7100. Provisions in public works contracts with public entities
which provide that acceptance of a payment otherwise due a contractor
is a waiver of all claims against the public entity arising out of
the work performed under the contract or which condition the right to
payment upon submission of a release by the contractor of all claims
against the public entity arising out of performance of the public
work are against public policy and null and void. This section shall
not prohibit a public entity from placing in a public works contract
and enforcing a contract provision which provides that payment of
undisputed contract amounts is contingent upon the contractor
furnishing the public entity with a release of all claims against the
public entity arising by virtue of the public works contract related
to those amounts. Disputed contract claims in stated amounts may be
specifically excluded by the contractor from the operation of the
release.
7101. The state or any other public entity in any public works
contract awarded to the lowest bidder, may provide for the payment of
extra compensation to the contractor for the cost reduction changes
in the plans and specifications for the project made pursuant to a
proposal submitted by the contractor. The extra compensation to the
contractor shall be 50 percent of the net savings in construction
costs as determined by the public entity. For projects under the
supervision of the Department of Transportation or local or regional
transportation entities, the extra compensation to the contractor
shall be 60 percent of the net savings, if the cost reduction changes
significantly reduce or avoid traffic congestion during construction
of the project, in the opinion of the public entity. The contractor
may not be required to perform the changes contained in an eligible
change proposal submitted in compliance with the provisions of the
contract unless the proposal was accepted by the public entity.
7102. Contract provisions in construction contracts of public
agencies and subcontracts thereunder which limit the contractee's
liability to an extension of time for delay for which the contractee
is responsible and which delay is unreasonable under the
circumstances involved, and not within the contemplation of the
parties, shall not be construed to preclude the recovery of damages
by the contractor or subcontractor.
No public agency may require the waiver, alteration, or limitation
of the applicability of this section. Any such waiver, alteration,
or limitation is void. This section shall not be construed to void
any provision in a construction contract which requires notice of
delays, provides for arbitration or other procedure for settlement,
or provides for liquidated damages.
7103. (a) (1) Every original contractor to who is awarded a
contract by a state entity, as defined in subdivision (d), involving
an expenditure in excess of twenty-five thousand dollars ($25,000)
for any public work shall, before entering upon the performance of
the work, file a payment bond with and approved by the officer or
state entity by who the contract was awarded. The bond shall be in a
sum not less than 100 percent of the total amount payable by the
terms of the contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office, department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 3247 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
7103. (a) (1) Every original contractor that is awarded a contract
by a state entity, as defined in subdivision (d), involving an
expenditure in excess of twenty-five thousand dollars ($25,000) for
any public work shall, before entering upon the performance of the
work, file a payment bond with and approved by the officer or state
entity that awarded the contract. The bond shall be in a sum not less
than 100 percent of the total amount payable by the terms of the
contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office, department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 9550 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
7103.5. (a) As used in this section:
(1) "Public works contract" means a contract awarded through
competitive bids by the state or any of its political subdivisions or
public agencies, on whose behalf the Attorney General may bring an
action pursuant to subdivision (c) of Section 16750 of the Business
and Professions Code, for the erection, construction, alteration,
repair, or improvement of any structure, building, road, or other
improvement of any kind.
(2) "Awarding body" means the state or the subdivision or agency
awarding a public works contract.
(b) In entering into a public works contract or a subcontract to
supply goods, services, or materials pursuant to a public works
contract, the contractor 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 (commencing
with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or
materials pursuant to the public works contract or the subcontract.
This assignment shall be made and become effective at the time the
awarding body tenders final payment to the contractor, without
further acknowledgment by the parties.
(c) Subdivision (b) shall be included in full in the
specifications for the public works contract or in the general
provisions incorporated therein and shall be included in full in the
public works contract or in the general provisions incorporated
therein.
7104. Any public works contract of a local public entity which
involves digging trenches or other excavations that extend deeper
than four feet below the surface shall contain a clause which
provides the following:
(a) That the contractor shall promptly, and before the following
conditions are disturbed, notify the local public entity, in writing,
of any:
(1) Material that the contractor believes may be material that is
hazardous waste, as defined in Section 25117 of the Health and Safety
Code, that is required to be removed to a Class I, Class II, or
Class III disposal site in accordance with provisions of existing
law.
(2) Subsurface or latent physical conditions at the site differing
from those indicated by information about the site made available to
bidders prior to the deadline for submitting bids.
(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.
(b) That the local public entity 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 contractor's cost of, or the time required for,
performance of any part of the work shall issue a change order under
the procedures described in the contract.
(c) That, in the event that a dispute arises between the local
public entity and the contractor whether the conditions materially
differ, or involve hazardous waste, or cause a decrease or increase
in the contractor's cost of, or time required for, performance of any
part of the work, the contractor 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
contractor shall retain any and all rights provided either by
contract or by law which pertain to the resolution of disputes and
protests between the contracting parties.
7105. (a) Construction contracts of public agencies shall not
require the contractor to be responsible for the cost of repairing or
restoring damage to the work, which damage is determined to have
been proximately caused by an act of God, in excess of 5 percent of
the contracted amount, provided, that the work damaged is built in
accordance with accepted and applicable building standards and the
plans and specifications of the awarding authority. However,
contracts may include provisions for terminating the contract. The
requirements of this section shall not be mandatory as to
construction contracts financed by revenue bonds. This section shall
not prohibit a public agency from requiring that a contractor obtain
insurance to indemnify the public agency for any damage to the work
caused by an act of God if the insurance premium is a separate bid
item. If insurance is required, requests for bids issued by public
agencies shall set forth the amount of the work to be covered and the
contract resulting from the requests for bids shall require that the
contractor furnish evidence of satisfactory insurance coverage to
the public agency prior to execution of the contract.
(b) For the purposes of this section:
(1) "Public agency" shall include the state, the Regents of the
University of California, a city, county, district, public authority,
public agency, municipal utility, and any other political
subdivision or public corporation of the state.
(2) "Acts of God" shall include only the following occurrences or
conditions and effects: earthquakes in excess of a magnitude of 3.5
on the Richter Scale and tidal waves.
(c) Public agencies may make changes in construction contracts for
public improvements in the course of construction to bring the
completed improvements into compliance with environmental
requirements or standards established by state and federal statutes
and regulations enacted after the contract has been awarded or
entered into. The contractor shall be paid for the changes in
accordance with the provisions of the contract governing payment for
changes in the work or, if no provisions are set forth in the
contract, payment shall be as agreed to by the parties.
(d) (1) Where authority to contract is vested in any public
agency, excluding the state, the authority shall include the power,
by mutual consent of the contracting parties, to terminate, amend, or
modify any contract within the scope of such authority.
(2) Paragraph (1) shall not apply to contracts entered into
pursuant to any statute expressly requiring that contracts be let or
awarded on the basis of competitive bids. Contracts of public
agencies, excluding the state, required to be let or awarded on the
basis of competitive bids pursuant to any statute may be terminated,
amended, or modified only if the termination, amendment, or
modification is so provided in the contract or is authorized under
provision of law other than this subdivision. The compensation
payable, if any, for amendments and modifications shall be determined
as provided in the contract. The compensation payable, if any, in
the event the contract is so terminated shall be determined as
provided in the contract or applicable statutory provision providing
for the termination.
(3) Contracts of public agencies may include provisions for
termination for environmental considerations at the discretion of the
public agencies.
7106. Any public works contract of a public entity shall include an
affidavit, in the following form:
"NONCOLLUSION AFFIDAVIT TO BE EXECUTED
BY
BIDDER AND SUBMITTED WITH BID
State of California )
ss.
County of ________ )
______, being first duly sworn, deposes and says that he or she is
____ of ____ the party making the foregoing bid that the bid is not
made in the interest of, or on behalf of, any undisclosed person,
partnership, company, association, organization, or corporation; that
the bid is genuine and not collusive or sham; that the bidder has
not directly or indirectly induced or solicited any other bidder to
put in a false or sham bid, and has not directly or indirectly
colluded, conspired, connived, or agreed with any bidder or anyone
else to put in a sham bid, or that anyone shall refrain from bidding;
that the bidder has not in any manner, directly or indirectly,
sought by agreement, communication, or conference with anyone to fix
the bid price of the bidder or any other bidder, or to fix any
overhead, profit, or cost element of the bid price, or of that of any
other bidder, or to secure any advantage against the public body
awarding the contract of anyone interested in the proposed contract;
that all statements contained in the bid are true; and, further, that
the bidder has not, directly or indirectly, submitted his or her bid
price or any breakdown thereof, or the contents thereof, or divulged
information or data relative thereto, or paid, and will not pay, any
fee to any corporation, partnership, company association,
organization, bid depository, or to any member or agent thereof to
effectuate a collusive or sham bid."
7107. (a) This section is applicable with respect to all contracts
entered into on or after January 1, 1993, relating to the
construction of any public work of improvement.
(b) The retention proceeds withheld from any payment by the public
entity from the original contractor, or by the original contractor
from any subcontractor, shall be subject to this section.
(c) Within 60 days after the date of completion of the work of
improvement, the retention withheld by the public entity shall be
released. In the event of a dispute between the public entity and the
original contractor, the public entity may withhold from the final
payment an amount not to exceed 150 percent of the disputed amount.
For purposes of this subdivision, "completion" means any of the
following:
(1) The occupation, beneficial use, and enjoyment of a work of
improvement, excluding any operation only for testing, startup, or
commissioning, by the public agency, or its agent, accompanied by
cessation of labor on the work of improvement.
(2) The acceptance by the public agency, or its agent, of the work
of improvement.
(3) After the commencement of a work of improvement, a cessation
of labor on the work of improvement for a continuous period of 100
days or more, due to factors beyond the control of the contractor.
(4) After the commencement of a work of improvement, a cessation
of labor on the work of improvement for a continuous period of 30
days or more, if the public agency files for record a notice of
cessation or a notice of completion.
(d) Subject to subdivision (e), within seven days from the time
that all or any portion of the retention proceeds are received by the
original contractor, the original contractor shall pay each of its
subcontractors from whom retention has been withheld, each
subcontractor's share of the retention received. However, if a
retention payment received by the original contractor is specifically
designated for a particular subcontractor, payment of the retention
shall be made to the designated subcontractor, if the payment is
consistent with the terms of the subcontract.
(e) The original contractor may withhold from a subcontractor its
portion of the retention proceeds if a bona fide dispute exists
between the subcontractor and the original contractor. The amount
withheld from the retention payment shall not exceed 150 percent of
the estimated value of the disputed amount.
(f) In the event that retention payments are not made within the
time periods required by this section, the public entity or original
contractor withholding the unpaid amounts shall be subject to a
charge of 2 percent per month on the improperly withheld amount, in
lieu of any interest otherwise due. Additionally, in any action for
the collection of funds wrongfully withheld, the prevailing party
shall be entitled to attorney's fees and costs.
(g) If a state agency retains an amount greater than 125 percent
of the estimated value of the work yet to be completed pursuant to
Section 10261, the state agency shall distribute undisputed retention
proceeds in accordance with subdivision (c). However,
notwithstanding subdivision (c), if a state agency retains an amount
equal to or less than 125 percent of the estimated value of the work
yet to be completed, the state agency shall have 90 days in which to
release undisputed retentions.
(h) Any attempted waiver of the provisions of this section shall
be void as against the public policy of this state.
7108. Any contract of a public entity to provide train service
shall require compliance with the personnel requirements of Chapter 2
(commencing with Section 6900) of Part 2 of Division 5 of the Labor
Code.
7109. (a) For purposes of this section:
(1) "Antigraffiti technology" means landscaping, paint, or other
covering resistant to graffiti, or other procedures to deter
graffiti.
(2) "Graffiti" means any unauthorized inscription, work, figure,
or design that is marked, etched, scratched, drawn, or painted on any
structural component of any building, structure, or other facility
regardless of its content or nature and regardless of the nature of
the material of the structural component.
(3) "Project" means the erection, construction, alteration,
repair, or improvement of any public structure, building, road, or
other public improvement of any kind.
(b) If a public entity determines that a project may be vulnerable
to graffiti and the public entity will be awarding a public works
contract after January 1, 1996, for that project, it is the intent of
the Legislature that the public entity may do one or more of the
following:
(1) Include a provision in the public works contract that
specifies requirements for antigraffiti technology in the plans and
specifications for the project.
(2) Establish a method to finance a graffiti abatement program.
(3) Establish a program to deter graffiti.
7110. (a) It is the policy of this state that anyone who enters
into a contract with a state agency shall recognize the importance of
child and family support obligations and shall fully comply with all
applicable state and federal laws relating to child and family
support enforcement, including, but not limited to, disclosure of
information and compliance with earnings assignment orders, as
provided in Chapter 8 (commencing with Section 5200) of Part 5 of
Division 9 of the Family Code.
(b) Every written contract in excess of one hundred thousand
dollars ($100,000) executed between a contractor and a state agency
shall contain the following:
(1) An acknowledgment by the contractor of the policy of the state
set forth in subdivision (a).
(2) An acknowledgment by the contractor that to the best of its
knowledge it is fully complying with the earnings assignment orders
of all employees and is providing the names of all new employees to
the New Hire Registry maintained by the Employment Development
Department.
7200. (a) (1) This section shall apply with respect to all
contracts entered into on or after January 1, 1999, between a public
entity and an original contractor, between an original contractor and
a subcontractor, and between all subcontractors thereunder, relating
to the construction of any public work of improvement.
(2) For purposes of this section, "public entity" means the state,
including every state agency, office, department, division, bureau,
board, or commission, a city, county, city and county, including
chartered cities and chartered counties, district, special district,
public authority, political subdivision, public corporation, or
nonprofit transit corporation wholly owned by a public agency and
formed to carry out the purposes of the public agency.
(b) In a contract between the original contractor and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the public entity and the original contractor.
(c) When a performance and payment bond is required in the
solicitation for bids, subdivision (b) shall not apply to either of
the following:
(1) The original contractor, if the subcontractor fails or refuses
to provide a performance and payment bond, issued by an admitted
surety insurer, to the original contractor.
(2) The subcontractor, if a subcontractor thereunder fails or
refuses to provide a performance and payment bond, issued by an
admitted surety insurer, to the subcontractor.
(d) No party identified in subdivision (b) shall require any other
party to waive any provision of this section.
(e) In the event that the contractor elects to substitute
securities in lieu of retentions, the contractor may withhold from
his or her subcontractors, who have not elected to substitute
securities in lieu of retentions, the amount of retentions that would
have otherwise been withheld.
7202. (a) The Department of Transportation is prohibited from
withholding retention proceeds when making progress payments to a
contractor for work performed on a transportation project.
(b) Nothing in this section shall alter, amend, or impair the
rights, duties, and obligations of an original contractor, its
subcontractors, and all subcontractors thereunder, relating to the
construction of any public work of improvement as set forth in
Section 7200 of the Public Contract Code.
(c) The department shall promptly notify the appropriate policy
committees of the Legislature if the state's best interests are
compromised because retention was not withheld on a transportation
project.
(d) This section shall become inoperative and shall be repealed on
January 1, 2014.
7100. Provisions in public works contracts with public entities
which provide that acceptance of a payment otherwise due a contractor
is a waiver of all claims against the public entity arising out of
the work performed under the contract or which condition the right to
payment upon submission of a release by the contractor of all claims
against the public entity arising out of performance of the public
work are against public policy and null and void. This section shall
not prohibit a public entity from placing in a public works contract
and enforcing a contract provision which provides that payment of
undisputed contract amounts is contingent upon the contractor
furnishing the public entity with a release of all claims against the
public entity arising by virtue of the public works contract related
to those amounts. Disputed contract claims in stated amounts may be
specifically excluded by the contractor from the operation of the
release.
7101. The state or any other public entity in any public works
contract awarded to the lowest bidder, may provide for the payment of
extra compensation to the contractor for the cost reduction changes
in the plans and specifications for the project made pursuant to a
proposal submitted by the contractor. The extra compensation to the
contractor shall be 50 percent of the net savings in construction
costs as determined by the public entity. For projects under the
supervision of the Department of Transportation or local or regional
transportation entities, the extra compensation to the contractor
shall be 60 percent of the net savings, if the cost reduction changes
significantly reduce or avoid traffic congestion during construction
of the project, in the opinion of the public entity. The contractor
may not be required to perform the changes contained in an eligible
change proposal submitted in compliance with the provisions of the
contract unless the proposal was accepted by the public entity.
7102. Contract provisions in construction contracts of public
agencies and subcontracts thereunder which limit the contractee's
liability to an extension of time for delay for which the contractee
is responsible and which delay is unreasonable under the
circumstances involved, and not within the contemplation of the
parties, shall not be construed to preclude the recovery of damages
by the contractor or subcontractor.
No public agency may require the waiver, alteration, or limitation
of the applicability of this section. Any such waiver, alteration,
or limitation is void. This section shall not be construed to void
any provision in a construction contract which requires notice of
delays, provides for arbitration or other procedure for settlement,
or provides for liquidated damages.
7103. (a) (1) Every original contractor to who is awarded a
contract by a state entity, as defined in subdivision (d), involving
an expenditure in excess of twenty-five thousand dollars ($25,000)
for any public work shall, before entering upon the performance of
the work, file a payment bond with and approved by the officer or
state entity by who the contract was awarded. The bond shall be in a
sum not less than 100 percent of the total amount payable by the
terms of the contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office, department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 3247 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
7103. (a) (1) Every original contractor that is awarded a contract
by a state entity, as defined in subdivision (d), involving an
expenditure in excess of twenty-five thousand dollars ($25,000) for
any public work shall, before entering upon the performance of the
work, file a payment bond with and approved by the officer or state
entity that awarded the contract. The bond shall be in a sum not less
than 100 percent of the total amount payable by the terms of the
contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office, department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 9550 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
7103.5. (a) As used in this section:
(1) "Public works contract" means a contract awarded through
competitive bids by the state or any of its political subdivisions or
public agencies, on whose behalf the Attorney General may bring an
action pursuant to subdivision (c) of Section 16750 of the Business
and Professions Code, for the erection, construction, alteration,
repair, or improvement of any structure, building, road, or other
improvement of any kind.
(2) "Awarding body" means the state or the subdivision or agency
awarding a public works contract.
(b) In entering into a public works contract or a subcontract to
supply goods, services, or materials pursuant to a public works
contract, the contractor 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 (commencing
with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or
materials pursuant to the public works contract or the subcontract.
This assignment shall be made and become effective at the time the
awarding body tenders final payment to the contractor, without
further acknowledgment by the parties.
(c) Subdivision (b) shall be included in full in the
specifications for the public works contract or in the general
provisions incorporated therein and shall be included in full in the
public works contract or in the general provisions incorporated
therein.
7104. Any public works contract of a local public entity which
involves digging trenches or other excavations that extend deeper
than four feet below the surface shall contain a clause which
provides the following:
(a) That the contractor shall promptly, and before the following
conditions are disturbed, notify the local public entity, in writing,
of any:
(1) Material that the contractor believes may be material that is
hazardous waste, as defined in Section 25117 of the Health and Safety
Code, that is required to be removed to a Class I, Class II, or
Class III disposal site in accordance with provisions of existing
law.
(2) Subsurface or latent physical conditions at the site differing
from those indicated by information about the site made available to
bidders prior to the deadline for submitting bids.
(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.
(b) That the local public entity 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 contractor's cost of, or the time required for,
performance of any part of the work shall issue a change order under
the procedures described in the contract.
(c) That, in the event that a dispute arises between the local
public entity and the contractor whether the conditions materially
differ, or involve hazardous waste, or cause a decrease or increase
in the contractor's cost of, or time required for, performance of any
part of the work, the contractor 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
contractor shall retain any and all rights provided either by
contract or by law which pertain to the resolution of disputes and
protests between the contracting parties.
7105. (a) Construction contracts of public agencies shall not
require the contractor to be responsible for the cost of repairing or
restoring damage to the work, which damage is determined to have
been proximately caused by an act of God, in excess of 5 percent of
the contracted amount, provided, that the work damaged is built in
accordance with accepted and applicable building standards and the
plans and specifications of the awarding authority. However,
contracts may include provisions for terminating the contract. The
requirements of this section shall not be mandatory as to
construction contracts financed by revenue bonds. This section shall
not prohibit a public agency from requiring that a contractor obtain
insurance to indemnify the public agency for any damage to the work
caused by an act of God if the insurance premium is a separate bid
item. If insurance is required, requests for bids issued by public
agencies shall set forth the amount of the work to be covered and the
contract resulting from the requests for bids shall require that the
contractor furnish evidence of satisfactory insurance coverage to
the public agency prior to execution of the contract.
(b) For the purposes of this section:
(1) "Public agency" shall include the state, the Regents of the
University of California, a city, county, district, public authority,
public agency, municipal utility, and any other political
subdivision or public corporation of the state.
(2) "Acts of God" shall include only the following occurrences or
conditions and effects: earthquakes in excess of a magnitude of 3.5
on the Richter Scale and tidal waves.
(c) Public agencies may make changes in construction contracts for
public improvements in the course of construction to bring the
completed improvements into compliance with environmental
requirements or standards established by state and federal statutes
and regulations enacted after the contract has been awarded or
entered into. The contractor shall be paid for the changes in
accordance with the provisions of the contract governing payment for
changes in the work or, if no provisions are set forth in the
contract, payment shall be as agreed to by the parties.
(d) (1) Where authority to contract is vested in any public
agency, excluding the state, the authority shall include the power,
by mutual consent of the contracting parties, to terminate, amend, or
modify any contract within the scope of such authority.
(2) Paragraph (1) shall not apply to contracts entered into
pursuant to any statute expressly requiring that contracts be let or
awarded on the basis of competitive bids. Contracts of public
agencies, excluding the state, required to be let or awarded on the
basis of competitive bids pursuant to any statute may be terminated,
amended, or modified only if the termination, amendment, or
modification is so provided in the contract or is authorized under
provision of law other than this subdivision. The compensation
payable, if any, for amendments and modifications shall be determined
as provided in the contract. The compensation payable, if any, in
the event the contract is so terminated shall be determined as
provided in the contract or applicable statutory provision providing
for the termination.
(3) Contracts of public agencies may include provisions for
termination for environmental considerations at the discretion of the
public agencies.
7106. Any public works contract of a public entity shall include an
affidavit, in the following form:
"NONCOLLUSION AFFIDAVIT TO BE EXECUTED
BY
BIDDER AND SUBMITTED WITH BID
State of California )
ss.
County of ________ )
______, being first duly sworn, deposes and says that he or she is
____ of ____ the party making the foregoing bid that the bid is not
made in the interest of, or on behalf of, any undisclosed person,
partnership, company, association, organization, or corporation; that
the bid is genuine and not collusive or sham; that the bidder has
not directly or indirectly induced or solicited any other bidder to
put in a false or sham bid, and has not directly or indirectly
colluded, conspired, connived, or agreed with any bidder or anyone
else to put in a sham bid, or that anyone shall refrain from bidding;
that the bidder has not in any manner, directly or indirectly,
sought by agreement, communication, or conference with anyone to fix
the bid price of the bidder or any other bidder, or to fix any
overhead, profit, or cost element of the bid price, or of that of any
other bidder, or to secure any advantage against the public body
awarding the contract of anyone interested in the proposed contract;
that all statements contained in the bid are true; and, further, that
the bidder has not, directly or indirectly, submitted his or her bid
price or any breakdown thereof, or the contents thereof, or divulged
information or data relative thereto, or paid, and will not pay, any
fee to any corporation, partnership, company association,
organization, bid depository, or to any member or agent thereof to
effectuate a collusive or sham bid."
7107. (a) This section is applicable with respect to all contracts
entered into on or after January 1, 1993, relating to the
construction of any public work of improvement.
(b) The retention proceeds withheld from any payment by the public
entity from the original contractor, or by the original contractor
from any subcontractor, shall be subject to this section.
(c) Within 60 days after the date of completion of the work of
improvement, the retention withheld by the public entity shall be
released. In the event of a dispute between the public entity and the
original contractor, the public entity may withhold from the final
payment an amount not to exceed 150 percent of the disputed amount.
For purposes of this subdivision, "completion" means any of the
following:
(1) The occupation, beneficial use, and enjoyment of a work of
improvement, excluding any operation only for testing, startup, or
commissioning, by the public agency, or its agent, accompanied by
cessation of labor on the work of improvement.
(2) The acceptance by the public agency, or its agent, of the work
of improvement.
(3) After the commencement of a work of improvement, a cessation
of labor on the work of improvement for a continuous period of 100
days or more, due to factors beyond the control of the contractor.
(4) After the commencement of a work of improvement, a cessation
of labor on the work of improvement for a continuous period of 30
days or more, if the public agency files for record a notice of
cessation or a notice of completion.
(d) Subject to subdivision (e), within seven days from the time
that all or any portion of the retention proceeds are received by the
original contractor, the original contractor shall pay each of its
subcontractors from whom retention has been withheld, each
subcontractor's share of the retention received. However, if a
retention payment received by the original contractor is specifically
designated for a particular subcontractor, payment of the retention
shall be made to the designated subcontractor, if the payment is
consistent with the terms of the subcontract.
(e) The original contractor may withhold from a subcontractor its
portion of the retention proceeds if a bona fide dispute exists
between the subcontractor and the original contractor. The amount
withheld from the retention payment shall not exceed 150 percent of
the estimated value of the disputed amount.
(f) In the event that retention payments are not made within the
time periods required by this section, the public entity or original
contractor withholding the unpaid amounts shall be subject to a
charge of 2 percent per month on the improperly withheld amount, in
lieu of any interest otherwise due. Additionally, in any action for
the collection of funds wrongfully withheld, the prevailing party
shall be entitled to attorney's fees and costs.
(g) If a state agency retains an amount greater than 125 percent
of the estimated value of the work yet to be completed pursuant to
Section 10261, the state agency shall distribute undisputed retention
proceeds in accordance with subdivision (c). However,
notwithstanding subdivision (c), if a state agency retains an amount
equal to or less than 125 percent of the estimated value of the work
yet to be completed, the state agency shall have 90 days in which to
release undisputed retentions.
(h) Any attempted waiver of the provisions of this section shall
be void as against the public policy of this state.
7108. Any contract of a public entity to provide train service
shall require compliance with the personnel requirements of Chapter 2
(commencing with Section 6900) of Part 2 of Division 5 of the Labor
Code.
7109. (a) For purposes of this section:
(1) "Antigraffiti technology" means landscaping, paint, or other
covering resistant to graffiti, or other procedures to deter
graffiti.
(2) "Graffiti" means any unauthorized inscription, work, figure,
or design that is marked, etched, scratched, drawn, or painted on any
structural component of any building, structure, or other facility
regardless of its content or nature and regardless of the nature of
the material of the structural component.
(3) "Project" means the erection, construction, alteration,
repair, or improvement of any public structure, building, road, or
other public improvement of any kind.
(b) If a public entity determines that a project may be vulnerable
to graffiti and the public entity will be awarding a public works
contract after January 1, 1996, for that project, it is the intent of
the Legislature that the public entity may do one or more of the
following:
(1) Include a provision in the public works contract that
specifies requirements for antigraffiti technology in the plans and
specifications for the project.
(2) Establish a method to finance a graffiti abatement program.
(3) Establish a program to deter graffiti.
7110. (a) It is the policy of this state that anyone who enters
into a contract with a state agency shall recognize the importance of
child and family support obligations and shall fully comply with all
applicable state and federal laws relating to child and family
support enforcement, including, but not limited to, disclosure of
information and compliance with earnings assignment orders, as
provided in Chapter 8 (commencing with Section 5200) of Part 5 of
Division 9 of the Family Code.
(b) Every written contract in excess of one hundred thousand
dollars ($100,000) executed between a contractor and a state agency
shall contain the following:
(1) An acknowledgment by the contractor of the policy of the state
set forth in subdivision (a).
(2) An acknowledgment by the contractor that to the best of its
knowledge it is fully complying with the earnings assignment orders
of all employees and is providing the names of all new employees to
the New Hire Registry maintained by the Employment Development
Department.
7200. (a) (1) This section shall apply with respect to all
contracts entered into on or after January 1, 1999, between a public
entity and an original contractor, between an original contractor and
a subcontractor, and between all subcontractors thereunder, relating
to the construction of any public work of improvement.
(2) For purposes of this section, "public entity" means the state,
including every state agency, office, department, division, bureau,
board, or commission, a city, county, city and county, including
chartered cities and chartered counties, district, special district,
public authority, political subdivision, public corporation, or
nonprofit transit corporation wholly owned by a public agency and
formed to carry out the purposes of the public agency.
(b) In a contract between the original contractor and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the public entity and the original contractor.
(c) When a performance and payment bond is required in the
solicitation for bids, subdivision (b) shall not apply to either of
the following:
(1) The original contractor, if the subcontractor fails or refuses
to provide a performance and payment bond, issued by an admitted
surety insurer, to the original contractor.
(2) The subcontractor, if a subcontractor thereunder fails or
refuses to provide a performance and payment bond, issued by an
admitted surety insurer, to the subcontractor.
(d) No party identified in subdivision (b) shall require any other
party to waive any provision of this section.
(e) In the event that the contractor elects to substitute
securities in lieu of retentions, the contractor may withhold from
his or her subcontractors, who have not elected to substitute
securities in lieu of retentions, the amount of retentions that would
have otherwise been withheld.
7202. (a) The Department of Transportation is prohibited from
withholding retention proceeds when making progress payments to a
contractor for work performed on a transportation project.
(b) Nothing in this section shall alter, amend, or impair the
rights, duties, and obligations of an original contractor, its
subcontractors, and all subcontractors thereunder, relating to the
construction of any public work of improvement as set forth in
Section 7200 of the Public Contract Code.
(c) The department shall promptly notify the appropriate policy
committees of the Legislature if the state's best interests are
compromised because retention was not withheld on a transportation
project.
(d) This section shall become inoperative and shall be repealed on
January 1, 2014.
7100. Provisions in public works contracts with public entities
which provide that acceptance of a payment otherwise due a contractor
is a waiver of all claims against the public entity arising out of
the work performed under the contract or which condition the right to
payment upon submission of a release by the contractor of all claims
against the public entity arising out of performance of the public
work are against public policy and null and void. This section shall
not prohibit a public entity from placing in a public works contract
and enforcing a contract provision which provides that payment of
undisputed contract amounts is contingent upon the contractor
furnishing the public entity with a release of all claims against the
public entity arising by virtue of the public works contract related
to those amounts. Disputed contract claims in stated amounts may be
specifically excluded by the contractor from the operation of the
release.
7101. The state or any other public entity in any public works
contract awarded to the lowest bidder, may provide for the payment of
extra compensation to the contractor for the cost reduction changes
in the plans and specifications for the project made pursuant to a
proposal submitted by the contractor. The extra compensation to the
contractor shall be 50 percent of the net savings in construction
costs as determined by the public entity. For projects under the
supervision of the Department of Transportation or local or regional
transportation entities, the extra compensation to the contractor
shall be 60 percent of the net savings, if the cost reduction changes
significantly reduce or avoid traffic congestion during construction
of the project, in the opinion of the public entity. The contractor
may not be required to perform the changes contained in an eligible
change proposal submitted in compliance with the provisions of the
contract unless the proposal was accepted by the public entity.
7102. Contract provisions in construction contracts of public
agencies and subcontracts thereunder which limit the contractee's
liability to an extension of time for delay for which the contractee
is responsible and which delay is unreasonable under the
circumstances involved, and not within the contemplation of the
parties, shall not be construed to preclude the recovery of damages
by the contractor or subcontractor.
No public agency may require the waiver, alteration, or limitation
of the applicability of this section. Any such waiver, alteration,
or limitation is void. This section shall not be construed to void
any provision in a construction contract which requires notice of
delays, provides for arbitration or other procedure for settlement,
or provides for liquidated damages.
7103. (a) (1) Every original contractor to who is awarded a
contract by a state entity, as defined in subdivision (d), involving
an expenditure in excess of twenty-five thousand dollars ($25,000)
for any public work shall, before entering upon the performance of
the work, file a payment bond with and approved by the officer or
state entity by who the contract was awarded. The bond shall be in a
sum not less than 100 percent of the total amount payable by the
terms of the contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office, department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 3247 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
7103. (a) (1) Every original contractor that is awarded a contract
by a state entity, as defined in subdivision (d), involving an
expenditure in excess of twenty-five thousand dollars ($25,000) for
any public work shall, before entering upon the performance of the
work, file a payment bond with and approved by the officer or state
entity that awarded the contract. The bond shall be in a sum not less
than 100 percent of the total amount payable by the terms of the
contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office, department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 9550 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
7103.5. (a) As used in this section:
(1) "Public works contract" means a contract awarded through
competitive bids by the state or any of its political subdivisions or
public agencies, on whose behalf the Attorney General may bring an
action pursuant to subdivision (c) of Section 16750 of the Business
and Professions Code, for the erection, construction, alteration,
repair, or improvement of any structure, building, road, or other
improvement of any kind.
(2) "Awarding body" means the state or the subdivision or agency
awarding a public works contract.
(b) In entering into a public works contract or a subcontract to
supply goods, services, or materials pursuant to a public works
contract, the contractor 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 (commencing
with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or
materials pursuant to the public works contract or the subcontract.
This assignment shall be made and become effective at the time the
awarding body tenders final payment to the contractor, without
further acknowledgment by the parties.
(c) Subdivision (b) shall be included in full in the
specifications for the public works contract or in the general
provisions incorporated therein and shall be included in full in the
public works contract or in the general provisions incorporated
therein.
7104. Any public works contract of a local public entity which
involves digging trenches or other excavations that extend deeper
than four feet below the surface shall contain a clause which
provides the following:
(a) That the contractor shall promptly, and before the following
conditions are disturbed, notify the local public entity, in writing,
of any:
(1) Material that the contractor believes may be material that is
hazardous waste, as defined in Section 25117 of the Health and Safety
Code, that is required to be removed to a Class I, Class II, or
Class III disposal site in accordance with provisions of existing
law.
(2) Subsurface or latent physical conditions at the site differing
from those indicated by information about the site made available to
bidders prior to the deadline for submitting bids.
(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.
(b) That the local public entity 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 contractor's cost of, or the time required for,
performance of any part of the work shall issue a change order under
the procedures described in the contract.
(c) That, in the event that a dispute arises between the local
public entity and the contractor whether the conditions materially
differ, or involve hazardous waste, or cause a decrease or increase
in the contractor's cost of, or time required for, performance of any
part of the work, the contractor 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
contractor shall retain any and all rights provided either by
contract or by law which pertain to the resolution of disputes and
protests between the contracting parties.
7105. (a) Construction contracts of public agencies shall not
require the contractor to be responsible for the cost of repairing or
restoring damage to the work, which damage is determined to have
been proximately caused by an act of God, in excess of 5 percent of
the contracted amount, provided, that the work damaged is built in
accordance with accepted and applicable building standards and the
plans and specifications of the awarding authority. However,
contracts may include provisions for terminating the contract. The
requirements of this section shall not be mandatory as to
construction contracts financed by revenue bonds. This section shall
not prohibit a public agency from requiring that a contractor obtain
insurance to indemnify the public agency for any damage to the work
caused by an act of God if the insurance premium is a separate bid
item. If insurance is required, requests for bids issued by public
agencies shall set forth the amount of the work to be covered and the
contract resulting from the requests for bids shall require that the
contractor furnish evidence of satisfactory insurance coverage to
the public agency prior to execution of the contract.
(b) For the purposes of this section:
(1) "Public agency" shall include the state, the Regents of the
University of California, a city, county, district, public authority,
public agency, municipal utility, and any other political
subdivision or public corporation of the state.
(2) "Acts of God" shall include only the following occurrences or
conditions and effects: earthquakes in excess of a magnitude of 3.5
on the Richter Scale and tidal waves.
(c) Public agencies may make changes in construction contracts for
public improvements in the course of construction to bring the
completed improvements into compliance with environmental
requirements or standards established by state and federal statutes
and regulations enacted after the contract has been awarded or
entered into. The contractor shall be paid for the changes in
accordance with the provisions of the contract governing payment for
changes in the work or, if no provisions are set forth in the
contract, payment shall be as agreed to by the parties.
(d) (1) Where authority to contract is vested in any public
agency, excluding the state, the authority shall include the power,
by mutual consent of the contracting parties, to terminate, amend, or
modify any contract within the scope of such authority.
(2) Paragraph (1) shall not apply to contracts entered into
pursuant to any statute expressly requiring that contracts be let or
awarded on the basis of competitive bids. Contracts of public
agencies, excluding the state, required to be let or awarded on the
basis of competitive bids pursuant to any statute may be terminated,
amended, or modified only if the termination, amendment, or
modification is so provided in the contract or is authorized under
provision of law other than this subdivision. The compensation
payable, if any, for amendments and modifications shall be determined
as provided in the contract. The compensation payable, if any, in
the event the contract is so terminated shall be determined as
provided in the contract or applicable statutory provision providing
for the termination.
(3) Contracts of public agencies may include provisions for
termination for environmental considerations at the discretion of the
public agencies.
7106. Any public works contract of a public entity shall include an
affidavit, in the following form:
"NONCOLLUSION AFFIDAVIT TO BE EXECUTED
BY
BIDDER AND SUBMITTED WITH BID
State of California )
ss.
County of ________ )
______, being first duly sworn, deposes and says that he or she is
____ of ____ the party making the foregoing bid that the bid is not
made in the interest of, or on behalf of, any undisclosed person,
partnership, company, association, organization, or corporation; that
the bid is genuine and not collusive or sham; that the bidder has
not directly or indirectly induced or solicited any other bidder to
put in a false or sham bid, and has not directly or indirectly
colluded, conspired, connived, or agreed with any bidder or anyone
else to put in a sham bid, or that anyone shall refrain from bidding;
that the bidder has not in any manner, directly or indirectly,
sought by agreement, communication, or conference with anyone to fix
the bid price of the bidder or any other bidder, or to fix any
overhead, profit, or cost element of the bid price, or of that of any
other bidder, or to secure any advantage against the public body
awarding the contract of anyone interested in the proposed contract;
that all statements contained in the bid are true; and, further, that
the bidder has not, directly or indirectly, submitted his or her bid
price or any breakdown thereof, or the contents thereof, or divulged
information or data relative thereto, or paid, and will not pay, any
fee to any corporation, partnership, company association,
organization, bid depository, or to any member or agent thereof to
effectuate a collusive or sham bid."
7107. (a) This section is applicable with respect to all contracts
entered into on or after January 1, 1993, relating to the
construction of any public work of improvement.
(b) The retention proceeds withheld from any payment by the public
entity from the original contractor, or by the original contractor
from any subcontractor, shall be subject to this section.
(c) Within 60 days after the date of completion of the work of
improvement, the retention withheld by the public entity shall be
released. In the event of a dispute between the public entity and the
original contractor, the public entity may withhold from the final
payment an amount not to exceed 150 percent of the disputed amount.
For purposes of this subdivision, "completion" means any of the
following:
(1) The occupation, beneficial use, and enjoyment of a work of
improvement, excluding any operation only for testing, startup, or
commissioning, by the public agency, or its agent, accompanied by
cessation of labor on the work of improvement.
(2) The acceptance by the public agency, or its agent, of the work
of improvement.
(3) After the commencement of a work of improvement, a cessation
of labor on the work of improvement for a continuous period of 100
days or more, due to factors beyond the control of the contractor.
(4) After the commencement of a work of improvement, a cessation
of labor on the work of improvement for a continuous period of 30
days or more, if the public agency files for record a notice of
cessation or a notice of completion.
(d) Subject to subdivision (e), within seven days from the time
that all or any portion of the retention proceeds are received by the
original contractor, the original contractor shall pay each of its
subcontractors from whom retention has been withheld, each
subcontractor's share of the retention received. However, if a
retention payment received by the original contractor is specifically
designated for a particular subcontractor, payment of the retention
shall be made to the designated subcontractor, if the payment is
consistent with the terms of the subcontract.
(e) The original contractor may withhold from a subcontractor its
portion of the retention proceeds if a bona fide dispute exists
between the subcontractor and the original contractor. The amount
withheld from the retention payment shall not exceed 150 percent of
the estimated value of the disputed amount.
(f) In the event that retention payments are not made within the
time periods required by this section, the public entity or original
contractor withholding the unpaid amounts shall be subject to a
charge of 2 percent per month on the improperly withheld amount, in
lieu of any interest otherwise due. Additionally, in any action for
the collection of funds wrongfully withheld, the prevailing party
shall be entitled to attorney's fees and costs.
(g) If a state agency retains an amount greater than 125 percent
of the estimated value of the work yet to be completed pursuant to
Section 10261, the state agency shall distribute undisputed retention
proceeds in accordance with subdivision (c). However,
notwithstanding subdivision (c), if a state agency retains an amount
equal to or less than 125 percent of the estimated value of the work
yet to be completed, the state agency shall have 90 days in which to
release undisputed retentions.
(h) Any attempted waiver of the provisions of this section shall
be void as against the public policy of this state.
7108. Any contract of a public entity to provide train service
shall require compliance with the personnel requirements of Chapter 2
(commencing with Section 6900) of Part 2 of Division 5 of the Labor
Code.
7109. (a) For purposes of this section:
(1) "Antigraffiti technology" means landscaping, paint, or other
covering resistant to graffiti, or other procedures to deter
graffiti.
(2) "Graffiti" means any unauthorized inscription, work, figure,
or design that is marked, etched, scratched, drawn, or painted on any
structural component of any building, structure, or other facility
regardless of its content or nature and regardless of the nature of
the material of the structural component.
(3) "Project" means the erection, construction, alteration,
repair, or improvement of any public structure, building, road, or
other public improvement of any kind.
(b) If a public entity determines that a project may be vulnerable
to graffiti and the public entity will be awarding a public works
contract after January 1, 1996, for that project, it is the intent of
the Legislature that the public entity may do one or more of the
following:
(1) Include a provision in the public works contract that
specifies requirements for antigraffiti technology in the plans and
specifications for the project.
(2) Establish a method to finance a graffiti abatement program.
(3) Establish a program to deter graffiti.
7110. (a) It is the policy of this state that anyone who enters
into a contract with a state agency shall recognize the importance of
child and family support obligations and shall fully comply with all
applicable state and federal laws relating to child and family
support enforcement, including, but not limited to, disclosure of
information and compliance with earnings assignment orders, as
provided in Chapter 8 (commencing with Section 5200) of Part 5 of
Division 9 of the Family Code.
(b) Every written contract in excess of one hundred thousand
dollars ($100,000) executed between a contractor and a state agency
shall contain the following:
(1) An acknowledgment by the contractor of the policy of the state
set forth in subdivision (a).
(2) An acknowledgment by the contractor that to the best of its
knowledge it is fully complying with the earnings assignment orders
of all employees and is providing the names of all new employees to
the New Hire Registry maintained by the Employment Development
Department.
7200. (a) (1) This section shall apply with respect to all
contracts entered into on or after January 1, 1999, between a public
entity and an original contractor, between an original contractor and
a subcontractor, and between all subcontractors thereunder, relating
to the construction of any public work of improvement.
(2) For purposes of this section, "public entity" means the state,
including every state agency, office, department, division, bureau,
board, or commission, a city, county, city and county, including
chartered cities and chartered counties, district, special district,
public authority, political subdivision, public corporation, or
nonprofit transit corporation wholly owned by a public agency and
formed to carry out the purposes of the public agency.
(b) In a contract between the original contractor and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the public entity and the original contractor.
(c) When a performance and payment bond is required in the
solicitation for bids, subdivision (b) shall not apply to either of
the following:
(1) The original contractor, if the subcontractor fails or refuses
to provide a performance and payment bond, issued by an admitted
surety insurer, to the original contractor.
(2) The subcontractor, if a subcontractor thereunder fails or
refuses to provide a performance and payment bond, issued by an
admitted surety insurer, to the subcontractor.
(d) No party identified in subdivision (b) shall require any other
party to waive any provision of this section.
(e) In the event that the contractor elects to substitute
securities in lieu of retentions, the contractor may withhold from
his or her subcontractors, who have not elected to substitute
securities in lieu of retentions, the amount of retentions that would
have otherwise been withheld.
7202. (a) The Department of Transportation is prohibited from
withholding retention proceeds when making progress payments to a
contractor for work performed on a transportation project.
(b) Nothing in this section shall alter, amend, or impair the
rights, duties, and obligations of an original contractor, its
subcontractors, and all subcontractors thereunder, relating to the
construction of any public work of improvement as set forth in
Section 7200 of the Public Contract Code.
(c) The department shall promptly notify the appropriate policy
committees of the Legislature if the state's best interests are
compromised because retention was not withheld on a transportation
project.
(d) This section shall become inoperative and shall be repealed on
January 1, 2014.
