Active SLED Opportunity · CALIFORNIA · SAN JOAQUIN DELTA COLLEGE
AI Summary
San Joaquin Delta College seeks bids for the 2026 All Gender Restrooms project involving renovation of restrooms to all-gender facilities with full privacy partitions, system modifications, security cameras, and signage. Estimated cost $1M, completion in 150 days. Bids due June 25, 2026, with mandatory pre-bid conference on June 9.
The San Joaquin Delta Community College District (“District”) requests Bid proposals from qualified individuals or firms (individually, a “Bidder” and collectively, “Bidders”) to this Request for Bids(“RFB”) for professional services for its 2026 All Gender Restrooms(“Project”).
The District is part of the statewide California Community College System, and currently serves over 23,000 students annually. The District is comprised of the Stockton Main Campus, the South Campus at Mountain House, and the Manteca Center. Additional information about the District is available online at https://www.deltacollege.edu/.
The District is governed by a Board of Trustees (the “Board”), consisting of seven voting members, elected from trustee areas in general elections throughout the District, and a Student Representative, appointed by Student Government. The Board exists under and derives its powers from the California Constitution and the acts of the State Legislature, and it derives its authority from the California Education Code.
Primary Restroom List
Possible Future Work
The successful Bidder will be required to provide performance and payment bonds, each for 100% of the Contract Price on the forms provided in these Bid Documents, and as further specified in the Contract Documents.
Notice is hereby given that the Board of Trustees of San Joaquin Delta Community College District (“District”) will accept electronically submitted Bids through the OpenGov system up to but no later than Thursday, June 25, 2026, at 2:00 pm for Bid # 2026-RFB-020– 2026 All Gender Restrooms(“Project”).
The Project is located at San Joaquin Delta College, 5151 Pacific Avenue Stockton, CA 95207 and the project updates existing gendered restrooms into multi‑stall all‑gender facilities with full‑height privacy partitions, building‑system modifications, security cameras at entrances, and new campus wayfinding signage. The estimated construction cost of the Project is $1,000,000 with Substantial Completion to be achieved 150 Days from the Notice to Proceed. The Project is subject to the Project Labor Agreement.
For this procurement, the District will accept digital signatures that meet the requirements listed on the State’s website:
https://www.sos.ca.gov/administration/regulations/current-regulations/technology/digital-signatures
Systems such as DocuSign or similar, for example, which provide a unique digital certificate when signed, are acceptable.
The plans, specifications, Bid forms and Contract Documents for the Project, and any Addenda thereto (“Bid Documents”) may be obtained via OpenGov accessed by the link below:
https://www.deltacollege.edu/about/offices/procurement-contracts/purchasing-business-opportunities
OR
https://procurement.opengov.com/portal/deltacollege
Bidders must be registered with OpenGov to access the Bid Documents and submit their Bids via OpenGov. Bidders shall create a FREE account with OpenGov Procurement by signing up at https://procurement.opengov.com/signup. Once Bidder has completed account registration, Bidder should browse back to this page, click on “Submit Response”, and follow the instructions to submit its Bid.
The District will be conducting a mandatory Bidder’s conference at PROCUREMENT CONFERENCE ROOM DANNER BASEMENT B4 located at 5151 Pacific Avenue, Stockton, CA 95207 on Tuesday, June 9, 2026, at 8:30 am. If Bidder attended the bid walk and identified business name on sign-in sheet, the mandatory requirement is satisfied. The nearest parking lot is Shima or Budd and there are parking fees.
Prospective Bidders will be required to submit Requests for Clarification (“RFCs”) for technical and general questions electronically via the District’s OpenGov by 2:00 p.m. on Friday, June 12, 2026. Bids must be electronically submitted through OpenGov no later than Thursday, June 25, 2026, at 2:00 pm (local time). Bids will be opened shortly thereafter as practicable.
The District is not responsible for or liable to Bidders for (i) inaccessibility of the OpenGov portal; or (ii) untimely, incomplete or inaccurate data submitted through OpenGov. The District encourages the participation of local and/or small businesses, including, but not limited to, minority, women, disabled, veteran or disabled veteran owned businesses, as suppliers, Contractors, or subcontractors/ suppliers for the Contractor, as permitted by District’s Administrative Procedure 6435.
Contractor and any subcontractors must be registered with the California Department of Industrial Relations (DIR) to be awarded the Contract and shall comply with all DIR regulations throughout the course of this entire Project.
Bidders must possess the following license classification(s) to be awarded the Contract for this Project at the time of Bid submission and for the duration of the Contract: : B License, General Building Contractor.
The District reserves the right to reject any or all Bids and further reserves the right to waive any informalities or irregularities in the Bids. All Bids will remain subject to acceptance for ninety (90) Days after the Bid opening.
https://www.deltacollege.edu/about/offices/procurement-contracts/purchasing-business-opportunities
OR
https://procurement.opengov.com/portal/deltacollege
up to but no later than Thursday, June 25, 2026, at 2:00 pm for 2026 All Gender Restrooms(“Project”) at which time the Bids will be publicly opened and read aloud shortly thereafter.
10.1.1 General. Each Bid must be signed and submitted to District, using the form provided in the Bid Documents, by or before the date and time set forth in Section 1 of the Notice Inviting Bids, or as amended by subsequent Addendum. Faxed or emailed Bids will not be accepted, unless otherwise specified. Late submissions will be returned unopened. District reserves the right to postpone the date or time for receiving or opening Bids. Each Bidder is solely responsible for all of its costs to prepare and submit its Bid and by submitting a Bid waives any right to recover those costs from District. The Bid amount must include all costs to perform the Work as specified, including all labor, material, supplies, and equipment and all other direct or indirect costs such as applicable taxes, insurance and overhead.
10.1.2 Electronic Bid Submittal. All Bids shall be submitted before date/time set forth in the Notice to Bidders via the District’s procurement management system, OpenGov. Bids which are not submitted through the procurement management system are non-responsive and will be rejected. The District is not responsible for or liable to Bidders for: (i) inaccessibility of the procurement management system; or (ii) untimely, incomplete or inaccurate data submitted through the procurement management system. Bidders experiencing any technical difficulties with the Bid submission process may contact OpenGov Support. If you continue to have difficulty, contact the District’s Procurement & Contract Department by email at purchasing@deltacollege.edu. Neither the District nor the District’s procurement management system make any guarantee as to the timely availability of assistance, or assurance that any given problem will be resolved by the Bid submission date and/or time.
10.1.3 Electronic Submission Requirements. Bidders must enter proposed pricing in the electronic Bid Form for any and all line items or a lump sum Bid amount, as required. The proposed pricing provided in the Bidder’s electronically submitted Bid Form is binding on the Bidder and will be used by the District for determination of the apparent low Bid. Bidders must attach pdf file(s) to the electronic Bid submission containing all the required Bid Documents completed and signed.
10.1.4 Bid Documents. The Bid Documents are available only through the District’s procurement management system, OpenGov. The District’s procurement management system may be accessed through the District’s Purchasing webpage:
OR
Vendors must be registered to view and download the documents. There is no charge to sign up. Any and all Addenda will be posted on this webpage. It shall be Bidder’s sole responsibility to conduct periodic checks of this webpage to identify and download any Addenda.
10.1.5 Date and Time of Bid Submittal. The procurement management system clock is controlling and determinative as to the time of the Bidder’s submittal of the Bid. The foregoing notwithstanding, whether or not Bids are opened exactly at the time fixed in the Bid Documents, no Bids shall be received or considered by the District if submitted after the deadline for Bid submission. Bids submitted after such time are nonresponsive. Bid results after the deadline for submitting Bids on the District’s procurement management system are unofficial and require further review prior to the lowest responsible responsive Bidder being identified.
This Project requires Contractor has a valid California contractor’s license for the following classification(s) for the duration of the Contract: B License, General Building Contractor.
Definitions. The following definitions apply to all of the Contract Documents unless otherwise indicated, e.g., additional definitions that apply solely to the Specifications or other technical documents.
Addendum/Addenda means written or graphic information, including without limitation drawings or specifications issued prior to the deadline for Bids to be submitted, which modifies or interpret the Bid Documents by additions, deletions, clarifications or corrections.
Article, as used in these General Conditions, means a numbered Article of the General Conditions, unless otherwise indicated by the context.
Change means a modification, change, addition, substitution or deletion in the Work or in Contractor’s means, methods, manner, time or sequence of performing the Work arising from any cause or circumstances, including, without limitation, either directly at the request of District or constructively by reason of other circumstances. Use of the term “Change,” in any context, in the Contract Documents shall not be interpreted as implying that Contractor is entitled to a Contract Modification on any basis other than for Compensable Change, Deleted Work or Compensable Delay.
Change Order means a written instrument, signed in accordance with the requirements of the General Conditions, setting forth a complete mutual agreement of District and Contractor on the terms of a Contract Adjustment. These can be additive, deductive, related to time, and/or a combination thereof.
“Change Order – Partial Agreement” and/or “Partial Agreement Change Order” means a written instrument, signed in accordance with the requirements of the General Conditions, setting forth a partial mutual agreement of District and Contractor on the terms of a Contract Modification, the remaining disputed balance thereof must be taken to a Claim or waived as required by the General Conditions. These can be added, deductive, related to time, and/or a combination thereof.
Claim means a written demand or assertion by Contractor or District seeking, as a matter of right: an interpretation of Contract; payment of money; increase and/or decrease in time; recovery of damages; or other relief as defined in the Claims Dispute Resolution Process of these General Conditions. A Claim does not include the following: (1) tort claims for personal injury, death, or property damage; (2) stop payment notice claims; (3) the right of District to specific performance or injunctive relief to compel performance; (4) the right of District to suspend, revoke, or limit the Contractor’s pre-qualification status or rating or to debar Contractor from bidding or contracting with District; (5) right of District under Laws regarding withholds; (6) right of District under Laws due to a violation by Contractor of its statutory obligations under Public Contract Code §4100 et seq., to terminate the Contract and/or recover penalties; or (7) any other actions taken by the District pursuant to mandatory and/or discretionary statutory obligations with which the Contractor takes issue.
Contract Adjustment means an adjustment, additive and/or deductive, to the Contract Price or Contract Time that is permitted by the Contract Documents on the grounds or circumstances constituting a Compensable Change, Compensable Delay, or Deleted Work.
Contract Documents means, collectively, all of the documents listed as such in Section 2 of the Contract, including the Bid Documents; Addenda, if any; the Bid, and attachments thereto; the Contract; the Notice of Potential Award and Notice to Proceed; the payment and performance bonds; the General Conditions; the Special Conditions; the Project Plans and Specifications; Change Orders; Partial Agreement Change Orders, Field Orders; and any other documents which are clearly and unambiguously made part of the Contract Documents. The Contract Documents do not include Reference Documents , or documents that are intended solely to provide information regarding existing conditions. Contract Documents are sometimes also referred to as “Contract”.
Compensable Change for which Contractor may have an express right to a Contract Adjustment, means circumstances involving the performance of Extra Work: (1) that are the result of (a) differing site conditions, (b) amendments or additions to Laws which are enacted after the Bid submission deadline, (c) a Change requested by District in the manner required herein, for authorization of Compensable Changes, or (d) District’s breaches of obligations under the Contract Documents or other circumstances involving a Change in the Work for which Contractor is given under the Contract Documents a specific and express right to a Contract Modification, including Compensable Delays and/or Extra Work; (2) that are not caused, in whole or in part, by (a) an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, or a violation of an Law, or (b) a failure by Contractor to comply with the Contract Documents; (3) for which a Contract Modification is neither prohibited by nor waived under the terms of the Contract Documents; and (4) that if performed would require Contractor to incur additional and unforeseeable Allowable Costs that would not have been required to be incurred in the absence of such circumstances.
Compensable Delay Contractor shall have an express right to a Contract Adjustment for “Compensable Delay” which means a Delay to the critical path of activities affecting Contractor’s ability to achieve Substantial Completion of the entirety of the Work within the Contract Time: (1) that is the result of (a) a Compensable Change, (b) the active negligence of District, a District Consultant, or a separate contractor/design-builder performing work at the campus, (c) a breach by District of an obligation under the Contract Documents, or (d) other circumstances involving Delay for which Contractor is given under the Contract Documents a specific and express right to a Contract Modification adjusting the Contract Price; (2) that is not caused, in whole or in part, by (a) an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, or a violation of an Law, or (b) a failure by Contractor to comply with the Contract Documents; and (3) for which a Contract Adjustment to the Contract Time is neither prohibited by nor waived under the terms of the Contract Documents. For the District, “Compensable Delay” means a Delay to the critical path of activities of the Project extending the Substantial Completion of the entirety of the Work that is caused by the Contractor and/or anyone for whom the Contractor is legally responsible for to the District.
Construction Manager means the individual designated by District to oversee and manage the Project on District’s behalf and may include his or her authorized delegee(s) when the Construction Manager is unavailable. If no Construction Manager has been designated for this Project, any reference to Construction Manager is deemed to refer to the Facilities Director.
Contract Modification means an adjustment, additive and/or deductive, to the Contract Price or Contract Time that is permitted by the Contract Documents on the grounds or circumstances constituting Compensable Change, Compensable Delay, or Deleted Work.
Contract Price means the total compensation to be paid to Contractor for the complete performance of the Work in accordance with the Contract Documents, which is based upon the Contractor’s Bid as adjusted for: (1) Alternates accepted by the District in the Contract or a Change Order/Partial Change Order/Field Order; and /or (2) Contract Modifications.. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, supplies or equipment following Contractor’s submission of the Bid.
Contract Time means the total number of Days set forth in the Contract within which Contractor is obligated to achieve Substantial Completion and Final Completion of the Work, as extended or shortened by Change Orders.
Contractor means the individual, partnership, corporation, or joint-venture that has entered into the Contract with District to perform the Project Work.
Day means a calendar day unless otherwise specified.
Design Professional means the licensed individual(s) or firm(s) retained by District to provide architectural, engineering, or electrical engineering design services for the Project. If no Design Professional has been retained for this Project, any reference to Design Professional is deemed to refer to the Facilities Director.
DIR means the California Department of Industrial Relations.
District means the San Joaquin Delta Community College District, acting through its Board of Trustees, officers, employees, Facilities Director, and any other authorized representatives, such as without limitation the Construction Manager.
District Controlled Allowance means a specific amount that must be included in the Contractor’s Bid and becomes part of the Contract Price to be used by the Contractor for the specified purpose only after District approval. The District Controlled Allowance amount includes Contractor’s direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable District Controlled Allowance item. All other costs, including Contractor’s overall project management and general conditions costs, overhead and fee, are deemed to be included in the original Contract Price and are not subject to adjustment, regardless of the actual amount of the District Controlled Allowance Item.
Drawings has the same meaning as Plans.
DSA means the Division of the State Architect.
Excusable Delay means a Delay, other than a Compensable Delay, to Contractor’s ability to achieve Substantial Completion or Final Completion of the Work within the Contract Time that is: (1) not caused, in whole or in part, by an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of a Law or a failure by Contractor to comply with the Contract Documents; (2) unforeseeable, unavoidable and beyond the control of Contractor and the Subcontractors, of every Tier; and (3) the result of a Force Majeure Event. Without limitation to the foregoing, neither the bankruptcy, insolvency nor financial inability of Contractor or a Subcontractor, of any Tier, nor any failure by a Subcontractor, of any Tier, to perform any obligation imposed by the Contract Documents or Laws, unless such failure is itself caused by Force Majeure, shall constitute a ground for Excusable Delay. A Force Majeure Event includes delays caused by other governmental agencies having jurisdiction over the Project. Excusable Delays are not compensable to the Contractor, anyone performing under, by or through the Contractor, or the District.
Extra Work means new or unforeseen work added to the Project, as determined by the Construction Manager or Facilities Director in his or her sole discretion, including Work that was not part of or incidental to the scope of the Work when the Contractor’s Bid was submitted; Work that is substantially different from the Work as described in the Bid Documents at the deadline for Bid submission; or Work that results from a substantially differing and unforeseeable condition.
Facilities Director means the Facilities Director for the San Joaquin Delta Community College District and his or her authorized delegees.
Final Completion means the point at which the following conditions have occurred with respect to the entire Work:
.1 the Work is fully completed, including all minor corrective, or "Final Punch List," items;
.2 all permits, approvals and certificates by Government Authorities, such as, but not necessarily limited to, a permanent or temporary certificate of occupancy required to occupy and use the Work have been issued free of any conditions that are the result of an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of an Law or a failure by Contractor to comply with the Contract Documents;
.3 the Work and the related portions of the Worksite have been thoroughly cleared of all construction debris and cleaned in accordance with the requirements of the Contract Documents, including, but not necessarily limited to where applicable, the following: removal of temporary protections; removal of marks, stains, fingerprints and other soil and dirt from painted, decorated and natural-finished woodwork and other Work; removal of spots, plaster, soil and paint from ceramic tile, marble and other finished materials; all surfaces, fixtures, cabinet work and equipment are wiped and washed clean and in an undamaged, new condition; all aluminum and other metal surfaces are cleaned in accordance with recommendations of the manufacturer; and all stone, tile and resilient floors are cleaned thoroughly in accordance with the manufacturer’s recommendations and buff dried by machine to bring the surfaces to sheen;
.4 all conditions set forth in the Contract Documents for Substantial Completion of the Work have been, and continue to be, fully satisfied;
.5 all conditions pertaining to the Work and required for the release of District’s obligations (including, but not limited to, release of District’s bond obligations) to Government Authorities (including, but not limited to, matters involving grading, flood control, public works, transportation and traffic) have been satisfied; and
.6 Contractor has delivered to District all Close-Out Documents required by the Contract Documents and Law.
Final Completion Punchlist means that upon the Contractor achieving Substantial Completion, a list of remaining minor and/or trivial items that are incomplete or defective that do not prevent occupancy or beneficial use of the Work, which can include, without limitation, minor or trivial items in the Work, the delivery of spare parts, delivery of owner operation manuals, final clean up, etc. that must be corrected and/or completed by Contractor to achieve Final Completion in accordance with the Contract Documents. Upon reaching Substantial Completion, a Final Completion Punch List will be prepared and a value estimated for each item thereon which shall be communicated to the District.
Final Payment means payment to Contractor of the unpaid Contract Price due to Contractor following Final Completion, including release of undisputed retention, less amounts withheld or deducted pursuant to the Contract Documents and/or Law.
Force Majeure Event means an event that cannot be controlled by either the District or Contractor, which affects the District’s or Contractor’s ability to fulfill an obligation(s) under the Contract, and is restricted to any the following:
(1) Acts of God occurring at the Worksite and/or if not at the Worksite, then which affects the Worksite; (2) terrorism or other acts of a public enemy; (3) orders of Government Authorities (including, without limitation, unreasonable and unforeseeable Delay in the issuance of permits or approvals by Government Authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Worksite and the effects thereof on the Work to the extent such strikes and other organized labor action are beyond the reasonable control of Contractor and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be reasonably avoided by use of replacement workers or implementation of a dual gate system of entry to the Worksite; or (6) unusual shortages in materials and resulting delivery delay of those materials that are supported by documented proof that: (a) the Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated as of Contractor’s Bid submission. Force Majeure Events are not Compensable Delays. Force Majeure Events may be non-compensable delays leading only to non-compensable time extensions. Moreover, any additional costs incurred by either the District and/or Contractor that are the result of a Force Majeure Event shall be borne solely by the party that incurred such costs, as long as the additional costs are not the direct result of the failure of the other Party to meet an obligation under this Contract. However, the District may consider compensating the Contractor for an increase in the cost of materials and commodities if: (1) the Contractor incurs an increase in the cost of materials and commodities due to changed market conditions directly and only resulting from a Force Majeure Event; (2) this cost increase(s) is incurred by the Contractor after the Bid submission date and Contract execution; (3) the cost increase(s) is not the result of the failure of the Contractor to meet an obligation under the Contract; and (4) the cost increase(s) could not have been avoided through placing an order for materials and/or commodities at an earlier point in time after award of the Contract to the Contractor.
Furnish means to purchase and deliver for the Project.
Government Authority/Government Authorities means the United States, the State of California, the County of San Joaquin, the City in which the Project is located, DSA, any other local, regional, state or federal political subdivision, authority, agency, department, commission, board, bureau, court, judicial or quasi- judicial body, and any legislative or quasi-legislative body, or instrumentality of any of them, which exercises jurisdiction over the Project, Work, Worksite, Contractor or District, including, without limitation, any Government Authority having jurisdiction to review and approve or reject the Contract Documents or the Work based on compliance or non-compliance with Laws.
Hazardous Materials means any substance or material identified now or in the future as hazardous under any Laws, or any other substance or material that may be considered hazardous or otherwise subject to Laws governing handling, disposal, or cleanup.
Including, whether or not capitalized, means “including, but not limited to,” unless the context clearly requires otherwise.
Inspector means the individual(s) or firm(s) retained or employed by District to inspect the workmanship, materials, and manner of construction of the Project and its components to ensure compliance with the Contract Documents and all Laws and includes DSA-certified inspectors.
Install means to fix in place for materials, and to fix in place and connect for equipment.
Law(s) means all applicable local, state, and federal laws, regulations, rules, codes, ordinances, permits, orders, and the like enacted or imposed by or under the auspices of any Government Authority.
Liquidated Damages is defined in Sections 6 and 7 of Attachment S, Contract.
Non-Excusable Delay is defined in Section 11.5.3(D), Non-Excusable Delay.
Plans means the District-provided plans, drawings, details, or graphical depictions of the Project requirements, but does not include Shop Drawings.
Project means the public works project referenced in the Contract.
PLCWA means the Project Labor and Community Workforce Agreement for the District.
Reference Documents means reports, studies, surveys, and other information provided by District for Contractor’s review and consideration in preparing its Bid, including, without limitation, information describing the Worksite (including surface or subsurface conditions), Existing Improvements or Hazardous Substances at the Worksite. Reference Documents are not part of the Contract.
Request for Information or RFI means Contractor’s written request for clarification of what it perceives to be a discrepancy in the Contract Documents, or request for information regarding the Work or the Project, submitted to District by Contractor in the manner and format specified by District.
Section, when capitalized in these General Conditions, means a numbered section or subsection of the General Conditions, unless the context clearly indicates otherwise.
Shop Drawings means drawings, plan details or other graphical depictions prepared by or on behalf of Contractor, and subject to District acceptance, which are intended to provide details for fabrication, installation, and the like, of items required by or shown in the Plans or Specifications.
Specialty Work means Work that must be performed by a specialized Subcontractor with the specified license or other special certification, and that the Contractor is not qualified to self-perform.
Specifications means the technical, text specifications describing the Project requirements, which are prepared for and incorporated into the Contract by or on behalf of District, and does not include the Contract, General Conditions or Special Conditions.
Subcontractor means an individual, partnership, corporation, or joint venture retained by Contractor directly or indirectly through a subcontract to perform a specific portion of the Work. The term Subcontractor applies to subcontractors of all tiers, unless otherwise indicated by the context. A third party such as a utility performing related work on the Project is not a Subcontractor, even if Contractor must coordinate its Work with the third party.
Substantial Completion means the point at which all of the following conditions have occurred with respect to the entire Work or a portion of the Work designated by District in writing to be Substantially Completed before Substantial Completion of the entire Work:
.1 such Work is sufficiently and entirely complete in accordance with Contract Documents so that such Work can be fully enjoyed and beneficially occupied and utilized by District for its intended purpose (except for minor and/or trivial items which do not impair District's ability to so occupy, use, and/or enjoy, such Work);
.2 all permits, approvals, and certificates by Government Authorities, such as, but not necessarily limited to, a permanent or temporary certificate of occupancy required to occupy and use such Work have been issued free of any conditions that are the result of an act or omission of Contractor, or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of a Law or a failure by Contractor to comply with the Contract Documents; and all permits, approvals, and certificates by Government Authorities, such as, but not necessarily limited to, a permanent or temporary certificate of occupancy required to occupy and use such Work have been issued free of any conditions that are the result of an act or omission of Contractor, or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of Law or a failure by Contractor to comply with the Contract Documents; and
.3 all building systems included in such Work are operational as specified, all designated or required inspections and certifications by Government Authorities have been made and posted, and instruction and training of District’s personnel in the operation of the systems has been completed.
Substantial Completion Punch List means a list of items of Work to be completed or corrected by the Contractor to achieve Substantial Completion. The items on the Substantial Completion Punch List are not priced. This list is not the Final Punch List that is prepared once Substantial Completion has been achieved.
Surety means Contractor’s surety issuing the Bid Bond, Performance Bond and/or Payment Bond.
Technical Specifications has the same meaning as Specifications.
Work means all labor, services, materials, equipment, apparatus, supplies, permits, licenses, taxes and other things necessary for or incidental to Contractor meeting its obligations under the Contract Documents, including without limitation any Changes requested by District, in accordance with the Contract Documents and all Laws. The Work may constitute the whole or a part of the Project.
Work Day or Working Day, whether or not capitalized, means a weekday when the District is open for business, and does not include holidays observed by the District.
Worksite means the place or places where the Work is performed, which includes, but may extend beyond the Project site, including separate locations for staging, storage, or fabrication.
The estimated construction cost is $1,000,000.00 including a District Controlled Allowance.
Pursuant to California Labor Code § 1720 et seq., this Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes.
Each Subcontractor must be registered with the DIR to perform work on public projects. Each Bidder must submit a completed Subcontractor List form with its Bid, including the name, location of the place of business, California contractor license number, DIR registration number, and percentage of the Work to be performed (based on the Bid amount) for each Subcontractor that will perform Work or fabricate or install Work for the Contractor in excess of one-half of 1% of the Bid amount, using the Subcontractor List form included with the Bid Documents.
The Mandatory Bidders’ Conference will be held at PROCUREMENT CONFERENCE ROOM DANNER BASEMENT B4 on Tuesday, June 9, 2026, at 8:30 am to acquaint interested prospective Bidders with the Contract Documents and the Worksite. A parking permit is required at this time.
Bidders will be required to sign in at the Mandatory Bidders’ Conference. Any Bid submitted by a Bidder whose name does not appear on the sign-in sheet shall be considered non-responsive. Failure to attend the entire Mandatory Bidders’ Conference on the above-mentioned date will disqualify a Bidder from its Bid being opened and considered. Public Contract Code 6610 requires the pre-bid conference be set five (5) Days or more after publication of the advertisement for bids.
The Project is located at Stockton Main Campus, 5151 Pacific Ave, Stockton, California 95207, and is described as follows:
Substitution of appropriate securities in lieu of retention amounts from progress payments is permitted under Public Contract Code § 22300.
District may not accept a Bid from or enter into the Contract with a Bidder, without proof that the Bidder is registered with the California Department of Industrial Relations (“DIR”) to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.
These prevailing rates are on file with the District and are available online at http://www.dir.ca.gov/DLSR. Each Contractor and Subcontractor must pay no less than the specified rates to all workers employed to work on the Project. The schedule of per diem wages is based upon a working day of eight (8) hours. The rate for holiday and overtime work must be at least time and one-half.
11.2.1 District.
A. Board of Trustees. The Board of Trustees has final authority in all matters affecting the Project, except to the extent it has delegated authority to the Superintendent/President, or his her designee.
B. Facilities Director. The Facilities Director, acting within the authority conferred by the Board of Trustees, is responsible for administration of the Project on behalf of District, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project. The Facilities Director’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents.
C. Associate Vice President of Bond Programs. If the Project is funded by Measure K bond funds, the Associate Vice President of Bond Programs, acting within the authority conferred by the Board of Trustees, is responsible for administration of the Project on behalf of District, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project. The Associate Vice President of Bond Programs’ decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents.
D. Construction Manager. The Construction Manager assigned to the Project will be the primary point of contact for the Contractor and will serve as District’s representative for daily administration of the Project on behalf of District. Unless otherwise specified, all of Contractor’s communications to District (in any form) will go to or through the Construction Manager. District reserves the right to reassign the Construction Manager role at any time or to delegate duties to additional District representatives, without prior notice to or consent of Contractor.
E. Design Professional. The Design Professional is responsible for the overall design of the Project and, to the extent authorized by District, may act on District’s behalf to ensure performance of the Work in compliance with the Plans and Specifications, including any design changes authorized by Change Order. The Design Professional’s duties may include review of Contractor’s submittals and/or Payment Applications, visits to any Worksite, inspecting the Work, evaluating test and inspection results, and participation in Project-related meetings, including any pre-construction conference, weekly meetings, and coordination meetings. The Design Professional’s interpretation of the Plans or Specifications is final and conclusive.
11.2.2 Contractor.
A. General. Contractor must provide all labor, materials, supplies, equipment, services, and incidentals necessary to perform and timely complete the Work in strict accordance with the Contract Documents, and in an economical and efficient manner in the best interests of District, and with minimal inconvenience to the public.
B. Responsibility for the Work and Risk of Loss. Contractor is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely completion of the Work. Contractor is solely responsible for and required to exercise full control over the Work, including the construction means, methods, techniques, sequences, procedures, safety precautions and programs, and coordination of all portions of the Work with that of all other contractors and Subcontractors, except to the extent that the Contract Documents provide other specific instructions. Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by District or specified in the Contract Documents. From the date of commencement of the Work until either the date on which District formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft, subject to the limitations of Laws, including Public Contract Code § 7105.
C. Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents. Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf. A Subcontractor may not serve as Contractor’s primary representative.
D. On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to District, and assistants as necessary, who must be physically present at the Project Worksite while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to District. District’s approval of the superintendent is required before the Work commences. If District is not satisfied with the superintendent’s performance, District may request a qualified replacement of the superintendent. Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved superintendent is physically present to supervise the Work. Contractor must provide written notice to District, as soon as practicable, and receive District’s written approval of replacement superintendent, which will not be unreasonably withheld, before replacing the superintendent.
E. Standards. Contractor must, at all times, ensure that the Work is performed in an efficient, skillful manner following best practices and in full compliance with the Contract Documents and Laws and applicable manufacturer’s recommendations. Contractor has a material and ongoing obligation to provide true and complete information, to the best of its knowledge, with respect to all records, documents, or communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.
F. Meetings. Contractor, its project manager, superintendent and any primary Subcontractors requested by District, must attend a pre-construction conference, if requested by District, as well as weekly Project progress meetings scheduled with District. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project Worksite or in relation to the Project, including work or activities performed by District, other contractors/design-builders, or other utility owners.
PLCWA Pre-Construction Conference (If Applicable). If the Project is subject to District’s PLCWA as specified in the Instructions to Bidders, District will designate a date and time for the pre-construction conference required under the PLCWA following Contract execution. A representative of Contractor must attend the conference and be prepared to discuss the following: the scope of Work, craft assignments, the estimated number of workers required to perform the Work, transportation arrangements, the estimated start and completion dates of the Work, and any pre-fabricated materials that will be incorporated into the Work.
PLCWA Review Meetings (If Applicable). If the Project is subject to District’s PLCWA, District may require Contractor’s attendance at periodic review meetings in order to ensure that the terms of the PLCWA are fulfilled and any concerns of the District, unions, and contractors, including Contractor, are addressed.
G. Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each Day that Work is performed on the Project. The daily report for each Day must include the number of workers at the Project Worksite; primary Work activities; major deliveries; problems encountered, including injuries, if any; weather and site conditions; and delays, if any. Contractor will take date and time-stamped photographs to document general progress of the Project, including Worksite conditions prior to construction activities, before and after photographs at offset trench laterals, existing improvements and utilities, damage and restoration. Contractor will maintain copies of all subcontracts, Project-related correspondence with subcontractors, and records of meetings with Subcontractors. Upon request by the District, Contractor will permit review of and/or promptly provide copies of any of these construction records.
H. Responsible Party. Contractor is solely responsible to District for the acts or omissions of any Subcontractors, or any other party or parties performing portions of the Work or providing equipment, materials or services for or on behalf of Contractor or the Subcontractors. Upon District’s written request, Contractor must promptly and permanently remove from the Project, at no cost to District, any employee or Subcontractor or employee of a Subcontractor who the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager have determined to be incompetent, intemperate or disorderly, or who has failed or refused to perform the Work as required under the Contract Documents.
I. Correction of Defects. Contractor must promptly correct, at Contractor’s sole expense, any Work that is determined by District to be deficient or defective in any way, including workmanship, materials, parts or equipment. Workmanship, materials, parts or equipment that do not conform to the requirements under the Contract Document, as determined by District, will be considered defective and subject to rejection. Contractor must also promptly correct, at Contractor’s sole expense, any Work performed beyond the lines and grades shown on the Plans or established by District, and any Extra Work performed without District’s prior written approval. If Contractor fails to correct or to take reasonable steps toward correcting defective Work within five (5) Days following notice from District, or within the time specified in District’s notice to correct, District may elect to have the defective Work corrected by its own forces or by a third party, in which case the cost of correction will be deducted from the Contract Price. If District elects to correct defective Work due to Contractor’s failure or refusal to do so, District or its agents will have the right to take possession of and use any equipment, supplies, or materials available at the Project Worksite on District property, in order to effectuate the correction, at no extra cost to District. Contractor’s warranty obligations pursuant to the Contract will not be waived nor limited by District’s actions to correct defective Work under these circumstances. Alternatively, District may elect to retain defective Work, and deduct the difference in value, as determined by the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager, from payments otherwise due to Contractor. This paragraph applies to any defective Work performed by Contractor during the one-year warranty period required by the Contract.
J. Contractor’s Records. Contractor must maintain all of its records relating to the Project in the form required by the District, including paper documents, photos, videos, electronic records, approved samples, and the construction records required pursuant to paragraph (G), above. Project records subject to this provision include complete Project cost records and records relating to preparation of Contractor’s Bid, including estimates, take-offs, and price quotes or bids.
Contractor’s cost records must include all supporting documentation, including original receipts, invoices, and payroll records, evidencing its direct costs to perform the Work, including, but not limited to, costs for labor, materials and equipment. Each cost record should include, at a minimum, a description of the expenditure with references to the applicable requirements of the Contract Documents, the amount actually paid, the date of payment, and whether the expenditure is part of the original Contract Price, related to an executed Change Order, or otherwise categorized by Contractor as Extra Work. Contractor’s failure to comply with this provision as to any claimed cost operates as a waiver of any rights to recover the claimed cost.
Contractor must continue to maintain its Project-related records in an organized manner for a period of five (5) years after District’s acceptance of the Project or following Contract termination, whichever occurs first. Subject to prior notice to Contractor, District is entitled to inspect or audit any of Contractor’s Project records relating to the Project or to investigate Contractor’s plant or equipment during Contractor’s normal business hours. The record-keeping requirements set forth herein will survive expiration or termination of the Contract.
K. Copies of Project Documents. Contractor and its Subcontractors must keep copies, at the Project Worksite, of all Work-related documents, including, without limitation, the Contract, permit(s), Plans, Specifications, Addenda, Contract amendments, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily records, testing and inspection reports or results, and any related written interpretations. These documents must be available to District for reference at all times during construction of the Project.
11.2.3 Subcontractors.
A. General. All Work which is not performed by Contractor with its own forces must be performed by Subcontractors. District reserves the right to approve or reject any and all Subcontractors proposed to perform the Work, for reasons including the Subcontractor’s poor reputation, lack of relevant experience, financial instability, and lack of technical ability or adequately trained workforce.
B. Contractual Obligations. Contractor must require each Subcontractor to comply with the provisions of the Contract Documents as they apply to the Subcontractor’s portion(s) of the Work, including the generally applicable terms of the Contract Documents, and to likewise bind their Subcontractors. Contractor will provide that the rights that each Subcontractor may have against any manufacturer or supplier for breach of warranty or guarantee relating to items provided by the Subcontractor for the Project, will be assigned to District. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and District, but District is deemed to be a third-party beneficiary of the contract between Contractor and each Subcontractor.
C. Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by Contractor to District, subject to the prior rights of any Surety, but only if and to the extent that District accepts, in writing, the assignment by written notification, and assumes all rights and obligations of Contractor pursuant to each such subcontract agreement.
D. Substitution of Subcontractor. If Contractor requests substitution of a listed Subcontractor under Public Contract Code § 4107, Contractor is solely responsible for all resulting Project delays, as well as all costs District incurs in responding to the request, including legal fees and costs to conduct a hearing, and any increased subcontract cost to perform the Work that was to be performed by the listed Subcontractor. If District determines that a Subcontractor is unacceptable to District based on the Subcontractor’s failure to satisfactorily perform its Work, or for any of the grounds for substitution listed in Public Contract Code § 4107(a), District may request removal of the Subcontractor from the Project. Upon receipt of a written request from District to remove a Subcontractor pursuant to this paragraph, Contractor will immediately remove the Subcontractor from the Project and, at no further cost to District, will either (1) self-perform the remaining Work to the extent that Contractor is duly licensed and qualified to do so, or (2) substitute a Subcontractor that is acceptable to District, in compliance with Public Contract Code § 4107, as applicable.
11.2.4 Coordination of Work.
A. Concurrent Work. District reserves the right to perform, have performed, or permit performance of other work on or adjacent to the Project Worksite while the Work is being performed for the Project. Contractor is responsible for coordinating its Work with other work being performed on or adjacent to the Project Worksite, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, design-builders, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by District. To the full extent permitted by law, Contractor must hold harmless and indemnify District against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor, design-builder or subcontractor.
B. Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface. Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Construction Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work. Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify District if work performed by others, including work or activities performed by District’s own forces, is operating to hinder, delay, or interfere with Contractor’s timely performance of the Work. District reserves the right to back charge Contractor for any additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.
11.2.5 Submittals.
Unless otherwise specified, Contractor must submit to the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager for review and acceptance, all schedules, Shop Drawings, samples, product data, and similar submittals required by the Contract Documents, or upon request by the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager. Unless otherwise specified, all submittals, including Requests for Information, are subject to the general provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed.
A. General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.
B. Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current District-accepted schedule for the Work and within the applicable time specified in the Contract Documents, or if no time is specified, in such time and sequence so as not to delay the performance of the Work or completion of the Project.
C. Required Contents. Each submittal must include the Project name and contract number, Contractor’s name and address, the name and address of any Subcontractor or supplier involved with the submittal, the date, and references to applicable Specification section(s) and/or drawing and detail number(s).
D. Required Corrections. If corrections are required, Contractor must promptly make and submit any required corrections as specified in full conformance with the requirements of this Section, or other requirements that apply to that submittal.
E. Effect of Review and Acceptance. Review and acceptance of a submittal by District will not relieve Contractor from complying with the requirements of the Contract Documents. Contractor is responsible for any errors in any submittal, and review or acceptance of a submittal by District is not an assumption of risk or liability by District.
F. Enforcement. Any Work performed or any material furnished, installed, fabricated or used without District’s prior acceptance of a required submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing and replacing such Work, repairs to other affected portions of the Work or material, and the cost of additional time or services required of District, including costs for the Design Professional, Construction Manager, or Inspector.
G. Excessive RFIs. A RFI will be considered excessive or unnecessary if District determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. District’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.
11.2.6 Shop Drawings.
When Shop Drawings are required by the Specifications or requested by the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary details. Unless otherwise specified by District, Shop Drawings must be provided to the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager for review and acceptance at least thirty (30) Days before the Work will be performed. If District requires changes, the corrected Shop Drawings must be resubmitted to the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager for review within the time specified by the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager. For all Project components requiring Shop Drawings, Contractor will not furnish materials or perform any Work until the Shop Drawings for those components are accepted by District. Contractor is responsible for any errors or omissions in the Shop Drawings, shop fits and field corrections; any deviations from the Contract Documents; and for the results obtained by the use of Shop Drawings. Acceptance of Shop Drawings by District does not relieve Contractor of Contractor’s responsibility.
11.2.7 Access to Work.
Contractor must afford prompt and safe access to any Worksite by District and its employees, agents, or consultants authorized by District; and upon request by District, Contractor must promptly arrange for District representatives to visit or inspect manufacturing sites or fabrication facilities for items to be incorporated into the Work.
11.2.8 Personnel.
Contractor and its Subcontractors must employ only competent and skillful personnel to perform the Work. Contractor and its Subcontractor’s supervisors, security or safety personnel, and employees who have unescorted access to the Project Worksite must possess proficiency in English sufficient to read, understand, receive, and implement oral or written communications or instructions relating to their respective job functions, including safety and security requirements. Upon written notification from the Facilities Director, Associate Vice President of Bond Programs, and/or Construction Manager, Contractor and its Subcontractors must immediately discharge any personnel who are incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse or fail to comply with the requirements of the Contract Documents or Laws, including Laws pertaining to health and safety. Any such discharged personnel, may not be re-employed or permitted on the Project in any capacity without District’s prior written consent.
11.2.9 Attire.
At all times, Contractor personnel must be dressed in proper attire while performing Work on District grounds. Proper attire is defined as sturdy shoes or boots (no tennis or similar type shoes will be permitted), long pants, shirts with sleeves, hard hat, and safety glasses.
11.2.10 Drugs, Alcohol, Tobacco, and Noise at the Worksite.
Contractor and Subcontractors must not: use, possess, consume or perform Work under the influence of alcohol or drugs, illegal or otherwise, at the Worksite or on District property; use any form of tobacco products at the Worksite or on District property; or use music or audio devices, including radios or personal headphone devices, for entertainment while performing Work. Contractor will implement measures to: (i) notify all personnel at the Worksite of these limitations; and (ii) prevent the prohibited conduct. District reserves the right to remove any personnel that violates the District’s policies relating to drugs, alcohol, tobacco, and noise.
11.2.11 Division of the State Architect.
If the Project is subject to the jurisdiction of the DSA, the following requirements apply:
A. DSA Oversight. The Work is subject to continuous observation by the Inspector and materials incorporated into the Work are subject to testing and inspection, as required by the DSA. Contractor will promptly, without adjustment of the Contract Price or Contract Time, repair, replace, or correct Work deemed defective or non-conforming by the Inspector or District.
B. DSA Regulations. The Project is subject to DSA Procedure (“PR”) 13-01. Contractor will timely complete all actions required under DSA PR 13-01 and any other applicable DSA regulations, including those required for the submission of verified reports, and comply with all DSA requirements.
C. Testing and Inspection. Any testing or inspection of materials will be conducted by qualified consultants retained by the District and authorized by the DSA. Contractor will cooperate with the District to schedule and coordinate testing and inspections with the progress of the Work. Contractor will be liable for costs and expenses resulting from Work that is not ready for testing or inspection as scheduled. The District is responsible for costs, fees, and expenses for completing the initial testing or inspection. If the results of an initial test or inspection do not conform with required standards, Contractor will be responsible for all costs, fees, and expenses for subsequent testing or inspection, which will be deducted from the Contract Price, as well as any required re-work.
D. DSA Certification. Contractor is required to complete all Work in a manner that is sufficient for DSA to issue a certification that the Work, as constructed, complies with the DSA-approved design documents.
Each Bid must be completed using the Bid Form attached hereto as Attachment A and the District’s procurement management system. A Bid submitted with exceptions or terms such as “negotiable,” “will negotiate,” or similar, will be considered nonresponsive. Each Bid must be accompanied by bid security, as set forth in the Bid Documents, and the following completed Attachments using the forms included with the Bid Documents.
Attachment A – Bid Form
Attachment B – Summary of Costs and Bid Breakdown
Attachment C – Bid Bond Form
Attachment D – Declaration of Sufficiency of Funds
Attachment E – Non-Collusion Declaration
Attachment F – Non-Discrimination Declaration
Attachment G – Conflict of Interest Certification
Attachment H – Workers Compensation Certification
Attachment I – Certifications and Representations
Attachment J – Authority to Release Information
Attachment K – Evidence of Required Insurance
Attachment L – Safety Statement Record
Attachment M – Designation of Subcontractors
Attachment N – Acknowledgement of Addenda
Attachment O – Agreement to be Bound
Attachment P – Payment Bond Form
Attachment Q – Performance Bond Form
Attachment R – Escrow Agreement Form
Attachment S – Contract Form
Attachment T – Special Conditions
Attachment U – Project Specifications
Attachment V – Approved Plans
Attachment Z – Reference Documents
Attachment AA – DSA Structural Tests and Special Inspections
The Project schedule is:
150 Days from Notice to Proceed to Substantial Completion
150 Days from Substantial Completion to Final Completion
For this procurement, the District will accept digital signatures that meet the requirements listed on the State’s website: https://www.sos.ca.gov/administration/regulations/current-regulations/technology/digital-signatures. Systems such as DocuSign or similar, for example, which provide a unique digital certificate when signed, are acceptable. Each Bid must be signed by the Bidder’s authorized representative. A Bid submitted by a partnership must be signed in the partnership name by a general partner with authority to bind the partnership. A Bid submitted by a corporation must be signed with the legal name of the corporation, followed by the signature and title of two officers of the corporation with full authority to bind the corporation to the terms of the Bid, under California Corporation Code § 313.
The Project is subject to the jurisdiction of the Division of the State Architect (“DSA”).
The Contract will be subject to compliance monitoring and enforcement by the DIR, under Labor Code § 1771.4.
Liquidated Damages
Liquidated Damages Against Contractor: $1,000.00 per day
Liquidated Damages Against District: $1,000.00 per day
See General Conditions and other Contract Documents for more information.
Each Bid must be accompanied by bid security of ten percent (10%) of the Bid amount, in the form of a cashier’s check or certified check, made payable to the District, or bid bond using the form included in the Bid Documents and executed by a surety licensed to do business in the State of California with an A.M. Best’s financial strength rating of “A-” or better and a financial size rating of “VII” or better. Bid security must be submitted electronically AND submitted as a hard copy and both must be received by the District 1) via electronic upload to the procurement management system and 2) via hard copy by hand delivery to Receiving Dock or mail to 5151 Pacific Avenue, Stockton, CA 95207, ATTN: Glenn Aguon with the Bid # and Project name clearly identified on the envelope BEFORE Bid open date and time prescribed for the Bid to be deemed responsive. The bid security must guarantee that, within ten (10) Days after issuance of the Notice of Potential Award, the Bidder will: execute and submit the enclosed Contract for the Bid amount; submit payment and performance bonds for 100% of the Contract Price; and submit the insurance certificates and endorsements, Supplier Registration Form, Agreement to be Bound by the District’s Project Labor and Community Workforce Agreement (“PLCWA”), and any other submittals required by the Bid Documents or the Notice of Potential Award. A Bid may not be withdrawn for a period of ninety (90) Days after the Bid opening without forfeiture of the bid security, except as authorized for material error under Public Contract Code § 5100 et seq.
10.4.1 Bid Security Envelope. The envelope containing the sealed Bid Security must be clearly labeled and addressed as follows:
BID SECURITY:
2026 All Gender Restrooms
2026-RFB-020
San Joaquin Delta Community College District
Danner Hall – Danner Basement – B4
5151 Pacific Avenue
Stockton, CA 95207
Attn: Glenn Aguon
Assistant Director of Procurement and Contract Services
The envelope must also be clearly labeled, as follows, with the Bidder’s name, address, and its registration number with the California Department of Industrial Relations (“DIR”) for bidding on public works contracts (Labor Code §§ 1725.5 and 1771.1):
[Contractor company name]
[street address]
[city, state, zip code]
DIR Registration No: ______________
Prospective Bidders will be required to complete a vendor registration on OpenGov to submit technical and general questions. Questions and requests for clarifications (“RFC’s”) regarding the Project, bidding procedures, Bid Documents or any of the Contract Documents must be submitted through the procurement management system. Oral responses are not authorized and are not binding. Bidders must submit any such written inquiries by 2:00 pm on Tuesday, June 9, 2026. Questions received any later will not be addressed before the Bid deadline. Last day for the District to issue an Addendum addressing inquiries is on June 15, 2026. The District will only respond to RFC’s submitted in accordance with the Bid Documents via Addendum using the District’s procurement management system.
The Project is subject to the Project Labor and Community Workforce Agreement. See Attachments for document details.
10.6.1 General. Each Bidder is solely responsible at its sole expense for diligent and thorough review of the Contract Documents, examination of the Project Worksite, and reasonable and prudent inquiry concerning known and potential site and area conditions prior to submitting a Bid. Each Bidder is responsible for knowledge of conditions and requirements which reasonable review and investigation would have disclosed. However, except for any areas that are open to the public at large, Bidders may not enter property owned or leased by the District or the Project Worksite without prior written authorization from District.
10.6.2 Document Review. Each Bidder is responsible for review of the Contract Documents and any Reference Documents, as hereinafter defined, provided “For Reference Only,” e.g., as-builts, technical reports, test data, and the like. A Bidder is responsible for notifying District of any errors, omissions, inconsistencies, or conflicts it discovers in the Contract Documents, acting solely in its capacity as a contractor and subject to the limitations of Public Contract Code § 1104. Notification of any such errors, omissions, inconsistencies, or conflicts must be submitted in writing to the District as a Request for Clarification pursuant to the Bid Documents. District expressly disclaims responsibility for assumptions a Bidder might draw from the presence or absence of information provided by District.
10.6.3 Project Worksite. Questions regarding the availability of soil test data, water table elevations, and the like should be submitted to the District in writing as a Request for Clarification pursuant to the Bid Documents. Any subsurface exploration at the Project Worksite must be done at the Bidder’s expense, but only with prior written authorization from District. All soil data and analyses available for inspection or provided in the Contract Documents apply only to the test hole locations. Any water table elevation indicated by a soil test report existed on the date the test hole was drilled. The Bidder is responsible for determining and allowing for any differing soil or water table conditions during construction. Because groundwater levels may fluctuate, difference(s) in elevation between ground water shown in soil boring logs and ground water actually encountered during Project construction will not be considered changed Project Worksite conditions. Actual locations and depths must be determined by Bidder’s field investigation. The Bidder may request access to underlying or background information on the Project Worksite in District’s possession that is necessary for the Bidder to form its own conclusions, including, if available, record drawings or other documents indicating the location of subsurface lines, utilities, or other structures.
10.6.4 Utility Company Standards. The Project must be completed in a manner that satisfies the standards and requirements of any affected utility companies or agencies (collectively, “utility owners”). The successful Bidder may be required by the third-party utility owners to provide detailed plans prepared by a California registered civil engineer showing the necessary temporary support of the utilities during the Work. Bidders are directed to contact the affected third-party utility owners about their requirements before submitting a Bid.
No person, firm, or corporation may submit or be a party to more than one Bid unless alternate Bids are specifically called for. However, a person, firm, or corporation that has submitted a subcontract proposal or quote to a Bidder may submit subcontract proposals or quotes to other Bidders.
Subject to the limitations of Public Contract Code § 4104.5, District reserves the right to issue Addenda prior to Bid opening time. Any Addenda issued prior to the Bid opening are part of the Contract Documents. Each Bidder is solely responsible for ensuring it has received and reviewed all Addenda prior to submitting its Bid.
Any specification designating a material, product, thing, or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate quality and type of item desired, and Bidders may request use of any equal material, product, thing, or service. All data substantiating the proposed substitute as an equal item must be submitted with the written request for substitution. A request for substitution must be submitted at least ten (10) Days prior to Bid opening. This provision does not apply to materials, products, things, or services that may lawfully be designated by a specific brand or trade name under Public Contract Code § 3400(c).
Any Bid Protest against another Bidder must be submitted in writing and emailed to purchasing@deltacollege.edu before 5:00 p.m. no later than three (3) Working Days following Bid opening (“Bid Protest Deadline”) and must comply with the following requirements:
10.10.1 General. Only a Bidder who has actually submitted a Bid is eligible to submit a Bid Protest against another Bidder. Subcontractors are not eligible to submit Bid Protests. A Bidder may not rely on the Bid Protest submitted by another Bidder but must timely pursue its own protest. If required by District, the protesting Bidder must submit a non-refundable fee in the amount specified by District, based upon District’s reasonable costs to administer the Bid Protest. Any such fee must be submitted to District no later than the Bid Protest Deadline, unless otherwise specified. For purposes of this Section 10, a “Working Day” means a day that District is open for normal business, and excludes weekends and holidays observed by District. Pursuant to Public Contract Code § 4104, inadvertent omission of a Subcontractor’s DIR registration number on the Subcontractor List form is not grounds for a Bid Protest, provided it is corrected within 24 hours of the Bid opening or as otherwise provided under Labor Code § 1771.1(b).
10.10.2 Protest Contents. The Bid Protest must contain a complete statement of the basis for the protest and must include all supporting documentation. Material submitted after the Bid Protest Deadline will not be considered. The protest must refer to the specific portion or portions of the Bid Documents upon which the protest is based. The protest must include the name, address, email address, and telephone number of the protesting Bidder and any person submitting the protest on behalf of or as an authorized representative of the protesting Bidder.
10.10.3 Copy to Protested Bidder. Upon submission of its Bid Protest to District, the protesting Bidder must also concurrently transmit the protest and all supporting documents to the protested Bidder, and to any other Bidder who has a reasonable prospect of receiving an award depending upon the outcome of the protest, by email or hand delivery to ensure delivery before the Bid Protest Deadline.
10.10.4 Response to Protest. The protested Bidder may submit a written response to the protest, provided the response is received by District before 5:00 p.m., within two (2) Working Days after the Bid Protest Deadline or after actual receipt of the Bid Protest, whichever is sooner (the “Response Deadline”). The response must attach all supporting documentation. Material submitted after the Response Deadline will not be considered. The response must include the name, address, email address, and telephone number of the person responding on behalf of or representing the protested Bidder if different from the protested Bidder.
10.10.5 Copy to Protesting Bidder. Upon submission of its response to the Bid Protest to the District, the protested Bidder must also concurrently transmit by email or hand delivery, by or before the Response Deadline, a copy of its response and all supporting documents to the protesting Bidder and to any other Bidder who has a reasonable prospect of receiving an award depending upon the outcome of the protest.
10.10.6 Exclusive Remedy. The procedure and time limits set forth in this Section are mandatory and are the Bidder’s sole and exclusive remedy in the event of a Bid Protest. A Bidder’s failure to comply with these procedures will constitute a waiver of any right to further pursue a Bid Protest, including, but not limited to initiation of legal proceedings.
10.10.7 Right to Award. District reserves the right, acting in its sole discretion, to reject any Bid Protest that it determines lacks merit, to award the Contract to the Bidder it has determined to be the responsible Bidder submitting the lowest responsive Bid, and to issue a Notice to Proceed with the Work notwithstanding any pending or continuing challenge to its determination.
District reserves the unfettered right, acting in its sole discretion, to waive or to decline to waive any immaterial Bid irregularities; to accept or reject any or all Bids; to cancel or reschedule the Bid; to postpone or abandon the Project entirely; or to perform all or part of the Work with its own forces. The Contract will be awarded, if at all, within ninety (90) Days after opening of Bids or as otherwise specified in the Special Conditions, to the responsible Bidder that submitted the lowest responsive Bid. Any planned start date for the Project represents the District’s expectations at the time the Notice Inviting Bids was first issued. District is not bound to issue a Notice to Proceed by or before such planned start date, and it reserves the right to issue the Notice to Proceed when the District determines, in its sole discretion, the appropriate time for commencing the Work. The District expressly disclaims responsibility for any assumptions a Bidder might draw from the presence or absence of information provided by the District in any form. Each Bidder is solely responsible for its costs to prepare and submit a Bid, including site investigation costs.
Within ten (10) Days following District’s issuance of the Notice of Award to the apparent low Bidder, the Bidder must submit payment and performance bonds to District as specified in the Bid Documents using the bond forms included in the Bid Documents. All required bonds must be calculated on the maximum total Contract Price as awarded, including additive alternates, if applicable.
11.3.1 Interpretation of Contract Documents.
A. Plans and Specifications. The Plans and Specifications included in the Contract Documents are complementary. If Work is shown on one but not on the other, Contractor must perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them as being necessary to meet the requirements of the Contract Documents. The Plans and Specifications are deemed to include and require everything necessary and reasonably incidental to completion of the Work, whether or not particularly mentioned or shown. Contractor must perform all Work and services and supply all labor, materials, equipment, apparatus, supplies, permits, licenses, taxes and other things reasonably related to and inferable from the Contract Documents. In the event of a conflict between the Plans and Specifications, the Specifications will control, unless the drawing(s) at issue are dated later than the Specification(s) at issue. Detailed drawings take precedence over general drawings, and large-scale drawings take precedence over smaller scale drawings. Any arrangement or division of the Plans and Specifications into sections is for convenience and is not intended to limit the Work required by separate trades. A conclusion presented in the Plans or Specifications is only a recommendation. Actual locations and depths must be determined by Contractor’s field investigation. Contractor may request access to underlying or background information in District’s possession that is necessary for Contractor to form its own conclusions.
B. Duty to Notify and Seek Direction. If Contractor becomes aware of a changed condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy, omission, or error in the Contract Documents, including the Plans or Specifications, Contractor must promptly submit a Request for Information to the Construction Manager and wait for a response from District before proceeding further with the related Work. The RFI must notify District of the issue and request clarification, interpretation or direction. The Construction Manager’s clarification, interpretation or direction will be final and binding on Contractor. If Contractor proceeds with the related Work before obtaining District’s response, Contractor will be responsible for any resulting costs, including the cost of correcting any incorrect or defective Work that results. Timely submission of a clear and complete RFI is essential to avoiding delay. Delay resulting from Contractor’s failure to submit a timely and complete RFI to the Construction Manager is Non-Excusable Delay. If Contractor believes that District’s response to an RFI justifies a change to the Contract Price or Contract Time, Contractor must perform the Work as directed, but may submit a timely Notice of Change and Change Order request in accordance with the Contract Documents.
C. Figures and Dimensions. Figures control over scaled dimensions.
D. Technical or Trade Terms. Any terms that have well-known technical or trade meanings will be interpreted in accordance with those meanings, unless otherwise specifically defined in the Contract Documents.
E. Measurements. Contractor must verify all relevant measurements in the Contract Documents and at the Project Worksite before ordering any material or performing any Work, and will be responsible for the correctness of those measurements or for costs that could have been avoided by independently verifying measurements.
F. Compliance with Laws. The Contract Documents are intended to comply with Laws and will be interpreted to comply with Laws.
11.3.2 Order of Precedence.
Information included in one Contract Document but not in another will not be considered a conflict or inconsistency. Unless otherwise specified in the Special Conditions, in case of any conflict or inconsistency among the Contract Documents, the following order of precedence will apply, beginning from highest to lowest, with the most recent version taking precedent over an earlier version:
Change Orders, Partial Agreement Change Orders and Field Orders (if any);
Addenda;
Contract;
Notice to Proceed;
Special Conditions;
General Conditions;
Payment and Performance Bonds;
Specifications;
Plans;
Notice of Potential Award;
Bid Documents
the PLCWA, if applicable;
Contractor’s Bid and attachments;
the District’s standard specifications, as applicable; and
Any generic documents prepared by and on behalf of a third party, that were not prepared specifically for this Project.
11.3.3 Reference Document(s).
Reference Documents are reports, studies, surveys, and other information provided by District for Bidder’s review and consideration in preparing its Bid, including, without limitation, information describing the Worksite (including surface or subsurface conditions), existing Improvements or hazardous substances at the Worksite. Contractor is responsible for the careful review of any document, study, or report provided by District or appended to the Contract Documents solely for informational purposes and identified as a “Reference Document.” Reference Documents are not part of the Contract. Nothing in any Reference Document is intended to supplement, alter, or void any provision of the Contract Documents. The provisions of the Contract Documents are not modified by any perceived or actual conflict with provisions in any Reference Document.
11.3.4 Current Versions.
Unless otherwise specified by District, any reference to standard specifications, technical specifications, or any state codes or regulations means the latest specification, code or regulation in effect at the time the Contract is signed.
11.3.5 Conformed Copies.
If District prepares a conformed set of the Contract Documents following award of the Contract, it will provide Contractor with two hard copy (paper) sets and one copy of the electronic file in PDF format. It is Contractor’s responsibility to ensure that all Subcontractors, including fabricators, are provided with the conformed set of the Contract Documents at Contractor’s sole expense.
11.3.6 Ownership.
No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from District. Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) developed by Contractor for the Project, and District will retain all rights to such works, including the right to possession.
Within ten (10) Days following District’s issuance of the Notice of Potential Award to the apparent low Bidder, the Bidder must submit a completed Supplier Registration Form, available on the District’s website at: Procurement & Contract Services Supplier Registration
This Project is subject to the District’s Project Labor and Community Workforce Agreement (“PLCWA”). If the Project is subject to the District’s PLCWA, the successful Bidder and its Subcontractor(s) must comply with the District’s PLCWA, which is attached and incorporated into the Bid Documents as Appendix A. If awarded the Contract, the successful Bidder and its Subcontractors must agree to be bound by the PLCWA by executing and submitting the Agreement to be Bound, included as Addendum A to the PLCWA, within ten (10) Days following issuance of the Notice of Potential Award. The successful Bidder must provide a copy of the PLCWA to all Subcontractors. Entering into the PLCWA by both the successful Bidder and its Subcontractors, through submission of the Agreement to be Bound, is a condition of award of the Contract.
The successful Bidder and its Subcontractor(s) must possess the California contractor’s license(s) in the classification(s) required by law to perform the Work.
Any Subcontractor who is ineligible to perform work on a public works project under Labor Code §§ 1777.1 or 1777.7 is prohibited from performing work on the Project.
If the Project includes construction of a pipeline, sewer, sewage disposal system, boring and jacking pits, or similar trenches or open excavations, which are five feet or deeper, each Bid must include a Bid item for adequate sheeting, shoring, and bracing, or equivalent method, for the protection of life or limb, which comply with safety orders as required by Labor Code § 6707.
The District encourages the participation of local and/or small businesses, including, but not limited to, minority, women, disabled, or disabled veteran owned businesses, as set forth in District’s Administrative Procedure 6330 and as permitted by Public Contract Code § 2002.
11.4.1 Payment and Performance Bonds. Within ten (10) Days following issuance of the Notice of Potential Award, Contractor is required to provide a payment bond and a performance bond, each in the penal sum of not less than 100% of the Contract Price, and each executed by Contractor and its Surety using the bond forms included with the Contract Documents.
Surety. Each bond must be issued and executed by a surety admitted in California with an A.M. Best’s financial strength rating of “A-” or better and a financial size rating of “VII” or better. If an issuing surety cancels the bond or becomes insolvent, within seven (7) Days following written notice from District, Contractor must substitute a surety acceptable to District. If Contractor fails to substitute an acceptable surety within the specified time, District may, at its sole discretion, withhold payment from Contractor until the Surety is replaced to District’s satisfaction, or terminate the Contract for default.
Supplemental Bonds for Increase in Contract Price. If the Contract Price increases during construction by five percent (5%) or more over the original Contract Price, Contractor must provide supplemental or replacement bonds within ten (10) Days of written notice from District pursuant to this Section, covering one hundred percent (100%) of the increased Contract Price and using the bond forms included with the Bid Documents.
11.4.2 Indemnity. To the fullest extent permitted by law, Contractor must indemnify, defend, and hold harmless District, its Board of Trustees, officers, officials, employees, agents, volunteers, and consultants (individually, an “Indemnitee,” and collectively the “Indemnitees”) from and against any and all liability, loss, damage, claims, causes of action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation of Contractor under the Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. This indemnity requirement also applies to any Liability arising from alleged defects in the content or manner of submission of Contractor’s Bid for the Contract. Contractor’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of the Contract. District will timely notify Contractor upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code § 9201. Contractor waives any right to express or implied indemnity against any Indemnitee. Contractor’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract.
11.4.3 Insurance. No later than ten (10) Days following issuance of the Notice of Potential Award, Contractor must procure and provide proof of the insurance coverage required by this Section in the form of certificates and endorsements acceptable to District. The required insurance must cover the activities of Contractor and its Subcontractors relating to or arising from the performance of the Work, and must remain in full force and effect at all times during the period covered by the Contract, through the date of District’s acceptance of the Project. All required insurance must be issued by a company licensed to do business in the State of California, and each such insurer must have an A.M. Best’s financial strength rating of “A-” or better and a financial size rating of “VII” or better. If Contractor fails to provide any of the required coverage in full compliance with the requirements of the Contract Documents, District may, at its sole discretion, purchase such coverage at Contractor’s expense and deduct the cost from payments due to Contractor, or terminate the Contract for default. The procurement of the required insurance will not be construed to limit Contractor’s liability under this Contract or to fulfill Contractor’s indemnification obligations under this Contract.
A. Policies and Limits. The following insurance policies and limits are required for this Contract, unless otherwise specified in the Special Conditions:
Commercial General Liability (“CGL”) Insurance: The CGL insurance policy must be issued on an occurrence basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or its Subcontractor’s acts or omissions in the performance of the Work, including contractor’s protected coverage, contractual liability, products and completed operations, and broad form property damage, with limits of at least $2,000,000 per occurrence and at least $4,000,000 general aggregate. The CGL insurance coverage may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or umbrella policies, provided each such policy complies with the requirements set forth in this Section, including required endorsements.
Automobile Liability Insurance: The automobile liability insurance policy must provide coverage of at least $1,000,000 combined single-limit per accident for bodily injury, death, or property damage, including hired and non-owned auto liability.
Workers’ Compensation Insurance and Employer’s Liability: The workers’ compensation and employer’s liability insurance policy must comply with the requirements of the California Labor Code, providing coverage of at least $1,000,000 or as otherwise required by the statute. If Contractor is self-insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR.
Pollution Liability Insurance: The pollution liability insurance policy must be issued on an occurrence basis, providing coverage of at least $2,000,000 per occurrence and at least $4,000,000 general aggregate, for all loss arising out of claims for bodily injury, death, property damage, or environmental damage caused by pollution conditions resulting from the Work.
Builder’s Risk Insurance: The builder’s risk insurance policy must be issued on an occurrence basis, for all-risk or “all perils” coverage on a 100% completed value basis on the insurable portion of the Project for the benefit of District.
B. Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies will not be reduced, cancelled or allowed to expire without at least thirty (30) Days advance written notice to District, unless due to non-payment of premiums, in which case ten (10) Days advance written notice must be made to District.
C. Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier will waive any right of subrogation it may have against District.
D. Required Endorsements. The CGL policy, automobile liability policy, pollution liability policy, and builder’s risk policy must include the following specific endorsements:
The District, including its Board of Trustees, officials, officers, employees, agents, volunteers and consultants (collectively, “Additional Insured”) must be named as an additional insured for all liability arising out of the operations by or on behalf of the named insured, and the policy must protect the Additional Insured against any and all liability for personal injury, death or property damage or destruction arising directly or indirectly in the performance of the Contract. The additional insured endorsement must be provided using ISO form CG 20 10 11 85 or an equivalent form approved by the District.
The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured.
The insurance provided by Contractor is primary and no insurance held or owned by any Additional Insured may be called upon to contribute to a loss.
This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support.
E. Contractor’s Responsibilities. This Section 11.4.3 establishes the minimum requirements for Contractor’s insurance coverage in relation to this Project, but is not intended to limit Contractor’s ability to procure additional or greater coverage. Contractor is responsible for its own risk assessment and needs and is encouraged to consult its insurance provider to determine what coverage it may wish to carry beyond the minimum requirements of this Section. Contractor is solely responsible for the cost of its insurance coverage, including premium payments, deductibles, or self-insured retentions, and no Additional Insured will be responsible or liable for any of the cost of Contractor’s insurance coverage.
F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions that apply to the required insurance (collectively, “deductibles”) in excess of $100,000 are subject to approval by the District’s Risk Manager, acting in his or her sole discretion, and must be declared by Contractor when it submits its certificates of insurance and endorsements pursuant to this Section 11.4.3. If the District’s Risk Manager determines that the deductibles are unacceptably high, at District’s option, Contractor must either reduce or eliminate the deductibles as they apply to District and all required Additional Insured; or must provide a financial guarantee, to District’s satisfaction, guaranteeing payment of losses and related investigation, claim administration, and legal expenses.
G. Subcontractors. Contractor must ensure that each Subcontractor is required to maintain the same insurance coverage required under this Section 11.4.3, with respect to its performance of Work on the Project, including those requirements related to the Additional Insureds and waiver of subrogation, but excluding pollution liability or builder’s risk insurance unless otherwise specified in the Special Conditions. A Subcontractor may be eligible for reduced insurance coverage or limits, but only to the extent approved in writing in advance by the District’s Risk Manager. Contractor must confirm that each Subcontractor has complied with these insurance requirements before the Subcontractor is permitted to begin Work on the Project. Upon request by the District, Contractor must provide certificates and endorsements submitted by each Subcontractor to prove compliance with this requirement. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations.
H. The District may elect to sponsor an Owner Controlled Insurance Program (“OCIP”) on behalf of this Project. The potential OCIP may include a master general liability and excess liability program as well as a master builder's risk and master contractor's pollution liability program. The Contractor is expected to comply with the above requirements until and if such an OCIP is developed. The Contractor will be expected to remove certain insurance and loss costs from its Bid and Contract Price when and if an OCIP is finalized.
11.5.1 Time is of the Essence. Time is of the essence in Contractor’s performance and completion of the Work, and Contractor must diligently prosecute the Work and complete it within the Contract Time.
General. Contractor must commence the Work on the date indicated in the Notice to Proceed and must fully complete the Work in strict compliance with all requirements of the Contract Documents and within the Contract Time. Contractor may not begin performing the Work before the date specified in the Notice to Proceed.
Authorization. Contractor is not entitled to compensation or credit for any Work performed before the date specified in the Notice to Proceed, with the exception of any schedules, submittals, or other requirements, if any, that must be provided or performed before issuance of the Notice to Proceed.
Rate of Progress. Contractor and its Subcontractors must, at all times, provide workers, materials, and equipment sufficient to maintain the rate of progress necessary to ensure full completion of the Work within the Contract Time. If District determines that Contractor is failing to prosecute the Work at a sufficient rate of progress, District may, in its sole discretion, direct Contractor to provide additional workers, materials, or equipment, or to work additional hours or days without additional cost to District, in order to achieve a rate of progress satisfactory to District. If Contractor fails to comply with District’s directive in this regard, District may, at Contractor’s expense, separately contract for additional workers, materials, or equipment or use District’s own forces to achieve the necessary rate of progress. Alternatively, District may terminate the Contract based on Contractor’s default.
11.5.2 Schedule Requirements. Contractor must prepare all schedules using standard, commercial scheduling software acceptable to the Construction Manager, and must provide the schedules in electronic and paper form as requested by the Construction Manager. In addition to the general scheduling requirements set forth below, Contractor must also comply with any scheduling requirements included in the Special Conditions or in the Technical Specifications.
A. Baseline (As-Planned) Schedule. Within fifteen (15) Days following District’s issuance of the Notice to Proceed (or as otherwise specified in the Notice to Proceed), Contractor must submit to District for review and acceptance a baseline (as-planned) schedule using critical path methodology showing in detail how Contractor plans to perform and fully complete the Work within the Contract Time, including labor, equipment, materials and fabricated items. The baseline schedule must show the order of the major items of Work and the dates of start and completion of each item, including when the materials and equipment will be procured. The schedule must also include the work of all trades, reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule must be dated, provided in the format specified in the Contract Documents or as required by District, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity.
B. District’s Review of Schedules. District will review and may note exceptions to the baseline schedule, and to the progress schedules submitted as required below, to assure completion of the Work within the Contract Time. Contractor is solely responsible for resolving any exceptions noted in a schedule and, within seven (7) Days, must correct the schedule to address the exceptions. District’s review or acceptance of Contractor’s schedules will not operate to waive or limit Contractor’s duty to complete the Project within the Contract Time, nor to waive or limit District’s right to assess liquidated damages for Contractor’s unexcused failure to do so.
C. Progress Schedules. After District accepts the final baseline schedule with no exceptions, Contractor must submit an updated progress schedule and three-week look-ahead schedule, in the format specified by District, for review and acceptance with each application for a progress payment, or when otherwise specified by District, until completion of the Work. The updated progress schedule must: show how the actual progress of the Work as constructed to date compares to the baseline schedule; reflect any proposed changes in the construction schedule or method of operations, including to achieve Project milestones within the Contract Time; and identify any actual or potential impacts to the critical path. Contractor must also submit periodic reports to District of any changes in the projected material or equipment delivery dates for the Project.
Float. The progress schedule must show early and late completion dates for each task. The number of days between those dates will be designated as the “float.” Any float belongs to the Project and may be allocated by the Facilities Director, the Associate Vice President of Bond Programs and/or Construction Manager to best serve timely completion of the Project.
Failure to Submit Schedule. Reliable, up-to-date schedules are essential to efficient and cost-effective administration of the Project and timely completion. If Contractor fails to submit a schedule within the time periods specified in this Section, or submits a schedule to which District has noted exceptions that are not corrected, District may withhold up to ten percent (10%) from payment(s) otherwise due to Contractor until the exceptions are resolved, the schedule is corrected and resubmitted, and District has accepted the schedule. In addition, Contractor’s failure to comply with the schedule requirements in this Section 11.5.2 will be deemed a material default and a waiver of any claims for Excusable Delay or loss of productivity arising during any period when Contractor is out of compliance, subject only to the limits of Public Contract Code § 7102.
D. Recovery Schedule. If District determines that the Work is more than one week behind schedule, within seven (7) Days following written notice of such determination, Contractor must submit a recovery schedule, showing how Contractor intends to perform and complete the Work within the Contract Time, based on actual progress to date.
E. Effect of Acceptance. Contractor and its Subcontractors must perform the Work in accordance with the most current District-accepted schedule unless otherwise directed by District. District’s acceptance of a schedule does not operate to extend the time for completion of the Work or any component of the Work, and will not affect District’s right to assess liquidated damages for Contractor’s unexcused delay in completing the Work within the Contract Time.
F. Posting. Contractor must at all times prominently post a copy of the most current District-accepted progress or recovery schedule in its on-site office.
G. Reservation of Rights. District reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by District or others, or to facilitate District’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work.
H. Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding holidays, during District’s normal business hours, 7:00 a.m. to 5:00 p.m., except as authorized in writing by District in response to a written request from Contractor. Contractor must make such written request at least seven (7) Days in advance of the proposed Work to be performed on days or during hours not expressly authorized in the Contract Documents. District reserves the right to charge Contractor for additional costs incurred by District due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.
11.5.3 Delay and Extensions of Contract Time.
A. Notice of Delay. If Contractor becomes aware of any actual or potential delay affecting the critical path, Contractor must notify the Construction Manager in writing no later than five (5) days after the discovery date of any actual or potential delay and prior to Contractor’s performance of the Work involved, regardless of the nature or cause of the delay, so that District has a reasonable opportunity to mitigate or avoid the delay.
B. Excusable Delay. The Contract Time may be extended if Contractor encounters Excusable Delay. The Contract Time will not be extended based on circumstances which will not unavoidably delay completing the Work within the Contract Time based on critical path analysis.
C. Weather Delays. A “Weather Delay Day” is a Working Day during which Contractor and its forces, including Subcontractors, are unable to perform more than forty percent (40%) of the critical path Work scheduled for that day due to adverse weather conditions which impair the ability to safely or effectively perform the scheduled critical path Work that day. Adverse weather conditions may include rain, saturated soil, and Project Worksite clean-up required due to adverse weather. Determination of what constitutes critical path Work scheduled for that day will be based on the most current, District-approved schedule. Contractor will be entitled to a non-compensable extension of the Contract Time for each Weather Delay Day in excess of the normal Weather Delay Days within a given month as determined by reliable records, including monthly rainfall averages, for the preceding ten (10) years (or as otherwise specified in the Special Conditions or Specifications).
Contractor must fully comply with the applicable procedures in Articles 5 and 6 of the General Conditions regarding requests to modify the Contract Time.
Contractor will not be entitled to an extension of time for a Weather Delay Day to the extent Contractor is responsible for concurrent delay on that day.
Contractor must take reasonable steps to mitigate the consequences of Weather Delay Days, including prudent workforce management and protecting the Work, Project Worksite, materials, and equipment.
Contractor shall be expected to perform all Work Contractor can possibly complete during adverse weather conditions.
D. Non-Excusable Delay. Delay which Contractor could have avoided or mitigated through reasonable care, planning, foresight or diligence is “Non-Excusable Delay.” Contractor is not entitled to an extension of Contract Time or any compensation for Non-Excusable Delay, or for Excusable Delay that is concurrent with Non-Excusable Delay. Non-Excusable Delay includes delay caused by:
weather conditions which are normal for the location of the Project, as determined by reliable records, including monthly rainfall averages, for the preceding ten (10) years;
Contractor’s failure to order equipment and materials sufficiently in advance of the time needed for completion of the Work within the Contract Time;
Contractor’s failure to provide adequate notification to utility companies or agencies for connections or services necessary for completion of the Work within the Contract Time;
foreseeable conditions which Contractor could have ascertained from reasonably diligent inspection of the Project Worksite or review of the Contract Documents or other information provided or available to Contractor;
Contractor’s failure, refusal, or financial inability to perform the Work within the Contract Time, including insufficient funds to pay its Subcontractors or suppliers;
performance or non-performance by Contractor’s Subcontractors or suppliers;
the time required to respond to excessive RFIs (see Section 11.2.5(G));
delayed submission of required submittals, or the time required for correction and resubmission of defective submittals;
time required for repair of, re-testing, or re-inspection of defective Work;
enforcement of Laws by District, or Government Authorities;
Contractor’s failure to account for required inspections or approvals by outside agencies with jurisdiction over the Work; and, without limitation
District’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals.
E. Compensable Delay. Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay. Delay due to Weather Delay Days, in excess of normal in a given month, as set forth in Section 5.3(C), is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay.
F. Liquidated Damages. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above. If Contractor is entitled to compensation for Compensable Delay, compensation shall be limited to Liquidated Damages as outlined in the Contract.
G. Request for Extension of Contract Time or Liquidated Damages. A request for an extension of Contract Time or any associated Liquidated Damages must be submitted in writing to District within fourteen (14) Days of the date the delay is first encountered, even if the duration of the delay is not yet known at that time, or any entitlement to the Contract Time extension or to Liquidated Damages will be deemed waived. In addition to complying with the requirements of this Article 5, the request must be submitted in compliance with the Change Order request procedures in Article 6 below. Strict compliance with these requirements is necessary to ensure that any delay or consequences of delay may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project and timely performance of the Work. Any request for an extension of Contract Time or Liquidated Damages that does not strictly comply with all of the requirements of Article 5 and Article 6 will be deemed waived.
Required Contents. The request must include a detailed description of the cause(s) of the delay and must also describe the measures that Contractor has taken to mitigate the delay and/or its effects, including efforts to mitigate the cost impact of the delay, such as by workforce management or by a change in sequencing. If the delay is still ongoing at the time the request is submitted, the request should also include Contractor’s plan for continued mitigation of the delay or its effects.
Delay Days and Liquidated Damages. The request must specify the number of days of Excusable Delay claimed or provide a realistic estimate if the duration of the delay is not yet known. If Contractor believes it is entitled to Liquidated Damages for Compensable Delay, the request must specify the amount and basis for the Liquidated Damages amount that is claimed or provide a realistic estimate if the amount is not yet known. Any estimate of delay duration or Liquidated Damages must be updated in writing and submitted with all required supporting documentation as soon as the actual time and Liquidated Damages amount is known. The maximum extension of Contract Time will be the number of days, if any, by which an Excusable Delay or a Compensable Delay exceeds any concurrent Non-Excusable Delay. Contractor is entitled to an extension of Contract Time, or Liquidated Damages, only if, and only to the extent that, such delay will unavoidably delay Substantial Completion of Project and such delay is Excusable or Compensable.
Supporting Documentation. The request must also include any and all supporting documentation necessary to evidence the delay and its actual impacts, including scheduling impacts with a time impact analysis using critical path methodology and demonstrating the unavoidable delay to Substantial Completion of Project. The time impact analysis must be submitted in a form or format acceptable to District.
Burden of Proof. Contractor has the burden of proving that: the delay was an Excusable or Compensable Delay, as defined above; Contractor has fully complied with its scheduling obligations in Section 11.5.2, Schedule Requirements; Contractor has made reasonable efforts to mitigate the delay and its schedule and cost impacts; the delay will unavoidably result in delaying Substantial Completion of Project.
No Waiver. Any grant of an extension of Contract Time, or Liquidated Damages due to Compensable Delay, will not operate as a waiver of District’s right to assess Liquidated Damages for Non-Excusable Delay.
Dispute Resolution. In the event of a dispute over entitlement to an extension of Contract Time or Liquidated Damages, Contractor may not stop Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work. Contractor’s sole recourse for an unresolved dispute based on District’s rejection of a Change Order request for an extension of Contract Time or Liquidated Damages is to comply with the dispute resolution provisions set forth in Article 12 below.
H. Duty to Mitigate. Regardless of the cause(s) of delay, Contractor shall take all reasonable efforts and measures to mitigate delay.
11.5.4 Liquidated Damages. It is expressly understood that if Substantial Completion is not achieved within the Contract Time, District will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code § 7203, if Contractor fails to achieve Substantial Completion within the Contract Time, District will charge Contractor in the amount specified in the Contract for each day that Substantial Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty.
A. Liquidated Damages. Liquidated damages will not be assessed for any Excusable or Compensable Delay, as set forth above.
B. Milestones. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents.
C. Setoff. District is entitled to deduct the amount of liquidated damages assessed against any payments otherwise due to Contractor, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assessed, District is entitled to recover the balance from amounts owed to Contractor pursuant to other agreements between Contractor and District, from Contractor directly, or from Contractor’s performance bond Surety.
D. Occupancy or Use. Occupancy or use of the Project in whole or in part prior to Substantial Completion does not constitute District’s acceptance of the Project and will not operate as a waiver of District’s right to assess liquidated damages for Contractor’s Non-Excusable Delay in achieving Substantial Completion.
E. Other Remedies. District’s right to liquidated damages under this Section applies only to damages arising from Contractor’s Non-Excusable Delay or failure to complete the Work within the Contract Time. District retains its right to pursue all other remedies under the Contract and applicable law for other types of damage, including damage to property or persons, costs or diminution in value from defective materials or workmanship, costs to repair or complete the Work, or other liability caused by Contractor.
F. Waiver by Contractor. FAILURE BY CONTRACTOR TO PROVIDE A COMPLETE AND TIMELY NOTICE OF DELAY UNDER CIRCUMSTANCES WHERE A NOTICE OF DELAY INVOLVING A DELAY IS REQUIRED HEREIN SHALL, IN ACCORDANCE WITH OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, CONSTITUTE A WAIVER BY CONTRACTOR OF THE RIGHT TO A CONTRACT MDIFICATION ON ACCOUNT OF SUCH CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER RECOURSE OR RECOVERY BY REASON OF OR RELATED TO SUCH DELAY.
G. Adjustments to Shortening Time. Failure by Contractor to submit a timely or proper Notice of Delay under circumstances in which a Notice of Delay is required shall in no way affect District’s right to a Contract Modification shortening the Contract Time on account of such circumstances.
11.6.1 Contract Modification. Subject to the limited exception set forth in subsection (G) below, any change in the Work or the Contract Documents, including the Contract Price or Contract Time, will not be a valid and binding change to the Contract unless it is formalized in a Change Order, including a “no-cost” Change Order or a Partial Change Order, and approved by the Board of Trustees, or the District staff member to whom the Board of Trustees has delegated its authority to approve Change Orders. Changes in the Work pursuant to this Article 11.6 will not operate to release, limit, or abridge Contractor’s warranty obligations pursuant to the Contract Documents or any obligations of Contractor’s Sureties.
A. Change Orders
Purpose. The purpose of a Change Order is to establish the terms of the District’s and Contractor’s mutual agreement to a Contract Modification, additive or deductive, time related, and/or any combinations thereof.
Content. A Change Order is a written instrument prepared by the District stating:
A. A Compensable Change or Deleted Work;
B. A Compensable Delay or Excusable Delay;
C. The amount of the Contract Modification, if any, to the Contract Price; and/or
D. The extent of the Contract Modification, if any, to the Contract Time.
B. Partial Change Orders
Purpose. The purpose of a Partial Change Order is to establish the extent of the parties’ mutual agreement, as far as it goes, to a Contract Modification, additive or deductive, time related and/or combinations thereof.
Content. A Partial Change Order is a written instrument, prepared by the District, stating:
A. A Compensable Change or Deleted Work;
B. A Compensable Delay or Excusable Delay;
C. The amount of a Contract Modification, if any, to the Contract Price; and/or the extent of a Contract Modification, if any, to the Contract Time.
No Reservation of Rights Required on a Partial Change Order – Rights Automatically Reserved. Where the parties cannot reach a full and complete mutual agreement to all items set forth in a change order request, but their competing positions do reach some agreement, then a Partial Change Order will be prepared by the District, signed by the parties, and promptly submitted for processing for payment so that money can continue to flow through the Contract at least to the extent of the parties’ partial agreement. Regarding those portions of a change order request that were not agreed to, no reservation of rights need be written on the Partial Change Order as all such rights are deemed reserved provided that the proponent of the remaining disputed portions of the change order request immediately takes such remaining disputed portions thereof into the Mandatory Claims Dispute Resolution Process pursuant to the General Conditions.
Waiver of Rights by District and/or Contractor. The automatically reserved rights of the District and/or the Contractor discussed above can however be lost, waived and/or forfeited, if the proponent of any items in a proposed change order or change order request not resolved by the Partial Change Order are not submitted as a Claim, and then placed into the Mandatory Claims Dispute Resolution Process as required by these General Conditions, to be resolved. The intent of this exclusive resolution procedure set forth in the Contract Documents is that if this process does not resolve a purported Contract Adjustment, in whole or in part, then both the Contractor and District agree to resolve same as close as possible to the conclusion of the event(s) and /or circumstance(s) giving rise to the Claim. In this way, the information and documentation available to both parties will be as fresh as possible and permit the best informed resolution to occur. Both parties acknowledge that their failure and/or refusal to follow this exclusive process will irreparably prejudice the other party and as such, should a party to this Contract fail or refuse to abide by and comply with this exclusive process, any Claim, and/or remaining unresolved portion thereof, is and shall be waived and irrevocably forfeited. This exclusive process shall apply equally to the District as it does to the Contractor.
C. District-Directed Changes. District may direct changes in the scope or sequence of Work or the requirements of the Contract Documents, without invalidating the Contract via the issuance of a Field Order signed by the Facilities Director, Associate Vice President of Bond Programs, or Construction Manager. Such direction may include Extra Work as set forth in subsection E. below, deletion or modification of portions of the Work, direct performance of Work or a Change with respect to which there exists a dispute or question regarding the Contractor’s obligation to proceed with such, direction to proceed with Work regarding unforeseen conditions, or directing performance of Work where performance of the Work needs to proceed in advance of complete substantiation and evaluation of a proposed Contract Modification therefore. Contractor must promptly comply with a Field Order issued by the Construction Manager and in accordance with the Contract Documents, even if Contractor and District have not yet reached agreement as to adjustments to the Contract Price or Contract Time for the change in the Work or for the Extra Work. Contractor is not entitled to extra compensation for cost savings resulting from “value engineering” pursuant to Public Contract Code § 7101, except to the extent authorized in advance by District in writing, and subject to any applicable procedural requirements for submitting a proposal for value engineering cost savings.
D. Disputes. In the event of a dispute over entitlement to or the amount of a change in Contract Time or a change in Contract Price related to a District-directed change in the Work via the issuance of a Field Order, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute. Likewise, in the event that District and Contractor dispute whether a portion or portions of the Work are already required by the Contract Documents or constitute Extra Work, or otherwise dispute the interpretation of any portion(s) of the Contract Documents, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute, as directed by District. If Contractor refuses to perform the Work in dispute, District may, acting in its sole discretion, elect to delete the Work from the Contract and reduce the Contract Price accordingly, and self-perform the Work or direct that the Work be performed by others. Alternatively, District may elect to terminate the Contract for convenience or for cause. Contractor’s sole recourse for an unresolved dispute related to changes in the Work or performance of any Extra Work is to comply with the Extra Work, Notice of Change, Change Order Request and thereafter the Claims Dispute Resolution provisions set forth herein.
E. Extra Work. Via the issuance of a Field Order District may direct Contractor to perform Extra Work related to the Project. Contractor must promptly perform any Extra Work as directed or authorized by District in accordance with the original Contract Documents, even if Contractor and District have not yet reached agreement on adjustments to the Contract Price or Contract Time for such Extra Work. Contractor must maintain detailed daily records that itemize the cost of each element of Extra Work, and sufficiently distinguish the direct cost of the Extra Work from the cost of other Work performed. For each day that Contractor performs Extra Work, or Work that Contractor contends is Extra Work, Contractor must submit no later than the following Working Day, a daily report of the Extra Work performed that day and the related costs, together with copies of certified payroll, invoices, and other documentation substantiating the costs (“Extra Work Report”). The Construction Manager will make any adjustments to Contractor’s Extra Work Report(s) based on the Construction Manager’s records of the Work. When an Extra Work Report(s) is agreed on and signed by both District and Contractor, the Extra Work Report(s) will become the basis for payment under a duly authorized and signed Change Order. Failure to submit the required documentation by close of business on the next Working Day is deemed a full and complete waiver for any change in the Contract Price or Contract Time for any Extra Work performed that day.
F. Minor Changes and RFIs. Minor field changes, including RFI replies from District, that do not affect the Contract Price or Contract Time and that are approved by the Construction Manager acting within his or her scope of authority, do not require a Change Order. By executing an RFI reply from District, Contractor agrees that it will perform the Work as clarified therein, with no change to the Contract Price or Contract Time.
G. Other Notices. Issuance of a Field Order by the District shall not be interpreted as relieving Contractor of its obligation to comply with the requirements of the Contract Documents for timely submission of notices required by the Contract Documents, including, without limitation, Notice of Change, Change Order Request, Notice of Delay or Request for Extension.
H. Contractor’s Own Expense. Without limitation to other provisions of the Contract Documents, costs incurred by Contractor or any Subcontractor for either of the following categories of Changes shall be paid by Contractor at Contractor’s own expense: (1) any Change or portion of a Change (including, but not limited, to a Compensable Change) performed before Contractor having first obtained a Change Order or Partial Change Order prepared and signed by a District authorized representative, or a Field Order prepared and signed by a District authorized representative; or (2) any Change or portion of a Change (including, without limitation, a Compensable Change) described in a Field Order that is performed prior to receipt by the Construction Manager of a timely and complete Notice of Change or Notice of Delay under circumstances where, respectively, a Notice of Change or Notice of Delay was required.
I. Remedy for Non-Compliance. Contractor’s failure to promptly comply with a District-directed change is deemed a material breach of the Contract, and in addition to all other remedies available to it, District may, at its sole discretion, hire another contractor or use its own forces to complete the disputed Work at Contractor’s sole expense, and may deduct the cost from the Contract Price.
11.6.2 Change Procedures.
A. Notice of Change. Contractor shall submit a written Notice of Change to Construction Manager if any instruction, request, drawing, specification, action, condition, omission, default or other circumstance occurs that constitutes a Compensable Change, Deleted Work, Compensable Delay or other matter that may involve or require a Contract Modification (additive or deductive). Such notice shall be provided prior to commencement of performance of the Work affected and no later than five (5) Days after the discovery date of such circumstance.
Each Notice of Change in order to be considered complete shall include:
a. A general statement of the circumstances giving rise to the Notice of Change, including, without limitation, identification of any related Field Order;
b. A reasonable order of magnitude estimates by Contractor of any related Contract Modifications to the Contract Price; and
WAIVER BY CONTRACTOR. FAILURE BY CONTRACTOR TO PROVIDE A COMPLETE AND TIMELY NOTICE OF CHANGE UNDER CIRCUMSTANCES WHERE A NOTICE OF CHANGE IS REQUIRED BY THIS ARTICLE SHALL CONSTITUTE A WAIVER BY CONTRACTOR OF THE RIGHT TO A CONTRACT MODIFICATION ON ACCOUNT OF SUCH CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER RECOURSE OR RECOVERY BY REASON OF OR RELATED TO SUCH CHANGE BY MEANS OF THE CLAIMS DISPUTE RESOLUTION PROCESS OR BY ANY OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER LAWS.
Failure by Contractor to submit a timely or proper Notice of Change under circumstances when a Notice of Change is required shall in no way affect District’s right to a deductive Contract Modification on account of such circumstances.
B. Contractor Change Order Requests. Contractor must submit a request for a change in the Work, compensation for Extra Work, or a change in the Contract Price or Contract Time as a written Change Order request.
Time for Submission. Any request for a change in the Contract Price or the Contract Time must be submitted in writing to the Construction Manager within fourteen (14) Days of the date that Contractor submits a Notice of Change to the Construction Manager. If District requests that Contractor propose the terms of a Change Order, unless otherwise specified in District’s request, Contractor must provide the Construction Manager with a written proposal for the change in the Contract Price or Contract Time within five (5) working days of receiving District’s request, in a form satisfactory to the Construction Manager.
Required Contents. Any Change Order request submitted by Contractor must include a complete breakdown of actual Allowable Costs and credits, and must itemize labor, materials, equipment, taxes, insurance, subcontract amounts, Allowable Markups, and, if applicable, Extra Work Reports.
Required Documentation. All claimed costs must be fully documented, and any related request for an extension of time or delay-related costs must be included at that time and in compliance with the requirements of the General Conditions, including but not limited to notice and timing requirements. Upon request, Contractor must permit District to inspect its original and unaltered bidding records, subcontract agreements, subcontract change orders, purchase orders, invoices, or receipts associated with the claimed costs.
Required Form. Contractor must use District’s form(s) for submitting all Change Order requests, unless otherwise specified by District.
Certification. All Change Order requests must be signed by Contractor and must include the following certification:
a. “The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Change Order request are true and correct. Contractor warrants that this Change Order request is comprehensive and complete as to the Work or changes referenced herein, and agrees that any known or foreseeable costs, expenses, or time extension requests not included herein, are deemed waived.”
11.6.3 Adjustments to Contract Price. The amount of any increase or decrease in the Contract Price will be determined based on one of the following methods listed below, in the order listed with unit pricing taking precedence over the other methods. Markup applies only to District-authorized time and material Work, and does not apply to any other payments to Contractor. For Work items or components that are deleted in their entirety, Contractor will only be entitled to compensation only for those direct, actual, and documented costs (including restocking fees), reasonably incurred before Contractor was notified of the District’s intent to delete the Work, with no markup for overhead, profit, or other indirect costs.
A. Unit Pricing. Amounts previously provided by Contractor in the form of unit prices, either in its Bid, a bid schedule or in a post-award schedule of values pursuant to Section 11.8.1, Schedule of Values, will apply to determine the price for the affected Work, to the extent applicable unit prices have been provided for that type of Work. No additional markup for overhead, profit, or other indirect costs will be added to the calculation.
B. Lump Sum. A mutually agreed upon, all-inclusive lump sum price for the subject Work with no additional markup for overhead, profit, or other indirect costs.
C. Time and Materials. On a time and materials basis, subject to the limitations set forth in Section 11.6.4, if and only to the extent compensation on a time and materials basis is expressly authorized by District in advance of Contractor’s performance of the Work and subject to any not-to-exceed limit, and provided that Contractor maintains records substantiating its costs that are verified daily by the Inspector or as otherwise specified in the Contract Documents. If Work on a time and materials basis is expressly authorized by District in advance of Contractor’s performance of the Work, at the start of each day of Work, Contractor will notify the Inspector and District in writing as to the size and classification of the labor force for the Work and its location. If Contractor fails to notify the Inspector and District, the District may not accept the costs for that day. Time and materials compensation for increased costs or Extra Work (but not decreased costs or deleted Work) will include allowed markup for overhead, profit, and other indirect costs, and which may include a not-to-exceed limit, calculated as the total of the following sums, the cumulative total of which may not exceed the maximum markup rate of fifteen percent (15%):
All direct material costs provided by the Contractor, including sales tax, plus fifteen percent (15%) markup;
All direct plant and equipment rental costs provided by the Contractor, plus fifteen percent (15%) markup;
All direct additional subcontract costs plus ten percent (10%) markup for Work performed by Subcontractors; and
Increased bond or insurance premium costs computed at one and one-half percent (1.5%) of the total of the previous four sums.
11.6.4 Limitations on Allowable Costs. Allowable costs for Change Orders are subject to the following:
A. Labor. Costs are allowed for actual, documented, and reasonable payroll costs to Contractor for labor; field supervision of the Work, excluding field office supervision and indirect supervision; and engineering or technical services directly required for performance of the Work, including payments, assessments, or benefits required by lawful labor union collective bargaining agreements, compensation insurance payments, contributions made to the State pursuant to the Unemployment Insurance Code, and taxes paid to the federal government required by the Social Security Act, but excluding general management, such as field office estimating, clerical, purchasing, preparation of as-built drawings, Change Order coordination, or general administration. No labor cost will be recognized at a rate in excess of the prevailing wages required to be paid by Contractor for similar work on the Project at the time the Work is performed, nor will the use of a classification which would increase the labor cost be permitted unless Contractor establishes the necessity for use of such higher classification of workers to the satisfaction of District. Contractor and Subcontractors will submit a fully detailed breakdown of the cost of every labor classification to be charged for the Work. Contractor’s unit cost of labor must be an accurate accounting of actual costs being paid and it must be submitted under penalty of perjury.
B. Materials. Costs are allowed for the actual, documented, and reasonable cost to Contractor for materials directly required for the performance of the Work. Such cost of materials may include the costs of procurement, transportation, sales tax, and delivery, if necessarily incurred. If a trade discount by the supplier of the materials is available to Contractor, it will be credited to District. If the materials are obtained from a supply or source owned wholly or in part by Contractor, payment will not exceed the current wholesale price for such materials. Costs for consumed materials may be charged on a reasonably estimated basis, but may not be a percentage of labor. If, in the opinion of District, the cost of materials is excessive, or if Contractor fails to furnish satisfactory evidence of the cost from the supplier, then in either case the cost of the materials will be deemed to be the lowest wholesale price at which similar materials are available in the quantities required at the time they were needed. The District reserves the right to furnish such materials as it deems advisable, and Contractor will have no claim for costs or profits on material furnished by District.
C. Equipment. Costs are allowed for the actual, documented, and reasonable cost to Contractor for the use of equipment directly required in the performance of the Work, except that no payment will be made for time while equipment is inoperative due to breakdowns or for non-Workdays. The rental time may include the time required to move the equipment to the Project Worksite from the nearest available source for rental of such equipment, and to return it to the source. If such equipment is not moved by its own power, then reasonable loading and transportation costs may be paid. However, neither moving time nor loading and transportation costs will be paid if the equipment is used on the Project in any other way than upon the Work directed by Change Order. Individual pieces of equipment having a replacement value of $2,000 or less will be considered to be small tools or small equipment, and no payment will be made unless such have been rented specifically for the Work directed by Change Order. Consumed equipment or tools, including, but not limited to, paint brushes, rollers, and drill bits, may be charged on an actual or reasonably estimated cost basis, provided that any such estimate will not be determined as a percentage of the cost of the Work directed by Change Order. Costs for equipment owned, furnished, or rented by Contractor will not exceed the rental rates established by distributors or equipment rental agencies in the locality where the Work is performed. Costs associated with pickups and jobsite vehicles will not be allowed. The amount to be paid to Contractor will constitute full compensation to Contractor for the cost of fuel, power, oil, lubrication, supplies, small tools, small equipment, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, and any and all costs to Contractor incidental to the use of such equipment. Equipment operators will be paid for as provided in subsection (A), above.
11.6.5 No “Total Cost” Calculation. Contractor represents and warrants that it has the ability to generate and maintain complete and accurate cost accounting records that, if required, will reflect the actual costs of the Work incurred or avoided for multiple items of Compensable Change and, on an event-by-event basis, the effect of multiple and concurrently occurring or caused Compensable Delays on the progress of the Work. Accordingly, Contractor agrees that all Change Order Requests and Claims shall be itemized in a manner that, with reasonable mathematical certainty and without reliance upon probabilities or inferences, segregates on a discrete, event-by-event basis the direct, actual Allowable Costs associated with each individual Compensable Change or Compensable Delay. Unless otherwise agreed to by District in writing in the exercise of its sole discretion, Change Order Requests and Claims shall not be based, in whole or in part, upon any methodology (such as “total cost” or “modified total cost” methodologies) that purports to establish Contractor’s entitlement to additional compensation inferentially based, solely or principally, on the difference between Contractor’s total costs for the Work or a portion of the Work and its original estimate of costs for performance of the Work.
11.6.6 Non-Compliance Deemed Waiver. Contractor waives its entitlement to any increase in the Contract Price or Contract Time if Contractor fails to fully comply with the provisions of this Article. Contractor will not be paid for unauthorized Extra Work.
11.6.7 Final Payment. No Claim by Contractor for adjustment to the Contract Price shall be allowed if asserted after Final Payment.
11.7.1 Permits, Fees, Licenses, and Taxes.
A. Permits, Fees, and Licenses. Contractor must obtain and pay for all permits, fees, or licenses required to perform the Work, except DSA fees and Storm Water Pollution Prevention Plan application fees for a Notice of Intent, if applicable. Contractor must cooperate with and provide notifications to all government agencies with jurisdiction over the Project, as may be required. Contractor must provide District with copies of all records of permits and permit applications, payment of required fees, and any licenses required for the Work.
B. Taxes. Contractor must pay for all taxes on labor, material and equipment, except Federal Excise Tax to the extent that District is exempt from Federal Excise Tax.
11.7.2 Temporary Facilities. Contractor must provide, at Contractor’s sole expense, any and all temporary facilities for the Project, including an onsite staging area for materials and equipment, a field office, sanitary facilities, utilities, storage, scaffolds, barricades, walkways, and any other temporary structure required to safely perform the Work along with any incidental utility services. The location of all temporary facilities must be approved by the District prior to installation. Temporary facilities must be safe and adequate for the intended use and installed and maintained in accordance with Laws and the Contract Documents. Contractor must fence and screen the Project Worksite, including the staging area, and its operation must minimize inconvenience to neighboring properties. Additional provisions pertaining to temporary facilities may be included in the Specifications or Special Conditions.
A. Project Logistics Plan. Within fifteen (15) Days from the date of the Notice to Proceed, Contractor must submit a Project logistics plan to the Construction Manager for approval. The logistics plan must define how Contractor plans to control Worksite processes including, but not limited to, means and methods to accommodate temporary utilities, temporary facilities, Worksite traffic, off-site parking, and material delivery and storage. Contractor is advised that the Project Worksite is constrained and there will be limited space available for material delivery and storage, construction parking, and temporary office facilities.
B. Utilities. Contractor must install and maintain the power, water, sewer and all other utilities required for the Project Worksite, including the piping, wiring, internet and WiFi connections, and any related equipment necessary to maintain the temporary facilities.
C. Removal and Repair. Contractor must promptly remove all such temporary facilities when they are no longer needed or upon completion of the Work, whichever comes first. Contractor must promptly repair any damage to District’s property or to other property caused by the installation, use, or removal of the temporary facilities, and must promptly restore the property to its original or intended condition.
11.7.3 Noninterference and Site Management. Contractor must avoid interfering with District’s use of its property at or adjacent to the Project Worksite, including use of roadways, entrances, parking areas, walkways, and structures. Contractor must also minimize disruption of access to private property in the Project vicinity. Contractor must coordinate with affected property owners, tenants, and businesses, and maintain some vehicle and pedestrian access to their residences or properties at all times. Temporary access ramps, fencing or other measures must be provided as needed. Before blocking access to a private driveway or parking lot, Contractor must provide effective notice to the affected parties at least forty-eight (48) hours in advance of the pending closure and allow them to remove vehicles. Private driveways, residences and parking lots must have access to a roadway during non-Work hours.
A. Offsite Acquisition. Unless otherwise provided by District, Contractor must acquire, use and dispose of, at its sole expense, any additional Worksites, licenses, easements, and temporary facilities necessary to access and perform the Work.
B. Offsite Staging Area and Field Office. If additional space beyond the Project Worksite is needed, such as for the staging area or the field office, Contractor may need to make arrangements with the nearby property owner(s) to secure the space. Before using or occupying any property owned by a third party, Contractor must provide District with a copy of the necessary license agreement, easement, or other written authorization from the property owner, together with a written release from the property owner holding District harmless from any related liability, in a form acceptable to District.
C. Traffic Management. Contractor must provide traffic management and traffic controls as specified in the Contract Documents, as required by Laws, and as otherwise required to ensure the public and worker safety, and to avoid interference with public or private operations or the normal flow of vehicular, bicycle, or pedestrian traffic. Such traffic controls may include barriers, guards, lights, notices, or signals regarding detours.
D. Lawns and Planted Areas. Contractor must not drive equipment on lawns or planted areas unless approved by District and provided that suitable supporting planking is used. Any damage to lawns or planted areas must be repaired to its original condition, subject to the final approval of District.
11.7.4 Signs. No signs may be displayed on or about District’s property, except signage which is required by Laws or by the Contract Documents, without District’s prior written approval as to size, design, and location.
11.7.5 Project Site and Nearby Property Protections.
A. General. Contractor is responsible at all times, on a twenty-four (24)-hour basis and at its sole cost, for protecting the Work, the Project Worksite, and the materials and equipment to be incorporated into the Work, until the District has accepted the Project as achieving Final Completion, excluding any exceptions to acceptance, if any. Except as specifically authorized by District, Contractor must confine its operations to the area of the Project Worksite indicated in the Plans and Specifications. Contractor is liable for any damage caused by Contractor or its Subcontractors to the Work, District’s property, the property of adjacent or nearby property owners and the work or personal property of other contractors working for District, including damage related to Contractor’s failure to adequately secure the Work or any Worksite.
Wastewater systems may not be interrupted. If the Work disrupts existing sewer facilities, Contractor must immediately notify District and establish a plan, subject to District’s approval, to convey the sewage in closed conduits back into the sanitary sewer system. Sewage must not be permitted to flow in trenches or be covered by backfill.
Contractor must remove with due care, and store at District’s request, any objects or material from the Project Worksite that District will salvage or reuse at another location.
If directed by the Construction Manager, Contractor must promptly repair or replace any property damage, as specified by the Construction Manager. However, acting in its sole discretion, District may elect to have the property damage remedied otherwise, and may deduct the cost to repair or replace the damaged property from payment otherwise due to Contractor.
Contractor will not permit any structure or infrastructure to be loaded in a manner that will damage or endanger the integrity of the structure or infrastructure.
B. Securing Project Worksite. After completion of Work each day, Contractor must secure the Project Worksite and, to the extent feasible, make the area reasonably accessible to the public unless District approves otherwise. All excess materials and equipment not protected by approved traffic control devices must be relocated to the staging area or demobilized. Trench spoils must be hauled off the Project Worksite daily and open excavations must be protected with steel plates. Contractor and Subcontractor personnel may not occupy or use the Project Worksite for any purpose during non-Work hours, except as may be provided in the Contract Documents or pursuant to prior written authorization from District.
C. Unforeseen Conditions. If Contractor encounters facilities, utilities, or other unknown conditions not shown on or reasonably inferable from the Plans or apparent from inspection of the Project Worksite, Contractor must immediately notify the District and promptly submit a Request for Information to obtain further directions from the Construction Manager. Contractor must avoid taking any action which could cause damage to the facilities or utilities pending further direction from the Construction Manager. The Construction Manager’s written response will be final and binding on Contractor. If the Construction Manager’s subsequent direction to Contractor affects Contractor’s cost or time to perform the Work, Contractor may submit a Notice of Change, Notice of Delay and/or Change Order request as required herein.
D. Support; Adjacent Properties. Contractor must provide, install, and maintain all shoring, bracing, and underpinning necessary to provide support to District’s property and adjacent properties and improvements thereon. Contractor must provide notifications to adjacent property owners as may be required by Laws. See also, Section 11.7.15, Trenching of Five Feet or More.
E. Notification of Property Damage. Contractor must immediately notify the District of damage to any real or personal property resulting from Work on the Project. Contractor must immediately provide a written report to District of any such property damage in excess of $500 (based on estimated cost to repair or replace) within twenty-four (24) hours of the occurrence. The written report must include: (1) the location and nature of the damage, and the owner of the property, if known; (2) the name and address of each employee of Contractor or any Subcontractor involved in the damage; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with another government agency, Contractor must provide a copy of the report to District.
11.7.6 Materials and Equipment.
A. General. Unless otherwise specified, all materials and equipment required for the Work must be new, free from defects, and of the best grade for the intended purpose, and furnished in sufficient quantities to ensure the proper and expeditious performance of the Work. When required by the Contract Documents or directed by the Construction Manager, Contractor must obtain District approval of materials, equipment, or articles proposed to be incorporated into the Work. Contractor must employ measures to preserve the specified quality and fitness of the materials and equipment. Unless otherwise specified, all materials and equipment required for the Work are deemed to include all components required for complete installation and intended operation and must be installed in accordance with the manufacturer’s recommendations or instructions. Contractor is responsible for all shipping, handling, and storage costs associated with the materials and equipment required for the Work. Contractor is responsible for providing security and protecting the Work and all of the required materials, supplies, tools and equipment at Contractor’s sole cost until Final Completion. Contractor will not assign, sell, mortgage, or hypothecate any materials or equipment for the Project, or remove any materials or equipment that have been installed or delivered.
B. Materials and Equipment List. If required by the Construction Manager, within fifteen (15) Days of the date of the Notice to Proceed, Contractor will submit five (5) copies of the complete list of equipment and materials to be furnished, including all substitutions, to District for approval. Partial or incomplete lists will not be considered. No substitutions will be considered thereafter. Only one request for substitution will be considered on each item of material or equipment.
C. District-Provided. If the Work includes installation of materials or equipment to be provided by District, Contractor is solely responsible for the proper examination, handling, storage, and installation in accordance with the Contract Documents. Contractor must notify District of any defects discovered in District-provided materials or equipment, sufficiently in advance of scheduled use or installation to afford adequate time to procure replacement materials or equipment as needed. Contractor is solely responsible for any loss of or damage to such items which occurs while the items are in Contractor’s custody and control, the cost of which may be offset from the Contract Price and deducted from any payment(s) due to Contractor.
D. Intellectual Property Rights. Contractor must, at its sole expense, obtain any authorization or license required for use of patented or copyright-protected materials, equipment, devices or processes that are incorporated into the Work. Contractor’s indemnity obligations in Article 4 apply to any claimed violation of intellectual property rights.
E. Material Delivery and Storage. Contractor will coordinate “just-in-time” material deliveries with its suppliers and Subcontractors so as not to unnecessarily encumber the Project Worksite with stored materials. At the Contractor’s option, it may utilize suitable off-site storage facilities and/or lay-down areas to store materials. Fees paid for such off-site storage facilities and all costs associated with transportation of materials to or from the Worksite will be at the sole expense of Contractor. Material deliveries will be scheduled so as to cause minimal disruption of campus schedules, and normal traffic patterns on streets abutting the Worksite.
F. Imported Materials. No soil, aggregate, or related materials provided, delivered, or supplied to the Project Worksite may contain Hazardous Materials. If requested by District, Contractor and any Subcontractors or suppliers that provide, deliver, or supply soil, aggregate or related materials to the Project Worksite must submit an Imported Materials Certification.
11.7.7 Substitutions.
A. “Or Equal.” Any Specification designating a material, product, or thing (collectively, “item”) or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate the quality and type of item or service desired, and Contractor may request use of any equal item or service. Unless otherwise stated in the Specifications, any reference to a specific brand or trade name for an item that is used solely for the purpose of describing the type of item desired, will be deemed to be followed by the words “or equal.” A substitution will only be approved if it is a true “equal” item in every aspect of design, function, and quality, as determined by District, including dimensions, weight, maintenance requirements, durability, fit with other elements, and schedule impacts.
B. Request for Substitution. A post-award request for substitution of an item or service must be submitted in writing to the Construction Manager for approval in advance, within the applicable time period provided in the Contract Documents. If no time period is specified, the substitution request may be submitted any time within fifteen (15) Days after the date of the Notice to Proceed, or sufficiently in advance of the time needed to avoid delay of the Work, whichever is earlier.
C. Substantiation. Any available data substantiating the proposed substitute as an equal item or service must be submitted with the written request for substitution. Contractor’s failure to timely provide all necessary substantiation, including any required test results as soon as they are available, is grounds for rejection of the proposed substitution, without further review.
D. Burden of Proving Equality. Contractor has the burden of proving the equality of the proposed substitution at Contractor’s sole cost. District has sole discretion to determine whether a proposed substitution is equal, and District’s determination is final.
E. Approval or Rejection. If the proposed substitution is approved, Contractor is solely responsible for any additional costs or time associated with the substituted item or service. If the proposed substitution is rejected, Contractor must, without delay, install the item or use the service as specified by District.
F. Contractor’s Obligations. District’s approval of a proposed substitution will not relieve Contractor from any of its obligations under the Contract Documents. In the event Contractor makes an unauthorized substitution, Contractor will be solely responsible for all resulting cost impacts, including the cost of removal and replacement and the impact to other design elements.
11.7.8 Testing and Inspection.
A. General. All materials, equipment, and workmanship used in the Work are subject to inspection and testing by District at all times and locations during construction and/or fabrication and at any Worksite, including at shops and yards. All manufacturers’ application or installation instructions must be provided to the Inspector at least ten (10) Days prior to the first such application or installation. Contractor must, at all times, make the Work available and accessible for testing or inspection. Neither District’s inspection nor testing of Work, nor its failure to do so, operate to waive or limit Contractor’s duty to complete the Work in accordance with the Contract Documents.
B. Scheduling and Notification. Contractor must cooperate with District in coordinating the inspections and testing. Contractor must submit samples of materials, at Contractor’s expense, and schedule all tests required by the Contract Documents in time to avoid any delay to the progress of the Work. Contractor must notify the Construction Manager at least forty-eight (48) hours in advance of any inspection or testing and must provide timely notice to the other necessary parties as specified in the Contract Documents. If Contractor schedules an inspection or test beyond regular Work hours, or on a Saturday, Sunday, or recognized District holiday, Contractor must notify the Construction Manager at least three (3) Working Days in advance for approval. If approved, Contractor must reimburse District for the cost of the overtime inspection or testing. Such costs, including the District’s hourly costs for required personnel, may be deducted from payments otherwise due to Contractor.
C. Responsibility for Costs. District will bear the initial cost of inspection and testing to be performed by independent testing consultants retained by District, subject to the following exceptions:
Contractor will be responsible for the costs of any subsequent tests which are required to substantiate compliance with the Contract Documents, and any associated remediation costs.
Contractor will be responsible for inspection costs, at District’s hourly rates, for inspection time lost because the Work is not ready or Contractor fails to appear for a scheduled inspection.
If any portion of the Work that is subject to inspection or testing is covered or concealed by Contractor prior to the inspection or testing, Contractor will bear the cost of making that portion of the Work available for the inspection or testing required by the Contract Documents, and any associated repair or remediation costs.
Contractor is responsible for properly shoring all compaction test sites deeper than five feet below grade, as required under Section 11.7.15 below.
Any Work or material that is defective or fails to comply with the requirements of the Contract Documents must be promptly repaired, removed, replaced, or corrected by Contractor, at Contractor’s sole expense, even if that Work or material was previously inspected or included in a progress payment.
D. Contractor’s Obligations. Contractor is solely responsible for any delay occasioned by remediation of defective or noncompliant Work or material. Inspection of the Work does not in any way relieve Contractor of its obligations to perform the Work as required by the Contract Documents. Any Work done without the required inspection(s) will also be subject to rejection by District.
E. Distant Locations. If required off-site testing or inspection must be conducted at a location more than one hundred (100) miles from the Project Worksite, Contractor is solely responsible for the additional travel costs required for testing and/or inspection at such locations.
F. Final Inspection. The provisions of this Section 11.7.8 also applies to final inspection under Article 11, Substantial Completion, Final Completion and Warranty Provisions.
11.7.9 Project Worksite Conditions and Maintenance.
Contractor must at all times, on a twenty-four (24)-hour daily basis and at its sole cost, maintain the Project Worksite and staging and storage areas in clean, neat, and sanitary condition and in compliance with all Laws pertaining to safety, air quality, and dust control. Adequate toilets must be provided, and properly maintained and serviced for all workers on the Project Worksite, located in a suitably secluded area, subject to District’s prior approval. Contractor must also, on a daily basis and at its sole cost, remove and properly dispose of the debris and waste materials from the Project Worksite.
A. Air Emissions Control. Contractor must not discharge smoke or other air contaminants into the atmosphere in violation of any Laws.
B. Project Signage. Contractor will provide, install, and maintain all required Project signage, including safety and traffic signage. The location and content of signage must be approved by the District prior to installation.
C. Dust and Debris. Contractor must minimize and confine dust and debris resulting from the Work. Contractor must abate dust nuisance by cleaning, sweeping, and immediately sprinkling with water excavated areas of dirt or other materials prone to cause dust, and within one (1) hour after the Construction Manager notifies Contractor that an airborne nuisance exists. The Construction Manager may direct that Contractor provide an approved water-spraying truck for this purpose. If water is used for dust control, Contractor will only use the minimum necessary. Contractor must take all necessary steps to keep waste water out of streets, gutters, or storm drains. See Section 11.7.19, Environmental Control. If District determines that the dust control is not adequate, District may have the work done by others and deduct the cost from the Contract Price. Contractor will immediately remove any excess excavated material from the Project Worksite and any dirt deposited on public streets.
D. Clean up. Before discontinuing Work in an area, Contractor must clean the area and remove all debris and waste along with the construction equipment, tools, machinery, and surplus materials.
Except as otherwise specified, all excess Project materials, and the materials removed from existing improvements on the Project Worksite with no salvage value or intended reuse by District, will be Contractor’s property.
Hauling trucks and other vehicles leaving the Project Worksite must be cleaned of exterior mud or dirt before traveling on District streets and property. Materials and loose debris must be delivered and loaded to prevent dropping materials or debris. Contractor must immediately remove spillage from hauling on any publicly traveled way. Streets affected by Work on the Project must be kept clean by street sweeping by Contractor.
E. Disposal. Contractor must dispose of all Project debris and waste materials in a safe and legal manner. Contractor may not burn or bury waste materials on the Project Worksite. Contractor will not allow any dirt, refuse, excavated material, surplus concrete or mortar, or any associated washings, to be disposed of onto streets, into manholes or into the storm drain system. If required by the Construction Manager, Contractor will submit a Construction and Demolition Debris Recycling Statement Form to District prior to Final Completion.
F. Completion. At the completion of the Work, Contractor must remove from the Project Worksite all of its equipment, tools, surplus materials, waste materials and debris, presenting a clean and neat appearance. Before demobilizing from the Project Worksite, Contractor must ensure that all surfaces are cleaned, sealed, waxed, or finished as applicable, and that all marks, stains, paint splatters, and the like have been properly removed from the completed Work and the surrounding areas. Contractor must ensure that all parts of the Work are properly joined with the previously existing and adjacent improvements and conditions, including existing utilities. Relocation of or connection to existing utilities must be accomplished without disrupting services to other facilities. If utility outages are required, Contractor must submit a written request to District, seven (7) Days in advance of the proposed Work, to perform the relocation of or connection to existing utilities on a weekend. Contractor must provide all cutting, fitting and patching needed to accomplish that requirement. Contractor must also repair or replace all existing improvements that are damaged or removed during the Work, both on and off the Project Worksite, including curbs, sidewalks, driveways, fences, signs, utilities, street surfaces and structures. Repairs and replacements must be at least equal to the previously existing improvements, and the condition, finish and dimensions must match the previously existing improvements. Contractor must restore to original condition all property or items that are not designated for alteration under the Contract Documents and leave each Worksite clean and ready for occupancy or use by District.
G. Non-Compliance. If Contractor fails to comply with its maintenance and cleanup obligations or any District clean up order, District may, acting in its sole discretion, elect to suspend the Work until the condition(s) is corrected with no increase in the Contract Time or Contract Price, or undertake appropriate cleanup measures without further notice and the cost will be deducted from any amounts due or to become due to Contractor.
11.7.10 Instructions and Manuals. Contractor must provide to District three (3) copies each of all instructions and manuals required by the Contract Documents, unless otherwise specified. These must be complete as to drawings, details, parts lists, performance data, and other information that may be required for District to easily maintain and service the materials and equipment installed for this Project.
A. Submittal Requirements. The instructions and manuals, along with any required guarantees, must be delivered to District for review prior to requesting final inspection pursuant to Section Article 11, unless otherwise specified.
B. Training. Contractor or its Subcontractors must train District’s personnel in the operation and maintenance of any complex equipment or systems as a condition precedent to Final Completion, if required in the Contract Documents.
11.7.11 As-built Drawings.
Contractor and its Subcontractors must prepare and maintain at the Project Worksite a detailed, complete and accurate as-built set of the Plans which will be used solely for the purpose of recording changes made in any portion of the original Plans in order to create accurate record drawings at the end of the Project.
A. Duty to Update. The as-built drawings must be updated by Contractor as changes occur, on a daily basis if necessary. District may withhold the estimated cost for District to have the as-built drawings prepared or updated from payments otherwise due to Contractor, until the as-built drawings are brought up to date to the satisfaction of District. Actual locations to scale must be identified on the as-built drawings for all runs of mechanical and electrical work, including all site utilities installed underground, in walls, floors, or otherwise concealed. Deviations from the original Plans must be shown in detail. The exact location of all main runs, whether piping, conduit, ductwork or drain lines, must be shown by dimension and elevation. The location of all buried pipelines, appurtenances, or other improvements must be represented by coordinates and by the horizontal distance from visible above-ground improvements.
B. Final Completion. Contractor must verify that all changes in the Work are depicted in the as-built drawings and must deliver the complete set of as-built drawings to the Construction Manager for review and acceptance as a condition precedent to Final Completion and Final Payment.
11.7.12 Existing Utilities.
A. General. The Work may be performed in developed, urban areas with existing utilities, both above and below ground, including utilities identified in the Contract Documents or in other informational documents or records. Contractor must take due care to locate identified or reasonably identifiable utilities before proceeding with trenching, excavation, or any other activity that could damage or disrupt existing utilities. This may include excavation with small equipment, potholing, or hand excavation, and, if practical, using white paint or other suitable markings to delineate the area to be excavated. Except as otherwise provided herein, Contractor will be responsible for costs resulting from damage to identified or reasonably identifiable utilities due to Contractor’s negligence or failure to comply with the Contract Documents, including the requirements in Article 7.
B. Unidentified Utilities. Pursuant to Government Code § 4215, if, during the performance of the Work, Contractor discovers utility facilities not identified by District in the Contract Documents, Contractor must immediately provide written notice to District and the utility. District assumes responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on the Project Worksite if those utilities are not identified in the Contract Documents. Contractor will be compensated in accordance with the provisions of the Contract Documents for the costs of locating, repairing damage not due to Contractor’s failure to exercise reasonable care, and removing or relocating utility facilities not indicated in the Plans or Specifications with reasonable accuracy, and for equipment on the Project necessarily idled during such work. Contractor will not be assessed liquidated damages for delay in completion of the Work, to the extent the delay was caused by District’s failure to provide for removal or relocation of the utility facilities.
11.7.13 Notice of Excavation.
Contractor must comply with all applicable requirements in Government Code §§ 4216 through 4216.5, which are incorporated by reference herein. Government Code § 4216.2 requires that, except in an emergency, Contractor must contact the appropriate regional notification center, or Underground Services Alert, at least two (2) working days, but not more than fourteen (14) Days, before starting any excavation if the excavation will be conducted in an area that is known, or reasonably should be known, to contain subsurface installations. Contractor may not begin excavation until it has obtained and submitted to Construction Manager an inquiry identification number from Underground Services Alert.
11.7.14 Trenching and Excavations of Four Feet or More.
As required by Public Contract Code § 7104, if the Work includes digging trenches or other excavations that extend deeper than four feet below the surface, the provisions in this Section apply to the Work and the Project.
A. Duty to Notify. Contractor must promptly, and before the following conditions are disturbed, provide written notice to District if Contractor finds any of the following conditions:
Material that Contractor believes may be a hazardous waste, as defined in § 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the provisions of existing Laws;
Subsurface or latent physical conditions at the Project Worksite differing from those indicated by information about the Project Worksite made available to Bidders prior to the deadline for submitting Bids; or
Unknown physical conditions at the Project Worksite of any unusual nature, materially different from those ordinarily encountered and generally recognized as inherent in work of the character required by the Contract Documents.
B. District Investigation. District will promptly investigate the conditions and if District finds that the conditions materially differ from those indicated, apparent, or reasonably inferred from information about the Project Worksite made available to Bidders, or involve hazardous waste not previously disclosed to Bidders, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, District will issue a Change Order.
C. Disputes. In the event that a dispute arises between District and Contractor regarding any of the conditions specified in subsection (B) above, or the terms of a Change Order issued by District, Contractor will not be excused from completing the Work within the Contract Time, but must proceed with all Work to be performed under the Contract. Contractor will retain any and all rights provided by the Contract which pertain to the resolution of disputes between Contractor and District.
11.7.15 Trenching of Five Feet or More.
As required by Labor Code § 6705, if the Contract Price exceeds $25,000 and the Work includes the excavation of any trench or trenches of five feet or more in depth, a detailed plan must be submitted by Contractor to District for acceptance in advance of the excavation. The detailed plan must show the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation. If the plan varies from the shoring system standards, it must be prepared by a California registered civil or structural engineer. Use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders is prohibited.
11.7.16 New Utility Connections.
Except as otherwise specified, District will pay connection charges and meter costs for new permanent utilities required by the Contract Documents, if any. Contractor must notify District sufficiently in advance of the time needed to request service from each utility provider so that connections and services are initiated in accordance with the Project schedule.
11.7.17 Lines and Grades.
Contractor is required to use any benchmark provided by the Construction Manager. Unless otherwise specified in the Contract Documents, Contractor must provide all lines and grades required to execute the Work. Contractor must also provide, preserve, and replace if necessary, all construction stakes required for the Project. All stakes or marks must be set by a California licensed surveyor or a California registered civil engineer. Contractor must notify the Construction Manager of any discrepancies found between Contractor’s staking and grading and information provided by the Contract Documents. Upon completion, all Work must conform to the lines, elevations, and grades shown in the Plans, including any changes directed by a Change Order.
11.7.18 Historic or Archeological Items.
A. Contractor’s Obligations. Contractor must ensure that all persons performing Work at the Project Worksite are required to immediately notify the Construction Manager, upon discovery of any potential historic or archeological items, including historic or prehistoric ruins, a burial ground, archaeological or vertebrate paleontological site, including fossilized footprints or other archeological, paleontological or historical feature on the Project Worksite (collectively, “Historic or Archeological Items”).
B. Discovery; Cessation of Work. Upon discovery of any potential Historic or Archeological Items, Work must be stopped within an eighty-five (85) foot radius of the find and may not resume until authorized in writing by District. If required by District, Contractor must assist in protecting or recovering the Historic or Archeological Items, with any such assistance to be compensated as Extra Work on a time and materials basis under Article 6, Contract Modification. At District’s discretion, a suspension of Work required due to discovery of Historic or Archeological Items may be treated as Excusable Delay pursuant to Article 5, or as a suspension for convenience under Article 13.
11.7.19 Environmental Control.
Contractor must not pollute any drainage course or its tributary inlets with fuels, oils, bitumens, acids, insecticides, herbicides or other harmful materials. Contractor must prevent the release of any hazardous material or hazardous waste into the soil or groundwater, and prevent the unlawful discharge of pollutants into District’s storm drain system and watercourses as required below. Contractor and its Subcontractors must at all times in the performance of the Work comply with all Laws concerning pollution of waterways.
Stormwater Permit. Contractor must comply with all applicable conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Stormwater Runoff Associated with Construction Activity (“Stormwater Permit”).
Contractor’s Obligations. If required for the Work, a copy of the Stormwater Permit is on file in District’s principal administrative offices, and Contractor must comply with it without adjustment of the Contract Price or the Contract Time. Contractor must timely and completely submit required reports and monitoring information required by the conditions of the Stormwater Permit. Contractor also must comply with all other Laws governing discharge of stormwater, including but not limited to applicable municipal stormwater management programs.
11.7.20 Noise Control.
Pursuant to Public Contract Code § 20676, Contractor will not purchase any sand, gravel, or other minerals for the Work from an operation subject to the Surface Mining and Reclamation Act of 1975 (Public Resources Code § 2710 et seq.), unless the Contractor certifies, under penalty of perjury, that the minerals are from a mining operation included on the AB 3098 List, which is available online at: ftp://ftp.consrv.ca.gov/pub/omr/AB3098%20List/AB3908List.pdf.
11.8.1 Schedule of Values. Prior to submitting its first application for payment or as otherwise specified in the Notice to Proceed, Contractor must prepare and submit to the Construction Manager for review and approval a schedule of values apportioned to the various divisions and phases of the Work, including mobilization and demobilization. If a Bid Schedule was submitted with Contractor’s Bid, the amounts in the schedule of values must be consistent with the Bid Schedule. Each line item contained in the schedule of values must be assigned a value such that the total of all items equals the Contract Price. The items must be sufficiently detailed to enable accurate evaluation of the percentage of completion claimed in each application for payment, and the assigned value consistent with any itemized or unit pricing submitted with Contractor’s Bid.
A. Measurements for Unit Price Work. Materials and items of Work to be paid for on the basis of unit pricing will be measured according to the methods specified in the Contract Documents.
B. Deleted or Reduced Work. Contractor will not be compensated for Work that District has deleted or reduced in scope, except for any labor, material or equipment costs for such Work that Contractor reasonably incurred before Contractor learned that the Work could be deleted or reduced. Contractor will only be compensated for those actual, direct and documented costs incurred, and will not be entitled to any mark up for overhead or lost profits. Should the deleted work or reduced scope result in a shortening of the Contract Time, the District shall reduce the Contract Price by Change Order in an amount equal to the cost of the deleted work plus an amount derived from multiplying: (1) the number of Days that the Contract Time is shortened by (2) the amount of liquidated damages set forth in Section 7 of the Contract, without any additional credit to District for any allowable markups.
11.8.2 Progress Payments.
Following the last day of each month, or as otherwise required by the Special Conditions or Specifications, Contractor will submit to the Construction Manager a monthly application for payment for Work performed during the preceding month based on the estimated value of the Work performed during that preceding month.
A. Application for Payment. Each application for payment must be itemized to include labor, materials, and equipment incorporated into the Work, and materials and equipment delivered to the Project Worksite, as well as authorized and approved Change Orders. Each payment application must be supported by the unit prices submitted with Contractor’s Bid Schedule and/or schedule of values and any other substantiating data required by the Contract Documents. If the Construction Manager determines the payment application is not complete and/or accurate, the District shall return the payment application to Contractor within seven (7) Days after receipt with a statement in writing as to the reasons the payment application is not proper and/or complete.
B. Payment of Undisputed Amounts. District will pay the undisputed amount due within thirty (30) days after Contractor has submitted a complete and accurate payment application, subject to Public Contract Code § 20104.50. District will deduct a percentage from each progress payment as retention, as set forth in Section 11.8.5, below, and may withhold additional amounts as set forth in Section 11.8.3, below.
11.8.3 Adjustment of Payment Application.
District may adjust or reject the amount requested in a payment application, including application for Final Payment, in whole or in part, if the amount requested is disputed or unsubstantiated. Contractor will be notified in writing of the basis for the modification to the amount requested. District may also deduct or withhold from payment otherwise due based upon, without limitation, any of the circumstances and amounts listed below. Sums withheld from payment otherwise due will be released when the basis for that withholding has been remedied and no longer exists.
For Contractor’s unexcused failure to perform the Work as required by the Contract Documents, including correction or completion of punch list items, District may withhold or deduct an amount based on the District’s estimated cost to correct or complete the Work.
For loss or damage caused by Contractor or its Subcontractors, including loss or damage to another contractor or design-builder, arising out of or relating to performance of the Work or any failure to protect the Project Worksite, District may deduct an amount based on the claimed loss amount, and/or estimated cost to repair or replace.
For Contractor’s failure to pay its Subcontractors and suppliers when payment is due, District may withhold an amount equal to the total of past due payments and may opt to pay that amount separately via joint check pursuant to Section 11.8.6(B), Joint Checks.
For Contractor’s failure to timely correct rejected, nonconforming, or defective Work, District may withhold or deduct an amount based on the District’s estimated cost to correct or complete the Work.
For any unreleased stop notice, District may withhold one hundred twenty-five percent (125%) of the amount claimed.
For Contractor’s failure to submit any required schedule or schedule update in the manner and within the time specified in the Contract Documents, District may withhold an amount equal to ten percent (10%) of the total amount requested until Contractor complies with its schedule submittal obligations.
For Contractor’s failure to maintain or submit as-built documents in the manner and within the time specified in the Contract Documents, District may withhold or deduct an amount based on the District’s cost to prepare the as-builts.
For Work performed without Shop Drawings that have been accepted by District, when accepted Shop Drawings are required before proceeding with the Work, District may deduct an amount based on the estimated costs to correct unsatisfactory Work or diminution in value.
For fines, payments, or penalties assessed under the Labor Code, District may deduct from payments due to Contractor as required by Laws and as directed by the Division of Labor Standards Enforcement.
For any other fines, payments, or penalties assessed against the District relating to Contractor’s acts or omissions, including violations of Laws, District may withhold or deduct such amounts from payment otherwise due to Contractor.
For any other costs or charges that may be withheld or deducted from payments to Contractor, as provided in the Contract Documents, including liquidated damages and Contractor’s failure to meet Contract requirements that results or may result in the District incurring losses, District may withhold or deduct such amounts from payment otherwise due to Contractor.
11.8.4 Early Occupancy.
Neither District’s payment of progress payments nor its partial or full use or occupancy of the Project constitutes acceptance of any part of the Work.
11.8.5 Retention.
District will retain five percent (5%) of the full amount due on each progress payment (i.e., the amount due before any withholding or deductions pursuant to Section 11.8.3, Adjustment to Payment Application), or the percentage stated in the Notice Inviting Bids, whichever is greater, as retention to ensure full and satisfactory performance of the Work.
A. Substitution of Securities. Upon the Contractor's request, the District will make payment of funds withheld from progress payments to ensure performance under the Contract pursuant to the requirements of Public Contract Code section 22300 if the Contractor deposits in escrow with the District or with a bank acceptable to the District, securities eligible for investment under Government Code section 16430, bank or savings and loan certificates of deposit, or other security mutually agreed to by the Contractor and the District, subject to the following conditions:
The Contractor shall bear the expense of the District and the escrow agent, either the District or the bank, in connection with the escrow deposit made.
Securities or certificates of deposit to be placed in escrow shall be of a value at least equivalent to the amounts of retention to be paid to the Contractor pursuant to this section.
The Contractor shall enter into an escrow agreement satisfactory to the District, which agreement shall include provisions governing inter alia:
(a) The amount of securities to be deposited,
(b) The providing of powers of attorney or other documents necessary for the transfer of the securities to be deposited,
(c) Conversion to cash to provide funds to meet defaults by the Contractor, including, but not limited to, termination of the Contractor's control over the Work, stop notices filed pursuant to law, assessment of liquidated damages or other amounts to be kept or retained under the provisions of the Contract,
(d) Decrease in value of securities on deposit,
(e) The termination of the escrow upon completion of the Contract.
The Contract shall obtain the written consent of its Surety to such agreement.
As an alternative to Contractor depositing into escrow securities of a value equivalent to the amounts of retention to be paid to the Contractor, upon Contractor's request, District will make payment of retentions earned directly to the escrow agent at the expense of Contractor pursuant to and in accordance with Public Contract Code section 22300.
B. Substantial Completion Payment - Release of Undisputed Retention. The Contractor shall submit a payment application for Substantial Completion payment within ten (10) business days of District confirming achievement of Substantial Completion. Such payment application shall be for an amount that is due and owing to Contractor, including all undisputed retention, less any amounts that the District is entitled and/or obligated to withhold under the Contract or Law. If the District agrees with the Contractor’s payment application for Substantial Completion payment, District shall process and ensure that payment is made to the Contractor by District not more than sixty (60) days after Substantial Completion of the Work as defined by clauses (c) (1), (2), (3) or (4) of California Public Contract Code §7107, whichever definition is earlier satisfied. If District disagrees with Contractor’s application for Substantial Completion payment, District shall prepare an application for Substantial Completion payment in an amount that it believes in good faith is then due and owing to the Contractor, including all undisputed Retention less any and all amounts that the District is entitled and/or obligated to withhold under the Contract and Law. District shall then process said application and ensure that payment is made to the Contractor by District not more than sixty (60) days after Substantial Completion of the Work as defined by in clauses (c) (1), (2), (3) or (4) of California Public Contract Code §7107, whichever definition is earlier satisfied.
C. Final Payment. Upon the making of the Substantial Completion Payment, the District should then only be withholding amounts that it contends, in good faith, are not then due and owing to the Contractor based upon 150% of the value of the items on the Final Completion Punch List; and any and all amounts that the District is otherwise entitled and/or obligated to withhold under the Contract and Law. When the Contractor has achieved Final Completion, Contractor shall then submit its application for Final Payment to the District. If District agrees with Contractor’s application for Final Payment, District shall process and ensure that Final Payment is made to the Contractor by District within thirty (30) Days after Final Completion of the Work as defined in the Contract. If Construction Manager disagrees with Contractor’s application for Final Payment, District shall prepare an application for Final Payment in an amount that it believes in good faith is then due and owing to the Contractor, less any and all amounts that the District is entitled and/or obligated to withhold under the Contract and Law. District shall then process said application and ensure that payment is made to the Contractor by District not more than thirty (30) Days after Final Completion of the Work as defined in the Contract.
Conditions to Final Payment. Without limitation to any other conditions to payment set forth elsewhere in the Contract Documents, the following shall be conditions to a proper submission, and to District’s approval, of Contractor’s application for Final Payment:
(a). Submission of Contractor’s certification as required herein;
(b). Submission of consent of Surety, if any to Final Payment;
(c). Submission of a certificate evidencing that the insurance required by the Contract Documents is in force;
(d). Submission of conditional and unconditional releases and waivers of stop payment notices and bond rights upon final payment in the form required by California Civil Code §8132, et seq. executed by Contractor;
(e). Submission of all Close-Out Documents, including, without limitation, complete, accurate As-Built Drawings and Specifications certified by Contractor as required by the Contract Documents;
(f). Absence of unreleased stop payment notices or Department of Industrial Relations wage withholds being filed against Contractor; and
(g). Submission of any other documents or information required by the Contract Documents as a condition of Final Payment or Final Completion.
Disputed Amounts. Pursuant to California Public Contract Code §7107, District may deduct and withhold from the Substantial Completion Payment and the Final Payment an amount of up to one hundred fifty percent (150%) of any disputed amounts, including, without limitation, amounts to protect District against any loss caused or threatened as a result of Contractor failing to fully satisfy the conditions of Substantial Completion, Final Completion, Substantial Completion Payment and Final Payment. If the amount due from Contractor to District exceeds the amount of Final Payment, District retains the right to recover the balance from Contractor or its sureties.
Failure of Approval or Payment. If, through no fault of Contractor or failure by Contractor to comply with its obligations under the Contract Documents either: (1) approval or disapproval by Construction Manager of an Application for Payment properly prepared and submitted by Contractor and requesting payment that is otherwise undisputed by District is not issued within the time period required therefore by the terms of the Contract; or (2) the District does not: (a) upon an Application for Payment properly prepared and submitted by Contractor and approved by Construction Manager pay to Contractor, within the time period required for payment by District, an undisputed amount approved by Construction Manager as earned, which approval has not been, and is not thereafter, nullified by District, or (b) pay to Contractor an amount that has been awarded by arbitration or judgment of a court of competent jurisdiction, then Contractor may, following the expiration of ten (10) Days after delivery to District of a written “10-day stop work order,” stop the Work until, as applicable, an approval or disapproval by Construction Manager or payment by District is received by Contractor. Promptly upon receipt of such approval or disapproval, or payment, as applicable, Contractor shall resume the Work. Any resulting Delay associated with the shut down and startup of the Work as a result of Contractor’s proper exercise of its right to stop work under this Section shall constitute a Compensable Delay.
11.8.6 Payment to Subcontractors and Suppliers.
Each month, Contractor must promptly pay each Subcontractor and supplier the value of the portion of labor, materials, and equipment incorporated into the Work or delivered to the Project Worksite by the Subcontractor or supplier during the preceding month. Such payments must be made in accordance with the requirements of Laws pertaining to such payments, those of the Contract Documents and applicable subcontract or supplier contracts.
A. Withholding for Stop Notice. Pursuant to Civil Code § 9358, upon receipt of a stop payment notice the District will withhold one hundred twenty-five percent (125%) of the amount claimed in a stop payment notice from funds due or to become due to the Contractor , a portion of which may be retained by District to provide for the District’s costs of any litigation pursuant to the stop payment notice, as authorized by law.
B. Joint Checks. District reserves the right, but has no obligation, acting in its sole discretion, to issue joint checks made payable to Contractor and a Subcontractor or supplier, if District determines this is necessary to ensure fair and timely payment for a Subcontractor or supplier who has provided services or goods for the Project. As a condition to release of payment by a joint check, the joint check payees may be required to execute a joint check agreement in a form provided or approved by District’s legal counsel. The joint check payees will be jointly and severally responsible for the allocation and disbursement of funds paid by joint check. Payment by joint check will not be construed to create a contractual relationship between District and a Subcontractor or supplier of any tier beyond the scope of the joint check agreement.
11.8.7 Waiver by Contractor.
Acceptance of Final Payment by Contractor or a Subcontractor shall constitute a waiver of all rights by that payee against District for recovery of any loss, excepting only those Claims that have been submitted by Contractor in the manner required by the Contract Documents, before or at the time of Contractor’s submission of its application for Final Payment.
11.8.8 Release of Claims.
District may, at any time, require that payment of the undisputed portion of any progress payment, Substantial Completion Payment or Final Payment be contingent upon Contractor furnishing District with a written waiver and release of all claims against District arising from or related to the portion of Work covered by those undisputed amounts subject to the limitations of Public Contract Code § 7100. Any disputed amounts may be specifically excluded from the release.
11.8.9 Warranty of Title.
Contractor warrants that title to all work, materials, or equipment incorporated into the Work and included in a request for payment will pass over to District free of any claims, liens, or encumbrances upon payment to Contractor.
11.9.1 Discrimination Prohibited. Discrimination against any prospective or present employee engaged in the Work on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status is strictly prohibited. Contractor and its Subcontractors are required to comply with all applicable Laws prohibiting discrimination, including the California Fair Employment and Housing Act (Govt. Code § 12900 et seq.), Government Code § 11135, and Labor Code §§ 1735, 1777.5, 1777.6, and 3077.5.
11.9.2 Labor Code Requirements.
Eight Hour Day. Pursuant to Labor Code § 1810, eight (8) hours of labor constitute a legal day’s work under this Contract.
Penalty. Pursuant to Labor Code § 1813, Contractor will forfeit to District as a penalty, the sum of $25.00 for each day during which a worker employed by Contractor or any Subcontractor is required or permitted to work more than eight (8) hours in any one calendar day or more than forty (40) hours per calendar week, except if such workers are paid overtime pursuant to Labor Code § 1815.
Apprentices. Contractor is responsible for compliance with the requirements governing employment and payment of apprentices, as set forth in Labor Code §§ 1777.5, 1777.6, and 1777.7 which are fully incorporated by reference. The Contractor shall be knowledgeable of and comply with all California Labor Code sections including, but not limited to 1727, 1773.5, 1775, 1777, 1777.5, 1810, 1813, 1860, including all amendments; each of these sections is incorporated by reference into this Contract. The responsibility for compliance with these provisions for all apprentice able occupations rests with the Contractor. Knowing violations of Section 1777.5 will result in forfeiture not to exceed $100 for each calendar day of non-compliance pursuant to Section 1777.7.
Notices. Pursuant to Labor Code § 1771.4, Contractor is required to post all job site notices prescribed by Laws.
11.9.3 Prevailing Wages. Contractor is aware of the requirements of California Labor Code §1770 et seq., as well as California Code of Regulations, Title 8, section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since the Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is one thousand dollars ($1000) or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Department of Industrial relations at http://www.dir.ca.gov/dlsr. Contractor must post a copy of the applicable prevailing rates at the Project Worksite.
Penalties. Pursuant to Labor Code § 1775, Contractor and any Subcontractor will forfeit to District as a penalty up to two hundred dollars ($200) for each calendar day, or portion a day, for each worker paid less than the applicable prevailing wage rate. Contractor must also pay each worker the difference between the applicable prevailing wage rate and the amount actually paid to that worker.
Federal Requirements. If this Project is subject to federal prevailing wage requirements in addition to California prevailing wage requirements, Contractor and its Subcontractors are required to pay the higher of the currently applicable state or federal prevailing wage rates.
13.9.4 Payroll Records. Contractor must comply with the provisions of Labor Code §§ 1776 and 1812 and all implementing regulations, which are fully incorporated by this reference, including requirements for electronic submission of payroll records to the DIR.
Contractor and Subcontractor Obligations. Contractor and each Subcontractor must keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in connection with the Work. Each payroll record must contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
The information contained in the payroll record is true and correct; and
Contractor or the Subcontractor has complied with the requirements of Labor Code §§ 1771, 1811, and 1815 for any Work performed by its employees on the Project.
Certified Record. Payroll records provided for herein must be certified and shall be made available for inspection or furnished to the employee or his or her authorized representative on request, to District, to the Division of Labor Standards Enforcement, to the Division of Apprenticeship Standards of the DIR, and as further required by the Labor Code.
Enforcement. Upon notice of noncompliance with Labor Code § 1776, Contractor or Subcontractor has ten (10) Days in which to comply with the requirements of this section. If Contractor or Subcontractor fails to do so within the ten (10)-Day period, Contractor or Subcontractor will forfeit a penalty of one hundred dollars ($100) per Day, or portion a Day, for each worker for whom compliance is required, until strict compliance is achieved. Upon request by the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement, these penalties will be withheld from payments then due to Contractor.
11.9.5 Labor Compliance. Pursuant to Labor Code § 1771.4, the Contract for this Project is subject to compliance monitoring and enforcement by the DIR.
11.9.6 Indemnity. As a further material part of this Contract, Contractor agrees to hold harmless and indemnify the District, its Board and each member of the Board, its officers, employees and agents from any and all claims, liability, loss, costs, damages, expenses, fines and penalties, of whatever kind or nature, including all costs of defense and attorneys’ fees, arising from any alleged failure of Contractor or its Subcontractors to comply with the prevailing wage laws of the State of California. If the District or any of the indemnified parties are named as a party in any dispute arising from the failure of Contractor or its Subcontractors to pay prevailing wages, Contractor agrees that the District and the other indemnified parties may appoint their own independent counsel, and Contractor agrees to pay all attorneys’ fees and defense costs of the District and the other indemnified parties as billed, in addition to all other damages, fines, penalties and losses incurred by the District and the other indemnified parties as a result of the action.
11.10.1 Safety Precautions and Programs. Contractor and its Subcontractors are fully responsible for safety precautions and programs, and for the safety of persons and property in the performance of the Work. Contractor and its Subcontractors must at all times comply with all applicable safety Laws and seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect its employees and other persons at Project Worksite, materials and equipment stored on or off site, and property at or adjacent to Project Worksite.
Reporting Requirements. Contractor must immediately notify the District of any death, serious injury or illness resulting from Work on the Project. Contractor must immediately provide a written report to District of each recordable accident or injury occurring at Project Worksite within twenty-four (24) hours of the occurrence. The written report must include: (1) the name and address of the injured or deceased person; (2) the name and address of each employee of Contractor or of any Subcontractor involved in the incident; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with a government agency, Contractor must provide a copy of the report to District.
Legal Compliance. Contractor’s safety program must comply with the applicable legal and regulatory requirements. Contractor must provide District with copies of all notices required by Laws.
Contractor’s Obligations. Any damage or loss caused by Contractor arising from the Work which is not covered by Contractor’s insurance must be promptly remedied by Contractor.
Remedies. If District determines, in its sole discretion, that any part of the Work or Project Worksite is unsafe, District may, without assuming responsibility for Contractor’s safety program, require Contractor or its Subcontractor to cease performance of the Work or to take corrective measures to District’s satisfaction. If Contractor fails to promptly take the required corrective measures, District may perform them and deduct the cost from the Contract Price. Contractor agrees it is not entitled to submit a Claim for damages, for an increase in Contract Price, or for a change in Contract Time based on Contractor’s compliance with District’s request for corrective measures pursuant to this provision.
11.10.2 Hazardous Materials. Unless otherwise specified in the Contract Documents, this Contract does not include the removal, handling, or disturbance of any asbestos or other Hazardous Materials. If Contractor encounters materials on the Project Worksite that Contractor reasonably believes to be asbestos or other Hazardous Materials, and the asbestos or other Hazardous Materials have not been rendered harmless, Contractor may continue Work in unaffected areas reasonably believed to be safe, but must immediately cease work on the area affected and report the condition to District. Contractor’s notice to District must indicate whether the material believed to be Hazardous Materials was shown or indicated on the Contract Documents to be within the scope of Work and whether the material was brought to the Project Worksite by Contractor, its Subcontractors, a supplier, or any other individual. No asbestos, asbestos-containing products or other Hazardous Materials may be used in performance of the Work. Additionally, see Section 11.10.3, Lead-Based Materials.
11.10.3 Lead-Based Materials. District projects may involve the disturbance of lead-containing materials, as may be further specified in the Specifications. If Contractor believes that the Work will result in the disturbance of lead-containing materials that are not addressed in the Specifications, or if Contractor encounters materials on the Project Worksite that Contractor reasonably believes to contain lead, Contractor must promptly notify the District. If the District determines that the Work will result in lead disturbance, only individuals with the appropriate accreditation, registrations, licenses, and training may conduct the subject Work. Contractor and Subcontractors must comply with all Laws relating to lead-based materials. No lead-based materials, including lead-based paint, plumbing, and solders, or other potential sources of lead contamination, may be used in performance of the Work.
11.10.4 Material Safety. Contractor is solely responsible for complying with § 5194 of Title 8 of the California Code of Regulations, including by providing information to Contractor’s employees about any hazardous chemicals to which they may be exposed in the course of the Work. A hazard communication program and other forms of warning and training about such exposure must be used. Contractor must also maintain Safety Data Sheets (“SDS”) at the Project Worksite, as required by Laws, for materials or substances used or consumed in the performance of the Work. The SDS will be accessible and available to Contractor’s employees, Subcontractors, and District.
Contractor Obligations. Contractor is solely responsible for the proper delivery, handling, use, storage, removal, and disposal of all materials brought to the Project Worksite and/or used in the performance of the Work. Contractor must notify the Construction Manager if a specified product or material cannot be used safely.
Labeling. Contractor must ensure proper labeling on any material brought onto the Project Worksite so that any persons working with or in the vicinity of the material may be informed as to the identity of the material, any potential hazards, and requirements for proper handling, protections, and disposal.
11.10.5 Hazardous Condition. Contractor is solely responsible for determining whether a hazardous condition exists or is created during the course of the Work, involving a risk of bodily harm to any person or risk of damage to any property. If a hazardous condition exists or is created, Contractor must take all precautions necessary to address the condition and ensure that the Work progresses safely under the circumstances. Hazardous conditions may result from, but are not limited to, use of specified materials or equipment, the Work location, the Project Worksite condition, the method of construction, or the way any Work must be performed.
11.10.6 Emergencies. In an emergency affecting the safety or protection of persons, Work, or property at or adjacent to Project Worksite, Contractor must take reasonable and prompt actions to prevent damage, injury, or loss, without prior authorization from the District if, under the circumstances, there is inadequate time to seek prior authorization from the District.
11.11.1 Substantial Completion
A. Contract Time. Contractor shall achieve Substantial Completion of the Work, or such portion of the Work as may be designated at any time by District for separate delivery, in accordance with the requirements of the Contract Time and other provisions of the Contract Documents.
B. Request for Inspection. When the Contractor believes it has achieved Substantial Completion, Contractor shall notify the Construction Manager that the Work, or portion thereof designated by the District in the Contract Documents or otherwise for separate delivery, is Substantially Complete.
Substantial Completion Inspection When Contractor gives notice to Construction Manager that it has achieved Substantial Completion of the Work, or a District designated portion thereof, the Construction Manager, Architect, Contractor and such others as may be designated by District shall inspect the Work together. If the Construction Manager determines that the Work, or District designated portion thereof, is Substantially Complete, the District will proceed as outlined below. If the Construction Manager determines that the Work, or District designated portion thereof, is not sufficiently complete to warrant an inspection to determine Substantial Completion, Construction Manager, Inspector of Record, Architect and such others as may be designated by District will inspect the Work, or such District designated portion thereof and proceed as outlined below.
Substantial Completion Punch List
At the conclusion of the Substantial Completion Inspection, District shall prepare and give to Contractor (or, District may request that Contractor prepare and provide to District) a Substantial Completion Punch List of items, if any, to be completed or corrected to achieve Substantial Completion. If Contractor disputes any of the items included, it shall so note its objection on the Substantial Completion Punch List. Contractor shall proceed within forty-eight (48) hours after preparation of the Substantial Completion Punch List to commence correction and completion of the items on the Substantial Completion Punch List, including, without limitation, any such disputed items, and all such items of Work shall be completed by Contractor before the Work will be considered as Substantially Complete. Failure by District, Construction Manager, Inspector of Record, Architect or Contractor to include an item on the Substantial Completion Punch List does not alter the responsibility of Contractor to perform the Work in accordance with the Contract Documents. Items of Work necessary for Substantial Completion that, for any reason, have been omitted from the Substantial Completion Punch List shall be added to the Substantial Completion Punch List and shall be promptly completed by Contractor upon request by District, Construction Manager, Architect or Inspector of Record made at any time prior to Final Payment.
Re-Inspection
Contractor shall notify Construction Manager when the items of Work shown on the Substantial Completion Punch List are completed. District, Construction Manager, Inspector of Record, Architect and such others as District deems necessary or appropriate will then make a further inspection to determine whether such Work is Substantially Complete. If such inspection, or any subsequent re-inspection required pursuant hereto, discloses any item, whether or not included on the Substantial Completion Punch List, which must be completed or corrected before Substantial Completion, Contractor shall, as a condition of Substantial Completion, complete or correct such item, which shall then be re-inspected to confirm that such Work is Substantially Complete. Contractor shall reimburse District, or District may at its option withhold from Contractor’s payments, amounts incurred by District to the Construction Manager, Inspector of Record, Architect, District Consultants or others whose services, for reasons within the control or responsibility of Contractor or the Subcontractors, are necessary for more than two (2) such re-inspections to determine Substantial Completion.
Notice of Substantial Completion
When District determines that the Work or such District designated portion thereof, is Substantially Complete, District will prepare a Notice of Substantial Completion on the District's form, which shall state the date of Substantial Completion. If the Notice of Substantial Completion is for the entire Work, then the District will attach to it the Final Completion Punch List prepared as set forth below. Regardless of the date the Notice of Substantial Completion is issued, Substantial Completion shall be deemed to have occurred on the date stated in the Notice of Substantial Completion.
11.11.2 Partial Occupancy or Use
District reserves the right to beneficially occupy all or any portion of the Work at any time before Substantial Completion of the entire Work. Beneficial occupancy means that District has assumed physical occupancy and use of all or such portion of the Work. Commencement of improvements or other work by separate contractors in order to ready the Work for use or occupancy by District shall be unconditionally permitted in all cases prior to Substantial Completion and shall not constitute a taking of beneficial occupancy by District. Exercise by District of its right to take beneficial occupancy shall not constitute grounds for a Contract Adjustment. The District’s right of beneficial occupancy of all or a portion of the Work prior to Substantial Completion shall be subject to the following conditions:
A. District and such others as District deems necessary will make an inspection of the portion of the Work to be beneficially occupied and prepare a list of items to be completed or corrected in the same manner as required by and subject to the same conditions as set forth regarding Substantial Completion Punch List.
B. Except as otherwise provided herein, beneficial occupancy by District shall not constitute a waiver of rights of the District against Contractor. Notwithstanding anything stated herein or elsewhere in the Contract Documents to the contrary, beneficial occupancy by District shall not constitute a waiver of rights of District relating to Defective Work in the area beneficially occupied or in any other portion of the Work.
C. Before the District takes beneficial occupancy, Contractor shall submit to District an itemized list of each piece of equipment located in or serving the area to be occupied stating the date operation of such piece of equipment commenced, together with operating instructions, manuals and other information required by the Contract Documents. Contractor shall provide, in the areas beneficially occupied, on a continual basis, utility services, elevator service, and heating and cooling systems in operable condition commencing at the time of beneficial occupancy and until Final Completion of the entire Work. District shall be responsible, from and after taking occupancy, for utility consumption, regular operation and regular maintenance of such systems or equipment.
D. District shall pay all normal operating and maintenance costs resulting from its use of equipment in areas beneficially occupied.
E. District shall pay all utility costs that arise out of its beneficial occupancy.
F. Contractor shall not be responsible for providing security in areas beneficially occupied.
G. District shall use its best efforts to prevent its beneficial occupancy from interfering with the conduct of Contractor's remaining Work.
H. Contractor shall not be required to repair damage caused solely by District’s beneficial occupancy.
I. Contractor shall continue to maintain all insurance required by the Contract Documents in full force and effect.
11.11.3 Final Completion.
A. Contract Time
Contractor shall expeditiously and diligently perform the Work after Substantial Completion, including, without limitation, all items of Work on the Final Completion Punch List that accompanies the Notice of Substantial Completion, so as to achieve Final Completion within the requirements of the Contract Time for Final Completion.
B. Final Completion Punch List
Contractor shall prepare and submit to District at the time that Contractor requests inspection for Substantial Completion of the entire Work as set forth above, a draft proposed Final Completion Punch List of items of Work that will be required to be completed or corrected for Final Completion. Items identified in the course of any inspection for Substantial Completion that are required to Finally Complete the Work following Substantial Completion shall be added to the proposed Final Completion Punch List and the revised Final Completion Punch List attached to the Notice of Substantial Completion. The District shall provide an estimated value for each item listed on the Final Completion Punch List. If Contractor disputes any of the items included, it shall so note its objection on the Final Completion Punch List. When Contractor considers the Final Completion Punch List to be complete, it shall promptly sign and deliver the Final Completion Punch List to the District, Construction Manager and Architect. Failure by District, Construction Manager, Architect, Inspector of Record or Contractor to include an item on the Final Completion Punch List does not alter the responsibility of Contractor to perform the Work in accordance with the Contract Documents. Items of Work necessary for Final Completion that, for any reason, have been omitted from the Final Completion Punch List shall be added to the Final Completion Punch List upon request by District, Construction Manager, Inspector or Record or Architect made at any time prior to Final Payment
Contractor shall proceed promptly and in accordance with the Contract Time to correct and complete the items on the Final Completion Punch List, including, without limitation, any disputed items, and all such items of Work shall be completed by Contractor before the Work will be considered as Finally Complete.
Request for Final Inspection
Contractor shall notify District and Construction Manager when Contractor believes that the Work is Finally Complete. District, Construction Manager, Inspector of Record, Architect and such others as District deems necessary or appropriate will then make a further inspection to determine whether such Work is Finally Complete. If such inspection, or any subsequent re-inspection required pursuant hereto, discloses any item, whether or not included on the Final Completion Punch List, which must be completed or corrected before Final Completion, Contractor shall, as a condition of Final Completion, complete or correct such item, which shall then be re-inspected to confirm that such Work is Finally Completed. Contractor shall reimburse District, or District may at its option withhold from Contractor’s payments, amounts incurred by District to the Construction Manager, Inspector of Record, Architect, District Consultants or others whose services, for reasons within the control or responsibility of Contractor or the Subcontractors, are necessary for more than two (2) inspections to determine Final Completion.
Acceptance by District
Acceptance of the Work may only be exercised on behalf of District by the Board of Trustees. Acceptance may be exercised either after Final Completion or may be exercised, without waiving or releasing Contractor from any of its obligations under the Contract Documents, at any time after Substantial Completion and before Final Completion.
Notice of Final Completion
When District determines that the Work is Finally Complete, District will prepare a Notice of Final Completion on the District's form, which shall state the date of Final Completion. Regardless of the date the Notice of Final Completion is issued, Final Completion shall be deemed to have occurred on the date stated in the Notice of Final Completion.
Notice of Completion
In addition to issuance of the Notice of Substantial Completion and Notice of Final Completion, District shall have the right, exercised in its sole and absolute discretion, to record a Notice of Completion pursuant to California Civil Code §9204.
6. No Waiver by District
No inspections conducted pursuant to this Contract provision, nor any approvals or certificates issued by District, Architect or Inspector of Record shall be deemed to be a waiver or limitation on District’s right to insist on Final Completion and full performance of all other conditions to Final Payment under the Contract Documents prior to issuance of Final Payment to Contractor.
11.11.4 Warranty.
General. Contractor warrants that all materials and equipment will be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. Contractor further warrants that the Work will be free from material defects not intrinsic in the design or materials required in the Contract Documents. Contractor warrants that materials or items incorporated into the Work comply with the requirements and standards in the Contract Documents, including compliance with Laws, and that any Hazardous Materials encountered or used were handled as required by Laws. At District’s request, Contractor must furnish satisfactory evidence of the quality and type of materials and equipment furnished. Contractor’s warranty does not extend to damage caused by normal wear and tear, or improper use or maintenance.
Warranty Period. Contractor’s warranty must guarantee its Work for a period of one (1) year from the date of Project acceptance (the “Warranty Period”), except when a longer guarantee is provided by a supplier or manufacturer or is required by the Specifications or Special Conditions. Contractor must obtain from its Subcontractors, suppliers and manufacturers any special or extended warranties required by the Contract Documents.
Warranty Documents. As a condition precedent to Final Completion, Contractor must supply District with all warranty and guarantee documents relevant to equipment and materials incorporated into the Work and guaranteed by their suppliers or manufacturers.
Subcontractors. The warranty obligations in the Contract Documents apply to Work performed by Contractor and its Subcontractors, and Contractor agrees to be co-guarantor of such Work.
Contractor’s Obligations. Upon written notice from District to Contractor of any defect in the Work discovered during the Warranty Period, Contractor or its responsible Subcontractor must commence correction of the defective Work at its own cost within ten (10) Days of being notified of such defect in writing. Contractor’s obligation to correct defects discovered during the Warranty Period will continue past the expiration of the Warranty Period as to any defects in Work for which Contractor was notified prior to expiration of the Warranty Period. Work performed during the Warranty Period (“Warranty Work”) will be subject to the warranty provisions of the Contract Documents for a one (1) year period that begins upon completion of such Warranty Work to District’s satisfaction.
District’s Remedies. If Contractor or its responsible Subcontractor fails to correct defective Work within ten (10) Days following notice by District, or sooner if required by the circumstances, District may correct the defects to conform with the Contract Documents at Contractor’s sole expense. Contractor must reimburse District for its costs in accordance with subsection (I), below.
Emergency Repairs. In cases of emergency where any delay in correcting defective Work could cause harm, loss or damage, District may immediately correct the defects to conform with the Contract Documents at Contractor’s sole expense. Contractor or its Surety must reimburse District for its costs in accordance with subsection (I), below.
Reimbursement. Contractor must reimburse District for its costs to repair under subsections (G) or (H), above, within thirty (30) Days following District’s submission of a demand for payment pursuant to this provision. If District is required to initiate legal action to compel Contractor’s compliance with this provision, and District is the prevailing party in such action, Contractor and its Surety are solely responsible for all of District’s attorney’s fees and legal costs expended to enforce Contractor’s warranty obligations herein in addition to any and all costs District incurs to correct the defective Work.
11.12.1 Adoption and Implementation
The mandatory dispute resolution provisions set forth hereat are adopted and implemented by the District Pursuant to the authority afforded it under, without limitation Government Code sections 930.2, 930.4, 930.6, and Law.
11.12.2 Condition Precedent to Arbitration – Claims subject to the Process
The District and Contractor agree that this mandatory dispute resolution process, in its entirety, must be followed as a condition precedent to arbitration as set forth herein below. This mandatory dispute resolution process establishes the exclusive procedures for Claims between the Contractor and the District regarding the Contract Documents, except as may be expressly exempted elsewhere in the Contract Documents. A Claim means a written demand or assertion by Contractor or District seeking, as a matter of right: an interpretation of contract; payment of money; increase and/or decrease in time; and/or recovery of damages. A Claim does not include the following: (1) tort claims for personal injury, death and/or property damage; (2) matters covered by insurance; (3) stop payment notice claims; (4) the right of District to specific performance or injunctive relief to compel performance; (5) the right of District to suspend, revoke, or limit the Contractor’s pre-qualification status or rating or to debar Contractor from proposing or contracting with District; (6) right of District under Laws regarding withholds; (7) right of District under Laws due to a violation by Contractor of its statutory obligations under Public Contract Code §4100 et seq., to terminate the Design-Build Contract and/or recover penalties; or (8) any other actions taken by the District pursuant to mandatory and/or discretionary statutory obligations with which the Contractor takes issue.
11.12.3 Waiver of Jury and Court Trial
Claims shall be resolved by the Parties in accordance with these provisions in lieu of any and all rights under the law that either Party may have to have its rights adjudged by a trial court or jury. Contractor and District each voluntarily waives its right to a jury and court trial with respect to any Claim that is subject to binding arbitration in accordance with these provisions. Contractor shall include a provision in its contracts with its Subcontractors: (1) waiving a jury and court trial by any Subcontractor who provided any portion of the Work; and (2) binding its Subcontractors to participate in this mandatory Claims Dispute Resolution Process.
11.12.4 Irreparable Harm; Waiver; Forfeiture
It is also the intent of this mandatory and exclusive Claims Dispute Resolution Process to resolve a Claim as close as possible to the conclusion of the event(s) and /or circumstance(s) giving rise to the Claim. In this way, individual’s memories, and the information and documentation available to both Parties, will be as fresh as possible and permit the best informed resolution to occur. Both Parties acknowledge that their failure and/or refusal to follow this mandatory and exclusive process will irreparably prejudice the other Party and as such, should a Party to this Agreement fail or refuse to comply with this process; any Claim they may have shall be waived and forfeited. This process applies equally to the District as it does to the Contractor.
11.12.5 Time Limit for Submitting a Claim
The time period for each party to submit a Claim is ten (10) Days from when: a party realizes, or when a reasonable person should have realized, that it has a Claim; when the Contractor fails or refuses to perform work/services required by the Contract Documents after receiving a Field Order; when the Construction Manager completely denies a request for the payment of compensation; when the Contractor believes it is due additional money and/or time on a change order request; when the District believes it is due money/credit and/or time on a change order proposal; or when a Party contends that the other Party has defaulted and/or breached the Contract Documents. If a Party fails to submit a Claim within the required ten (10) Day period, that Party waives, relinquishes, and forfeits all rights and remedies to such a Claim. The requirement to submit a Claim does not impair or preclude either Party’s expressed rights or remedies set forth elsewhere in the Contract Documents.
11.12.6 Notice of a Claim
A Claim is commenced by filing a Notice of Claim as set forth below. The Notice of Claim is separate from other Notice requirements stated elsewhere in the Contract Documents. The Notice of a Claim shall be submitted as follows:
To the District:
Original Claim is sent to:
Augustine Chavez
Vice-President for Administrative Services
San Joaquin Delta Community College District
5151 Pacific Ave.
Stockton, CA 95207
With a Copy to: Glenn Aguon
Assistant Director of Procurement and Contracts Services
San Joaquin Delta Community College District
5151 Pacific Ave.
Stockton, CA 95207
With a Copy to: Kelly Cauvel
Cauvel & Dacey, P.C.
2323 Blanchard Drive.
Glendale, CA 91208
To the Contractor: [name]
[address]
Attention: [name of person]
11.12.7 Required Information and Documentation
A Claim submitted shall contain a detailed narrative of the Claim together with detailed estimates and/or calculations regarding costs and/or time, and all supporting information and documentation to prove the basis and entitlement to the relief sought by the Party submitting the Claim. Any information and/or documentation not submitted by the time of the Initial Mandatory Meeting and Negotiations is held shall not be permitted to be used in any subsequent step of this mandatory and exclusive dispute resolution process, including at Arbitration, as both parties acknowledge that one Party withholding such information and/or documentation will cause the other Party irreparable prejudice.
11.12.8 Content of Claims
A Claim by Contractor and/or District must include the following:
a statement that it is a Claim and a request for a decision on the Claim;
a detailed description of the act, error, omission, unforeseen condition, event or other circumstance giving rise to the Claim;
supporting documentation as follows: (1) if the Claim involves a Contract Adjustment due to Compensable Change or Deleted Work, documentation demonstrating that a complete Notice of Change and Change Order Request were timely and properly submitted as required herein, below; (2) if the Claim involves an adjustment to the Contract Time, documentation demonstrating that a complete Notice of Delay and Request for Extension were timely and properly submitted as required herein; and (3) if the Claim does not involve a Contract Adjustment on the basis of Compensable Change or Deleted Work, documentation demonstrating that a notice of intent to file the Claim was timely and properly submitted;
a detailed justification for any remedy or relief sought by the Claim, including, without limitation, all of the following: (1) a detailed cost breakdown in the form required for submittal of Change Order Requests, which complies with the prohibition on “total cost” calculations as set forth herein; and (2) actual job cost records demonstrating that the costs have been incurred; and
a written certification, signed by a responsible managing officer or principal of Contractor’s organization who has the authority to sign contracts on behalf of Contractor and who has personally investigated the matters alleged in the Claim, in the following form:
“I hereby certify under penalty of perjury that I am a managing officer or principal of (Contractor’s name) and that I have reviewed the Claim presented herewith on Contractor’s behalf and/or on behalf of _________ (Subcontractors(s’) name(s)) and that the following statements are, to the best of my knowledge after diligent inquiry into the circumstances of such Claim, true and correct:
the facts alleged in or that form the basis for the Claim are true and accurate;
I do not know of any facts or circumstances, not alleged in the Claim, that by reason of their not being alleged render any fact or statement alleged in the Claim materially misleading;
I have, with respect to any request for money or damages alleged in or that forms the basis for the Claim, reviewed the job cost records (including those maintained by Contractor and by any Subcontractors, of any Tier, that is asserting all or any portion of the Claim) and confirmed with reasonable certainty that the losses or damages alleged to have been suffered by Contractor and/or such Subcontractors were in fact suffered in the amounts and for the reasons alleged in the Claim;
I have, with respect to any request for extension of time or claim of delay, disruption, hindrance or interference alleged in or that forms the basis for the Claim, reviewed the job schedules (including those maintained by Contractor and by any Subcontractors, of any Tier, that is asserting all or any portion of the Claim) and confirmed that the delays or disruption alleged to have been suffered by Contractor and/or such Subcontractors were in fact experienced for the durations, in the manner, and with the consequent effects on the time and/or sequence of performance of the Work, as alleged in the Claim; and,
Contractor has not received payment from District for, nor has Contractor previously released District from, any portion of the Claim.
Signature:
Name:
Title: _ _
Company:
Date:
11.12.9 Steps to Resolving a Claim
The Parties shall use each of the following steps, in the order in which they appear below, to resolve each Claim. The resolution of any and all Claims is ultimately not binding on the District unless approved by the District’s Board of Trustees and not binding on the Contractor until approved by its Authorized Representative.
A. Initial Mandatory Meeting and Negotiations
Within twenty-one (21) Days of a Party submitting a Notice of Claim and Required Documentation and Information, the other Party shall, in writing, submit a Written Response to the Notice of Claim. The Written Response to the Notice of Claim shall contain:
a detailed narrative responding to each point made in the Claim. The point by point response shall contain a statement as to whether the responding Party agrees or not with each point made by the Party submitting the Claim. If the responding Party does not agree with a point, then for each point of disagreement, the responding Party shall provide a detailed explanation as to why it disagrees supported by any detailed estimates and/or calculations regarding costs and/or time, and all supporting information and documentation to prove the basis of the responding Party’s disagreement. To the extent the responding Party has a counter claim; the responding Party shall also set forth a detailed explanation of the counter claim together with any detailed estimates and/or calculations regarding costs and/or time, and all supporting information and documentation to prove the counter claim. In situations where no counter claim is made, the Party submitting a Claim shall then have fourteen (14) Days to submit a Reply. The Reply must follow the same format and respond point by point, together with all supporting documentation and information supporting the points made in the responding Party’s Written Response to the Claim. Within seven (7) Days following receipt of the Reply, the District shall issue a Notice of Initial Mandatory Meeting and Negotiations that will take place between the President of the Contractor and the Director of Procurement and Contracts (“Director”). The Initial Mandatory Meeting and Negotiations shall take place within fourteen (14) Days of the issuance of the Notice of Initial Mandatory Meeting and Negotiations and will not last more than two (2) six (6) hour sessions, unless the both the President of the Contractor and the Director agree in writing that more time is needed. Any information and/or documentation not submitted by the time the Initial Mandatory Meeting and Negotiations is held shall not be permitted to be used in any subsequent step of this mandatory and exclusive dispute resolution process, including at Arbitration, as both parties acknowledge that one Party withholding such information and/or documentation will cause the other Party irreparable prejudice.
If the Written Response to the Notice of a Claim contains also contains a counter claim by the Responding Party, and only if the counter claim would entitle the Responding Party to recover an amount of money beyond that which is sought by the Notice of Claim, then the Party filing a Notice of Claim shall not have fourteen (14) Days to submit a Reply, but rather have twenty-one (21) Days to submit a Reply. The Reply shall then address the points raised in the Written Response to its Notice of Claim and separately address the counter claim points asserted by the responding Party following the same narrative and supporting documentation and information requirements set forth above. The responding Party shall then have fourteen (14) Days to submit a Sur Reply addressing only the counter claim points addressed by the Party filing the Notice of Claim. If these time frames apply, then within seven (7) Days following receipt of the Sur Reply, the District shall issue a Notice of Initial Mandatory Meeting and Negotiations that will take place between the President of the Contractor and the Director. The Initial Mandatory Meeting and Negotiations shall take place within fourteen (14) Days of the issuance of the Notice of Initial Mandatory Meeting and Negotiations and will not last more than two (2) six (6) hour sessions, unless the both the President of the Contractor and the Director agree in writing that more time is needed. Any information and/or documentation not submitted by the time the Initial Mandatory Meeting and Negotiations is held shall not be permitted to be used in any subsequent step of this mandatory and exclusive dispute resolution process, including at Arbitration, as both Parties acknowledge that one Party withholding such information and/or documentation will cause the other Party irreparable prejudice.
Resolution, Partial Resolution, or No Resolution
No Resolution
If the President of the Contractor and the Director reach no resolution, then within five (5) business days of the Initial Mandatory Meeting and Negotiations concluding, Director shall issue a written notice to the District’s Vice-President for Administrative Services (“VP”) and District’s Superintendent/President (“SP”), copy to the Contractor’s President, announcing the fact the no resolution was reached. Within five (5) business days of the receipt of the Director’s notice of no resolution, either the President of the Contractor, or the Director depending on which Party submitted the Claim, must then file a Written Request for a Final Mandatory Meeting and Negotiations with the District’s SP and VP, at the address set forth above or the President of the Contractor. If this occurs, the Parties shall proceed to a Final Mandatory Meeting and Negotiations. Should the Party filing the Claim fail to file a Written Request for a Final Mandatory Meeting and Negotiations, the Party waives and forfeits all aspects of the Claim.
Partial Resolution
If the President of the Contractor and the Director reach only a partial resolution, and the Party submitting the Claim and/or counter claim wishes to continue pressing the unresolved portions of the Claim or counter claim, then within five (5) business days of the Initial Mandatory Meeting and Negotiations concluding, the Director shall issue a written notice to the District’s SP and VP, copy to the Contractor’s President, announcing the fact the a partial agreement has been reached, the details thereof, and a statement of all remaining unresolved items. All documents and information previously submitted shall be sent with the notice of partial resolution and statement of remaining unresolved items to the District’s SP and VP at the above address. Within five (5) business days of the receipt of the Director’s notice of partial resolution and remaining items, either the President of the Contractor, or the Director, depending on which Party submitted the Claim, must then file a Written Request for a Final Mandatory Meeting and Negotiations with the District’s SP and VP at the address set forth above or the President of the Contractor. If this occurs, the Parties shall proceed to a Final Mandatory Meeting and Negotiations. Should the Party filing the Claim fail to file a Written Request for a Final Mandatory Meeting and Negotiations, the Party waives and forfeits all aspects of the Claim.
Full Resolution
If the President of the Contractor and Director reach a complete resolution, then within five (5) business days of the Initial Mandatory Meeting and Negotiations concluding, the Director shall issue a written notice to the District’s VP, copy to Contractor’s President, announcing the fact that a complete resolution was reached. Within fourteen (14) business days of the receipt of the Director’s notice of a full resolution, the District’s VP will issue a final determination announcing acceptance or rejection of the full resolution of the Claim and/or counter claim. If the District’s VP issues a final determination announcing complete acceptance of the full resolution of the Claim and/or counter claim, the VP shall place the matter on the Board of Trustees agenda at the earliest available Board meeting with a recommendation for acceptance or ratification depending whether the approval of the resolution is within or beyond the VP’s delegated authority. If the Board approves or ratifies the resolution reached, a change order, amendment, or compromise will be issued to the Agreement. If the VP does not approve the resolution in its entirety, then the VP will issue a Statement of Compromise setting forth the extent of approval and/or disagreement which the VP is willing to support. If the President of the Contractor accepts the VP’s Statement of Compromise within five (5) business days of receipt of same, the VP shall place the matter on the Board of Trustees agenda at the earliest available Board meeting with a recommendation for acceptance or ratification depending whether the approval of the resolution is within or beyond the VP’s delegated authority. If the Board approves or ratifies the proposed resolution reached, a change order, amendment, or compromise will be issued to the Agreement. If the President of the Contractor does not accept the VP’s Statement of Compromise, the President of the Contractor shall, within five (5) business days of receipt of same, issue a notice to SP and VP of its rejection of the Statement of Compromise and a request for a Final Mandatory Meeting and Negotiations. If this occurs, the Parties shall proceed to a Final Mandatory Meeting and Negotiations. Should the Party filing the Claim fail to file a written request for a Final Mandatory Meeting and Negotiations, the Party waives and forfeits all aspects of the Claim.
B. Final Mandatory Meeting and Negotiations
If after reaching no resolution, partial resolution, a complete resolution that is not accepted by the VP or after reaching a complete resolution that is rejected in whole or in part by the VP, and if a Party has timely demanded a Final Mandatory Meeting and Negotiations, then the Parties shall proceed as follows.
Within seven (7) business days of any Party timely and properly requesting a Final Mandatory Meeting and Negotiations, the District shall issue a Notice of a Final Mandatory Meeting and Negotiations. The Final Mandatory Meeting and Negotiations will take place between the President, (or, if the company has no President, the Chief Executive Officer or highest ranking official) of the Contractor and the VP. The Final Mandatory Meeting and Negotiations shall take place within fourteen (14) Days of the issuance of the Notice of Final Mandatory Meeting and Negotiations and will not last more than one (1) six (6) hour session, unless the both the President of the Contractor and the VP agree in writing that more time is needed. Any information and/or documentation not submitted by the time the Initial Mandatory Meeting and Negotiations is held shall not be permitted to be used in any subsequent step of this mandatory and exclusive dispute resolution process, including at Arbitration, as both Parties acknowledge that one Party withholding such information and/or documentation will cause the other Party irreparable prejudice.
Within fourteen (14) business days of the conclusion of the Final Mandatory Meeting and Negotiations, the District’s VP will issue a final determination announcing a Statement of Final Compromise of the Claim and/or counter claim. If the District’s VP issues a final determination announcing complete acceptance and full resolution of the Claim and/or counter claim as agreed between the Parties, the VP shall place the matter on the Board of Trustees agenda at the earliest available Board meeting with a recommendation for acceptance or ratification depending whether the approval of the resolution is within or beyond the VP’s delegated authority. If the VP does not approve of a complete resolution of the Claim and/or counter claim, then the VP’s Statement of Final Compromise of the Claim will set forth the extent of approval that the VP is willing to support. If the President of the Contractor accepts the VP‘s Statement of Final Compromise of the Claim within five (5) business days of receipt of same, the VP shall place the matter on the Board of Trustees agenda at the earliest available Board meeting with a recommendation for acceptance or ratification depending whether the approval of the resolution is within or beyond the VP’s delegated authority. If the Board approves or ratifies the proposed resolution reached, a change order, amendment, or compromise will be issued to the Agreement. If the President of the Contractor does not accept the VP Statement of Final Compromise of the Claim, the President of the Contractor shall, within five (5) business days of receipt of same, reject it. If this occurs, the Parties shall proceed to Mediation as set forth below. Should the Party filing the Claim fail to file a demand for Mediation, the Party waives and forfeits all aspects of the Claim.
Initial and Final Mandatory Meetings and Negotiations – Attendees
The District and the Contractor can unilaterally determine who, in addition to the required Party’s representatives, shall attend either or both of these proceedings. However, attorneys are not permitted to attend unless an attorney is also the President of the Contractor, the Director, the District VP, or if both Parties agree in writing that attorneys may attend.
Waiver and Forfeiture of Claim and Counter Claim
Should the Party filing the Claim or a counterclaim in response to a Claim fail to file a Demand for Mediation as provided below, the Party waives and forfeits all aspects of the Claim and/or counter claim.
C. Mediation
If the above proceedings do not completely resolve a Claim or counter claim, and if the Party submitting a Claim or counter claim wishes to pursue a Claim or counter claim, then the Party submitting a Claim or counter claim must send a written Demand for Mediation to the other Party as required below, otherwise the Claim and/or counter claim is waived and forfeited. The Demand for Mediation must be made on the other Party within seven (7) business days of the Final Mandatory Meeting and Negotiations concluding.
Demand for Mediation
If a Party has timely and properly issued a Demand for Mediation, then the Parties shall proceed as follows.
Terms and Conditions of Mediation
The Mediation must take place within forty-five (45) Days of the issuance of the Demand for Mediation. Only those documents and information previously exchanged by the Parties at the time of the Initial Mandatory Meeting and Negotiations may be presented at Mediation, in addition to whatever legal arguments and legal authority are applicable thereto. The costs of the Mediation shall be shared equally by the Parties. A single Mediator will preside and must have substantial experience mediating, arbitrating and/or litigating, public works contracts for professional service providers. The Party demanding Mediation must set forth in its Demand for Mediation the names of three (3) such Mediators. The other Party shall within five (5) Days of receipt of the written Demand for Mediation either select one or provide the names of three (3) other such Mediators. If the other Party fails to select one of the three (3) Mediators or fails to provide the names of three (3) other such Mediators within the five (5) Days, then the Party demanding Mediation shall immediately identify the Mediator to be used from the three (3) Mediators originally identified. The Mediation shall not involve more than eight (8) hours, unless both Parties agree in writing otherwise.
Mediation – No Resolution, Partial Resolution, or Full Resolution
If Mediation fails to resolve the Claim, the proponent of the Claim is then required to take action as set forth below or the remainder of the Claim is forever waived and forfeited. If Mediation resolves the Claim, in whole or in part, a change order, amendment, and/or compromise will be prepared. If within the VP’s delegated authority, the VP will sign the documentation and have the documentation processed. If the resolution exceeds the delegated authority of the VP, the matter will be placed on the Board of Trustees’ earliest agenda for consideration and action. If the Board agrees to resolve the Claim as presented, the Board will approve same and the documentation will be processed. If, however, the Board agrees to resolve only part of the Claim presented, a change order, amendment, and/or compromise will be prepared and the documentation processed. If only part of the Claim presented to the Board is approved, the proponent of the Claim is then required to take action as set forth below or the remainder of the Claim is forever waived and forfeited. If the Board does not agree at all, the proponent of the Claim is then required to take action as set forth below or the remainder of the Claim is forever waived and forfeited.
D. The Mandatory Dispute Resolution Process is a Condition Precedent to Arbitration.
The Mandatory Dispute Resolution Process set forth in herein must be complied with before Arbitration can be started.
Within fourteen (14) business days of the Mediation concluding, and if the Mediation fails to resolve the Claim, and if a Party wishes not to forfeit a Claim, or part thereof, a Party must file a Demand for Arbitration. The process set forth above is a condition precedent to the filing of any Demand for Arbitration between District and the Contractor.
A Demand for Arbitration is made by a Party issuing a written request for same to either: the American Arbitration Association; JAMS Dispute Resolution; or ADR; with a copy to the other Party and the Director. The Rules of the arbitration service chosen shall govern the initiation of such Arbitration provided same are not in conflict with or contrary to the terms and conditions for Arbitration set forth in this Contract. To the extent such Rules, in any respect, are contrary to or in conflict with the terms and conditions for Arbitration set forth in this Contract, the latter shall govern. All supporting documents, information and data in support of the Claim shall accompany the written Demand for Arbitration with copies of all supporting documents, data and information simultaneously sent to the VP and to the Construction Manager. In addition to any witness testimony, only the information, data and documents submitted at the Initial Mandatory Meeting and Negotiations may be used at the Arbitration. There is no discovery permitted unless: both Parties agree in writing; or, a Party can demonstrate good cause to the Arbitrator for some specific limited discovery. A Party who fails to provide supporting documents, information and/or data with the written Demand for Arbitration required by this Contract as an obligation hereof, cannot fail to do so and then submit such latter prepared documentation, or the equivalent at Arbitration, even if such documentation was submitted at the Initial Mandatory Meeting as the original failure to do so as required by the Contract is deemed to have irreparably prejudiced the other Party and deprive it of options, rights and remedies. The hearing locale for any Arbitration shall be in San Joaquin County, California, unless otherwise agreed to by the Parties in writing. If both Parties agree in writing, they may elect to use an independent Arbitrator or an Arbitrator from another alternative dispute resolution provider.
The Arbitration shall be held before a single Arbitrator who has arbitrated more than five (5) public works construction contract disputes and must be mutually agreed to by both Parties. If the Parties cannot agree on an Arbitrator, then the Arbitration company shall select an Arbitrator who has the qualifications listed herein. The Arbitration must be held and concluded within sixty (60) Days of the written Demand for Arbitration, unless the Contractor and District agree otherwise in writing.
The Arbitrator has no power to fashion a remedy that is “related to the Contract.” Rather, each of the Arbitrator’s decisions and award(s), interim and/or final, shall be in writing, shall set forth statements of fact and conclusions of law explaining how and why each item of the decision/award was reached, shall be supported by substantial evidence, shall be supported by applicable law, and shall otherwise comply with the requirements of Code of Civil Procedure Section 1296.
The fees of the Arbitrator and the administrative costs of the Arbitration shall be shared equally between the Parties, and the Arbitrator has no power whatsoever to alter that sharing arrangement.
Provided the Arbitrator has issued an award in compliance with the requirements of this Article, the Final Award is binding and all appellate rights are waived. Any judicial review of such an award is limited to the circumstances described herein for the Arbitrator’s non-compliance with these requirements. A Court shall, subject to applicable laws, vacate any award, in whole or in part, which the Court determines, after review, is not supported by substantial evidence or the Award, and/or is based on an error of law.
The Arbitrator’s Final Award shall be reflected in an additive or deductive change order, amendment, and/or compromise.
11.12.10 Contractor Agreement to Cooperate & Bind Subcontractors to the Terms and Conditions of this Claims Dispute Resolution Process in its entirety.
A. Contractor agrees to participate in any and all other dispute resolution processes, claims, mediations, negotiations, administrative and/or civil actions in which the District is a party regarding a Project which Contractor is involved in. To the extent the District is a participant therein because of the alleged conduct of the Contractor and/or anyone who may claim by and/or through the Contractor, Contractor and subcontractor(s) shall participate therein at no further compensation from the District. To the extent the District is a participant therein, but not because of the alleged conduct of the Contractor, then Contractor will be entitled to receive compensation at the agreed to hourly rates for its personnel to the extent of their involvement therein. The Contractor shall bind all subcontractors to the terms and conditions of this Claims Dispute Resolution Process by placing in all said subcontracts the requirements of same.
11.12.11 Continuous Performance
Contractor shall maintain continuous, expeditious and uninterrupted performance of the Work throughout the duration of the Claims Dispute Resolution Process.
11.12.12 WAIVERS OF RIGHTS BY CONTRACTOR AND/OR DISTRICT
DISTRICT AND CONTRACTOR ACKNOWLEDGE THAT IT IS IN THE INTERESTS OF BOTH PARTIES THAT CHANGES, DELAYS AND CLAIMS BE IDENTIFIED, QUANTIFIED, EVALUATED AND FINALLY RESOLVED PROMPTLY, CONTEMPORANEOUSLY WITH THE CIRCUMSTANCES FROM WHICH THEY ARISE, AND THAT THERE BE CERTAINTY WITH RESPECT TO THE FINALITY OF ANY RESOLUTION OF RELATED DISPUTES. ON THOSE PREMISES, AND IN FURTHER RECOGNITION OF THE FACT THAT IT WOULD BE EXREMEMLY DIFFICULT OR IMPOSSIBLE TO QUANTIFY, DEMONSTRATE OR PROVE THE HARM TO DISTRICT AND/OR CONTRACTOR IF ANY OF THE FOREGOING PREMISES IS NOT ACHIEVED DUE TO A FAILURE BY CONTRACTOR AND/OR DISTRICT TO COMPLY WITH THE REQUIREMENTS OF THE CONTRACT DOCUMENTS CONCERNING TIMELY NOTICE OR SUBMISSIONS OF NOTICES AND CLAIMS RELATING TO CHANGES, DELAY AND CONTRACT ADJUSTMENTS, DISTRICT AND CONTRACTOR AGREE THAT FAILURE BY CONTRACTOR AND/OR DISTRICT TO CONFORM TO SUCH REQUIREMENTS OF THE CONTRACT DOCUMENTS SHALL IN AND OF ITSELF CONSTITUTE SUFFICIENT CAUSE AND GROUNDS, WITHOUT THE NECESSITY OF DISTRICT AND/OR CONTRACTOR DEMONSTRATING ANY ACTUAL HARM OR PREJUDICE, FOR IMPOSING UPON CONTRACTOR AND/OR DISTRICT A FULL AND UNCONDITIONAL WAIVER, RELINQUISHMENT, AND FORFEITURE BY CONTRACTOR AND/OR DISTRICT OF ITS RIGHT TO A CONTRACT ADJUSTMENT AND OF ITS RIGHTS AND RECOURSE FOR RECOVERY OF ANY RELATED LOSS BY ANY LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER APPLICABLE LAWS.
11.12.13 Mutual Waiver of Consequential Damages
Contractor and District waive all rights and claims against each other for consequential damages arising out of or relating to the performance or nonperformance of any obligation under the Contract Documents. This mutual waiver includes damages incurred by either the District or the Contractor for loss of use, loss of profit or income, interest (except as required by California Government Code §927 et seq.), loss of management or services, loss of productivity, loss of financing or funding, loss of business reputation, loss of bonding and all such consequential damages due to termination or suspension by the Contractor or District. Notwithstanding the foregoing, nothing contained in this paragraph shall be deemed to be a waiver of or limitation on: (1) the District’s or Contractor’s rights for recovery of liquidated damages permitted to District or Contractor under the terms of the Design-Build Contract; (2) the District’s rights to recovery of Losses (including, without limitation, any direct, indirect or consequential Loss) that involve or arise out of personal injury, death or damage to physical or tangible property of the District or of any other person or entity to whom the District is or may be liable; (3) District’s or Contractor’s rights of recovery for Loss due to willful misconduct or gross negligence; (4) District’s or Contractor’s rights of recovery under any policy of insurance; or (5) District’s express or implied rights of indemnification.
11.13.1 Suspension for Cause. In addition to all other remedies available to District, if Contractor fails to perform or correct Work in accordance with the Contract Documents, including non-compliance with applicable environmental or health and safety Laws, District may immediately order the Work, or any portion of it, suspended until the circumstances giving rise to the suspension have been eliminated to District’s satisfaction.
Failure to Comply. Contractor will not be entitled to an increase in the Contract Time or Contract Price for a suspension occasioned by Contractor’s failure to comply with the Contract Documents.
No Duty to Suspend. District’s right to suspend the Work will not give rise to a duty to suspend the Work, and District’s failure to suspend the Work will not constitute a defense to Contractor’s failure to comply with the requirements of the Contract Documents.
11.13.2 Suspension for Convenience. District reserves the right to suspend, delay, or interrupt the performance of the Work in whole or in part, for a period of time determined to be appropriate for District’s convenience. Upon notice by District pursuant to this provision, Contractor must immediately suspend, delay, or interrupt the Work and secure the Project Worksite as directed by District and take measures to protect completed or in-progress Work as directed in the suspension notice. The Contract Price and the Contract Time will be equitably adjusted by Change Order pursuant to the terms of these General Conditions to reflect the cost and delay impact occasioned by such suspension for convenience, except to the extent that any such impacts were caused by Contractor’s failure to comply with the Contract Documents or the terms of suspension notice. However, the time for completing the Project will only be extended if the suspension causes or will cause delay to Contractor’s achievement of Substantial Completion. If Contractor disputes the terms of a Change Order issued for such equitable adjustment due to suspension, its sole recourse is to comply with the Contract Claims Dispute Resolution Process.
11.13.3 Termination for Default. District may, without prejudice to any other right or remedy, declare that Contractor is in default of the Contract for a material breach of or inability to fully, promptly, or satisfactorily perform its obligations under the Contract.
A. Default. Events giving rise to a declaration of default include Contractor’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; Contractor’s refusal or failure to make prompt payment to its employees, Subcontractors, or suppliers or to correct defective Work or damage; Contractor’s failure to comply with Laws, or orders of any public agency with jurisdiction over the Project; evidence of Contractor’s bankruptcy, insolvency, or lack of financial capacity to complete the Work as required within the Contract Time; suspension, revocation, or expiration and nonrenewal of Contractor’s license or DIR registration; dissolution, liquidation, reorganization, or other major change in Contractor’s organization, ownership, structure, or existence as a business entity; unauthorized assignment of Contractor’s rights or duties under the Contract; or any material breach of the Contract requirements (“Event of Contractor Default”).
B. Notice of Default and Opportunity to Cure. Upon District’s declaration of an Event of Contractor Default, if District, in its sole discretion, determines that the default is curable, District will afford Contractor the opportunity to cure the default within ten (10) Days of District’s notice of default to Contractor and its Surety, or within a period of time reasonably necessary for such cure, including a shorter period of time if applicable.
C. Termination. If Contractor fails to cure the default or fails to expediently take steps reasonably calculated to cure the default within the time period specified in the notice of default, District may issue written notice to Contractor and its performance bond Surety of District’s termination of the Contract for default. Upon the termination of the Contract as provided herein, Surety shall have the right to investigate, take over and perform the Project Work. If Surety does not perform the Project Work itself, the Surety shall consult with the District regarding its planned choice of a contractor or contractors to complete the Project, and upon request by District, Surety shall provide District Evidence of Responsibility of Surety's proposed contractor or contractors. District shall be entitled to reject Surety's choice of contractor or contractors if District determines in its sole discretion that the contractor or contractors are non-responsible. If Surety provides District written notice of its intention to take over and perform this Contract, within fourteen (14) Days of such written notice of intent to take over and perform, Surety or its chosen contractor or contractors (if such contractor or contractors are approved by District) shall provide District a detailed progress schedule in conformance with Contract requirements. Contractor and its surety shall be liable to District for any excess cost or other damages the District incurs as a result of Surety or Surety's contractor or contractors takeover and performance of Project Work. By executing its Performance Bond incorporating the terms of the Contract, Surety shall be deemed to have agreed, without limitation, to the provisions of the Contract.
D. Waiver. Time being of the essence in the performance of the Work, if Surety, within five (5) Days after service upon it of said notice of termination, does not give District written notice of its intention to take over and perform this Contract and does not commence performance thereof within seven (7) Days from the date of service upon it of such notice of termination, District may immediately make arrangements for the completion of the Work through use of its own forces, by hiring a replacement contractor, or by any other means that District determines advisable under the circumstances. Contractor and its Surety will be jointly and severally liable for any additional cost incurred by District to complete the Work following termination, where “additional cost” means all cost in excess of the cost District would have incurred if Contractor had timely completed Work without the default and termination. In addition, District will have the right to immediate possession and use of any materials, supplies, and equipment procured for the Project and located at the Project Worksite on District property for the purposes of completing the remaining Work.
E. Compensation. The Contractor shall not be entitled to receive any further payment until Final Completion of the Project and an accounting has been conducted of the amount due to Contractor or District, which will take place within forty-five (45) Days after Final Completion of the Project by Contractor, Surety, District or others at request of District. Contractor will be compensated for the Work performed in compliance with the Contract Documents up to the effective date of the termination, subject to District’s rights to withhold or deduct sums from payment otherwise due pursuant to the Contract and Law, including but not limited to the sum of any additional cost incurred by District to complete the Work following termination and the sum of any excess cost or other damages the District incurs as a result of Surety or Surety's contractor or contractors takeover and performance of Project Work, and excluding any costs Contractor incurs as a result of the termination, including any cancellation or restocking charges or fees due to third parties. If Contractor disputes the amount of compensation determined by District, its sole recourse is to comply with the Contract Claims Dispute Resolution Process.
The foregoing provisions are in addition to and not in limitation of any other rights or remedies available to the District.
F. Wrongful Termination. If Contractor disputes the termination, its sole recourse is to comply with the Contract Claims Dispute Resolution Process. If Contractor follows the Contract Claims Dispute Resolution Process and, thereby, does not waive its claim and an arbitrator later determines that the termination for default was wrongful, the termination will be deemed to be a termination for convenience, and Contractor’s damages will be strictly limited to the compensation provided for termination for convenience below. Contractor waives any claim for any other damages for wrongful termination including special or consequential damages, lost opportunity costs, or lost profits.
11.13.4 Termination for Convenience.
District reserves the right, acting in its sole discretion, to terminate all or part of the Contract for convenience upon written notice to Contractor.
A. Compensation to Contractor. In the event of District’s termination for convenience, Contractor waives any claim for damages, including for loss of anticipated profits from the Project. The following will constitute full and fair compensation to Contractor, and Contractor will not be entitled to any additional claim or compensation:
Completed Work. The value of its Work performed pursuant to the Contract Documents as of the date notice of termination is received, based on Contractor’s schedule of values and unpaid costs for items delivered to the Project Worksite that were fabricated for incorporation in the Work;
Demobilization. Demobilization costs specified in the schedule of values, or if demobilizations cost were not provided in a schedule of values, then based on actual, reasonable, and fully documented demobilization costs; and
Termination Markup. Five percent (5%) of the total value of the Work performed as of the date of notice of termination, including reasonable, actual, and documented costs to comply with the direction in the notice of termination for convenience, and demobilization costs, which is deemed to cover all overhead and profit to date.
B. Disputes. If Contractor disputes the amount of compensation determined by District as outlined above, its sole recourse is to comply with the Contract Claims Dispute Resolution Process.
11.13.5 Actions Upon Termination for Default or Convenience.
The following provisions apply to any termination under this Article, whether for default or convenience, and whether in whole or in part.
A. General. Upon termination District may immediately enter upon and take possession of the Project and the Work and all tools, equipment, appliances, materials, and supplies procured or fabricated for the Project. Contractor will transfer title to and deliver all completed Work and all Work in progress to District.
B. Submittals. Unless otherwise specified in the notice of termination, Contractor must immediately submit to District all designs, drawings, as-built drawings, Project records, contracts with vendors and Subcontractors, manufacturer warranties, manuals, and other such submittals or Work-related documents required under the terms of the Contract Documents, including incomplete documents or drafts.
C. Close Out Requirements. Except as otherwise specified in the notice of termination, Contractor must comply with all of the following:
Immediately stop the Work, except for any Work that must be completed pursuant to the notice of termination and comply with District’s instructions for cessation of labor and securing the Project Worksite(s).
Comply with District’s instructions to protect the completed Work and materials, using best efforts to minimize further costs.
Contractor must not place further orders or enter into new subcontracts for materials, equipment, services or facilities, except as may be necessary to complete any portion of the Work that is not terminated.
As directed in the notice, Contractor must assign to District or cancel existing subcontracts that relate to performance of the terminated Work, subject to any prior rights, if any, of the Surety for Contractor’s performance bond, and settle all outstanding liabilities and claims, subject to District’s approval.
As directed in the notice, Contractor must use its best efforts to sell any materials, supplies, or equipment intended solely for the terminated Work in a manner and at market rate prices acceptable to District.
Not terminate any insurance required by the Contract.
D. Payment Upon Termination for Convenience. Upon completion of all termination obligations, as specified herein and in the notice of termination, Contractor will submit its request for Final Payment, including any amounts due following termination pursuant to this Article 13. Payment will be made in accordance to the provisions of Article 8, based on the portion of the Work completed pursuant to the Contract Documents, including the close out requirements, and consistent with the previously submitted schedule of values and unit pricing, including demobilization costs. Adjustments to Final Payment may include deductions for the cost of materials, supplies, or equipment retained by Contractor; payments received for sale of any such materials, supplies, or equipment, less re-stocking fees charged; and as otherwise specified in Section 11.8.3, Adjustment of Payment Application.
E. Continuing Obligations. Regardless of any Contract termination, Contractor’s obligations for portions of the Work already performed will continue and the provisions of the Contract Documents will remain in effect as to any claim, indemnity obligation, warranties, guarantees, submittals of as-built drawings, instructions, or manuals, record maintenance, or other such rights and obligations arising prior to the termination date.
11.13.6 Termination by Contractor.
Subject to the provisions below, Contractor’s sole right to terminate the Contract shall be its right to terminate, for cause only, upon the occurrence of either of the following:
A. the entire Work is stopped for one hundred sixty (160) consecutive Days, through no act or fault of Contractor or any of the Subcontractors, of any Tier, or any employee or agent of any of them, due to issuance of an order of a court or other Governmental Authority or due to a declaration of a national emergency making material unavailable; or
B. The entire Work is properly suspended by Contractor for a continuous period of ninety (90) Days pursuant to Contractor’s rights under the Contract.
11.13.7 Continuous Performance.
Provided that Contractor is paid undisputed sums due in accordance with the requirements of the Contract, Contractor shall not stop, delay or interrupt continuous performance of the Work by reason of any dispute or disagreement with District, including, without limitation, any disputes or disagreements over payments of money claimed due under the Contract Documents.
11.14.1 Assignment of Unfair Business Practice Claims. Under Public Contract Code § 7103.5, Contractor and its Subcontractors agree to assign to District all rights, title, and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with § 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Contract or any subcontract. This assignment will be effective at the time District tenders Final Payment to Contractor, without further acknowledgement by the parties.
11.14.2 Provisions Deemed Inserted. Every provision of law required to be inserted in the Contract Documents is deemed to be inserted, and the Contract Documents will be construed and enforced as though such provision has been included. If it is discovered that through mistake or otherwise that any required provision was not inserted, or not correctly inserted, the Contract Documents will be deemed amended accordingly.
11.14.3 Waiver. District’s waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of the Contract Documents will not be effective unless it is in writing and signed by District. District’s waiver of any breach, failure, right, or remedy will not be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless specified in writing by District.
11.14.4 Titles, Headings, and Groupings. The titles and headings used and the groupings of provisions in the Contract Documents are for convenience only and may not be used in the construction or interpretation of the Contract Documents or relied upon for any other purpose.
11.14.5 Statutory and Regulatory References. With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the reference is deemed to be the version in effect on the date that Bids were due.
11.14.6 Setoff. Contractor agrees that District shall have the right, without the necessity of a prior
judgment by a court of law, to set off against amounts owing to Contractor under the Contract any loss that District suffers as a result of a breach by Contractor of any other agreement between Contractor and District, whether or not such agreement is related or unrelated to the Project.
11.14.7 Survival. The provisions that survive termination or expiration of this Contract include Contract notice requirements, and subsections 11.1, 11.2, 11.3, and 11.4, of Section 11, General Provisions; and the following provisions in these General Conditions: Section 11.2.2(J), Contractor’s Records, Section 11.2.3(C), Termination, Section 11.3.6, Ownership, Section 11.4.2, Indemnity, Article 12, Claims Dispute Resolution Process - Mandatory, and Section 11.11.4, Warranty.
By confirming and submitting this Bid Proposal, Bidder certifies and warrants the following:
Examination of Contract Documents. Bidder has thoroughly examined the Contract Documents and represents that, to the best of Bidder’s knowledge, there are no errors, omissions, or discrepancies in the Contract Documents, subject to the limitations of Public Contract Code § 1104.
Examination of Worksite. Bidder has had the opportunity to examine the Worksite and local conditions at the Project location.
Bidder Responsibility. Bidder is a responsible bidder, with the necessary ability, capacity, experience, skill, qualifications, workforce, equipment, and resources to perform or cause the Work to be performed in accordance with the Contract Documents and within the Contract Time.
Responsibility for Bid. Bidder has carefully reviewed this Bid Proposal and is solely responsible for any errors or omissions contained in its completed Bid. All statements and information provided in this Bid Proposal and enclosures are true and correct to the best of Bidder’s knowledge.
Nondiscrimination and Equal Opportunity. In preparing this Bid, the Bidder has not engaged in discrimination against any prospective or present employee or Subcontractor on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status. Bidder is an equal opportunity employer and in compliance with the Civil Rights Act of 1964, the California Fair Employment Practices Act, and all other Laws relating to equal opportunity employment, including Executive Order No. 11246.
Iran Contracting Act. If the Contract Price exceeds $1,000,000, Bidder is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.
By confirming and submitting this Bid Proposal, Bidder agrees that if Bidder is awarded the Contract for the Project, within ten days following issuance of the Notice of Potential Award to Bidder, Bidder will do all of the following:
Execute Contract. Enter into the Contract with District in accordance with the terms of this Bid Proposal, by signing and submitting to District the Contract prepared by District using the form included with the Contract Documents;
Submit Required Bonds. Submit to District a payment bond and a performance bond, each for 100% of the Contract Price, using the bond forms provided and in accordance with the requirements of the Contract Documents; and
Insurance Requirements. Submit to District the insurance certificate(s) and endorsement(s) as required by the Contract Documents.
Project Labor and Community Workforce Agreement. If the Work is subject to the District’s PLCWA (see Section 10.14 of Instructions to Bidders), submit to District the Agreement to be Bound, which is included as Addendum A to the PLCWA, executed by Bidder and each Subcontractor.
As a guarantee that, if awarded the Contract, Bidder will perform its obligations under Section 10.4 in the Instructions to Bidders, Bidder is enclosing bid security in the amount of ten percent of its maximum bid amount in one of the following forms (check one):
A cashier’s check or certified check payable to District and issued by _______________________________ [Bank name] in the amount of
_______________________________________________Dollars ($____________________________)
(Specify total dollar amount in words) In Figures)
____ A bid bond, using the Bid Bond form included with the Contract Documents, payable to District and executed by a surety licensed to do business in the State of California.
Please download the below documents, complete, and upload.
Please download the below documents, complete, and upload.
Please download the below documents, complete, and upload.
SLED stands for State, Local, and Education. These are solicitations issued by state governments, counties, cities, school districts, utilities, and higher education institutions — as opposed to federal agencies.
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