Engineer will have the authority to act on behalf of the City only to the extent provided in the Contract Documents.

B. Interpretations:

1. The Design Engineer has the authority to be the initial interpreter of the technical requirements of the Contract Documents. Either party to the Contract may make written request to the Construction Manager for interpretations necessary for the proper execution or progress of the Work. The Construction Manager shall refer such written requests to the Design Engineer, who will render such interpretations. Where the Contractor has requested an interpretation from the Construction Manager, or been notified by the Construction Manager that such interpretation has been requested by the City, any work done before receipt of such interpretations, if not in accordance with same, shall be removed and replaced or adjusted as directed by the Construction Manager without additional expense to City.

C. Acceptability of the Work:

1. The Design Engineer has the authority to make a recommendation as to the acceptability of the Work. The Design Engineer has the authority to recommend acceptance regarding the retention of defective work.

D. Submittals

1. The Design Engineer shall receive, through the Construction Manager, shop drawings, product data, and samples for review in accordance with Section 01330, Submittal Procedures.

2. The Design Engineer has the authority to review and take other appropriate action upon the Contractor's submittal such as shop drawings, product data and samples, but only for conformance with the design concept of the Work and the information given in the Contract Documents.
**END ARTICLE 2**

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ARTICLE 3 - CITY

3.01 GENERAL
A. The City, acting through the City's Representative or the Construction Manager, shall have the authority to act as the sole judge of the Work and materials with respect to both quantity and quality as set forth in the Contract Documents.

3.02 ATTENTION TO WORK
A. The City’s Representative, Construction Manager, and Design Engineer are designated in Section 00510, Agreement. The Construction Manager's designated representative may be available at the Project Site of the Work. An alternate representative may be designated when the designated Construction Manager’s representative is not available at the Project Site of the Work. The Design Engineer may assign a representative to be available at the Project Site of the Work.

3.03 OBSERVATION AND INSPECTION
A. In addition to the Construction Manager’s designated representative, the City may provide one or more Inspectors to the Construction Manager to observe the work and with the same authority.

B. Separate and independent from the observations and inspections above, the Project may be inspected by others for code and permit compliance. Such inspectors shall have the authority provided to them by local jurisdiction.

3.04 CITY’S RIGHT TO USE OR OCCUPY
A. The City reserves the right, prior to Substantial Completion, to occupy, or use, any completed part or parts of the Work, providing these parts or areas have been approved for occupancy or use by the City.

Subject to applicable laws, the exercise of this right shall in no way constitute an acceptance of such parts, or any part of the Work, nor shall it in anyway affect the dates and times when progress payments shall become due from the City to the Contractor or in any way prejudice the City’s rights in the Contract, or any bonds guaranteeing the same. The Contract shall be deemed completed only when all the Work contracted has been duly and properly performed and accepted by the City.

B. Prior to such occupancy or use, the City and Contractor shall agree in writing regarding the responsibilities assigned to each of them for payments, security, maintenance, heat, utilities, damage to the Work, insurance, the period for correction of the Work, and the commencement of warranties required by the Contract Documents.

C. In exercising the right to occupy or use completed parts of the Work prior to the Substantial Completion thereof, the City shall not make any use which will materially increase the cost to the Contractor, without increasing the Contract Amount, nor materially delay the completion of the Contract, without extending the time for completion.

D. The part or parts of the Work, if any, which the City anticipates the use or occupancy of prior to Substantial Completion are noted in Division 1, General Requirements. Failure to include a part of the Work in the above referenced section, shall not limit the City’s right to use or occupy parts of the Work not listed.

3.05 CITY’S RIGHT TO CARRY OUT THE WORK
A. If the Contractor should neglect to prosecute the Work properly or fail to perform any provision of the Contract, and fails within five (5) days after receipt of written notice from the City to commence and continue correction of such neglect or deficiency with diligence and promptness, the City may, and without prejudice to any other remedy, make good such default, neglect or failure.

B. The City also reserves the right to perform any portion of the Work due to an emergency threatening the safety of the Work, public, City, and any property or equipment.

C. In either case, a Change Order shall be issued unilaterally deducting from the payments then or thereafter due the Contractor the cost of correcting such deficiencies and/or for performing such work,

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including compensation for the Design Engineer’s, the Construction Manager’s, and City’s additional services made necessary by such default, neglect, failure or emergency.

3.06 CITY’S RIGHT TO PERFORM WORK AND TO AWARD SEPARATE CONTRACTS A. The City reserves the right to perform work related to the Project with the City’s own forces, and to award separate contracts in connection with the Project or other work on the Project Site.

B. When separate contracts are awarded for different portions of the Project or other work on the Project Site, the term “Contractor” in the Contract Documents in each case shall mean the contractor who executes each separate Agreement.

C. The City will provide for the coordination of the work of the City’s own forces and of each separate contractor with the Work of the Contractor, who shall cooperate therewith as provided in Section 00700-

6.02, Cooperation with City’s Forces, and other contractors employed by City.

3.07 CITY ACCESS TO WORK AREAS
A. The City, and its officers, agents, agents, employees, and any other duly authorized representatives and employees, and all duly authorized representatives of governmental agencies having jurisdiction over work areas or any part thereof shall at all reasonable times, for the purpose of determining compliance with Contract requirements, have access to such areas and the premises used by the Contractor. The Contractor shall also arrange for the City, and its officers, agents, employees, and any other duly authorized representatives and employees, to have access at all reasonable times to all places where equipment or materials are being manufactured, produced, or fabricated for use under the Contract.

B. The Contractor’s attention is drawn to the fact that during the course of the work of this Contract, existing facilities will be used and maintained by City’s personnel. The Contractor shall coordinate its work in such a way as to interfere as little as possible with the routine work of existing facility operation consistent with the necessity for making the connections as specified and as shown on the Project Drawings. The intent of this item is also that the Contractor’s work force shall be excluded from access to and use of existing facilities except in direct pursuit of the work of this Contract, unless approved by the Engineer. The Contractor shall provide safe access at all times to all existing facilities for operating personnel and equipment.

3.08 CITY-ACQUIRED PERMITS
A. Attention is directed to the Contract Documents and to any permits that may have been acquired by or imposed upon the City that contain requirements related to performance of the work, including but not limited to encroachment permits and storm water pollution prevention. All work within public properties and rights of way shall be accomplished in conformance with any specific conditions, instructions, and/or requirements contained in permits issued by the agencies having jurisdiction over such property and rights of way.

3.09 CITY-ACQUIRED EASEMENTS
A. The City may provide easements for work under the Contract. City-provided easements are shown in the Contract Documents. All work within private and public properties shall be accomplished in conformance with any specific conditions, instructions, and/or requirements of the respective easements.

B. The City may provide additional easements for use of public or private property for working space, haul roads, and for storage of materials and equipment. City provided easements are shown in the Project Documents. The Contractor may use such property so provided for working space, haul roads, and for storage of materials and equipment. Should the Contractor find it necessary or advantageous to use any land, over and above that land that is provided, for any purpose whatever, the Contractor shall, at its expense, obtain a written agreement with the property owner and obtain approval from the City for the use of such land. A copy of any such agreement shall be submitted to the Engineer prior to implementation.

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C. Nothing in the Contract shall be construed as allowing the Contractor to make any arrangements with any person to permit occupancy or use of any land, structure, or building for any Contract purpose whatsoever, either with or without compensation, in conflict with any agreement between the City and any owner, former owner, or tenant of such land, structure, or building.

3.10 NON-RESPONSIBILITY OF THE CITY
A. The City shall not be held responsible for the care or protection of any material or parts of the Work prior to the final acceptance, except as expressly provided in these Contract Documents. **END ARTICLE 3**

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ARTICLE 4 - CONTRACTOR

4.01 GENERAL RESPONSIBILITIES
A. Contractor must supervise and direct the Work, using its best skill and attention.

B. Contractor is solely responsible for all construction means, methods, techniques, operations, sequences and procedures, and for coordinating all portions of the Work.

C. Contractor is responsible to City for the acts and omissions of Contractor’s employees, Subcontractors, Suppliers, their agents and employees, and all other persons performing any Work pursuant to a contract with Contractor.

D. Contractor will not be relieved from its obligations to perform the Work in accordance with the requirements of the Contract Documents, either by the activities or duties of City or City’s consultants in their administration of the Contract, or by inspections, tests, acceptance, or approvals required or performed by persons other than Contractor.

E. Contractor shall at all times enforce good order and discipline among its employees and must not employ on the Work anyone not skilled in the task assigned.

F. Contractor shall at all times employ qualified workers sufficient to prosecute the Work at a rate and in a sequence and manner necessary to complete the Work within the Contract Time(s). This obligation shall remain in full force and effect notwithstanding disputes or claims of any type.

G. Contractor warrants to City that all materials and equipment provided pursuant to the Contract are new unless otherwise specified, and that all Work is of good quality, free from faults and defects and in conformance with the requirements of the Contract Documents. All Work not conforming to these requirements, including substitutions not properly accepted and authorized by City’s Representative may be considered defective. Upon request at any time, Contractor must furnish evidence, satisfactory to City, demonstrating the quality of installed materials and equipment.

H. Unless otherwise provided in the Contract Documents, the Contractor must provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, water, heat, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. The provision of utilities such as gas, electricity and water is governed by the Technical Specifications.

I. Contractor has charge and care of all Work and all materials to be used therein (including materials for which Contractor has received partial payment or materials which have been furnished by City) until Acceptance of the Work. Contractor bears the risk of injury, loss, or damage to any part thereof by the action of the elements or from any other cause, whether arising from the performance or nonperformance of the Work, except as otherwise expressly provided.

J. Contractor must rebuild, repair, restore, and make good all injuries, losses, or damages to any portion of the Work or the materials by any cause before Completion and Acceptance.

K. Contractor must Provide suitable drainage and erect such temporary structures as are necessary to protect the Work or materials from damage. Suspension of the Work from any cause whatever will not relieve Contractor of responsibility for the Work and materials as herein specified.

L. The Contractor, at its expense, store and maintain all materials and equipment as specified in the Contract Documents or, where not specified, in such a manner as to assure the preservation of their quality and fitness, including warehousing if required by the Engineer, and so as to facilitate job-site safety and convenient inspection by the Engineer. Contractor must properly store materials which have been partially paid for by City or which have been furnished by City. Such storage by Contractor is on behalf of City who shall at all times be entitled to the possession of such materials. Contractor must promptly return such materials to the Project Site when requested. Contractor must not dispose of any of the materials so stored except upon City’s written authorization.

4.02 STATUS OF CONTRACTOR, SUBCONTRACTORS AND SUPPLIERS A. It is stipulated and agreed that the Contractor shall be an independent contractor in the performance of this Contract and shall have complete charge of persons engaged in performance of the Work. During

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the term of the Contract, Contractor shall not under any circumstances be considered an employee, agent, or other representative of the City. Contractor is not authorized to bind City to any obligation.

Nothing in this Contract creates any relationship of joint venture, partnership or any other association of any nature whatsoever between City and Contractor other than that of owner and independent contractor. City has the right to control Contractor only insofar as provided in this Contract and only insofar as the results of Contractor’s work pursuant to the Contract. The City’s right of supervision does not reduce or abrogate Contractor’s liability for any and all damage or injury to persons, public property or private property that may arise directly or indirectly from Contractor’s performance of the Work.

B. The Contractor shall perform the Work in accordance with its own means, methods, and appliances subject to compliance with the requirements of the Contract.

C. Subcontractors and Suppliers will not have or be recognized as having a direct relationship with the City. The persons engaged in the work, including employees of Subcontractors and Suppliers, will be considered employees of the Contractor and their work shall be subject to the provisions of the Contract. References in the Contract Documents to actions required of subcontractors, manufacturers, suppliers, or any person other than the Contractor, the City, or the Construction Manager shall be interpreted as requiring that the Contractor shall require such subcontractor, manufacturer, supplier, or person to perform the specified action.

4.03 CONTRACTOR REPRESENTATIVE
A. Only the Project Manager or Project Superintendent named in Section 00480, CERTIFICATION OF BIDDER’S EXPERIENCE AND QUALIFICATIONS, or an equally qualified alternate approved by the City, will be permitted as the Contractor’s on-site authorized representative. The Contractor shall confirm in writing, before starting work, an authorized representative who shall have complete authority to represent and to act for the Contractor. Said authorized representative, or designated alternate, which has the authority to act in matters relating to the Contract, shall be personally present at the Project Site at all times while work is actually in progress on the Contract. During periods when the Work is suspended, arrangements acceptable to the City shall be made for any emergency work that may be required. The Contractor’s authorized representative, or designated alternate(s), shall be fluent and proficient in the English language in order to understand, receive, and carry out oral and written communications or instructions relating to all job functions and responsibilities.

B. When the Contractor consists of two or more persons, firms, partnerships, limited liability companies, or corporations functioning on a joint venture basis, said Contractor shall designate in writing to the Construction Manager, the name of their authorized representative who shall have supreme authority to direct the work and to whom orders will be given by the Construction Manager, to be received and obeyed by the Contractor.

C. Information shall include the representative's name, street address, town, and office telephone number, cell phone number and email address.

D. The Contractor’s Representative shall give its personal attention to and shall supervise the Work to the end that it shall at all reasonable times be prosecuted faithfully. When the Contractor’s Representative or designated alternate is not personally present on the Work, the representative shall at all reasonable times be represented by a competent superintendent or foreman who shall receive and obey all instructions or orders given under this Contract, and who shall have full authority to supply materials, tools, and labor without delay, and who shall be the legally appointed representative of the Contractor.

The Contractor shall immediately notify the Construction Manager when the Contractor’s Representative is absent and also provide the name and position of Contractor’s interim representative during the Contractor Representative’s absence. The Contractor shall be liable for the faithful observation of any instructions delivered to the Contractor or to the Contractor’s Representative.

E. The City’s Representative shall have the right to remove and replace the Contractor’s Representative at any time.

4.04 WORKPLACE ENVIRONMENT
A. The use or possession of alcohol, weapons, or illegal controlled substances by the Contractor, or others subject to the Contractor’s control, on City property is prohibited. The Contractor shall not sell and shall

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neither permit nor suffer the introduction or use of intoxicating liquors or non-prescribed illegal narcotics or drugs upon or about the Work.

B. The Contractor must ensure and maintain a workplace environment free of personal harassment and intimidation.

C. Conduct that creates an intimidating, hostile, or offensive workplace environment is prohibited. Such conduct includes, but is not limited to, the following:

1. Verbal harassment, e.g., epithets, derogatory comments or slurs;

2. Physical harassment, e.g., assault, impeding or blocking movement, gestures, staring, or any physical interference with normal work or movement;

3. Visual forms of harassment, e.g., derogatory posters, letters, poems, graffiti, cartoons, or drawings.

D. Unwelcome and unwanted sexual advances constitute sexual harassment that is prohibited. For example, requests for sexual favors and verbal or physical conduct of a sexual nature are prohibited.

E. It is the responsibility of the Contractor to:

1. Inform its employees and Subcontractors that behavior that creates an intimidating, hostile, or offensive workplace environment is prohibited;

2. Create a workplace environment that is free from harassment; and,

3. Take corrective action to stop prohibited behavior/conduct.

F. None but competent superintendents, forepersons, and workers shall be employed on the Work. The Contractor shall remove from the Work any person who commits trespass, possesses firearms or other weaponry, is under the influence or is in the possession of alcohol or other illegal drugs/controlled substance, or is, in the opinion of the Contractor or Construction Manager, disorderly, dangerous, insubordinate, incompetent, or otherwise objectionable.

G. If in the opinion of the City’s Representative, any employee of the Contractor or Contractor’s Subcontractors violate the prohibitions of this Section 00700-4.04, Workplace Environment, Contractor must immediately remove that person or Subcontractor from the Project upon City’s request, and such person or Subcontractor must not be permitted to perform further Work on the Project Site.

H. Such above discharges and removal from the Project Site shall not be the basis of any claim for compensation or damages against the City, its officers, officials, employees, agents, and volunteers, the Design Engineer, the Construction Manager, and their partners, officers, employees, agents or any of its officers or representatives.

I. Nothing contained in 4.04, Workplace Environment, shall be used to shift the responsibility for supervision of Contractor’s employees or subcontractors from the Contractor to the City’s Representative or to require the City’s Representative to take any action with regard to any employee of the Contractor or its subcontractors.

J. The Contractor shall maintain labor relations in such manner and by such methods as will provide for harmony among workers. The Contractor shall assure that its subcontractors of all tiers comply with the provisions set forth in this Section. Failure of the Contractor or any of its subcontractors at any tier to comply with these provisions shall be considered as grounds for termination of the Contract in accordance with Section 00700- 8.10, City’s Right to Terminate Contract.

4.05 COMPLIANCE WITH LAWS
A. General:

1. The City is a public agency in the State of California and is subject to the provisions of law relating to public contracts. It is agreed that all provisions of law applicable to public contracts are a part of these Contract Documents to the same extent as though set forth herein and will be complied with by Contractor.

2. The Contractor, shall at its own cost and expense, observe and keep itself and its Subcontractors fully informed of all existing and future legislated State and Federal Laws and City and County

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ordinances and regulations which in any manner affect those engaged or employed in the Work, or the materials and equipment used in the Work, or which in any way affect the conduct of the Work, and all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. If any discrepancy or inconsistency is discovered in the Drawings, Specifications, or in any other part of this Contract, in relation to any such law, ordinance, regulation, order, or decree, the Contractor shall immediately report the same to the Construction Manager in writing.

The Contractor shall at all times observe and comply with all such existing and future laws, ordinances, regulations, orders and decrees; and shall protect, indemnify, defend and hold harmless the City, the Construction Manager, the Design Engineer, and all of their officers, officials, employees, agents, volunteers, and servants against any claim or liability arising from or based upon the violation of any such law, ordinance, regulation, order, or decree, whether by the Contractor itself, its employees, subcontractors, suppliers or others acting on the Contractor’s behalf.

3. The following regulations and requirements that are included in the Contract Documents do not relieve the Contractor of the burden of ascertaining legal requirements that must be satisfied in accordance with this Section and applicable law.

B. Eight Hour Day Limitation

1. The Contractor’s attention is directed to the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code, State of California, and in particular Sections 1810 to 1815 inclusive. In accordance with California Labor Code §1810, eight (8) hours of labor in performance of the Work shall constitute a legal day’s work under this Agreement. Contractor and any subcontractor shall pay workers overtime pay (not less than 1 1/2 times the base rate of pay) as required by Sections 1810 to 1815, inclusive, of the California Labor Code relating to working hours. Contractor and any Subcontractor shall, as a penalty to the City, forfeit the sum of twenty-five dollars ($25) for each worker employed in the execution of the Contract 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 Article 3 of Chapter 1 of Part 7, Division 2 of the California Labor Code, which is incorporated by this reference as though fully set forth herein.

C. Prevailing Wage

1. The Work to be performed pursuant to this contract is “public works” subject to California Labor Code §1771, et. seq. and the applicable implementing regulations. The General Prevailing Wage Rates issued by the California Department of Industrial Relations may be adjusted by the State during the term of this Contract. Notwithstanding any other provisions of this Contract, Contractor will not be entitled to any adjustment in compensation rates in the event there are adjustments to the General Prevailing Wage Rates.

2. Contractor shall comply with California Labor Code §1775, whereby Contractor shall be assessed a penalty for each calendar day or portion thereof, for each worker paid less than the stipulated prevailing rates for such work or craft in which such worker is employed for any Work done pursuant to the Contract by Contractor or any Subcontractor in violation of the California Labor Code and in particular §1770 through §1780. In addition to said penalty and pursuant to §1775, Contractor shall pay each worker the difference between such stipulated prevailing wages and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate.

3. Pursuant to the provisions of California Labor Code §1770 and following, the California Department of Industrial Relations has ascertained the general prevailing rate of wages (which rate includes employer payments for health and welfare, vacation, pension, and similar purposes) applicable to the Work, for straight time, overtime, Saturday, Sunday, and Holiday work. The Holiday wage rate listed shall be applicable to all holidays recognized in the collective bargaining agreement of each craft, classification, or type of workers concerned. Said prevailing wage rates are on file in the City's offices, incorporated herein by reference, and copies of which are available to any interested party on request. The rates are also available on the State of California’s Department of Industrial Relations website at:
https://www.dir.ca.gov/oprl/DPreWageDetermination.htm.

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4. If Contractor uses a craft or classification not shown on the prevailing wage determinations, Contractor may be required to pay the wage rate of that craft or classification most closely related to it, shown in the general determinations in effect when the Bids were received. Pursuant to California Labor Code §1773.2, Contractor shall prominently post a copy of such prevailing wages at each job site.

5. Pursuant to California Public Contract Code §6109, the Contractor shall not perform Work on this public works project with any Subcontractor who is ineligible to perform Work on a public works project pursuant to §1777.1 or §1777.7 of the California Labor Code. Any contract on a public works project entered into between the Contractor and a debarred Subcontractor is void as a matter of law. A debarred Subcontractor may not receive any public money for performing Work as a Subcontractor on a public works contract, and any public money that may have been paid to a debarred Subcontractor by the Contractor on this Project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred Subcontractor who has been allowed to work on the Project.

6. Pursuant to California Labor Code §1771.5.b.6, the City will withhold contract payments equal to the amount of underpayment and applicable penalties when, after investigation, it is established that underpayment of prevailing wage has occurred.

D. Certified Payrolls:

1. Contractor shall provide certified payroll records electronically to the Division of Labor Standards Enforcement in accordance with California Labor Code §1776. In addition to the California Labor Code requirements related to certified payroll records enumerated herein, the Contractor shall submit weekly certified payrolls and comply with all payroll requirements of this Section. Contractor and any subcontractor shall maintain and make available for inspection payroll records as required by California Labor Code §1776, which is incorporated by this reference as though fully set forth herein. Contractor is responsible for ensuring compliance with this Section. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, and 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 the Contractor in connection with the Project. Said payroll shall be certified and shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:

A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request.

A certified copy of all payroll records enumerated in Section 00700-4.07.D, herein, shall be made available for inspection or furnished upon request to the City, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations.

A certified copy of all payroll records enumerated in Section 00700-4.07.D, herein, shall be made available upon request by the public for inspection or for copies thereof; provided, however, that a request by the public shall be made through either the City, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to subparagraph (2) herein, the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the Contractor, subcontractors, and the entity through which the request was made. The public shall not be given access to the records at the principal offices of the Contractor.

2. Certified payroll records shall be submitted electronically as required under California Labor Code §1776 to the Labor Commissioner pursuant to California Code of Regulations Chapter 8, §16404.

Per §1776 of the Labor Code, the Contractor shall be responsible for the submittal of its own payroll records and the payroll records of all its subcontractors. All certified payroll records shall be accompanied by a statement of compliance signed by the Contractor indicating that the payroll records are correct and complete, that the wage rates contained therein are not less than those determined by the Director of the Department of Industrial Relations, and that the classifications set forth for each employee conform with the work performed. All such payroll records and

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compliance forms required hereunder shall be maintained by Contractor for a period of no less than three (3) years after the completion of the Work.

3. The Contractor is responsible for its and its subcontractors’ compliance with the provisions of §1776 of the Labor Code.

4. Each Contractor shall file a certified copy of the records, enumerated in Section 00700-4.07.D with the entity that requested the records within ten (10) days after receipt of a written request. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the City, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address, and social security number. The name and address of the Contractor awarded the Contract or performing the Contract shall not be marked or obliterated.

The Contractor shall inform the City of the location of the records enumerated under Section 00700-4.07.D including the street address, city and county, and shall, within five (5) working days, provide a notice of change of location and address. The Contractor shall have ten (10) days in which to comply subsequent to receipt of written notice specifying in what respects the Contractor must comply with this Section 00700-4.07.D. In the event that the Contractor fails to comply within the 10-day period, he or she shall, as a penalty to the State of California or the City, forfeit one hundred dollars ($100) 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. Responsibility for compliance with Section 00700-4.07.D lies with the Contractor

5. On-Site Worker Interviews. The City or a representative of the City may make periodic Site visits to observe and interview workers regarding the payment of prevailing wages and proper work classifications. Contractor and each subcontractor shall cooperate and coordinate with the City and provide unaccompanied access to workers on the job Site.

6. Additionally, each contractor and every lower-tier subcontractor and supplier may be required to submit certified payrolls and labor compliance documentation electronically at the discretion of and the manner specified by the City. If requested, electronic submittal will be on a web-based system. Each contractor and subcontractor will be given a Log On identification and password to access the City reporting system. Use of the system may entail additional data entry of weekly payroll information including; employee identification, labor classification, total hours worked and hours worked on this project, wage and benefit rates paid, etc. This requirement will be necessary for every lower-tier subcontractor and vendor required to provide labor compliance documentation.

Submission of payroll information electronically shall be inclusive of the project base bid indirect costs and no additional payment shall be made.

7. As required by §1773.1 of the California Labor Code, the Contractor shall pay travel and subsistence payments to each worker needed to execute the work, as such travel and subsistence payments are defined in the applicable collective bargaining agreements filed in accordance with this Section.

8. To establish such travel and subsistence payments, the representative of any craft, classification, or type of workman needed to execute the contracts shall file with the Department of Industrial Relations fully executed copies of collective bargaining agreements for the particular craft, classification, or type of work involved. Such agreements shall be filed within ten (10) days after their execution and thereafter shall establish such travel and subsistence payments whenever filed thirty (30) days prior to the call for bids.

9. The Contractor shall comply with the provisions of §1775 of the California Labor Code and shall, as a penalty to the City, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rate of per diem wages for each craft, classification, or type of worker needed to execute the contract. The Contractor shall pay each worker an amount equal to the difference between the prevailing wage rates and the amount paid worker for each calendar day or portion thereof for which a worker was paid less than the prevailing wage rate. Contractor is required to pay all applicable penalties and back wages in the event of violation of prevailing wage law, and Contractor and any subcontractor shall fully comply

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with California Labor Code §1775, which is incorporated by this reference as though fully set forth herein.

10. In accordance with the provisions of §1727 of the California Labor Code, the City, before making payment to the Contractor of money due under this contract, shall withhold and retain therefrom sufficient funds to satisfy any civil wage and penalty assessment issued by the Labor Commissioner under Chapter 1, Part 7, Division 2 of the California Labor Code (commencing with §1720). If the City has not retained sufficient money under the Contract to satisfy a civil wage and penalty assessment based on a Subcontractor’s violations, Contractor shall, upon the request of the Labor Commissioner, withhold sufficient money due the Subcontractor under the Contract to satisfy the assessment and transfer the money to the City. These amounts shall not be disbursed by the City until receipt of a final order that is no longer subject to judicial review. However, no sum shall be withheld, retained, or forfeited, except from the final payment, without a full investigation by either the Division of Labor Standards Enforcement or by the City.

E. Apprentices:

1. The Contractor’s attention is directed to the provisions of Labor Code §1777.5. The Contractor and any subcontractors shall, when they employ any person in any apprenticeable craft or trade, apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade in the area of the construction Site for a certificate approving the Contractor or subcontractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected; and shall comply with all other requirements of §1777.5 of the California Labor Code, which is incorporated by this reference as though fully set forth herein. The responsibility of compliance with California Labor Code §1777.5 during the performance of this contract rests with the Contractor. Pursuant to California Labor Code §1777.7, in the event the Contractor willfully fails to comply with the provisions of California Labor Code §1777.5, the Contractor shall be denied the right to bid on any public works contract for up to three (3) years from the date noncompliance is determined and shall be assessed civil penalties.

F. Receipt of Workers' Wages, Fee for Registering or Placing Persons In Public Works

1. Attention is directed to the provisions of §1778 and §1779 of the California Labor Code, which read as follows:
"Section 1778. Every person, who individually or as a representative of an awarding or public body or officer, or as a contractor or subcontractor doing public work, or agent or officer thereof, who takes, receives or conspires with another to take or receive, for its own use or the use of any other person any portion of the wages of any workman or working subcontractor, in connection with services rendered upon any public work is guilty of a felony."
"Section 1779. Any person or agent or officer thereof who charges, collects, or attempts to charge or collect, directly or indirectly, a fee or valuable consideration for registering any person for public work, or for giving information as to where such employment may be procured, or for placing, assisting in placing, or attempting to place, any person in public work, whether the person is to work directly for the state, or any political subdivision or for a contractor or subcontractor doing public work is guilty of a misdemeanor." G. Labor Discrimination:

1. Contractor shall abide by all federal and state laws preventing discrimination in the employment of persons upon public works and shall ensure by appropriate contract provisions that all subcontractors are similarly obligated to comply with all such laws. These laws include, but are not limited to the following. California Labor Code §1735 which provides that “A contractor shall not discriminate in the employment of persons upon public works on any basis listed in subdivision (a) of Section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, except as otherwise provided in Section 12940 of the Government Code. Every contractor for public works who violates this section is subject to all the penalties imposed for a violation of this chapter.” Likewise, Contractor and all of its subcontractors shall abide by the provisions of California Labor Code §1777.6 prohibiting discrimination in the acceptance of otherwise qualified apprentices; and California Labor Code §3073.6, which

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declares unlawful the discrimination in any recruitment or apprenticeship program on stated grounds. City shall be entitled to retain and withhold all penalties as authorized pursuant to California Labor code, Division 2, Part 7, Chapter 1, commencing with §1720 and following, in accordance with the provisions of that Chapter, and the regulations established by the Director of Industrial Relations pursuant to the statutory authority of such chapter.

H. Workers’ Compensation Insurance:

1. Attention is directed to the provisions found in Section 00700- Article 13, Insurance and Indemnification, for requirements of Workers’ Compensation Insurance and California Labor Code §3700.

I. Certified Electricians:

1. It is the sole responsibility of the Contractor to ensure compliance with California Labor Code §108- 108.5- Electrician Certification. The Contractor shall use, and/or cause its electrical subcontractor to use, properly certified electricians to perform electrical work and specifically all work covered under the Contract Documents.

2. Information on the electrician certification program may be obtained at the Division of Apprenticeship Standards (DAS) at:
https://www.dir.ca.gov/dlse/ecu/electricaltrade.html

3. The Division of Apprenticeship Standards also requires that all electricians in the State of California possess adequate training to perform their job. As such, all electricians must fall into one of the following categories:

Journeyman- Certified
Journeyman- Trainee
Apprentice

4. Prior to commencement of electrical work, submit current and complete documentation of electrician certification or enrollment in a California state or Federal approved apprenticeship program for all electrical workers, or any relevant exception on which you intend to rely for satisfying the certification requirements.

J. Lateral and Subjacent Supports:

1. Attention is directed to §832 of the Civil Code of the State of California relating to lateral and subjacent supports, and wherever structures or improvements adjacent to the excavation may be damaged by such excavation, the Contractor shall comply with this law. As provided in California Labor Code §6707, a separate bid item is provided for costs of shoring and bracing of excavations five (5) feet or more in depth.

K. Safety Standards:

1. The Contractor shall comply with all applicable provisions of the Safety and Health Regulations of Construction, promulgated by the Secretary of Labor under Section 107 of the Contract Work Hours and Safety Standards Act (40 USC 327 et. seq.) as set forth in Title 29, C.F.R., Cal/OSHA, and the regulations issued thereunder. Compliance shall be the Contractor's sole responsibility, and neither the City, the Construction Manager nor the Design Engineer shall have any liability for non-compliance. See Section 00700-Article 12, Protection of Persons and Property, for additional safety requirements.

L. Asbestos Related Work:

1. All work involving asbestos containing material must be performed in accordance with California Labor Code, Sections 6501.5 through 6510, inclusive, and California Administrative Code, Title 8, Section 5208 and all other pertinent laws, rules, regulations, codes, ordinances, decrees and orders.

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M. Public Records Act:

1. Except as otherwise provided herein, all records, documents, drawings, plans, specifications, and all other information relating to the conduct of City's business, including information submitted by the Contractor ("Records"), shall become the exclusive property of City and shall be deemed public records. Said Records are subject to the provisions of the California Public Records Act (Government Code §6250 et. seq.). The City's use and disclosure of its records are governed by this Act. The City will use its best efforts to inform the Contractor of any request for any financial records or documents marked "Trade Secret", "Confidential" or "Proprietary" provided by the Contractor to City.

2. Contractor, at its sole expense and risk, shall be fully responsible for any and all fees for prosecuting or defending any action brought or instituted by Contractor opposing disclosure of Records and shall indemnify and hold City harmless from all costs and expenses including attorney’s fees and costs of litigation in connection with any such action.

N. City will have no liability to Contractor or Contractor’s privity concerning disclosure of records in accordance with the California Public Records Act or other applicable law or in accordance with the direction of any competent authority, and Contractor, on behalf of itself, and its privities waives, releases and fully discharges such liability.

4.06 COMPLIANCE WITH ENVIRONMENT LAWS
A. During construction, the Contractor shall comply with all pertinent requirements of Federal, State, and local environmental laws and regulations, including, but not limited to, the Federal Clean Air Act, State and local air pollution and noise ordinances, construction Site erosion control regulations, and if applicable, shoreline construction requirements.

4.07 AUDITS AND ACCESS TO RECORDS
A. The Contractor must maintain all books, records, documents, electronic media, and other evidence directly pertinent to the performance of the Work in accordance with generally accepted accounting principles and practices consistently applied. The Contractor must also maintain all financial information and data used by the Contractor in the preparation or support of any cost submission, including the Contractor’s Bid estimate, any Change Order, Dispute, Claim, Pay Application, or other request for equitable adjustment. City and its representatives will have access upon 24 hours advanced written notice, at all times during normal business hours, to all Contractors books, summary reports, records, accounts, estimates, documents, detailed financial information, certified payroll records, and all other relevant information and documentation for the purposes of inspection, audit, and copying. The Contractor will, at no cost to City, provide proper facilities for such access, inspection and copying purposes.

B. Contractor agrees to include and make the requirements of Section 00700-4.07, Audits and Access to Records, applicable to all Subcontracts and Sub-subcontracts or purchase orders in excess of $10,000, at any tier.

C. Audits conducted pursuant to Section 00700-4.07, Audits and Access to Records. A will be in accordance with general accepted auditing standards and established procedures and guidelines of the reviewing or audit agency.

D. The Contractor agrees to provide all information and reports resulting from access to records to City and other affected parties.

E. Records must be maintained and made available during the performance of the Work and for five (5) years after Final Payment, and until final settlement of all Disputes, Claims, or litigation, whichever occurs later. In addition, those records which relate to any portion of this Contract, to any Change Order, to any Dispute, to any litigation, to the settlement of any Claim arising out of such performance, or to the cost or items to which an audit exception has been taken, must be maintained and made available until Final Payment or final resolution of such Dispute, litigation, Claim, or exception, whichever occurs later.

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F. The right of access provisions of Section 00700-4.07, Audits and Access to Records, applies to all financial records pertaining to this Contract:

1. to the extent the records pertain directly to Contract performance;

2. to the extent required for verification of the costs incurred where such costs are the basis for billings pursuant to this Contract including Change Orders;

3. to the extent there is any indication of violation of the California False Claims statute or that fraud, gross abuse, or corrupt practices may be involved;

4. if the Contract is terminated for default or convenience.

G. Access to records is not limited to the required retention periods. City’s Representative or designee will have access to records at any reasonable time for as long as the records are maintained.

H. Pursuant to California Government Code §8546.7, if the amount of public funds to be expended is in excess of $10,000, this Contract will be subject to the examination and audit of the State Auditor, at the request of the City, or as part of any audit of the City, for a period of three (3) years after final payment under the Contract.

4.08 USE AND PROTECTION OF CITY’S SITE AND ADJACENT PROPERTY A. With the approval of the City and where applicable, the Contractor may use portions of the City’s Site for storage of construction equipment, materials, and field offices. Any Work site office facilities used by the Contractor and/or its privities must conform to all applicable codes, ordinances and regulations.

The cost of such Work site office facilities shall be included in the Contract Price. The City will not accept any responsibility for damage to or loss of the Contractor's equipment or materials stored on any Project related Site caused by vandalism, theft, nature, or otherwise, suffered by the Contractor.

Protection of all construction equipment, stores, and supplies shall be the sole responsibility of the Contractor. Where additional work space is desired by the Contractor or where the City cannot provide the space to the Contractor, it shall be the Contractor's sole responsibility and expense to obtain such a space for its use.

B. All workers or representatives of the Contractor, subcontractors, or suppliers are admitted to the Site only for the proper execution of the Work in accordance with the Contract Documents. Furthermore, no persons may occupy property owned by the City outside the limit of the Work, as indicated on the drawings, without the express written permission of the City.

C. The Contractor shall enforce any instructions from the City or Construction Manager regarding combustible materials, placement of signs, danger signals, barricades, radios, noise, dust, use of City’s restrooms and shower facilities, and smoking. Upon completion of the Work, the Contractor shall remove all temporary barricades, signs, and related materials. No advertising signs shall be erected at the Site(s) of the Work.

D. The Contractor shall determine safe loading capacities and shall not overload any structure, building, pipe, or other existing facility beyond its safe capacity during construction. In addition to any requirements imposed by law, the Contractor shall shore up, brace, underpin and protect as may be necessary all foundations and other parts of all existing structures, facilities and improvements on the Site or adjacent to the Site which are in any way affected by the Contractor’s excavations or other operations connected with the Work. Prior to commencing any work which in any way affects adjoining or adjacent land or buildings thereon, or public utilities, the Contractor shall notify the Construction Manager to discuss responsibilities for properly notifying the owners/occupants of adjacent land and the protective measures taken by the Contractor. Upon request of the Construction Manager, the Contractor shall meet with the recipient of any notice or attend local public meetings as proper public outreach on local impacts caused by completion of the Work.

E. The Contractor shall take all necessary precautions to protect existing facilities against the effects of all weather and environmental elements and Contractor shall be strictly liable for failure to protect any facility.

F. All existing improvements and facilities shall be protected from any damage resulting from the operations, equipment, or workers of the Contractor during the entire Contract Time.

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G. The Contractor shall take all steps necessary to protect all structures, buildings, land, and other facilities from fires and sparks originating from the Work. The Contractor shall comply with all laws and regulations regarding fire protection and shall comply with all instructions given by the fire department with jurisdiction.

H. Any damage to existing conditions, or to any other improvement or property above or below the ground surface, whether public or private, arising from the Contractor’s operations or performance of the Work shall be repaired within forty-eight (48) hours by the Contractor without expense to the City, unless disruption of the City’s operations or creation of a safety hazard has occurred, in which case damage will be repaired immediately. The forty eight (48) hour non-emergency repair response time may be extended only if agreed to in writing by the City and/or private property owner. Any delays to the project completion times caused by such repairs shall be considered non-compensable and no further extension of the Contract Time will be granted therefor. Should the Contractor fail to timely repair damage caused by its operations or performance in accordance with this Section, the City may take steps to protect property and life, in its sole discretion, and deduct entire cost of such work from amounts due or that may become due the Contractor. No prior notice to the Contractor shall be necessary for the City to take such action.

I. The Contractor shall give at least 72 hours advance notice to the City before commencing any street work (such as pavement grinding or trenching) that may potentially damage any traffic signal detection loop wires or any other signal facility. This requirement is in addition to any Underground Services Alert notification action by the Contractor. The City will mark underground traffic signal facilities. The Contractor shall not proceed with any grinding, trenching, or other underground work until it has been verified with the Inspector that signal facilities have been marked. The Contractor shall be responsible for all damage to traffic signal facilities arising from failure to properly comply with these provisions.

J. In the event that the Contractor's construction activities cause any failure of a traffic facility, it shall be repaired and be made fully operable within 24 hours of the damage occurring. In the event that such repair is not undertaken within this time limit, the City will repair the facility and deduct the cost from monies due to the Contractor. The amount deducted will consist of the repair cost and a 25% markup for administrative costs.

4.09 FEES AND PERMITS
A. The California Environmental Quality Act (CEQA) (Public Resources Code, §21000 and following), may be applicable to permits, licenses and other authorizations which the Contractor must obtain from local agencies in connection with performing the work of the Contract. The Contractor shall comply with the provision of those statutes in obtaining such permits, licenses, and other authorizations, and they shall be obtained in sufficient time to prevent delays in the Work. In the event that the City has obtained permits, licenses, or other authorization applicable to the work in conformance with the requirements of CEQA, the Contractor shall comply with the provisions of these permits, licenses, and other authorizations.

4.10 PROVISIONS FOR HANDLING EMERGENCIES
A. It is possible that emergencies may arise during the progress of the Work, which may require special treatment or make advisable extra shifts of labor forces to continue the Work for twenty four (24) hours per day. These emergencies may be caused by damage or possible damage to nearby existing structures or property by reason of the work under construction, or by storm, accidents, or leakage. The Contractor shall be prepared in case of such emergencies to make all necessary repairs and shall promptly execute such work when required by the Construction Manager. The determinations made by the Construction Manager for handling emergencies shall be final and conclusive upon the parties.

Upon start of the Work, Contractor shall provide means for immediate emergency notification of Contractor’s designated representative and designated emergency alternates.

4.11 STANDARD AND NONSTANDARD WORKING HOURS
A. Work hours shall conform to all applicable Federal, State, County, and local laws, ordinances, and codes applicable to the Work. Where any of these laws are in conflict, the more stringent requirements shall be followed.

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B. All work shall be performed during the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday. This restriction includes deliveries of materials and equipment and servicing of construction equipment on the Project Site. Any work outside this time frame shall be allowed only with prior written permission from the City’s Representative. The actual time the City’s personnel, Construction Manager or Engineer spend working outside this time frame shall be billed to the Contractor at the personnel’s standard charge out rate. Any work designated to have a special time frame shall be so noted on the Plans and/or elsewhere in these Specifications and shall be excluded from this reimbursement.

C. The Contractor may be required to prosecute the Work at night or outside of the standard working hours defined in 4.11.B above. Such work may be required due to project and/or operational constraints as defined in the Contract Documents, or if emergencies arise as provided for in Section 00700-4.10, Provisions for Handling Emergencies. When required, ordered, or permitted to work at night, the Contractor shall provide sufficient and satisfactory lighting and other facilities therefor. Subject to applicable law, for work outside of the normal working hours, the Contractor shall receive no extra payment, but compensation shall be considered as having been included in the price stipulated for the Work, except for authorized work performed outside of the Contract requirements.

D. Should the Contractor perform work outside of the standard hours of 7:00 a.m. and 6:00 p.m., Monday through Friday without the City’s written permission, the City will charge the Contractor, as a penalty, five hundred dollars ($500.00) for each infraction. This charge will be deducted from the next progress payment due Contractor.

E. If by 9:00 a.m. each and every work day the Contractor is not going to perform any work, the Contractor is to review the entire Site, considering all situations, and notify the Construction Manager that the Site has been reviewed and the Site is secure. Should any mitigation be necessary, the Contractor should also advise the Construction Manager.
**END ARTICLE 4**

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ARTICLE 5 - SUBCONTRACTORS

5.01 SUBLETTING AND SUBCONTRACTING
A. The Contractor must adhere to the rules governing subcontracting as set forth in the Subletting and Subcontracting Fair Practices Act, commencing with Public Contract Code §4100. Subcontractor substitutions must be in accordance with provisions of the Subletting and Subcontracting Fair Practices Act, beginning with Public Contract Code §4100. Violations of this Act by the Contractor may subject the Contractor to penalties and disciplinary action pursuant to the Subletting and Subcontracting Fair Practices Act.

B. The Contractor is responsible for all Work performed pursuant to the requirements of the Contract Documents, including Work Subcontracted to others. All persons engaged in the Work of the Project are the responsibility of and subject to the control of the Contractor.

C. No Subcontractor will be recognized as such, and all persons engaged in the Work will be considered as employees of Contractor who is responsible for their work, which is subject to all the provisions of the Contract Documents.

D. When any Subcontractor fails to execute a portion of the Work in a manner satisfactory to City, the Contractor must remove such Subcontractor immediately upon written notice from City, and the Subcontractor must not again be employed on the Project.

E. Although the Contract Documents are divided into Sections, Articles, Parts, Sub-Parts and Divisions, Sections, and Paragraphs, it is not intended to provide a basis for the Bidding, assignment, or performance of the Work. Contractor is fully responsible for assigning the Work to the various Subcontractors, Suppliers and vendors that will be bidding or performing the Work. The City will not entertain requests to arbitrate disputes among Subcontractors or between the Contractor and Subcontractor(s) concerning responsibility for performing any part of the Work.

5.02 SUBCONTRACTOR’S CONTRACTUAL OBLIGATIONS
A. By an appropriate agreement, Contractor shall require each Subcontractor, to the extent of that Subcontractor’s work, to be bound to Contractor by the terms of the Contract, and to assume toward Contractor all the obligations and responsibilities which Contractor, by these Contract Documents, assumes toward City.

B. Said subcontracts and agreements must preserve and protect City’s rights pursuant to the Contract with respect to the Subcontractor’s or Suppliers Work so the subcontracting thereof will not prejudice such rights. Contractor must require each Subcontractor to enter into similar agreements with its Sub subcontractors.

C. Contractor must make available to each proposed Subcontractor and Supplier, prior to execution of the subcontract or agreement, copies of the Contract Documents to which the Subcontractor or Supplier will be bound and, upon written request of the Subcontractor or Supplier, identify to the Subcontractor or Supplier any terms and conditions of the proposed subcontract or agreement that may be at variance with the Contract. Each Subcontractor must similarly make copies of all such Documents available to its proposed Sub subcontractors.

D. The Contractor shall not employ any subcontractors that are not properly licensed in accordance with State law. Prior to commencement of any work by a subcontractor, the Contractor shall submit verification to the Construction Manager that the subcontractor is properly licensed for the work it will perform.

E. Each subcontract agreement shall expressly incorporate by reference the Contract Documents, including the following provisions:

1. Each subcontractor shall carry insurance as required by the Contract Documents, and provide evidence of such insurance, as provided in Section 00700- Article 13, Insurance and Indemnification.

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2. Each subcontractor shall be obligated to defend, indemnify, and hold harmless the City and additional insureds listed in Section 00700- Article 13, Insurance and Indemnification, from all claims arising from the subcontractor’s portion of the Work in the same manner as Contractor.

3. Each subcontract shall include language assigning the subcontract to the City in the event City terminates Contractor. The assignment shall be effective at City’s discretion. The Contractor hereby assigns to the City each Subcontract entered into by Contractor for performance of any part of the Work provided that:

The assignment is effective only after the City’s termination of the Contractor’s right to proceed under the Contract Documents, (or portion thereof relating to that Subcontract), see Section 8.10, City’s Right to Terminate Contract;
The assignment is effective only for the Subcontracts which the City expressly accepts by notifying the Subcontractor in writing;
The assignment is subject to the prior rights, if any, of the Surety, where the Surety exercises its rights to complete the Contract;
After the effectiveness of an assignment, the Contractor shall, at its sole cost and expense, sign all instruments and take all actions reasonably requested by the City to evidence and confirm the effectiveness of the assignment to the City; Nothing in this paragraph shall modify or limit any of the Contractor’s obligations to the City arising from acts or omissions occurring before the effectiveness of any Subcontract assignment, including but not limited to all defense, indemnity and hold harmless obligations arising from or related to the assigned Subcontract; and The City may accept the assignment at any time during the course of the Work and prior to Final Completion in the event of a suspension or termination of Contractor’s rights under the Contract Documents. Such assignment is part of the consideration to the City for entering into the Contract with the Contractor and may not be withdrawn.

5.03 CONTROL OF SUBCONTRACTORS
A. Subcontractors will not be recognized as having a direct relationship with the City. The persons engaged in the work, including employees of subcontractors and suppliers, will be considered employees of the Contractor and their work shall be subject to the provisions of the Contract.

References in the Contract Documents to actions required of subcontractors, manufacturers, suppliers, or any person other than the Contractor, the City or the Construction Manager shall be interpreted as requiring that the Contractor shall require such subcontractor, manufacturer, supplier or person to perform the specified action.

B. Contractor must:

1. Schedule and coordinate the Work of all Subcontractors;

2. Instruct all Subcontractors to consult with other Subcontractors to ascertain the locations of their various materials including stored materials and to familiarize themselves with their own material locations, making such changes as required to obtain the best results;

3. Instruct all Subcontractors to schedule their Work and cooperate with the other Subcontractors to avoid delays, interferences, and unnecessary work, to conform to the schedule of operations as indicated in the Official Progress Schedule, and make Installations when and where directed.

4. Make all necessary changes, including removing and reinstalling of materials, at their sole expense if they fail to check with other Subcontractors, and their Installed Work is later found to interfere with Work of other Subcontractors.

5. Follow up to ensure that all Subcontractors install their Work when and where directed. **END ARTICLE 5**

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ARTICLE 6 - CONSTRUCTION BY CITY OR BY SEPARATE CONTRACTORS

6.01 CITY’S RIGHT TO PERFORM CONSTRUCTION AND AWARD SEPARATE CONTRACTS A. City has the right to perform work at any time related to the Project with its own forces and/or to Award separate contracts in connection with other portions of the Project or other work on the Site pursuant to these or similar conditions of this Contract.

B. When separate contracts are awarded for different portions of the Project or other work on the Site, the term contractor in the Contract Documents in each case means the contractor who executes each separate City/Contractor Agreement.

6.02 COOPERATION WITH CITY’S FORCES AND OTHER CONTRACTORS EMPLOYED BY CITY A. Unless otherwise indicated in the Contract Documents, City will provide for the coordination of the work of City’s own forces and of each separate contractor with the Work of the Contractor, who must cooperate therewith as provided herein.

B. When Contractor and one or more other contractors are employed by City on related or adjacent work, Contractor must not cause any unnecessary delay or hindrance to the other contractors.

C. If the performance of the Work of this Contract is likely to be interfered with by the simultaneous performance of the work of some other separate contract or contracts, the City will decide which contractors or Contractor may proceed.

D. Contractor must accommodate City move-in activities including installation of Furniture, Fixtures, and Equipment by City or others.

6.03 MUTUAL RESPONSIBILITY
A. The Contractor must cooperate fully with City and all separate contractors including utility companies with regard to the execution of their Work as follows:

1. The Contractor must cooperate fully with City and all separate contractors with regard to introduction and storage of their materials and equipment.

2. The Contractor must coordinate with City, all separate contractors, and all utility companies with regard to construction scheduling, sequence of operations and Site access, all subject to approval of the City. Contractor must include activities in Contractor’s Progress Schedule for all on-site activities performed by utility companies.

3. The Contractor must coordinate and accommodate the concurrent installation of inserts, hangers, blocking, and all other items or embeds to be installed by others within or upon the Contractor’s Work. The Contractor must coordinate and schedule the concurrent installation of these items in such a manner to cause no Critical Path delay to its Work or the work of others.

4. The Contractor must properly connect the Work to the work of City or the separate contractors.

5. The Contractor must inspect the work of City or other contractors affecting the Work and promptly report to the City in writing irregularities or defects in the separate work that render it unsuitable for reception or connection of the Work.

6. Failure of the Contractor to inspect and report constitutes acceptance of the other work as fit and proper to receive the Work, except as to defects that may develop in the other work after execution of the Contractor’s Work.

6.04 CITY’S RIGHT TO CLEAN UP
A. If a disagreement or Dispute arises among the Contractor, separate contractors and/or City as to the responsibility pursuant to their respective contracts for maintaining the Project Site and surrounding areas free from waste materials and rubbish, City may clean up or cause to be cleaned up the waste, materials, and rubbish and allocate the costs among those responsible, and deduct each contractor’s share from progress payments due or to become due to each contractor. **END ARTICLE 6**

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ARTICLE 7 - CONTROL OF THE WORK AND MATERIALS

7.01 MEANS, METHODS AND APPLIANCES
A. The means, methods, and appliances adopted by the Contractor shall be planned and executed to produce the highest grade quality of work and will enable the Contractor to complete the Work in the time agreed upon. The City and Construction Manager shall not supervise, direct, or have control over, or be responsible for, Contractor’s means, methods and appliances of construction or for the safety precautions and programs incident thereto, or for any failure of Contractor to comply with laws and regulations applicable to the furnishing or performance of Work. However, if at any time the means, methods and appliances appear inadequate or of inferior quality, the Construction Manager may order the Contractor to improve their character or efficiency, and the Contractor shall conform to such order; failure of the Construction Manager to order such improvement of methods of efficiency will not relieve the Contractor from its obligation to perform satisfactory work and to finish the Work in the time agreed upon.

B. The approval by the Engineer of any drawing or any method of work proposed by Contractor does not relieve Contractor of responsibility for any errors and is not an assumption of risk or liability by City or any City officer or employee. Contractor has no claim under the Contract on account of the failure or partial failure or inefficiency of any plan or method so approved. Such approval by the Engineer merely means that the Engineer has no objection to Contractor’s using, at Contractor’s sole responsibility and risk, the plan or method Contractor proposes.

C. Subject to the Contract Times specified in the Contract Documents, the Contractor is solely responsible for planning and scheduling the means, methods, and appliances to address weather conditions that may occur during the course of the Work. The Contractor is solely responsible for all costs to address such means, methods, and appliances and for the direct and indirect costs resulting from weather conditions

7.02 CONTRACTOR’S RESPONSIBILITY FOR WORK
A. Until the formal acceptance of the work by the City, the Contractor shall have the charge and care and shall bear the risk of injury or damage to any part thereof by the action of the elements or from any other cause, whether arising from the execution or non-execution of the work.

B. The Contractor shall rebuild, repair, restore and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense, except such injuries or damages occasioned by the acts of the Federal government or acts of war.

C. In case of suspension of work from any cause whatsoever, the Contractor shall be responsible for the work as previously specified and shall also be responsible for all materials delivered to the work. Where necessary to protect the work from damage, the Contractor shall, at his own expense, provide suitable drainage of the worksite and erect such temporary structures as necessary to protect the work from damage during any period of suspension of work.

D. The Contractor shall provide twenty-four (24) hour emergency service for all maintenance and operations of the work specified and shall supply the City with the name and phone number of the responsible person. Emergency service shall be within thirty (30) minutes from the time of notification.

If the Contractor fails to provide this service, the City shall perform such emergency service and the cost thereof shall be deducted from the next progress pay estimate due the Contractor.

7.03 SUPPLY OF SUFFICIENT WORKERS
A. The Contractor shall at all times employ qualified workers sufficient to prosecute the Work at a rate and in a sequence and manner necessary to complete the Work within the Contract Time(s). This obligation shall remain in full force and effect notwithstanding disputes or claims of any type. At any time during the progress of Work, should Contractor directly or indirectly (through subcontractors), refuse, neglect, or be unable to employ a sufficient number of qualified workers to prosecute the Work as required, then the City may require the Contractor to accelerate the Work and/or furnish additional qualified workers as City may consider necessary, at no cost to City.

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B. If Contractor does not comply with the notice within five (5) days of date of service thereof. City shall have the right (but not a duty) to provide qualified workers to finish the Work or any affected portion of Work, as City may elect. City may at its discretion, exclude Contractor from the Site, or portions of the Site or separate Work elements during the time period that City exercises this right. City will deduct from moneys due or which may thereafter become due under the Contract Documents, the sums necessary to meet expenses thereby incurred and paid to persons doing Work. City will deduct from funds or appropriations set aside for purposes of Contract Documents, the amount of such payments and charge them to Contractor as if paid to Contractor. Contractor shall remain liable for resulting delay, including liquidated damages and indemnification of City from claims of others.

C. Exercise by City of the rights conferred upon City in this Section 00700, General Conditions, is entirely discretionary on the part of City. City shall have no duty or obligation to exercise the rights referred to in Section 00700-7.03, Supply of Sufficient Workers, and its failure to exercise such rights shall not be deemed an approval of existing Work progress or a waiver or limitation of City's right to exercise such rights in other concurrent or future similar circumstances. The rights conferred upon City under Section 00700-7.03, Supply of Sufficient Workers, are cumulative to City's other rights under any provision of the Contract Documents.

7.04 MATERIALS AND WORKMANSHIP
A. Unless otherwise indicated in these Specifications, or favorably reviewed by the Design Engineer, materials and equipment for the construction work shall be the best grade in quality of a manufacturer regularly engaged in the production of such materials and equipment or materials and equipment of comparable character. All materials must be of the specified quality and equal to approved samples, if samples have been submitted. All work shall be done and completed in the best workmanlike manner.

All permanent materials and equipment shall be new unless otherwise specified.

B. All defective work or materials shall be promptly removed from the premises by the Contractor, whether in place or not, and shall be replaced or renewed in such manner as the Construction Manager may direct. All materials and workmanship of whatever description shall be subjected to the inspection of, and rejection by, the Construction Manager if not in conformance with the Contract Documents. The decision of the Construction Manager is final and conclusive upon the parties.

C. Unless otherwise stipulated in the Contract Documents, any defective material or workmanship, or any unsatisfactory or imperfect work which may be discovered before the final acceptance of the Work or within one (1) year thereafter, shall be corrected immediately upon the receipt of notice from the Construction Manager, without extra charge, notwithstanding that it may have been overlooked in previous inspections and estimates. Failure to inspect work shall not relieve the Contractor from any obligation to perform sound and reliable work as herein described.

D. In the event that the Contractor shall fail to comply with the conditions of the foregoing guarantee, and other contractual warranty provisions, within ten (10) calendar days’ time after the date of written notification of the defect, the City shall have the right, but shall not be obligated to repair, or obtain the repair of, the defect and the Contractor shall pay to the City on demand all costs and expense of such repair. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee results in a condition which constitutes an immediate hazard to the health or safety, or any property interest, or any person, the City shall have the right to immediately repair, or cause to be repaired, such defect, and the Contractor shall pay to the City on demand all costs and expense of such repair. The foregoing statement relating to hazards to health, safety or property shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of the City.

7.05 USE OF MATERIALS FOUND ON THE PROJECT SITE
A. The City does not warrant the suitability of any native material on the Project Site for use in the Project.

The Contractor, with the approval of the Engineer, may use in the proposed construction such stone, gravel, sand or other material as may be found on the Project Site and deemed suitable in the opinion of the Engineer. The Contractor shall replace at his own expense all of that portion of the material so removed and used with other suitable material. No charge for native materials so used will be made against the Contractor. The Contractor shall not excavate or remove any material from any roadway

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location that is not within the excavation, as indicated by the slope and grade lines shown on the Contract Drawings, without written authorization from the Engineer.

7.06 EXISTING UTILITIES
A. General:

1. The location of known existing utilities and pipelines are shown on the Drawings in their approximate locations. However, nothing herein shall be deemed to require the City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the Site of the Project can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the Site of the Project.

2. The City will assume the responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on the Project Site if such utilities are not identified by the City in the Contract Documents or which cannot reasonably be inferred from the presence of other visible facilities.

B. Utility Relocation:

1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which have been marked by the respective utility owners and which the Contractor believes may affect or be affected by the Contractor’s operations. The Contractor shall not be entitled to additional compensation or time extensions for work necessary to avoid interferences nor for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this Section.

2. The locating of utilities shall be in conformance with California Government Code §4216 et seq. except for the City’s utilities located on the City’s property and not on public right-of-way.

3. A “High Priority Subsurface Installation” is defined in §4216 (j) as “high-pressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60 psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, highvoltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”

4. A “Subsurface Installation” is defined in California Government Code §4216(s) as “any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines.”

5. Pursuant to California Government Code §4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not more than fourteen (14) calendar days before performing any excavation. The Contractor shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. The Contractor shall furnish to the Construction Manager written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.

6. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit. The Construction Manager shall be given notice prior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe when required by the City, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.

7. The Contractor's attention is directed to the requirements of California Government Code §4216.2 (c) which provides: “When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities required to verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be

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used during the excavation and the information the operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” The Contractor shall notify the Construction Manager in advance of this meeting.

C. Utility Relocation and Repair:

1. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, the Contractor shall notify the Construction Manager in writing. The Construction Manager will supply a method for correcting said interferences in accordance with the responsibilities of this Section and California Government Code §4215.

2. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, the Contractor shall call 911 emergency services.

3. The City will compensate the Contractor for the costs of locating and repairing damage not due to the failure of the Contractor to exercise reasonable care, and for removing or relocating such main or trunk line utility facilities not indicated in the Contract Documents with reasonable accuracy, and for the cost of equipment on the Project necessarily idled during such work. The payment for such costs will be made as provided in Section 00700-Article 9, Changes in the Work. The Contractor shall not be assessed liquidated damages for delay in completion of the Project, when such delay is caused by the failure of the City or utility company to provide for removal or relocation of such utility facilities. Requests for extensions of time arising out of utility relocation or repair delays shall be filed in accordance with Section 01324, Progress Schedules and Reports.

4. The public utility, where they are the owner of the affected utility, shall have the sole discretion to perform repairs or relocation work or permit the Contractor to do such repairs or relocation work at a reasonable price. The right is reserved to the City and the owners of utilities or their authorized agents to enter upon the Work area for the purpose of making such changes as are necessary for the rearrangement of their facilities or for making necessary connections or repairs to their properties. The Contractor shall cooperate with forces engaged in such work and shall conduct its operations in such a manner as to avoid any unnecessary delay or hindrance to the work being performed by such forces and shall allow the respective utilities time to relocate their facility.

5. When the Contract Documents indicate that a utility is to be relocated, altered, or constructed by others, the City will conduct all negotiations with the utility company and the work will be done at no cost to the Contractor, unless otherwise stipulated in the Agreement.

6. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractor’s responsibility and it shall make arrangements and bear all costs for such work.

7. All Underground Services Alert (USA) markings on concrete or asphaltic pavement or other structures shall be removed when they are no longer required. Acceptable means of removal include sand blasting or high pressure water blasting.
**END ARTICLE 7**

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ARTICLE 8 - PROGRESS OF THE WORK AND TIME

8.01 COMMENCEMENT OF THE WORK
A. Within ten (10) calendar days after receipt of the required bonds and evidences of insurance and the executed Agreement from the Contractor, written Notice to Proceed will be given by the City to Contractor. Notwithstanding other provisions of the Contract, the Contractor shall not be obligated to perform work, and the City shall not be obligated to accept or pay for work performed by the Contractor, prior to Notice to Proceed. The Contractor shall provide the required Contract bonds and evidences of insurance prior to Notice to Proceed and commencing work at the Site.

B. The Contractor shall commence the Work covered by this Contract within ten (10) days after the date established in the Notice to Proceed for the commencement of Contract Time.

C. The Contractor shall give the Construction Manager written notice not less than two (2) working days in advance of the actual date on which the work will be started. The Contractor shall be entirely responsible for any delay in the work which may be caused by its failure to give such notice.

8.02 CONTRACT TIME
A. Time is of the essence in the performance of this Contract. The Contractor shall prosecute the work so that the various portions of the project shall be complete and ready for use within the time specified in Sections 00510, Agreement, and 00800, Supplementary General Conditions. It is expressly understood and agreed by and between the Contractor and the City that the Contract Time for completion of the Work described herein is a reasonable time taking into consideration the general climatic and economic conditions and other factors prevailing in the locality and the nature of the Work. The Contractor is hereby advised that the Contractor’s Bid is to be based on the entire Contract Time and the Contractor shall include its field and home office overhead costs in the Bid for the entire Contract Time.

8.03 DELAYS
A. Notice of Delays

1. When the Contractor foresees a delay in the prosecution of the Work and, in any event, immediately upon the occurrence of a delay, the Contractor shall notify the Construction Manager in writing of the probability of the occurrence of the delay, and its cause. The Contractor shall provide this notice no later than five (5) calendar days after the occurrence of such delay, including weather delays as specified herein. The Contractor shall take immediate steps to prevent, if possible the occurrence or continuance of the delay. The Contractor agrees that no claim shall be made for delays which the Construction Manager is not notified of within the time specified herein.

Contractor further agrees that Contractor shall not be permitted any additional time for completion of the Work or any additional compensation as a result of delay unless Contractor notifies the Construction Manager of the delay within the time specified herein.

B. Non-Excusable Delays

1. Non-excusable delays in the prosecution of the Work shall include delays which could have been avoided by the exercise of care, prudence, foresight, and diligence on the part of the Contractor or its subcontractors, at any tier level, or suppliers. The Contractor shall receive no compensation or time extension for such delay.

C. Excusable Delays

1. Excusable delays in the prosecution or completion of the Work shall include delays to the Critical Path which result from causes beyond the control of the Contractor and City and which could not have been avoided by the exercise of care, prudence, foresight, and diligence on the part of the Contractor or its subcontractors, at any tier level, or suppliers. The Contractor shall receive no compensation for such delay.

Abnormal Delays- Delays caused by a Force Majeure Event shall be considered as excusable delays insofar as they prevent the Contractor from proceeding with the Work for at least five (5) hours per day toward completion of the current critical activity item(s) on the latest favorably reviewed progress schedule.

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Weather Delays- Should inclement weather conditions or the conditions resulting from weather prevent the Contractor from proceeding with seventy five (75) percent of the normal labor and equipment force engaged in the current critical activity item(s), (as shown on the latest CPM Progress Schedule accepted by the Construction Manager), for a period of at least five (5) hours per day toward completion of such operation or operations, and the crew is dismissed as a result thereof, it shall be a weather delay day. An allowance of three (3) working days of weather caused delay have been included in the time allowed for completion.

These weather days shall be included in the Contractor’s schedule as specified in Section 01324-1.08, Weather Conditions and Weather Day Allowance.

Material Critical Supply Shortages- Upon the submission of satisfactory proof to the Construction Manager by the Contractor, Critical Supply Shortage of material may be acceptable as grounds for granting a time extension. See definition of Critical Supply Shortage in Article 1.02, Definitions of Words and Terms. A time extension for shortage of material will not be considered for material ordered or delivered late or whose availability is affected by virtue of the mishandling of procurement. The above provisions apply equally to equipment to be installed in the work.

D. Compensable Delays

1. Compensable delays in the prosecution or completion of the Work shall include delays that occur through no fault of the Contractor or its subcontractors and prevent the Contractor from proceeding with the Work for at least five (5) hours per day toward completion of the current critical activity item(s) on the latest favorably reviewed progress schedule due to the following cause(s):

Delays due solely to the actions and/or inactions of the City.

Delays due to differing Site conditions as defined in Section 00700-9.02.G, Differing Site Conditions.

Delays due to other Contractors employed by the City who interfere with the Contractor's prosecution of the Work as defined above.

E. Concurrent Delays

1. Concurrent delays are those delay periods when the prosecution of the Work is delayed during the same period of time due to causes from a combination of the delays defined in Sections 00700-

8.03.B, Non-Excusable Delays, 00700-8.03.C, Excusable Delays, or 00700-8.03.D, Compensable Delays. During such concurrent delay periods, time extensions will be granted in accordance with Section 00700-8.04, Time Extensions; however, the Contractor will be granted a noncompensable time extension, shall not be compensated for its overhead costs as defined in section 00700-8.05, Indirect Overhead and the City shall not assess its actual costs as defined in Section 00700-8.04.A, Non-Excusable Delays.

F. Critical Activity

1. The definition and application of the term “critical activity” and “critical path” as used in Section

8.03, Delays, and 8.04, Time Extensions, is specified in Section 01324, Progress Schedules and Reports.

8.04 TIME EXTENSIONS
A. Non-Excusable Delays

1. The City, at its sole option, may grant an extension of time for milestone or completion dates for non-excusable delays if the City deems it is in its best interest. If the City grants an extension of time for non-excusable delays, the Contractor agrees to pay the City's actual costs, arising from the delay, including charges for engineering, inspection, and administration incurred during the extension, as determined by City.

B. Excusable or Compensable Delays

1. If the Contractor is delayed in the performance of its work as defined in Sections 00700-8.03.C, Excusable Delays, or 00700-8.03.D, Compensable Delays, then milestone and Contract completion dates may be extended by the City for such time that, in the City's and Construction

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Manager's determination, the Contractor's completion dates will be delayed, provided that the Contractor strictly fulfills the following:

The Contractor shall provide notification, in accordance with Paragraph 00700 8.03.A, Notice of Delays, and submit in writing a request for an extension of time to the Construction Manager stating at a minimum the probable cause of the delay and the number of days being requested. The time extension request shall be submitted in accordance with the requirements of Section 01324, Progress Schedules and Reports.

If requested by the Construction Manager, the Contractor shall promptly provide sufficient information to the Construction Manager to assess the cause or effect of the alleged delay, or to determine if other concurrent delays affected the Work.

Weather Delays. The Contractor will be granted a non-compensable time extension for weather caused delays, pursuant to Section 00700-8.03.C.1.b, Weather Delays, over and above an allowance as provided for in Section 01324, Progress Schedules and Reports.. No time extensions for weather delays will be granted until the total number of weather days exceeds this allowance. The provisions of paragraphs a. and b. above also apply to Weather Delays. Both the use of the Weather Day allowance and the granting of additional days to the Contract due to weather require an actual impact to the critical path as defined below and in Section 01324, Progress Schedules and Reports.

2. Should the Contractor fail to fulfill any of the foregoing, which are conditions precedent to the right to receive a time extension, the Contractor waives the right to receive a time extension.

3. During such extension of time, neither extra costs incurred by the City for engineering, inspection and administration nor damages for delay will be charged to the Contractor. It is understood and agreed by the Contractor and City that time extensions due to excusable or compensable delays will be granted only if such delays involve an impact to the Critical Path that would prevent completion of the whole Work within the specified Contract time. Attention is directed to Section 01324, Progress Schedules and Reports, regarding the use of float in the Project schedule as related to time extensions.

4. Should the Contractor fail to complete the Work within the time specified in the Contract, as extended in accordance with this Section if applicable, the Contractor shall forfeit and the City may recover liquidated damages in accordance with Section 00700-8.06, Liquidated Damages.

5. Upon Contractor’s submittal of satisfactory proof to Construction Manager of a Force Majeure event causing an unavoidable Controlling Operation delay, the delay shall be considered an Excusable Delay. Any claim by Contractor to classify a Force Majeure event as a Compensable Delay shall be handled pursuant to Article 11, Protests, Disputes and Claims. See definition of Force Majeure in Article 1.02, Definitions of Words and Terms.

8.05 INDIRECT OVERHEAD
A. The Contractor shall be reimbursed for indirect overhead expenses for periods of time when the Work is delayed as defined in Section 00700-8.03.D, Compensable Delays, only when such delay involves an impact to the Critical Path that would prevent completion of the whole Work within the specified Contract Time. However, no reimbursement for indirect overhead shall be made for compensable delays which occur during a concurrent delay as defined in Section 00700-8.03.E, Concurrent Delays.

If it is mutually agreed that the allowable markups provided for in Section 00700-Article 9, Changes in the Work, do not provide equitable compensation for the Contractor’s indirect overhead expenses then the adjustments provided for under this Section shall be applied and the change order markups in 00700-Article 9, Changes in the Work, reduced to reflect the compensation provided by this Section.

As a condition precedent to any reimbursement, the Contractor must fulfill all conditions as provided in Section 00700-8.04.B, Excusable or Compensable Delays. No additional markup for overhead or profit shall be provided for such indirect overhead expenses.

B. Payment to the Contractor for indirect overhead expenses will be made only if the extended Contract period granted for the compensable delay(s) is required to complete the work following the depletion of the original Contract period and any time extensions granted other than compensable time extensions.

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C. Indirect Field Overhead

1. For those allowable delay periods as defined in Section 00700-8.05, Indirect Overhead, the Contractor shall be reimbursed for its indirect field overhead based on:

Actual invoice costs for on-Site field offices, storage vans and temporary utilities.

Actual labor costs, as determined consistent with Section 00700-9.03.A.1, Direct Field Labor for office staff labor.

Fair rental values acceptable to the Construction Manager as described in Section 00700-

9.03.A.3, Construction Equipment, for construction equipment idled due to the delay.

8.06 LIQUIDATED DAMAGES FOR FAILURE TO MEET COMPLETION DATES A. The City and the Contractor recognize that time is of the essence of this Agreement and that the City will suffer financial loss if the Work is not completed within the time specified in Sections 00510, Agreement, and 00800, Supplementary General Conditions, and required milestone work in Sections 00510 and 00800, herein, plus any extensions thereof allowed in accordance with Section 00700-8.04, Time Extensions. It is hereby understood and agreed that it is and will be difficult and/or impossible to ascertain and determine the actual damage which the City will sustain in the event of and by reason of the Contractor’s failure to fully perform the Work or to fully perform all of its contract obligations that have accrued by the time for completion as specified in Sections 00510 and 00800, herein and/or as specified for completion of any scheduled operations or works described in the Contract Documents. It is, therefore, agreed in accordance with California Government Code §53069.85 that the Contractor will forfeit and pay to the City liquidated damages in the amount set forth in Sections 00510 and 00800, per day for each and every calendar day that expires after the time for completion specified in Sections 00510 and 00800, herein and/or as specified for completion of any scheduled operations or works described in the Contract Documents, except as otherwise provided by extension of time pursuant to Section 00700-8.04, Time Extensions. It is further understood and agreed in accordance with California Government Code §53069.85 that the liquidated damages sum specified in this provision is not manifestly unreasonable under the circumstances existing at the time this Contract was made, and that the City may deduct liquidated damages sums in accordance with this provision from any payments due or that may become due the Contractor.

B. Liquidated damages will continue to accrue at the stated rate until Substantial Completion of the Work.

Accrued liquidated damages may be deducted by the City from amounts due or that become due to the Contractor for performance of the Work.

8.07 LIQUIDATED DAMAGES FOR PUBLIC HARDSHIP, NEGATIVE IMPACT, AND DAMAGE TO

EXISTING UTILITY MAINS
A. The liquidated damage provision described below is intended to compensate for the public hardship and negative impact resulting from the Contractor’s failure to comply with specific construction constraints, which are difficult to quantify despite the definite impact to the City. The assessment of liquidated damages under this provision shall not preclude recovery by the City of other damages subject to reasonable quantification, including consequential damages. The liquidated damages are separate and distinct liability from any other damages that are subject to quantification resulting from such Contractor activities, for which the Contractor also shall remain liable. Consequential and other damages not provided for by this liquidated damages provision may include, but are not limited to, firstand third-party claims for personal injuries and/or property damages, inverse condemnation, environmental claims, or regulatory fees or fines imposed in whole or in part due to Contractor’s acts or failures to act.

B. Liquidated damages shall be deducted from the progress payments or from any other monies due to or to become due the Contractor. If the payments due to the Contractor are less than the amount of such liquidated damages, the Contractor or its Surety shall pay the balance to the City.

C. The liquidated damages considered in this Section shall apply to the damages to the City that are difficult to quantify and that are caused by, among other causes, the Contractor’s failure to comply with the following requirements:

1. Traffic Control.

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2. Work Hours.

3. Site Cleanliness.

4. Public Notification.

5. Maintenance of Temporary Pavement.

6. Rights-of-Way Restrictions.

D. It is recognized that it is and will be impractical to ascertain and determine the exact amount of damages that the City will suffer as a result of the public hardship or negative impact. The factors relating to the impracticability of ascertaining a monetary value for such hardships or negative impacts include, but are not limited to, the fact that: (i) it is difficult to calculate all actual time spent by City staff, management, consultants, and other agency staff in dealing with the public hardship or negative impact; (ii) such public hardship or negative impact causes inconvenience, anxiety, and frustration to individual members of the general public in subjective ways and in varying degrees of intensity that bear on the City and that are incapable of measurement in precise monetary terms; (iii) the public hardship or negative impact is cumulative with each occurrence. Therefore, the Contractor and the City mutually agree that the amount set forth in Section 00800-1.2, Amount of Liquidated Damages, including the escalation amounts for repeated or protracted occurrences, is reasonable as a liquidated damage amount for each situation creating public hardship or negative impact. This liquidated damage provision is a separate and distinct liability from any other damages that are subject to quantification resulting from such Contractor activities, for which the Contractor also shall remain liable. Quantifiable damages may include, but shall not be limited to, repairs to damaged property, additional right-of-way compensation, or fines. Liquidated damages imposed shall be deducted from the progress payments or from any other monies due or to become due to the Contractor. If the payments due to the Contractor are less than the amount of such liquidated damages and actual damages, the Contractor or its Surety shall pay the balance to the City.

E. The Contractor shall be responsible for the discovery and protection of all existing underground utilities and installations in accordance with the Contract Documents.

F. If the Engineer determines that damage to an existing utility main is due to the Contractor’s noncompliance with the Contract Documents, or inadequate effort in discovering or protecting the utility main lines, ducts, or cables (excluding service lines), the Contractor shall be responsible for the quantifiable City expenses and damages, including without limitation consequential damages, time and resources spent by City staff, management, and consultants in dealing with such utility damage and impacts, and any and all costs related to repairs by the utility, resulting from such damage to the utility.

8.08 ACCELERATION OF WORK
A. City reserves the right to direct the Contractor to accelerate performance of the Work or any portion of the Work. No action or direction of City other than an express written Order by the City’s Representative to accelerate performance of the Work shall be construed by the Contractor to be direction to accelerate the Work.

B. If the Contractor believes that some action or inaction on the part of City constitutes an acceleration directive, the Contractor must immediately notify the City in writing that the Contractor considers the actions or inaction an acceleration directive. This written notification must detail the circumstances of the acceleration directive. Should the Contractor fail to provide timely written notice of any such acceleration directive prior to accelerating its performance of the Work, or any portion thereof, the Contractor waives the right to receive additional compensation for any acceleration costs incurred.

C. Contractor must keep Daily cost and other Project records related to the City’s acceleration Directive separate from other Project costs and records, and must submit a written Daily record of acceleration cost to City at the end of each Day.

D. Allowable labor costs are limited to overtime or shift premium costs. Allowable equipment costs are only the cost of added equipment mobilized to the Site to accomplish the accelerated Work effort.

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8.09 SUSPENSION OF WORK
A. If the Contractor fails to correct defective work as required by Section 00700-7.03, Supply of Sufficient Workers, or fails to carry out the Work in accordance with the Contract Documents or any other applicable rules and regulations, the City, by a written order of the City's representative or signed personally by an agent specifically so empowered by the City, in writing, may order the Contractor to stop the work, in its entirety or any portion thereof. In the event of a suspension of only a portion of the work, the Contractor is obligated to perform the portion of the work not suspended. The Suspension of Work shall remain in effect until the condition or cause for such order has been eliminated. The City’s concurrence that the condition or cause has been eliminated will be provided to the Contractor in writing. This right of the City to stop and suspend the Work shall not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity. All delays in the Work occasioned by such stoppage shall not relieve the Contractor of any duty to perform the Work or serve to extend the time for its completion. Any and all necessary corrective work done in order to comply with the Contract Documents shall be performed at no cost to the City.

B. In the event that a suspension of Work is ordered, as provided in this paragraph, the Contractor, at its expense, shall perform all work necessary to provide a safe, smooth, and unobstructed passageway through construction for use by public, pedestrian, and vehicular traffic, during the period of such use by suspension. Should the Contractor fail to perform the Work as specified, the City may perform such work and the cost thereof may be deducted from partial payments and/or final payment due the Contractor under the Contract.

C. The City shall also have authority to suspend the Work wholly or in part, for such period as the City may deem necessary, due to unsuitable weather, or to such other conditions as are considered unfavorable for the suitable prosecution of the Work. Such temporary suspension of the Work will be considered justification for time extensions to the Contract in an amount equal to the period of such suspension if such suspended work includes the current critical activity on the latest favorably reviewed progress schedule. The Contractor as directed by the City shall comply with the provisions in Section 00700-8.09, Suspension of Work, above. Such additional work shall be compensated as provided for in Section 00700-Article 9, Changes in the Work.

8.10 CITY’S RIGHT TO TERMINATE CONTRACT
A. Termination for Default

1. If the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required under the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by the City based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor's act, or should any Subcontractor materially violate any of the provisions of the Contract Documents, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to provide the required project management, supervision, quality control, and/or supply enough properly skilled workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by City, or if the Contractor otherwise substantially fails to fulfill its obligations under the Contract Documents, the City may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of the City's intention to terminate the Contractor's performance under the Contract Documents. Said notice shall contain the reasons for such intention to terminate the Contractor's performance under the Contract Documents, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the City may terminate Contractor's performance under the Contract Documents and the Contractor shall not be entitled to receive any further payment until the Work is finished. Preliminary notice of any or all of the foregoing may be provided to the Surety by or on behalf of City so as to enable it to investigate the contentions

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and project status so as to be poised to promptly respond, as required in the performance bond, to a declaration from the City declaring the right of the Contractor to proceed to be terminated due to default. Upon receipt of such notice the Surety on the performance bond shall investigate the contentions raised and keep a record of its investigation in its files for a period of no less than five (5) years following the notice.

2. In the event of any such termination, the City shall serve written notice thereof upon the Surety and Contractor, and the Surety shall have the right to take over and perform the Work. However, if the Surety, within five (5) days after the service of a notice of termination, does not give the City written notice of its intention to take over and perform the Work, the City shall serve a demand upon Surety that it perform its obligations under the Performance Bond. If within ten (10) calendar days after receipt of such demand Surety fails to take over the Work or otherwise perform under the Performance Bond, or if Surety serves such notice of its intent to take over and perform the Work and does not begin performance thereof within fifteen (15) days from the date of serving said notice, the City may take over the Work and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to the City for any excess cost or other damage incurred by the City thereby. In such an event, the City may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for subcontractors and/or suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that City elects to complete by furnishing its own employees, materials, tools, and equipment, the City shall be compensated in accordance with the schedule of compensation for force account work as stated in Section 00700-Article 9, Changes in the Work.

3. If the Surety assumes the Contractor's terminated Work, it shall take the Contractor's place in all respects for that part and shall be paid by City for all Work performed by it in accordance with the terms of the Contract Documents. If the Surety assumes the entire Contract, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the Contract Documents.

4. Contractor hereby consents to assigning to the City and/or City's replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or supplier for such assignment prior to the commencement of each such Subcontractor's and/or supplier's conduct of the Work.

5. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums Bid and the quantity of Work completed at the time of termination, less damages caused to the City by acts of the Contractor causing the termination, including but not limited to, all costs to the City arising from professional services and attorneys' fees and all costs generated to insure or bond the work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay the difference to the City promptly upon demand. On failure of the Contractor to pay, the Surety shall pay on demand by City. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by California law.

6. The Contractor and the City agree that nothing in this Section is intended to create a right of either party to recover attorney fees as prevailing party in any lawsuit on this Contract.

7. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to City.

8. If it is later determined by the City that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, the City, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the City. If a Termination for Default is later determined to be wrongful,

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unsubstantiated, or otherwise without just cause, such Termination for Default will be automatically converted to, and treated as, a Termination for Convenience, in accordance with Section 00700-

8.10.B.

B. Termination for Convenience

1. The City may terminate the Contractor's performance under the Contract, either in whole or in part, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) days written notice of its intent to terminate the Contract for convenience, and shall endeavor to provide the Contractor with consultation with the City prior to termination.

2. Upon receipt of such written notice of termination, the Contractor shall:

Stop work as specified in the written notice;
Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated;
If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of the Work; Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing the Work whether completed or in process; Settle outstanding liabilities and claims with the approval of City; Complete performance of such part of the Work as has not been terminated; and Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work. 1) Upon receipt of City's written notice of termination for convenience, and within a period of 30 to 60 days, as determined by the City at the time of termination, the Contractor shall submit to the Construction Manager a Termination Proposal which shall include, but is not limited to, the Contractor's estimated costs to be incurred by the Contractor as a result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s subcontractor(s) and supplier(s) agreement(s) including the amount of each such agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the Construction Manager; and any other information and/or documentation as required by City.
2) Upon receipt of City's written notice of termination for convenience, the Contractor shall submit to the Construction Manager a request for final payment in accordance with the requirements of the Contract. Such request shall be submitted promptly, but no later than sixty (60) days from the effective date of the termination for convenience. 3) The final payment to the Contractor after termination for convenience shall be limited to amounts due and owing under the Contract at time of termination, including the following:
a) Any actual costs incurred by the Contractor for restocking charges; b) The agreed upon price of protecting the Work in any manner, if any, as directed by the City;
c) The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with the City's approval, as specified

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above, exclusive of the amounts paid or payable on account of goods delivered or work furnished by a subcontractor prior to the effective date of the termination; and d) The contract price allocable to the portion of the Work properly performed or goods supplied by the Contractor as of the date of termination, as determined in accordance with the Contract Documents, reduced by any sums previously paid to the Contractor.

3. The City shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding Claims for compensation asserted by the City against the Contractor, or by any third party against the City which arises out of the Contractor's work.

8.11 CONTRACTOR’S RIGHT TO TERMINATE
A. Upon ten (10) days written notice to the City, the Contractor may terminate this Agreement for any of the following reasons:

1. If the Work has been stopped for a one hundred and eighty (180) consecutive day period due to:

A court order or order of other governmental authorities having jurisdiction; or As a result of the declaration of a national emergency or other governmental act during which, through no act or fault of the Contractor, materials are not available; or The City's failure to pay the Contractor in accordance with the Contract Documents; or

2. If the Work is suspended by the City, without cause attributable to the wrongful acts of Contractor, for one hundred and eighty (180) consecutive days.

B. The Contractor’s exclusive remedy in the event of termination under Section 8.10, Contractor’s Right to Terminate, shall be to recover from City payment on the same terms as provided in Section 8.09.B, Termination for Convenience, resulting from a properly noticed termination for the specific reasons allowed for in this Section 8.10, Contractor’s Right to Stop Work or Terminate.

C. The provisions of this Section 8.10, Contractor’s Right to Stop Work or Terminate, are not intended to preclude Contractor from making a Claim as provided for in the Contract Documents for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor’s stopping the Work as permitted by this Section 8.10, Contractor’s Right to Stop Work or Terminate.
**END ARTICLE 8**

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ARTICLE 9 - CHANGES IN THE WORK

9.01 GENERAL
A. City may at any time, without notice to the Sureties, by written Order, make changes in the Work within the general scope of the Contract, including but not limited to additions, deletions or other revisions, changes in the Contract Documents and in the method and manner of performing the Work. Such changes will be ordered through a Field Directive, Field Order or Change Order . A Change Order may be bi-lateral, signed by both the City and Contractor or unilateral signed only by the City.

B. Any change in scope of Work or deviation from Contract Documents including, without limitation, extra Work, or alterations or additions to or deductions from the original Work, shall not invalidate the original Contract, and shall be performed under the terms of the Contract Documents. The difference in cost of the work affected by such change will be added to or deducted from the amount of said Contract price, as the case may be, by a fair and reasonable valuation, as outlined in this Section.

C. The prices agreed upon and any agreed upon adjustment in Contract Time shall be incorporated in the written order issued by the City, which shall be written so as to indicate an acceptance on the part of the Contractor as evidenced by its signature. By signature of the Change Order, the Contractor acknowledges that the adjustments to cost and time contained in the Change Order are in full satisfaction and accord, payment in full, and so waives any right to claim any further cost and time impacts at any time during and after completion of the Contract for the changes encompassed by the Change Order.

D. Only Contractor or City may initiate changes in scope of Work or deviation from Contract Documents.

E. Timeline: Within fifteen (15) Days of receipt of a Request for Proposal (RFP) for a Potential Change Order (PCO) from the City, Contractor must submit in a format acceptable to the City, four (4) copies of Contractor’s proposed cost and time estimates detailing the amount to be added to or deducted from the Contract Sum and Contract Time due to the proposed change. The Contractor’s proposal must include:

1. Detailed estimates and other documentation supporting the proposed cost; and

2. Proposed adjustments of the Contract Time that is known by the Contractor to be directly or indirectly attributable to the proposed Change Order. All requests for adjustment to the Contract Time must be supported by a detailed schedule analysis as specified in Section 01324, Progress Schedule and Reports.

F. Failure to submit cost and time estimate: If Contractor fails to submit the required information and documentation within the 15-Day time limit, City has the right to issue a Unilateral Change Order. The Contract Sum and Contract Time will be changed in accordance with the City’s estimate of cost and time, unless, within fifteen (15) Days following completion of the added Work or with written notice to delete portions of the Work, the Contractor submits to the City written proof that the City’s estimate is in error.

G. If, after the Contractor has submitted their cost and time proposal, the City and the Contractor fail to successfully negotiate and agree on a time and/or cost for the proposed Change Order, the City may issue a Unilateral Change Order to the Contractor and the Contractor must proceed with the changed Work. If the Contractor disputes any portion of the unilateral Change Order, the Contractor must maintain time and materials records as specified in Section 00700-9.02.D, Field Order- Force Account Work. If the Contractor fails to maintain such records or fails to submit such records within fifteen (15) Days following completion of the added Work, City’s estimate will be used for the purpose of final adjustment in Contract Time and Contract Sum.

H. Adjustment of the Contract Sum and/or Contract Time will be determined in accordance with Section 00700- Article 9, Changes in the Work.

I. Contractor’s failure to provide a complete and timely notice of change/delay and/or Change Order request, or to comply with any other requirement of this Article, shall constitute a waiver by Contractor of the right to a contract adjustment on account of such circumstances and a waiver of any right to further recourse or recovery by reason of or related to such change by means of the claims dispute resolution process or by any other legal process otherwise provided for under applicable laws.

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9.02 CONTRACT MODIFICATION PROCEDURES AND TIMELINES
A. Field Directive:

1. The Contractor may be issued a Field Directive.

2. If Contractor is satisfied with the Field Directive and does not request change in Contract Sum or Contract Time, then the Field Directive shall be executed without a Change Order.

3. If Contractor believes the Field Directive results in a change to Contract Sum or Contract Time, then Contractor must notify the Construction Manager with seven (7) days following receipt of Field Directive. Contractor shall proceed with executing work described in the Field Directive regardless of time or cost impacts, which are to be evaluated subsequent to or concurrently with field directive work. A proposed change order may be issued for the City’s consideration for any resulting time or cost impacts which are outside of the project scope of work. The Contractor shall within fifteen (15) days from the date of notification provide detailed justification and analysis as well as complete pricing and schedule CPM fragmentary network to support any request for time extension.

4. Should the Contractor proceed with the work affected before receipt of a response from the Construction Manager, any portion of the work which is not done in accordance with the City's interpretation, clarifications, instructions, or decisions shall be subject to removal or replacement and the Contractor shall be responsible for all losses.

5. If the parties are unable to agree on the Field Directive’s impact to the Contract Sum or Contract Time, then Contractor may file a Claim in accordance with Section 00700- Article 11, Protests, Disputes and Claims.

B. Request for Proposal (RFP) for a Potential Change Order (PCO)

1. A request for a proposed cost made to the Contractor by the City to add, delete or change the Work. RFP’s shall not be deemed to be directions to proceed with any addition, deletion or change to the Work.

2. Whenever Contractor is required to prepare a Cost Proposal, and whenever Contractor is entitled to submit a Cost Proposal and elects to do so, Contractor shall prepare and submit to City for consideration. All Cost Proposals must contain a complete breakdown of costs of credits, deducts, and extras; and itemize materials, labor, equipment, special services, taxes, overhead and profit.

All Subcontractor Work shall be so indicated. Individual entries on the Cost Proposal form shall follow the cost items defined in Cost Determination in this Section. The Contractor shall provide all required information requested in the RFP no later than fourteen (14) days after receiving the RFP.

3. Upon receipt of a Cost Proposal with a detailed breakdown as prescribed herein this Section, the Construction Manager will act promptly thereon. If Construction Manager accepts a Cost Proposal, Construction Manager will prepare a Change Order for City and Contractor signatures. If Cost Proposal is not acceptable to Construction Manager because it does not agree with cost and/or time included in Cost Proposal, Construction Manager will submit in a response what it believes to be a reasonable cost and/or adjustment, if any. Except as otherwise provided in this Section, Contractor shall have seven (7) days in which to respond to Construction Manager with a revised Cost Proposal.

4. If the parties do not agree on the price or time for an RFP, City may either issue a Unilateral Change Order pursuant to Section 00700-9.02.C, Unilateral Change Orders, as defined below.

Contractor shall perform the changed Work notwithstanding any claims or disagreements of any nature.

5. When necessity to proceed with a change does not allow the Construction Manager sufficient time to conduct a proper check of a Cost Proposal (or revised Cost Proposal), Construction Manager may order Contractor to proceed on basis to be determined at earliest practical date. In this event, value of change, with corresponding equitable adjustment to Contract, shall not be more than increase or less than decrease proposed.

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C. Unilateral Change Orders:

1. If at any time City believes in good faith that a timely Bilateral Change Order will not be agreed upon using the procedures in this Article, City may issue a Unilateral Change Order with its recommended cost and/or time adjustment. Upon receipt of the Unilateral Change Order, the Contractor shall promptly proceed with the change of Work involved and concurrently respond to City's Unilateral Change Order within ten (10) calendar days.

2. Contractor's response must be any one of following:

Return Unilateral Change Order signed, thereby accepting City's response, time, and cost.

Submit a (revised if applicable) Cost Proposal with supporting documentation (if applicable, reference original Cost Proposal number followed by letter A, B, etc. for each revision), if City so requests.

Give notice of intent to submit a Claim as described in Section 00700-11.03, Notice of Potential Claim.

3. If the Unilateral Change Order provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods:

Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation.

Unit prices stated in the Contract Documents or subsequently agreed upon.

Cost to be determined in a manner agreed by the City and Contractor.

4. A Unilateral Change Order signed by Contractor indicates the agreement of Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them.

Such agreement shall be effective immediately and shall be recorded as a Change Order.

5. If Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by Construction Manager on the basis of reasonable expenditures and savings of those performing the Work attributable to the change including, in case of an increase in the Contract Sum, an allowance for overhead and profit in accordance with 00700-9.03.B, Mark-Up Allowances. If the parties still do not agree on the price for a Unilateral Change Order, Contractor may file a Claim in accordance with Section 00700-Article 11, Protests, Disputes and Claims. Contractor shall keep and present, in such form as Construction Manager may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this paragraph shall be limited to those provided in Section 00700-9.03, Cost Determination.

6. Pending final determination of cost to City, amounts not in dispute may be included in Applications for Payment.

D. Field Order- Force Account Work

1. If either the amount of work or payment for a Change Order cannot be determined or agreed upon beforehand, the City may direct by written Change Order or Field Order that the work be done on a force account basis. The term "force account" shall be understood to mean that payment for the work will be done on a time and expense basis, that is, on an accounting of the Contractor's forces, materials, equipment, and other items of cost as required and used to do the work. For the work performed, payment will be made for the documented actual cost of the work as described in Section 00700-9.03, Cost Determination.

2. Prior to the commencement of force account work, the Contractor shall notify the Construction Manager of its intent to begin work. Labor, equipment and materials furnished on force account work shall be recorded daily by the Contractor using a City supplied form or equivalent form approved by the Construction Manager. The reports, if found to be correct, shall be signed by both the Contractor and Construction Manager, or inspector, and a copy of which shall be furnished to the Construction Manager no later than the working day following the performance of said work.

The Daily Extra Work Report sheet shall thereafter be considered the true record of force account work provided. If the Construction Manager, or inspector, do not agree with the labor, equipment and/or materials listed on the Contractor's daily force account report, the Contractor and

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Construction Manager, or inspector, shall sign-off on the items on which they are in agreement.

The Construction Manager shall then review the items of disagreement and will advise the Contractor, in writing, of its determination. If the Contractor disagrees with this determination, it shall have the right to file a claim notice as provided in Section 00700- Article 11, Protests, Disputes and Claims.

3. The Contractor shall maintain its records in such a manner as to provide a clear distinction between the direct costs of work paid for on a force account basis and the costs of other operations.

4. To receive partial payments and final payment for force account work, the Contractor shall submit, in a manner approved by the Construction Manager, detailed and complete documented verification of the Contractor's and any of its subcontractor's actual costs involved in the force account pursuant to the pertinent Change Order or Field Order. Such costs shall be submitted within thirty (30) days after said work has been performed. No payments will be made for work billed and submitted to the Construction Manager after the thirty (30) day period has expired.

5. The force account invoice shall itemize the materials used and shall cover the direct costs of labor and the charges for equipment rental, whether furnished by the Contractor, subcontractor, or other forces. The invoice shall be in a form acceptable to the Construction Manager and shall provide names or identifications and classifications of workers, the hourly rate of pay and hours worked, and also the size, type, and identification number of equipment and hours operated. Material charges shall be substantiated by vendor's invoices acceptable to the Construction Manager.

E. Unit Price Work

1. Contractor must include in each unit price an amount considered by Contractor to be adequate to cover all Contractor’s costs plus overhead and profit for each separately identified unit price item.

2. If there is any variance of less that twenty-five percent (25%) between the City’s estimated number of units of Work stated on the Section 00400, Bid Form, Bid Schedule and the actual number of units of authorized Work performed, there shall not be an adjustment of unit prices by reason of overruns or underruns; each unit of authorized Work performed will be paid for at the Contract unit price for that item of Work.

3. If the final quantity of any item of authorized Work varies from the City’s estimated quantity for that item of Work by twenty-five percent (25%) or more, the unit price for that item of work will be adjusted by Change Order.

4. All changes in Contract Sum and Contract Time due to quantity variations in unit price Work accepted by City's Representative are subject to approval by the City Engineer upon completion of the Contract by approval of a final balancing Change Order.

5. See Section 00700-9.04, Increased or Decreased Quantities for further Unit Price requirements.

F. Deleted Work

1. When Work is deleted, the City is entitled to a credit for the deleted Work.

2. The adjustment to the Contract Sum for deleted Work will be computed in accordance with Section 00700-9.02, Contract Modification Procedures and Timelines.

3. If Contractor has ordered acceptable material for the deleted Work before the date of notification of such deletion by City, and if orders for such material cannot be canceled, such material will be paid for by City at Contractor’s actual cost. In such case, the material paid for will become City’s property and City will pay the actual cost of any further handling. If the material is returnable to the vendor and if City so Directs, Contractor must return the material and City will pay the actual costs of returning the material, including reasonable and verifiable handling and restocking charges.

The actual costs or charges to be paid by City to Contractor for deleted materials as provided in this paragraph will be computed in the same manner as if the Work were to be paid for on a Force Account basis as provided in Section 00700-9.02.D, Field Order-Force Account Work with a markup for deleted work as provided in Section 00700-9.03.B.4.

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G. Differing Site Conditions

1. Contractor must immediately, and in any event no later than twenty-four (24) hours after discovery, and before such conditions are disturbed, notify City in writing of:

Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law Subsurface or latent physical conditions at the Project Site which Contractor asserts differ materially from those indicated in the Contract Documents; or Unknown physical conditions at the Project Site, of an unusual nature, which Contractor asserts differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.

2. City will promptly investigate the conditions. If City finds that such conditions do materially differ, or do involve hazardous waste, and cause an increase or decrease in the Contractor’s cost of, or the time required for, performance of any part of the Work pursuant to this Contract, whether or not changed as a result of such conditions, an equitable adjustment will be made in accordance with Section 00700- Article 9, Changes in the Work.

3. Contractor shall submit Notices of Hazardous Waste Conditions to resolve problems regarding hazardous materials encountered in the execution of the Work pursuant to Section 00700-9.02.G, Differing Site Conditions, which shall govern.

4. Contractor has no right to an adjustment in Contract Sum or Contract Time pursuant to this Section 00700- 9.02.G, Differing Site Conditions, unless Contractor submitted the notice required in Section 00700-8.03.A, Notice of Delays, except that City may extend the notification time upon Contractor’s written request in order to obtain additional relevant information.

5. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties.

6. Contractor has no right to an adjustment in Contract Time or Contract Sum after accepting Final Payment pursuant to this Contract.

H. Contractor Cost Reduction Proposals: See 00700-9.08, Cost Reduction Incentive, below for procedures on Cost Reduction Proposals, also known as Value Engineering Proposals.

I. All Changes

1. Upon request of the Construction Manager, the Contractor shall provide the following information to support the request for change in cost:

Copy of original quotations, purchase orders or invoices to verify costs included in original bid.

Copy of all quotations, purchase orders or actual invoices to support new costs submitted.

Copy of all subcontracts.

Copy of all employee time records and wage rates paid.

Copy of all insurance and bond costs resulting from change.

Copy of all quantity takeoff sheets for materials, labor and equipment.

Certified payroll records.

Certified composite wage rate statements including employees’ base rate and Contractor’s contributions for fringe benefits, subsistence and travel.

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A list of equipment with manufacturer’s name and model number and the alphanumeric designation used in the Equipment Rental Rates prepared by the California Department of Transportation.

Invoices for all rental equipment.

Other information, as required, to document the labor, equipment and materials used.

2. 0700-9.05, Cost Pricing Data and Access to Records, provides expanded Contractor requirements regarding providing access to cost pricing data and related change records.

3. Correlation of Other Items:

Contractor shall revise Schedule of Values and Application for Payment forms to record each authorized Change Order, Unilateral Change Order, or Field Order as a separate line item and adjust the Contract Sum as shown thereon prior to the next monthly pay period.

Contractor shall revise the Progress Schedules prior to the next monthly pay period to reflect the effects of all authorized Change Order, Unilateral Change Order, or Field Order.

Contractor shall enter changes in Project Record Documents prior to the next monthly pay period.

9.03 COST DETERMINATION
A. Direct Cost Categories: The categories described below are defined to be direct costs. No other type of costs will be allowable as a direct cost. Direct costs shall not include any labor costs or indirect costs pertaining to the Contractor's and subcontractor's managers or superintendents, their office and engineering staffs, the cost of their offices, facilities, vehicles, or anyone not directly employed on such work, nor small tools (as defined in item 3.c below) and supplies. All such items are considered indirect costs which form a part of the Contractor's and subcontractors' overhead expenses. The City reserves the right to furnish such labor, materials and equipment as it deems expedient, and the Contractor shall have no claim for profit or added fees on the cost of such items.

1. Direct Field Labor:

The cost of labor for workers (including forepersons when authorized by the Construction Manager) used in actual and direct performance of the work by the Contractor will be the sum of the following:
1) The actual wages paid plus any employer payments to, or on behalf of workers for fringe benefits including health and welfare, pension, vacation and similar purposes. 2) All payments imposed by State and Federal Laws including, but not limited to, workers’ compensation insurance, and social security payments. The rates used for workers’ compensation insurance shall be actual rates paid by the Contractor for each specific craft and broken down by wage rate if applicable to that craft. 3) Liability insurance burden applied to Contractor's payroll. Contractor shall provide adequate backup information to Construction Manager to verify this burden rate is indicative of the actual rates paid by the Contractor as a percent of labor.

Except as otherwise may be agreed to in writing by the Construction Manager, the actual wages and benefits paid for manual classifications of Contractor's on-site workers will not, in the aggregate, be more than the current applicable wage for each classification as established by the State of California Director of Industrial Relations.

Specifically prohibited from the labor costs are other payroll burden factors such as small tools (as defined in item 3.c below), bonuses of any kind and safety incentives.

Contractor shall include the actual travel and/or subsistence costs, if any, as a separate line item under the labor cost category. Except as otherwise may be agreed to in writing by the Construction Manager, the actual travel and/or subsistence costs will not be more than established in an applicable Master Labor Agreement or the State of California Director of Industrial Relations.

Within fifteen (15) days following Notice to Proceed date, the Contractor shall submit to Construction Manager for approval a breakdown of labor costs as allowed herein for each

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expected craft used in the Work showing straight time and overtime rates. These rates would be good during defined period for each craft until wages are changed by the either Union Master Labor Agreements, if Contractor is signatory, or the Department of Industrial Relations.

Contractor shall revise Schedule of Values and Application for Payment forms to record each authorized Change Order, Unilateral Change Order, or Field Order as a separate line item and adjust the Contract Sum as shown thereon prior to the next monthly pay period.

Contractor shall revise the Progress Schedules prior to the next monthly pay period to reflect the effects of all authorized Change Order, Unilateral Change Order, or Field Order.

Contractor shall enter changes in Project Record Documents prior to the next monthly pay period.

2. Materials
The cost of all materials, including all factory testing, freight and delivery costs of materials, accepted by the City and used in performing the work will be the cost to the Contractor from the supplier thereof. All discounts for early payment shall accrue to the Contractor unless the City’s payment to Contractor is paid to Contractor before discount payment is due in which case discount savings will be fully credited to City on next progress billing. All rebates and all returns from the sale of surplus materials shall be credited to the Cost of the Work.

For materials used in construction of the Project which may have additional uses on other projects for the Contractor’s benefit, such as dimensional lumber, beams and plywood to form concrete or temporary diversion pipes, the Contractor shall submit a material unit cost to cover use of these types of materials for the approval of the City prior to delivery to the Work Site. This unit cost shall take into account the use of such materials on other past and future projects.

3. Construction Equipment
The cost of construction machinery and equipment for changes shall be based on fair rental cost or equivalent rental cost of owned equipment. Such costs will be allowed for only those days or hours during which the equipment is in actual use. Payment shall be based on actual rental and transportation invoices but shall not exceed the rental rates listed for such equipment in the State of California Department of Transportation publication entitled "Labor Surcharge and Equipment Rental Rates" which is in effect on the date upon which the work is performed.

City-operated equipment rates shall not exceed the rates in the aforesaid Rental Rate publication plus the labor costs as provided in Section 00700-9.03.A.1, Direct Field Labor.

The rental cost allowed for equipment will, in all cases, be understood to cover all fuel, supplies, repairs, ownership, and incidental costs and no further allowances will be made for those items, unless specific written agreement to that effect is made. Compensation for idle time of equipment through delays caused by the City will be made consistent with Section 8-

1.09, Right of Way Delays, of the Caltrans Standard Specifications.

Individual items of construction equipment or small tools which have a replacement value of $500 or less shall not be charged to the Change Order work unless it can be demonstrated that the particular item is needed solely for the completion of the Change Order work.

Within fifteen (15) days following Notice to Proceed date, the Contractor shall submit to Construction Manager for approval a list of hourly rates for equipment owned by the Contractor and expected to be used in the Work.

4. Special Services
When the Construction Manager and the Contractor, by agreement, determine that special service or item of extra Work cannot be performed by forces of the Contractor or those of any Subcontractors, service or extra Work item may be performed by a specialist. These types of services will be paid based on an agreed upon current market rate.

B. Mark-up Allowances: The Contractor and subcontractors shall be entitled to compensation for indirect field and home office overhead costs, and profit for Change Order work. This compensation shall be in

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the form of markup percentages applied to the direct cost of the Change Order work, as further described below. The maximum markup which will be allowed for the Contractor's combined overhead and profit will be:

1. For work by its own organization, the Contractor may add up to the following percentages:

Direct Cost Category All Work
except by Force Account
All Force Account Work
Direct Field Labor 25% 20%
Materials 10% 10%
Construction Equipment 15% 15%
Special Services 5% 5%

2. For all such work performed by subcontractors, such subcontractor may add the same percentages as the Contractor as listed in B.1 above to its actual net increase in costs for combined overhead and profit. The Contractor may add up to five percent (5%) of the subcontractor's total for its combined overhead and profit. No further compensation will be allowed for the Contractor's administration of the work performed by the subcontractor.

3. For all such work done by subtier-subcontractors, such sub-subcontractors may add the same percentages as the Contractor as listed in B.1 above to its actual net increase in costs for combined overhead and profit. The subcontractor may then add up to five percent (5%) of the sub-subcontractor's total for its combined overhead and profit. The Contractor may add up to five percent (5%) of the subcontractor's total for its combined overhead and profit. No further compensation will be allowed for the subcontractors' and Contractor's administration of the work performed by the subtier-subcontractor. No additional mark-ups will be allowed for further tiered subcontracts.

4. For Deleted Work: When work is deleted, the City is entitled to a credit for the deleted work. The credit must include direct labor, materials, equipment, and special services as defined above plus overhead and profit of the Contractor and Subcontractor, as applicable to deleted Work. Deleted overhead and profit shall be computed as five percent (5%) of the direct labor, materials, equipment, and special services as defined above. For example, if a $10,000 direct cost item of Work is deleted, the credit to the City would be $10,500. The Contractor shall not be entitled to nor claim for anticipated profits on work that may be deleted.

5. For combinations of Added and Delete Work: The costs before markups of added and deleted Work must be separately estimated. If the difference between such costs results in an increase, the markups for added Work will be applied to such difference. If the difference in such costs results in a decrease, the markups for deleted Work will be applied to such difference.

6. To the total of the actual costs and fees allowed herein for both Added and Deleted work, not more than two and one half percent (2.5%) shall be added for additional bond and builder’s risk insurance. The compensable percentage for additional bonds and insurance shall be based on the Contractor's actual costs, as substantiated through documentation submitted to the Construction Manager.

7. The added fixed fees shall be considered to be full compensation, covering the cost of general supervision, overhead, profit, small tools, incidentals and any other general expenses. The above fixed fees represent the maximum limits which will be allowed, and they include but are not limited to the Contractor's and all subcontractors' indirect field and home office expenses and all other costs for cost proposal preparation, schedule analysis and preparation, operation and maintenance manual documentation, and record documents and change order administration.

9.04 INCREASED OR DECREASED QUANTITIES
A. General:

1. Increases or decreases in the quantity of a Contract unit price bid item of work will be determined by comparing the total pay quantity of such item of work with the Bid Schedule quantity.

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2. If the total pay quantity of any item of work required under the Contract varies from the Section 00400, Bid Form, Bid Schedule quantity by twenty-five percent (25%) or less, payment will be made for the quantity of work of said item performed at the Contract unit prices therefor, unless eligible for adjustment pursuant to Section 9.04, Increased or Decreased Quantities.

3. If the total pay quantity of any item of work required under the Contract varies from the Bid Schedule quantity by more than twenty-five percent (25%), in the absence of an executed Contract change order specifying the compensation to be paid, the compensation payable to the Contractor will be determined in accordance with 9.04.E, Changes in the Character of the Work.

B. Increases of More Than 25 Percent:

1. Should the total pay quantity of any item of work required under the Contract exceed the Bid Schedule quantity by more than twenty-five percent (25%), the work in excess of 125 percent of the Bid Schedule quantity will be paid for by adjusting the Contract unit price, as hereinafter provided. At the option of the Construction Manager, payment for the work involved in such excess will be made on the basis of force account as provided by Section 00700-9.02.D, Field OrderForce Account Work.

2. Such adjustment of the Contract unit price will be the difference between the Contract unit prices and the actual unit costs, which will be determined as hereinafter provided, of the total pay quantity of the item. If the costs applicable to such item of work include fixed costs, such fixed costs will be deemed to have been recovered by the Contractor by the payments made for 125 percent of the Bid Schedule quantity for such item, and in computing the actual unit cost, such fixed costs will be excluded. Subject to the above provisions, such actual unit cost will be determined by the Construction Manager in the same manner as if the work were to be paid for on a force account basis as provided in Section 00700-9.02.D, Field Order-Force Account Work, or such adjustment will be as agreed to by the Contractor and the Construction Manager.

3. When the compensation payable for the number of units of an item of work performed in excess of 125 percent of the Bid Schedule quantity is less than $5,000 at the applicable Contract unit price, the Construction Manager reserves the right to make no adjustment in said price if it so elects, except that an adjustment will be further considered if requested in writing by the Contractor.

C. Decreases of More Than 25 Percent:

1. Should the total pay quantity of any item of work required under the Contract be less than seventyfive percent (75%) of the Bid Schedule quantity, an adjustment in compensation pursuant to this Section will not be made unless the Contractor so requests in writing. If the Contractor so requests, the revised quantity will be paid for by adjusting the Contract unit price as hereinafter provided. At the option of the Construction Manager, payment for the quantity of the work of such item performed will be made on the basis of force account as provided in Section 00700-9.02.D, Field Order-Force Account Work. However, in no case shall the payment for such work be less than that which would be made at the Contract unit price.

2. Such adjustment of the Contract unit price will be the difference between the Contract unit price and the actual unit cost of the total pay quantity of the item, including fixed costs. Such actual unit cost will be determined by the Construction Manager in the same manner as if the work were to be paid for on a force account basis as provided in Section 00700-9.02.D, Field Order-Force Account Work; or such adjustment will be as agreed to by the Contractor and the Construction Manager.

3. The payment for the total pay quantity of such item of work will in no case exceed the payment which would have been made for the performance of seventy-five percent (75%) of the Bid Schedule of the quantity for such item at the original Contract unit price.

D. Eliminated Items Covered by Unit Prices:

1. In the event that a part of the Work is to be eliminated in its entirety and such Work is covered by unit price(s) contained in the Bid and/or Contract Documents, the price of the eliminated Work item shall be based on the applicable unit price(s). The unit price includes compensation for all Contractor’s field and home office overhead costs and no further mark-ups will be allowed.

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2. Should any Contract item of the Work be eliminated in its entirety, in the absence of an executed Contract change order covering such elimination, payment will be made to the Contractor for actual costs incurred in connection with such eliminated Contract item if incurred prior to the date of notification in writing by the Construction Manager of such elimination.

3. If acceptable material is ordered by the Contractor for the eliminated item prior to the date of notification of such elimination by the Construction Manager, and if orders for such material cannot be canceled, it will be paid for at the actual cost. In such case, the material paid for shall become the property of the City and the actual cost of any further handling will be paid for. If the material is returnable to the vendor and if the Construction Manager so directs, the material shall be returned and the Contractor will be paid for the actual costs of charges made by the vendor for returning the material. The actual cost of handling returned material will be paid for by the City. In addition for payment for actual material and handling charges, the Contractor shall be paid five percent (5%) for the eliminated Work item in consideration of the applicable Contractor's overhead costs.

E. Changes in Character of Work:

1. If an ordered change in the Plans and Specifications materially changes the character of work of a Contract unit price bid item from that on which the Contractor based its Bid price, and if the change increases or decreases the actual unit cost of such changed item as compared to the actual or estimated actual unit cost of performing the work of said item in accordance with the Plans and Specifications originally applicable thereto, in the absence of an executed Contract change order specifying the compensation payable, an adjustment in compensation therefor will be made in accordance with the following:

2. The basis of such adjustment in compensation will be the difference between the actual unit cost to perform the work of said item or portion thereof involved in the change as originally planned and the actual unit cost of performing the work of said item or portion thereof involved in the change, as changed. Actual unit costs will be determined by the Construction Manager in the same manner as if the work were to be paid for on a force account basis as provided in Section 00700-9.02.D, Field Order-Force Account Work; or such adjustment will be agreed to by the Contractor and the Construction Manager. Any such adjustment will apply only to the portion of the work of said item actually changed in character. At the option of the Construction Manager, the work of said item or portion of item which is changed in character will be paid for by force account as provided in Section 00700-9.02.D, Field Order-Force Account Work.

3. If the compensation for an item of work is adjusted under this Section, the costs recognized in determining such adjustment shall be excluded from consideration in making an adjustment for such item of work under the provisions in this Section 9.04.B, Increases of More Than 25 Percent, and 9.04.C, Decreases of More Than 25 Percent.

9.05 COST PRICING DATA AND ACCESS TO RECORDS
A. All cost and pricing data submitted by the Contractor with respect to any change, prospective or executed, or any claim for extra compensation shall be a true, complete, accurate and current representation of actual cost and pricing of the work. The Construction Manager may require a formal certification as to cost and pricing data submitted by the Contractor.

B. The Construction Manager shall have access, upon reasonable notice during normal business hours, to any books, documents, accounting records, papers, project correspondence, project files, scheduling information and other relevant records of the Contractor and all subcontractors directly or indirectly pertinent to the work, original as well as changes and claimed extra work, and the Contract for the purpose of making audit, examination, excerpts and transcriptions and in order to verify or evaluate any change, prospective or executed, or any claim for which compensation has been requested or notice of potential claim has been tendered.

C. Such books, documents, and other records mentioned above shall include, but are not limited to all those reasonably necessary to determine the accurate amount of direct and indirect costs, job Site, and delay and impact costs, however characterized, and shall include the original Bid and all documents related to the Bid and its preparation, as well as, the as-planned construction schedule and all related documents.

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D. Such access shall include the right to examine and audit such records and make excerpts, transcriptions, and photocopies at the City's cost.

9.06 TIME EXTENSIONS FOR CHANGE ORDERS
A. If the Contractor requests a time extension for the extra work necessitated by a proposed Change Order, the request must comply with the applicable requirements of this Section 00700 and Section 01324, Progress Schedule and Reports.

9.07 CONTRACTOR’S ACCEPTANCE OF CHANGE ORDERS
A. Contractor’s written acceptance of a Change Order constitutes final and binding agreement to the provisions thereof and a waiver of all Claims in connection therewith, whether direct, indirect or consequential. Pursuant to California Public Contract Code §7100, Contractor may specifically exclude individual Change Order items from operation of the Contractor’s written acceptance of the Change Order and waiver of all Claims in connection therewith. A general statement that the Contractor reserves their right to Claim additional time and/or money at a future date for all Work associated with the Change Order is not permitted.

B. If Contractor disagrees with any terms or conditions of a Change Order, Contractor must sign it with the statement “Signed Under Protest” and attach a written statement detailing the basis of the disagreement.

C. The written statement detailing the basis of the disagreement must specifically identify each item to be excluded from the Contractor’s waiver and state why the Contractor is unable to determine the time and/or money due from the City for the items excluded from the Contractor’s release.

9.08 CONSTRUCTION COST REDUCTION INCENTIVE (VALUE ENGINEERING PROPOSAL) A. General

1. The cost-reduction incentive program provides a mechanism by which the Contractor can be motivated to use his construction expertise to improve contract performance and thereby create an overall reduction in the total cost of the Contract. The Contractor and its subcontractors may participate in the cost-reduction program; however, participation of the subcontractors shall be through the Contractor. In addition, the sharing arrangement between the Contractor and the subcontractor must be mutually agreed upon by the Contractor and its subcontractor, and written evidence of such agreement will be submitted along with the submittal of the cost-reduction proposal.

2. No cost reduction proposals shall be submitted for which the City's share in the participation of the proposals is not greater than $5,000.

3. Cost-reduction proposals shall comply with the following conditions:

The proposed change shall not impair, in any manner, the essential functions or characteristics of the project, including but not limited to, service life, economy of operation, ease of maintenance, desired appearance, or design and safety standards.

The proposed change will not cause undue interruption of the Contract work, nor shall the proposed change be allowed to extend the Contract completion date of the project unless an extension provides a specific project benefit.

The proposed change shall be in compliance with all local permits and regulations and code requirements as set forth in the contract documents.

The proposed change shall not involve payment of royalties by the City to the Contractor.

B. Proposal Submittal:

1. The cost-reduction proposal shall generally conform to Section 01330, Submittal Procedures. The cost-reduction proposals shall contain as a minimum the following information:

Name of individuals associated with the development and preparation of the cost-reduction proposal.

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A detailed description and duly signed plans and specifications showing work as presently designed and the proposed changes. Clear identification of all advantages and disadvantages for each change proposed.

A summary of estimated costs which shall include but not be limited to the following:
1) Project construction costs before and after the cost-reduction proposal. This shall be a detailed estimate identifying the following items:
a) Quantities of material and equipment.
b) Unit prices of materials and equipment.
c) Labor hours and rates for installation.
d) Equipment hours and rates for installation.
e) Subcontractors and prime contractor markups.
f) Other estimate items necessary to evaluate the proposal. 2) Operation and maintenance costs before and after the cost-reduction proposal. 3) Costs for implementing the cost-reduction proposal not included in item 1 above. 4) Other costs as required to meet all local permits, regulations, and code requirements as set forth in the contract documents.
5) Time required for execution of the proposed change.

A preliminary schedule indicating the general time impacts for implementing the proposed change. Also indicate the date that the cost-reduction proposal needs to be approved for implementation.

2. If the City advises the Contractor that the proposed change will be reviewed for more detailed consideration and approval, a detailed procedure and schedule for implementing the proposed change shall be submitted. This detailed procedure and schedule shall include all necessary Contract amendments. This submittal shall also include a copy of the current Contractor's schedule showing all changes which would occur if the cost-reduction proposal were accepted.

3. The provisions of Section 00700-9.08, Construction Cost Reduction Incentive, shall not be construed to require the City or Engineer to consider any cost-reduction proposal which may be submitted. The City will not be liable to the Contractor for failure to accept or act upon any costreduction proposal submitted pursuant to this Section nor for any delays to the work attributable to any such proposal. The City shall not be responsible or liable for payment of any of the Contractor's costs associated with a non-accepted proposal.

4. If a cost-reduction proposal is similar to a change in the Contract Documents under consideration by the City at the time said proposal is submitted, or if such a proposal is based upon or similar to standard specifications, standard special provisions, or standard plans adopted by the City after the advertisement for the Contract, the City will not accept such proposal, and the City reserves the right to made such changes without cost-reduction compensation to the Contractor under the provisions of this Section.

5. The Contractor shall continue to perform the work in accordance with the requirements of the contract until an executed change order, incorporating the cost-reduction proposal has been issued. If an executed change order has not been issued by the date upon which the Contractor's cost-reduction proposal specifies that a decision thereon should be made, or such other date as the Contractor may subsequently have specified in writing, such cost-reduction proposal shall be deemed rejected.

6. The City shall be the sole judge of the acceptability of the cost-reduction proposal and the estimated net savings in construction costs from the adoption of all or any part of such proposal.

In determining the estimated net savings, the right is reserved to disregard the contract bid prices if in the judgment of the City, such prices do not represent a fair measure of the value of work to be performed or to be deleted.

7. The City reserves the right, where it deems such action appropriate, to require the Contractor to share in the City's costs of investigating a cost-reduction proposal submitted by the Contractor as a condition of considering such proposal. Where such a condition is imposed, the Contractor shall

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indicate its acceptance thereof in writing, and such acceptance shall constitute full authority for the City to deduct amounts payable to the City from any monies due or may become due to the Contractor under the Contract.

C. Acceptance:

1. If the Contractor's cost-reduction proposal is accepted in whole or in part, such acceptance will be by a Contract change order, which shall specifically state that it is executed pursuant to 00700- Article 9, Changes in the Work. Such change order shall incorporate the changes in the Plans and Specifications, which are necessary to be put into effect and shall include any conditions upon which the City's approval thereof is based, if the approval of the City is conditional. The change order shall also set forth estimated net savings in construction costs attributable to the costreduction proposal effectuated by the change order and shall further provide that the Contractor be paid fifty percent (50%) of said estimated net savings amount. The Contractor's cost of preparing the cost-reduction proposal and the City's costs of investigating a cost-reduction proposal, including any portion thereof paid by the Contractor, shall be excluded from consideration in determining the estimated net savings in construction costs.

2. Acceptance of the cost-reduction proposal and performance of the work thereunder shall not extend the time of completion of the contract, unless specifically provided for in the contract change order authorizing the use of the cost-reduction proposal.

3. The amount specified to be paid to the Contractor in the change order which effectuates a costreduction proposal shall constitute full compensation to the Contractor for the cost-reduction proposal and the performance of the work thereof pursuant to the said change order.

4. The City expressly reserves the rights to adopt a cost-reduction proposal for general use on contracts administered by the City when it determines that said proposal is suitable for the application to other contracts. When an accepted cost-reduction proposal is adopted for general use, only the Contractor who first submitted such proposal will be eligible for compensation pursuant to this Section, and in that case, only as to those contracts awarded to this same Contractor prior to submission of the accepted cost-reduction proposal and as to which such costreduction proposal is also submitted and accepted. Cost-reduction proposals identical or similar to previously submitted proposals will be eligible for consideration and compensation under the provisions of this Section, if the identical or similar previously submitted proposals were not adopted for general application to other contracts administered by the City. **END ARTICLE 9**

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ARTICLE 10 - PAYMENTS

10.01 BASIS OF PAYMENT
A. General:

1. The Contractor shall accept the compensation, as herein provided, as full payment for furnishing all labor, materials, tools, equipment, and incidentals necessary to the completed Work and for performing all work contemplated and embraced under the Contract; also for loss or damage arising from the nature of the Work, or from the action of the elements, or from any unforeseen difficulties which may be encountered during the prosecution of the Work, also for all expenses incurred in consequence of the suspension or discontinuance of the Work as herein specified; and for completing the Work according to the Contract Documents. Neither the payment of any estimate nor of any retained percentage shall relieve the Contractor of any obligation to make good any defective work or material.

2. No compensation will be made in case of loss of anticipated profits. Increased or decreased work involving supplemental agreements will be paid for as provided in such agreements.

3. Full compensation for conforming to all of the provisions of the Contract Documents shall be considered as included in the prices paid for the various Contract items of work and no additional compensation will be allowed therefor.

B. Payment for Patents and Patent Infringement:

1. All fees or claims for any patented invention, article, or arrangement that may be used upon, or in, any manner connected with the performance of the Work or any part thereof shall be included in the price bid for doing the work, and the Contractor and its sureties shall defend, protect, and hold the City, its officers, agents, employees, the Construction Manager, and Design Engineers, together with all their officials, officers, volunteers, agents, and employees harmless from and any and all suits and claims including claims for attorney’s fees, expert’s fees and costs brought or made by the holder of any invention or patent, or on account of any patented or unpatented invention, process, article, or appliance manufactured for or used in the performance of the Contract, including its use by the City, unless otherwise specifically stipulated in the Contract.

Before final payment is made on the Contract, the Contractor shall furnish an affidavit to the City regarding patent rights for the Project. The affidavit shall state that all fees and payments due as a result of the work incorporated into the Project or methods utilized during construction have been paid in full. The Contractor shall certify in the affidavit that no other fees or claims exist for work in this Project.

C. Payment of Taxes:

1. The Contractor shall pay and shall assume exclusive liability for all taxes levied or assessed on or in connection with its performance of this Contract, whether before or after acceptance of the work, including, but not limited to, State and local sales and use taxes, Federal and State payroll taxes or assessments, and excise taxes, including any taxes or assessments levied or increased during the performance period of the work. No separate allowance will be made therefor, and all costs in connection therewith shall be included in the total amount of the Contract price.

10.02 PARTIAL PAYMENTS
A. General:

1. In consideration of the faithful performance of the Work prosecuted in accordance with the Contract Documents, the City will pay the Contractor for all such work installed on the basis of unit prices and/or percentage completion of lump sum Bid Items. Amounts earned for lump sum work will be based on accepted Cost Breakdown (See Technical Specifications).

2. Payments will be made by the City to the Contractor on estimates duly certified and approved by the Construction Manager, based on the Lump Sum or unit price value of equipment installed and tested, labor and materials incorporated into said permanent work by the Contractor during the preceding month, and acceptable materials and equipment on hand (materials and equipment furnished and delivered to the Site by the Contractor and not yet incorporated into the work

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accompanied by an approved invoice). Payments will not be made for temporary construction unless specifically provided for in the Contract Documents.

3. Partial payments will be made monthly based on work accomplished as of a day mutually agreed to by the City and the Contractor.

4. The Contractor shall submit a completed and signed progress payment request form with its estimate of the work completed during the prior month and the work completed to date in a format corresponding to the unit price schedule and accepted cost breakdown. Additionally, the Contractor shall submit a detailed statement of the Contractor's request for payment of acceptable materials and equipment on hand in compliance with Section 00700-10.03, Partial Payments - Inclusion of Materials on Hand. Each payment request shall list each Change Order executed prior to date of submission, including the Change Order Number.

5. Contractor shall certify each payment request stating that the Contractor has met all requirements of the Contract Documents for all amounts included in the payment request and that all work included in the payment request has been performed in accordance with the Contract Documents.

6. Upon receipt of Contractor's requests for payment, the City shall act in accordance with the following:

The Construction Manager shall review the submitted estimates, as soon as practicable after receipt for the purpose of determining that the estimates are a proper request for payment, and shall prepare a certified estimate of the total amount of work done and acceptable materials and equipment on hand.

Any request for payment determined not to be a proper payment request suitable for payment shall be returned to the Contractor as soon as practicable, but not later than seven (7) days after receipt. A request for payment returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the request for payment is not proper.

The number of days available to the City to make a payment without incurring interest pursuant to this Section shall be reduced by the number of days by which the City exceeds the seven (7) day return requirement set forth in subdivision (b) above.

B. If requested, the Contractor shall provide such additional data as may be reasonably required to support the partial payment request. The Construction Manager will adjust or correct the payment request, and will be available to meet and discuss the partial payment request prior to its resubmittal(s). When the Contractor's estimate of amount earned conforms with the Construction Manager's evaluation, the Contractor shall submit to the Construction Manager a properly completed and signed progress payment request. The Construction Manager will submit the recommended progress payment request for the City's approval and processing. Payment will be made by the City to the Contractor in accordance with City's normal accounts payable procedures; the City shall retain amounts in accordance with Section 00700-10.04, Right to Withhold Amounts.

C. No such estimate or payment shall be required to be made, when in the judgment of the Construction Manager, the Work is not proceeding in accordance with the provisions of the Contract, or when in the Construction Manager's judgment the total value of the Work done since the last estimate amounts to less than One Thousand Dollars ($1,000).

D. Subject to the provisions of this Section, the City shall pay the Contractor within thirty (30) days after receipt of undisputed and properly submitted requests for payment from the Contractor. In accordance with California Public Contract Code §20104.50, if the City fails to pay an undisputed request for payment within the allotted thirty (30) days, the City shall pay interest to the Contractor equivalent to the legal rate set forth in subdivision (a) of §685.010 of the California Code of Civil Procedure.

E. Each progress payment request and the final payment request shall be deemed “proper” only if it is submitted on the form approved by the City, with all of the requested information completely and accurately provided by the Contractor.

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10.03 PARTIAL PAYMENTS- INCLUSION OF MATERIALS ON HAND
A. Materials, as used herein, shall be considered to be those items which are fabricated and manufactured material and equipment. Only those materials for which the Contractor can transfer clear title to the City will be qualified for partial payment. The Contractor may request payment of seventy-five (75) percent of the actual net cost of these materials. The request for partial payment will be subject to retention as provided elsewhere in the Contract Documents.

B. To receive partial payment for materials and equipment not incorporated in the Work, it shall be necessary for the Contractor to submit to the Construction Manager a list of such materials, at least seven (7) days prior to submitting the monthly estimate of amount earned for work completed. At the Construction Manager's sole discretion, it may approve items for which partial payment is to be made subject to the following:

1. Equipment and materials will only be eligible if given conditional or final acceptance by the Design Engineer and are in apparent compliance with favorably reviewed shop drawings.

2. Eligible equipment or materials must be delivered and properly stored, protected, and maintained in a manner favorably reviewed by the Construction Manager and in accordance with the accepted Operation and Maintenance Manuals, at the job Site or at a bonded warehouse in the vicinity, a maximum of 30 miles, of the Work. In addition to the requirements noted herein, equipment or materials stored offsite are subject to the following:

Contractor will immediately, permanently, and prominently label all of the materials with the following notice: “THIS MATERIAL IS THE PROPERTY OF THE CITY”.

Contractor will, concurrent with payment, execute and deliver to the City a Bill of Sale.

Contractor warrants to the City that no third party has a lien against any of the Materials, and that Contractor has full power and authority to convey clear title to the Materials to the City by Bill of Sale. If the City so requests, Contractor will cooperate in the filing of a UCC-1 notification or other documentation placing notice of the City’s title in applicable state records.

Contractor to store all of the Materials in a climate controlled and secured facility protected from adverse weather conditions in accordance with the Operations and Maintenance Manuals. The City has the right to inspect and approve the proposed facility.

Contractor shall provide access to the facility when requested by the City.

All warranty periods for the Materials will commence as described in the Contract Documents.

Risk of loss as to the Material shall remain with the Contractor until Substantial Completion of the Work under the Contract.

Contractor shall keep the Material fully insured for the benefit to the City, and provide the City with a satisfactory certificate of insurance showing such coverage.

Any Material warranties under the Contract shall commence only upon Substantial Completion or beneficial occupancy as provided in the Contract.

The City reserves the right that if the above conditions are not met by the Contractor, the City shall adjust future monthly progress payments to reduce previously-paid materials on hand to zero or an amount the City deems appropriate.

The Contractor is responsible for the risk of damage, theft, vandalism, or loss.

C. Effect of Payment: Payment will be made by City based on the Construction Manager’s observations at the Site and the data comprising the progress payment request. Payment will not be a representation that the City has:

1. made exhaustive or continuous on-site inspections to check the quality or quantity of Work;

2. reviewed construction means, methods, techniques, sequences or procedures;

3. reviewed copies of requisitions received from subcontractors and material suppliers and other data requested by City to substantiate Contractor’s right to payment;

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4. made examination to ascertain how or for what purpose Contractor has used money previously paid on account of the Contract Sum; or

5. accepted all or part of the Work.

10.04 RIGHT TO WITHHOLD AMOUNTS
A. Retention: The City will withhold from each of the partial payments and retain as part security, five percent (5%), of the amount earned until the final payment in accordance with Public Contract Code §7201.

B. Other Withholds: In addition to the amount which the City may otherwise retain under the Contract, the City may withhold a sufficient amount or amounts of any payment or payments otherwise due the Contractor, as in its judgment may be necessary to cover:

1. For defective work not remedied.

2. A reasonable doubt that the Contract can be completed for the balance then unpaid.

3. Damage to another contractor or third party, or to property.

4. Failure of the Contractor to maintain Project Record Documents current as required in the Technical Specifications.

5. Cost of insurance arranged by the City due to cancellation or reduction of the Contractor's insurance.

6. Failure to submit, revise, resubmit or otherwise conform to the requirements herein for preparing and maintaining a construction schedule as required in Section 01324, Progress Schedules and Reports.

7. Failure to make proper submissions, as specified herein.

8. Payments due the City from the Contractor.

9. Reduction of Contract Amount because of modifications.

10. The Contractor's neglect or unsatisfactory prosecution of the Work including additional engineering and administrative costs related to construction and/or shop drawing errors and the failure to clean up.

11. Provisions of law that enable or require the City to withhold such payments in whole or in part.

12. Stop Notice claims filed by Contractor’s subcontractors, of any tier, or its material suppliers.

13. Failure to comply with environmental or other regulatory requirements.

14. Liquidated damages.

C. When the above reasons for withhold amounts are removed, payment will be made to the Contractor for amount withheld because of them.

D. The City in its discretion may apply any withheld amount or amounts to the payment of valid claims. In so doing, City shall be deemed the agent of Contractor, and any payment so made by City shall be considered as a payment made under the Contract by City to Contractor and City shall not be liable to Contractor for such payment made in good faith. Such payments may be made without prior judicial determination of the claim or claims. City will render to Contractor a proper accounting of such funds disbursed in behalf of Contractor.

10.05 STOP NOTICES
A. City will comply with California Civil Code 9000 et seq. regarding Stop Notices.

B. All Preliminary and Stop Notices must be sent to the City’s Project Representative, named in the Section 00510, Agreement.

10.06 SECURITY SUBSTITUTION FOR RETENTION
A. Pursuant to Public Contract Code §22300 (the provisions of which are hereby incorporated herein by reference) the Contractor may substitute securities for any moneys withheld by the City as retention

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under Sections 00700-10.02, Partial Payments, or 00700-10.09, Final Inspection and Payment, to ensure performance under the contract; however, substitution of securities shall not be allowed hereunder if financing for this Contract has been provided by the Farmers Home Administration of the United States Department of Agriculture pursuant to the Consolidated Farm and Rural Development Act (7 U.S.C. Sec. 1921 et seq.), or where federal regulations or policies, or both, do not allow the substitution of securities. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, or with a state or federally chartered bank in California as the escrow agent, who shall then pay those moneys to Contractor. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor.

B. Contractor shall have the obligation of ensuring that such securities deposited are sufficient so as to maintain, in total fair market value, an amount equal to the cash amount of the sums to be withheld under the Contract. If, upon written notice from the City, or from the appropriate escrow agent, indicating that the fair market value of the securities has dropped below the dollar amount of monies to be withheld by the City to ensure performance, Contractor shall, within five days of the date of such notice, post additional securities as necessary to ensure that the total fair market value of all such securities held by the City, or in escrow, is equivalent to the amount of money to be withheld by the City under the Contract.

C. Securities eligible for investment include those listed in §16430 of the California Government Code, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit that are secured by securities listed in §16430 of the Government Code or that contain terms and conditions that provide assurances of financial integrity substantially equivalent to that of securities listed in said §16430, or any other security of like financial integrity mutually agreed to by Contractor and City. The City reserves the right to determine the acceptability of eligible securities proposed by Contractor for substitution of moneys withheld as retention. Contractor shall be the beneficial owner of any securities substituted for moneys withheld and shall receive any interest thereon.

D. If Contractor elects to receive interest on moneys withheld in retention by City, Contractor shall, at the request of any subcontractor, make that option available to the subcontractor regarding any moneys withheld in retention by Contractor from the subcontractor. If Contractor elects to receive interest on any moneys withheld in retention by City, then the subcontractor shall receive the identical rate of interest received by Contractor on any retention moneys withheld from the subcontractor by Contractor, less any actual pro rata costs associated with administering and calculating that interest. In the event that the interest rate is a fluctuating rate, the rate for the subcontractor shall be determined by calculating the interest rate paid during the time that retentions were withheld from the subcontractor.

E. The provisions of the immediately preceding paragraph shall apply only to those subcontractors performing more than five (5%) percent of Contractor’s total bid. Contractor shall not require any subcontractor to waive any provision of this Section pertaining to the rights of subcontractors.

F. The escrow agreement used hereunder shall be null, void, and unenforceable unless it is substantially similar to the form included in Public Contract Code §22300 which is reproduced in Section 00580, Sample Escrow Agreement, for Security Deposits in Lieu of Retention.

G. Specific securities proposed for investment shall be submitted to the City for determination of acceptability. Standby letters of credit are not eligible for investment.

10.07 WARRANTY OF TITLE
A. No material, supplies, or equipment for the Work under this Contract shall be purchased subject to any chattel mortgage, security agreement, or under a conditional sale or other agreement by which an interest therein or any part thereof is retained by the seller or supplier. The Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the work and agrees upon completion of all work to deliver the premises, together with all improvements and appurtenances constructed or placed thereon by the Contractor, to the City free from any claims, liens, security interests, or charges. The Contractor further agrees that neither the Contractor nor any person, firm, or corporation furnishing any materials or labor for any work covered by this Contract shall have any right to a lien upon the premises or any improvement or appurtenances thereon, provided that this shall not preclude the Contractor from installing metering devices and other equipment of utility companies or of

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municipalities, the title of which is commonly retained by the utility company or the municipality. In the event of the installation of any such metering device or equipment, the Contractor shall advise the City as to the legal City thereof.

B. Nothing contained in this paragraph, however, shall defeat or impair the right of such persons furnishing materials or labor under any bond given by the Contractor for their protection or any rights under any law permitting such persons to look to funds due the Contractor in the hands of the City. The provisions of this Paragraph shall be inserted in all subcontracts and material contracts, and notice of its provisions shall be given to all persons furnishing materials for the work when no formal Contract is entered into for such materials.

10.08 SUBSTANTIAL COMPLETION
A. When the Contractor considers that the Work or portion of the Work as defined in the Technical Specifications is substantially complete, the Contractor shall notify the Construction Manager accompanied with the Contractor’s Certification of Completion letter. Upon receipt of the notification, the Construction Manager, the City, the Design Engineer, and/or their authorized representatives will make inspection, to determine if the Work and administrative requirements are sufficiently complete in accordance with the Contract Documents so the City can occupy or utilize the Work for its intended use. If items are found which prevent such use or occupancy, the Construction Manager shall notify the Contractor in writing of such items by issuing a Corrective Work Item List.

B. Upon the completion of such corrective work, the Contractor shall so notify the Construction Manager in writing. The Construction Manager, the City, and/or the Design Engineer shall inspect the Work to determine its acceptability for Substantial Completion and for determination of other items which do not meet the terms of the Contract. Upon verification that the Work is substantially complete the Construction Manager shall prepare a Certificate of Substantial Completion and the Punch List. The Certificate shall establish the date of Substantial Completion and the responsibilities of the City and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, commencement of warranties required by the Contract Documents, and shall fix the time, not to exceed 60 days, within which the Contractor shall finish all items on the Punch List or remaining work or administrative requirements accompanying the Certificate. When the preceding provisions have been approved by both the City and the Contractor, they shall sign the Certificate to acknowledge their written acceptance of the responsibilities assigned to them in such Certificate. By such acknowledgment, the City has the right to retain, in accordance with applicable law, withheld monies due the Contractor to pay the City's actual costs including, but not limited to, charges for engineering, inspection and administration incurred due to the failure to complete the Punch List within the time period provided in the Certificate of Substantial Completion, which costs the City may deduct from amounts due or that may become due the Contractor under the Contract.

10.09 FINAL INSPECTION AND PAYMENT
A. After receipt of the last partial payment, but prior to acceptance of the Work by the City, the Contractor shall send a letter to the Construction Manager. The letter, pursuant to California Public Contract Code §7100, shall state that acceptance of the final payment described below shall operate as and shall be, a release to the City, its officers, employees, the Construction Manager, the Design Engineer, and their duly authorized agents, from all claim of and/or liability to the Contract arising by virtue of the Contract related to undisputed contract amounts. Disputed Contract claims in stated amounts previously filed as provided in Section 00700-Article 11, Protests, Disputes and Claims, may be specifically excluded by the Contractor from the operation of the release.

B. Following receipt of all required submittals and the Construction Manager's written statement that construction is complete and recommendation that the City accept the project, the City will take formal action on acceptance.

C. Within ten (10) days of the acceptance by the City of the completed work embraced in the Contract, the City will cause to be recorded in the office of the County Recorder a Notice of Completion.

D. Within sixty (60) days after the date of the completion of the Project pursuant to Public Contract Code section 7107, the City will pay the Contractor in lawful money such sums of money as may be due the Contractor and are undisputed including all sums retained but excluding such sums as have previously

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been paid the Contractor. This payment will constitute the final payment to the Contractor under this Contract. Prior to receipt of such payment, the Contractor shall send City a "conditional waiver and release upon final payment" properly executed in accordance with California Civil Code §8132.

E. The City will pay the Contractor in lawful money such sums of money as may be due the Contractor including all sums retained but excluding such sums as have previously been paid the Contractor and as may be needed to cover outstanding stop notices. This payment will constitute the final payment to the Contractor under this Contract.

F. In the event of a dispute between the City and the Contractor, the City may in accordance with California Public Contract Code §7107 withhold from the final payment an amount of 150 percent of the disputed amount.
**END ARTICLE 10**

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ARTICLE 11 - PROTESTS, DISPUTES AND CLAIMS

11.01 PROTESTS
A. If Contractor contends that it was directed by the Construction Manager to perform Work outside the requirements of the Contract Documents, or if Contractor considers any direction, instruction or decision of Construction Manager to be incorrect or improper, Contractor must immediately notify City’s Representative in writing within five (5) days of such directive, instruction, or decision before proceeding with such Work.

B. If Contractor proceeds with such Work without complying with the requirements of Section 00700-

11.01.A above, providing advance written notification, Contractor will be deemed to have assented that the Work is within the Contract’s requirements, and Contractor will have forfeited any right to a protest or Claim.

11.02 DISPUTES
A. A Dispute is a written disagreement submitted by the Contractor seeking adjustment of Contract terms, payment of money, extension of Contract Time or other relief with respect to the terms of the Contract.

B. A Dispute is not a Claim.

C. Each Dispute must involve only one issue to be decided by the City.

D. Dispute documentation must be complete when submitted.

E. The evaluation of the Contractor's position will be based on City's records and the Dispute documentation submitted by Contractor.

F. Contractor must furnish Dispute documentation in the following format:

1. Introduction and Issue Identification.

2. Background.

3. Chronology.

4. Contractor's Position (Reason for City's potential liability).

5. Supporting documentation of merit.

6. Supporting documentation of damages.

7. Schedules (if appropriate).

8. Productivity exhibits (if appropriate).

G. Supporting documentation of merit must be cited by reference, photocopies, or explained. Supporting documentation may include, but not be limited to General Conditions, General Requirements, Technical Specifications, Drawings, correspondence, conference notes, Shop Drawings and other Submittals, Submittal logs, survey books, inspection reports, delivery schedules, test reports, daily reports, subcontracts, fragmentary Critical Path method schedules, photographs, technical reports, Requests for Information, field instructions, and other related records necessary to support the merit of Contractor's position.

H. Supporting documentation of damages must be cited, photocopied, or explained. Supporting documentation may include but not be limited to any or all documents related to the preparation and submission of the Bid; Subcontractor, Supplier or vendor files and cost records; certified payroll reports, materials, equipment, and construction equipment and services costs; purchase orders; invoices; project as-planned and as-built costs; Subcontractor and Supplier payment documentation; quantity reports; other related records; general ledger and any other accounting materials necessary to support the Contractor's position.

I. The City may elect to enter into discussions and/or negotiations with the Contractor for the purpose of resolving the Dispute. Negotiations on Disputed Work are for settlement purposes only and are not binding.

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J. City’s Representative will decide Disputes and Claims. The Contractor will be furnished with a written copy of the City’s decision.

11.03 NOTICE OF POTENTIAL CLAIM
A. Contractor is not entitled to additional compensation for any cause unless Contractor submits to the Construction Manager a written notice of the potential Claim as hereinafter specified.

B. The written notice of potential Claim must set forth the reasons for which Contractor believes additional compensation and/or time will or may be due, the nature of the costs and/or time involved, and, insofar as possible, the amount of the potential Claim. The said notice as above required must have been submitted to Construction Manager before Contractor performs the Work giving rise to the potential Claim for additional compensation and/or time, if based on an act or failure to act by City, or in all other cases within fourteen (14) Days after the happening of the event, thing or occurrence giving rise to the potential Claim.

C. Compliance with the foregoing shall not be a prerequisite to any Claim that is based on differences in measurement or errors of computations as to Contract quantities.

11.04 CONTEMPORANEOUS DOCUMENTATION
A. Contractor must contemporaneously generate full and complete records of the cost and time incurred to perform Disputed Work.

B. Beginning with the first day on which any Disputed Work is performed, and each following Day, Contractor must maintain detailed hourly records of labor, construction equipment, and services, and itemized records of materials and equipment used each Day in the performance of the Disputed Work.

Such records must be of a form acceptable to Construction Manager, must be signed by Contractor, and are subject to verification by Construction Manager.

11.05 CLAIMS
A. A Claim is a separate unresolved Dispute by the Contractor for:

1. a Contract Time extension;

2. payment of money or damages arising from Work done by, or on behalf of, the Contractor pursuant to the contract for a public work and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to; or

3. an amount the payment of which is disputed by the City.

B. If a Dispute or Disputes have not been resolved to the satisfaction of the Contractor, the Contractor may submit a Claim along with detailed documentation supporting the Claim.

C. A single Claim may include multiple issues. However, each issue in a Claim must be separately identified and supported.

D. Contractor must submit certified copies of the Claim documentation. Certification must be provided in accordance with Section 00700-11.05.J below.

E. All Claim documentation must be complete when submitted.

F. Each issue to be decided by the City must be clearly identified in the Claim. Issues not clearly identified and included in the certified Claim will not be considered.

G. The evaluation of the Contractor's Claim will be based on City's records and the certified Claim documentation submitted by Contractor.

H. Claim Documentation: Claim documentation must conform to generally accepted auditing standards and must be in the following format:

1. Introduction.

2. General Background Discussion.

3. Summary of Issues and Damages.

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4. Issues:

Index of Issues.

For Each Issue (Begin each issue on a new page).
1) Background.
2) Chronology.
3) Contractor's Position (Reason for City's potential liability). 4) Supporting Documentation of Merit.
5) Supporting Documentation of Damages.
6) Schedules (if appropriate).
7) Productivity exhibits (if appropriate).

5. Supporting documentation of merit must be cited by reference, photocopies, or explained.

Supporting documentation may include, but not be limited to General Conditions, General Requirements, Technical Specifications, Drawings, correspondence, conference notes, Shop Drawings and other Submittals, Submittal Logs, survey books, inspection reports, delivery schedules, test reports, daily reports, subcontracts, fragmentary Critical Path method schedules, photographs, technical reports, Requests for Information, field instructions, and other related records necessary to support the merit of Contractor's position.

6. Supporting documentation of damages must be cited, photocopied, or explained. Supporting documentation may include but not be limited to any or all documents related to the preparation and submission of the Bid; Subcontractor, Supplier or vendor files and cost records; certified payroll reports, materials, equipment, and construction equipment and services costs; purchase orders; invoices; project as-planned and as-built costs; Subcontractor and Supplier payment documentation; quantity reports; other related records; general ledger and any other accounting materials necessary to support the Contractor's position.

I. Submission of Claim Costs: Within thirty (30) days after incurring the last cost of work for which the Contractor contends it is due additional compensation is incurred, but if costs are incurred over a span of more than thirty (30) days, then within fifteen (15) days after the thirtieth day and every month thereafter, the Contractor shall submit to the Construction Manager, as best the Contractor is able, its costs incurred for the claimed matter. Claims shall be made in itemized detail, and should the Construction Manager be dissatisfied with the format or detail of presentation, upon request for more or different information, the Contractor will promptly comply, to the satisfaction of the Construction Manager. If the additional costs are not fully ascertainable, they shall be estimated with as much accuracy as possible in the circumstances. The Construction Manager shall have the right as provided in Section 00700-9.05, Cost Pricing Date and Access to Records, to review the Contractor’s records pertaining to a submitted claim. In case the claim is found to be just, it shall be allowed and paid for as provided in Section 00700-Article 9, Changes in the Work.

J. Each original copy of the Claim must include the following certification, signed in the same manner as the Agreement was signed:

1. Under the penalty of law for perjury or falsification and with specific reference to the California False Claims Act, Government Code §12650 et seq., the undersigned, Name:

Title:

Company:
hereby certifies that this Claim is made in good faith, is a true statement of the actual costs incurred and time sought, is fully supported pursuant to the Contract between parties, that the supporting documentation is accurate and complete to the best of my knowledge and belief, and that the amount requested accurately reflects the Contract adjustments for which City is responsible.

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Dated: Signed:

Subscribed and sworn before me this ______ day of ________ 20__ Commission Expires
(Notary Public)
K. Failure to submit the notarized certification will be sufficient cause for rejecting the Claim submission.

L. If Contractor is unable to support any part of a certified Claim and it is determined that such inability is attributable to falsity of such certification or misrepresentation of fact or fraud by Contractor, Contractor shall be liable to City for three (3) times the amount of damages which City sustains, plus the cost of civil action, and may be liable to City for a civil penalty of up to Ten Thousand Dollars ($10,000) for each false claim.

11.06 PROCESSING OF CLAIMS
A. General: This Contract provides for three types of Contract Claims, which will be processed and resolved under different subsections. Any claim for money or damages of $375,000 or less or for a time extension (i.e., any claim subject to California Public Contract Code §20104) shall be processed and resolved in accordance with Section 00700-11.06.B below. Any claim for money or damages of more than $375,000 (i.e., any claim not subject to Public Contract Code §20104) shall be processed and resolved in accordance with Section 00700-11.06.C below. Any Contract Claim sent to City by registered mail or certified mail with return receipt requested (i.e., any claim subject to Public Contract Code §9204) shall be processed and resolved pursuant to Section 00700-11.06.D.

B. Claims for $375,000 or Less or for Time Extension and Not Sent by Registered or Certified Mail.

1. Application: This subsection applies to all claims (not sent by registered or certified mail) for $375,000 or less in value, including any claim for a time extension or for a time extension that includes claimed delay damages of $375,000 or less.

2. City Response to Contract Claim: The Construction Manager shall respond in writing to the Contract Claim within sixty (60) days of receipt of the claim (or within forty-five (45) days of receipt for claims of less than $50,000), or may request, in writing, within thirty (30) days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subsection, upon mutual agreement of the Construction Manager and the Contractor. The Construction Manager’s written response to the claim, as further documented, shall be submitted to the Contractor within thirty (30) days after receipt (or fifteen (15) days after receipt for claims of less than $50,000) of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater. The City shall not fail to pay money as to any portion of a Contact Claim that is undisputed except as otherwise provided in the Contract Documents.

3. Meet and Confer: If the Contractor disputes the Construction Manager’s written response, or the Construction Manager fails to respond within the time prescribed, the Contractor may notify the City, in writing, either within fifteen (15) days of receipt of the Construction Manager’s response or within fifteen (15) days of the Construction Manager’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon such a demand, the City shall schedule a meet and confer conference within thirty (30) days for the parties to consider settlement of the dispute. If the Contractor fails to timely demand a meet and confer conference within the applicable 15-day period, then the Contractor shall be deemed not to dispute the Construction Manager’s written response to the Contract Claim and the Construction Manager’s decision on the Contract Claim shall be final, conclusive and binding, and the Contractor shall be deemed to have waived all its rights to further protest, judicial or otherwise.

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4. Government Code Claim: Following the meet and confer conference, if the Contract Claim or any portion remains in dispute, the Contractor may file a Government Code Claim as provided in Government Code title 1, division 3.6, part 3, chapters 1 (commencing with section 900) and 2 (commencing with section 910). The running of the period of time within which Contractor must file a Government Code Claim shall be tolled from the time the Contractor submits a timely Contract Claim pursuant to 00700-11.03 through 11.05 above until the time that the Contract Claim is denied as a result of the meet and confer process, including any period of time utilized by the meet and confer process. The City shall respond to any Government Code Claim in accordance with the Government Claims Act.

5. Lawsuit: If the claim is not resolved pursuant to Section 00700-11.06.B.4 above, the Contractor may file a lawsuit on the claim within the limitations period provided by the Government Claims Act. If the Contractor fails to timely file a lawsuit within the limitations period of the Government Claims Act, then the City’s response to the Government Code Claim shall be final, conclusive and binding on the Contractor, and the Contractor thereafter shall be barred from filing a lawsuit on the claim.

6. Mediation: If the Contractor timely files a lawsuit, then within sixty (60) days, but no earlier than thirty (30) days, following the filing of responsive pleadings, the court shall submit the matter to non-binding mediation (unless waived by mutual stipulation of both parties). The mediation process shall provide for the selection within fifteen (15) days by both parties of a disinterested third person as mediator, shall be commenced within thirty (30) days of the submittal, and shall be concluded within fifteen (15) days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court or by stipulation of both parties.

If the parties fail to select a mediator within the 15-day period, any party may petition the court to appoint the mediator. The mediator’s fees and expenses shall be split and paid equally between the parties. The court may, upon request by any party, order any witnesses to participate in the mediation process.

7. Arbitration: If the matter remains in dispute following the mediation or if the parties waive the mediation, then the case shall be submitted to judicial arbitration pursuant to Code of Civil Procedure part 3, title 3, chapter 2.5 (commencing with section 1141.10), notwithstanding section 1141.11 of that code. The Civil Discovery Act of 1986 (Code of Civil Procedure part 4, title 3, chapter 3, article 3 (commencing with section 2016)) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. The arbitrator shall be experienced in public works construction law. The arbitrator’s fees and expenses shall be split and paid equally by the parties, except where the arbitrator, for good cause, determines a different division. The court may, upon request by any party, order any witnesses to participate in the arbitration process. Any party who, after receiving an arbitration award, requests a trial de novo but does not obtain a more favorable judgment shall (in addition to payment of any costs and fees under Code of Civil Procedure part 3, title 3, chapter 2.5 (commencing with section 1141.10)) pay the attorney's fees of the other party arising out of the trial de novo.

8. Interest: In any lawsuit filed under this subsection, City shall pay interest at the legal rate on any arbitration award or judgment. The interest shall begin to accrue on the date the lawsuit is filed in court.

C. Claims for More Than $375,000 and Not Sent by Registered or Certified Mail:

1. Application. This subsection applies to all claims (not sent by registered or certified mail) that exceed $375,000 in value, including any claim for a time extension that includes claimed delay damages exceeding $375,000.

2. City Response to Contract Claim. The Construction Manager shall respond in writing to the Contract Claim within sixty (60) days of receipt of the claim, or may request, in writing, within thirty (30) days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim that the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subsection, upon mutual agreement of the Construction Manager and the Contractor. The Construction Manager’s written response to the claim, as further documented, shall be submitted to the Contractor within thirty (30) days after receipt of the further documentation. If the Contractor fails to timely dispute the

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Construction Manager’s decision on the matter in accordance with Section 00700-11.06.C.3 below, then the Contractor shall be deemed not to dispute the Construction Manager’s written response to the Contract Claim and the Construction Manager’s decision shall be final, conclusive and binding, and the Contractor shall be deemed to have waived all its rights to further protest, judicial or otherwise.

3. Government Code Claim. If the Contractor disputes the Construction Manager’s written response to the Contract Claim, the Contractor may file a Government Code Claim as provided in Government Code title 1, division 3.6, part 3, chapters 1 (commencing with section 900) and 2 (commencing with section 910). City shall respond to any Government Code Claim in accordance with the California Government Claims Act.

4. Lawsuit. If the claim is not resolved pursuant to 00700-11.06.C.3 above, the Contractor may file a lawsuit on the claim within the limitations period provided by the Government Claims Act. If the Contractor fails to timely file a lawsuit within the limitations period of the Government Claims Act, then the City’s response to the Government Code Claim shall be final, conclusive and binding on the Contractor, and the Contractor thereafter shall be barred from filing a lawsuit on the claim.

5. Judicial Reference. If the Contractor timely files a lawsuit, the case shall be submitted to judicial reference pursuant to California Code of Civil Procedure sections 638 and 640 through 645.1 (or any successor statute) and California Rules of Court title 3, division 9 (commencing with section

3.900). As authorized by Code of Civil Procedure section 638, a referee will consider and decide all factual and legal issues in the action. Each party acknowledges that it will not have any right to a jury trial or to have any judicial officer besides the referee hear or decide the action. When Contractor initiates the superior court lawsuit, it will, at the same time it files the complaint in the action, also file a motion for appointment of a single referee.

Appointment of a referee shall be by mutual agreement within thirty (30) days between the parties, and if unsuccessful, then by the court and will be governed by Code of Civil Procedure §640, and subject to objection by either party as provided by Code of Civil Procedure §641. The referee must be a retired judge or a licensed attorney with at least ten years substantive experience in public works construction matters.

The parties shall be entitled to discovery and the referee shall oversee discovery and may enforce all discovery orders in the same manner as a superior court judge. The referee shall have the authority to consider and rule on appropriate pre-hearing and post-hearing motions in the same manner as a superior court judge. The referee will have the authority to set a briefing and hearing schedule for any such motion or for a hearing on the merits.

The referee’s statement of decision shall include findings of fact and conclusions of law. The statement of decision will stand as the decision of the superior court and, upon filing of the statement with the clerk of the court, judgment may be entered pursuant to Code of Civil Procedure §644, subsection (a). The parties will have rights to appeal the final judgment so entered.

Each party will pay half of the costs of the referee and the administrative fees of the reference proceeding, and each party will bear its own costs, expenses and attorney fees for the reference proceeding.

D. Claims Subject to California Public Contract Code §9204

1. This subsection applies to all Contract Claims sent by registered or certified mail with return receipt requested. The Contract Claim will be processed and resolved pursuant to Public Contract Code §9204, which is summarized here:

City Review of Claim. Within forty-five (45) days after receiving a complete Contract Claim, City shall review the claim and provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed. City will pay any undisputed portion of the claim within sixty (60) days from the date of the written statement. If City fails to timely issue a written statement, then the claim shall be deemed rejected in its entirety.

Meet and Confer Conference. If the Contractor disputes the City’s written statement or if the Contract Claim is deemed rejected, the Contractor may demand and the parties will conduct an informal conference to meet and confer regarding settlement in accordance with §9204,

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subsection (d)(2)(A). Within ten (10) business days following the conclusion of the meet and confer conference, City shall provide Contractor a written statement identifying the portion (if any) of the claim remaining in dispute and any undisputed portion will be paid by City within sixty (60) days after this written statement.

Non-Binding Mediation. Any remaining disputed portion of the claim shall be submitted to nonbinding mediation in accordance with §9204, subsection (d)(2)(B).

Interest. Any amount not paid in a timely manner as required by this subsection shall bear interest at a rate of 7 percent per annum until paid.

The foregoing is a summary of §9204. In the event of any conflict between the summary and §9204, the statute will govern.

2. Lawsuit and Reference: If mediation is unsuccessful and all or parts of the Contract Claim remain in dispute, then the Contractor may pursue a lawsuit (with judicial reference) in accordance with the procedures set forth at 00700-11.06.C.4 through 11.06.C.5. Any lawsuit under this section

11.06.C.5 will be subject to judicial reference in the same manner as under 11.06.C.4.

E. Contract Work Pending Claim Resolution: Unless otherwise directed in writing by the Construction Manager, pending resolution of a claim under this Article 11, the Contractor shall continue to diligently prosecute the Work in accordance with the Contract Documents and the instructions of the Construction Manager.

F. Records of Disputed Work: In proceeding with a disputed portion of the Work, the Contractor shall keep accurate daily records of all costs, including a summary of the hours and classification of equipment and labor utilized on the disputed work, as well as a summary of any materials or any specialized services that are used. Such information shall be submitted to the Construction Manager on a daily basis, receipt of which shall not be construed as an authorization for or acceptance of the disputed work. Failure to comply with this paragraph shall constitute a waiver of the Contractor’s claim for additional compensation or a time extension as to that day.

G. Claim Meetings: From time to time the Contractor may request or the Construction Manager may call a special meeting to discuss outstanding claims should it deem this a means of possible help in the resolution of the claim. The Contractor shall cooperate and attend prepared to discuss its claims, and make available the personnel, subcontractors and suppliers necessary for resolution, of the claim. In addition, the Contractor shall timely provide all documents relevant to the claim which may reasonably be requested by the Construction Manager.

H. Tort Claims: The provisions of this Article 11 apply only to contract-based claims and they shall not apply to tort claims, and nothing in this Article 11 is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Government Code title 1, division 3.6, part 3, chapters 1 (commencing with section 900) and 2 (commencing with section 910).

11.07 UNSUCCESSFUL NEGOTIATIONS
A. Unsuccessful negotiations to resolve Claims or Disputes are for settlement purposes only and are not binding.
**END ARTICLE 11**

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ARTICLE 12 - PROTECTION OF PERSONS AND PROPERTY

12.01 SAFETY PROVISIONS
A. Contractor's Safety Responsibility:

1. The Contractor shall be solely and completely responsible for conditions of the jobsite, including safety of all persons and property during performance of the Work. This requirement shall apply continuously and not be limited to normal working hours. Safety provisions shall conform to U.S.

Department of Labor (OSHA), the California Occupational Safety and Health Act (Cal/OSHA), and all other applicable Federal, State, County, and local laws, ordinances, codes, including but not limited to the requirements set forth below, and any regulations that may be detailed in other parts of these Contract Documents. In the event of conflicting requirements, the most stringent requirement as it pertains to the Contractor’s safety responsibility, shall be followed by the Contractor.

2. THE CONTRACTOR IS HEREBY INFORMED THAT WORK ON THIS PROJECT COULD BE PHYSICALLY DANGEROUS TO WORKERS. NO WORK SHALL PROCEED UNTIL EACH

WORKER AND SUBCONTRACTOR UNDERSTANDS THE SCOPE OF THE WORK AND ALL SAFETY RULES AND WORK PROCEDURES TO BE FOLLOWED. THE CONTRACTOR SHALL

NOT ALLOW A NEW EMPLOYEE OR NEW SUBCONTRACTOR TO BEGIN WORK ON CITY PROJECTS WITHOUT A PROPER SAFETY ORIENTATION. THE CONTRACTOR SHALL

CAREFULLY INSTRUCT ALL PERSONNEL WORKING ON THIS PROJECT REGARDING

THESE DANGERS INCLUDING, BUT NOT LIMITED TO, CONFINED SPACES, POTENTIALLY

EXPLOSIVE ATMOSPHERES, HANDLING OF CHEMICALS, AND POSSIBLE EXPOSURE TO PATHOGENS. THE CONVEYANCE AND TREATMENT OF RAW SEWAGE AND ITS BYPRODUCTS CAN INTRODUCE PATHOGENIC ORGANISMS, WHICH MAY CAUSE DISEASES

SUCH AS SALMONELLOSIS, TYPHOID FEVER, PARATYPHOID FEVER, BACILLARY

DYSENTERY, CHOLERA, INFECTIOUS HEPATITIS, POLIO, AMOEBIC DYSENTERY, GIARDIASIS, CRYPTOSPORIDIOSIS, AND OTHERS.

3. THE CONTRACTOR IS ADVISED THAT THE WORK MAY TAKE LONGER AND MAY REQUIRE SPECIAL EQUIPMENT IN ORDER TO PROPERLY CONFORM TO SAFETY REQUIREMENTS.

THE CONTRACTOR SHALL PROVIDE PERSONAL HYGIENE, SAFETY, AND PERSONAL

PROTECTIVE SUPPLIES, EQUIPMENT AND TRAINING AS ARE NECESSARY TO PREVENT INJURY TO PERSONNEL AND DAMAGE TO PROPERTY. SPECIAL CARE SHALL BE EXERCISED RELATIVE TO WORK UNDERGROUND.

4. No provision of the Contract Documents shall act to make the City, the Construction Manager, Design Engineer or any other party than the Contractor responsible for safety. The Contractor agrees that for purposes of California Labor Code §6400 and related provisions of law the Contractor, the Contractor's privities and any other entities acting pursuant to this contract will be “employers” responsible for furnishing employment and a place of employment that is safe and healthful for the employees, if any, of such entities acting pursuant to this contract and that neither the City nor the Construction Manager, Design Engineer or their respective officers, officials, employees, agents or volunteers or other authorized representatives will be responsible for having hazards corrected and /or removed at the location(s) where the work is to be performed.

5. The Contractor agrees that neither the City nor the Construction Manager, Design Engineer or their respective officers, officials, employees, agents or volunteers or other authorized representatives will be responsible for taking steps to protect the Contractor's employees from such hazards, or for instructing the Contractor's employees to recognize such hazards or to avoid the associated dangers. The Contractor agrees that with respect to the work to be performed under this contract and the location(s) where such work is to be performed, the Contractor will be responsible for not creating hazards, and for having hazards corrected and/or removed.

6. The Contractor agrees that through the safety obligations contained in this contract and the Contractor's own inspection of the Site(s) where the contract work is to be performed, the Contractor is aware and has been notified of the hazards to which the Contractor's employees may be exposed in the performance of contract work. The Contractor has taken and/or will take appropriate, feasible steps to protect the Contractor's employees from such hazards, and has

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instructed and/or will instruct its employees to recognize such hazards and how to avoid the associated dangers.

7. The Contractor agrees that neither the City nor the Construction Manager, Design Engineer or their respective officers, officials, employees, agents, or volunteers or other authorized representatives will be “employers” pursuant to California Labor Code §6400 and related provisions of law with respect to the Contractor, the Contractor's privities or other entities acting pursuant to this contract.

8. The Contractor shall indemnify, defend, and hold City and Construction Manager, Design Engineer and their respective officers, officials, employees, agents and volunteers or other authorized representatives harmless to the full extent permitted by law concerning liability related to the Contractor’s safety obligations in accordance with Section 00700- Article 13, Insurance and Indemnification.

If death, serious or minor injuries, or serious or minor damages are caused, the accident shall be reported immediately by telephone or messenger to both the Construction Manager and the City.

In addition, the Contractor shall furnish the Construction Manager with a copy of the Employer's Report of Injury immediately following any incident requiring the filing of said report during the prosecution of the Work under this Contract whether on, or adjacent to, the Site, giving full details and statements of witnesses. The Contractor shall also furnish the Construction Manager with a copy of the Employer's Report of Injury involving any subcontractors on this Project. The Contractor shall make all reports as are, or may be, required by any authority having jurisdiction, and permit all safety inspections of the Work being performed under this Contract. The City reserves the right to jointly participate in the investigative process with Contractor or conduct its own independent investigation.

9. If a claim is made by anyone against the Contractor or any subcontractor on account of any accident, the Contractor shall promptly report the facts in writing to the Construction Manager, giving full details of the claim.

B. Safety Program

1. The Contractor shall establish, implement, and maintain a written Injury and Illness Prevention Program as required by Cal/OSHA Title 8, §1509 and California Labor Code §6401.7. Before beginning the Work, the Contractor shall prepare and submit with the Construction Manager a written Site-Specific Contractor Safety Program (SSCSP) that provides for the implementation of all of the Contractor's safety responsibilities in connection with the Work at the Project Site, and the coordination of that program and its associated procedures and precautions with the safety programs, precautions and procedures of each of its subcontractors and other Contractors performing work at the Project Site. The SSCSP shall address the elements required by Cal/OSHA Title 8, §1509 and Labor Code §6401.7 and contain all the necessary elements for the Contractor to administer its program on the Project Site including the following information:

An organization chart and accompanying narrative that describes the responsibility for employee and public safety of those individuals who control each phase of the operations.

The chart shall also show the Contractor's internal lines of communication (including subcontractors) for the program. The policies and procedures to be followed by all personnel shall be included.

The designation of a Competent Person.

Specific procedures for communication between the Contractor and City on safety matters.

The Contractor shall designate one person with whom official contact can be made by the City on safety matters.

A specific process for employees and subcontractors to become thoroughly familiar with the potential hazards of the work and applicable federal and state regulations.

Specific safety procedures and guidelines for conduct of the Work. 1) The existence, submittal, or review of, and/or comment upon the Contractor's Injury and Illness Prevention Program and project-specific safety manual shall not in any way modify the responsibilities of the Contractor for safety for the entire Project or shift any of the responsibilities to the City. Such review and comment shall not be construed as limiting in

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any manner the Contractor's obligation to undertake any action that may be necessary or required to establish and maintain safe working conditions at the Site. 2) In addition, the City may require the submittal of Injury and Illness Prevention Programs and project-specific safety manuals from certain subcontractors at the discretion of the City. The existence, submittal, or review of, or comment upon a subcontractor's Injury and Illness Prevention Program or project-specific safety manual shall not in any way modify the responsibilities of the Contractor for safety for the entire Project or shift any of the responsibilities to the City.
3) The City's review, comment upon, or inspection of the Contractor's or subcontractor's performance shall not in any way modify the responsibilities of the Contractor or subcontractor for the adequacy of the Contractor's or subcontractor's work methods, equipment, bracing or scaffolding, or safety measures in, on, or near the construction Site. 4) The City reserves the right to stop work if the Construction Manager or City Engineer believes that there is an imminent danger to persons or property. Even though the City reserves such rights, the exercise of such rights is at the City's sole discretion, and such reservations will not be construed as an obligation of the City to monitor or enforce the Contractor's Program. The City's exercise of these rights shall not provide a basis for delay damages, extra compensation, and/or additional compensation to complete the work.

2. The Contractor shall maintain a Drug-Free workplace policy within the Project Site for the safety of its employees, the City’s, Construction Manager’s, and Design Engineer’s employees and the public. The Drug-Free workplace policy shall be posted on the Construction Site. The Contractor shall notify the Construction Manager of any criminal drug statute violation occurring on the Site not later than five (5) days after the Contractor becomes aware of such violation.

3. The Contractor shall develop its SSCSP to ensure safe work practices while working in an environment where partially treated sewage may be present. The contractor shall adhere to OSHA mandated and Cal/OSHA mandated construction safety requirements including confined space entry requirements.

4. The Contractor's compliance with requirements for safety and/or the Construction Manager's review of the SSCSP shall not relieve or decrease the liability of the Contractor for safety. The Construction Manager's review of the SSCSP is only to determine if the above listed elements are included in the program.

C. Safety Supervisor:

1. The Contractor shall appoint an employee as safety supervisor who is qualified and authorized to supervise and enforce compliance with the SSCSP. The Contractor shall notify the Construction Manager in writing prior to the commencement of work of the name of the person who will act as the Contractor's Safety Supervisor and furnish the safety supervisor's resume to the Construction Manager.

2. The Contractor will, through and with its Safety Supervisor, ensure that all of its employees and its subcontractors of any tier, fully comply with the Project Safety Policies. The Safety Supervisor shall be a full-time employee of the Contractor whose responsibility shall be for supervising compliance with applicable safety requirements on the Project Site and for developing and implementing safety training classes for all job personnel. The City shall have the authority to require removal of the Contractor's Safety Supervisor if the representative is judged to be improperly or inadequately performing the duties; however, this authority shall not in any way affect the Contractor's sole responsibility for performing this work safely, nor shall it impose any obligation upon the City to ensure the Contractor performs its work safely.

D. Safety and Protection:

1. The Contractor shall take all necessary precautions to prevent damage, injury, and loss to:

2. All employees on the Project, employees of all subcontractors, and other persons and organizations who may be affected thereby;