CDC - Item 4A - Receive and File Contract for Synthetic Track Construction at Rosemead High SchoolROSEMEAD COMMUNITY
DEVELOPMENT COMMISSION
STAFF REPORT
TO: THE HONORABLE CHAIRMAN AND MEMBERS OF THE COMMUNITY
DEVELOPMENT COMMISSION
FROM: JEFF ALLRED, EXECUTIVE DIRECTOR
DATE: JUNE 22, 2010
SUBJECT: RECEIVE AND FILE CONTRACT FOR SYNTHETIC TRACK
CONSTRUCTION AT ROSEMEAD HIGH SCHOOL
SUMMARY
The Community Development Commission and El Monte Union High School District
(District) have a Memorandum of Understanding for the construction of a synthetic track
at Rosemead High School. The District is responsible for taking the lead on the project
which includes drafting the project scope, issuing a request for proposal, and making a
contractor selection.
In order to ensure that the best contractor was selected, the District issued a Request
for Qualifications and interviewed a number of construction firms interested in the
project. The City Manager was on the interview panel which reviewed all of the
proposals. Based on this process the District selected Ohno Construction Company
and entered into exclusive negotiations with them regarding the final cost and scope of
the project. From these negotiations, a complete contract scope was developed and a
Guaranteed Maximum Price was agreed upon. The Guaranteed Maximum Price of
$1,077,550.65 is well below the original $1.2 million estimate and the Commission's
portion of the project will be $646,530.39. It is anticipated that the project will conclude
in late August or early September for the start of the 2010-11 school year. Before the
Commission tonight are the Facility Lease and Site Lease agreements which have been
approved by the District.
Staff Recommendation
Staff recommends the Commission receive and file the Facility Lease and Site Lease
agreements that the District has executed to effect the construction of capital
improvement projects pursuant to the State Education Code.
ANALYSIS
Facility and site lease agreements are a method of developing major construction
projects that has become the norm for school district projects as permitted under the
State Education Code. Local governments typically use an RFP process for
construction programs where the contract is awarded to the lowest responsible bidder.
School districts operate under the State Education Code with differeft gptragfgj and v
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APPROVED FOR CITY COUNCIL AGENDA: LL~~ 11VV11 N
City Council Meeting
November 17, 2009
Paoe 2 of 2
bidding regulations and are able to select contractors through a request for
qualifications process in which contractors are selected based upon qualifications prior
to a final price being determined. This process allows a district to partner with the
contractor through a "lease/lease-back" contract to actively negotiate the final scope
and cost of the project with a concrete Guaranteed Maximum Price. Although the
contract is legally called a lease agreement, it should be clarified that the District will
maintain ownership of the track and the field site. This method has been very
successful in ensuring a fair price while greatly minimizing the need for change orders
and cost overruns.
FISCAL IMPACT
The Commission previously approved up to $800,000 for this project. Based on the
current agreement, the Commission's cost would be under $650,000.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Submitted by:
Yv-~Mpov f
Matthew E. Hawkesworth
Assistant City Manager
Attachments: A - Site Lease Agreement
B - Facility Lease Agreement
WHEN RECORDED RETURN TO:
Nick J. Salerno
El Monte Union High School District
3537 Johnson Avenue
El Monte, CA 91731
WITH A COPY TO:
This document is recorded for the benefit of the El Monte Union High School District, and
recording fee(s) are exempt under Government Code section 6103.
FACILITIES LEASE
For all or a portion of the following Project Site:
Rosemead High School
9063 Mission Avenue
El Monte, CA 91770
By and between
El Monte Union High School District
3537 Johnson Avenue
El Monte, CA 91731
And
Ohno Construction Company
16174 Boyle Avenue
Fontana, CA 92337
Dated as of May 6, 2010
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FACILITIES LEASE
This facilities lease ("Facilities Lease"), dated as of May 6, 2010 ("Effective Date"), is made and
entered into by and between Ohno Construction Company ("Developer"), a California
corporation duly organized and existing under the laws of the State of California, as sublessor,
and El Monte Union High School District, a school district duly organized and validly existing
under the laws of the State of California, as sublessee ("District') (together, the "Parties").
RECITALS
WHEREAS, on the date hereof, the District has leased. to Developer, a parcel of land
particularly described in Exhibit "°A" ("School Site") attached hereto and incorporated herein by
reference, and on which is located Rosemead High School; and
WHEREAS, the District desires to provide for construction of a new synthetic running track,
("Project') as more particulularly set forth in the Construction Documents; and Specification
Section 0101; and
WHEREAS, the District has determined that a portion of the School Site is adequate to
accommodate the Project, as more particularly described in Exhibit "B" ("Project Site")
attached hereto and incorporated herein by reference; and
WHEREAS, the District has retained Alsaleh Project Management, Inc., to serve as
Construction Manager, and in that capacity is the authorized Project representative for the
District on the Project; and
WHEREAS, District and Developer have executed a site lease at the same time as this
Facilities Lease whereby the District is leasing the Project Site to the Developer ("Site Lease");
and
WHEREAS, Developer represents that it has the expertise and experience to perform the
services set forth in this Facilities Lease; and
WHEREAS, Developer has reviewed the Lease Documents; and
WHEREAS, the District is authorized under Section 17406 of the Education Code of the
State of California to lease the Project Site to Developer and to have Developer develop and
construct the Project on the Project Site and to lease back to the District the Project Site and the
Project, and has duly authorized the execution and delivery of this Facilities Lease; and
WHEREAS, Developer is authorized to lease the Project Site as lessee and to develop the
Project and to have the Project constructed on the Project Site and to lease the Project and the
Project Site back to the District, and has duly authorized the execution and delivery of this
Facilities Lease; and
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WHEREAS, the Board of Education of the District (the "Board") has determined that it is in
the best interests of the District and for the common benefit of the citizens residing in the District
to construct the Project by leasing the Project Site to Developer and by simultaneously entering
into this Facilities Lease under which the District will lease back the Project Site and the Project
from Developer and if necessary, make Lease Payments; and
WHEREAS, the Parties have performed all acts, conditions and things required by law to
exist, to have happened and to have beeli. performed precedent to and in connection with the
execution and entering into of this Facilities Lease and all those conditions precedent do exist,
have happened and have been performed in regular and due time, form and manner as required
by law, and the Parties hereto are now duly authorized to execute and enter into this Facilities
Lease; and
WHEREAS, the District further acknowledges and agrees that it has entered into the Site
Lease and the Facilities Lease pursuant to Education Code Section 17406 as the best available
and most expeditious means for the District to satisfy its substantial need for the facilities to be
provided by the Project and to accommodate and educate District students and to utilize its
facilities proceeds expeditiously.
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained, the Parties hereto do hereby agree as follows:
1. Definitions. In addition to the terms and entities defined above or subsequent provisions
defined herein, and unless the context otherwise requires, the terms defined in this section
shall, for all purposes of this Facilities Lease, have the meanings herein specified.
1.1. "Developer" or "Lessor" means Ohno Construction Company, a California
corporation, organized and existing under the laws of the State of California, and its
successors and assigns.
1.2. "Developer's Representative" means the Managing Member of Developer, or any
person authorized to act on behalf of Developer under or with respect to this Facilities Lease.
1.3. "Contract Documents" are defined in Exhibit D to this Facilities Lease.
1.4. "District" or "Lessee" means the El Monte Union High School District, a school
district duly organized and existing under the laws of the State of California.
1.5. "District Representative" means the Superintendent of the District, or any other
person authorized by the Board of Education of the District to act on behalf of the District
under or with respect to this Facilities Lease.
1.6. "Permitted Encumbrances" means, as of any particular time:
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1.6.1. Liens for general ad valorem taxes and assessments, if any; not then delinquent, or
which the District may permit to remain unpaid;
1.6.2. The Project Site lease;
1.6.3. This Facilities Lease,
1.6.4. Easements, rights of way, mineral rights, drilling rights and other rights,
reservations, covenants, conditiong or restrictions which exist of record as of the date of
this Facilities Lease.
1.6.5. Easements, rights of way, mineral rights, drilling rights and other rights,
reservations, covenants, conditions or restrictions established following the date of
recordation of this Facilities Lease and to which Developer and the District consent in
writing which will not impair or impede the operation of the Project Site; and
2. Exhibits. The following Exhibits are attached to and by reference incorporated and made a
part of this Facilities Lease:
2.1. Exhibit A - Legal Description Of The School Site: The descriptions of the real
property constituting the School Site.
2.2. Exhibit B - Legal Description Of The Project Site And Description Of The
Project: The description of the Project Site and the Project,
2.3. Exhibit C - Guaranteed Maximum Price and Other Project Cost, Funding, and
Payment Provisions: A detailed description of the Guaranteed Maximum Price and the
provisions related to the payment of that amount to the Developer.
2.4. Exhibit D - General Construction Provisions: The provisions generally describing
the Project's construction.
2.5. Exhibit E - Memorandum Of Commencement Date: The Memorandum which
will memorialize the commencement and expiration dates of the Term.
2.6. Exhibit F - Construction Schedule [To be attached when available.]
2.7. Exhibit G - Schedule of Values [To be attached when available.]
3. Lease of Project and Project Site.
3.1. Developer hereby leases the Project and the Project Site to the District, and the
District hereby leases said Project and Project Site from Developer upon the terms and
conditions set forth in this Facilities Lease.
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3.2. The leasing by Developer to the District of the Project Site shall not affect or result in
a merger of the District's leasehold estate pursuant to this Facilities Lease and its fee estate as
lessor under the Site Lease. Developer shall continue to have and hold a leasehold estate in
the Project Site pursuant to the Site Lease throughout the term thereof and the term of this
Facilities Lease.
3.3. As to the Project Site, this Facilities Lease shall be deemed and constitute a sublease.
4. Term.
4.1. Facilities Lease is Legally Binding. This Facilities Lease is legally binding on the
Parties upon execution by the Parties and the District Board's approval of this Facilities
Lease. The Term of this Facilities Lease for the purposes of District's obligation to make
Lease Payments shall commence on the earlier of the following two (2) events
("Commencement Date") and shall terminate (the "Term"):
4.1.1. The date the District takes beneficial occupancy of the Project; or
4.1.2. The date when Developer delivers possession of the Project to District and when
all improvements to be provided by Developer are determined by the District to be
completed as set forth in Exhibit D to this Facilities Lease.
4.2. After the District has accepted the Project, the Parties shall execute the Memorandum
of Commencement Date attached hereto as Exhibit E to memorialize the commencement
and expiration dates of the Term. Notwithstanding this Term, the Parties hereby
acknowledge that each has obligations, duties, and rights under this Facilities Lease that exist
upon execution of this Facilities Lease and prior to the beginning of the Term.
4.3. The Tenn may be extended or shortened upon the occurrence of the earliest of any of
the following events, which shall constitute the end of the Term:
4.3.1. An Event of Default by District as defined herein and Developer's election to
terminate this Facilities Lease as permitted herein, or
4.3.2. An Event of Default by Developer as defined herein and District's election to
terminate this Facilities Lease as permitted herein, or
4.3.3.' Consummation of the District's purchase option pursuant to the Guaranteed
Maximum Price and Other Project Cost, Funding, and Payment Provisions indicated in
Exhibit C ("Guaranteed Maximum Price Provisions").
4.3.4. A third-party taking of the Project under Eminent Domain, only if the Term is
ended as indicated more specifically herein.
4.3.5. Damage or destruction of the Project, only if the Term is ended as indicated more
specifically herein.
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5. Payment. In consideration for the lease of the Project Site by the Developer back to the
District and for other good and valuable consideration, the District shall make all necessary
payments pursuant to the Guaranteed Maximum Price Provisions indicated in Exhibit C.
6. Termination; Lease Terminable Only As Set Forth Herein.
6.1. Except as otherwise expressly provided in this Facilities Lease, this Facilities Lease
shall not terminate, nor shall District have any right to terminate this Facilities Lease or be
entitled to the abatement of any all necessary payments pursuant to the Guaranteed
Maximum Price Provisions indicated in Exhibit C or any reduction thereof The obligations
hereunder of District shall not be otherwise affected by reason of any damage to or
destruction of all or any part of the Project; the taking of the Project or any portion thereof by
condemnation or otherwise; the prohibition, limitation or restriction of District's use of the
Project; the interference with such use by any private person or Developer; the District's
acquisition of the ownership of the Project (other than pursuant to an express provision of
this Facilities Lease); any present or future law to the contrary notwithstanding. It is the
intention of the Parties hereto that all necessary payments pursuant to the Guaranteed
Maximum Price Provisions indicated in Exhibit C shall continue to be payable in all events,
and the obligations of the District hereunder shall continue unaffected unless the requirement
to pay or perform the same shall be terminated or modified pursuant to an express provision
of this Facilities Lease.
6.2. Nothing contained herein shall be deemed a waiver by the District of any rights that it
may have to bring a separate action with respect to any Event of Default by Developer
hereunder or under any other agreement to recover the costs and expenses associated with
that action. The District covenants and agrees that it will remain obligated under this
Facilities Lease in accordance with its terms.
6.3. Following completion of the Project, that the District will not take any action to
terminate, rescind or avoid this Facilities Lease, notwithstanding the bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding-up or other
proceeding affecting Developer or any assignee of Developer in any such proceeding, and
notwithstanding any action with respect to this Facilities Lease which may be taken by any
trustee or receiver of Developer or of any assignee of Developer in any such proceeding or
by any court in any such proceeding. Following completion of the Project, except as
otherwise expressly provided in this Facilities Lease, District waives all rights now or
hereafter conferred by law to quit, terminate or surrender this Facilities Lease or the Project
or any part thereof.
6.4. District acknowledges that Developer may assign an interest in some or all of the
necessary payments pursuant to the Guaranteed Maximum Price Provisions indicated in
Exhibit C to a lender in order to obtain financing for the cost of constructing the Project and
that the lender may rely on the foregoing covenants and provisions in connection with such
financing.
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7. Title.
7.1. During the Term of this Facilities Lease, the District shall hold fee title to the School
Site, including the Project Site, and nothing in this Facilities Lease or the Site Lease shall
change, in any way, the District's ownership interest.
7.2. During the Term of this Facilities Lease, Developer shall have a leasehold interest in
the Project Site pursuant to the Site Lease.
7.3. During the Term of this Facilities Lease, the Developer shall hold title to the Project
improvements provided by Developer which comprise fixtures, repairs, replacements or
modifications thereto.
7.4. If the District exercises its Purchase Option pursuant the Guaranteed Maximum Price
Provisions indicated in Exhibit C or if District makes all necessary payments under the
Guaranteed Maximum Price Provisions indicated in Exhibit C, all right, title and interest of
Developer, its assigns and successors in interest in and to the Project and the Project Site
shall be transferred to and vested in the District at the end of the Term. Title shall be
transferred to and vested in the District hereunder without the necessity for any further
instrument of transfer; provided, however, that Developer agrees to execute any instrument
requested by District to memorialize the termination of this Facilities Lease and transfer of
title to the Project.
8. Quiet Enjoyment. Upon District's possession of the Project, Developer shall thereafter
provide the District with quiet use and enjoyment of the Project, and the District shall during
the Term peaceably and quietly have and hold and enjoy the Project, without suit, trouble or
hindrance from Developer, except as otherwise may be set forth in this Facilities Lease.
Developer will, at the request of the District and at Developer's cost, join in any legal action
in which the District asserts its right to such possession and enjoyment to the extent
Developer may lawfully do so. Notwithstanding the foregoing, Developer shall have the
right to inspect the Project and the Project Site as provided herein.
9. Representations of the District. The District represents, covenants and warrants to the
Developer as follows:
9.1. Due Organization and Existence. The District is a school district, duly organized
and existing under the Constitution and laws of the State of California.
9.2. Authorization. The District has the full power and authority to enter into, to execute
and to deliver this Facilities Lease, and to perform all of its duties and obligations hereunder,
and has duly authorized the execution of this Facilities Lease.
9.3. No Violations. Neither the execution and delivery of this Facilities Lease nor the
Site Lease, nor the fulfillment of or compliance with the terms and conditions hereof or
thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts
with or results in a breach of the terms, conditions or provisions of any restriction or any
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agreement or instrument to which the District is now a party or by which the District is
bound, or constitutes a default under any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets
of the District, or upon the Project Site, except Permitted Encumbrances
9.4. Condemnation Proceedings.
9.4.1. District covenants and agrees, but only to the extent that it may lawfully do so,
that so long as this Facilities Lease -remains in effect, the District will not seek to exercise
the power of eminent domain with respect to the Project so as to cause a full or partial
termination of this Facilities Lease.
9.4.2. If for any reason the foregoing covenant is determined to be unenforceable or in
some way invalid, or if District should fail or refuse to abide by such covenant, then, to
the extent it may lawfully do so, District agrees that the financial interest of Developer
shall be as indicated in Section 6.1 of this Facilities Lease.
10. Representations of the Developer. The Developer represents, covenants and warrants to
the District as follows:
10.1. Due Organization and Existence. The Developer is a California company duly
organized and existing under the laws of the State of California, has the power to enter into
this Facilities Lease and the Site Lease; is possessed of full power to lease, lease back, and
hold real and personal property and has duly authorized the execution and delivery of all of
the aforesaid agreements.
10.2. Authorization. Developer has the full power and authority to enter into, to execute
and to deliver this Facilities Lease, and to perform all of its duties and obligations hereunder,
and has duly authorized the execution of this Facilities Lease.
10.3. No Violations. Neither the execution and delivery of this Facilities Lease and the
Site Lease, nor the fulfillment of or compliance with the terms and conditions hereof or
thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts
with or results in a breach of the terms, conditions or provisions of any restriction or any
agreement or instrument to which Developer is now a party or by which Developer is bound,
or constitutes a default under any of the foregoing, or results in the creation or imposition of
any lien, charge or encumbrance whatsoever upon any of the property or assets of Developer,
or upon the Project Site, except Permitted Encumbrances.
10.4. No Bankruptcy. Developer is not now nor has it ever been in bankruptcy or
receivership.
10.5. No Encumbrances. Developer shall not pledge any District payments of any kind,
related to the Site Lease, this Facilities Lease, or in any way derived from the Project Site,
and shall not mortgage or encumber the Project Site, except as may be specifically permitted
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pursuant to the provisions of this Facilities Lease related to Developer's financing the
construction of the project.
10.6. Continued Existence. Developer shall not voluntarily commence any act intended to
dissolve or terminate the legal existence of Developer, at or before the latest of the following:
10.6.1. Eighteen (18) months following completion of the Project,
10.6.2. After dismissal and final resolution of any and all disputes between the Parties
and/or any third-party claims related, in any way, to the Project,
While the lease documents are in effect, Developer shall give District sixty (60) days written
notice prior to dissolving or terminating the legal existence of Developer.
11. Construction Of Project
11.1. Construction of Project.
11.1.1. Developer agrees to cause the Project to be developed, constructed, and installed
in accordance with the terms hereof and the Construction Provisions set forth in Exhibit
D, including those things reasonably inferable from the Contract Documents as being
within the scope of the Project and necessary to produce the stated result even though no
mention is made in the Contract Documents.
11.1.2. Contract Time / Construction Schedule. It is hereby understood and agreed
that the Contract Time for this Project shall be 570 days from the date of the issuance of
the Notice to Proceed. ("Contract Time") The Construction Schedule must be approved
by the District.
11.1.3. Schedule of Values. The Developer has provided a schedule of values, approved
by the District, which attached hereto as Exhibit G ("Schedule of Values"). The
Construction Schedule must be approved by the District.
11.1.4. Liquidated Damages:
Time is of the essence for all work Developer must perform to complete the Project. It is
hereby understood and agreed that it is and will be difficult and/or impossible to ascertain
and determine the actual damage that the District will sustain in the event of and by
reason of Developer's delay; therefore, Developer agrees that it shall pay to the District
the sum of five thousand dollars ($5,000) per day as liquidated damages for each and
every day's delay beyond the Contract Time.
11.1.4.1. It is hereby understood and agreed that this amount is not a penalty.
11.1.4.2. In the event any portion of the liquidated damages is not paid to the
District, the District may deduct that amount from any money due or that may
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become due the Developer under this Facilities Lease. The District's right to assess
liquidated damages is as indicated herein and in Exhibit D.
11.1.4.3. The time during which the construction of the Project is delayed for cause
as hereinafter specified may extend the time of completion for a reasonable time as
the District may grant. This provision does not exclude the recovery of damages for
delay by either party under other provisions in the Facilities Lease
11.1.5. Guaranteed Maximum ;Price. Developer will cause the Project to be
constructed within the Guaranteed Maximum Price as set forth and defined in the
Guaranteed Maximum Price Provisions indicated in Exhibit C and Developer will not
seek additional compensation from District in excess of that amount.
11.1.6. Modifications. If the DSA requires changes to the Contract Documents
submitted by District to Developer, and those changes change the construction costs
and/or construction time for the Project, then those changed costs will be handled as a
Modification pursuant to the provisions of Exhibit D.
12. Maintenance. Following delivery of possession of the Project by Developer to District, the
repair, improvement, replacement and maintenance of the Project and the Project Site shall
be at the sole cost and expense and the sole responsibility of the District, subject only to all
warranties against defects in materials and workmanship of Developer as provided in Exhibit
D. The District shall pay for or otherwise arrange for the payment of the cost of the repair
and replacement of the Project resulting from ordinary wear and tear. The District waives the
benefits of subsections 1 and 2 of Section 1932 of the California Civil Code, but such waiver
shall not limit any of the rights of the District under the terms of this Facilities Lease.
13. Utilities. Following delivery of possession of the Project by Developer to District, the cost
and expenses for all utility services, including, but not limited to, electricity, natural gas,
telephone, water, sewer, trash removal, cable television, janitorial service, security, heating,
water, intemet service and all other utilities of any type shall be paid by District.
14. Taxes and Other Impositions. All ad valorem real property taxes, special taxes, possessory
interest taxes, bonds and special lien assessments or other impositions of any kind with
respect to the Project, the Project Site and the improvements thereon, charged to or imposed
upon either Developer or the District or their respective interests or estates in the,Project,
shall at all times be paid by District. In the event any possessory interest tax is levied on
Developer, its successors and assigns, by virtue of this Facilities Lease or the Site Lease,
District shall pay such possessory interest tax directly, if possible, or shall reimburse
Developer, its successors and assigns for the full amount thereof within thirty (30) days after
presentation of proof of payment by Developer.
15. Insurance
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15.1. Developer's Insurance. The Developer shall comply' with the insurance
requirements as indicated in Exhibit D.
15.1.1. Commercial General Liability and Automobile Liability Insurance
Developer shall procure and maintain, during the life of the Project, Commercial General
Liability Insurance and Automobile Liability Insurance that shall protect Developer;
District, its consultants, State, Construction Manager, its consultants, and Project
Inspector(s) from all claims for bodily injury, property damage, personal injury, death,
advertising injury, and medical payments arising from operations under the Project.
Developer shall ensure that Products Liability and Completed Operations coverage, Fire
Damage Liability, and Any auto including owned and non-owned, are included within the
above policies and at the required limits, or Developer shall procure and maintain these
coverages separately.
15.1.2.
15.1.3. Umbrella Liability Insurance
15.1.3.1. Developer may procure and maintain, during the life of the Project, an
Umbrella Liability Insurance Policy to meet the policy limit requirements of the
required policies if Developer's underlying policy limits are less than required.
15.1.3.2. There shall be no gap between the per occurrence amount of any
underlying policy and the start of the coverage under the Umbrella Liability Insurance
Policy. Any Umbrella Liability Insurance Policy shall protect Developer, District,
State, Construction Manager(s), and Project Manager(s) in amounts and including the
provisions and requirements for Commercial General Liability and Automobile
Liability and Employers' Liability Insurance.
15.1.4. Subcontractor: Developer shall require its Subcontractor(s), if any, to procure
and maintain Commercial General Liability Insurance, Automobile Liability Insurance,
and Umbrella Liability Insurance with minimum limits equal to the amount required of
the Developer.
15.1.5. Workers' Compensation and Employers' Liability Insurance
15.1.5.1. In accordance with provisions of section 3700 of the California Labor
Code, the Developer and every Subcontractor shall be required to secure the payment
of compensation to its employees.
15.1.5.2. Developer shall procure and maintain, during the life of the Project,
Workers' Compensation Insurance and Employers' Liability Insurance for all of its
employees engaged in work under the Project, on/or at the Site of the Project. This
coverage shall cover, at a minimum, medical and surgical treatment, disability
benefits, rehabilitation therapy, and survivors' death benefits. Developer shall require
its Subcontractor(s), if any, to procure and maintain Workers' Compensation
Insurance and Employers' Liability Insurance for all employees of Subcontractor(s).
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Any class of employee or employees not covered by a Subcontractor's insurance shall
be covered by Developer's insurance. If any class of employee or employees
engaged in Work under the Project, on or at the Site of the Project, are not protected
under the Workers' Compensation Insurance, Developer shall provide, or shall cause
a Subcontractor to provide, adequate insurance coverage for the protection of any
employee(s) not otherwise protected before any of those employee(s) commence
work.
15.1.6. Developer's Risk Insurance: Developer's Risk "All Risk" Insurance.
Developer shall procure and maintain, during the life of the Project, Developer's Risk
(Course of Construction), or similar first party property coverage acceptable to the
District, issued on a replacement cost value basis. The cost shall be consistent with the
total replacement cost of all insurable Work of the Project included within the Contract
Documents. Coverage is to insure against all risks of accidental physical loss and shall
include without limitation the perils of vandalism and/or malicious mischief (both
without any limitation regarding vacancy or occupancy), sprinkler leakage, civil
authority, sonic disturbance, earthquake, flood, collapse, wind, fire, war, terrorism,
lightning, smoke, and rioting. Coverage shall include debris removal, demolition,
increased costs due to enforcement of all applicable ordinances and/or laws in the repair
and replacement of damaged and undamaged portions of the property, and reasonable
costs for expenses required as a result of any insured loss upon the Work and Project,
including completed Work and Work in progress, to the full insurable value thereof.
15.1.7. Proof of Carriage of Insurance and Other Requirements: Endorsements and
Certificates
15.1.7.1. Developer shall not commence Work nor shall it allow any Subcontractor
to commence Work under the Project, until Developer and its Subcontractor(s) have
procured all required insurance and Developer has delivered in duplicate to the
District complete endorsements (or entire insurance policies) and certificates
indicating the required coverages have been obtained, and the District has approved
these documents.
15.1.7.2. Endorsements, certificates, and insurance policies shall include the
following:
15.1.7.2.1. A clause stating:
"This policy shall not be amended, canceled or modified and the
coverage amounts shall not be reduced until notice has been mailed to
District, and Construction Manager stating date of amendment,
modification, cancellation or reduction. Date of amendment,
modification, cancellation or reduction may not be less than thirty (30)
days after date of mailing notice."
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15.1.7.2.2. Language stating in particular those insured; extent of insurance,
location and operation to which insurance applies, expiration date, to whom
cancellation and reduction notice will be sent, and length of notice period.
15.1.7.3. All endorsements, certificates and insurance policies shall state that
District, its Education, employees and agents, the State of California, Construction
Manager(s), Project Manager(s), and Inspector(s) are named additional insureds
under all policies except Workers' Compensation Insurance and Employers' Liability
Insurance.
15.1.7.4. Developer's and Subcontractors' insurance policy(s) shall be primary and
non-contributory to any insurance or self-insurance maintained by District, its
Education, employees and/or agents, the State of California, Construction
Manager(s), Project Manager(s), ans Inspector(s).
15.1.7.5. All endorsements shall waive any right to subrogation against any of the
named additional insureds.
•15.1.7.6. All policies shall be written on an occurrence form.
15.1.7.7. All of Developer's insurance shall be with insurance companies with an
A.M. Best rating of no less than A: XI.
15.1.8. Insurance Policy Limits. The limits of insurance shall not be less than the
following amounts:
Commercial General
Combined Single
$4,000,000
Liability
Limit
Product Liability and
$4,000,000
Completed operations
Automobile Liability -
Combined Single
$4,000,000
Any Auto
Limit
Workers Compensation
Statutory limits pursuant
to State law
Employers' Liability
$4,000,000
Developers Risk (Course
Issued for the value and
of Construction)
scope of Work indicated
herein.
The limits of insurance for those subcontractors whose scope of work does not exceed ten
percent of the Guaranteed Project Cost shall not be less than the following amounts:
Commercial General Combined Single $2,000,000
Liability Limit
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El Monte Union School District & Ohno Construction Company
Product Liability and
$2,000,000
Com leted O rations
Automobile Liability -
Combined Single
$2,000,000
Any Auto
Limit
Workers Compensation
Statutory limits pursuant
to State law
Employers' Liability
$2,000,000
Notwithstanding anything in this Facilities Lease to the contrary, the above insurance
requirements may be modified as appropriate for Subcontractors, with District's prior
written approval.
15.2. District's Insurance.
15.2.1. Rental Interruption Insurance. District shall at all times from and after
District's acceptance of the Project, for the benefit of District and Developer, as their
interests may appear, rental interruption insurance to cover loss, total or partial, of the use
of the Project due to damage or destruction, in an amount at least equal to the maximum
estimated Lease Payments payable under this Facilities Lease during the current or any
future twenty-four (24) month period. This insurance may be maintained as part of or in
conjunction with any other insurance coverage carried by the District, and such insurance
may be maintained in whole or in part in the form of participation by the District in a
joint powers agency or other program providing pooled insurance. This insurance may
not be maintained in the form of self-insurance. The proceeds of this insurance shall be
paid to the Developer.
'15.2.2. Property Insurance. District shall at all times from and after District's
acceptance of the Project, carry and maintain in force a policy of property insurance for
100% of the insurable replacement value with no coinsurance penalty, on the Project Site
and the Project, together with all improvements thereon, under a standard "all risk"
contract insuring against loss or damage. Developer shall be named as additional
insureds or co-insureds thereon by way of endorsement. District shall not be relieved
from the obligation of supplying any additional funds for replacement of the Project and
the improvements thereon in the event of destruction or damage where insurance does not
cover replacement costs. District shall have the right to procure the required insurance
through a joint powers agency or to self-insure against such losses or portion thereof as is
deemed prudent by District.
16. Indemnification.
16.1. Developers Indemnity Obligation. The Developer shall indemnify, defend with
legal counsel reasonably acceptable to the District, keep and hold harmless the District and
its consultants, the Construction Manager and its consultants, separate contractors, and their
respective board members, officers, representatives, contractors, agents, and employees, in
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El Monte Union School District & Ohno Construction Company
both individual and official capacities ("Indemnitees"), against all suits, claims, damages,
losses, and expenses, caused by, arising out of, resulting from, or incidental to, the
performance of the Work under this Contract by the Developer or its Subcontractors to the
full extent allowed by the laws of the State of California, and not to any extent that would
render these provisions void or unenforceable, including, without limitation, any such suit,
claim, damage, loss, or expense attributable to, without limitation, bodily injury, sickness,
disease, death, alleged patent violation or copyright infringement, or to injury to or
destruction of tangible property (including damage to the Work itself) including the loss of
use resulting therefrom, except to the extent caused wholly by the sole negligence or willful
misconduct of the Indemnitees. This agreement and obligation of the Developer shall not be
construed to negate, abridge, or otherwise reduce any right or obligation of indemnity that
would otherwise exist as to any party or person described herein. This indemnification,
defense, and hold harmless obligation includes any failure or alleged failure by Developer to
comply with any provision of law or the Contract Documents, including, without limitation,
any stop notice actions, or liens by the California Department of Labor Standards
Enforcement.
16.1.1. The Developer shall give prompt notice to the District/Construction Manager in
the event of any injury (including death), loss, or damage included herein. Without
limitation of the provisions herein, if the Developer's agreement to indemnify, defend,
and hold harmless the Indemnitees as provided herein against liability for damage arising
out of bodily injury to persons or damage to property caused by or resulting from the
negligence of any of the Indemnitees shall to any extent be or be determined to be void or
unenforceable, it is the intention of the parties that these circumstances shall not
otherwise affect the validity or enforceability of the Developer's agreement to indemnify,
defend, and hold harmless the rest of the Indemnitees, as provided herein, and in the case
of any such suits, claims, damages, losses, or expenses caused in part by the default,
negligence, or act or omission of the Developer, any Subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable,
and in part by any of the Indemnitees, the Developer shall be and remain fully liable on
its agreements and obligations herein to the full extent permitted by law.
16.1.2. In any and all claims against any of the Indemnitees by any employee of the
Developer, any Subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, the Developer's indemnification
obligation herein shall not be limited in any way by any limitation on the amount or type
of damages, compensation, or benefits payable by or for the Developer or any
Subcontractor under workers' compensation acts, disability benefit acts, or other
employee benefit acts.
16.2. District's Indemnity Obligation. District shall indemnify, defend and hold
harmless Developer and Developer's officers, directors, shareholders, partners, members,
agents and employees from and against any claims, damages, costs, expenses, judgments or
liabilities connected with this Facilities Lease, including, without limitation claims, damages,
expenses, or liabilities for loss or damage to any property or for death or injury to any person
or persons, only to the extent that those claims, damages, expenses, judgments or liabilities
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El Monte Union School District & Ohno Construction Company
arise from the negligence or willful acts or omissions of District;' its officers, agents or
employees at the Project.
17. Eminent Domain.
17.1. Total Taking After Project Delivery. If, following delivery of possession of the
Project by Developer to District, all of the Project and the Project Site is taken permanently
under the power of eminent domain, the Term shall cease as of the day possession shall be so
taken.
17.1.1. The financial interest of Developer shall be limited to the amount of principal
payments pursuant to the Guaranteed Maximum Price Provisions indicated in Exhibit C
that are then due or past due together with all remaining and succeeding principal
payments pursuant to the Guaranteed Maximum Price Provisions indicated in Exhibit C
for the remainder of the original Term. For example, if all of the Project and the Project
Site is taken at the end of the 3rd year of the Term, Developer shall be entitled to receive
from the eminent domain award the sum of all principal payments pursuant to the
Guaranteed Maximum Price Provisions indicated in Exhibit C that would have been
owing for the 4a' year through the end of the Term had there been no taking.
17.1.2. The balance of the award, if any, shall be paid to the District.
17.2. Total Taking Prior to Project Delivery. If all of the Project and the Project Site is
taken permanently under the power of eminent domain and the Developer is still performing
the work of the Project and has not yet delivered possession of the Project to District, the
Term shall cease as of the day possession shall be so taken. The financial interest of
Developer shall be the amount Developer has expended to date for work performed on the
Project, subject to documentation reasonably satisfactory to the District.
17.3. Partial Taking. If, following delivery of possession of the Project by Developer to
District, less than all of the Project and the Project Site is taken permanently, or if all of the
Project and the Project Site or any part thereof is taken temporarily, under the power of
eminent domain,
17.3.1. This Facilities Lease shall continue in full force and effect and shall not be
terminated by virtue of that partial taking and the Parties waive the benefit of any law to
the contrary, and
17.3.2. There shall be a partial abatement of any principal payments pursuant to the
Guaranteed Maximum Price Provisions indicated in Exhibit C as a result of the
application of the net proceeds of any eminent domain award to the prepayment of those
payments hereunder. The Parties agree to negotiate, in good faith, for an equitable split
of the net proceeds of any eminent domain award and a corresponding reduction in the
payments required pursuant to the Guaranteed Maximum Price Provisions indicated in
Exhibit C, and
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18. Damage and Destruction. If, following delivery of possession of the Project by Developer
to District, the Project is totally or partially destroyed due to fire, acts of vandalism, flood,
storm, earthquake, Acts of God; or other casualty beyond the control of either party hereto,
the Term shall end and District shall still no longer be required to make any payments
required pursuant to the Guaranteed Maximum Price Provisions indicated in Exhibit C that
are then due or past due or any remaining and succeeding principal payments pursuant to the
Guaranteed Maximum Price Provisions indicated in Exhibit C for. the remainder of the
original Term.
19. Abatement.
19.1. If, after the Parties have executed the Memorandum of Commencement Date attached
hereto as Exhibit E, the Project becomes destroyed or damaged beyond repair, the
District may determine its use of the Project abated. Thereafter, the District shall have no
obligation to make, nor shall the Developer have the right to demand, the Lease Payments as
indicated in the Guaranteed Maximum Price Provisions indicated in Exhibit C to this
Facilities Lease. The Term shall cease at that time.
19.2. The Parties hereby agree that the net proceeds of the District's rental interruption
insurance that the District must maintain during the Term, as required herein, shall constitute
a special fund for the payment of the Lease Payments indicated in the Guaranteed Maximum
Price Provisions indicated in Exhibit C.
19.3. The District shall as soon as practicable after such event, apply the net proceeds of its
insurance policy intended to cover that loss ("Net Proceeds"), either to:
19.3.1. Repair the Project to full use;
19.3.2. Replace the Project, at the District's sole cost and expense, with property of equal
or greater value to the Project immediately prior to the time of the destruction or damage,
with that replacement, once completed, shall be substituted in this Facilities Lease by
appropriate endorsement; or
19.3.3. Exercise the District's purchase option as indicated in the Guaranteed Maximum
Price Provisions indicated in Exhibit C to this Facilities Lease.
19.4. The District shall notify the Developer of which course of action it desires to take
within thirty (30) days after the occurrence of the destruction or damage. The Net Proceeds
of all insurance payable with respect to the Project shall-be available to the District and shall
be used to discharge the District's obligations under this Section.
20. Access
20.1. By Developer. Developer shall have the right at all reasonable times to enter upon
the Project Site to construct the Project pursuant to this Facilities Lease. Following the
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El Monte Union School District & Ohno Construction Company
acceptance of the Project by District, Developer may enter the Project at reasonable times
with advance notice and arrangement with District for purposes of making any repairs
required to be made by Developer.
20.2. By District. The District shall have the right to enter upon the Project Site at all
times. District shall comply with all safety precautions and procedures required by
Developer.
21. Assignment, Subleasing
21.1. Assignment and Subleasing by the District. Any assignment or sublease by
District shall be subject to all of the following conditions:
21.1.1. This Facilities Lease and the obligation of the District to make the payments
required pursuant to the Guaranteed Maximum Price Provisions indicated in Exhibit C
shall remain obligations of the District; and
21.1.2. The District shall, within thirty (30) days after the delivery thereof, furnish or
cause to be furnished to Developer a true and complete copy of any assignment or
sublease; and
21.2. Assignment by Developer. Developer may assign its right, title and interest in this
Facilities Lease, in whole or in part to one or more assignees, only after the written consent
of District, which District will not unreasonably withhold. No assignment shall be effective
against the District unless and until the District has consented in writing. Notwithstanding
anything to contrary contained in this Facilities Lease, no consent from the District shall be
required in connection with any assignment by Developer to a lender for purposes of
financing the Project as long as there are not additional costs to the District.
22. Events Of Default of District
22.1. Events of Default by District Defined. The following shall be "Events of Default"
of the District under this Facilities Lease. The terms "Event of Default" and "Default" shall
mean, whenever they are used as to the District in the Site Lease or this Facilities Lease, shall
only be one or more of the following events:
22.1.1. Failure by the District to pay payments required pursuant to the Guaranteed
Maximum Price Provisions indicated in Exhibit C, and the continuation of such failure
for a period of forty-five (45) days.
22.1.2. Failure by the District to perform any material covenant, condition or agreement
in this Facilities Lease and that failure continues for a period of forty-five (45) days after
Developer provides District with written notice specifying that failure and requesting that
the failure be remedied; provided, however, if the failure stated in the notice cannot be
corrected within the applicable period, Developer shall not unreasonably withhold its
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El Monte Union School District & Ohno Construction Company
consent to an extension of such time if corrective action is instituted by the District
within the applicable period and diligently pursued until the default is corrected.
22.2. Remedies on DistricNs Default. If there has been an Event of Default on the
District's part, the Developer may exercise any and all remedies available pursuant to law or
granted pursuant to this Facilities Lease; provided, however, there shall be no right under any
circumstances to accelerate any of the payments required pursuant to the Guaranteed
Maximum Price Provisions indicated in Exhibit C or otherwise declare those payments not
then past due to be immediately due and payable.
22.2.1. Developer may rescind its leaseback of the Project Site to the District under this
Facilities Lease and re-rent the Project Site to another lessee for the remaining Term for
no less than the fair market value for leasing the Project Site, which shall be:
22.2.1.1: An amount determined by a mutually-agreed upon appraiser, or
22.2.1.2. If an appraiser cannot be agreed to, an amount equal to the mean between
a District appraisal and a Developer appraisal for the Project Site, both prepared by an
MAI-certified appraiser.
22.2.2. District's obligation to make the payments required pursuant to the Guaranteed
Maximum Price Provisions indicated in Exhibit C shall be:
22.2.2.1. Increased by the amount of costs, expenses, and damages incurred by the
Developer in re-renting the Project Site, and
22.2.2.2. Decreased by the amount of rent Developer receives in reletting the
Project Site.
22.2.3. The District agrees that the terms of this Facilities Lease constitute full and
sufficient notice of the right of Developer to re-rent the Project Site in the Event of
Default without effecting a surrender of this Facilities Lease, and further agrees that no
acts of Developer in performing a re-renting as permitted herein shall constitute a
surrender or termination of this Facilities Lease, but that, on the contrary, in the event of
an Event of Default by the District the right to re-rent the Project Site shall vest in
Developer as indicated herein.
22.3. District's Continuing Obligation. Unless there has been damage, destruction, a
Taking, or the Developer is in Default as indicated herein; the District shall continue to
remain liable for the payments required pursuant to the Guaranteed Maximum Price
Provisions indicated in Exhibit C and those amounts shall be payable to Developer at the
time and in the manner as therein provided.
22.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to Developer
is intended to be exclusive and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Facilities Lease or now or hereafter existing
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El Monte Union School District & Ohno Construction Company
at law or in equity. No delay or omission to exercise any right or power accruing upon any
Default shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle Developer to exercise any remedy reserved to it in this Article
9, it shall not be necessary to give any notice, other than such notice as may be required in
this Article or by law.
23. Events Of Default of Developer
23.1. Events of Default by Developer Defined. The following shall be "Events of
Default" of the Developer under this Facilities Lease. The terms "Event of Default" and
"Default" shall mean, whenever they are used as to the Developer in the Site Lease or this
Facilities Lease, shall only be one or more of the following events:
23.1.1.1. Developer unreasonably refuses or fails to prosecute the work on the
Project with such reasonable diligence as will accomplish its completion within the
time specified or any extension thereof, or unreasonably fails to complete said work
within that time;
23.1.1.2. Prior to completion of Project, Developer is adjudged a bankrupt, or files
for bankruptcy, or if it should make a general assignment for the benefit of its
creditors, or if a receiver should be appointed on account of its insolvency;
23.1.1.3. Developer persistently disregards applicable law as indicated in Exhibit
D, or otherwise be in violation of Exhibit D.
23.1.2. Failure by the Developer to perform any material covenant, condition or
agreement in this Facilities Lease and that failure continues for a period of forty-five (45)
days after District provides Developer with written notice specifying that failure and
requesting that the failure be remedied; provided, however, if the failure stated in the
notice cannot be corrected within the applicable period, District shall not unreasonably
withhold its consent to an extension of such time if corrective action is instituted by the
Developer within the applicable period and diligently pursued until the default is
corrected.
23.2. Remedies on Developer's Default. If there has been an Event of Default on the
Developer's part, the District may, without prejudice to any other right or remedy, terminate
the Site Lease and Facilities Lease.
23.2.1. If District terminates the Site Lease and the Facilities Lease pursuant to this
section, the Project Site and any improvements built upon the Project Site shall vest in
District upon termination of the Site Lease and Facilities Lease, and District shall
thereafter be required to pay only the principal amounts then due and owing pursuant to
the Guaranteed Maximum Price Provisions indicated in Exhibit C, less any damages
incurred by District due to Developer's Default.
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El Monte Union School District & Ohno Construction Company
23.2.2. The District shall retain all rights it possesses as indicated in Exhibit D including,
without limitation,
23.2.2.1. The right to assess liquidated damages due because of any project delay;
23.2.2.2. All rights the District holds to demand performance pursuant to the
Developer's required performance bond;
24. Notices. All notices, certificates or~other communications hereunder shall be sufficiently
given and shall be deemed to have been received five (5) days after deposit in the United
States mail in registered or certified form with postage fully prepaid or one (1) business day
after deposit with an overnight delivery service with proof of actual delivery:
If to District:
Nick J. Salerno
El Monte Union High School District
3537 Johnson Avenue
El Monte, CA 91731
Phone(626)444-9005
If to Developer:.
Ohno Construction Company
16174 Boyle Avenue
Fontana, CA 92337
Phone: (909) 356-5672
Fax: (909) 356-5673
With a copy to:
Dannis Woliver Kelley
71 Stevenson St., 19th Fl.
San Francisco, CA 94105
Telephone: 415-543-4111
Facsimile: 415-543-4384
The Developer and the District, by notice given hereunder, may designate different addresses to
which subsequent notices, certificates or other communications will be sent.
25. Binding Effect. This Facilities Lease shall inure to the benefit of and shall be binding upon
Developer and the District and their respective successors, transferees and assigns.
26. No Additional Waiver Implied by One Waiver. In the event any agreement contained in
this Facilities Lease should be breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so waived and shall no be deemed
to waive any other breach hereunder.
27. Severability. In the event any provision of this Facilities Lease shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof, unless elimination of such invalid provision
materially alters the rights and obligations embodied in this Facilities Lease or the Site Lease.
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El Monte Union School District & Ohno Construction Company
28. Amendments, Changes and Modifications. Except as to the termination rights of both
Parties as indicated herein, this Facilities Lease may not be amended, changed, modified,
altered or terminated without the written agreement of both Parties hereto.
29. Net-Net-Net Lease. This Facilities Lease shall be deemed and construed to be a "net-net-net
lease" and the District hereby agrees that all payments it makes pursuant to the Guaranteed
Maximum Price Provisions indicated in Exhibit C shall be an absolute net return to
Developer, free and clear of any expepses, charges or set-offs.
30. Execution in Counterparts. This Facilities Lease may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
31. Developer and District Representatives. Whenever under the provisions of this Facilities
Lease the approval of Developer or the District is required, or Developer or the District is
required to take some action at the request of the other, such approval or such request shall be
given for Developer by Developer's Representative and for the District by the District's
Representative, and any party hereto shall be authorized to rely upon any such approval or
request.
32. Applicable Law. This Facilities Lease shall be governed by and construed in accordance
with the laws of the State of California, and venued in the County within which the School
Site is located.
33. Attorney's Fees. If either party brings an action or proceeding involving the Property or to
enforce the terms of this Facilities Lease or to declare rights hereunder, each party shall bear
the cost of its own attorneys' fees.
34. Captions. The captions or headings in this Facilities Lease are for convenience only and in
no way define, limit or describe the scope or intent of any provisions or Sections of this
Facilities Lease.
35. Prior Agreements. This Facilities Lease and the corresponding Site Lease collectively
contain all of the agreements of the Parties hereto with respect to any matter covered or
mentioned in this Facilities Lease and no prior agreements or understanding pertaining to any
such matter shall be effective for any purpose.
36. Further Assurances. Parties shall promptly execute and deliver all documents and
instruments reasonably requested to give effect to the provisions of this Facilities Lease.
37. Recitals Incorporated. The Recitals set forth at the beginning of this Facilities Lease are
hereby incorporated into its terms and provisions by this reference.
38. Time of the Essence. Time is of the essence with respect to each of the terms, covenants,
and conditions of this Facilities Lease.
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39. Force Majeure. A party shall be excused from the performance of any obligation imposed
in this Facilities Lease and the exhibits hereto for any period and to the extent that a party is
prevented from performing such obligation, in whole or in part, as a result of delays caused
by the other party or third parties, a governmental agency or entity, an act of God, war,
terrorism, civil disturbance, forces of nature, fire, flood, earthquake, strikes or lockouts , and
such non performance will not be a default hereunder or a grounds for termination of this
Facilities Lease.
40. Interpretation. None of the Parties hereto, nor their respective counsel, shall be deemed the
drafters of this Facilities Lease for purposes of construing the provisions thereof The
language in all parts of this Facilities Lease shall in all cases be construed according to its
fair meaning, not strictly for or against any of the Parties hereto.
IN WITNESS WHEREOF, the Parties have caused this Facilities Lease to be executed by their
respective officers who are duly authorized, as of the Effective Date.
ACCEPTED AND AGREED on the date indicated below:
Dated: V 2010 Dated: Mbk-i ~7
2010
EL MONTE UNION HIGH ok wl W I 1
SCHOOL DISTRICT
By: i t By: z
Nick J. Salerno Ynvvwll
Title: Superintendent Title: ~/`[y~ ~y(
racemes cease: - Page22
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El Monte Union School District & Ohno Construction Company
STATE OF CALIFORNIA )
COUNTY OF SAN ~evnAtrdlvl0 ) ss.
On Mlh { 1~ 20 0 before me, the undersigned notary public,
personally appeared ~iL11AVd ~7LA}(]~IMVI
[ ] personally known to me; OR
[ f J proved to me on the basis'of satigfactory evidence;
to be the person(s) whose whole name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies)
and that by his/her/their signature(s)-on the instrument the person(s), or the entity upon behalf of
which the persons}acted, executed the instrument.
WITNESS my hand and official seal.
.
a. Z
- _ ASHLEY RENEE PANGAN
5
NCOMMPU, BLI C i1 187862ANl4
N SM B
N
'
SAN B
C
u
ERNANOIND C
DINrtY
Mr Couu. EM JAN. 30, 2014
Signature of Not
r acumes Lease:
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Cost Estimate
Item Description
Price
I
Mobilization & Direct Incidental Job Costs
$76
830.00
2
Overhead & Profit (15%)
,
3
Precoastruction (Design and Management)
$21,500.00
4
Survey
$10,000.00
5
Storm Water Pollution Prevention Plan ' .
$1
6329.93
6
Remove Existing Long Jump, Pole Vault, High Jump Paving
,
$2,766.07
7
Demolition
$22
409.73
8
Grading
,
$53,510.85
9
RecompactSubgmde
$7,681.35
10
Drainage
$37
99424
11
Concrete Curb w/ ACO 3000 Slot Drain at Track Radius
,
$22
702,18
12
Concrete Curbs '
,
$29
165.93
13
Concrete Safe Zone Q Outside Edge of Track
,
$33,196.03
14
Concrete Discus Pad
$1,454.95
15
Asphalt Paving
$140
845.13
16
,
Pam-in-Place, All-Weather, Synthetic Track Base Mat Structural Spray System $301
094.83
17
Vinyl Coated Chain Link Fencing and Gates
,
$48,318.93
18
Communication Boxes w/ Condims
$5,303.97
19
Jump Pits w/ Sand Catcher
$55,356.01
20 .
Hammer Throw/Discus Cage
$23
582.26
21
Field Event Equipment
,
$27
822.25
22
Restoration
,
$16,935.15
Total Base Bid
$940,099.78
Contingency (5%)
Alternates in Addition to Base Old
23
Pour-in-Place, All-Weather, Synthetic Track Sandwich System
$84,228.40*
24
Ameristar Tube Fencing at Track
$29
104.35*
25
Concrete Long/Triple Jump & Pole Vault Runways
,
$11
073.95*
26
Concrete Curb with ACO 3000 Slot Drain at Track/Field Edge
,
S13,071.37*
*Alternate pricing reflects additional costs added to base bid
Additive Options
27
Steeple Chase
S28
327.44
28
- Scoreboard - Fair Play FB-8132TK-2 (Allowance)
,
$40.151.10
29
Lynx Timing System (Gold Package)
$20
613.27
30
Asphalt Paving at Storage Buildiug
,
$10,078.94
31
ADA Concrete Path to Shotput Area
473.45
$3
32
Flag Poles
,
$6,185.41
Deductive Options
33
Asphalt Safe Zone in Lieu of Concrete
($19,196.60)
Savings Distribution Plan
If there are any unused amounts of the contingency, Ohm Construction will forgo any share of those amounts. The School District
may keep any amounts that remain unused.
EXHIBIT G
SCHEDULE OF VALUES
Attached is a detailed Schedule of Values that complies with the requirements of the
Construction Provisions (Exhibit "D") and that has been approved by the District.
[To be attached when available.]
Facilities Lease: - Page 31
A0914- Synthetic Running Track at Rosemead HS Project
El Monte Union School District & Ohno Construction Company
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EXHIBIT F
CONSTRUCTION SCHEDULE
Attached is a detailed Project Construction Schedule with a duration no longer than the
Contract Time, and with specific milestones that Developer shall meet.
Facilities Lease: Page 30
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union School District & Ohno Construction Company
EXHIBIT E
MEMORANDUM OF COMMENCEMENT DATE
This MEMORANDUM OF COMMENCEMENT DATE is dated May 6, 2010, and is made
by and between Ohno Construction Company ("Developer"), as Lessor, and the El Monte
Union High School District ("District"), as Lessee.
1. Developer and District have previously entered into a Facilities Lease dated as of May 6,
2010, (the "Lease") for the leasing by Developer to District of the Project Site and Project in El
Monte, California, referenced in the Lease.
2. District hereby confirms the following:
A. That all construction of the Project required to be performed pursuant to the Facilities
Lease has been completed by Developer in all respects;
B. That District has accepted and entered into possession of the Project and now
occupies same; and
C. That the term of the Facilities Lease commenced on May 24, 2010 and will expire at
11:59 P.M. on August 24, 2010.
THIS MEMORANDUM OF COMMENCEMENT DATE IS ACCEPTED AND AGREED
on the date indicated below:
Dated: / I //f' 2010 Dated: 2010
Ohno Construction Company
EL MONTE UNION HIGH
SCHOOL DISTRICT
By:
Nick J. Sale
Title: Superintendent Title
Facilities Lease:
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union School District & Ohno Construction Company
Mh9N1 N
Ace, wes-4m-f-
Page 29
END OF DOCUMENT
rxmmt "U" to Facilities Lease:
A0914-Synthetic Running Track at Rosemead HS Project
Page 63
El Monte Union High School District & Ohno Construction Company
27.1.3. Section 4553 of the Government Code states:
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 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.
27.1.4. Section 4554 of the Government Code states:
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.
27.1.5. Under this Article, "public purchasing body". is District and "bidder" is
Developer.
27.2 Excise Taxes
If, under Federal Excise Tax Law, any transaction hereunder constitutes a sale on which a
Federal Excise Tax is imposed and the sale is exempt from such Federal Excise Tax
because it is a sale to a State or Local Government for its exclusive use, District, upon
request, will execute documents necessary to show (1) that District is a political
subdivision of the State for the purposes of such exemption, and (2) that the sale is for the
exclusive use of District. No Federal Excise Tax for such materials shall be included in
any Guaranteed Maximum Price.
27.3 Taxes
Guaranteed Maximum Price is to include any and all applicable sales taxes or other taxes
that may be due in accordance with section 7051 of the Revenue and Taxation Code;
Regulation 1521 of the State Board of Equalization or any other tax code that, may be
applicable.
27.4 Shipments
All shipments must be F.O.B. destination to Site or approved sites, as indicated in the
Contract Documents. There must be no charge for containers, packing, unpacking,
drayage, or insurance. The total Guaranteed Maximum Price shall be all inclusive
(including sales tax) and no additional costs of any type will be considered.
Exhibit "D" to Facilities Lease: Page 62
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
Public Law 88-352, and all amendments thereto; Executive Order 11246, and all
administrative rules and regulations found to be applicable to Developer and
Subcontractor.
26.6.2. Special requirements for Federally Assisted Construction Contracts: During
the performance of this Contract, Developer agrees to incorporate in all subcontracts
the provisions set forth in Chapter 60-1.4(b) of Title 41 published in Volume 33 No.
104 of the Federal Register dated May 28, 1968.
26.7 Labor First Aid
Developer shall maintain emergency first aid treatment for Developer's workers on the
Project which complies with the Federal Occupational Safety and Health Act of 1970 (29
U.S.C. § 651 et seq.) and the California Occupational Safety and Health Act of 1973 (8
Cal. Code of Regs, § 1 et seq.).
27. MISCELLANEOUS
27.1 Assignment of Antitrust Actions
Although this project may not have been formally bid, the following provisions may
apply:
27.1.1. Section 7103.5(b) of the Public Contract Code states:
In entering into a public works contract or subcontract to supply goods, services, or
materials pursuant to a public works contract, the Developer or subcontractor offers
and agrees to assign to the awarding 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 (commending with Section 16700) of Part 2
of Division 7 of the Business and Professions Code), arising from purchases of goods,
made and become effective at the time the awarding body tenders final payment to
the Developer, without further acknowledgment by the parties.
27.1.2. Section 4552 of the Government Code states:
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.
Exhibit "D" to Facilities Lease: Page 61
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
be employed. The employment and training of each apprentice shall be in accordance
with the provisions of the apprenticeship standards and apprentice agreements under
which he/she is training.
26.5.5. Pursuant to Labor Code section 1777.5, if that section applies to this Contract
as indicated above, Developer and any Subcontractors employing workers in any
apprenticeable craft or trade in performing any Work under this Contract shall apply to
the applicable joint apprenticeship committee for a certificate approving the Developer
or Subcontractor under the applicable apprenticeship standards and fixing the ratio of
apprentices to journeymen employed in performing the Work.
26.5.6. Pursuant to Labor Code section 1777.5, if that section applies to this Contract
as indicated above, Developer and any Subcontractor may be required to make
contributions to the apprenticeship program.
26.5.7. If Developer or Subcontractor willfully fails to comply with Labor Code
section 1777.5, then, upon a determination of noncompliance by the Administrator of
Apprenticeship, it shall:
26.5.7.1. Be denied the right to bid on any subsequent project for one (1) year from
the date of such determination;
26.5.7.2. Forfeit as a penalty to District the full amount as stated in Labor Code
section 1777.7. Interpretation and enforcement of these provisions shall be in
accordance with the rules and procedures of the California Apprenticeship Council
and under the authority of the Chief of the Division of Apprenticeship Standards.
26.5.8. Developer and all Subcontractors shall comply with Labor Code section
1777.6, which section forbids certain discriminatory practices in the employment of
apprentices.
26.5.9. Developer shall become fully acquainted with the law regarding apprentices
prior to commencement of the Work. Special attention is directed to sections 1777.5,
1777.6, and 1777.7 of the Labor Code, and title 8, California Code of Regulations,
section 200 et seq. Questions may be directed to the State Division of Apprenticeship
Standards, 455 Golden Gate Avenue, San Francisco, California 94102.
26.6 Non-Discrimination
26.6.1. Developer herein agrees not to discriminate in its recruiting, hiring,
promotion, demotion, or termination practices on the basis of race, religious creed,
national origin, ancestry, sex, age, or physical handicap in the performance of this
Contract and to comply with the provisions of the California Fair Employment and
Housing Act as set forth in part 2.8 of division 3 of the California Government Code,
commencing at section 12900; the Federal Civil Rights Act of 1964, as set forth in
Exhibit "D" to Facilities Lease: Page 60
A0914 - Synthetic Running Track at Rosemead HS Project .
EI Monte Union High School District & Ohno Construction Company
26.4.4. Each Developer shall file a certified copy of the CPRs with the entity that
requested the records within ten (10) days after receipt of a written request.
26.4.5. Any copy of records made available for inspection as copies and furnished
upon request to the public or any public agency by District, Division of
Apprenticeship Standards, or Division of Labor Standards Enforcement shall be
marked or obliterated in such a manner as to prevent disclosure of an individual's
name, address, and social security number. The name and address of Developer
awarded Contract or performing Contract shall not be marked or obliterated.
26.4.6. Developer shall inform District of the location of the records enumerated
hereunder, including the street address, city, and county, and shall, within five (5)
working days, provide a notice of change of location and address.
26.4.7. In the event of noncompliance with the requirements of this section,
Developer shall have ten (10) days in which to comply subsequent to receipt of written
notice specifying in what respects Developer must comply with this section. Should
noncompliance still be evident after the ten (10) day period, Developer shall, as a
penalty to District, forfeit twenty-five dollars ($25) for each calendar day, or portion
thereof, for each worker, until strict compliance is effectuated. Upon the request of
Division of Apprenticeship Standards or Division of Labor Standards Enforcement,
these penalties shall be withheld from Tenant Improvement Payments then due.
26.4.8. It shall be the responsibility of Developer to ensure compliance with the
provisions of Labor Code section 1776.
26.5 Apprentices
26.5.1. Developer acknowledges and agrees that, if this Contract involves a dollar
amount greater than or a number of working days greater than that specified in Labor
Code section 1777.5, then this Contract is governed by the provisions of Labor Code
Section 1777.5. It shall be the responsibility of Developer to ensure compliance with
this Article and with Labor Code section 1777.5 for all apprenticeship occupations.
26.5.2. Apprentices of any crafts or trades may be employed and, when required by
Labor Code section 1777.5, shall be employed provided they are properly registered in
full compliance with the provisions of the Labor Code.
26.5.3. Every such apprentice shall be paid the standard wage paid to apprentices
under the regulations of the craft or trade at which he/she is employed, and shall be
employed only at the work of the craft or trade to which she/he is registered.
26.5.4. Only apprentices, as defined in section 3077 of the Labor Code, who are in
training under apprenticeship standards and written apprentice agreements under
chapter 4 (commencing at section 3070), division 3, of the Labor Code, are eligible to
Exhibit "D" to Facilities Lease: Page 59
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
26.4.1.1.1. Developer and/or its Subcontractor(s) provide CPRs acceptable to the
District, and
26.4.1.1.2. The District is given sufficient time to review and/or audit the CPRs to
determine their acceptability. Any delay in Developer and/or its Subcontractor(s)
providing CPRs to the District in a timely manner will directly delay the District's
review and/or audit of the CPRs and Developer's payment.
26.4.2. Whether or not the District has an LCP in force on this Project, all CPRs shall
be available for inspection at all reasonable hours at the principal office of Developer
on the following basis:
26.4.2.1. A certified copy of an employee's CPR shall be made available for
inspection or furnished to the employee or his/her authorized representative on
request.
26.4.2.2. CPRs shall be made available for inspection or furnished upon request to a
representative of District, Division of Labor Standards Enforcement, Division of
Apprenticeship Standards, and/or the Department of Industrial Relations.
26.4.2.3. CPRs shall be made available upon request by the public for inspection or
copies thereof made; provided, however, that a request by the public shall be made
through either the District, Division of Apprenticeship Standards, or the Division of
Labor Standards Enforcement. If the requested CPRs have not been provided
pursuant to the provisions herein, the requesting party shall, prior to being provided
the records reimburse the costs of preparation by Developer, Subcontractors, and the
entity through which the request was made. The public shall not be given access to
the records at the principal office of Developer.
26.4.3. The form of certification for the CPRs shall be as follows:
I, (Name-Print), the undersigned, am the
(Position in business) with the authority to act for and on behalf of
(Name of business and/or Developer), certify under penalty of perjury that the
record's or copies thereof submitted and consisting of %
(Description, number of pages) are the originals or true, full, and correct
copies of the originals which depict the payroll record(s) of actual
disbursements by way of cash, check, or whatever form to the individual or
individual named, and (b) we have complied with the requirements of sections
1771, 1811, and 1815 for any work performed by our employees on the
Project.
Date: Signature:
(Section 16401 of the California Code of Regulations)
Exhibit "D" to Facilities Lease:
A0914-Synthetic Running Track at Rosemead HS Project
58
El Monte Union High School District & Ohno Construction Company
any Subcontractor on any subcontract under this Contract upon'the Work or upon any
part of the Work contemplated by this Contract shall be limited and restricted by
Developer to eight (8) hours per day, and forty (40) hours during any one week, except
as hereinafter provided. Notwithstanding the provisions hereinabove set forth, Work
performed by employees of Developer in excess of eight (S) hours per day and forty
(40) hours during any one week, shall be permitted upon this public work upon
compensation for all hours worked in excess of eight (8) hours per day at not less than
one and one-half times the basic rate of pay.
26.3.2. Developer shall keep and shall cause each Subcontractor to keep an accurate
record showing the name of and actual hours worked each calendar day and each
calendar week by each worker employed by Developer in connection with the Work or
any part of the Work contemplated by this Contract. The record shall be kept open at
all reasonable hours to the inspection of District and to the Division of Labor
Standards Enforcement of the DIR.
26.3.3. Pursuant to Labor Code section 1813, Developer shall as a penalty to the
District forfeit the statutory amount (believed by the District to be currently twenty-
five dollars ($25)) for each worker employed in the execution of this Contract by
Developer or by any Subcontractor for each calendar day during which such worker is
required or permitted to work more than eight (8) hours in any one calendar day and
forty (40) hours in any one calendar week in violation of the provisions of article 3
(commencing at section 1810), chapter 1, part 7, division 2, of the Labor Code.
26.3.4. Any Work necessary to be performed after regular working hours, or on
Sundays or other holidays shall be performed without additional expense to the
District.
26.4 Payroll Records
26.4.1. If the District has an LCP in force on this Project then, pursuant to the
provisions of section 1776 of the Labor Code, notice is hereby given that Developer
shall prepare and provide to the District and shall cause each Subcontractor
performing any portion of the Work under this Contract to prepare and provide to the
District an accurate and certified payroll record ("CPA(s)"), showing the name,
address, social security number, work classification, straight time, and overtime hours
worked each day and week, and the actual per diem wages paid to each journeyman,
apprentice, worker, or other employee employed by the Developer and/or each
Subcontractor in connection with the Work.
26.4.1.1. The CPRs enumerated hereunder shall be certified and shall be provided
to the District on a weekly basis. The CPRs from the Developer and each
Subcontractor for each week shall be provided on or before Wednesday of the week
following the week covered by the CPRs. District shall not make any payment to
Developer until:
Exhibit "D" to Facilities Lease: Page 57
A0914-Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
26.2.3 Developer shall pay and shall cause to be paid each worker engaged in Work
on the Project not less than the general prevailing rate of per diem wages determined
by the Director of the Department of Industrial Relations ("DIR") ("Director'),
regardless of any contractual relationship which may be alleged to exist between
Developer or any Subcontractor and such workers.
26.2.4 If prior to execution of the Facilities Lease, the Director determines that there
has been a change in any prevailing rate of per diem wages in the locality in which the
Work under the Contract is to be performed, such change shall riot alter the wage rates
in the Contract subsequently awarded.
26.2.5 Pursuant to Labor Code section 1775, Developer shall, as a penalty to District,
forfeit the statutory amount (believed by the District to be currently fifty dollars ($50))
for each calendar day, or portion thereof, for each worker paid less than the prevailing
rates, determined by the District and/or the Director, for the work or craft in which that
worker is employed for any public work done under Contract by Developer or by any
Subcontractor under it. The difference between such prevailing wage rates and the
amount paid to each worker for each calendar day or portion thereof for which each
worker was paid less than the prevailing wage rate, shall be paid to each worker by
Developer.
26.2.6 Any worker employed to perform Work on the Project, which Work is not
covered by any classification listed in the general prevailing wage rate of per diem
wages determined by the Director, shall be paid not less than the minimum rate of
wages specified therein for the classification which most nearly corresponds to Work
to be performed by him, and such minimum wage rate shall be retroactive to time of
initial employment of such person in such classification.
26.2.7 Pursuant to Labor Code section 1773. 1, per diem wages are deemed to include
employer payments for health and welfare, pension, vacation, travel time, subsistence
pay, and apprenticeship or other training programs authorized by section 3093, and
similar purposes.
26.2.8 Developer shall post at appropriate conspicuous points on the Site of Project, a
schedule showing all determined minimum wage rates and all authorized deductions,
if any, from unpaid wages actually earned. In addition, Developer shall post a sign-in
log for all workers and visitors to the Site, a list of all subcontractors of any tier on the
Site, and the required Equal Employment Opportunity poster(s).
26.3 Hours of Work
26.3.1. As provided in article 3 (commencing at section 1810), chapter 1, part 7,
division 2, of the Labor Code, eight (8) hours of labor shall constitute a legal days
work. The time of service of any worker employed at any time by Developer or by
Exhibit "D" to Facilities Lease: Page 56
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohoo Construction Company
judicial forum. The claim or dispute shall be identified in writing to the District
within thirty (30) days of discovery and shall be mediated within one hundred and
twenty (120) days of discovery.
25.4.3.2. The parties further agree that all contractors, Subcontractors, Sub-
subcontractors, suppliers, and material persons whose portion of the Work amounts to
five thousand dollars ($5,000) or more, and their insurers and their sureties, shall
agree to mediation as the first method of dispute resolution on all claims in excess of
three hundred seventy-five thousand dollars ($375,000).
26. LABOR, WAGE & HOUR, APPRENTICE, AND RELATED PROVISIONS
26.1 Labor Compliance Program
If the Project is at least partially funded with State bond money, then, pursuant to Labor
Code section 1771.7, the District and/or its designee is operating a labor compliance
program ("LCP") on this Project as indicated in the Labor Compliance Program
Information and Forms. Developer specifically acknowledges and understands that it
shall perform the Work of this Project while complying with all the applicable provisions
of the District's LCP, including, without limitation, the requirement that the Developer
and all of its Subcontractors shall timely submit complete and accurate certified payroll
records with each application for payment, or the District cannot issue payment. The
following provisions indicated herein are specifically understood to be part of the
District's LCP. If there is no LCP on this Project, the Developer and all of its
subcontractor(s) are still required to comply with all applicable provisions of the Labor
Code and the obligation to provide certified payroll records to the District as indicated
herein.
26.2 Wage Rates, Travel, and Subsistence
26.2.1 Pursuant to the provisions of article 2 (commencing at section 1770), chapter 1,
part 7, division 2, of the Labor Code of California, the general prevailing rate of per
diem wages and the general prevailing rate for holiday and overtime work in the
locality in which this public work is to be performed for each craft, classification, or
type of worker needed to execute this Contract are on file at the District's principal
office and copies will be made available to any interested party on request. Developer
shall obtain and post a copy of these wage rates at the job site.
26.2.2 Holiday and overtime work, when permitted by law, shall be paid for at a rate
of at least one and one-half times the above specified rate of per diem wages, unless
otherwise specified. The holidays upon which those rates shall be paid need not be
specified by the District, but shall be all holidays recognized in the applicable
collective bargaining agreement. If the prevailing rate is not based on a collectively
bargained rate, the holidays upon which the prevailing rate shall be paid shall be as
provided in Section 6700 of the Govemment Code.
Exhibit "D" to Facilities Lease: - Page 55
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
the issues in dispute. Upon a demand, the District shall schedule a meet and confer
conference within thirty (30) days for settlement of the dispute.
25.4.2.3. Following the meet and confer conference, if the claim or any portion of it
remains in dispute, the claimant may file a claim as provided in Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section 910) of
Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those
provisions the running of the time within which a claim must be filed shall be tolled
from the time the claimant submits its written claim until the time the claim is denied,
including any period of time utilized by the meet and confer process.
25.4.2.4. For any civil action filed to resolve claims filed pursuant to this section,
within sixty (60) days, but no earlier than thirty (30) days, following the filing of
responsive pleadings, the court shall submit the matter to nonbinding mediation
unless waived by mutual stipulation of both parties. The mediation process shall
provide for the selection within fifteen (15) days by both parties of a disinterested
third person as mediator, shall be commenced within thirty (30) days of the submittal,
and shall be concluded within fifteen (15) days from the commencement of the
mediation unless a time requirement is extended upon a good cause showing to the
court or by stipulation of both parties. If the parties fail to select a mediator within
the 15-day period, any party may petition the court to appoint the mediator.
25.4.2.5. If the matter remains in dispute, the case shall be submitted to judicial
arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of the Title 3
of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that
code. The Civil Discovery Act of 1986, (Article 3 (commencing with Section 2016)
of Chapter 3 of Title 3 of part 4 of the Code of Civil Procedure) shall apply to any
proceeding brought under this subdivision consistent with the rules pertaining to
judicial arbitration.
25.4.2.6. The District shall not fail to pay money as to any portion of a claim which
is undisputed except as otherwise provided in the Contract Documents. In any suit
filed pursuant to this section, the District shall pay interest at the legal rate on any
arbitration award or judgment. Interest shall begin to accrue on the date the suit is
filed in a court of law.
25.4.3. Public Works Claims Over $375.000
25.4.3.1. For all claims of over three hundred seventy-five thousand dollars
($375,000) which arise between a Developer and the District, the following procedure
shall apply:
25.4.3.1.1. The parties agree to first endeavor to settle the dispute in an amicable
manner by mediation under the Construction Industry Mediation Rules of the
American Arbitration Association before having recourse to arbitration or a
Exhibit "D" to Facilities Lease: Page 54
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El Monte Union High School District & Ohno Construction Company
of the State of California in the county in which the District office resides, having
competent jurisdiction of the dispute, after the Project has been completed, and not
before.
25.4.2. Public Works Claims of $375.000 or Less
25.4.2.1. For all public works claims of three hundred seventy-five thousand dollars
($375,000) or less which arise between a Developer and a local agency, the procedure
set forth in Public Contract Code section 20104 et seq. shall apply:
25.4.2.1.1. For claims of less than fifty thousand dollars ($50,000), the District
shall respond in writing within forty-five (45) days of receipt of the claim or may
request in writing within thirty (30) days of receipt of the claim any additional
documentation supporting the claim or relating to defenses or claims the District
may have against the claimant.
25.4.2.1.1.1. If additional information is required, it shall be requested and
provided by mutual agreement of the parties.
25.4.2.1.1.2. The District's written response to the documented claim shall
be submitted to the claimant within fifteen (15) days after receipt of the
further documentation or within a period of time no greater than that taken by
the claimant to produce the additional information, whichever is greater.
25.4.2.1.2. For claims of over fifty thousand dollars ($50,000) and less than or
equal to three hundred Seventy-five thousand dollars ($375,000), the District shall
respond in writing to all written claims within sixty (60) days of receipt of the
claim, or may request, in writing, within thirty (30) days of receipt of the claim
any additional documentation supporting the claim or relating to defenses or
claims the District may have against the claimant.
25.4.2.1.2.1. If additional information is required, it shall be requested and
provided upon mutual agreement of the District and the claimant.
25.4.2.1.2.2. The District's written response to the claim, as further
documented, shall be submitted to the claimant within thirty (30) days after
receipt of the further documentation, or within a period of time no greater than
that taken by the claimant to produce the additional information or requested
documentation, whichever is greater.
25.4.2.2. If the claimant disputes the District's written response, or the District fails
to respond within the time prescribed, the claimant may so notify the District, in
writing, either within fifteen (15) days of receipt of the District's response or within
fifteen (15) days of the District's failure to respond within the time prescribed,
respectively, and demand an informal conference to meet and confer for settlement of
Exhibit "D" to Facilities Lease: Page 53
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El Monte Union High School District & Ohno Construction Company
25.2.1. For purposes of this section, a claim means a separate demand by the
Developer for:
25.2.1.1. A time extension,
25.2.1.2. Payment of money or damages arising from Work done by or on behalf of
the Developer pursuant to the Contract and payment of which is not otherwise
expressly provided for or the claimant is not otherwise entitled to, or
25.2.1.3. Payment of money that the District disputes is owing.
25.3 Claim Presentations
25.3.1. If Developer intends to claim an increase in the Guaranteed Maximum Price
or Contract Time for any reason including, without limitation, the acts of District or its
agents, Developer shall, within ten (10) days after.Developer has notice of the event
giving rise to the claim, give notice of the claim in writing and submit to the District a
written statement of the damage sustained or time requested. On or before twenty (20)
days after Developer's written notice of claim, Developer shall file with the District an
itemized statement of the details and amounts of its claim for any increase in the
Guaranteed Maximum Price of Contract Time. Developer must timely submit the
Notice of Claim and the substantiating documentation for any claim. Otherwise,
Developer shall have waived and relinquished its claim against the District and
Developer's claims for compensation or an extension of time shall be forfeited and
invalidated, and Developer shall not be entitled to consideration for payment or time
on account of the instant matter.
25.3.2. Developer shall file with the District any written claim, including the
documents necessary to substantiate it, on or before the day of fmal payment on the
Contract.
25.3.3. The Developer shall bind all its Subcontractors, material persons, and
suppliers to the provisions of this section on mediation and arbitration and will hold
the District harmless against disputes and claims by Subcontractors, material persons,
or suppliers.
25.4 Claim Resolution
25.4.1. In the event of a dispute between the parties as to performance of the Work,
the interpretation of this Contract, or payment or nonpayment for Work performed or
not performed, the parties shall attempt to resolve the dispute by those procedures set
forth in Public Contract Code section 20104, if applicable. Pending resolution of the
dispute, if the dispute is not resolved, Developer agrees it will neither rescind the
Contract nor stop the progress of the Work, but will allow determination by the court
Exhibit "D" to Facilities Lease: Page 52
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El Monte Union High School District & Ohno Construction Company
Contract Documents, the Surety shall remain liable to all obligees under the Payment Bond
and to the District under the Performance Bond for any claim related to the Project.
24.1 Emergency Termination_ of Public Contracts Act of 1949
24.1.1 In addition to the Parties' right to termination under the Facilities Lease, this
Contract is subject to termination as provided by sections 4410 and 4411 of the
Government Code of the State of California, being a portion of the Emergency
Termination of Public Contraofs Act of 1949.
24.1.1.1 Section 4410 of the Government Code states:
In the event a national emergency occurs, and public work, being performed
by contract, is stopped, directly or indirectly, because of the freezing or
diversion of materials, equipment or labor, as the result of an order or a
proclamation of the President of the United States, or of an order of any
federal authority, and the circumstances or conditions are such that it is
impracticable within a reasonable time to proceed with a substantial portion of
the work, then the public agency and the contractor may, by written
agreement, terminate said contract.
24.1.1.2. Section 4411 of the Government Code states:
Such an agreement shall include the terms and conditions of the termination of
the contract and provision for the payment of compensation or money, if any,
which either party shall pay to the other or any other person, under the facts
and circumstances in the case.
24.1.2. Compensation to the Developer shall be determined at the sole discretion of
District on the basis of the reasonable value of the Work done, including preparatory
work. As an exception to the foregoing and at the District's discretion, in the case of
any fully completed separate item or portion of the Work for which there is a separate
previously submitted unit price or item on the accepted schedule of values, that price
shall control. The District, at its sole discretion, may adopt the Guaranteed Maximum
Price as the reasonable value of the work done or any portion thereof.
25. CLAIMS AND DISPUTES
25.1 Performance During Claim Process
The Developer shall continue to perform its Work under the Contract and shall not cause
a delay of the Work during any dispute, claims definition, negotiation, mediation, or
arbitration proceeding, except by written agreement by the District.
25.2 Definition of Claim
Exhibit "D^ to Facilities Lease: Page 51
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El Monte Union High School District & Ohno Construction Company
If, within one (1) year after the date of Completion of the'Work or a designated
portion thereof, or after the date for commencement of warranties established
hereunder, or by the terms of an applicable special warranty required by the Contract
Documents, any of the Work is found to be not in accordance with the requirements
of the Contract Documents, the Developer shall correct it promptly after receipt of
written notice from the District to do so. This period of one (1) year shall be
extended with respect to portions of the Work first performed after Completion by the
period of time between Completion and the actual performance of the Work. This
obligation hereunder shall sui:vive acceptance of the Work under the Contract and
termination of the Contract. The District shall give such notice promptly after
discovery of the condition.
23.3 District's Right to Perform Work
23.3.1. If the Developer should neglect to prosecute the Work properly or fail to
perform any provisions of this contract, the District, after providing SEVENTY-TWO
hours written notice and an opportunity to cure the failure, to the Developer, may,
without prejudice to any other remedy it may have, make good such deficiencies and
may deduct the cost thereof from the payment then or thereafter due the Developer.
23.3.2. If it is found at any time, before or after completion of the Work, that
Developer has varied from the Drawings and/or. Specifications, including, but not
limited to, variation in material, quality, form, or finish, or in the amount or value of
the materials and labor used; District may require at its option:
23.3.2.1 That all such improper Work be removed, remade or replaced, and all
work disturbed by these changes be made good by Developer at no additional cost to
the District;
23.3.2.2 That the District deduct from any amount due Developer the sum of
money equivalent to the difference in value between the work performed and that
called for by the Drawings and Specifications; or
23.3.2.3 That the District exercise any other remedy it may have at law or under the
Contract Documents, including but not limited to the District hiring its own forces or
another contractor to replace the Developer's nonconforming Work, in which, case the
District shall either issue a deductive Change Order or invoice the Developer for the
cost of that work. Developer shall pay any invoices within thirty (30) days of receipt
of same or District may withhold those amounts from payment(s) to Developer.
24. TERMINATION AND SUSPENSION
The Parties' rights to terminate the Project are as indicated in the Facilities Lease. In the
event of a termination of the Facilities Lease and notwithstanding any other provision in the
Exhibit "D" to Facilities Lease: Page 50
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El Monte Union High School District & Ohno Construction Company
22. UNCOVERING OF WORK
If a portion of the Work is covered without Inspector approval or not in compliance with the
Contract Documents, it must, if required in writing by the District, Construction Manager,
the Project Inspector be uncovered for the Project Inspector's observation and be replaced at
the Developer's expense without change in the Guaranteed Maximum Price or Contract
Time.
23. NONCONFORMING WORK ANUCORRECTION OF WORK
23.1 Nonconforming Work
23.1.1. Developer shall promptly remove from Premises all Work identified by
District /Construction Manager as failing to conform to the Contract Documents
whether incorporated or not. Developer shall promptly replace and re-execute its own
Work to comply with the Contract Documents without additional expense to the
District and shall bear the expense of making good all work of other contractors
destroyed or damaged by any removal or replacement pursuant hereto and/or any
delays to the District or other contractors caused thereby.
23.1.2. If Developer does not commence to remove Work that District /Construction
Manager has identified as failing to conform to the Contract Documents within a
reasonable time, not to exceed SEVENTY-TWO (72) hours after written notice and
complete removal of work within a reasonable time, District may remove it and may
store any material at Developer's expense. If Developer does not pay expense(s) of
that removal within ten (10) days' time thereafter, District may, upon ten (10) days'
written notice, sell any material at auction or at private sale and shall deduct all costs
and expenses incurred by the District and/or District may withhold those amounts
from payment(s) to Developer.
23.2 Correction of Work
23.1.1. Correction of Rejected Work
Pursuant to the notice provisions herein, the Developer shall promptly correct the
Work rejected by the District /Construction Manager or the Project Inspector as
failing to conform to the requirements of the Contract Documents, whether observed
before or after Completion and whether or not fabricated, installed, or completed.
The Developer shall bear costs of correcting the rejected Work, including additional
testing, inspections, and compensation for the Inspector's, or the Construction
Manager's and expenses made necessary thereby.
23.1.2. One-Year Warranty Corrections
Exhibit "D" to Facilities Lease: Page 49
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El Monte Union High School District & Ohno Construction Company
recordable form, together with (to the extent permitted by lawy a copy of the full and
final release of all Stop Notice rights.
21.2.2. A duly completed and executed conditional waiver and release upon final
payment compliant with Civil Code section 3262 from the Developer and each
subcontractor of any tier and supplier to be paid from the current Tenant Improvement
Payment;
21.2.3. A duly completed and executed unconditional waiver and release upon
progress payment compliant with Civil Code section 3262 from the Developer and
each subcontractor of any tier and supplier that was paid from the previous Tenant
Improvement Payment; and
21.2.4. The Developer shall have made all corrections to the Work that are required to
remedy any defects therein, to obtain compliance with the Contract Documents or any
requirements of applicable codes and ordinances, or to fulfill any of the orders or
directions of District required under the Contract Documents.
21.2.5. Each Subcontractor shall have delivered to the Developer all written
guarantees, warranties, applications, and bonds required by the Contract Documents
for its portion of the Work.
21.2.6. Developer must have completed all requirements set forth under "Close Out
Procedures," Including, without limitation, an approved set of complete As-Built
Drawings.
21.2.7. District shall have issued its written approval that final payment can be made.
21.2.8. The Developer shall have delivered to the District /Construction Manager all
manuals and materials required by the Contract Documents.
21.1.9. The Developer shall have completed final clean up as provided herein.
21.1.10.After approval by the District / Construction Manager of the Certificate of
Payment,
21.1.11. After the satisfaction of the conditions set forth herein, and
21.1.12. After thirty-five (35) days after the recording of the Notice of Completion by
District.
21.1.13.No interest shall be paid on any amounts withheld due to a failure of the
Developer to perform, in accordance with the terms and conditions of the Contract
Documents.
Exhibit "D" to Facilities Lease: Page 48
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El Monte Union High School District & Ohno Construction Company
the Work. Neither the District's Final Acceptance, the making"of Final Payment, any
provision in Contract Documents, nor the use or occupancy of the Work,. in whole or
in part, by District shall constitute acceptance of Work not in accordance with the
Contract Documents nor relieve the Developer or the Developer's Performance Bond
Surety from liability with respect to any warranties or responsibility for faulty or
defective Work or materials, equipment and workmanship incorporated therein. The
District and the Developer shall agree in writing to the responsibilities assigned to
each of them for payments, security, maintenance, heat, utilities, damage to the Work,
insurance, the period for correction of the Work, and the commencement of
warranties required by the Contract Documents. Any dispute as to responsibilities
shall be resolved pursuant to the Claims and Disputes provisions herein, with the
added provision that during the dispute process, the District shall have the right to
occupy or use any portion of the Work that it needs or desires to use.
20.5.2. Inspection Prior to Occupancy or Use
Immediately prior to partial occupancy or use, the District, the Developer,
Construction Manager, and the Architect shall jointly inspect the area to be occupied
or portion of the Work to be used in order to determine and record the condition of
the Work.
20.5.3. No Waiver
Unless otherwise agreed upon, partial or entire occupancy or use of a portion or
portions of the Work shall not constitute beneficial occupancy or acceptance of the
Work not complying with the requirements of the Contract Documents.
21. FINAL PAYMENT
21.1 Final Payment
Upon receipt and approval of a valid and final Application for Payment, the District will
issue a final Certificate of Payment. The District shall thereupon inspect the Work and
either accept the Work as complete or notify the Architect and the Developer in writing
of reasons why the Work is not complete. Upon acceptance of the Work of the
Developer as fully complete (that, absent unusual circumstances, will occur when the
Punch List items have been satisfactorily completed), the District shall record a Notice of
Completion with the County Recorder, and the Developer shall, upon receipt of final
payment from the District, pay the amount due Subcontractors.
21.2 Prerequisites for Final Payment The following conditions must be fulfilled
prior to Final Payment:
21.2.1. A full and final waiver or release of all Stop Notices in connection with the
Work shall be submitted by Developer, including a release of Stop Notice in
Exhibit "D" to Facilities Lease: Page 47
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El Monte Union High School District & Ohno Construction Company
20.3.3.1.1 The Work has been completed.
20.3.3.1.2 All life safety items are completed and in working order.
20.3.3.1.3 Mechanical and electrical Work are complete and tested, fixtures are
in place, connected, and ready for tryout.
20.3.3.1.4 Electrical circuits scheduled in panels and disconnect switches labeled.
20.3.3.1.5 Painting and special finishes complete.
20.3.3.1.6 Doors complete with hardware, cleaned of protective film, relieved of
sticking or binding, and in working order.
20.3.3.1.7 Tops and bottoms of doors sealed.
20.3.3.1.8 Floors waxed and polished as specified.
20.3.3.1.9 Broken glass replaced and glass cleaned.
20.3.3.1.10 Grounds cleared of Developer's equipment, raked clean of debris,
and trash removed from Site.
20.3.3.1.11 Work cleaned, free of stains, scratches, and other foreign matter, of
damaged and broken material replaced.
20.3.3.1.12 Finished and decorative work shall have marks, dirt, and
superfluous labels removed.
20.3.3.1.13 Final cleanup, as provided herein.
20.4 Costs of Multiple Inspections
Any unreasonable requests of the District to make a final inspection shall be considered
an additional service of District, Construction Manager, and/or Project Inspector, and all
subsequent costs will be invoiced to Developer and if funds are available, withheld from
remaining payments.
20.5 Partial Occupancy or Use Prior to Completion
20.5.1. District's Rights to Occupancy
The District may occupy or use any completed or partially completed portion of the
Work upon District's acceptance of that completed or partially completed portion of
Exhibit "D" to Facilities Lease: Page 46
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El Monte Union High School District & Ohno Construction Company
Buildings shall be connected to water, gas, sewer, and electric services, complete
and ready for use. Service connections. shall be made and existing services
reconnected.
20.2.4 As-Built Drawings
20.2.4.1 Developer shall provide exact "as-built" of the Work upon completion
of the Project as indicated in the Lease Documents ("As-Built Drawings").
20.2.4.2 Developer is liable and responsible for any and all inaccuracies in As-
Built Drawings, even if inaccuracies become evident at a future date.
20.2.4.3 Upon completion of the Work and as a condition precedent to approval
of final payment, Developer shall obtain the Inspector's approval of the corrected
prints.
20.2.5 Maintenance Manuals: Developer shall prepare all operation and maintenance
manuals and date as indicated in the Specifications.
20.3 Final Inspection
20.3.1. Developer shall comply with Punch List procedures as provided herein, and
maintain the presence of its District-approved project superintendent and project
manager until the Punch List is complete to ensure proper and timely completion of
the Punch List. Under no circumstances shall Developer demobilize its forces prior to
completion of the Punch List. Upon receipt of Developer's written notice that all of
the Punch List items have been fully completed and the Work is ready for final
inspection and acceptance, Project Inspector will inspect the Work and shall submit to
Developer and District /Construction Manager a final inspection report noting the
Work, if any, required in order to complete in accordance with the Lease Documents.
Absent unusual circumstances, this report shall consist of the Punch List items not yet
satisfactorily completed.
20.3.2. Upon Developer's completion of all items on the Punch List and any other
uncompleted portions of the Work, the Developer shall notify the District /
Construction Manager, who shall again inspect such Work. If the District finds the
Work complete and acceptable under the Contract Documents, the District will notify
Developer, who shall then jointly submit to the Construction Manager, and the District
its final Application for Payment.
20.3.3. Final Inspection Requirements
20.3.3.1 Before calling for final inspection, Developer shall determine that the
following have been performed:
Exhibit "D" to Facilities Lease: Page 45
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El Monte Union High School District & Ohno Construction Company
no event shall any joint check payment be construed to create any contract between
the District and a Subcontractor of any tier, any obligation from the District to such
Subcontractor, or rights in such Subcontractor against the District.
20. COMPLETION OF THE WORK
20.1 Completion
20.1.1. District will accept completion of Project and have the Notice of Completion
recorded when the entire Work shall have been completed to the satisfaction of
District.
20.1.2. The Work may only be accepted as complete by action of the governing board
of the District.
20.1.3. District, at its sole option, may accept completion of Project and have the
Notice of Completion recorded when the entire Work shall have been completed to the
satisfaction of District /Construction Manager, except for minor corrective items, as
distinguished from incomplete items. If Developer fails to complete all minor
corrective items within thirty (30) days after the date of the District's acceptance of
completion, District shall withhold from the final payment one hundred fifty percent
(150%) of an estimate of the amount sufficient to complete the corrective items, as
determined by District, until the item(s) are completed.
20.1.4. At the end of the thirty-five (35) day period, if there are any items remaining
to be corrected, District may elect to proceed as provided herein related to adjustments
to Guaranteed Maximum Price, and/or District's right to perform the Work of the
Developer.
20.2 Close-Out Procedures
20.2.1 Punch List
The Developer shall notify the Construction Manager when Developer considers the
Work complete. Upon notification, Construction Manager will prepare a list of minor
items to be completed or corrected ("Punch List"). The Developer an its
Subcontractors shall proceed promptly to complete and correct items on the Punch
List. Failure to include an item on Punch List does not alter the responsibility of the
Developer to complete all Work in accordance with the Contract Documents.
20.2.2 Close-Out Requirements
20.2.3 Utility Connections
Exhibit "D" to Facilities Lease: Page 44
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El Monte Union High School District & Ohno Construction Company
obligation. District will render Developer an accounting of funds disbursed on behalf
of Developer.
19.4.2.2 If Developer defaults or neglects to carry out the Work in accordance with
the Contract Documents or fails to perform any provision thereof, District may, after
SEVENTY-TWO (72) hours written notice to the Developer and opportunity to
commence and pursue cure of default, to the Developer and, without prejudice to any
other remedy, make good such deficiencies. The District shall adjust the total
Guaranteed Maximum Price &y reducing the amount thereof by the cost of making
good such deficiencies. If District deems it inexpedient to correct Work that is
damaged, defective, or not done in accordance with Contract provisions, an equitable
reduction in the Guaranteed Maximum Price (of at least one hundred twenty-five
percent (125%) of the estimated reasonable value of the nonconforming Work) shall
be made therefor.
19.4.3. Payment After Cure
When Developer removes the grounds for declining approval, payment shall be made
for amounts withheld because of them. No interest shall be paid on any retainage or
amounts withheld due to the failure of the Developer to perform in accordance with
the terms and conditions of the Contract Documents.
19.5 Subcontractor Payments
19.5.1. Payments to Subcontractors
No later than ten (10) days after receipt, or pursuant to Business and Professions
Code section 7108.5 and Public Contract Code section 7107, the Developer shall pay
to each Subcontractor, out of the amount paid to the Developer on account of such
Subcontractor's portion of the Work, the amount to which said Subcontractor is
entitled. The Developer shall, by appropriate agreement with each Subcontractor,
require each Subcontractor to make payments to its Sub-subcontractors in a similar
manner.
19.5.2. No Obligation of District for Subcontractor Pam
The District shall have no obligation to pay, or to see to the payment of, money to a
Subcontractor except as may otherwise be required by law.
19.5.3. Joint Checks
District shall have the right in its sole discretion, if necessary for the protection of the
District, to issue joint checks made payable to the Developer and Subcontractors and
material or equipment suppliers. The joint check payees shall be responsible for the
allocation and disbursement of funds included as part of any such joint payment. In
Exhibit "D" to Facilities Lease:
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Page 43
El Monte Union High School District & Ohno Construction Company
without limitation, a Construction Schedule, Schedule of SYtbmittals, Schedule of
Values, Monthly Progress Schedules, Shop Drawings, Product Data and samples,
Proposed product lists, executed Change Orders, and/or verified reports;
19.4.1.9 Failure of the Developer to maintain As-Built Drawings;
19.4.1.10 Erroneous estimates by the Developer of the value of the Work performed,
or other false statements in an Application for Payment;
19.4.1.11 Unauthorized deviations from the Contract Documents;
19.4.1.12 Failure of the Developer to prosecute the Work in a timely manner in
compliance with the Construction Schedule, established progress schedules, and/or
completion dates;
19.4.1.13 The District has an LCP in force on this Project, the failure to provide
certified payroll records acceptable to the District for each journeyman, apprentice,
worker, or other employee employed by the Developer and/or each Subcontractor in
connection with the Work for the period of the Application for Payment;
19.4.1.14 Failure to properly pay prevailing wages as defined in Labor Code section
1720 et seq., failure to comply with any other Labor Code requirements, and/or
failure to comply with the District's LCP, if one is in force on this Project;
19.4.1.15 Failure to properly maintain or cleanup the Site;
19.4.1.16 Payments to indemnify, defend, or hold harmless the District;
19.4.1.17 Any payments due to the District, including but not limited to payments
for failed tests, utilities changes, or permits;
19.4.1.18 Failure to pay Subcontractor(s) or supplier(s) as required by law and by
the Contract Documents;
19.4.1.19 Developer is otherwise in breach, default, or in substantial violation of any
provision of this Contract.
19.4.2. Reallocation of Withheld Amounts
19.4.2.1 District may, in its discretion, apply any withheld amount to pay
outstanding claims or obligations as defined herein. In so doing, District shall make
such payments on behalf of Developer. If any payment is so made by District, then
that amount shall be considered a payment made under Contract by District to
Developer and District shall not be liable to Developer for any payment made in good
faith. These payments may be made without prior judicial determination of claim or
Exhibit "D" to Facilities Lease: Page 42
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El Monte Union High School District & Ohno Construction Company
19.3.13.1. If a lien or a claim based on a stop notice of any nature should at any time
be filed against the Work or any District property, by any entity that has supplied material
or services at the request of the Developer, Developer and Developer's Surety shall
promptly, on demand by District and at Developer's and Surety's own expense, take any
and all action necessary to cause any such lien or a claim based on a stop notice to be
released or discharged immediately therefrom.
19.3.13.2. If the Developer fails to furnish to the District within ten (10) calendar
days after demand by the District, satisfactory evidence that a lien or a claim based on a
stop notice has been so released, discharged, or secured, the District may discharge such
indebtedness and deduct the amount required therefor, together with any and all losses,
costs, damages, and attorney's fees and expense incurred or suffered by District from any
sum payable to Developer under the Contract.
19.4 Decisions to Withhold Payment
19.4.1 Reasons to Withhold Payment
The District may withhold payment in whole, or in part, to the extent reasonably
necessary to protect the District if, in the District's opinion, the representations to the
District required herein cannot be made. The District may withhold payment, in
whole, or in part, to such extent as may be necessary to protect the District from loss
because of, but not limited to:
19.4.1.1 Failure to commence and diligently pursue remediation of Defective Work
within SEVENTY- TWO (72) hours of written notice to Developer;
19.4.1.2 Stop Notices or other liens served upon the District as a result of the
Contract;
19.4.1.3 Liquidated damages assessed against the Developer;
19.4.1.4 The cost of completion of the Contract if there exists reasonable doubt that
the Work can be completed for the unpaid balance of the Guaranteed Maximum Price
or by the Contract Time;
19.4.1.5 Damage to the District or other contractor(s);
19.4.1.6 Unsatisfactory prosecution of the Work by the Developer;
19.4.1.7 Failure to store and properly secure materials;
19.4.1.8 Failure of the Developer to submit, on a timely basis, proper, sufficient,
and acceptable documentation required by the Contract Documents, including,
Exhibit °D" to Facilities Lease: Page 41
A0914-Synthetic Running Track at Rosemead HS Project -
El Monte Union High School District & Ohno Construction Company
19.3.7 Results of subsequent tests and inspections,
19.3.8 Minor deviations from the Contract Documents correctable prior to
completion, and
19.3.9 Specific qualifications expressed by the District.
19.3.10 District's approval of the certified Application for Payment shall be based
on Developer complying with all requirements for a fully complete and valid certified
Application for Payment.
19.3.11 Payments to Developer
19.3.11.1 Within thirty (30) days after approval of the Application for Payment,
Developer shall be paid a sum equal to ninety percent (90%) of the value of the
Work performed (as verified by Inspector and certified by Developer) up to the
last day of the previous month, less the aggregate of previous payments and
amount to be withheld. The value of the Work completed shall be Developer's
best estimate. No inaccuracy or error in said estimate shall operate to release the
Developer, or any Surety upon any bond, from damages arising from such Work,
or from the District's right to enforce each and every provision of this Contract,
and the District shall have the right subsequently to correct any error made in any
estimate for payment.
19.3.11.2 The Developer shall not be entitled to have any payment request
processed, or be entitled to have any payment made for Work performed, so long
as any lawful or proper direction given by the District concerning the Work, or
any portion thereof, remains incomplete.
19.3.11.3 If the District fails to make any Tenant Improvement Payment within
thirty (30) days after receipt of an undisputed and properly submitted Application
for Payment from the Developer, the District shall pay interest to the Developer
equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the
Code of Civil Procedure.
19.3.12 No Waiver
No payment by District hereunder shall be interpreted so as to imply that District has
inspected, approved, or accepted any part of the Work. Notwithstanding any
payment, the District may enforce each and every provision of this Contract. The
District may correct or require correction of any error subsequent to any payment.
19.3.13. Warranty of Title
Exhibit "D" to Facilities Lease: Page 40
A0914 - Synthetic Running Track at Rosemead HS Project -
El Monte Union High School District & Ohno Construction Company
19.2.3.6 All bonds and insurance endorsements; and
19.2.3.7 Resumes of Developer's project manager, and if applicable, job site
secretary, record documents recorder, and job site superintendent.
19.2.4 No Waiver of Criteria. Any payments made to Developer where criteria set
forth herein have not been met shall not constitute a waiver of said criteria by District.
Instead, such payment shall be.construed as a good faith effort by District to resolve
differences so Developer may pay its Subcontractors and suppliers. Developer agrees
that failure to submit such items may constitute a breach of contract by Developer and
may subject Developer to termination.
19.3 District's Approval of Application for Payment
19.3.1 Upon receipt of a Application for Payment, The District shall act in
accordance with both of the following:
19.3.2 Each Application for Payment shall be reviewed by the District as soon as
practicable after receipt for the purpose of determining that the Application for
Payment is a proper Application for Payment.
19.3.3 Any Application for Payment determined not to be a proper Application
for Payment, suitable for payment shall be returned to the Developer as soon as
practicable, but not later than seven (7) days, after receipt. An Application for
Payment returned pursuant to this paragraph shall be accompanied by a document
setting forth in writing the reasons why the Application for Payment is not proper.
The number of days available to the District to make a payment without incurring
interest pursuant to this section shall be reduced by the number of days by which the
District exceeds this seven-day return requirement.
19.3.4 An Application for Payment shall be considered properly executed if
funds are available for payment of the Application for Payment, and payment is not
delayed due to an audit inquiry by the financial officer of the District.
19.3.5 The District / Construction Manager's review of the Developer's
Application for Payment will be based on the District's observations at the Site and
the data comprising the Application for Payment that the Work has progressed to the
point indicated and that, to the best of the District /Construction Manager's
knowledge, information, and belief, the quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to:
19.3.6 Observation of the Work for general conformance with the Contract
Documents,
Exhibit "D" to Facilities Lease: Page 39
A0914 -Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
the Developer and each subcontractor of any tier and supplier that was paid from
the previous Tenant Improvement Payment; and
19.2.1.1.13. A certification by the Developer of the following:
The Developer warrants title to all Work performed as of the date of this payment
application. The Developer further warrants that all Work performed as of the
date of this payment application is free and clear of liens, claims, security
interests, or encumbrances_in favor of the Developer, Subcontractors, material and
equipment suppliers, workers, or other persons or entities making a claim by
reason of having provided labor, materials, and equipment relating to the Work,
except those of which the District has been informed.
19.2.1.1.14. The District has an LCP in force on this Project and if not
previously submitted as required herein, all remaining certified payroll record
("CPA(s)") for each journeyman, apprentice, worker, or other employee employed
by the Developer and/or each Subcontractor in connection with the Work for the
period of the Application for Payment. As indicated herein, if the District has an
LCP in force on this Project, the District shall not make any payment to
Developer until:
19.2.1.1.14.1 Developer and/or its Subcontractor(s) provide CPRs acceptable
to the District, and
19.2.1.1.14.2 The District is given sufficient time to review and/or audit the
CPRs to determine their acceptability. Any delay in Developer and/or its
Subcontractor(s) providing CPRs to the District in a timely manner will
directly delay the District's review and/or audit of the CPRs and Developer's
payment.
19.2.2 Prerequisites for Tenant Improvement Payments
19.2.3. First Payment Request: The following items, if applicable, must be completed
before the District will accept and/or process the Developer's first payment request:
19.2.3.1
Installation of field office;
19.2.3.2
Installation of temporary facilities and fencing;
19.2.3.3
Schedule of unit prices, if applicable;
19.2.3.4
Initial progress report.
19.2.3.5 List of Subcontractors, with names, license numbers, telephone
numbers, and Scope of Work;
Exhibit "D" to Facilities Lease: Page 38
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
/Construction Manager and shall be notarized, if required, and supported by the
following or each portion thereof unless waived by the District in writing:
19.2.1.1.1. The amount paid to the date of the Application to the Developer, to
all its Subcontractors, and all others furnishing labor, material, or equipment for
its Contract;
19.2.1.1.2. The amount being requested under the Application for Payment by
the Developer on its own7behalf and separately stating the amount requested on
behalf of each of the Subcontractors and all others f nnishing labor, material, and
equipment under the Contract;
19.2.1.1.3. The balance that will be due to each of such entities after said
payment is made;
19.2.1.1.4. A certification that the As-Built Drawings and annotated
Specifications are current;
19.2.1.1.5. Itemized breakdown of work done for the purpose of requesting
partial payment;
19.2.1.1.6. An updated and acceptable construction schedule in conformance
with the provisions herein;
19.2.1.1.7. The additions to and subtractions from the Guaranteed Maximum
Price and Contract Time;
19.2.1.1.8. Material invoices, evidence of equipment purchases, rentals, and
other support and details of cost as the District /Construction Manager may
require from time to time;
19.2.1.1.9. The percentage of completion of the Developer's Work by line
item;
19.2.1.1.10. Schedule of Values updated from the preceding Application for
Payment;
19.2.1.1.11. A duly completed and executed conditional waiver and release
upon Tenant Improvement Payment compliant with Civil Code section 3262 from
the Developer and each subcontractor of any tier and supplier to be paid from the
current Tenant Improvement Payment;
19.2.1.1.12. A duly completed and executed unconditional waiver and release
upon Tenant Improvement Payment compliant with Civil Code section 3262 from
Exhibit "D" to Facilities Lease: Page 37
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
Any requirements under this Article shall be equally applicable to Change Orders issued
to Subcontractors by the.Developer to the extent as required by the Contract Documents.
17.12. Alteration to Change Order Language
Developer shall not alter Change Orders or reserve time in Change Orders. Developer
shall execute finalized Change Orders and proceed under the provisions herein with
proper notice.
17.13. Failure of Developer to Execute Change Order
Developer shall be in default of the Contract if Developer fails to execute a Change Order
when the Developer agrees with the addition and/or deletion of the Work in that Change
Order.
18. REQUEST FOR INFORMATION
18.1. Any Request for Information shall reference all applicable Contract Document(s),
including Specification section(s), detail(s), page number(s), drawing number(s), and
sheet number(s), etc. The Developer shall make suggestions and interpretations of the
issue raised by each Request for Information. A Request for Information cannot modify
the Guaranteed Maximum Price, Contract Time, or the Contract Documents.
18.2. The Developer may be responsible for any costs incurred for professional services
that District /Construction Manager may deduct from any amounts owing to the
Developer, if a Request for Information requests an interpretation or decision of a matter
where the information sought is equally available to the party making the request.
District /Construction Manager may deduct from and/or invoice Developer for
professional services arising herein.
19. PAYMENTS
19.1. Guaranteed Maximum Price
As compensation for Developer's construction of the Project, the District shall pay
Developer pursuant to the terms of Exhibit "C" to the Facilities Lease.
19.2. Applications for Tenant Improvement Payments
19.2.1. Procedure for ADplications for Tenant Improvement Pavments
19.2.1.1. Not before the fifth (5`") day of each calendar month during the progress
of the Work, Developer shall submit to the District / Construction Manager an
itemized Application for Payment for operations completed in accordance with the
Schedule of Values. Such application shall be on a form approved by the District
Exhibit "D" to Facilities Lease: Page 36
A0914- Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
17.6. Determination of Change Order Cost
17.6.1. The amount of the increase or decrease in the Guaranteed Maximum Price
from a Change Order, if any, shall be determined in one or more of the following ways
as applicable to a specific situation and at the District's discretion:
17.6.1.1. District acceptance of a COR;
17.6.1.2. By amounts contained in Developer's schedule of values, if applicable;
17.6.1.3. By agreement between District and Developer.
17.7. Deductive Change Orders
Al] deductive Change Order(s) must be prepared pursuant to the provisions herein.
17.8. Discounts, Rebates, and Refunds
For purposes of determining the cost, if any, of any change, addition, or omission to the
Work hereunder, all trade discounts, rebates, refunds, and all returns from the sale of
surplus materials and equipment shall accrue and be credited to the Developer, and the
Developer shall make provisions so that such discounts, rebates, refunds, and returns may
be secured, and the amount thereof shall be allowed as a reduction of the Developer's
cost in determining the actual cost of construction for purposes of any change, addition,
or omission in the Work as provided herein.
17.9. Accounting Records
With respect to portions of the Work performed by Change Orders, the Developer shall
keep and maintain cost-accounting records satisfactory to the District, which shall be
available to the District on the same terms as any other books and records the Developer
is required to maintain under the Contract Documents.
17.10. Notice Required
If the Developer desires to make a claim for an increase in the Guaranteed Maximum
Price, or any extension in the Contract Time for completion, it shall notify the District
/Construction Manager pursuant to the provisions herein. No claim shall be considered
unless made in accordance with this subparagraph. Developer shall proceed to execute
the Work even though the adjustment may not have been agreed upon. Any change in
the Guaranteed Maximum Price or extension of the Contract Time resulting from such
claim shall be authorized by a Change Order.
17.11. Applicability to Subcontractors
Exhibit "D" to Facilities Lease: - Page 35
A0914-Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
DEVELOPER PERFORMED WORK
ADD
DEDUCT
(a)
Material (attach itemized quantity and unit cost plus
sales tax _ -
(b)
Add Labor (attach itemized hours and rates, fully
encumbered
c
Add E ui ment (attach suppliers' invoice
(d
Subtotal
(e)
Add Developer's overhead and profit, not to exceed
fourteen and one-half percent 14.5% of item (d).
Subtotal
g
Add Bond and Insurance at Developer's Cost
TOTAL
i
Time
Da vs
17.5. Change Order Certification
17.5.1. All Change Orders and CORs must include the following certification by the
Developer:
The undersigned Developer approves the foregoing as to the changes, if any,
and the Guaranteed Maximum Price specified for each item and as to the
extension of time allowed, if any, for completion of the entire Work as stated
herein, and agrees to furnish all labor, materials, and service, and perform all
work necessary to complete any additional work specified for the
consideration stated herein. Submission of sums which have no basis in fact
or which Developer knows are false are at the sole risk of Developer and may
be a violation of the False Claims Act set forth under Government Code
section 12650 et seq. It is understood that the changes herein to the Contract
shall only be effective when approved by the governing board of the District. `
It is expressly understood that the value of the extra Work or changes
expressly includes any and all of the Developer's costs and expenses, both
direct and indirect, resulting from additional time required on the Project or
resulting from delay to the Project. Any costs, expenses, damages, or time
extensions not included are deemed waived.
Exhibit "D" to Facilities Lease:
A0914-Synthetic Running Track at Rosemead HS Project
Page 34
El Monte Union High School District & Ohno Construction Company
17.3.1.2. The amount of the adjustment in the Guaranteed Maximum Price, if any;
and
17.3.1.3. The extent of the adjustment in the Contract Time, if any.
17.3.2. Changes in Guaranteed Maximum Price
A Change Order Request ("COR") shall include breakdowns pursuant to the
revisions herein to validate any change in Guaranteed Maximum Price.
17.3.3. Unknown and/or Unforeseen Conditions
If Developer submits a COR requesting an increase in Guaranteed Maximum
Price and/or Contract Time that is based at least partially on Developer's assertion
that Developer has encountered unknown and/or unforeseen condition(s) on the
Project, then Developer shall base the COR on provable information that, beyond
a reasonable doubt and to the District's satisfaction, demonstrates that the
unknown and/or unforeseen condition(s) were actually unknown and/or
unforeseen and that the condition(s) were reasonably unknown and/or unforeseen.
If not, the District shall deny the COR and the Developer shall complete the
Project without any increase in Guaranteed Maximum Price and/or Contract Time
based on that COR.
17.4. Format for Change Order Request
The following fonnat shall be used as applicable by the District and the Developer to
communicate proposed additions and deductions to the Contract, supported by
attached documentation.
SUBCONTRACTOR PERFORMED WORK
ADD
DEDUCT
(a)
Material (attach itemized quantity and unit cost plus
sales tax
(b)
Add Labor (attach itemized hours and rates, fully
encumbered
(c
Add E ui ment (attach suppliers' invoice
d
Subtotal
(e)
Add Subcontractor's overhead and profit not to
exceed fifteen ercent 15% of item d
Subtotal
(g)
Add Developer's overhead and profit, not to exceed
four and one-half percent 4.5% of Item f)
(h) I
Subtotal
i
_Add Bond and Insurance, at Developer's Cost j
Exhibit "D" to Facilities Lease:
A0914 - Synthetic Running Track at Rosemead HS Project
Page 33
El Monte Union High School District & Ohno Construction Company
17.1.1. There shall be no change whatsoever in the Drawings, Specifications, or in the
Work without an executed Change Order authorized by the District /Construction
Manager as herein provided. District shall not be liable for the cost of any extra work
or any substitutions, changes, additions, omissions, or deviations from the Drawings
and Specifications unless the District's governing board has authorized the same and
the cost thereof has been approved in writing by Change Order. No extension of time
for performance of the. Work shall be allowed hereunder unless a request for such
extension is made at the time "changes in the Work are ordered, and such time duly
adjusted and approved in writing in the Change Order. The provisions of the Contract
Documents shall apply to all such changes, additions, and omissions with the same
effect as if originally embodied in the Drawings and Specifications.
17.1.2. Developer shall perform immediately all work that has been authorized by a
fully executed Change Order. Developer shall be fully responsible for any and all
delays and/or expenses caused by Developer's failure to expeditiously perform this
Work.
17.1.3. Should any Change Order result in an increase in the Guaranteed Maximum
Price, the cost of that Change Order shall be agreed to, in writing, in advance by
Developer.and District and be subject to the monetary limitations set forth in Public
Contract Code section 20118.4. In the event that Developer proceeds with any change
in Work without a Change Order executed by the District, Developer waives any claim
of additional compensation or time for that additional work.
17.1.4. Developer understands, acknowledges, and agrees that the reason for District
authorization is so that District may have an opportunity.to analyze the Work and
decide whether the District shall proceed with the Change Order or alter the Project so
that a change in Work becomes unnecessary.
17.2. Architect Authority
The Architect will have authority to order minor changes in the Work not involving any
adjustment in the Guaranteed Maximum Price, or an extension of the Contract Time, or a
change that is inconsistent with the intent of the Contract Documents. These changes
shall be effected by written Change Order or by Architect's response(s) to RFI(s).,
17.3. Change Orders
17.3.1. A Change Order is a written instrument prepared and issued by the District,
Construction Manager and signed by the District (as authorized by the District's Board
of Education), the Developer, the Construction Manager, and DSA (if necessary),
stating their agreement regarding all of the following:
17.3.1.1. A description of a change in the Work;
Exhibit "D" to Facilities Lease: Page 32
A0914-Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
Work. Any claim for delay must include the following information as support,
without limitation:
16.2.3.1. The duration of the activity relating to the changes in the Work and the
resources (manpower, equipment, material, etc.) required to perform the activities
within the stated duration.
16.2.3.2. Specific logical ties to the Contract Schedule for the proposed changes
and/or delay showing the activity/activities in the Construction Schedule that are
affected by the change and/or delay. (A portion of any delay of seven (7) days or
more must be provided.)
16.2.3.3. A recovery schedule must be submitted.
16.3. No Additional Compensation for Delays Within Developer's Control
16.3.1. Developer is aware that governmental agencies, including, without limitation,
the Division of the State Architect, the Department of General Services, gas
companies, electrical utility companies, water districts, and other agencies may have to
approve Developer-prepared drawings or approve a proposed installation.
Accordingly, Developer has included in the Guaranteed Maximum Price, time for
possible review of its drawings and for reasonable delays and damages that may be
caused by such agencies. Thus, Developer is not entitled to make a claim for damages
or delays arising from the review of Developer's drawings.
16.3.2. Developer shall only be entitled to compensation for delay when all of the
following conditions are met:
16.3.2.1. The District is responsible for the delay;
16.3.2.2. The delay is unreasonable under the circumstances involved;
16.3.2.3. The delay was not within the contemplation of District and Developer; and
16.3.2.4. Developer complies with the claims procedure of the Contract Documents.
16.4. Float or Slack in the Schedule
Float or slack is the amount of time between the early start date and the late start date, or
the early finish date and the late finish date, of any of the activities in the schedule. Float
or slack is not for the exclusive use of or benefit of either the District or the Developer.
17. CHANGES IN THE WORK
17.1. No Changes Without Authorization
Exhibit "D" to Facilities Lease: Page 31
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El Monte Union High School District & Ohno Construction Company
The Developer shall proceed expeditiously with adequate forces and shall achieve
Completion within the Contract Time.
16. EXTENSIONS OF TIME - LIQUIDATED DAMAGES
16.1. Liquidated Damages
Developer and District he agree that the exact amount of damages for failure to
complete the Work within the time specified is extremely difficult or impossible to
determine. If the Work is not completed within the time specified in the Contract
Documents, it is understood that the District will suffer damage. It being impractical and
unfeasible to determine the amount of actual damage, it is agreed the Developer shall pay
to District as fixed and liquidated damages, and not as a penalty, the amount set forth in
the Facilities Lease for each calendar day of delay in completion. Developer and its
Surety shall be liable for the amount thereof pursuant to Government Code section
53069.85.
16.2. Excusable Delay
16.2.1. Developer shall not be charged for liquidated damages because of any delays
in completion of Work which are not the fault of Developer or its Subcontractors,
including acts of God as defined in Public Contract Code section 7105, acts of enemy,
epidemics, and quarantine restrictions. Developer shall, within five (5) calendar days
of beginning of any delay, notify District in writing of causes of delay including
documentation and facts explaining the delay. District shall review the facts and
extent of any delay and shall grant extension(s) of time for completing Work when, in
its judgment, the findings of fact justify an extension. Extension(s) of time shall apply
only to that portion of Work affected by delay, and shall not apply to other portions of
Work not so affected. An extension of time may only be granted if Developer has
timely submitted the Construction Schedule as required herein.
16.2.2. Developer shall notify the District /Construction Manager pursuant to the
claims provisions in these Construction Provisions of any anticipated delay and its
cause. Following submission of a claim, the District /Construction Manager may
determine whether the delay is to be considered avoidable or unavoidable, how long it
continues, and to what extent the prosecution and completion of the Work might be
delayed thereby.
16.2.3. In the event the Developer requests an extension of Contract Time for
unavoidable delay, such request shall be submitted in accordance with the provisions
in the Contract Documents governing changes in Work. When requesting time,
requests must be submitted with full justification and documentation. If the Developer
fails to submit justification, it waives its right to a time extension at a later date. Such
justification must be based on the official Construction Schedule as updated at the time
of occurrence of the delay or execution of Work related to any changes to the Scope of
Exhibit "D" to Facilities Lease: Page 30
A0914-Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
14.2. Indemnity Developer shall indemnify the District as indicated in the Facilities
Lease.
15. TIME
15.1. Hours of Work
15.1.1. Sufficient Forces
Developer and Subcontractors shall continuously furnish sufficient forces to
ensure the prosecution of the Work in accordance with the Construction Schedule.
15.1.2. Performance During Working Hours
Work shall be performed during regular working hours as permitted by the
appropriate governmental agency except that in the event of an emergency, or
when required to complete the Work in accordance with job progress, Work may
be performed outside of regular working hours with the advance written consent
of the District and approval of any required governmental agencies.
15.2. Progress and ComDletion
15.2.1. Time of the Essence
Time limits stated in the Contract Documents are of the essence to the Contract.
By executing the Facilities Lease, the Developer confirms that the Contract Time
is a reasonable period for performing the Work.
15.2.2. No Commencement Without Insurance
The Developer shall not commence operations on the Project or elsewhere prior to
the effective date of insurance and bonds. The date of commencement of the
Work shall not be changed by the effective date of such insurance. If Developer
commences Work without insurance and bonds, all Work is performed at
Developer's peril and shall not be compensable until and unless Developer
secures bonds and insurance pursuant to the terms of the Contract Documents and
subject to District claim for damages.
15.3. Schedule
Developer shall provide to District, and Construction Manager a schedule in conformance
with the Contract Documents and as required in these Construction Provisions.
15.4. Expeditious Completion
Exhibit "D" to Facilities Lease: Page 29
A0914-Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
13.2.3. All bonds related to this Project shall be in the forms'set forth in these Lease
Documents and shall comply with all requirements of the Lease Documents, including,
without limitation, the bond forms.
14. WARRANTY/GUARANTEEQNDEMNITY
14.1. Warranty/Guarantee
14.1.1. The Developer shall :obtain and preserve for the benefit of the District,
manufacturer's warranties on materials, fixtures, and equipment incorporated into the
Work.
In addition to guarantees required elsewhere, Developer shall, and hereby does
guarantee and warrant all Work furnished on the job against all defects for a period of
ONE (0 year after the date of completion as defined in Public Contract Code section
7107, subdivision (c). If any work is not in compliance with the Drawings and
Specifications, Developer shall repair or replace any and all of that Work, together
with any other Work that may be displaced in so doing, that may prove defective in
workmanship and/or materials within a ONE (1) year period from date of completion
as defined above without expense whatsoever to District. In the event of failure of
Developer and/or Surety to commence and pursue with diligence said replacements or
repairs within ten (10) days after being notified in writing, Developer and Surety
hereby acknowledge and agree that District is authorized to proceed to have defects
repaired and made good at expense of Developer and/or Surety who hereby agree to
pay costs and charges therefore immediately on demand.
14.1.2. If any work is not in compliance with the Drawings and Specifications and if
in the opinion of District said defective work creates a dangerous condition or requires
immediate correction or attention to prevent further loss to District or to prevent
interruption of operations of District, District will attempt to give the notice required
above. If Developer or Surety cannot be contacted or neither complies with District's
request for correction within a reasonable time as determined by District, District may,
notwithstanding the above provision, proceed to make any and all corrections and/or
provide attentions the District believes are necessary. The costs of correction or
attention shall be charged against Developer and Surety of the guarantees provided in
this Article or elsewhere in this Agreement.
14.1.3. The above provisions do not in any way limit the guarantees on any items for
which a longer guarantee is specified or on any items for which a manufacturer gives a
guarantee for a longer period. Developer shall furnish to District /Construction
Manager all appropriate guarantee or warranty certificates as indicated in the
Specifications or upon request by District /Construction Manager.
14.1.4. Nothing herein shall limit any other rights or remedies available to District.
Exhibit "D" to Facilities Lease: Page 28
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
be removed to a Class I, Class II, or Class III disposal site in accordance with
provisions of existing law.
12.5.1.2. Subsurface or latent physical conditions at the Site differing from those
indicated.
12.5.1.3. Unknown physical conditions at the Site of any unusual nature, different
materially from those ordinarily encountered and generally recognized as inherent in
work of.the character provided-for, in the Contract.
12.5.2. The District shall promptly investigate the conditions, and if it finds that the
conditions do materially so differ, or do involve hazardous waste, and cause a decrease
or increase in the Developer's cost of, or the time required for, performance of any
part of the Work, shall issue a Change Order under the procedures described herein.
12.5.3. In the event that a dispute arises between District and the Developer whether
the conditions materially differ or cause a decrease or increase in the Developer's cost
of, or time required for, performance of any part of the Work, the Developer shall not
be excused from any scheduled completion date provided for by the Contract, but shall
proceed with all work to be performed under the Contract. The Developer shall retain
any and all rights provided either by Contract or by law that pertain to the resolution of
disputes and protests.
13. INSURANCE AND BONDS
13.1. Developer's Insurance. The Developer shall comply with the insurance
requirements as indicated in the Facilities Lease.
13.2. Contract Security - Bonds
-13.2.1. Developer shall furnish two surety bonds issued by a California admitted
surety insurer as follows:
13.2.1.1. Performance Bond: A bond in an amount at least equal to one hundred
percent (100%) of Guaranteed Maximum Price as security for faithful performance of
this Contract.
13.2.1.2. Payment Bond: A bond in an amount at least equal to one hundred
percent (100%) of the Guaranteed Maximum Price as security for payment of persons
performing labor and/or furnishing materials in connection with this Agreement.
13.2.2. Cost of bonds shall be included in the Guaranteed Maximum Price.
Exhibit "D" to Facilities Lease:
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El Monte Union High School District & Ohno Construction Company
Neither the Developer nor any other person or entity shall display any signs not required
by law or the Contract Documents at the Site, fences trailers, offices, or elsewhere on the
Site without specific prior written approval of the District /Construction Manager.
12.
12.1. Trenches Greater Than Five Feet
Pursuant to Labor Code section 67.05, if the Guaranteed Maximum Price exceeds $25,000
and involves the excavation of any trench or trenches five (5) feet or more in,depth, the
Developer shall, in advance of excavation, promptly submit to the District /Construction
Manager and/or a registered civil or structural engineer employed by the District, a
detailed plan showing the design of shoring for protection from the hazard of caving
ground during the excavation of such trench or trenches.
12.2. Excavation Safetv
If such plan varies from the Shoring System Standards established by the Construction
Safety Orders, the plan shall be prepared by a registered civil or structural engineer, but
in no case shall such plan be less effective than that required by the Construction Safety
Orders. No excavation of such trench or trenches shall be commenced until said plan has
been accepted by the District /Construction Manager or by the person to whom authority
to accept has been delegated by the District.
12.3. No Tort Liability of District
Pursuant to Labor Code section 6705, nothing in this Article shall impose tort liability
upon the District or any of its employees.
12.4. No Excavation Without Permits
The Developer shall not commence any excavation Work until it has secured all
necessary permits including the required CAL OSHA excavation/shoring permit. Any
permits shall be prominently displayed on the Site prior to the commencement of any
excavation.
12.5. Discovery of Hazardous Waste and/or Unusual Conditions
12.5.1. Pursuant to Public Contract Code section 7104, if the Work involves digging
trenches or other excavations that extend deeper than four feet below the Surface, the
Developer shall promptly, and before the following conditions are disturbed, notify the
District /Construction Manager, in writing, of any:
12.5.1.1. Material that the Developer believes may be material that is hazardous
waste, as defined in section 25117 of the Health and Safety Code, that is required to
Exhibit °D" to Facilities Lease: Page 26
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El Monte Union High School District & Ohno Construction Company
for delay in completion of the Project caused by failure of District or the owner of a
utility to provide for removal or relocation of such utility facilities.
11.5.2. Locations of existing utilities provided by District shall not be considered
exact, but approximate within reasonable margin and shall not relieve Developer of
responsibilities to exercise reasonable care nor costs of repair due to Developer's
failure to do so. District shall compensate Developer for the costs of locating,
repairing damage not due to the failure of Developer to exercise reasonable care, and
removing or relocating such.. utility facilities not indicated in the Plans and
Specifications with reasonable accuracy, and for equipment necessarily idle during
such work.
11.5.3. No provision herein shall be construed to preclude assessment against
Developer for any other delays in completion of the Work. Nothing in this Article
shall be deemed to require District to indicate the presence of existing service laterals,
appurtenances, or other utility lines, within the exception of main or trunk utility lines.
Whenever the presence of these utilities on the Site of the construction Project can be
inferred from the presence of other visible facilities, such as buildings, meter junction
boxes, on or adjacent to the Site of the construction.
11.5.4. If Developer, while performing Work under this Contract, discovers utility
facilities not identified by District in Contract Plans and Specifications, Developer
shall immediately notify the District and the utility in writing. In the event Developer
fails to immediately provide notice and subsequently causes damage to the utility
facilities, the cost of repair for damage to above-mentioned visible facilities shall be
borne by the Developer.
11.6. Notification
Developer understands, acknowledges and agrees that the purpose for prompt notification
to the District pursuant to these provisions is to allow the District to investigate the
condition(s) so that the District shall have the opportunity to decide how the District
desires to proceed as a result of the condition(s). Accordingly, failure of Developer to
promptly notify the District in writing, pursuant to these provisions, shall constitute
Developer's waiver of any claim for damages or delay incurred as a result of the
condition(s).
11.7. Hazardous Materials
Developer shall comply with all provisions and requirements of the Contract Documents
related to hazardous materials including, without limitation, Hazardous Materials
Procedures and Requirements.
11.8. No Signs
Exhibit "D" to Facilities Lease: Page 25
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El Monte Union High School District & Ohno Construction Company
Developer has made a careful investigation of the Site and is familiar with the
requirements of the Contract and has accepted the existing conditions of the Site.
11.2. Soils Investigation Report
11.2.1. When a soils investigation report obtained from test holes at Site is available,
that report shall be made available to the Developer.
11.3. Layout and Field Engineering
11.3.1. The Developer shall be responsible for having ascertained pertinent local
conditions such as location, accessibility, and general character of the Site and for
having satisfied itself as to the conditions under which the Work is to be performed.
District shall not be liable for any claim for allowances because of Developer's error
or negligence in acquainting itself with the conditions at the Site.
11.3.2. Developer shall protect and preserve established benchmarks and monuments
and shall make no changes in locations without the prior written approval of District.
Developer shall replace any benchmarks or monuments that are lost or destroyed
subsequent to proper notification of District and with District's approval.
11.4. Regional Notification Center
The Developer, except in an emergency, shall contact the appropriate regional
notification center at least two (2) days prior to commencing any excavation if the
excavation will be conducted in an area or in a private easement that is known, or
reasonably should be known, to contain subsurface installations other than the
underground facilities owned or operated by the District, and obtain an inquiry
identification number from that notification center. No excavation shall be commenced
and/or carried out by the Developer unless an inquiry identification number has been
assigned to the Developer or any Subcontractor and the Developer has given the District
/Construction Manager the identification number. Any damages arising from Developer's
failure to make appropriate notification shall be at the sole risk and expense of the
Developer. Any delays caused by failure to make appropriate notification shall be at the
sole risk of the Developer and shall not be considered for an extension of the Contract
time.
11.5. Existing Utility Lines
11.5.1. Pursuant to Government Code section 4215, District assumes the
responsibility for removal, relocation, and protection of main or trunk utility lines and
facilities located on the construction Site at the time of commencement of construction
under this Contract with respect to any such utility facilities that are not identified in
the Plans and Specifications. Developer shall not be assessed for liquidated damages
Exhibit "D" to Facilities Lease: Page 24
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of all Subcontracts for parties furnishing labor, material, or equipment for completion of
the Project.
10.5. Monthlv Progress Schedule(s)
10.5.1. Upon request by the District /Construction Manager, Developer shall provide
Monthly Progress Schedule(s) to the District /Construction Manager. A Monthly
Progress Schedule -shall update the approved Construction Schedule or the last.
Monthly Progress Schedule, showing all work completed and to be completed. The
monthly Progress Schedule shall be sent within the timeframe requested by the District
/Construction Manager and shall be in a format acceptable to the District /Construction
Manager and contain a written narrative of the progress of work that month and any
changes, delays, or events that may affect the work. The process for District
/Construction Manager approval of the Monthly Progress Schedule shall be the same
as the process for approval of the Construction Schedule.
10.5.2. Developer shall also submit Monthly Progress Schedule(s) with all payment
applications. For complete requirements, refer to Construction Specifications section
01320.
10.6. Material Safety Data Sheets (MSDS)
Developer is required to ensure Material Safety Data Sheets are available in a readily
accessible place at the Work Site for any material requiring a Material Safety Data Sheet
per the Federal "Hazard Communication" standard, or employees right to know law. The
Developer is also required to ensure proper labeling on substance brought onto the job
site and that any person working with the material or within the general area of the
material is informed of the hazards of the substance and follows proper handling and
protection procedures. Two additional copies of the Material Safety Data Sheets shall
also be submitted directly to the District /Construction Manager.
10.7 Additional Retention - Late Submittals
Developer is required to provide all submittals to the District and Construction Manager
no later than ninety (90) days following the issuance of the Notice to Proceed. In the
event Developer has not met this deadline, District reserves the right withhold an
additional ten percent (10%) of the value of the Work performed from each Application
for Payment until all submittals have been provided. Once Developer is complete on
submittals, District will release to Developer any retention withheld pursuant to this
section.
11. SITE ACCESS. CONDITIONS AND REQUIREMENTS
11.1. Site Investigation
Exhibit "D" to Facilities Lease;
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El Monte Union High School District & Oboe Construction Company
limited license to use applicable portions of the Drawings prepared for the Project in the
execution of their Work under the Contract Documents.
10. DEVELOPER'S SUBMITTALS AND SCHEDULES
10.1. Construction Schedule
10.1.1 The Developer shall comply with the construction schedule attached to the
Facilities Lease as Exhibit R. ("Construction Schedule"). [To be attached when
available.]
10.1.2 Developer must provide all schedules both in hard copy and electronically, in
either the Primavera P3 or P6 formats.
10.1.3 The District /Construction Manager will review the schedules submitted and
the Developer shall consider changes and corrections in the schedules as requested by
the District.
10.2. Schedule of Values
The Developer shall provide a schedule of values for all of the Work, which includes
quantities and prices of items aggregating the Guaranteed Maximum Price and
subdivided into component parts as per specifications. The Schedule of Values shall not
be modified or amended by the Developer without the prior consent and approval of the
District /Construction Manager, which may be granted or withheld in the sole discretion
of the District /Construction Manager. The District /Construction Manager shall have the
right at any time to revise the schedule of values if , in the District's sole opinion, the
schedule of values does riot accurately reflect the value of the Work performed.
10.3. Safety Plan. Developer's Safety Plan specifically adapted for the Project.
Developer's Safety Plan shall comply with the following requirements:
10.3.1. All applicable requirements of California Division of Industrial Safety
("CalOSHA") and/or of the United States Occupational Safety and Health
Administration ("OSHA").
10.3.2. All provisions regarding Project safety, including all applicable provisions in
these Construction Provisions.
10.3.3. Developer's Safety Plan shall be in English and in the language(s) of the
Developer's and its Subcontractors' employees.
10.4. Complete Subcontractor List. The name, address, telephone number, facsimile
number, California State Contractors License number, classification, and monetary value
Exhibit "D" to Facilities Lease: Page 22
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complete the work so named, complete, finished, and operable, with all its appurtenances,
according to the best practices of the trade.
9.4. The naming of any material and/or equipment shall mean furnishing and installing
of same, including all incidental and accessory items thereto and/or labor therefor, as per
best practices of the trade(s) involved, unless specifically noted otherwise.
9.5. Contract Documents are complementary, and what is called for by one shall be
binding as if called for by all. As such, Drawings and Specifications are intended to be
fully cooperative and to agree. However, if Developer observes that Drawings and
Specifications are in conflict, Developer shall promptly notify District / Construction
Manager in writing, and any necessary changes shall be made as provided in the Contract
Documents.
9.6. Should any question arise concerning the intent or meaning of the Contract
Documents, including the Plans and Specifications, the question shall be submitted to the
District /Construction Manager for interpretation. If a conflict exists in the Contract
Documents, these Construction Provisions shall control over the Facilities Lease, which
shall control over the Site Lease, which shall control over Division I Documents, which
shall control over Division 2 through Division 49 documents, which shall control over
figured dimensions, which shall control over large-scale drawings, which shall control
over small-scale drawings. In no case shall a document calling for lower quality and/or
quantity material or workmanship control. However, in the case of discrepancy or
ambiguity solely between and among the Drawings and Specifications, the discrepancy or
ambiguity shall be resolved in favor of the interpretation that will provide District with
the functionally complete and operable Project described in the Drawings and
Specifications. In case of ambiguity, conflict, or lack of information, District
/Construction Manager will furnish clarifications with reasonable promptness.
9.7. Drawings and Specifications are intended to comply with all laws, ordinances,
rules, and regulations of constituted authorities having jurisdiction, and where referred to
in the Contract Documents, the laws, ordinances, rules, and regulations shall be
considered as a part of the Contract within the limits specified.
9.8. Ownership of Drawings
All copies of Plans, Drawings, Designs, Specifications, and copies of other incidental
architectural and engineering work, or copies of other Contract Documents fumished by
District, are the property of District. They are not to be used by Developer in other work
and, with the exception of signed sets of Contract Documents, are to be returned to
District on request at completion of Work, or may be used by District as it may require
without any additional costs to District. Neither the Developer nor any Subcontractor, or
material or equipment supplier shall own or claim a copyright in the Drawings,
Specifications, and other documents prepared by the Architect. District hereby grants the
Developer, Subcontractors, sub-subcontractors, and material or equipment suppliers a
Exhibit "D" to Facilities Lease: Page 21
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8.3. If any part of Developer's Work depends for proper execution or results upon
work of District or any other contractor, the Developer shall inspect and promptly report
to the District /Construction Manager in writing before proceeding with its Work any
defects in District's or any other contractor's work that render Developer's Work
unsuitable for proper execution and results. Developer shall be held accountable for
damages to District for District's or any other contractor's work that Developer failed to
inspect or should have inspected. Developer's failure to inspect and report shall
constitute Developer's acceptance of all District's or any other contractor's work as fit
and proper for reception of Developer's Work, except as to defects that may develop in
District's or any other contractor's work after execution of Developer's Work.
8.4. To ensure proper execution of its subsequent work, Developer shall measure and
inspect work already in place and shall at once report to the District in writing any
discrepancy between that executed work and the Contract Documents.
8.5. Developer shall ascertain to its own satisfaction the scope of the Project and
nature of District's or any other contracts that have been or may be awarded by District in
prosecution of the Project to the end that Developer may perform this Contract in light of
the other contracts, if any.
8.6. Nothing herein contained shall be interpreted as granting to Developer exclusive
occupancy of the Site, the Premises, or of the Project. Developer shall not cause any
unnecessary hindrance or delay to the use and/or school operation(s) of the Premises
and/or to District or any other contractor working on the Project. If simultaneous
execution of any contract or school operation is likely to cause interference with
performance of Developer's Contract, Developer shall coordinate with those
contractor(s), person(s), and/or entity(s) and shall notify the District of the resolution and
District shall not cause any unnecessary hindrance or delay to the Developer or any other
contractor working on the Project.
9. DRAWINGS AND SPECIFICATIONS
9.1. A complete list of all Drawings that form a part of the Contract is to be found as
an index on the Drawings themselves, and/or may be provided to the Developer and/or in
the Table of Contents.
9.2. Materials or Work described in words that so applied have a well known technical
or trade meaning shall be deemed to refer to recognized standards, unless noted
otherwise.
9.3. Trade Name or Trade Term. It is not the intention of this Contract to go into
detailed descriptions of any materials and/or methods commonly known to the trade
under "trade name" or "trade term." The mere mention or notation of "trade name" or
"trade term" shall be considered a sufficient notice to Developer that it will be required to
Exhibit "D" to Facilities Lease: Page 20
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7.2. No contractual relationship exists between the District and any Subcontractor,
supplier, or sub-subcontractor by reason of this Contract.
7.3. Developer agrees to bind every Subcontractor by terms of Contract as far as those
terms are applicable to Subcontractor's work including, without limitation, all provisions
and requirements of the District's Labor Compliance Program. ("LCP") If Developer
shall subcontract any part of this Contract, Developer shall be as fully responsible to
District for acts and omissions of any Subcontractor and of persons either directly or
indirectly employed by any Subcontractor, as it is for acts and omissions of persons
directly employed by Developer. The divisions or sections of the Specifications are not
intended to control the Developer in dividing the Work among Subcontractors or limit the
work performed by any trade.
7.4. District's consent to, or approval of, or failure to object to, any Subcontractor
under this Contract shall not in any way relieve Developer of any obligations under this
Contract and no such consent shall be deemed to waive any provisions of this Contract.
7.5. Developer is directed to familiarize itself with sections 1720 through 1861 of the
Labor Code of the State of California, as regards the payment of prevailing wages and
related issues, and to comply with all applicable requirements therein all including,
without limitation, section 1775 and the Developer's and Subcontractors' obligations and
liability for violations of prevailing wage law and other applicable laws.
7.6. The Developer shall be responsible for the coordination of the trades,
Subcontractors, sub-subcontractors, and material or equipment suppliers working on the
Project.
7.7. Developer is solely responsible for settling any differences between the Developer
and its Subcontractor(s) or between Subcontractors.
7.8. Developer must include in all of its subcontracts the assignment provisions as
indicated in the Termination section of these Construction Provisions.
8. OTHER CONTRACTS/CONTRACTORS
8.1. District /Construction Manager reserves the right to let other contracts, and/or to
perform work with its own forces, in connection with the Project. Developer shall afford
other contractors reasonable opportunity for introduction and storage of their materials
and execution of their work and shall properly coordinate and connect Developer's Work
with the work of other contractors.
8.2. Developer shall protect the work of any other contractor that Developer
encounters while working on the Project.
Exhibit "D" to Facilities Lease: Page 19
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reimburse the District for any Inspector charges necessitated by the Developer's evening
and/or weekend Work.
6.13 Cleanine Up
6.13.1 The Developer shall provide all services, labor, materials, and equipment
necessary for protecting the Work, all school occupants, furnishings, equipment, and
building structure from damage until its completion and final acceptance by District
and Construction Manager. Dust barriers shall be provided to isolate dust and dirt
from construction operations. At completion of the Work and portions thereof,
Developer shall clean to the original state any areas beyond the Work area that become
dust laden as a result of the Work. The Developer must erect the necessary warning
signs and barricades to ensure the safety of all school occupants. The Developer at all
times must maintain good housekeeping practices to reduce the risk of fire damage and
must make a fire extinguisher, fire blanket, and/or fire watch, as applicable, available
at each location where cutting, braising, soldering, and/or welding is being performed
or where there is an increased risk of fire.
6.13.2 Developer at all times shall keep Premises free from debris such as waste,
rubbish, and excess materials and equipment caused by the Work. Developer shall not
leave debris under, in, or about the Premises, but shall promptly remove same from the
Premises on a daily basis. If Developer fails to clean up, District /Construction
Manager may do so and the cost thereof shall be charged to Developer. If Contract is
for work on an existing facility, Developer shall also perform specific clean-up on or
about the Premises upon request by the District /Construction Manager as it deems
necessary for the continuing education process. Developer shall comply with all
related provisions of the Specifications.
6.13.3 If the Construction Manager or District observes the accumulation of trash
and debris, the District /Construction Manager will give the Developer a 24-hour
written notice to mitigate the condition.
6.13.4 Should the Developer fail to perform the required clean-up, or should the
clean-up be deemed unsatisfactory by the District /Construction Manager, the District
/Construction Manager will then perform the clean-up. All cost associated with the
clean-up work (including all travel, payroll burden, and costs for supervisions will be
deducted from the Guaranteed Maximum Price, or District /Construction Manager
may withhold those amounts from payment(s) to Developer.
7. SUBCONTRACTORS
7.1. Developer shall provide the District /Construction Manager with information for
all of Developer's Subcontracts and Subcontractors
Exhibit "D" to Facilities Lease: Page 18
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instructions of District/Construction Manager regarding signs; advertising, fires, and
smoking, and require. that all workers comply. with all regulations while on Project
Site.
6.10.19. Developer, Developer's employees, Subcontractors, Subcontractors'
employees, or any person associated with the Work shall conduct themselves in a
manner appropriate for a school site. No verbal or physical contact with neighbors,
students, and faculty, profanity, or inappropriate attire or behavior will be permitted.
District and Construction Manager may require Developer to permanently remove
non-complying persons from Project Site.
6.10.20. Developer shall take care to prevent disturbing or covering any survey
markers, monuments, or other devices marking property boundaries or corners. If
such markers are disturbed, Developer shall have a civil engineer, registered as a
professional engineer in California, replace them at no cost to District.
6.10.21. In the event that the Developer enters into any agreement with owners of any
adjacent property to enter upon the adjacent property for the purpose of performing the
Work, Developer shall fully indemnify, defend, and bold harmless each person, entity,
firm, or agency that owns or has any interest in adjacent property. The form and
content of the agreement of indemnification shall be approved by the District prior to
the commencement of any Work on or about the adjacent property. The Developer
shall also indemnify the District as provided in the indemnification provision herein.
These provisions shall be in addition to any other requirements of the owners of the
adjacent property.
6.11. School Calendar Working Restrictions
As indicated in the Project Schedule, all painting, landscaping, and irrigation work shall
occur during summer 2010 when school is not in session. District reserves the right to
reject any request to perform these scopes of work during any alternative time period
when school is in session.
6.12 Working Evenings and Weekends
Developer may be required to work evenings and/or weekends at no additional cost to the
District. Developer shall give the District and Construction Manager notice prior to
performing any evening and/or weekend work. Developer shall perform all evening
and/or weekend work in compliance with all applicable rules, regulations, laws, and local
ordinances including, without limitation, all noise and light limitations. Developer shall
Exhibit "D" to Facilities Lease: - Page 17
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6.10.10. Developer shall correct any violations of safety laws, rules, orders, standards,
or regulations. Upon the issuance of a citation or notice of violation by the Division of
Occupational Safety and Health, Developer shall correct such violation promptly.
6.10.11. Developer shall comply with any District storm water requirements that are
approved by the District and applicable to the Project, at no additional cost to the
District.
6.10.12. In an emergency affecting safety of life or of work or of adjoining property,
Developer, without special instruction or authorization, shall act, at its discretion, to
prevent such threatened loss or injury. Any compensation claimed by Developer on
account of emergency work shall be determined by agreement.
6.10.13. All salvage materials will become the property of the Developer and shall be
removed from the Site unless otherwise called for in the Contract Documents.
However, the District reserves the right to designate certain items of value that shall be
turned over to the District unless otherwise directed by District.
6.10.14.All connections to public utilities and/or existing on-site services shall be
made and maintained in such a manner as to not interfere with the continuing use of
same by the District during the entire progress of the Work.
6.10.15. Developer shall provide such heat, covering, and enclosures as are necessary
to protect all Work, materials, equipment, appliances, and tools against damage by
weather conditions, such as extreme heat, cold, rain, snow, dry winds, flooding, or
dampness.
6.10.16.The Developer shall protect and preserve the Work from all damage or
accident, providing any temporary roofs, window and door coverings, boxings, or
other construction as required by the District. The Developer shall be responsible for
existing structures, walks, roads, trees, landscaping, and/or improvements in working
areas; and shall provide adequate protection therefore. If temporary removal is
necessary of any of the above items, or damage occurs due to the Work, the Developer
shall replace same at his expense with same kind, quality, and size of Work or item
damaged. This shall include any adjoining property of the District and others.
6.10.17. Developer shall take adequate precautions to protect existing roads, sidewalks,
curbs, pavements, utilities, adjoining property, and structures (including, without
limitation, protection from settlement or loss of lateral support), and to avoid damage
thereto, and repair any damage thereto caused by construction operations.
6.10.18. Developer shall confine apparatus, the storage of materials, and the operations
of workers to limits indicated by law, ordinances, permits, or directions of
Construction Manager and shall not interfere with the Work or unreasonably encumber
Premises or overload any structure with materials. Developer shall enforce all
Exhibit "D" to Facilities Lease: Page 16
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El Monte Union High School District & Ohno Construction Company
Work. This requirement will apply continuously and not be limited to normal working
hours.
6.10.2. The wearing of hard hats will be mandatory at all times for all personnel on
Site. Developer shall supply sufficient hard hats to properly equip all employees and
visitors.
6.10.3. Any construction review of the Developer's performance is not intended to
include review of the adequacy. of the Developer's safety measures in, on, or near the
Work Site.
6.10.4. Implementation and maintenance of safety programs shall be the sole
responsibility of the Developer.
6.10.5. The Developer shall furnish to the District and Construction Manager a copy
of the Developer's safety plan within the time frame indicated in the Contract
Documents and specifically adapted for the Project.
6.10.6. Developer shall be responsible for all damages to persons or property that
occur as a result of its fault or negligence in connection with the prosecution of this
Contract and shall take all necessary measures and be responsible for the proper care
and completion and final acceptance by District. All Work shall be solely at
Developer's risk with the exception of damage to the Work caused by "acts of God" as
defined in Public Contract Code section 7105.
6.10.7. Developer shall take, and require Subcontractors to take, all necessary
precautions for safety of workers on the Project and shall comply with all applicable
federal, state, local, and other safety laws, standards, orders, rules, regulations, and
building codes to prevent accidents or injury to persons on, about, or adjacent to
premises where Work is being performed and to provide a safe and healthful place of
employment. Developer shall furnish, erect, and properly maintain at all times, all
necessary safety devices, safeguards, construction canopies, signs, nets, barriers,
lights, and watchmen for protection of workers and the public and shall post danger
signs warning against hazards created by such features in the course of construction.
6.10.8. Hazards Control - Developer shall store volatile wastes in approved
containers and remove them from the Site as necessary by law. .
6.10.9. Developer shall designate a responsible member of its organization on the
Project, whose duty shall be to post information regarding protection and obligations
of workers and other notices required under occupational safety and health laws, to
comply with reporting and other occupational safety requirements, and to protect the
life, safety, and health of workers. Name and position of person so designated shall be
reported to District and Construction Manager by Developer.
Exhibit "D" to Facilities Lease: Page 15
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shall promptly notify District and Construction Manager in writing and any changes
deemed necessary by. District shall be made as provided in Contract for changes in
Work.
6.9.1.1. National Electrical Safety Code, U. S. Department of Commerce
6.9.1.2. National Board of Fire Underwriters' Regulations
6.9.1.3. Uniform Building Code, latest addition, and the California Code of
Regulations, title 24, including amendments
6.9.1.4. Manual of Accident: Prevention in Construction, latest edition, published
by A.G.C. of America
6.9.1.5. Industrial Accident Commission's Safety Orders, State of California
6.9.1.6. Regulations. of the State Fire Marshall (title 19, California Code of
Regulations) and Pertinent Local Fire Safety Codes
6.9.1.7. Americans with Disabilities Act
6.9.1.8. Education Code of the State of California
6.9.1.9. Government Code of the State of California
6.9.1.10. Labor Code of the State of California, division 2, part 7, Public Works and
Public Agencies
6.9.1.11. Public Contract Code of the State of California
6.9.1.12. California Art Preservation Act
6.9.1.13. U. S. Copyright Act
6.9.1.14. U. S. Visual Artists Rights Act
6.9.2. Developer shall comply with all applicable mitigation measures, if any,
adopted by any public agency with respect to this Project pursuant to the California
Environmental Quality Act (Public Resources Code section 21000 et. Seq.). The
District has complied with all requirements imposed upon it by the California
Environmental Quality Act (Public Resource Code Section 21000 et seq.("CEQA") in
connection with the Project, and no further environmental review of the Project is
necessary pursuant to CEQA before the construction of the Project may commence.
6.9.3. If Developer performs any Work that it knew, or through exercise of
reasonable care should have known, to be contrary to any applicable laws, ordinance,
rules, or regulations, Developer shall bear all costs arising therefrom.
6.9.4. Where Specifications or Drawings state that materials, processes, or
procedures must be approved by the DSA, State Fire Marshall, or other body or
agency, Developer shall use its best efforts to satisfy the requirements of such bodies
or agencies.
6.10. Safety/Protection of Persons and Property
6.10.1. The Developer will be solely and completely responsible for conditions of the
Work Site, including safety of all persons and property during performance of the
Exhibit "D" to Facilities Lease. Page 14.
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reasonable times the materials described in this paragraph for the examination, audit, or
reproduction until three (3) years after final payment under this Contract.
Notwithstanding the provisions above, Developer shall provide any records requested by
any governmental agency, if available, after the time set forth above. District agrees that
it will not furnish any of the records defined hereunder to any third parry other than as
required by law.
6.7. Integration of Work
6.7.1. Developer shall do all cutting, fitting, patching, and preparation of Work as
required to make its several parts come together properly, to fit it to receive or be
received by work of other contractors, and to coordinate tolerances to various pieces of
work, showing upon, or reasonably implied by, the Drawings and Specifications for
the completed structure, and shall conform them as District or Construction Manager
may direct.
6.7.2. All cost caused by defective or ill-timed Work shall be borne by Developer,
inclusive of repair work.
6.7.3. Developer shall not endanger any work performed by it or anyone else by
cutting, excavating, or otherwise altering work and shall not cut or alter work of any
other contractor except with consent of District or Construction Manager.
6.8. Obtaining of Permits and Licenses
Developer shall secure and pay for any permits, licenses, and certificates necessary for
prosecution of Work before the date of the commencement of the Work or before the
permits, licenses, and certificates are legally required to continue the Work without
interruption. The Developer shall obtain and pay, only when legally required, for all
licenses, permits, inspections, and inspection certificates required to be obtained from or
issued by any authority having jurisdiction over any part of the Work included in the
Contract. All final permits, licenses, and certificates shall be delivered to District and
Construction Manager before demand is made for final payment. The costs associated
with said permits, licenses and certificates shall be direct reimbursement items and are
not subject to any markup.
6.9. Work to Comply With Applicable Laws and Regulations
6.9.1. Developer shall give all notices and comply with the following specific laws,
ordinances, rules, and regulations and all other applicable laws, ordinances, rules, and
regulations bearing on conduct of Work as indicated and specified, including but not
limited to the appropriate statutes and administrative code sections. If Developer
observes that Drawings and Specifications are at variance therewith, or should
Developer become aware of the development of conditions not covered by Contract
Documents that will result in finished Work being at variance therewith, Developer
Exhibit "D" to Facilities Lease: Page 13
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El Monte Union High School District & Ohno Construction Company
to in the Specifications, and made part thereof. These documents shall be kept in good
order and available to District, and Construction Manager, Architect, the Project
Inspector(s), and all authorities having jurisdiction. Developer shall be acquainted
with and comply with the provisions of these titles as they relate to this Project. (See
particularly the duties of Developer, title 24, part 1, California Code of Regulations,
section 4-343.) Developer shall also be acquainted with and comply with all
California Code of Regulations provisions relating to conditions on this Project,
particularly titles 8 and 17. Developer shall coordinate with Construction Manager
and shall submit its verified report(s) according to the requirements of title 24.
6.5.2. Daily Job Reports.
6.5.2.1. Developer shall maintain, at a minimum, at least one (1) set of Daily Job
Reports on the Project. These must be prepared by the Developer's employee(s) who
are present on Site, and must include, at a minimum, the following information:
6.5.2.1.1. A brief description of all Work performed on that day.
6.5.2.1.2. A summary of all other pertinent events and/or occurrences on that
day.
6.5.2.1.3. The weather conditions on that day.
6.5.2.1.4. A list of all Subcontractor(s) working on that day,
6.5.2.1.5. A list of each Developer employee working on that day and the total
hours worked for each employee.
6.5.2.1.6. A complete list of all equipment on Site that day, whether in use or
not.
6.5.2.1.7. A complete list of all materials, supplies, and equipment delivered on
that day.
6.5.2.1.8. A complete list of all inspections and tests performed on that day.
6.5.2.2. Each day Developer shall provide a copy of the previous day's Daily Job
Report to the District or the District's Construction Manager.
6.6. Preservation of Records
The District shall have the right to examine and audit all Daily Job Reports or other
Project records of Developer's project manager(s), project superintendent(s), and/or
project foreperson(s), all certified payroll records and/or related documents including,
without limitation, payroll, payment, timekeeping and tracking documents; all books,
estimates, records, contracts, documents, cost data, subcontract job cost reports, and other
data of the Developer, any Subcontractor, and/or supplier, including computations and
projections related to estimating, negotiating, pricing, or performing the Work or
Contract modification, in order to evaluate the accuracy, completeness, and currency of
the cost, manpower, coordination, supervision, or pricing data at no additional cost to the
District. These documents may be duplicative and/or be in addition to any documents
held in escrow by the District. The Developer shall make available at its office at all
Exhibit "D" to Facilities Uase: Page 12
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El Monte Union High School District & Ohno Construction Company
Developer's project manager and/or construction superintendent shall be as binding as
if given to Developer.
6.2.4. Developer shall give efficient supervision to Work, using its best skill and
attention. Developer shall carefully study and compare all Contract Documents,
Drawings, Specifications, and other instructions and shall at once report to District,
and Construction Manager, any error, inconsistency, or omission that Developer or its
employees and Subcontractors may discover, in writing, with a copy to District's
Project Inspector(s). The Developer shall have responsibility for discovery of errors,
inconsistencies, or omissions.
6.3. Duty to Provide Fit Workers
6.3.1. Developer and Subcontractor(s) shall at all times enforce strict discipline and
good order among their employees and shall not employ or work any unfit person or
anyone not skilled in work assigned to that person. It shall be the responsibility of
Developer to ensure compliance with this requirement. District may require
Developer to permanently remove unfit persons from Project Site.
6.3.2. Any person in the employ of Developer or Subcontractor(s) whom District
may deem incompetent or unfit shall be excluded from working on the Project and
shall not again be employed on the Project except with the prior written consent of
District.
6.3.3. The Developer shall furnish labor that can work in harmony with all other
elements of labor employed or to be employed in the Work.
6.3.4. If Developer intends to make any change in the name or legal nature of the
Developer's entity, Developer must first notify the District. The District shall
determine if Developer's intended change is permissible while performing this
Contract.
6.4. Purchase of Materials and Equipment
The Developer is required to order, obtain, and store materials. and equipment sufficiently
in advance of its Work at no additional cost or advance payment from District to assure
that there will be no delays.
6.5. Documeuts On Work
6.5.1. Developer shall at all times keep on the Work Site, or at another location as
the District may authorize in writing, one legible copy of all Contract Documents,
including Addenda and Change Orders, and titles 19 and 24 of the California Code of
Regulations, the specified edition(s) of the Uniform Building Code, all approved
Drawings, Plans, Schedules, and Specifications, and all codes and documents referred
Exhibit "D" to Facilities Lease: Page 11
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Developer shall construct the Work for the Guaranteed Maximum Price including any
adjustment(s) to the Guaranteed Maximum Price pursuant to provisions herein regarding
changes to the Guaranteed Maximum Price. Except as otherwise noted, Developer shall
provide and pay for all labor, materials, equipment, permits, fees, licenses, facilities,
transportation, taxes, and services necessary for the proper execution and completion of the
Work, except as indicated herein.
6.1. Status of Developer
6.1.1. Developer is and shall at all times be deemed to be an independent contractor
and shall be wholly responsible for the manner in which it and its Subcontractors
perform the services required of it by the Contract Documents. Frothing herein
contained shall be construed as creating the relationship of employer and employee, or
principal and agent, between the District, or any of the District's employees or agents,
and Developer or any of Developer's Subcontractors, agents or employees. Developer
assumes exclusively the responsibility for the acts of its employees as they relate to the
services to be provided during the course and scope of their employment. Developer,
its Subcontractors, agents, and its employees shall not be entitled to any rights or
privileges of District employees. District shall be permitted to monitor the
Developer's activities to determine compliance with the terms of this Contract.
6.1.2. As required by law, Developer and all Subcontractors shall be properly
licensed and regulated by the Contractors State License Board, 3132 Bradshaw Road,
Post Office Box 2600, Sacramento, California 98826, hqp://www.cslb.ca.gov.
6.2. Developer's Supervision
6.2.1. During progress of the Work, Developer shall keep on the Premises, and at all
other locations where any Work related to the Contract is being performed, a
competent project manager and construction superintendent who are employees of the
Developer, to whom the District and Construction Manager does not object and at
least one of whom shall be fluent in English, written and verbal.
6.2.2. The project manager and construction superintendent shall both speak fluently
the predominant language of the Developer's employees.
6.2.3. Before commencing the Work herein, Developer shall give written notice to
District of the name of its project manager and construction superintendent. Neither
the Developer's project manager nor construction superintendent shall be changed
except with prior written notice to District, unless the Developer's project manager
and/or construction superintendent proves to be unsatisfactory to Developer, District,
any of the District's employees, agents, or the Construction Manager, in which case,
Developer shall notify District in writing. The Developer's project manager and
construction superintendent shall each represent Developer, and all directions given to
Exhibit "D" to Facilities Lease: Page 10
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El Monte Union High School District & Ohno Construction Company
shall be without liability to the District. Developer shall instinct its Subcontractors
and employees accordingly.
5.1.3. If Developer and/or any Subcontractor requests that the Project Inspector(s)
perform any inspection off-site, this shall only be done if it is allowable pursuant to
applicable regulations and DSA, if the Project Inspector(s) agree to do so.
5.2. Tests and Inspections
5.2.1. Tests and Inspections shall comply with title 24, part 1, California Code of
Regulations, group 1, article 5, section 4-335, and with the provisions of the
Specifications.
5.2.2. The District will select an independent testing laboratory to conduct the tests.
Selection' of the materials required to be tested shall be by the laboratory or the
District's representative and not by the Developer. The Developer shall notify the
District's representative a sufficient time in advance of its readiness for required
observation or inspection.
5.2.3. The Developer shall notify the District's representative a sufficient time in
advance of the manufacture of material to be supplied under the Contract Documents,
that must by terms of the Contract Documents be tested, in order that the District may
arrange for the testing of same at the source of supply. This notice shall be, at a
minimum, seventy-two (72) hours prior to the manufacture of the material that needs
to be tested.
5.2.4. Any material shipped by the Developer from the source of supply prior to
having satisfactorily passed such testing and inspection or prior to the receipt of notice
from said representative that such testing and inspection will not be required, shall not
be incorporated into and/or onto the Project.
5.2.5. The District will select and pay testing laboratory costs for all tests and
inspections. Costs of tests of any materials found to be not in compliance with the
Contract Documents shall be paid for by the District and reimbursed by the Developer
or deducted from the Guaranteed Maximum Price.
5.3. Costs for After Hours and/or Off Site Inspections
If the Developer performs Work outside the Inspector's regular working hours, costs of
any inspections required outside regular working hours shall be borne by the Developer
and may be invoiced to the Developer by the District or the District may deduct those
expenses from the next Tenant Improvement Payment.
6. DEVELOPER
Exhibit "D" to Facilities Lease: Page 9
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El Monte Union High School District & Ohno Construction Company
4. CONSTRUCTION MANAGER
4.1. The Construction Manager will provide administration of the Contract on the
District's behalf. After execution of the Contract, all correspondence and/or instructions
from Developer and/or District shall be forwarded through the Construction Manager.
The Construction Manager will not be responsible for and will not have control or charge
of construction means, methods, techniques, sequences, or procedures or for safety
precautions in connection with :.the Work, which shall all remain the Developer's
responsibility.
4.2. The Construction Manager, however, will have authority to reject materials and/or
workmanship not conforming to the Contract Documents, as determined by the District,
the Architect, and/or the Project Inspector. The Construction Manager shall also have the
authority to require special inspection or testing of any portion of the Work, whether it
has been fabricated, installed, or fully completed. Any decision made. by the
Construction Manager, in good faith, shall not give rise to any duty or responsibility of
the Construction Manager to the Developer, any Subcontractor, their agents, employees,
or other persons performing any of the Work. The Construction Manager shall have free
access to any or all parts of Work at any time.
4.3. It is agreed that the Construction Manager shall have final say where there is a
difference in opinion between the Construction Manager and Project Inspector and the
Developer may rely on any final decision made by the Construction Manager.
5. INSPECTOR. INSPECTIONS. AND TESTS
5.1. Project Inspector
5.1.1. One or more Project Inspector(s), including special Project Inspector(s), as
required, will be assigned to the Work by District, in accordance with requirements of
title 24, part 1, of the California Code of Regulations, to enforce the building code and
monitor compliance with Plans and Specifications for the Project previously approved
by the DSA. Duties of Project Inspector(s) are specifically defined in section 4-342 of
said part 1 of title 24.
5.1.2. No Work shall be carried on except with the knowledge and under the
inspection of the Project Inspector(s). The Project Inspector(s) shall have free access
to any or all parts of Work at any time. Developer shall furnish Project Inspector(s)
reasonable opportunities for obtaining such information as may be necessary to keep
Project Inspector(s) fully informed respecting progress and manner of work and
character of materials. Inspection of Work shall not relieve Developer from an
obligation to fulfill this Contract. Project Inspector(s) and the DSA are authorized to
stop work whenever the Developer and/or its Subcontractor(s) are not complying with
the Contract Documents. Any work stoppage by the Project Inspector(s) and/or DSA
Exhibit "D" to Facilities Lease: Page S
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El Monte Union High School District & Ohno Construction Company
the Premises or any improvement or appurtenance thereon, except that Developer may
install metering devices or other equipment. of utility companies or of political
subdivision, title to which is commonly retained by utility company or political
subdivision. In the event of installation of any such metering device or equipment,
Developer shall advise District as to owner thereof.
1.8.8. Nothing contained in this Article, however, shall defeat or impair the rights of
persons furnishing materials or labor under any bond given by Developer for their
protection or any rights under any law permitting such protection or any rights under
any law permitting such persons to look to funds due Developer in hands of District
(e.g., Stop Notices), and this provision shall be inserted in all subcontracts and
material contracts and notice of its provisions shall be given to all persons furnishing
material for work when no formal contract is entered into for such material.
1.8.9. Title to new materials and/or equipment for the Work of this Contract and
attendant liability for its protection and safety shall remain with Developer until
incorporated in the Work of this Contract and accepted by District. 'No part of any
materials and/or equipment shall be removed from its place of storage except for
immediate installation in the Work of this Contract. Developer shall keep an accurate
inventory of all materials and/or equipment in a manner satisfactory to District or its
authorized representative and shall, at the District's request, forward it to the District.
2. 1RESERVEDI
3. ARCHITECT
3.1. The Architect shall represent the District during the Project and will observe the
progress and quality of the Work on behalf of the District. Architect shall have the
authority to act on behalf of District to the extent expressly provided in the Contract
Documents and to the extent determined by District. Architect shall have authority to
reject materials, workmanship, and/or the Work whenever rejection may be necessary, in
Architect's reasonable opinion, to insure the proper execution of the Contract.
3.2. Architect shall, with the District and on behalf of the District, determine the
amount, quality, acceptability, and fitness of all parts of the Work, and interpret the
Specifications, Drawings, and shall, with the District, interpret all other Contract
Documents.
3.3. Architect shall have all authority and responsibility established by law, including
title 24 of the California Code of Regulations.\
3.4. Developer shall provide District and the Construction Manager with a copy of all
written communication between Developer and Architect at the same time as that
communication is made to Architect, including, without limitation, all RFls,
correspondence, submittals, claims, and change order requests.
Exhibit "D" to Facilities Lease: _ Page 7
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1.8. Materials and Work
1.8.1. Except as otherwise specifically stated in this Contract, Developer shall
provide and pay for all materials, labor, tools, equipment, transportation, supervision,
temporary constructions of every nature, and all other services, management, and
facilities of every nature whatsoever necessary to execute and complete this Contract
within the Contract Time.
1.8.2. Unless otherwise specified, all materials shall be new and the best of their
respective kinds and grades as noted or specified, and workmanship shall be of high
quality.
1.8.3. Materials shall be furnished in ample quantities and at such times as to insure
uninterrupted progress of Work and shall be stored properly and protected as required.
1.8.4. For all materials and equipment specified or indicated in the Drawings and
Specifications, the Developer shall provide all labor, materials, equipment, and
services necessary for complete assemblies and complete working systems,
functioning as intended. Incidental items not indicated on Drawings, nor mentioned in
the Specifications, that can legitimately and, reasonably be inferred to belong to the
Work described, or be necessary in good practice to provide a complete assembly or
system, shall be fumished as though itemized here in every detail. In all instances,
material and equipment shall be installed in strict accordance with each manufacturer's
most recent published recommendations and specifications.
1.8.5. Developer shall, after award of Contract by District and after relevant
submittals have been approved, place orders for materials and/or equipment as
specified so that delivery of same may be made without delays to the Work.
Developer shall, upon demand from District, present documentary evidence showing
that orders have been placed.
1.8.6. District reserves the right but has no obligation, for any neglect in complying
with the above instructions, to place orders for such materials and/or equipment as it
may deem advisable in order that the Work may be completed at the date specified in
the Facilities Lease, and all expenses incidental to the procuring of said materials
and/or equipment shall be paid for by Developer or withheld from payment(s) to
Developer.
1.8.7. Developer warrants good title to all material, supplies, and equipment
installed or incorporated in Work and agrees upon completion of all Work to deliver
the Site to District, together with all improvements and appurtenances constructed or
placed thereon by it, and free from any claims, liens, or charges. Developer further
agrees that neither it nor any person, Firm, or corporation furnishing any materials or
labor for any work covered by the Contract shall have any right to lien any portion of
Exhibit "D" to Facilities Lease: Page 6
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El Monte Union High School District & Ohno Construction Company
rendered or material supplied for performance of work called for under this Contract in
favor of all persons, firms, or corporations rendering services or supplying material to the
extent that claims are filed pursuant to the Civil Code, Code of Civil Procedure,
Government Code, Labor Code, and/or Public Contract Code, and shall also be subject to
deductions for liquidated damages or withholding of payments as determined by District
in accordance with this Contract. Developer shall not assign or transfer in any manner to
a Subcontractor or supplier the right to prosecute or maintain an action against the
District.
1.5. Notice And Service Thereof
1.5.1. Any notice from one party to the other or otherwise under Contract shall be in
writing and shall be dated and signed by the party giving notice or by a duly
authorized representative of that party. Any notice shall not be effective for any
purpose whatsoever unless served in one of the following manners:
1.5.1.1. If notice is given by personal delivery thereof, it shall be considered
delivered on the day of delivery.
1.5.1.2. If notice is given by overnight delivery service, it shall be considered
delivered on (1) day after date deposited, as indicated by the delivery service.
1.5.1.3. If notice is given by depositing same in United States mail, enclosed in a
sealed envelope, it shall be considered delivered three (3) days after date deposited, as
indicated by the postmarked date.
1.5.1.4. If notice is given by registered or certified mail with postage prepaid,
return receipt requested, it shall be considered delivered on the day the notice is
signed for.
1.6. No Waiver
The failure of District in any one or more instances to insist upon strict performance of
any of the terms of this Contract or to exercise any option herein conferred shall not be
construed as a waiver or relinquishment to any extent of the right to assert or rely upon
any such terms or option on any future occasion. No action or failure to act by the
District, or Construction Manager shall constitute a waiver of any right or duty afforded
the District under the Contract, nor shall any action or failure to act constitute an approval
of or acquiescence in any breach thereunder, except as may be specifically agreed in
writing.
1.7. Substitutions For Specified Items
Developer shall not substitute any items identified in the Contract Documents without
prior written approval of the District.
Exhibit "D" to Facilities Lease: Page 5
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El Monte Union High School District & Ohno Construction Company
manufacturer, supplier, or distributor, that illustrate how specific portions of the Work
shall be fabricated or installed.
1.1.26. Site: The Project site as shown on the Drawings.
1.1.27. Specifications: That portion of the Contract Documents, Division 1 through
Division 32, and all technical sections, and addenda to all of these, if any, consisting of
written descriptions and requirements of a technical nature of materials, equipment,
construction methods and systems, standards, and workmanship.
1.1.28. Subcontractor: A contractor and/or supplier who is under contract with the
Developer or with any other subcontractor, regardless of tier, to perform a portion of
the Work of the Project.
1.1.29. Submittal Schedule: The schedule of submittals as provided by Developer
and reviewed by District.
1.1.30. Surety: The person, firm, or corporation that executes as surety the
Developer's Performance Bond and Payment Bond, and must be a California admitted
surety insurer as defined in the Code of Civil Procedure section 995.120.
1.1.31. Work: All labor, materials, equipment, components, appliances, supervision,
coordination, and services required by, or reasonably inferred from, the Contract
Documents, that are necessary for the construction and completion of the Project.
1.2. Laws Concerning The Contract
Contract is subject to all provisions of the Constitution and laws of California governing,
controlling, or affecting District, or the property, funds, operations, or powers of District,
and such provisions are by this reference made a part hereof. Any provision required by
law to be included in this Contract shall be deemed to be inserted.
1.3. No Oral Agreements
No oral agreement or conversation with any officer, agent, or employee of District, either
before or after execution of Contract, shall affect or modify any of the terms or
obligations contained in any of the documents comprising the Contract.
1.4. No Assignment
Except as specifically permitted in the Facilities Lease, Developer shall not assign this
Contract or any part thereof including, without limitation, any services or money to
become due hereunder without the prior written consent of the District. Assignment
without District's prior written consent shall be null and void. Any assignment of money
due or to be come due under this Contract shall be subject to a prior lien for services
Exhibit "D" to Facilities Lease:
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El Monte Union High School District & Ohno Construction Company
1.1.15. Labor Compliance Program: (or "LCP") If this Project is funded at least in
part with State bond funds, then the LCP is the program and related documents and
practices necessary for the program by which the District and/or its designee will
ensure that the Developer and all Subcontractors pay prevailing wages to all workers
on the Project.
1.1.16. Product(s): New material, machinery, components, equipment, fixtures and
systems forming the Work, including existing materials or components required and
approved by the District for reuse.
1.1.17. Product Data: Illustrations, standard schedules, performance charts,
instructions, brochures, diagrams, and other information furnished by the Developer to
illustrate a material, product, or system for some portion of the Work.
1.1.18. Project: The planned undertaking as provided for in the Contract Documents.
1.1.19. Project Inspector: (or "Inspector") The individual(s) retained by the District
in accordance with title 24 of the California Code of Regulations to monitor and
inspect the Project.
1.1.20. Program Manager: The individual, partnership, corporation, joint venture,
or any combination thereof, or its authorized representative, named as such by the
District. If no Program Manager is designated for Project that is the subject of this
Contract, then all references to Project Manager herein shall be read to refer to
District.
1.1.21. Provide: Shall include "provide complete in place," that is, "furnish and
install," and "provide complete and functioning as intended in place" unless
specifically stated otherwise.
1.1.22. Safety Orders: Written and/or verbal orders for construction issued by the
California Division of Industrial Safety ("CalOSHA") or by the United States
Occupational Safety and Health Administration ("OSHA").
1.1.23. Safety Plan: Developer's safety plan specifically adapted for the Project.
Developer's Safety Plan shall comply with all provisions regarding Project safety,
including all applicable provisions in these Construction Provisions.
1.1.24. Samples: Physical examples that illustrate materials, products, equipment,
finishes, colors, or workmanship and that, when approved in accordance with the
Contract Documents, establish standards by which portions of the Work will be
judged.
1.1.25. Shop Drawings: All drawings, prints, diagrams, illustrations, brochures,
schedules, and other data that are prepared by the Developer, a subcontractor,
Exhibit "U" to Facilities Lease:
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El Monte Union High School District & Ohno Construction Company
1.1.7.10. Prevailing Wage Certification
1.1.7.11. Disabled Veterans Business Enterprise Participation Certification
1.1.7.12. Drug-Free Workplace Certification
1.1.7.13. Criminal Background Investigation/Fingerprinting Certification
1.1.7.14. Hazardous Materials Certification
1.1.7.15. Lead-Based Paint Certification
1.1.7.16. Imported Materials Certification
1.1.7.17. All Plans, Technical Specifications, and Drawings
1.1.7.18. Any and all addenda-to any of the above documents
1.1.7.19. Any and all change orders or written modifications to the above
documents if approved in writing by the District
1.1.8. Contract Time: The time period stated in the Facilities Lease for the
completion of the Work.
1.1.9. Daily Job Report(s): Daily Project reports prepared by the Developer's
employee(s) who are present on Site, which shall include the information required
herein.
1.1.10. Day(s): Unless otherwise designated, day(s) means calendar day(s).
1.1.11. District: The public agency or the school district for which the Work is
performed. The governing board of the District or its designees will act for the
District in all matters pertaining to the Contract. The District may, at any time,
1.1.11.1. Direct the Developer to communicate with or provide notice to the
Construction Manager on matters for which the Contract Documents indicate the
Developer will communicate with or provide notice to the District; and/or
1.1.11.2. Direct the Construction Manager to communicate with or direct the
Developer on matters for which the Contract Documents indicate the District will
communicate with or direct the Developer.
1.1.12. Drawings: (or "Plans") The graphic and pictorial portions of the Contract
Documents showing the design, location, scope and dimensions of the work, generally
including plans, elevations, sections, details, schedules, sequence of operation, and
diagrams.
1.1.13. DSA: Division of the State Architect. This project will follow DSA
regulations during construction.
1.1.14. Guaranteed Maximum Price: The total monies payable to the Developer
under the terms and conditions of the Contract Documents.
Exhibit "D" to Facilities Lease: Page 2
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El Monte Union High School District & Ohno Construction Company
1. CONTRACT TERMS AND DEFINITIONS
1.1. Definitions
Wherever used in the Contract Documents, the following terms shall have the
meanings indicated, which shall be applicable to both the singular and plural
thereof:
1.1.1. Adverse Weather: Shall be only weather that satisfies all of the following
conditions: (1) unusually severe precipitation, sleet, snow, hail, heat, or cold
conditions in excess of the norm for the location and time of year it occurred, (2)
unanticipated, and (3) at the Project.
1.1.2. Approval, Approved, and/or Accepted: Refer to written authorization,
unless stated otherwise.
1.1.3. Architect: The individual, partnership, corporation, joint venture, or any
combination thereof, named as Architect, who will have the rights and authority
assigned to the Architect in the Contract Documents. The term Architect means the
District's Architect on this Project or the Architect's authorized representative.
1.1.4. Developer: The person or persons identified in the Facilities Lease as
contracting to perform the Work to be done under this Contract, or the legal
representative of such a person or persons.
1.1.5. Construction Manager: The Director of Construction or its authorized
representative, named as such by the District.
1.1.6. Construction Schedule: The progress schedule of construction of the Project
as provided by Developer and reviewed by District/Construction Manager.
1.1.7. Contract, Contract Documents: The Contract consists exclusively of the
documents evidencing the agreement of the District and Developer, identified as the
Contract Documents. The Contract Documents consist of the following documents:
1.1.7.1. Site Lease
1.1.7.2. Facilities Lease
1.1.7.3. Non-collusion Affidavit
1.1.7.4. Performance Bond
1.1.7.5. Payment Bond (Developer's Labor & Material Bond)
1.1.7.6. These Construction Provisions
1.1.7.7. Labor Compliance Program Information and Forms
1.1.7.8. Hazardous Materials Procedures and Requirements
1.1.7.9. Workers' Compensation Certification
Exhibit "D" to Facilities Lease: Page 1
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
26.5.
Apprentices
26.6.
Non-Discrimination
26.7.
Labor First Aid
27. MISCELLANEOUS
27.1.
Assignment of Antitrust Actions......
27.2.
Excise Taxes
27.3.
Taxes
27.4.
Shipments
Exhibit "D" to Facilities Lease: Page 7
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
20.2. Close-Out Procedures
44
20.3. Final Insnection
..........45
20.4. Costs of Multiple Inspections
46
20.5. Partial Occupancy or Use Prior to Completion
46
21. FINAL PAYMENT
47
21.1. Final Payment
47
21.2. Prerequisites for Final Payment
47
22. UNCOVERING OF WORK
49
23. NONCONFORMING WORK AND CORRECTION OF WORK
49
23.1. Nonconforming Work
49
23.2. Correction of Work
49
23.3 District's Right to Perform Work
50
24. TERMINATION AND SUSPENSION
........50
24.1. Emergency Termination of Public Contracts Act of 1949
51
25. CLAIMS AND DISPUTES .
51
25.1. Performance During Claim Process
51
25.2. Definition of Claim
51
25.3. Claim Presentations
52
25.4. Claim Resolution
52
26. LABOR, WAGE & HOUR, APPRENTICE AND RELATED PROVISION&.
55
26.1. Labor Compliance Program
55
26.2. Wage Rates, Travel, and Subsistence
55
26.3. Hours of Work
56
26.4. Payroll Records
57
Exhibit "D" to Facilities Lease: Page 6
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
16.4. Float or Slack in the Schedule
31
17. CHANGES IN THE WORK
31
17.1. No Changes Without Authorization
31
17.2. Architect Authority
32
17.3. Change Orders
32
17.4. Format for Change Order Reg best
33
17.5. Change Order Certification
34
17.6. Determination of Change Order Cost
35
17.7. Deductive Change Orders
35
17.8. Discounts. Rebates, and Refunds
35
17.9. Accounting Records
35
17.10. Notice Reauired
35
17.11. Applicability to Subcontractors
35
17.12. Alteration to Change Order Language
36
17.13. Failure of Developer to Execute Change Order
36
18. REQUEST FOR INFORMATION
36
19. PAYMENTS
36
19.1. Guaranteed Maximum Price
36
19.2. Applications for Tenant Improvement Payments
36
19.3. District's Approval of Application for Payment
39
19.4. Decisions to Withhold Payment
41
19.5. Subcontractor Payments 43
20. COMPLETION OF THE WORK 44
20.1. Completion .................................................................................................................44
Exhibit "D" to Facilities Lease: Page 5
A0914- Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
11.6.. Notification
25
11.7. Hazardous Materials
25
11.8. No Signs
25
12. TRENCHES
..........26
12.1. Trenches Greater Than Five Feet
26
12.2. Excavation Safety
26
12.3. No Tort Liability of District
26
12.4. No Excavation Without Permits
26
12.5. Discovery of Hazardous Waste and/or Unusual Conditions
26
13. INSURANCE AND BONDS
27
13.1 Developer's Insurance
27
13.2 Contract Security - Bonds
27
14. WARRANTY/GUARANTEE/INDEMNITY
28
14.1. Warrantv/Guarantee
.........28
14.2. Indemnity
29
15. TIME
........29
15.1. Hours of Work
29
15.2. Progress and Completion
29
15.3. Schedule
........29
15.4. Expeditious Completion
.......29
16. EXTENSIONS OF TIME - LIQUIDATED DAMAGES
30
16.1. Liquidated Damages
.......30
16.2. Excusable Delay
30
16.3. No Additional Compensation for Delays Within Developer's Control
31
Exhibit "L" to Facilities Lease: Page 4
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
6.5. Documents On Work
6.6. Preservation of Records
6.7. Integration of Work
6.8. Obtaining of Permits and Licenses
6.9. Work to Comply With Applicable Laws and Regulations...........
6.10. Safety/Protection of Persons and Property
6.11. Working Evenings and Weekends
6.12. CleaningUn
7. SUBCONTRACTORS
11
12
13
13
13
14
17
18
18
8. OTHER CONTRACTS/CONTRACTORS 19
9. DRAWINGS AND SPECIFICATIONS
10. DEVELOPER'S SUBMITTALS AND SCHEDULES
10.1. Construction Schedule
10.2. Schedule of Values
10.3. Safety Plan
10.4. Complete Subcontractor List
10.5. Monthly Progress Schedule(s)
10.6. Material Safety Data Sheets (MSDS) 23
11. SITE ACCESS. CONDITIONS. AND REQUIREMENTS
11.1. Site Investigation
11.2. Soils Investigation Report
11.3. Layout and Field Engineering
11.4. Regional Notification Center
11.5. Existing Utility Lines
23
23
24
24
24
24
Exhibit "D" to Facilities Lease:
A0914- Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
Page 3
TABLE OF CONTENTS
1. CONTRACT TERMS AND DEFDVITIONS
1
I.I. Definitions
I
1.2. Laws Concerning The Contract
4
1.3. No Oral Agreements
4
1.4. No Assignment
4
1.5. Notice Arid Service Thereof
5
1.6. No Waiver
5
1.7. Substitutions For Specified Items
5
1.8. Materials and Work
6
2. [RESERVED]
7
3. Not Used
7
4. CONSTRUCTION MANAGER
8
5. INSPECTOR. INSPECTIONS AND TESTS
8
5.1. Pro 4 ect Inspector
........................8
5.2. Tests and Inspections
9
5.3. Costs for After Hours and/or Off Site Inspections
9
6. DEVELOPER
.......................9
6.1. Status of Developer
10
6.2. Developer's Supervision
10
6.3. Duty to Provide Fit Workers
11
6.4. Purchase of Materials and Equipment
I I
Exhibit "D" to Facilities Lease: Page 2
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
EXHIBIT "D"
TO
FACILITIES LEASE
CONSTRUCTION PROVISIONS
FOR THE FOLLOWING PROJECT:
CONSTRUCTION OF IMPROVEMENTS AT ROSEMEAD HIGH SCHOOL
By and between
El Monte Union High School District
3537 Johnson Avenue
El Monte, CA 91731
And
Ohno Construction Company
16174 Boyle Avenue
Fontana, CA 92337
Dated as of May 6, 2010
Exhibit "D" to Facilities Lease:
A0914 - Synthetic Running Track at Rosemead HS Project
Page 1
El Monte Union High School District & Ohno Construction Company
EXHIBIT D
GENERAL, CONSTRUCTIONTROVISIONS
Aw;i, -Synthetic Running Track at Rosemead HS Project Page 28
El Monte Union School District & Ohno Construction Company
3.3. Cost Savings. Developer shall work cooperatively with Architect, subcontractors
and District/Construction Manager, in good faith, to identify appropriate opportunities to
reduce the Project costs and promote cost savings. Any identified cost savings from the
Guaranteed Maximum Price shall be identified by Developer, and if approved in writing by
the District, that cost savings shall be deducted from the Guaranteed Maximum Price. If any
cost savings require revisions to the Construction Documents, Developer shall work with the
District/Construction Manager with respect to revising the Construction Documents and, if
necessary, obtaining the approval of DSA with respect to those revisions. Any reasonable
cost incurred by District for those revisions shall be paid for out of the identified savings
before it is deducted from the Guaranteed Maximum Price. Developer shall be entitled to an
extension of Contract Time equal to the delay in completion caused by any cost savings
adopted by District, if requested in writing before the approval of the cost savings.
4. Contingency
The Parties have agreed to establish a contingency fund in the amount of $0. The
contingency fund may not be used by the Developer without the prior written consent of the
District. Upon Project completion, any remaining amount in the contingency fund will be
retained by the District.
5. District's Purchase Option
5.1. If the District is not then in uncured Default hereunder, the District shall have the
option to purchase not less than all of the Project in its "as-is, where-is" condition and
terminate this Facilities Lease and Site Lease by paying the "Total Principal Amount as Part
of Lease Payment" as of the date the option is exercised ("Option Price").
5.2. District shall provide Developer no less than thirty (30) days' prior written notice that
District is exercising its option to purchase the Project as set forth above on a specific date
("Option Date"). If the District exercises this option, the District shall pay directly to
Developer the Option Price on or prior to the Option Date and Developer shall at that time
deliver to District all reasonably necessary documents in recordable form to terminate this
Facilities Lease and the Site Lease. District may record all such documents at District's cost
and expense.
5.3. Under no circumstances can the first Option Date be on or before thirty-five (35) days
after the Developer completes the Project and the District accepts the Project.
Exhibit "C" to Facilities Lease: Page 2
A0914 - Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
EXHIBIT C
GUARANTEED MAXIMUM PRICE AND
OTHER PROJECT COST. FUNDING. AND PAYMENT PROVISIONS
1. Site Lease Payment. As indicated in the Site Lease, Developer shall pay One Dollar ($1.00)
to the District as consideration for the Site Lease.
2. Guaranteed Maximum Price. Pursuant to the Facilities Lease, Developer will cause the
Project to be constructed for One Million Seventy-Seven Thousand Five Hundred and Fifty
dollars and Sixty-Five Cents ($1,077,550.65) ("Guaranteed Maximum Price"). Except as
indicated herein for modifications to the Project approved by the District, Developer will not
seek additional compensation from District in excess of Guaranteed Maximum Price. District
shall pay the Guaranteed Maximum Price to Developer in the form of Tenant Improvement
Payments and Lease Payments as indicated herein.
2.1. Tenant Improvement Payments. Prior to the District's taking delivery or
occupancy of the Project, the District shall pay to Developer One Million Seventy-Seven
Thousand Five Hundred and Fifty dollars and Sixty-Five Cents ($1,077,550.65) ("Tenant
Improvement Payment(s)"), based on the amount of Work performed according to the
Developer's Schedule of Values (Exhibit G to the Facilities Lease) and pursuant to the
provisions in Exhibit D to the Facilities Lease.
2.2. Lease Payment. After the Parties execute the Memorandum of Commencement Date,
attached to the Facilities Lease as Exhibit E, the District shall pay to Developer a total of
dollars ) in one lease payment.
2.3. In no event shall the cumulative total of the Tenant Improvement Payments and the
Lease Payment ever exceed the Guaranteed Maximum Price as defined herein, unless
modified pursuant to Exhibit D to the Facilities Lease.
3. Changes to Guaranteed Project Cost.
3.1. As indicated in the Facilities Lease, the Parties may add or remove specific scopes of
work from the Project. Based on these change(s), the Parties may agree to a reduction or
increase in the Guaranteed Maximum Price. If a cost impact or a change is agreed toFby the
Parties, it shall be reflected as a reduction or increase in the Tenant Improvement Payments
and paid upon the payment request from the Developer when the work is performed, or
deducted from the next payment request from the Developer, as applicable.
3.2. The Parties acknowledge that the Guaranteed Maximum Price is based on the
Construction Documents, including the plans, and specifications, as identified in Exhibit D
to the Facilities Lease.
Exhibit "C" to Facilities Lease: Page 1
A0914 -Synthetic Running Track at Rosemead HS Project
El Monte Union High School District & Ohno Construction Company
EXHIBIT C
GUARANTEED MAXIMUM PRICE AND
OTHER PROJECT COST, FUNDING, AND PAYMENT PROVISIONS
Attached are the terms and provisions related to Site Lease payments, the Facilities Lease,
The Guaranteed Maximum Price, and other related cost, funding, and payment provisions.
Facilities Lease: Page 27
A0914-Synthetic Running Track at Rosemead HS Project
El Monte Union School District & Ohno Construction Company
EXHIBIT "B"
DESCRIPTION OF PROJECT SITE
The Legal Description for portion of the School Site that is subject to this Site Lease and
upon which Developer will construct the Project to follow. See attached site plan.
Nacilities Lease: - Page 26
A0914- Synthetic Running Track at Rosemead HS Project
El Monte Union School District & Ohno Construction Company
EXHIBIT "A"
LEGAL DESCRIPTION OF SCHOOL SITE
Attached is the Legal Description for:
Rosemead High School
9063 Mission Drive
El Monte, CA 91770 _
The real property is situated in the State of California, County of Los Angeles and is described as
follows:
Facilities Lease: Page 25
A0914 - Synthetic Running Track at Rosemead HS Project
EI Monte Union School District & Ohno Construction Company
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On 20 . before me, the undersigned notary public,
personally appeared
[ ] personally known to me; OR
[ ] proved to me on the basis of satisfactory evidence;
to be the person(s) whose whole name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by Ms/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
Facilities Lease: Page 24
A0914- Synthetic Running Track at Rosemead HS Project
El Monte Union School District & Ohno Construction Company