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HomeMy WebLinkAboutC-4248 Cis . DESIGN BUILD CONTRACT ORIGINAL BETWEEN CITY OF ARCADIA \\M"- iO AND BYROM-DAVEY INC. _Jhis Design-Build Contract ("Contract") is made and entered into this lt —day of NI , 2019, by and between the by and between the CITY OF ARCADIA ("City") an Byrom-Davey, Inc. (the "Design-Build Entity"), for the purpose of designing and constructing the Eisenhower Park Improvement Project (the "Project"). The City and the Design-Build Entity are herein collectively referred to as the "Parties." RECITALS A. The City desires to contract with a single entity for design and construction of the Project, as set forth in this Contract. B. The Design-Build Entity was invited to respond to the City's Request for Proposal ("RFP") for the Project. C. The Design-Build Entity submitted a Proposal for the Project, which was selected as providing the best-value for the Project, and is prepared to enter into this Contract. AGREEMENT In consideration of the above recitals and the mutual covenants and conditions set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby set forth their mutual covenants and understandings as follows: 1. Incorporation of Recitals. The above referenced recitals are true and correct and are incorporated into this Contract by this reference. 2. Design-Build Entity. The Design-Build Entity consists of HMC Architects functioning as the designer/design team for the Project and providing architectural services, and Byrom-Davey, Inc., as the general contractor for the project and providing all construction services for the Project. For purposes of this Contract, a properly authorized representative of Design-Build Entity shall execute the Contract on its behalf, and shall have the full authority to make all decisions necessary on behalf of the Design-Build Entity Notwithstanding the foregoing, the City may accept bonds provided from the member of the Design-Build Entity designated for construction services, and/or professional liability insurance from the member of the Design-Build Entity designated for design/architectural services. 24347.00600\31594114.1 - 1 - DESIGN-BUILD CONTRACT 3. Incorporation of Documents. 3.1 This Contract includes and hereby incorporates in full by reference the following Contract Documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto: o Request for Proposal ("REP") and all addenda, attachments, and appendices o Design-Build Entity Proposal in response to RFP dated March 2019 o Contract o General Conditions o Attachment 1 to this Contract - Performance Bond o Attachment 2 to this Contract - Payment Bond o Attachment 3 to this Contract -Workers Compensation Certification o Attachment 4 to this Contract - Public Works Contractor Registration Certification 3.2 Acknowledgement of Contract Documents. The above documents constitute and may hereinafter be referred to as the "Contract Documents." In addition to signing this Contract, the Design-Build Entity shall review and execute where appropriate all the Attachments to this Contract described above. Also, the Design-Build Entity shall initial this paragraph immediately below acknowledging that he or she has read, understood and agrees with all of the terms of the Contract Documents, including, but not limited to, provisions of the General Conditions relating to indemnification, insurance, standards of performance, termination, compensation and time of the essence performance. the Design-Build Entity shall not disclaim knowledge of the meaning and effect of any term or provision of the Contract Documents, and agrees to strictly abide by their meaning and intent. In the event that the Design-Build Entity fails to initial below, the City shall have the right to declare the Contract unexecuted and to award the Contract to another the Design-Build Entity in accordance with California law. .41 Design-Build Entity's Initials 4. The Design-Build Entity's Obligations. 4.1 Guaranteed Maximum Price. The Design-Build Entity promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project as described in the Contract Documents (hereinafter the "Scope of Work"), for a Guaranteed Maximum Price ("GMP") of $6,300,000.00 as stated in the Design-Build Entity's Proposal submitted in response to the RFP. Unless otherwise stated in the Contract Documents, the GMP shall pay for all costs and expenses required to design and construct the Project. 24347.00600\31594114.1 -2 - DESIGN-BUILD CONTRACT 4.2 Standard of Performance. The Design-Build Entity's performance of the work set forth in the Contract Documents shall at all times be performed in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline(s) in the State of California, and Design-Build Entity shall be fully responsible to City for any damages or delays to the Project caused by the Design-Build Entity as specified in the indemnification provision of this Contract. The Design-Build Entity's performance shall at all times be in conformance with the standards set forth in the Contract and the General Conditions. 5. Period of Performance, Liquidated Damages, and Performance Incentive. 5.1 The Design-Build Entity guarantees that it shall perform and complete all work necessary for Completion of the Project, as defined in the General Conditions, by the Guaranteed Completion Date of April 30, 2020; with a milestone date of completion for the north portion of the Project by January 31, 2020 ("GCD"). 5.2 The Design-Build Entity agrees that liquidated damages will apply in the amount of $5,400 for each and every calendar day beyond the GCD that Final Completion of the Project has not been achieved. 6. The City's Basic Obligation. The City agrees to engage and do hereby engage the Design-Build Entity as an independent contractor to furnish all materials and to perform all work described in the Scope of Work for the Project according to the terms and conditions herein contained for the GMP set forth above. Except as otherwise provided in the Contract, the City shall pay to the Design-Build Entity, as full consideration for the satisfactory performance by the Design-Build Entity of the services and obligations required by this Contract, the above referenced compensation in accordance with compensation provisions set forth in the Contract. 7. Representatives. 7.1 City's Representative. The City hereby designates Tom Tait, Public Works Services Director, as the person to act as its representative for the performance of this Contract ("City's Representative"). The City's Representative shall be authorized to act as liaison between City and the Design-Build Entity in the administration of this Contract and all work on the Project. The City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. City may designate new and/or different individuals to act as City's Representative from time to time upon written notice to the Design-Build Entity. 7.2 Design-Build Entity's Representative. The Design-Build Entity hereby designates Eric Jennings Sr., Vice President, or his or her designee, to act as its representative for the performance of this Contract ("Design-Build Entity's Representative"). Design-Build Entity's Representative shall have full authority to represent and act on behalf of the Design-Build Entity for all purposes under this Contract. The Design-Build Entity's Representative shall supervise and direct all work 24347.00600131594114.1 -3 - DESIGN-BUILD CONTRACT on the Project, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the work pursuant to this Contract. 8. Design-Build Entity's Licensing. The Design-Build Entity shall have only appropriately licensed contractors performing work on the Project as required by the Business and Professions Code. The Design-Build Entity hereby designates Byrom- Davey, Inc., CA License No. 803447 (A, B, C-8, C12, C-61/D-12) to act as the licensed general contractor for the Project. Design-Build Entity's general contractor shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Design Build entity shall be fully responsible to the City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the general contractor shall be subject to the City's prior written approval, which approval shall not be unreasonably withheld. The new general contractor shall be of at least equal competence as the prior general contractor. In the event that City and Design-Build Entity cannot agree as to the substitution of a new general contractor, the City shall be entitled to terminate this Contract as described in the General Conditions. 9. Design-Build Entity's Design Professional of Record. The Design-Build Entity shall name a specific person to act as the Design Professional of Record as described in the General Conditions, subject to the approval of the City. The Design- Build Entity hereby designates Jesse Miller, Principle in Charge, HMC Architects, (License No. C32306) to act as the Design Professional of Record for the Project. Design-Build Entity's Design Professional of Record shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Design Build entity shall be fully responsible to the City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the Design Professional of Record shall be subject to the City's prior written approval, which approval shall not be unreasonably withheld. The new Design Professional of Record shall be of at least equal competence as the prior Design Professional of Record. In the event that City and Design-Build Entity cannot agree as to the substitution of a new Design Professional of Record, the City shall be entitled to terminate this Contract as described in the General Conditions. 10. Indemnification. To the fullest extent allowed by law, Design-Build Entity agrees to protect, save, defend and hold harmless, to the greatest extent provided by law, the City, its governing council and each member thereof, their officers, agents and employees from any and all claims, liabilities, reasonable expenses or damages of any nature, including reasonable attorney's fees, for injury or death of any person, or damage to property, or interference with the use of property arising out of the negligent acts, errors or omission, or willful misconduct by the Design-Build Entity, the Design- 24347.00600\31594114.1 -4- DESIGN-BUILD CONTRACT Build Entity's agents, officers, employees, sub-consultants, or independent consultants hired by the Design-Build Entity to provide services pursuant to this Contract. The only exception to the Design-Build Entity's responsibility to protect, save, defend and hold harmless the City, is where a claim, liability, expense or damage occurs due to the sole negligence, willful misconduct or active negligence of the City. This hold harmless provision shall apply to all liability, as provided for above, regardless of whether any insurance policies are applicable. Insurance policy limits do not act as a limitation upon the amount of the indemnification to be provided by the Design-Build Entity. Notwithstanding the foregoing, to the extent Design-Build Entity's Scope of Work is subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Design-Build Entity. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Design-Build Entity's indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the City. In claims against any person or entity indemnified under this provision, that are made by an employee of the Design-Build Entity or any Subcontractor, a person indirectly employed by the Design-Build Entity or any Subcontractor, or anyone for whose acts the Design-Build Entity or any Subcontractor may be liable, the indemnification obligation under this provision shall not be limited by any limitation on amount or type of damages, compensation, or benefits payable by or for Design-Build Entity or any Subcontractor under workers' compensation acts, disability benefit acts, or other employee benefit acts or any other insurance limitations. The indemnification obligations under this provision shall not be limited by any assertion or finding that the person or entity indemnified is liable by reason of a non-delegable duty. Joint and Several Liability shall apply to the Design-Build Entity. In the event the Design-Build Entity and one or more than one other party is connected with an accident or occurrence covered by this indemnification, then all such parties shall be jointly and severally responsible to each of the Indemnitees for indemnification, and the ultimate responsibility among such indemnifying parties for the loss and expense of any such indemnification shall be resolved without jeopardy to any indemnitee listed herein. 11. The Design-Build Entity's Labor Certification. The Design-Build Entity maintains that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of all work described in the Scope of Work for the Project. A certification form for this purpose is Attachment 3 to this Contract and incorporated herein by reference, and shall be executed simultaneously with this Contract. 24347.00600131594114.1 -5 - DESIGN-BUILD CONTRACT 12. Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of the contractor's and subcontractors' current registration with the Department of Industrial Relations to perform public work. Design-Build Entity is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Attachment 4 prior to contract execution. 13. Successors. The parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract. The Design-Build Entity may not either voluntarily or by action of law, assign any obligation assumed by the Design-Build Entity hereunder without the prior written consent of the City. 14. Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows: To City: To Design-Build Entity: City of Arcadia Byrom-Davey, Inc. 11800 Goldring Road 1232 Monte Vista Avenue, Suite 5 P.O. Box 60021 Upland, CA 91786 Arcadia, CA 91066-6021 Attn: Eric Jennings Sr. Attn: Eddie Chan, P.E. Vice President Any notice so given shall be considered received by the other party three (3) days after deposit in the U.S. Mail, first class postage prepaid, addressed to the party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 15. Attachments. All Attachments referenced in this Contract are incorporated into the Contract by this reference. 16. Amendments, Changes and Modifications. This Contract may not be amended, changed, modified, altered or terminated without the written agreement of both Parties hereto. 17. Execution in Counterparts. This Contract 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. 18. Applicable Law. This Contract shall be governed by and construed in accordance with the laws of the State of California, and venue in the County of Los Angeles. 24347.00600131594114.1 -6- DESIGN-BUILD CONTRACT 19. Captions. The captions or headings in this Contract are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Contract. 20. Prior Agreements. This Contract contains all of the agreements of the Parties hereto with respect to any matter covered or mentioned in this Contract and no prior agreements or understanding pertaining to any such matter shall be effective for any purpose. 21. Further Assurances. Parties shall promptly execute and deliver all documents and instruments reasonably requested to give effect to the provisions of this Contract. 22. Recitals Incorporated. The Recitals set forth at the beginning of this Contract are hereby incorporated into its terms and provisions by this reference. 23. Time of the Essence. Time is of the essence with respect to each of the terms, covenants, and conditions of this Contract. 24. Authority of Signatories. The persons executing this Contract on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties. IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their respective officers who are duly authorized, as of the Effective Date set forth above. CITY OF ARCADIA BYROM-DAVEY, INC. • Dominic Lazzare • • Signt e City Manager Attest: Print Name and Title ct. c„,F 4,! 1 ) , Y� e L � 1111%.aP I � ity;kw/4 ric 6 - v APPROVED AS TO FORM: Vtut..714--to K l , Print Name and Title Step hen ch City Attorney 24347.00600\31594114.1 -7- DESIGN-BUILD CONTRACT