MODEL CONTRACT FOR
CONTRACT NO. MA-080-TBD
This Contract is made and entered into the day of , 20 , by and between the County of Orange, a political subdivision of the State of California, herein referred to as, “Owner”, and
, herein referred to as “Construction Manager at Risk (“XXXX)”, with Owner and XXXX sometimes individually referred to as (“Party”), or collectively referred to as (“Parties”).
Owner and XXXX agree as follows:
1. CONTRACT DOCUMENTS
Contract Documents, which together comprise the complete Contract between Owner and XXXX, consist of the following: Owner approved Guaranteed Maximum Price (GMP) package(s), as approved by the Director of OC Public Works or designee (“Director”); this Contract; the General Conditions; Supplementary General Conditions; Addenda; Attachments; Plans; Standard Specifications; all Reference Specifications mentioned in any Contract Documents; and all modifications and amendments to the foregoing issued after the date of execution of the Contract, including Amendments and Change Orders. The Contract Documents also include a Faithful Performance Bond and the Labor and Material Payment Bond corresponding with each GMP. The Contract Documents are complementary, and what is called for by any one shall be as binding as if called for by all.
2. SCOPE OF WORK
XXXX shall perform all work as required by, and in strict accordance with the Contract Documents (the “Project”), which consists, in general of the construction of Brea Boulevard Bridge Replacement and Corridor Enhancement Project.
Other items of work or details not mentioned above that are required by the Plans, Standard Specification, or Special Provisions, shall be performed, placed, and constructed.
3. CONTRACT PRICE, CONTINGENCY AND CONTRACT TIME
3.1 CONTRACT PRICE
Owner shall pay XXXX for all work required by the Contract Documents at or below the total Guaranteed Maximum Price (GMP) Construction Services Contract of
Dollars ($ ). GMPs may be adjusted pursuant to the “Changes” Section of the General Conditions, and in accordance with the “Payments” Section of the General Conditions. The sum of all Guaranteed Maximum Prices (GMP) submittals (as defined in the General Conditions) shall not exceed the total Contract Price.
3.2.1 “Contingency (XXXX’x)” means a fund to cover cost growth during the Project used at the discretion of the XXXX usually for costs that result from Project circumstances. The amount of the XXXX’x Contingency will be a separate line item in the GMP package. Use and management of the XXXX’x Contingency during the construction phase is as presented in the Design Phase Contract, as reproduced in part below for reference.
XXXX’x Contingency is an amount the XXXX shall use under the following conditions:
(5) At its discretion for increases in the Cost of the Work which are not the Owner’s responsibility, or
(6) With written approval of the Owner for increases in General Condition Costs. XXXX’x Contingency is assumed to be a direct project cost so will receive all markups at the time of GMP submission.
(7) Any XXXX Contingency not utilized shall be shared 50/50 between the Owner and XXXX after Project completion.
3.2.2 “Contingency (Owner’s)” means a fund to be used at the discretion of the Owner to cover any increases in Project costs that result from Owner directed changes or unforeseen site conditions. Owner’s Contingency will be added to the GMP amount provided by the XXXX, the sum of which will be the full contract price for construction. Markups for Construction Fee and taxes will be applied by the XXXX at the time that Owner’s Contingency is used. Any Owner Contingency not utilized shall revert to the Owner after Project completion.
3.3 CONTRACT TIME
Within 10 calendar days of the Owner’s execution of the Contract, XXXX shall submit to Owner for its review: acceptable bonds (as detailed below); proof of insurance; and updated Project Schedule including construction work as required by the Contract Documents. If Owner rejects the submitted documents, XXXX will have 5 additional calendar days to resubmit. If XXXX fails to submit documents within the required time(s), the Contract Time (as defined below) will be reduced by the number of days which exceed the time for submittal. If XXXX fails to submit acceptable documents by the second submission, Owner may, at its sole discretion, reduce the Contract Time by the number of days between Owner’s rejection of the second submission and Owner’s approval of the documents.
Upon Owner’s approval of the bonds, insurance, and updated Project Schedule, Owner will deliver to XXXX a signed copy of the Contract and a Notice to Proceed with the work. XXXX shall not commence construction until Owner issues the Notice to Proceed for the GMP package(s). XXXX shall complete all work required by the Contract Documents within < Contract Time Days > calendar days of the effective date of the Notice to Proceed (“Contract Time”). The Contract Time includes < Weather Days > of anticipated weather days necessitating stoppage of work, and a time extension due to rain or other adverse weather conditions will only be granted in accordance with the General Conditions.
The Owner will not be responsible for the failure of the XXXX to plan, schedule, and execute the work in accordance with the approved schedule or the failure of the XXXX to meet the Contract completion dates or the failure of the XXXX to schedule and coordinate the work of his own trades and subcontractors or to coordinate with others separate Contractors.
4. LIQUIDATED DAMAGES
In accordance with Government Code Section 53069.85, XXXX agrees to forfeit and pay to Owner the sum of < Liquidated Damages ($ ) > per day (“Liquidated Damages”) for each calendar day that completion of all the work required by the Contract Documents is delayed beyond the Contract Time, or specified portion of work if designated in a GMP, as may be adjusted by Change Order. Owner may deduct such sum from any payments due to or to become due to XXXX. If the Liquidated Damages exceed the unpaid balance of the Contract Price otherwise owed to XXXX, then XXXX shall immediately pay Owner the difference.
5. XXXX SHALL PERFORM % OR MORE OF THE WORK
XXXX shall be capable of performing, and shall perform with its own organization, work amounting to at least % of the GMP amount. However, any GMP Item designated as a Specialty GMP Item will be excluded from the GMP amount for purposes of this Section only.
7. EMPLOYEE ELIGIBILITY VERIFICATION
XXXX hereby certifies that it complies with all applicable laws and regulations regarding the eligibility of its employees to work in the United States, and that all of its employees performing work under this Contract meet all citizenship or immigration status requirements to do so. XXXX shall obtain all documentation necessary to verify the employment eligibility status of covered employees as described by U.S. Citizenship and Immigration Services Form I-9. XXXX shall retain such documentation for the period prescribed by law. XXXX shall indemnify, defend with counsel approved in writing by Owner, and hold harmless the Owner, its agents, officers, and employees from any sanctions or liability that may be assessed in connection with any alleged violation of federal or State laws or regulations pertaining to the eligibility for employment of any persons performing work under this Contract.
8. SECURING WORKERS’ COMPENSATION INSURANCE CERTIFICATION
XXXX, by executing this Contract, hereby certifies:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
9. PARTIES’ REPRESENTATIVES
9.1 OWNER’S REPRESENTATIVES
9.1.1 Director will designate in writing the person who will act ex-officio as Owner's representative during construction of the Project. Unless otherwise expressly stated in the Contract Documents, Owner's designated representative will issue and receive all written communications on behalf of Owner for the Project. The Project Manager shall manage the routine responsibilities of Owner, but is not authorized to make decisions for Owner that materially affect this Contract or create additional legal liabilities for Owner.
Owner has the final decision in all matters affecting the work. Owner has the authority to enforce XXXX’x compliance with the Contract Documents. Owner’s decision is final and binding on all questions relating to: quantities; acceptability of material, equipment, or work; execution, progress, or sequence of work; and interpretation of the Contract Documents. All labor, materials, tools, equipment furnished by XXXX and all work performed by XXXX shall be subject to the approval of Owner.
9.1.2 The Owner shall not be responsible for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, and will not be responsible for the XXXX'x failure to carry out the work in accordance with the Contract Documents.
9.1.3 The Owner will not be responsible for the acts or omissions of the XXXX, or any subcontractor, or any XXXX'x or subcontractor's agents or employees, or any other persons performing any of the work.
9.2 OWNER’S AUTHORITY
Owner has the final authority in all matters affecting the work. Owner has the authority to enforce Contractor’s compliance with the Contract Documents. Owner’s decision is final and binding on all questions relating to: quantities; acceptability of material, equipment, or work; execution, progress, or sequence of work; and interpretation of the Contract Documents. All labor, materials, tools, equipment furnished by Contractor and all work performed by Contractor shall be subject to Owner’s approval.
9.3 XXXX’X REPRESENTATIVES
9.3.1 Representative and Alternate: Before starting work, XXXX shall designate in writing a representative who shall have complete authority to act for it. The representative shall be the same as proposed during original Request for Proposal selection process. XXXX may also designate an alternate representative (also as identified during original Request for Proposal selection process) with complete authority to act for it. Owner may rely on such representative or alternate as having the authority to execute Change Orders in any amount unless XXXX identifies to Owner in writing the officer(s) or employee(s) with such authority. Any order or communication given to this representative shall be deemed delivered to XXXX. In the absence of XXXX’x representative, instructions or directions may be given by Owner to the Project Manager or superintendent. Such order shall be complied with promptly and referred to XXXX or its representative. XXXX’x representative and alternate must be able to read, write, and speak English fluently.
9.3.2 XXXX’x Project Manager: XXXX shall provide the services of the Project Manager, as proposed during original Request for Proposal selection process. XXXX’x Project Manager, if different than designated representative, shall represent XXXX in the absence of XXXX’x designated representative or alternate, and all directions given to the Project Manager shall be binding as if given to XXXX. Owner may require XXXX to replace the Project Manager whose conduct or performance is unsatisfactory. XXXX shall not change its Project Manager without Owner’s consent unless the Project Manager is unsatisfactory to XXXX or ceases to be in XXXX'x employ. If XXXX’x Project Manager leaves the Project, XXXX shall replace him or her within 24 hours (unless additional time is agreed upon by Owner) with a new, well-qualified Project Manager acceptable to Owner.
9.3.3 Project Engineer: XXXX shall provide the services of the Project Engineer, as proposed during the original Request for Proposal selection process. The XXXX’x Project Engineer shall be responsible for all Architect-Engineer (A-E) services, as required by law, and is registered by the State of California for the practice of specialized A-E services per the Contract Documents.
9.3.4 Superintendent(s): XXXX shall provide the services of the superintendent(s) as proposed during original Request for Proposal selection process. A superintendent shall be present at the work site whenever work is in progress including whenever weather conditions necessitate its presence to take measures necessary to protect the work, persons, or property. XXXX’x superintendent shall represent XXXX in the absence of XXXX’x designated representative, alternate or Project Manager, and all directions given to the superintendent(s) shall be binding as if given to XXXX. The superintendent must read, write, and speak English fluently. Owner may require XXXX to replace a superintendent whose conduct or performance is unsatisfactory. XXXX shall not change its superintendent without Owner’s consent unless the superintendent is unsatisfactory to XXXX or ceases to be in XXXX'x employ. If XXXX’x superintendent leaves the Project, XXXX
shall replace him or her within 24 hours (unless additional time is agreed upon by Owner) with a new, well-qualified superintendent acceptable to Owner.
9.3.5 Alternate Supervision Plan: For Projects on which the original Contract Price is $50,000 or less, XXXX may propose for Owner’s consideration a plan for providing supervision on the site that does not involve the presence of a full-time superintendent, representative, or alternate, as required by the preceding paragraphs. Any such plan must ensure that XXXX’x supervision of the work is adequate and effective for purposes of completing the work timely and in compliance with the Contract Documents. Owner may approve or reject XXXX’x proposed plan in its sole and absolute discretion.
9.3.6 Emergency Contacts: XXXX shall provide Owner with a list of names and telephone numbers at which XXXX’x representative, alternate, superintendent, and other key personnel can be reached during non-working hours in the case of an emergency.
10. SIGNATURE REQUIREMENTS
The Contract must be signed by officer(s) authorized to bind XXXX. If documentation demonstrating express Owner is not provided, then the Contract must be signed by those officers with apparent Owner to bind XXXX. If XXXX is a corporation, such signatures must comply with Corporations Code Section 313, as follows:
One signature by the chairman of the board, the president, or any vice president; and one signature by the secretary, any assistant secretary, the chief financial officer, or any assistant treasurer.
11. ENTIRE CONTRACT
The Contract Documents represent the entire and integrated Contract between Owner and XXXX and supersede all prior representations, statements, or Contracts concerning the subject matter of this Contract, whether verbal or written.
12. GOVERNING LAW AND VENUE – CODE OF CIVIL PROCEDURE SECTION 394
This Contract has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Contract, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.
The parties specifically agree that by soliciting and entering into and performing services under this Contract, the XXXX shall be deemed to constitute doing business within Orange County from the time of solicitation of work, through the period when all work under this Contract is completed, and continuing until the expiration of any applicable limitations period. Furthermore, the parties have specifically agreed, as part of the consideration given and received for entering this Contract, to waive any and all rights to request that an action be transferred for trial to another county under Code of Civil Procedure Section 394.
***SIGNATURE PAGE FOLLOWS***
IN WITNESS WHEREOF, the Parties hereto have executed this Contract on the dates opposite their respective signatures: (TBD)
a California Corporation
Print Name & Title
(If a corporation, the document must be signed by two corporate officers. The 1st must be either Chairman of the Board, President or any Vice President.)
Print Name & Title
(If a corporation, the 2nd signature must be either the Secretary, an Assistant Secretary, the Chief Financial Officer, or any Assistant Treasurer.)
COUNTY OF ORANGE,
a political subdivision of the State of California
APPROVED AS TO FORM
Office of the County Counsel Orange County, California
As used in the Contract Documents, the following terms shall have the following definitions:
Unless otherwise specified within the Contract Documents, all references to any "day" or number of "days" shall mean consecutive
calendar days (including all holidays and weekends).
Any day within the period between the date of the Notice to Proceed and Owner's acceptance of the work, except: Saturday; Sunday; or any day designated as a holiday by Owner. Notwithstanding the foregoing, any day will be treated as a working day if the Contract
Documents require that it be so treated, or XXXX with Owner’s approval elects to work on such day.
Written or graphic instrument issued prior to the submittal of the GMP (hereinafter defined) Proposal(s), which corrects or changes the
The portion of the Contract Documents, signed by both Parties, that contains the Project name, Contract Price, Contract Time, Liquidated
Damages, and other terms and conditions.
A written instrument issued after execution of the Contract Documents signed by the Owner and XXXX, stating their Contract upon all of the following: the addition, deletion or revision in the scope of services or Deliverables; the amount of the adjustment to the
Contract Amount; the extent of the adjustment to the Contract Time; or modifications of other Contract terms.
Application for Payment
XXXX'x periodic or one-time claim for payment based on work completed.
Accepted Project Schedule
XXXX'x Project progress schedule after it has been accepted by Owner and designated as the Accepted Project Schedule, and updated by each accepted monthly Schedule Update. The XXXX’x Project
Schedule was initiated upon execution of the Design Services Contract.
Board of Supervisors
Owner's governing body.
California Code of Regulations.
A modification of the Contract as provided by the "CHANGES" Section of the General Conditions.
Change Order Request
Owner's request for XXXX to provide a proposal and price/time quote
for Owner's desired Change Order, or Owner’s description of work to be performed pursuant to XXXX’x Request for Change.
Site conditions or materials of an unexpected nature or differing from
those represented in the Contract Documents as provided by the "CHANGES" Section of the General Conditions.
Except where otherwise specified, all statutory references (e.g. "Labor Code" or "Public Contract Code") shall mean those laws enacted by the State of California, as they may be amended.
The complete agreement between Owner and XXXX covering the Project, as represented by the Contract Documents.
Documents comprising the complete agreement between Owner and XXXX as enumerated in the "CONTRACT DOCUMENTS" Section
of the Agreement.
The total dollar amount of the Contract identified in the "CONTRACT PRICE AND TIME" Section of the Agreement as it
may be adjusted in accordance with the "CHANGES" Section of the General Conditions.
The number of calendar days specified in the "CONTRACT PRICE AND TIME" Section of the Agreement that XXXX has to complete the work after the issuance of a Notice to Proceed for a GMP package, as it may be adjusted in accordance with the "CHANGES" Section of
the General Conditions.
Contract Unit Price
The amount stated in the GMP Proposal for a single unit of an item of work.
Construction Manager at Risk Entity (XXXX)
The Respondent (“Party”) awarded the Contract by Owner.
The County of Orange, a political subdivision of the State of California, and its representatives.
Orange County Flood Control District
XXXX'x performance that does not conform to the requirements of the Contract Documents, industry standards, manufacturers' recommendations, or requirements of the "QUALITY OF MATERIALS AND WORKMANSHIP" Section of the General
Except where otherwise provided, references to "Director" shall mean the Director of OC Public Works or his or her designee.
Dust Control Plan
XXXX'x plan for compliance with Owner's Fugitive Dust Emission Control Plan in conformance with the SCAQMD Rule 403 (See the
"PERFORMANCE" Section of the General Conditions.)
XXXX'x provisions for handling spills of hazardous, liquid, or nuisance materials prepared in accordance with the "HAZARDOUS
OR CONTAMINATED MATERIALS" subsection of the "PERFORMANCE" Section of the General Conditions.
Those documents sealed, submitted, and held in accordance with the "ESCROWED DOCUMENTS" Section of the Agreement.
The last and complete payment by Owner to XXXX under the Contract as provided by the "PAYMENTS" Section of the General
Guaranteed Maximum Price (GMP) Proposal
A GMP Proposal is an offer made by the XXXX to the Owner in accordance with the Instructions to Respondents.
The portion of the Contract Documents setting forth various conditions and requirements of the Contract.
Health and Safety Plan (H&SP)
XXXX'x detailed provisions for compliance with all applicable health and safety laws, orders and regulations. (See the "PERFORMANCE" Section of the General Conditions.)
Damages specified in the "LIQUIDATED DAMAGES" Section of the Agreement, payable to Owner for XXXX'x failure to complete the
work within the Contract Time.
Lump Sum (LS)
"Lump Sum", "L.S.", or "Job" prices are paid according to a flat total for all labor, materials, overhead, and other costs associated with the work item. (See the "PAYMENTS" Section of the General
Required documents that identify the generator, transporter, disposal facility and type of hazardous material(s). Manifests include, but are not limited to: documents entitled Uniform Hazardous Waste Manifest(s), Bills of lading, or similar documentation concerning the handling, transportation, and disposal of materials (See the "HAZARDOUS OR CONTAMINATED MATERIALS" subsection
of the "PERFORMANCE" Section of the General Conditions.)
Notice of Completion
The document recorded by Owner in accordance with Civil Code Section 9204 after completion of the work.
Notice of Termination
Owner's notice to XXXX specifying the effective date of a termination of the Contract (in whole or in part) .
The County of Orange, a political subdivision of the State of California, and its representatives.
Party / Parties
The Owner and/or XXXX.
The drawings, profiles, cross sections, standard plans, working drawings, and shop drawings, or reproductions thereof, approved by Owner, which show the location, character, dimensions, or details of
All work performed by XXXX as required by, and in strict accordance with, the Contract Documents.
Project Manager (PM)
The Owner representative identified in the Contract Documents or otherwise specified by Owner in writing.
Those bulletins, standards, rules, methods of analysis or testing, codes, and specifications of other agencies, engineering societies, or industrial association referred to in the Contract Documents. These shall refer to the latest edition, including amendments in effect and published at the time of advertising the Contract or issuing the permit,
unless specifically referred to by edition, volume, or date.
Request for Change
XXXX'x request that Owner issue a Change Order.
The amount of progress payments withheld by Owner as security for
XXXX’x complete and proper performance of the Contract as provided by the "PAYMENTS" Section of the General Conditions.
Payment of the Retention in accordance with Public Contract Code 7107 and the "RETENTION PAYMENT" Section of the General
Schedule of Values
XXXX'x detailed breakdown of unit prices and costs of services, labor, and materials pursuant to the "PROJECT SCHEDULE AND
SCHEDULE OF VALUES" Section of the General Conditions.
XXXX'x monthly update of work progress. (See the "PROJECT
SCHEDULES" and “PAYMENTS” Sections of the General Conditions.)
The portion of the Contract Documents describing the specific requirements of the Project, which may include additions and revisions to the Standard Specifications setting forth conditions and
requirements peculiar to the Project.
Details of standard structures, devices, or instructions referred to on the Plans or in the Special Provisions by title or number.
The Standard Specifications for Public Works Construction (SSPWC), known as the "Greenbook," 2015 Edition, Parts 2 through
5, including any supplements effective as of the time of Bid opening.
A person, firm or corporation having an independent Contract with the XXXX to furnish services required as its independent professional associate or consultant or perform portions of the work with the respect to the Project. May be herein referred to as sub-consultant or
Items that the Contract Documents require XXXX to submit to Owner
after award of the Contract and issuance of the Notice to Proceed, as provided by the "SUBMITTALS" Section of the General Conditions.
Supplementary General Conditions
The portion of the Contract Documents identified describing additions
and revisions to the General Conditions setting forth conditions and requirements peculiar to the Project.
Traffic Control Plan (TCP)
XXXX'x provisions for coordination of its traffic at the Project site. (See the "PERFORMANCE" Section of the General Conditions.)
Unilateral Change Order
A Change Order issued by the Owner where Owner and XXXX
cannot reach an agreement on a proposed modification to the Contract.
2. COMPLIANCE WITH LAWS AND REGULATIONS
XXXX shall strictly adhere to and obey all applicable laws, statutes, codes, ordinances, rules, regulations, tariffs, and orders of any local, State, or federal governmental or regulatory authority having jurisdiction over the Project.
3. XXXX’X LICENSE
At all times during the term of this Contract, XXXX shall: (a) maintain in good standing all licenses required by the State of California or any other governmental entity for it to perform the work required under the Contract; and (b) comply in all respects with the California CMARs’ State License Law, Business & Professions Code Section 7000, et seq.
4.1. MAJOR SUBCONTRACTOR AND MAJOR SUPPLIER SELECTIONS
4.1.1. The selection of major Sub-consultants, Subcontractors and major Suppliers may occur prior to submission of a GMP Proposal. Major Subcontractors may be selected based on qualifications or a combination of qualifications and price. Subcontractors shall not be selected based on price alone, unless approved in writing by the County’s Project Manager. Except as noted below, the selection of major Subcontractors/Suppliers is the responsibility of the XXXX. In any case, the XXXX is solely responsible for the performance of the selected Subcontractors/Suppliers.
4.1.2. The XXXX will prepare a Subcontractor/Supplier selection plan and submit the plan to the Owner for approval. This subcontractor selection plan shall identify those subcontractor trades anticipated to be selected by qualifications only per Section 2.8.2 and those subcontractor trades anticipated to be selected by qualifications and competitive bid in accordance with Section 2.8.3. This plan will also identify those subcontractor trades that will not be selected through a formalized qualifications-based selection process. The subcontractor selection plan must be consistent with the selection requirements included in this Contract.
4.1.3. Selection by qualifications only - The Owner may approve the selection of a Subcontractor(s) or Suppliers(s) based only on their qualifications when the XXXX can demonstrate it is in the best interest of the Project.
4.1.4. Qualification based selection of a Subcontractor(s)/Supplier(s) should only occur during the design phase to achieve maximum benefit of the subcontractors’ involvement prior to the submittal of the GMP Proposal.
4.1.5. The XXXX shall apply the approved subcontractor selection plan in the evaluation of the qualifications of a Subcontractor(s) or Supplier(s) and provide the Owner with its review and recommendation.
4.1.6. The XXXX must receive Owner approval of the selected Subcontractor(s)/Supplier(s).
4.1.7. The XXXX will negotiate costs for services/supplies from each Subcontractor/Supplier selected under this method.
4.1.8. Selection by qualifications and competitive bid - The XXXX shall apply the subcontractor selection plan in the evaluation of the qualifications of a Subcontractor(s) or Supplier(s) and provide the Owner with its process to prequalify prospective subcontractors and suppliers. All Work for major subcontractors and major suppliers shall then be competitively bid to the prequalified subcontractors unless a Subcontractor or Supplier was selected pursuant to Section
2.8.2 above. Competitive bids may occur prior to or after the GMP Proposal(s).
4.1.9. The XXXX will develop Subcontractor and Supplier interest, submit the names of a minimum of three qualified Subcontractors or Suppliers for each trade in the Project for approval by the Owner and solicit bids for the various Work categories. The XXXX will identify the Small Business Enterprise Subcontractors and Suppliers and during the bidding process keep the Owner informed on the progress of meeting the desired SBE goal. If there are not three qualified Subcontractors/Suppliers available for a specific trade or there are extenuating circumstances warranting such, the XXXX may request approval by the Owner to submit less than three names. No change in the recommended Subcontractors/Suppliers will be allowed without prior written notice to and approval by the Owner.
4.1.10. If the Owner objects to any nominated Subcontractor/Supplier or to any self-performed Work for good reason, the XXXX will nominate a substitute Subcontractor/Supplier that is acceptable to the Owner.
4.1.11. The XXXX will distribute Drawings and Specifications, and when appropriate, conduct a prebid conference with prospective Subcontractors and Suppliers with Owner’s Project Manager or their designee present.
4.1.12. If the XXXX desires to self-perform certain portions of the Work, it will request to be one of the approved Subcontractor bidders for those specific bid packages. The XXXX’x bid will be evaluated in accordance with the process identified below. If events warrant and the Owner concurs that in order to insure compliance with the Project Schedule and/or cost, the XXXX may self-perform Work without bidding or re-bidding the Work.
4.1.13. The XXXX shall request the pre-qualified Subcontractors to provide a detailed bid for the services requested. The Subcontractor bid, provided on the Subcontractors’ letterhead, shall contain sufficient information (i.e. unit costs/amounts) to allow an evaluation of the reasonableness of bid costs. The XXXX shall receive, open, record and evaluate the bids. The apparent low bidders will be interviewed to determine the responsiveness of their proposals. In evaluating the responsiveness of bid proposals the XXXX, in addition to bid price, may consider the following factors: past performance on similar projects, qualifications and experience of personnel assigned, quality management plan, approach or understanding of the Work to be
performed, and performance schedule to complete the Work. The final evaluation of Subcontractor/Supplier bids will be done with the Owner Project Manager in attendance to observe and witness the process. The XXXX will resolve any Subcontractor/Supplier bid withdrawal, protest or disqualification in connection with the award at no increase in the Cost of the Work.
4.1.14. The XXXX will be required to prepare two different reports on the subcontracting process as prescribed below:
4.1.15. Within fifteen Days after each major subcontractor/Supplier bid opening process, the XXXX will prepare a report for the Owner’s review and approval identifying the recommended Subcontractors/Supplier for each category of Work. The report will provide (a) the name of the recommended Subcontractor/Supplier and the amount of the Subcontractor/Supplier bid for each subcontract, (b) the sum of all recommended Subcontractor/Supplier bids received, (c) a copy of the bids received from each subcontractor, and (d) trade work and its cost that the XXXX intends to self-perform, if any.
4.1.16. Upon completion of the Subcontractor/Supplier bidding process, the XXXX shall submit a summary report to the Owner of the entire Subcontractor/Supplier selection process. The report will indicate, by bid process, all Subcontractors/Suppliers contacted to determine interest, the Subcontractors/Suppliers solicited, the bids received and costs negotiated, and the recommended Subcontractors/ Suppliers for each category of Work.
4.1.17. The approved Subcontractors/Suppliers will provide a Schedule of Values that reflects their final accepted bid proposal, which will be used to create the overall Project Schedule of Values.
4.1.18. If after receipt of sub-bids or after award of Subcontractors and Suppliers, the Owner objects to any nominated Subcontractor/Supplier or to any self-performed Work for good reason, the XXXX will nominate a substitute Subcontractor or Supplier, preferably if such option is still available, from those who submitted Subcontractor bids for the Work affected. Once such substitute Subcontractors and Suppliers are consented to by the Owner, the XXXX'x proposed GMP for the Work or portion thereof will be correspondingly adjusted to reflect any higher or lower costs from any such substitution.
4.1.19. Promptly after receipt of the Notice of Intent to Award, the Owner will conduct a pre-award conference with the XXXX and other Project Team members. At the pre-award conference, the XXXX will (a) review the nominated slate of Subcontractors and Suppliers and discuss any concerns with or objections that the Owner has to any nominated Subcontractor or Supplier; (b) discuss Owner concerns relating to any proposed self-performed Work; (c) review the XXXX’x proposed Contract Price for the Work during the construction phase; (d) discuss the conditions, if any, under which the Owner will agree to leave any portion of the remaining XXXX Contingency within the Contract Price for the construction phase Work; (e) resolve possible time frames for the Date of Commencement of the Contract time for the construction phase Work; (f) schedule the pre-construction conference; and (g) discuss other matters of importance.
4.2. LICENSED SUBCONTRACTOR
Each Subcontractor selected for the work shall be licensed in the State of California in the Subcontractor's particular field.
XXXX shall comply with Public Contract Code Section 22166 for the award of subcontracts exceeding one-half of one percent of the contract price allocable to construction work.
Communications with Subcontractors shall be made through XXXX except when in emergency situations XXXX is not readily available, in which case detailed instructions shall be transmitted to Subcontractors directly.
XXXX shall give personal attention to the fulfillment of the work and shall keep the work under its control. XXXX shall be responsible for all work required by the Contract Documents and the acts and omissions of Sub-consultants, Subcontractors, and all persons directly or indirectly employed by them as XXXX is for XXXX'x acts and omissions and of persons directly or indirectly employed by XXXX. XXXX shall indemnify and hold Owner harmless with respect to the activities of each and every Subcontractor in the same manner and to the same degree as if such Subcontractor were the XXXX’x employee. XXXX shall pay each Subcontractor promptly the amount allowed XXXX on account of such Subcontractor’s work to the extent of such Subcontractor's interest therein.
4.5. CONTRACTUAL RELATIONS
Nothing contained in this Contract shall create any contractual relations between Owner and any Subcontractor.
4.6. LISTING AND SUBSTITUTION OF SUBCONTRACTORS
XXXX shall comply with the Subletting and Subcontracting Fair Practices Act, California Public Contract Code Sections 4100 et seq. XXXX may not substitute a person or entity in place of any subcontractor listed in the Proposal except with Owner’s written approval in compliance with the provisions of Public Contract Code Sections 4107 et seq.
5. IMPLEMENTATION OF CONTRACT DOCUMENTS
5.1. PLANS AND SPECIAL PROVISIONS
5.1.1. Checking: XXXX shall implement the Quality Assurance / Quality Control (QA/QC) Plan as prescribed in the Design Services Contract to include constructability and bidability reviews during the Plans, Specifications, and Estimates (PS&E) Development Process. Prior to construction, the XXXX shall review all Contract Documents and shall promptly notify Owner of any discrepancies and provide the recommended resolution for Owner concurrence. XXXX shall notify Owner about the absence of a specification or detail and provide the missing information to the Owner. Such an absence shall not excuse XXXX from following standard practices in the industry. Dimensions marked on drawings shall in general be followed in preference to scale measurements. Larger-scale, more detailed drawings shall in general govern over smaller-scale, less detailed drawings. Architectural and engineering schedules shall take precedence over other portions of the Plans. XXXX shall compare all Plans and verify the dimensions before laying out the work and will be responsible for any errors that might have been avoided by doing so. If measurements are affected by site conditions, XXXX shall take new measurements for which XXXX bears full responsibility, and which shall be treated as if represented in the final, Owner approved Plans and Special Provisions.
5.1.2. Omissions and Mistakes: XXXX shall call to Owner’s attention, as soon as identified, any omissions in the final, Owner approved Plans and Special Provisions necessary to carry out the intent of the Contract Documents or that are customarily performed. The XXXX shall promptly notify the Owner in writing of the correction. If warranted, XXXX shall request a Change Order in accordance with the “CHANGES” Section of these General Conditions. MAR shall not make any adjustment to the work without first receiving the Owner’s approval, such adjustment without
Owner approval shall be at XXXX'x own risk and expense.
5.1.3. Conflicting Information: In case of conflicting information in the Contract Documents, XXXX’x GMP Proposal shall include the most expensive alternative.
5.1.4. Documents at the Site: XXXX shall keep available at the site for ready reference a complete set of the Contract Documents. XXXX also shall maintain a complete set of approved shop drawings, manufacturers’ recommendations and instructions, and copies of all Project correspondence at the site. XXXX shall provide Owner with a set of manufacturers’ recommendations and instructions.
5.1.5. “As-Built” Plans at the Site: XXXX shall maintain at the site a complete "As-Built" set of Plans for the Project. XXXX shall update the As-Built Plans each day. XXXX shall make As-Built Plans available to Owner immediately upon request. Any delay by XXXX in providing Owner with access to properly updated As-Built Plans may result in a commensurate delay in Owner’s processing of progress payment applications. Prior to final payment, XXXX shall deliver a complete set of the As-Built Plans to Owner in a format acceptable to Owner and suitable for use in preparing a reproducible set of record drawings for the Project.
5.1.6. Deviations: XXXX shall not deviate from the final, approved Plans and the dimensions shown therein, without first obtaining Owner’s written permission for the deviation.
5.2. DIVISIONS OF THE SPECIAL PROVISIONS
5.2.1. For convenience, the Special Provisions are arranged in many divisions and sections, but such separations shall not be considered as the limits of the work of any type or as the limits of the work required for any subcontract or trade. XXXX shall bear sole responsibility for defining the scope of work for each trade and each of its Subcontractors. Owner will not be responsible for any division of work among the various Subcontractors or trades regardless of the location of applicable provisions in the Special Provisions.
5.2.2. Any description of work included in a section is listed for convenience only, and shall not be considered a prescriptive or comprehensive list of items of work necessary to complete the work of that section.
5.2.3. Where devices or items or parts thereof are referred to in the singular, it is intended that such reference shall apply to as many such devices, items, or parts as are required to properly complete the work.
5.3. PRECEDENCE OF CONTRACT DOCUMENTS
If there is a conflict among Contract Documents, the document highest in precedence shall control. The precedence shall be:
5.3.1. Permits and applicable regulations as may be provided by law or that govern the site;
5.3.2. Amendments and Change Orders;
5.3.4. Proposal, as accepted by Owner;
5.3.5. Addenda and Bulletins;
5.3.6. Special Provisions;
5.3.7. Supplemental General Conditions;
5.3.8. General Conditions;
5.3.10. Standard Plans;
5.3.11. Standard Specifications; and
5.3.12. Reference Specifications, Attachments, and Appendices.
6.1. XXXX’X PRE-CONSTRUCTION OBLIGATIONS
Prior to beginning construction, XXXX shall: visit the site; verify measurements; verify all existing conditions; examine all adjoining work; and ascertain the best means of executing the work. XXXX’x or each Subcontractor’s commencement of the work of its trade will be interpreted as XXXX’x acceptance of existing conditions over which the new work must be placed, installed, or otherwise performed. The XXXX is ultimately responsible for all necessary field investigations needed to confirm and document the existing conditions. As prescribed in the Design Services Contract, the XXXX shall identify and perform all testing required to adequately design and construct the project such as: geotechnical investigations, utility surveys, topographic surveys, test borings, hazardous material, destructive testing, and review with the Owner’s Project Manager.
7. BONDS, INDEMNITY, AND INSURANCE
7.1.1. Payment and Performance Bonds
Within 10 days after award of the Contract, XXXX shall furnish a payment bond for 100% of the amount of the Contract, in accordance with Civil Code Section 9554, and a performance bond for 100% of the amount of the Contract, guaranteeing the faithful performance of the Contract. XXXX shall take steps to assure that the penal sum of the bonds shall be increased by the amount of any additive adjustments to the Contract Price as a result of Change Orders.
The payment and performance bonds must each be issued by a surety that: (i) is authorized by the California Insurance Commissioner to transact surety insurance in the State of California; (ii) has assets exceeding its liabilities in an amount equal to or in excess of the amount of the bonds; and (iii) acts in compliance with Insurance Code Section 12090.
The payment and performance bonds shall be in the form provided with the Instructions to Respondent(s) and are subject to approval by the Owner.
7.1.2. Owner’s Right to Replace Surety
If any surety upon any bond furnished in connection with this Contract becomes objectionable to Owner and fails to submit to Owner the documents described in California Code of Civil Procedure Sections 995.660(a)(1) through (a)(4) within the time specified in those Sections, then XXXX shall promptly furnish such additional security as may be required by Owner to protect the interests of Owner and of persons entitled to make a claim against the payment bond. Failure to furnish such additional security shall constitute a material breach of the agreement.
To the maximum extent allowable by law, XXXX agrees to indemnify, defend with counsel approved in writing by Owner, and hold Owner, its elected and appointed officials, officers, employees, agents and those special districts and agencies for which the County of Orange’s Board of Supervisors acts as the governing Board (“County Indemnitees”) harmless from any loss, injury, liability claims, demands, costs and expenses whether incurred by or made against Owner or County Indemnitees of any kind or nature, including but not limited to personal injury or property damage, arising from or related to the services, products or other performance provided by XXXX pursuant to this CONTRACT. This indemnity applies even in the event of Owner or County Indemnitees’ concurrent fault, except that nothing in this indemnification provision shall be construed to require XXXX to indemnify Owner or County
Indemnitees for losses caused by Owner’s or County Indemnitees’ active negligence, sole negligence, willful misconduct, or defects in design furnished by them.
XXXX’x indemnity obligation set forth above shall include but not be limited to all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (1) failure of XXXX to comply with its obligations under the Contract Documents, (2) injury or death of any person or damage to property resulting from the construction of the work or by or in consequence of any negligence in protecting the work; (3) use of materials or other things used or employed in the construction that are not in conformance with the Contract Documents; and (4) any negligent or intentional act or omission by XXXX and any of its respective officers, employees, agents, subcontractors, suppliers, and representatives during the progress of the work or at any time before its completion and final acceptance.
If judgment is entered against XXXX and Owner by a court of competent jurisdiction because of the concurrent active negligence of Owner or County Indemnitees, XXXX and Owner agree that liability will be apportioned as determined by the court. Neither Party shall request a jury apportionment.
Prior to the provision of services under this Contract, XXXX agrees to purchase all required insurance at XXXX’x expense, including all endorsements required herein, necessary to satisfy Owner that the insurance provisions of this Contract have been complied with. XXXX agrees to keep such insurance coverage, Certificates of Insurance, and endorsements on deposit with Owner during the entire term of this Contract. In addition, all Subcontractors performing work on behalf of XXXX pursuant to this Contract shall obtain insurance subject to the same terms and conditions as set forth herein for XXXX. Owner reserves the right to request the declarations pages showing all endorsements and a complete certified copy of the policy. All Subcontractors performing work on behalf of XXXX pursuant to this Contract shall obtain insurance subject to the same terms and conditions as set forth herein for XXXX.
XXXX shall ensure that all Subcontractors performing work on behalf of XXXX pursuant to this Contract shall be covered under XXXX'x insurance as an additional insured or maintain insurance subject to the same terms and conditions as set forth herein for XXXX. XXXX shall not allow Subcontractors to work if Subcontractors have less than the level of coverage required by Owner from XXXX under this Contract. It is the obligation of XXXX to provide notice of the insurance requirements to every Subcontractor and to receive proof of insurance prior to allowing any Subcontractor to begin work. Such proof of insurance must be maintained by XXXX through the term of this Contract for inspection by Owner at any reasonable time.
All self-insured retentions (SIRs) shall be clearly stated on the Certificate of Insurance. Any self-insured retention (SIR) in an amount in excess of Fifty Thousand Dollars ($50,000) shall specifically be approved by the County’s Risk Manager, or designee, upon review of Contractor’s current audited financial report. If Contractor’s SIR is approved, Contractor, in addition to, and without limitation of, any other indemnity provision(s) in this Contract, agrees to all of the following:
1) In addition to the duty to indemnify and hold the County harmless against any and all liability, claim, demand or suit resulting from Contractor’s, its agents, employee’s or subcontractor’s performance of this Contract, Contractor shall defend the County at its sole cost and expense with counsel approved by Board of Supervisors against same; and
2) Contractor’s duty to defend, as stated above, shall be absolute and irrespective of and duty to indemnify or hold harmless; and
3) The provisions of California Civil Code Section 2860 shall apply to any and all actions to which the duty to defend stated above applies, and the Contractor’s SIR provision shall be interpreted as though the Contractor was an insurer and the County was the insured.
Upon notice of any actual or alleged claim or loss arising out of subcontractor’s work hereunder, subcontractor shall immediately satisfy in full the SIR provisions of the policy in order to trigger coverage for the Contractor and Additional Insureds.
If the Contractor fails to maintain insurance acceptable to the County for the full term of this Contract, this County may terminate the Contract.
7.3.1. Qualified Insurer
The policy or policies of insurance must be issued by an insurer with a minimum rating of A- (Secure
A.M. Best's Rating) and VIII (Financial Size Category as determined by the most current edition of the Best's Key Rating Guide/Property-Casualty/United States or xxxxxx.xxx). It is preferred, but not mandatory, that the insurer be licensed to do business in the state of California (California Admitted Carrier). If the insurance carrier does not have an A.M. Best Rating of A-/VIII, Owner retains the right to approve or reject a carrier after a review of the carrier's performance and financial ratings.
7.3.2. Minimum Policy Limits and Coverage
The policy or policies of insurance maintained by the XXXX shall provide the minimum limits and coverage as set forth below:
Coverage Minimum Limit(s)
Commercial General Liability $10,000,000 per occurrence
Contractor’s Pollution Liability Including coverage for NODS
$2,000,000 per occurrence
Automobile Liability including coverage for owned, non-owned and hired vehicles
$2,000,000 per occurrence
Workers’ Compensation Statutory
Employers’ Liability Insurance $1,000,000 per occurrence 7.3.3. Required Coverage Forms
The Commercial General Liability coverage shall be written on Insurance Services Office (ISO) form CG 00 01, or a substitute form providing liability coverage at least as broad.
The Business Auto Liability coverage shall be written on ISO form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or a substitute form providing liability coverage as broad.
7.3.4. Required Endorsements
The Commercial General Liability policy shall contain the following endorsements, which shall accompany the Certificate of Insurance:
1) An Additional Insured endorsement using ISO form CG 2010 or CG 2033 or a form at least as broad naming the County of Orange and the City of Brea, and their elected and appointed officials, officers, employees and agents as additional insureds.
2) A primary non-contributing endorsement evidencing that XXXX’x insurance is primary and any insurance or self-insurance maintained by the County of Orange shall be excess and non- contributing.
3) A Products and Completed Operations endorsement using ISO Form CG2037 (ed. 10/01) or a form at least as broad, or an acceptable alternative is the ISO from CG2010 (ed. 11/85).
All insurance policies required by this contract shall waive all rights of subrogation against the County of Orange, County of Orange and the City of Brea, its elected and appointed officials, officers, employees and agents when acting within the scope of their appointment or employment.
XXXX shall notify Owner in writing within thirty (30) days of any policy cancellation and ten (10) days for non-payment of premium and provide a copy of the cancellation notice to Owner. Failure to provide written notice of cancellation may constitute a material breach of the Contract, upon which Owner may suspend or terminate this Contract pursuant to the “TERMINATION FOR CAUSE” Section of these General Conditions.
The Commercial General Liability policy shall contain a severability of interests clause (standard in the ISO CG 001 policy).
Insurance certificates should be forwarded pursuant to the “WRITTEN NOTICES” Section of these General Conditions.
Owner expressly retains the right to require XXXX to increase or decrease minimum limits of any of the above insurance types throughout the term of this Contract. Any increase or decrease in insurance will be as deemed by Owner’s Risk Manager as appropriate to adequately protect Owner.
Owner shall notify XXXX in writing of changes in the insurance requirements. If XXXX does not deposit copies of acceptable certificates of insurance and endorsements with Owner incorporating such changes within thirty days of receipt of such notice, XXXX may be deemed in breach without further notice to XXXX, and Owner shall be entitled to all legal remedies.
The procuring of such required policy or policies of insurance shall not be construed to limit XXXX'x liability hereunder nor to fulfill the indemnification provisions and requirements of this Contract, nor in any way to reduce the policy coverage and limits available from the insurer.
7.4. RESPONSIBILITY FOR DAMAGES OR INJURY
7.4.1. Owner and its officers and employees shall not be liable in any manner for any loss or damage to any portion of the work, any loss or damage to any of the materials or equipment used in the work, or any injury to any person or property by any cause that might reasonably have been prevented by XXXX, its employees, or its Subcontractors. XXXX shall indemnify and defend Owner against any claims or liability under this section pursuant to the “INDEMNIFICATION PROVISIONS” Section of these General Conditions.
7.4.2. XXXX shall remove and dispose of any waste materials, including soils or other materials that become contaminated directly or indirectly as a result of XXXX’x performance under this Contract, according to the “HAZARDOUS OR CONTAMINATED MATERIALS” Section of the General Conditions.
7.4.3. Payment of any penalties, fines, or other liability assessed to Owner by regulatory agencies due to XXXX’x or any Subcontractor’s action or inaction in performing the work shall be XXXX’x sole responsibility.
7.4.4. XXXX shall pay any assessments or damages covered by this Section directly, or, at Owner's discretion, Owner may pay or retain the amount of such assessments or damages and deduct its costs from payments owed or as they become due to XXXX.
8. SCHEDULES, SUBMITTALS, SUBSTITUTIONS, AND INSPECTIONS
8.1. PROJECT SCHEDULES
8.1.1. Project Schedules: Prior to Owner’s issuance of the Notice to Proceed, XXXX shall submit to Owner for Owner’s review an initial construction progress schedule. Owner’s acceptance of the initial construction progress schedule shall be conditioned on its acceptance of all other documents XXXX is required to submit to Owner by the “CONTRACT TIME” Section of the Agreement. Owner’s acceptance of this schedule does not modify any of the provisions of the
Contract Documents including, but not limited to, the Contract Time or any time specified in the Contract Documents for Owner’s review of submittals.
Once the Notice to Proceed is issued, the Project Schedule shall be updated to reflect the Contract Time as defined in the Agreement. XXXX shall prepare the Project Schedule using the critical path format. The XXXX shall submit to the Owner for acceptance of the updated Critical Path Method (CPM) Project Schedule for the project within 30 calendar days after execution of the Contract or at the preconstruction conference, whichever is earlier. Unless a specific software application is called for elsewhere in the Contract Documents, XXXX shall use Microsoft Project, SureTrak Project Manager, Primavera Project Planner, or other scheduling software acceptable to Owner to configure all versions of its construction progress schedule.
XXXX shall include on the Project Schedule the schedule for submittals, shop drawings, procurement, fabrication, and delivery for major materials and equipment required for the Project, and shall allow no less than 21 days for Owner’s review of each such submittal. After XXXX’x updated Project Schedule is accepted by Owner, it will be designated as the “Accepted Project Schedule”. An Accepted Project Schedule is a condition precedent to Owner’s obligation to make the initial progress payment to XXXX.
The CPM Project Schedule shall be of sufficient detail to assure that adequate planning has been done for proper execution of all of XXXX’x work. The CPM Project Schedule shall include detailed schedule diagrams and schedule data as described below for the entire Contract Period and include activities for deliverables and reviews in the schedule. Sufficient liaison shall be conducted, and information provided, to indicate coordination with utility owners having facilities within the project limits. The schedule must reflect the utility adjustment schedules included in the Contract Documents, unless changed by mutual agreement of the utility company, the XXXX and the Owner.
Failure to include any element of work or any activity relating to utility work will not relieve the XXXX from completing all work within the Contract Time at no additional time or cost to the Owner, notwithstanding the acceptance of the schedule by the Owner.
The CPM Project Schedule may indicate a completion date in advance of the expiration of Contract Time. However, the Owner will not be liable in any way for the XXXX’x failure to complete the Project prior to expiration of Contract Time. Any additional costs, including extended overhead incurred between the XXXX’x scheduled completion date and the expiration of Contract Time, shall be the responsibility of the XXXX. The XXXX shall not be entitled to claim or recover any such costs from the Owner.
8.1.2. Weekly Meetings and Look-Ahead Charts: XXXX shall participate in weekly meetings with Owner during which the parties shall exchange information regarding the actual progress of construction. Owner and XXXX shall attempt to agree upon quantities and percentages of completion that reflect the actual progress of construction. At each meeting XXXX shall submit 4 copies of a 2-week look-ahead chart. The 2-week look-ahead chart shall include only those activities that will be started, in progress, or completed during the next 2-week period. The format of the look-ahead chart shall be subject to Owner’s approval.
8.1.3. Monthly Schedule Updates: Each month, XXXX shall submit to Owner for its review an update of the Accepted Project Schedule. The monthly Schedule Update shall reflect agreed assessments of actual completion reached during weekly meetings. If Owner and XXXX cannot agree, then XXXX shall use Owner’s assessment of actual progress to prepare the Schedule Update. XXXX’x monthly Schedule Update shall include: (a) a diagram showing the target versus actual dates for each activity; (b) an updated critical path method report; and (c) a narrative report that includes, but is not limited to, a description of problems, current and anticipated delays and their causes, impacts of delays, and corrective actions that XXXX has taken or proposes to take to overcome problems and recover from delays. XXXX shall identify any events that will delay the completion of an interim milestone or the completion of the overall Project in the monthly
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Schedule Update. On Owner’s acceptance of the monthly Schedule Update, it shall become the current Accepted Project Schedule. Any request for an extension of the Contract Time must be based on the Accepted Project Schedule. The submission of an acceptable monthly Schedule Update will be part of the basis of the progress payment and shall be a condition precedent to Owner’s obligation to make such progress payment to XXXX.
8.1.4. Recovery Schedule: If any activity on the critical path is more than 7 days behind the Accepted Project Schedule and it appears that XXXX may not complete all work within the Contract Time, then Owner may require XXXX to submit a recovery schedule demonstrating its proposed plan to make up all lost time and complete the Project within the Contract Time. XXXX shall submit its recovery schedule within 7 calendar days of Owner’s request. If Owner finds the proposed recovery schedule unacceptable, it may require XXXX to submit a revised plan or to take actions that are, in Owner’s judgment, necessary to recapture lost time, including but not limited to increasing: (a) manpower; (b) the number of working hours per day; (c) the shifts per working day; (d) the number of working days per week; (e) the amount of equipment; or (f) any combination of the foregoing. XXXX’x entitlement to additional compensation, if any, will be determined in accordance with the provisions of the “CHANGES” Section of the General Conditions.
8.2. SCHEDULE OF VALUES
Within 14 calendar days of the issuance of the Notice to Proceed, XXXX shall submit a proposed Schedule of Values for Owner’s review and approval. The Schedule of Values shall include sufficient detail and be supported by sufficient data as Owner, in its sole discretion, may deem necessary to substantiate its accuracy and to evaluate progress at any point in the Project. The Schedule of Values shall include the general categories noted in the GMP Proposal, subdivided into their various components for the costs of trade subcontractors’ services, labor, and material based when possible upon actual subcontract, purchase order, or vendor prices. Subdivisions of work should be described by easily identifiable and measurable units.
8.3. XXXX’X SUBMITTALS
8.3.1. General: XXXX shall submit to Owner 6 copies of all submittals required by the Contract Documents, including but not limited to: shop drawings, working drawings, descriptions of materials and equipment to be supplied, supporting information, and other submittals (collectively “Submittals”). All submittals shall be provided at XXXX’x expense. XXXX shall carefully review each Submittal before delivering it to Owner. XXXX shall provide a signed, dated transmittal letter with each Submittal certifying that the Submittal is correct and in strict conformance with the Contract Documents. XXXX shall allow no less than 21 calendar days for Owner to review each Submittal. XXXX is expected to make a complete and acceptable Submittal by the second submission as to any item, and Owner reserves the right to withhold moneys otherwise due XXXX to cover additional costs of Owner’s reviews beyond the second Submittal.
8.3.2. Owner’s Review: When the Contract Documents require a Submittal, XXXX shall not furnish or fabricate any materials or equipment and shall not perform any work covered by the Submittal until Owner has reviewed, approved, and notified XXXX that Owner takes no exceptions to the Submittal. Any fabrication or other work performed in advance of receiving Owner’s notice of no exceptions shall be entirely at XXXX’x risk and expense. XXXX is responsible for the correctness of each Submittal. Owner’s review of a Submittal shall not relieve XXXX from responsibility for any errors or omissions in the Submittal or from any performance requirements of the Contract Documents. In the transmittal letter that accompanies the Submittal, XXXX shall call to Owner’s attention any deviations from the Contract Documents. XXXX shall furnish all materials and perform all work for which Submittals are required in accordance with the Submittals that Owner has reviewed and has taken no exception.
8.3.3. Working Drawings: Working drawings are drawings showing details not shown on the Plans, which details XXXX must design. XXXX must prepare working drawings of a sufficient size and
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scale to show clearly all necessary details. XXXX shall ensure that when required by California law or the Contract Documents, working drawings are prepared by engineers holding valid professional licenses in the applicable engineering discipline.
8.3.4. Shop Drawings: Shop drawings are drawings showing details of manufactured or assembled products that XXXX proposes to incorporate into the work. XXXX shall submit the shop drawings required by the Contract Documents.
8.3.5. Supporting Information: Supporting information is information required by the Contract Documents or requested by Owner when reviewing a submittal that Owner determines is necessary to analyze and verify that the submittal conforms to the Contract Documents or will be needed by Owner to operate and maintain a manufactured product or system to be constructed as part of the work. XXXX shall submit supporting information for a system bound together and include information about all manufactured items for the system. Unless otherwise specified in the Contract Documents, supporting information shall comply with applicable requirements of the Standard Specifications and may include the following at the discretion of Owner:
(a) List of Subcontractors;
(b) List of Materials;
(c) Manufacturer’s certifications (or Certification of Compliance) that materials to be supplied meet the requirements of the Contract Documents, where the Contract Documents allow such certifications or Owner waives materials testing requirements. Owner may require materials test data as part of the certification;
(d) Concrete mix designs;
(e) Asphalt concrete mix designs;
(f) Data including but not limited to catalog sheets, manufacturer’s brochures, technical bulletins, specifications, diagrams, product samples, and other information necessary to describe a system, product or item. This information may be required for irrigation systems, street lighting systems, and traffic signals, and may also be required for any product, manufactured item, or system;
(g) Pipeline layout diagrams; and
(h) Controller Cabinet Wiring Diagrams.
8.4. SUBSTITUTIONS – BRAND OR TRADE NAMES
8.4.1. Unless Owner has made a finding under Public Contract Code Section 3400(c), whenever the Contract Documents specify any materials, products, things, or services by brand, trade, or proprietary name, by patent, or by manufacturer, such specifications shall be deemed to be a measure of quality and utility or a standard and shall be deemed to be followed by the words “or equal”.
8.4.2. If XXXX desires to use any other brand or manufacturer of equal quality, performance, and utility to that specified, it shall apply to Owner in writing within 35 days after the award of the Contract. XXXX shall submit to Owner 6 copies of each application for an “or equal” determination. XXXX’x application shall include all information required for Owner to evaluate the substitute items, including but not limited to shop drawings, product data, and certified test results.
8.4.3. XXXX shall have the item tested as required by Owner to determine that the quality, strength, performance, physical, chemical, or other characteristics including but not limited to durability, finish, efficiency, dimensions, service, suitability, and compatibility with Owner’s operations are such that the item will be equal in quality and utility to the item specified. XXXX’X written application constitutes its representation that:
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(a) XXXX has investigated the proposed item and determined that it meets or exceeds in all respects the quality, performance, and utility of the specified item.
(b) XXXX will provide the same warranty as for the specified item.
(c) XXXX will coordinate installation and make such modifications, which may be required for the work to be complete in all respects, with no addition to the Contract Time or the Contract Price.
(d) XXXX waives all claims for reimbursement for additional costs which may subsequently become apparent by reason of the acceptance and use of such “or equal” materials, equipment, products, processes, or articles.
8.4.4. Owner will then determine, in its sole discretion, whether or not the proposed materials, products, things, or services are equal in quality, performance, and utility to those specified, and its decision shall be final and binding. XXXX shall not use or install any materials, products, things, or services proposed as “or equal” without Owner’s prior approval. XXXX shall remain solely responsible for the suitability of such proposed material, products, things, or services notwithstanding any determination by Owner. XXXX shall bear all expenses associated with its application for determination of “or equal” status.
8.4.5. Any request by XXXX to change materials, products, things, or services required by the Contract Documents that does not fall within the above provisions relating to Public Contract Code Section 3400 shall be considered pursuant to the “CHANGES” Section of these General Conditions. Owner will determine, in its sole discretion, whether or not to accept the requested change.
8.5. INSPECTION AND TESTING REQUIREMENTS
8.5.1. Materials or Equipment Subject to Testing: Materials or equipment to be incorporated into the work will be subject to inspection and tests by Owner or its designated representative. Before incorporation into the work, XXXX shall furnish without charge such samples as Owner may require.
8.5.2. XXXX’x Testing Responsibilities: Whenever testing is required by Owner or these Contract Documents, XXXX shall perform such testing at its expense unless otherwise specified in the Plans or Special Provisions. XXXX shall deliver materials or equipment for testing at a location in the United States unless otherwise approved by Owner. All tests shall be made by an independent testing agency or laboratory, registered with and approved by Owner for the nature of work to be examined. If any tests indicate noncompliance with the Contract Documents, all retesting shall be provided at XXXX’x expense.
8.5.3. Notice to Owner: XXXX shall notify Owner in writing of its intention to use materials or equipment for which tests are required as soon as such materials or equipment are available for testing. The notice shall specify the date on which XXXX intends to use the materials or equipment. The notice shall be provided so as to allow sufficient time to perform the tests, but in no event shall the notice be provided fewer than 15 days prior to XXXX’x use of the materials or equipment. If XXXX fails to use the materials or equipment on the date specified in the notice, then Owner may require retesting if Owner determines that retesting is necessary to ensure the materials or equipment do not require replacement. The date and time of any tests shall be approved by Owner. The notice shall identify the proposed supplier and source of material.
8.5.4. Inspection of Materials or Equipment at Source of Supply: Owner may inspect, sample, or test materials or equipment at the source of supply, manufacturing plant, or other locations as appropriate; but such inspection, sampling, or testing will not be undertaken until Owner is assured by XXXX of the cooperation and assistance of both XXXX and the supplier of the material. XXXX shall ensure that adequate facilities are furnished free of charge to make such inspections. XXXX shall ensure that Owner has free access at all times to the materials or equipment to be inspected, sampled, or tested. XXXX shall provide safety measures as necessary to protect Owner personnel or representatives from construction activities while making field tests.
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8.5.5. Inspection of Production or Manufacturing Process: Owner may inspect the production or manufacture of materials or equipment at the source of supply. Such plant inspection, however, will not be undertaken until Owner is assured of the cooperation and assistance of both XXXX and the materials producer or equipment manufacturer. Owner or its authorized representative shall have free entry at reasonable times to such parts of the plant as concern the manufacture or production of the materials or equipment.
8.5.6. Inspection Does Not Guarantee Acceptance: Inspections and tests shall in no way be considered a guarantee of acceptance of such materials or equipment, nor of continued acceptance of materials or equipment presumed to be similar to that upon which inspections and tests have been made. Inspection and testing performed by Owner shall not relieve XXXX or XXXX'x suppliers of responsibility for quality control or otherwise limit its warranty obligations or other obligations related to quality of work required by the Contract.
8.5.7. Records of Inspections: XXXX may examine reports and records of inspections that are Owner’s obligation to perform when such reports and records are available at the work site.
8.5.8. Certificate of Compliance/Manufacturer’s Certification: XXXX shall furnish a Certificate of Compliance prior to using any materials for which the Contract Documents require such a certificate. The form of the Certificate shall be as directed by Owner. As authorized by the Contract Documents, Owner may permit the use of materials or equipment accompanied by a Certificate of Compliance prior to sampling and testing. The Certificate shall be signed by the producer and shall state that the materials or equipment comply in all respects with the requirements of the Contract Documents. XXXX shall furnish a Certificate of Compliance with each lot of materials or equipment delivered to the work, and the lot so certified shall be clearly identified in the Certificate.
All materials or equipment used on the basis of a Certificate of Compliance may be sampled and tested at any time. The fact that materials or equipment are used on the basis of a Certificate of Compliance shall not relieve XXXX of responsibility for using materials or equipment that conform to the requirements of the Contract Documents, and any materials or equipment not conforming to such requirements will be subject to rejection whether or not in place. Owner reserves the right to verify that supplied materials or equipment comply with the Contract Documents through inspection, testing, or any other manner as may be provided for in the Contract Documents notwithstanding receipt of a Certificate of Compliance.
8.5.9. Cooperation by Contractor: XXXX shall not perform work or furnish materials without obtaining inspection by the Owner. XXXX shall provide the Owner with safe means of access to the work, so the Owner can determine whether the work performed and materials used are in accordance with the requirements and intent of the Contract Documents. If the Owner so requests at any time before final acceptance of the work, the XXXX shall remove or uncover such portions of the finished work as directed. After examination, restore the uncovered portions of the work to the standard required by the Contract Documents. If the Owner determines that the work so exposed or examined is unacceptable, XXXX shall perform the uncovering or removal, and the replacing of the covering or making good of the parts removed, at no expense to the Owner. However, if the Owner determines that the work thus exposed or examined is acceptable, the Owner will pay for the uncovering or removing, and the replacing of the covering or making good of the parts removed in accordance with 14.2.
8.5.10. Failure of Owner to Reject Work During Construction: If, during or prior to construction operations, the Owner fails to reject defective work or materials, whether from lack of discovery of such defect or for any other reason, such initial failure to reject in no way prevents the later rejection when such defect is discovered, or obligates the Owner to final acceptance. The Owner is not responsible for losses suffered due to any necessary removals or repairs of such defects.
8.5.11. Failure to Remove and Renew Defective Materials and Work: If the XXXX fails or refuses to remove and renew any defective materials used or work performed, or to make any necessary
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repairs in an acceptable manner and in accordance with the requirements of the Contract within the time indicated in writing, the Owner has the authority to repair, remove, or renew the unacceptable or defective materials or work as necessary, all at the XXXX’x expense. The Owner will obtain payment for any expense it incurs in making these repairs, removals, or renewals, that the XXXX fails or refuses to make, by deducting such expenses from any moneys due or which may become due the XXXX, or by charging such amounts against the Contract bond.
8.5.12. Corrections for Construction Errors: For work that the XXXX constructs incorrectly or does not meet the requirements of the Contract Documents, the XXXX has the prerogative to submit an acceptance proposal to the Owner for review and disposition. The acceptance proposal shall describe the error or defect and either describe remedial action for its correction or propose a method for its acceptance. In either case, the acceptance proposal shall address structural integrity, aesthetics, maintainability, and the effect on Contract Time. The Owner will judge any such proposal for its effect on these criteria and also for its effect on Contract Administration.
When the Owner judges that a proposal infringes on the structural integrity or maintainability of the structure, the XXXX’x Engineer of Record will perform a technical assessment and submit it to the Owner for approval. The XXXX shall not take any corrective action without the Owner’s written approval. The XXXX shall carry out all approved corrective construction measures at no expense to the Owner.
Notwithstanding any disposition of the compensation aspects of the defective work, the Owner’s decision on the technical merits of a proposal is final.
9.1. PAYMENT REQUIREMENTS
9.1.1. Form and Contents of Applications for Payment: XXXX must submit applications for payment on a form approved by Owner.
Each application for payment must include:
(a) A current Schedule of Values (when requested) and monthly Schedule Update with a narrative report, all approved in writing by Owner and all developed in accordance with the “SCHEDULES, SUBMITTALS, SUBSTITUTIONS, AND INSPECTIONS” Section of the General Conditions. XXXX’x submissions of an Accepted Project Schedule, monthly Schedule Updates, and Schedule of Values are conditions precedent to Owner’s processing of applications for payments;
(b) Photographic documentation of completed work (if requested);
(c) If requested, XXXX shall provide three copies of certified payrolls from XXXX and all Sub- consultants and Subcontractors for the period covered by the application for payment, with one copy having all pertinent information visible and two copies having the workers’ names, addresses, and social security numbers blacked out;
(d) Evidence satisfactory to Owner that XXXX is fulfilling its obligations under the Contract Documents with respect to preparing daily reports and maintaining up-to-date As-Built Plans;
(e) Conditional waivers and releases on progress payment or final payment (as applicable) from XXXX, those Subcontractors of any tier, and those suppliers claiming funds covered by the application for payment, and unconditional waivers and releases on progress payment or final payment from XXXX, those Subcontractors of any tier, and those suppliers who received funds through the preceding applications for payment, all in the form prescribed by Civil Code Sections 8120 through 8138; and
(f) Any other administrative documentation as agreed upon.
The application for payment shall show the total value of work completed or partially completed as of the date of submission of the application for payment. At Owner’s sole discretion, the value
of the work completed may include up to 50% of the value, as determined by Owner, of: (i) material delivered to the Project site and not yet incorporated into the construction; and/or (ii) materials delivered to XXXX and stored at locations other than the Project site, provided that XXXX furnishes Owner satisfactory evidence that XXXX has acquired title to the materials, the materials will be used on the Project, the materials are properly stored at a secure off-site location acceptable to Owner, and the materials at each storage location are segregated from any other materials there that are not intended for use on the Project. Owner will not pay XXXX for any materials at the Project site that are furnished but are not to be incorporated into the work.
Owner reserves the right to adjust a payment application if a prior payment application is determined to have been overstated or understated.
9.1.2. Lump Sum Work and Unit Prices: Owner shall pay for work shown on the GMP Proposal as "Lump Sum", "L.S.", or "Job" at the lump sum price shown. Work for which the GMP Proposal shows a unit price will be paid for at the actual quantities constructed in accordance with the Contract Documents, not at the quantities shown in the GMP Proposal. Upon completion of the work, if the actual quantities show either an increase or decrease from the quantities stated in the GMP Proposal, the unit price stated in the GMP Proposal will apply unless a change to the unit price is warranted under the "CHANGES" Section of the General Conditions.
9.1.3. Allowances: Payment for any Allowance identified in the GMP Proposal shall be for direct cost reimbursement only, unless the GMP Proposal identifies it as a "Time and Materials" or "T&M" item. Reimbursable direct costs shall be verified by invoices and shall include any amounts paid to third parties, and do not include markups, including but not limited to supervision, labor, overhead, or profit related to the item. Payment for Allowances based on T&M pricing shall be proposed by XXXX subject to Owner's acceptance using the same criteria and proposal breakdown as that specified in the “Time-and-Materials Change Orders” subsection of the “CHANGES” Section of the General Conditions. Any work to be performed in connection with any Allowance identified in the GMP Proposal must first be approved in writing by Owner. Any costs that exceed the maximum amount of any Allowance line item shall be addressed as a change to the Contract consistent with "CHANGES" Section of the General Conditions, but in such event there shall be no markup for overhead and profit on the additional actual costs. Upon completion of the Project, each Allowance will be corrected for unused balances and a credit to the Contract Price will be issued by Change Order to reflect the actual sums authorized for work as Allowance items.
9.1.4. Time for Submitting and Reviewing Applications for Payment: XXXX shall submit each application for payment to Owner for its review on the last business day of the month for which it is seeking payment. Owner will review the application for payment as soon as practicable and, no later than 7 days after receiving it or as provided by Public Contract Code Section 20104.50, will return to XXXX any application for payment that Owner determines is not a proper application for payment suitable for payment along with a written explanation of the reasons why the application for payment is not proper. The grounds on which the Owner may conclude the application for payment is not proper and not suitable for payment include, but are not limited, to: (i) the application is missing documents required under the preceding Section "Form and Contents of Applications for Payment"; (ii) the application does not accurately reflect the progress of the work;
(iii) the quality of the work is not in conformance with the requirements of the Contract Documents; (iv) XXXX has failed to remedy defective work; (v) there are third party claims filed against Owner arising out of XXXX'x work; (vi) XXXX has failed to make payments properly to subcontractors and suppliers; (vii) XXXX has damaged Owner's property or the work by or property of Owner's separate CMARs; (viii) XXXX has repeatedly failed to carry out the work in accordance with the Contract Documents; or (ix) there is reasonable evidence that XXXX will not complete the work within the Contract Time and that the unpaid balance of the Contract Price would not be adequate to cover the Liquidated Damages for the anticipated delay.
9.1.5. Progress Payments: Within 30 days of receiving an undisputed, properly completed application for payment, or as provided by Public Contract Code Section 20104.50, Owner shall pay to XXXX a sum equal to 95% of the value of the work completed since the commencement of the work, less all previous payments. Owner shall hold 5% of the value of the work completed as Retention until the Retention Payment is made pursuant to Public Contract Code Section 7107. XXXX may be entitled to interest pursuant to Public Contract Code Section 20104.50 if Owner fails to timely make any progress payment. No progress payment by Owner shall be considered to be Owner's acceptance of any part of the work.
9.1.6. Retention Payment: Payment of the Retention amount will be made in accordance with Public Contract Code Section 7107. If the Retention Payment is made before XXXX has complied with all of its obligations under the Contract, then payment of Retention shall not be interpreted as Final Payment, and shall not relieve XXXX of its obligations under the Final Payment provisions.
9.1.7. Final Payment: The Final Payment, if unencumbered, or any part thereof unencumbered, shall be made no later than 60 days after XXXX completes the work and submits an application for Final Payment in proper form and suitable for payment. XXXX'x work will not be complete until XXXX has delivered: (i) As-Built Plans suitable for use in preparing a reproducible set of record drawings for the Project; (ii) all operations and maintenance manuals; (iii) manufacturers', suppliers', and installers' warranties, guarantees, instruction sheets, and parts lists; and (iv) any other documents or information required by the Contract Documents as a condition to completion of the work.
XXXX'x application for Final Payment shall include:
(a) XXXX'x affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Project have been paid or otherwise satisfied by XXXX; and
(b) Conditional waivers and releases on Final Payment in the form prescribed by Civil Code Section 8136 from XXXX, its Subcontractors of any tier, and its suppliers who will receive funds from the Final Payment, listing with specificity any and all claims under or arising out of the Contract or the Project that remain unsettled.
9.1.8 Partial Payments for Delivery of Certain Materials: The Owner will allow partial payments for new materials that will be permanently incorporated into the project and are stockpiled in approved locations in the project vicinity. Stockpile materials so that they will not be damaged by the elements and in a manner that identifies the project on which they are to be used.
The following conditions apply to all payments for stockpiled materials:
(a) There must be reasonable assurance that the stockpiled material will be incorporated into the specific project on which partial payment is made.
(b) The stockpiled material must be approved as meeting applicable specifications.
(c) The total quantity for which partial payment is made shall not exceed the estimated total quantity required to complete the project.
(d) The XXXX shall submit to the Owner certified invoices to document the value of the materials received. The amount of the partial payment will be determined from invoices for the material.
(e) Delivery charges for materials delivered to the jobsite will be included in partial payments if properly documented.
(f) Partial payments will not be made for materials, which were stockpiled prior to award of the Contract for a project.
9.2. SUBSTITUTED SECURITY
In accordance with Public Contract Code Section 22300 and at the request and expense of XXXX, prior to the award of the contract, Owner will accept securities equivalent to any amount withheld by Owner to ensure complete and proper performance under the Contract Documents, including the amount withheld as Retention under the “PAYMENTS” Section of the General Conditions. Substituted securities must meet the requirements of Public Contract Code Section 22300 and shall be deposited with Owner or with a California or federally chartered bank in California as escrow agent. The securities shall be held by the escrow agent subject to a written escrow agreement between Owner, XXXX, and escrow agent, which agreement shall be in a form substantially similar to that contained in Public Contract Code Section 22300.
9.3. WAIVER OF CLAIMS
Unless a shorter time is specified elsewhere in the Contract, on or before making its application for Final Payment, XXXX shall submit to Owner in writing all claims for compensation under or arising out of this Contract. XXXX’x acceptance of Owner’s payment in response to XXXX’x application for Final payment shall constitute a waiver of all claims against Owner under or arising out of this Contract except those previously made in writing and identified by XXXX as unsettled at the time of XXXX’x application for Final Payment.
10. LABOR CODE REQUIREMENTS
XXXX and all Subcontractors shall comply with all applicable requirements of the Labor Code throughout the performance of the Contract, including but not limited to the following:
10.1. WAGE RATES
XXXX and any Subcontractor(s) shall comply with the provisions of California Labor Code Sections 1771 et seq. and shall pay workers employed on the Contract not less than the general prevailing rates of per diem wages and holiday and overtime wages as determined by the Director of Industrial Relations. XXXX shall post all job site notices as required by Labor Code Section 1771.4(a), including a copy of these wage rates for each craft, classification, or type of worker needed in the performance of this Contract. Copies of these rates are on file at the principal office of Owner’s representative, or may be obtained from the State Office, Department of Industrial Relations (“DIR”) or from the DIR’s website at xxx.xxx.xx.xxx. If the Contract is federally funded, XXXX and any Subcontractor(s) shall not pay less than the higher of these rates or the rates determined by the United States Department of Labor.
10.2. WAGE RATE PENALTY
XXXX and any Subcontractor(s) shall comply with the provisions of Labor Code Section 1775. XXXX and any Subcontractor(s) shall be subject to a penalty in an amount up to $200, or a higher amount as provided by Section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates for any work done by the XXXX or Subcontractor(s) under the Contract.
10.3. WORK HOUR PENALTY
As provided by Labor Code Section 1810, 8 hours of labor shall constitute a legal day's work, and 40 hours shall constitute a legal week's work. The time of service of any worker employed under the Contract shall be restricted to 8 hours during any one calendar day, and 40 hours during any one calendar week, except as provided herein. XXXX shall forfeit to Owner $25, or a higher amount as provided by Labor Code Section 1813, for each worker employed in the performance of this Contract by XXXX or by any Subcontractor(s) for each calendar day during which such worker is required or permitted to work more than the legal day's or week's work, except as provided by Labor Code Section 1815.
10.4. REGISTRATION OF CMARS
XXXX and all Subcontractors must comply with the requirements of Labor Code Section 1771.1(a), pertaining to registration of CMARs pursuant to Section 1725.5. Registration and all related requirements of those sections must be maintained throughout the performance of the Contract.
10.5. PAYROLL RECORDS
XXXX and any Subcontractor(s) shall comply with the requirements of Labor Code Section 1776. Such compliance includes the obligation to furnish the records specified in Section 1776 directly to the Labor Commissioner in an electronic format, or other format as specified by the Commissioner, in the manner provided by Labor Code Section 1771.4.
The requirements of Labor Code Section 1776 provide in part:
10.5.1. XXXX and any Subcontractor(s) performing any portion of the work under this Contract shall keep an accurate record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by XXXX or any Subcontractor(s) in connection with the work.
10.5.2. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(a) The information contained in the payroll record is true and correct.
(b) The employer has complied with the requirements of Labor Code Sections 1771, 1811, and 1815 for any work performed by his or her employees in connection with the Contract.
10.5.3. The payroll records shall be certified and shall be available for inspection at the principal office of XXXX on the basis set forth in Labor Code Section 1776.
10.5.4. XXXX shall inform Owner of the location of the payroll records, including the street address, city and county, and shall, within five working days, provide a notice of any change of location and address of the records.
10.5.5. Pursuant to Labor Code Section 1776, XXXX and any Subcontractor(s) shall have 10 days in which to provide a certified copy of the payroll records subsequent to receipt of a written notice requesting the records described herein. In the event that XXXX or any Subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to Owner, forfeit $100, or a higher amount as provided by Section 1776, for each calendar day, or portion thereof, for each worker to whom the noncompliance pertains, until strict compliance is effectuated. XXXX acknowledges that, without limitation as to other remedies of enforcement available to Owner, upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of the California Department of Industrial Relations, such penalties shall be withheld from progress payments then due XXXX. XXXX is not subject to a penalty assessment pursuant to this Section due to the failure of a Subcontractor to comply with this Section.
10.6.1. Unless the Contract involves a dollar amount less than that specified in Labor Code Section 1777.5, this Contract is governed by the provisions of Section 1777.5. XXXX shall comply with Labor Code Section 1777.5 for all apprenticeable occupations.
10.6.2. XXXX and all Subcontractor(s) shall comply with Labor Code Section 1777.6, which forbids discriminatory practices in the employment of apprentices on any basis listed in Government Code Section 12940 (described in the “NONDISCRIMINATION” Section of the General Conditions), except as provided in Labor Code Section 3077.
10.6.3. XXXX shall comply with all requirements of California Public Contract Code Section 22164
(c) regarding he use of a skilled and trained workforce.
In the performance of the Contract, XXXX shall neither engage in nor permit its Subcontractors to engage in discrimination against any employee or applicant for employment on any basis listed in California Government Code Section 12940, including but not limited to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, as those bases are currently defined in Government Code Sections 12926 and 12926.1, or as they may be modified. This prohibition shall pertain to employment, upgrading, demotion, or transfer; recruitment advertising; layoff or termination; rates of pay and other forms of compensation; selection for training, including apprenticeship; and any other action or inaction pertaining to employment matters.
12. WARRANTY / GUARANTEES
XXXX warrants that materials and equipment furnished under the Contract Documents will be new, of good quality, and carrying all available manufacturers’ and installers’ warranties; that construction will be of good and workmanlike quality; and that all of the work shall be performed in strict conformance with the requirements of the Contract Documents, industry standards, and manufacturers’ recommendations. Work not conforming to these requirements shall be considered defective (“Defective Work”). Defective Work does not include damage caused by modifications not executed by XXXX or its Subcontractors, improper operation or maintenance, or normal wear and tear.
12.2. TWO YEAR CORRECTION PERIOD
For a period of not less than two (2) years from the date Owner accepts XXXX’x work, as evidenced by a Notice of Completion issued by Owner, XXXX shall take immediate action to correct any Defective Work reported by Owner orally or in writing. XXXX shall initiate corrective action on Defective Work affecting use of a facility, safety, or preservation of property within twenty-four (24) hours after notification. XXXX shall initiate corrective action on other Defective Work within ten (10) calendar days after notification. If XXXX fails to initiate corrective action within the specified times or fails to complete the corrective work within a reasonable time, Owner may take whatever corrective action it deems necessary. All costs incurred by Owner because of XXXX’x failure to correct Defective Work during the two-year correction period shall be due and payable immediately by XXXX. The two-year correction period relates only to the specific obligation of XXXX to return to the Project site and correct Defective Work. The two-year correction period does not establish a period of limitations with respect to any of XXXX’x other obligations under the Contract Documents, including but not limited to XXXX’x warranty, and it has no relationship to the time within which Owner may seek to enforce the XXXX’x obligation to comply with the Contract Documents or to the time within which proceedings may be commenced to establish the XXXX’x liability with respect to any of the XXXX’x obligations.
12.3. MANUFACTURERS’ AND INSTALLERS’ WARRANTIES
All manufacturers’ and installers’ warranties received by XXXX shall be assignable to Owner, and upon abandonment, termination, or completion of the Agreement shall be deemed, and hereby are, assigned to
Owner. XXXX shall take all actions necessary to preserve the full scope of all manufacturers’ and installers’ warranties for the benefit of Owner and shall take no action that would impair Owner’s rights under any such warranties. Before Owner’s acceptance of the work, XXXX shall deliver to Owner manufacturers’ and installers’ warranties, guarantees, instruction sheets, and parts lists, which are furnished with certain articles of materials incorporated in the work.
All of XXXX’x warranty obligations shall survive abandonment, termination, and completion of the Contract. Neither Final Payment nor any other provision in the Contract Documents shall constitute Owner’s acceptance of work not performed in accordance with the Contract Documents nor relieve XXXX of liability with respect to its warranty obligations or for Defective Work.
13.1. OTHER CONTRACTS
Owner may undertake or award other contracts for simultaneous, collateral, or additional work adjacent to or within the work site. XXXX shall fully cooperate with such other Owner representatives, and carefully fit XXXX'x own work to such other work as may be directed by Owner. XXXX shall be responsible for ascertaining the nature and extent of any simultaneous, collateral, or additional work by others. XXXX shall not commit or permit any act that will interfere with the performance of work by Owner or any other XXXX, and shall cooperate in the coordination of its separate activities in a manner that shall not interfere with Owner’s current facility operations and the activities of other CMARs working in the area. XXXX shall include in its GMP Proposal all costs involved as a result of coordinating its work with others. If necessary for coordination purposes, XXXX shall redeploy its forces to other parts of the work.
13.2.1. XXXX shall take proper safety and health precautions to protect the work, the workers, the public, and the property of others. XXXX shall comply with the provisions of the Construction Safety Orders issued by the State Division of Occupational Safety and Health. XXXX shall also be responsible for all materials delivered and work performed until completion and acceptance of the Project, except for any completed unit of construction that Owner may have previously accepted.
13.2.2. XXXX shall maintain continuously adequate protection of all work from damage and shall protect Owner's personnel, invitees, and property from damage, injury, or loss arising in connection with this Contract. XXXX shall make good any such damage, injury, or loss. XXXX shall adequately protect adjacent property and shall maintain reasonable security of the site at all times. XXXX shall limit visitors to the site to those necessary for construction and inspection. Visitors for other purposes shall be referred to Owner. XXXX'x and Subcontractors' employees shall possess means of identification at all times as required by Owner while on the job site.
13.2.3. Owner may notify XXXX of any noncompliance with the foregoing provisions and the action to be taken. XXXX shall, after receipt of such notice, immediately correct such conditions. Such notices shall be deemed sufficient for said purpose when delivered to XXXX or XXXX'x representative at the work site. Failure of receipt of such notice from Owner shall not relieve XXXX of responsibility for safety.
13.2.4. If XXXX fails or refuses to comply promptly, Owner may issue an order stopping all or part of the work until satisfactory corrective action has been taken. No part of the time lost due to any such stop work order shall be made the subject of claim for extension of time or additional compensation to XXXX. XXXX will be responsible for ensuring that XXXX'x Subcontractors and suppliers comply with the provisions of this Section.
13.2.5. In an emergency affecting the safety of persons, the work, or of adjoining property, XXXX without special instruction or authorization from Owner, is hereby permitted to act at XXXX'x discretion to prevent such threatened loss or injury. XXXX shall so act if directed by Owner.
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Any claim for additional compensation by XXXX on account of emergency work shall be determined as set forth in the “CHANGES” Section of these General Conditions.
13.3. FENCES AND BARRICADES
A. Furnish, erect and maintain all fences and barricades required by local ordinances, or public safety and necessary until completion of the project.
B. Barricades to protect public from construction shall be sturdy, stable and robust and shall be free from projecting nails, boards or other hazards. The XXXX shall maintain barricades free from graffiti.
C. No signs, other than those specified, shall be erected without the written approval of the Owner.
D. Remove construction fences, barricades, and other related temporary construction upon completion of work, or sooner if authorized or required to maintain Project progress.
13.4. PROJECT SIGN & NOTICE
A. No signs or advertisements will be permitted on the Project site, unless otherwise approved by the Owner's Project Manager.
X. XXXX (if required) shall furnish and install five 4 foot by 8 foot Project signs to be located at the Project site and shall contain the information as described in OCPW Std. Plan 1418.
X. XXXX shall submit sign layout and proposal exact location for review and approval by the Owner's Project Manager.
13.5. QUALITY OF MATERIALS AND WORKMANSHIP
13.5.1. XXXX shall perform all work required by the Contract Documents in a skillful, good, and workmanlike manner and in strict conformance with the Contract Documents. All materials and equipment furnished by XXXX shall be new and of good quality, unless otherwise required by the Contract Documents.
13.5.2. XXXX shall supervise and direct the work using its best skill and attention. All labor shall be performed by individuals specially skilled in the kind of work required. XXXX shall at all times enforce strict discipline and good order among its employees and those of its Subcontractors of any tier. XXXX shall not employ for the Project any unfit person or anyone not skilled in the assigned task or otherwise unfit. XXXX shall immediately remove from the Project any person that Owner determines, in its sole discretion, is unfit or behaving in an unsatisfactory or unacceptable manner. Persons so removed shall not thereafter be reassigned to any portion of the Project without Owner's written approval, which may be granted or withheld in Owner’s sole discretion.
13.5.3. XXXX shall, without charge, replace any material or correct any work found by Owner not to conform to the requirements of the Contract Documents, unless Owner consents to accept such material or work along with a commensurate reduction in the Contract Price. XXXX shall promptly segregate and remove rejected material from the work site.
13.5.4. If XXXX does not promptly replace rejected material or correct rejected work, or immediately remove persons who are unfit or behaving unacceptably, Owner may: (1) by contract or otherwise replace such material or correct such work and charge the cost thereof to XXXX, including but not limited to by deducting the cost from amounts due or to become due to XXXX; or (2) terminate XXXX'x right to proceed in accordance with the "TERMINATION FOR CAUSE" Section of the General Conditions.
13.6.1. XXXX shall notify Owner at least 7 days before starting work to allow for the preservation of survey monuments, lot stakes, and benchmarks. XXXX shall not disturb survey monuments, lot
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stakes, or benchmarks without the consent of Owner, and shall bear the expense of replacing any that may be disturbed without such consent. Replacement shall be done only under the direction of Owner by a Registered Licensed Land Surveyor or a Registered Civil Engineer authorized to practice land surveying within the State. When a change is made in the finished elevation of the pavement of any roadway in which a permanent survey monument is located, XXXX shall adjust the monument cover to the new grade within 7 days of finished paving unless otherwise instructed by Owner. XXXX shall preserve construction survey stakes and marks for the duration of their usefulness, and will bear the expense of any survey stakes that are lost or disturbed and need to be replaced.
13.6.2. XXXX shall notify Owner in writing at least 7 days before survey services will be required in connection with the laying out of any portion of the work. XXXX shall dig all holes necessary for line and grade stakes. Unless otherwise specified in the Contract Documents, stakes will be set and stationed by Owner for curbs, headers, sewers, storm drains, structures, and rough grade. A corresponding cut or fill to finished grade (or flowline) will be indicated on a grade sheet.
13.6.3. All work shall conform to the lines, elevations, and grades shown on the Plans. Three consecutive points set on the same slope shall be used together so that any variation from a straight grade can be detected. Any such variation shall be reported to Owner. In the absence of such report, XXXX shall be responsible for any error in the grade of the work. Grades for underground conduits will be set at the surface of the ground. XXXX shall transfer them to the bottom of the trench.
13.6.4. Surveying by XXXX shall conform to the quality and practice required by Owner.
13.7.1. Location: XXXX shall determine the location and depth of all utilities, including service connections, which have been marked by the respective owners and which may affect or be affected by its operations. Unless otherwise specified in the Contract Documents, costs associated with complying with the requirements of this Section shall not entitle XXXX to additional compensation under the “CHANGES” Section of the General Conditions. Pursuant to Government Code Sections 4216 et seq., XXXX shall contact the appropriate regional notification center(s) and shall obtain an inquiry identification number at least 2 working days, but not more than 14 calendar days, prior to commencing any excavation.
13.7.2. Protection: XXXX shall not interrupt the service function or disturb the support of any utility without authority from the utility owner or direction from the Owner. Valves, switches, vaults, and meters shall be maintained readily accessible for emergency shutoff. Where protection is required to ensure support of utilities located as shown on the Plans or in the Special Provisions, XXXX shall furnish and place the necessary protection at its expense unless otherwise provided in the Contract Documents. Permanent improvements installed in proximity to any utilities shall be constructed in a manner that will not impair the physical integrity, use, or ongoing maintenance of those utilities.
13.7.3. Removal: Unless otherwise specified in the Contract Documents, XXXX shall remove all interfering portions of utilities represented in the Plans or Special Provisions as “abandoned” or “to be abandoned in place.” Before starting removal operations, XXXX shall ascertain from Owner whether the abandonment is complete, and the costs involved in the removal and disposal shall be included in the GMP Proposal for the items of work necessitating such removals.
13.7.4. Relocation: When feasible, the responsible utility owners will complete their necessary installations, relocations, repairs, or replacements before commencement of the work by XXXX. When the Plans or Special Provisions indicate that a utility installation is to be relocated, altered, or constructed by others, XXXX will conduct all negotiations with the owners and utility work will be done at no cost to the Owner, except as otherwise specified in the Contract Documents. Utilities that are relocated in order to avoid interference shall be protected in their position and the cost of such protection shall be included in the GMP Proposal for the items of work
necessitating such relocation. Owner may order changes in the work to avoid interference as provided by the “CHANGES” Section of these General Conditions. When the Contract Documents provide for XXXX to alter, relocate, or reconstruct a utility, all costs for such work shall be included in the GMP Proposal for the items of work necessitating such alteration, relocation, or reconstruction. Temporary or permanent relocation or alteration of utilities requested by XXXX for its convenience shall be its responsibility and XXXX shall make all arrangements and bear all costs.
13.7.5. Relocation of Service Connections: The XXXX shall arrange for the utility owners to relocate service connections as necessary within the limits of the work or within temporary construction or slope easements. When directed by Owner, XXXX shall arrange for the relocation of service connections as necessary between the meter and property line, or between a meter and the limits of temporary construction or slope easements. Unless, otherwise specified in the Contract Documents, payment for the relocation of such service connections shall be in accordance with the “CHANGES” Section of these General Conditions, and will include the restoration of all existing improvements which may be affected thereby. XXXX may agree with the owner of any utility to disconnect and reconnect interfering service connections, and Owner will not be involved in any such agreement.
13.7.6. Notice: XXXX shall notify Owner of its schedule insofar as it affects the protection, removal, or relocation of utilities.
13.7.7. Cooperation: When necessary, XXXX shall so conduct its operations as to permit access to the work site and provide time for utility work to be accomplished during the progress of the work.
13.7.8. Utility: Facilities on Project Site: If XXXX discovers unidentified utilities, XXXX shall immediately notify Owner and the utility owner in writing. Pursuant to Government Code Section 4215, XXXX shall be compensated for the costs of locating and repairing damage not due to failure of XXXX to exercise reasonable care, and of removing or relocating main or trunk line utilities located on the site and not identified in the Contract Documents with reasonable accuracy. Such compensation shall also cover the cost of XXXX'x equipment necessarily idled during such work. XXXX shall not be assessed Liquidated Damages for delay in completion of the work if such delay was caused by the failure of the utility owner to provide for removal or relocation of such utilities. This provision shall not be deemed to require compensation or excuse of Liquidated Damages when the presence of existing service laterals or appurtenances can be inferred from the presence of visible facilities such as buildings, meters, and junction boxes on or adjacent to the construction site.
13.7.9. Increase of Contract Time: XXXX shall not be entitled to additional time or compensation for delays attributable to utility relocations or alterations if such utility relocations or alterations are correctly located, noted, and completed. XXXX may be entitled to an extension of the Contract Time for unforeseen delays attributable to unreasonably protracted interference by utilities in performing work correctly represented in the Plans or Special Provisions. XXXX will assume responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities within the area affected by the work if such utilities are not identified in the Contract Documents.
13.8. SPACE AT SITE
XXXX shall identify and acquire reasonable space at the work site and shall confine XXXX'x operations to the assigned space.
13.9. OPERATING HOURS AND SITE ACCESS
Unless otherwise specified in the Contract Documents, normal operating hours are from 7:00 A.M. to 4:00 P.M. Work performed outside normal operating hours will require Owner's written approval.
13.10. TRAFFIC CONTROL
13.10.1. XXXX shall coordinate its traffic at the site with Owner. When a Traffic Control Plan (TCP) is required by the Contract Documents, XXXX shall submit an acceptable plan to Owner within 10 days after the Notice to Proceed is issued.
The Temporary Traffic Control Plan shall be prepared by a Traffic Engineer prior to any work performed and must be prepared according to requirements in the 2014 California Manual on Uniform Traffic Control Devices (CAMUTCD). The traffic control plan shall be signed and sealed (wet-stamped) by a State of California registered Traffic Engineer. However, with a prior approval from the Owner, a plan prepared, signed and sealed by a registered Civil Engineer may be acceptable.
The XXXX shall prepare plan sheets, notes, and details to include the following: typical section sheet(s), general notes and construction sequence sheet(s), typical detail sheet(s), traffic control plan sheet(s).
The XXXX shall prepare additional plan sheets such as detours, cross sections, profiles, drainage structures, temporary roadway lighting, retaining wall details, and sheet piling as necessary for proper construction and implementation of the Temporary Traffic Control Plan.
The TCP shall display and address, at a minimum:
(a) Protection of existing improvements;
(b) Maintaining access by Owner operations;
(c) Methods to eliminate interference with existing facility operations and traffic in and out of the facility and operations area;
(d) Proposed haul routes for delivery of materials;
(e) Maximum speeds for each class of vehicle on each type of terrain, but in no event to exceed 15 mph on shared access roads and any crossing areas;
(f) Access to work areas; and
(g) XXXX'x and Subcontractors' staging and material storage areas, including fuel storage procedures.
(h) All motor-driven equipment using fuel shall have spark arresters.
13.10.2. Traffic Control Restrictions: There will be no lane closures allowed between the hours of 4:00
P.M. to 7:00 A.M. A lane may only be closed during active work periods. There will be no pacing operations allowed between the hours of 4:00 P.M. to 7:00 A.M. There will be no detours allowed between the hours of 4:00 P.M. to 7:00 A.M. All lane closures, including ramp closures, must be reported to the local emergency agencies, the media and the Owner public information officer. Also, the XXXX shall develop the Project to be able to provide for all lanes of traffic to be open in the event of an emergency.
13.10.3. Reckless driving shall not be tolerated, and all vehicles shall be operated at a safe speed at all times. If Owner determines that XXXX has violated the Traffic Control Plan or otherwise operated in an unsafe manner, Owner may suspend or prohibit the equipment operator(s) from any further work at the site. Repeated or severe incidents demonstrating the failure of XXXX to operate its vehicles safely shall constitute a material breach of this Contract and Owner may terminate XXXX'x right to proceed with the work pursuant to the “TERMINATION FOR CAUSE” Section of the General Conditions.
13.11. TEMPORARY OFFICE BUILDING AND TELEPHONE
XXXX shall provide a temporary office building and telephone, if required for the Project. The temporary building shall be Class A and be provided by the XXXX in accordance with SSPWC Section 8 - Facilities for Agency Personnel. The trailer shall be located as shown in the Plans and/or as directed by Owner.
13.12. TEMPORARY UTILITIES
XXXX shall provide the necessary temporary utilities for construction use and bear the responsibility for their proper operation.
13.13. SANITARY UNIT
XXXX shall provide temporary toilets for XXXX'x use. XXXX will maintain and service them in a sanitary condition through the construction of the Project.
XXXX shall furnish all water needed for the Project, including but not limited to potable (drinking) and construction/dust suppression water, unless otherwise specified in these Contract Documents.
13.15. FIRE EXTINGUISHER
XXXX shall provide fire extinguishers suitable for the Project and consistent with the factors enumerated in Title 19 of the California Code of Regulations, Section 565. These extinguishers shall be placed at strategic locations around the working area and kept accessible for use in case of fire. XXXX shall keep fire extinguishers in working order and shall remove them from the site at the end of construction.
13.16. STORAGE AND WORKING SPACE
XXXX shall identify, acquire, obtain approval by Owner, and specify on Contract Documents material storage and working space. Locations for XXXX to store XXXX'x equipment will be agreed upon during the pre-construction meeting.
13.17. TRANSPORTATION AND HANDLING OF PRODUCTS
13.17.1. Transport and handle products in accordance with manufacturer's instructions and applicable regulations;
13.17.2. Promptly inspect shipments to assure that products comply with requirements, quantities are correct, and products are undamaged; and
13.17.3. Provide equipment and personnel to handle products by methods to prevent damage.
13.18. STORAGE AND PROTECTION OF PRODUCTS
13.18.1. Store and protect products in accordance with manufacturer's instructions and applicable regulations, with seals and labels intact and legible;
13.18.2. Store sensitive products in weather-tight, climate-controlled enclosures;
13.18.3. Store hazardous materials in accordance with applicable regulations, including but not limited to those related to containment and protection of the materials and surrounding environment;
13.18.4. Store fabricated products on sloped supports above ground if such products are stored outdoors;
13.18.5. Cover products subject to deterioration with impervious sheet covering with ventilation to avoid condensation;
13.18.6. Provide equipment and personnel to store products by methods to prevent damage;
13.18.7. Arrange storage of products to permit access for inspections; and
13.18.8. Periodically inspect to ensure products are undamaged and are maintained under specified conditions.
13.19. REMOVAL OF TEMPORARY FACILITIES
XXXX shall remove temporary toilets, storage sheds, and other facilities of a temporary nature from the Project site as soon as Owner determines progress of the work permits. XXXX shall recondition and restore portions of the site occupied by temporary facilities to a condition acceptable to Owner.
13.20. REGULATORY COMPLIANCE REQUIREMENTS
(a) XXXX shall identify and obtain all permits necessary for the Project, including: permits, licenses, and certifications, including but not limited to all trade-related permits; permits required for environmental protection; construction permits; encroachment permits; permits required for the operation and storage of any equipment or regulated hazardous materials brought onsite; and permits required for dispensing and storing petroleum- related products. If necessary for the Project, XXXX shall obtain and submit to Owner a California Occupational Safety Health Agency (Cal-OSHA) Excavation Permit. XXXX shall be responsible for ensuring that all other permits necessary to complete the Project are in place consistent with federal, State, and local laws and regulations. Costs and fees associated with said permits, regardless of whether obtained by Owner, XXXX, or any other entity, shall be borne solely by the XXXX. If Owner incurs costs related to such permits, then Owner shall deduct such costs from any funds due or to become due to XXXX.
(b) XXXX shall comply with the regulations or requirements of all permits, licenses, certifications, and regulations governing the Project. Any act or omission by XXXX that causes either Party to be in violation of any permit, licenses, certification, or regulation shall be deemed a material breach of this Contract by XXXX. Owner reserves the right to perform itself or through other CMARs any work necessary to correct any violation or to bring the Project into compliance with any permit, license, certification, or regulation, and shall deduct the cost of such work from any funds due or to become due to XXXX.
(c) XXXX shall maintain, at its job site office, copies of all permits, licenses, and certifications required for or governing the Project, including, as applicable, permits and approvals issued to Owner by the State Water Resources Control Board; the South Coast Air Quality Management District (“SCAQMD”) for dust control; and the SCAQMD and Local Enforcement Agency for refuse excavation.
13.20.2. XXXX Compliance with Applicable Law and Regulations: XXXX shall comply with all federal, State, County, and local codes, ordinances, regulations, and standards applicable to the Project. XXXX shall comply with all current regulatory criteria and standards. XXXX shall not be entitled to any additional compensation for work necessary to comply with legal or regulatory requirements effective at the time of bid opening.
13.20.3. Archaeological/Paleontological Resources
Owner may engage the services of an Archaeologist/Paleontologist (“A/P”) to monitor all or portions of the work.
(a) The Contract Documents may require XXXX to retain an A/P. In such event, the following conditions apply:
(i) A/P shall be acceptable to Owner. A/P can be selected from Owner’s list available at xxx.xxxxxxxxxx.xxx/xxxxxxxx/xxxx/xxxxx under the “Archaeologist and Paleontologist” section. Regardless of whether A/P is selected from Owner’s list, A/P shall meet all
minimum qualifications listed in the “Qualifications for Certification of Archaeological and Paleontological Professionals” document provided at that website.
(ii) XXXX shall submit the qualifications and references of A/P to Owner for verification at least 10 working days prior to any excavation or grading work. A/P shall be approved in writing by Owner at least 5 working days prior to the start of any excavation or grading work.
(iii) Unless otherwise agreed to in writing by Owner, A/P shall not be an employee of XXXX, any subcontractor currently under contract by XXXX (for any job), or any supplier to any project awarded or contracted to XXXX.
(iv) XXXX shall be compensated for all A/P expenses including all labor, materials, tools, equipment, and incidentals necessary for accomplishing the work in accordance with the Item(s) identified for A/P services in the GMP Proposal or, if not listed there, in accordance with the “CHANGES” Section of the General Conditions.
(v) A/P shall report exclusively to Owner. Owner may terminate the services of A/P at any time and at Owner’s sole discretion, with no justification necessary to XXXX, and XXXX shall replace A/P with another individual or firm meeting the requirements of this Section. Under no circumstances will A/P’s termination entitle XXXX to any additional time or payment under the “CHANGES” Section of these General Conditions.
(vi) All other provisions of this Section apply whether A/P is retained by Owner or by XXXX, and XXXX shall ensure that A/P complies with the provisions of these Contract Documents pertaining to A/P services.
(b) XXXX shall cooperate with all A/P personnel. If A/P directs XXXX to suspend or stop work in a particular area, XXXX shall abide by such request immediately and not resume work until directed by Owner.
(c) The A/P shall:
(i) Conduct a literature and records search for recorded sites and previous surveys;
(ii) Conduct a field survey unless the entire work site has been previously surveyed and the survey documentation is acceptable to Owner;
(iii) Attend the pre-construction meeting to conduct or schedule separate pre-construction cultural and paleontological resources sensitivity training, and attend additional meetings or provide training as determined necessary by Owner. In the event of the discovery of specimens or artifacts, attend construction meetings until otherwise directed by Owner;
(iv) Conduct pre-construction cultural and paleontological resources sensitivity training for all staff involved in moving soil or working near soil disturbance. Training shall review the types of archaeological and paleontological resources that might be found, along with laws for the protection of the resources;
(v) If determined necessary by the A/P and approved by Owner, the A/P shall prepare a report on a subsurface test level investigation of archaeological resources collection or pre-grade paleontological salvage operation. The report shall evaluate the site including the significance of any finds (location, depth, nature, condition, and extent of the artifacts or specimens), recommended methodology of salvage or mitigation and related cost estimates, and an analysis and catalogue of artifacts or specimens;
(vi) Establish procedures for A/P sampling and resource surveillance and monitoring;
(vii) In cooperation with Owner, establish procedures for suspension or redirection of work to permit sampling, identification, and evaluation of possible resources.
(viii) During grading, excavation, or other ground-disturbing activities, if any evidence of paleontological, pre-historic, or historic cultural resources is uncovered, the following measures, unless otherwise specified in regulatory permit language, shall be taken:
(A) All below grade work shall stop within a 100-foot radius of the discovery. Work shall not continue until the discovery has been evaluated by the A/P.
(B) The A/P shall assess the find(s) and determine if they are of value. If the find(s) are of value then:
(1) The A/P shall draft a monitoring program and monitor all ground-disturbing activities related to the Project.
(2) A/P shall prepare all potential finds in excavated material to the point of identification.
(3) Significant finds shall be preserved as determined necessary by the A/P.
(4) Excavated finds shall be offered to Owner or its designee for curation on a first- refusal basis, then offered to a local museum or repository willing to accept the resource.
(5) Within 30 working days of completion of the end of earth moving activities, the A/P shall draft a report summarizing the finds, and shall include the inspection period, an analysis of any resources found, and the present repository of the items.
(6) All resulting reports shall be delivered to Owner and filed with the South Central Coastal Information Center at the California State University, Fullerton, or another institution if directed by Owner.
(d) If XXXX uncovers any burial grounds or remains, ceremonial objects, petroglyphs, or archaeological, paleontological, or other artifacts or specimens of like nature within the construction area, XXXX shall immediately notify the Owner’s onsite representative of XXXX’x finds and shall modify the construction operations so as not to disturb the finds pending further instructions from Owner.
(e) Discovery of human remains:
(i) In accordance with Section 7050.5 of the California Health and Safety Code, if human remains are found, no further excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent remains shall occur until the County of Orange Sheriff-Coroner and/or other applicable coroner and law enforcement agency (“Coroner’s Office”) has determined the appropriate treatment and disposition of the human remains. The Coroner’s Office shall be notified within 24 hours of the discovery.
(ii) If the Coroner’s Office determines that the remains are or are believed to be of Native American origin, the Coroner’s Office will notify the California Native American Heritage Commission (NAHC).
(iii) In accordance with Section 5097.98 of the California Public Resources Code, the NAHC must notify those persons it believes to be the most likely descended from the deceased Native American. The descendants shall be granted access to the site to complete their inspection as quickly as possible. The designated Native American representative would then determine, in consultation with Owner, the treatment and disposition of the human remains.
(f) Should the finds, or notification of finds, result in delays or extra work, payment will be allowed in accordance with the “Changed Conditions” subsection of the “CONDITIONS AFFECTING THE WORK” Section of these General Conditions. However, XXXX shall not
be entitled to damages, additional payments, or extensions of time where the XXXX could have avoided delays by any reasonable means.
(g) Unless otherwise required by law, any and all finds shall remain the property of Owner and not become the property of any other person or entity.
13.20.4. Surface Water Protection
(a) Work at is subject to the requirements of the National Pollutant Discharge Elimination System (“NPDES”) storm water regulations, specifically to Construction General Permit (“CGP”) Order No. 2012-0006-DWQ as indicated in the Special Provisions. NPDES regulations require the implementation of an IGP Stormwater Pollution Prevention Plan (“IGP SWPPP”) and may additionally require a CGP Stormwater Pollution Prevention Plan (“CGP SWPPP”) in conjunction with work at such sites.
(b) Where the nature and location of the work require compliance with the CGP, XXXX is responsible for preparing and implementing a CGP SWPPP. Copies of the CGP and related documents may be found at: xxxx://xxx.xxxxxxxxxxx.xx.xxx/xxxxx_xxxxxx/xxxxxxxx/xxxxxxxxxx/xxxxxxxxxxxx.xxxxx.
(c) Additionally, in a letter dated August 31, 2011, the Santa Xxx Regional Water Quality Control Board issued a Water Quality Standards Certification pursuant to the federal Clean Water Act (“CWA”) (also known as the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.), Section 401. The Certification requires that discharge from the Project will comply with CWA Sections 301 (Effluent Limitations), 302 (Water Quality Related Effluent Limitations), 303 (Water Quality Standards and Implementation Plans), 306 (National Standards of Performance), and 307 (Toxic and Pretreatment Effluent Standards). The discharge is also regulated under State Water Resources Control Board Order No. 2003-0017- DWQ, "General Waste Discharge Requirements for Dredge and Fill Discharges that Have Received Water Quality Certification."
13.20.5. Preparation of CGP SWPPP
(a) Where the nature and location of the work requires XXXX to comply with the CGP, XXXX shall develop a CGP SWPPP in accordance with the CGP and include references to the California Stormwater Quality Association (“CASQA”) Stormwater Best Management Practices (“BMPs”) Handbook for BMPs to be implemented during the course of construction. By submitting its GMP Proposal, XXXX represents having read and understood the requirements of the CGP. Although XXXX is required to prepare and submit a SWPPP, XXXX will not be required to prepare and submit Permit Registration Documents (PRDs) for the Project site. Additionally, XXXX will not be required to submit any CGP-required documentation to SMARTS. XXXX shall submit to Owner all CGP-required documentation (e.g., inspection reports, rain event action plans, monitoring reports, annual reports, site photos, and SWPPP amendments) and XXXX may not proceed with any earth-disturbing work prior to Owner’s approval of the CGP SWPPP, which approval will not be unreasonably delayed.
(b) As applicable, XXXX shall employ a Qualified SWPPP Developer (“QSD”) to prepare the CGP SWPPP, which shall include XXXX'x specific approach for the Project to ensure compliance with the CGP. XXXX'x final CGP SWPPP shall include a site-specific Construction Site Monitoring Program (“CSMP”). The CSMP shall define and identify the locations of specific BMPs to be implemented by XXXX during the various phases and staging of construction (including but not limited to: installation and maintenance of interim erosion or sediment controls, whereas the Erosion Control Plan may reflect only the post- construction location of these BMPs; equipment staging area BMPs; and interim stockpile management). The CGP SWPPP shall demonstrate compliance with all requirements of the CGP throughout the duration of the project.
(c) XXXX shall submit to Owner one digital copy of the draft and final CGP SWPPP and a minimum of three hard copies for the draft and final, each placed in a three-ring binder with separators and tabs. Review and acceptance by Owner is for general compliance purposes only and shall not be construed by any party as relieving XXXX from any responsibility or liability for conforming to the requirements of the CGP. Owner may require that the CGP SWPPP be amended and resubmitted to Owner as it determines necessary.
(d) All costs associated with XXXX'x review of the CGP and preparation of the CGP SWPPP and the CSMP shall be included in XXXX'x GMP Proposal.
13.20.6. SWPPP Implementation & Compliance
(a) XXXX is responsible for implementing and complying with the IGP SWPPP and/or CGP SWPPP, as applicable to the nature and location of the work. XXXX'x implementation and compliance activities shall include but not be limited to: installation and maintenance of BMPs (interim and final); preparation and implementation of Rain Event Action Plans (REAPS); rainfall and storm water turbidity and pH monitoring, sampling and analysis as required by the CGP; sampling and analysis to include constituents in the IGP in the event of any breach, malfunction, leakage, or spill; sampling and analysis for constituents in condition
9.c of the existing Monitoring and Reporting Program (RWQCB Order No. R8-2010-0017) in the event of groundwater containment system breach, malfunction, leakage, or spill; daily, weekly, and quarterly inspections and reporting; and all other activities required to eliminate both storm water and non-storm water discharges as required by the IGP/CGP. XXXX shall designate an independent Qualified SWPPP Practitioner (QSP), as defined by the IGP/CGP, who will be responsible for monitoring XXXX’x compliance with IGP/CGP requirements on the Project at all times.
(b) XXXX shall be responsible for providing all reports required by the IGP/CGP (monitoring, inspection, REAP, annual reports, etc.) to the Owner for review. XXXX shall submit all reports digitally with at least three hard copies to the Owner.
(c) XXXX'x designated QSP shall review and make recommendations to the Owner to amend the appropriate SWPPP as needed during the course of work to reflect actual construction progress and construction practices.
(d) XXXX shall comply with all the requirements identified in the IGP/CGP. Non-adherence with the requirements identified in the IGP/CGP may constitute a violation of the Clean Water Act and the Xxxxxx-Cologne Water Quality Control Act and may be grounds for enforcement action by the RWQCB. Any fines incurred by Owner due to XXXX'x noncompliance with the requirements of the IGP/CGP shall be back-charged by Owner to XXXX.
(e) XXXX'x compliance with IGP/CGP includes, but is not limited to:
(i) Developing a SWPPP to conform to a Risk Level 2 and XXXX'x actual construction practices;
(ii) Tasks to be performed by QSP, including administering, implementing, maintaining, and ensuring adequate functioning of the various water quality control measures identified within the applicable SWPPP during construction including all Numeric Action Level (NAL) and Numeric Effluent Limitation (NEL) sampling, monitoring, and reporting requirements statutorily required for the determined Risk Level of the Project site;
(iii) Providing and maintaining all documentation (at the work site) and administration for the entire Contract period;
(iv) Performing all work required for compliance with the requirements of the IGP/CGP including preparation of all REAPs, and constructing effective treatment control BMPs, i.e.: contingency basins, chemical treatments, etc. (if applicable); and
(v) Providing all labor, tools, equipment, materials, and incidentals for any additional BMPs not shown or identified in the applicable SWPPP which may be required to comply with the requirements of the IGP/CGP or when requested by the Owner.
(f) XXXX shall not be entitled to any time extensions or compensation for any cost due to any action required as a result of XXXX'x failure to comply with those provisions of the applicable SWPPP within XXXX'x control. XXXX shall be responsible for ensuring that its Subcontractor(s) comply with the provisions of this Section. XXXX shall be liable for any action, fine, or civil liability imposed by the regulatory agencies for incidents of noncompliance that are within XXXX'x area of responsibility.
13.21. HAZARDOUS OR CONTAMINATED MATERIALS
13.21.1. XXXX is responsible for proper handling, storage, transportation, and disposal (per all federal, State and local regulations) of any hazardous wastes, liquid wastes, or nuisance wastes (for example, finely divided, powdery, or dusty materials, strong odors, etc.) that it generates while working on Owner's behalf.
13.21.2. As provided by the "CONTRACT TIME" Section of the Agreement, XXXX must submit for Owner's review an Emergency/Contingency Plan for handling spills of hazardous, liquid, or nuisance materials while working on Owner's behalf. The Plan shall include proper handling, removal, and disposal of these materials per all applicable federal and State requirements. The Emergency/Contingency Plan shall also include emergency notification to Owner and any other notifications as required by law. XXXX shall not commence work at the site until Owner has approved XXXX'x Emergency/Contingency Plan.
13.21.3. XXXX must restore any spill-damaged areas to their original condition in a correct and timely manner and to the satisfaction of Owner.
13.21.4. XXXX shall remove and dispose of any materials that become contaminated directly or indirectly as a result of the XXXX'x operations, whether or not such contamination involves hazardous materials. The removal and disposal of any contaminated materials associated with this Contract shall be completed by the XXXX to the satisfaction of Owner at no additional cost to the Owner. XXXX shall execute all necessary manifests, bills of lading, or similar documents ("Manifests") concerning such contaminated materials which shall identify XXXX as the generator of the materials.
13.21.5. Prior to shipment, XXXX shall provide copies of all Manifests to the Owner to verify that XXXX has arranged for the proper disposal of hazardous materials to a licensed, permitted facility. XXXX shall provide to Owner proof of proper disposal of such materials. If Manifests and proof of proper disposal are not submitted, Owner may withhold or deduct directly the estimated cost of removal and disposal from amounts otherwise due XXXX, plus a 5% administration fee, until XXXX submits Manifests and proof of disposal.
13.21.6. Owner has the authority to perform inspections of the XXXX'x work area at any time to ensure XXXX is compliant with all applicable regulations.
13.21.7. Upon written notice from Owner, if XXXX does not remove contaminated materials immediately, Owner may remove, process, transport, and certify the material as stated above and all costs incurred by Owner for removal and disposal, plus a 5% administrative fee, will be deducted directly from amounts otherwise due XXXX. If Owner performs such decontamination, XXXX shall sign any Manifests for that material as the generator.
13.21.8. XXXX shall train its employees, as required by OSHA and California Code of Regulations Title 8, in the proper handling, storage, transportation and disposal of hazardous materials. XXXX
shall train its employees to follow the Emergency/Contingency Plan and know immediate response procedures should a release occur.
13.21.9. XXXX shall keep appropriate emergency response equipment and materials available in the working area at all times.
13.21.10. Maintenance Facilities and Work Area: XXXX shall maintain its equipment in an area identified, acquired, and specified in Contract Documents by the XXXX and approved by Owner for such purposes. Certain maintenance areas have been designated at the Owner facility for the purpose of maintaining Owner equipment. XXXX may utilize a Owner maintenance area only with the express permission of the Owner. Owner may designate a different maintenance area for XXXX'x use at any time, and XXXX will not be entitled to a Change Order as the result of such relocation.
13.21.11. XXXX'x maintenance activities shall conform to the provisions of the “REGULATORY COMPLIANCE REQUIREMENTS” Section of the General Conditions. XXXX shall keep the facility clean, maintain clean equipment, and dispose of any contaminated materials in accordance with the “HAZARDOUS OR CONTAMINATED MATERIALS” Section, above. XXXX shall store all maintenance materials in accordance with the "XXXX'X STORAGE AND PROTECTION OF PRODUCTS" Section.
13.21.12. XXXX shall be responsible for any damage it causes to the designated area and for restoring the area to its original condition when XXXX ceases using the area. XXXX shall repair any damage and perform such restoration. If XXXX fails to perform such repair or restoration in a timely manner, Owner may perform that work and XXXX shall reimburse Owner for repair or restoration costs plus a 5% administrative fee.
13.22. FUGITIVE DUST EMISSION CONTROL
XXXX shall comply with SCAQMD Rule 403 including, if applicable, to prepare and submit to Owner and for acceptance by SCAQMD a Fugitive Dust Emission Control Plan, as required for Project work. XXXX shall also notify Owner of any condition that could lead to noncompliance with the permit Rule 403 requirements. If a Fugitive Dust Emissions Control Plan is required pursuant to Rule 403, XXXX may not conduct any activities governed by SCAQMD Rule 403 until Owner has accepted XXXX'x Plan and the Plan is accepted by SCAQMD. If XXXX fails or refuses to immediately correct any noncompliance with the provisions of this Section, Owner may terminate XXXX'x right to proceed with the work and Owner may exercise its rights under the "TERMINATION FOR CAUSE" Section of these General Conditions.
Whether or not XXXX'x right to proceed with the work is terminated, XXXX and the XXXX'x sureties shall be liable for any damage to the Owner resulting from XXXX'x refusal or failure to complete the work within the specified time.
XXXX shall not be entitled to any time extensions or compensation for any cost due to any such action as a result of XXXX'x failure to comply with the provisions of the accepted Fugitive Dust Emission Control Plan. XXXX shall be responsible for ensuring that all Subcontractor(s) comply with the provisions of this Section. XXXX shall be liable for any action or fine imposed by the SCAQMD on those incidents of noncompliance that are within the XXXX'x area of responsibility.
13.23. BIOLOGICAL AND HABITAT PROTECTION
Owner will inform XXXX of any biological resources that would or could be impacted by the Project, and specify any required mitigation measures or procedures to protect those resources during construction. XXXX shall be responsible for complying with these protection measures, and for ensuring that all Subcontractors also comply. Owner has the authority to perform inspections of XXXX'x work area at any time to ensure that these measures or procedures are being followed.
13.24. RED IMPORTED FIRE ANT INTERIOR QUARANTINE OF ORANGE COUNTY
XXXX shall be responsible for strict compliance with the quarantine of the County of Orange for the red imported fire ant ("RIFA") as defined in California Code of Regulations, Title 3, Section 3432 and incorporated herein by reference. XXXX shall arrange for any California Department of Food and Agriculture inspections, certifications, or approvals necessary to perform any portion of the Project. A copy of the form used to request such inspections is available from OC Planning. XXXX shall bear the full financial responsibility of any assessed fine or penalty resulting from XXXX'x violation of any law, regulation, or permit related to RIFA control. XXXX shall submit to Owner for Owner's approval an acceptable detailed incident report within 5 working days of the date of any violation or not later than 5 working days from the date of the notification of the violation, whichever is later.
13.25. COMPLIANCE WITH “PERFORMANCE” SECTION
XXXX shall not be entitled to any time extensions or compensation for any cost due to any action required as a result of the XXXX'x failure to comply with the requirements of this “PERFORMANCE” Section. XXXX shall be responsible for ensuring that the XXXX'x Subcontractor(s) comply with the provisions of this Section. XXXX shall be liable for any fine or penalty imposed by any regulatory agency or for any other cost incurred by Owner as a result of regulatory noncompliance arising from any action or inaction of XXXX or its Subcontractor(s).
14.2. CHANGE ORDERS
Owner may, at any time, by written order, and without notice to the sureties, request changes to the Contract Documents if within the general scope of the Project.
14.2.1. Owner’s Change Order Requests: Owner shall issue a written request (“Change Order Request”) which shall set forth in reasonable detail the nature of the change and the type of quote requested (lump sum or time-and-materials with a not-to-exceed amount) and whether such change involves additions, deletions, or other revisions to the Contract Documents. Within 7 days of receiving Owner's Change Order Request, XXXX shall present to Owner a detailed proposal for change in Contract Price and/or a change in the Contract Time from that set forth in the Agreement. If such change causes an increase or decrease in XXXX'x cost or the time required for performance of the work, an equitable adjustment shall be made and the Contract Price and/or Contract Time modified in writing accordingly by a Change Order.
14.2.2. XXXX’x Request for Change: If XXXX believes that a change in the Contract Documents, including any change in Contract Price or Contract Time, is appropriate, it shall submit, within 7 days of the event giving rise to the proposed change, a written request ("Request for Change") to Owner to issue a Change Order. Timely notice to Owner is essential to Owner’s identification, prioritization, and response to claimed changes, including any claimed delays, and XXXX’x failure to give Owner timely notice of such claims shall be presumed to be prejudicial to Owner. XXXX’x failure to submit a notice to Owner within 7 days after the date XXXX first recognized, or should have recognized in the exercise of ordinary care, any event giving rise to any proposed change shall constitute a waiver by XXXX of any request for or entitlement to an increase in the Contract Price or Contract Time.
XXXX’x Request for Change shall include a description of the proposed change in the Contract Documents, the event or circumstance giving rise to the need for the change, and any proposed change in the Contract Price and/or Contract Time associated with the Request for Change. If the Request for Change includes a proposal to increase the Contract Time, XXXX shall include a description of: (1) the cause(s) for the proposed extension of time, including but not limited to causal events and responsible persons and organizations; (2) the dates (or anticipated dates) of performance of the changed work; (3) activities on the Accepted Project Schedule affected by the change, any new activities created by the change, and their relationship with existing activities; (4) the anticipated extent of any claimed increase to the Contract Time; and (5) recommended action to avoid or minimize the increase. If Owner agrees that a
change in the Contract Documents is appropriate, Owner may use the same options described in the "Lump Sum Change Orders" and "Time-and-Materials Change Orders" Sections below in response to XXXX'x Request for Change. XXXX waives all claims as to which it has not provided Owner with notice through a Request for Change in accordance with this Section. In the event of a claim or litigation arising from any disagreement involving XXXX'x Request for Change, XXXX'x compensation (if any) shall be limited to an amount calculated in accordance with the "Time-and-Materials Change Orders" Section below.
14.2.3. Lump Sum Change Orders: For a lump sum change, XXXX'x quote shall be itemized and supported with sufficient substantiating data (including but not limited to detailed subcontractor estimates, supplier quote sheets, prices, invoices, and rate sheets) to permit evaluation with respect to the following costs:
(a) Labor (show hourly rate multiplied by estimated hours);
(b) Payroll taxes on labor;
(c) Materials, supplies, and equipment (include unit costs and estimated quantities);
(d) Machinery and equipment rental (include rental rates and estimated durations);
(e) Sales, use, or similar taxes related to the work;
(f) Other Items: Owner may authorize other items that may be required for the changed work. Such items include labor, services, material, and equipment that are different in their nature from those required for the work and that are of a type not ordinarily available from XXXX or any of its subcontractors;
(g) Reasonable overhead and profit associated with the change, not to exceed 15% on above items if XXXX uses its own forces to perform changed work. If XXXX'x subcontractor's forces perform changed work, then the subcontractor shall be entitled to a maximum of 15% on above items and XXXX shall be entitled to a maximum of 6% on above items for its overhead and profit on the changed work. Owner will pay only one overhead and profit markup of 6% for XXXX and one markup of 15% for the subcontractor in connection with changed work, regardless of the actual number of intervening subcontractors involved in the changed work; and
(h) Premiums for all bonds and insurance (the maximum amount for this shall be 3% of above items and XXXX shall provide documentation demonstrating it will actually incur an increase in insurance costs directly attributable to the change).
Owner may reject XXXX'x lump sum proposal, may negotiate with XXXX a revision of the requested change and associated lump sum proposal, or may approve the XXXX'x lump sum proposal and incorporate it into a Change Order.
14.2.4. Time-and-Materials Change Orders: For a time-and-materials change, Owner shall determine the adjustment to the Contract Price on the basis of actual costs as follows:
(a) Cost of materials and supplies (show actual unit cost multiplied by actual quantity). The cost of materials shall be at invoice price or the lowest current price at which such materials are locally available and delivered to the job site in the quantities involved, plus freight and delivery. Owner reserves the right to approve materials and sources of supply or to supply materials to XXXX if necessary for the progress of the work. No markup for overhead and profit shall be applied to any material provided by Owner.
(b) Tool and equipment rental. Owner will not pay for the use of tools that individually have a replacement value of $200 or less. Regardless of ownership, the equipment rental rates shall be based upon the edition of equipment rental rates published by the Caltrans Division of Construction, or locally available rate or other reference acceptable to Owner current as of the date the changed work is performed. The rental rates paid shall include the cost of fuel, oil
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lubrication, supplies, small tools, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, and all incidents. Necessary loading and transportation costs for equipment used on the changed work shall be included. If equipment is used intermittently and, when not in use, could be returned to its rental source at less expense to Owner than holding it at the work site, it shall be returned, unless XXXX elects to keep it at the work site at no expense to Owner. All equipment shall be acceptable to Owner, in good working condition, and suitable for the purpose for which it is to be used. Manufacturers' ratings and approved modifications shall be used to classify equipment and it shall be powered by a unit of at least the minimum rating recommended by the manufacturer. The reported rental time for equipment already at the work site shall be the duration of its use on the changed work, commencing at the time it is first put into actual operation on the changed work, plus the time required to move it from its previous site and back or to a closer site. XXXX shall submit invoices for tool and equipment rental costs. If XXXX does not submit invoices, Owner may establish the rental costs at the lowest price which was current at the time the changed work was performed.
(c) Cost of labor (show actual total hourly rate multiplied by actual hours spent on changed work). The costs of labor shall not exceed the wages prevailing for each craft or type of workers performing the changed work at the time the changed work is done. The costs of labor shall include the actual basic hourly rate, plus employer's actual regular payments for health and welfare, pension, vacation or holiday, training, and other direct costs resulting from federal, State or local laws, as well as assessments or benefits required by lawful collective bargaining agreements and shall be supported by payroll records. The costs of labor shall not include any amount for bonuses or extraordinary vacation or holidays. The use of a labor classification that would increase the changed work cost will not be permitted unless XXXX establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental. The labor cost for foremen shall be proportional to all of their assigned work and only that applicable to changed work shall be paid. Non-direct labor costs including superintendence shall be considered part of the markup for overhead and profit below.
(d) Sales taxes on materials (percentage of item (a), above).
(e) Payroll tax on labor (percentage of item (c), above).
(f) Insurance (workers' compensation and liability insurance).
(g) Other Items. Owner may authorize other items that may be required for the changed work. Such items include labor, services, material, and equipment that are different in their nature from those required for the work and that are of a type not ordinarily available from XXXX or any of its subcontractors. XXXX shall submit invoices covering all such items in detail.
(h) Overhead and profit. XXXX shall receive a maximum % for overhead and profit on above items if XXXX uses its own forces to perform changed work. If XXXX'x subcontractor's forces perform changed work, then the subcontractor shall be entitled to a
to a maximum of
% on above items for its overhead and profit and XXXX shall be entitled
% on above items for its overhead and profit on the changed work.
Owner will pay only one overhead and profit markup of % for XXXX and one markup of
% for the subcontractor in connection with changed work, regardless of the actual number of intervening subcontractors involved in the changed work. Owner will not pay any overhead or profit for omitted work.
(i) Bond ( % of above items).
XXXX shall keep and present, in such form as Owner may prescribe, an itemized accounting of the costs or savings attributable to the changed work, together with appropriate supporting data. The accounting shall include a daily job record in quadruplicate containing a detailed
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description of: the labor (workers, classifications, and hours worked); quantities of materials used; equipment used (identifying the equipment and the hours of use); and any other services and expenditures in such detail as Owner may require. Upon being signed and agreed to by Owner and XXXX at the end of each day's performance, the daily job record will become the basis for payment for the changed work. But such agreement shall not preclude the Owner from thereafter conducting an audit and adjusting the basis for payment. Failure by XXXX to submit the daily report by the close of the next working day may constitute a waiver of any rights for that day. Upon request by Owner, XXXX shall permit Owner to inspect XXXX'x original estimate for the Project, subcontract agreements, or purchase orders relating to the change. Upon completion of the changed work ordered to be performed on a time and materials basis, Owner will then issue a unilateral Change Order adjusting the Contract Price according to the actual costs incurred and, if appropriate, adjusting the Contract Time.
14.2.5. Unilateral Change Orders: If Owner and XXXX cannot reach an agreement on a proposed change, Owner may issue a Unilateral Change Order directing work on a time-and-materials basis as set forth above.
14.2.6. No Extension of Contract Time without Critical Path Delay: XXXX shall not be entitled to an extension of the Contract Time unless XXXX demonstrates a delay to the critical path shown on the most recent Accepted Project Schedule.
14.2.7. No Additional Compensation for Early Completion: Nothing contained in the Contract Documents creates any contractual right, express or implied, on the part of XXXX to early completion of the Project. Under no circumstances shall Owner owe additional compensation to XXXX for XXXX’x inability to achieve completion of the Project before the expiration of the Contract Time, whether or not such inability is caused by the acts or omissions of Owner or any other party for which Owner is responsible, regardless of any approval by Owner of the Accepted Project Schedule.
14.2.8. Credits: Regardless of whether the equitable adjustment associated with changed work is recorded through a lump sum or time-and-materials Change Order: (1) if the net value of a change to the work results in a credit from XXXX, then the credit given shall include costs as well as overhead and profit; or (2) if the net value of a change to the work results in additional costs, then overhead and profit will only be applied to the amount by which the added costs of the change exceed the credited amount. When a change proposed by Owner results in the deletion of work and the Owner and XXXX are unable to agree upon the cost, overhead, and profit thereof, the Owner's estimate of the cost, overhead, and profit shall be deducted from the Contract Price by a Change Order unless within 15 days of receiving the Owner's estimate XXXX presents proof that the Owner's estimate is in error.
14.2.9. Overhead and Profit: XXXX shall receive a maximum _% for overhead and profit on above items if XXXX uses its own forces to perform changed work. If XXXX'x subcontractor's forces perform changed work, then the subcontractor shall be entitled to a maximum of % on above items for its overhead and profit and XXXX shall be entitled to a maximum of 6% on above items for its overhead and profit on the changed work. Owner will pay only one overhead and profit markup of % for XXXX and one markup of % for the subcontractor in connection with changed work, regardless of the actual number of intervening subcontractors involved in the changed work. Owner will not pay any overhead or profit for omitted work.
Regardless of whether the equitable adjustment associated with changed work is recorded through a lump sum or time-and-materials Change Order, the amount Owner pays for overhead and profit shall be XXXX'x only compensation for: all costs of supervision, superintendence, and scheduling; wages of timekeepers, watchmen, and clerks; tools individually valued at $200 or less; incidentals; any and all field and home office expenses; costs of estimating and preparing change orders; all impact costs including but not limited to lost productivity associated with
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"learning curves," "productivity factors," and "ripple effects"; and all other expenses not included in itemized costs.
14.2.10. Compensation for Delay: XXXX shall be compensated for its substantiated actual, direct expenses, together with the markup for overhead and profit described in “Overhead and Profit” above, resulting from delay for which Owner is responsible. Under no circumstances shall Owner compensate XXXX for extended home office overhead or profit based on an “Eichleay formula” or any other proportionate allocation of XXXX’x overhead expenses or profit, all of which shall be deemed to have already been included in the above-described markup.
14.2.11. Unit Price Changes: If a change is ordered in an item of work covered by a Contract Unit Price, and such change does not involve substantial change in character of the work from that shown on the Plans or Special Provisions, then an adjustment in payment will be made. This adjustment will be based upon the increase or decrease in quantity and the Contract Unit Price. If the actual quantity of an item of work covered by a Contract Unit Price and constructed in conformance with the Plans and Special Provisions varies from the GMP Proposal quantity by 25% or less, payment will be made at the Contract Unit Price. If the actual quantity of the item of work varies from the GMP Proposal quantity by more than 25%, then payment will be made as described in Subsection (a) “Increases of More than 25%,” or Subsection (b) “Decreases of More than 25%,” below, as appropriate. If a change is ordered in an item of work covered by a Contract Unit Price, and such change involves a substantial change in the character of the work from that shown on the Plans or Special Provisions, an adjustment in payment will be made as described in Subsection (c) “Substantial Change in Character of the Work,” below.
(a) Increases of More than 25%: Should the actual quantity of an item of work covered by a Contract Unit Price and constructed in conformance with the Plans and Special Provisions exceed the GMP Proposal quantity by more than 25%, then payment for the quantity in excess of 125% of the GMP Proposal quantity will be made on the basis of an adjustment in the Contract Unit Price mutually agreed to by the XXXX and Owner or, at the option of Owner, on the basis of Time and Materials Change Orders, described above. However, in no event will payment be more than would be paid for the actual quantity at the Contract Unit Price.
(b) Decreases of More than 25%: Should the actual quantity of an item of work covered by a Contract Unit Price, and constructed in conformance with the Plans and Special Provisions, be less than 75% of the GMP Proposal quantity, then an adjustment in payment will not be made unless XXXX requests an adjustment in writing and adequately demonstrates that the reduction in quantity has increased XXXX'x per-unit cost of performing the work item. If XXXX so requests, payment will be made on the basis of an adjustment in the Contract Unit Price mutually agreed to by XXXX and Owner, or at the option of Owner, on the basis of Time and Materials Change Orders, described above. However, in no case will payment be less than would be made for the actual quantity at the Contract Unit Price nor more than would be paid for 75% of the GMP Proposal quantity at the Contract Unit Price.
(c) Substantial Change in Character of Work: If a change in an item of work covered by a Contract Unit Price involves a substantial change in the character of work from that shown on the Plans or Special Provisions, then an adjustment to the payment for the Work may be made by mutual agreement of XXXX and Owner as an adjustment to the Contract Unit Price, as a Lump Sum Change Order, or at Owner's option as a Time and Materials Change Order, as described above.
14.3. DELAYS DUE TO WEATHER AND FORCE MAJEURE
14.3.1. Subject to the other provisions of these Contract Documents, XXXX may be entitled to an extension of the Contract Time, but no damages or increase in the Contract Price, for delays arising from the following causes when they occur beyond XXXX'x or its Subcontractors' control, fault, or negligence:
(a) Acts of God (tornadoes, fires, hurricanes, blizzards, earthquakes, typhoons, or floods), war, civil unrest, trade embargoes, labor disputes, or strikes necessitating stoppage of work; or
(b) Weather days necessitating stoppage of work in excess of the number of anticipated weather days specified in the “CONTRACT TIME” Section of the Agreement. The Contract Time shall be deemed to take into account the number of working days specified in the Agreement (“anticipated weather days”) that stoppage of work can reasonably be expected at the Project site due to rain or other adverse weather conditions, and XXXX agrees that the number of weather days indicated in the Agreement is a reasonable approximation of the number of weather days that may impact the work. XXXX'x construction schedule shall include this number of anticipated weather days. Time extensions for weather days will only be considered when the number of days in question exceeds the number of days specified in the Agreement, those days impact a critical path element of the Project, and XXXX cannot redirect work efforts to unaffected portions of the Project. If XXXX believes that the progress of the work has been adversely affected by weather, XXXX shall submit a written request for extension of time to Owner.
14.3.2. A written request for any extension of the Contract Time shall be delivered to Owner within 7 days of the first date of commencement of each delay. XXXX'x failure to submit such request within the time specified will be considered grounds for refusal by Owner to consider such request.
14.3.3. If the Project involves the construction of a permanent structure, no extensions of time will be made for weather after the principal portions of the work are enclosed. Owner shall determine when the structure is "enclosed" for purposes of this provision.
14.3.4. Extensions of time due to weather or force majeure, when granted, will be on the basis of 1.4 calendar days credit for every working day lost, with the credit for each separate extension rounded off to the nearest whole calendar day. A “working day lost” will not include any day during which at least 60% of the normally scheduled workforce is able to work for at least five hours of the day.
14.3.5. XXXX shall not be entitled to any extension under this Section if the unforeseen circumstances occur beyond the Contract Time.
14.4. CONDITIONS AFFECTING THE WORK
14.4.1. Existing Site Conditions: Information regarding the work site represented in the Plans and Special Provisions prepared by the XXXX is believed to be correct, and unless expressly stated in the Contract Documents, Owner does not warrant either the completeness or accuracy of such information. XXXX shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work and the general and local conditions that can affect the work or the cost thereof. Any failure by XXXX to do so will not relieve XXXX from responsibility for successfully performing the work without additional expense to Owner.
14.4.2. Site Investigation and Representation: XXXX acknowledges satisfaction as to the nature and location of the work; the general and local conditions, particularly those bearing upon availability of transportation and access to the site; disposal, handling and storage of materials; availability of labor, water, electric power, telephone, and roads; uncertainties of weather or physical conditions at the site; the conditions of the ground; the character of equipment and facilities needed prior to and during the performance of the work; and all matters that can in any way affect the work or the cost thereof under this Contract.
XXXX further acknowledges satisfaction as to character, quality, and quantity of surface and subsurface materials to be encountered from XXXX'x inspection of the site and pre-construction exploratory work by XXXX included in the Contract Documents. Failure by XXXX to become acquainted with the physical conditions of the site and all the available information will not
relieve XXXX from responsibility for properly estimating the difficulty or cost of successfully performing the work.
XXXX warrants that as a result of examination and investigation of all the above-described data, XXXX can perform the work in a good and workmanlike manner and to the satisfaction of Owner. Owner assumes no responsibility for any representations made by any of its officers or agents during or prior to the execution of the Contract unless: (1) such representations are expressly stated in the Contract Documents; and (2) the Contract Documents expressly provides that the responsibility therefore is assumed by Owner.
(a) Subsurface Investigation: When test holes, if any, have been excavated to indicate subsurface materials at particular locations, Owner assumes no responsibility whatsoever in respect to the sufficiency or accuracy of borings made, or of the log of test borings, or of other investigations, or of the interpretations made thereof, and there is no warranty or guarantee, either express or implied, that the conditions indicated by such investigations are representative of those existing throughout such area, or any part thereof, or that unforeseen developments may not occur. A log of test borings, if any, showing a record of the data obtained on subsurface conditions may be examined upon request. XXXX may make arrangements with Owner for permission to conduct such additional subsurface investigation as may be necessary to verify existing conditions. XXXX shall examine the site and may make arrangements with Owner to conduct XXXX'x own additional subsurface investigation.
14.4.3. Changed Conditions: XXXX shall promptly, but in no event more than 7 days after the condition is first observed, notify Owner in writing of the following site conditions ("Changed Conditions") and shall leave such conditions undisturbed until otherwise directed by Owner:
(a) Subsurface or latent physical conditions at the site differing materially from those investigated by XXXX during pre-construction and as such represented in the Contract Documents;
(b) Unknown physical conditions at the site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract; and
Upon written notice of Changed Conditions from XXXX, Owner shall promptly investigate such conditions. If Owner finds that such conditions do materially differ and cause an increase or decrease in the cost of or the time for performance of the work, Owner may, at its discretion: (a) terminate all or part of the Contract in accordance with "TERMINATION FOR CONVENIENCE OF OWNER" Section of these General Conditions; (b) issue a written change to the Contract in accordance with the "CHANGES" Section of these General Conditions; or (c) make any other appropriate arrangements to address the Changed Conditions. Any claim by XXXX for adjustment hereunder shall not be allowed unless XXXX has given proper notice.
In the event that a dispute arises between the Parties as to whether the conditions constitute Changed Conditions or affect the price or time for performance of any part of the work: (i) XXXX shall submit a written notice of potential claim to Owner; (ii) XXXX shall then proceed with all work to be performed under the Contract; and (iii) XXXX shall not be excused from any scheduled completion date provided for by the Contract. XXXX shall retain any and all rights provided either by the Contract or by law which pertain to the resolution of disputes between the Parties.
14.5. PROSECUTION OF CHANGED WORK
XXXX shall promptly proceed with the work described in a Change Order. Nothing provided in this "CHANGES" Section shall excuse the XXXX from proceeding with the prosecution of the work as changed.
14.6. DIRECTOR'S AUTHORITY
The Director is authorized by Owner's Board of Supervisors to order changes or additions in the work where the cost of such change does not exceed the limits specified in Public Contract Code Section 20142. Only the Board of Supervisors may approve changes greater than those limits.
14.7. MINOR CHANGES IN THE WORK
Owner shall have authority to order minor changes in the work not involving an adjustment in the Contract Price or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on XXXX. XXXX shall carry out such written orders promptly.
15.1. TERMINATION FOR CONVENIENCE OF Owner
Notwithstanding any other provision of the Contract, Owner may at any time and without cause terminate the Contract, in whole or in part, upon not less than 30 days written notice to the XXXX. Such termination shall be effected by delivery of a Notice of Termination to XXXX specifying the effective date of the termination, whether the Contract shall be terminated in whole or in part, and, if applicable, the portion of work to be terminated. XXXX shall immediately stop work in accordance with the Notice of Termination and comply with any other direction as may be specified in the Notice of Termination or as provided subsequently by Owner. Owner shall pay XXXX for the work completed and accepted by Owner prior to the effective date of the termination, and such payment shall be XXXX’x sole remedy. Under no circumstances will XXXX be entitled to anticipatory or unearned profits, consequential damages, or other damages of any sort as a result of a termination in whole or in part under this provision. XXXX shall insert in all subcontracts that the Subcontractors shall stop work on the date of and, if applicable, the portion of work to be terminated in a Notice of Termination and shall require Subcontractors to insert the same condition in any lower tier subcontracts.
15.2. TERMINATION FOR CAUSE
15.2.1. If XXXX fails to carry out the requirements of the Contract, including but not limited to by: failing to commence the work within the time specified; failing to prosecute the work with such diligence as will ensure its completion within the Contract Time; failing to complete the work within the Contract Time; failing to execute the work in the manner specified in the Contract Documents; persistently, willfully, or knowingly failing to comply with applicable laws and regulations; becoming insolvent; assigning or subcontracting any part of the work without Owner’s consent; or if in the opinion of the Board of Supervisors XXXX is not complying in good faith with the Contract; then Owner may, by written notice to XXXX, terminate for cause XXXX'x right to proceed with the work or such part of the work as to which there has been delay, breach, or other default.
15.2.2. Upon receipt of written notice from Owner of a termination for cause, XXXX shall cease operations as directed by Owner in the notice and take all actions necessary, or as Owner directs, for the protection and preservation of the work.
15.2.3. After issuing a notice of termination for cause, Owner may take over the work and prosecute the same to completion by whatever means Owner deems reasonable, by contract or otherwise, and may take possession of and utilize in completing the work such materials, equipment, supplies, Contract Documents, and other information in whatever form as may be on the site for the work and necessary therefor.
15.2.4. If Owner terminates for cause XXXX’x right to proceed with the work, or XXXX otherwise fails to prosecute the work to completion, then the resulting damage will include but not be limited to Liquidated Damages for such reasonable period of time as may be required for completion of the work together with any costs incurred by Owner to complete the work in excess of the unpaid Contract Price. XXXX shall not be entitled to receive any further payment under the Contract
until the work is complete. If Owner’s cost of completing the work, Liquidated Damages, and other damages exceed the unpaid balance of the Contract Price, then XXXX and XXXX’x sureties shall pay the difference to Owner within thirty days of Owner’s demand therefor.
15.2.5. Whether or not Owner issues a written notice of termination for cause, XXXX and XXXX'x sureties shall be liable for any damage to Owner resulting from XXXX'x refusal or failure to complete the work within the specified time or from XXXX’x other breach or default with respect to the performance of the work.
15.2.6. XXXX'x right to proceed shall not be terminated for cause nor will XXXX be charged with resulting damage if the delay in the completion of the work arises from causes beyond the control and without the fault or negligence of XXXX, including but not limited to those circumstances described in the “WEATHER DAYS AND FORCE MAJEURE” Section of the General Conditions, acts of Owner, or acts of another XXXX in the performance of a contract with Owner.
15.2.7. The rights and remedies of Owner provided in this Section are in addition to any other rights and remedies provided by law or under this Contract.
16. DISPUTES AND CLAIMS
16.1. DISPUTES AND CLAIMS
16.1.1. Continuing Performance during Dispute Resolution: In the event of a claim or dispute between XXXX and Owner as to performance of the work, a demand for an extension of time, the interpretation/implementation of the Contract Documents, or payment or nonpayment for work performed, XXXX and Owner shall attempt to resolve the claim or dispute. Pending resolution of the claim or dispute, XXXX shall continue the work diligently to completion as directed by Owner. If the claim or dispute is not resolved, XXXX agrees that it will neither rescind this Contract nor stop the progress of the work.
16.1.2. Claims for $375,000 or Less: In the event of a claim of $375,000 or less, the Parties shall resolve the claim pursuant to Public Contract Code Sections 20104 et seq., summarized herein. A claim is defined as XXXX’x demand for: (i) a time extension; (ii) payment of money or damages arising from work done by, or on behalf of, XXXX pursuant to the Contract and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to; or (iii) an amount the payment of which is disputed by Owner.
(a) Pursuant to Public Contract Code Section 20104.2, all claims must be in writing, must be accompanied by documents necessary to substantiate the claims, and must be filed on or before the date of final payment. The Owner's time to respond in writing and/or request additional documentation shall be as set forth in Public Contract Code Section 20104.2.
(b) If XXXX disputes Owner's written response or Owner fails to respond, XXXX may demand an informal conference. If the claim remains in dispute following the conference, XXXX may file a claim under Government Code Sections 900, et seq. The time limit for filing such claim may be tolled as provided in Public Contract Code Section 20104.2(e).
(c) The foregoing provisions do not apply to tort claims and do not affect the time periods for filing tort claims.
(d) In the event a civil action is filed stemming from a claim subject to Public Contract Code Sections 20104 et seq., the Court shall submit the matter to nonbinding mediation unless waived by mutual stipulation. If after mediation the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Code of Civil Procedure Section 1141.11, and the arbitration shall proceed pursuant to the terms set forth in Public Contract Code Section 20104.4(b).
(e) Attorney's fees arising from a trial de novo shall be awarded as provided by Public Contract Code Section 20104.4(b)(3).
16.1.3. Claims in Excess of $375,000: The dispute resolution procedure set forth in Public Contract Code Sections 20104 et seq., shall not apply to resolution of claims in excess of $375,000, which claims shall be resolved by a court of competent jurisdiction in Orange County, California, after the Project has been completed and not before.
16.1.4. Time for Submitting Claims in Excess of $375,000 and Waiver of Untimely Claims: XXXX shall submit any claim for additional compensation in excess of $375,000 to Owner in writing, with documents necessary to substantiate the claim, stating the alleged facts giving rise to and the alleged basis for the claim, and when the facts giving rise to the claim became known to XXXX. Any such claim that XXXX fails to submit to Owner within 30 days after XXXX discovers the facts giving rise to the claim shall be deemed waived. In no event shall a claim for additional compensation in excess of $375,000 be asserted after XXXX submits an application for final payment or after there has been a cessation of the work.
17.1. PARTIAL OCCUPANCY
17.1.1. Owner reserves the right to enter and install equipment within each portion of the Project as it is ready to receive same, upon the condition that XXXX shall not be responsible for equipment so placed other than loss or damage caused by the acts or omissions of XXXX or those in XXXX'x employ. Such partial occupancy by Owner shall not constitute acceptance of the Project or of work not completed in accordance with the Contract Documents, nor shall it in any way relieve XXXX from correcting defective workmanship or materials in the area where Owner has installed equipment.
17.1.2. Owner reserves the right to take possession of or use all or part of any work prior to completion and final acceptance of all the work. If Owner exercises this right, XXXX shall be relieved of liability for loss or damage to completed portions of the work other than loss or damage caused by the acts, omissions, or breaches of warranty by XXXX. Such taking of possession by Owner shall not relieve XXXX from any other provisions of the Contract Documents, shall not constitute a final acceptance of any such work or of work not completed in accordance with the Contract Documents, and shall not relieve XXXX from responsibility for correcting defective workmanship or materials in the area so occupied.
17.1.3. Owner may at any time during the performance of the work enter the work area for the purpose of performing any necessary work by Owner labor or other CMARs, and for any other purpose in connection with the installation of facilities. In doing so, Owner shall endeavor not to interfere with XXXX, and XXXX shall not interfere with other work being done by or on behalf of Owner.
Unless otherwise provided in the Contract Documents, Owner’s acceptance of XXXX’x work shall be accomplished by Owner recording a Notice of Completion as promptly as practicable after completion, inspection, and testing of all work required by the Contract Documents. Owner’s acceptance of the work shall be the start date of XXXX’x obligations under the “TWO-YEAR CORRECTION PERIOD” Section of the General Conditions, and of the manufacturers’ and installers’ warranties required by the Contract Documents. Owner’s acceptance of the work shall not be construed to limit Owner’s rights under the Contract Documents or release XXXX from any responsibility for latent defects, for correcting Defective Work, or for honoring any warranty obligations of the Contract Documents.
19. MISCELLANEOUS PROVISIONS
Neither the Contract nor any portion thereof may be assigned by XXXX unless approved in writing by Owner. If XXXX is not a corporation with publicly traded stock, then the transfer of more than 10% of
the stock held by shareholders of the corporation or a change in the composition of the board of directors of the corporation shall be deemed an assignment for purposes of this clause. Any attempted assignment contrary to the provisions of this Section shall be void.
Notwithstanding the foregoing, claims for monies due or to become due to XXXX from Owner under the Contract may be assigned with the written consent of the Director to a surety, bank, trust company, or other financial institution and may thereafter be further assigned or reassigned to any such institution. To effect such assignments, XXXX, or XXXX'x assignee, shall submit a written request to Owner enclosing a letter from the proposed assignee indicating that it will accept such assignment.
19.2. ORAL MODIFICATION
No oral statement shall in any manner modify the Contract. All changes to the Contract must be in writing.
19.3. NO WAIVER BY Owner
No failure on the part of Owner to exercise any right or remedy under the Contract Documents shall operate as a waiver of any other right or remedy that Owner may have. A waiver by Owner of any breach or failure to perform under the Contract Documents shall not constitute a waiver of any subsequent breach or failure. The failure of Owner to enforce a requirement of the Contract Documents in one or more instances shall not preclude Owner from subsequently enforcing such requirement(s).
19.4. RECORDS, AUDITS, AND INSPECTION RIGHTS
XXXX shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract. XXXX’x accounting and control system shall be in accordance with generally accepted accounting practices of the construction industry. XXXX shall preserve all of its books and records relating to this Contract, including but not limited to its job cost records, payables/receivables records, accounting books, bids, cancelled checks, receipts, subcontracts, purchase orders, journals, vouchers, payrolls, correspondence, drawings, daily logs, photographs, and memoranda, for a period of 4 years after final payment. Should XXXX cease to exist as a legal entity, XXXX shall forward its records pertaining to this Contract to the surviving entity in a merger or acquisition, or, in the event of liquidation, to Owner.
Owner, the California State Auditor, and their contracted representatives, shall have the right to examine and audit XXXX’x accounting procedures and internal controls of XXXX’x financial systems and to inspect and copy any books and records relating to this Contract. Such an examination, audit, and/or inspection may be requested at any time during the Project. XXXX shall cooperate fully with Owner and the California State Auditor in the conduct of such examinations, audits, and inspections, shall grant full access at all reasonable times to its offices, the Project site, and its books and records relating to the Contract, and shall allow Owner to interview XXXX’x employees who might reasonably have information related to XXXX’x books and records, provided that Owner has given XXXX at least one working day’s advance notice of Owner’s or the California State Auditor’s intent to examine, audit, inspect, and interview employees. All examinations, audits, inspections, and interviews shall be conducted during normal business hours. XXXX shall include in all its subcontracts a provision giving Owner and the California State Auditor the same rights to examine and audit the Subcontractor’s accounting procedures and internal controls of its financial systems, inspect the Subcontractor’s books and records relating to the Project, and interview Subcontractor’s employees as XXXX has given the Owner and the California State Auditor in this Section.
Pursuant to the California Public Records Act (“CPRA”), Government Code Sections 6250 et seq., all records provided by XXXX to Owner are subject to public disclosure upon request except as otherwise provided by law. Prior to their submission to Owner, XXXX shall identify any records it believes are
exempt from disclosure and identify the applicable CPRA exemption. If the disclosure of such records is subsequently requested, Owner will notify XXXX of such request. Unless XXXX obtains a protective order issued by a court restricting disclosure of the requested records, Owner may disclose the records if Owner determines that the Public Records Act requires disclosure. XXXX shall indemnify and defend Owner in any action to compel disclosure of such records.
19.6. PATENT INFRINGEMENT
XXXX shall promptly report to Owner any notice or claim of patent infringement arising from the performance of the Contract. XXXX shall, upon Owner’s request, furnish to Owner any and all information in XXXX’x possession relevant to such notice or claim. XXXX shall indemnify and defend Owner from any and all claims or lawsuits on account of any alleged patent infringement arising out of the performance of the Contract, and shall pay any judgment rendered against Owner, its officers, or its employees resulting from such claim or lawsuit.
19.7. ASSIGNMENT OF ANTITRUST ACTIONS
Public Contract Code Section 7103.5 provides: “In entering into a public works contract or subcontract to supply goods, services, or materials pursuant to a public works contract, the XXXX and/or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Xxxxxxx Act (15 U.S.C. Sec. 15) or under the Xxxxxxxxxx Act (Chapter 2 [commencing with Section 16700] of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the XXXX, without further acknowledgment by the parties.” XXXX acknowledges and agrees to the foregoing provision, and shall cause it to be included in full in its Subcontractor agreement(s) to effectuate this assignment and the requirements of Section 7103.5.
19.8. OWNER’S PROPERTY ON SITE
All of Owner’s property removed or displaced pursuant to this Contract shall remain the property of Owner unless expressly stated otherwise in the Contract Documents, and XXXX shall exercise reasonable care to prevent loss or damage to such property and shall promptly deliver it to the place designated by Owner. In particular, all excavated clean soil is the property of Owner and shall remain on site unless otherwise provided in the Contract Documents or otherwise directed by Owner in writing.
19.9. WRITTEN NOTICE
Any notice required under the Contract Documents to be given to Owner by XXXX shall be in writing and personally delivered to the Project Manager with a copy sent via U.S. mail, addressed as follows:
OC Public Works
«CONTACT», Project Manager re: RFP 080-C22896-NM
000 Xxxxx Xxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000
Notice via electronic mail is insufficient.
***END OF GENERAL CONDITIONS***
<<INSERT SUPPLEMENTARY GENERAL CONDITIONS HERE>>
<<INSERT SPECIAL PROVISIONS-CONSTRUCTION HERE>>