A107-2007 - Owner-Contractor Agreement

Transcription

TM
Document A107 – 2007
Standard Form of Agreement Between Owner and Contractor for a Project of Limited
Scope
AGREEMENT made as of the day of in the year 20___
(In words, indicate day, month and year.)
BETWEEN the Owner:
(Name, legal status, address and other information)
City of Pasadena, a municipal corporation
100 N. Garfield Avenue
Pasadena, CA 91109
and the Contractor:
ADDITIONS AND DELETIONS:
The author of this document has
added information needed for its
completion. The author may also
have revised the text of the original
AIA standard form. An Additions and
Deletions Report that notes added
information as well as revisions to the
standard form text is available from
the author and should be reviewed. A
vertical line in the left margin of this
document indicates where the author
has added necessary information
and where the author has added to or
deleted from the original AIA text.
This document has important legal
consequences. Consultation with an
attorney is encouraged with respect
to its completion or modification.
for the following Project:
(Name, location and detailed description)
Historic Rehabilitation
La Casita del Arroyo
177 South Arroyo Boulevard
Pasadena, CA 91103
The Architect:
ONYX Architects, Inc.
316 N. Sierra Madre Blvd.
Pasadena, CA 91107
The Owner and Contractor agree as follows.
Init.
/
AIA Document A107™ – 2007. Copyright © 1936, 1951, 1958, 1961, 1963, 1966, 1970, 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects.
®
All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or
®
distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent
possible under the law. This document was produced by AIA software at 14:05:57 on 10/01/2013 under Order No.9591123634_1 which expires on 02/08/2014,
and is not for resale.
User Notes: City of Pasadena (Parks): La Casita del Arroyo
(1296196457)
1
TABLE OF ARTICLES
1
THE WORK OF THIS CONTRACT
2
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3
CONTRACT SUM
4
PAYMENT
5
DISPUTE RESOLUTION
6
ENUMERATION OF CONTRACT DOCUMENTS
7
GENERAL PROVISIONS
8
OWNER
9
CONTRACTOR
10
ARCHITECT
11
SUBCONTRACTORS
12
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
13
CHANGES IN THE WORK
14
TIME
15
PAYMENTS AND COMPLETION
16
PROTECTION OF PERSONS AND PROPERTY
17
INSURANCE & BONDS
18
CORRECTION OF WORK
19
MISCELLANEOUS PROVISIONS
20
TERMINATION OF THE CONTRACT
21
CLAIMS AND DISPUTES
ARTICLE 1 THE WORK OF THIS CONTRACT
The Contractor shall execute the Work described in the Contract Documents, listed in Article 6 below and reasonably
inferable by the Contractor from the Contract Documents as necessary to produce the results intended by the Contract
Documents.
ARTICLE 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
§ 2.1 The date of commencement of the Work shall be fixed in a notice to proceed issued by the Owner.
(Paragraph deleted)
If Owner’s issuance of a Notice to Proceed is delayed due to Contractor’s failure to return a fully-executed Agreement,
fully executed bonds, or proper documentation of insurance within fifteen (15) calendar days after the award of the
Contract and Owner’s tender of the Contract, then Contractor agrees to the deduction of one (1) calendar day from
the number of days to achieve Substantial Completion of the Work for every day of delay in Owner’s receipt of said
Init.
/
®
®
(1296196457)
2
documents. This right is in addition to and does not affect Owner’s right to demand forfeiture of Contractor’s Bid
Security if Contractor persistently delays in providing the required documentation.
§ 2.2 The Contract Time shall be measured from the date of commencement. Contractor shall complete the Work in
accordance with the Contract Time established in Section 2.3.
§ 2.3 The Contractor shall achieve Substantial Completion, as defined in Section 15.4 below, of the entire Work of
both parks no later than one hundred twenty (120) calendar days after the date of commencement established in
City’s Notice to Proceed ("Contract Time"). Contractor shall achieve Final Completion of the Work of both parks
within the time fixed by the Owner in the Certificate of Substantial Completion. The Contract Time may be extended
only as permitted by the Contract Documents and with the written authorization of the Owner. Time is of the essence
of this Agreement. By executing this Agreement, Contractor confirms that the Contract Time is a reasonable period for
completing the Work.
§ 2.4 LIQUIDATED DAMAGES
§ 2.4.1 Owner and Contractor acknowledge and agree that if Contractor fails to achieve Substantial Completion of the
entire Work within the Contract Time as specified in Section 2.3, as such may be extended in accordance with the
Contract Documents, without any fault of the Owner, Architect, their consultants, or anyone for whom they are
responsible, Owner will suffer as a result of Contractor’s failure significant damages, which are both extremely
difficult and impracticable to ascertain. Therefore, Owner and Contractor, having reasonably endeavored, but failed,
to ascertain an amount bearing a reasonable relationship to the actual damages that Owner will incur if Contractor fails
to achieve Substantial Completion of the Work within the Contract Time established in this Agreement, agree that in
the event Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time, Contractor
shall pay to Owner as Liquidated Damages, and not as a penalty but as a reasonable estimate of the amount of damages
Owner will suffer, $500.00 per day for each day that Contractor fails to achieve Substantial Completion of the entire
Work within the Contract Time. The Parties intend for the Liquidated Delay Damages set forth herein to constitute
liquidated damages as such term is used in Government Code Section 53069.85.
(Table deleted)
§ 2.4.2 It is further mutually understood and agreed between Owner and Contractor that Liquidated Damages may be
assessed against progress payments or retainage and that the Owner will issue a Construction Change Directive
deducting the amounts specified herein to reduce the Contract Sum, provided, however, progress payments made after
the scheduled date for Substantial Completion shall not constitute a waiver of Liquidated Damages. In the event the
remaining unpaid Contract Sum is insufficient to cover the full amount of assessed Liquidated Damages, Contractor or
its surety, if any, shall pay the difference to the Owner on demand.
§ 2.4.3 No Release. It is further mutually understood and agreed that Owner’s assessment of Liquidated Damages is
intended to compensate Owner solely for Contractor’s failure to achieve Substantial Completion within the Contract
Time and shall not release Contractor from liability from any other breach of Contract requirements, including any
failure of the Work to conform to applicable requirements.
ARTICLE 3 CONTRACT SUM
§ 3.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the
Contract. The Contract Sum shall be one of the following:
(Check the appropriate box.)
[ X ]
Stipulated Sum, in accordance with Section 3.2 below, includes all applicable taxes, insurance
bonds, licenses, overhead and profit
[
]
Cost of the Work plus the Contractor’s Fee, in accordance with Section 3.3 below
[
]
Cost of the Work plus the Contractor’s Fee with a Guaranteed Maximum Price, in accordance with
Section 3.4 below
§ 3.2 The Stipulated Sum shall be _____________ ($ _________ ), subject to additions and deductions as provided
in the Contract Documents.
Init.
/
®
®
(1296196457)
3
§ 3.2.1 The Stipulated Sum is based upon the following alternates, if any, which are described in the Contract
Documents and are hereby accepted by the Owner:
None.
§ 3.2.2 Unit prices, if any:
(Identify and state the unit price, and state the quantity limitations, if any, to which the unit price will be applicable.)
Item
None
Units and Limitations
Price Per Unit ($0.00)
§ 3.2.3 Allowances included in the stipulated sum, if any:
(Identify allowance and state exclusions, if any, from the allowance price.)
Item
None
Allowance
(Paragraphs deleted)
(Table deleted)
(Table deleted)
ARTICLE 4 PAYMENTS
§ 4.1 PROGRESS PAYMENTS
§ 4.1.1 Based upon proper Applications for Payment, including all supporting documentation, submitted to the Owner
and Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress
payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract
Documents.
§ 4.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the
month, or as follows:
§ 4.1.3 Owner Review and Payment. In accordance with Section 20104.50 of the California Public Contract Code (the
text of which is included in Section 15.6 below), Contractor shall submit each Application for Payment to the
Architect on the 25th day of each month. Each Application for payment shall be reviewed by Architect and Owner, as
soon as practical after receipt for the purpose of determining that the Application for Payment is a proper payment
request, accurately reflecting the value of Work completed and submitted with the documentation required by the
Contract Documents. An Application for Payment shall be deemed "proper" only if submitted on properly completed
and signed AIA forms and accompanied by the documentation described in Section 15.1 below. Provided that an
Application for Payment is received by the Owner and Architect not later than the 25th day of a month, and the
Application for Payment is determined to be an undisputed, proper payment request, the Owner shall make payment to
the Contractor not later than the 25th day of the following month. If an Application for Payment is received by the
Owner and Architect after the application date fixed above, and the Application for Payment is determined to be an
undisputed, proper payment request, the Owner shall make payment to the Contractor not later than thirty ( 30 )
calendar days after the Owner and Architect receive the Application for Payment.
(Federal, state or local laws may require payment within a certain period of time.)
§ 4.1.4 Improper Application for Payment. Any Application for Payment determined by the Architect or Owner not to
be a proper payment request suitable for payment shall be returned to the Contractor by the Owner or Architect as soon
as practicable, but not later than seven (7) calendar days after receipt by the Owner and Architect. An Application for
Payment returned to the Contractor shall be accompanied by written documentation setting forth the reasons why the
Application for Payment is not proper and not suitable for payment. If an Application for Payment is deemed to be
Init.
/
®
®
(1296196457)
4
improper and accompanied by written documentation setting forth the reasons why the Application for Payment is not
proper and not suitable for payment, no payment will be due the Contractor until thirty (30) calendar days after
resubmission of an undisputed, proper Application for Payment, provided, however, that Owner reserves the right to
make partial payments of undisputed amounts.
§ 4.1.5 Interest on Undisputed Amounts. If the Owner fails to make any progress payment within thirty (30) calendar
days after receipt of an undisputed and proper Application for Payment from the Contractor, the Owner shall pay
interest to the Contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the California
Code of Civil Procedure. The number of days available to the Owner to make a payment without incurring interest
shall be reduced by the number of days by which the Architect exceeds the seven (7) day return requirement set forth
above.
§ 4.1.6 Five percent (5%) retainage shall be withheld from each progress payment.
§ 4.2 FINAL PAYMENT
§ 4.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the
Contractor when
.1
the Contractor has fully performed the Contract except for the Contractor’s responsibility to correct
Work as provided in Section 18.2, and to satisfy other requirements, if any, which extend beyond final
payment;
.2
the Contractor has satisfied the requirements for final payment including, but not limited to, the
requirements of Section 15.5 below; and
.3
a final Certificate for Payment has been issued by the Architect.
§ 4.2.2 Neither final payment nor the remaining retainage shall become due to the Contractor until sixty (60) calendar
days following the Owner’s acceptance of the Work and, in Owner’s discretion, recordation of a Notice of Completion
and Contractor’s submission to the Owner of the items set forth in Section 15.5 below. In the event of a dispute
between the Owner and the Contractor, the Owner may withhold from the final payment an amount not to exceed one
hundred-fifty percent (150%) of the disputed amount.
ARTICLE 5 DISPUTE RESOLUTION
§ 5.1 BINDING DISPUTE RESOLUTION
The method of binding dispute resolution for all claims shall be as follows:
§ 5.1.1 Government Code Claims. Notwithstanding Contractor’s participation in dispute resolution proceedings or
other claims procedures under the Contract, such proceedings are in addition to Contractor’s obligation to present a
written Government Code claim, in accordance with Section 900 et seq. of the California Government Code, which is
a prerequisite to filing a lawsuit for money or damages against Owner.
§ 5.1.2 Arbitration of Disputes Under $25,000. Any dispute for under twenty-five thousand dollars ($25,000.00) arising
out of or relating to the negotiation, award, construction, performance, or non-performance of any aspect of the
Contract shall be settled by binding arbitration in accordance with the Construction Industry Rules of the American
Arbitration Association at Los Angeles, California, and judgment upon the award rendered by any such arbitrator may
be entered in any court having jurisdiction thereof. The Owner does not waive its right to object to the timeliness or
sufficiency of any claim filed or required to be filed against the Owner and reserves the right to conduct full discovery.
§ 5.1.3 Litigation. Any claim, dispute, or other matter in question arising out of or related to the Contract or Project of
or in excess of twenty-five thousand dollars ($25,000.00), that cannot be resolved between the Parties, shall be
resolved through litigation in a court of competent jurisdiction in the State of California, subject to Section 5.1.4
regarding non-binding mediation. The venue for any litigation shall be Los Angeles County.
§ 5.1.4 Upon request of the Owner, in lieu of or prior to litigation, the Parties shall endeavor to resolve their claims by
mediation, which, unless the parties otherwise mutually agree, shall be in accordance with the Construction Industry
Mediation Rules of the American Arbitration Association currently in effect. The parties shall share the mediator’s fee
Init.
/
®
®
(1296196457)
5
and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another
location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in
any court having jurisdiction thereof.
ARTICLE 6 ENUMERATION OF CONTRACT DOCUMENTS
§ 6.1 The Contract Documents are defined in Article 7 and, except for Modifications issued after execution of this
Agreement, are enumerated in the sections below.
§ 6.1.1 The Agreement is this executed AIA Document A107–2007, Standard Form of Agreement Between Owner
and Contractor for a Project of Limited Scope.
§ 6.1.2 The Supplementary and other Conditions of the Contract:
Document
Section 00800
Title
Supplementary
Conditions
Date
Pages
Title
Date
Pages
§ 6.1.3 The Specifications:
Index of Specifications, Exhibit A.
Section
§ 6.1.4 The Drawings:
(Either list the Drawings here or refer to an exhibit attached to this Agreement.)
Index of Drawings, Exhibit A.
Number
Title
Date
Date
Pages
§ 6.1.5 The Addenda, if any:
Number
Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding
requirements are enumerated in this Article 6.
§ 6.1.6 Permits and similar Governmental Approvals for the Work required by Applicable Law.
§ 6.1.7 Additional documents, if any, forming part of the Contract Documents:
.1
Exhibit A, Determination of the Cost of the Work, if applicable.
.2
AIA Document E201™–2007, Digital Data Protocol Exhibit, if completed, or the following:
.3
Other documents:
(List here any additional documents that are intended to form part of the Contract Documents.)
Exhibit A –
Exhibit B –
Exhibit C –
Exhibit D –
Exhibit E –
Init.
/
Index of Drawings and Specifications
Contractor’s Bid Form, Preliminary Schedule of Values, and Subcontractor
Listing
Certificate(s) of Insurance and Additional Insured Endorsement(s)
Taxpayer Protection Amendment Disclosure Form
Project Milestone Schedule (see §§ 9.8.1 and 9.8.2 below)
®
®
(1296196457)
6
Exhibit F –
Addenda
The following documents ("Bidding Requirements") are also Contract Documents and the checked
documents are required to be submitted at the time of bid:
Invitation to Bid
Instructions to Bidders
√
Contractor’s Bid Form
√
Bid Bond
√
Subcontractor Listing
√
Vendor List Questionnaire (Form AA-1)
√
Project Workforce Utilization Form (Form AA-2)
√
Current Permanent Workforce Utilization Form (Form AA-3, optional)
√
Contractor Qualification Statement
√
Contractor Verification
√
Specialty Contractor List of Qualifying Projects
√
Declaration of Noncollusion
√
Living Wage Compliance Certification
√
Declaration of Eligibility to Contract
√
Identity Confirmation
ARTICLE 7 GENERAL PROVISIONS
§ 7.1 THE CONTRACT DOCUMENTS
The Contract Documents are enumerated in Article 6 and consist of the permits and other Governmental Approvals
required for the Work, this Agreement and Exhibits thereto, Conditions of the Contract, Supplementary, Special and
other, if any, Drawings, Specifications, Addenda issued prior to the execution of this Agreement, all of which form the
Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. A Modification is
(1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change
Directive or (4) a written order for a minor change in the Work issued by the Architect. The intent of the Contract
Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor.
The Contract Documents are complementary, and what is required by one shall be as binding as if required by all;
performance by the Contractor shall be required to the extent consistent with the Contract Documents and reasonably
inferable from them as being necessary to produce the indicated results. There are explicit limits on the parties who
may execute Modifications and the cost and time impacts that may result from such Modifications as set forth in
Sections 8.1 and 13.3 herein. Contractor is obligated to ensure that the requirements of Sections 8.1 and 13.3 are
followed before it acts upon any Modification.
§ 7.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated
agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written
or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be
construed to create a contractual relationship of any kind between any persons or entities other than the Owner and the
Contractor.
§ 7.3 THE WORK
The term "Work" means the construction and services required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the Project. Nothing
in the Agreement shall be interpreted as imposing on the Owner, Architect, or their respective agents, employees,
officers, directors, or consultants any duty, obligation or authority with respect to any items that are not intended to be
incorporated into the completed Project, or that do not comprise the Work including, but not limited to shoring,
scaffolding, hoists, weatherproofing, or any temporary facility or activity, because these are the sole responsibility of
Contractor.
§ 7.4 INSTRUMENTS OF SERVICE
Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible
and intangible creative work performed by the Architect and the Architect’s consultants under their respective
Init.
/
®
®
(1296196457)
7
professional services agreements. Instruments of Service may include, without limitation, studies, surveys, models,
sketches, drawings, specifications, and other similar materials.
§ 7.5 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE
§ 7.5.1 All Drawings, Specifications, sketches and other documents, and copies thereof furnished by the Architect are
and shall remain the property of the Owner. They are to be used only with respect to this Project and are not to be used
by the Contractor or any Subcontractor, Sub-subcontractor or material or equipment supplier on any other project.
Neither the Contractor nor any Subcontractor, Sub-subcontractor or material or equipment supplier shall own or claim
a copyright in any Drawings, Specifications and other documents prepared by the Architect or the Architect’s
consultants, and unless otherwise indicated, the Owner shall be deemed the author of them and will retain all common
law, statutory and other reserved rights, in addition to copyright. With the exception of one contract set each for the
Contractor and its Subcontractors, such documents are to be returned or suitably accounted for to the Owner at the
completion of the Work. Submission or distribution to meet official regulatory requirements or for other purposes in
connection with the Project is not to be construed as publication in derogation of the Owner’s common law copyright
or other reserved rights.
§ 7.5.2 The Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to use
and reproduce the Instruments of Service provided to them solely and exclusively for execution of the Work. All
copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The
Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers may not use the Instruments of
Service on other projects or for additions to this Project outside the scope of the Work without the specific written
consent of the Owner, Architect and the Architect’s consultants.
§ 7.6 TRANSMISSION OF DATA IN DIGITAL FORM
If the parties intend to transmit Instruments of Service or any other information or documentation in digital form, they
shall endeavor to establish necessary protocols governing such transmission, unless otherwise provided in the
Agreement or in the Contract Documents.
§ 7.7 DEFINITIONS
§ 7.7.1 "Addenda" are written or graphic instruments issued by the Owner prior to execution of the Agreement,
which modify or interpret the Bidding Documents.
§ 7.7.2 An "Admitted Surety Insurer" is a surety authorized to transact surety insurance in the State of California, as
evidenced by a valid Certificate of Authority issued by the California Department of Insurance in accordance with
California Insurance Code Section 12070 et seq.
§ 7.7.3 The term "Allowance" is a line item cost estimate established by the Owner to be carried in the Base Bid,
Contract Sum and Schedule of Values for a particular item of Work, which cannot be sufficiently defined so as to
allow the Contractor to adequately determine fair value before the Bid Deadline. Allowances include estimated
amounts established for certain construction elements that have not yet been fully designed or authorized for inclusion
in the Project or to permit deferral of selection of actual materials and equipment to a later date when additional
information is available for evaluation. The line item cost estimate established by Owner for Work covered by an
Allowance includes the cost to the contractor of all materials, equipment, with submittal preparations as required,
labor, transportation, delivery, handling, installation, supervision, overhead, profit, licenses, permits, fees, bonds,
insurance, all sales, use, and other taxes legally chargeable, warrants and correction guarantees, and all other costs and
expenses incidental to such work. Overhead and profit shall be paid at rates established in accordance with Section
13.7.5, provided, however, no overhead or profit shall be paid for permits funded by an Allowance. Contractor is
obligated to ensure that the requirements of Section 9.7 below are followed with respect to approval of material and
prices and payment for Work covered by Allowances.
§ 7.7.4 The term "Alternate Bid Item" means an item of Work and the corresponding price entered by Bidder in the
Contractor’s Bid Form that may be added to or deducted from the Base Bid, which will be Contractor’s responsibility
only if selected by Owner. Owner reserves the right, in its sole discretion, to select any, all, or none of the Alternate
Bid Items at the time of award of the Contract regardless of whether those Alternate Bid Items were used to determine
the lowest Bid.
Init.
/
®
®
(1296196457)
8
§ 7.7.5 The term "Applicable Law" means all state, federal, and local laws, statutes, ordinances, codes, rules, and
regulations governing the Work.
§ 7.7.5 The term "Application for Final Payment" is Contractor’s written request for Final Payment of the Contract
Sum including reconciliation of all partial payments, Claims, changes or other proper adjustments to the Contract.
§ 7.7.6 The "Base Bid" or "Base Bid Price" is the sum stated in the Bid for which the Bidder offers to perform the
Work described in the Bidding Documents as the base Contract Work.
§ 7.7.7 A "Bid" is a complete and properly executed written offer by the Bidder on Owner-provided forms to do the
Work for the prices stated, submitted in response to the Advertisement for Bids/Notice Inviting Bids.
§ 7.7.8 The term "Bidding Documents" include the Bidding Requirements and the proposed Contract Documents.
The Bidding Requirements consist of the documents identified as such in Section 6.1.6 above. The proposed Contract
Documents consist of the Bidding Requirements, the Owner/Contractor Agreement and Conditions of the Contract
(Supplementary, Special, and all exhibits), the Drawings, the Specifications, permits and Governmental Approvals,
and all Addenda issued prior to and all Modifications issued after the execution of the Owner/Contractor Agreement.
§ 7.7.9 A "Building Permit" is a written authorization required by Applicable Law before construction of the Project
can commence. A Building Permit allows construction to proceed in accordance with construction documents
approved by the Pasadena Building Department.
§ 7.7.10 The "Certificate of Substantial Completion" is the written document issued by the Architect that
establishes the date of Substantial Completion, attaches Owner’s Punch List of Work remaining to be completed or
corrected, and fixes the time within which the Contractor shall finish all items on the Owner’s Punch List
accompanying the certificate and otherwise achieve Final Completion of the Work.
§ 7.7.11 "Construction Permits" are permits required for the proper execution and completion of the Work, which
are customarily secured after execution of the Contract including, but not limited to, permits relating to trenching,
excavation, street work, mechanical, electrical, plumbing and elevators.
§ 7.7.12 The term "Critical Path" means the sequence of activities yielding the longest path in a CPM Schedule that
has a Float value of zero indicating that any delay in any one activity along this path will delay the completion of the
overall Work.
§ 7.7.13 The term "Critical Path Method (CPM) Schedule" means a schedule network of all Work to be performed
that has been defined and organized by activities. All activities are defined by interrelationships, resources and
durations.
§ 7.7.14 "Final Completion" is the stage of performance of the Work when:
.1
.2
.3
.4
.5
All Work required by the Contract Documents has been fully completed in compliance with the
Contract Documents and all Applicable Laws including, but not limited to, correction or completion of
all punch list items noted upon Substantial Completion;
Contractor has delivered to Owner an Application for Final Payment, Affidavit of Final Completion,
and all closeout documentation required by the Contract Documents including, but not limited to, the
closeout documentation required by Article 15 below;
The Work passes the Architect’s final inspection and the Architect issues a final Certificate for
Payment;
Final inspection and approval by all applicable governmental agencies has occurred and a final
Certificate of Occupancy has been issued by the City of Pasadena covering the entire Project site
without exception or condition; and
The Owner determines the Work is complete and, in its discretion, records a Notice of Completion.
§ 7.7.15 The term "Float" is the amount of time that any activity or path of activities may be delayed without
impacting the date for Substantial Completion of the Work.
Init.
/
®
®
(1296196457)
9
§ 7.7.16 A "Governmental Approval" is any approval, authorization, inspection, certification, consent, exemption,
filing, permit, registration, plan check, ruling or similar authorization required by any federal, state or local law,
regulation or procedures necessary for Contractor to perform the Work.
§ 7.7.16 The term "Milestone" means a deadline for completion of a portion of the Work established in the
Agreement.
§ 7.7.17 A "Notice to Proceed" is a written document issued by the Owner establishing the date of commencement
of the Contract Time. The Contract Time for Contractor’s performance of the Work is measured in calendar days from
the date of commencement established in the Notice to Proceed. See Agreement, § 2.1.
§ 7.7.18 The term "Party(ies)" means the Owner and/or Contractor.
§ 7.7.19 The "Project" is the total construction of which the Work performed under the Contract Documents may be
the whole or a part and which may include construction by other contractors and by the Owner’s own forces, including
persons or entities under separate contracts not administered by the Architect.
§ 7.7.20 The Project Manual is a volume assembled for the Work that includes, without limitation, the Bidding
Documents, Agreement and exhibits, Conditions of the Contract (Supplementary and Special, if any), and
Specifications.
§ 7.7.21 The "Punch List" is the list of Work remaining to be completed after Contractor achieves Substantial
Completion of the Work and is limited to minor incidental items of Work, necessary to correct imperfections, which
have no effect on the safety, function or operability of the Work.
§ 7.7.22 The term "Separate Contractors" means contractors performing portions of the Project under separate
contracts with the Owner.
§ 7.7.23 The terms "Site" and "Project Site" mean both parks where the Work shall be performed.
§ 7.7.24 A "Sub-bidder" is a person or entity who submits a bid to a Bidder for materials, equipment or labor for a
portion of the Work.
§ 7.7.25 The Owner may issue a "Unilateral Change Order" to adjust the Contract Sum and Contract Time if the
Owner and Contractor cannot agree and Contractor may pursue a claim for all remaining disputes.
§ 7.7.26 A "Unit Price" is an amount agreed to by the Parties as a price per unit of measurement for payment for
materials, equipment or services including supervision, overhead and profit for a portion of the Work.
§ 7.7.27 A "Work Directive" is a unilateral written order issued by Owner directing Contractor to continue
performance of the Work or a disputed item of Work pending resolution of a Claim or dispute concerning the scope of
the Work.
§ 7.8 PUBLICITY
§ 7.8.1 The Contractor, its agents, employees, Subcontractors and suppliers shall not engage in any communication or
correspondence with persons not directly involved in the construction of the Project, concerning any aspect of the
construction of the Project, without the express written consent of Owner. All communications to the media, or in
response to inquiries made by private citizens, shall be issued solely through the Owner.
§ 7.9 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 7.9.1 Complementary Documents. The intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and
what is required by one shall be as binding as if required by all. All Work mentioned or indicated in the Contract
Documents, and all Work reasonably inferable from them, shall be performed by the Contractor as part of the Contract
unless it is specifically indicated in the Contract Documents that such work is to be performed by others.
Init.
/
®
®
(1296196457)
10
§ 7.9.2 Order of Precedence. In the event of conflict between any of the Contract Documents, the provision placing a
more stringent requirement on the Contractor shall prevail. The Contractor shall provide the better quality or greater
quantity of Work and/or materials unless otherwise directed by Owner in writing. In the event none of the Contract
Documents place a more stringent requirement or greater burden on the Contractor, the controlling provision shall be
that which is found in the document with higher precedence. In the event of conflicts or discrepancies among the
Contract Documents, interpretations will be based on the following order of precedence, with "(1)" being the highest:
(1)
(2)
(3)
(4)
(5)
(6)
Permits and other Governmental Approvals;
Modifications, issued after execution of the Agreement;
The Owner-Contractor Agreement, including all exhibits, attachments, and Addenda issued prior to
execution of the Contract with later Addenda having priority over earlier Addenda;
Supplementary Conditions, if any;
Drawings & Specifications (Drawings govern Specifications for quantity and location, and
Specifications govern Drawings for quality and performance. In the event of ambiguity in quantity
or quality, the greater quantity and higher quality shall govern, the more stringent will take
precedence over the less stringent); and
Bidding Requirements.
§ 7.10.2 Should it appear that the Work to be done or any of the matters relative thereto are not sufficiently detailed or
explained in the Contract Documents, the Contractor shall apply to the Architect in writing (submit a request for
information ("RFI")) for such further written explanations as may be necessary. Any adjustments to the Work made
by Contractor without first obtaining written clarification from the Architect shall be at Contractor’s risk and expense
and shall be subject to removal if required by the Architect or Owner.
§ 7.11 Severability. In the event any article, section, sub-article, Paragraph, Subparagraph, sentence, clause or phrase
contained in the Contract Documents shall be deemed, determined, declared, or adjudged invalid, illegal,
unconstitutional, void, or otherwise unenforceable, such provision shall be deemed to be severed and deleted from the
Contract Documents and all remaining provisions shall continue in full force and effect.
§ 7.12 Provisions Deemed Inserted. Each and every provision of Applicable Law and clause required to be inserted in
the Contract Documents shall be deemed to be inserted herein and the Contract Documents shall be read and enforced
as though such provision or clause is included herein, and if through mistake, or otherwise, any such provision is not
inserted or not correctly inserted, then upon application of either party, the Contract Documents shall forthwith be
physically amended to make such insertion or correction.
§ 7.13 Neutral Interpretation. In the event of any ambiguity in, or dispute concerning the interpretation of, any
provision of the Contract, the Contract shall not be construed against or in favor of either party but shall be construed
in a neutral manner.
§ 7.14 Governing Law. The validity, interpretation, and performance of this contract shall be controlled by and
construed under the laws of the State of California. The venue for any litigation shall be Los Angeles County.
ARTICLE 8 OWNER
§ 8.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER
§ 8.1.1 The "Owner" is the City of Pasadena, California or its legally authorized representatives. The term "City" also
means "Owner." The Owner’s Representative is Steven L. Wright, Assistant City Engineer, City of Pasadena,
Department of Public Works, 100 N. Garfield Avenue, Third Floor, Pasadena, CA 91101. Owner’s Representative
shall serve as a single point for transmission of Owner’s instructions and approvals, receipt of information required to
be provided by Contractor and all correspondence. Owner’s Representative shall interpret and define Owner’s
policies, render decisions with respect to Contractor’s performance of the Work, approve Contractor applications for
payment, review and approve Contractor schedules and submittals, review and approve Change Orders, review all
quantity calculations related to pay quantities, review and approve changes in the Contract Time, concur in any
defective work notification, review and certify Substantial Completion of the Work, review and approve Contractor’s
Application for Final Payment. The extent and limits of the authority of any designee of the Owner’s Representative
shall be set forth in writing. Contractor shall be entitled to rely on the decisions and information provided by such
written designee subject to the limitations of authority set forth in writing. Authority to execute Contract
Init.
/
®
®
(1296196457)
11
Modifications, including Change Orders, rests solely with Owner’s Representative, subject to the limits described in
Article 13 below.
§ 8.1.2 Existing Utilities. In accordance with California Government Code § 4215, Owner shall assume the
responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on
the Project Site, if such utilities are not identified in the Contract Documents with reasonable accuracy. Contractor
shall be compensated 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 Contract Documents with
reasonable accuracy, and for equipment on the Project Site necessarily idled during such work. Nothing in
Government Code § 4215 shall be deemed to require Owner to indicate the presence of existing service laterals or
appurtenances whenever the presence of such utilities on the Project Site can be inferred from the presence of other
visible facilities, such as buildings, meters and junction boxes, on or adjacent to the Project Site, provided, however,
nothing in Government Code § 4215 shall relieve Owner from identifying main or trunklines in the Contract
Documents. If the Contractor encounters utility facilities not identified by the Owner in the Contract Documents, the
Contractor shall immediately notify, in writing, the Owner and the utility. In the event that such utility facilities are
owned by Owner, Owner shall have the sole discretion to perform repairs or relocation work at a price determined in
accordance with Article 13 herein.
§ 8.1.3 Surveys and Reference Documents. The Owner will make available to Contractor, all surveys and reference
documents in Owner’s possession relied upon in the Contract Documents to describe the physical characteristics and
legal limitations of the Site.
§ 8.1.4 Initial Decision Maker. The Owner will interpret and decide matters concerning performance under, and
requirements of, the Contract Documents on written request of Contractor or when Owner deems it necessary. The
Owner will make initial decisions on all claims, disputes and other matters in question between the Owner and
Contractor. Delay shall not be recognized on account of failure by the Owner to furnish such interpretations until 15
days after written request is made for them.
§ 8.2 OWNER’S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as
required by Article 18, or repeatedly fails to carry out the Work in accordance with the Contract Documents, the
Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such
order is eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the
Owner to exercise this right for the benefit of the Contractor or any other person or entity. The Owner’s right to stop
the Work is in addition to and without prejudice to any other rights or remedies of the Owner.
§ 8.3 OWNER’S RIGHT TO CARRY OUT THE WORK
§ 8.3.1 Notwithstanding other remedies available to the Owner, if the Contractor defaults or neglects to carry out the
Work in accordance with the Contract Documents and fails within a forty-eight (48) hour period after receipt of
written notice from the Owner to commence and correct such default or neglect with diligence and promptness, the
Owner, at its sole option and without obligation, may, with their own or outside forces, correct such deficiencies. In
such case, an appropriate Change Order or Construction Change Directive shall be issued deducting from payments
then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Owner’s
project management staff’s, the Architect’s, and their respective consultants’ additional services and expenses made
necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to
cover such amounts, the Contractor shall pay the difference to the Owner immediately. This remedy is cumulative.
The Owner may terminate the Contractor’s performance pursuant to the terms of the Contract. The Owner also has the
right, but not the obligation, to self-perform or have other companies perform portions of the Work previously
assigned to Contractor. In such case an appropriate Change Order or Construction Change Directive shall be issued
deducting from payments then or thereafter due the Contractor the cost of performing such work efforts.
§ 8.4 OWNER’S RIGHT TO ORDER EXTRAORDINARY MEASURES
§ 8.4.1 Non-Compensable Extraordinary Measures. In the event the Owner determines that the performance of the
Work, or any portion thereof, has not progressed or reached the level of completion required by the Contract
Documents due to causes within the control of Contractor, the Owner shall have the right to order the Contractor to
take corrective measures necessary to expedite the progress of construction, including, without limitation, (1) working
additional shifts or overtime, (2) supplying additional manpower, equipment, and facilities and (3) submitting a
Init.
/
®
®
(1296196457)
12
recovery schedule for re-sequencing performance of the Work or other similar measures (hereinafter referred to
collectively as Extraordinary Measures). Such Extraordinary Measures shall continue until the progress of the Work
complies with the stage of completion as required by the Contract Documents. The Contractor shall not be entitled to
an adjustment in the Contract Sum in connection with the Extraordinary Measures required by the Owner under or
pursuant to this Section. The Owner may exercise the rights furnished the Owner under or pursuant to this Section as
frequently as the Owner deems necessary to ensure that the Contractor’s performance of the Work will comply with
the Contract Time, or interim completion date set forth in the Contract Documents. If Contractor or its Subcontractors
fail to commence Extraordinary Measures within forty-eight (48) hours of Owner’s written demand, Owner may,
without prejudice to other remedies, take corrective action at the expense of Contractor.
§ 8.4.2 Compensable Extraordinary Measures. Owner, in its discretion, may issue a written request, to the Contractor
requesting Contractor to submit an itemized proposal for Extraordinary Measures in order to achieve early completion
of all or a portion of the Work, due to no fault of the Contractor, in a form acceptable to Owner within ten (10)
calendar days after Owner’s issuance of the request. Contractor’s proposal shall be limited to direct labor cost
(itemized hours and rates) and overhead and profit on the labor costs.
§ 8.5 OWNER’S RIGHT TO AWARD SEPARATE CONTRACTS
§ 8.5.1 The Owner reserves the right to award other contracts in connection with other portions of the Project under the
Contract Documents.
§ 8.6 PROHIBITED INTERESTS
No official of Owner who is authorized in such capacity and on behalf of Owner 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 the 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 Owner who is authorized in such capacity and on behalf of Owner 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 in any part thereof. Contractor shall receive no
compensation and shall repay Owner for any compensation received by Contractor hereunder, should Contractor aid,
abet or knowingly participate in violation of this Article.
ARTICLE 9 CONTRACTOR
§ 9.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
§ 9.1.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become
familiar with local conditions under which the Work is to be performed and correlated personal observations with
requirements of the Contract Documents.
§ 9.1.2 By submitting a Bid and signing the Agreement, Contractor represents: (1) that it has visited the Project sites,
familiarized itself with the local conditions under which the Work is to be performed including, without limitation,
the conditions contained in any test results and/or reports provided by Owner or performed by Contractor, and the
conditions reflected on any site surveys provided to or performed by the Contractor; (2) that it is fully experienced,
qualified and competent to perform the services set forth in the Contract Documents and understands that Owner is
relying upon said experience, qualifications, and competence; (3) that it is properly equipped, organized and financed
to perform the Work; (4) that it is properly permitted and licensed by the State of California and all other governmental
entities to perform the Work required by the Contract and that it will retain only properly licensed Subcontractors to
perform the Work of the Contract; (5) that it has familiarized itself with all conditions bearing upon transportation,
disposal, handling and storage of materials; (6) that it has familiarized itself with the availability of labor, water,
electric power, and roads; (7) that it has familiarized itself with uncertainties of weather, or similar physical conditions
at the Project sites; (8) that it has familiarized itself with the character of equipment and facilities needed preliminary
to and during performance of the Work; (9) that it has familiarized itself with the staging and material storage
constraints of the Project sites and surrounding buildings and will confine its staging and storage operations to
approved areas; (10) that it shall maintain the immediate surrounding areas in a clean and safe manner at all times; (11)
that it will coordinate its construction activities with other contractors performing work on the Project sites; (12) that
it will adhere to the assigned transit route identified by the Owner; and (13) that it will adhere to and be bound by any
conditions imposed by the commissions of the Owner and any regulatory agency or governmental entity with
jurisdiction over the Project.
Init.
/
®
®
(1296196457)
13
§ 9.1.3 Field Measurements. Since the Contract Documents are complementary, the Contractor shall, before starting
each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the
Work, as well as the information furnished by the Owner pursuant to Section 8.1, shall take field measurements of any
existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These
obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the
purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall
promptly report to the Owner and Architect any errors, inconsistencies, or omissions discovered by or made known to
the Contractor as a Request for Information ("RFI"), submitted to the Architect in such form as the Architect may
require. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a
licensed design professional unless otherwise specifically provided in the Contract Documents. The accuracy of
grades, elevations, dimensions or locations of existing conditions are not guaranteed by Owner or Architect, and
Contractor is responsible for verifying same. In all cases of interconnection of its Work with existing or other work,
Contractor shall verify at the site all dimensions relating to such existing or other work. Any error due to Contractor’s
failure to so verify all such grades, elevations, dimensions, or locations shall be promptly rectified by Contractor
without any additional cost to Owner.
§ 9.1.4 The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws,
statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall
promptly report to the Owner and Architect any nonconformity including, but not limited to, any design errors or
omissions discovered by or made known to the Contractor as a request for information in such form as the Architect
may require.
§ 9.1.5 Should any words or numbers that are necessary to a clear understanding of the Work be illegible or omitted,
or should an error or discrepancy occur in any of the Contract Documents, the Contractor shall immediately notify the
Owner and Architect in writing of such omission, error or discrepancy, and the Contractor shall not proceed with that
portion of the Work until clarification is received from the Architect. In the event the Contractor proceeds without so
notifying the Owner and Architect, the Contractor shall be responsible for the cost of correcting same, including any
resulting damage.
§ 9.2 SUPERVISION AND CONSTRUCTION PROCEDURES
§ 9.2.1 Contractor’s Means and Methods. The Contractor shall supervise and direct the Work, using the Contractor’s
best skill and attention. The Contractor shall be solely responsible for and have control over construction means,
methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract,
unless the Contract Documents give other specific instructions concerning these matters.
§ 9.2.2 Contractor’s Vicarious Liability for Employees and Subcontractors. The Contractor shall be responsible to the
Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and
other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its
Subcontractors, and from any damages, losses, costs and expenses resulting from such acts or omissions.
§ 9.2.3 Coordination of Third-Party Inspections. The Contractor shall be responsible for and coordinate inspections
required by governmental authorities having jurisdiction and/or oversight over the Work. Failure to obtain permits,
licenses or other approvals because of the failure of the Contractor to conform to this requirement shall not extend the
Contract Time, and the Contractor shall not be entitled to an increase in the Contract Sum therefore. The Contractor
is to request inspection services in diligent manner so as not to burden the Owner with unnecessary inspection costs.
§ 9.2.4 Inspection of Material Deliveries. The Contractor shall inspect all materials and equipment delivered to the
Project Site and shall reject any materials or equipment that will not conform to the Contract Documents when
properly installed.
§ 9.2.5 Contractor’s Designated Representative. The Contractor, prior to award of the Contract and prior to any
substituting, shall furnish in writing to the Owner the name and qualifications of a proposed Designated
Representative (superintendent or project manager) consistent with the requirements set forth in Paragraph 23.1.5 of
the Instructions to Bidders. The Owner will reply to the Contractor in writing stating whether the Owner has
reasonable objection to the proposed representative. The Contractor’s Designated Representative shall be in
attendance at the Project Site during performance of the Work. Contractor’s Designated Representative shall be an
employee of Contractor. Contractor’s Designated Representative shall have full authority to represent and to act for
Init.
/
®
®
(1296196457)
14
the Contractor. A facsimile of the Designated Representative’s signature shall be submitted to the Owner. The
Contractor’s Designated Representative, acceptable to the Owner, shall:
.1
.2
.3
.4
.5
.6
.7
.8
Be present at the Project 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 Project Site including completion of the
Punch List;
Attend all job meetings;
Maintain oversight of the Project at all times;
Have full authority to represent and act on behalf of the Contractor for all purposes under the
Agreement;
Supervise and direct the Work using his or her best skill and attention;
Be responsible for the means, methods, techniques, sequences and procedures used for the Work;
Adequately coordinate all portions of the Work; and
Act as principal contact with the Owner and Separate Contractors, consultants, engineers and
inspectors on the Project.
§ 9.2.5.1 The Contractor shall not employ a proposed Designated Representative to whom the Owner or Architect has
made reasonable an objection. The Contractor shall not change the Designated Representative without the Owner’s
prior written consent.
§ 9.2.5.2 The Contractor shall notify the Owner and Architect, in writing, when the Contractor desires to change its
Designated Representative and shall provide the name, qualifications and experience of the proposed replacement.
The new Designated Representative cannot serve on the Project until approved by the Owner. The Owner shall have
the right, at any time, to direct a change in the Contractor’s Designated Representative if performance is
unsatisfactory, as determined by the Owner, in its sole discretion.
§ 9.3 LABOR AND MATERIALS
§ 9.3.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other
facilities and services necessary for proper execution and completion of the Work whether temporary or permanent
and whether or not incorporated or to be incorporated in the Work.
§ 9.3.2 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other
persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not skilled in
tasks assigned to them. None but skilled workmen shall be employed on any portion of the Work. When required in
writing by the Owner, the Contractor or any Subcontractor shall discharge any person who is, in the reasonable
opinion of the Owner, incompetent, unfaithful, disorderly or otherwise unsatisfactory, and shall not again employ such
discharged person on the Work except with the consent of the Owner. Such discharge shall not be the basis of any
claim for compensation or damages against the Owner or any of its officers or agents.
§ 9.3.3 Or Equal Substitution of Materials, Processes or Equipment.
§ 9.3.3.1 Whenever any particular material, process or equipment is indicated in the Contract Documents by patent,
proprietary or brand name, or by name of manufacturer, such wording is used for the purpose of facilitating its
description and shall be deemed to be followed by the words "or equal" unless the Invitation to Bid sets forth a finding
that substitutions of equivalents are not permitted for such material, product or equipment. Only such specified items
shall be provided unless Owner’s prior written acceptance is obtained for the "Or Equal Substitution" of the equivalent
item. A listing of materials is not intended to be comprehensive or in order of preference. The burden of proving the
quality of any material, process, or equipment proposed for substitution shall rest with the Contractor.
§ 9.3.3.2 The Contractor may supply any of the materials specified in the Contract Documents or propose substitution
of an equivalent within the time specified in Section 9.3.3.4 below. If any request for an Or Equal Substitution offered
by the Contractor is not found to be equivalent or cannot be delivered to the Site in compliance with the Project
Schedule, the Contractor shall furnish and install the material specified in the Contract Documents.
§ 9.3.3.3 Requests for Or Equal Substitutions and value engineering recommendations shall be submitted to the
Owner and Architect using the Owner’s approved form included in the Bidding Documents. Unless otherwise
Init.
/
®
®
(1296196457)
15
approved in writing by Owner, no substitution will be considered or allowed without Contractor’s delivery of the
following to Owner:
.1
.2
.3
.4
.5
.6
.7
.8
.9
A full explanation of the proposed substitution and submittal of all supporting data including technical
information, complete manufacturers catalogs, brochures, drawings, samples, warranties, certified
copies of test results, installation instructions, operating procedures, and other descriptive information
to substantiate Contractor’s claim of equivalent quality and necessary for a complete evaluation of the
Or Equal Substitution request;
A complete description of the difference between the requirements of the Contract Documents and the
proposed Or Equal Substitution, the comparative advantages and disadvantages of each, and the
reasons the substitution is advantageous and necessary, including the benefits to the Owner and the
Work in the event the substitution is acceptable;
A description of aspects of the Contract Documents affected by the Or Equal Substitution;
The proposed reduction in the Contract Sum in the event the substitution is acceptable;
The reduction, if any, in the Contract Time and impact to the Construction Schedule;
The estimated cost of any engineering, design, or agency fees required for Work of all trades directly or
indirectly affected by the substitution;
A list of projects, to the extent known, where the subject of the request was used and the results;
Other information reasonably necessary to fully evaluate the proposal request; and
The date by which the Owner must accept the proposal in order for Contractor’s time and cost estimates
to remain valid.
§ 9.3.3.4 No substitutes shall be made until approved, in writing, by Architect and Owner. The burden of proof of the
quality of any material, process, or article shall rest exclusively with the Contractor. In the event Contractor furnishes
a material, process or article more expensive than that specified, the difference in cost shall be borne entirely by
Contractor. Any engineering, design fees or agency fees required to make adjustments in material or Work of all
trades directly or indirectly affected by the approved substituted item shall be borne entirely by Contractor.
§ 9.3.3.5 Contractor shall submit all requests for Or Equal Substitutions, together with substantiating data, a minimum
of seven (7) calendar days prior to the Bid Deadline unless otherwise indicated in the Instructions to Bidders.
Following bid opening and award of Contract, Or Equal Substitution requests will only be made within twenty-five
(25) calendar days after Owner issues Notice to Proceed and when one or more of the following conditions are met
and documented by Contractor:
.1
.2
.3
.4
.5
.6
Specified item fails to comply with regulatory requirements; or
Specified item has been discontinued by the manufacturer; or
Specified item, through no fault of the Contractor, is unavailable in the time frame required to meet the
Project Schedule; or
Specified item, through subsequent information disclosure, will not perform properly or fit in
designated space;
Manufacturer declares specified product to be unsuitable for intended use or refuses to warrant
installation of product; or
Post-award value engineering proposals requested by Owner.
§ 9.3.3.6 The Owner has reviewed the technical and aesthetic qualities of materials and equipment specified, and in no
case will the Owner accept a substitution of a product with a lower cost which does not extend credit to the Owner.
§ 9.3.3.7 By submitting an Or Equal Substitution request or value engineering proposal, Contractor shall be deemed to
certify that: (i) the proposed substitution is equal to or exceeds all requirements of the pertinent Contract Documents
as reasonably determined by Contractor; (ii) Contractor accepts the warranty and correction obligations in connection
with the proposed substitution as if originally specified; (iii) the cost data presented is complete and includes all
related costs under Contract, including an estimate of the Architect’s redesign costs; (iv) Contractor will coordinate
the installation of the accepted substitute, making such changes as may be required for the Work to be complete in all
respects; (v) Contractor waives all Claims for additional costs related to the substitution which subsequently become
apparent; and (vi) Contractor accepts all responsibility for direct or indirect costs and/or time impacts as result of the
substitution including impacts to Work not identified in the proposal.
Init.
/
®
®
(1296196457)
16
§ 9.3.3.8 Failure of the Contractor to submit proposed Or Equal Substitutions for approval in the manner described
may be deemed sufficient cause for disapproval by the Owner and/or the Architect of any substitution otherwise
proposed.
§ 9.4 WARRANTY
The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be
of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants
that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for
those inherent in the quality of the Work the Contract Documents require or permit. Work not conforming to these
requirements, including Or Equal Substitutions not properly approved and authorized, shall be considered defective.
The Contractor’s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not
executed by the Contractor, improper or insufficient maintenance, improper operation or normal wear and tear under
normal usage. If required by the Owner or Architect, the Contractor shall furnish satisfactory evidence as to the kind
and quality of materials and equipment. This warranty is not limited to the provisions of Article 18. Contractor’s
Performance Bond Surety shall be liable for breaches of these warranties and the correction guarantees described in
Article 18. The provisions of this Section 9.4 shall survive Contractor’s completion of the Work or termination of the
Contractor’s performance of the Work.
§ 9.5 TAXES
§ 9.5.1 The Contractor shall pay sales, consumer, use and other similar taxes for the Work or portions thereof
provided by the Contractor that are legally enacted when bids are received, whether or not yet effective or merely
scheduled to go into effect.
§ 9.6 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS
§ 9.6.1 Contractor and its Subcontractors shall identify and obtain the Building Permit, all Construction Permits,
certificates, licenses, fees, approvals, and inspections necessary or required for the proper execution and completion of
the Work. Contractor must apply for permits for on-street and off-street parking (Pasadena Department of
Transportation) and lane closures (Pasadena Public Works Permit Counter); for the Memorial Park portion of the
Project, the City will provide 8 off-street parking spaces for a maximum of 4 months. The Owner will pay fees
associated with the Building Permit and all Construction Permits, including the aforementioned parking and lane
closure permits ("Permit Fees") directly to the entity issuing the permits, outside the Contract Sum. The Base Bid
Price/Contract Sum shall exclude the cost of all Permit Fees and shall include the cost of administration and
coordination for all Governmental Approvals. Contractor shall pay for all re-inspection fees incurred due to poor
workmanship, code violations, or Work that does not conform to the Contract Documents. Documentation of final
approval by the issuing entity for all permits and inspections shall be delivered to the Architect before Contractor
submits an Affidavit of Final Completion.
§ 9.6.2 Notices. The Contractor shall comply with and give notices required by Applicable Laws and lawful orders of
public authorities applicable to performance of the Work.
§ 9.6.3 Copies of permits, licenses and certificates shall be delivered to the Owner and Architect as soon as they are
obtained. As part of the request for final payment, the Contractor shall deliver the originals of such permits, licenses
and certificates to the Architect.
§ 9.7 ALLOWANCES
§ 9.7.1 Contract Sum and Expenditures. Contractor shall include in the Schedule of Values a line item for the costs
covered by an Allowance, as that term is defined in Section 7.7.3 above. Contractor must obtain Owner’s prior
written approval before ordering labor, materials, or equipment covered by an Allowance. Contractor shall notify
Owner of pricing information for labor, materials, equipment, and services covered by Allowances in sufficient time
to avoid delay to the Work. Contractor must obtain Owner’s further written approval to incur costs for Work items
covered by Allowances in excess of: 1) the prices previously approved by Owner; or 2) the line item estimated cost
established by the Owner in the Bidding Documents.
§ 9.7.2 Calculation.
§ 9.7.2.1 The line item cost estimate established by Owner for Work covered by an Allowance includes the cost to the
Contractor of all labor, materials, equipment, supervision, overhead, profit, licenses, permits, fees, bonds, insurance,
Init.
/
®
®
(1296196457)
17
all taxes legally chargeable, warranties and correction guarantees, and all other costs and expenses incidental to such
Work. Overhead and profit shall be paid at rates established in accordance with Section 13.3.4.4, provided, however,
no overhead or profit shall be paid for permits funded by an Allowance.
§ 9.7.3 Contractor shall not proceed with Work covered by an Allowance until material and equipment data and costs
associated with such Work items have been submitted to the Owner’s Representative for review and the Contractor
has received written notification to proceed with Work item covered by the Allowance. The costs submitted by the
Contractor to the Owner’s Representative shall, at a minimum include product data and detailed costs of material,
equipment and labor to complete such Work, itemized by costs incurred by Contractor and each Subcontractor
associated with the performance of such Work.
§ 9.7.4 All expenditures for Allowance Work shall be separately itemized in each Application for Payment.
§ 9.7.5 To the extent that the cost of Work items covered by an Allowance is less than the Allowance cost estimate
established by Owner in the Bidding Documents, the Contract Sum shall be reduced by Change Order or Construction
Change Directive and, in a similar fashion, to the extent the Allowance cost estimate is exceeded, the Contract Sum
shall be increased by Change Order or Unilateral Change Order. If Work covered by an Allowance is not performed or
Owner deletes such items from the scope of Work, the Contract Sum shall be reduced by Change Order or Unilateral
Change Order.
§ 9.8 CONTRACTOR’S CONSTRUCTION SCHEDULES
§ 9.8.1 Order of the Work. Contractor shall prepare and submit, concurrently with submission to Owner of the signed
Agreement, a Project Milestone Schedule, which, upon approval by the Owner and Architect, shall be deemed part of
the Contract Documents and attached to the Agreement as Exhibit E. Within thirty (30) calendar days after the
Owner issues a Notice to Proceed, the Contractor shall prepare and submit for the Owner’s and Architect’s
information and approval, a Construction Schedule for the Work, which shows each constituent operation, quantity,
rate, and period required to accomplish the Work, utilizing critical path method (CPM) techniques in accordance with
the requirements of the Specifications and consistent with the Substantial Completion date indicated in the Contract
Documents. Unless otherwise indicated in the Contract Documents, prior to the commencement of the Work, the
Contractor shall also submit the following information, in duplicate, to the Owner for review: (1) the proposed method
or procedure, which enumerates the methods and equipment to be employed during each phase of the Work; and (2) a
plan, which indicates the storage and working areas desired to accomplish the construction.
§ 9.8.2 Construction Schedule. The Construction Schedule shall: (i) not exceed the Contract Time established in the
Contract Documents; (ii) be updated at monthly intervals to show actual progress; (iii) be related to the entire Project;
and (iv) provide for expeditious execution of the Work. Upon review and acceptance by the Owner, the "Construction
Schedule" shall be deemed part of the Contract Documents. If not accepted, the Construction Schedule shall be
promptly revised by the Contractor in accordance with the recommendations of the Owner and re-submitted for
acceptance. Any revisions or updates to the Construction Schedule are subject to review and acceptance by Owner. In
no event shall any Construction Schedule update constitute an adjustment to the Contract Time, any completion
deadline, any Milestone, or the Contract Sum unless such adjustment is agreed to by the Owner and authorized
pursuant to a Change Order or Unilateral Change Order.
§ 9.8.3 Format. Unless otherwise provided in the Agreement or Technical Specifications, the Construction Schedule
shall be in a detailed precedence Critical Path Method ("CPM") or Primavera-type format satisfactory to the Owner,
which shall also: (i) provide a graphic representation of all activities and events that will occur during performance of
the Work; (ii) identify each phase of design, construction and maintenance; and (iii) set forth dates that are critical in
ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract
Documents. At a minimum the Construction Schedule shall depict the schedule for Work on a discipline by discipline
and trade by trade basis and tasks within each discipline and trade. The Project Schedule shall include: (i) proposed
activity sequences and durations showing the amount of Float for each activity; (ii) milestone dates for receipt and
acceptance of pertinent information, including Owner-supplied information and approvals by governmental
authorities having jurisdiction over the Project; (iii) dates for preparation and processing of Submittals; (iv) dates for
delivery of materials or equipment requiring long-lead time procurement; (vi) Owner’s occupancy/use requirements
showing portions of the Project having occupancy priority; (vii) the date of Substantial Completion; and (viii) other
information reasonably required by Owner.
Init.
/
®
®
(1296196457)
18
§ 9.8.4 Look Ahead Schedules. At each weekly progress meeting, Contractor shall submit a three-week look-ahead
schedule. The look-ahead schedule shall provide sufficient detail to define the work to be accomplished and identify
the subcontractors and equipment required.
§ 9.8.5 Updates. Upon submission of an Application for Payment by Contractor (other than the final Application for
Payment), the Contractor shall be current in its submission at an updated Construction Schedule revised to indicate the
portion of the Work executed, all progress slippages, corrective actions taken, or slippage carry-over, for all
anticipated delays or difficulties, and all other information required to accurately present the actual status of the
progress of the Work as of the date of the Application for Payment. If the Contractor is not current in its submission of
an updated Construction Schedule with an Application for Payment, Owner may withhold ten percent (10%) from
each progress payment due Contractor, in addition to retention, until Contractor complies with this requirement. In the
event any update to the Construction Schedule indicates any delays to the Contract Time that are the fault of
Contractor or others for whom Contractor is responsible, the Contractor shall propose an affirmative plan to correct
the delay, including overtime and/or additional labor, if necessary. In no event shall any Construction Schedule
update constitute an adjustment in the Contract Time, any completion deadline, any Milestone, or the Contract Sum
unless any such adjustment is agreed to by the Owner and authorized pursuant to Change Order or Unilateral Change
Order.
§ 9.8.6 Daily Logs. Contractor shall maintain a daily log containing a record of weather, Contractor’s own forces
working on site; Subcontractors working on the site; number and labor classification of workers for each
Subcontractor on Site; materials delivered; major equipment on Site; Work started, completed and accomplished that
day; approximate count of all personnel at the Project Site; inspections, tests and visitors; accidents; any Work
stoppages, delays, shortages or losses; problems encountered and other similar relevant data as the Owner may
reasonably require. The daily log shall be signed by Contractor’s Designated Representative, submitted by 4:30 p.m.
on the next Working Day to Owner’s Representative and shall be made available to others as directed by Owner.
§ 9.8.7 Performance. The Contractor shall perform the Work in accordance with the most recent Project Schedule
and schedule of Submittals accepted by the Owner. The Contractor shall monitor the progress of the Work for
conformance with the requirements of the Project Schedule and shall promptly advise the Owner of any delays or
potential delays.
§ 9.8.8 Extraordinary Measures. In the event the Owner determines that the performance of the Work has not
progressed or reached the level of completion required by the Contract Documents, the Owner shall have the right to
order the Contractor to take corrective measures necessary to expedite the progress of construction, in accordance with
Section 8.4.
§ 9.8.9 Schedule of Submittals. Prior to award of the Contract, the Contractor shall prepare and keep current, for the
Owner’s review and acceptance, a schedule of Submittals for shop drawings, product data, samples, and similar
submittals (collectively, "Submittals"), coordinated with the baseline construction schedule and allowing the Owner
reasonable time to review. Contractor shall be solely responsible for any delay, disruption, impact, loss of efficiency
or other loss, arising directly or indirectly from Contractor’s failure to manage Submittals properly.
§ 9.8.10 Procurement Schedule. Unless otherwise provided in the Agreement or Technical Specifications, within ten
(10) calendar days after the date of commencement, Contractor shall prepare and keep current, for Owner’s
acceptance, a schedule for procurement of materials and equipment which is coordinated with the baseline
construction schedule and allows the Owner reasonable time to review. Contractor is solely responsible for any delay,
disruption, impact, loss of efficiency, or other loss arising directly or indirectly from Contractor’s failure to properly
manage procurement of equipment and materials.
§ 9.8.11 Rain/Inclement Weather Delays. In scheduling the Work, Contractor shall account for the number of
inclement weather Work Days, by month, set forth in Section 14.6.4 below, for which the effects of rainfall and
inclement weather are expected to prevent Work.
§ 9.8.12 Early Completion. If the Contractor’s Project Schedule shows completion of the Work in advance of the
Substantial Completion date, the Contractor agrees that in the event actual completion occurs, for any reason, after the
completion date specified in the Contractor’s Project Schedule but within the Contract Time, the Contractor shall not
be entitled to and waives any claim against the Owner for delay, disruption or impact costs or damages including,
Init.
/
®
®
(1296196457)
19
without limitation claims for extended general conditions, home office overhead, job site overhead and management
or administrative costs as provided in Section 14.6.17 below.
§ 9.8.13 The Contractor shall perform the Work in general accordance with the most recent schedules approved by
the Owner and Architect.
§ 9.9 SUBMITTALS
§ 9.9.1 The Contractor shall review for compliance with the Contract Documents and submit to the Owner and
Architect Shop Drawings, Product Data, Samples and similar submittals (collectively "Submittals") required by the
Contract Documents within the time frames required by the Contract Documents and in such sequence as to cause no
delay in the Work or in the activities of the Owner or of Owner’s Separate Contractors. Contractor shall cooperate with
the Owner’s separate consultants in the coordination of the Contractor’s Submittals with related documents submitted
by other contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and
approved by the Contractor may be returned by the Architect without action. In all cases, Submittals shall be
submitted to the Owner and Architect for review, approval, and authorization to proceed prior to commencing
procurement, fabrication, or installation of any such Work. In the event that the Owner or Architect reasonably
determines that all or any portion of any Submittal fails to comply with the requirements of the Contract Documents
and/or such Submittals are not otherwise complete and accurate so as to require re-submission more than one (1) time,
Contractor shall bear all costs (within the Contract Sum) associated with the review and acceptance of such
resubmitted Submittals. No adjustment to the Contract Time or the Contract Sum shall be granted by the Owner to the
Contractor on account of its failure to make timely submission of any Submittals. By submitting Submittals, the
Contractor represents to the Owner and Architect that the Contractor has (1) reviewed and approved them; (2)
determined and verified materials, field measurements and field construction criteria related thereto, or will do so; and
(3) checked and coordinated the information contained within such submittals with the requirements of the Work and
of the Contract Documents. The Work shall be in accordance with approved submittals.
§ 9.9.2 Submittals are not Contract Documents.
§ 9.10 USE OF SITE
§ 9.10.1 The Contractor shall confine operations at the Project to the areas and within the hours permitted by
Applicable Law, permits, the Contract Documents or the Owner’s Representative, and shall not unreasonably
encumber the Project Site or the adjoining sidewalks, streets and alleyways with any material, equipment, or debris.
§ 9.10.3 Contractor shall use only those locations designated on the Drawings for locating Contractor’s trailers,
staging areas, lay-down areas, and other construction operations.
§ 9.10.4 The Contractor shall be solely responsible for providing security at the site of the Work with all such costs
included in the Contract Price. In addition, the Contractor shall take all necessary precautions and provide enclosures,
barricades, security guards, signs, notices, shoring, bracing, passageways, lights, and such other materials, equipment
and services as may be required (including, without limitation, such protections as may be required by applicable
laws) for the protection of (1) all persons who may be on the premises or in other areas affected by the Contractor’s
operations, and (2) the Owner’s and any third party’s personal or real property. Contractor shall execute all repairs to
land, structures, sidewalks and alleys damaged in connection with the operations under this Contract.
§ 9.11 CUTTING AND PATCHING
The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts
fit together properly.
§ 9.12 CLEANING UP
§ 9.12.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or
rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste
materials, rubbish, the Contractor’s tools, construction equipment, machinery and surplus material from and about the
Project. The job site shall be kept in a neat and broom-clean condition on a daily basis.
§ 9.12.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and Owner
shall be entitled to reimbursement from the Contractor.
Init.
/
®
®
(1296196457)
20
§ 9.12.3 Unless specifically approved by the Owner, no washing of cement trucks, mixers or similar equipment, nor
the dumping of injurious material, will be permitted on the Project site or the adjoining streets, alleys and structures.
No waste material shall be deposited on the Project site.
§ 9.13 ROYALTIES, PATENTS AND COPYRIGHTS
§ 9.13.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for
infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account
thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular
manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained
in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has
reason to believe that the required design, process or product is an infringement of a copyright or a patent, the
Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect.
§ 9.13.2 The Contractor offers and agrees to assign to the Owner 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. Section 15) or under the Cartwright Act [Chapter 2
(commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code of the State of
California], arising from purchases of goods, services or materials pursuant to the performance of the Work. This
assignment will be made and become effective at the time the Owner tenders Final Payment to the Contractor, without
further acknowledgement by the parties.
§ 9.14 ACCESS TO WORK
The Contractor shall provide the Owner access to the Work in preparation and progress wherever located. The Owner
shall be given key(s) to construction trailer/office and all storage compartment/bins if paid-for materials, equipment
and supplies are stored therein.
§ 9.15 INDEMNIFICATION
§ 9.15.1 General Provision. To the fullest extent permitted by law, the Contractor assumes liability for and agrees, at
the Contractor’s sole cost and expense, to promptly and fully indemnify, protect, hold harmless and defend (even if the
allegations are false, fraudulent, or groundless), the City of Pasadena, its City Council and each member thereof
and all of their respective officials, officers, directors, employees, commission members, representatives and agents
("Indemnitees"), from and against any and all claims, allegations, actions, suits, arbitrations, administrative
proceedings, regulatory proceedings, or other legal proceeds, causes of action, demands, costs, judgments, liens, stop
payment notices, penalties, liabilities, damages, losses, anticipated losses of revenues, and expenses (including, but
not limited to, any fees of accountants, attorneys, experts or other professionals, or investigation expenses), or losses
of any kind or nature whatsoever, whether actual, threatened or alleged, arising out of, resulting from, or in any way
(either directly or indirectly), related to the Work, the Project or any breach of the Contract by Contractor or any of its
officers, agents, employees, Subcontractors, Sub-subcontractors, or any person performing any of the Work, pursuant
to a direct or indirect contract with the Contractor ("Indemnity Claims"). Such Indemnity Claims include, but are not
limited to, claims for:
(1)
Any activity on or use of the City’s premises or facilities;
(2)
Any liability incurred due to Contractor acting outside the scope of its authority pursuant to the Contract,
whether or not caused in part by an Indemnified Party;
(3)
The failure of Contractor or the Work to comply with any Applicable Law, permit or orders;
(4)
Any misrepresentation, misstatement or omission with respect to any statement made in the Contract
Documents or any document furnished by the Contractor in connection therewith;
(5)
Any breach of any duty, obligation or requirement under the Contract Documents, including, but not
limited to any breach of Contractor’s warranties, representations or agreements set forth in the Contract
Documents;
(6)
Any failure to coordinate the Work with Owner’s Separate Contractors;
(7)
Any failure to provide notice to any party as required under the Contract Documents;
(8)
Any failure to act in such a manner as to protect the Project from loss, cost, expense or liability;
(9)
Bodily or personal injury, emotional injury, sickness or disease, or death at any time to any persons
including without limitation employees of Contractor;
(10)
Damage or injury to real property or personal property, equipment and materials (including, but without
limitation, property under the care and custody of the Contractor or the Owner) sustained by any person
or persons (including, but not limited to, companies, corporations, utility company or property owner,
Contractor and its employees or agents, and members of the general public);
Init.
/
®
®
(1296196457)
21
(11)
Any liability imposed by Applicable Law including, but not limited to criminal or civil fines or penalties;
(12)
Any dangerous, hazardous, unsafe or defective condition of, in or on the Site, of any nature whatsoever,
which may exist by reason of any act, omission, neglect, or any use or occupation of the Site by
Contractor, its officers, agents, employees, or Subcontractors;
Any operation conducted upon or any use or occupation of the Site by Contractor, its officers, agents,
employees, or Subcontractors under or pursuant to the provisions of the Contract or otherwise;
Any acts, errors, omission or negligence of Contractor, its officers, agents, employees, or
Subcontractors;
Infringement of any patent rights, licenses, copyrights or intellectual property which may be brought
against the Contractor or Owner arising out of Contractor’s Work, for which the Contractor is
responsible; and
Any and all claims against the Owner seeking compensation for labor performed or materials used or
furnished to be used in the Work or alleged to have been furnished on the Project, including all incidental
or consequential damages resulting to Owner from such claims.
(13)
(14)
(15)
(16)
§ 9.15.2 Effect of Indemnitees’ Active Negligence. Contractor’s obligations to indemnify and hold the Indemnitees
harmless exclude only such portion of any Indemnity Claim which is attributable to the active negligence or willful
misconduct of the Indemnitee, provided such active negligence or willful misconduct is determined by agreement of
the parties or by findings of a court of competent jurisdiction. In instances where an Indemnitee’s active negligence
accounts for only a percentage of the liability for the Indemnity Claim involved, the obligation of Contractor will be
for that entire percentage of liability for the Indemnity Claim not attributable to the active negligence or willful
misconduct of the Indemnitee(s). Such obligation shall not be construed to negate, abridge or otherwise reduce any
other right or obligation of indemnity which would otherwise exist as to any party or person described in this Section
9.15. Subject to the limits set forth herein, the Contractor, at its own expense, shall satisfy any resulting judgment that
may be rendered against any Indemnitee resulting from an Indemnity Claim. The Indemnitees shall be consulted with
regard to any proposed settlement.
§ 9.15.3 Independent Defense Obligation. The duty of the Contractor to indemnify and hold harmless the Indemnitees
includes the separate and independent duty to defend the Indemnitees, which duty arises immediately upon receipt by
Contractor of the tender of any Indemnity Claim from an Indemnitee. The Contractor’s obligation to defend the
Indemnitee(s) shall be at Contractor’s sole expense, and not be excused because of the Contractor’s inability to
evaluate liability or because the Contractor evaluates liability and determines that the Contractor is not liable. This
duty to defend shall apply whether or not an Indemnity Claim has merit or is meritless, or which involves claims or
allegations that any or all of the Indemnitees were actively, passively, or concurrently negligent, or which otherwise
asserts that the Indemnitees are responsible, in whole or in part, for any Indemnity Claim. The Contractor shall
respond within thirty (30) calendar days to the tender of any Indemnity Claim for defense and/or indemnity by an
Indemnitee, unless the Indemnitee agrees in writing to an extension of this time. The defense provided to the
Indemnitees by Contractor shall be by well qualified, adequately insured and experienced legal counsel acceptable to
Owner.
§ 9.15.4 Intent of Parties Regarding Scope of Indemnity. It is the intent of the parties that the Contractor and its
Subcontractors of all tiers shall provide the Indemnitees with the broadest defense and indemnity permitted by
Applicable Law. In the event that any of the defense, indemnity or hold harmless provisions in the Contract
Documents are found to be ambiguous, or in conflict with one another, it is the parties’ intent that the broadest and
most expansive interpretation in favor of providing defense and/or indemnity to the Indemnitees be given effect.
§ 9.15.5 Waiver of Indemnity Rights Against Indemnitees. With respect to third party claims against the Contractor, to
the fullest extent permitted by law, the Contractor waives any and all rights to any type of express or implied
indemnity against the Indemnitees.
§ 9.15.6 Subcontractor Requirements. In addition to the requirements set forth hereinabove, Contractor shall ensure,
by written subcontract agreement, that each of Contractor’s Subcontractors of every tier shall protect, defend,
indemnify and hold harmless the Indemnitees with respect to Indemnity Claims arising out of, in connection with, or
in any way related to each such Subcontractors’ Work on the Project in the same manner in which Contractor is
required to protect, defend, indemnify and hold the Indemnitees harmless. In the event Contractor fails to obtain such
Init.
/
®
®
(1296196457)
22
defense and indemnity obligations from others as required herein, Contractor agrees to be fully responsible to the
Indemnitees according to the terms of this Section 9.15.
§ 9.15.7 No Limitation or Waiver of Rights. Contractor’s obligations under this Section 9.15 are in addition to any other
rights or remedies which the Indemnitees may have under the law or under the Contract Documents. Contractor’s
indemnification and defense obligations set forth in this Section 9.15 are separate and independent from the insurance
provisions set forth in the Contract Documents, and do not limit, in any way, the applicability, scope, or obligations set
forth in such insurance provisions. The purchase of insurance by the Contractor with respect to the obligations
required herein shall in no event be construed as fulfillment or discharge of such obligations. In any and all claims
against the Indemnitees by any employee of the Contractor, any Subcontractor, any supplier of the Contractor or
Subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be
liable, the obligations under this Section 9.15 shall not be limited in any way by any limitation on the amount or type
of damages, compensation or benefits payable by or for the Contractor or any Subcontractor or any supplier of either
of them, under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.
Failure of the Owner to monitor compliance with these requirements imposes no additional obligations on the Owner
and will in no way act as a waiver of any rights hereunder.
§ 9.15.8 Withholding to Secure Obligations. In the event an Indemnity Claim arises prior to final payment to
Contractor, the Owner may, in its sole discretion, reserve, retain or apply any monies due Contractor for the purpose of
resolving such Indemnity Claims; provided, however, the Owner may release such funds if the Contractor provides
the Owner with reasonable assurances of protection of the Indemnitees’ interests. The Owner shall, in its sole
discretion, determine whether such assurances are reasonable.
§ 9.15.9 Survival of Indemnity Obligations. Contractor’s obligations under this Section 9.15 are binding on
Contractor’s and its Subcontractors’ successors, heirs and assigns and shall survive the completion of the Work or
termination of the Contractor’s performance of the Work.
§ 9.16 OBLIGATION TO CONTINUE WORK
§ 9.16.1 In the event of any dispute or controversy between Owner and Contractor over any matter whatsoever,
Contractor shall not cause any delay or cessation in or of the Work but shall proceed under the Contract Documents
with the performance of the Work required thereby.
ARTICLE 10 ARCHITECT
§ 10.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be
an Owner’s representative (1) during construction, (2) until final payment is due and (3) with the Owner’s
concurrence, from time to time during the one-year period for correction of Work described in Article 18. The
Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents,
unless otherwise modified in writing in accordance with other provisions of the Contract.
§ 10.2 The Architect will visit the site at intervals appropriate to the stage of the construction to become generally
familiar with the progress and quality of the portion of the Work completed, to endeavor to guard the Owner against
defects and deficiencies and to determine in general, if the Work observed is being performed in a manner indicating
that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will
not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The
Architect will not have control over, charge of, or responsibility for, the construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely
the Contractor’s rights and responsibilities under the Contract Documents.
§ 10.3 On the basis of the site visits, the Architect will keep the Owner reasonably informed about the progress and
quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract
Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and
deficiencies observed in the Work. The Architect will not be responsible for the Contractor’s failure to perform the
Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or
charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work. Approval and/or acceptance of all or any
portion of the Work shall in no way relieve the Contractor from its obligation to construct each portion of the Work in
Init.
/
®
®
(1296196457)
23
accordance with the Contract Documents and the Owner shall not be estopped or otherwise prevented from asserting
any claim it might have against the Contractor as a result of any such acceptance or approval.
§ 10.4 Based on the Architect’s evaluations of the Work and of the Contractor’s Applications for Payment, the
Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such
amounts.
§ 10.5 The Architect has authority to reject Work that does not conform to the Contract Documents and to require
inspection or testing of the Work.
§ 10.6 The Architect will review and approve or take other appropriate action upon the Contractor’s submittals such as
Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents.
§ 10.7 The Architect’s decisions on matters relating to aesthetic effect will be final if consistent with the intent
expressed in the Contract Documents.
§ 10.8 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall
not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall
not be unreasonably withheld.
(Paragraph deleted)
ARTICLE 11 SUBCONTRACTORS
§ 11.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the
Work at the site.
§ 11.2 None but skilled workers shall be employed on any portion of the Work. When required in writing by the
Owner, the Contractor or any Subcontractor shall discharge any person who is, in the reasonable opinion of the Owner,
incompetent, unfaithful, disorderly or otherwise unsatisfactory, and shall not again employ such discharged person on
the Work except with the consent of the Owner. Such discharge shall not be the basis of any claim for compensation
or damages against the Owner or any of its officers or agents.
§ 11.3 Subcontractor Listing. The Contractor shall comply with Public Contract Code Section 4100 et seq.
("Subcontractor Listing Law"), list required Subcontractors, and make no substitution of listed Subcontractors except
with the written consent of Owner’s Representative. As soon as practicable after award of the Contract, Contractor
shall provide Owner with the description of work, name of Subcontractor, business phone, e-mail address, physical
address and contact person for each Subcontractor performing Work on the Project and shall continuously update the
Owner upon selection of each Subcontractor not required to be listed pursuant to the Subcontractor Listing Law.
§ 11.3.1 Subcontractor Substitution Process. Any request of the Contractor to substitute a listed Subcontractor will be
considered only if such request is in strict conformity with this Section 11.3 and California Public Contract Code
§4107. All costs and fees incurred by the Owner in the review and evaluation of a request to substitute a listed
Subcontractor shall be borne by the Contractor; such costs and fees may be deducted by the Owner from the Contract
Sum then or thereafter due the Contractor. Where a portion of the Work that has been subcontracted by the Contractor
is not being prosecuted in a manner satisfactory to the Owner, the Subcontractor shall be removed immediately upon
Owner’s written notice and shall not be used thereafter on the Project.
§ 11.4 The Contractor shall not contract with any unlicensed or uninsured Subcontractor or supplier. The Contractor
shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely
objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable
objection. If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the
Contractor shall propose another to whom the Owner or Architect has no reasonable objection without increase to the
Contract Sum or Contract Time.
§ 11.4.1 Each subcontract or supply agreement shall contain provisions that:
Init.
/
®
®
(1296196457)
24
.1
.2
.3
.4
.5
.6
.7
require that the Work being performed pursuant to such contract be performed in accordance with the
requirements and intent of the Contract Documents and provide for no less than 5% retainage;
require submission of Applications for Payment in the form required by the Contract Documents,
together with invoices and billings supporting such applications and conditional and unconditional lien
releases and declarations to procure payment and release of contract rights in the form required by the
Contract Documents completed by it and by its Sub-subcontractors as a condition to the disbursement
of any progress payment next due and owing to it;
require the Subcontractor, Sub-subcontractor, or supplier, as the case may be, to maintain insurance
coverage as provided in the Contract Documents and to file required certificates of such coverage and
additional insured endorsements with Owner, and, upon Owner’s request, to provide copies of such
insurance policies to Owner;
require Subcontractor, Sub-subcontractor, and supplier to furnish to Contractor or the applicable
Subcontractor, as the case may be, in a timely fashion all information necessary for the preparation and
submission of the reports required herein;
require that each Subcontractor, Sub-subcontractor, and supplier continue to perform under its contract
if the Contract is terminated and if Owner takes an assignment of the subcontract or supply agreement
and requests the Subcontractor, Sub-subcontractor, or supplier to continue such performance;
include the termination and suspension provisions set forth in Article 20 below; and
require the Subcontractor, Sub-subcontractor, or supplier to resolve all disputes in the same manner as
provided in Articles 5 and 21 herein.
§ 11.5 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
§ 11.5.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided
that
.1
assignment is effective only after termination of the Contract by the Owner for cause or convenience
and only for those subcontract agreements that the Owner accepts by notifying the Subcontractor and
Contractor in writing; and
.2
assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the
Contract.
When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor’s rights and
obligations under the subcontract.
§ 11.5.2 Upon such assignment to the Owner under this Section 11.5, the Owner may further assign the Subcontract to
a successor contractor or other entity.
§ 11.6 PAYMENTS TO SUBCONTRACTORS
§ 11.6.1 The Contractor shall pay all Subcontractors for and on account of Work of the Contract performed by such
Subcontractors within seven (7) days after receipt of progress payments from Owner and within seven (7) days after
receipt of retention from Owner.
§ 11.6.2 Joint Payments. Owner hereby reserves the right, upon written notice to Contractor, to make, at any time, and
from time-to-time, payments directly to each Subcontractor, and, if such rights shall be exercised by Owner, then such
amount shall be credited against the Contract Sum due to Contractor hereunder and Owner shall be relieved and
released from the obligation to make such payment to Contractor and Contractor shall be relieved and released as to
Owner from the obligation to make such payments to each Subcontractor paid by Owner, but not from any of the other
obligations and responsibilities of Contractor to Owner under the Contract Documents.
§ 11.7 ARM’S LENGTH TRANSACTIONS AND COMMERCIALLY USEFUL FUNCTION OF SUBCONTRACTORS AND
SUPPLIERS
§ 11.7.1 To assure competitive bids and to assure that no bid rigging, unfair practices, collusion or conflicts of interest
occur in connection with the Work, Contractor agrees that all agreements between Contractor and Subcontractors and
suppliers for performance of the Work shall be pursuant to arm’s length transactions, with unrelated and unaffiliated
firms (a "related" or "affiliated" firm is one which is subject to the control of the same persons through joint ownership
or otherwise). In all such agreements, each firm shall act in its own best interest, for compensation that reflects the
fair market values of the materials or services that are the subject of the transaction.
Init.
/
®
®
(1296196457)
25
§ 11.7.2 Contractor further agrees that each Subcontractor and supplier for the Work will perform a commercially
useful function (i.e. is responsible for the performance, management, and supervision of a distinct element of the
Work). A Subcontractor or supplier does not perform a commercially useful function when, for example: the Work is
outside the firm’s experience or qualifications; the firm provides little or no supervision of the Work; more than 50%
of the Work designated to be performed by a Subcontractor is performed by a Sub-subcontractor or supplier; the
Subcontractor only purchases materials while performing little or no Work; the firm works for only one prime
contractor; or the same employees work for the firm and the Contractor.
§ 11.7.3 If, upon Owner’s request, Contractor fails to provide adequate assurances of arm’s length transactions or that
all Subcontractors and suppliers will perform a commercially useful function, Contractor shall remove such
Subcontractor or supplier from the Project, exclude the cost associated with such firm from all Applications for
Payment and change order requests and, if necessary, propose another Subcontractor or supplier to whom the Owner
has no objection, without increase to the Contract Sum or Contract Time.
ARTICLE 12 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
§ 12.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner’s own
forces, and to award separate contracts in connection with other portions of the Project or other construction or
operations on the site under conditions of the contract identical or substantially similar to these, including those
portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is
involved because of such action by the Owner, the Contractor shall make such claim as provided in Article 21.
§ 12.2 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and
storage of their materials and equipment and performance of their activities, and shall connect and coordinate the
Contractor’s activities with theirs as required by the Contract Documents.
§ 12.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a
separate contractor because of delays, improperly timed activities or defective construction of the Contractor.
§ 12.4 The Contractor agrees that it will be responsible to any other contractor performing work related to the Project
for any loss, injury, damage or delay caused by the Contractor. The Contractor and its Performance Bond Surety shall
defend, indemnify and hold harmless the Owner, the Architect, and any of their respective members, officers,
employees and agents, from and against any claim brought against any of them by another contractor as a result of the
Contractor’s alleged acts or omission.
§ 12.5 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or partially
completed construction or to property of the Owner’s Separate Contractors.
ARTICLE 13 CHANGES IN THE WORK
§ 13.1 GENERAL. Changes in the Work may be accomplished after execution of the Contract and without invalidating
the Contract, by Change Order, Construction Change Directive, or order for a minor change in the Work, subject to the
limitations stated in this Article 13 and elsewhere in the Contract Documents. The Owner may, at any time, without
notice to Contractor’s surety(ies) order changes in the Work within the general scope of the Contract.
§ 13.1.1 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the
Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or
order for a minor change in the Work.
§ 13.1.2 All prices for extras and credits are to be competitive and standard for the scope and location of the Work.
Owner may, at its sole discretion, and without obligations, obtain its own bids and estimates and perform the extra
Work with its own forces or with Owner’s Separate Contractors. Contractor will cooperate with Owner’s forces,
Owner’s Separate Contractors, suppliers, and agents to facilitate Owner-supplied Work.
§ 13.2 CHANGE ORDERS
§ 13.2.1 A Change Order is a written instrument prepared by the Owner and signed by the Owner, Contractor and
Architect, stating their agreement upon all of the following:
.1
The scope of the change in the Work;
.2
The amount of the adjustment, if any, in the Contract Sum; and
Init.
/
®
®
(1296196457)
26
.3
The extent of the adjustment, if any, in the Contract Time.
§ 13.2.2 Methods used in determining adjustments to the Contract Sum are those listed in Section 13.3.3.
§ 13.2.3 Accord and Satisfaction. Contractor’s agreement on any Change Order shall be a full compromise and
settlement of all adjustments to the Contract Time and Contract Sum, and compensation for any and all delay,
extended or additional field and home office overhead, disruption, acceleration, inefficiencies, lost labor or equipment
productivity, differing site conditions, construction interferences and other extraordinary or consequential damages
(hereinafter called "Impacts"), including any ripple or cumulative effect of said Impacts on the overall Work under the
Contract arising directly or indirectly from the performance of Work described in the Change Order. By execution of
any Change Order, Contractor agrees that the Change Order constitutes a complete accord and satisfaction with
respect to all claims for schedule extension, Impacts, or any costs of whatsoever nature, character or kind arising out of
or incidental to the Change Order. No action, conduct, omission, product failure or course of dealing by the Owner
shall act to waive, modify, change, or alter the requirement that Change Orders must be in writing, signed by the
Owner and Contractor and that such written Change Orders are the exclusive method for effectuating any change to
the Contract Sum and/or Contract Time.
§ 13.3 CONSTRUCTION CHANGE DIRECTIVES
§ 13.3.1 A Construction Change Directive is a written order prepared by the Owner and signed by the Owner and
Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract
Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in
the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract
Sum and Contract Time being adjusted accordingly.
§ 13.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change
Order.
§ 13.3.3 Adjustment of Contract Sum. If a Construction Change Directive or Change Order provides for an adjustment
to the Contract Sum, the adjustment shall be based on one of the following methods:
.1
Mutual agreement on a lump sum price based on the cost of the Work, plus a Contractor Fee for
overhead and profit as determined by Section 13.3.4.4, properly itemized and supported by sufficient
substantiating data to permit evaluation;
.2
Unit prices stated in the Contract Documents or subsequently agreed upon; or
.3
Daily time and material records of actual costs plus a Contractor Fee for overhead and profit as
determined by Section 13.3.4.4, subject to the not-to-exceed amount established in the Construction
Change Directive or Change Order.
§ 13.3.4 Costs for pricing Changes in the Work shall be properly itemized by each craft directly allocable to the change
and supported by sufficient substantial data to permit evaluation and shall be determined by the following factors:
.1
Materials. Costs of materials, including transportation, delivery and sales taxes on materials and
consumable items that are furnished and incorporated into the extra work, as approved by the Owner,
shall be charged at the lowest price available to contractor, suppliers, manufacturers, and distributors in
the area of the Project Site. All discounts, rebates, and refunds and all returns of surplus materials and
consumable items shall accrue to Owner, and Contractor shall make provisions so that they may be
obtained.
.2
Labor. Straight-time wages or salaries and fringe benefits and payroll taxes for employees employed at
the Project Site, or at fabrication sites off the Project Site, in the direct performance of the extra work;
overtime must be approved in writing by the Owner.
.3
Equipment. Rental value of equipment and machinery, exclusive of hand tools. No payment will be
made for the use of tools that have a replacement value of $400.00 or less. Rates for Contractor-owned
and Subcontractor-owned equipment shall be calculated as the lesser of:
(a)
The rates published by the State of California, Department of Transportation, Division of
Construction (Caltrans Blue Book) in the latest edition effect at the time the equipment is in use
for the change; or
(b)
The rates paid by Contractor or Subcontractor pursuant to an arm’s length transaction with the
equipment supplier; or
Init.
/
®
®
(1296196457)
27
(c)
.4
.5
The internal rates the Contractor or Subcontractor charges to the Work according to its usual and
customary accounting practices.
Contractor Fee. Contractor shall be entitled to a Contractor Fee on items .1, .2 and .3 above for
performing the extra work approved by Owner. The term "Contractor Fee" shall mean the full amount
of compensation, both direct and indirect (including without limitation all overhead and profit), to be
paid to Contractor for its own Work and the Work of all Subcontractors, for all costs and expenses not
included in the cost for extra work. The Contractor Fee shall not be compounded. The Contractor Fee
shall be computed as follows:
(a)
Ten percent (10%) of the cost of that portion of the extra work to be performed by the
Contractor with its own forces.
(b)
Ten percent (10%) of the cost of that portion of the extra work to be performed by a
Subcontractor with its own forces, plus 5% for the Contractor. Total combined Contractor and
Subcontractor fee shall not exceed 15%.
(c)
Sub-subcontractor with its own forces, or any lower tier of Subcontractor, plus 5% for the
Subcontractor, plus 5% for the Contractor.
(d)
Where multiple tiers of Subcontractors are involved in a change in the Work, the maximum total
amount of adjustment to the Contract Price and for markup for all tiers of Subcontractors and for
Contractor self-performed Work shall not exceed twenty percent (20%) of the direct costs
incurred by Contractor and the Subcontractors and material suppliers actually performing the
Work.
Insurance and Bond Expenses. Not to exceed two and one-half percent (2.5%) of items .1, .2 and .3
above.
§ 13.3.5 Costs for pricing Changes in the Work shall not include wages and expenses for any of the following:
.1
Superintendents(s);
.2
Assistant Superintendents(s);
.3
Project Engineer(s);
.4
Project Managers(s);
.5
Scheduler(s);
.6
Estimators(s);
.7
Small tools (Replacement value does not exceed $300);
.8
Office expenses including staff, materials and supplies;
.9
Onsite or offsite trailer and storage rental and expenses;
.10 Site fencing;
.11 Utilities including gas, electric, sewer, water, telephone, facsimile, copier equipment;
.12 Data processing personnel and equipment;
.13 Federal, state, or local business income and franchise taxes;
.14 Overhead and profit; and
.15 Costs and expenses of any kind or item not specifically and expressly included in Section 13.3.4.
§ 13.3.6 Duty to Proceed. Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed
with the change in the Work involved and advise the Owner and Architect of the Contractor’s agreement or
disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed
adjustment in the Contract Sum or Contract Time.
§ 13.3.7 Contractor Maintenance of Daily Records for Changes. In the event that Contractor is directed to perform any
changes to the Work, or should Contractor encounter conditions which the Contractor believes would obligate the
Owner to adjust the Contract Sum and/or the Contract Time, Contractor shall maintain detailed records of the cost of
such changes on a daily basis summarized in a daily report supplemented by back-up records. Such records shall
include without limitation hourly records for labor and construction equipment, itemized records of materials,
including delivery tickets, and equipment used each day in connection with the performance of any change to the
Work. In the event that more than one change to the Work is performed by the Contractor in a calendar day, Contractor
shall maintain separate records of labor, construction equipment, materials, and equipment for each such change. In
the event that one or more changes to the Work is performed by Contractor in a calendar day, Contractor shall maintain
separate records of labor, construction equipment, materials, and equipment for each such change and the base
Contract Work. In the event that any Subcontractor of any tier, shall provide or perform any portion of any change to
Init.
/
®
®
(1296196457)
28
the Work, Contractor shall require that each such Subcontractor maintain records in accordance with this paragraph.
Each daily record maintained hereunder shall be signed by Contractor; such signature shall be deemed Contractor’s
representation and warranty that all information contained therein is true, accurate, complete, and relates only to the
change referenced therein. All records maintained by Subcontractors of any tier, relating to the costs of a change in the
Work shall be signed by such Subcontractor’s authorized Project Manager or Superintendent. All such records shall
be forwarded to Construction Manager on the day the Work is performed (same day) for independent verification. The
Construction Manager shall attempt to review and reconcile costs for changes on a daily basis. The Construction
Manager’s signature on the report shall indicate agreement with the information reflected therein, not that the
Contractor is entitled to payment of the costs in the report. If the Construction Manager disagrees with the response,
the Construction Manager shall note the areas of disagreement on the report. In the event that Contractor shall fail or
refuse, for any reason, to maintain or make available for inspection, review, and/or reproduction such records,
adjustments to the Contract Sum or Contract Time, if any, on account of any change to the Work may be deemed
waived for that day. Contractor’s obligation to maintain back-up records hereunder is in addition to, and not in lieu of,
any other Contractor obligation under the Contract Documents with respect to changes to the Work.
§ 13.3.7.1 Labor. The daily report shall show the names, trade, labor, classifications, and hours worked, for the
workers.
§ 13.3.7.2 Material. The daily report shall describe and list quantities of materials used, attaching delivery tickets.
§ 13.3.7.3 Equipment. The daily report shall show type of equipment, size, identification number, and hours of
operation, including loading and transportation, if applicable.
§ 13.3.7.4 Other Services and Expenditures. Other services and expenditures shall be described in such detail in the
daily report as the Owner may require.
§ 13.3.7.5 Cost. The report shall provide dollar values for each category of cost.
§ 13.3.8 Credit for Deleted Work. Contractor agrees that the Owner has the right to determine whether any or all of the
Work described in the Contract Documents shall be deleted or whether to terminate Contractor’s performance, in
whole or in part, under the Contract Documents and without any penalty being incurred by Owner.
When an entire item of Work or section of Work is deleted from the Contract, the value for such deleted Work
established in the Owner-approved detailed Schedule of Values shall be used to calculate the credit amount, less the
value of any Work of such item performed, and shall have at least seven percent (7%) markup added thereto for the
Contractor’s saved overhead, bonds and insurance, unless the Schedule of Values for such item of Work includes the
value for overhead, bonds and insurance.
For a change that involves both added and deleted Work, a Contractor Fee will not be allowed if the deductive costs
exceeds the additive cost.
§ 13.3.9 Payment for Undisputed Amounts. Pending final determination of the total cost of a Construction Change
Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for
Payment accompanied by a Change Order indicating the Parties’ agreement with part or all of such costs.
§ 13.3.10 Final Determination of Adjustment of Contract Sum and Contract Time. After issuance of a Construction
Change Directive, when the Owner and Contractor reach agreement on adjustment of the Contract Sum and Contract
Time, such agreement shall be effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order; when the Owner and Contractor cannot reach agreement the Owner may issue a Unilateral
Change Order to adjust the Contract Sum and Contract Time and Contractor may pursue a Claim for all remaining
disputes.
§ 13.4 AUTHORITY TO APPROVE CHANGES
§13.4.1 The Owner’s Representative has sole authority to approve changes that affect the Contract Sum, Contract
Time, Construction Schedule or design of the Project, subject to the following limits. The total aggregate value of all
Change Orders, Unilateral Change Orders. and Construction Change Directives approved by the Owner’s
Representative shall not exceed 10% of the initial Contract Sum established at the time of award of the Contract. Any
Init.
/
®
®
(1296196457)
29
changes that will individually or in the aggregate exceed 10% of the initial Contract Sum must be approved by the City
Council of the City of Pasadena. Contractor must give Owner prompt written notice if any individual changes or the
aggregate of all approved and proposed changes in the Work will exceed 10% of the initial Contract Sum, in order for
Owner to obtain additional funding for the Project.
§13.4.2 Architect. The Architect shall not authorize any change or Modification to the Work or the Contract
Documents that affects the Contract Sum, Contract Time, Project Schedule or design of the Project. Subject to the
foregoing limitations, the Architect may approve Minor Changes in the Work. Minor Changes in the Work are
changes not involving adjustments to the Contract Sum, Contract Time, or Project Schedule and not inconsistent with
the design intent of the Contract Documents.
§13.4.3 No Verbal Changes. All changes to the Contract, whether resulting in an increase, decrease or no change in
the Contract Sum or Contract Time, must be in writing and signed by an authorized representative of the Owner. Any
verbal direction, instruction, interpretation, or determination from the Owner which, in the opinion of the Contractor,
causes a change or additional work, or otherwise requires an adjustment to the Contract Sum or the Contract Time,
shall be treated as a Change Order Request only if the Contractor gives the Owner written notice within ten (10)
calendar days of the verbal direction and prior to acting in accordance therewith. Time is of the essence in
Contractor’s written notice pursuant to the preceding sentence, so that the Owner can promptly investigate and
consider alternative measures to address the verbal direction giving rise to Contractor’s notice. The written notice
shall state the date, circumstances, extent of adjustment to the Contract Sum or the Contract Time, if any, requested
and the source of the verbal direction. Contractor acknowledges that its failure, for any reason, to give written notice
within ten (10) calendar days of such verbal direction shall be deemed Contractor’s waiver of any right to assert or
Claim any entitlement to an adjustment of the Contract Time or the Contract Sum on account of such verbal direction.
§13.4.4 Unauthorized Changes. Contractor shall undertake, at its risk, work included in any oral request, written
order, Change Order or Construction Change Directive issued by a person in excess of that person’s authority as
provided herein. Additionally, any work performed by the Contractor beyond the lines and grades shown on the
Contract Documents or any extra work performed or provided by the Contractor without notice to the Architect and
the Owner shall be considered unauthorized and at the sole expense of the Contractor. Unauthorized work will not be
measured or paid for and no extension of Contract Time will be granted on account thereof. Any unauthorized work
may be ordered removed at the Contractor’s sole cost and expense. The failure of the Owner to direct or order removal
of unauthorized work shall not constitute acceptance or approval of such work nor relieve the Contractor from any
liability on account thereof.
§13.5 OWNER-INITIATED CHANGE PROPOSAL REQUEST
Owner may issue a Change Proposal Request ("CPR"), in writing, to the Contractor, describing a proposed change to
the Work and requesting the Contractor submit an itemized proposal in a format acceptable to Owner within ten (10)
calendar days after Owner’s issuance of the Change Proposal Request. The Contractor’s proposal shall include an
analysis of impacts to cost and time, if any, to perform the extra work, or delete Work, as applicable, including the
effects and impacts, if any, on unchanged Work, estimates of costs (broken down by the categories listed in Section
13.3.4 herein relating to change of the Contract Sum), and Contractor’s proposed methods to minimize costs, delay
and disruption to the performance of the Work. If Contractor fails to submit a written proposal within such period of
time, it shall be presumed that the change described in the Owner’s Change Proposal Request will not result in an
increase to the Contract Sum or Contract Time and the change shall be performed by Contractor without such
increases. A Change Proposal Request does not authorize the Contractor to commence performance of the changed
work. Contractor shall not confirm any change until receipt of Owner’s written approval. If the Owner approves
Contractor’s proposal, Owner will issue a Change Order or Construction Change Directive.
§13.6 CONTRACTOR-INITIATED CHANGE ORDER REQUEST
If the Contractor alleges that instructions issued after the date of the Contract will result in increases to the Contract
Sum or Contract Time, if latent or unforeseen conditions require modification of the Contract Documents, or the
Contractor otherwise becomes aware of the need for or desirability of a change in the Work, a Change Order Request
("COR") may be submitted to the Owner in writing, in a format acceptable to Owner, and must specify the reasons for
such change, including relevant circumstances and impacts on the Construction Schedule. Contractor shall submit a
written price proposal, as described in Section 13.5 above, concurrently with the COR. The Contractor may request
additional compensation and/or time through a COR but not for instances that occurred more than five (5) calendar
Init.
/
®
®
(1296196457)
30
days prior to the COR. Contractor’s failure to initiate a COR within such period shall be deemed a waiver of the right
to adjustment of the Contract Sum or the Contract Time for the alleged change. Any COR that is approved by the
Owner will be incorporated in a Change Order or Construction Change Directive. If the Owner determines that the
Work in question is not a change, the Owner will issue a Work Directive, ordering the Contractor to proceed with the
Work without delay. If the COR is denied but the Contractor believes that it does have merit, the Contractor may
submit a Claim in accordance with the procedures set forth in Article 21 below.
§13.7 CONTRACTOR’S GOOD FAITH REVIEW OF SUBCONTRACTOR REQUESTS FOR CHANGES AND EXTRA W
ORK
Contractor shall make a good faith determination of the validity of the nature and amount of changes requested by
Subcontractors before passing through such requests to Owner. It is the Contractor’s responsibility to check all
Subcontractor and supplier questions for correctness, completeness, detail and fairness before submitting to Owner.
ARTICLE 14 TIME
§ 14.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in
the Contract Documents for Substantial Completion of the Work.
§ 14.2 The term "day" as used in this Agreement shall mean a calendar day of 24 hours beginning at 12:00 midnight.
The term "Working Day" shall mean any calendar day except Saturdays, Sundays and legal holidays observed at the
locale of the Project.
§ 14.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 15.4.3.
(Paragraph deleted)
§ 14.4 PROGRESS AND COMPLETION
§ 14.4.1 Time limits stated in the Contract Documents are of the essence of the Contract. By signing the Agreement the
Contractor confirms that the Contract Time is a reasonable period for performing the Work.
§ 14.4.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article 17 to be
furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective
date of such insurance.
§ 14.4.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion
within the Contract Time.
§ 14.5 DELAYS AND EXTENSIONS OF TIME
§ 14.5.1 Delays to Critical Path. Extensions of time, when granted, will be based upon the effect of delays to the Critical
Path of the Work as a whole and will not be granted for non-controlling delays to included portions of Work unless it
can be shown that such delays did, in fact, delay the progress of the Work as a whole.
§ 14.5.2 Conditions to Time Extensions. The Contract Time shall be extended only if, in the opinion of City, the
Contractor is necessarily delayed in completing the Contract by a cause that meets all of the following conditions:
.1
Such cause is beyond the control of Contractor, its Subcontractors, or material suppliers and is not due,
in whole or in part, to the breach, negligence or fault of Contractor, its Subcontractors, or material
suppliers;
.2
Such cause arises after the Bid Deadline and neither was nor could have been anticipated before the Bid
Deadline;
.3
The effect of such cause could not be anticipated and avoided or mitigated by the exercise of all
reasonable precautions, efforts and measures by the Contractor, including re-planning, scheduling and
re-sequencing;
.4
Such cause, in fact, results in a delay in the performance of the Critical Path of the Work, which is not
thereon thereafter recovered;
.5
Contractor has given notice thereof and provided the back-up documentation and analysis as required
by the Contract Documents or as requested by the Architect or Owner including but not limited to
as-planned versus as-built schedules; and
Init.
/
®
®
(1296196457)
31
.6
The Contractor has exercised all reasonable precautions, efforts and measures to accomplish such
changes in the Work without extending the date for Substantial Completion.
§ 14.6.3 Excusable Noncompensable Delay.
.1
Definition. The Parties acknowledge that "Force Majeure" events, defined herein are not within the
responsibility or control of Owner or are reasonably contemplated by the Parties to occur during the
course of performance of the Work, which may impact the schedule for performance of the Work and
may entitle Contractor to an extension of the Contract Time ("Excusable Noncompensable Delays"). If
the Critical Path of the Work is delayed by Excusable Noncompensable Delays, provided that such
delays did not result from the acts of Contractor and further provided that Contractor takes reasonable
precautions to prevent further delays owing to such causes, then the Contract Time and/or Milestones
shall be extended by a Change Order or Construction Change Directive. "Force Majeure" means any of
the following events, which materially and adversely affect Contractor’s obligations hereunder:
earthquakes; acts of god, epidemic, blockade, embargoes, rebellion, war, terrorism, national
emergency, riot, act of sabotage, or civil commotion; industry-wide labor strike which has a material
adverse impact on the Work; discovery of any archaeological, paleontological or cultural resources;
spill of hazardous substances by a third party at or near the Site which is required to be reported to the
California Environmental Protection Agency, Department of Toxic Substances Control; discovery at,
near, or on the site of any species listed as "threatened" or "endangered" under the Federal or State
Endangered Species Act; unusually severe weather conditions (subject to the allowance for Rain Days
established in Section 14.6.4).
.2
Sole Remedy. An extension to the Contract Time identified in the Contract Documents shall be the
Contractor’s sole remedy for Excusable Noncompensable Delays. In no event shall Contractor be
entitled to any compensation or recovery of any damages in connection with the Excusable
Noncompensable Delays defined above.
§ 14.6.4 Rain Delays. For purposes of granting time extensions resulting from rain more severe than normal, which
was not foreseeable, the Contractor and the Owner agree that the impact of normal rainfall for which the Contractor is
not entitled to a time extension is defined by the number of expected Working days of delay (based on a five (5)
calendar day work week) caused by normal rainfall, which is sixteen (16) Working Days per year.
In scheduling the Work, the Contractor shall account for the above number of Working Days by month for which the
effects of normal rainfall are expected to prevent Work. In the event the Contractor works a regularly scheduled work
week other than five (5) days per week, the above numbers shall be multiplied by the ratio of the actual average
number of work days per week divided by five (5) calendar day work week.
§ 14.6.5 Excusable Compensable Delay. "Excusable Compensable Delay" means any delay to the Critical Path of the
Work occurring after commencement and prior to Substantial Completion of the Work: 1) which directly impacts the
date for Substantial Completion established in the Agreement; 2) for which Owner is responsible, is unreasonable
under the circumstances involved and not within the contemplation of the Parties; 3) is not due, in whole or in part, to
the breach, negligence, or fault of Contractor, its Subcontractors, or Suppliers. Contractor’s remedy for Excusable
Compensable Delay shall be extension of the date for Substantial Completion and Milestones subject to the
requirements of Section 14.6.2 and reimbursement of actual costs directly resulting from such delays and Contractor’s
Fee established according to Article 13 herein.
§ 14.6.6 Inexcusable Delay. "Inexcusable Delay" means any delay in the Critical Path of activities required for
Substantial Completion of the Work resulting from causes other than those deemed to be an Excusable
Noncompensable Delay or an Excusable Compensable Delay by these General Conditions. An Inexcusable Delay
shall not entitle Contractor to either an extension of the date for Substantial Completion or Milestones or to any
additional compensation whatsoever.
§ 14.6.7 Concurrent Delays.
.1
To the extent the Contractor is entitled to an extension of time due to an Excusable Noncompensable
Delay or to an Excusable Compensable Delay, but the performance of the Work is independently
suspended, delayed, or interrupted by an Inexcusable Delay, the delay shall be deemed to be a
"Concurrent Delay."
Init.
/
®
®
(1296196457)
32
.2
In the case of a Concurrent Delay, Contractor shall be entitled to an extension of the Contract Time,
Contractor shall not be liable for Liquidated Delay Damages during the period of Concurrent Delay,
and Contractor shall not be entitled to any additional compensation whatsoever during the period of
Concurrent Delay.
§ 14.6.9 Claim for Additional Time. Any claim for extension of time shall be made in writing within the time limits
provided in Section 21.1.1 herein. Within ten (10) calendar days after commencement of such delay the Contractor
shall furnish the 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 including an as-planned versus as-built schedule. The Contractor acknowledges the extreme importance of
promptly notifying and thoroughly documenting any request for time extension and further specifically acknowledges
that Owner will suffer extreme prejudice should Contractor fail in any way to comply with this requirement.
§ 14.6.10 No extension of Contract Time or adjustment of the Contract Sum will be granted for a delay caused by a
shortage of materials, unless the Contractor furnishes to the Owner documented proof that the Contractor has
diligently made every effort to obtain such materials from every known source within reasonable reach of the Work.
The 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 the 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 Bid Deadline.
§ 14.6.11 No extension of time will be granted under this Article 14 for any delay to the extent: (1) that performance
would have been so delayed by any Contractor induced causes, including but not limited to the fault or negligence of
the Contractor or its Subcontractors; or (2) for which any remedies are provided for or excluded by any other provision
of the Contract.
§ 14.6.12 Change Orders for Excusable Noncompensable Delay and Excusable Compensable Delay. Owner shall issue a
Change Order or a Construction Change Directive for any time extensions, and compensation, if any, allowed under
this Article. The Change Order or Construction Change Directive shall set forth the net days of extension of the
Contract Time, and any reimbursement of costs and Contractor’s Fee, as applicable. At Owner’s sole discretion, a
Change Order or Construction Change Directive under this section may by issued at any time up to, but prior to, the
Substantial Completion of the Work.
§ 14.6.13 No Release of Sureties. An extension of time granted shall not release the sureties from their obligations.
Work shall continue and be carried on in accordance with all the provisions of the Contract and the Contract shall be
and shall remain in full force and effect during the continuance and until the completion and the Board’s final
acceptance of the Work covered by this Contract unless formally suspended or annulled in accordance with the terms
of the Contract Documents.
§ 14.6.14 No Waiver by Owner. Neither the grant of an extension of time beyond the date fixed for the completion of
any part of the Work nor the doing and acceptance of any part of the Work or materials specified by this Contract after
the time specified for the completion of the Work, shall be deemed to be a waiver of any other rights and remedies
under the Contract.
§ 14.6.15 Risk of Costs for Delays. As between the Contractor and Owner, the Contractor assumes the risk of any and
all costs, expenses and liabilities which the Contractor may incur in connection with all suspensions of, disruption of,
or delays in performance of the Contract, regardless of the length thereof, arising from all causes whatsoever, except
that the Contractor may be compensated for Excusable Compensable Delays as defined herein. If the Contractor
sustains loss as a consequence of Excusable Compensable Delays, which could not have been avoided by the judicious
handling of forces, equipment and plant, there may be paid to the Contractor actual costs directly resulting from the
delay and markup established in accordance with Article 13. For Excusable Noncompensable Delays, Contractor
shall be entitled to an extension of the Contract Time but Contractor shall not be entitled to compensation or additional
payment due to such delays.
Init.
/
®
®
(1296196457)
33
§ 14.6.16 Owner is Exempt From Liability for Early Completion Delay Damages. While the Contractor may schedule
completion of all of the Work, or portions thereof, earlier than the Contract Time, the Owner is exempt from liability
for and the Contractor shall not be entitled to an adjustment of the Contract Sum or to any additional costs, damages,
including but not limited to claims for extended general conditions costs, home office overhead, jobsite overhead and
management or administrative costs, or compensation whatsoever, for use of Float or for Contractor’s inability to
complete the Work earlier than the Contract Time for any reason whatsoever, including but not limited to, delay
caused by Owner or other Excusable Compensable Delay.
§ 14.6.17 Continuation of the Work. If the construction of the Work is not completed within the Contract Time, as may
be extended by the Owner, the Contractor shall continue performing the Work in accordance with the Contract
Documents until the completion of and the acceptance of the Work, or Contractor’s performance is suspended or
terminated.
ARTICLE 15 PAYMENTS AND COMPLETION
§ 15.1 APPLICATIONS FOR PAYMENT
§ 15.1.1 Prior to signing the Agreement, the Contractor shall submit to the Owner a Preliminary Schedule of Values
for Payment allocating the Contract Sum to portions of the Work in such form and supported by such data to
substantiate its accuracy as the Owner may require. The properly balanced Preliminary Schedule of Values shall be
attached as Exhibit B to the Agreement. Prior to submission of the first Application for Payment, the Contractor shall
submit a detailed properly balanced schedule of values for payment. If the Architect and Owner determine that the
detailed Schedule of Values is reasonable and properly balanced, it will be accepted by Owner and used as the basis for
measuring payment due Contractor and for pricing potential deleted Work ("Schedule of Values"). Payment will be
made based upon the Architect’s confirmation of the percentage of Work completed. The Contractor shall utilize AIA
Documents G702 and G703, Application for Payment and Schedule of Values, unless the Owner authorizes the
Contractor to utilize different forms. Applications for payment shall show the percentage of completion of each
portion of the Work as of the end of the period covered by the Application for Payment and shall separately itemize
Work covered by Change Orders and Construction Change Directives. On the 25th day of each month, the Contractor
shall submit to the Owner and Architect an itemized Application For Payment for operations completed in accordance
with the Schedule of Values. Such Application shall be supported by such data substantiating the Contractor’s right to
payment as the Owner or Architect may require, including the following items, receipt of which shall be deemed a
condition precedent to the Owner’s disbursement of progress payments:
(1)
Duly completed and executed forms of Conditional Waiver and Release Upon Progress Payment in
accordance with California Civil Code Section 8132 and completed Declarations to Procure
Payment and Release of Contract Rights on the forms provided by Owner of all persons eligible to
file stop payment notices in connection with the portion of the Work covering the current progress
payment requested (see Appendix 2 of the Bidding Documents);
(2)
Duly completed and executed forms of Unconditional Waiver and Release Upon Progress Payment
in accordance with California Civil Code Section 8134 and completed Declaration to Procure
file stop payment notices in connection with the Work covering the progress payment received by
Contractor under the prior Application for Payment (see Appendix 2 of the Bidding Documents);
(3)
Updated Construction Schedule;
(4)
Any Payment made by Owner to Contractor in the absence of any of the preceding documents in no
way relieves the Contractor from providing all these documents for the current and/or any future
Application for Payment;
(5)
At its sole discretion, Owner reserves the right to request an executed subcontract including bonds,
insurance certificates, and endorsements and all other exhibits and attachments for each item of
material, labor and service for which a disbursement has been requested; and
(6)
Such other documentation as the Owner may reasonably require to substantiate Contractor’s right to
payment.
§ 15.1.2 Such Applications shall not include requests for payment of amounts the Contractor does not intend to pay to
a Subcontractor or material supplier because of a dispute or other reason, or as to which an appropriate conditional or
unconditional waiver and release of rights, stop payment notice release, or stop payment notice release bond has not
been filed.
Init.
/
®
®
(1296196457)
34
§ 15.1.3 Owner shall make payment to Contractor only for Work that is complete and installed. Payment for materials
stored on-site will be at the sole discretion of the Owner. Original detailed copies of invoices, acceptable to the
Owner, will be required as backup for payment requests for stored materials. If paid, stored materials will be paid at
actual itemized invoice amount with no mark up. No payment will be made for materials stored offsite.
§ 15.1.4 Contractor Warranty of Project. The Contractor warrants that title to all Work covered by an Application for
Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal
of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments
received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of
liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or
other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the
Work. This provision shall not relieve the Contractor from the responsibility for materials and Work upon which
payments have been made, the restoration of damaged Work or as waiving the right of the Owner to require the
fulfillment of the terms of the Contract.
§ 15.1.5 Payments shall be made pursuant to the Schedule of Values only. Anticipation of Work to be completed after
the pay period shown on payment requests will not be allowed. Billing will be allowed for the pay period only.
§ 15.1.6 Substantial Completion does not constitute approval for Final Payment nor does final acceptance of the Work.
§ 15.1.7 Payment requests will be rejected, or delay due to lack of, or improper, releases or other improper or
incomplete documents required to be submitted with Application for Payment, as determined by the Owner.
§ 15.1.8 First Application for Payment. The following items must be completed and submitted to Owner by the
Contractor prior to processing the first payment request:
.1
.2
.3
.4
.5
.6
.7
.8
List of all Subcontractors, regardless of value of Work to be performed, and suppliers, with names,
addresses, telephone numbers and license numbers.
Schedule of Values, including Unit Prices.
Copies of necessary permits.
Copies of authorizations and licenses from governing authorities for performance of the Work.
Certificates of insurance, endorsements, and, if requested, policies.
Performance and payment bonds (due fifteen (15) days after award and tender of Contract).
Resume of Contractor’s Designated Representative.
Schedule of Submittals.
§ 15.2 CERTIFICATES FOR PAYMENT
§ 15.2.1 The Architect will, within seven (7) days after receipt of the Contractor’s Application for Payment, either
issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect
determines is properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding
certification in whole or in part as provided in Section 15.2.3.
§ 15.2.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based
on the Architect’s evaluations of the Work and the data comprising the Application for Payment, that, to the best of the
Architect’s knowledge, information and belief, the Work has progressed to the point indicated and that the quality of
the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of
the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests
and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific
qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a
representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate
for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to
check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or
procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data
requested by the Owner to substantiate the Contractor’s right to payment, or (4) made examination to ascertain how or
for what purpose the Contractor has used money previously paid on account of the Contract Sum.
Init.
/
®
®
(1296196457)
35
§ 15.2.3 Decisions to Withhold Certification.
§ 15.2.3.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary
to protect the Owner, if in the Architect’s opinion the representations to the Owner required by Section 15.2.2 cannot
be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the
Contractor and Owner as provided in Section 15.2.1. If the Contractor and the Architect cannot agree on a revised
amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to
make such representations to the Owner. The Architect shall also decline to certify and the Owner may refuse to make
payment or, because of subsequently discovered evidence or subsequent observations, the Architect or Owner shall
nullify the whole or any part of any Certificate for Payment previously issued, to such extent as may be necessary to
protect the Owner from loss because of
.1
defective Work not remedied;
.2
third party claims filed or reasonable evidence indicating probable filing of such claims unless security
acceptable to the Owner is provided by the Contractor;
.3
failure of the Contractor to make payments properly to Subcontractors or for labor, materials or
equipment;
.4
reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;
.5
damage to the Owner or a separate contractor;
.6
reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid
balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or
.7
repeated failure to carry out the Work in accordance with the Contract Documents;
.8
retesting of nonpassing tests; reimbursement for inspections, overtime and minimum times not used;
.9
anticipated and/or actual breach of terms and conditions of Contract Documents;
.10 Liquidated Damages;
.11 payments which may be past due and payable for just claims against Contractor or any Subcontractor
for labor or materials furnished in and about the performance of Work on the Project under this
Contract;
.12 improper, incomplete or unacceptable documents, releases or backup materials;
.13 alleged breach of terms and conditions of Contract Documents;
.14 disputed items and issues;
.15 rejection of the Work or any part of the Work by any governmental authority having jurisdiction over
the Project; or
.16 such other sums the Owner is entitled to recover from Contractor.
§ 15.2.3.2 When the above reasons for withholding certification are removed, certification will be made for amounts
previously withheld.
§ 15.2.3.3 If at any time there shall be evidence of the existence, whether or not same has been asserted, of any
mechanics lien, stop payment notice or claim arising out of or in connection with the performance or default in
performance of this Contract or any subcontract or supply contract entered into by Contractor to perform this Contract,
and if the Owner might become liable for the discharge of or satisfaction of such mechanics lien, stop payment notice
or claim, then the Owner shall have the right to retain out of any payment then due or thereafter to become due, in
addition to the amounts set forth above, an amount sufficient to discharge such mechanics lien, stop payment notice or
satisfy such claim and to reimburse the Owner and the representatives of the Owner for all costs and expenses in
connection therewith, including attorneys’ fees. Further, the Owner, in its sole discretion, shall have the right to
discharge or satisfy such mechanics lien, stop payment notice or claim and pay all costs and expenses in connection
therewith if the Contractor does not have such stop payment notice or claim discharged or satisfied within ten days
after receiving notice thereof from Owner or unless some other procedure for discharge or satisfaction of such lien or
claim is agreed upon between Owner and Contractor. If the amounts retained are insufficient for the aforesaid
purposes, or if such mechanics lien, stop payment notice or claim remains undischarged or unsatisfied after all
payments have been made to the Contractor, then the Contractor shall refund to the Owner all monies that may have
been paid to discharge such lien or satisfy such claims, including the costs, expenses and attorney’s fees in connection
therewith.
§ 15.3 PROGRESS PAYMENTS
§ 15.3.1 The Contractor shall pay each Subcontractor, no later than seven (7) days after receipt of payment, the amount
to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on
Init.
/
®
®
(1296196457)
36
account of the Subcontractor’s portion of the Work. The Contractor shall, by appropriate agreement with each
Subcontractor, require each Subcontractor to make payments to sub-subcontractors in similar manner.
§ 15.3.2 Neither the Owner nor Architect shall have an obligation to pay or see to the payment of money to a
Subcontractor except as may otherwise be required by law. Owner, however, reserves the right to make payments to
Contractor in the form of checks payable jointly to Contractor and any of its Subcontractors or material suppliers that
might have the right to assert a lien or stop payment notice claim against the Owner.
§ 15.3.3 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the
Owner shall not constitute acceptance of Work not in accordance with the Contract Documents.
§ 15.4 SUBSTANTIAL COMPLETION
§ 15.4.1 Definition. Substantial Completion is defined to mean the stage in the progress of the Work when: (1) the
Work is sufficiently complete in accordance with the Contract Documents as determined by the Architect and certified
by the Owner so that the Owner can occupy or utilize the Work for its intended use; (2) the Project, or designated
portion, is available for the use by Owner; (3) a temporary certificate of occupancy or equivalent building inspector
sign-off has been issued by the applicable governmental authority; (4) all systems included in the Work are operational
as designed, tested and adjusted; (5) all final finishes required by the Contract Documents are in place and final
cleaning is completed; and (6) Contractor has submitted to Owner a written certification that all remaining Work shall
be completed within thirty (30) calendar days following the Date of Substantial Completion and that Record
Drawings and reproducible As-Built Drawings will be completed and submitted to Owner within thirty (30) days
following the date of Substantial Completion and as a condition to receipt of Final Payment.
§ 15.4.2 Contractor’s Request for Inspection and Contractor’s Punch List. When the Contractor considers that the
Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall
prepare and submit to the Owner and Architect a comprehensive list of items to be completed or corrected prior to final
payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work
in accordance with the Contract Documents.
§ 15.4.3 Owner’s Inspection. Upon receipt of the Contractor’s list, the Owner and/or Architect will make an inspection
to determine whether the Work or designated portion thereof is substantially complete. If the inspection discloses any
item, whether or not included on the list, which is not sufficiently complete in accordance with the requirements of the
Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended
use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item
upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by
the Architect to determine Substantial Completion.
§ 15.4.4 Notice of Substantial Completion. When the Architect determines that the Work or designated portion thereof
is substantially complete, the Owner will issue a Certificate of Substantial Completion which shall establish the date
of Substantial Completion, establish responsibilities of the Owner and Contractor for security, maintenance, heat,
utilities, damage to the Work and insurance, and fix the time within which the Contractor shall finish all items on the
list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of
Final Completion of the Work.
§ 15.4.5 Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to the
Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate.
§ 15.5 FINAL COMPLETION AND FINAL PAYMENT
§ 15.5.1 Final Inspection. Upon receipt of the Contractor’s written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection
and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed,
the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect’s knowledge,
information and belief, and on the basis of the Architect’s on-site visits and inspections, the Work has been completed
in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the
Contractor and noted in the final Certificate is due and payable. The Architect’s final Certificate for Payment will
constitute a further representation that conditions stated in Section 15.5.2 as precedent to the Contractor’s being
entitled to final payment have been fulfilled.
Init.
/
®
®
(1296196457)
37
§ 15.5.2 Final payment shall not become due until the Contractor has delivered to the Owner a complete release of all
liens arising out of this Contract or receipts in full covering all labor, materials and equipment for which a lien could be
filed, or a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied
after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay
in discharging such lien, including costs and reasonable attorneys’ fees.
§ 15.5.2.1 Affidavit of Final Completion and Final Payment. The Contractor shall, upon completion of the Work and
final cleaning up, submit to Owner a sworn Affidavit of Final Completion in the form attached in Appendix 2 of the
Bidding Documents. Disputed Contract Claims in stated amounts may be excluded by the Contractor from the
operation of the release. Within thirty (30) calendar days after receipt of the Affidavit of Completion, Owner will
inspect the Work and will either (1) reject the Affidavit of Final Completion, specifying the defective and/or
uncompleted portions of the work, or (2) accept the Affidavit of Final Completion and submit a request to the City
Council for final acceptance of the Work.
§ 15.5.2.2 Rejection and Revision. If Owner rejects the Affidavit of Final Completion, specifying defective and/or
uncompleted portions of the Work, the Contractor shall promptly remedy the defective and/or uncompleted portions of
the Work. Thereafter, the Contractor shall give Owner a revised Affidavit of Final Completion with a new date based
on when the defective and/or uncompleted portions of the Work were corrected. The foregoing procedure shall apply
successively thereafter until Owner accepts Contractor’s Affidavit of Final Completion.
§ 15.5.2.3 Documentation. In addition to the requirements for Final Payment set forth in the other Contract
Documents, the Final Payment shall not become due until (i) Contractor has fully performed the Contract, including
all Punch List work; (ii) sixty (60) calendar days have elapsed since the Owner records a Notice of Completion, or
such lesser time as may be authorized by Owner in writing; and (iii) Contractor has submitted to the Owner:
.1
A full, complete and proper Final Application for Payment showing the proposed total amount due the
Contractor, segregated as to Contract Schedule of Values quantities, changes in the Work, and other
basis for payments; deductions made or to be made for prior payments; amounts to be retained; any
Claims the Contractor intends to file at that time or a statement that no Claims will be filed; and any
unsettled Claims, stating amounts;
.2
Duly completed and executed forms of Conditional Waiver and Release Upon Final Payment in
accordance with California Civil Code Section 8136 and duly completed and executed forms of
Declaration to Procure Final Payments and Release of Contract Rights from Contractor, Subcontractors
of any tier, suppliers and other persons eligible to file stop payment notices in connection with the
Work, covering the final payment period (see Appendix 2 of the Bidding Documents);
.3
Duly completed and executed forms of Unconditional Waiver and Release Upon Progress Payment in
Declaration to Procure Final Payment and Release of Contract Rights from Contractor, Subcontractors
Work, covering the previous payment period (see Appendix 2 of the Bidding Documents);
.4
Completed and executed Sworn Statement and Warranty Regarding Continuing Insurance Obligation
(see Appendix 2) from Contractor and, if requested by Owner, from Subcontractors, attaching
endorsements, evidencing that insurance required by the Contract Documents to remain in force after
Final Payment, if any, is currently in effect and will not be canceled or allowed to expire until at least
thirty (30) days’ prior written notice has been given to the Owner;
.5
A written statement that the Contractor knows of no substantial reason that the insurance will not be
renewable to cover the period required by the Contract Documents;
.6
Consent of surety(ies) to Final Payment;
.7
Final Local Business Participation Report (Appendix 2);
.8
The required Record Documents and As-Built Drawings and Specifications (in reproducible format)
including, but not limited to, accepted Shop Drawings and other Submittals;
.9
Documentation that Contractor has inspected, tested, and adjusted performance of every system or
facility of the Work to ensure that overall performance is in compliance with terms of the Contract
Documents;
.10 The operating manuals for operating and maintaining the Work;
Init.
/
®
®
(1296196457)
38
.11
.12
Four (4) copies of all warranties from vendors and Subcontractors, operation and maintenance
manuals, instructions and related agreements, equipment certifications and similar documents, and
maintenance and operating instructions; and
Such other documents as Owner may reasonably require.
§ 15.5.2.4 Release of Stop Payment Notices. If a Subcontractor or supplier refuses to furnish a release or waiver
required by Owner or files a stop payment notice, the Contractor shall, upon Owner’s request, furnish a bond
satisfactory to the Owner to release the stop payment notice and shall otherwise fully indemnify the Owner against
such stop payment notice and Owner shall enforce its right under Section 15.2.3 herein.
§ 15.5.2.5 Disbursement of Final Payment. Provided that the Owner is then in receipt of all documents and other items
in Section 15.5.2.3 above, and in compliance with Section 15.5.2.4 above, as conditions precedent to the Owner’s
obligation to disburse Final Payment, not later than sixty (60) calendar days following Final Acceptance; the Owner
shall disburse the Final Payment to the Contractor. Pursuant to Public Contract Code § 7107, if there is any dispute
between the Owner and the Contractor at the time that disbursement of the Final Payment is due, the Owner may
withhold from disbursement of the Final Payment an amount not to exceed one hundred fifty percent (150%) of the
amount in dispute.
§ 15.5.3 The making of Final Payment shall not constitute a waiver of claims by the Owner arising from:
.1
unsettled stop payment notices;
.2
faulty or defective Work appearing after Final Completion of the Work;
.3
failure of the Work to comply with the requirements of the Contract Documents;
.4
terms of any special warranties required by the Contract Documents;
.5
any other cause, unless specifically waived by the Owner in writing.
(Paragraph deleted)
§ 15.5.4 Acceptance of Final Payment by the Contractor, a Subcontractor, or material supplier shall constitute a
waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the
time of final Application for Payment.
§ 15.5.5 Any lien, stop payment notice or other claim, filed or asserted after the Contractor’s acceptance of the Final
Payment, by any Subcontractor, laborer, material supplier, or others, in connection with or for Work performed under
the Contract Documents shall be the sole and exclusive responsibility of the Contractor who further agrees to
indemnify, defend and hold harmless the Owner and its officers, agents and employees from and against any claims,
demands or judgment arising out of or associated therewith, including, without limitation, attorneys’ fees incurred by
the Owner in connection therewith.
§ 15.6 STATUTORY PAYMENT OBLIGATIONS
§ 15.6.1 This Contract is subject to the following provisions of California Public Contract Code Section 20104.50
which provides as follows:
§ 15.6.1.1 It is the intent of the Legislature in enacting this section to require all local governments to pay their
contractors on time so that these contractors can meet their own obligations. In requiring prompt payment by all local
governments, the Legislature hereby finds and declares that the prompt payment of outstanding receipts is not merely
a municipal affair, but is, instead, a matter of statewide concern.
§ 15.6.1.2 It is the intent of the Legislature in enacting this article to fully occupy the field of public policy relating to
the prompt payment of local governments’ outstanding receipts. The Legislature finds and declares that all
governmental officials, including those in local government, must set a standard of prompt payment that any business
in the private sector that may contract for services should look toward for guidance.
§ 15.6.1.3 Any local agency which fails to make any progress payment within thirty (30) days after receipt of an
undisputed and properly submitted payment request from a Contractor or construction Contract shall pay interest to
the Contractor equivalent to the legal rate set forth in subdivision (a) of § 685.010 of the Code of Civil Procedure.
§ 15.6.1.4 Upon receipt of a payment request, each local agency shall act in accordance with both of the following:
Init.
/
®
®
(1296196457)
39
.1
.2
Each payment request shall be reviewed by the local agency as soon as practicable after receipt of the
purpose of determining that the payment request is a proper payment request;
Any payment request determined not to be a proper payment request suitable for payment shall be
returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. A
request returned pursuant to this section shall be accompanied by a document setting forth in writing
the reasons why the payment request is not proper.
§ 15.6.1.5 The number of days available to a local agency to make a payment without incurring interest pursuant to this
section shall be reduced by the number of days by which a local agency exceeds the seven-day return requirement.
§ 15.6.1.6 For purposes of this Article:
.1
A "local agency" includes, but is not limited to, a city, including a charter city, a county, and a city and
county, and is any public entity subject to this part.
.2
A "progress payment" includes all payments due Contractors, except that portion of the final payment
designated by the Contract as retention earnings.
.3
A payment request shall be considered properly executed if funds are available for payment of the
payment request, and the Financial Officer of the local agency does not delay the payment due to an
audit inquiry.
§ 15.6.1.7 Each local agency shall require that this article, or a summary thereof, be set forth in the terms of any
Contract subject to this Article.
§ 15.6.2 This Contract is subject to the following provisions of California Public Contract Code § 7200 which
provides as follows:
§ 15.6.2.1 This section shall apply with respect to all Contracts entered into on or after January 1, 1999, between a
public entity and a original Contractor, between an original Contractor and a Subcontractor, and between all
Subcontractors thereunder, relating to the construction of any public Work of improvement.
§ 15.6.2.2 For purposes of this section, "public entity" means the state, including every state agency, office,
department, division, bureau, board, or commission, a city, county, city and county, including chartered cities and
chartered counties, district, special district, public authority, political subdivision, public corporation, or nonprofit
transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
§ 15.6.2.3 In a Contract between the original Contractor and a Subcontractor, and in a Contract between a
Subcontractor and any Subcontractor thereunder, the percentage of the retention proceeds withheld may not exceed
the percentage specified in the Contract between the public entity and the original Contractor.
§ 15.6.2.4 No party identified in 15.6.1.2 shall require any other party to waive any provision of this section.
§ 15.6.2.5 In the event that the Contractor elects to substitute securities in lieu of retentions, the Contractor may
withhold from its Subcontractors, who have not elected to substitute securities in lieu of retentions, the amount of
retentions that would have otherwise been withheld.
§ 15.6.3 This Contract is subject to the provisions of California Public Contract Code § 22300, a portion of which
§ 15.6.3.1 Any Contractor who elects to receive interest on moneys withheld in retention by a public agency shall, at
the request of any Subcontractor, make that option available to the Subcontractor regarding any moneys withheld in
retention by the Contractor from the Subcontractor. If the Contractor elects to receive any interest on any moneys by
the Contractor on any retention moneys withheld from the Subcontractor by the Contractor, less any actual pro rata
costs associated with administering and calculating that interest. In the event that the interest rate is a fluctuating rate,
the rate for the Subcontractor shall be determined by calculating the interest rate paid during the time that retentions
were withheld from the Subcontractor. If the Contractor elects to substitute securities in lieu of retention, then, by
mutual consent of the Contractor and Subcontractor, the Subcontractor may substitute securities in exchange for the
release of moneys held in retention by the Contractor.
Init.
/
®
®
(1296196457)
40
§ 15.6.3.2 This subdivision shall apply only to those Subcontractors performing more than five percent of the
Contractor’s total Bid.
§ 15.6.3.3 No Contractor shall require any Subcontractor to waive any provision of this section.
ARTICLE 16 PROTECTION OF PERSONS AND PROPERTY
§ 16.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in
connection with the performance of the Contract. The Contractor shall take reasonable precautions for safety of, and
shall provide reasonable protection to prevent damage, injury or loss to
.1
employees on the Work and other persons who may be affected thereby;
.2
the Work and materials and equipment to be incorporated therein, whether in storage on or off the site,
under care, custody or control of the Contractor or the Contractor’s Subcontractors or
Sub-subcontractors;
.3
other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways,
structures and utilities not designated for removal, relocation or replacement in the course of
construction; and
.4
the public, members of which may utilize the Project sites during construction.
The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and
regulations, and lawful orders of public authorities bearing on safety of persons and property and their protection from
damage, injury or loss. The Contractor shall promptly remedy damage and loss to property caused in whole or in part
by the Contractor, a Subcontractor, a sub-subcontractor, or anyone directly or indirectly employed by any of them, or
by anyone for whose acts they may be liable. The foregoing obligations of the Contractor are in addition to the
Contractor’s obligations under Section 9.15.
§ 16.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract, including, without limitation, safety meetings and
training. Contractor’s Injury and Illness Prevention Program (IIPP), established in accordance with Labor Code
§§ 3201.5 and 64017, must be prepared and submitted for the Owner’s review and comment prior to the
preconstruction conference. Contractor shall comply with the review comments of Owner. The IIPP shall include, but
not be limited to, the following elements:
.1
.2
.3
.4
.5
.6
.7
.8
.9
.10
.11
.12
.13
The identity of outside safety consultant or Contractor’s safety officer and on-site safety officer,
responsible for implementing the IIPP;
The Contractor’s system for identifying and evaluating workplace hazards, including the schedule for
the Contractor’s safety inspections to identify unsafe conditions and work practices;
The Contractor’s methods and procedures for correcting unsafe or unhealthy conditions and work
practices in a timely manner;
The type and frequency of occupational health and safety training conducted for Contractor’s personnel
in general safe and healthy work practices with respect to each employee’s job assignment, including
tailgate meetings, lifting training, emergency procedures, etc.;
Information on the types of heavy equipment to be used and the necessary precautions to be taken if
there is an accident;
The Contractor’s system for ensuring that employees comply with the IIPP, which may include
disciplinary action;
A copy of the Contractor’s Hazardous Communications Program;
A list of any possible fire hazards and the fire fighting equipment for the particular site;
A detailed description of hazardous or unusual procedures necessary for the particular site;
Information on any material impact of the construction on the surrounding area including traffic flow,
parking, street closure, utility shutoffs, and pedestrian crossing;
Placement, quantity and type of safety warning lights, signs or other devices during construction;
Written procedures in the event of an injury, fire, or other emergency during construction; and
Description of the location and enclosure of the approved staging area.
Contractor shall be solely responsible for ensuring that all Work of the Project whether performed by Contractor,
Subcontractors, Sub-subcontractors or others, is performed in accordance with the agreed upon IIPP for the Project
Init.
/
®
®
(1296196457)
41
and as required by applicable law, ordinance, regulation or governmental orders in connection with performance of the
Work.
§ 16.1.2 At the time of the execution of this agreement, the Contractor shall provide to Owner a Safety Management
Plan, pursuant to the Owner’s standards.
§ 16.2 HAZARDOUS MATERIALS
§ 16.2.1 The Contractor is responsible for compliance with the requirements of the Contract Documents regarding
hazardous materials. If the Contractor encounters a hazardous material or substance not addressed in the Contract
Documents, and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons
resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop
Work in the affected area and report the condition to the Owner and Architect in writing. When the material or
substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner
and Contractor. By Change Order, the Contract Time shall be extended appropriately and the Contract Sum shall be
increased in the amount of the Contractor’s reasonable additional costs of shutdown, delay and start-up.
§ 16.2.2 If, without negligence on the part of the Contractor, the Contractor is held liable by a government agency for
the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the
Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred.
§ 16.2.3 Material Safety Data Sheets and Compliance With Proposition 65. Contractor is required to comply with the
provisions of California Health and Safety Code section 25249, et seq., which requires the posting and giving of notice
to persons who may be exposed to any chemical known to the State of California to cause cancer. The Contractor
agrees to familiarize itself with the provisions of this section, and to comply fully with its requirements.
§ 16.2.4 Construction and Demolition Waste Management Ordinance.
§ 16.2.4.1 In addition to complying with all applicable federal, state and local laws and regulations, Contractor shall
take note of the specific requirements of the Construction and Demolition Waste Management Ordinance, as material
part of the Work under this Contract in order to divert a minimum of 50% of the construction and demolition debris
resulting from the Work. The Waste Management Plan required by the Ordinance shall be submitted no later than
fifteen (15) calendar days after the Contract award. Contractor shall not commence Work until the waste Management
Plan has been approved by the City’s waste management compliance official. A sample of the City’s forms and
guidelines relating to compliance with the Ordinance is incorporated in the Contract Documents.
§ 16.2.4.2 The Contractor shall be required to certify compliance with the Construction and Demolition Waste
Management Ordinance and provide required documentation during the term of the contract.
§ 16.2.4.3 The cost to comply with the City’s Construction and Demolition Waste Management Ordinance shall be
included in the Unit Prices or lump sum prices for the applicable items of Work listed in the Contractor’s Bid Proposal
and no additional compensation will be allowed.
§ 16.2.4.4 Failure to comply with the provisions of the Construction and Demolition Waste Management Ordinance is
grounds for termination of the contract and a basis for penalties as stated in Pasadena Municipal Code Chapter 8.62.
ARTICLE 17 INSURANCE AND BONDS
§ 17.1 CONTRACTOR’S LIABILITY INSURANCE
§ 17.1.1 Minimum Scope and Limits. Contractor shall, concurrently with submission to Owner of the signed Agreement
and bonds and, in any event, prior to commencing performance of Work, submit proof of all insurance coverage
required by the Contract Documents for Contractor, its listed Subcontractors, and, upon Owner’s request, other
Subcontractors, Sub-subcontractors, and suppliers. Contractor shall not commence Work, nor shall any
Subcontractor commence Work, until all insurance documentation has been submitted to and approved by Owner.
Contractor shall procure and maintain, policies of insurance in the types, and limits set forth below, with a company or
companies lawfully licensed and authorized to do business in the State of California, so as to protect Owner and
claimants under the state insolvency or guarantee fund, or otherwise under such forms and limits satisfactory to the
Owner with a company or companies approved by Owner, following Owner’s examination of the company’s
Init.
/
®
®
(1296196457)
42
financial, reinsurance, claims procedures and other data requested by the Owner. Contractor shall procure and
maintain insurance for protection from claims that may arise out of, pertain to, or relate to Contractor’s operations and
completed operations under the Contract, whether such operations are by the Contractor, its Subcontractors, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Such insurance
shall provide coverage for claims including, but not limited to, the following:
(1)
Claims under workers’ compensation, disability benefit, and other similar employee benefit acts
that are applicable to the Work performed;
(2)
Claims for damages because of bodily injury, occupational sickness or disease, or death of the
Contractor’s employees;
(3)
Claims for damages because of bodily injury, sickness or disease, or death of any person other than
the Contractor’s employees;
(4)
Claims for damages insured by usual personal injury liability coverage which are sustained: (i) by
any person as a result of an offense directly or indirectly related to the employment of such person
by the Contractor, or (ii) by any other person;
(5)
Claims for damages, including to the Work itself, because of injury to, or destruction of, tangible
property, including loss of use resulting therefrom;
(6)
Claims for damages because of bodily injury or death of any person or property damage arising out
of the ownership, maintenance, or use of any motor vehicle;
(7)
Claims for bodily injury or property damage arising out of completed operations;
(8)
Claims involving contractual liability insurance applicable to the Contractor’s obligations under
Section 3.18;
(9)
Claims for errors and omissions in professional services provided under the requirements of the
Contract Documents, if any; and
(10)
Claims for third party liability and remediation costs stemming from pollution incidents that result
from the operations of Contractor, its Subcontractors, Sub-subcontractors and suppliers.
The cost of all insurance required under the Contract Documents shall be included in the Contractor’s Bid and in the
Contract Sum. All coverages (except professional liability, if applicable) shall be written on an occurrence basis and
shall be maintained without interruption from the date of commencement of the Work until the date of final payment;
additionally, completed operations coverages shall be maintained after final payment (see below).
§ 17.1.1.1 Business Automobile Liability including owned, hired, leased and non-owned vehicles, whether scheduled
or not, written on Insurance Services Office (ISO) form CA 00 01 (12/93 or later edition) or a substitute form
providing equivalent coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage.
The policy shall be scheduled as underlying insurance to the Umbrella or Excess Policy required herein.
§ 17.1.1.2 Commercial General Liability written on an Insurance Services Office (ISO) Commercial General Liability
"occurrence" form CG 00 01 (10/01 or later edition) or equivalent form approved by Owner for coverage on an
occurrence basis. The insurance shall cover liability, including, but not limited to, that arising from premises
operations, stop gap liability, independent contractors, products-completed operations, personal injury, advertising
injury, and liability assumed under an insured contract. The policy shall be endorsed to provide the Aggregate Per
Project Endorsement ISO form CG 25 03 (11/85). Coverage shall contain no contractors’ limitation or other
endorsement limiting the scope of coverage for liability arising from pollution, explosion, collapse, or underground (x,
c, u) property damage. Contractor shall provide Products/Completed Operations coverage to be maintained
continuously for a minimum of three (3) years after Final Completion. The policy shall be scheduled as underlying
insurance to any Umbrella of Excess Policy required herein.
§ 17.1.1.3 Contractor’s Pollution Liability Insurance providing coverage on a form acceptable to Owner for liability
caused by pollution conditions arising out of the operations of Contractor. Coverage shall apply to bodily injury,
property damage (including loss of use of damaged property or of property that has not been physically injured),
cleanup costs, and defense (including costs and expenses incurred in the investigation, defense, or settlement of
claims). All activities contemplated in this Contract shall be specifically scheduled on the policy as "covered
operations." The policy shall provide coverage for the hauling of waste from the Project Site to the final disposal
location, including non-owned disposal sites. Coverage shall be included on behalf of the insured for covered claims
arising out of the actions of independent contractors. If the insured is using Subcontractors, the policy must include
work performed "by or on behalf" of the insured. The policy shall specifically provide for a duty to defend on the part
of the insurer. Such insurance shall include coverage for all operations, including completed operations and
Init.
/
®
®
(1296196457)
43
professional services. Such insurance shall not contain any exclusion for asbestos or lead. Contractor’s pollution
liability coverage shall be maintained continuously for a minimum of three (3) years after Final Completion.
§ 17.1.1.4 Workers’ Compensation. Contractor shall comply with the applicable sections of the California Labor Code
concerning workers’ compensation for injuries on the job. Compliance is accomplished in one of the following
manners:
(1)
Provide a copy of permissive self-insurance certificate approved by the State of California; or
(2)
Secure and maintain in force a policy of workers’ compensation insurance with statutory limits and
Employer’s Liability Insurance with a minimal limit of $1,000,000 per accident; or
(3)
Provide a "waiver" form certifying that no employees subject to the Labor Code’s Workers’
Compensation provision will be sued in performance of this Contract.
§ 17.1.1.5 Excess or Umbrella Liability Insurance shall be at least as broad as any underlying coverage. Coverage shall
be provided on a "pay on behalf" basis, with defense costs payable in addition to policy limits. There shall be no cross
liability exclusion and no contractor’s limitation endorsement. The policy shall have starting and ending dates
concurrent with the underlying coverages. The Named Insured may determine the layering of primary and excess
liability insurance provided that if such layering differs from that described here, the actual coverage program meets
the minimum total required limits and complies with all other requirements listed in this Article 17. Contractor’s
excess or umbrella liability coverage shall be maintained continuously for a minimum of three (3) years after Final
Completion.
§ 17.1.1.6 Minimum Limits of Insurance. Contractor shall maintain limits of insurance no less than as follows:
.1
Commercial General Liability Insurance: $1,000,000 per occurrence, $2,000,000 general aggregate
(on a per project basis), and $2,000,000 aggregate for products/completed operations.
.2
Automobile Liability Insurance: $1,000,000 combined single limit per accident for bodily injury and
property damage.
.3
Workers’ Compensation and Employers Liability Insurance: Workers’ Compensation limits as
required by the laws of the State of California and Employers Liability limits of not less than
$1,000,000 per accident for bodily injury or disease and $1,000,000 per employee for bodily injury or
disease.
.4
Contractor’s Pollution Liability Insurance: $1,000,000 per occurrence or claim and $2,000,000
general aggregate limit.
.5
Excess or Umbrella Liability Insurance: $10,000,000, and the policy shall contain a clause stating
that it takes effect (drops down) in the event the primary limits are impaired or exhausted.
§ 17.1.2 Each insurance policy described in this Section 17.1 shall be endorsed to state that coverage shall not be
cancelled, allowed to expire, nor materially reduced in scope of coverage, except after thirty (30) days’ prior written
notice to Owner. Each policy shall be endorsed to provide coverage that is primary to any other coverage available to
Owner. Contractor shall furnish to the Owner copies of any endorsements that are subsequently issued amending
coverage or limits. If any of the foregoing insurance coverages are required to remain in force after Final Payment and
are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the
final Application for Payment as required by Section 15.1.
§ 17.1.3 Insurance shall be placed with insurers with a Best’s rating of no less than the Best Guide A:VII (or
equivalent) unless a different rating is established in the Invitation to Bid.
§ 17.1.4 Additional Insured Endorsements. The Contractor shall cause the insurance required by the Contract
Documents (except professional liability) to include the City of Pasadena, the City Council and each member
thereof, and their respective officials, employees, commission members, officers, directors, agents, employees,
volunteers and representatives as an additional insureds. For the Commercial General Liability coverage, said parties
shall be named as additional insureds utilizing either:
.1
.2
.3
Init.
/
ISO Additional Insured endorsement CG 20 10 (11/85); or
ISO Additional Insured endorsement CG 20 10 (10/01) and Additional Insured Completed Operations
endorsement CG 20 37 (10/01); or
substitute endorsements providing equivalent coverage, approved by Owner.
®
®
(1296196457)
44
The coverage shall contain no special limitations on the scope of protection afforded to such additional insureds.
Coverage for such additional insureds does not extend to liability to the extent prohibited by Insurance Code Section
11580.4.
§ 17.1.5 Waiver of Subrogation. All policies of insurance required by the Contract Documents shall include or be
endorsed to provide a waiver by the insurers of any rights of recovery or subrogation that the insurers may have at any
time against: the City of Pasadena, the City Council and each member thereof; the Architect; Owner’s Separate
Contractors; and their respective officials, employees, commission members, officers, directors, employees,
volunteers, agents, and representatives.
§ 17.1.6 The insurance coverages afforded the Additional Insured under the Policy shall be primary insurance, and no
other insurance maintained by the Additional Insured shall be called upon to contribute with the insurance coverages
provided by the Policy.
§ 17.1.7 Each type of insurance coverage under the Policy shall apply separately to each Additional Insured against
whom claim is made or suit is brought except with respect to the limits of the Company’s liability.
§ 17.1.8 Nothing in this contract of insurance shall be construed to preclude coverage of a claim by one insured under
the Policy against another insured under the Policy. All such claims shall be covered as third party claims, i.e., in the
same manner as if separate policies had been issued to each insured. Nothing contained in this provision shall operate
to increase or replicate the Company’s limits of liability as provided under the Policy.
§ 17.1.9 Prior to commencement of Work, Contractor shall furnish Owner with a certificate of insurance and
endorsements setting forth evidence of all insurance coverage required by this Section 17.1. Owner may require
complete, certified copies of any of any or all policies including, but not limited to, copies of the declaration, page,
schedule of forms, all endorsements and riders.
§ 17.1.10 Failure to maintain required insurance at all times shall constitute a default and material breach of the
Contract.
§ 17.3 PROPERTY INSURANCE
§ 17.3.1 Unless Owner otherwise elects, Contractor shall purchase and maintain property insurance on the buildings
and the materials and equipment on-Site required for the Work and intended to be permanently installed and
incorporated into the Project covering the interest of the Owner, Contractor and all Subcontractors in such materials
and equipment. Such insurance shall be written on an "All-Risk" basis covering perils normally covered on such
insurance including, but not limited to, the perils of fire and extended coverage and shall include theft, vandalism and
malicious mischief. Such insurance shall EXCLUDE earthquake, flood and other perils commonly excluded under
"all-risk" policies. The Contractor’s property insurance policy will have a basic $25,000.00 deductible per occurrence
for fire and extended coverage (damage to rented premises); other deductibles may apply to other types of losses. In
case of loss, Contractor shall be responsible for each loss payable under the Builder’s Risk policy attributable to the
acts, errors or omissions of Contractor, its Subcontractors, Sub-subcontractors and any other entity for whom
Contractor may be responsible.
§ 17.3.1.1 If Owner elects to purchase and maintain the property insurance described in Paragraph 17.3.1 above, then
Owner shall use the insurance line item in Contractor’s Bid Proposal to calculate the credit amount.
such insurance shall EXCLUDE property, tools, and equipment owned by Contractor, Subcontractors, or others that
are not to be permanently installed in the Project. Owner’s property insurance policy will have a basic $25,000.00
deductible per occurrence for fire and extended coverage; other deductibles may apply to other types of losses. In case
of loss, Contractor shall be responsible for and shall pay to Owner, Five Thousand Dollars ($5,000.00) for each loss
payable under the Builder’s Risk policy attributable to the acts, errors or omissions of Contractor, its Subcontractors,
Sub-subcontractors and any other entity for whom Contractor may be responsible. Payment of the deductible amount
will be considered an uninsured loss. As such, Owner will hold Contractor liable for payment of up to $5,000.00 for
any such loss and may assess such losses against progress payments and retention. Owner, in its sole discretion, has
the right to charge back the $5,000.00 obligation to any Contractor, Subcontractor or Sub-subcontractor whom Owner
Init.
/
®
®
(1296196457)
45
deems responsible after the parties involved in the loss have had seven (7) calendar days to determine the responsible
party for advancing such deductibles. No loss or damage, if any, incurred hereunder shall excuse Contractor’s
complete and satisfactory performance of the requirements of the Contract Documents.
§ 17.3.2 Contractor will do nothing that will cause cancellation, lapse, or reduction of Owner’s insurance without prior
written consent of Owner.
§ 17.3.3 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their
Subcontractors, Sub-subcontractors, agents and employees, each of the other, and (2) the Architect, Architect’s
consultants, Separate Contractors described in Article 12, if any, and any of their Subcontractors, Sub-subcontractors,
agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance
obtained pursuant to this Section 17.3 or other property insurance applicable to the Work, except such rights as they
have to proceeds of such insurance held by the Owner as fiduciary. The Contractor shall require of its Subcontractors,
Sub-subcontractors, suppliers, agents and employees of any of them, by appropriate agreements, written where
legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall
provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a
person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an
insurable interest in the property damaged.
§ 17.3.4 The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor,
and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make
payments to their sub-subcontractors in similar manner.
§ 17.3.5 SUBCONTRACTORS’ INSURANCE
§ 17.3.5.1 Contractor shall notify or cause to be notified each and every Subcontractor and Sub-Subcontractor
deriving its Contract under this Contract of the terms of this Article and shall cause each and every such Subcontractor
and Sub-Subcontractor to acknowledge and assume the terms of this Article as if it were Contractor thereunder. The
Contractor shall include in all Subcontracts a requirement that the Subcontractors shall obtain all insurance required to
be maintained by Contractor under this Article except that the limits of liability and deductibles shall be in amounts
determined by the Contractor, based on the degree of hazardous exposure according to the Work performed by each
Subcontractor and the size of each Subcontract. The Owner and Contractor shall be named as additional insureds
under each policy.
§ 17.3.5.2 Certificates of insurance and endorsements acceptable to the Contractor for each Subcontractor shall be
filed with the Owner prior to the Subcontractor’s commencement of Work. The certificates shall contain a provision
that coverage affordable under the policies will not be canceled unless at least thirty (30) days’ prior written notice has
been given to the Contractor. The Owner may, at any time, require that the Contractor provide the Owner with copies
of said policies.
§ 17.4 PERFORMANCE BOND AND PAYMENT BOND
§ 17.4.1 Faithful Performance and Payment Bonds.
§ 17.4.1.1 The Contractor shall furnish a satisfactory Performance Bond meeting all statutory requirements of the
State of California, on the form approved by Owner. The bond shall be furnished as a guarantee of the faithful
performance of the requirements of the Contract Documents as may be amended from time to time including, but not
limited to, liability for delays and damage to Owner and Owner’s Separate Contractors and Consultants, warranties,
guarantees and indemnity obligations, in an amount that shall remain equal to one hundred percent (100%) of the
Contract Sum.
§ 17.4.1.2 The Contractor shall furnish a satisfactory Payment Bond meeting all the statutory requirements of the State
of California on a form approved by Owner in an amount that shall remain equal to one hundred percent (100%) of the
Contract Sum to secure payment of all claims, demands, stop payment notices or charges of the State of California, of
material suppliers, mechanics, or laborers employed by the Contractor or by any Subcontractor or any person, firm or
entity eligible to file a stop payment notice with respect to the Work.
§ 17.4.1.3 The All bonds shall be executed by a California Admitted Surety Insurer. Bonds issued by a California
Admitted Surety Insurer listed in the latest versions of the U.S. Department of Treasury Circular 570 shall be deemed
Init.
/
®
®
(1296196457)
46
to be accepted unless specifically rejected by Owner. Bonds from a California Admitted Surety Insurer not listed in
Treasury Circular 570 must be accompanied by all of the documents enumerated in California Code of Civil Procedure
Section 995.660(a). The bonds shall bear the same date as the Contract. The attorney-in-fact who executes the
required bonds on behalf of the surety shall affix thereto a certified and current copy of the power of attorney. In the
event of changes which increased the Contract Sum, the amount of each bond shall be deemed to increase and at all
times remain equal to the Contract Sum. The signatures shall be acknowledged by a Notary Public.
§ 17.4.1.4 Every bond must display the Surety’s bond number and incorporate the Contract for construction of the
Work by reference. The terms of the bonds shall provide that the Surety agrees that no change, extension of time,
alteration or modification of the Contract Documents or the Work to be performed thereunder shall in anyway affect
its obligations and shall waive notice of any such change, extension of time, alteration or modification of the Contract
Documents.
§ 17.4.1.5 Surety further agrees that it is obligated under the bonds to any successor, grantee or assignee of the Owner.
§ 17.4.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of
obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall authorize a
copy to be furnished.
§ 17.4.3 Should any bond become insufficient, or should any of the sureties, in the opinion of the City, become
non-responsible or unacceptable, the Contractor shall within ten (10) calendar days after written notice of the
insufficiency, provide written documentation satisfactory to Owner that Contractor has secured new or additional
sureties for the bonds, otherwise the Contractor shall be in default of the Contract. No further payments shall be
deemed due or will be made under the Contract until a new surety(ies) qualifies and is accepted by Owner.
ARTICLE 18 CORRECTION OF WORK
§ 18.1 The Contractor shall promptly correct Work rejected by the Owner or Architect or failing to conform to the
requirements of the Contract Documents, whether discovered before or after Final Completion and whether or not
fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and
inspections, the cost of uncovering and replacement, and compensation for the Architect’s services and expenses made
necessary thereby, shall be at the Contractor’s expense.
§ 18.2 In addition to the Contractor’s obligations under Section 9.4, if, within one year after the date of Final
Completion of the Work or designated portion thereof or after the date for commencement of warranties established
under Section 15.4.3, or by terms of an applicable special warranty required by the Contract Documents, any of the
Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it
promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor
a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition.
§ 18.3 If the Contractor fails to correct nonconforming Work within a reasonable time, the Owner may correct it in
accordance with Section 8.3.
§ 18.4 The one-year period for correction of Work shall be extended with respect to portions of Work first performed
after Final Completion by the period of time between Final Completion and the actual completion of that portion of
the Work.
§ 18.5 Nothing contained in this Article 18 shall be construed to establish a period of limitation with respect to other
obligations the Contractor has under the Contract Documents. Establishment of the one-year period for correction of
Work as described in Section 18.2 relates only to the specific obligation of the Contractor to correct the Work, and has
no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be
enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with
respect to the Contractor’s obligations other than specifically to correct the Work.
§ 18.6 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract Documents, the
Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced by
Init.
/
®
®
(1296196457)
47
an amount equal to the entire cost of replacing the Work to make it as originally specified and intended. Such
adjustment shall be effected whether or not Final Payment has been made.
ARTICLE 19 MISCELLANEOUS PROVISIONS
§ 19.1 ASSIGNMENT OF CONTRACT
The Contractor shall not sublet or assign the Contract or any portion thereof or any monies due thereunder, without the
express prior written consent and approval of Owner, which approval may be withheld in the sole discretion of the
Owner. The Owner’s approval to such assignment shall be upon such terms and conditions as determined by the
Owner in its sole and exclusive discretion. Owner may freely, without consent of Contractor, assign the Contract or
any portion thereof. Contactor agrees, upon the assignee’s request, to continue and complete performance of the Work
upon payment of any undisputed outstanding amounts due Contractor under the terms of the Contract. Any entity
which shall succeed to the rights of Owner shall be entitled to enforce the rights of Owner hereunder. If requested by
such entity, Contractor will execute a separate letter or other agreement with such entity further evidencing
Contractor’s commitment to continue performance of the Contract.
§ 19.2 GOVERNING LAW
The contract is made, entered into, executed and is to be performed in the City of Pasadena, California. The Contract
shall be governed by the law of the State of California.
§ 19.3 TESTS AND INSPECTIONS
If Contract, Owner instructions, laws, ordinances, or any public authority require any Work to be specially tested or
approved, Contractor shall give notice, in accordance with such authority, of its readiness for observation or
inspection, at least two (2) Working Days prior to being tested or covered up. If inspection is by authority other than
Owner, Contractor shall inform Owner of date fixed for such inspection. All required certificates of inspection shall
be secured by Contractor. Observations by Owner shall be promptly made, and where practicable at resource of
supply. If any Work should be covered up without approval or consent of Owner, it must, if required by Owner, be
uncovered for examination and satisfactorily reconstructed at Contractor’s expense in compliance with Contract. Cost
of testing and any materials found not to be in compliance with the Contract shall be paid by Contractor. Other costs
for tests and inspection of materials shall be paid by Owner. Where such inspection and testing are to be conducted by
an independent laboratory or agency, such materials or samples of materials to be tested shall be selected by such
laboratory or agency, or Owner’s Representative and not by Contractor. Contractor shall notify Owner a sufficient
time in advance of manufacture of materials to be supplied by it under Contract, which must, by terms of contract, be
tested, in order that Owner may arrange for testing of same at source of supply. Prior to having satisfactorily passed
such testing and inspection, or prior to receipt of notice from said representative that such testing and inspection will
not be required, the materials shall not be incorporated into the Work without prior approval of Owner and subsequent
testing and inspection. Re-examination of questioned Work may be ordered by Owner and, if so ordered, Work must
be uncovered by Contractor. If such uncovered Work be found in accordance with Contract Documents, Owner shall
pay costs of re-examination and replacement. If such uncovered Work be found not in accordance with Contract
Documents, Contractor shall pay such costs.
§ 19.4 Equal Employment Opportunity Practices. Contractor agrees to comply with Section 4.08.035 of the City’s
Competitive Bidding and Purchasing Ordinance of the Pasadena Municipal Code, the rules and regulations
promulgated thereunder and to this end:
§ 19.4.1 Contractor certifies and represents that, during the performance of this Contract, the Contractor and any
other parties with whom it may subcontract shall adhere to equal opportunity employment practices to assure that
applicants and employees are treated equally and are not discriminated against because of their race, religion, color,
national origin, ancestry, disability, sex, age, and medical condition, marital status. Contractor further certifies that it
will not maintain any segregated facilities.
§ 19.4.2 Contractor shall, in all solicitations or advertisements for applicants for employment placed by or on behalf
of this Contract, state that it is an "equal opportunity employer" or that all qualified applicants will receive
consideration for employment without regard to their race, religious creed, color, national origin, ancestry, disability,
sex, age, medical condition or marital status.
Init.
/
®
®
(1296196457)
48
§ 19.4.3 Contractor shall, if requested to so do by the City, certify that it has not, in the performance of this Contract,
discriminated against applicants or employees because of their race, religious creed, color, national origin, ancestry,
disability, sex, age, medical condition or marital status.
§ 19.4.4 If requested to do so by the City, Contractor shall provide the City with access to copies of all of its records
pertaining or relating to its employment practices, except to the extent such records or portions of such records are
confidential or privileged under state or federal law.
§ 19.4.5 Contractor agrees to recruit Pasadena residents initially and to give them preference, if all other factors are
equal, for any new positions which result from the performance of this Contract and which are performed within the
City.
§ 19.4.6 Nothing contained in this Contract shall be construed in any manner so as to require or permit any act which
is prohibited by law.
The Contractor shall include the provisions set forth in paragraphs numbered 1 through 6 of this Section 19.4,
inclusive, in each of its subcontracts.
§19.5 [NOT USED]
§ 19.6 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if: (a) delivered in person to the individual or member of the
firm or entity for whom it was intended; (b) sent by certified mail, return receipt requested; (c) sent by a recognized
overnight mail or courier service; or (d) sent by facsimile communication followed by a hard copy and with receipt
confirmed by telephone, to the addresses set forth below (or to such other address as may be specified in writing by
such person or entity:
If to the Owner:
Steven L. Wright
Assistant City Engineer
City of Pasadena
Pasadena, CA 91109
Fax: 626-744-3724
If to the Contractor:
Notice shall be deemed effective: (a) upon delivery, if personally delivered; (b) upon telephone confirmation, if sent
by facsimile; (c) upon one (1) business day following deposit with a recognized overnight mail or courier service; or
(d) upon two (2) business days following deposit in the United States mail, postage prepaid, return receipt requested.
§ 19.7 PASADENA LIVING WAGE ORDINANCE
§ 19.7.1 This Contract is subject to the City of Pasadena’s Living Wage Ordinance, Pasadena Municipal Code
Chapter 4.11. The Ordinance requires that contractors providing labor or services to the City under contracts in excess
of $25,000:
a)
Init.
/
Pay no less than ten dollars and seventy-five cents ($10.75) per hour plus medical benefits of no less
than one dollar and eighty-five cents ($1.85) per hour, or twelve dollars and sixty cents ($12.60) per
hour without medical benefits to all employees who spend any of their time providing labor or
delivering services to the City of Pasadena. Additionally, in January 2014 and each January thereafter,
the Living Wage rate shall be adjusted by the change in the Consumer Price Index, for the Los
Angeles-Riverside-Orange County area, all urban consumers, for the most recently available 12 month
period.
®
®
(1296196457)
49
b)
Notify employees who spend any of their time providing labor or delivering services to the City of
Pasadena who make less than twelve dollars ($12) per hour of their possible right to the federal Earned
Income Tax Credit (EITC) under § 32 of the Internal Revenue Code of 1954, 26 U.S.C. § 32, and make
available to such employees forms informing them about the EITC and forms required to secure
advance EITC payments. Information concerning EITC may be obtained from the Internal Revenue
Service website: www.irs.ustreas.gov.
§ 19.7.2 The Contractor will be required to execute a Living Wage Compliance Certification and evidence
compliance with the Living Wage Ordinance by submitting payroll records as requested by the City. Each record shall
include: the full name of each employee performing labor or providing services under the contract; job classification;
rate of pay; and benefit rate.
§ 19.7.3 IMPORTANT NOTICE: Contractors with collective bargaining agreements covering those employees assigned
to Contract are exempt from the wage requirements of the Living Wage Ordinance.
§ 19.7.4 Failure to comply with the provisions of the Pasadena Living Wage Ordinance is grounds for termination of
the contract and a basis for penalties as stated in Pasadena Municipal Code Chapter 4.11. Questions concerning the
Pasadena Living Wage Ordinance should be directed to: Finance Department, Purchasing Division, 626-744-6755 –
phone, 626-744-6757 – fax.
§ 19.8 TAXPAYER PROTECTION ACT
§ 19.8.1 Under the provisions of the City of Pasadena Taxpayer Protection Amendment of 2000 ("Taxpayer
Protection Act"), the Contractor is considered a "recipient of a public benefit." The full provisions of the Taxpayer
Protection Act are set forth in Pasadena City Charter, Article XVII. Under the Taxpayer Protection Act, City public
officials who approve this Contract are prohibited from receiving gifts, campaign contributions or employment from
the Contractor for a specified time. This prohibition extends to individuals and entities which are specified and
identified in the Taxpayer Protection Act and includes Contractor and its trustees, directors, partners, corporate
officers and those with more than a 10% equity, participation, or revenue interest in the Contractor.
§ 19.8.2 Contractor understands and agrees that: (A) Contractor is aware of the Taxpayer Protection Act; B) prior to
and as a condition to award of the Contract, it will complete and return the Disclosure Regarding Taxpayer Protection
Act form attached as Exhibit D to the Agreement in order to identify all of the recipients of a public benefit specified
in the Taxpayer Protection Act; and (C) Contractor will not make any prohibited gift, campaign contribution or offer
of employment to any public official who approved this Contract.
§ 19.9 COMPLIANCE WITH IMMIGRATION REFORM AND CONTROL ACT OF 1986
The Contractor is solely and exclusively responsible for employment of individuals for the Work of the Contract in
conformity with the Immigration Reform and Control Act of 1986, 8 USC §§1101 et seq. (the "IRCA"), the Contractor
shall also require that any Subcontractor, person or entity employing labor in connection with any of the Work of the
Contract shall so similarly comply with the IRCA.
§ 19.10 WORKERS’ COMPENSATION CERTIFICATION BY CONTRACTOR
§ 19.10.1 In accordance with California Labor Code §§ 1860, 1861, and 3700, every Contractor will be required to
secure the payment of compensation to its employees. By signing below Contractor certifies that:
"I am aware of the provisions of Section 3700 of the Labor Code, which require every employer to
be insured against liability for workers’ compensation or to undertake self-insurance in accordance
with the provisions of that code, and I will comply with such provisions before commencing the
performance of the Work of this Contract."
§ 19.11 RIGHTS AND REMEDIES
§ 19.11.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder
shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by
law.
Init.
/
®
®
(1296196457)
50
§ 19.11.2 No action or failure to act by the Owner, the Architect or the Contractor shall constitute a waiver of any right
or duty afforded to any of them under the Contract, nor shall any such action or failure to act constitute an approval of
or acquiescence in any breach there under, except as may be specifically provided in the Contract Documents or may
otherwise be agreed in writing.
§ 19.12 CONTRACTOR’S LICENSE NOTICE
§ 19.12.1 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 regarding a patent act or omission is filed
within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to
structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a
contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento,
California 95826.
§ 19.13 Maintenance, Inspection and Audit of Records. The Owner and/or its authorized auditors or representatives,
shall have access to and the right to examine, audit, excerpt, transcribe, and reproduce any of the Contractor’s records
for a period of at least three (3) years after termination of the Contract and/or Final Payment. Such records include
without limitation, journals, ledgers, records of accounts payable and receivable, profit and loss statements, bank
statements, invoices, receipts, subcontracts, agreements, notes, correspondence, memoranda, and any documents
generated and received in Contractor’s performance of this Contract. Upon written notice by the Owner, Contractor
shall promptly make all such records available to Owner and/or its authorized auditors or representatives and
cooperate with the Owner and its authorized auditors or representatives in examining, auditing, excerpting,
transcribing and reproducing the records.
§19.14 WAIVERS OF SUBROGATION
Contractor and its insurance carriers waive, release, and shall not exercise any right of recovery or subrogation for any
claim, damage, or loss covered or insured by any insurance policy required under the Contract Documents, that
Contractor or its insurers may have at any time against:
1) the City of Pasadena, the City Council and each member thereof;
2) the Architect;
3) the Project Manager, if any;
4) Owner’s design consultants;
5) Owner’s Separate Contractors; and
their respective officials, employees, commission members, officers, directors, employees, volunteers, agents and
representatives.
§ 19.15 INDEPENDENT CONTRACTOR
Contractor is employed hereunder to render a service within the scope of its training and experience, and Contractor
shall be an independent contractor and not an employee of the Owner. As such, Owner shall not be called upon to
assume any liability for the direct payment of any salary to any employee or Subcontractor of Contractor, nor to pay
any benefit to any employee or Subcontractor or vendor under the Workers’ Compensation laws. None of
Contractor’s officers, agents, employees and Subcontractors, nor any of their agents, officers and employees, shall be
deemed officers, agents, employees and Subcontractors of the Owner, and the Owner shall not be liable or responsible
to them for anything whatsoever other than liability to Contractor set forth in this Contract.
§ 19.16 CONSTRUCTION FEASIBILITY AND COORDINATION
On at least a monthly basis or such other intervals identified in the Contract Documents, Contractor shall meet with the
Owner, its Separate Contractors, Architect, and Architect’s consultants to coordinate the Contract Documents,
including the design of building systems delegated to the Contractor, for the purpose of continuing construction
feasibility, identifying conflicts, missing information or gaps in the planned scope of Work and to take appropriate
action to ensure the full scope of intended Work is performed efficiently and economically.
§ 19.17 LABOR HARMONY
§ 19.17.1 General. The Parties agree and declare that Contractor and Owner are separate and independent entities
and that Contractor has full responsibility for performance of the Work and direction of the work force, subject to and
under the duty of Contractor to cooperate with Owner and its Separate Contractors. Contractor recognizes that in the
performance of its Work it may be required to work with and near Separate Contractors and representatives of Owner
Init.
/
®
®
(1296196457)
51
on the jobsite. The Contractor shall only employ or use labor in connection with the Work capable of working
harmoniously with all trades, crafts, and any other individuals associated with the Project. The Contractor shall also
use best efforts to minimize the likelihood of any strike, work stoppage, slowdowns, disputes, or other labor
disturbance. If the Work is to be performed by trade unions, the Contractor shall make all necessary arrangements to
reconcile, without delay, damage, or cost to the Owner and without recourse to the Architect or the Owner, any
conflict between the Contract Documents and any agreements or regulations of any kind at any time in force among
members or councils that regulate or distinguish the activities that shall not be included in the Work of any particular
trade.
§ 19.17.2 Picketing.
§ 19.17.2.1 Contractor agrees that should there be picketing or a threat of picketing by any labor organization at or near
the site, Contractor, in cooperation with Owner, shall establish a reserve gate system and require employees of
Contractor, Subcontractors, and suppliers to use one or more designated gates. In that event, it shall be the affirmative
obligation of Contractor, as a material consideration of this Agreement to ensure that employees of Contractor,
Subcontractors, and suppliers use only the gates or other entryways designated by Owner from time to time on the
Project.
§ 19.17.2.2 Notwithstanding the establishment or non-establishment of a reserve gate, in the event employees of
Contractor, Subcontractors or suppliers refuse to work because of any labor disputes or grievances (including any
"secondary" or "sympathy" strike or boycott directed against the Project), Contractor shall not be relieved of its
obligation to supply enough properly skilled workers to perform the Work without interruption or further delay.
§ 19.17.3
Labor Disputes. Contractor and Owner agree to cooperate fully with each other and their
representative and attorneys with respect to any labor dispute that should arise on the site, including, but not limited to
the giving of testimony and evidence to the agent or judge of the National Labor Relations Board or testimony in
connection with proceedings in state or federal court. Contractor hereby warrants that it is not now nor will Contractor
be delinquent in the payment or reporting to any labor management benefit trust.
ARTICLE 20 TERMINATION OF THE CONTRACT
§ 20.1 TERMINATION BY THE CONTRACTOR
Contractor shall have the right to terminate the Contract only upon the occurrence of one of the following:
.1
The Work stopped for ninety (90) consecutive days, though no act or fault of Contractor, any
Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to an issuance of an
order of a court or other public authority having jurisdiction or due to an act of government such as a
declaration of a national emergency making material unavailable.
.2
The Owner fails to perform any material obligation under the Contract Documents and fails to cure
such default within ninety (90) days after receipt of notice from Contractor stating the nature of such
default.
§ 20.2 TERMINATION BY THE OWNER FOR CAUSE
§ 20.2.1 The Owner shall terminate the Contractor’s performance of the Work, in whole or in part, if:
.1
Contractor fails to promptly commence the Work or unnecessarily or unreasonably delays the Work or
improperly discontinues the prosecution of the Work or abandons the Work;
(Paragraph deleted)
.2
Contractor refuses or fails to supply skilled supervisory personnel, an adequate number of properly
skilled workers, proper materials, or necessary equipment to perform the Work in strict accordance
with the Contract Documents, and the latest approved Contract Construction Schedule;
.3
Contractor fails to make prompt payment of amounts properly due Subcontractors after receiving
payment from Owner;
.4
Contractor disregards applicable laws, statutes, ordinances, codes, rules, regulations, or lawful orders
of a public authority;
.5
Contractor fails to resume performance of Work which has been suspended or stopped, within a
reasonable time after receipt of notice from Owner to do so or (if applicable) after cessation of the event
preventing performance;
Init.
/
®
®
(1296196457)
52
.6
.7
.8
.9
.10
.11
.12
Any representation or warranty made by Contractor in the Contract Documents or any certificate,
schedule, instrument, or other document delivered by Contractor pursuant to the Contract Documents
shall have been false or materially misleading when made;
After commencement of the Work Owner becomes aware that the Contractor is using an ineligible
contractor, subcontractor or supplier who was barred from performing work or providing materials or
services on Owner or City projects at the time of Bid;
Contractor fails to make payment to Subcontractors for materials or labor in accordance with the
respective Contract Documents and Applicable Law;
The Contract is assigned or the Work is sublet otherwise than as specified in the Contract Documents;
Contractor disregards Applicable Law;
Contractor otherwise is guilty of breach of a provision of the Contract Documents; or
Contractor materially fails to execute the Work in accordance with the Contract Documents or, in the
Owner’s opinion, is violating any of the terms of the Contract or is not executing the Contract in good
faith or is not following instructions of the Owner as to additional force necessary in the opinion of the
Owner for its completion within the required time.
§ 20.2.2 Owner’s Rights Upon Termination of Contract. When any of the reasons specified in the preceding Section
exist, the Owner may, in addition to and without prejudice to any other rights or remedies of the Owner, notify the
Contractor not to resume or to discontinue all Work, or any part thereof, by written notice of default. The Owner will
advise the Performance Bond Surety of the notice of default and that they will be given fifteen (15) calendar days to
arrange for completion of the Work in accordance with the Contract Documents by another contractor or contractors
satisfactory to the Owner. Should the Surety fail to effect satisfactory arrangements within said 15-day period, the
Owner shall have the right to issue a notice of termination and to:
.1
Exclude the Contractor from the Site;
.2
Take possession of the Site and of all materials, equipment, tools and construction equipment, and
machinery thereon owned by the Contractor;
.3
Suspend any further payments to Contractor;
.4
Accept assignment of subcontracts pursuant to § 11.5; and
.5
Finish the Work by whatever reasonable method the Owner may deem expedient.
§ 20.2.3 When the Owner terminates the Contractor’s performance of the Work for one of the reasons stated in Section
20.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished.
§ 20.2.4 The Owner shall charge the cost to complete the Work, including, but not limited to, protection, investigation,
labor, services, equipment, materials, permits, fees, supervisory and administrative costs to Contractor and its
Performance Bond surety. If the unpaid balance of the Contract Sum is less than all costs of finishing the Work,
including compensation for the Owner’s Representative’s and Architect’s services and expenses made necessary
thereby, and other damages incurred by the Owner and not expressly waived, the Contractor shall pay the difference to
the Owner. This obligation for payment shall survive termination of the Contract. If the unpaid balance of the Contract
Sum is greater than all costs of finishing the Work, including compensation for the Owner’s Representative’s and
Architect’s services and expenses made necessary thereby, the Contractor shall receive payment for Work properly
performed by Contractor for which payment was not made previously; any excess amounts shall be retained by
Owner.
§ 20.2.5 Erroneous Termination. If it has been adjudicated or otherwise determined that Owner has erroneously or
negligently terminated the Contractor for cause, then said termination shall automatically convert to a termination by
the Owner for convenience as set forth in Section 20.4.
§ 20.2.6 Adequate Financial Assurances. It is recognized that if Contractor is adjudged a bankrupt or makes a
general assignment for the benefit of creditors, or if a receiver is appointed for the benefit of its creditors, or if a
receiver is appointed on account of Contractor’s insolvency, this could impair or frustrate Contractor’s performance of
the Work. Accordingly, it is agreed that upon the occurrence of any such event, Owner shall be entitled to request of
Contractor, or its successor in interest, adequate assurance of future performance in accordance with the terms and
conditions hereof. Failure to comply with such request within five (5) calendar days of delivery of the request shall
entitle Owner to terminate the Contract and to the accompanying rights set forth above. Pending receipt of adequate
Init.
/
®
®
(1296196457)
53
occurrence of performance and actual performance in accordance therewith, Owner shall be entitled to proceed with
the Work with its own forces or with other contractors on a time and material or other appropriate basis, the cost of
which will be backcharged against the Contract Sum.
§ 20.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
§ 20.3.1 The Owner may at any time and from time to time, without cause, order Contractor, in writing, to suspend,
delay or interrupt the Work in whole or in part for such period of time, as the Owner may determine, with such period
of suspension to be computed from the date of delivery of the written order. Such order shall be specifically identified
as a " Suspension Order" under this Section. Upon receipt of a Suspension Order Contractor shall, at the Owner’s
expense, comply with its terms and take all reasonable steps to minimize costs allocable to the Work covered by the
Suspension Order during the period of Work stoppage.
§ 20.3.2 Suspension for Cause. Owner has the authority by written order to suspend the Work, in whole or in part, for
Contractor’s failure to:
.1
Correct conditions unsafe for the Project personnel or general public; or
.2
Carry out the Contract; or
.3
Carry out orders of Owner.
§ 20.3.3 If a Suspension Order is canceled or expires, Contractor shall continue with the Work. A Change Order or
Construction Change Directive will be issued to cover any adjustments of the Contract Sum or the Contract Time
necessarily caused by such suspension. No adjustment shall be made to the extent:
.1
that performance is, was or would have been so suspended, delayed or interrupted by another cause for
which the Contractor is responsible; or
.2
that an equitable adjustment is made or denied under another provision of this Contract.
§ 20.3.4 Responsibilities of Contractor During Suspension Periods. During periods that Work is suspended,
Contractor shall continue to be responsible for the Work and shall prevent damage or injury to the Project, provide for
drainage, and shall erect necessary temporary structures, signs or other facilities required to maintain the Project and
public safety and continue to perform according to the Contract Documents.
§ 20.4 TERMINATION BY THE OWNER FOR CONVENIENCE
§ 20.4.1 The Owner may, at any time, terminate the Contractor’s performance of the Work, in whole or in part, for the
Owner’s convenience without regard to fault or breach upon fourteen (14) calendar days written notice to
Contractor.
§ 20.4.2 In the event that Owner terminates Contractor’s performance of the Work for convenience, Contractor agrees
to waive any claims for damages, including, but not limited to, home office overhead and loss of anticipated profits on
account thereof, and as the sole right and remedy of Contractor, Owner shall pay Contractor in accordance with
Section 20.4.3 below. The provisions of the Agreement, which by their nature survive final acceptance of the Work,
shall remain in full force and effect after such termination to the extent provided in such provisions.
§ 20.4.3 Compensation. Upon termination for convenience, Contractor shall be entitled to be paid the full cost of all
Work properly done by Contractor prior to the date of termination not previously paid for, less sums already received
by Contractor on account of the portion of the Work satisfactorily performed but in no event shall the amounts paid
hereunder exceed the portion of Work completed in accordance with the Contract Documents. In no event shall
Contractor be entitled to recover any costs, overhead or profit for Work not authorized or performed prior to the
termination notice(s).
§ 20.5 CONTRACTOR’S DUTIES UPON TERMINATION
Upon receipt of written notice from the Owner of termination under Sections 20.2 or 20.4, Contractor shall, unless the
notice directs otherwise, do the following:
.1
cease operations as directed by the Owner in the notice;
.2
cooperate with the Owner to secure the Site and demobilize in a safe and orderly fashion;
.3
take actions necessary, or that the Owner may direct, for the protection and preservation of the Work;
.4
except for Work directed to be performed in the notice, incur no further costs and enter into no further
subcontracts and purchase orders;
Init.
/
®
®
(1296196457)
54
.5
.6
ARTICLE 21
if requested by Owner, assign to Owner, in the manner and to the extent directed, all of the right, title
and interest of the Contractor under the subcontracts, and the Owner shall have no liability for acts,
omissions, or causes of action resulting therefrom which accrued prior to the date of termination and
assignment, which liability shall remain with the Contractor; and
turn over to the Owner, as soon as possible, but not later than thirty (30) days after receipt of such
termination notice, the originals of all of the Contractor’s records, files, documents, drawings, and any
other items relating to the Project, whether located on the Project site, at the Contractor’s office, or
elsewhere.
CLAIMS AND DISPUTES
§ 21.1 CONTRACTOR NOTICE AND TIME LIMITS ON CLAIMS
If the Contractor wishes to make a Claim for an increase in the Contract Sum, or extension of the Contract Time, or
that Contractor’s performance is excused because of the acts or omissions of Owner, the Contractor shall give the
Owner and Architect written notice thereof within ten (10) calendar days after the occurrence of the event giving rise
to such Claim. The written notice must comply with the requirements of this Article 21 and Article 14 relating to
claims for additional time. This notice shall be given by Contractor before proceeding to execute Work affected by the
event, except in an emergency endangering life or property.
§ 21.2 CONTINUING CONTRACT PERFORMANCE
Contractor shall not delay or postpone any Work pending resolution of any Claims, disputes or disagreements, except
as the Owner and Contractor may otherwise agree in writing. Pending final resolution of a Claim, Contractor shall
proceed diligently with performance of the Contract and the Owner shall continue to make payments for undisputed
Work in accordance with the Contract Documents. In the event of disputed Work, Owner shall have the right to
unilaterally issue a written Work Directive and Contractor shall continue performance pending resolution of the
dispute and shall maintain daily records of all cost data.
§ 21.3 BACK UP DOCUMENTATION FOR ALL CLAIMS
In addition to the initial ten (10) day written notice required herein, Contractor shall submit detailed backup
documentation for its Claim within thirty (30) calendar days from Contractor’s initial written notice. Failure to
provide either this backup documentation or an explanation acceptable to the Owner for the cause of the Contractor’s
delay in submitting this documentation as herein indicated shall constitute Contractor’s waiver of any and all rights
associated with the Claim. In the case of a Claim involving a request for an extension of the Contract Time, such
documentation shall include a precedence diagrammatic-style (CPM) schedule analysis (fragnet), identifying delays
to the Work on the Critical Path, comparing the as-planned schedule for performance of the Work with the as-built
schedule.
§ 21.4 NOTICE OF THIRD PARTY CLAIMS
The Owner shall provide Contractor with prompt written notice of the receipt of any third-party claim relating to the
Contract by sending a copy of the third-party claim to Contractor at the address indicated in the Agreement.
§ 21.5 If a claim, dispute or other matter in question relates to or is the subject of a stop payment notice, the party
asserting such matter may proceed in accordance with applicable law to comply with the lien notice or filing deadlines.
§ 21.6 The provisions of this Article 21 shall apply to all Claims of any nature arising out of or related to the Work or
the performance of the Contractor related thereto, the Contractor may have against the Owner. The Contractor
acknowledges the extreme importance of promptly notifying and thoroughly documenting any Claim and further
specifically acknowledges that Owner will suffer extreme prejudice should Contractor fail in any way to comply with
this requirement. Failure to comply with the procedures contained within this Article 21 shall constitute a waiver of
such Claim. Evidence presented by Contractor that Owner had actual notice of the claim that Owner was not
prejudiced by Contractor’s failure to comply with this requirement, and/or that Owner considered Contractor’s request
despite Contractor’s failure to strictly comply with this provision shall not render this requirement unenforceable..
Init.
/
®
®
(1296196457)
55
This Agreement is entered into as of the day and year first written above and is executed in at least two (2) originals, of
which one is to be delivered to the Contractor, and the remainder to the Owner.
SIGNATURES
The Contractor hereby represents and warrants to the Owner that the Contractor has the right, power, legal capacity
and authority to enter into and perform its obligations under this Agreement, and that signature and execution of this
Agreement has been duly authorized.
OWNER
CONTRACTOR
CITY OF PASADENA, a municipal corporation
ONYX Architects, Inc., a corporation
Michael J. Beck
City Manager
Signature
ATTEST:
Printed name and title
(President/CEO/Vice President)
Mark Jomsky
City Clerk
Approved as to form and content:
Signature
Barbara R. Gadbois, Esq.
Special Counsel to Owner
(Secretary/Assistant Secretary/CFO/
Assistant Treasurer)
Approved as to form:
Michele Beal Bagneris
City Attorney
CA Contractors License No.: __________
Fed. Tax ID No.: ___________________
REVIEWED:
Larry Hammond
City Purchasing Administrator
(Table deleted)(Paragraphs deleted)
Init.
/
®
®
(1296196457)
56
Additions and Deletions Report for
®
TM
AIA Document A107 – 2007
This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has
added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the
original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text.
Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part
of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by
AIA software at 14:05:57 on 10/01/2013.
PAGE 1
AGREEMENT made as of the day of
in the year 20___
…
City of Pasadena, a municipal corporation
Pasadena, CA 91109
…
Historic Rehabilitation
La Casita del Arroyo
177 South Arroyo Boulevard
Pasadena, CA 91103
…
ONYX Architects, Inc.
316 N. Sierra Madre Blvd.
Pasadena, CA 91107
PAGE 2
The Contractor shall execute the Work described in the Contract Documents, except as specifically indicated in the
Contract Documents to be the responsibility of others.listed in Article 6 below and reasonably inferable by the
Contractor from the Contract Documents as necessary to produce the results intended by the Contract Documents.
…
§ 2.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated
below or provision is made for the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this Agreement or, if applicable, state that the date will
be fixed in a notice to proceed.)
If Owner’s issuance of a Notice to Proceed is delayed due to Contractor’s failure to return a fully-executed Agreement,
fully executed bonds, or proper documentation of insurance within fifteen (15) calendar days after the award of the
Contract and Owner’s tender of the Contract, then Contractor agrees to the deduction of one (1) calendar day from
the number of days to achieve Substantial Completion of the Work for every day of delay in Owner’s receipt of said
documents. This right is in addition to and does not affect Owner’s right to demand forfeiture of Contractor’s Bid
Security if Contractor persistently delays in providing the required documentation.
Additions and Deletions Report for AIA Document A107™ – 2007. Copyright © 1936, 1951, 1958, 1961, 1963, 1966, 1970, 1974, 1978, 1987, 1997 and 2007
®
by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties.
®
Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be
prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:05:57 on 10/01/2013 under Order
No.9591123634_1 which expires on 02/08/2014, and is not for resale.
(1296196457)
1
§ 2.2 The Contract Time shall be measured from the date of commencement. Contractor shall complete the Work in
accordance with the Contract Time established in Section 2.3.
§ 2.3 The Contractor shall achieve Substantial Completion of the entire Work not later than ( ) days from the date
of commencement, or as follows:
(Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of
commencement. If appropriate, insert requirements for earlier Substantial Completion of certain portions of the
Work.)Completion, as defined in Section 15.4 below, of the entire Work of both parks no later than one hundred
twenty (120) calendar days after the date of commencement established in City’s Notice to Proceed ("Contract
Time"). Contractor shall achieve Final Completion of the Work of both parks within the time fixed by the Owner in the
Certificate of Substantial Completion. The Contract Time may be extended only as permitted by the Contract
Documents and with the written authorization of the Owner. Time is of the essence of this Agreement. By executing
this Agreement, Contractor confirms that the Contract Time is a reasonable period for completing the Work.
§ 2.4 LIQUIDATED DAMAGES
§ 2.4.1 Owner and Contractor acknowledge and agree that if Contractor fails to achieve Substantial Completion of the
entire Work within the Contract Time as specified in Section 2.3, as such may be extended in accordance with the
Contract Documents, without any fault of the Owner, Architect, their consultants, or anyone for whom they are
responsible, Owner will suffer as a result of Contractor’s failure significant damages, which are both extremely
difficult and impracticable to ascertain. Therefore, Owner and Contractor, having reasonably endeavored, but failed,
to ascertain an amount bearing a reasonable relationship to the actual damages that Owner will incur if Contractor fails
to achieve Substantial Completion of the Work within the Contract Time established in this Agreement, agree that in
the event Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time, Contractor
shall pay to Owner as Liquidated Damages, and not as a penalty but as a reasonable estimate of the amount of damages
Owner will suffer, $500.00 per day for each day that Contractor fails to achieve Substantial Completion of the entire
Work within the Contract Time. The Parties intend for the Liquidated Delay Damages set forth herein to constitute
liquidated damages as such term is used in Government Code Section 53069.85.
Portion of Work
Substantial Completion Date
, subject to adjustments of this Contract Time as provided in the Contract Documents.§ 2.4.2 It is further mutually
understood and agreed between Owner and Contractor that Liquidated Damages may be assessed against progress
payments or retainage and that the Owner will issue a Construction Change Directive deducting the amounts specified
herein to reduce the Contract Sum, provided, however, progress payments made after the scheduled date for
Substantial Completion shall not constitute a waiver of Liquidated Damages. In the event the remaining unpaid
Contract Sum is insufficient to cover the full amount of assessed Liquidated Damages, Contractor or its surety, if any,
shall pay the difference to the Owner on demand.
(Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for
bonus payments for early completion of the Work.)
§ 2.4.3 No Release. It is further mutually understood and agreed that Owner’s assessment of Liquidated Damages is
intended to compensate Owner solely for Contractor’s failure to achieve Substantial Completion within the Contract
Time and shall not release Contractor from liability from any other breach of Contract requirements, including any
failure of the Work to conform to applicable requirements.
PAGE 3
[ X ]
Stipulated Sum, in accordance with Section 3.2 belowbelow, includes all applicable taxes, insurance
bonds, licenses, overhead and profit
…
[
]
Cost of the Work plus the Contractor’s Fee with a Guaranteed Maximum Price, in accordance with
Section 3.4 below
(Based on the selection above, complete Section 3.2, 3.3 or 3.4 below.)
®
®
(1296196457)
2
§ 3.2 The Stipulated Sum shall be _____________ ($ _________ ), subject to additions and deductions as provided
in the Contract Documents.
PAGE 4
(State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the
Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other
alternates showing the amount for each and the date when that amount expires.)
None.
…
None
…
None
…
§ 3.3 COST OF THE WORK PLUS CONTRACTOR’S FEE
§ 3.3.1 The Cost of the Work is as defined in Exhibit A, Determination of the Cost of the Work.
§ 3.3.2 The Contractor’s Fee:
(State a lump sum, percentage of Cost of the Work or other provision for determining the Contractor’s Fee and the
method of adjustment to the Fee for changes in the Work.)
§ 3.4 COST OF THE WORK PLUS CONTRACTOR’S FEE WITH A GUARANTEED MAXIMUM PRICE
§ 3.4.1 The Cost of the Work is as defined in Exhibit A, Determination of the Cost of the Work.
§ 3.4.2 The Contractor’s Fee:
(State a lump sum, percentage of Cost of the Work or other provision for determining the Contractor’s Fee and the
method of adjustment to the Fee for changes in the Work.)
§ 3.4.3 GUARANTEED MAXIMUM PRICE
§ 3.4.3.1 The sum of the Cost of the Work and the Contractor’s Fee is guaranteed by the Contractor not to exceed ($
), subject to additions and deductions by changes in the Work as provided in the Contract Documents. Such maximum
sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the
Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner.
(Insert specific provisions if the Contractor is to participate in any savings.)
§ 3.4.3.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the
Contract Documents and are hereby accepted by the Owner:
§ 3.4.3.3 Unit Prices, if any:
(Identify and state the unit price, and state the quantity limitations, if any, to which the unit price will be applicable.)
Item
Units and Limitations
Price Per Unit ($0.00)
®
®
(1296196457)
3
§ 3.4.3.4 Allowances included in the Guaranteed Maximum Price, if any:
(Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.)
Item
Allowance
§ 3.4.3.5 Assumptions, if any, on which the Guaranteed Maximum Price is based:
…
§ 4.1.1 Based upon Applications for Payment submitted to the proper Applications for Payment, including all
supporting documentation, submitted to the Owner and Architect by the Contractor and Certificates for Payment
issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as
provided below and elsewhere in the Contract Documents.
…
§ 4.1.3 Owner Review and Payment. In accordance with Section 20104.50 of the California Public Contract Code (the
text of which is included in Section 15.6 below), Contractor shall submit each Application for Payment to the
Architect on the 25th day of each month. Each Application for payment shall be reviewed by Architect and Owner, as
soon as practical after receipt for the purpose of determining that the Application for Payment is a proper payment
request, accurately reflecting the value of Work completed and submitted with the documentation required by the
Contract Documents. An Application for Payment shall be deemed "proper" only if submitted on properly completed
and signed AIA forms and accompanied by the documentation described in Section 15.1 below. Provided that an
Application for Payment is received by the Architect not later than the day of a month, the Owner shall make
payment of the certified amount Owner and Architect not later than the 25th day of a month, and the Application for
Payment is determined to be an undisputed, proper payment request, the Owner shall make payment to the Contractor
not later than the 25th day of the following month. If an Application for Payment is received by the Architect after
the date fixed above, payment shall be made by the Owner not later than ( ) days after the Architect receives Owner
and Architect after the application date fixed above, and the Application for Payment is determined to be an
undisputed, proper payment request, the Owner shall make payment to the Contractor not later than thirty ( 30 )
calendar days after the Owner and Architect receive the Application for Payment.
…
§ 4.1.4 Retainage, if any, shall be withheld as follows:
Improper Application for Payment. Any Application for Payment determined by the Architect or Owner not to be a
proper payment request suitable for payment shall be returned to the Contractor by the Owner or Architect as soon as
practicable, but not later than seven (7) calendar days after receipt by the Owner and Architect. An Application for
Payment returned to the Contractor shall be accompanied by written documentation setting forth the reasons why the
Application for Payment is not proper and not suitable for payment. If an Application for Payment is deemed to be
improper and accompanied by written documentation setting forth the reasons why the Application for Payment is not
proper and not suitable for payment, no payment will be due the Contractor until thirty (30) calendar days after
resubmission of an undisputed, proper Application for Payment, provided, however, that Owner reserves the right to
make partial payments of undisputed amounts.
§ 4.1.5 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated
below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is
located.Interest on Undisputed Amounts. If the Owner fails to make any progress payment within thirty (30) calendar
days after receipt of an undisputed and proper Application for Payment from the Contractor, the Owner shall pay
interest to the Contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the California
Code of Civil Procedure. The number of days available to the Owner to make a payment without incurring interest
®
®
(1296196457)
4
shall be reduced by the number of days by which the Architect exceeds the seven (7) day return requirement set forth
above.
(Insert rate of interest agreed upon, if any.)
% § 4.1.6 Five percent (5%) retainage shall be withheld from each progress payment.
PAGE 5
.2
the contractor has submitted a final accounting for the Cost of the Work, where payment is on the basis
of the Cost of the Work with or without a guaranteed maximum price; Contractor has satisfied the
requirements for final payment including, but not limited to, the requirements of Section 15.5 below;
and
…
§ 4.2.2 The Owner’s final payment to the Contractor shall be made no later than 30 days after the issuance of the
Architect’s final Certificate for Payment, or as follows:
Neither final payment nor the remaining retainage shall become due to the Contractor until sixty (60) calendar days
following the Owner’s acceptance of the Work and, in Owner’s discretion, recordation of a Notice of Completion and
Contractor’s submission to the Owner of the items set forth in Section 15.5 below. In the event of a dispute between
the Owner and the Contractor, the Owner may withhold from the final payment an amount not to exceed one
hundred-fifty percent (150%) of the disputed amount.
…
For any claim subject to, but not resolved by, mediation pursuant to Section 21.3, the method of binding dispute
resolution
The method of binding dispute resolution for all claims shall be as follows:
(Check the appropriate box. If the Owner and Contractor do not select a method of binding dispute resolution below,
or do not subsequently agree in writing to a binding dispute resolution method other than litigation, claims will be
resolved in a court of competent jurisdiction.)
§ 5.1.1 Government Code Claims. Notwithstanding Contractor’s participation in dispute resolution proceedings or
other claims procedures under the Contract, such proceedings are in addition to Contractor’s obligation to present a
written Government Code claim, in accordance with Section 900 et seq. of the California Government Code, which is
a prerequisite to filing a lawsuit for money or damages against Owner.
[ ]
Arbitration pursuant to Section 21.4 of this Agreement
§ 5.1.2 Arbitration of Disputes Under $25,000. Any dispute for under twenty-five thousand dollars ($25,000.00) arising
out of or relating to the negotiation, award, construction, performance, or non-performance of any aspect of the
Contract shall be settled by binding arbitration in accordance with the Construction Industry Rules of the American
Arbitration Association at Los Angeles, California, and judgment upon the award rendered by any such arbitrator may
be entered in any court having jurisdiction thereof. The Owner does not waive its right to object to the timeliness or
sufficiency of any claim filed or required to be filed against the Owner and reserves the right to conduct full discovery.
[ ]
Litigation in a court of competent jurisdiction
§ 5.1.3 Litigation. Any claim, dispute, or other matter in question arising out of or related to the Contract or Project of
or in excess of twenty-five thousand dollars ($25,000.00), that cannot be resolved between the Parties, shall be
resolved through litigation in a court of competent jurisdiction in the State of California, subject to Section 5.1.4
regarding non-binding mediation. The venue for any litigation shall be Los Angeles County.
[ ]
Other (Specify)
§ 5.1.4 Upon request of the Owner, in lieu of or prior to litigation, the Parties shall endeavor to resolve their claims by
mediation, which, unless the parties otherwise mutually agree, shall be in accordance with the Construction Industry
Mediation Rules of the American Arbitration Association currently in effect. The parties shall share the mediator’s fee
and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another
location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in
any court having jurisdiction thereof.
PAGE 6
®
®
(1296196457)
5
Section 00800
Supplementary
Conditions
…
(Either list the Specifications here or refer to an exhibit attached to this Agreement.)
Index of Specifications, Exhibit A.
…
Index of Drawings, Exhibit A.
…
§ 6.1.6 Additional documents, if any, forming part of the Contract Documents:Permits and similar Governmental
Approvals for the Work required by Applicable Law.
§ 6.1.7 Additional documents, if any, forming part of the Contract Documents:
…
(List here any additional documents that are intended to form part of the Contract Documents.)
Exhibit A –
Exhibit B –
Exhibit C –
Exhibit D –
Exhibit E –
Exhibit F –
Index of Drawings and Specifications
Contractor’s Bid Form, Preliminary Schedule of Values, and Subcontractor
Listing
Certificate(s) of Insurance and Additional Insured Endorsement(s)
Taxpayer Protection Amendment Disclosure Form
Project Milestone Schedule (see §§ 9.8.1 and 9.8.2 below)
Addenda
The following documents ("Bidding Requirements") are also Contract Documents and the checked
documents are required to be submitted at the time of bid:
Invitation to Bid
Instructions to Bidders
√
Contractor’s Bid Form
√
Bid Bond
√
Subcontractor Listing
√
Vendor List Questionnaire (Form AA-1)
√
Project Workforce Utilization Form (Form AA-2)
√
Current Permanent Workforce Utilization Form (Form AA-3, optional)
√
Contractor Qualification Statement
√
Contractor Verification
√
Specialty Contractor List of Qualifying Projects
√
Declaration of Noncollusion
√
Living Wage Compliance Certification
√
Declaration of Eligibility to Contract
√
Identity Confirmation
PAGE 7
The Contract Documents are enumerated in Article 6 and consist of this Agreement (including, if applicable,
Supplementary and other Conditions of the Contract), the permits and other Governmental Approvals required for the
®
®
(1296196457)
6
Work, this Agreement and Exhibits thereto, Conditions of the Contract, Supplementary, Special and other, if any,
Drawings, Specifications, Addenda issued prior to the execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement. all of which form the Contract, and are as
fully a part of the Contract as if attached to this Agreement or repeated herein. A Modification is (1) a written
amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a
written order for a minor change in the Work issued by the Architect. The intent of the Contract Documents is to
include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract
Documents are complementary, and what is required by one shall be as binding as if required by all; performance by
the Contractor shall be required to the extent consistent with the Contract Documents and reasonably inferable from
them as being necessary to produce the indicated results. There are explicit limits on the parties who may execute
Modifications and the cost and time impacts that may result from such Modifications as set forth in Sections 8.1 and
13.3 herein. Contractor is obligated to ensure that the requirements of Sections 8.1 and 13.3 are followed before it acts
upon any Modification.
…
The term "Work" means the construction and services required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the Project. Nothing
in the Agreement shall be interpreted as imposing on the Owner, Architect, or their respective agents, employees,
officers, directors, or consultants any duty, obligation or authority with respect to any items that are not intended to be
incorporated into the completed Project, or that do not comprise the Work including, but not limited to shoring,
scaffolding, hoists, weatherproofing, or any temporary facility or activity, because these are the sole responsibility of
Contractor.
PAGE 8
§ 7.5.1 The Architect and the Architect’s consultants shall be deemed the authors and owners of their respective
Instruments of Service, including the Drawings and Specifications, All Drawings, Specifications, sketches and other
documents, and copies thereof furnished by the Architect are and shall remain the property of the Owner. They are to
be used only with respect to this Project and are not to be used by the Contractor or any Subcontractor,
Sub-subcontractor or material or equipment supplier on any other project. Neither the Contractor nor any
Subcontractor, Sub-subcontractor or material or equipment supplier shall own or claim a copyright in any Drawings,
Specifications and other documents prepared by the Architect or the Architect’s consultants, and unless otherwise
indicated, the Owner shall be deemed the author of them and will retain all common law, statutory and other reserved
rights, including copyrights. The Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers
shall not own or claim a copyright in the Instruments of Service. Submittal in addition to copyright. With the
exception of one contract set each for the Contractor and its Subcontractors, such documents are to be returned or
suitably accounted for to the Owner at the completion of the Work. Submission or distribution to meet official
regulatory requirements or for other purposes in connection with this the Project is not to be construed as publication
in derogation of the Architect’s or Architect’s consultants’ Owner’s common law copyright or other reserved rights.
…
§ 7.7 DEFINITIONS
§ 7.7.1 "Addenda" are written or graphic instruments issued by the Owner prior to execution of the Agreement,
which modify or interpret the Bidding Documents.
§ 7.7.2 An "Admitted Surety Insurer" is a surety authorized to transact surety insurance in the State of California, as
evidenced by a valid Certificate of Authority issued by the California Department of Insurance in accordance with
California Insurance Code Section 12070 et seq.
§ 7.7.3 The term "Allowance" is a line item cost estimate established by the Owner to be carried in the Base Bid,
Contract Sum and Schedule of Values for a particular item of Work, which cannot be sufficiently defined so as to
allow the Contractor to adequately determine fair value before the Bid Deadline. Allowances include estimated
amounts established for certain construction elements that have not yet been fully designed or authorized for inclusion
in the Project or to permit deferral of selection of actual materials and equipment to a later date when additional
®
®
(1296196457)
7
information is available for evaluation. The line item cost estimate established by Owner for Work covered by an
Allowance includes the cost to the contractor of all materials, equipment, with submittal preparations as required,
labor, transportation, delivery, handling, installation, supervision, overhead, profit, licenses, permits, fees, bonds,
insurance, all sales, use, and other taxes legally chargeable, warrants and correction guarantees, and all other costs and
expenses incidental to such work. Overhead and profit shall be paid at rates established in accordance with Section
13.7.5, provided, however, no overhead or profit shall be paid for permits funded by an Allowance. Contractor is
obligated to ensure that the requirements of Section 9.7 below are followed with respect to approval of material and
prices and payment for Work covered by Allowances.
§ 7.7.4 The term "Alternate Bid Item" means an item of Work and the corresponding price entered by Bidder in the
Contractor’s Bid Form that may be added to or deducted from the Base Bid, which will be Contractor’s responsibility
only if selected by Owner. Owner reserves the right, in its sole discretion, to select any, all, or none of the Alternate
Bid Items at the time of award of the Contract regardless of whether those Alternate Bid Items were used to determine
the lowest Bid.
§ 7.7.5 The term "Applicable Law" means all state, federal, and local laws, statutes, ordinances, codes, rules, and
regulations governing the Work.
§ 7.7.5 The term "Application for Final Payment" is Contractor’s written request for Final Payment of the Contract
Sum including reconciliation of all partial payments, Claims, changes or other proper adjustments to the Contract.
§ 7.7.6 The "Base Bid" or "Base Bid Price" is the sum stated in the Bid for which the Bidder offers to perform the
Work described in the Bidding Documents as the base Contract Work.
§ 7.7.7 A "Bid" is a complete and properly executed written offer by the Bidder on Owner-provided forms to do the
Work for the prices stated, submitted in response to the Advertisement for Bids/Notice Inviting Bids.
§ 7.7.8 The term "Bidding Documents" include the Bidding Requirements and the proposed Contract Documents.
The Bidding Requirements consist of the documents identified as such in Section 6.1.6 above. The proposed Contract
Documents consist of the Bidding Requirements, the Owner/Contractor Agreement and Conditions of the Contract
(Supplementary, Special, and all exhibits), the Drawings, the Specifications, permits and Governmental Approvals,
and all Addenda issued prior to and all Modifications issued after the execution of the Owner/Contractor Agreement.
§ 7.7.9 A "Building Permit" is a written authorization required by Applicable Law before construction of the Project
can commence. A Building Permit allows construction to proceed in accordance with construction documents
approved by the Pasadena Building Department.
§ 7.7.10 The "Certificate of Substantial Completion" is the written document issued by the Architect that
establishes the date of Substantial Completion, attaches Owner’s Punch List of Work remaining to be completed or
corrected, and fixes the time within which the Contractor shall finish all items on the Owner’s Punch List
accompanying the certificate and otherwise achieve Final Completion of the Work.
§ 7.7.11 "Construction Permits" are permits required for the proper execution and completion of the Work, which
are customarily secured after execution of the Contract including, but not limited to, permits relating to trenching,
excavation, street work, mechanical, electrical, plumbing and elevators.
§ 7.7.12 The term "Critical Path" means the sequence of activities yielding the longest path in a CPM Schedule that
has a Float value of zero indicating that any delay in any one activity along this path will delay the completion of the
overall Work.
§ 7.7.13 The term "Critical Path Method (CPM) Schedule" means a schedule network of all Work to be performed
that has been defined and organized by activities. All activities are defined by interrelationships, resources and
durations.
§ 7.7.14 "Final Completion" is the stage of performance of the Work when:
®
®
(1296196457)
8
.1
.2
.3
.4
.5
All Work required by the Contract Documents has been fully completed in compliance with the
Contract Documents and all Applicable Laws including, but not limited to, correction or completion of
all punch list items noted upon Substantial Completion;
Contractor has delivered to Owner an Application for Final Payment, Affidavit of Final Completion,
and all closeout documentation required by the Contract Documents including, but not limited to, the
closeout documentation required by Article 15 below;
The Work passes the Architect’s final inspection and the Architect issues a final Certificate for
Payment;
Final inspection and approval by all applicable governmental agencies has occurred and a final
Certificate of Occupancy has been issued by the City of Pasadena covering the entire Project site
without exception or condition; and
The Owner determines the Work is complete and, in its discretion, records a Notice of Completion.
§ 7.7.15 The term "Float" is the amount of time that any activity or path of activities may be delayed without
impacting the date for Substantial Completion of the Work.
§ 7.7.16 A "Governmental Approval" is any approval, authorization, inspection, certification, consent, exemption,
filing, permit, registration, plan check, ruling or similar authorization required by any federal, state or local law,
regulation or procedures necessary for Contractor to perform the Work.
§ 7.7.16 The term "Milestone" means a deadline for completion of a portion of the Work established in the
Agreement.
§ 7.7.17 A "Notice to Proceed" is a written document issued by the Owner establishing the date of commencement
of the Contract Time. The Contract Time for Contractor’s performance of the Work is measured in calendar days from
the date of commencement established in the Notice to Proceed. See Agreement, § 2.1.
§ 7.7.18 The term "Party(ies)" means the Owner and/or Contractor.
§ 7.7.19 The "Project" is the total construction of which the Work performed under the Contract Documents may be
the whole or a part and which may include construction by other contractors and by the Owner’s own forces, including
persons or entities under separate contracts not administered by the Architect.
§ 7.7.20 The Project Manual is a volume assembled for the Work that includes, without limitation, the Bidding
Documents, Agreement and exhibits, Conditions of the Contract (Supplementary and Special, if any), and
Specifications.
§ 7.7.21 The "Punch List" is the list of Work remaining to be completed after Contractor achieves Substantial
Completion of the Work and is limited to minor incidental items of Work, necessary to correct imperfections, which
have no effect on the safety, function or operability of the Work.
§ 7.7.22 The term "Separate Contractors" means contractors performing portions of the Project under separate
contracts with the Owner.
§ 7.7.23 The terms "Site" and "Project Site" mean both parks where the Work shall be performed.
§ 7.7.24 A "Sub-bidder" is a person or entity who submits a bid to a Bidder for materials, equipment or labor for a
portion of the Work.
§ 7.7.25 The Owner may issue a "Unilateral Change Order" to adjust the Contract Sum and Contract Time if the
Owner and Contractor cannot agree and Contractor may pursue a claim for all remaining disputes.
§ 7.7.26 A "Unit Price" is an amount agreed to by the Parties as a price per unit of measurement for payment for
materials, equipment or services including supervision, overhead and profit for a portion of the Work.
®
®
(1296196457)
9
§ 7.7.27 A "Work Directive" is a unilateral written order issued by Owner directing Contractor to continue
performance of the Work or a disputed item of Work pending resolution of a Claim or dispute concerning the scope of
the Work.
§ 7.8 PUBLICITY
§ 7.8.1 The Contractor, its agents, employees, Subcontractors and suppliers shall not engage in any communication or
correspondence with persons not directly involved in the construction of the Project, concerning any aspect of the
construction of the Project, without the express written consent of Owner. All communications to the media, or in
response to inquiries made by private citizens, shall be issued solely through the Owner.
§ 7.9 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 7.9.1 Complementary Documents. The intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and
what is required by one shall be as binding as if required by all. All Work mentioned or indicated in the Contract
Documents, and all Work reasonably inferable from them, shall be performed by the Contractor as part of the Contract
unless it is specifically indicated in the Contract Documents that such work is to be performed by others.
§ 7.9.2 Order of Precedence. In the event of conflict between any of the Contract Documents, the provision placing a
more stringent requirement on the Contractor shall prevail. The Contractor shall provide the better quality or greater
quantity of Work and/or materials unless otherwise directed by Owner in writing. In the event none of the Contract
Documents place a more stringent requirement or greater burden on the Contractor, the controlling provision shall be
that which is found in the document with higher precedence. In the event of conflicts or discrepancies among the
Contract Documents, interpretations will be based on the following order of precedence, with "(1)" being the highest:
(1)
Permits and other Governmental Approvals;
(2)
Modifications, issued after execution of the Agreement;
(3)
The Owner-Contractor Agreement, including all exhibits, attachments, and Addenda issued prior to
execution of the Contract with later Addenda having priority over earlier Addenda;
(4)
Supplementary Conditions, if any;
(5)
Drawings & Specifications (Drawings govern Specifications for quantity and location, and
Specifications govern Drawings for quality and performance. In the event of ambiguity in quantity
or quality, the greater quantity and higher quality shall govern, the more stringent will take
precedence over the less stringent); and
(6)
Bidding Requirements.
§ 7.10.2 Should it appear that the Work to be done or any of the matters relative thereto are not sufficiently detailed or
explained in the Contract Documents, the Contractor shall apply to the Architect in writing (submit a request for
information ("RFI")) for such further written explanations as may be necessary. Any adjustments to the Work made
by Contractor without first obtaining written clarification from the Architect shall be at Contractor’s risk and expense
and shall be subject to removal if required by the Architect or Owner.
§ 7.11 Severability. In the event any article, section, sub-article, Paragraph, Subparagraph, sentence, clause or phrase
contained in the Contract Documents shall be deemed, determined, declared, or adjudged invalid, illegal,
unconstitutional, void, or otherwise unenforceable, such provision shall be deemed to be severed and deleted from the
Contract Documents and all remaining provisions shall continue in full force and effect.
§ 7.12 Provisions Deemed Inserted. Each and every provision of Applicable Law and clause required to be inserted in
the Contract Documents shall be deemed to be inserted herein and the Contract Documents shall be read and enforced
as though such provision or clause is included herein, and if through mistake, or otherwise, any such provision is not
inserted or not correctly inserted, then upon application of either party, the Contract Documents shall forthwith be
physically amended to make such insertion or correction.
§ 7.13 Neutral Interpretation. In the event of any ambiguity in, or dispute concerning the interpretation of, any
provision of the Contract, the Contract shall not be construed against or in favor of either party but shall be construed
in a neutral manner.
§ 7.14 Governing Law. The validity, interpretation, and performance of this contract shall be controlled by and
construed under the laws of the State of California. The venue for any litigation shall be Los Angeles County.
®
®
(1296196457)
10
PAGE 11
§ 8.1.1 The Owner shall furnish all necessary surveys and a legal description of the site."Owner" is the City of
Pasadena, California or its legally authorized representatives. The term "City" also means "Owner." The Owner’s
Representative is Steven L. Wright, Assistant City Engineer, City of Pasadena, Department of Public Works, 100 N.
Garfield Avenue, Third Floor, Pasadena, CA 91101. Owner’s Representative shall serve as a single point for
transmission of Owner’s instructions and approvals, receipt of information required to be provided by Contractor and
all correspondence. Owner’s Representative shall interpret and define Owner’s policies, render decisions with respect
to Contractor’s performance of the Work, approve Contractor applications for payment, review and approve
Contractor schedules and submittals, review and approve Change Orders, review all quantity calculations related to
pay quantities, review and approve changes in the Contract Time, concur in any defective work notification, review
and certify Substantial Completion of the Work, review and approve Contractor’s Application for Final Payment. The
extent and limits of the authority of any designee of the Owner’s Representative shall be set forth in writing.
Contractor shall be entitled to rely on the decisions and information provided by such written designee subject to the
limitations of authority set forth in writing. Authority to execute Contract Modifications, including Change Orders,
rests solely with Owner’s Representative, subject to the limits described in Article 13 below.
§ 8.1.2 The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall
exercise proper precautions relating to the safe performance of the Work.Existing Utilities. In accordance with
California Government Code § 4215, Owner shall assume the responsibility for the timely removal, relocation, or
protection of existing main or trunkline utility facilities located on the Project Site, if such utilities are not identified in
the Contract Documents with reasonable accuracy. Contractor shall be compensated 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 Contract Documents with reasonable accuracy, and for equipment on the Project Site
necessarily idled during such work. Nothing in Government Code § 4215 shall be deemed to require Owner to indicate
the presence of existing service laterals or appurtenances whenever the presence of such utilities on the Project Site
can be inferred from the presence of other visible facilities, such as buildings, meters and junction boxes, on or
adjacent to the Project Site, provided, however, nothing in Government Code § 4215 shall relieve Owner from
identifying main or trunklines in the Contract Documents. If the Contractor encounters utility facilities not identified
by the Owner in the Contract Documents, the Contractor shall immediately notify, in writing, the Owner and the
utility. In the event that such utility facilities are owned by Owner, Owner shall have the sole discretion to perform
repairs or relocation work at a price determined in accordance with Article 13 herein.
§ 8.1.3 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents,
including those required under Section 9.6.1, the Owner shall secure and pay for other necessary approvals,
easements, assessments and charges required for the construction, use or occupancy of permanent structures or for
permanent changes in existing facilities.Surveys and Reference Documents. The Owner will make available to
Contractor, all surveys and reference documents in Owner’s possession relied upon in the Contract Documents to
describe the physical characteristics and legal limitations of the Site.
§ 8.1.4 Initial Decision Maker. The Owner will interpret and decide matters concerning performance under, and
requirements of, the Contract Documents on written request of Contractor or when Owner deems it necessary. The
Owner will make initial decisions on all claims, disputes and other matters in question between the Owner and
Contractor. Delay shall not be recognized on account of failure by the Owner to furnish such interpretations until 15
days after written request is made for them.
PAGE 12
If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents,
Documents as required by Article 18, or repeatedly fails to carry out the Work in accordance with the Contract
Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the
cause for such order is eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the
part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The Owner’s
right to stop the Work is in addition to and without prejudice to any other rights or remedies of the Owner.
®
®
(1296196457)
11
…
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, and fails
within a ten-day period after receipt of written notice from the Owner to commence and continue correction of such
default or neglect with diligence and promptness, the Owner, without prejudice to any other remedy the Owner may
have, may correct such deficiencies and may deduct the reasonable cost thereof, including Owner’s expenses and
compensation for the Architect’s services made necessary thereby, from the payment then or thereafter due the
Contractor.§ 8.3.1 Notwithstanding other remedies available to the Owner, if the Contractor defaults or neglects to
carry out the Work in accordance with the Contract Documents and fails within a forty-eight (48) hour period after
receipt of written notice from the Owner to commence and correct such default or neglect with diligence and
promptness, the Owner, at its sole option and without obligation, may, with their own or outside forces, correct such
deficiencies. In such case, an appropriate Change Order or Construction Change Directive shall be issued deducting
from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation
for the Owner’s project management staff’s, the Architect’s, and their respective consultants’ additional services and
expenses made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not
sufficient to cover such amounts, the Contractor shall pay the difference to the Owner immediately. This remedy is
cumulative. The Owner may terminate the Contractor’s performance pursuant to the terms of the Contract. The
Owner also has the right, but not the obligation, to self-perform or have other companies perform portions of the Work
previously assigned to Contractor. In such case an appropriate Change Order or Construction Change Directive shall
be issued deducting from payments then or thereafter due the Contractor the cost of performing such work efforts.
§ 8.4 OWNER’S RIGHT TO ORDER EXTRAORDINARY MEASURES
§ 8.4.1 Non-Compensable Extraordinary Measures. In the event the Owner determines that the performance of the
Work, or any portion thereof, has not progressed or reached the level of completion required by the Contract
Documents due to causes within the control of Contractor, the Owner shall have the right to order the Contractor to
take corrective measures necessary to expedite the progress of construction, including, without limitation, (1) working
additional shifts or overtime, (2) supplying additional manpower, equipment, and facilities and (3) submitting a
recovery schedule for re-sequencing performance of the Work or other similar measures (hereinafter referred to
collectively as Extraordinary Measures). Such Extraordinary Measures shall continue until the progress of the Work
complies with the stage of completion as required by the Contract Documents. The Contractor shall not be entitled to
an adjustment in the Contract Sum in connection with the Extraordinary Measures required by the Owner under or
pursuant to this Section. The Owner may exercise the rights furnished the Owner under or pursuant to this Section as
frequently as the Owner deems necessary to ensure that the Contractor’s performance of the Work will comply with
the Contract Time, or interim completion date set forth in the Contract Documents. If Contractor or its Subcontractors
fail to commence Extraordinary Measures within forty-eight (48) hours of Owner’s written demand, Owner may,
without prejudice to other remedies, take corrective action at the expense of Contractor.
§ 8.4.2 Compensable Extraordinary Measures. Owner, in its discretion, may issue a written request, to the Contractor
requesting Contractor to submit an itemized proposal for Extraordinary Measures in order to achieve early completion
of all or a portion of the Work, due to no fault of the Contractor, in a form acceptable to Owner within ten (10)
calendar days after Owner’s issuance of the request. Contractor’s proposal shall be limited to direct labor cost
(itemized hours and rates) and overhead and profit on the labor costs.
§ 8.5 OWNER’S RIGHT TO AWARD SEPARATE CONTRACTS
§ 8.5.1 The Owner reserves the right to award other contracts in connection with other portions of the Project under the
Contract Documents.
§ 8.6 PROHIBITED INTERESTS
No official of Owner who is authorized in such capacity and on behalf of Owner 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 the 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 Owner who is authorized in such capacity and on behalf of Owner 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 in any part thereof. Contractor shall receive no
compensation and shall repay Owner for any compensation received by Contractor hereunder, should Contractor aid,
abet or knowingly participate in violation of this Article.
®
®
(1296196457)
12
PAGE 13
§ 9.1.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become
generally familiar with local conditions under which the Work is to be performed and correlated personal observations
with requirements of the Contract Documents.
§ 9.1.2 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the
Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the
information furnished by the Owner pursuant to Section 8.1.1, shall take field measurements of any existing
conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations
are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of
discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly
report to the Architect any errors, inconsistencies, or omissions discovered by or made known to the Contractor as a
request for information in such form as the Architect may require. It is recognized that the Contractor’s review is made
in the Contractor’s capacity as a contractor and not as a licensed design professional unless otherwise specifically
provided in the Contract Documents.By submitting a Bid and signing the Agreement, Contractor represents: (1) that it
has visited the Project sites, familiarized itself with the local conditions under which the Work is to be performed
including, without limitation, the conditions contained in any test results and/or reports provided by Owner or
performed by Contractor, and the conditions reflected on any site surveys provided to or performed by the Contractor;
(2) that it is fully experienced, qualified and competent to perform the services set forth in the Contract Documents and
understands that Owner is relying upon said experience, qualifications, and competence; (3) that it is properly
equipped, organized and financed to perform the Work; (4) that it is properly permitted and licensed by the State of
California and all other governmental entities to perform the Work required by the Contract and that it will retain only
properly licensed Subcontractors to perform the Work of the Contract; (5) that it has familiarized itself with all
conditions bearing upon transportation, disposal, handling and storage of materials; (6) that it has familiarized itself
with the availability of labor, water, electric power, and roads; (7) that it has familiarized itself with uncertainties of
weather, or similar physical conditions at the Project sites; (8) that it has familiarized itself with the character of
equipment and facilities needed preliminary to and during performance of the Work; (9) that it has familiarized itself
with the staging and material storage constraints of the Project sites and surrounding buildings and will confine its
staging and storage operations to approved areas; (10) that it shall maintain the immediate surrounding areas in a clean
and safe manner at all times; (11) that it will coordinate its construction activities with other contractors performing
work on the Project sites; (12) that it will adhere to the assigned transit route identified by the Owner; and (13) that it
will adhere to and be bound by any conditions imposed by the commissions of the Owner and any regulatory agency or
governmental entity with jurisdiction over the Project.
statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but Field Measurements. Since
the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully
study and compare the various Contract Documents relative to that portion of the Work, as well as the information
furnished by the Owner pursuant to Section 8.1, shall take field measurements of any existing conditions related to
that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose
of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors,
omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the
Architect any nonconformity Owner and Architect any errors, inconsistencies, or omissions discovered by or made
known to the Contractor as a request for information Request for Information ("RFI"), submitted to the Architect in
such form as the Architect may require. It is recognized that the Contractor’s review is made in the Contractor’s
capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the
Contract Documents. The accuracy of grades, elevations, dimensions or locations of existing conditions are not
guaranteed by Owner or Architect, and Contractor is responsible for verifying same. In all cases of interconnection of
its Work with existing or other work, Contractor shall verify at the site all dimensions relating to such existing or other
work. Any error due to Contractor’s failure to so verify all such grades, elevations, dimensions, or locations shall be
promptly rectified by Contractor without any additional cost to Owner.
statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall
promptly report to the Owner and Architect any nonconformity including, but not limited to, any design errors or
®
®
(1296196457)
13
omissions discovered by or made known to the Contractor as a request for information in such form as the Architect
may require.
§ 9.1.5 Should any words or numbers that are necessary to a clear understanding of the Work be illegible or omitted,
or should an error or discrepancy occur in any of the Contract Documents, the Contractor shall immediately notify the
Owner and Architect in writing of such omission, error or discrepancy, and the Contractor shall not proceed with that
portion of the Work until clarification is received from the Architect. In the event the Contractor proceeds without so
notifying the Owner and Architect, the Contractor shall be responsible for the cost of correcting same, including any
resulting damage.
PAGE 14
§ 9.2.1 Contractor’s Means and Methods. The Contractor shall supervise and direct the Work, using the Contractor’s
best skill and attention. The Contractor shall be solely responsible for and have control over construction means,
methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract,
unless the Contract Documents give other specific instructions concerning these matters.
§ 9.2.2 Contractor’s Vicarious Liability for Employees and Subcontractors. The Contractor shall be responsible to the
Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and
other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its
Subcontractors. Subcontractors, and from any damages, losses, costs and expenses resulting from such acts or
omissions.
§ 9.2.3 Coordination of Third-Party Inspections. The Contractor shall be responsible for and coordinate inspections
required by governmental authorities having jurisdiction and/or oversight over the Work. Failure to obtain permits,
licenses or other approvals because of the failure of the Contractor to conform to this requirement shall not extend the
Contract Time, and the Contractor shall not be entitled to an increase in the Contract Sum therefore. The Contractor is
to request inspection services in diligent manner so as not to burden the Owner with unnecessary inspection costs.
§ 9.2.4 Inspection of Material Deliveries. The Contractor shall inspect all materials and equipment delivered to the
Project Site and shall reject any materials or equipment that will not conform to the Contract Documents when
properly installed.
§ 9.2.5 Contractor’s Designated Representative. The Contractor, prior to award of the Contract and prior to any
substituting, shall furnish in writing to the Owner the name and qualifications of a proposed Designated
Representative (superintendent or project manager) consistent with the requirements set forth in Paragraph 23.1.5 of
the Instructions to Bidders. The Owner will reply to the Contractor in writing stating whether the Owner has
reasonable objection to the proposed representative. The Contractor’s Designated Representative shall be in
attendance at the Project Site during performance of the Work. Contractor’s Designated Representative shall be an
employee of Contractor. Contractor’s Designated Representative shall have full authority to represent and to act for
the Contractor. A facsimile of the Designated Representative’s signature shall be submitted to the Owner. The
Contractor’s Designated Representative, acceptable to the Owner, shall:
.1
.2
.3
.4
.5
.6
.7
.8
Be present at the Project 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 Project Site including completion of the
Punch List;
Attend all job meetings;
Maintain oversight of the Project at all times;
Have full authority to represent and act on behalf of the Contractor for all purposes under the
Agreement;
Supervise and direct the Work using his or her best skill and attention;
Be responsible for the means, methods, techniques, sequences and procedures used for the Work;
Adequately coordinate all portions of the Work; and
Act as principal contact with the Owner and Separate Contractors, consultants, engineers and
inspectors on the Project.
®
®
(1296196457)
14
§ 9.2.5.1 The Contractor shall not employ a proposed Designated Representative to whom the Owner or Architect has
made reasonable an objection. The Contractor shall not change the Designated Representative without the Owner’s
prior written consent.
§ 9.2.5.2 The Contractor shall notify the Owner and Architect, in writing, when the Contractor desires to change its
Designated Representative and shall provide the name, qualifications and experience of the proposed replacement.
The new Designated Representative cannot serve on the Project until approved by the Owner. The Owner shall have
the right, at any time, to direct a change in the Contractor’s Designated Representative if performance is
unsatisfactory, as determined by the Owner, in its sole discretion.
PAGE 15
§ 9.3.2 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other
persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not skilled in
tasks assigned to them. None but skilled workmen shall be employed on any portion of the Work. When required in
writing by the Owner, the Contractor or any Subcontractor shall discharge any person who is, in the reasonable
opinion of the Owner, incompetent, unfaithful, disorderly or otherwise unsatisfactory, and shall not again employ such
discharged person on the Work except with the consent of the Owner. Such discharge shall not be the basis of any
claim for compensation or damages against the Owner or any of its officers or agents.
§ 9.3.3 The Contractor may make a substitution only with the consent of the Owner, after evaluation by the Architect
and in accordance with a Modification.Or Equal Substitution of Materials, Processes or Equipment.
§ 9.3.3.1 Whenever any particular material, process or equipment is indicated in the Contract Documents by patent,
proprietary or brand name, or by name of manufacturer, such wording is used for the purpose of facilitating its
description and shall be deemed to be followed by the words "or equal" unless the Invitation to Bid sets forth a finding
that substitutions of equivalents are not permitted for such material, product or equipment. Only such specified items
shall be provided unless Owner’s prior written acceptance is obtained for the "Or Equal Substitution" of the equivalent
item. A listing of materials is not intended to be comprehensive or in order of preference. The burden of proving the
quality of any material, process, or equipment proposed for substitution shall rest with the Contractor.
§ 9.3.3.2 The Contractor may supply any of the materials specified in the Contract Documents or propose substitution
of an equivalent within the time specified in Section 9.3.3.4 below. If any request for an Or Equal Substitution offered
by the Contractor is not found to be equivalent or cannot be delivered to the Site in compliance with the Project
Schedule, the Contractor shall furnish and install the material specified in the Contract Documents.
§ 9.3.3.3 Requests for Or Equal Substitutions and value engineering recommendations shall be submitted to the
Owner and Architect using the Owner’s approved form included in the Bidding Documents. Unless otherwise
approved in writing by Owner, no substitution will be considered or allowed without Contractor’s delivery of the
following to Owner:
.1
.2
.3
.4
.5
.6
.7
.8
A full explanation of the proposed substitution and submittal of all supporting data including technical
information, complete manufacturers catalogs, brochures, drawings, samples, warranties, certified
copies of test results, installation instructions, operating procedures, and other descriptive information
to substantiate Contractor’s claim of equivalent quality and necessary for a complete evaluation of the
Or Equal Substitution request;
A complete description of the difference between the requirements of the Contract Documents and the
proposed Or Equal Substitution, the comparative advantages and disadvantages of each, and the
reasons the substitution is advantageous and necessary, including the benefits to the Owner and the
Work in the event the substitution is acceptable;
A description of aspects of the Contract Documents affected by the Or Equal Substitution;
The proposed reduction in the Contract Sum in the event the substitution is acceptable;
The reduction, if any, in the Contract Time and impact to the Construction Schedule;
The estimated cost of any engineering, design, or agency fees required for Work of all trades directly or
indirectly affected by the substitution;
A list of projects, to the extent known, where the subject of the request was used and the results;
Other information reasonably necessary to fully evaluate the proposal request; and
®
®
(1296196457)
15
.9
The date by which the Owner must accept the proposal in order for Contractor’s time and cost estimates
to remain valid.
§ 9.3.3.4 No substitutes shall be made until approved, in writing, by Architect and Owner. The burden of proof of the
quality of any material, process, or article shall rest exclusively with the Contractor. In the event Contractor furnishes
a material, process or article more expensive than that specified, the difference in cost shall be borne entirely by
Contractor. Any engineering, design fees or agency fees required to make adjustments in material or Work of all
trades directly or indirectly affected by the approved substituted item shall be borne entirely by Contractor.
§ 9.3.3.5 Contractor shall submit all requests for Or Equal Substitutions, together with substantiating data, a minimum
of seven (7) calendar days prior to the Bid Deadline unless otherwise indicated in the Instructions to Bidders.
Following bid opening and award of Contract, Or Equal Substitution requests will only be made within twenty-five
(25) calendar days after Owner issues Notice to Proceed and when one or more of the following conditions are met
and documented by Contractor:
.1
.2
.3
.4
.5
.6
Specified item fails to comply with regulatory requirements; or
Specified item has been discontinued by the manufacturer; or
Specified item, through no fault of the Contractor, is unavailable in the time frame required to meet the
Project Schedule; or
Specified item, through subsequent information disclosure, will not perform properly or fit in
designated space;
Manufacturer declares specified product to be unsuitable for intended use or refuses to warrant
installation of product; or
Post-award value engineering proposals requested by Owner.
§ 9.3.3.6 The Owner has reviewed the technical and aesthetic qualities of materials and equipment specified, and in no
case will the Owner accept a substitution of a product with a lower cost which does not extend credit to the Owner.
§ 9.3.3.7 By submitting an Or Equal Substitution request or value engineering proposal, Contractor shall be deemed to
certify that: (i) the proposed substitution is equal to or exceeds all requirements of the pertinent Contract Documents
as reasonably determined by Contractor; (ii) Contractor accepts the warranty and correction obligations in connection
with the proposed substitution as if originally specified; (iii) the cost data presented is complete and includes all
related costs under Contract, including an estimate of the Architect’s redesign costs; (iv) Contractor will coordinate
the installation of the accepted substitute, making such changes as may be required for the Work to be complete in all
respects; (v) Contractor waives all Claims for additional costs related to the substitution which subsequently become
apparent; and (vi) Contractor accepts all responsibility for direct or indirect costs and/or time impacts as result of the
substitution including impacts to Work not identified in the proposal.
§ 9.3.3.8 Failure of the Contractor to submit proposed Or Equal Substitutions for approval in the manner described
may be deemed sufficient cause for disapproval by the Owner and/or the Architect of any substitution otherwise
proposed.
PAGE 17
The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be
of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants
that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for
those inherent in the quality of the Work the Contract Documents require or permit. Work, materials, or equipment not
conforming to these requirements may Work not conforming to these requirements, including Or Equal Substitutions
not properly approved and authorized, shall be considered defective. The Contractor’s warranty excludes remedy for
damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient
maintenance, improper operation or normal wear and tear under normal usage. If required by the Owner or Architect,
the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty
is not limited to the provisions of Article 18. Contractor’s Performance Bond Surety shall be liable for breaches of
these warranties and the correction guarantees described in Article 18. The provisions of this Section 9.4 shall survive
Contractor’s completion of the Work or termination of the Contractor’s performance of the Work.
®
®
(1296196457)
16
…
The Contractor shall pay sales, consumer, use and other similar taxes that are legally enacted when bids are received or
negotiations concluded, whether or not yet effective or merely scheduled to go into effect.§ 9.5.1 The Contractor shall
pay sales, consumer, use and other similar taxes for the Work or portions thereof provided by the Contractor that are
legally enacted when bids are received, whether or not yet effective or merely scheduled to go into effect.
…
§ 9.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building
permit as well as other permits, fees, licenses and inspections by government agencies necessary for Contractor and its
Subcontractors shall identify and obtain the Building Permit, all Construction Permits, certificates, licenses, fees,
approvals, and inspections necessary or required for the proper execution and completion of the Work that are
customarily secured after execution of the Contract and legally required at the time bids are received or negotiations
concluded.Work. Contractor must apply for permits for on-street and off-street parking (Pasadena Department of
Transportation) and lane closures (Pasadena Public Works Permit Counter); for the Memorial Park portion of the
Project, the City will provide 8 off-street parking spaces for a maximum of 4 months. The Owner will pay fees
associated with the Building Permit and all Construction Permits, including the aforementioned parking and lane
closure permits ("Permit Fees") directly to the entity issuing the permits, outside the Contract Sum. The Base Bid
Price/Contract Sum shall exclude the cost of all Permit Fees and shall include the cost of administration and
coordination for all Governmental Approvals. Contractor shall pay for all re-inspection fees incurred due to poor
workmanship, code violations, or Work that does not conform to the Contract Documents. Documentation of final
approval by the issuing entity for all permits and inspections shall be delivered to the Architect before Contractor
submits an Affidavit of Final Completion.
§ 9.6.2 Notices. The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances,
codes, rules and regulations, Applicable Laws and lawful orders of public authorities applicable to performance of the
Work. If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules
and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such
Work and shall bear the costs attributable to correction.
§ 9.6.3 Copies of permits, licenses and certificates shall be delivered to the Owner and Architect as soon as they are
obtained. As part of the request for final payment, the Contractor shall deliver the originals of such permits, licenses
and certificates to the Architect.
…
The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. The Owner shall
select materials and equipment under allowances with reasonable promptness. Allowance amounts shall include the
costs to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade
discounts. Allowance amounts shall not include the Contractor’s costs for unloading and handling at the site, labor,
installation, overhead, and profit.
§ 9.7.1 Contract Sum and Expenditures. Contractor shall include in the Schedule of Values a line item for the costs
covered by an Allowance, as that term is defined in Section 7.7.3 above. Contractor must obtain Owner’s prior
written approval before ordering labor, materials, or equipment covered by an Allowance. Contractor shall notify
Owner of pricing information for labor, materials, equipment, and services covered by Allowances in sufficient time
to avoid delay to the Work. Contractor must obtain Owner’s further written approval to incur costs for Work items
covered by Allowances in excess of: 1) the prices previously approved by Owner; or 2) the line item estimated cost
established by the Owner in the Bidding Documents.
§ 9.7.2 Calculation.
§ 9.7.2.1 The line item cost estimate established by Owner for Work covered by an Allowance includes the cost to the
Contractor of all labor, materials, equipment, supervision, overhead, profit, licenses, permits, fees, bonds, insurance,
all taxes legally chargeable, warranties and correction guarantees, and all other costs and expenses incidental to such
Work. Overhead and profit shall be paid at rates established in accordance with Section 13.3.4.4, provided, however,
no overhead or profit shall be paid for permits funded by an Allowance.
®
®
(1296196457)
17
§ 9.7.3 Contractor shall not proceed with Work covered by an Allowance until material and equipment data and costs
associated with such Work items have been submitted to the Owner’s Representative for review and the Contractor
has received written notification to proceed with Work item covered by the Allowance. The costs submitted by the
Contractor to the Owner’s Representative shall, at a minimum include product data and detailed costs of material,
equipment and labor to complete such Work, itemized by costs incurred by Contractor and each Subcontractor
associated with the performance of such Work.
§ 9.7.4 All expenditures for Allowance Work shall be separately itemized in each Application for Payment.
§ 9.7.5 To the extent that the cost of Work items covered by an Allowance is less than the Allowance cost estimate
established by Owner in the Bidding Documents, the Contract Sum shall be reduced by Change Order or Construction
Change Directive and, in a similar fashion, to the extent the Allowance cost estimate is exceeded, the Contract Sum
shall be increased by Change Order or Unilateral Change Order. If Work covered by an Allowance is not performed or
Owner deletes such items from the scope of Work, the Contract Sum shall be reduced by Change Order or Unilateral
Change Order.
PAGE 18
§ 9.8.1 The Contractor, promptly after being awarded the Contract, Order of the Work. Contractor shall prepare and
submit, concurrently with submission to Owner of the signed Agreement, a Project Milestone Schedule, which, upon
approval by the Owner and Architect, shall be deemed part of the Contract Documents and attached to the Agreement
as Exhibit E. Within thirty (30) calendar days after the Owner issues a Notice to Proceed, the Contractor shall
prepare and submit for the Owner’s and Architect’s information a Contractor’s construction schedule for the Work.
The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate
intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent
required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work.and
approval, a Construction Schedule for the Work, which shows each constituent operation, quantity, rate, and period
required to accomplish the Work, utilizing critical path method (CPM) techniques in accordance with the requirements
of the Specifications and consistent with the Substantial Completion date indicated in the Contract Documents.
Unless otherwise indicated in the Contract Documents, prior to the commencement of the Work, the Contractor shall
also submit the following information, in duplicate, to the Owner for review: (1) the proposed method or procedure,
which enumerates the methods and equipment to be employed during each phase of the Work; and (2) a plan, which
indicates the storage and working areas desired to accomplish the construction.
§ 9.8.2 The Contractor shall perform the Work in general accordance with the most recent schedule submitted to the
Owner and Architect. Construction Schedule. The Construction Schedule shall: (i) not exceed the Contract Time
established in the Contract Documents; (ii) be updated at monthly intervals to show actual progress; (iii) be related to
the entire Project; and (iv) provide for expeditious execution of the Work. Upon review and acceptance by the Owner,
the "Construction Schedule" shall be deemed part of the Contract Documents. If not accepted, the Construction
Schedule shall be promptly revised by the Contractor in accordance with the recommendations of the Owner and
re-submitted for acceptance. Any revisions or updates to the Construction Schedule are subject to review and
acceptance by Owner. In no event shall any Construction Schedule update constitute an adjustment to the Contract
Time, any completion deadline, any Milestone, or the Contract Sum unless such adjustment is agreed to by the Owner
and authorized pursuant to a Change Order or Unilateral Change Order.
§ 9.8.3 Format. Unless otherwise provided in the Agreement or Technical Specifications, the Construction Schedule
shall be in a detailed precedence Critical Path Method ("CPM") or Primavera-type format satisfactory to the Owner,
which shall also: (i) provide a graphic representation of all activities and events that will occur during performance of
the Work; (ii) identify each phase of design, construction and maintenance; and (iii) set forth dates that are critical in
ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract
Documents. At a minimum the Construction Schedule shall depict the schedule for Work on a discipline by discipline
and trade by trade basis and tasks within each discipline and trade. The Project Schedule shall include: (i) proposed
activity sequences and durations showing the amount of Float for each activity; (ii) milestone dates for receipt and
acceptance of pertinent information, including Owner-supplied information and approvals by governmental
authorities having jurisdiction over the Project; (iii) dates for preparation and processing of Submittals; (iv) dates for
delivery of materials or equipment requiring long-lead time procurement; (vi) Owner’s occupancy/use requirements
®
®
(1296196457)
18
showing portions of the Project having occupancy priority; (vii) the date of Substantial Completion; and (viii) other
information reasonably required by Owner.
§ 9.8.4 Look Ahead Schedules. At each weekly progress meeting, Contractor shall submit a three-week look-ahead
schedule. The look-ahead schedule shall provide sufficient detail to define the work to be accomplished and identify
the subcontractors and equipment required.
§ 9.8.5 Updates. Upon submission of an Application for Payment by Contractor (other than the final Application for
Payment), the Contractor shall be current in its submission at an updated Construction Schedule revised to indicate the
portion of the Work executed, all progress slippages, corrective actions taken, or slippage carry-over, for all
anticipated delays or difficulties, and all other information required to accurately present the actual status of the
progress of the Work as of the date of the Application for Payment. If the Contractor is not current in its submission of
an updated Construction Schedule with an Application for Payment, Owner may withhold ten percent (10%) from
each progress payment due Contractor, in addition to retention, until Contractor complies with this requirement. In the
event any update to the Construction Schedule indicates any delays to the Contract Time that are the fault of
Contractor or others for whom Contractor is responsible, the Contractor shall propose an affirmative plan to correct
the delay, including overtime and/or additional labor, if necessary. In no event shall any Construction Schedule
update constitute an adjustment in the Contract Time, any completion deadline, any Milestone, or the Contract Sum
unless any such adjustment is agreed to by the Owner and authorized pursuant to Change Order or Unilateral Change
Order.
§ 9.8.6 Daily Logs. Contractor shall maintain a daily log containing a record of weather, Contractor’s own forces
working on site; Subcontractors working on the site; number and labor classification of workers for each
Subcontractor on Site; materials delivered; major equipment on Site; Work started, completed and accomplished that
day; approximate count of all personnel at the Project Site; inspections, tests and visitors; accidents; any Work
stoppages, delays, shortages or losses; problems encountered and other similar relevant data as the Owner may
reasonably require. The daily log shall be signed by Contractor’s Designated Representative, submitted by 4:30 p.m.
on the next Working Day to Owner’s Representative and shall be made available to others as directed by Owner.
§ 9.8.7 Performance. The Contractor shall perform the Work in accordance with the most recent Project Schedule
and schedule of Submittals accepted by the Owner. The Contractor shall monitor the progress of the Work for
conformance with the requirements of the Project Schedule and shall promptly advise the Owner of any delays or
potential delays.
§ 9.8.8 Extraordinary Measures. In the event the Owner determines that the performance of the Work has not
progressed or reached the level of completion required by the Contract Documents, the Owner shall have the right to
order the Contractor to take corrective measures necessary to expedite the progress of construction, in accordance with
Section 8.4.
§ 9.8.9 Schedule of Submittals. Prior to award of the Contract, the Contractor shall prepare and keep current, for the
Owner’s review and acceptance, a schedule of Submittals for shop drawings, product data, samples, and similar
submittals (collectively, "Submittals"), coordinated with the baseline construction schedule and allowing the Owner
reasonable time to review. Contractor shall be solely responsible for any delay, disruption, impact, loss of efficiency
or other loss, arising directly or indirectly from Contractor’s failure to manage Submittals properly.
§ 9.8.10 Procurement Schedule. Unless otherwise provided in the Agreement or Technical Specifications, within ten
(10) calendar days after the date of commencement, Contractor shall prepare and keep current, for Owner’s
acceptance, a schedule for procurement of materials and equipment which is coordinated with the baseline
construction schedule and allows the Owner reasonable time to review. Contractor is solely responsible for any delay,
disruption, impact, loss of efficiency, or other loss arising directly or indirectly from Contractor’s failure to properly
manage procurement of equipment and materials.
§ 9.8.11 Rain/Inclement Weather Delays. In scheduling the Work, Contractor shall account for the number of
inclement weather Work Days, by month, set forth in Section 14.6.4 below, for which the effects of rainfall and
inclement weather are expected to prevent Work.
®
®
(1296196457)
19
§ 9.8.12 Early Completion. If the Contractor’s Project Schedule shows completion of the Work in advance of the
Substantial Completion date, the Contractor agrees that in the event actual completion occurs, for any reason, after the
completion date specified in the Contractor’s Project Schedule but within the Contract Time, the Contractor shall not
be entitled to and waives any claim against the Owner for delay, disruption or impact costs or damages including,
without limitation claims for extended general conditions, home office overhead, job site overhead and management
or administrative costs as provided in Section 14.6.17 below.
§ 9.8.13 The Contractor shall perform the Work in general accordance with the most recent schedules approved by
the Owner and Architect.
PAGE 20
§ 9.9.1 The Contractor shall review for compliance with the Contract Documents and submit to the Owner and
Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents in
coordination with the Contractor’s construction schedule (collectively "Submittals") required by the Contract
Documents within the time frames required by the Contract Documents and in such sequence as to allow the Architect
reasonable time for review. By submitting Shop Drawings, Product Data, Samples and similar submittals, cause no
delay in the Work or in the activities of the Owner or of Owner’s Separate Contractors. Contractor shall cooperate with
the Owner’s separate consultants in the coordination of the Contractor’s Submittals with related documents submitted
by other contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and
approved by the Contractor may be returned by the Architect without action. In all cases, Submittals shall be
submitted to the Owner and Architect for review, approval, and authorization to proceed prior to commencing
procurement, fabrication, or installation of any such Work. In the event that the Owner or Architect reasonably
determines that all or any portion of any Submittal fails to comply with the requirements of the Contract Documents
and/or such Submittals are not otherwise complete and accurate so as to require re-submission more than one (1) time,
Contractor shall bear all costs (within the Contract Sum) associated with the review and acceptance of such
resubmitted Submittals. No adjustment to the Contract Time or the Contract Sum shall be granted by the Owner to the
Contractor on account of its failure to make timely submission of any Submittals. By submitting Submittals, the
Contractor represents to the Owner and Architect that the Contractor has (1) reviewed and approved them; (2)
determined and verified materials, field measurements and field construction criteria related thereto, or will do so; and
(3) checked and coordinated the information contained within such submittals with the requirements of the Work and
of the Contract Documents. The Work shall be in accordance with approved submittals.
§ 9.9.2 Shop Drawings, Product Data, Samples and similar submittals Submittals are not Contract Documents.
…
The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes, ordinances, codes,
rules and regulations, lawful orders of public authorities, and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.§ 9.10.1 The Contractor shall confine operations at the Project to the
areas and within the hours permitted by Applicable Law, permits, the Contract Documents or the Owner’s
Representative, and shall not unreasonably encumber the Project Site or the adjoining sidewalks, streets and alleyways
with any material, equipment, or debris.
§ 9.10.3 Contractor shall use only those locations designated on the Drawings for locating Contractor’s trailers,
staging areas, lay-down areas, and other construction operations.
§ 9.10.4 The Contractor shall be solely responsible for providing security at the site of the Work with all such costs
included in the Contract Price. In addition, the Contractor shall take all necessary precautions and provide enclosures,
barricades, security guards, signs, notices, shoring, bracing, passageways, lights, and such other materials, equipment
and services as may be required (including, without limitation, such protections as may be required by applicable
laws) for the protection of (1) all persons who may be on the premises or in other areas affected by the Contractor’s
operations, and (2) the Owner’s and any third party’s personal or real property. Contractor shall execute all repairs to
land, structures, sidewalks and alleys damaged in connection with the operations under this Contract.
…
®
®
(1296196457)
20
The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish
caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials,
rubbish, the Contractor’s tools, construction equipment, machinery and surplus material from and about the
Project.§ 9.12.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste
materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove
waste materials, rubbish, the Contractor’s tools, construction equipment, machinery and surplus material from and
about the Project. The job site shall be kept in a neat and broom-clean condition on a daily basis.
§ 9.12.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and Owner
shall be entitled to reimbursement from the Contractor.
§ 9.12.3 Unless specifically approved by the Owner, no washing of cement trucks, mixers or similar equipment, nor
the dumping of injurious material, will be permitted on the Project site or the adjoining streets, alleys and structures.
No waste material shall be deposited on the Project site.
PAGE 21
The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of
copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall
not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or
manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings,
Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to
believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall
be responsible for such loss unless such information is promptly furnished to the Architect.§ 9.13.1 The Contractor
shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and
patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be
responsible for such defense or loss when a particular design, process or product of a particular manufacturer or
manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings,
Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to
believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall
be responsible for such loss unless such information is promptly furnished to the Architect.
§ 9.13.2 The Contractor offers and agrees to assign to the Owner 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. Section 15) or under the Cartwright Act [Chapter 2
(commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code of the State of
California], arising from purchases of goods, services or materials pursuant to the performance of the Work. This
assignment will be made and become effective at the time the Owner tenders Final Payment to the Contractor, without
further acknowledgement by the parties.
…
The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever
located. The Owner shall be given key(s) to construction trailer/office and all storage compartment/bins if paid-for
materials, equipment and supplies are stored therein.
…
§ 9.15.1 General Provision. To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless
the Owner, Architect, Architect’s consultants and agents and employees of any of them from and against claims,
damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from
performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent
caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed
by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense
is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce
other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section
9.15.1.assumes liability for and agrees, at the Contractor’s sole cost and expense, to promptly and fully indemnify,
®
®
(1296196457)
21
protect, hold harmless and defend (even if the allegations are false, fraudulent, or groundless), the City of Pasadena,
its City Council and each member thereof and all of their respective officials, officers, directors, employees,
commission members, representatives and agents ("Indemnitees"), from and against any and all claims, allegations,
actions, suits, arbitrations, administrative proceedings, regulatory proceedings, or other legal proceeds, causes of
action, demands, costs, judgments, liens, stop payment notices, penalties, liabilities, damages, losses, anticipated
losses of revenues, and expenses (including, but not limited to, any fees of accountants, attorneys, experts or other
professionals, or investigation expenses), or losses of any kind or nature whatsoever, whether actual, threatened or
alleged, arising out of, resulting from, or in any way (either directly or indirectly), related to the Work, the Project or
any breach of the Contract by Contractor or any of its officers, agents, employees, Subcontractors, Sub-subcontractors,
or any person performing any of the Work, pursuant to a direct or indirect contract with the Contractor ("Indemnity
Claims"). Such Indemnity Claims include, but are not limited to, claims for:
(1)
Any activity on or use of the City’s premises or facilities;
(2)
Any liability incurred due to Contractor acting outside the scope of its authority pursuant to the Contract,
whether or not caused in part by an Indemnified Party;
(3)
The failure of Contractor or the Work to comply with any Applicable Law, permit or orders;
(4)
Any misrepresentation, misstatement or omission with respect to any statement made in the Contract
Documents or any document furnished by the Contractor in connection therewith;
(5)
Any breach of any duty, obligation or requirement under the Contract Documents, including, but not
limited to any breach of Contractor’s warranties, representations or agreements set forth in the Contract
Documents;
(6)
Any failure to coordinate the Work with Owner’s Separate Contractors;
(7)
Any failure to provide notice to any party as required under the Contract Documents;
(8)
Any failure to act in such a manner as to protect the Project from loss, cost, expense or liability;
(9)
Bodily or personal injury, emotional injury, sickness or disease, or death at any time to any persons
including without limitation employees of Contractor;
(10)
Damage or injury to real property or personal property, equipment and materials (including, but without
limitation, property under the care and custody of the Contractor or the Owner) sustained by any person
or persons (including, but not limited to, companies, corporations, utility company or property owner,
Contractor and its employees or agents, and members of the general public);
(11)
Any liability imposed by Applicable Law including, but not limited to criminal or civil fines or penalties;
(12)
Any dangerous, hazardous, unsafe or defective condition of, in or on the Site, of any nature whatsoever,
which may exist by reason of any act, omission, neglect, or any use or occupation of the Site by
Contractor, its officers, agents, employees, or Subcontractors;
(13)
Any operation conducted upon or any use or occupation of the Site by Contractor, its officers, agents,
employees, or Subcontractors under or pursuant to the provisions of the Contract or otherwise;
(14)
Any acts, errors, omission or negligence of Contractor, its officers, agents, employees, or
Subcontractors;
(15)
Infringement of any patent rights, licenses, copyrights or intellectual property which may be brought
against the Contractor or Owner arising out of Contractor’s Work, for which the Contractor is
responsible; and
(16)
Any and all claims against the Owner seeking compensation for labor performed or materials used or
furnished to be used in the Work or alleged to have been furnished on the Project, including all incidental
or consequential damages resulting to Owner from such claims.
§ 9.15.2 In claims against any person or entity indemnified under this Section 9.15 by an employee of the Contractor,
a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under Section 9.15.1 shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Contractor or Subcontractor under workers’ compensation acts,
disability benefit acts or other employee benefit acts.Effect of Indemnitees’ Active Negligence. Contractor’s obligations
to indemnify and hold the Indemnitees harmless exclude only such portion of any Indemnity Claim which is
attributable to the active negligence or willful misconduct of the Indemnitee, provided such active negligence or
willful misconduct is determined by agreement of the parties or by findings of a court of competent jurisdiction. In
instances where an Indemnitee’s active negligence accounts for only a percentage of the liability for the Indemnity
Claim involved, the obligation of Contractor will be for that entire percentage of liability for the Indemnity Claim not
attributable to the active negligence or willful misconduct of the Indemnitee(s). Such obligation shall not be construed
to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any
party or person described in this Section 9.15. Subject to the limits set forth herein, the Contractor, at its own expense,
®
®
(1296196457)
22
shall satisfy any resulting judgment that may be rendered against any Indemnitee resulting from an Indemnity Claim.
The Indemnitees shall be consulted with regard to any proposed settlement.
§ 9.15.3 Independent Defense Obligation. The duty of the Contractor to indemnify and hold harmless the Indemnitees
includes the separate and independent duty to defend the Indemnitees, which duty arises immediately upon receipt by
Contractor of the tender of any Indemnity Claim from an Indemnitee. The Contractor’s obligation to defend the
Indemnitee(s) shall be at Contractor’s sole expense, and not be excused because of the Contractor’s inability to
evaluate liability or because the Contractor evaluates liability and determines that the Contractor is not liable. This
duty to defend shall apply whether or not an Indemnity Claim has merit or is meritless, or which involves claims or
allegations that any or all of the Indemnitees were actively, passively, or concurrently negligent, or which otherwise
asserts that the Indemnitees are responsible, in whole or in part, for any Indemnity Claim. The Contractor shall
respond within thirty (30) calendar days to the tender of any Indemnity Claim for defense and/or indemnity by an
Indemnitee, unless the Indemnitee agrees in writing to an extension of this time. The defense provided to the
Indemnitees by Contractor shall be by well qualified, adequately insured and experienced legal counsel acceptable to
Owner.
§ 9.15.4 Intent of Parties Regarding Scope of Indemnity. It is the intent of the parties that the Contractor and its
Subcontractors of all tiers shall provide the Indemnitees with the broadest defense and indemnity permitted by
Applicable Law. In the event that any of the defense, indemnity or hold harmless provisions in the Contract
Documents are found to be ambiguous, or in conflict with one another, it is the parties’ intent that the broadest and
most expansive interpretation in favor of providing defense and/or indemnity to the Indemnitees be given effect.
§ 9.15.5 Waiver of Indemnity Rights Against Indemnitees. With respect to third party claims against the Contractor, to
the fullest extent permitted by law, the Contractor waives any and all rights to any type of express or implied
indemnity against the Indemnitees.
§ 9.15.6 Subcontractor Requirements. In addition to the requirements set forth hereinabove, Contractor shall ensure,
by written subcontract agreement, that each of Contractor’s Subcontractors of every tier shall protect, defend,
indemnify and hold harmless the Indemnitees with respect to Indemnity Claims arising out of, in connection with, or
in any way related to each such Subcontractors’ Work on the Project in the same manner in which Contractor is
required to protect, defend, indemnify and hold the Indemnitees harmless. In the event Contractor fails to obtain such
defense and indemnity obligations from others as required herein, Contractor agrees to be fully responsible to the
Indemnitees according to the terms of this Section 9.15.
§ 9.15.7 No Limitation or Waiver of Rights. Contractor’s obligations under this Section 9.15 are in addition to any other
rights or remedies which the Indemnitees may have under the law or under the Contract Documents. Contractor’s
indemnification and defense obligations set forth in this Section 9.15 are separate and independent from the insurance
provisions set forth in the Contract Documents, and do not limit, in any way, the applicability, scope, or obligations set
forth in such insurance provisions. The purchase of insurance by the Contractor with respect to the obligations
required herein shall in no event be construed as fulfillment or discharge of such obligations. In any and all claims
against the Indemnitees by any employee of the Contractor, any Subcontractor, any supplier of the Contractor or
Subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be
liable, the obligations under this Section 9.15 shall not be limited in any way by any limitation on the amount or type
of damages, compensation or benefits payable by or for the Contractor or any Subcontractor or any supplier of either
of them, under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.
Failure of the Owner to monitor compliance with these requirements imposes no additional obligations on the Owner
and will in no way act as a waiver of any rights hereunder.
§ 9.15.8 Withholding to Secure Obligations. In the event an Indemnity Claim arises prior to final payment to
Contractor, the Owner may, in its sole discretion, reserve, retain or apply any monies due Contractor for the purpose of
resolving such Indemnity Claims; provided, however, the Owner may release such funds if the Contractor provides the
Owner with reasonable assurances of protection of the Indemnitees’ interests. The Owner shall, in its sole discretion,
determine whether such assurances are reasonable.
§ 9.15.9 Survival of Indemnity Obligations. Contractor’s obligations under this Section 9.15 are binding on
Contractor’s and its Subcontractors’ successors, heirs and assigns and shall survive the completion of the Work or
termination of the Contractor’s performance of the Work.
®
®
(1296196457)
23
§ 9.16 OBLIGATION TO CONTINUE WORK
§ 9.16.1 In the event of any dispute or controversy between Owner and Contractor over any matter whatsoever,
Contractor shall not cause any delay or cessation in or of the Work but shall proceed under the Contract Documents
with the performance of the Work required thereby.
PAGE 23
§ 10.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be
an Owner’s representative during construction, until the date the Architect issues the final Certificate for Payment. (1)
during construction, (2) until final payment is due and (3) with the Owner’s concurrence, from time to time during the
one-year period for correction of Work described in Article 18. The Architect will have authority to act on behalf of
the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance
with other provisions of the Contract.
§ 10.2 The Architect will visit the site at intervals appropriate to the stage of the construction to become generally
familiar with the progress and quality of the portion of the Work completed, to endeavor to guard the Owner against
defects and deficiencies and to determine in general, if the Work observed is being performed in a manner indicating
that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will
not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The
Architect will not have control over, charge of, or responsibility for, the construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely
the Contractor’s rights and responsibilities under the Contract Documents.
§ 10.3 On the basis of the site visits, the Architect will keep the Owner reasonably informed about the progress and
quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract
Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and
deficiencies observed in the Work. The Architect will not be responsible for the Contractor’s failure to perform the
Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or
charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work. Approval and/or acceptance of all or any
portion of the Work shall in no way relieve the Contractor from its obligation to construct each portion of the Work in
accordance with the Contract Documents and the Owner shall not be estopped or otherwise prevented from asserting
any claim it might have against the Contractor as a result of any such acceptance or approval.
PAGE 24
§ 10.7 The Architect will interpret and decide matters concerning performance under, and requirements of, the
Contract Documents on written request of either the Owner or Contractor. The Architect will make initial decisions on
all claims, disputes and other matters in question between the Owner and Contractor but will not be liable for results of
any interpretations or decisions rendered in good faith.Architect’s decisions on matters relating to aesthetic effect will
be final if consistent with the intent expressed in the Contract Documents.
§ 10.8 The Architect’s decisions on matters relating to aesthetic effect will be final if consistent with the intent
expressed in the Contract Documents.Duties, responsibilities and limitations of authority of the Architect as set forth
in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner,
Contractor and Architect. Consent shall not be unreasonably withheld.
§ 10.9 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall
not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall
not be unreasonably withheld.
…
®
®
(1296196457)
24
§ 11.2 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as
practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of the
Subcontractors or suppliers for each of the principal portions of the Work. The Contractor shall not contract with any
Subcontractor or supplier to whom the Owner or Architect has made reasonable written objection within ten days after
receipt of the Contractor’s list of Subcontractors and suppliers. If the proposed but rejected Subcontractor was
reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by
the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before
commencement of the substitute Subcontractor’s Work. The Contractor shall not be required to contract with anyone
to whom the Contractor has made reasonable objection.None but skilled workers shall be employed on any portion of
the Work. When required in writing by the Owner, the Contractor or any Subcontractor shall discharge any person
who is, in the reasonable opinion of the Owner, incompetent, unfaithful, disorderly or otherwise unsatisfactory, and
shall not again employ such discharged person on the Work except with the consent of the Owner. Such discharge
shall not be the basis of any claim for compensation or damages against the Owner or any of its officers or agents.
§ 11.3 Contracts between the Contractor and Subcontractors shall (1) require each Subcontractor, to the extent of the
Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents,
and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of
the Subcontractor’s Work, which the Contractor, by the Contract Documents, assumes toward the Owner and
Architect, and (2) allow the Subcontractor the benefit of all rights, remedies and redress against the Contractor that the
Contractor, by these Contract Documents, has against the Owner.Subcontractor Listing. The Contractor shall comply
with Public Contract Code Section 4100 et seq. ("Subcontractor Listing Law"), list required Subcontractors, and make
no substitution of listed Subcontractors except with the written consent of Owner’s Representative. As soon as
practicable after award of the Contract, Contractor shall provide Owner with the description of work, name of
Subcontractor, business phone, e-mail address, physical address and contact person for each Subcontractor performing
Work on the Project and shall continuously update the Owner upon selection of each Subcontractor not required to be
listed pursuant to the Subcontractor Listing Law.
§ 11.3.1 Subcontractor Substitution Process. Any request of the Contractor to substitute a listed Subcontractor will be
considered only if such request is in strict conformity with this Section 11.3 and California Public Contract Code
§4107. All costs and fees incurred by the Owner in the review and evaluation of a request to substitute a listed
Subcontractor shall be borne by the Contractor; such costs and fees may be deducted by the Owner from the Contract
Sum then or thereafter due the Contractor. Where a portion of the Work that has been subcontracted by the Contractor
is not being prosecuted in a manner satisfactory to the Owner, the Subcontractor shall be removed immediately upon
Owner’s written notice and shall not be used thereafter on the Project.
§ 11.4 The Contractor shall not contract with any unlicensed or uninsured Subcontractor or supplier. The Contractor
shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely
objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable
objection. If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the
Contractor shall propose another to whom the Owner or Architect has no reasonable objection without increase to the
Contract Sum or Contract Time.
§ 11.4.1 Each subcontract or supply agreement shall contain provisions that:
.1
.2
.3
require that the Work being performed pursuant to such contract be performed in accordance with the
requirements and intent of the Contract Documents and provide for no less than 5% retainage;
require submission of Applications for Payment in the form required by the Contract Documents,
together with invoices and billings supporting such applications and conditional and unconditional lien
releases and declarations to procure payment and release of contract rights in the form required by the
Contract Documents completed by it and by its Sub-subcontractors as a condition to the disbursement
of any progress payment next due and owing to it;
require the Subcontractor, Sub-subcontractor, or supplier, as the case may be, to maintain insurance
coverage as provided in the Contract Documents and to file required certificates of such coverage and
additional insured endorsements with Owner, and, upon Owner’s request, to provide copies of such
insurance policies to Owner;
®
®
(1296196457)
25
.4
.5
.6
.7
require Subcontractor, Sub-subcontractor, and supplier to furnish to Contractor or the applicable
Subcontractor, as the case may be, in a timely fashion all information necessary for the preparation and
submission of the reports required herein;
require that each Subcontractor, Sub-subcontractor, and supplier continue to perform under its contract
if the Contract is terminated and if Owner takes an assignment of the subcontract or supply agreement
and requests the Subcontractor, Sub-subcontractor, or supplier to continue such performance;
include the termination and suspension provisions set forth in Article 20 below; and
require the Subcontractor, Sub-subcontractor, or supplier to resolve all disputes in the same manner as
provided in Articles 5 and 21 herein.
§ 11.5 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
§ 11.5.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided
that
.1
assignment is effective only after termination of the Contract by the Owner for cause or convenience
and only for those subcontract agreements that the Owner accepts by notifying the Subcontractor and
Contractor in writing; and
.2
assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the
Contract.
When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor’s rights and
obligations under the subcontract.
§ 11.5.2 Upon such assignment to the Owner under this Section 11.5, the Owner may further assign the Subcontract to
a successor contractor or other entity.
§ 11.6 PAYMENTS TO SUBCONTRACTORS
§ 11.6.1 The Contractor shall pay all Subcontractors for and on account of Work of the Contract performed by such
Subcontractors within seven (7) days after receipt of progress payments from Owner and within seven (7) days after
receipt of retention from Owner.
§ 11.6.2 Joint Payments. Owner hereby reserves the right, upon written notice to Contractor, to make, at any time, and
from time-to-time, payments directly to each Subcontractor, and, if such rights shall be exercised by Owner, then such
amount shall be credited against the Contract Sum due to Contractor hereunder and Owner shall be relieved and
released from the obligation to make such payment to Contractor and Contractor shall be relieved and released as to
Owner from the obligation to make such payments to each Subcontractor paid by Owner, but not from any of the other
obligations and responsibilities of Contractor to Owner under the Contract Documents.
§ 11.7 ARM’S LENGTH TRANSACTIONS AND COMMERCIALLY USEFUL FUNCTION OF SUBCONTRACTORS AND
SUPPLIERS
§ 11.7.1 To assure competitive bids and to assure that no bid rigging, unfair practices, collusion or conflicts of interest
occur in connection with the Work, Contractor agrees that all agreements between Contractor and Subcontractors and
suppliers for performance of the Work shall be pursuant to arm’s length transactions, with unrelated and unaffiliated
firms (a "related" or "affiliated" firm is one which is subject to the control of the same persons through joint ownership
or otherwise). In all such agreements, each firm shall act in its own best interest, for compensation that reflects the fair
market values of the materials or services that are the subject of the transaction.
§ 11.7.2 Contractor further agrees that each Subcontractor and supplier for the Work will perform a commercially
useful function (i.e. is responsible for the performance, management, and supervision of a distinct element of the
Work). A Subcontractor or supplier does not perform a commercially useful function when, for example: the Work is
outside the firm’s experience or qualifications; the firm provides little or no supervision of the Work; more than 50%
of the Work designated to be performed by a Subcontractor is performed by a Sub-subcontractor or supplier; the
Subcontractor only purchases materials while performing little or no Work; the firm works for only one prime
contractor; or the same employees work for the firm and the Contractor.
§ 11.7.3 If, upon Owner’s request, Contractor fails to provide adequate assurances of arm’s length transactions or that
all Subcontractors and suppliers will perform a commercially useful function, Contractor shall remove such
Subcontractor or supplier from the Project, exclude the cost associated with such firm from all Applications for
®
®
(1296196457)
26
Payment and change order requests and, if necessary, propose another Subcontractor or supplier to whom the Owner
has no objection, without increase to the Contract Sum or Contract Time.
PAGE 26
§ 12.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a
separate contractor because of delays, improperly timed activities or defective construction of the Contractor.The
Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly timed
activities, damage to the Work or defective construction of a separate contractor.
§ 12.4 The Contractor agrees that it will be responsible to any other contractor performing work related to the Project
for any loss, injury, damage or delay caused by the Contractor. The Contractor and its Performance Bond Surety shall
defend, indemnify and hold harmless the Owner, the Architect, and any of their respective members, officers,
employees and agents, from and against any claim brought against any of them by another contractor as a result of the
Contractor’s alleged acts or omission.
§ 12.5 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or partially
completed construction or to property of the Owner’s Separate Contractors.
…
§ 13.1 By appropriate Modification, changes GENERAL. Changes in the Work may be accomplished after execution of
the Contract. The Owner, without invalidating the Contract, may order changes in the Work within the general scope
of the Contract consisting of additions, deletions or other revisions, with the Contract Sum and Contract Time being
adjusted accordingly. Such changes in the Work shall be authorized by written Change Order signed by the Owner,
Contractor and Architect, or by written Construction Change Directive signed by the Owner and Architect.Contract
and without invalidating the Contract, by Change Order, Construction Change Directive, or order for a minor change
in the Work, subject to the limitations stated in this Article 13 and elsewhere in the Contract Documents. The Owner
may, at any time, without notice to Contractor’s surety(ies) order changes in the Work within the general scope of the
Contract.
§ 13.1.1 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the
Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or
order for a minor change in the Work.
§ 13.1.2 All prices for extras and credits are to be competitive and standard for the scope and location of the Work.
Owner may, at its sole discretion, and without obligations, obtain its own bids and estimates and perform the extra
Work with its own forces or with Owner’s Separate Contractors. Contractor will cooperate with Owner’s forces,
Owner’s Separate Contractors, suppliers, and agents to facilitate Owner-supplied Work.
§ 13.2 Adjustments in the Contract Sum and Contract Time resulting from a change in the Work shall be determined
by mutual agreement of the parties or, in the case of a Construction Change Directive signed only by the Owner and
Architect, by the Contractor’s cost of labor, material, equipment, and reasonable overhead and profit, unless the
parties agree on another method for determining the cost or credit. Pending final determination of the total cost of a
Construction Change Directive, the Contractor may request payment for Work completed pursuant to the Construction
Change Directive. The Architect will make an interim determination of the amount of payment due for purposes of
certifying the Contractor’s monthly Application for Payment. When the Owner and Contractor agree on adjustments
to the Contract Sum and Contract Time arising from a Construction Change Directive, the Architect will prepare a
Change Order.
CHANGE ORDERS
§ 13.2.1 A Change Order is a written instrument prepared by the Owner and signed by the Owner, Contractor and
Architect, stating their agreement upon all of the following:
.1
The scope of the change in the Work;
.2
The amount of the adjustment, if any, in the Contract Sum; and
.3
The extent of the adjustment, if any, in the Contract Time.
§ 13.2.2 Methods used in determining adjustments to the Contract Sum are those listed in Section 13.3.3.
®
®
(1296196457)
27
§ 13.2.3 Accord and Satisfaction. Contractor’s agreement on any Change Order shall be a full compromise and
settlement of all adjustments to the Contract Time and Contract Sum, and compensation for any and all delay,
extended or additional field and home office overhead, disruption, acceleration, inefficiencies, lost labor or equipment
productivity, differing site conditions, construction interferences and other extraordinary or consequential damages
(hereinafter called "Impacts"), including any ripple or cumulative effect of said Impacts on the overall Work under the
Contract arising directly or indirectly from the performance of Work described in the Change Order. By execution of
any Change Order, Contractor agrees that the Change Order constitutes a complete accord and satisfaction with
respect to all claims for schedule extension, Impacts, or any costs of whatsoever nature, character or kind arising out of
or incidental to the Change Order. No action, conduct, omission, product failure or course of dealing by the Owner
shall act to waive, modify, change, or alter the requirement that Change Orders must be in writing, signed by the
Owner and Contractor and that such written Change Orders are the exclusive method for effectuating any change to
the Contract Sum and/or Contract Time.
§ 13.3 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract
Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes
shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out
such written orders promptly.
CONSTRUCTION CHANGE DIRECTIVES
§ 13.3.1 A Construction Change Directive is a written order prepared by the Owner and signed by the Owner and
Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract
Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in
the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract
Sum and Contract Time being adjusted accordingly.
§ 13.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change
Order.
§ 13.3.3 Adjustment of Contract Sum. If a Construction Change Directive or Change Order provides for an adjustment
to the Contract Sum, the adjustment shall be based on one of the following methods:
.1
Mutual agreement on a lump sum price based on the cost of the Work, plus a Contractor Fee for
overhead and profit as determined by Section 13.3.4.4, properly itemized and supported by sufficient
substantiating data to permit evaluation;
.2
Unit prices stated in the Contract Documents or subsequently agreed upon; or
.3
Daily time and material records of actual costs plus a Contractor Fee for overhead and profit as
determined by Section 13.3.4.4, subject to the not-to-exceed amount established in the Construction
Change Directive or Change Order.
§ 13.3.4 Costs for pricing Changes in the Work shall be properly itemized by each craft directly allocable to the change
and supported by sufficient substantial data to permit evaluation and shall be determined by the following factors:
.1
Materials. Costs of materials, including transportation, delivery and sales taxes on materials and
consumable items that are furnished and incorporated into the extra work, as approved by the Owner,
shall be charged at the lowest price available to contractor, suppliers, manufacturers, and distributors in
the area of the Project Site. All discounts, rebates, and refunds and all returns of surplus materials and
consumable items shall accrue to Owner, and Contractor shall make provisions so that they may be
obtained.
.2
Labor. Straight-time wages or salaries and fringe benefits and payroll taxes for employees employed at
the Project Site, or at fabrication sites off the Project Site, in the direct performance of the extra work;
overtime must be approved in writing by the Owner.
.3
Equipment. Rental value of equipment and machinery, exclusive of hand tools. No payment will be
made for the use of tools that have a replacement value of $400.00 or less. Rates for Contractor-owned
and Subcontractor-owned equipment shall be calculated as the lesser of:
(a)
The rates published by the State of California, Department of Transportation, Division of
Construction (Caltrans Blue Book) in the latest edition effect at the time the equipment is in use
for the change; or
(b)
The rates paid by Contractor or Subcontractor pursuant to an arm’s length transaction with the
equipment supplier; or
®
®
(1296196457)
28
(c)
.4
.5
The internal rates the Contractor or Subcontractor charges to the Work according to its usual and
customary accounting practices.
Contractor Fee. Contractor shall be entitled to a Contractor Fee on items .1, .2 and .3 above for
performing the extra work approved by Owner. The term "Contractor Fee" shall mean the full amount
of compensation, both direct and indirect (including without limitation all overhead and profit), to be
paid to Contractor for its own Work and the Work of all Subcontractors, for all costs and expenses not
included in the cost for extra work. The Contractor Fee shall not be compounded. The Contractor Fee
shall be computed as follows:
(a)
Ten percent (10%) of the cost of that portion of the extra work to be performed by the
Contractor with its own forces.
(b)
Subcontractor with its own forces, plus 5% for the Contractor. Total combined Contractor and
Subcontractor fee shall not exceed 15%.
(c)
Sub-subcontractor with its own forces, or any lower tier of Subcontractor, plus 5% for the
Subcontractor, plus 5% for the Contractor.
(d)
Where multiple tiers of Subcontractors are involved in a change in the Work, the maximum total
amount of adjustment to the Contract Price and for markup for all tiers of Subcontractors and for
Contractor self-performed Work shall not exceed twenty percent (20%) of the direct costs
incurred by Contractor and the Subcontractors and material suppliers actually performing the
Work.
Insurance and Bond Expenses. Not to exceed two and one-half percent (2.5%) of items .1, .2 and .3
above.
§ 13.3.5 Costs for pricing Changes in the Work shall not include wages and expenses for any of the following:
.1
Superintendents(s);
.2
Assistant Superintendents(s);
.3
Project Engineer(s);
.4
Project Managers(s);
.5
Scheduler(s);
.6
Estimators(s);
.7
Small tools (Replacement value does not exceed $300);
.8
Office expenses including staff, materials and supplies;
.9
Onsite or offsite trailer and storage rental and expenses;
.10 Site fencing;
.11 Utilities including gas, electric, sewer, water, telephone, facsimile, copier equipment;
.12 Data processing personnel and equipment;
.13 Federal, state, or local business income and franchise taxes;
.14 Overhead and profit; and
.15 Costs and expenses of any kind or item not specifically and expressly included in Section 13.3.4.
§ 13.3.6 Duty to Proceed. Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed
with the change in the Work involved and advise the Owner and Architect of the Contractor’s agreement or
disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed
adjustment in the Contract Sum or Contract Time.
§ 13.3.7 Contractor Maintenance of Daily Records for Changes. In the event that Contractor is directed to perform any
changes to the Work, or should Contractor encounter conditions which the Contractor believes would obligate the
Owner to adjust the Contract Sum and/or the Contract Time, Contractor shall maintain detailed records of the cost of
such changes on a daily basis summarized in a daily report supplemented by back-up records. Such records shall
include without limitation hourly records for labor and construction equipment, itemized records of materials,
including delivery tickets, and equipment used each day in connection with the performance of any change to the
Work. In the event that more than one change to the Work is performed by the Contractor in a calendar day, Contractor
shall maintain separate records of labor, construction equipment, materials, and equipment for each such change. In
the event that one or more changes to the Work is performed by Contractor in a calendar day, Contractor shall maintain
separate records of labor, construction equipment, materials, and equipment for each such change and the base
Contract Work. In the event that any Subcontractor of any tier, shall provide or perform any portion of any change to
®
®
(1296196457)
29
the Work, Contractor shall require that each such Subcontractor maintain records in accordance with this paragraph.
Each daily record maintained hereunder shall be signed by Contractor; such signature shall be deemed Contractor’s
representation and warranty that all information contained therein is true, accurate, complete, and relates only to the
change referenced therein. All records maintained by Subcontractors of any tier, relating to the costs of a change in the
Work shall be signed by such Subcontractor’s authorized Project Manager or Superintendent. All such records shall be
forwarded to Construction Manager on the day the Work is performed (same day) for independent verification. The
Construction Manager shall attempt to review and reconcile costs for changes on a daily basis. The Construction
Manager’s signature on the report shall indicate agreement with the information reflected therein, not that the
Contractor is entitled to payment of the costs in the report. If the Construction Manager disagrees with the response,
the Construction Manager shall note the areas of disagreement on the report. In the event that Contractor shall fail or
refuse, for any reason, to maintain or make available for inspection, review, and/or reproduction such records,
adjustments to the Contract Sum or Contract Time, if any, on account of any change to the Work may be deemed
waived for that day. Contractor’s obligation to maintain back-up records hereunder is in addition to, and not in lieu of,
any other Contractor obligation under the Contract Documents with respect to changes to the Work.
§ 13.3.7.1 Labor. The daily report shall show the names, trade, labor, classifications, and hours worked, for the
workers.
§ 13.3.7.2 Material. The daily report shall describe and list quantities of materials used, attaching delivery tickets.
§ 13.3.7.3 Equipment. The daily report shall show type of equipment, size, identification number, and hours of
operation, including loading and transportation, if applicable.
§ 13.3.7.4 Other Services and Expenditures. Other services and expenditures shall be described in such detail in the
daily report as the Owner may require.
§ 13.3.7.5 Cost. The report shall provide dollar values for each category of cost.
§ 13.3.8 Credit for Deleted Work. Contractor agrees that the Owner has the right to determine whether any or all of the
Work described in the Contract Documents shall be deleted or whether to terminate Contractor’s performance, in
whole or in part, under the Contract Documents and without any penalty being incurred by Owner.
When an entire item of Work or section of Work is deleted from the Contract, the value for such deleted Work
established in the Owner-approved detailed Schedule of Values shall be used to calculate the credit amount, less the
value of any Work of such item performed, and shall have at least seven percent (7%) markup added thereto for the
Contractor’s saved overhead, bonds and insurance, unless the Schedule of Values for such item of Work includes the
value for overhead, bonds and insurance.
For a change that involves both added and deleted Work, a Contractor Fee will not be allowed if the deductive costs
exceeds the additive cost.
§ 13.3.9 Payment for Undisputed Amounts. Pending final determination of the total cost of a Construction Change
Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for
Payment accompanied by a Change Order indicating the Parties’ agreement with part or all of such costs.
§ 13.3.10 Final Determination of Adjustment of Contract Sum and Contract Time. After issuance of a Construction
Change Directive, when the Owner and Contractor reach agreement on adjustment of the Contract Sum and Contract
Time, such agreement shall be effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order; when the Owner and Contractor cannot reach agreement the Owner may issue a Unilateral
Change Order to adjust the Contract Sum and Contract Time and Contractor may pursue a Claim for all remaining
disputes.
§ 13.4 If concealed or unknown physical conditions are encountered at the site that differ materially from those
indicated in the Contract Documents or from those conditions ordinarily found to exist, the Contract Sum and Contract
Time shall be equitably adjusted as mutually agreed between the Owner and Contractor; provided that the Contractor
provides notice to the Owner and Architect promptly and before conditions are disturbed.
®
®
(1296196457)
30
AUTHORITY TO APPROVE CHANGES
§13.4.1 The Owner’s Representative has sole authority to approve changes that affect the Contract Sum, Contract
Time, Construction Schedule or design of the Project, subject to the following limits. The total aggregate value of all
Change Orders, Unilateral Change Orders. and Construction Change Directives approved by the Owner’s
Representative shall not exceed 10% of the initial Contract Sum established at the time of award of the Contract. Any
changes that will individually or in the aggregate exceed 10% of the initial Contract Sum must be approved by the City
Council of the City of Pasadena. Contractor must give Owner prompt written notice if any individual changes or the
aggregate of all approved and proposed changes in the Work will exceed 10% of the initial Contract Sum, in order for
Owner to obtain additional funding for the Project.
§13.4.2 Architect. The Architect shall not authorize any change or Modification to the Work or the Contract
Documents that affects the Contract Sum, Contract Time, Project Schedule or design of the Project. Subject to the
foregoing limitations, the Architect may approve Minor Changes in the Work. Minor Changes in the Work are
changes not involving adjustments to the Contract Sum, Contract Time, or Project Schedule and not inconsistent with
the design intent of the Contract Documents.
§13.4.3 No Verbal Changes. All changes to the Contract, whether resulting in an increase, decrease or no change in
the Contract Sum or Contract Time, must be in writing and signed by an authorized representative of the Owner. Any
verbal direction, instruction, interpretation, or determination from the Owner which, in the opinion of the Contractor,
causes a change or additional work, or otherwise requires an adjustment to the Contract Sum or the Contract Time,
shall be treated as a Change Order Request only if the Contractor gives the Owner written notice within ten (10)
calendar days of the verbal direction and prior to acting in accordance therewith. Time is of the essence in
Contractor’s written notice pursuant to the preceding sentence, so that the Owner can promptly investigate and
consider alternative measures to address the verbal direction giving rise to Contractor’s notice. The written notice
shall state the date, circumstances, extent of adjustment to the Contract Sum or the Contract Time, if any, requested
and the source of the verbal direction. Contractor acknowledges that its failure, for any reason, to give written notice
within ten (10) calendar days of such verbal direction shall be deemed Contractor’s waiver of any right to assert or
Claim any entitlement to an adjustment of the Contract Time or the Contract Sum on account of such verbal direction.
§13.4.4 Unauthorized Changes. Contractor shall undertake, at its risk, work included in any oral request, written
order, Change Order or Construction Change Directive issued by a person in excess of that person’s authority as
provided herein. Additionally, any work performed by the Contractor beyond the lines and grades shown on the
Contract Documents or any extra work performed or provided by the Contractor without notice to the Architect and
the Owner shall be considered unauthorized and at the sole expense of the Contractor. Unauthorized work will not be
measured or paid for and no extension of Contract Time will be granted on account thereof. Any unauthorized work
may be ordered removed at the Contractor’s sole cost and expense. The failure of the Owner to direct or order removal
of unauthorized work shall not constitute acceptance or approval of such work nor relieve the Contractor from any
liability on account thereof.
§13.5 OWNER-INITIATED CHANGE PROPOSAL REQUEST
Owner may issue a Change Proposal Request ("CPR"), in writing, to the Contractor, describing a proposed change to
the Work and requesting the Contractor submit an itemized proposal in a format acceptable to Owner within ten (10)
calendar days after Owner’s issuance of the Change Proposal Request. The Contractor’s proposal shall include an
analysis of impacts to cost and time, if any, to perform the extra work, or delete Work, as applicable, including the
effects and impacts, if any, on unchanged Work, estimates of costs (broken down by the categories listed in Section
13.3.4 herein relating to change of the Contract Sum), and Contractor’s proposed methods to minimize costs, delay
and disruption to the performance of the Work. If Contractor fails to submit a written proposal within such period of
time, it shall be presumed that the change described in the Owner’s Change Proposal Request will not result in an
increase to the Contract Sum or Contract Time and the change shall be performed by Contractor without such
increases. A Change Proposal Request does not authorize the Contractor to commence performance of the changed
work. Contractor shall not confirm any change until receipt of Owner’s written approval. If the Owner approves
Contractor’s proposal, Owner will issue a Change Order or Construction Change Directive.
§13.6 CONTRACTOR-INITIATED CHANGE ORDER REQUEST
If the Contractor alleges that instructions issued after the date of the Contract will result in increases to the Contract
Sum or Contract Time, if latent or unforeseen conditions require modification of the Contract Documents, or the
Contractor otherwise becomes aware of the need for or desirability of a change in the Work, a Change Order Request
®
®
(1296196457)
31
("COR") may be submitted to the Owner in writing, in a format acceptable to Owner, and must specify the reasons for
such change, including relevant circumstances and impacts on the Construction Schedule. Contractor shall submit a
written price proposal, as described in Section 13.5 above, concurrently with the COR. The Contractor may request
additional compensation and/or time through a COR but not for instances that occurred more than five (5) calendar
days prior to the COR. Contractor’s failure to initiate a COR within such period shall be deemed a waiver of the right
to adjustment of the Contract Sum or the Contract Time for the alleged change. Any COR that is approved by the
Owner will be incorporated in a Change Order or Construction Change Directive. If the Owner determines that the
Work in question is not a change, the Owner will issue a Work Directive, ordering the Contractor to proceed with the
Work without delay. If the COR is denied but the Contractor believes that it does have merit, the Contractor may
submit a Claim in accordance with the procedures set forth in Article 21 below.
§13.7 CONTRACTOR’S GOOD FAITH REVIEW OF SUBCONTRACTOR REQUESTS FOR CHANGES AND EXTRA W
ORK
Contractor shall make a good faith determination of the validity of the nature and amount of changes requested by
Subcontractors before passing through such requests to Owner. It is the Contractor’s responsibility to check all
Subcontractor and supplier questions for correctness, completeness, detail and fairness before submitting to Owner.
§ 14.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement
the Contractor confirms that the Contract Time is a reasonable period for performing Unless otherwise provided,
Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for
§ 14.2 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in
the Contract Documents for Substantial Completion of the Work.The term "day" as used in this Agreement shall mean
a calendar day of 24 hours beginning at 12:00 midnight. The term "Working Day" shall mean any calendar day except
Saturdays, Sundays and legal holidays observed at the locale of the Project.
§ 14.3 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically
defined.date of Substantial Completion is the date certified by the Architect in accordance with Section 15.4.3.
§ 14.4 The date of Substantial Completion is the date certified by the Architect in accordance with Section 15.4.3.
§ 14.4 PROGRESS AND COMPLETION
§ 14.4.1 Time limits stated in the Contract Documents are of the essence of the Contract. By signing the Agreement the
Contractor confirms that the Contract Time is a reasonable period for performing the Work.
§ 14.4.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article 17 to be
furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective
date of such insurance.
§ 14.4.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion
within the Contract Time.
§ 14.5 If the Contractor is delayed at any time in the commencement or progress of the Work by changes ordered in the
Work, by labor disputes, fire, unusual delay in deliveries, abnormal adverse weather conditions not reasonably
anticipatable, unavoidable casualties or any causes beyond the Contractor’s control, or by other causes which the
Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such
reasonable time as the Architect may determine, subject to the provisions of Article 21.
DELAYS AND EXTENSIONS OF TIME
§ 14.5.1 Delays to Critical Path. Extensions of time, when granted, will be based upon the effect of delays to the Critical
Path of the Work as a whole and will not be granted for non-controlling delays to included portions of Work unless it
can be shown that such delays did, in fact, delay the progress of the Work as a whole.
§ 14.5.2 Conditions to Time Extensions. The Contract Time shall be extended only if, in the opinion of City, the
Contractor is necessarily delayed in completing the Contract by a cause that meets all of the following conditions:
®
®
(1296196457)
32
.1
.2
.3
.4
.5
.6
Such cause is beyond the control of Contractor, its Subcontractors, or material suppliers and is not due,
in whole or in part, to the breach, negligence or fault of Contractor, its Subcontractors, or material
suppliers;
Such cause arises after the Bid Deadline and neither was nor could have been anticipated before the Bid
Deadline;
The effect of such cause could not be anticipated and avoided or mitigated by the exercise of all
reasonable precautions, efforts and measures by the Contractor, including re-planning, scheduling and
re-sequencing;
Such cause, in fact, results in a delay in the performance of the Critical Path of the Work, which is not
thereon thereafter recovered;
Contractor has given notice thereof and provided the back-up documentation and analysis as required
by the Contract Documents or as requested by the Architect or Owner including but not limited to
as-planned versus as-built schedules; and
The Contractor has exercised all reasonable precautions, efforts and measures to accomplish such
changes in the Work without extending the date for Substantial Completion.
§ 14.6.3 Excusable Noncompensable Delay.
.1
Definition. The Parties acknowledge that "Force Majeure" events, defined herein are not within the
responsibility or control of Owner or are reasonably contemplated by the Parties to occur during the
course of performance of the Work, which may impact the schedule for performance of the Work and
may entitle Contractor to an extension of the Contract Time ("Excusable Noncompensable Delays"). If
the Critical Path of the Work is delayed by Excusable Noncompensable Delays, provided that such
delays did not result from the acts of Contractor and further provided that Contractor takes reasonable
precautions to prevent further delays owing to such causes, then the Contract Time and/or Milestones
shall be extended by a Change Order or Construction Change Directive. "Force Majeure" means any of
the following events, which materially and adversely affect Contractor’s obligations hereunder:
earthquakes; acts of god, epidemic, blockade, embargoes, rebellion, war, terrorism, national
emergency, riot, act of sabotage, or civil commotion; industry-wide labor strike which has a material
adverse impact on the Work; discovery of any archaeological, paleontological or cultural resources;
spill of hazardous substances by a third party at or near the Site which is required to be reported to the
California Environmental Protection Agency, Department of Toxic Substances Control; discovery at,
near, or on the site of any species listed as "threatened" or "endangered" under the Federal or State
Endangered Species Act; unusually severe weather conditions (subject to the allowance for Rain Days
established in Section 14.6.4).
.2
Sole Remedy. An extension to the Contract Time identified in the Contract Documents shall be the
Contractor’s sole remedy for Excusable Noncompensable Delays. In no event shall Contractor be
entitled to any compensation or recovery of any damages in connection with the Excusable
Noncompensable Delays defined above.
§ 14.6.4 Rain Delays. For purposes of granting time extensions resulting from rain more severe than normal, which
was not foreseeable, the Contractor and the Owner agree that the impact of normal rainfall for which the Contractor is
not entitled to a time extension is defined by the number of expected Working days of delay (based on a five (5)
calendar day work week) caused by normal rainfall, which is sixteen (16) Working Days per year.
In scheduling the Work, the Contractor shall account for the above number of Working Days by month for which the
effects of normal rainfall are expected to prevent Work. In the event the Contractor works a regularly scheduled work
week other than five (5) days per week, the above numbers shall be multiplied by the ratio of the actual average
number of work days per week divided by five (5) calendar day work week.
§ 14.6.5 Excusable Compensable Delay. "Excusable Compensable Delay" means any delay to the Critical Path of the
Work occurring after commencement and prior to Substantial Completion of the Work: 1) which directly impacts the
date for Substantial Completion established in the Agreement; 2) for which Owner is responsible, is unreasonable
under the circumstances involved and not within the contemplation of the Parties; 3) is not due, in whole or in part, to
the breach, negligence, or fault of Contractor, its Subcontractors, or Suppliers. Contractor’s remedy for Excusable
Compensable Delay shall be extension of the date for Substantial Completion and Milestones subject to the
requirements of Section 14.6.2 and reimbursement of actual costs directly resulting from such delays and Contractor’s
Fee established according to Article 13 herein.
®
®
(1296196457)
33
§ 14.6.6 Inexcusable Delay. "Inexcusable Delay" means any delay in the Critical Path of activities required for
Substantial Completion of the Work resulting from causes other than those deemed to be an Excusable
Noncompensable Delay or an Excusable Compensable Delay by these General Conditions. An Inexcusable Delay
shall not entitle Contractor to either an extension of the date for Substantial Completion or Milestones or to any
additional compensation whatsoever.
§ 14.6.7 Concurrent Delays.
.1
To the extent the Contractor is entitled to an extension of time due to an Excusable Noncompensable
Delay or to an Excusable Compensable Delay, but the performance of the Work is independently
suspended, delayed, or interrupted by an Inexcusable Delay, the delay shall be deemed to be a
"Concurrent Delay."
.2
In the case of a Concurrent Delay, Contractor shall be entitled to an extension of the Contract Time,
Contractor shall not be liable for Liquidated Delay Damages during the period of Concurrent Delay,
and Contractor shall not be entitled to any additional compensation whatsoever during the period of
Concurrent Delay.
§ 14.6.9 Claim for Additional Time. Any claim for extension of time shall be made in writing within the time limits
provided in Section 21.1.1 herein. Within ten (10) calendar days after commencement of such delay the Contractor
shall furnish the 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 including an as-planned versus as-built schedule. The Contractor acknowledges the extreme importance of
promptly notifying and thoroughly documenting any request for time extension and further specifically acknowledges
that Owner will suffer extreme prejudice should Contractor fail in any way to comply with this requirement.
§ 14.6.10 No extension of Contract Time or adjustment of the Contract Sum will be granted for a delay caused by a
shortage of materials, unless the Contractor furnishes to the Owner documented proof that the Contractor has
diligently made every effort to obtain such materials from every known source within reasonable reach of the Work.
The 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 the 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 Bid Deadline.
§ 14.6.11 No extension of time will be granted under this Article 14 for any delay to the extent: (1) that performance
would have been so delayed by any Contractor induced causes, including but not limited to the fault or negligence of
the Contractor or its Subcontractors; or (2) for which any remedies are provided for or excluded by any other provision
of the Contract.
§ 14.6.12 Change Orders for Excusable Noncompensable Delay and Excusable Compensable Delay. Owner shall issue a
Change Order or a Construction Change Directive for any time extensions, and compensation, if any, allowed under
this Article. The Change Order or Construction Change Directive shall set forth the net days of extension of the
Contract Time, and any reimbursement of costs and Contractor’s Fee, as applicable. At Owner’s sole discretion, a
Change Order or Construction Change Directive under this section may by issued at any time up to, but prior to, the
§ 14.6.13 No Release of Sureties. An extension of time granted shall not release the sureties from their obligations.
Work shall continue and be carried on in accordance with all the provisions of the Contract and the Contract shall be
and shall remain in full force and effect during the continuance and until the completion and the Board’s final
acceptance of the Work covered by this Contract unless formally suspended or annulled in accordance with the terms
of the Contract Documents.
§ 14.6.14 No Waiver by Owner. Neither the grant of an extension of time beyond the date fixed for the completion of
any part of the Work nor the doing and acceptance of any part of the Work or materials specified by this Contract after
®
®
(1296196457)
34
the time specified for the completion of the Work, shall be deemed to be a waiver of any other rights and remedies
under the Contract.
§ 14.6.15 Risk of Costs for Delays. As between the Contractor and Owner, the Contractor assumes the risk of any and
all costs, expenses and liabilities which the Contractor may incur in connection with all suspensions of, disruption of,
or delays in performance of the Contract, regardless of the length thereof, arising from all causes whatsoever, except
that the Contractor may be compensated for Excusable Compensable Delays as defined herein. If the Contractor
sustains loss as a consequence of Excusable Compensable Delays, which could not have been avoided by the judicious
handling of forces, equipment and plant, there may be paid to the Contractor actual costs directly resulting from the
delay and markup established in accordance with Article 13. For Excusable Noncompensable Delays, Contractor
shall be entitled to an extension of the Contract Time but Contractor shall not be entitled to compensation or additional
payment due to such delays.
§ 14.6.16 Owner is Exempt From Liability for Early Completion Delay Damages. While the Contractor may schedule
completion of all of the Work, or portions thereof, earlier than the Contract Time, the Owner is exempt from liability
for and the Contractor shall not be entitled to an adjustment of the Contract Sum or to any additional costs, damages,
including but not limited to claims for extended general conditions costs, home office overhead, jobsite overhead and
management or administrative costs, or compensation whatsoever, for use of Float or for Contractor’s inability to
complete the Work earlier than the Contract Time for any reason whatsoever, including but not limited to, delay
caused by Owner or other Excusable Compensable Delay.
§ 14.6.17 Continuation of the Work. If the construction of the Work is not completed within the Contract Time, as may
be extended by the Owner, the Contractor shall continue performing the Work in accordance with the Contract
Documents until the completion of and the acceptance of the Work, or Contractor’s performance is suspended or
terminated.
PAGE 34
§ 15.1.1 Where the Contract is based on a Stipulated Sum or the Cost of the Work with a Guaranteed Maximum Price,
the Contractor shall submit to the Architect, before the first Application for Payment, a schedule of values, allocating
the entire Contract Sum to the various portions of the Work, prepared Prior to signing the Agreement, the Contractor
shall submit to the Owner a Preliminary Schedule of Values for Payment allocating the Contract Sum to portions of the
Work in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule,
unless objected to by the Architect, shall be used in reviewing the Contractor’s Applications for Payment.Owner may
require. The properly balanced Preliminary Schedule of Values shall be attached as Exhibit B to the Agreement.
Prior to submission of the first Application for Payment, the Contractor shall submit a detailed properly balanced
schedule of values for payment. If the Architect and Owner determine that the detailed Schedule of Values is
reasonable and properly balanced, it will be accepted by Owner and used as the basis for measuring payment due
Contractor and for pricing potential deleted Work ("Schedule of Values"). Payment will be made based upon the
Architect’s confirmation of the percentage of Work completed. The Contractor shall utilize AIA Documents G702 and
G703, Application for Payment and Schedule of Values, unless the Owner authorizes the Contractor to utilize
different forms. Applications for payment shall show the percentage of completion of each portion of the Work as of
the end of the period covered by the Application for Payment and shall separately itemize Work covered by Change
Orders and Construction Change Directives. On the 25th day of each month, the Contractor shall submit to the Owner
and Architect an itemized Application For Payment for operations completed in accordance with the Schedule of
Values. Such Application shall be supported by such data substantiating the Contractor’s right to payment as the
Owner or Architect may require, including the following items, receipt of which shall be deemed a condition
precedent to the Owner’s disbursement of progress payments:
(1)
Duly completed and executed forms of Conditional Waiver and Release Upon Progress Payment in
accordance with California Civil Code Section 8132 and completed Declarations to Procure
file stop payment notices in connection with the portion of the Work covering the current progress
payment requested (see Appendix 2 of the Bidding Documents);
(2)
Duly completed and executed forms of Unconditional Waiver and Release Upon Progress Payment
in accordance with California Civil Code Section 8134 and completed Declaration to Procure
®
®
(1296196457)
35
file stop payment notices in connection with the Work covering the progress payment received by
Contractor under the prior Application for Payment (see Appendix 2 of the Bidding Documents);
(3)
Updated Construction Schedule;
(4)
Any Payment made by Owner to Contractor in the absence of any of the preceding documents in no
way relieves the Contractor from providing all these documents for the current and/or any future
Application for Payment;
(5)
At its sole discretion, Owner reserves the right to request an executed subcontract including bonds,
insurance certificates, and endorsements and all other exhibits and attachments for each item of
material, labor and service for which a disbursement has been requested; and
(6)
Such other documentation as the Owner may reasonably require to substantiate Contractor’s right to
payment.
§ 15.1.2 With each Application for Payment where the Contract Sum is based upon the Cost of the Work, or the Cost
of the Work with a Guaranteed Maximum Price, the Contractor shall submit payrolls, petty cash accounts, receipted
invoices or invoices with check vouchers attached, and any other evidence required by the Owner to demonstrate that
cash disbursements already made by the Contractor on account of the Cost of the Work equal or exceed (1) progress
payments already received by the Contractor, less (2) that portion of those payments attributable to the Contractor’s
Fee; plus (3) payrolls for the period covered by the present Application for Payment.Such Applications shall not
include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor or material supplier
because of a dispute or other reason, or as to which an appropriate conditional or unconditional waiver and release of
rights, stop payment notice release, or stop payment notice release bond has not been filed.
§ 15.1.3 Payments shall be made on account of materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for
materials and equipment stored, and protected from damage, off the site at a location agreed upon in writing. Owner
shall make payment to Contractor only for Work that is complete and installed. Payment for materials stored on-site
will be at the sole discretion of the Owner. Original detailed copies of invoices, acceptable to the Owner, will be
required as backup for payment requests for stored materials. If paid, stored materials will be paid at actual itemized
invoice amount with no mark up. No payment will be made for materials stored offsite.
§ 15.1.4 Contractor Warranty of Project. The Contractor warrants that title to all Work covered by an Application for
Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal
of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments
received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of
liens, claims, security interests or other encumbrances adverse to the Owner’s interests.encumbrances in favor of the
Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having
provided labor, materials, and equipment relating to the Work. This provision shall not relieve the Contractor from the
responsibility for materials and Work upon which payments have been made, the restoration of damaged Work or as
waiving the right of the Owner to require the fulfillment of the terms of the Contract.
§ 15.1.5 Payments shall be made pursuant to the Schedule of Values only. Anticipation of Work to be completed after
the pay period shown on payment requests will not be allowed. Billing will be allowed for the pay period only.
§ 15.1.6 Substantial Completion does not constitute approval for Final Payment nor does final acceptance of the Work.
§ 15.1.7 Payment requests will be rejected, or delay due to lack of, or improper, releases or other improper or
incomplete documents required to be submitted with Application for Payment, as determined by the Owner.
§ 15.1.8 First Application for Payment. The following items must be completed and submitted to Owner by the
Contractor prior to processing the first payment request:
.1
.2
.3
.4
.5
.6
List of all Subcontractors, regardless of value of Work to be performed, and suppliers, with names,
addresses, telephone numbers and license numbers.
Schedule of Values, including Unit Prices.
Copies of necessary permits.
Copies of authorizations and licenses from governing authorities for performance of the Work.
Certificates of insurance, endorsements, and, if requested, policies.
Performance and payment bonds (due fifteen (15) days after award and tender of Contract).
®
®
(1296196457)
36
.7
.8
Resume of Contractor’s Designated Representative.
Schedule of Submittals.
PAGE 35
§ 15.2.1 The Architect will, within seven (7) days after receipt of the Contractor’s Application for Payment, either
issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect
determines is properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding
certification in whole or in part as provided in Section 15.2.3.
PAGE 36
§ 15.2.3 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary
make such representations to the Owner. The Architect may also withhold a Certificate for Payment or, because of
subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to
such extent as may be necessary in the Architect’s opinion to protect the Owner from loss for which the Contractor is
responsible, including loss resulting from acts and omissions described in Section 9.2.2, because of
.1
.2
.3
equipment;
.4
.5
.6
.7
repeated failure to carry out the Work in accordance with the Contract Documents.
§ 15.2.4 When the above reasons for withholding certification are removed, certification will be made for amounts
§ 15.2.3 Decisions to Withhold Certification.
§ 15.2.3.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary
make such representations to the Owner. The Architect shall also decline to certify and the Owner may refuse to make
payment or, because of subsequently discovered evidence or subsequent observations, the Architect or Owner shall
nullify the whole or any part of any Certificate for Payment previously issued, to such extent as may be necessary to
protect the Owner from loss because of
.1
.2
.3
equipment;
.4
.5
.6
.7
repeated failure to carry out the Work in accordance with the Contract Documents;
.8
retesting of nonpassing tests; reimbursement for inspections, overtime and minimum times not used;
.9
anticipated and/or actual breach of terms and conditions of Contract Documents;
®
®
(1296196457)
37
.10
.11
.12
.13
.14
.15
.16
Liquidated Damages;
payments which may be past due and payable for just claims against Contractor or any Subcontractor
for labor or materials furnished in and about the performance of Work on the Project under this
Contract;
improper, incomplete or unacceptable documents, releases or backup materials;
alleged breach of terms and conditions of Contract Documents;
disputed items and issues;
rejection of the Work or any part of the Work by any governmental authority having jurisdiction over
the Project; or
such other sums the Owner is entitled to recover from Contractor.
§ 15.2.3.2 When the above reasons for withholding certification are removed, certification will be made for amounts
§ 15.2.3.3 If at any time there shall be evidence of the existence, whether or not same has been asserted, of any
mechanics lien, stop payment notice or claim arising out of or in connection with the performance or default in
performance of this Contract or any subcontract or supply contract entered into by Contractor to perform this Contract,
and if the Owner might become liable for the discharge of or satisfaction of such mechanics lien, stop payment notice
or claim, then the Owner shall have the right to retain out of any payment then due or thereafter to become due, in
addition to the amounts set forth above, an amount sufficient to discharge such mechanics lien, stop payment notice or
satisfy such claim and to reimburse the Owner and the representatives of the Owner for all costs and expenses in
connection therewith, including attorneys’ fees. Further, the Owner, in its sole discretion, shall have the right to
discharge or satisfy such mechanics lien, stop payment notice or claim and pay all costs and expenses in connection
therewith if the Contractor does not have such stop payment notice or claim discharged or satisfied within ten days
after receiving notice thereof from Owner or unless some other procedure for discharge or satisfaction of such lien or
claim is agreed upon between Owner and Contractor. If the amounts retained are insufficient for the aforesaid
purposes, or if such mechanics lien, stop payment notice or claim remains undischarged or unsatisfied after all
payments have been made to the Contractor, then the Contractor shall refund to the Owner all monies that may have
been paid to discharge such lien or satisfy such claims, including the costs, expenses and attorney’s fees in connection
therewith.
§ 15.3.1 The Contractor shall pay each Subcontractor, no later than seven (7) days after receipt of payment, the amount
to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on
account of the Subcontractor’s portion of the Work. The Contractor shall, by appropriate agreement with each
Subcontractor, require each Subcontractor to make payments to sub-subcontractors in similar manner.
§ 15.3.2 Neither the Owner nor Architect shall have an obligation to pay or see to the payment of money to a
Subcontractor except as may otherwise be required by law. Owner, however, reserves the right to make payments to
Contractor in the form of checks payable jointly to Contractor and any of its Subcontractors or material suppliers that
might have the right to assert a lien or stop payment notice claim against the Owner.
PAGE 37
§ 15.4.1 Definition. Substantial Completion is defined to mean the stage in the progress of the Work when the Work or
designated portion thereof when: (1) the Work is sufficiently complete in accordance with the Contract Documents as
determined by the Architect and certified by the Owner so that the Owner can occupy or utilize the Work for its
intended use.use; (2) the Project, or designated portion, is available for the use by Owner; (3) a temporary certificate of
occupancy or equivalent building inspector sign-off has been issued by the applicable governmental authority; (4) all
systems included in the Work are operational as designed, tested and adjusted; (5) all final finishes required by the
Contract Documents are in place and final cleaning is completed; and (6) Contractor has submitted to Owner a written
certification that all remaining Work shall be completed within thirty (30) calendar days following the Date of
Substantial Completion and that Record Drawings and reproducible As-Built Drawings will be completed and
submitted to Owner within thirty (30) days following the date of Substantial Completion and as a condition to receipt
of Final Payment.
§ 15.4.2 Contractor’s Request for Inspection and Contractor’s Punch List. When the Contractor considers that the
Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall
®
®
(1296196457)
38
prepare and submit to the Owner and Architect a comprehensive list of items to be completed or corrected prior to final
payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work
in accordance with the Contract Documents.
§ 15.4.3 Owner’s Inspection. Upon receipt of the Contractor’s list, the Owner and/or Architect will make an inspection
to determine whether the Work or designated portion thereof is substantially complete. When the Architect determines
that If the inspection discloses any item, whether or not included on the list, which is not sufficiently complete in
accordance with the requirements of the Contract Documents so that the Owner can occupy or utilize the Work or
designated portion thereof is substantially complete, the Architect will issue a Certificate of Substantial Completion
which shall establish the date of Substantial Completion, establish responsibilities of the Owner and Contractor for
security, maintenance, heat, utilities, damage to the Work and insurance, and fix the time within which the Contractor
shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall
commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided
in the Certificate of for its intended use, the Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then
submit a request for another inspection by the Architect to determine Substantial Completion.
§ 15.4.4 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written
acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any,
the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall
be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents.Notice
of Substantial Completion. When the Architect determines that the Work or designated portion thereof is substantially
complete, the Owner will issue a Certificate of Substantial Completion which shall establish the date of Substantial
Completion, establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to
the Work and insurance, and fix the time within which the Contractor shall finish all items on the list accompanying
the Certificate. Warranties required by the Contract Documents shall commence on the date of Final Completion of
the Work.
§ 15.4.5 Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to the
Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate.
…
§ 15.5.1 Final Inspection. Upon receipt of the Contractor’s written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and,
when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the
Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect’s knowledge,
information and belief, and on the basis of the Architect’s on-site visits and inspections, the Work has been completed
in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the
Contractor and noted in the final Certificate is due and payable. The Architect’s final Certificate for Payment will
constitute a further representation that conditions stated in Section 15.5.2 as precedent to the Contractor’s being
entitled to final payment have been fulfilled.
PAGE 38
§ 15.5.2.1 Affidavit of Final Completion and Final Payment. The Contractor shall, upon completion of the Work and
final cleaning up, submit to Owner a sworn Affidavit of Final Completion in the form attached in Appendix 2 of the
Bidding Documents. Disputed Contract Claims in stated amounts may be excluded by the Contractor from the
operation of the release. Within thirty (30) calendar days after receipt of the Affidavit of Completion, Owner will
inspect the Work and will either (1) reject the Affidavit of Final Completion, specifying the defective and/or
uncompleted portions of the work, or (2) accept the Affidavit of Final Completion and submit a request to the City
Council for final acceptance of the Work.
§ 15.5.2.2 Rejection and Revision. If Owner rejects the Affidavit of Final Completion, specifying defective and/or
uncompleted portions of the Work, the Contractor shall promptly remedy the defective and/or uncompleted portions of
the Work. Thereafter, the Contractor shall give Owner a revised Affidavit of Final Completion with a new date based
®
®
(1296196457)
39
on when the defective and/or uncompleted portions of the Work were corrected. The foregoing procedure shall apply
successively thereafter until Owner accepts Contractor’s Affidavit of Final Completion.
§ 15.5.2.3 Documentation. In addition to the requirements for Final Payment set forth in the other Contract
Documents, the Final Payment shall not become due until (i) Contractor has fully performed the Contract, including
all Punch List work; (ii) sixty (60) calendar days have elapsed since the Owner records a Notice of Completion, or
such lesser time as may be authorized by Owner in writing; and (iii) Contractor has submitted to the Owner:
.1
A full, complete and proper Final Application for Payment showing the proposed total amount due the
Contractor, segregated as to Contract Schedule of Values quantities, changes in the Work, and other
basis for payments; deductions made or to be made for prior payments; amounts to be retained; any
Claims the Contractor intends to file at that time or a statement that no Claims will be filed; and any
unsettled Claims, stating amounts;
.2
Duly completed and executed forms of Conditional Waiver and Release Upon Final Payment in
Declaration to Procure Final Payments and Release of Contract Rights from Contractor, Subcontractors
Work, covering the final payment period (see Appendix 2 of the Bidding Documents);
.3
Duly completed and executed forms of Unconditional Waiver and Release Upon Progress Payment in
Declaration to Procure Final Payment and Release of Contract Rights from Contractor, Subcontractors
Work, covering the previous payment period (see Appendix 2 of the Bidding Documents);
.4
Completed and executed Sworn Statement and Warranty Regarding Continuing Insurance Obligation
(see Appendix 2) from Contractor and, if requested by Owner, from Subcontractors, attaching
endorsements, evidencing that insurance required by the Contract Documents to remain in force after
Final Payment, if any, is currently in effect and will not be canceled or allowed to expire until at least
thirty (30) days’ prior written notice has been given to the Owner;
.5
A written statement that the Contractor knows of no substantial reason that the insurance will not be
renewable to cover the period required by the Contract Documents;
.6
Consent of surety(ies) to Final Payment;
.7
Final Local Business Participation Report (Appendix 2);
.8
The required Record Documents and As-Built Drawings and Specifications (in reproducible format)
including, but not limited to, accepted Shop Drawings and other Submittals;
.9
Documentation that Contractor has inspected, tested, and adjusted performance of every system or
facility of the Work to ensure that overall performance is in compliance with terms of the Contract
Documents;
.10 The operating manuals for operating and maintaining the Work;
.11 Four (4) copies of all warranties from vendors and Subcontractors, operation and maintenance
manuals, instructions and related agreements, equipment certifications and similar documents, and
maintenance and operating instructions; and
.12 Such other documents as Owner may reasonably require.
§ 15.5.2.4 Release of Stop Payment Notices. If a Subcontractor or supplier refuses to furnish a release or waiver
required by Owner or files a stop payment notice, the Contractor shall, upon Owner’s request, furnish a bond
satisfactory to the Owner to release the stop payment notice and shall otherwise fully indemnify the Owner against
such stop payment notice and Owner shall enforce its right under Section 15.2.3 herein.
§ 15.5.2.5 Disbursement of Final Payment. Provided that the Owner is then in receipt of all documents and other items
in Section 15.5.2.3 above, and in compliance with Section 15.5.2.4 above, as conditions precedent to the Owner’s
obligation to disburse Final Payment, not later than sixty (60) calendar days following Final Acceptance; the Owner
shall disburse the Final Payment to the Contractor. Pursuant to Public Contract Code § 7107, if there is any dispute
between the Owner and the Contractor at the time that disbursement of the Final Payment is due, the Owner may
withhold from disbursement of the Final Payment an amount not to exceed one hundred fifty percent (150%) of the
amount in dispute.
§ 15.5.3 The making of final payment shall Final Payment shall not constitute a waiver of claims by the Owner except
those arising fromarising from:
®
®
(1296196457)
40
.1
.2
.2
.3
.5
liens, claims, security interests or encumbrances arising out of the Contract and unsettled;unsettled stop
payment notices;
faulty or defective Work appearing after Final Completion of the Work;
.3 failure of the Work to comply with the requirements of the Contract Documents;or
.4 terms of any special warranties required by the Contract Documents.Documents;
any other cause, unless specifically waived by the Owner in writing.
§ 15.5.4 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver
of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of
final Application for Payment.
§ 15.5.4 Acceptance of Final Payment by the Contractor, a Subcontractor, or material supplier shall constitute a
waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the
time of final Application for Payment.
§ 15.5.5 Any lien, stop payment notice or other claim, filed or asserted after the Contractor’s acceptance of the Final
Payment, by any Subcontractor, laborer, material supplier, or others, in connection with or for Work performed under
the Contract Documents shall be the sole and exclusive responsibility of the Contractor who further agrees to
indemnify, defend and hold harmless the Owner and its officers, agents and employees from and against any claims,
demands or judgment arising out of or associated therewith, including, without limitation, attorneys’ fees incurred by
the Owner in connection therewith.
§ 15.6 STATUTORY PAYMENT OBLIGATIONS
§ 15.6.1 This Contract is subject to the following provisions of California Public Contract Code Section 20104.50
which provides as follows:
§ 15.6.1.1 It is the intent of the Legislature in enacting this section to require all local governments to pay their
contractors on time so that these contractors can meet their own obligations. In requiring prompt payment by all local
governments, the Legislature hereby finds and declares that the prompt payment of outstanding receipts is not merely
a municipal affair, but is, instead, a matter of statewide concern.
§ 15.6.1.2 It is the intent of the Legislature in enacting this article to fully occupy the field of public policy relating to
the prompt payment of local governments’ outstanding receipts. The Legislature finds and declares that all
governmental officials, including those in local government, must set a standard of prompt payment that any business
in the private sector that may contract for services should look toward for guidance.
§ 15.6.1.3 Any local agency which fails to make any progress payment within thirty (30) days after receipt of an
undisputed and properly submitted payment request from a Contractor or construction Contract shall pay interest to
the Contractor equivalent to the legal rate set forth in subdivision (a) of § 685.010 of the Code of Civil Procedure.
§ 15.6.1.4 Upon receipt of a payment request, each local agency shall act in accordance with both of the following:
.1
Each payment request shall be reviewed by the local agency as soon as practicable after receipt of the
purpose of determining that the payment request is a proper payment request;
.2
Any payment request determined not to be a proper payment request suitable for payment shall be
returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. A
request returned pursuant to this section shall be accompanied by a document setting forth in writing
the reasons why the payment request is not proper.
§ 15.6.1.5 The number of days available to a local agency to make a payment without incurring interest pursuant to this
section shall be reduced by the number of days by which a local agency exceeds the seven-day return requirement.
§ 15.6.1.6 For purposes of this Article:
.1
A "local agency" includes, but is not limited to, a city, including a charter city, a county, and a city and
county, and is any public entity subject to this part.
.2
A "progress payment" includes all payments due Contractors, except that portion of the final payment
designated by the Contract as retention earnings.
®
®
(1296196457)
41
.3
A payment request shall be considered properly executed if funds are available for payment of the
payment request, and the Financial Officer of the local agency does not delay the payment due to an
audit inquiry.
§ 15.6.1.7 Each local agency shall require that this article, or a summary thereof, be set forth in the terms of any
Contract subject to this Article.
§ 15.6.2 This Contract is subject to the following provisions of California Public Contract Code § 7200 which
§ 15.6.2.1 This section shall apply with respect to all Contracts entered into on or after January 1, 1999, between a
public entity and a original Contractor, between an original Contractor and a Subcontractor, and between all
Subcontractors thereunder, relating to the construction of any public Work of improvement.
§ 15.6.2.2 For purposes of this section, "public entity" means the state, including every state agency, office,
department, division, bureau, board, or commission, a city, county, city and county, including chartered cities and
chartered counties, district, special district, public authority, political subdivision, public corporation, or nonprofit
transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
§ 15.6.2.3 In a Contract between the original Contractor and a Subcontractor, and in a Contract between a
Subcontractor and any Subcontractor thereunder, the percentage of the retention proceeds withheld may not exceed
the percentage specified in the Contract between the public entity and the original Contractor.
§ 15.6.2.4 No party identified in 15.6.1.2 shall require any other party to waive any provision of this section.
§ 15.6.2.5 In the event that the Contractor elects to substitute securities in lieu of retentions, the Contractor may
withhold from its Subcontractors, who have not elected to substitute securities in lieu of retentions, the amount of
retentions that would have otherwise been withheld.
§ 15.6.3 This Contract is subject to the provisions of California Public Contract Code § 22300, a portion of which
§ 15.6.3.1 Any Contractor who elects to receive interest on moneys withheld in retention by a public agency shall, at
the request of any Subcontractor, make that option available to the Subcontractor regarding any moneys withheld in
retention by the Contractor from the Subcontractor. If the Contractor elects to receive any interest on any moneys by
the Contractor on any retention moneys withheld from the Subcontractor by the Contractor, less any actual pro rata
costs associated with administering and calculating that interest. In the event that the interest rate is a fluctuating rate,
the rate for the Subcontractor shall be determined by calculating the interest rate paid during the time that retentions
were withheld from the Subcontractor. If the Contractor elects to substitute securities in lieu of retention, then, by
mutual consent of the Contractor and Subcontractor, the Subcontractor may substitute securities in exchange for the
release of moneys held in retention by the Contractor.
§ 15.6.3.2 This subdivision shall apply only to those Subcontractors performing more than five percent of the
Contractor’s total Bid.
§ 15.6.3.3 No Contractor shall require any Subcontractor to waive any provision of this section.
PAGE 41
.2
.3
.4
the Work and materials and equipment to be incorporated therein, whether in storage on or off the site,
under care, custody or control of the Contractor or the Contractor’s Subcontractors or
Sub-subcontractors; and
other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways,
structures and utilities not designated for removal, relocation or replacement in the course of
construction; and
the public, members of which may utilize the Project sites during construction.
®
®
(1296196457)
42
The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and
regulations, and lawful orders of public authorities bearing on safety of persons and property and their protection from
damage, injury or loss. The Contractor shall promptly remedy damage and loss to property caused in whole or in part
by the Contractor, a Subcontractor, a sub-subcontractor, or anyone directly or indirectly employed by any of them, or
by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 16.1.2 and
16.1.3, except for damage or loss attributable to acts or omissions of the Owner or Architect or by anyone for whose
acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing
obligations of the Contractor are in addition to the Contractor’s obligations under Section 9.15.liable. The foregoing
obligations of the Contractor are in addition to the Contractor’s obligations under Section 9.15.
§ 16.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract, including, without limitation, safety meetings and
training. Contractor’s Injury and Illness Prevention Program (IIPP), established in accordance with Labor Code
§§ 3201.5 and 64017, must be prepared and submitted for the Owner’s review and comment prior to the
preconstruction conference. Contractor shall comply with the review comments of Owner. The IIPP shall include, but
not be limited to, the following elements:
.1
.2
.3
.4
.5
.6
.7
.8
.9
.10
.11
.12
.13
The identity of outside safety consultant or Contractor’s safety officer and on-site safety officer,
responsible for implementing the IIPP;
The Contractor’s system for identifying and evaluating workplace hazards, including the schedule for
the Contractor’s safety inspections to identify unsafe conditions and work practices;
The Contractor’s methods and procedures for correcting unsafe or unhealthy conditions and work
practices in a timely manner;
The type and frequency of occupational health and safety training conducted for Contractor’s personnel
in general safe and healthy work practices with respect to each employee’s job assignment, including
tailgate meetings, lifting training, emergency procedures, etc.;
Information on the types of heavy equipment to be used and the necessary precautions to be taken if
there is an accident;
The Contractor’s system for ensuring that employees comply with the IIPP, which may include
disciplinary action;
A copy of the Contractor’s Hazardous Communications Program;
A list of any possible fire hazards and the fire fighting equipment for the particular site;
A detailed description of hazardous or unusual procedures necessary for the particular site;
Information on any material impact of the construction on the surrounding area including traffic flow,
parking, street closure, utility shutoffs, and pedestrian crossing;
Placement, quantity and type of safety warning lights, signs or other devices during construction;
Written procedures in the event of an injury, fire, or other emergency during construction; and
Description of the location and enclosure of the approved staging area.
Contractor shall be solely responsible for ensuring that all Work of the Project whether performed by Contractor,
Subcontractors, Sub-subcontractors or others, is performed in accordance with the agreed upon IIPP for the Project
and as required by applicable law, ordinance, regulation or governmental orders in connection with performance of the
Work.
§ 16.1.2 At the time of the execution of this agreement, the Contractor shall provide to Owner a Safety Management
Plan, pursuant to the Owner’s standards.
PAGE 42
§ 16.2.2 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor,
Subcontractors, Architect, Architect’s consultants and agents and employees of any of them from and against claims,
damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from
performance of the Work in the affected area, if in fact, the material or substance presents the risk of bodily injury or
death as described in Section 16.2.1 and has not been rendered harmless, provided that such claim, damage, loss or
expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property
(other than the Work itself), except to the extent that such damage, loss or expense is due to the fault or negligence of
®
®
(1296196457)
43
the party seeking indemnity.If, without negligence on the part of the Contractor, the Contractor is held liable by a
government agency for the cost of remediation of a hazardous material or substance solely by reason of performing
Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense
thereby incurred.
§ 16.2.3 If, without negligence on the part of the Contractor, the Contractor is held liable by a government agency for
the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the
Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred.Material
Safety Data Sheets and Compliance With Proposition 65. Contractor is required to comply with the provisions of
California Health and Safety Code section 25249, et seq., which requires the posting and giving of notice to persons
who may be exposed to any chemical known to the State of California to cause cancer. The Contractor agrees to
familiarize itself with the provisions of this section, and to comply fully with its requirements.
§ 16.2.4 Construction and Demolition Waste Management Ordinance.
§ 16.2.4.1 In addition to complying with all applicable federal, state and local laws and regulations, Contractor shall
take note of the specific requirements of the Construction and Demolition Waste Management Ordinance, as material
part of the Work under this Contract in order to divert a minimum of 50% of the construction and demolition debris
resulting from the Work. The Waste Management Plan required by the Ordinance shall be submitted no later than
fifteen (15) calendar days after the Contract award. Contractor shall not commence Work until the waste Management
Plan has been approved by the City’s waste management compliance official. A sample of the City’s forms and
guidelines relating to compliance with the Ordinance is incorporated in the Contract Documents.
§ 16.2.4.2 The Contractor shall be required to certify compliance with the Construction and Demolition Waste
Management Ordinance and provide required documentation during the term of the contract.
§ 16.2.4.3 The cost to comply with the City’s Construction and Demolition Waste Management Ordinance shall be
included in the Unit Prices or lump sum prices for the applicable items of Work listed in the Contractor’s Bid Proposal
and no additional compensation will be allowed.
§ 16.2.4.4 Failure to comply with the provisions of the Construction and Demolition Waste Management Ordinance is
grounds for termination of the contract and a basis for penalties as stated in Pasadena Municipal Code Chapter 8.62.
…
§ 17.1 The Contractor shall purchase from, and maintain in a company or companies lawfully authorized to do
business in the jurisdiction in which the Project is located, insurance for protection from claims under workers’
compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury,
including death, and claims for damages, other than to the Work itself, to property which may arise out of or result
from the Contractor’s operations and completed operations under the Contract, whether such operations be by the
Contractor or by a Subcontractor or anyone directly or indirectly employed by any of them. This insurance shall be
written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage
is greater, and shall include contractual liability insurance applicable to the Contractor’s obligations under Section
9.15. Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the
Work. Each policy shall contain a provision that the policy will not be canceled or allowed to expire until at least 30
days’ prior written notice has been given to the Owner. The Contractor shall cause the commercial liability coverage
required by the Contract Documents to include: (1) the Owner, the Architect and the Architect’s Consultants as
additional insureds for claims caused in whole or in part by the Contractor’s negligent acts or omissions during the
Contractor’s operations; and (2) the Owner as an additional insured for claims caused in whole or in part by the
Contractor’s negligent acts or omissions during the Contractor’s completed operations.
CONTRACTOR’S LIABILITY INSURANCE
§ 17.2 OWNER’S LIABILITY INSURANCE
The Owner shall be responsible for purchasing and maintaining the Owner’s usual liability insurance.
§ 17.1.1 Minimum Scope and Limits. Contractor shall, concurrently with submission to Owner of the signed Agreement
and bonds and, in any event, prior to commencing performance of Work, submit proof of all insurance coverage
required by the Contract Documents for Contractor, its listed Subcontractors, and, upon Owner’s request, other
Subcontractors, Sub-subcontractors, and suppliers. Contractor shall not commence Work, nor shall any
®
®
(1296196457)
44
Subcontractor commence Work, until all insurance documentation has been submitted to and approved by Owner.
Contractor shall procure and maintain, policies of insurance in the types, and limits set forth below, with a company or
companies lawfully licensed and authorized to do business in the State of California, so as to protect Owner and
claimants under the state insolvency or guarantee fund, or otherwise under such forms and limits satisfactory to the
Owner with a company or companies approved by Owner, following Owner’s examination of the company’s
financial, reinsurance, claims procedures and other data requested by the Owner. Contractor shall procure and
maintain insurance for protection from claims that may arise out of, pertain to, or relate to Contractor’s operations and
completed operations under the Contract, whether such operations are by the Contractor, its Subcontractors, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Such insurance
shall provide coverage for claims including, but not limited to, the following:
(1)
Claims under workers’ compensation, disability benefit, and other similar employee benefit acts
that are applicable to the Work performed;
(2)
Claims for damages because of bodily injury, occupational sickness or disease, or death of the
Contractor’s employees;
(3)
Claims for damages because of bodily injury, sickness or disease, or death of any person other than
the Contractor’s employees;
(4)
Claims for damages insured by usual personal injury liability coverage which are sustained: (i) by
any person as a result of an offense directly or indirectly related to the employment of such person
by the Contractor, or (ii) by any other person;
(5)
Claims for damages, including to the Work itself, because of injury to, or destruction of, tangible
property, including loss of use resulting therefrom;
(6)
Claims for damages because of bodily injury or death of any person or property damage arising out
of the ownership, maintenance, or use of any motor vehicle;
(7)
Claims for bodily injury or property damage arising out of completed operations;
(8)
Claims involving contractual liability insurance applicable to the Contractor’s obligations under
Section 3.18;
(9)
Claims for errors and omissions in professional services provided under the requirements of the
Contract Documents, if any; and
(10)
Claims for third party liability and remediation costs stemming from pollution incidents that result
from the operations of Contractor, its Subcontractors, Sub-subcontractors and suppliers.
The cost of all insurance required under the Contract Documents shall be included in the Contractor’s Bid and in the
Contract Sum. All coverages (except professional liability, if applicable) shall be written on an occurrence basis and
shall be maintained without interruption from the date of commencement of the Work until the date of final payment;
additionally, completed operations coverages shall be maintained after final payment (see below).
§ 17.1.1.1 Business Automobile Liability including owned, hired, leased and non-owned vehicles, whether scheduled
or not, written on Insurance Services Office (ISO) form CA 00 01 (12/93 or later edition) or a substitute form
providing equivalent coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage.
The policy shall be scheduled as underlying insurance to the Umbrella or Excess Policy required herein.
§ 17.1.1.2 Commercial General Liability written on an Insurance Services Office (ISO) Commercial General Liability
"occurrence" form CG 00 01 (10/01 or later edition) or equivalent form approved by Owner for coverage on an
occurrence basis. The insurance shall cover liability, including, but not limited to, that arising from premises
operations, stop gap liability, independent contractors, products-completed operations, personal injury, advertising
injury, and liability assumed under an insured contract. The policy shall be endorsed to provide the Aggregate Per
Project Endorsement ISO form CG 25 03 (11/85). Coverage shall contain no contractors’ limitation or other
endorsement limiting the scope of coverage for liability arising from pollution, explosion, collapse, or underground (x,
c, u) property damage. Contractor shall provide Products/Completed Operations coverage to be maintained
continuously for a minimum of three (3) years after Final Completion. The policy shall be scheduled as underlying
insurance to any Umbrella of Excess Policy required herein.
§ 17.1.1.3 Contractor’s Pollution Liability Insurance providing coverage on a form acceptable to Owner for liability
caused by pollution conditions arising out of the operations of Contractor. Coverage shall apply to bodily injury,
property damage (including loss of use of damaged property or of property that has not been physically injured),
cleanup costs, and defense (including costs and expenses incurred in the investigation, defense, or settlement of
claims). All activities contemplated in this Contract shall be specifically scheduled on the policy as "covered
®
®
(1296196457)
45
operations." The policy shall provide coverage for the hauling of waste from the Project Site to the final disposal
location, including non-owned disposal sites. Coverage shall be included on behalf of the insured for covered claims
arising out of the actions of independent contractors. If the insured is using Subcontractors, the policy must include
work performed "by or on behalf" of the insured. The policy shall specifically provide for a duty to defend on the part
of the insurer. Such insurance shall include coverage for all operations, including completed operations and
professional services. Such insurance shall not contain any exclusion for asbestos or lead. Contractor’s pollution
liability coverage shall be maintained continuously for a minimum of three (3) years after Final Completion.
§ 17.1.1.4 Workers’ Compensation. Contractor shall comply with the applicable sections of the California Labor Code
concerning workers’ compensation for injuries on the job. Compliance is accomplished in one of the following
manners:
(1)
Provide a copy of permissive self-insurance certificate approved by the State of California; or
(2)
Secure and maintain in force a policy of workers’ compensation insurance with statutory limits and
Employer’s Liability Insurance with a minimal limit of $1,000,000 per accident; or
(3)
Provide a "waiver" form certifying that no employees subject to the Labor Code’s Workers’
Compensation provision will be sued in performance of this Contract.
§ 17.1.1.5 Excess or Umbrella Liability Insurance shall be at least as broad as any underlying coverage. Coverage shall
be provided on a "pay on behalf" basis, with defense costs payable in addition to policy limits. There shall be no cross
liability exclusion and no contractor’s limitation endorsement. The policy shall have starting and ending dates
concurrent with the underlying coverages. The Named Insured may determine the layering of primary and excess
liability insurance provided that if such layering differs from that described here, the actual coverage program meets
the minimum total required limits and complies with all other requirements listed in this Article 17. Contractor’s
excess or umbrella liability coverage shall be maintained continuously for a minimum of three (3) years after Final
Completion.
§ 17.1.1.6 Minimum Limits of Insurance. Contractor shall maintain limits of insurance no less than as follows:
.1
Commercial General Liability Insurance: $1,000,000 per occurrence, $2,000,000 general aggregate
(on a per project basis), and $2,000,000 aggregate for products/completed operations.
.2
Automobile Liability Insurance: $1,000,000 combined single limit per accident for bodily injury and
property damage.
.3
Workers’ Compensation and Employers Liability Insurance: Workers’ Compensation limits as
required by the laws of the State of California and Employers Liability limits of not less than
$1,000,000 per accident for bodily injury or disease and $1,000,000 per employee for bodily injury or
disease.
.4
Contractor’s Pollution Liability Insurance: $1,000,000 per occurrence or claim and $2,000,000
general aggregate limit.
.5
Excess or Umbrella Liability Insurance: $10,000,000, and the policy shall contain a clause stating
that it takes effect (drops down) in the event the primary limits are impaired or exhausted.
§ 17.1.2 Each insurance policy described in this Section 17.1 shall be endorsed to state that coverage shall not be
cancelled, allowed to expire, nor materially reduced in scope of coverage, except after thirty (30) days’ prior written
notice to Owner. Each policy shall be endorsed to provide coverage that is primary to any other coverage available to
Owner. Contractor shall furnish to the Owner copies of any endorsements that are subsequently issued amending
coverage or limits. If any of the foregoing insurance coverages are required to remain in force after Final Payment and
are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the
final Application for Payment as required by Section 15.1.
§ 17.1.3 Insurance shall be placed with insurers with a Best’s rating of no less than the Best Guide A:VII (or
equivalent) unless a different rating is established in the Invitation to Bid.
§ 17.1.4 Additional Insured Endorsements. The Contractor shall cause the insurance required by the Contract
Documents (except professional liability) to include the City of Pasadena, the City Council and each member
thereof, and their respective officials, employees, commission members, officers, directors, agents, employees,
volunteers and representatives as an additional insureds. For the Commercial General Liability coverage, said parties
shall be named as additional insureds utilizing either:
®
®
(1296196457)
46
.1
.2
.3
ISO Additional Insured endorsement CG 20 10 (11/85); or
ISO Additional Insured endorsement CG 20 10 (10/01) and Additional Insured Completed Operations
endorsement CG 20 37 (10/01); or
substitute endorsements providing equivalent coverage, approved by Owner.
The coverage shall contain no special limitations on the scope of protection afforded to such additional insureds.
Coverage for such additional insureds does not extend to liability to the extent prohibited by Insurance Code Section
11580.4.
§ 17.1.5 Waiver of Subrogation. All policies of insurance required by the Contract Documents shall include or be
endorsed to provide a waiver by the insurers of any rights of recovery or subrogation that the insurers may have at any
time against: the City of Pasadena, the City Council and each member thereof; the Architect; Owner’s Separate
Contractors; and their respective officials, employees, commission members, officers, directors, employees,
volunteers, agents, and representatives.
§ 17.1.6 The insurance coverages afforded the Additional Insured under the Policy shall be primary insurance, and no
other insurance maintained by the Additional Insured shall be called upon to contribute with the insurance coverages
provided by the Policy.
§ 17.1.7 Each type of insurance coverage under the Policy shall apply separately to each Additional Insured against
whom claim is made or suit is brought except with respect to the limits of the Company’s liability.
§ 17.1.8 Nothing in this contract of insurance shall be construed to preclude coverage of a claim by one insured under
the Policy against another insured under the Policy. All such claims shall be covered as third party claims, i.e., in the
same manner as if separate policies had been issued to each insured. Nothing contained in this provision shall operate
to increase or replicate the Company’s limits of liability as provided under the Policy.
§ 17.1.9 Prior to commencement of Work, Contractor shall furnish Owner with a certificate of insurance and
endorsements setting forth evidence of all insurance coverage required by this Section 17.1. Owner may require
complete, certified copies of any of any or all policies including, but not limited to, copies of the declaration, page,
schedule of forms, all endorsements and riders.
§ 17.1.10 Failure to maintain required insurance at all times shall constitute a default and material breach of the
Contract.
§ 17.3.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully
authorized to do business in the jurisdiction in which the Project is located, property insurance on an "all-risk" or
equivalent policy form, including builder’s risk, in the amount of the initial Contract Sum, plus the value of subsequent
modifications and cost of materials supplied and installed by others, comprising total value for the entire Project at the
site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless
otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are
beneficiaries of such insurance, until final payment has been made as provided in Section 15.5 or until no person or
entity other than the Owner has an insurable interest in the property required by this Section 17.3.1 to be covered,
whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and
sub-subcontractors in the Project.Owner otherwise elects, Contractor shall purchase and maintain property insurance
on the buildings and the materials and equipment on-Site required for the Work and intended to be permanently
installed and incorporated into the Project covering the interest of the Owner, Contractor and all Subcontractors in
such materials and equipment. Such insurance shall be written on an "All-Risk" basis covering perils normally
covered on such insurance including, but not limited to, the perils of fire and extended coverage and shall include theft,
vandalism and malicious mischief. Such insurance shall EXCLUDE earthquake, flood and other perils commonly
excluded under "all-risk" policies. The Contractor’s property insurance policy will have a basic $25,000.00 deductible
per occurrence for fire and extended coverage (damage to rented premises); other deductibles may apply to other types
of losses. In case of loss, Contractor shall be responsible for each loss payable under the Builder’s Risk policy
attributable to the acts, errors or omissions of Contractor, its Subcontractors, Sub-subcontractors and any other entity
for whom Contractor may be responsible.
®
®
(1296196457)
47
Owner shall use the insurance line item in Contractor’s Bid Proposal to calculate the credit amount.
such insurance shall EXCLUDE property, tools, and equipment owned by Contractor, Subcontractors, or others that
are not to be permanently installed in the Project. Owner’s property insurance policy will have a basic $25,000.00
deductible per occurrence for fire and extended coverage; other deductibles may apply to other types of losses. In case
of loss, Contractor shall be responsible for and shall pay to Owner, Five Thousand Dollars ($5,000.00) for each loss
payable under the Builder’s Risk policy attributable to the acts, errors or omissions of Contractor, its Subcontractors,
Sub-subcontractors and any other entity for whom Contractor may be responsible. Payment of the deductible amount
will be considered an uninsured loss. As such, Owner will hold Contractor liable for payment of up to $5,000.00 for
any such loss and may assess such losses against progress payments and retention. Owner, in its sole discretion, has
the right to charge back the $5,000.00 obligation to any Contractor, Subcontractor or Sub-subcontractor whom Owner
deems responsible after the parties involved in the loss have had seven (7) calendar days to determine the responsible
party for advancing such deductibles. No loss or damage, if any, incurred hereunder shall excuse Contractor’s
complete and satisfactory performance of the requirements of the Contract Documents.
§ 17.3.2 The Owner shall file a copy of each policy with the Contractor before an exposure to loss may occur. Each
policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be
reduced, until at least 30 days’ prior written notice has been given to the Contractor.Contractor will do nothing that
will cause cancellation, lapse, or reduction of Owner’s insurance without prior written consent of Owner.
§ 17.3.3 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their
subcontractors, sub-subcontractors, Subcontractors, Sub-subcontractors, agents and employees, each of the other, and
(2) the Architect, Architect’s consultants, separate contractors Separate Contractors described in Article 12, if any, and
any of their subcontractors, sub-subcontractors, Subcontractors, Sub-subcontractors, agents and employees
employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained
pursuant to this Section 17.3 or other property insurance applicable to the Work, except such rights as they have to
proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of
the Architect, Architect’s consultants, separate contractors described in Article 12, if any, and the subcontractors,
sub-subcontractors, Contractor shall require of its Subcontractors, Sub-subcontractors, suppliers, agents and
employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each
in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or
otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would
otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
§ 17.3.4 A loss insured under the Owner’s property insurance shall be adjusted by the Owner as fiduciary and made
payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any
applicable mortgagee clause. The Contractor shall pay Subcontractors their just shares of insurance proceeds received
by the Contractor, and by appropriate agreements, written where legally required for validity, shall require
Subcontractors to make payments to their sub-subcontractors in similar manner.
§ 17.3.5 SUBCONTRACTORS’ INSURANCE
§ 17.3.5.1 Contractor shall notify or cause to be notified each and every Subcontractor and Sub-Subcontractor
deriving its Contract under this Contract of the terms of this Article and shall cause each and every such Subcontractor
and Sub-Subcontractor to acknowledge and assume the terms of this Article as if it were Contractor thereunder. The
Contractor shall include in all Subcontracts a requirement that the Subcontractors shall obtain all insurance required to
be maintained by Contractor under this Article except that the limits of liability and deductibles shall be in amounts
determined by the Contractor, based on the degree of hazardous exposure according to the Work performed by each
Subcontractor and the size of each Subcontract. The Owner and Contractor shall be named as additional insureds
under each policy.
§ 17.3.5.2 Certificates of insurance and endorsements acceptable to the Contractor for each Subcontractor shall be
filed with the Owner prior to the Subcontractor’s commencement of Work. The certificates shall contain a provision
that coverage affordable under the policies will not be canceled unless at least thirty (30) days’ prior written notice has
®
®
(1296196457)
48
been given to the Contractor. The Owner may, at any time, require that the Contractor provide the Owner with copies
of said policies.
§ 17.4.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the
Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required
in the Contract Documents on the date of execution of the Contract.Faithful Performance and Payment Bonds.
§ 17.4.1.1 The Contractor shall furnish a satisfactory Performance Bond meeting all statutory requirements of the
State of California, on the form approved by Owner. The bond shall be furnished as a guarantee of the faithful
performance of the requirements of the Contract Documents as may be amended from time to time including, but not
limited to, liability for delays and damage to Owner and Owner’s Separate Contractors and Consultants, warranties,
guarantees and indemnity obligations, in an amount that shall remain equal to one hundred percent (100%) of the
Contract Sum.
§ 17.4.1.2 The Contractor shall furnish a satisfactory Payment Bond meeting all the statutory requirements of the State
of California on a form approved by Owner in an amount that shall remain equal to one hundred percent (100%) of the
Contract Sum to secure payment of all claims, demands, stop payment notices or charges of the State of California, of
material suppliers, mechanics, or laborers employed by the Contractor or by any Subcontractor or any person, firm or
entity eligible to file a stop payment notice with respect to the Work.
§ 17.4.1.3 The All bonds shall be executed by a California Admitted Surety Insurer. Bonds issued by a California
Admitted Surety Insurer listed in the latest versions of the U.S. Department of Treasury Circular 570 shall be deemed
to be accepted unless specifically rejected by Owner. Bonds from a California Admitted Surety Insurer not listed in
Treasury Circular 570 must be accompanied by all of the documents enumerated in California Code of Civil Procedure
Section 995.660(a). The bonds shall bear the same date as the Contract. The attorney-in-fact who executes the
required bonds on behalf of the surety shall affix thereto a certified and current copy of the power of attorney. In the
event of changes which increased the Contract Sum, the amount of each bond shall be deemed to increase and at all
times remain equal to the Contract Sum. The signatures shall be acknowledged by a Notary Public.
§ 17.4.1.4 Every bond must display the Surety’s bond number and incorporate the Contract for construction of the
Work by reference. The terms of the bonds shall provide that the Surety agrees that no change, extension of time,
alteration or modification of the Contract Documents or the Work to be performed thereunder shall in anyway affect
its obligations and shall waive notice of any such change, extension of time, alteration or modification of the Contract
Documents.
§ 17.4.1.5 Surety further agrees that it is obligated under the bonds to any successor, grantee or assignee of the Owner.
PAGE 47
§ 17.4.3 Should any bond become insufficient, or should any of the sureties, in the opinion of the City, become
non-responsible or unacceptable, the Contractor shall within ten (10) calendar days after written notice of the
insufficiency, provide written documentation satisfactory to Owner that Contractor has secured new or additional
sureties for the bonds, otherwise the Contractor shall be in default of the Contract. No further payments shall be
deemed due or will be made under the Contract until a new surety(ies) qualifies and is accepted by Owner.
§ 18.1 The Contractor shall promptly correct Work rejected by the Owner or Architect or failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Final Completion and
whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing
and inspections, the cost of uncovering and replacement, and compensation for the Architect’s services and expenses
made necessary thereby, shall be at the Contractor’s expense, unless compensable under Section A.2.7.3 in Exhibit A,
Determination of the Cost of the Work.expense.
§ 18.2 In addition to the Contractor’s obligations under Section 9.4, if, within one year after the date of Substantial
Final Completion of the Work or designated portion thereof or after the date for commencement of warranties
established under Section 15.4.3, or by terms of an applicable special warranty required by the Contract Documents,
any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor
shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given
the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of
®
®
(1296196457)
49
the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give
the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the
Contractor and to make a claim for breach of warranty.
…
§ 18.4 The one-year period for correction of Work shall be extended with respect to portions of Work first performed
after Substantial Final Completion by the period of time between Substantial Final Completion and the actual
completion of that portion of the Work.
§ 18.5 The Nothing contained in this Article 18 shall be construed to establish a period of limitation with respect to
other obligations the Contractor has under the Contract Documents. Establishment of the one-year period for
correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Article
18.as described in Section 18.2 relates only to the specific obligation of the Contractor to correct the Work, and has no
relationship to the time within which the obligation to comply with the Contract Documents may be sought to be
enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with
respect to the Contractor’s obligations other than specifically to correct the Work.
§ 18.6 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract Documents, the
Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced by
an amount equal to the entire cost of replacing the Work to make it as originally specified and intended. Such
adjustment shall be effected whether or not Final Payment has been made.
PAGE 48
Neither party to the Contract shall assign the Contract without written consent of the other, except that the Owner may,
without consent of the Contractor, assign the Contract to a lender providing construction financing for the Project if
the lender assumes the Owner’s rights and obligations under the Contract Documents. The Contractor shall execute all
consents reasonably required to facilitate such assignment.The Contractor shall not sublet or assign the Contract or
any portion thereof or any monies due thereunder, without the express prior written consent and approval of Owner,
which approval may be withheld in the sole discretion of the Owner. The Owner’s approval to such assignment shall
be upon such terms and conditions as determined by the Owner in its sole and exclusive discretion. Owner may freely,
without consent of Contractor, assign the Contract or any portion thereof. Contactor agrees, upon the assignee’s
request, to continue and complete performance of the Work upon payment of any undisputed outstanding amounts due
Contractor under the terms of the Contract. Any entity which shall succeed to the rights of Owner shall be entitled to
enforce the rights of Owner hereunder. If requested by such entity, Contractor will execute a separate letter or other
agreement with such entity further evidencing Contractor’s commitment to continue performance of the Contract.
…
The contract is made, entered into, executed and is to be performed in the City of Pasadena, California. The Contract
shall be governed by the law of the place where the Project is located, except, that if the parties have selected
arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern Section 21.4.State of
California.
…
Tests, inspections and approvals of portions of the Work required by the Contract Documents or by applicable laws,
statutes, ordinances, codes, rules and regulations or lawful orders of public authorities shall be made at an appropriate
time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals
with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and
shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of
when and where tests and inspections are to be made so that the Architect may be present for such procedures. The
Owner shall bear costs of (1) tests, inspections or approvals that do not become requirements until after bids are
received or negotiations concluded, and (2) tests, inspections or approvals where building codes or applicable laws or
regulations prohibit the Owner from delegating the costs to the Contractor.If Contract, Owner instructions, laws,
ordinances, or any public authority require any Work to be specially tested or approved, Contractor shall give notice,
®
®
(1296196457)
50
in accordance with such authority, of its readiness for observation or inspection, at least two (2) Working Days prior
to being tested or covered up. If inspection is by authority other than Owner, Contractor shall inform Owner of date
fixed for such inspection. All required certificates of inspection shall be secured by Contractor. Observations by
Owner shall be promptly made, and where practicable at resource of supply. If any Work should be covered up
without approval or consent of Owner, it must, if required by Owner, be uncovered for examination and satisfactorily
reconstructed at Contractor’s expense in compliance with Contract. Cost of testing and any materials found not to be
in compliance with the Contract shall be paid by Contractor. Other costs for tests and inspection of materials shall be
paid by Owner. Where such inspection and testing are to be conducted by an independent laboratory or agency, such
materials or samples of materials to be tested shall be selected by such laboratory or agency, or Owner’s
Representative and not by Contractor. Contractor shall notify Owner a sufficient time in advance of manufacture of
materials to be supplied by it under Contract, which must, by terms of contract, be tested, in order that Owner may
arrange for testing of same at source of supply. Prior to having satisfactorily passed such testing and inspection, or
prior to receipt of notice from said representative that such testing and inspection will not be required, the materials
shall not be incorporated into the Work without prior approval of Owner and subsequent testing and inspection.
Re-examination of questioned Work may be ordered by Owner and, if so ordered, Work must be uncovered by
Contractor. If such uncovered Work be found in accordance with Contract Documents, Owner shall pay costs of
re-examination and replacement. If such uncovered Work be found not in accordance with Contract Documents,
Contractor shall pay such costs.
§ 19.4 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
The Owner and Contractor shall commence all claims and causes of action, whether in contract, tort, breach of
warranty or otherwise, against the other arising out of or related to the Contract in accordance with the requirements of
the final dispute resolution method selected in the Agreement within the period specified by applicable law, but in any
case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Contractor waive all
claims and causes of action not commenced in accordance with this Section 19.4.Equal Employment Opportunity
Practices. Contractor agrees to comply with Section 4.08.035 of the City’s Competitive Bidding and Purchasing
Ordinance of the Pasadena Municipal Code, the rules and regulations promulgated thereunder and to this end:
§ 19.4.1 Contractor certifies and represents that, during the performance of this Contract, the Contractor and any
other parties with whom it may subcontract shall adhere to equal opportunity employment practices to assure that
applicants and employees are treated equally and are not discriminated against because of their race, religion, color,
national origin, ancestry, disability, sex, age, and medical condition, marital status. Contractor further certifies that it
will not maintain any segregated facilities.
§ 19.4.2 Contractor shall, in all solicitations or advertisements for applicants for employment placed by or on behalf
of this Contract, state that it is an "equal opportunity employer" or that all qualified applicants will receive
consideration for employment without regard to their race, religious creed, color, national origin, ancestry, disability,
sex, age, medical condition or marital status.
§ 19.4.3 Contractor shall, if requested to so do by the City, certify that it has not, in the performance of this Contract,
discriminated against applicants or employees because of their race, religious creed, color, national origin, ancestry,
disability, sex, age, medical condition or marital status.
§ 19.4.4 If requested to do so by the City, Contractor shall provide the City with access to copies of all of its records
pertaining or relating to its employment practices, except to the extent such records or portions of such records are
confidential or privileged under state or federal law.
§ 19.4.5 Contractor agrees to recruit Pasadena residents initially and to give them preference, if all other factors are
equal, for any new positions which result from the performance of this Contract and which are performed within the
City.
§ 19.4.6 Nothing contained in this Contract shall be construed in any manner so as to require or permit any act which
is prohibited by law.
The Contractor shall include the provisions set forth in paragraphs numbered 1 through 6 of this Section 19.4,
inclusive, in each of its subcontracts.
®
®
(1296196457)
51
§19.5 [NOT USED]
§ 19.6 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if: (a) delivered in person to the individual or member of the
firm or entity for whom it was intended; (b) sent by certified mail, return receipt requested; (c) sent by a recognized
overnight mail or courier service; or (d) sent by facsimile communication followed by a hard copy and with receipt
confirmed by telephone, to the addresses set forth below (or to such other address as may be specified in writing by
such person or entity:
If to the Owner:
Steven L. Wright
Assistant City Engineer
City of Pasadena
Pasadena, CA 91109
Fax: 626-744-3724
If to the Contractor:
Notice shall be deemed effective: (a) upon delivery, if personally delivered; (b) upon telephone confirmation, if sent
by facsimile; (c) upon one (1) business day following deposit with a recognized overnight mail or courier service; or
(d) upon two (2) business days following deposit in the United States mail, postage prepaid, return receipt requested.
§ 19.7 PASADENA LIVING WAGE ORDINANCE
§ 19.7.1 This Contract is subject to the City of Pasadena’s Living Wage Ordinance, Pasadena Municipal Code
Chapter 4.11. The Ordinance requires that contractors providing labor or services to the City under contracts in excess
of $25,000:
a)
Pay no less than ten dollars and seventy-five cents ($10.75) per hour plus medical benefits of no less
than one dollar and eighty-five cents ($1.85) per hour, or twelve dollars and sixty cents ($12.60) per
hour without medical benefits to all employees who spend any of their time providing labor or
delivering services to the City of Pasadena. Additionally, in January 2014 and each January thereafter,
the Living Wage rate shall be adjusted by the change in the Consumer Price Index, for the Los
Angeles-Riverside-Orange County area, all urban consumers, for the most recently available 12 month
period.
b)
Notify employees who spend any of their time providing labor or delivering services to the City of
Pasadena who make less than twelve dollars ($12) per hour of their possible right to the federal Earned
Income Tax Credit (EITC) under § 32 of the Internal Revenue Code of 1954, 26 U.S.C. § 32, and make
available to such employees forms informing them about the EITC and forms required to secure
advance EITC payments. Information concerning EITC may be obtained from the Internal Revenue
Service website: www.irs.ustreas.gov.
§ 19.7.2 The Contractor will be required to execute a Living Wage Compliance Certification and evidence
compliance with the Living Wage Ordinance by submitting payroll records as requested by the City. Each record shall
include: the full name of each employee performing labor or providing services under the contract; job classification;
rate of pay; and benefit rate.
§ 19.7.3 IMPORTANT NOTICE: Contractors with collective bargaining agreements covering those employees assigned
to Contract are exempt from the wage requirements of the Living Wage Ordinance.
§ 19.7.4 Failure to comply with the provisions of the Pasadena Living Wage Ordinance is grounds for termination of
the contract and a basis for penalties as stated in Pasadena Municipal Code Chapter 4.11. Questions concerning the
®
®
(1296196457)
52
Pasadena Living Wage Ordinance should be directed to: Finance Department, Purchasing Division, 626-744-6755 –
phone, 626-744-6757 – fax.
§ 19.8 TAXPAYER PROTECTION ACT
§ 19.8.1 Under the provisions of the City of Pasadena Taxpayer Protection Amendment of 2000 ("Taxpayer
Protection Act"), the Contractor is considered a "recipient of a public benefit." The full provisions of the Taxpayer
Protection Act are set forth in Pasadena City Charter, Article XVII. Under the Taxpayer Protection Act, City public
officials who approve this Contract are prohibited from receiving gifts, campaign contributions or employment from
the Contractor for a specified time. This prohibition extends to individuals and entities which are specified and
identified in the Taxpayer Protection Act and includes Contractor and its trustees, directors, partners, corporate
officers and those with more than a 10% equity, participation, or revenue interest in the Contractor.
§ 19.8.2 Contractor understands and agrees that: (A) Contractor is aware of the Taxpayer Protection Act; B) prior to
and as a condition to award of the Contract, it will complete and return the Disclosure Regarding Taxpayer Protection
Act form attached as Exhibit D to the Agreement in order to identify all of the recipients of a public benefit specified
in the Taxpayer Protection Act; and (C) Contractor will not make any prohibited gift, campaign contribution or offer
of employment to any public official who approved this Contract.
§ 19.9 COMPLIANCE WITH IMMIGRATION REFORM AND CONTROL ACT OF 1986
The Contractor is solely and exclusively responsible for employment of individuals for the Work of the Contract in
conformity with the Immigration Reform and Control Act of 1986, 8 USC §§1101 et seq. (the "IRCA"), the Contractor
shall also require that any Subcontractor, person or entity employing labor in connection with any of the Work of the
Contract shall so similarly comply with the IRCA.
§ 19.10 WORKERS’ COMPENSATION CERTIFICATION BY CONTRACTOR
§ 19.10.1 In accordance with California Labor Code §§ 1860, 1861, and 3700, every Contractor will be required to
secure the payment of compensation to its employees. By signing below Contractor certifies that:
"I am aware of the provisions of Section 3700 of the Labor Code, which require every employer to
be insured against liability for workers’ compensation or to undertake self-insurance in accordance
with the provisions of that code, and I will comply with such provisions before commencing the
performance of the Work of this Contract."
§ 19.11 RIGHTS AND REMEDIES
§ 19.11.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder
shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by
law.
§ 19.11.2 No action or failure to act by the Owner, the Architect or the Contractor shall constitute a waiver of any right
or duty afforded to any of them under the Contract, nor shall any such action or failure to act constitute an approval of
or acquiescence in any breach there under, except as may be specifically provided in the Contract Documents or may
otherwise be agreed in writing.
§ 19.12 CONTRACTOR’S LICENSE NOTICE
§ 19.12.1 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 regarding a patent act or omission is filed
within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to
structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a
contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento,
California 95826.
§ 19.13 Maintenance, Inspection and Audit of Records. The Owner and/or its authorized auditors or representatives,
shall have access to and the right to examine, audit, excerpt, transcribe, and reproduce any of the Contractor’s records
for a period of at least three (3) years after termination of the Contract and/or Final Payment. Such records include
without limitation, journals, ledgers, records of accounts payable and receivable, profit and loss statements, bank
statements, invoices, receipts, subcontracts, agreements, notes, correspondence, memoranda, and any documents
generated and received in Contractor’s performance of this Contract. Upon written notice by the Owner, Contractor
®
®
(1296196457)
53
shall promptly make all such records available to Owner and/or its authorized auditors or representatives and
cooperate with the Owner and its authorized auditors or representatives in examining, auditing, excerpting,
transcribing and reproducing the records.
§19.14 WAIVERS OF SUBROGATION
Contractor and its insurance carriers waive, release, and shall not exercise any right of recovery or subrogation for any
claim, damage, or loss covered or insured by any insurance policy required under the Contract Documents, that
Contractor or its insurers may have at any time against:
1) the City of Pasadena, the City Council and each member thereof;
2) the Architect;
3) the Project Manager, if any;
4) Owner’s design consultants;
5) Owner’s Separate Contractors; and
their respective officials, employees, commission members, officers, directors, employees, volunteers, agents and
representatives.
§ 19.15 INDEPENDENT CONTRACTOR
Contractor is employed hereunder to render a service within the scope of its training and experience, and Contractor
shall be an independent contractor and not an employee of the Owner. As such, Owner shall not be called upon to
assume any liability for the direct payment of any salary to any employee or Subcontractor of Contractor, nor to pay
any benefit to any employee or Subcontractor or vendor under the Workers’ Compensation laws. None of
Contractor’s officers, agents, employees and Subcontractors, nor any of their agents, officers and employees, shall be
deemed officers, agents, employees and Subcontractors of the Owner, and the Owner shall not be liable or responsible
to them for anything whatsoever other than liability to Contractor set forth in this Contract.
§ 19.16 CONSTRUCTION FEASIBILITY AND COORDINATION
On at least a monthly basis or such other intervals identified in the Contract Documents, Contractor shall meet with the
Owner, its Separate Contractors, Architect, and Architect’s consultants to coordinate the Contract Documents,
including the design of building systems delegated to the Contractor, for the purpose of continuing construction
feasibility, identifying conflicts, missing information or gaps in the planned scope of Work and to take appropriate
action to ensure the full scope of intended Work is performed efficiently and economically.
§ 19.17 LABOR HARMONY
§ 19.17.1 General. The Parties agree and declare that Contractor and Owner are separate and independent entities
and that Contractor has full responsibility for performance of the Work and direction of the work force, subject to and
under the duty of Contractor to cooperate with Owner and its Separate Contractors. Contractor recognizes that in the
performance of its Work it may be required to work with and near Separate Contractors and representatives of Owner
on the jobsite. The Contractor shall only employ or use labor in connection with the Work capable of working
harmoniously with all trades, crafts, and any other individuals associated with the Project. The Contractor shall also
use best efforts to minimize the likelihood of any strike, work stoppage, slowdowns, disputes, or other labor
disturbance. If the Work is to be performed by trade unions, the Contractor shall make all necessary arrangements to
reconcile, without delay, damage, or cost to the Owner and without recourse to the Architect or the Owner, any
conflict between the Contract Documents and any agreements or regulations of any kind at any time in force among
members or councils that regulate or distinguish the activities that shall not be included in the Work of any particular
trade.
§ 19.17.2 Picketing.
§ 19.17.2.1 Contractor agrees that should there be picketing or a threat of picketing by any labor organization at or near
the site, Contractor, in cooperation with Owner, shall establish a reserve gate system and require employees of
Contractor, Subcontractors, and suppliers to use one or more designated gates. In that event, it shall be the affirmative
obligation of Contractor, as a material consideration of this Agreement to ensure that employees of Contractor,
Subcontractors, and suppliers use only the gates or other entryways designated by Owner from time to time on the
Project.
®
®
(1296196457)
54
§ 19.17.2.2 Notwithstanding the establishment or non-establishment of a reserve gate, in the event employees of
Contractor, Subcontractors or suppliers refuse to work because of any labor disputes or grievances (including any
"secondary" or "sympathy" strike or boycott directed against the Project), Contractor shall not be relieved of its
obligation to supply enough properly skilled workers to perform the Work without interruption or further delay.
§ 19.17.3
Labor Disputes. Contractor and Owner agree to cooperate fully with each other and their
representative and attorneys with respect to any labor dispute that should arise on the site, including, but not limited to
the giving of testimony and evidence to the agent or judge of the National Labor Relations Board or testimony in
connection with proceedings in state or federal court. Contractor hereby warrants that it is not now nor will Contractor
be delinquent in the payment or reporting to any labor management benefit trust.
PAGE 52
If the Architect fails to certify payment as provided in Section 15.2.1 for a period of 30 days through no fault of the
Contractor, or if the Owner fails to make payment as provided in Section 4.1.3 for a period of 30 days, the Contractor
may, upon seven additional days’ written notice to the Owner and the Architect, terminate the Contract and recover
from the Owner payment for Work executed, including reasonable overhead and profit, costs incurred by reason of
such termination, and damages.Contractor shall have the right to terminate the Contract only upon the occurrence of
one of the following:
.1
The Work stopped for ninety (90) consecutive days, though no act or fault of Contractor, any
Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to an issuance of an
order of a court or other public authority having jurisdiction or due to an act of government such as a
declaration of a national emergency making material unavailable.
.2
The Owner fails to perform any material obligation under the Contract Documents and fails to cure
such default within ninety (90) days after receipt of notice from Contractor stating the nature of such
default.
…
§ 20.2.1 The Owner may terminate the Contract if the Contractorshall terminate the Contractor’s performance of the
Work, in whole or in part, if:
.1
Contractor fails to promptly commence the Work or unnecessarily or unreasonably delays the Work or
improperly discontinues the prosecution of the Work or abandons the Work;
.1
repeatedly refuses or fails to supply enough properly skilled workers or proper materials;
.2
fails to make payment to Subcontractors for materials or labor in accordance with the respective
agreements between the Contractor and the Subcontractors;.2
Contractor refuses or fails to supply
skilled supervisory personnel, an adequate number of properly skilled workers, proper materials, or
necessary equipment to perform the Work in strict accordance with the Contract Documents, and the
latest approved Contract Construction Schedule;
.3
repeatedly Contractor fails to make prompt payment of amounts properly due Subcontractors after
receiving payment from Owner;
.4
Contractor disregards applicable laws, statutes, ordinances, codes, rules and regulations rules,
regulations, or lawful orders of a public authority;
.5
Contractor fails to resume performance of Work which has been suspended or stopped, within a
reasonable time after receipt of notice from Owner to do so or (if applicable) after cessation of the event
preventing performance;
.4
otherwise is guilty of substantial breach of a provision of the Contract Documents..6Any
representation or warranty made by Contractor in the Contract Documents or any certificate, schedule,
instrument, or other document delivered by Contractor pursuant to the Contract Documents shall have
been false or materially misleading when made;
.7
After commencement of the Work Owner becomes aware that the Contractor is using an ineligible
contractor, subcontractor or supplier who was barred from performing work or providing materials or
services on Owner or City projects at the time of Bid;
.8
Contractor fails to make payment to Subcontractors for materials or labor in accordance with the
respective Contract Documents and Applicable Law;
.9
The Contract is assigned or the Work is sublet otherwise than as specified in the Contract Documents;
®
®
(1296196457)
55
.10
.11
.12
Contractor disregards Applicable Law;
Contractor otherwise is guilty of breach of a provision of the Contract Documents; or
Contractor materially fails to execute the Work in accordance with the Contract Documents or, in the
Owner’s opinion, is violating any of the terms of the Contract or is not executing the Contract in good
faith or is not following instructions of the Owner as to additional force necessary in the opinion of the
Owner for its completion within the required time.
§ 20.2.2 When any of the above reasons exists, the Owner, upon certification by the Architect that sufficient cause
exists to justify such action, may, without prejudice to any other remedy the Owner may have and after giving the
Contractor seven days’ written notice, terminate the Contract and take possession of the site and of all materials,
equipment, tools, and construction equipment Owner’s Rights Upon Termination of Contract. When any of the reasons
specified in the preceding Section exist, the Owner may, in addition to and without prejudice to any other rights or
remedies of the Owner, notify the Contractor not to resume or to discontinue all Work, or any part thereof, by written
notice of default. The Owner will advise the Performance Bond Surety of the notice of default and that they will be
given fifteen (15) calendar days to arrange for completion of the Work in accordance with the Contract Documents
by another contractor or contractors satisfactory to the Owner. Should the Surety fail to effect satisfactory
arrangements within said 15-day period, the Owner shall have the right to issue a notice of termination and to:
.1
Exclude the Contractor from the Site;
.2
Take possession of the Site and of all materials, equipment, tools and construction equipment, and
machinery thereon owned by the Contractor and may finish Contractor;
.3
Suspend any further payments to Contractor;
.4
Accept assignment of subcontracts pursuant to § 11.5; and
.5
Finish the Work by whatever reasonable method the Owner may deem expedient.Upon request of the
Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the
Owner in finishing the Work.
§ 20.2.3 When the Owner terminates the Contract Contractor’s performance of the Work for one of the reasons stated
in Section 20.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished.
§ 20.2.4 The Owner shall charge the cost to complete the Work, including, but not limited to, protection, investigation,
labor, services, equipment, materials, permits, fees, supervisory and administrative costs to Contractor and its
Performance Bond surety. If the unpaid balance of the Contract Sum exceeds is less than all costs of finishing the
Work, including compensation for the Owner’s Representative’s and Architect’s services and expenses made
necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to
the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the
Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Architect, upon
application, and this This obligation for payment shall survive termination of the Contract. If the unpaid balance of the
Contract Sum is greater than all costs of finishing the Work, including compensation for the Owner’s Representative’s
and Architect’s services and expenses made necessary thereby, the Contractor shall receive payment for Work
properly performed by Contractor for which payment was not made previously; any excess amounts shall be retained
by Owner.
The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause. The Contractor
shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with
reasonable overhead and profit on the Work not executed.
§ 20.2.5 Erroneous Termination. If it has been adjudicated or otherwise determined that Owner has erroneously or
negligently terminated the Contractor for cause, then said termination shall automatically convert to a termination by
the Owner for convenience as set forth in Section 20.4.
§ 20.2.6 Adequate Financial Assurances. It is recognized that if Contractor is adjudged a bankrupt or makes a
general assignment for the benefit of creditors, or if a receiver is appointed for the benefit of its creditors, or if a
receiver is appointed on account of Contractor’s insolvency, this could impair or frustrate Contractor’s performance of
the Work. Accordingly, it is agreed that upon the occurrence of any such event, Owner shall be entitled to request of
Contractor, or its successor in interest, adequate assurance of future performance in accordance with the terms and
conditions hereof. Failure to comply with such request within five (5) calendar days of delivery of the request shall
®
®
(1296196457)
56
entitle Owner to terminate the Contract and to the accompanying rights set forth above. Pending receipt of adequate
occurrence of performance and actual performance in accordance therewith, Owner shall be entitled to proceed with
the Work with its own forces or with other contractors on a time and material or other appropriate basis, the cost of
which will be backcharged against the Contract Sum.
§ 20.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
§ 20.3.1 The Owner may at any time and from time to time, without cause, order Contractor, in writing, to suspend,
delay or interrupt the Work in whole or in part for such period of time, as the Owner may determine, with such period
of suspension to be computed from the date of delivery of the written order. Such order shall be specifically identified
as a " Suspension Order" under this Section. Upon receipt of a Suspension Order Contractor shall, at the Owner’s
expense, comply with its terms and take all reasonable steps to minimize costs allocable to the Work covered by the
Suspension Order during the period of Work stoppage.
§ 20.3.2 Suspension for Cause. Owner has the authority by written order to suspend the Work, in whole or in part, for
Contractor’s failure to:
.1
Correct conditions unsafe for the Project personnel or general public; or
.2
Carry out the Contract; or
.3
Carry out orders of Owner.
§ 20.3.3 If a Suspension Order is canceled or expires, Contractor shall continue with the Work. A Change Order or
Construction Change Directive will be issued to cover any adjustments of the Contract Sum or the Contract Time
necessarily caused by such suspension. No adjustment shall be made to the extent:
.1
that performance is, was or would have been so suspended, delayed or interrupted by another cause for
which the Contractor is responsible; or
.2
that an equitable adjustment is made or denied under another provision of this Contract.
§ 20.3.4 Responsibilities of Contractor During Suspension Periods. During periods that Work is suspended,
Contractor shall continue to be responsible for the Work and shall prevent damage or injury to the Project, provide for
drainage, and shall erect necessary temporary structures, signs or other facilities required to maintain the Project and
public safety and continue to perform according to the Contract Documents.
§ 20.4.1 The Owner may, at any time, terminate the Contractor’s performance of the Work, in whole or in part, for the
Owner’s convenience without regard to fault or breach upon fourteen (14) calendar days written notice to
Contractor.
§ 20.4.2 In the event that Owner terminates Contractor’s performance of the Work for convenience, Contractor agrees
to waive any claims for damages, including, but not limited to, home office overhead and loss of anticipated profits on
account thereof, and as the sole right and remedy of Contractor, Owner shall pay Contractor in accordance with
Section 20.4.3 below. The provisions of the Agreement, which by their nature survive final acceptance of the Work,
shall remain in full force and effect after such termination to the extent provided in such provisions.
§ 20.4.3 Compensation. Upon termination for convenience, Contractor shall be entitled to be paid the full cost of all
Work properly done by Contractor prior to the date of termination not previously paid for, less sums already received
by Contractor on account of the portion of the Work satisfactorily performed but in no event shall the amounts paid
hereunder exceed the portion of Work completed in accordance with the Contract Documents. In no event shall
Contractor be entitled to recover any costs, overhead or profit for Work not authorized or performed prior to the
termination notice(s).
§ 20.5 CONTRACTOR’S DUTIES UPON TERMINATION
Upon receipt of written notice from the Owner of termination under Sections 20.2 or 20.4, Contractor shall, unless the
notice directs otherwise, do the following:
.1
cease operations as directed by the Owner in the notice;
.2
cooperate with the Owner to secure the Site and demobilize in a safe and orderly fashion;
.3
take actions necessary, or that the Owner may direct, for the protection and preservation of the Work;
®
®
(1296196457)
57
.4
.5
.6
except for Work directed to be performed in the notice, incur no further costs and enter into no further
subcontracts and purchase orders;
if requested by Owner, assign to Owner, in the manner and to the extent directed, all of the right, title
and interest of the Contractor under the subcontracts, and the Owner shall have no liability for acts,
omissions, or causes of action resulting therefrom which accrued prior to the date of termination and
assignment, which liability shall remain with the Contractor; and
turn over to the Owner, as soon as possible, but not later than thirty (30) days after receipt of such
termination notice, the originals of all of the Contractor’s records, files, documents, drawings, and any
other items relating to the Project, whether located on the Project site, at the Contractor’s office, or
elsewhere.
§ 21.1 Claims, disputes and other matters in question arising out of or relating to this Contract, including those
alleging an error or omission by the Architect but excluding those arising under Section 16.2, shall be referred initially
to the Architect for decision. Such matters, except those waived as provided for in Section 21.8 and Sections 15.5.3
and 15.5.4, shall, after initial decision by the Architect or 30 days after submission of the matter to the Architect, be
subject to mediation as a condition precedent to binding dispute resolution.
§ 21.2 If a claim, dispute or other matter in question relates to or is the subject of a mechanic’s lien, the party asserting
such matter may proceed in accordance with applicable law to comply with the lien notice or filing deadlines.
§ 21.3 The parties shall endeavor to resolve their disputes by mediation which, unless the parties mutually agree
otherwise, shall be administered by the American Arbitration Association in accordance with their Construction
Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in
writing, delivered to the other party to this Agreement, and filed with the person or entity administering the mediation.
The request may be made concurrently with the binding dispute resolution but, in such event, mediation shall proceed
in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days
from the date of filing, unless stayed for a longer period by agreement of the parties or court order. If an arbitration is
stayed pursuant to this Section, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon
a schedule for later proceedings.
§ 21.4 If the parties have selected arbitration as the method for binding dispute resolution in the Agreement, any claim,
subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree
otherwise, shall be administered by the American Arbitration Association, in accordance with the Construction
Industry Arbitration Rules in effect on the date of this Agreement. Demand for arbitration shall be made in writing,
delivered to the other party to the Contract, and filed with the person or entity administering the arbitration. The award
rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.
§ 21.1 CONTRACTOR NOTICE AND TIME LIMITS ON CLAIMS
If the Contractor wishes to make a Claim for an increase in the Contract Sum, or extension of the Contract Time, or
that Contractor’s performance is excused because of the acts or omissions of Owner, the Contractor shall give the
Owner and Architect written notice thereof within ten (10) calendar days after the occurrence of the event giving rise
to such Claim. The written notice must comply with the requirements of this Article 21 and Article 14 relating to
claims for additional time. This notice shall be given by Contractor before proceeding to execute Work affected by the
event, except in an emergency endangering life or property.
§ 21.2 CONTINUING CONTRACT PERFORMANCE
Contractor shall not delay or postpone any Work pending resolution of any Claims, disputes or disagreements, except
as the Owner and Contractor may otherwise agree in writing. Pending final resolution of a Claim, Contractor shall
proceed diligently with performance of the Contract and the Owner shall continue to make payments for undisputed
Work in accordance with the Contract Documents. In the event of disputed Work, Owner shall have the right to
unilaterally issue a written Work Directive and Contractor shall continue performance pending resolution of the
dispute and shall maintain daily records of all cost data.
§ 21.3 BACK UP DOCUMENTATION FOR ALL CLAIMS
®
®
(1296196457)
58
In addition to the initial ten (10) day written notice required herein, Contractor shall submit detailed backup
documentation for its Claim within thirty (30) calendar days from Contractor’s initial written notice. Failure to
provide either this backup documentation or an explanation acceptable to the Owner for the cause of the Contractor’s
delay in submitting this documentation as herein indicated shall constitute Contractor’s waiver of any and all rights
associated with the Claim. In the case of a Claim involving a request for an extension of the Contract Time, such
documentation shall include a precedence diagrammatic-style (CPM) schedule analysis (fragnet), identifying delays
to the Work on the Critical Path, comparing the as-planned schedule for performance of the Work with the as-built
schedule.
§ 21.4 NOTICE OF THIRD PARTY CLAIMS
The Owner shall provide Contractor with prompt written notice of the receipt of any third-party claim relating to the
Contract by sending a copy of the third-party claim to Contractor at the address indicated in the Agreement.
§ 21.5 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any
other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration
permits consolidation; (2) the arbitrations to be consolidated substantially involve common questions of law or fact;
and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s).If a claim,
dispute or other matter in question relates to or is the subject of a stop payment notice, the party asserting such matter
may proceed in accordance with applicable law to comply with the lien notice or filing deadlines.
§ 21.6 Any party to an arbitration may include by joinder persons or entities substantially involved in a common
question of law or fact whose presence is required if complete relief is to be accorded in arbitration provided that the
party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or
entity shall not constitute consent to arbitration of a Claim not described in the written Consent. The provisions of this
Article 21 shall apply to all Claims of any nature arising out of or related to the Work or the performance of the
Contractor related thereto, the Contractor may have against the Owner. The Contractor acknowledges the extreme
importance of promptly notifying and thoroughly documenting any Claim and further specifically acknowledges that
Owner will suffer extreme prejudice should Contractor fail in any way to comply with this requirement. Failure to
comply with the procedures contained within this Article 21 shall constitute a waiver of such Claim. Evidence
presented by Contractor that Owner had actual notice of the claim that Owner was not prejudiced by Contractor’s
failure to comply with this requirement, and/or that Owner considered Contractor’s request despite Contractor’s
failure to strictly comply with this provision shall not render this requirement unenforceable..
®
®
(1296196457)
59
This Agreement is entered into as of the day and year first written above and is executed in at least two (2) originals, of
which one is to be delivered to the Contractor, and the remainder to the Owner.
SIGNATURES
The Contractor hereby represents and warrants to the Owner that the Contractor has the right, power, legal capacity
and authority to enter into and perform its obligations under this Agreement, and that signature and execution of this
Agreement has been duly authorized.
OWNER
CONTRACTOR
CITY OF PASADENA, a municipal corporation
ONYX Architects, Inc., a corporation
Michael J. Beck
City Manager
Signature
ATTEST:
(President/CEO/Vice President)
Mark Jomsky
City Clerk
Approved as to form and content:
Signature
Barbara R. Gadbois, Esq.
Special Counsel to Owner
(Secretary/Assistant Secretary/CFO/
Assistant Treasurer)
Approved as to form:
Michele Beal Bagneris
City Attorney
CA Contractors License No.: __________
Fed. Tax ID No.: ___________________
REVIEWED:
Larry Hammond
City Purchasing Administrator
§ 21.7 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly
consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having
jurisdiction thereof.
§ 21.8 CLAIMS FOR CONSEQUENTIAL DAMAGES
The Contractor and Owner waive claims against each other for consequential damages arising out of or relating to this
Contract. This mutual waiver includes
.1
damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing,
business and reputation, and for loss of management or employee productivity or of the services of such
persons; and
.2
damages incurred by the Contractor for principal office expenses including the compensation of
personnel stationed there, for losses of financing, business and reputation, and for loss of profit except
anticipated profit arising directly from the Work.
®
®
(1296196457)
60
This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in
accordance with Article 20. Nothing contained in this Section 21.8 shall be deemed to preclude an award of liquidated
damages, when applicable, in accordance with the requirements of the Contract Documents.
This Agreement entered into as of the day and year first written above.
OWNER (Signature)
CONTRACTOR (Signature)
(Printed name and title)
(Printed name and title)
®
®
(1296196457)
61
Certification of Document’s Authenticity
AIA® Document D401™ – 2003
I, Barbara R. Gadbois, Esq., hereby certify, to the best of my knowledge, information and belief, that I created the
attached final document simultaneously with its associated Additions and Deletions Report and this certification at
14:05:57 on 10/01/2013 under Order No. 9591123634_1 from AIA Contract Documents software and that in
preparing the attached final document I made no changes to the original text of AIA® Document A107™ – 2007,
Standard Form of Agreement Between Owner and Contractor for a Project of Limited Scope, as published by the AIA
in its software, other than those additions and deletions shown in the associated Additions and Deletions Report.
_____________________________________________________________
(Signed)
_____________________________________________________________
(Title)
_____________________________________________________________
(Dated)
®
AIA Document D401™ – 2003. Copyright © 1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is
®
protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA
software at 14:05:57 on 10/01/2013 under Order No.9591123634_1 which expires on 02/08/2014, and is not for resale.
(1296196457)
1

A107-2007 - Owner-Contractor Agreement

Transcription

Similar documents

Pay Application #4 - the Public Building Commission of Chicago

How to Open an Account with Great Lakes Credit Union (GLCU)

Pamphlet - Epsylon

the PDF

CSAH 5 Newletter - Sherburne County

Construction In Brief: Winter 2009 - Cohen Seglias Pallas Greenhall

Managing Contractor Owned Equipment Leased To the Owner`s

KSU Tri-Towers Rotunda All Subcontractor and Lower Tier

CMI_Residential_Brochure.sflb

Nelnet Professional Services Agreement (04/25/2012)