HomeMy WebLinkAboutC-4618DESIGN BUILD CONTRACT
BETWEEN
CITY OF ARCADIA
AND
CLEAN ENERGY
This Design -Build Contract ("Contract") is made and entered into thisday of
, 2024, by and between the CITY OF ARCADIA ("City") and Clean Energy,
a California f corporation (the "Design -Build Entity"), for the purpose of designing and
constructing the CNG Fueling Station 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 CNG Fueling Station Project RFP No. PWS-05-2023 ("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. Desi n-Build Entity. The Design -Build Entity consists of Clean Energy
functioning as the designer/design team for the Project and providing architectural
services, and Fueling and Service Technologies, Inc., dba FASTECH, as the general
contractor for the project and providing all construction services for the Project. Clean
Energy is the prime design -build entity, while FASTECH is a subcontractor for Clean
Energy. 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.
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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 ("RFP") and all addenda, attachments, and appendices
o Design -Build Entity Proposal in response to RFP dated May 2023
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
o Exhibit I to this Contract — Time and Materials Rates
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 Contr ct unexecuted and to award the Contract to
another the Design -Build Entity in accordarl4e with California law.
Design-BiAd 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 $2,843,487.00 (Two million eight hundred
forty three thousand four hundred eighty seven dollars and no cents) 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. Notwithstanding anything to the contrary, (i) the GMP
includes sales tax; (ii) the GMP does not include the costs of any permit fees, which shall
be paid for by the City; and (iii) the GMP includes a $50,000 allowance for the connection
of the utility gas meter set to the Project's piping, and if the actual costs of such connection
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exceed $50,000, the GMP shall be increased based on such excess costs.
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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 Final Completion of the Project, as defined in the General Conditions,
by the Guaranteed Completion Date of 422 calendar days following the City's
issuance of a notice to proceed.
5.2 The Design Build Entity guarantees that it shall perform and complete all
work necessary for Substantial Completion, as defined in the General Conditions, by the
Guaranteed Substantial Completion Date of 401 calendar days following the City's
issuance of a notice to proceed. The Design -Build Entity agrees that liquidated damages
will apply in the amount of $1,700 for each and every calendar day beyond the
Guaranteed Substantial Completion Date that Substantial Completion of the Project has
not been achieved. Following Substantial Completion, the Design -Build Entity agrees
that liquidated damages will apply in the amount of $425 for each and every calendar day
beyond the later of (i) 21 calendar days after the date of Substantial Completion, or (ii)
422 calendar days following the City's issuance of a notice to proceed, that Final
Completion of the Project has not been achieved. Notwithstanding anything to the
contrary, in no event shall liquidated damages assessed under this Contract be more than
seven and a half percent (7.5%) of the Guaranteed Maximum Price.
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 Citv's Representative. The City hereby designates Paul Cranmer, 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
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and/or different individuals to act as City's Representative from time to time upon written
notice to the Design -Build Entity.
Design -Build Entity's Representative. The Design -Build Entity hereby designates Omar
Alrawi, PE, Senior Project Manager, 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 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 Clean
Energy, CA License No. 848450 (A classification) 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. Desi n-Build Entity's -Desi n 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 Edward Shen, PE (License No. C90186), Clean Energy 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
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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- 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
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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.
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.
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
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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:
City of Arcadia
11800 Goldring Road
P.O. Box 60021
Arcadia, CA 91066-6021
Attn: Michael Kwok, Associate Civil
Engineer
To Design -Build Entity.
Clean Energy
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
Attn: Mark Barton, Vice President
With a copy to:
Clean Energy
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
Attn: Alphonse Anderson, Senior Account
Manager
And a copy to:
Clean Energy
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
Attn: Deputy General Counsel
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.
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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.
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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.
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 _Incorporate d. 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
Dominic Lazzaretto
City Manager
Attest:'
City Clerk
APPROVED AS TO FORM:
Mic ael J. Mauer
City Attorney
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Signatu
Andregy J. Lit efair President & CEO
Print Name a d Title
Signature
Barclay F. Corbus, SVP, Strategic Development
Print Name and Title & Renewable Fuels
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