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This is an agreement between a client and a general contractor for construction services. This agreement sets forth the rights and responsibilities of each party. In addition, this agreement contains exhibits that can be customized to ensure that the understandings of the parties are properly set forth. These customizable exhibits include: the scope of services to be performed, compensation rates, insurance, state required terms and conditions, plans, specifications, construction documents, and a project schedule. This agreement can be used by contractors, property owners, or property management companies that want to enter into an agreement for construction services.
This is an agreement between a client and a general contractor for construction services. This agreement sets forth the rights and responsibilities of each party. In addition, this agreement contains exhibits that can be customized to ensure that the understandings of the parties are properly set forth. These customizable exhibits include: the scope of services to be performed, compensation rates, insurance, state required terms and conditions, plans, specifications, construction documents, and a project schedule. This agreement can be used by contractors, property owners, or property management companies that want to enter into an agreement for construction services. CONSTRUCTION CONTRACT (Short Form) AGREEMENT made as of _________ ____, 200__, BETWEEN "Owner/Client": [insert Owner/Client name and address] Designated Representative: [insert] Telephone: Facsimile: and the "Contractor": [insert Contractor name and address] Designated Representative: [insert] Telephone: Facsimile: The "Program Manager" is: [insert PM name and address] Point of Contact: [insert] Telephone: Facsimile: The "Project" is: [describe Project and its location] THIS CONSTRUCTION CONTRACT (the "Agreement"), effective as of the date set forth above, is between Owner/Client and Contractor, who state and agree as follows: 1. Owner/Client; Contractor. Owner/Client wishes to engage Contractor to construct the Project and perform related services. Contractor shall perform its work pursuant to this Agreement under the direction and management of Program Manager and for the benefit of Owner/Client. Owner/Client has designated Program Manager as its representative to act on its behalf with respect to the Project. Contractor agrees that it shall render and furnish to Program Manager the services and materials to which Owner/Client is entitled under this Agreement, at the times when Owner/Client is entitled to the same. Contractor is an independent contractor and not an agent, servant or representative of Owner/Client or Program Manager. Contractor will have no authority legally to obligate Owner/Client except as specified in this Agreement or as otherwise specified in writing by Owner/Client from time to time. 2. Scope of Work. Contractor shall furnish all work, labor, tools, materials and equipment to construct and complete in a workmanlike manner the work set forth in Exhibit A at the Project site ("the Work"). The Work shall include all incidental and related work necessary to complete the Project in accordance with the Contract Documents (defined below) and good industry practices. 3. Owner/Client's Responsibilities; Program Manager. Owner/Client shall provide Contractor with the construction plans, specifications and documents listed on Exhibit E. Owner/Client makes no warranty as to the accuracy of any documents furnished to Contractor, but agrees that Contractor shall be entitled to rely, based upon its exercise of due care and caution, on the accuracy and completeness thereof. Program Manager shall examine the documents submitted by Contractor and shall render decisions pertaining thereto promptly so as to avoid unreasonable delay in the progress of Contractor’s Work. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 1 4. Contract Documents. The "Contract Documents" consist of the following: (a) This Agreement (together with its exhibits); (b) The plans, specifications and other construction documents listed in Exhibit E; (c) All modifications issued by written Change Order. The Contract Documents represent the entire agreement between Owner/Client and Contractor and supersede all prior negotiations, representations, understandings or agreements between the parties, whether written or oral. In the event of any conflict or inconsistency between any of these documents, this Agreement shall control over the descriptions in Exhibit A and the specifications. For purposes of this Agreement, a "day" means a calendar day unless otherwise provided. 5. Contractor's Duties and Status. 5.1. Contractor covenants to furnish its best skill and judgment and to cooperate with Program Manager and any other contractor or design professional employed by Owner/Client. Contractor agrees to perform the Work in a manner at least equal to highest industry standards and good commercial practices, without negligence, errors or omissions, and in the most expeditious and economical manner consistent with the interests of Owner/Client. Contractor agrees to furnish efficient business administration and superintendence and to use its best efforts to furnish at all times an adequate supply of workers and materials. 5.2. Contractor's authorized representative for the Project is identified on the face page of this Agreement. Contractor's authorized representative shall personally monitor the performance of all Work described in this Agreement and is authorized to bind Contractor for all matters pertaining to the Project and/or this Agreement. No person shall be substituted for such authorized representative without Owner/Client's prior written consent. 5.3. The Work shall be performed in strict accordance with the plans and specifications described in Exhibit E. By signing this Agreement, Contractor represents that it has carefully reviewed the documents described in Exhibit E and the other Contract Documents and has visited the Project site. Contractor shall supervise and direct the Work of its employees and any subcontractors using its best skill and attention, and shall always enforce strict discipline and good order among same. Contractor shall be solely responsible for all construction means, methods, techniques, sequences, safety, cleanliness and procedures, and for coordinating all portions of the Work. Contractor shall be responsible to Owner/Client for the acts and omissions of its employees, subcontractors of every tier, and their agents and employees. Contractor shall not employ on the Work any unfit person or anyone not skilled in the assigned task. Upon final completion, Contractor shall remove all trash and debris and clean the Project site. 5.4. If Owner/Client awards separate contracts for other construction or operations on the site, Owner/Client shall cause each separate contractor to coordinate with the Work of Contractor, who shall cooperate with them. 5.5. If part of the Work depends for proper execution or results upon work by a separate contractor, Contractor shall, prior to proceeding with that portion of the Work, promptly report to Owner/Client apparent discrepancies or defects in such other construction that would render it unsuitable for the Work. Contractor's failure to so report shall constitute an acknowledgment that such separate contractor's completed or partially completed construction is fit and proper to receive the Work, except as to defects not then reasonably discoverable. 5.6. Contractor shall at all times keep one record copy of all Contract Documents, addenda and shop drawings at the Project site in good and clean order and annotated to show all changes made during the course of construction. The record copy shall be available to Program Manager at all reasonable times, and Contractor shall, as a condition to final payment, deliver a copy to Owner/Client. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 6. Warranties; Correction of Work. 6.1. All Work (including corrective Work) furnished by Contractor shall strictly comply with all requirements of the Contract Documents, be of good and workmanlike quality, be free from defects, and shall be subject to inspection and approval by Owner/Client. This warranty is in addition to, and shall not reduce, exclude or limit, Contractor's liability under any other provisions of applicable state law, any warranties required elsewhere in the Contract Documents or implied by law, or for latent defects. No inspection, failure of inspection, or payment to Contractor shall be deemed a waiver of the foregoing. 6.2. Without limiting Section 6.1, if, within 12 months after Substantial Completion, any Work is found to be defective in workmanship or materials or not in accordance with the Contract Documents, Contractor shall, at Owner/Client's written election, immediately repair or replace any defective or nonconforming Work at Contractor's sole expense to the reasonable satisfaction of Owner/Client. The cost to repair any adjacent property or work disturbed or damaged by the defective Work or during or as a result of any such corrective Work shall also be paid by Contractor. If Contractor fails to correct any defective Work within 7 days after written notice by Owner/Client, Owner/Client may, without further notice, cause such defective Work to be repaired or replaced by others and Contractor shall immediately reimburse Owner/Client for the cost of same. 7. Contract Time; Delays; Liquidated Damages. 7.1. Time is of the essence of this Agreement. Contractor shall commence the Work upon receipt of a written notice to proceed and shall continue until the Project is completed or until this Agreement is terminated. Contractor agrees to perform its Work continuously, diligently, and energetically and to complete the Work in accordance with the Project Schedule attached hereto as Exhibit F (as updated from time to time) so as to timely achieve Substantial Completion of the Work ("the "Contract Time"). 7.2. "Substantial Completion" occurs when the Work is sufficiently complete in accordance with the Contract Documents so that Owner/Client can occupy or utilize the Work for its intended use. Substantial Completion requires the final inspection and approval of any agency having jurisdiction, Owner/Client's design professional providing construction administration, and Program Manager. Any work remaining after Substantial Completion shall be noted in a "punch list" following such inspection, and such remaining work shall be completed within 20 days of Substantial Completion and prior to final payment. 7.3. Contractor shall be entitled to a reasonable extension of the Contract Time for any delay outside of Contractor's control (including acts of God, strikes, lockouts, unavoidable casualties, or acts or omissions of Owner/Client, Program Manager or any consultant of Owner/Client or Program Manager), provided Contractor has notified Program Manager within five days of any event or condition delaying the Work. If Contractor fails to perform any of its obligations as required by this Agreement or by operation of law and thereby delays the Project, Contractor shall be liable for any and all damages caused thereby, including damages caused to separate contractors. A delay due to weather shall be cause for an extension of the Contract Time only to the extent that the weather exceeds the weather days allowance set forth in Exhibit F. 7.4. If Contractor fails to achieve Substantial Completion on or before the Substantial Completion date shown on Exhibit F (as extended in accordance with Section 7.3), Contractor shall owe Owner/Client as liquidated damages $____ [insert] for each and every calendar day from such date for Substantial Completion until the actual occurrence of Substantial Completion. Contractor agrees that Owner/Client’s actual damages for such delay would be difficult or impossible to ascertain in such event and that such liquidated damages constitute a fair and reasonable amount of damages in the circumstances. Liquidated damages shall be payable upon demand by Owner/Client. Liquidated damages do not limit Owner/Client's rights or remedies for damages incurred by reason of matters other than Contractor- responsible delays. 8. Extra Work. "Extra Work" is Work that adds scope or program to the base contract scope of work set forth in Exhibit A hereto or in previously issued Change Orders. Owner/Client, without invalidating this Agreement, may order changes in the Work, including Extra Work, deleted Work, or other revisions by a written change order signed by Owner/Client ("Change Order"). The Contract Time shall be equitably adjusted as necessary; the method of adjusting the Contract Price for changes in the Work is © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 set forth in Exhibit B. If Contractor claims that performance of any Work directed by Owner/Client is actually Extra Work, Contractor shall provide written notice to Owner/Client of any such claim prior to undertaking such work ("Notice of Potential Claim") with a detailed justification for why such work is Extra Work under this Agreement. If Owner/Client refuses to issue a Change Order for such work, Contractor shall perform that work and shall submit a complete and specific claim for additional compensation or extension of time detailing why such work is Extra Work under this Agreement within 15 days after such work is performed ("Claim"). Failure to provide written Notice of Potential Claim prior to undertaking such work, or failure to timely submit a complete and specific Claim shall be deemed a waiver and abandonment of any such Claim or related right to additional compensation or additional time. No claim, dispute or controversy shall interfere with the progress or performance of the Work, and Contractor shall proceed with the Work at all times as directed by Owner/Client. Failure to so proceed shall amount to a Default under section 14. 9. Compensation; Documentation. 9.1. Subject to additions and deductions by written Change Order as provided above, Owner/Client shall pay Contractor the "Contract Price" set forth in Exhibit B as full and complete compensation for performance of the Work. The Contract Price includes all applicable sales, use, excise, and other taxes which may now or hereafter be levied. All compensation for Contractor's performance of the Work shall be as set forth in Exhibit B (and in section 8, in the case of Extra Work), payable monthly in proportion to the Work performed with an amount retained by Owner/Client as security for performance as set forth in Exhibit B. 9.2. Contractor shall bill Owner/Client monthly for Work (including Extra Work authorized by Change Order) performed using an application for payment in a form approved by Owner/Client. The application for payment shall itemize and describe the Work (including authorized Extra Work) performed, identify personnel performing the Work and the time expended (for Work compensated on the basis of hourly rates), with appropriate documentation of all of the foregoing attached thereto. Prior to submitting invoices to Owner/Client, Consultant shall submit same to Program Manager for review. Within 10 days after receipt of each such payment application, Program Manager shall verify the accuracy of the amounts shown on same, correct the value or values where appropriate, and notify Contractor of any changes or disagreements. Provided that Contractor delivers a properly completed, documented payment application to Program Manager, payment of undisputed amounts less amounts retained or withheld pursuant to this Agreement will be due 30 days from Program Manager's receipt of such complete and documented payment application. Contractor agrees to provide any supporting documentation for each payment application which Program Manager or Owner/Client reasonably requests. As a condition to each progress and final payment, Contractor shall provide an executed statutory form of lien waiver and release with each application and upon receipt of payment on same. Any payment made hereunder prior to completion and acceptance of the Work shall not be construed as evidence of acceptance of any part of the Work. Retainage withheld by Owner/Client from progress payments, less a final holdback of 125% of the remaining value of any uncompleted Work, shall be paid to Contractor within 30 days of Substantial Completion, with the remaining holdback paid to Contractor within 30 days of certification that the Work (including all punch list Work) has been finally completed. 9.3. For a period of six years following Substantial Completion, Contractor shall maintain full and accurate records and books of account necessary to document all activities undertaken by or on behalf of Contractor in the course of performing Work hereunder and all amounts billed to Owner/Client. Contractor will promptly make such records available to Owner/Client upon prior written request during normal business hours. 10. Right to Withhold Funds. Owner/Client may withhold or nullify (as appropriate) the whole or a part of any payment to Contractor to such extent as may be necessary to protect Owner/Client from any Loss and Expense (defined below), such as for (1) defective Work not remedied, (2) claims filed or reasonable evidence indicating probable filing of a claim or claims, (3) failure of Contractor to make payments properly to its Subcontractors or workers, (4) reasonable doubt that the Work can be completed within the Contract Price or the Contract Time, (5) damage to Owner/Client's property or work of separate contractors, (6) failure of Contractor to provide certificates of insurance, (7) liquidated damages, or (8) any breach or default in performance by Contractor or any Subcontractor. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 11. Unforeseen Conditions. If Contractor discovers sub-surface or latent physical conditions which differ materially from those indicated in the Contract Documents, or which are of an unusual nature differing materially from those ordinarily encountered in work of the character provided for in this Agreement, and which would not be foreseen by an experienced contractor similar to Contractor (collectively, "Unforeseen Conditions"), Contractor shall promptly provide a Notice of Potential Claim advising Owner/Client of the existence of such conditions prior to proceeding with any impacted Work. Owner/Client shall investigate the condition and determine whether it constitutes an Unforeseen Condition. If Owner/Client determines it is an Unforeseen Condition, the parties shall negotiate a Change Order to provide for any necessary adjustments to the Contract Price or Contract Time. If the parties are unable to agree as to the existence of Unforeseen Conditions, or on appropriate adjustment(s) of the Contract Price or Contract Time, Contractor shall nonetheless proceed with the Work as required by Owner/Client, as provided in Section 8. 12. Risk of Loss. Owner/Client is not responsible for any loss or damage, however caused, to the materials, equipment or tools used or to be used by Contractor in the performance of the Work. Contractor shall bear the risk of loss to the Work until Substantial Completion (or until final completion for punch list Work). Contractor further agrees to protect the workers of Contractor, Subcontractors, separate contractors, Owner/Client and Program Manager from Contractor's operations. 13. Subcontractors; Employees. 13.1. Contractor will not contract with or otherwise engage, employ or utilize any consultants, contractors, suppliers or other third parties (any such, a "Subcontractor") in connection with the Work without Owner/Client's prior written consent in each instance. Contractor shall furnish Owner/Client with a list of Subcontractors and material suppliers to be used on the Project prior to commencing work on the Project, and shall promptly notify Owner/Client of changes to same. Neither use of a Subcontractor by Contractor, nor Owner/Client's consent thereto, shall relieve Contractor of its obligations under this Agreement. Contractor shall be responsible to Owner/Client for the acts and omissions of its employees and Subcontractors, and their agents and employees. The fees of all Subcontractors are included in the Contract Price. Each Subcontractor's payment for Extra Work shall be governed by the same terms and conditions as those for Contractor. The terms, conditions, and provisions of the Contractor's agreement with each Subcontractor shall be subject and subordinate to, and not inconsistent with, the terms, conditions and provisions of this Agreement. Nothing contained herein shall create any relationship of contract or agency between Owner/Client and any Subcontractor. For purposes of Contractor's obligations and responsibilities under this Agreement, reference to "Contractor" shall be deemed to bind every Subcontractor of any tier, unless the context specifically requires otherwise. 13.2. Contractor shall employ individuals at the site to whom Owner/Client has no reasonable objection. In the event Owner/Client has a reasonable objection to any employee performing Work, it shall notify Contractor, which shall promptly cause the individual to be removed from the Project and replace same with an unobjectionable employee at no cost to Owner/Client. 14. Default. 14.1. Without limiting any other rights or available remedies, Owner/Client may declare a "Default" under this Agreement if the Contractor: (1) refuses or fails to supply enough properly skilled workers or proper materials; (2) fails to make payment to Subcontractors in accordance with the respective agreements between the Contractor and its Subcontractors; (3) disregards or violates any Legal Requirement (defined below); (4) fails to provide Owner/Client adequate written assurances, upon Owner/Client's request, which demonstrate Contractor's willingness and ability to perform the Work within the Contract Time and without increase in the Contract Price, or (5) otherwise breaches any of its obligations under this Agreement. 14.2. Owner/Client shall provide Contractor written notice specifying the nature of the Default and affording Contractor 7 days to cure the Default. If the Default cannot be cured within 7 days, then within the 7 day period Contractor shall commence to cure, submit and obtain Owner/Client's written approval of its cure plan, and thereafter diligently pursue the cure to timely completion. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 14.3. If the Default remains uncured after the 7 day period expires or if the Contractor fails to obtain Owner/Client's approval of its cure plan during such period, Owner/Client may provide written notice to Contractor and Contractor's surety, if applicable, of termination. Upon termination, Owner/Client may (1) take possession of the site and all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; and (2) finish the Work by whatever reasonable method Owner/Client may deem expedient. 14.4. If Owner/Client terminates for Default, Owner/Client shall not be obligated to make further payments to Contractor until the Work is completed and accepted. Thereafter, if the unpaid balance of the Contract Price exceeds the costs incurred by Owner/Client to complete the Work, Owner/Client shall compensate Contractor for the remaining balance of the cost of Work actually completed and accepted by Owner/Client less Owner/Client's costs. If the cost of finishing the Work exceeds the balance of the Contract Price, Contractor shall pay the difference to Owner/Client within 15 days of written demand. The cost of finishing the Work shall include any professional services or other Loss and Expense incurred by Owner/Client as a result of Contractor's Default. 14.5. If Contractor is terminated for Default, Contractor shall assign its contracts with Subcontractors to Owner/Client upon Owner/Client's request. Contractor's agreements with the Subcontractors shall recognize such right. 15. Termination for Convenience. Owner/Client reserves the absolute right to terminate this Agreement, without cause, upon 7 days' prior written notice. In such event, Contractor shall be entitled to payment ("Termination Payment") in an amount not to exceed the Contract Price, which shall be calculated as follows: (a) Contractor's actual cost for that part of the Work actually completed by Contractor and accepted by Owner/Client; plus (b) other reasonable, documented, out-of-pocket costs actually incurred by Contractor in connection with termination; plus (c) 10% of the foregoing costs for all overhead and profit. Contractor shall not be entitled to any payment for so-called "lost profit." There shall be deducted from the Termination Payment the amount of any payments made to Contractor on account of Work. Contractor shall not be entitled to any claim or lien against Owner/Client or the Project for any additional compensation or damages in the event of such termination and payment. If this Agreement is terminated by Owner/Client for default, and it is later determined that the default termination was wrongful, such termination automatically shall be converted to and treated as a termination for convenience under this section and Contractor shall be entitled to receive only the Termination Payment. 16. Intellectual Property. All plans, drawings, specifications, tests, calculations, reports, samples and other submittals (collectively the "Documents") prepared and furnished by Contractor or any Subcontractor for the Project, together with all Contract Documents and any intellectual property rights in the foregoing, shall be the property of Owner/Client whether the Project is completed or not, and shall be delivered to Owner/Client on the earlier of Substantial Completion or the date of termination of this Agreement. 17. Liens. Contractor shall defend, indemnify, and hold Owner/Client harmless from and against any and all Loss and Expense (defined below) arising by reason of any claims, liens, stop notices, or bond claims for labor, materials, or equipment used or furnished to be used on the Project, or union trust fund payments arising from or relating to Work or the Project (any such, a "Lien"). Contractor shall cause the effect of any such Lien to be released, bonded or otherwise removed from the Project within 10 days after written demand by Owner/Client. If Contractor fails to do so, Owner/Client may use whatever means it deems appropriate to cause the Lien to be removed or dismissed. Any and all resulting Loss and Expense shall be immediately due and payable to Owner/Client by Contractor. 18. Insurance; Bonds. 18.1. Exhibit C sets forth certain insurance requirements and is incorporated herein. Contractor agrees that at all times during the life of this Agreement, it shall maintain at its own cost those insurance coverages specified in Exhibit C. Owner/Client shall be responsible for obtaining builders risk insurance at Owner/Client's cost. 18.2. If required by Owner/Client, prior to commencement of the Work, Contractor shall execute and deliver to Owner/Client a payment bond and/or a performance bond in amounts specified by © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 Owner/Client, but not to exceed 100% of the Contract Price, at Owner/Client's expense. The bonds shall be executed by a surety company admitted in California and in a form satisfactory to Owner/Client. The bonds shall not restrict or adversely affect Owner/Client's rights to offset or deduct from payments to Contractor as provided in this Agreement. 19. Indemnification. Contractor shall indemnify, defend, and hold the Indemnified Parties harmless from and against any and claims, liability, loss, damage, costs or expenses, including reasonable attorneys' fees, expert witness fees, awards, fines or judgments (collectively, "Loss and Expense"), resulting from death or bodily injury to persons, injury to property, or other use connected with the Work or the Project to the extent caused by, contributed to or arising from negligent errors or omissions or willful misconduct (whether performed by Contractor or an agent or Subcontractor engaged by Contractor), provided however that Contractor shall not be obligated under this Agreement to indemnify any entity to the extent that the damage is caused by the sole negligence or willful misconduct of Owner/Client or its agents or contractors other than Contractor. The "Indemnified Parties" are Owner/Client, Program Manager, and each of their officers, directors, venturers, parents, affiliates, subsidiaries and agents, and all shareholders, officers, directors, employees and managers of same. 20. Notices. All notices required or permitted by this Agreement shall be in writing and may be accomplished either by personal delivery, first-class regular U.S. mail, express delivery by a reputable national carrier, or confirmed facsimile transmission sent to the party at the address or facsimile number shown in this Agreement. Notices shall be effective on the date of receipt or refused delivery. 21. Governing Law; State Required Terms and Conditions. This Agreement shall be governed by and construed under the laws of the State of California. The State Required Terms and Conditions attached as Exhibit D (to the extent applicable to the Work) are incorporated by reference. Contractor shall perform the Work in full compliance with such terms and any other applicable federal, state and local laws and regulations in effect at the time the Work is performed (collectively, "Legal Requirements"). Among other things, Contractor shall give all legally required notices; obtain all permits and licenses necessary for performance of the Work; pay all local, state and federal taxes associated with the Work; and pay all benefits, insurance, taxes and contributions which are measured by wages, salaries or other remunerations paid to Contractor's employees. Upon Owner/Client's request, Contractor shall furnish evidence satisfactory to Owner/Client that the foregoing obligations have been fulfilled. 22. Prevailing Party Costs. If either party commences any legal proceedings against the other under or related to this Agreement or the Work, including but not limited to proceedings in arbitration or any state, federal or bankruptcy court, the prevailing party shall be entitled to recover its attorneys’ fees, expert witness’ fees, and all costs of suit, whether or not otherwise recoverable under rule of civil procedure. 23. Modification; Waiver. No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by both parties. No waiver of any provision in this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 24. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Contractor shall not be entitled to assign or delegate any of its rights or obligations hereunder without the prior written consent of Owner/Client; any such assignment is void. Owner/Client may assign this Agreement to an affiliated entity, as that term is defined in California Corporations Code section 150, at any time and without Contractor's consent. Owner/Client will promptly provide notice to Contractor of any such assignment. 25. Savings Clause. If any provision of this Agreement shall be held to be invalid under any applicable Legal Requirement, then such provision shall remain in effect to the extent permitted, and the remaining provisions of this Agreement shall remain in full force and effect. 26. Contractor Licensing. Contractors are required by law to be licensed and regulated by the Contractors' State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors' State License Board, P.O. Box 26000, Sacramento, California 95826. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8 27. Execution. By their signature below, each of the following represent that they have authority to execute this Agreement and to bind the party on whose behalf their execution is made. This Agreement may be signed in counterparts, each complete set of which shall constitute an original. [Owner/Client] [Contractor] By (Signature) By (Signature) Printed Name: Printed Name: Title: Title: Contractor's License #: © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9 EXHIBIT A SCOPE OF SERVICES [insert] Exhibit A – Scope of Services Page 10 EXHIBIT B COMPENSATION 1. Contract Price. The Contract Price is $_____________. The Contract Price is allocated according to the schedule of values attached hereto. The schedule of values shall serve as the basis for applications for payment during a given period. 2. Retainage. Owner/Client shall retain 5% from each progress payment of the Contract Price as security for Contractor's continuing performance. 3. Extra Work. The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: (A) Unit prices attached hereto or as subsequently agreed to between the parties; (B) A mutually accepted, lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner/Client; or (C) the reasonable expense and savings in the performance of the Work resulting from the change on a time and materials basis using the hourly rates attached hereto, plus the Change Order Markup discussed below. If the net result of both additions and deletions to the Work is an increase in the Contract Price, mark-ups shall be calculated on the basis of the net increase to the Contract Price. If the net result of both additions and deletions to the Work is a decrease in the Contract Price, there shall be no overhead or profit adjustment to the Contract Price. Contractor shall maintain a documented, itemized accounting evidencing the expenses and savings associated with all changes in the Work. The aggregate mark-up for the overhead and profit and incremental additional costs of bonds and insurance on all Extra Work for Contractor and subcontractors of every tier shall be limited to ____% (the "Change Order Markup"). [attach schedule of values, hourly rates and any unit prices] Exhibit B – Compensation Page 11 EXHIBIT C INSURANCE Prior to Contractor commencing the Work, and continuing for a period of at least three (3) years following Substantial Completion, Contractor shall, at its sole cost and expense, carry and maintain the following insurance coverages with reliable insurers reasonably acceptable to Owner/Client: 1. General Written on an Occurrence Basis. No Claims Made or Modified Occurrence Policies AM Best Rating of A-, X or Better Contain a 60 Day Cancellation Provision, except for Non-Pay (10 days) The wording “ENDEAVOR TO” and “BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY” deleted from the certificate of insurance. Contractor's insurance shall be primary, with any insurance maintained by an additional insured party being non-contributory. Subcontractors are required to provide Owner/Client with certificates of insurance All certificates of insurance with the required endorsements must be provided to Owner/Client prior to the commencement of Work Owner/Client shall have the right to approve the insurer, form, and content of Contractor’s insurance policies 2. Commercial General Liability Limits of at least $1,000,000 Per Occurrence $2,000,000 General Aggregate $1,000,000 Products / Completed Operations Aggregate $1,000,000 Personal and Advertising Injury $100,000 Damage to Rented Premises $5,000 Medical Expenses Maximum deductible of $10,000 per occurrence. Name Owner/Client, Program Manager the State of California and all other Indemnified Parties as additional insureds, on form CG 20 10 11 85 or equivalent (include coverage for Products/Completed Operations) Include Contractual Liability (including Contractor's obligations assumed in this Agreement) Include broad form property damage liability Include premises, operations and mobile equipment liability Include Primary & Non Contributory endorsement/wording Include a Waiver of Subrogation on behalf of additional insured parties Include coverage for Subcontractors and Independent Contractors with no limitations or warranties No exclusions or limitations for Explosion, Collapse, or Underground Hazard No exclusions or limitations for Subsidence, Soil or Earth Movement Defense Costs Outside of the Policy Limits Include a Per Project and Per Location General Aggregate Exhibit C - Insurance Page 12 3. Workers Compensation Comply with all State and Federal statutes Include a Waiver of Subrogation on behalf of Owner/Client, Program Manager, the State of California and all other Indemnified Parties Include Employers’ Liability Insurance covering all work places with limits of at least: $1,000,000 Each Accident $1,000,000 Disease – Policy Limit $1,000,000 Disease – Each Employee 4. Automobile Liability Combined Single Limit of at least $1,000,000 for all owned, hired, rented, or borrowed vehicles Written using Symbol 1 – Any Auto for Liability (coverage for Owned, Non-Owned, and Hired Autos) Name Owner/Client, Program Manager, and all other Indemnified Parties as additional insureds Include a Waiver of Subrogation on behalf of additional insured parties Exhibit C - Insurance Page 13 EXHIBIT D STATE REQUIRED TERMS AND CONDITIONS 1. AUDIT: Contractor agrees that the [insert full legal name of Owner/Client] (“Owner/Client”), the or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of Owner/Client to audit records and interview staff in any subcontract or subconsultant agreement related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896.) 2. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, Contractor and its subcontractors and subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. Contractor, subcontractors and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Contractor, subcontractors and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full, and Contractor hereby certifies that it has, unless exempted, complied with theses nondiscrimination program requirements. Contractor and its subcontractors and subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts and subconsultant agreements to perform work under the Agreement. 3. ANTITRUST CLAIMS: Contractor agrees that if this Agreement was awarded by means of a competitive bid, Contractor shall comply with the requirements of the Government Codes Sections set out below. a. For the purpose of this Section 3: 1) “Public purchase” means a purchase by means of competitive bids of goods, services, or materials by Owner/Client or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. 2) “Public purchasing body” means Owner/Client or the subdivision or agency making a public purchase. (Government Code Section 4550.) b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. (Government Code Section 4552.) c. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by Exhibit D – State Required Terms and Conditions Page 14 the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. (Government Code Section 4553.) d. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. (See Government Code Section 4554.) 4. CHILD SUPPORT COMPLIANCE ACT: If this Agreement is in excess of $100,000, Contractor acknowledges in accordance with Public Contract Code 7110, that: a) Contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and b) Contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 5. PRIORITY HIRING CONSIDERATIONS: If this Agreement includes services in excess of $200,000, Contractor shall give priority consideration in filling vacancies in positions funded by the Agreement to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub. Contract Code §10353. 6. DRUG-FREE WORKPLACE REQUIREMENTS: Contractor will comply with the requirements of the Drug-Free Workplace Act of 1990 and will provide a drug-free workplace by taking the following actions: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations. b. Establish a Drug-Free Awareness Program to inform employees about: 1) the dangers of drug abuse in the workplace; 2) the person’s or organization's policy of maintaining a drug-free workplace; 3) any available counseling, rehabilitation and employee assistance programs; and, 4) penalties that may be imposed upon employees for drug abuse violations. c. Every employee who works on the proposed Agreement will: 1) receive a copy of the company's drug-free workplace policy statement; and, 2) agree to abide by the terms of the company's statement as a condition of employment on the Agreement. Failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both and Contractor may be ineligible for award of any future Owner/Client or State agreements if Owner/Client or the State determine that any of the following has occurred: Contractor has made false certification, or violated the certification by failing to carry out the requirements as noted above. (Gov. Code §8350 et seq.) 7. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: Contractor certifies that no more than one (1) final unappealable finding of contempt of court by a Federal court has been issued against Contractor within the immediately preceding two-year period because of Contractor’s failure to comply with an order of a Federal court, which orders Contractor to comply with an order of the National Labor Relations Board. (Pub. Contract Code §10296.) (Not applicable to public entities.) 8. DOMESTIC PARTNERS: For contracts over $100,000, Contractor certifies that Contractor is in compliance with Public Contract Code Section 10295.3. Exhibit D – State Required Terms and Conditions Page 15 9. CONFLICT OF INTEREST/STATE OFFICERS OR EMPLOYEES: Contractor acknowledges its awareness of the following provisions regarding current or former state employees: a. No state officer or employee may engage in any employment, activity or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any state agency, unless the employment, activity or enterprise is required as a condition of regular state employment. (Pub. Contract Code § 10410.) b. No state officer or employee may contract on his or her own behalf as an independent consultant with any state agency to provide goods or services. (Pub. Contract Code § 10410.) c. For the two-year period from the date he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-making process relevant to the contract while employed in any capacity by any state agency. (Pub. Contract Code §10411.) d. For the twelve-month period from the date he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in a policy-making position in the same general subject area as the proposed contract within the 12- month period prior to his or her leaving state service. (Pub. Contract Code §10411.) 10. LABOR CODE/WORKERS' COMPENSATION: Contractor acknowledges its awareness of the provisions which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with law, and Contractor agrees to comply with such provisions before commencing the performance of the work of this Agreement. (Labor Code Section 3700.) 11. AMERICANS WITH DISABILITIES ACT: Contractor certifies that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) 12. AIR OR WATER POLLUTION VIOLATION: Contractor agrees that it shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to a cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. 13. TRENCHING: If the Contract Price exceeds $25,000 and involves the excavation of any trench(es) five feet or more in depth, the Contractor shall submit to Owner/Client or its designated engineer, in advance of excavation, a detailed plan showing design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer. (Labor Code Sections 6705.) 14. OTHER REQUIRED LABOR CODE CITATIONS: a. Prevailing Wages; Certified Payrolls. The project is subject to State prevailing wage and certified payroll requirements, and Contractor shall comply with the requirements of Labor Code Sections 1774 through 1776. Contractor shall pay not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. Copies of the prevailing rate of per diem wages are on file at the principal office of the Program Manager (on behalf of Owner/Client) and shall be made available to any interested party upon request. b. Eight Hour Work Day. In accordance with the provisions of Labor Code Section 1810, eight (8) hours of labor shall constitute a legal day's work upon all work done hereunder, and Contractor and any subcontractor or subconsultant employed under this Agreement shall conform to and be bound by the provisions of Labor Code Sections 1810 through 1815. Exhibit D – State Required Terms and Conditions Page 16 c. Apprentices. Contractor and its subcontractors and subconsultants shall comply with the requirements of Labor Code Section 1777.5 regarding employment of apprentices on the project. d. Recitations in Subcontracts. In its subcontracts, Contractor shall be required to recite the following provisions of the Labor Code: Sections 1771, 1775, 1776, 1777.5, and 1815. Exhibit D – State Required Terms and Conditions Page 17 EXHIBIT E PLANS, SPECIFICATIONS AND OTHER CONSTRUCTION DOCUMENTS [attach list of all plans, specifications, and other construction documents to be furnished to Contractor by Owner/Client, with issuance dates] Exhibit E – Plans, Specifications and Other Construction Documents Page 18 EXHIBIT F PROJECT SCHEDULE Contractor shall achieve Substantial Completion by _________ ___, 20__, subject to extensions of time in accordance with the Agreement. The initial Project Schedule is attached hereto, and is subject to revision by Program Manager from time to time. Any revisions to the Project Schedule proposed by Contractor are subject to the approval of Program Manager. The Project Schedule includes a weather allowance of ___ calendar days. [attach Project Schedule] Exhibit E – Plans, Specifications and Other Construction Documents Page 19
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