TABLE OF CONTENTS TO THE GENERAL CONDITIONS
1 DEFINITIONS 1
2 STATUS OF CONTRACTOR 2
3 CHANGE IN NAME AND NATURE OF CONTRACTOR'S LEGAL ENTITY 3
4 CONTRACTOR'S SUPERVISION, PROSECUTION AND PROGRESS 3
5 SUBCONTRACTORS 4
6 PROHIBITED INTERESTS 5
7 DISTRICT'S INSPECTOR 5
8 ARCHITECT'S STATUS 6
9 NOTICE OF TAXABLE POSSESSORY INTEREST 7
10 ASSIGNMENT OF ANTITRUST ACTIONS 7
11 OTHER CONTRACTS 8
12 OCCUPANCY 9
13 DISTRICT'S RIGHT TO TERMINATE/SUSPEND CONTRACT 9
14 CONTRACT SECURITY - BONDS 12
15 SUBSTITUTION OF SECURITIES 12
16 FIRE INSURANCE 13
17 PUBLIC LIABILITY, PROPERTY DAMAGE AND COURSE-OF
-CONSTRUCTION INSURANCE 13
18 WORKERS' COMPENSATION INSURANCE 14
19 PROOF OF CARRIAGE OF INSURANCE 15
20 INTERPRETATION OF CONTRACT DOCUMENTS - DRAWINGS
AND SPECIFICATIONS 16
21 OWNERSHIP OF DRAWINGS 18
22 DETAIL DRAWINGS AND INSTRUCTIONS 19
23 SHOP DRAWINGS 20
24 LAYOUT AND FIELD ENGINEERING 22
25 SOILS INVESTIGATION REPORT 22
26 TESTS AND INSPECTIONS 23
27 TRENCHES 23
28 DOCUMENTS ON WORK 24
29 STATE AUDIT 25
30 SUBSTITUTIONS OF SPECIFIED ITEMS 25
31 SAMPLES 27
32 PROGRESS SCHEDULE 28
33 MATERIALS AND WORK 29
34 INTEGRATION OF WORK 30
35 OBTAINING OF PERMITS, LICENSES AND EASEMENTS 30
36 SURVEYS 31
37 EXISTING UTILITY LINES; REMOVAL, RESTORATION 31
38 WORK TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS 32
39 ACCESS TO WORK 32
40 PAYMENTS BY CONTRACTOR 32
41 FIELD OFFICE AND STORAGE FACILITIES 33
42 UTILITIES 33
43 SANITARY FACILITIES 34
44 CLEANING UP 34
45 PATENTS, ROYALTIES, AND INDEMNITIES 35
46 GUARANTEE 35
47 DUTY TO PROVIDE FIT WORKERS 36
48 WAGE RATES, TRAVEL AND SUBSISTENCE 36
49 HOURS OF WORK 38
50 PAYROLL RECORDS 39
51 APPRENTICES 40
52 LABOR - FIRST AID 42
53 PROTECTION OF PERSONS AND PROPERTY 42
54 NON-DISCRIMINATION 45
55 SCHEDULE OF VALUES AND PERIODICAL ESTIMATES 45
56 CONTRACTOR CLAIMS 46
57 DISPUTES - ARCHITECT'S DECISIONS 46
58 PAYMENTS 47
59 CHANGES AND EXTRA WORK 49
60 COMPLETION 57
61 ADJUSTMENTS TO CONTRACT PRICE 57
62 CORRECTION OF WORK 58
63 DELAYS AND EXTENSION OF TIME 58
64 PAYMENTS WITHHELD 59
65 EXCISE TAXES 61
66 NO ASSIGNMENT 61
67 NOTICE AND SERVICE THEREOF 62
68 NO WAIVER 62
Article 1. DEFINITIONS.
(a) Action of the Governing Board is a vote of a majority of the membership in a lawful meeting.
(b) Approval means written authorization by ARCHITECT or DISTRICT for specific applications within the Contract.
(c) As shown, as indicated, as detailed, or words of similar import, refer to drawings accompanying the specifications unless otherwise stated.
(d) CONTRACT, CONTRACT DOCUMENTS includes all contract documents, to wit: Notice to Bidders, Instructions To Bidders, Bid Form, Designation of Subcontractors, Contractor Prequalification Documents if required, Certificate Regarding Workers' Compensation, Change Order Form, Shop Drawing Transmittal Form, Noncollusion Affidavit, Performance Bond, Payment Bond, Insurance Policies, General Conditions, Special Conditions, if any, Drawings, Plans, Specifications, the Agreement and all modifications, addenda, and amendments thereto.
(e) CONTRACTOR, DISTRICT or OWNER are those mentioned as such in the Agreement. They are treated throughout the contract documents as if they are of singular number and neuter gender.
(f) Day or days whenever used in the Contract Documents shall refer to calendar days unless otherwise specifically stated.
(g) Locality in which the work is performed means the county in which the public work is done.
(h) Project is the planned undertaking as provided for in the contract documents by DISTRICT and CONTRACTOR.
(i) Provide shall include "provide complete in place," that is, "furnish, install, test, and ready for operation and use."
(j) Safety Orders are those issued by the Division of Industrial Safety and OSHA Safety and Health Standards for construction.
(k) Standards, Rules, and Regulations referred to are recognized printed standards and shall be considered as one and a part of these specifications within limits specified.
(l) Subcontractor, as used herein, includes those having direct Contract with CONTRACTOR and one who furnishes material worked to a special design according to plans, drawings, and specifications of this work, but does not include one who merely furnishes material not so worked.
(m) Surety is the firm, or corporation that executes as surety on CONTRACTOR'S Performance Bond and Payment Bond. Surety must be an admitted surety insurer pursuant to Code of Civil Procedure Section 995.120.
(n) Work of CONTRACTOR or subcontractor includes labor or materials (including, without limitation, equipment and appliances) or both, incorporated in, or to be incorporated in the construction covered by the complete Contract.
(o) Worker includes laborer, worker, or mechanic.
Article 2. STATUS OF CONTRACTOR.
(a) CONTRACTOR is and shall at all times be deemed to be an independent contractor and shall be wholly responsible for the manner in which it performs the services required of it by the terms of this Contract. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between DISTRICT and CONTRACTOR or any of Contractor's agents or employees. CONTRACTOR assumes exclusively the responsibility for the acts of its employees as they relate to the services to be provided during the course and scope of their employment. CONTRACTOR, its agents and employees, shall not be entitled to any rights or privileges of DISTRICT employees and shall not be considered in any manner to be DISTRICT employees. DISTRICT shall be permitted to monitor the activities to determine compliance with the terms of this Contract.
(b) Contractors are required by law to be
licensed and regulated by the CONTRACTORS' State License Board which has
jurisdiction to investigate complaints against contractors if a complaint is
filed within three years of the date of the alleged violation. No payment shall be made for work or material
under the Contract unless and until the Registrar of Contractors verifies to
DISTRICT that CONTRACTOR was properly licensed at the time the Contract was
awarded and CONTRACTOR continues to be so licensed throughout the term of the
Contract. Any CONTRACTOR not so licensed
is subject to penalties under the law.
Any questions concerning a contractor may be referred to the Registrar,
Contractors' State License Board,
Article 3. CHANGE IN NAME AND NATURE OF CONTRACTOR'S LEGAL ENTITY.
Before CONTRACTOR makes any change in the name or legal nature of CONTRACTOR'S entity, CONTRACTOR shall first notify DISTRICT and cooperate with DISTRICT in making such changes as DISTRICT may request in this Contract.
Article 4. CONTRACTOR'S SUPERVISION, PROSECUTION AND PROGRESS
(a) CONTRACTOR shall employ a competent Superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. Before commencing the Work, CONTRACTOR shall designate in writing the name, qualifications, experience and references from owners and architects on previous projects for CONTRACTOR'S proposed Superintendent who, on approval of DISTRICT, shall have full authority to represent and act for CONTRACTOR. All directions given to Superintendent shall be as binding as if given to CONTRACTOR. A facsimile of the signatures of the authorized representatives of CONTRACTOR shall be submitted to ARCHITECT and DISTRICT. CONTRACTOR'S authorized representatives, or designated substitutes, acceptable to DISTRICT, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of CONTRACTOR is present at the Work site and shall attend all job meetings.
(b) CONTRACTOR shall notify DISTRICT and ARCHITECT, in writing, when CONTRACTOR desires to change the Superintendent for the Project, and shall provide the information specified above. The new Superintendent cannot serve on the Project until approved by DISTRICT. DISTRICT shall have the right, at any time, to direct a change in CONTRACTOR'S Project Superintendent if performance is unsatisfactory, as determined by DISTRICT, in its sole discretion.
(c) CONTRACTOR shall perform at least 15% of the work, exclusive of supervisory and clerical work without the services of any subcontractor. CONTRACTOR shall supervise and direct the work competently and efficiently, devoting such attention thereto and applying such skills as may be necessary to perform the work in accordance with the contract documents. CONTRACTOR shall carefully study and compare all drawings, specifications, and other instructions and shall at once report to ARCHITECT any error, inconsistency or omission which CONTRACTOR or its employees may discover. CONTRACTOR shall comply with all requirements set forth in Section 4-343, Part 1, Title 24 of the California Code of Regulations.
(d) CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences, procedures, and coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. CONTRACTOR shall be responsible to see that the finished work complies accurately with the Contract Documents.
(e) CONTRACTOR or subcontractor shall commence work on or before the date designated in the Notice to Proceed, and shall complete all work under the Contract within the period of time specified in the Contract Documents.
Article 5. SUBCONTRACTORS.
(a) CONTRACTOR agrees to bind every subcontractor by terms of the Contract as far as such terms are applicable to subcontractor's work. If CONTRACTOR shall subcontract any part of this Contract, CONTRACTOR shall be fully responsible to DISTRICT for acts and omissions of any subcontractor and of persons either directly or indirectly employed by any subcontractor, as it is for acts and omissions of persons directly employed by CONTRACTOR. Nothing contained in the Contract Documents shall create any contractual relationship between any subcontractor and DISTRICT, nor shall this Contract be construed to be for the benefit of any subcontractor.
(b) DISTRICT'S consent to any subcontractor under this Contract shall not in any way relieve CONTRACTOR of any obligations under this Contract and no such consent shall be deemed to waive any provision of this Contract.
(c) Pursuant to Section 4104 of the Public Contract Code, CONTRACTOR must submit with its bid, a Designation of Subcontractors. If CONTRACTOR specifies more than one subcontractor for the same portion of work or fails to specify a subcontractor, and such portion of the work exceeds one-half of one percent of the total bid, CONTRACTOR agrees that it is fully qualified to perform and shall perform such work itself, unless CONTRACTOR provides for substitution or addition of subcontractors. Substitution or addition of subcontractors shall be permitted only as authorized in Chapter 4 (commencing at Section 4100), Division 2, Part 1 of the California Public Contract Code.
(d) In accordance with California Business and Professions Code Section 7059, if CONTRACTOR is designated as a "specialty contractor" (as defined in Section 7058 of the Business and Professions Code), all of the work to be performed outside of Contractor's license specialty shall be performed by a licensed subcontractor in compliance with the Subletting and Subcontracting Fair Practices Act, California Public Contract Code Section 4100, et seq..
(e) Upon the request of DISTRICT, a copy of each subcontract, if in writing, or if not in writing, then a written statement signed by CONTRACTOR giving the name of the subcontractor and the terms and conditions of such subcontract, shall be filed with DISTRICT. Each subcontract shall contain a reference to the Contract between DISTRICT and CONTRACTOR and the terms of that Contract and all parts of the Contract Documents shall be made a part of such subcontract insofar as applicable to the Work covered thereby. Each subcontract will provide for termination in accordance with Article 13 of these General Conditions. Each subcontract shall provide for its annulment by CONTRACTOR at the order of ARCHITECT if in ARCHITECT'S opinion the subcontractor fails to comply with the requirements of the principal Contract, insofar as the same may be applicable to this Work. Nothing herein contained shall relieve CONTRACTOR of any liability or obligation hereunder.
Article 6. PROHIBITED INTERESTS.
No official of DISTRICT who is authorized in such capacity and on behalf of DISTRICT to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting or approving any architectural, engineering, inspection, construction or material supply Contract or any subcontract in connection with construction of project, shall become directly or indirectly interested financially in this Contract or in any part thereof. No officer, employee, architect, attorney, engineer or inspector of or for DISTRICT who is authorized in such capacity and on behalf of DISTRICT to exercise any executive, supervisory or other similar functions in connection with construction of project shall become directly or indirectly interested financially in this Contract or in any part thereof. CONTRACTOR shall receive no compensation and shall repay DISTRICT for any compensation received by CONTRACTOR hereunder, should CONTRACTOR aid, abet or knowingly participate in violation of this Article.
Article 7. DISTRICT'S INSPECTOR.
(a) One or more Inspectors, including special inspectors, as required, will be employed by DISTRICT in accordance with requirements of Title 24 of the California Code of Regulations and will be assigned to the work. Duties of an Inspector are specifically defined in Section 4-342 of said Title 24.
(b) Such inspection shall not, in any way relieve CONTRACTOR from responsibility for full compliance with all of the terms and conditions of the Contract, nor be construed to lessen to any degree, CONTRACTOR's responsibility for providing efficient and capable superintendence as required herein. Inspector is not authorized to make changes in the drawings or specifications, nor shall his approval of work and methods relieve CONTRACTOR of responsibility for the correction of subsequently discovered defects.
(c) No work shall be carried on except with the knowledge and under the inspection of said Inspector(s). He shall have free access to any or all part of work at any time. CONTRACTOR shall furnish Inspector reasonable opportunities and use of required equipment (wheelbarrow, shovel, ladder, man-lift, etc), as available or in use on site, for obtaining such information as may be necessary to keep Inspector fully informed respecting progress and manner of work and character of materials. Inspection of work shall not relieve CONTRACTOR from any obligation to fulfill this Contract. Inspector or ARCHITECT shall have authority to stop work whenever provisions of contract documents are not being complied with and such noncompliance is discovered. In addition, either the Inspector or ARCHITECT may stop any work which poses a probable risk of harm to persons or property. CONTRACTOR shall instruct its employees, subcontractors, material and equipment suppliers, etc., accordingly.
Article 8. ARCHITECT'S STATUS.
(a) ARCHITECT shall be DISTRICT'S representative during construction period and shall observe the progress and quality of the work on behalf of DISTRICT. ARCHITECT shall have the authority to act on behalf of DISTRICT only to the extent expressly provided in the Contract Documents. ARCHITECT shall have authority to stop work whenever such stoppage may be necessary in ARCHITECT'S reasonable opinion to ensure the proper execution of the Contract. When ARCHITECT determines, in his opinion, that an unsafe condition exists, as agent of DISTRICT, ARCHITECT shall immediately bring the unsafe condition to the attention of CONTRACTOR, demand that prompt corrective action be taken, observe that corrective action is taken and ensure that written documentation to all parties is provided. If CONTRACTOR fails to correct the unsafe condition, ARCHITECT shall immediately notify DISTRICT. DISTRICT may take corrective action in accordance with the Contract Documents. If in the opinion of ARCHITECT, a life-threatening condition exists, ARCHITECT may take whatever immediate action is necessary to correct the life-threatening condition and the parties agree that ARCHITECT shall not be liable for the results of his action so rendered in good faith.
(b) ARCHITECT shall be, in the first instance, the judge of the performance of this Contract. ARCHITECT shall side neither with DISTRICT nor with CONTRACTOR, but shall exercise authority under the Contract to enforce faithful performance by both. Nothing herein authorizes ARCHITECT to act as arbitrator for the parties.
(c) ARCHITECT shall have the authority and responsibility established by law, including Title 24 of the California Code of Regulations. Within the scope of the Contract, ARCHITECT has the authority to enforce compliance with the contract documents, including the Plans and Specifications. CONTRACTOR shall promptly comply with instructions from ARCHITECT or an authorized representative of ARCHITECT.
(d) On all questions related to the quantities, the acceptability of material, equipment or workmanship, the execution, progress or sequence of Work, the interpretation of specifications or drawings, and the acceptable fulfillment of the Contract on the part of the CONTRACTOR, the decision of ARCHITECT shall govern and shall be precedent to any payment under the Contract unless otherwise ordered by the Governing Board. The progress and completion of the Work shall not be impaired or delayed by virtue of any question or dispute arising out of or related to the foregoing matters and the instructions of ARCHITECT relating thereto.
(e) General supervision and direction of the Work by ARCHITECT shall in no way imply that ARCHITECT or his or her representatives are in any way responsible for the safety of CONTRACTOR or its employees or that ARCHITECT or his or her representatives will maintain supervision over CONTRACTOR'S construction methods or personnel other than to ensure that the quality of the finished Work is in accordance with the Contract Documents.
Article 9. NOTICE OF TAXABLE POSSESSORY INTEREST.
The terms of this Contract may result in the creation of a possessory interest. If such a possessory interest is vested in a private party to this Contract, the private party may be subjected to the payment of property taxes levied on such interest.
Article 10. ASSIGNMENT OF ANTITRUST ACTIONS.
Section 7103.5(b) of the Public Contract Code provides:
"In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body [DISTRICT] all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act, (15 U.S.C. Sec. 15) or under the Cartwright 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 contractor,
without further acknowledgement by the parties."
CONTRACTOR for itself and all subcontractors agrees to assign to DISTRICT all rights, title, and interest in and to all such causes of action CONTRACTOR and all subcontractors may have under this Contract. This assignment shall become effective at the time DISTRICT tenders final payment to the CONTRACTOR, and CONTRACTOR shall require assignments from all subcontractors to comply herewith.
Article 11. OTHER CONTRACTS.
(a) DISTRICT reserves the right to let other contracts in connection with this work. CONTRACTOR shall afford other contractors reasonable opportunity for introduction and storage of their materials and execution of their work and shall properly connect and coordinate its work with those other contractors.
(b) If any part of CONTRACTOR'S work depends for proper execution or results upon work of any other contractor, CONTRACTOR shall inspect and promptly report to ARCHITECT in writing any defects in such work that render it unsuitable for such proper execution or results. CONTRACTOR will be held accountable for damages to DISTRICT for that work which it failed to inspect or should have inspected. CONTRACTOR'S failure to inspect and report shall constitute its acceptance of any other contractor's work as fit and proper for reception of its work, except as to defects which may develop in another contractor's work after execution of CONTRACTOR'S work.
(c) To ensure proper execution of its subsequent work, CONTRACTOR shall measure and inspect work already in place and shall at once report to ARCHITECT in writing any discrepancy between executed work and Contract Documents.
(d) CONTRACTOR shall ascertain to its own satisfaction the scope of the project and nature of any other contracts that have been or may be awarded to DISTRICT in prosecution of the project to the end that CONTRACTOR may perform this Contract in the light of such other contracts, if any.
(e) Nothing herein contained shall be interpreted as granting to CONTRACTOR exclusive occupancy at site of project. CONTRACTOR shall not cause any unnecessary hindrance or delay to any other contractor working on project. If simultaneous execution of any Contract for project is likely to cause interference with performance of some other contract or contracts, DISTRICT shall decide which contractor shall cease work temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously.
(f) DISTRICT shall not be responsible for any damages suffered or extra costs incurred by CONTRACTOR resulting directly or indirectly from award or performance or attempted performance of any other contract or contracts on project, or caused by any decision or omission of DISTRICT respecting the order of precedence in performance of contracts.
Article 12. OCCUPANCY.
DISTRICT reserves the right to occupy buildings at any time before completion, and such occupancy shall not constitute final acceptance of any part of work covered by this Contract, nor shall such occupancy extend the date specified for completion of the work.
Article 13. DISTRICT'S RIGHT TO TERMINATE/SUSPEND CONTRACT.
(a) Termination For Cause.
(1) If CONTRACTOR refuses or fails to prosecute the work or any separable part thereof with such diligence as will ensure its completion within the time specified or any extension thereof, or fails to complete said work within such time, or if CONTRACTOR should be adjudged bankrupt, or if CONTRACTOR should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or if it should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workers or proper materials to complete the work in the time specified, or if CONTRACTOR should fail to make prompt payment to subcontractors or for materials or labor, or persistently disregard laws, ordinances or instructions of DISTRICT, or if CONTRACTOR or its subcontractors should otherwise be guilty of a substantial violation of any provision of this Contract, CONTRACTOR shall be deemed to be in default of this Contract and DISTRICT may, without prejudice to any other right or remedy, serve written notice upon CONTRACTOR and its surety of DISTRICT'S intention to terminate this Contract. The notice shall contain the reasons for such intention to terminate, and unless within ten (10) days after the service of such notice such condition shall cease or such violation shall cease and arrangements satisfactory to DISTRICT for the correction thereof be made, this Contract shall upon the expiration of said ten (10) days, cease and terminate. In such case, CONTRACTOR shall not be entitled to receive any further payment until work is finished.
(2) In the event of any such termination, DISTRICT shall immediately serve written notice thereof upon surety and CONTRACTOR, and surety shall have the right to take over and perform this Contract, provided, however, that if surety within seven (7) days after service upon it of said notice of termination does not give DISTRICT written notice of its intention to take over and perform this Contract or does not commence performance thereof within fifteen (15) days from date of serving such notice of termination by DISTRICT on surety, DISTRICT may take over the work and prosecute same to completion by contract or by any other method it may deem advisable for the account and at the expense of CONTRACTOR. CONTRACTOR and its surety shall be liable to DISTRICT for any excess cost or other damages occasioned the DISTRICT thereby. Time is of the essence in this Contract. If DISTRICT takes over the work as hereinabove provided, DISTRICT may, without liability for so doing, take possession of and utilize in completing the work such materials, appliances, plant, and other property belonging to CONTRACTOR as may be on the site of the work and necessary therefor.
(3) If unpaid balance of Contract price shall exceed the expense of finishing work, including without limitation compensation for additional architectural, managerial, inspection, and administrative services, such excess shall be paid to CONTRACTOR. If such expense shall exceed such unpaid balance, CONTRACTOR shall pay difference to DISTRICT. Expense incurred by DISTRICT as herein provided, and damage incurred through CONTRACTOR'S default, shall be certified to DISTRICT by ARCHITECT.
(b) Suspension For Convenience.
(1) DISTRICT may, without cause, order CONTRACTOR, in writing, to suspend, delay or interrupt the Work in whole or in part for such period of time as DISTRICT may determine.
(2) An adjustment shall be made for increases in the Contract Sum, including profit on the increased cost of performance, caused by suspension, delay or interruption. No adjustment shall be made to the extent:
(i) That performance is, was or would have been so suspended, delayed or interrupted by another cause for which CONTRACTOR is responsible; or
(ii) That an equitable adjustment is made or denied under another provision of the Contract Documents.
(c) Termination For Convenience.
(1) DISTRICT may, at any time, terminate the Contract for DISTRICT'S convenience and without cause.
(2) Upon receipt of written notice from DISTRICT of such termination for DISTRICT'S convenience, CONTRACTOR shall:
(i) Cease operations as directed by DISTRICT in the notice;
(ii) Take actions necessary, or that DISTRICT may direct, for the protection and preservation of the Work; and
(iii) Not terminate any insurance provisions required by the Contract Documents.
(3) In case of such termination for DISTRICT'S convenience, CONTRACTOR shall be entitled to receive payment from DISTRICT for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including overhead and profit for that portion of the Work completed, and reasonable proven damages.
(4) In the case of Termination for Convenience, DISTRICT shall have the right to accept assignment of subcontracts as provided elsewhere in the Contract Documents.
(d) The foregoing provisions included in paragraphs (a), (b) and (c) above are in addition to and not in limitation of any other rights or remedies available to DISTRICT.
Article 14. CONTRACT SECURITY - BONDS.
Unless otherwise specified in Special Conditions, CONTRACTOR shall furnish a surety bond in an amount equal to one hundred percent (100%) of Contract price as security for faithful performance of this Contract and shall furnish a separate bond in an amount equal to one hundred percent (100%) of the Contract price as security for payment of persons performing labor and furnishing materials in connection with this Contract. Aforesaid bonds shall be in the form set forth in these Contract Documents.
Article 15. SUBSTITUTION OF SECURITIES.
(a) Pursuant to the requirements of Public Contract Code Section 22300, upon CONTRACTOR'S request, DISTRICT will make payment to CONTRACTOR of any funds withheld from payments under this Contract if CONTRACTOR deposits with DISTRICT or in escrow with a California or federally chartered bank in California acceptable to DISTRICT, securities eligible for the investment of State Funds under Government Code Section 16430 or bank or savings and loan certificates of deposit, upon the following conditions:
(1) CONTRACTOR shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon.
(2) All expenses relating to the substitution of securities under said Section 22300 and under this clause, including, but not limited to DISTRICT'S overhead and administrative expenses, and expenses of escrow agent shall be the responsibility of CONTRACTOR.
(3) Securities or certificates of deposit substituted for monies withheld shall be of a value of at least equivalent to the amounts of retention to be paid to CONTRACTOR pursuant to this paragraph.
(4) If CONTRACTOR shall choose to enter into an escrow agreement, such agreement shall be in the form attached hereto as part of the Contract Documents.
(5) CONTRACTOR shall obtain the written consent of the surety to such agreement.
(6) Securities, if any, shall be returned to CONTRACTOR only upon satisfactory completion of the Contract.
(b) To minimize the expense caused by such substitution of securities, CONTRACTOR shall, prior to or at the time CONTRACTOR requests to substitute security, deposit sufficient security to cover the entire amount to be then withheld and to be withheld under the General Conditions of this Contract. Should the value of such substituted security at any time fall below the amount for which it was substituted, or any other amount which the DISTRICT determines to withhold, CONTRACTOR shall immediately and at CONTRACTOR'S expense deposit additional security qualifying under said Section 22300 until the total security deposited is no less than equivalent to the amount subject to withholding under this Contract.
(c) Alternatively, subject to the conditions set forth in paragraph (a) of this Section, CONTRACTOR may request and DISTRICT shall make payment of retentions directly to escrow at the expense of CONTRACTOR. At the expense of CONTRACTOR, CONTRACTOR may direct the investment of the payments into securities and CONTRACTOR shall receive the interest earned on the investments. Upon satisfactory completion of the Contract, CONTRACTOR shall receive from escrow all securities, interest, and payments received by escrow from DISTRICT, pursuant to the terms of Section 22300.
(d) If any provisions of this Article shall be found to be illegal or unenforceable then, notwithstanding, this Article shall remain in full force and effect, and such provision shall be deemed stricken.
Article 16. FIRE INSURANCE.
CONTRACTOR shall maintain, and cause to be maintained, fire insurance on all work subject to loss or damage by fire. The amount of fire insurance shall be sufficient to protect against loss or damage in full until work is accepted by DISTRICT.
Article 17. PUBLIC LIABILITY, PROPERTY DAMAGE AND COURSE-OF -CONSTRUCTION INSURANCE.
(a) CONTRACTOR shall take out and maintain during the life of this Contract such public liability and property damage insurance as shall protect CONTRACTOR and DISTRICT from all claims for personal injury, including accidental death, to any person (including, as to DISTRICT, injury or death to CONTRACTOR'S or subcontractor's employees), as well as from all claims for property damage arising from operations under this Contract, in amounts as set forth in the Agreement. Such insurance shall be with an insurance company qualified to do business in California and rated A or better by Best's Key Rating Guide.
(b) Unless otherwise provided, CONTRACTOR shall purchase and maintain with an insurance company qualified to do business in California and rated A or better by Best's Key Rating Guide, Course of Construction Insurance (also referred to as Builder's Risk Insurance) in an amount not less than as set forth in the Agreement. Such insurance shall be maintained until final payment has been made as provided in Article 58. This insurance shall include interests of DISTRICT, CONTRACTOR and subcontractors. The Course of Construction Insurance shall be on an all-risk policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, false-work, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for ARCHITECT'S and INSPECTOR'S services and expenses required as a result of such insured loss. The insurance may exclude earthquake, flood and other perils commonly excluded under all-risk insurance policies unless specifically required by the terms of the Contract Documents. The risk of damage to the Work due to the perils covered by the Course of Construction Insurance is that of CONTRACTOR and the surety, and no claims for such loss or damage shall be recognized by DISTRICT nor will such loss or damage excuse the complete and satisfactory performance of the Contract by CONTRACTOR.
(c) CONTRACTOR shall either (1) require its subcontractors, if any, to take out and maintain similar public liability and property damage insurance in like amounts, or (2) insure the activity of its subcontractors in CONTRACTOR'S own policy.
Article 18. WORKERS' COMPENSATION INSURANCE.
(a) In accordance with the provisions of Section 3700 of the California Labor Code, CONTRACTOR and every subcontractor shall be required to secure the payment of compensation to its employees.
(b) CONTRACTOR shall provide, during the life of this Contract, workers' compensation insurance for all of its employees engaged in work under this Contract, on or at the site of the project, and, in case any of its work is sublet, CONTRACTOR shall require subcontractor similarly to provide workers' compensation insurance for all the latter's employees. Any class of employee or employees not covered by a subcontractor's insurance shall be covered by CONTRACTOR'S insurance. In case any class of employees engaged in work under this Contract, on or at the site of the project, is not protected under the workers' compensation statute, the CONTRACTOR shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected before subcontractor commences work. CONTRACTOR shall file with DISTRICT certificates of its insurance protecting workers and a 30-day notice shall be provided to DISTRICT before the cancellation or reduction of any policy of CONTRACTOR or subcontractor.
Article 19. PROOF OF CARRIAGE OF INSURANCE.
(a) CONTRACTOR shall not commence work nor shall it allow any subcontractor to commence work under this Contract until all required insurance policies, certificates and endorsements have been obtained and delivered in duplicate to and approved by DISTRICT. Such insurance shall be with an insurance company rated A or better by Best's Key Rating Guide, admitted by the Insurance Commissioner of the State of California to transact such insurance in the State of California and having a current certificate of authority.
(b) Certificates and insurance policies shall include the following:
(1) A clause stating:
"This policy shall not be canceled or reduced in required limits of liability or amount of insurance until notice has been mailed to DISTRICT stating date of cancellation or reduction. Date of cancellation or reduction may not be less than thirty (30) days after date of mailing notice."
(2) Language stating in particular those insured, extent of insurance, location and operation to which insurance applies, expiration date, to whom cancellation and reduction notice will be sent, and length of notice period.
(3) Statement that DISTRICT is a named additional insured under the policy described and that such insurance policy shall be primary to any
insurance or self-insurance maintained by DISTRICT.
(4) A clause whereby the insurance company waives all right of recovery by way of subrogation against DISTRICT in connection with damage covered by the policy.
(c) In case of CONTRACTOR'S failure to provide insurance as required by the Contract, DISTRICT may, at DISTRICT'S option, take out and maintain at the expense of CONTRACTOR, such insurance in the name of CONTRACTOR, or subcontractor, as DISTRICT may deem proper and may deduct the cost of taking out and maintaining such insurance from any sums which are due or become due to CONTRACTOR under this Contract.
Article 20. INTERPRETATION OF CONTRACT DOCUMENTS - DRAWINGS AND SPECIFICATIONS.
(a) Contract Documents are complementary, and what
is called for by one shall be as binding as if called for by all. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work. All Work mentioned or indicated in the Contract Documents shall be performed by the CONTRACTOR as part of the Contract unless specifically indicated in the Contract Documents that such Work is to be done by others.
(b) Materials or work described in words which so applied has a well known technical or trade meaning shall be deemed to refer to such recognized standards.
(c) Trade Name or Trade Term. It is not the intention of the Contract to go into detailed descriptions of any materials and/or methods commonly known to the trade under "trade name" or "trade term." The mere mention or notation of such "trade name" or "trade term" shall be considered a sufficient notice to CONTRACTOR that it will be required to complete the work so named with all its appurtenances according to the best practices of the trade.
(d) The naming of any material and/or equipment shall mean furnishing and installing of same, including all incidental and accessory items thereto and/or labor therefore, as per best practices of the trade(s) involved, unless specifically noted otherwise.
(e) Interpretations. In the event of conflicts or discrepancies among the Contract Documents, interpretations will be based on the following order of precedence:
(1) Change Orders and modifications, issued after execution of the Contract;
(2) Addenda, issued prior to execution of the Contract;
(3) The Agreement (including all modifications, attachments and certifications;
(4) Special Conditions;
(5) Supplemental Conditions;
(6) General Conditions;
(7) Bid Form (including all modifications and attachments; and
(8) Drawings and Specifications. Figured, derived, or numerical dimensions on drawings shall govern, but work not dimensioned shall be as directed. At no time shall CONTRACTOR base construction on scaled drawings. Work not particularly shown or specified shall be the same as similar parts that are shown or specified. Large scale details shall take precedence over smaller scale drawings as to shape and details of construction. Specifications shall govern as to materials, workmanship, and installation procedures. Drawings and specifications are intended to be fully cooperative and to agree. However, if CONTRACTOR observes that drawings and specifications are in conflict, CONTRACTOR shall promptly notify the ARCHITECT in writing, and any necessary changes shall be adjusted as provided in the Article entitled "Changes and Extra Work."
(f) Conflicts. In the event of conflict between any of the Contract Documents, the provision placing a more stringent requirement or greater burden on CONTRACTOR shall prevail. CONTRACTOR shall provide the greater quantity and/or higher quality material or workmanship unless otherwise directed by DISTRICT in writing. In the event none of the Contract Documents place a more stringent requirement or greater burden on CONTRACTOR, the controlling provision shall be that which is found in the document with higher precedence.
(g) Specifications and Accompanying Drawings are intended to delineate and describe the project and its component parts to such a degree as will enable skilled and competent contractors to intelligently bid upon the work, and to carry said work to a successful conclusion. The organization of the specifications into divisions, sections and articles and the arrangement of drawings shall not control CONTRACTOR in dividing the work among subcontractors or in establishing the extent of work to be performed by any trade.
(h) Drawings and Specifications are intended to comply with all laws, ordinances, rules and regulations of constituted authorities having jurisdiction, and where referred to in the contract documents, said laws, ordinances, rules and regulations shall be considered as a part of said Contract within the limits specified. CONTRACTOR shall bear all expenses of correcting work done contrary to said laws, ordinances, rules and regulations if CONTRACTOR knew or should have known that the work as performed is contrary to said laws, ordinances, rules and regulations and if CONTRACTOR performed same (1) without first consulting ARCHITECT for further instructions regarding said work or (2) disregarded ARCHITECT'S instructions regarding said work.
(i) Questions regarding interpretation of drawings and specifications shall be clarified by the ARCHITECT. Before commencing any portion of the Work, CONTRACTOR shall carefully examine all drawings and specifications and other information given to CONTRACTOR as to materials and methods of construction and other Project requirements. CONTRACTOR shall immediately notify ARCHITECT and DISTRICT in writing of any perceived or alleged error, inconsistency, ambiguity, or lack of detail or explanation in the drawings and specifications in the manner provided herein. If CONTRACTOR or its subcontractors, material or equipment suppliers, or any of their officers, agents, and employees performs, permits, or causes the performance of any Work under the Contract Documents, which it knows or should have known to be in error, inconsistent, or ambiguous, or not sufficiently detailed or explained, CONTRACTOR shall bear any and all costs arising therefrom including, without limitation, the cost of correction thereof without increase or adjustment to the Contract Price or the time for performance.
(j) CONTRACTOR will be furnished, free of charge, copies of drawings and specifications, as set forth in the Agreement. Additional copies may be obtained at cost of reproduction.
(k) ARCHITECT will furnish to CONTRACTOR one (1) complete set of blue-line prints, for posting of changes. During the construction period, the CONTRACTOR shall maintain the set of blue-line prints in a satisfactory record condition, and shall thoroughly and neatly post, as they occur, all additions, deletions, corrections and/or revisions in the actual construction of the project. At the completion of the work, all such additions, deletions, corrections and/or revisions shall be posted on mylar transparencies by a competent draftsman at CONTRACTOR's expense. Both the blue-line prints and the mylar transparencies shall be signed by the construction Superintendent. The signature certifies that the record drawings have been posted accurately. The prints and transparencies shall then be turned over to ARCHITECT. The record drawings must be posted monthly and be current prior to each submission of each monthly certificate of payment.
Article 21. OWNERSHIP OF DRAWINGS.
All plans, drawings, designs, specifications, and other incidental architectural and engineering work or materials and other contract documents and copies thereof furnished by DISTRICT are its property. They are not to be used in other work and with the exception of signed sets of the Contract are to be returned to it on request at completion of work, and may be used by DISTRICT as it may require, without any additional costs to DISTRICT.
Article 22. DETAIL DRAWINGS AND INSTRUCTIONS.
(a) In case of ambiguity, conflict, or lack of information, ARCHITECT shall furnish additional instructions by means of drawings or otherwise, necessary for proper execution of work. All such drawings and instructions shall be consistent with Contract Documents, true developments thereof, and reasonably inferable therefrom. Such additional instructions shall be furnished with reasonable promptness, provided that CONTRACTOR informs ARCHITECT of the relationship of the request to the critical path of construction.
(b) Work shall be executed in conformity therewith and CONTRACTOR shall do no work without proper drawings and instructions.
(c) ARCHITECT will furnish necessary additional details to more fully explain the work, which details shall be considered as part of the Contract Documents.
(d) Should any details be more elaborate, in the opinion of CONTRACTOR, than scale drawings and specifications warrant, CONTRACTOR shall give written notice thereof to ARCHITECT within five (5) days of the receipt of same. In case no notice is given to ARCHITECT within five (5) days, it will be assumed the details are reasonable development of the scale drawings. In case notice is given, then the claim will be considered, and if found justified, ARCHITECT will either modify the drawings or shall recommend to DISTRICT a change order for the extra work involved.
(e) All parts of the described and shown construction shall be of the best quality of their respective kinds and CONTRACTOR is hereby advised to use all diligence to become fully involved as to the required construction and finish, and in no case to proceed with the different parts of the work without obtaining first from ARCHITECT such directions and/or drawings as may be necessary for the proper performance of the work.
(f) If it is found at any time, before or after completion of the work, that CONTRACTOR has varied from the drawings and/or specifications, in materials, quality, form or finish, or in the amount or value of the materials and labor used, ARCHITECT shall make a recommendation: (1) that all such improper work should be removed, remade and replaced, and all work disturbed by these changes be made good at CONTRACTOR'S expense; or (2) that DISTRICT deduct from any amount due CONTRACTOR, the sum of money equivalent to the difference in value between the work performed and that called for by the drawings and specifications. ARCHITECT shall determine such difference in value. DISTRICT, at its option, may pursue either course.
Article 23. SHOP DRAWINGS.
(a) CONTRACTOR shall check and verify all field measurements and shall submit with such promptness as to cause no delay in its own work or in that of any other contractor, seven (7) copies checked and approved by CONTRACTOR of all composite shop or setting drawings, schedules and material lists required for the work of the various trades. ARCHITECT shall review such schedules and drawings only for conformance with design concept of project and compliance with information given in Contract Documents, and return as approved or disapproved with guidance as to the required corrections within ten (10) days. CONTRACTOR shall make any corrections required by ARCHITECT, file three (3) corrected copies with ARCHITECT, and furnish such other copies as may be needed for construction. ARCHITECT'S approval of such drawings or schedules shall not relieve CONTRACTOR from responsibility for deviations from drawings or specifications unless CONTRACTOR has in writing called ARCHITECT'S attention to such deviations at time of submission and secured ARCHITECT'S written approval, nor shall it relieve CONTRACTOR from responsibility for errors in shop drawings or schedules.
(b) All submittals of shop drawings, catalog cuts, data sheets and material lists shall be complete and shall conform to Contract drawings and specifications.
(c) The term "shop drawing" as used herein shall be understood to include, but not be limited to, detail design, calculations, fabrication and installation drawings, lists, graphs, operating instructions, products, data and samples. Unless otherwise required, shop drawings shall be submitted at a time sufficiently early to allow review of the same by ARCHITECT, and to accommodate the rate of construction progress required under the Contract. CONTRACTOR will be required to pay ARCHITECT's reasonable and customary fees in order to expedite review of shop drawings and schedules which are not submitted in a timely fashion.
(d) All shop drawing submittals shall be accompanied by an accurately completed transmittal form using the form included as part of the Contract Documents. Any shop drawing submittal not accompanied on such a form, or where all applicable items on the form are not completed, will be returned for resubmittal. CONTRACTOR may authorize a material or equipment supplier to deal directly with ARCHITECT with regard to shop drawings, however ultimate responsibility for the accuracy and completeness of the information contained in the submittal shall remain with CONTRACTOR.
(e) Normally, a separate transmittal form shall be used for each specific item or class of material or equipment for which a submittal is required. Transmittal of shop drawings on various items using a single transmittal form will be permitted only when the items taken together constitute a manufacturer's "package" or are so functionally related that expediency dictates review of the group or package as a whole. At its option, CONTRACTOR or supplier may obtain from ARCHITECT quantities of the shop drawing transmittal form at reproduction cost.
(f) Within ten (10) calendar days after receipt of said prints, ARCHITECT will return as approved or disapproved one or more prints of each drawing to CONTRACTOR with his or her comments noted thereon. If disapproved, CONTRACTOR shall make all necessary noted corrections and resubmit six (6) corrected copies to ARCHITECT. It is considered reasonable that CONTRACTOR shall make a complete and acceptable submittal to ARCHITECT by the second submission of drawings. DISTRICT reserves the right to withhold funds due to CONTRACTOR to cover additional costs of ARCHITECT'S review beyond the second submission.
(g) Fabrication of an item shall not be commenced before ARCHITECT has reviewed the pertinent shop drawings and returned copies to CONTRACTOR marked "Approved." Revisions indicated on shop drawings shall be considered as changes necessary to meet the requirements of the contract documents and shall not be taken as the basis of claims for extra work. CONTRACTOR shall have no claim for damages or extension of time due to any delay resulting from CONTRACTOR'S having to make the required revisions to shop drawings unless review by ARCHITECT of said drawings is delayed beyond a reasonable period of time and unless CONTRACTOR can establish that ARCHITECT'S delay in review actually resulted in delay in CONTRACTOR'S construction schedule. The review of such drawings by ARCHITECT shall in no way relieve CONTRACTOR of responsibility for errors or omissions contained therein, nor shall such review operate to waive or modify any provision contained in the contract documents. Fabricating dimensions, quantities of material, applicable code requirements, and other contract requirements shall be CONTRACTOR'S responsibility.
(h) No work represented by required shop drawings shall be purchased or commenced until the applicable submittal has been approved. The work shall conform to the approved shop drawings and all other requirements of the Contract Documents. CONTRACTOR shall not proceed with any related work which may be affected by the work covered under shop drawings until the applicable shop drawings have been approved, particularly where piping, machinery, and equipment and the required arrangements and clearance are involved.
(i) Except where the preparation of a shop drawing is dependent upon the approval of a prior shop drawing, all shop drawings pertaining to the same class or portion of the work shall be submitted simultaneously.
(j) Calculations of a structural nature must be approved by the Division of the State Architect. For those items indicated in the Contract Documents requiring a deferred approval by the Division of the State Architect, CONTRACTOR shall submit shop drawings with a manual signature of the professional engineer registered in the State of California responsible for preparing such shop drawings.
Article 24. LAYOUT AND FIELD ENGINEERING.
All field engineering required for laying out this work and establishing grades for earthwork operations shall be furnished by CONTRACTOR at its expense. Such work shall be done by a land surveyor or civil engineer registered in the State of California. Any required "Record" drawings of site development shall be prepared by the California State registered civil engineer or land surveyor.
Article 25. SOILS INVESTIGATION REPORT.
When a soils investigation report obtained from test holes at site is available from DISTRICT, such report shall not be a part of this Contract. Any information obtained from such report or any information given on drawings provided by DISTRICT as to subsurface soil condition or to elevations of existing grades or elevations of underlying rock is approximate only, is not guaranteed, does not form a part of the Contract, and CONTRACTOR may not rely thereon. There is no warranty or guarantee, either express or implied that the conditions indicated in any such soils investigation report are representative of those existing throughout the site of the Project, or any part thereof, or that unforeseen developments may not occur. CONTRACTOR is required to make a visual examination of site and must make whatever tests CONTRACTOR deems appropriate to determine underground condition of soil. CONTRACTOR agrees that no claim against DISTRICT will be made by CONTRACTOR for damages and hereby waives any rights to damages in event that during progress of work CONTRACTOR encounters subsurface or latent conditions at site materially differing from those shown on drawings or indicated in specifications, or for unknown conditions of an unusual nature which differ materially from those ordinarily encountered in the work of the character provided for in plans and specifications, except as provided in the Article entitled "Existing Utility Lines; Removal, Restoration."
Article 26. TESTS AND INSPECTIONS.
(a) Tests and inspections will comply with Title 24, California Code of Regulations, Section 4-335.
(b) DISTRICT shall pay for all tests, subject to reimbursement by CONTRACTOR through deductive change order if occasioned for any of the following reasons: (1) when in the opinion of ARCHITECT or registered engineer, additional tests are required because of the manner in which CONTRACTOR executes its work; (2) tests of material substituted for previously accepted materials; (3) retests made necessary by the failure of material to comply with the requirements of the Contract Documents; and (4) load tests necessary because certain portions of the structure have not fully met specifications or plan requirements.
Article 27. TRENCHES.
(a) As required by Labor Code Section 6705, if the Contract price exceeds $25,000 and involves the excavation of any trench or trenches five feet or more in depth, CONTRACTOR shall, in advance of excavation, submit to DISTRICT or a registered civil or structural engineer employed by DISTRICT a detailed plan showing the design or shoring, bracing, sloping or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the Shoring System Standards established by the Construction Safety Orders of the Division of Industrial Safety, the plan shall be prepared by a registered civil or structural engineer, employed by CONTRACTOR, and all costs therefore shall be included in the price named in the Contract for completion of the work as set forth in the contract documents. Nothing in this Article shall be deemed to allow the use of a system less effective than that required by the Construction Safety Orders. No excavation of such trench or trenches shall be commenced until said plan has been accepted by DISTRICT or the person to whom authority to accept has been delegated by DISTRICT. Nothing in this Article shall be construed to impose tort liability on DISTRICT, ARCHITECT, nor any of their officers, agents, representatives, or employees.
(b) As required by Public Contract Code Section 7104, if this Contract involves the digging of trenches or excavations that extend deeper than four feet below the surface, the following shall apply:
(1) CONTRACTOR shall promptly, and before the following conditions are disturbed, notify DISTRICT, in writing, of any:
(i) Material that CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
(ii) Subsurface or latent physical conditions at the site different from those indicated.
(iii) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in Work of the character provided for in the Contract.
(2) That DISTRICT shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in CONTRACTOR'S cost of, or the time required for, performance of any part of the work shall issue a change order under the procedures described in the Contract.
(3) That, in the event a dispute arises between DISTRICT and CONTRACTOR, whether the conditions materially differ or involve hazardous waste, cause a decrease or increase in CONTRACTOR'S cost of, or time required for, performance of any part of the work, CONTRACTOR shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all work to be performed under the Contract. CONTRACTOR shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.
(c) CONTRACTOR shall not commence any excavation work until it has secured all necessary permits including the required CAL OSHA excavation/shoring permit. Any permit shall be prominently displayed on the Project site prior to the commencement of any excavation.
Article 28. DOCUMENTS ON WORK.
CONTRACTOR shall keep on the job site at all times one legible copy of all Contract Documents, including addenda and change orders, and Titles 19, 21, 24 of the California Code of Regulations, all approved drawings, plans, schedules and specifications, and all codes and documents referred to in the specifications and made a part thereof. Said documents shall be kept in good order and available to ARCHITECT, ARCHITECT'S representatives, DISTRICT's Inspector and all authorities having jurisdiction. CONTRACTOR shall be acquainted with and comply with the provisions of said Titles as they relate to this project. (See particularly the duties of Contractor, Part 1, Title 24, California Code of Regulations. Sec. 4-343.) CONTRACTOR shall also be acquainted with and comply with all California Code of Regulations provisions relating to conditions on this project, particularly Titles 8 and 17.
Article 29. STATE AUDIT.
Pursuant to and in accordance with the provisions of Government Code Section 8546.7, or any amendments thereto, all books, records and files of DISTRICT, CONTRACTOR, or any subcontractor connected with the performance of this Contract involving the expenditure of public funds in excess of Ten Thousand Dollars ($10,000), including, but not limited to, the administration thereof, shall be subject to the examination and audit of the State Auditor, at the request of DISTRICT or as part of any audit of DISTRICT, for a period of three (3) years after final payment is made under this Contract. CONTRACTOR shall preserve and cause to be preserved such books, records and files for the audit period.
Article 30. SUBSTITUTIONS FOR SPECIFIED ITEMS.
(a) Whenever in specifications any materials, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such specification shall be deemed to be used for the purpose of facilitating description of material, process or article desired and shall be deemed to be followed by the words "or equal" and CONTRACTOR may, unless otherwise stated, offer any material, process, or article which shall be substantially equal or better in every respect to that so indicated or specified. The provision authorizing submission of "or equal" justification data shall not in any way authorize an extension of time for performance of this Contract. If material, process or article offered by CONTRACTOR is not, in opinion of ARCHITECT, or DISTRICT, substantially equal or better in every respect to that specified, then CONTRACTOR shall furnish material, process, or article specified. No substitutions shall be made until approved, in writing, by both ARCHITECT and DISTRICT. Burden of proof as to equality of any material, process, or article shall rest with CONTRACTOR. CONTRACTOR shall submit request together with complete manufacturer's catalogs, brochures, drawings, samples, certified copies of test reports and other substantiating data for substitution of an "or equal" item not later than 4:30 p.m. on the second business day following the bid deadline set forth in the Notice to Contractors. In addition to the substantiating information specified in paragraph (c) of this Article, CONTRACTOR, as part of its request, shall state the amount of credit to be extended to DISTRICT, if the substitute material is accepted. Provision authorizing submission of "or equal" justification data shall not in any way authorize an extension of time for performance of this Contract.
(b) The awarding of this Contract to a bidder who has submitted the substantiating data required by this Article to request the substitution of an "equal" item shall not constitute an admission by DISTRICT of the equality of that product. It is expressly understood and agreed by the bidder that, in so awarding this Contract, DISTRICT reserves the right to reject any such proposed substituted product. It is further expressly understood and agreed by bidder that in the event DISTRICT rejects a proposed "equal" product, the bidder will then supply either a product designated by brand name in the specifications or a substitute therefore which meets with the approval of DISTRICT.
(c) With respect to all proposed substitutions of "equal" products, materials or equipment, the bidder shall submit all pertinent and appropriate data substantiating its request for substitutions not later than 4:30 p.m. on the second business day following the bid deadline set forth in the Notice to Bidders. In this regard, bidders should note that neither DISTRICT nor ARCHITECT is responsible for locating or securing any information which is not included in such substantiating data. A substitution request must be accompanied by evidence as to whether or not the proposed substitution: is equal in quality and serviceability to the specified item; will entail no changes in detail and construction of related design and artistic effect; will provide no cost disadvantage to DISTRICT; and will require no excessive or more expensive maintenance, including adequacy and availability of replacement parts. Bidders should note that the burden of proof as to the quality or suitability of proposed alternative articles shall be borne by the bidder. CONTRACTOR shall furnish with its substitution request complete manufacturer's catalogs, brochures, all drawings, specifications, samples, performance data, calculations, and other information as may be required to assist ARCHITECT in determining whether the proposed substitution is acceptable. ARCHITECT has reviewed the technical and aesthetic qualities of materials specified, and in no case will ARCHITECT accept a substitution of a product with a lower cost which does not extend credit to DISTRICT. ARCHITECT or his or her authorized representative shall be the sole judge as to the quality and suitability of proposed alternative articles or materials, and decisions of ARCHITECT, or that of his or her authorized representative, shall be final and conclusive. Unless extended by the mutual agreement of the parties, ARCHITECT or his or her authorized representative shall notify the successful bidder of the decision concerning the proposed substitution of "equal" items within thirty (30) days after the submission by the bidder of the bidder's substantiating data. Also such decisions by ARCHITECT or his or her authorized representative shall be in writing, and no proposed alternative product shall be deemed approved unless the ARCHITECT or his or her authorized representative has so indicated in writing.
The time limitations contained in this Article shall be complied with strictly, and in no case will an extension of time for completion be granted because of CONTRACTOR'S failure to request the substitution of an alternative item at the times and in the manner set forth herein.
(d) In event CONTRACTOR furnishes material, process, or article more expensive than that specified, difference in cost of such material, process, or article so furnished shall be borne by CONTRACTOR.
(e) By making requests for substitutions, CONTRACTOR:
(1) represents that CONTRACTOR has personally investigated the proposed substitute product and determined that it is equal or superior in all respects to that specified;
(2) represents that CONTRACTOR will provide the same warranty for the substitution that CONTRACTOR would for that specified;
(3) certifies that the cost data presented is complete and includes all related costs under this Contract except ARCHITECT'S redesign costs, and waives all claims for additional costs related to the substitution which subsequently become apparent;
(4) will coordinate the installation of the accepted substitute, making such changes as may be required for the Work to be complete in all respects.
Article 31. SAMPLES.
(a) Unless required to be provided earlier by the Contract Documents, CONTRACTOR shall furnish for approval, within thirty-five (35) days following award of Contract, all samples as required in the specifications together with catalogs and supporting data required by ARCHITECT. This provision shall not authorize any extension of time for performance of this Contract. ARCHITECT shall review such samples, as to conformance with design concept of work and for compliance with information given in contract documents and approve or disapprove same within twenty (20) working days from receipt of same.
(b) Unless specified otherwise, sampling, preparation of samples and tests shall be in accordance with the latest standards of the American Society for Testing and Materials.
(c) Samples of materials and/or articles shall, upon demand of ARCHITECT or DISTRICT, be submitted for tests or examinations and consideration before incorporation of same in work is started. CONTRACTOR shall be solely responsible for delays due to samples not being submitted in time to allow for tests. Acceptance or rejection will be expressed in writing. Work shall be equal to approved samples in every respect. Samples which are of value after testing will remain the property of CONTRACTOR.
Article 32. PROGRESS SCHEDULE.
Within seven (7) calendar days after receiving notification of being awarded the Contract, CONTRACTOR shall prepare a critical path progress schedule that will show, in graphic form, CONTRACTOR'S plan for timely completion of the Work, and submit same to ARCHITECT for approval. The scheduled completion date shall be the same as the contractual completion date as established in the Agreement. In preparing a progress schedule, CONTRACTOR shall, as applicable, arrange the Work to cause a minimum amount of inconvenience and danger to students and faculty as part of their regular college activities. The schedule shall indicate the beginning and completion dates of all phases of construction and the various components of the Work and any float built into the Project. Float belongs to both CONTRACTOR and DISTRICT. The schedule will separately identify those items that must be completed before other portions of the Work can be accomplished. CONTRACTOR will exchange scheduling information with subcontractors and suppliers, and will revise the schedule periodically, but at a minimum monthly, to show critical path tasks and tasks which are completed to date. CONTRACTOR shall make no changes to critical path activity without DISTRICT's written consent. Failure to submit an updated schedule will be cause for delaying approval of CONTRACTOR's application for payment. CONTRACTOR will order work, equipment and materials with sufficient lead time to avoid interruption of the Work. Upon request of ARCHITECT or DISTRICT, CONTRACTOR will provide documents and justifications for any schedule changes or substantiate allocation of schedule changes to a change order or other factors.
Article 33. MATERIALS AND WORK.
(a) Except as otherwise specifically stated in this Contract, CONTRACTOR shall provide and pay for all materials, labor, tools, equipment, transportation, superintendence, temporary constructions of every nature, and all other services and facilities of every nature whatsoever necessary to execute and complete this Contract within specified time.
(b) Unless otherwise specified, all materials shall be new and the best of their respective kinds and grades as noted or specified, and workmanship shall be of good quality.
(c) Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of work and shall be stored properly and protected as required.
(d) CONTRACTOR shall, after award of Contract by DISTRICT, place orders for materials and/or equipment as specified so that delivery of same may be made without delays to the work. CONTRACTOR shall, upon demand from ARCHITECT, furnish to ARCHITECT documentary evidence showing that orders have been placed.
(e) DISTRICT reserves the right, for any neglect in not complying with the above instructions, to place orders for such materials and/or equipment as it may deem advisable in order that the work may be completed by the date specified in the Agreement, and all expenses incidental to the procuring of said materials and/or equipment shall be paid for by CONTRACTOR.
(f) No material, supplies, or equipment for work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by seller or supplier. CONTRACTOR warrants good title to all material, supplies, and equipment installed or incorporated in work and agrees upon completion of all work to deliver premises, together will all improvements and appurtenances constructed or placed thereon by it, to DISTRICT free from any claims, liens, or charges. CONTRACTOR further agrees that neither it nor any person, firm, or corporation furnishing any materials or labor for any work covered by this Contract shall have any right of lien upon premises or any improvement or appurtenance thereon, except that CONTRACTOR may install metering devices or other equipment of utility companies or of political subdivisions, title to which is commonly retained by utility company or political subdivision. In the event of installation of any such metering device or equipment, CONTRACTOR shall advise DISTRICT as to owner thereof.
(g) Nothing contained in this Article, however, shall defeat or impair the rights of persons furnishing material or labor under any bond given by CONTRACTOR for their protection or any rights under any law permitting such persons to look to funds due CONTRACTOR in hands of DISTRICT, and this provision shall be inserted in all subcontracts and material contracts and notice of its provisions shall be given to all persons furnishing material for work when no formal contract is entered into for such material.
(h) The title to new materials and/or equipment for the work of this Contract and attendant liability for its protection and safety, shall remain with CONTRACTOR until incorporated in the work of this Contract and accepted by DISTRICT; no part of said materials and/or equipment shall be removed from its place of storage except for immediate installation in the work of this Contract; and CONTRACTOR shall keep an accurate inventory of all said materials and/or equipment in a manner satisfactory to DISTRICT or its authorized representative.
Article 34. INTEGRATION OF WORK.
(a) CONTRACTOR shall do all cutting, fitting, patching, and preparation of work as required to make its several parts come together properly, and fit it to receive or be received by work of other contractors (exclusive of CONTRACTOR'S subcontractors on the Project) showing upon, or reasonably implied by, the drawings and specifications for the completed structure, and shall make good after them as ARCHITECT may direct.
(b) All costs caused by defective or ill-timed work shall be borne by CONTRACTOR.
(c) CONTRACTOR shall not endanger any work by cutting, excavating, or otherwise altering work and shall not cut or alter work of any other contractor save with consent of ARCHITECT.
Article 35. OBTAINING OF PERMITS, LICENSES AND EASEMENTS.
(a) Except as provided in paragraph (b) of this Article, all permits, licenses, and certificates necessary for prosecution of work shall be secured and paid for by CONTRACTOR unless otherwise specified. All such permits, licenses, and certificates shall be delivered to ARCHITECT before demand is made for the certificate of final payment. CONTRACTOR shall, and shall require subcontractors to, maintain contractor's licenses in effect as required by law.
(b) Easements for permanent structures or permanent changes in existing facilities and permits relating to utility service and/or connections shall be secured and paid for by CONTRACTOR subject to reimbursement by DISTRICT, unless otherwise specified.
Article 36. SURVEYS.
Surveys to determine location of property lines and corners will be supplied by DISTRICT. Surveys to determine locations of construction, grading, and site work, shall be provided by CONTRACTOR.
Article 37. EXISTING UTILITY LINES; REMOVAL, RESTORATION.
(a) Pursuant to Government Code Section 4215, DISTRICT assumes the responsibility for removal, relocation, and protection of utilities located on the construction site at the time of commencement of construction under this Contract with respect to any such utility facilities which are not identified in the plans and specifications. CONTRACTOR shall not be assessed for liquidated damages for delay in completion of the project caused by failure of DISTRICT to provide for removal or relocation of such utility facilities. DISTRICT shall compensate CONTRACTOR for the costs of locating, repairing damage not due to the failure of CONTRACTOR to exercise reasonable care, and removing or relocating such utility facilities not indicated in the plans and specifications with reasonable accuracy, and for equipment necessarily idle during such work.
(b) This Article shall not be construed to preclude assessment against CONTRACTOR for any other delays in completion of the work. Nothing in this Article shall be deemed to require DISTRICT to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the site of the construction project can be inferred from the presence of other visible facilities, such as buildings, meter junction boxes, on or adjacent to the site of the construction.
(c) CONTRACTOR shall make its own investigation, including exploratory excavations, to determine the locations and type of Work which could result in damage to such utilities. In accordance with Government Code section 4216, et seq., except in an emergency, CONTRACTOR shall contact the appropriate regional notification center, at least two (2) working days, but not more than fourteen (14) calendar days, prior to commencing that excavation, if the excavation will be conducted in an area which is known or reasonably should be known, to contain subservice installations and obtain an inquiry identification number from the regional notification center.
(d) If CONTRACTOR, while performing work under this Contract, discovers utility facilities not identified by DISTRICT in the Contract plans or specifications, CONTRACTOR shall immediately notify DISTRICT and the utility in writing.
Article 38. WORK TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
CONTRACTOR shall give all notices and comply with all laws, ordinances, rules, and regulations bearing on the conduct of the Work as indicated and specified, including but not limited to the appropriate statutes and Code of Regulation sections. If CONTRACTOR observes that drawings and specifications are at variance therewith, or should CONTRACTOR become aware of the development of conditions not covered by the Contract Documents which will result in finished work being at variance therewith, CONTRACTOR shall promptly notify ARCHITECT in writing and any changes deemed necessary by ARCHITECT shall be adjusted as provided in Contract for changes in Work. If CONTRACTOR performs any work which it knew, or through exercise of reasonable care should have known to be contrary to such laws, ordinances, rules or regulations, and without such notice to ARCHITECT, CONTRACTOR shall bear all costs arising therefrom. Where specifications or drawings state that materials, processes, or procedures must be approved by the Office of State Architect, State Fire Marshall, or other body or agency, CONTRACTOR shall be responsible for satisfying requirements of such bodies or agencies.
Article 39. ACCESS TO WORK.
DISTRICT and its representatives shall at all times have access to work wherever it is in preparation or progress. CONTRACTOR shall provide safe and proper facilities for such
access so that DISTRICT'S representatives may perform their functions.
Article 40. PAYMENTS BY CONTRACTOR.
(a) CONTRACTOR shall pay:
(1) For all transportation and utility services not later than the 20th day of the calendar month following that in which such services are rendered;
(2) For all materials, tools, and other expendable equipment to the extent of ninety percent (90%) of cost thereof, not later than the 20th day of the calendar month following that in which such materials, tools, and equipment are delivered at site of project and balance of cost thereof not later than the 30th day following completion of that part of work in or on which such materials, tools, and equipment incorporated or used; and
(3) To each of its subcontractors, not later than the 5th day following each payment to CONTRACTOR; the respective amounts allowed CONTRACTOR on account of work performed by respective subcontractor to the extent of such subcontractor's interest therein.
(4) Subject to paragraph (b) below, within seven (7) days from the time that all or any portion of the retention proceeds are received by CONTRACTOR from DISTRICT, to each of its subcontractors from whom retention has been withheld, each subcontractor's share of the retention received. However, if a retention payment received by CONTRACTOR is specifically designated for a particular subcontractor, payment of the retention shall be made to the designated subcontractor, if the payment is consistent with the terms of the subcontract.
(b) CONTRACTOR may withhold from a subcontractor its portion of the retention proceeds if a bona fide dispute exists between the subcontractor and CONTRACTOR. The amount withheld from the retention payment shall not exceed 150 percent of the estimated value of the disputed amount.
Article 41. FIELD OFFICE AND STORAGE FACILITIES.
In addition to CONTRACTOR'S on-site facilities, CONTRACTOR shall provide and maintain a separate field office of approximately 400 square feet for DISTRICT, Inspector, and ARCHITECT'S use until removal is authorized by DISTRICT. CONTRACTOR shall further provide a bookcase and plan rack for storage of contract documents and reference materials, a 3' x 5' desk, three (3) office chairs, a 3' x 6' reference table and stool, one (1) four drawer legal file cabinet, a telephone with separate line, lighting, heating and cooling. CONTRACTOR shall make available the unrestricted free use of on-site standard fax and plain-paper copy machines. The fax machine shall have a separate telephone line. The office shall be of substantial waterproof construction with adequate natural light and ventilation by means of stock operable windows. Doors shall have a key-type lock or padlock hasp.
Article 42. UTILITIES.
(a) All utilities, including but not limited to electricity, water, gas, and telephone used on Work shall be furnished and paid for by CONTRACTOR. CONTRACTOR shall furnish and install necessary temporary distribution systems, including meters, if necessary, from distribution points to points on site where utility is necessary to carry on the work. Upon completion of Work, CONTRACTOR shall remove all temporary distribution systems.
(b) If Contract is for addition to existing facility, CONTRACTOR may, with written permission of DISTRICT, use DISTRICT'S existing utilities by making prearranged payments to DISTRICT for utilities used by CONTRACTOR for construction.
(c) When it is necessary to interrupt any existing utility service to make connections, a minimum of 48 hours advance notice shall be given DISTRICT and ARCHITECT. Interruptions in utility services shall be of the shortest possible duration for the work at hand and shall be approved by ARCHITECT.
(d) In the event any utility service is interrupted without the required 48 hours notice, then CONTRACTOR shall be financially liable for all damage suffered by DISTRICT due to the unauthorized interruption.
Article 43. SANITARY FACILITIES.
CONTRACTOR shall provide sanitary temporary toilet facilities in no fewer numbers than required by law and such additional facilities as may be directed by the Inspector for the use of all workers. The facilities shall be maintained in a sanitary condition at all times and shall be left at the site until removal is directed by the Inspector. Use of existing or permanent toilet facilities in the work area under construction shall not be permitted except by consent of DISTRICT.
Article 44. CLEANING UP.
CONTRACTOR at all times shall keep premises free from debris such as waste, rubbish, and excess materials and equipment caused by this work. CONTRACTOR shall not leave debris under, in, or about the premises, but shall promptly remove same from the premises. Upon completion of Work, CONTRACTOR shall clean interior and exterior of building, including fixtures, equipment, walls, floors, ceilings, roofs, window sills and ledges, horizontal projections, and any areas where debris has collected so surfaces are free from foreign material or discoloration; CONTRACTOR shall clean and polish all glass, plumbing fixtures, and finish hardware and similar finish surfaces and equipment and remove temporary fencing, barricades, planking, sanitary facilities and similar temporary facilities from site. If CONTRACTOR fails to clean up, DISTRICT may do so and the cost thereof shall be charged to CONTRACTOR.
Article 45. PATENTS, ROYALTIES, AND INDEMNITIES.
CONTRACTOR shall hold and save DISTRICT and its officers, agents, and employees harmless from liability of any nature or kind, including cost and expense, for or on account of any patented or unpatented invention, process, article, or appliance manufactured or used in the performance of this Contract, including its use by DISTRICT, unless otherwise specifically provided in the Contract Documents, and unless such liability arises from the sole negligence, or negligence, or willful misconduct of DISTRICT.
Article 46. GUARANTEE.
(a) In addition to guarantees required elsewhere, CONTRACTOR shall, and hereby does guarantee all work furnished on the job against all defects for a period of one (1) year after date of acceptance of work by DISTRICT and shall repair or replace any and all such work, together with any other work, which may be displaced in so doing that may prove defective in workmanship and/or materials within a one (1) year period from date of acceptance without expense whatsoever to DISTRICT, ordinary wear and tear, unusual abuse or neglect excepted. DISTRICT will give notice of observed defects to CONTRACTOR and Surety with reasonable promptness. CONTRACTOR shall notify DISTRICT upon completion of such repairs or replacements.
(b) In the event of failure of CONTRACTOR or Surety to commence and pursue with diligence said replacements or repairs within ten (10) days after being notified in writing, DISTRICT is hereby authorized to proceed to have defects repaired and made good at expense of CONTRACTOR and Surety who hereby agree to pay costs and charges therefore immediately on demand.
(c) If, in the opinion of DISTRICT, defective work creates a dangerous condition or requires immediate correction or attention to prevent further loss to DISTRICT or to prevent interruption of operations of DISTRICT, DISTRICT will attempt to give the notice required by this Article. If CONTRACTOR or Surety cannot be contacted or fails to comply with DISTRICT'S requirements for correction within a reasonable time as determined by DISTRICT, DISTRICT may, notwithstanding the provisions of this Article, proceed to make such correction or provide such attention and the costs of such correction or attention shall be charged against CONTRACTOR and Surety. Such action by DISTRICT will not relieve CONTRACTOR and Surety of the guarantees provided in this Article or elsewhere in this Contract.
(d) This Article does not in any way limit the guarantees on any items for which a longer guarantee is specified or on any items for which a manufacturer gives a guarantee for a longer period. CONTRACTOR shall furnish to DISTRICT appropriate guarantee or warranty certificates upon completion of the project unless sooner requested by DISTRICT.
(e) All guarantees required under this Article shall be in writing on the Guarantee Form included in Contract Documents.
(f) CONTRACTOR shall also provide to DISTRICT instruction materials for all items which require same.
(g) Nothing herein shall limit any other rights or remedies available to DISTRICT.
Article 47. DUTY TO PROVIDE FIT WORKERS.
(a) CONTRACTOR and subcontractors shall at all times enforce strict discipline and good order among their employees and shall not employ on work any unfit person or anyone not skilled in work assigned to such person. It shall be the responsibility of CONTRACTOR to ensure compliance with this Article.
(b) Any person in the employ of CONTRACTOR or subcontractors whom DISTRICT or ARCHITECT may deem incompetent, unfit, intemperate, troublesome or otherwise undesirable shall be excluded from the work site and shall not again be employed on it except with written consent of DISTRICT.
Article 48. WAGE RATES, TRAVEL AND SUBSISTENCE.
(a) Pursuant to the provisions of Article 2 (commencing at Section 1770), Chapter 1, Part 7, Division 2 of the Labor Code of California, the governing body of DISTRICT has obtained the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in the locality in which this public work is to be performed for each craft, classification or type of worker needed to execute this Contract from the Director of the Department of Industrial Relations (hereinafter, in this Article "Director.") These rates are on file in the Facilities Planning and Development Department of DISTRICT and copies will be made available to any interested party on request. CONTRACTOR shall post a copy of such wage rates at the job site.
(b) While the wage rates shown are the minimum rates required to be paid during the life of the Contract, this is not a representation that labor can be obtained at these rates. It is the responsibility of bidders to inform themselves as to the local labor conditions. No increase in the Contract price shall be allowed or authorized on account of the payment of wage rates in excess of those listed herein.
(c) Holiday and overtime work, when permitted by law, shall be paid for at a rate of at least one and one-half times the above specified rate of per diem wages, unless otherwise specified. Holidays shall be defined in the Collective Bargaining Agreement applicable to each
particular craft, classification or type of worker employed under the Contract.
(d) CONTRACTOR shall pay and shall cause to be paid each worker engaged in work on the project not less than the general prevailing rate of per diem wages determined by the Director, regardless of any contractual relationship which may be alleged to exist between the CONTRACTOR or any subcontractor and such workers.
(e) CONTRACTOR shall pay and shall cause to be paid to each worker needed to execute the work on the project travel and subsistence payments, as such travel and subsistence payments are defined in the applicable collective bargaining agreements filed with the Department of Industrial Relations in accordance with Labor Code Section 1773.8.
(f) If during the period this bid is required to remain open, the Director of Industrial Relations determines that there has been a change in any prevailing rate of per diem wages in the locality in which the work under the Contract is to be performed, such change shall not alter the wage rates in the Notice to Contractors or the Contract subsequently awarded.
(g) Pursuant to Labor Code Section 1775, CONTRACTOR shall, as a penalty to DISTRICT, forfeit an amount not to exceed fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates, determined by the Director, for such work or craft in which such worker is employed for any public work done under the Contract by CONTRACTOR or by any subcontractor under it. The amount of this penalty shall be determined by the Labor Commissioner and shall be based on consideration of CONTRACTOR's mistake, inadvertence or neglect in failing to pay the correct rate of prevailing wage, or the previous record of the CONTRACTOR in meeting his or her prevailing wage obligations, or a CONTRACTOR's willful failure to pay the correct rates of prevailing wages. A mistake, inadvertence or neglect in failing to pay the correct rate of prevailing wage is not excusable if the CONTRACTOR had knowledge of his or her obligations under this part. The difference between such prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by CONTRACTOR.
(h) Any worker employed to perform work on the project, which work is not covered by any classification listed in the general prevailing wage rate of per diem wages determined by the Director shall be paid not less than the minimum rate of wages specified therein for the classification which most nearly corresponds to work to be performed by him, and such minimum wage rate shall be retroactive to time of initial employment of such person in such classification.
(i) Pursuant to Labor Code Section 1773.1, per diem wages are deemed to include employer payments for health and welfare, pension, vacation, travel time, and subsistence pay, as provided for in Labor Code Section 1773.8.
(j) CONTRACTOR shall post at appropriate conspicuous points on the site of project, a schedule showing all determined minimum wage rates and all authorized deductions, if any, from unpaid wages actually earned.
Article 49. HOURS OF WORK.
(a) As provided in Article 3 (commencing at Section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, eight (8) hours of labor shall constitute a legal day's work. The time of service of any worker employed at any time by CONTRACTOR or by any subcontractor on any subcontract under this Contract upon the work or upon any part of the work contemplated by this Contract shall be limited and restricted by CONTRACTOR to eight (8) hours per day, and forty (40) hours during any one week, except as hereinafter provided. Notwithstanding the provisions hereinabove set forth, work performed by employees of CONTRACTOR in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half times the basic rate of pay.
(b) CONTRACTOR shall keep and shall cause each subcontractor to keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed by CONTRACTOR in connection with the work or any part of the work contemplated by this Contract. The record shall be kept open at all reasonable hours to the inspection of DISTRICT and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.
(c) Pursuant to Labor Code Section 1813, CONTRACTOR shall pay to DISTRICT a penalty of twenty-five dollars ($25) for each worker employed in the execution of this Contract by CONTRACTOR or by any subcontractor for each calendar day during which such workman is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week in violation of the provisions of Article 3 (commencing at Section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.
(d) Any work necessary to be performed after regular working hours, or on Sundays or other holidays shall be performed without additional expense to DISTRICT. CONTRACTOR will pay for overtime inspection costs which are not authorized by DISTRICT and are over and above the normal rate.
Article 50. PAYROLL RECORDS.
(a) Pursuant to the provisions of Section 1776 of the Labor Code, CONTRACTOR shall keep and shall cause each subcontractor performing any portion of the work under this Contract to keep an accurate payroll record, showing the name, address, social security number, work classification, and straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by CONTRACTOR in connection with the work.
(b) Said payroll records enumerated in subdivision (a) shall be certified and shall be available for
inspection at all reasonable hours at the principal office of CONTRACTOR on the following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
(2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of DISTRICT, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by CONTRACTOR, subcontractors, and the entity through which the request was made. The public shall not be given access to the records at the principal office of CONTRACTOR.
(c) The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by this division.
(d) Each contractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within ten (10) days after receipt of a written request.
(e) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by DISTRICT, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement shall be marked or obliterated in a manner so as to prevent disclosure of an individual's name, address, and social security number. The name and address of CONTRACTOR awarded the Contract or performing the Contract shall not be marked or obliterated.
(f) CONTRACTOR shall inform DISTRICT of the location of the records, enumerated under subdivision (a), including the street address, city and county, and shall, within five (5) working days, provide a notice of change of location and address.
(g) CONTRACTOR shall have ten (10) days in which to comply subsequent to receipt of written notice specifying in what respects CONTRACTOR must comply with this Article. In the event that CONTRACTOR fails to comply within the ten (10) day period, he or she shall, as a penalty to the DISTRICT, forfeit twenty-five ($25) for each calendar day, or portion thereof, for each worker until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due.
(h) It shall be the responsibility of CONTRACTOR to ensure compliance with the provisions of this Article and the provisions of Labor Code section 1776.
Article 51. APPRENTICES.
(a) CONTRACTOR acknowledges and agrees that, if this Contract involves a dollar amount greater than or a number of working days greater than that specified in Labor Code section 1777.5, this Contract is governed by the provisions of Labor Code section 1777.5. It shall be the responsibility of CONTRACTOR to ensure compliance with this Article and with Labor Code section 1777.5 for all apprenticeable occupations.
(b) Apprentices of any crafts or trades may be employed and, when required by Labor Code section 1777.5, shall be employed provided they are properly registered in full compliance with the provisions of the Labor Code.
(c) Every such apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade at which he is employed and shall
be employed only at the work of the craft or trade to which he is registered.
(d) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards and written apprentice agreements under Chapter 4 (commencing at Section 3070), Division 3 of the Labor Code, are eligible to be employed. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which he is training.
(e) Pursuant to Labor Code Section 1777.5, if that Section applies to this Contract as indicated above, the CONTRACTOR and any subcontractors employing workers in any apprenticeable craft or trade in performing any work under this Contract shall apply to the applicable joint apprenticeship committee for a certificate approving the CONTRACTOR or subcontractor under the applicable apprenticeship standards and fixing the ratio of apprentices to journeymen employed in performing the work.
(f) Pursuant to Labor Code Section 1777.5, if that Section applies to this Contract as indicated above, CONTRACTOR and any subcontractor may be required to make contributions to the apprenticeship program.
(g) If CONTRACTOR or subcontractor:
(1) willfully fails to comply with Labor Code Section 1777.5, the Director of Industrial Relations shall deny CONTRACTOR or subcontractor, both individually and in the name of the business entity under which CONTRACTOR or subcontractor is doing business, the right to bid on any subsequent project for one year from the date of such determination for the first violation and for a period of up to three (3) years for the second and subsequent violations;
(2) violates Section 1777.5, CONTRACTOR or subcontractor shall forfeit as a civil penalty to DISTRICT fifty dollars ($50) per day for each calendar day of noncompliance, which shall be withheld from any payment due or to become due under the terms of this Contract;
(h) In lieu of the penalty provided for in paragraphs (g)(1) and (2) above, the Director of Industrial Relations may for a first time violation and with the concurrence of the joint apprenticeship committee, order CONTRACTOR or subcontractor to provide apprentice employment equivalent to the work hours that would have been provided for apprentices during the period of noncompliance.
(i) The interpretation and enforcement of Labor Code Section 1777.5 shall be in accordance with the rules and procedures of the California Apprenticeship Council;
(j) CONTRACTOR and all subcontractors shall comply with Labor Code Section 1777.6, which Section forbids certain discriminatory practices in the employment of apprentices.
(k) CONTRACTOR shall become fully acquainted with the law regarding apprentices prior to commencement of the work. Special attention is directed to Sections 1777.5, 1777.6, and 1777.7 of the Labor Code, and Title
8, California Code of Regulations, Section 200 et seq.. Questions may be directed to the State Division of Apprenticeship Standards, 455 Golden Gate Avenue, San Francisco, California.
Article 52. LABOR - FIRST AID.
CONTRACTOR shall maintain emergency first aid treatment for CONTRACTOR'S workers on the project which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C.A., Sec. 651 et seq.) and any other applicable laws.
Article 53. PROTECTION OF PERSONS AND PROPERTY.
(a) CONTRACTOR shall be responsible for all damages to persons or property that occur as a result of its fault or negligence in connection with the prosecution of this Contract and shall take all necessary measures and be responsible for the proper care and protection of all materials delivered and work performed until completion and final acceptance by DISTRICT. All work shall be solely at CONTRACTOR'S risk with the exception of damage to the Work in excess of five (5) percent of the Contract amount caused by "acts of God" as defined in Public Contract Code section 7105(b)(2).
(b) CONTRACTOR shall take, and require subcontractors to take, all necessary precautions for safety of workers on the work and shall comply with all applicable federal, state, local and other safety laws, standards, orders, rules, regulations, and building codes to prevent accidents or injury to persons on, about, or adjacent to premises where work is being performed and to provide a safe and healthful place of employment. CONTRACTOR shall furnish, erect and properly maintain at all times, as directed by DISTRICT or ARCHITECT or required by conditions and progress of work, all necessary safety devices, safeguards, construction canopies, signs, audible devices for protection of the blind, safety rails, belts and nets, barriers, lights, and watchmen for protection of workers and the public and shall post danger signs warning against hazards created by such features in the course of construction. CONTRACTOR shall designate a responsible member of its organization on the work, whose duty shall be to post information regarding protection and obligations of workers and other notices required under occupational safety and health laws, to comply with reporting and other occupational safety requirements, and to protect the life, safety and health of workers. Name and position of person so designated shall be reported to DISTRICT by CONTRACTOR. CONTRACTOR shall correct any violations of safety laws, rules, orders, standards or regulations. Upon the issuance of a citation or notice of violation by the Division of Occupational Safety and Health, such violation shall be corrected promptly.
(c) In an emergency affecting safety of life or of work or of adjoining property, CONTRACTOR, without special instruction or authorization from ARCHITECT or DISTRICT, is hereby permitted to act, at its discretion, to prevent such threatened loss or injury; and CONTRACTOR shall so act if so authorized or instructed by ARCHITECT or DISTRICT. Any compensation claimed by CONTRACTOR on account of emergency work shall be determined by agreement.
(d) CONTRACTOR shall provide such heat, covering, and enclosures as are necessary to protect all work, materials, equipment, appliances, and tools against damage by weather conditions.
(e) CONTRACTOR shall take adequate precautions to protect existing roads, sidewalks, curbs, pavements, utilities, adjoining property and structures (including, without limitation, protection from settlement or loss of lateral support), and to avoid damage thereto, and repair any damage thereto caused by construction operations.
(f) CONTRACTOR shall (unless waived by DISTRICT in writing):
(1) When performing work at an operating college campus, become informed and take into specific account the students on the site; and when performing work which may interfere with the college routine before, during or after instructional hours, enclose working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to students and faculty as part of their regular college activities.
(2) Not allow any person, other than workers on the Project, or individuals authorized by DISTRICT to come upon any portion of the premises where work is being performed.
(3) Provide substantial barricades around any shrubs or trees indicated to be preserved.
(4) Deliver materials to building area over route designated by ARCHITECT.
(5) Take preventive measures to eliminate objectionable dust.
(6) Confine apparatus, the storage of materials, and the operations of workers to limits indicated by law, ordinances, permits, or directions of ARCHITECT; and shall not interfere with the work or unreasonably encumber premises or overload any structure with materials; and enforce all instructions of DISTRICT and ARCHITECT regarding signs, advertising, fires, and smoking and require that all workers comply with all regulations while on construction site.
(7) Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by an approved civil engineer at no cost to DISTRICT.
(g) Should CONTRACTOR at any time during this Contract encounter on the work site what it reasonably believes or knows to be asbestos, polychlorinated biphenyl (PCB), or any other "hazardous material" (as defined below), and said hazardous material has not been rendered harmless, CONTRACTOR shall immediately stop work in the affected area and notify DISTRICT and ARCHITECT of the condition in writing. Work in the affected area shall not be resumed until ARCHITECT has notified CONTRACTOR in writing that the hazardous material has been removed and/or made harmless. As used herein, hazardous material means any substance that because of its quantity, concentration or physical or chemical characteristics poses a significant present or potential hazard to human health and safety or to the environment, and which has been determined by any governmental authority to be a hazardous waste or hazardous substance. "Governmental authority" shall include any local, regional, state or federal governmental agency, court, judicial or quasi-judicial body, and any legislative or quasi-legislative body.
(1) In the event that the presence of hazardous materials is suspected or discovered on the Project site, DISTRICT shall retain an independent testing laboratory to determine the nature of the material encountered and whether corrective measures or remedial action is required.
(2) In the event the hazardous materials on the Project site is caused by CONTRACTOR, CONTRACTOR shall pay for all costs of testing and remediation, if any, and shall compensate DISTRICT for any additional costs incurred as a result of CONTRACTOR'S generation of hazardous material on the Project site. In addition, CONTRACTOR shall pay for the defense, indemnify and hold harmless DISTRICT and its agents, officers and employees from and against any and all claims, damages, losses, costs and expenses incurred in connection with, arising out of, or relating to, the presence of hazardous material on the Project site caused by CONTRACTOR.
Article 54. NON-DISCRIMINATION.
In the performance of this Contract, CONTRACTOR agrees that it will not engage in nor permit such subcontractors as it may employ to engage in the unlawful discrimination against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age (over 40) or sex. CONTRACTOR and subcontractors shall comply with the provisions of the Fair Employment and Housing Act as set forth at Government Code Section 12900 et seq. and all applicable regulations promulgated thereunder, including all amendments thereto.
Article 55. SCHEDULE OF VALUES AND PERIODICAL ESTIMATES.
(a) CONTRACTOR shall furnish on forms approved by DISTRICT:
(1) Within seven (7) calendar days after receiving notification of being awarded the Contract a detailed schedule of values giving complete breakdown of Contract price for each component of the project or site; and
(2) A periodical itemized estimate of work done for purpose of making partial payments thereon.
(3) Within ten (10) days of request by DISTRICT, a schedule of estimated monthly payments which shall be due CONTRACTOR under the Contract.
(b) Values employed in making up any of these schedules will be used only for determining basis of partial payments and will not be considered as fixing a basis for additions to or deductions from Contract price.
Article 56. CONTRACTOR CLAIMS.
If CONTRACTOR shall claim compensation for any damage sustained by reason of the acts of DISTRICT or its agents, CONTRACTOR shall, within five (5) days after sustaining such damage, make to ARCHITECT a written statement of the damage sustained. On or before the 15th day of the month succeeding that in which such damage shall have been sustained, CONTRACTOR shall file with DISTRICT an itemized statement of the details and amount of such damage, and unless such statement shall be made as thus required, CONTRACTOR'S claims for compensation shall be forfeited and invalidated and it shall not be entitled to consideration for payment on account of any such damage.
Article 57. DISPUTES - ARCHITECT'S DECISIONS.
(a) ARCHITECT shall within five (5) days, make decisions on all claims of DISTRICT or CONTRACTOR and on all other matters relating to the execution and progress of the work. The decisions of ARCHITECT shall not be binding, but shall be advisory only.
(b) All public works claims of $375,000 or less which arise between CONTRACTOR and DISTRICT shall be subject to the settlement and arbitration provisions and procedures set forth in Public Contract Code section 20104 et seq. which provisions are incorporated herein by this reference.
(c) In the event of a dispute between the parties as to performance of the work, the interpretation of this Contract, or payment or nonpayment for work performed or not performed, the parties shall attempt to resolve the dispute. Pending resolution of the dispute, CONTRACTOR agrees to continue the Work diligently to completion. If the dispute is not resolved, CONTRACTOR agrees it will neither rescind the Contract nor stop the progress of the Work, but CONTRACTOR'S sole remedy shall be to submit such controversy to determination by a court of the State of California, in Los Angeles County, having competent jurisdiction of the dispute, after the project has been completed, and not before.
Article 58. PAYMENTS.
(a) Pursuant to California Public Contract Code Section 20104.50, each month within thirty (30) days after receipt by ARCHITECT of an undisputed and properly submitted progress payment request from CONTRACTOR completed in accordance with the schedule of values, there shall be paid to CONTRACTOR a sum equal to ninety percent (90%) of value of work performed and of materials delivered on the ground or stock subject to or under the control of DISTRICT and unused up to the last day of the previous month, less aggregate previous payments. Monthly payments shall be made only on the basis of monthly estimates which shall be prepared by CONTRACTOR on a form approved by DISTRICT and filed before the fifth day of the month during which payment is to be made. Work completed as estimated shall be an estimate only and no inaccuracy or error in said estimate shall operate to release CONTRACTOR or Surety from any damages arising from such work or from enforcing each and every provision of this Contract, and DISTRICT shall have the right subsequently to correct any error made in any estimate for payment. CONTRACTOR shall not be entitled to have any payment estimates processed or be entitled to have any payment for work performed so long as any lawful or proper direction concerning work, or any portion thereof, given by DISTRICT or ARCHITECT shall remain uncomplied with. Should DISTRICT fail to make a progress payment to CONTRACTOR within thirty (30) days after receipt by ARCHITECT of an undisputed and properly submitted payment request from CONTRACTOR, DISTRICT shall pay interest to CONTRACTOR equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the California Code of Civil Procedure.
(b) Prior to submitting any progress payment request and for the purpose of expediting the progress payment procedure, CONTRACTOR agrees to meet with DISTRICT'S Inspector and ARCHITECT to review and discuss each proposed progress payment request. DISTRICT'S Inspector shall sign the proposed progress payment request as having reviewed the same. If any item submitted for payment is disputed during this review, CONTRACTOR agrees to use its best efforts to resolve the disputed items with DISTRICT'S Inspector and ARCHITECT before submitting the progress payment request to ARCHITECT. ARCHITECT and DISTRICT specifically reserve the right to dispute any item submitted in CONTRACTOR'S progress payment request, regardless of whether an item was identified as disputed in the review process provided for herein.
(c) Upon receipt of a payment request, ARCHITECT shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by ARCHITECT as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request. If ARCHITECT determines that the payment request is a proper payment request, DISTRICT shall obtain a written certificate from ARCHITECT stating that the work for which the payment is demanded has been performed in accordance with the terms of the Contract and that the amount stated in the certificate is due under the terms of the Contract, which certificate shall be attached to and made a part of the claim made and filed with DISTRICT, provided that if ARCHITECT shall, within three (3) days after written demand therefore, fail to deliver such certificate to DISTRICT, CONTRACTOR may file its claim with DISTRICT without said certificate, but together with such claim shall be filed a statement that demand was made for such certificate and that the same was refused. Thereupon, DISTRICT will either allow said claim as presented or shall, by an order entered on the minutes of said DISTRICT state the reasons for refusing to allow said claim. It is understood, moreover, that the certificate of ARCHITECT shall not be conclusive upon DISTRICT, but advisory merely.
(2) Any payment request determined not to be a proper payment request suitable for payment shall be processed through DISTRICT for return to CONTRACTOR as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document prepared by ARCHITECT setting forth in writing the reasons why the payment request is not proper.
(d) The number of days available to DISTRICT to make payment without incurring interest pursuant to this Section shall be reduced by the number of days by which DISTRICT exceeds the seven (7) day return requirement set forth in paragraph (2) above.
(e) For purposes of this Section:
(1) A "progress payment" includes all payments due CONTRACTOR, except that portion of the final payment designated by the Contract as retention earnings.
(2) A payment request shall be considered properly executed if funds are available for payment of the payment request, and payment is not delayed due to an audit inquiry by the financial officer of DISTRICT.
(f) DISTRICT shall have the right, if necessary for the protection of DISTRICT, to issue joint checks made payable to CONTRACTOR and subcontractors and/or material or equipment suppliers. The joint check payees shall be responsible for the allocation and disbursement of funds included as part of any such joint payment. In no event shall any joint check payment be construed to create any contract between DISTRICT and a subcontractor of any tier, any obligation from DISTRICT to such subcontractor, or rights in such subcontractor against DISTRICT.
(g) CONTRACTOR shall update record drawings and the progress schedule monthly to show critical path tasks and tasks which are completed to date. Failure to accomplish either will be cause for delaying approval of CONTRACTOR's application for payment.
(h) No payment by DISTRICT hereunder shall be interpreted so as to imply that DISTRICT has inspected, approved, or accepted any part of the Work. The final payment of ten percent (10%) of the value of the Work done under this Contract, if unencumbered, shall be made within sixty (60) days of "completion" as such term is defined in California Public Contract Code Section 7107(c).
(i) Unless otherwise provided, on or before making request for final payment of the undisputed amount due under the Contract, CONTRACTOR shall submit to DISTRICT, in writing, all claims for compensation under or arising out of this Contract. The acceptance by CONTRACTOR of the payment of the final amount shall constitute a waiver of all claims against DISTRICT under or arising out of this Contract, except those previously made, in writing, and identified by CONTRACTOR as unsettled at the time of CONTRACTOR'S final request for payment.
Article 59. CHANGES AND EXTRA WORK.
(a) DISTRICT may, as provided by law and without affecting the validity of this Contract, order changes, modifications, deletions and extra work by issuance of written change orders from time to time during the progress of the project, with the Contract sum being adjusted accordingly. All such work shall be executed under conditions of original Contract except that any claim for an extension of time caused thereby shall be adjusted at time of ordering such change. CONTRACTOR shall increase the amounts of its Payment and Performance Bonds in proportion to any increase in the Contract price. DISTRICT has discretion to order changes on a "time and material" basis with adjustments to time made after CONTRACTOR has justified through documentation the impact on the critical path of the Project.
(b) Notwithstanding any other provision in the Contract Documents, the adjustment in the contract sum, if any, and the adjustment in the contract time, if any, set forth in a change order shall constitute the entire compensation and/or adjustment in the contract time due CONTRACTOR arising out of the change in the work covered by the change order unless otherwise provided in the change order. The amount of the compensation due CONTRACTOR shall be calculated pursuant to subparagraph (e) of this Article 59. The entire compensation shall not include any additional charges not set forth in subparagraph (e) and shall not include delay damages (due to processing of a change order, refusal to sign a change order), indirect, consequential, and incidental costs including any project management costs, extended home office and field office overhead, administrative costs and profit other than those amounts authorized under subparagraph (e) of this Article 59.
(c) In giving instructions, ARCHITECT shall have authority to make minor changes in work, not involving change in cost, and not inconsistent with purposes of the project. DISTRICT's Director of Facilities Planning and Development may authorize changes in work involving a change in cost that does not exceed greater of the amounts specified in Public Contract Code section 20659. Otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless made pursuant to a written order from DISTRICT, authorized by action of the Governing Board, and no claim for addition to Contract sum shall be valid unless so ordered.
(d) If ARCHITECT determines that work required to be done under the Contract constitutes extra work outside the scope of the original Contract, ARCHITECT shall send a request for a detailed proposal to CONTRACTOR. CONTRACTOR will respond within ten (10) days of receipt of the Request for Proposal with a detailed proposal which shall include a complete itemized cost breakdown of all labor and material showing actual quantities, hours, unit prices, and the wage rates required for the change. If the change order involves a change in construction time, a request for the time change shall accompany the change order cost breakdown. All such requests for time shall be specified by CONTRACTOR as either "work days" or "calendar days". Any request for time received with only the designation of "days" shall be considered calendar days. The term "work days" as used in this paragraph shall mean Monday through Friday, excluding Saturdays, Sundays and federal/State of California observed holidays as more particularly described in the specifications for the Project. If the work is to be performed by subcontractor, CONTRACTOR must include a bid from the subcontractor containing the same detailed information as required for CONTRACTOR. No extension of time will be granted for change orders that, in the opinion of ARCHITECT, do not affect the critical path of the project.
(e) Value of any such extra work, change, or deduction shall be determined at the discretion of DISTRICT in one or a combination of the four (4) methods described hereafter in this paragraph (e). In determining the cost of material, labor and/or equipment for any proposed change order, DISTRICT may utilize one (1) or a combination of these four (4) methods. All change orders, regardless of the method(s) utilized by DISTRICT to determine the value of any such extra work, change, or deduction, shall not exceed the respective percentages listed in items e. through j. of the form set forth in paragraph (e)(4) below for: (1) CONTRACTOR's and/or subcontractor's overhead and profit; (2) liability and property damage insurance, workers' compensation insurance, social security, and unemployment taxes; and (3) bond and liability insurance. The amount of any increase or decrease in the Contract sum for the Project shall be determined using one (1) or a combination of the following four (4) methods:
(1) By mutual acceptance of a lump sum proposal from CONTRACTOR properly itemized and supported by sufficient substantiating data to permit evaluation.
(2) By unit prices contained in CONTRACTOR'S original bid and incorporated in Contract Documents or fixed by subsequent agreement between DISTRICT and CONTRACTOR.
(3) By using recognized estimating guides for order changes, modifications, deletions and extra work. These guides include the following:
(a) R. S. Means Company, Inc. Building Construction Cost Data, Western Region - Latest Edition, P.O. Box 800 Kingston, MA 02364-800.
(b) Lee Saylor, Inc. Current Construction Costs - Latest Edition, 1420 Willow Pass Road, Concord, CA 94520.
(4) By cost of material and labor and percentage for overhead and profit ("time and material"). If the value is determined by this method the following requirements shall apply:
(A) Daily Reports by CONTRACTOR.
i) General. At the close of each working day, CONTRACTOR shall submit a daily report to ARCHITECT and the Inspector, on forms approved by DISTRICT, together with applicable delivery tickets, listing all labor, materials, and equipment involved for that day, and for other services and expenditures when authorized concerning extra work items. An attempt shall be made to reconcile the report daily, and it shall be signed by ARCHITECT and CONTRACTOR. In the event of disagreement, pertinent notes shall be entered by each party to explain points which cannot be resolved immediately. Each party shall retain a signed copy of the report. Reports by subcontractors or others shall be submitted through CONTRACTOR.
ii) Labor. The report shall show names of workers, classifi-cations, hours worked, and hourly rate.
iii) Materials. The report shall describe and list quantities of materials used and unit cost.
iv) Equipment. The report shall show type of equipment, size, identification number, and hours of operation, including
loading and transportation, if applicable, and hourly/daily cost.
v) Other Services and Expenditures. Other services and expenditures shall be described in such detail as DISTRICT may require.
(B) Basis for Establishing Costs.
i) Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of workers at the time the extra work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from Federal, State or local laws, as well as assessments or benefits required by lawful collective bargaining agreements. The use of labor classification which would increase the extra work cost will not be permitted unless CONTRACTOR 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.
ii) Materials. The cost of materials reported shall be at invoice or lowest current price at which such materials are locally available and delivered to the job site in the quantities involved, plus sales tax, freight and delivery.
DISTRICT reserves the right to approve materials and sources of supply, or to supply materials to CONTRACTOR if necessary for the progress of the work. No markup shall be applied to any material provided by DISTRICT.
iii) Tool and Equipment Rental. No payment will be made for the use of tools which have a replacement value of $100 or less.
Regardless of ownership, the rates to be used in determining equipment rental costs shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed.
The rental rates paid shall include the cost of fuel, oil, lubrication, supplies, small tools, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, and all incidentals.
Necessary loading and transportation costs for equipment used on the extra work shall be included. If equipment is used inter-mittently and, when not in use, could be returned to its rental source at less expense to DISTRICT than holding it at the work site, it shall be returned, unless CONTRACTOR elects to keep it at the work site at no expense to DISTRICT.
All equipment shall be accept-able to ARCHITECT, in good working condition, and suitable for the purpose for which it is to be used. Manufacturer's ratings and manufacturer's 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.
iv) Other Items. DISTRICT may authorize other items which may be required on the extra work. Such items include labor, services, material and equipment which are different in their nature from those required by the work and which are of a type not ordinarily available from CONTRACTOR or any of the subcontractors.
Invoices covering all such items in detail shall be submitted with the request for payment.
v) Invoices. Vendors' invoices for material, equipment rental, and other expenditures, shall be submitted with the request for payment. If the request for payment is not substantiated by invoices or other documentation, DISTRICT may establish the cost of the item involved at the lowest price which was current at the time of the report.
vi) Overhead. Overhead, including direct and indirect costs shall be submitted with the request for payment and include the following: home office over-head, off-site supervision, change order preparation/ negotiation/research, time delays, project interference and disruption, additional guaranty and warranty durations, on-site supervision, additional temporary protection, additional temporary utilities, additional material handling costs, and
additional safety equipment costs.
The following form shall be used as applicable by DISTRICT and CONTRACTOR to communicate proposed additions and deductions to the Contract.
a. Material (attach itemized
quantity and unit cost plus
sales tax) _____ ______
b. Labor (attach itemized
hours and rates) _____ ______
c. Equipment (attach invoices) _____ ______
d. Subtotal _____ ______
e. If subcontractor performed
work, add subcontractor's
overhead and profit, to
portions performed by him,
not to exceed 10% of Item d. _____ ______
f. Liability and Property
Insurance, Social Security,
and Unemployment Taxes, not
to exceed 20% of Item b. _____ ______
g. Subtotal _____ ______
h. General Contractor's Overhead
and Profit, not to exceed 10%
of Item g if Contractor per-
formed the work. If subcon-
tractor performed the work,
not to exceed 5% of Item g.
If portions performed by
Contractor and subcontractors,
portions performed by
Contractor shall not exceed
10%, and portions performed
by subcontractor shall not
exceed 5% of Item g. _____ ______
i. Subtotal _____ ______
j. Bond and Liability Insurance
not to exceed 1% of Item i _____ ______
k. Total _____ ______
(f) It is expressly understood that the value of such extra work or changes, as determined by any of the aforementioned methods, expressly includes any and all of CONTRACTOR'S costs and expenses, both direct and indirect, resulting from additional time required on the project, or resulting from delay to the project. Any costs or expenses not included are deemed waived.
(g) For purposes of determining the cost, if any, of any change, addition or omission to the Work hereunder, all trade discounts, rebates, refunds, and all returns from the sale of surplus materials and equipment shall accrue and be credited to CONTRACTOR, and CONTRACTOR shall make provisions so that such discounts, rebates, refunds, and returns may be secured, and the amount thereof shall be allowed as a reduction of CONTRACTOR'S cost in determining the actual cost of construction for purposes of any change, addition or omissions in the Work as provided herein.
(h) If CONTRACTOR should claim that any instruction, request, drawing, specification, action, condition, omission, default, or other situation obligates DISTRICT to pay additional compensation to CONTRACTOR or to grant an extension of time for the completion of the Contract, or constitutes a waiver of any provision in the Contract, CONTRACTOR shall notify DISTRICT and ARCHITECT, in writing, of such claim within ten (10) days from the date CONTRACTOR has actual or constructive notice of the factual basis supporting the claim. Any such claim must include all documents supporting the claim and schedule showing the impact, if any, of any delay. A time extension shall be CONTRACTOR'S sole remedy and compensation for the delays identified in Article 63(a). CONTRACTOR'S failure to notify DISTRICT and ARCHITECT within such ten (10) day period shall be deemed a waiver and relinquishment of such a claim against DISTRICT. No claim shall be considered unless made in accordance with this subparagraph; however, the mere presentation of such claim shall not establish the validity of the cause giving rise to such claim, or of the extension of the contract time, and/or the increase in the contract price. CONTRACTOR shall proceed to execute the Work even though the adjustment has not been agreed upon. If such notice is given within the specified time, the procedure for its consideration shall be as stated above in this Article.
Article 60. COMPLETION.
(a) DISTRICT shall accept completion of the Contract and have the Notice of Completion recorded when the entire work shall have been completed to the satisfaction of DISTRICT.
(b) However, DISTRICT, at its sole option, may accept completion of the Contract and have the Notice of Completion recorded when the entire work shall have been completed to the satisfaction of DISTRICT, except for minor corrective items, as distinguished from incomplete items.
(c) If CONTRACTOR fails to complete the minor corrective items prior to the expiration of the sixty (60) day period immediately following acceptance of completion, DISTRICT shall withhold from the final payment an amount equal to one and one-half times the estimated cost, as determined by DISTRICT, of each item until such time as the item is completed.
(d) At the end of such sixty (60) day period, if there are items remaining to be corrected, DISTRICT may elect to proceed as provided in the Article entitled "Adjustments to Contract Price."
(e) The work may only be accepted as complete by action of the Governing Board.
Article 61. ADJUSTMENTS TO CONTRACT PRICE.
(a) If CONTRACTOR defaults or neglects to carry out the work in accordance with the Contract Documents or fails to perform any provision thereof, DISTRICT may, after ten (10) days written notice to CONTRACTOR and without prejudice to any other remedy it may have, make good such deficiencies.
(b) DISTRICT shall adjust the total Contract price by reducing the amount thereof by the cost of making good such deficiencies. If DISTRICT deems it inexpedient to correct work injured or not done in accordance with Contract provisions, an equitable reduction in the Contract price shall be made therefore.
Article 62. CORRECTION OF WORK.
(a) CONTRACTOR shall promptly remove from premises all work identified by DISTRICT as failing to conform to Contract, whether incorporated or not. CONTRACTOR shall promptly replace and reexecute its own work to comply with Contract Documents without additional expense to DISTRICT and shall bear the expense of making good all
work of other contractors destroyed or damaged by such removal or replacement.
(b) If CONTRACTOR does not remove such work within a reasonable time, fixed by written notice, DISTRICT may remove it and may store the material at CONTRACTOR'S expense. If CONTRACTOR does not pay expenses of such removal within ten (10) days thereafter, DISTRICT may, upon ten (10) days written notice, sell such materials at auction or at private sale and shall account for net proceeds thereof, after deducting all costs and expenses that should have been borne by CONTRACTOR.
Article 63. DELAYS AND EXTENSION OF TIME.
(a) CONTRACTOR shall not be charged for liquidated damages, as set forth in the Agreement, because of any delays in completion of work due to unforeseeable causes beyond the control and without the fault or negligence of CONTRACTOR, including but not restricted to: acts of God, or of public enemy, acts of Government, acts of DISTRICT or anyone employed by it or acts of another contractor in performance of a contract (other than this Contract) with DISTRICT, fires, floods, epidemics, quarantine restrictions, strikes, and unusually severe weather or delays of subcontractors due to such causes, provided that CONTRACTOR has taken reasonable precautions to prevent further delays owing to such causes. A ten (10) year average of the normal seasonal rainfall for the Los Angeles area, as determined by the National Weather Service, and any resulting "dry-out" time shall not be considered reason for a time extension. CONTRACTOR shall within ten (10) calendar days of beginning of any such delay notify DISTRICT in writing of causes of delay. Within thirty (30) days after such delay, CONTRACTOR shall furnish ARCHITECT with detailed information concerning the circumstances of the delay, the number of days actually delayed, the appropriate Contract Document references, and the measures taken to prevent or minimize the delay. Thereupon DISTRICT shall ascertain the facts and extent of delay and grant extension of time for completing work when, in its judgment, the findings of fact justify such an extension. DISTRICT'S findings of fact thereon shall be final and conclusive on the parties hereto. Extension of time shall apply only to that portion of work affected by the delay, and shall not apply to other portions of work not so affected. CONTRACTOR agrees that the extension of time granted under this Article 63 shall be its sole and exclusive remedy for the consequences of any delay described above. For any such delay resulting from the active negligence of ARCHITECT, DISTRICT or their officers, agents, and employees, CONTRACTOR shall be entitled to reimbursement for its reasonable additional costs resulting from such delay, but not for any additional profit or fee.
(b) CONTRACTOR acknowledges the extreme importance of promptly notifying and thoroughly documenting any request for time extension and further specifically acknowledges that DISTRICT will suffer extreme prejudice should CONTRACTOR fail in any way to comply with this requirement. Failure to comply with the procedures and time limits established in this Article shall constitute a waiver of such request. Evidence presented by CONTRACTOR that DISTRICT had actual notice of the time extension request, that DISTRICT was not prejudiced by CONTRACTOR'S failure to comply with this requirement, and/or that DISTRICT considered CONTRACTOR'S request despite CONTRACTOR'S failure to strictly comply with this provision shall not render this requirement unenforceable.
(c) An extension of time will not be granted for a delay caused by a shortage of materials, except DISTRICT-furnished materials, unless CONTRACTOR furnishes to ARCHITECT documented proof that CONTRACTOR has made every effort to obtain such materials from every known source within reasonable reach of the Work. CONTRACTOR shall also submit proof, in the form of network analysis data that the inability to obtain such materials when originally planned did, in fact, cause a delay in final completion of the Work which could not be compensated for by revising the sequence of operations. Only the physical shortage of material will be considered under these provisions as a cause for extension of time. No consideration will be given to any claim that material could not be obtained at a reasonable, practical, or economical cost, unless it is shown to the satisfaction of ARCHITECT that such material could have been obtained only at exorbitant prices, entirely inconsistent with current rates taking into account the quantities involved and the usual practices in obtaining such quantities and that such fact could not have been known or anticipated at the time the Contract was entered into.
Article 64. PAYMENTS WITHHELD.
(a) In addition to any amounts which DISTRICT may retain under Article entitled "COMPLETION" and Article entitled "PAYMENTS," DISTRICT may withhold a sufficient amount or amounts of any payment or payments otherwise
due to CONTRACTOR, as in its judgment may be necessary to cover:
(1) Payments which may be past due and payable for just claims against CONTRACTOR or any subcontractors for labor or materials furnished in the performance under this Contract, including, without limitation, payments made pursuant to the Article entitled "PAYMENTS BY CONTRACTOR."
(2) The cost of defective work which CONTRACTOR has not remedied.
(3) The cost of additional Inspection services required due to CONTRACTOR'S failure to comply with the terms and conditions of the Contract Documents.
(4) Liquidated damages assessed against CONTRACTOR.
(5) Penalties for violation of labor laws.
(6) The cost of materials ordered by DISTRICT pursuant to the Article entitled "MATERIALS."
(7) The cost of completion of this Contract if there exists a reasonable doubt that this Contract can be completed for the balance then unpaid to CONTRACTOR.
(8) Damage to DISTRICT, another contractor or subcontractor.
(9) Site clean-up as provided in Article entitled "CLEANING UP."
(10) Failure of CONTRACTOR to submit on a timely basis, proper and sufficient documentation required by the Contract Documents, including without limitation, monthly progress schedules, shop drawings, submittal schedules, schedule of values, product data and samples, proposed product lists, executed change orders and verified reports.
(b) If the above grounds are in the opinion of the DISTRICT removed by or at the expense of CONTRACTOR, payment shall be made for amounts withheld because of them.
(c) DISTRICT may apply such withheld amount or amounts for payment of such claims or obligations at its discretion. In so doing, DISTRICT shall make such payments on behalf of CONTRACTOR. If any payment is so made by DISTRICT, then such amount shall be considered as a payment made under Contract by DISTRICT to CONTRACTOR and DISTRICT shall not be liable to CONTRACTOR for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. DISTRICT shall submit to CONTRACTOR an accounting of such funds disbursed on behalf of CONTRACTOR.
(d) As an alternative to payment of such claims or obligations, DISTRICT, in its sole discretion, may reduce the total Contract price as provided in the Article entitled "ADJUSTMENTS TO CONTRACT PRICE."
Article 65. EXCISE TAXES.
(a) CONTRACTOR will pay all applicable Federal, State and local taxes on all materials, labor, or services furnished by it, and all taxes arising out of its operations under the Contract Documents.
(b) If under federal excise tax law any transaction hereunder constitutes a sale on which a federal excise tax is imposed and the sale is exempt from such excise tax because it is a sale to a state or local government for its exclusive use, DISTRICT, upon request, will execute documents necessary to show (1) that DISTRICT is a political subdivision of the State for the purposes of such exemption and (2) that the sale is for the exclusive use of DISTRICT. No excise tax for such materials shall be included in any bid price.
Article 66. NO ASSIGNMENT.
CONTRACTOR shall not assign, transfer, convey, sublet or otherwise dispose of this Contract or of its rights, title or interest in or to the same or any part thereof, without the previous consent in writing of DISTRICT; and CONTRACTOR shall not assign, by power of attorney or other-wise, any of the monies to become due and payable under the Contract unless by and with the like consent signified in like manner. If CONTRACTOR shall, without previous written consent, assign, transfer, convey, sublet or otherwise dispose of the Contract or its right, title or interest therein, or of any of the monies to become due under the Contract, to any other person, company, or other corporation, such attempted or purported assignment, transfer, conveyance, sublease or other disposition shall be null, void and of no legal effect whatsoever; and the Contract may, at the option of DISTRICT, be terminated, revoked and annulled, and DISTRICT shall thereupon be relieved and discharged from any and all liability and obligations growing out of the same to CONTRACTOR, and to its purported assignee or transferee. No right under the Contract, nor any right to any money to become due hereunder, shall be asserted against DISTRICT in law or equity by reason of any purported assignment of the Contract, or any part thereof, or by reason of the purported assignment of any monies to become due hereunder, unless authorized as set forth herein by written consent of DISTRICT. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of work called for under said Contract in favor of all persons, firms or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code, Government Code and/or Code of Civil Procedure and shall also be subject to deductions for liquidated damages or withholding of payments as determined by DISTRICT in accordance with this Contract.
Article 67. NOTICE AND SERVICE THEREOF.
Any notice from one party to the other or otherwise under the Contract shall be in writing and shall be dated and signed by the party giving such notice or by a duly authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners:
(1) If notice is given to DISTRICT by personal delivery thereof to DISTRICT or by depositing same in United States mails, enclosed in a sealed envelope addressed to DISTRICT, and sent by registered or certified mail with postage prepaid;
(2) If notice is given to CONTRACTOR by personal delivery thereof to said CONTRACTOR or to CONTRACTOR'S superintendent at site of project, or by depositing same in United States mails, enclosed in a sealed envelope addressed to said CONTRACTOR at its regular place of business or at such other address as may have been established for the conduct of work under this Contract, and sent by registered or certified mail with postage prepaid; or
(3) If notice is given to surety or other persons by personal delivery to such surety or other person or by depositing same in United States mails, enclosed in a sealed envelope, addressed to such surety or person at the address of such surety or person last communicated by surety or other person to party giving notice, and sent by registered or certified mail with postage prepaid.
Article 68. NO WAIVER.
The failure of DISTRICT in any one or more instances to insist upon strict performance of any of the terms of this Contract or to exercise any option herein conferred shall not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such terms or option on any future occasion.