CIP C2505 Bathroom Remodel at the Community Center Final Specifications and Contract Documents.pdf

SPECIFICATIONS & CONTRACT DOCUMENTS

Bathroom Remodel at the Community Center

CIP C2505

CITY OF HOLLISTER

COUNTY OF SAN BENITO

May 2025

CERTIFICATION

In accordance with the provisions of Section 6737 of the Business of Professions Code of the State of California, these specifications have been prepared by or under the direction of the following Professional Architect licensed in the State of California.

Christopher Barlow, May 9, 2025 C 31466

No. C31466

REN. 1/31/23

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TABLE OF CONTENTS

SECTION PAGE

CONSTRUCTION CONTRACT

RECITALS

SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS

SECTION 2 THE PROJECT

SECTION 3 THE CONTRACT DOCUMENTS

SECTION 4 THE WORK

SECTION 5 PROJECT TEAM

SECTION 6 TIME OF COMPLETION

SECTION 7 COMPENSATION TO CONTRACTOR

SECTION 8 STANDARD OF CARE

SECTION 9 INDEMNIFICATION

SECTION 10 COMPLIANCE WITH APPLICABLE CODE REQUIREMENTS

SECTION 11 INSURANCE AND BONDS

SECTION 12 PROHIBITION AGAINST TRANSFERS

SECTION 13 NOTICES

SECTION 14 DISPUTE RESOLUTION

SECTION 15 DEFAULT

SECTION 16 CITY’S RIGHT’S AND REMEDIES

SECTION 17 CONTRACTOR’S RIGHT’S AND REMEDIES

SECTION 18 ACCOUNTING RECORDS

SECTION 19 INDEPENDENT PARTIES

SECTION 20 NUISANCE

SECTION 21 PERMITS AND LICENSES

SECTION 22 WAIVER

SECTION 23 CONFLICTS WITH THE CONSTRUCTION CONTRACT

SECTION 24 GOVERNING LAW

SECTION 25 COMPLETE AGREEMENT

SECTION 26 SURVIVAL OF CONTRACT

SECTION 27 ADDITIONAL CONTRACT REQUIREMENTS

SECTION 28 PUBLIC WORKS CONTRACTOR REGISTRATION PROGRAM SB 854

SECTION 31 GOVERNMENTAL POWERS

SECTION 32 SEVERABILITY

SECTION 33 EXHIBITS

NOTICE INVITING SEALED BIDS ............................................................................................. EXHIBIT 1 CONTRACTOR’S BID ............................................................................................................... EXHIBIT 2 INSTRUCTION TO BIDDERS and PROPOSAL TO CITY OF HOLLISTER .................................... EXHIBIT 3

A) GENERAL INFORMATION ................................................................................................. ITB-1 B) PROPOSAL FORMS ........................................................................................................... ITB-1 C) BIDDER'S GUARANTY AND RETURN OF GUARANTY ...................................................... ITB-1

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D) CONTRACT BONDS ........................................................................................................... ITB-1 E) REJECTION OF PROPOSALS ......................................................................................... ITB-2 F) AWARD OF CONTRACT .................................................................................................... ITB-2 G) EXECUTION OF CONTRACT .............................................................................................. ITB-2 H) STANDARD SPECIFICATIONS ............................................................................................ ITB-2 I) SUPPLEMENTAL PLANS AND SPECIFICATIONS ............................................................... ITB-3 J) EXAMIN. OF PLANS, SPECIFICATIONS, SPECIAL PROVISIONS, AND SITE OF WORK..... ITB-3 K) WORKERS' COMPENSATION INSURANCE ....................................................................... ITB-3 L) LIABILITY INSURANCE ...................................................................................................... ITB-3 M) PREVAILING WAGES APPLICABLE .................................................................................... ITB-3 N) DEPARTMENT OF INDUSTRIAL RELATIONS REGISTRATION .......................................... ITB-3 O) NON-COLLUSION DECLARATION TO BE EXECUTED BY BIDDER .................................. ITB-4 P) HOURS OF CONSTRUCTION ........................................................................................ ITB-4

STATEMENT OF WORK ............................................................................................................... EXHIBIT 4 ITEMS OF CONSTRUCTION ......................................................................................................... EXHIBIT 5 DESIGNATION OF SUBCONTRACTOR ........................................................................................ EXHIBIT 6 NONCOLLUSION DECLARATION TO BE EXECUTED BY BIDDER and SUBMITTED WITH BID EXHIBIT 7 GENERAL CONDITIONS ............................................................................................................... EXHIBIT 8 SPECIAL PROVISIONS and/or TECHNICAL SPECIFICATIONS .................................................... EXHIBIT 9

DIVISION 1 – SPECIAL PROVISIONS

01010 PROJECT DESCRIPTION ..................................................................................................... SP1 01011 SUMMARY OF WORK ....................................................................................................... SP1 01012 EQUIPMENT TO BE PROVIDED TO OWNER ..................................................................... SP1 01013 WORK BY OTHERS ............................................................................................................ SP1 01014 DEFINITIONS ..................................................................................................................... SP1 01015 WORK INVOLVING EXISTING SYSTEM .............................................................................. SP1 01016 COORDINATION OF WORK ............................................................................................... SP2 01017 WORK SEQUENCE AND CONSTRAINTS ............................................................................ SP2 01020 CONSTRUCTION STAKES, LINES AND GRADES (NOT USED) ............................................. SP2 01021 SITE WORK ....................................................................................................................... SP2 01022 PARTIAL ACCEPTANCE OF WORK ..................................................................................... SP3 01023 PARTIAL AND FINAL PAYMENT ........................................................................................ SP3 01210 PRECONSTRUCTION CONFERENCE .................................................................................. SP3 01220 PROGRESS MEETINGS ...................................................................................................... SP4 01221 SCHEDULE REVIEW ........................................................................................................... SP4 01222 REVISIONS TO CONSTRUCTION SCHEDULE ...................................................................... SP4 01300 SUBMITTALS – SHOP DRAWINGS..................................................................................... SP5 01310 MATERIALS AND EQUIPMENT LIST .................................................................................. SP5 01320 QUALITY CONTROL ........................................................................................................... SP5 01321 SAMPLING ........................................................................................................................ SP5 01322 INSPECTION ...................................................................................................................... SP6 01400 TEMPORARY FACILITIES ................................................................................................... SP6 01401 ELECTRICAL SERVICE ........................................................................................................ SP6 01402 TEMPORARY LIGHTING .................................................................................................... SP6 01403 HEATING AND VENTILATION............................................................................................ SP6

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01404 WATER.............................................................................................................................. SP6 01405 SANITARY CONVENIENCES ............................................................................................... SP7 01414 WARNING DEVICES AND BARRICADES ............................................................................ SP7 01415 HAZARDS IN PROTECTED AREAS ...................................................................................... SP7 01416 PROTECTION OF EXISTING ITEMS .................................................................................... SP7 01417 PROJECT SECURITY ........................................................................................................... SP7 01418 FIRE EXTINGUISHERS ........................................................................................................ SP7 01419 DUST CONTROL ................................................................................................................ SP7 01420 SPECIAL CONTROLS .......................................................................................................... SP7

01422 ODOR CONTROL ............................................................................................................... SP8 01423 DRAINAGE CONTROL ....................................................................................................... SP8 01424 EROSION CONTROL .......................................................................................................... SP8 01502 CONTRACTOR'S CONTINUING OBLIGATION .................................................................... SP8 01503 CONTACT PERSONS FOR OUTSIDE AGENCIES .................................................................. SP8 01504 PROJECT CLOSEOUT ......................................................................................................... SP9 01505 CLEANING ......................................................................................................................... SP9 01506 FINAL SITE CLEAN-UP ....................................................................................................... SP9 01507 WASTE DISPOSAL ............................................................................................................. SP9 01510 PROJECT RECORD DOCUMENTS ...................................................................................... SP9 01520 TOUCH-UP AND REPAIR ................................................................................................... SP9 01530 REUSE OF DOCUMENTS ................................................................................................... SP9

DIVISION 2 – TECHNICAL SPECIFICATIONS

02010 GENERAL CONDITIONS..................................................................................................... TS1 02016 EXISTING UTILITIES ........................................................................................................... TS3 02050 DEMOLITION / EXISTING FACILITIES ................................................................................ TS3 02110 SCHEDULING .................................................................................................................... TS6 02120 SURVEYING & CONSTRUCTION STAKING ......................................................................... TS6 02370 REMOVAL OF USA AND CONSTRUCTION MARKINGS ...................................................... TS6 07000 RESTORE PRIVATE PROPERTY .......................................................................................... TS7 BONDS BID BOND ......................................................................................................................... 10-1 LABOR & MATERIAL BOND .............................................................................................. 10-2 PERFORMANCE BOND ..................................................................................................... 10-3

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CONSTRUCTION CONTRACT

THIS CONSTRUCTION CONTRACT, entered into on _______________ , 202_ (“Execution Date”), by and between the CITY OF HOLLISTER, a California municipal corporation ("City"), and ________________________________________________("Contractor"), is made with reference to the following:

R E C I T A L S A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California.

B. Contractor is a corporation duly organized and in good standing in the State of ________________, License Number ___________. Contractor is a [general contractor with a XXXX contractor’s license]__________________, and represents that it is duly licensed by the State of California and has the background, knowledge, experience and expertise to perform the obligations set forth in this Construction Contract.

C. On __________, 202__, City issued a Notice Inviting Bids to contractors for the ______________________ Project. A copy of City’s Notice Inviting Bids is attached hereto as Exhibit 1 and incorporated by reference. In response to City’s Notice Inviting Bids, Contractor submitted its Bid. A copy of Contractor’s Bid is attached hereto as Exhibit 2 and incorporated herein by reference. Also attached hereto and incorporated by reference are: Instruction to Bidders and Proposal to City of Hollister (Exhibit 3); Statement of Work (Exhibit 4); Items of Construction (Exhibit 5); Designation of Subcontractor (Exhibit 6); Non-Collusion Declaration (Exhibit 7); General Conditions (Exhibit 8), Special Provisions and/or Technical Specifications (Exhibit 9) Note: these need to have the project timelines and completion schedule and “Contract Time of Completion”; Payment and Performance Bonds (Exhibit 10); Insurance Requirements (Exhibit 11); and Additional Contract Requirements (if applicable) (Exhibit 12).

D. Also incorporated hereto, as if fully set forth, are the latest edition of the City of Hollister Standard Specifications; the latest edition “Greenbook” Standard Specifications for Public Works Construction published by BNI Publications, Inc. (the “Greenbook”); the latest edition of the California Manual on Uniformed Traffic Control Devices (“MUTCD”); the latest edition of the California Building Standards Code; and, the latest edition of the California Department of Transportation Standard Specifications (“Caltrans Standard Specifications”), except Sections 1 - 9 are omitted in their entirety. This contract shall be governed by the latest editions of the City of Hollister Standard Specifications, the California Building Standards Code, and the Greenbook at the time bids are opened, including all applicable updates and amendments thereto. In the event of a conflict between the General Conditions, and either the City of Hollister Standard Specifications, the California Building Standards Code, the Greenbook, or Caltrans Standard Specifications, the General Conditions shall govern.

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E. City and Contractor desire to enter into this Construction Contract for the ________________________________________________, CIP 2505, and other services, as identified in the Bid Documents for the _______________________________________ upon the following terms and conditions.

NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the undersigned parties as follows:

SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.

1.1 Recitals.

All of the recitals set forth above are incorporated herein by reference.

1.2 Definitions.

Capitalized terms shall have the meanings set forth in this Construction Contract, General Conditions, and/or in the latest edition of the City of Hollister Standard Specifications and the Greenbook. If there is a conflict between the definitions in this Construction Contract and those set forth in the General Conditions, City of Hollister Standard Specifications or Greenbook, the definitions in this Construction Contract shall govern.

SECTION 2 THE PROJECT.

The work to be performed includes, but is not necessarily limited to, the remodel of existing restrooms, relocation of the janitor’s closet, and replacement of damaged sewer line.

("Project").

SECTION 3 THE CONTRACT DOCUMENTS.

The Contract Documents consist of the following collection of documents:

(i) Notice Inviting Bids

(ii) Executed Construction Contract between City and Contractor.

(iii) Instructions to Bidders

(iv) Statement of Work

(v) Items of Construction

(vi) Designation of Subcontractors

(vii) Non-Collusion Declaration

(xiii) General Conditions

(xvi) Special Provisions and Technical Specifications.

(x) Performance and Payment Bonds.

(xi) Insurance Forms.

(xii) Plans and Drawings.

(xiii) Reports listed in the Bidding Documents.

(xiv) Supplements, Attachments, and Exhibits attached to the above items.

(xv) Modifications.

(xvi) Change Orders.

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(xvii) Field Directives

SECTION 4 THE WORK.

The Work includes all labor, materials, equipment, services, permits, licenses and taxes, and all other things necessary for Contractor to perform its obligations herein and complete the Project, including, without limitation, any Change Orders requested by Contractor and/or City and authorized by City, in accordance with the Contract Documents and all applicable code requirements.

SECTION 5 PROJECT TEAM.

In addition to Contractor, City has retained, or may retain, at City’s sole discretion, consultants and contractors to provide professional and technical consultation for the design and construction of the Project (the “Project Team”). The Project requires that Contractor operate and communicate efficiently, effectively and cooperatively with City, as well as all other members of the Project Team.

SECTION 6 TIME OF COMPLETION.

6.1 Time Is of Essence.

Time is of the essence with respect to all time limits set forth in the Contract Documents.

6.2 Commencement of Work.

Contractor shall commence the Work on the date specified in the City’s Notice to Proceed.

6.3 Contract Time.

Contractor shall diligently prosecute the Work to Substantial Completion within sixty-two (62) working days after the date specified in City’s Notice to Proceed (the Contract Time of Completion).

6.4 Liquidated Damages.

6.4.1 Entitlement.

City and Contractor acknowledge and agree that if Contractor fails to fully and satisfactorily and substantially complete the Work within the Contract Time, City will suffer, as a result of Contractor’s failure, substantial damages which are both extremely difficult and impracticable to ascertain. Such damages may include, but are not limited to:

(i) Loss of public confidence in City and its contractors and consultants.

(ii) Loss of public use of public facilities.

(iii) Extended disruption to public.

6.4.2 Daily Amount.

City and Contractor have reasonably endeavored, but failed, to ascertain the precise amount relationship to the actual damage that City will incur if Contractor fails to

Construction Contract – Page 4 achieve Substantial Completion of the entire Work within the Contract Time of Completion. Therefore, the parties agree that in addition to all other damages to which City may be entitled, other than delay damages, in the event Contractor shall fail to achieve Substantial Completion of the entire Work within the Contract Time of Completion, Contractor shall pay City, as liquidated damages, the amount of $1000.00 per calendar day for each day occurring after the expiration of the Contract Time of Completion until Contractor achieves Substantial Completion of the entire Work. The liquidated damages amount is not a penalty but considered to be a reasonable estimate of the amount of damages City will suffer.

6.4.3 Apportionment.

Such liquidated damages shall be subject to apportionment for delays to Substantial Completion for which Contractor is entitled to receive an extension of time under the Contract Documents. Such apportionment shall not be affected by the fact that liquidated damages may not be capable of apportionment for other periods of time during which there have occurred delays concurrently caused by both City and Contractor. It being the Contractor’s obligation to have the entire Work substantially completed within the Contract Time of Completion, it is agreed that such liquidated damages shall not be apportioned for portions of the Work completed prior to expiration of the Contract Time.

6.4.4 Exclusive Remedy.

City and Contractor acknowledge and agree that this liquidated damages provision shall be City’s only remedy for delay damages caused by Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time of Completion.

6.4.5 Damages upon Abandonment.

In the event that Contractor either abandons the Work or is terminated by the City for default in accordance with the provisions of Section 16 of this Construction Contract, City shall have the right, in its sole discretion exercised by written notice issued either before or after Substantial Completion, to elect to either assert or waive its right to liquidated damages under this Paragraph 6.4.

.1 If City elects to assert its right to liquidated damages, then the liquidated damages shall be calculated from expiration of the Contract Time of Completion to the date that Substantial Completion of the Work is achieved by City or its replacement contractor employed to complete Contractor's performance.

.2 If City elects to waive its right to liquidated damages, then Contractor shall be liable to City, in lieu of the liquidated damages provided for in this Paragraph 6.4, for all actual Losses proximately resulting from Contractor's failure to complete the Work within the Contract Time of Completion.

6.4.6 Other Remedies.

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The parties further acknowledge and agree that City is entitled to any and all available legal and equitable remedies City may have where City’s Losses are caused by any reason, other than Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time of Completion.

6.5 Adjustments to Contract Time of Completion.

The Contract Time of Completion may only be adjusted for time extensions approved in writing by City and agreed to by Change Order executed by City and Contractor in accordance with the requirements of the Contract Documents.

6.6 Additional Compensation to Contractor.

The Contract Sum shall be increased by the amount of $1000.00 for each day of extension to the Contract Time as permitted by law and solely due to Compensable Delay occurring prior to Substantial Completion, but only to the extent that such Compensable Delay is not concurrent with a Non-Compensable Delay.

Regardless of the cause of the Compensable Delay (including, without limitation, acts or omissions of City or its consultants, errors, conflicts or omissions in the Contract Documents, or Changes to the Work), Contractor agrees to accept the compensation provided for in this Paragraph as its sole and exclusive right, remedy and recovery arising from or related to any loss, damages, costs and expenses due to delay, interruption, hindrance, compression, acceleration, disruption or the impact or ripple effect of delays on the Work, that may occur in connection with Contractor’s performance of Work on the Project and for any resulting foreseen or unforeseen:

(i) Overhead expenses such as, but not limited to, additional supervision, administration, extended or extraordinary overhead (direct or home office), insurance or bond costs and

(ii) Productivity expenses such as additional loss of productivity, inefficiency, and escalation of costs of labor, wage, material or equipment.

SECTION 7 COMPENSATION TO CONTRACTOR.

7.1 Contract Sum.

Contractor shall be compensated for satisfactory completion of the Work in compliance with the Contract Documents the total Contract Sum of _____________ Dollars ($ __________) (the “Contract Sum”).

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7.2 Full Compensation.

The Contract Sum shall be full compensation for all Work provided by Contractor and, except as otherwise expressly permitted by the terms of the Contract Documents, shall cover any and all losses, fees, and/or damages to Contractor arising out of the nature of the Work or from the acts of the elements or any unforeseen difficulties or obstructions which may arise or be encountered in performance of the Work by Contractor until its Acceptance by City, all risks connected with the Work, and any and all expenses incurred by Contractor due to suspension or discontinuance of the Work. The Contract Sum may only be adjusted for Change Orders issued, executed by the City and satisfactorily performed by Contractor in accordance with the requirements of the Contract Documents.

SECTION 8 STANDARD OF CARE.

Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised personnel. All services performed in connection with this Construction Contract shall be performed in a manner consistent with the standard of care under California law applicable to those contractors who specialize in providing such services for projects of the type, scope and complexity of the Project.

SECTION 9 INDEMNIFICATION.

9.1 Hold Harmless.

To the fullest extent allowed by law, Contractor hereby agrees to defend, indemnify, and hold harmless the City, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to City, from and against any and all Losses arising directly or indirectly from, or in any manner relating to any of, the following:

(i) Performance or nonperformance of the Work by Contractor or its

Subcontractors or Sub-subcontractors, of any tier;

(ii) Performance or nonperformance by Contractor or its Subcontractors or Sub-subcontractors, of any Tier, of any of the obligations under the Contract Documents;

(iii) The construction activities of Contractor or its Subcontractors or Sub-subcontractors, of any Tier, either on the Site or on other properties;

(iv) The payment or nonpayment by Contractor of any of its Subcontractors or Sub-subcontractors, of any tier, for Work performed on or off the site for the Project;

and

(v) Any personal injury, wrongful death, property damage or economic loss to third persons associated with the performance or nonperformance by Contractor or its Subcontractors or Sub-subcontractors of any tier, of the Work.

However, nothing contained herein shall be construed as obligating Contractor to indemnify any Indemnitee for Losses resulting from the sole, active negligence or willful misconduct of the Indemnitee. Contractor shall pay City for any and all costs and fees

Construction Contract – Page 7 incurred in enforcing this provision. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee.

9.2 Survival.

The provisions of Section 9 herein shall survive the termination of this Construction Contract.

SECTION 10 COMPLIANCE WITH APPLICABLE CODE REQUIREMENTS.

This Project constitutes "public works" within the meaning of California Labor Code section 1720 and is subject to the prevailing wage laws. Contractor agrees to be subject to and comply with all applicable federal, state and municipal laws, codes, ordinances and regulations governing the Work, including, but not limited to:

(i) The applicable provisions of the California Labor Code; and

(ii) The California Building Standards Code.

SECTION 11 INSURANCE AND BONDS.

Prior to the commencement of any Work, Contractor shall provide City with evidence that it has obtained all insurance and Performance and Payment Bonds attached hereto, which are required by the City and approved by the City Attorney. Failure to do so by Contractor shall be deemed a material breach of this Construction Contract.

SECTION 12 PROHIBITION AGAINST TRANSFERS.

City is entering into this Construction Contract based upon the stated experience and qualifications set forth in Contractor’s Bid. Accordingly, Contractor shall not assign, hypothecate or transfer this Construction Contract or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or transfer without said consent by the City shall be null and void.

For purposes of applying the provisions of this Section, the sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor or of any general partner or joint venturer or syndicate member of Contractor, if a partnership or joint venture or syndicate or co-tenancy exists, which shall result in changing the control of Contractor, shall be construed as an assignment of this Construction Contract. Control means more than fifty percent (50%) of the voting power of the corporation or other entity.

SECTION 13 NOTICES.

13.1 Method of Notice.

Except as provided in Section 13.2 below, all notices, demands, requests or approvals to be given under this Construction Contract shall be given in writing and conclusively shall be deemed served on the earlier of the following:

(i) On the date delivered if delivered personally;

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(ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and addressed as hereinafter provided;

(iii) On the date sent if sent by facsimile transmission; or

(iv) On the date it is accepted or rejected if sent by certified mail.

13.2 Notice Recipients.

All notices, claims, demands or requests, including, without limitation, Notice of Potential Claims (“Claims”) from Contractor to City at:

City of Hollister, Public Works Department Engineering Division 339 Fifth St.

Hollister, CA 95023 Attention: Dillon Albert, Assistant Engineer Re: Bathroom Remodel at the Community Center, CIP C2505

In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following:

City of Hollister, City Attorney Office 375 Fifth St.

Hollister, CA 95023 Attention: Mary F. Lerner, Lozano Smith Attorneys at Law, City Attorney

Re: Bathroom Remodel at the Community Center, CIP C2505

All such Claims shall be delivered personally or sent by certified mail.

All notices, demands, requests or approvals from City to Contractor shall be addressed to:

Re: Bathroom Remodel at the Community Center, CIP C2505

13.3 Change of Address.

In the event of any change of address, the moving party is obligated to immediately notify the other party of the change of address in writing. Each party may, by written notice only, add delete or replace any listed individuals.

SECTION 14 DISPUTE RESOLUTION.

14.1 Resolution of Contract Disputes.

All Contractor Claims, as defined by Public Contract Code section 9204(c) shall be resolved by the parties in accordance with California Public Contracts sections 20104-

20104.6 and applicable law. The Claims Procedures set forth in General Conditions shall be the exclusive recourse of Contractor for such claims.

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14.2 Resolution of Other Disputes.

14.2.1 Other Disputes.

The definition of Contractor Claims shall not include any of the following:

(i) Penalties or forfeitures prescribed by statute or regulation imposed by a governmental agency (other than relief from damages or penalties for delay assessed by a public entity under a contract for a public works project);

(ii) Third party tort claims for personal injury, property damage or death relating to any Work performed by Contractor or its Subcontractors or Sub- subcontractors of any Tier;

(iii) False claims liability under California Government Code section 12650, et. seq.;

(iv) Defects in the Work first discovered by City after Final Payment by City to Contractor; or

(vi) The right of City to specific performance or injunctive relief to compel performance of any provision of the Contract Documents or for other City claims against the Contractor.

14.2.2 Litigation, City Election.

Matters that do not constitute Contractor Claims shall be resolved by way of an action filed in the Superior Court of the State of California, County of San Benito, and shall not be subject to the Contract Dispute Resolution Process. However, the City reserves the right, in its sole and absolute discretion, to treat such disputes as Contract Claims.

Upon written notice by City of its election as provided in the preceding sentence, such dispute shall be submitted by the parties and finally decided pursuant to the Contract Dispute Resolution Process in the manner as required for Contract Claims, including, without limitation, City’s right under Paragraph 14.4.2 to defer resolution and final determination until after Final Completion of the Work.

14.3 Submission of Contractor Claim.

14.3.1 By Contractor.

Contractor shall submit a written Contractor Claim in accordance with applicable terms and conditions set forth in the General Conditions.

14.3.2 By City.

City's right to commence the Contract Dispute Resolution Process shall arise at any time following City's actual discovery of the circumstances giving rise to a contract dispute.

Nothing contained herein shall preclude City from asserting contract disputes in response to a Claim asserted by Contractor. A Statement of Contract Dispute submitted by City shall state the events or circumstances giving rise to the contract dispute, the dates of their occurrence and the damages or other relief claimed by City as a result of such events (Contract Dispute).

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14.4 Contract Dispute Resolution Process.

The parties shall utilize each of the following steps in the Contract Dispute Resolution Process in the sequence they appear below. Each party shall participate fully and in good faith in each step in the Contract Dispute Resolution Process, which good faith effort shall be a condition precedent to the right of each party to proceed to the next step in the process.

14.4.1 Response by City.

The time periods for the City's response are set forth in the General Conditions.

14.4.2. Meet and Confer Conference.

If the claimant disputes the City's written response, or if the City fails to respond to a claim issued within the time prescribed in the General Conditions, the claimant may demand in writing and an informal conference to meet and confer for settlement of the issue in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the City shall schedule a meet and confer conference within 30 days for settlement of the dispute.

14.4.3 Mediation.

(i) Within ten (10) business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the City shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within sixty (60) days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the City and the claimant sharing the associated costs equally.

The City and the claimant shall mutually agree to a mediator within ten

10) business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section.

(ii) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in

Construction Contract – Page 11 dispute resolution through negotiation or by issuance of an evaluation.

Any mediation utilized shall conform to the timeframes in this section.

(iii) Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Public Contract Code Section 20104.4 to mediate after litigation has been commenced.

14.4.4 Binding Arbitration.

If the Contractor Claim or Contract Dispute is not resolved by mediation, then the party wishing to further pursue resolution or determination of the Contractor Claim or Contract Dispute shall submit such for final and binding arbitration pursuant to the provisions of California Public Contract Code sections 10240, et seq. The award of the arbitrator therein shall be final and may be entered as a judgment by any court of competent jurisdiction. Such arbitration shall be conducted in accordance with the following:

.1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint in arbitration in accordance with the regulations promulgated pursuant to California Public Contract Code section 10240.5.

.2 Qualifications of the Arbitrator. The arbitrator shall be selected based by mutual agreement of the parties. The arbitrator shall be a retired judge or an attorney with at least five (5) years of experience with public works construction contract law and in arbitrating public works construction disputes. In addition, the arbitrator shall have at least twenty (20) hours of formal training in arbitration skills. In the event the parties cannot agree upon a mutually acceptable arbitrator, then the provisions of California Public Contract Code Section 10240.3 shall be followed in selecting an arbitrator possessing the qualifications required herein.

.3 Hearing Days and Location. Arbitration hearings shall be held at the offices of City and shall, except for good cause shown to and determined by the arbitrator, be conducted on consecutive business days, without interruption or continuance.

.4 Hearing Delays. Arbitration hearings shall not be delayed except upon good cause shown.

.5 Recording Hearings. All hearings to receive evidence shall be recorded by a certified stenographic reporter, with the costs thereof borne equally by City and Contractor and allocated by the arbitrator in the final award.

.6 Limitation of Depositions. Discovery shall be permitted in accordance with the provisions of Section 10240.11 of the Public Contract Code;

Construction Contract – Page 12 provided, however, that depositions shall be limited to both of the following:

(i) Ten (10) percipient witnesses for City and ten (10) percipient witnesses for Contractor and

(ii) Expert witnesses.

Upon a showing of good cause, the arbitrator may increase the number of permitted depositions. An individual who is both percipient and expert shall, for purposes of applying the foregoing numerical limitation only, be deemed an expert. Expert reports shall be exchanged prior to receipt of evidence, in accordance with the direction of the arbitrator, and expert reports (including initial and rebuttal reports) not so submitted shall not be admissible as evidence.

.7 Authority of the Arbitrator. The arbitrator shall have the authority to hear dispositive motions and issue interim orders and interim or executory awards.

.8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to a jury trial with respect to any Contractor Claim or Contract Dispute that is subject to binding arbitration in accordance with the provisions of this Paragraph 14.4.4. Contractor shall include this provision for waiver of jury trial, waiving the right to jury trial in any action involving City as a party in its contracts with its Subcontractors who provide any portion of the Work.

14.5 Non-Waiver.

There shall be no waiver of the rights granted pursuant to the Dispute Resolution Process, unless specifically set forth in Public Contract Code section 9204((f)(1) or (2).

Specifically, participation in the Contract Dispute Resolution Process shall not constitute a waiver, release or compromise of any defense of City, including, without limitation, any defense based on the assertion that the rights or Contractor Claims that are the basis of a Contract Dispute were previously waived by Contractor due to failure to comply with the Contract Documents, including, without limitation, Contractor’s failure to comply with any time periods for providing notice of requests for adjustments of the Contract Sum or Contract Time of Completion or for submission of Contractor Claims or supporting documentation of such claims.

SECTION 15 DEFAULT.

15.1 Notice of Default.

In the event that City determines, in its sole discretion, that Contractor has failed or refused to perform any of the obligations set forth in the Contract Documents, or is in breach of any provision of the Contract Documents, City may give written notice of

Construction Contract – Page 13 default to Contractor in the manner specified for the giving of notices in the Construction Contract.

15.2 Opportunity to Cure Default.

Except for emergencies, Contractor shall cure any default in performance of its obligations under the Contract Documents within ten (10) days after receipt of written notice.

SECTION 16 CITY'S RIGHTS AND REMEDIES.

16.1 Remedies Upon Default.

In the event that Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section 15, then City may pursue any remedies available under law or equity, including, without limitation, the following:

16.1.1 Delete Certain Services.

City may, without terminating the Construction Contract, delete certain portions of the Work, reserving to itself all rights to Losses related thereto.

16.1.2 Perform and Withhold.

City may, without terminating the Construction Contract, engage others to perform the Work or portion of the Work that has not been performed by Contractor and withhold the cost thereof to City from future payments to Contractor, reserving to itself all rights to Losses related thereto.

16.1.3 Suspend The Construction Contract.

City may, without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, suspend all or any portion of this Construction Contract for as long a period of time as City determines, in its sole discretion, appropriate, in which event City shall have no obligation to adjust the Contract Sum or Contract Time, and shall have no liability to Contractor for damages if City directs Contractor to resume Work.

16.1.4 Terminate the Construction Contract for Default.

City may terminate all or any part of this Construction Contract for default in accordance with Paragraph 16.4 below, reserving to itself all rights to Losses related thereto.

16.1.5 Invoke the Performance Bond.

City may, with or without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, exercise its rights under the Performance Bond.

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16.1.6 Additional Provisions.

All of City’s rights and remedies under this Construction Contract are cumulative, and shall be in addition to those rights and remedies available in law or in equity.

Designation in the Contract Documents of certain breaches as material shall not be construed as implying that other breaches not so designated are not material nor shall such designations be construed as limiting City’s right to terminate the Construction Contract, or the exercise of its other rights or remedies for default, to only material breaches. City’s determination of whether there has been noncompliance with the Construction Contract so as to warrant exercise by City of its rights and remedies for default under the Construction Contract, shall be binding on all parties. No termination or action taken by City after such termination shall prejudice any other rights or remedies of City provided by law or equity or by the Contract Documents upon such termination; and City may proceed against Contractor to recover all liquidated damages and Losses suffered by City.

16.2 Delays by Sureties.

Without limitation to any of City’s other rights or remedies under the law, City has the right to suspend the performance by Contractor’s sureties in the event of any of the following:

(i) Failure of the sureties to begin Work within a reasonable time in such manner as to insure full compliance with the Construction Contract within the Contract Time;

(ii) Abandonment of the Work;

(iii) If at any time City is of the opinion the Work is unnecessarily or unreasonably delayed;

(iv) Willful violation of any terms of the Construction Contract;

(v) Failure to perform according to the Contract Documents; or

(vi) Failure to follow instructions of City for its completion within the Contract Time.

City will serve notice of such failure upon the sureties and in the event the sureties neglect or refuse to cure the breach within the time specified in such notice, City shall have the power to suspend the performance or any part thereof of the sureties.

16.3 Damages to City.

16.3.1 For Contractor's Default.

City will be entitled to recovery of all Losses under law or equity in the event of Contractor’s default under the Contract Documents.

16.3.2 Compensation for Losses.

In the event that City's Losses arise from Contractor’s default under the Contract Documents, City shall be entitled to withhold monies otherwise payable to Contractor

Construction Contract – Page 15 until Final Completion of the Project. If City incurs Losses due to Contractor’s default, then the amount of Losses shall be deducted from the amounts withheld. Should the amount withheld exceed the amount deducted, the balance will be paid to Contractor or its designee upon Final Completion of the Project. If the Losses incurred by City exceed the amount withheld, Contractor shall be liable to City for the difference and shall promptly remit same to City.

16.4 Termination of the Construction Contract for Default.

Without limitation to any of City’s other rights or remedies at law or in equity, and reserving to itself all rights to Losses related thereto, City shall have the right to terminate this Construction Contract, in whole or in part, upon the failure of Contractor to promptly cure any default as required by Section 15. City’s election to terminate the Construction Contract for default shall be communicated by giving Contractor a written notice of termination in the manner specified for the giving of notices in the Construction Contract. Any notice of termination given to Contractor by City shall be effective immediately, unless otherwise provided therein.

16.5 Suspension by City for Convenience.

City may, at any time and from time to time, without cause, order Contractor, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an aggregate of fifty percent (50%) of the Contract Time, as City may determine, with such period of suspension to be computed from the date of the written order. Such order shall be specifically identified as a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City’s expense, comply with its terms and take all reasonable steps to minimize costs allocable to the Work covered by the Suspension Order during the period of Work stoppage. Within the period of the above noted aggregate time, or such extension to that period as is agreed upon by Contractor and City, City shall either cancel the Suspension Order or delete the Work covered by such Suspension Order by issuing a Change Order. If a Suspension Order is canceled or expires, Contractor shall resume and continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. The provisions of this Paragraph 16.5 shall not apply if a Suspension Order is not issued by City. A Suspension Order shall not be required to stop the Work as permitted or required under any other provision of the Contract Documents.

16.6 Termination Without Cause.

City shall have the option, at its sole discretion and without cause, of terminating this Construction Contract in part or in whole by giving thirty (30) days written notice to Contractor. Contractor agrees to accept such sums as allowed under this Paragraph 16.6 as its sole and exclusive compensation and waives any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect or incidental damages of any kind.

16.6.1 Compensation.

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Following such termination and within forty-five (45) days after receipt of a billing from Contractor seeking payment of sums authorized by this Paragraph 16.6, City shall pay to Contractor as its sole compensation for performance of the Work the following:

.1 For Work Performed. The amount of the Contract Sum allocable to the portion of the Work properly performed by Contractor as of the date of termination, less sums previously paid to Contractor.

.2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors and Sub-subcontractors for:

(i) Demobilizing and

(ii) Administering the close-out of its participation in the Project (including, without limitation, all billing and accounting functions, not including attorney or expert fees) for a period of no longer than thirty (30) Days after receipt of the notice of termination in an amount not to exceed the daily sum payable to Contractor for Compensable Delays in Paragraph

6.6 of this Construction Contract.

.3 For Fabricated Items.