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DESIGN BUILD CONTRACT- --
- - - -- -
BETWEEN
CITY OF ARCADIA
AND
lr�`
AXIOM GROUP
This Design -Build Contract ("Contract") is made and entered into this day
of Ep
a�WI , 20 by and between the by and between the CITY OF
ARCADIA ("City") and AXIOM Group (the "Design -Build Entity"), for the purpose of
designing and constructing the Newcastle Park Renovation 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 PBLA, Inc. functioning
as the designer/design team for the Project and providing architectural services, and
Axiom Group, 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 ("RFP") and all exhibits, addenda, attachments and
appendices
o Design -Build Entity Proposal in response to RFP dated July 2023
o Contract
o General Conditions
o Attachment 1 to this Contract - Cost of Extra Work
o Attachment 2 to this Contract - Performance Bond
o Attachment 3 to this Contract - Payment Bond
o Attachment 4 to this Contract - Workers Compensation Certification
o Attachment 5 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.
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 $6,858,014.40 as
stated in the Design -Build Entity's Proposal submitted in response to the RFP. Unless
24347.00600\31594114.1 - 2 - DESIGN -BUILD CONTRACT
otherwise stated in the Contract Documents, the GMP shall pay for all costs and
expenses required to design and construct the Project.
4.2 Extra Work. Extra Work shall have the meaning given to it in the General
Conditions. Extra Work shall be compensated at the rates set forth in Attachment 1 to
this Contract, and shall be initiated only upon written approval by the City as described
in the General Conditions.
4.3 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 March 28, 2025 ("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 Re resentative. 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
and/or different individuals to act as City's Representative from time to time upon written
notice to the Design -Build Entity.
24347.00600\31594114.1 - 3 - DESIGN -BUILD CONTRACT
7.2 Design -Build Entity's Representative. The Design -Build Entity hereby
designates Esteban Torres, 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
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 Axiom
Group CA License No. 766918 (A, B, C-10, C21, and C-36) 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 Jeffrey Scott, Director of Planning, PBLA, Inc.
(License No. C33095) 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.
24347.00600\31594114.1 - 4 - DESIGN -BUILD CONTRACT
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 -
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
24347.00600\31594114.1 - 5 - DESIGN -BUILD CONTRACT
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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 4 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
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 " Y 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. -
Axiom Group
200 N. San Fernando Road, Suite
314
Los Angeles, CA 90031
Attn: Esteban Torres, 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.
24347.00600\31594114.1 - 6 - DESIGN -BUILD CONTRACT
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.
19. Cautions. 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.
SIGNATURES ON NEXT PAGE
24347.00600\31594114.1 - 7 - DESIGN -BUILD CONTRACT
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 AXIOM GROUP
Dominic azzaretto ignature
City Manager f�,/� 7C/�54-A
,
Atteslr PrinName and Ti e
City Clerk Signature
APPROVED AS TO FORM: SEY VI Id (AA TO Y r PS, S KNkUY�
Print Name and Title
ii1f,Z�
Michael J. Mauer
City Attorney
24347.00600\31594114.1 - 8 - DESIGN -BUILD CONTRACT
ATTACHMENT 1
HOURLY RATE SCHEDULE FOR EXTRA WORK
NOT APPLICABLE.
24347.00600\31594114.1 - g - HOURLY RATE SCHEDULE
FOR EXTRA WORK
Bond No. 0102179
Premium: $137,160.00
Premium is for contract term and is subject
to adjustment based on final contract price
ATTACHMENT 2 Executed in: 3 Counterparts
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Arcadia, (hereinafter referred to as "City") has awarded to Axiom
Group, (hereinafter referred to as the "Contractor") an agreement for Newcastle Park
Renovation Project (hereinafter referred to as the "Project").
WHEREAS, the work to be performed by thi&Contractor is more particularly set forth in the
Contract Documents for the Project dated i hereinafter referred to as
"Contract Documents"), the terms and conditions of which Fare expressly incorporated herein by
reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof
and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, Axiom Group _ the undersigned Contractor and
Developers Surety and Indemnity Company as Surety, a corporation organized
and duly authorized to transact business under the laws of the State of California, are held and
firmly bound unto the City in the sum of SIX MILLION, EIGHT HUNDRED FIFTY-EIGHT
THOUSAND, FOURTEEN DOLLARS AND FORTY CENTS ($6,858,014.40), said sum being
not less than one hundred percent (100%) of the total amount of the Contract, for which amount
well and truly to be made, we bind ourselves, our heirs, executors and administrators,
successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs,
executors, administrators, successors or assigns, shall in all things stand to and abide by, and
well and truly keep and perform the covenants, conditions and agreements in the Contract
Documents and any alteration thereof made as therein provided, on its part, to be kept and
performed at the time and in the manner therein specified, and in all respects according to their
intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee
of all materials and workmanship; and shall indemnify and save harmless the City, its officials,
officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then
this obligation shall become null and void; otherwise it shall be and remain in full force and
effect.
As a part of the obligation secured hereby and in addition to the face amount specified
therefore, there shall be included costs and reasonable expenses and fees including reasonable
attorney's fees, incurred by City in enforcing such obligation.
As a condition precedent to the satisfactory completion of the Contract Documents, unless
otherwise provided for in the Contract Documents, the above obligation shall hold good for a
period of one (1) year after the acceptance of the work by City, during which time if Contractor
shall fail to make full, complete, and satisfactory repair and replacements and totally protect the
City from loss or damage resulting from or caused by defective materials or faulty workmanship.
The obligations of Surety hereunder shall continue so long as any obligation of Contractor
remains. Nothing herein shall limit the City's rights or the Contractor or Surety's obligations
24347.0060M31594114.1 -10 - PERFORMANCE BOND
y•i
under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure
Section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract
Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall
promptly, at the City's option:
(1) Take over and complete the Project in accordance with all terms and conditions
in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and
conditions in the Contract Documents and upon determination by Surety of the
lowest responsive and responsible bidder, arrange for a Contract between such
bidder, the Surety and the City, and make available as work progresses sufficient
funds to pay the cost of completion of the Project, less the balance of the
contract price, including other costs and damages for which Surety may be liable.
The term "balance of the contract price" as used in this paragraph shall mean the
total amount payable to Contractor by the City under the Contract and any
modification thereto, less any amount previously paid by the City to the
Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with California
law and make available as work progresses sufficient funds to pay the cost of
completion of the Project, less the balance of the contract price, including other
costs and damages for which Surety may be liable. The term "balance of the
contract price" as used in this paragraph shall mean the total amount payable to
Contractor by the City under the Contract and any modification thereto, less any
amount previously paid by the City to the Contractor and any other set offs
pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be
proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from
Contractor for completion of the Project if the City, when declaring the Contractor in default,
notifies Surety of the City's objection to Contractor's further participation in the completion of the
Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract Documents or to the Project to be performed
thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice
of any such change, extension of time, alteration or addition to the terms of the Contract
Documents or to the Project.
By their signatures hereunder, Surety and Contractor hereby confirm under penalty of perjury
that surety is an admitted surety insurer authorized to do business in the State of California.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
24347.00600\31594114.1 -11 - PERFORMANCE BOND
IN WITNESS WHEREOF, we have hereunto set our hands and seals this 27th day of
December , 203 .
(Corporate Seal)
(Corporate Seal)
(Attach Attorney -in -Fact Certificate)
Axiom Group
Contra tar, Pnnci al
By
Title_ nt-
Developers Surety and Indemnity Company
Surety
By
Attorney -in -Fact
Title Rebecca Haas -Bates, Attorney -in -Fact
The rate of premium on this bond is $20.00 per thousand. The total amount of premium
charges is $137,160.00
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
Developers Surety and Indemnity Company
17771 Cowan Suite #100
Irvine, CA 92614
(Name and Address of Agent or
FOUNDATION RISK PARTNERS, CORP.
Representative for service of
750 The City Drive South, Suite 450
process in California, if different
Orange, CA 92868
from above)
(Telephone number of Surety
Surety (866) 363-2642 / Agent (949) 679-7116
and Agent or Representative for
service of process in California)
24347.00600\31594114.1 -12 - PERFORMANCE BOND
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Los Angele
On 12/29/2023
Date
before me, Belen Sobalvarro, Notary Public
Here Insert Name and Title of the Officer
personally appeared Esteban Torres
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
*MY
BELEN SOBALVARRO
No lnia
Z LosAngeles ounty9
Commission Z 2382626
Comm. Expires Nov 11, 2025 r
-_ �r_�
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature -
Signature of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Performance Bond
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Esteban Torres
in Corporate Officer — Title(s): President
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other: _
Signer Is Representing:
02016 National Notary Association - www.NationalNotary.org - 1-800-US NOTARY (1-800-876-6827) Item #5907
CAiL RFO RINIIA ALL-PURPOSE ACECA9OWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orartge )
On 12/27/2023 before me, Alma Karen Hernandez, Notary Public
Date Here Insert Name and Title of the Officer
personally appeared Rebecca Haas -Bates
Name(,of SignerN
who proved to me on the basis of satisfactory evidence to be the person* whose name(6. is/tee
subscribed to the within instrument and acknowledged to me that i:;e/she/tt%y executed the same in
flfs/her/twk authorized capacity 1�, and that by hWherAheir slgnature�4on the instrument the person*
or the entity upon behalf of which the personN acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Ex 0e >
ALMA KAREN HERNANDEZ �-
NotarY Public - California Signature
Commission 4 2390908
Orange County � Signature of Notary Public
7r
My Comm. Expires Jan 16, 2026
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document.- Performance Bond No. 0102179 Document Date: 12/27/2023
Number of Pages: Three 3 Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Rebecca Haas -Bates
❑ Corporate Officer — Title(s):
D. Partner — ❑ Limited ❑ General
El Individual W Attorney in Fact
0 Trustee ❑ Guardian or Conservator
C Other:
Signer Is Representing:
Developers Surety and Indemnity Company
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — [ I Limited ❑ General
❑ Individual El Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
• Other:
Signer Is Representing:
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POWER OF ATTORNEY FOR
COREPOINTE INSURANCE COMPANY
DEVELOPERS SURETY AND INDEMNITY COMPANY
59 Maiden lane, 43rd Floor, New York, NY 10038
(212)220-7120
KNOW ALL BY THESE PRESENTS that, except as expressly limited herein, COREPOINTE INSURANCE COMPANY and DEVELOPERS SURETY AND
INDEMNITY COMPANY, do hereby make, constitute and appoint:
William Syrkin, Richard Adiar, and Rebecca Haas -Bates _ , of Irvine. CA
as its true and lawful Attorney -in -Fact, to make, execute, deliver and acknowledge, for and on behalf ofsaid eompanies, as sureties, bonds; undertakings and contracts
of suretyship giving and granting unto said Attorney -in -Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in
connection therewith as each of said company could do, but reserving to each of said company frill power of substitution and revocation, and all of the acts of said
Attorney -in -Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is effective December 27, 2023 and
shall expire on December 31, 2025. - -- ---
This Power of Attorney is granted and is signed under and by authority- ol'the following resolutions adopted by the Board of' Directors ofCOREPOINTE INSURANCE.
COMPANY and DEVELOPERS SURETY AND INDEMNITY COMPANY (collectively, "Company") on February 10, 2023.
RESOLVED, that Sam 2aza Pre: i r tv Underwriting. .lames Bell. Vice Presizlent. Surch EJnderwritina, and Ctaie Dawson- Executive Underwriter,
Sure . each an employee of AmTrust North America, Inc.. an affiliate of the Company (the "Authorized Signors'), are hereby authorized to execute a Power
of Attorney, qualilying attorney(s)-in-fact named in the Power of Attorney to execute, on behalf of the Company. bonds, undertakings and contracts of
suretyship, or other suretyship obligations; and that the Secretary or any Assistant Secretary of the Company be, and each of them hereby is, authorized to attest
the execution of any such Power of Attorney.
RESOLVED, that the signature ofany one of the Authorized Signors and the Secretary or any Assistant Secretary of the Company, and the seal of the Company
must be affixed to any such Power of Attorney, and any such signature or seal may be aflixed by facsimile, and such Power of Attorney shall be valid and
binding upon the Company when so affixed and in the luture with respect to any bond, undertaking or contract of suretyship to which it is attached -
IN WITNESS WH-ERE-OF, COREPOINTF. INSURANCE COMPANY and DEVELOPERS SURETY AND INDEMNll'Y COMPANY have caused these presents to be
signed by the Authorized Signor and attested by their Secretary or Assistant Secretary this March 27, 2023
Of
SURAA.. '�. .•� AND � "1
r %� `�_'� pizQORgT•' ,+ JQ..•G�ELPOR�•• �`„y
r s
Printed Na-tic. Sam /aza -- — ��•� G _ : �� TKO'•• 2
Title: Preside�.t SurelvUnderwritine — W W'If'• 193
O�•••�F�AWP� • •� `t.� CgCfFO¢��P''• D�
ACKNOWLEDGEMENT: 7�y •••.. •••'�a ;
FAnA notary public or other officer completing this certificate verifies only the
i identityof the individual who signed the document to Which this certificate is
i attached, and not the truthfulness, accuracy. or validity of that document.
STATE OF California
COUNTY OF Orange
On this 27 day of March , 20 23 , before me, i-loan°-Queen Phu Pham , personally appeared Sam Z,aza
who proved to the on the basis of satisl<rctory evidence to be the person -whose name is subscribed to within the instrument and acknowledged to me that they executed
the same in their authorized capacity, and that by the signature on the instrument the entities upon behalf which the person acted, executed this instrument.
certify, raider penalty of perjury, under the laws of the State of -Cal ilornia that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
HOANGQUYEN P. ►HAM
Notary Public - CaliforniaOrange CountySignaturetr�_.wlamy
_.�Commission 1f 2432970T Comm. Expires Dec 31, 2026
CORPORATE CERTIFICATION
The undersigned. the Secretary or Assistant Secretary of COREPOiNTE INSURANCE COMPANY and DEVELOPERS SURETY AND INDEEMNH Y
COMPANY, does hereby certify that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in this Power of Attorney
are in force as ofthe date of this Certification.
'This Certi lication is executed in the City of Cleveland. Ohio, this March 19, 2023.
By: -OocuSigneedd by: �� ���
—'r-- h6st'5—
G66415E7ADE548C...
Barry W Moses, Assistant Secretary
POA No, N/A
DocuSignEnvelope ID:3352BFD6-5E9D-4796-837E-C1 E455E6530F Ed. 0 323
Bond No. 0102179
Premium is included in
the performance bond
ATTACHMENT 3 Executed in: 3 Counterparts
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Arcadia (hereinafter designated as the "City"), by action taken or a
resolution passed October 3, 2023, has awarded to Axiom Group hereinafter designated as
the "Principal," a contract for the work described as follows: Newcastle Park Renovation
Project (the "Project"); and
WHEREAS, said Principal is required to furnish a bond in connection with said contract;
providing that if said Principal or any of its Subcontractors shall fail to pay for any materials,
provisions, provender, equipment, or other supplies used in, upon, for or about the performance
of the work contracted to be done, or for any work or labor done thereon of any kind, or for
amounts due under the Unemployment Insurance Code or for any amounts required to be
deducted, withheld, and paid over to the Employment Development Department from the wages
of employees of said Principal and its Subcontractors with respect to such work or labor the
Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and Developers Surety and Indemnity Company as Surety, are held
and firmly bound unto the City in the penal sum of SIX MILLION, EIGHT HUNDRED FIFTY-
EIGHT THOUSAND, FOURTEEN DOLLARS AND FORTY CENTS ($5,858,014.40) lawful
money of the United States of America, for the payment of which sum well and truly to be made,
we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and
severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its
subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of
the persons named in Civil Code Section 9100, fall to pay for any materials, provisions or other
supplies, used in, upon, for or about the performance of the work contracted to be done, or for
any work or labor thereon of any kind, or amounts due under the Unemployment Insurance
Code with respect to work or labor performed under the contract, or for any amounts required to
be deducted, withheld, and ,paid over to the Employment Development Department or Franchise
Tax Board from the wages of employees of the contractor and his subcontractors pursuant to
Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or
Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and
also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such
suit, including reasonable attorneys' fees, court costs, expert witness fees and investigation
expenses.
This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so
as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or
released from the obligation of this bond by any change, extension of time for performance,
addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement
pertaining or relating to any scheme or work of improvement herein above described, or
pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any
change or modification of any terms of payment or extension of the time for any payment
pertaining or relating to any scheme or work of improvement herein above described, nor by any
24347.00e00131594114.1 - 13 - PAYMENT (MATERIAL & LABOR) BOND
rescission or attempted rescission or attempted rescission of the contract, agreement or bond,
nor by any conditions precedent or subsequent in the bond attempting to limit the right of
recovery of claimants otherwise entitled to recover under any such contract or agreement or
under the bond, nor by any fraud practiced by any person other than the claimant seeking to
recover on the bond and that this bond be construed most strongly against the Surety and in
favor of all persons for whose benefit such bond is given, and under no circumstances shall
Surety be released from liability to those for whose benefit such bond has been given, by
reason of any breach of contract between the owner or City and original contractor or on the
part of any obligee named in such bond, but the sole conditions of recovery shall be that
claimant is a person described in Civil Code Section 9100, and has not been paid the full
amount of his claim and that Surety does hereby waive notice of any such change, extension of
time, addition, alteration or modification herein mentioned, including but not limited to the
provisions of sections 2819 and 2845 of the California Civil Code.
By their signatures hereunder, Surety and Principal hereby confirm under penalty of perjury that
surety is an admitted surety insurer authorized to do business in the State of California.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this 27th day of
December , 2023.
(Corporate Seal) Axiom Group _
Contra r rinc' I
By
Title P cnt
(Corporate Seal) Developers Surety and Indemnity Company
Surety
ByJ I�..
Attorney -in -Fact
(Attach Attorney -in -Fact Certificate) Title Rebecca Haas-Bates,_Attomey-in-Fact
24347.0060M31594114.1 - 14 - PAYMENT (MATERIAL & LABOR) BOND
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Los Angeles )
On 12/29/2023
Date
before me, Belen Sobalvarro, Notary Public
Here Insert Name and Title of the Officer
personally appeared Esteban Torres
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
+�oil. ., BELEN SOBALVARRO
-' Notary public - California
Los Angeles County
Commission, Do'cozo
My Comm. Expires Nov 11. 2025 +
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Payment Bond
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Esteban Torres
■ Corporate Officer — Title(s): President
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
Corporate Officer — Title(s):
Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
02016 National Notary Association - www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
CAL IFORP41A ALL-PURPOSE ACKMG'INLEDGINEAY CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individu�whoigned thedocument to which this certificate is attached, and not the truthfulness, accuracy, or validity of that dt.
State of California
County of Oran e
On 12/27/2023
Date
before me, Alma Karen Hernandez, Notary Public
Here Insert Name and Title of the Officer
personally appeared Rebecca Haas -Bates
Namej'S},of SignerN
who proved to me on the basis of satisfactory evidence to be the persons} whose name(6* is/age
subscribed to the within instrument and acknowledged to me that 4e/she/they executed the same in
Plis/her/their authorized capacity, and that by hWher/t wk signatures on the instrument the person*
or the entity upon behalf of which the personN acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
ALMA KAREN HERNANDEZ
" Notary Public - California Z
air
Signature
Orange County
Commission ; 2390908
Signature of Notary Public
g
«x"" My Comm. Expires Jan 16, 2026
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document; Payment Bond No. 0102179 Document Date: 12/27/2023
Number of Pages: Two 2 Signer's) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Rebecca Haas -Bates
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited r7 General
❑ Individual iW Attomey in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Developers Surety and Indemnity Company
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — F� Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Mw�.�'. \✓d�✓{ •�4�?(�{"�{�-�{\'_ BTU{y4�✓,{"✓FC✓{-✓{`�
0 1 • • • • • • • • :// • �` :11 • •: •1
POWER OF ATTORNEY FOR
COREPOINTE INSURANCE COMPANY
DEVELOPERS SURETY AND INDEMNITY COMPANY
59 Maiden Lane, 43rd Floor, New York, NY 10038
(212)220-7120
KNOW ALL, BY THESE PRESENTS that, except as expressly limited herein. COREPOINTE INSURANCE.' COMPANY and DEVELOPERS SURETY AND
INDEMNITY COMPANY, do hereby make. constitute and appoint:
William Syrkin, Richard Adiar, and Rebecca Haas -Bates
,of Irvine CA
as its true and lawful Attomey-in-Fact, to make, execute, deliver and acknowledge, for and on behalfof said companies, as sureties, bonds; undertakings and contracts
of suretyship giving and granting unto said Attorney full power and authority to do and to perform every aci necessary, requisite or proper to be done in
connection therewith as each of said company could do, but reserving to each of said company filll power of substitution and revocation, and all of the acts of said
Attomey-in-Fact, pursuant to these presents, are hereby ratified and confirmed. 'This Power of Attorney is effective December 27, 2023
shall expire on December 31, 2025. _ and
This Power ofAttorney is granted and is signed Under and by authority of the following resolutions adopted by the Board of Directors ofCOREPOINTE INSURANCE
COMPANY and DEVELOPERS SURETY AND INDEMNITY COMPANY (collectively, "Company") on February 10, 2023.
RIctiOL.V1iD, that Sala 7,gva. President tiw nde ruin - lams Bell -Vice Pre ident. Surety lJnderwritin2, and 'Ilia Dawson, Encutive Uridenyritg,
SUIre .. each an employee of Am "Trust North America, Inc, an affiliate of the Company (the "Authorized Signors"), are hereby authorized to execute a Power
of Attorney qualifying attorneys) -in -tact maned in the Power of Attorney to execute, on behalf of the Company, bonds, undertakings and contracts of
suretyship, or other suretyship obi igations, and that the Secretary or any Assistant Secretur-y of the Company be,
the execution of any such Power of Attorney. and each of them hereby is, authorized to attest
RESOLVED, that the signature of any one of the Authorized Signors and the Secretary orany Assistant Secretary of the Company, and the seal of the Company
must be affixed to any such Power of Attorney, and any such signature or seal may be affixed by ftesimile, atxl such Power of Attorney shall be valid and
binding upon the Company when so affixed and in the future with respcT1 to any bond, undertaking or contract of suretyship to which it is attached.
IN WITNESS WFIFREOF, COREPOINTE INSURANCE COMPANY and DI VEL.OPF..RS SURL,TY AND INDEMNITY COMPANY have caused these presents to be
signed by the Authorized Signor and attested by their Secretary of :Assistant Secretary this March 27 2023
a
By:
_ ��,NSUR,gN • Atv,� '
F A
Printed Na c: Sam / vas •�� RG
Title: President. Surety JndCR4rItmC rF0'•,2 a_
" SE
uj
•��,�A1�C9II O3R�b ,
� a XPACKNOWLEDGEMENT: '• "
FAnotary public orother officer completing this certificate verifies only the
ty ofthe individual who signed the document to which this certificate is
ed, and not the truthfil Iness, accuracy, or validity of that document.
STATE OF California
COUNTY OF Orange
On this 27 day of- March,, 20 23 , before me. Hoani2-uyen Phu Pham personally appeared Sam 7..aza
who proved to me on the basis of satisfactory evidence to be the pcl;son whose name is subscribed to within the instrument and acknowledged tome that they executed
the same in their authorized capacity, and that by the signature on the instrument the entities upon behalf which the person acted, executed this instrument.
I certify, under penalty of perjury, under thelaws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
/ ~ HOANGQUYEN P. PHAAA
Signature Notary Public - California
Z Orange County �
Commission # 2432970
My Comm. Expires Dec 31, 2026
CORPORATE CERTIFICATION
The undersigned, the Secretary or Assistant Secretary of COREPOINTIi INSURANCE COMPANY and DEVELOPERS SURETY AND INDEMNITY
COMPANY.. does hereby certify that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in this Power of Attorney
are in force as ofthe date ofthis Certification.
'this Certification is executed in the City of Cleveland, Ohio, this March 19, 2023.
OocuSigned by:
ta
By: L�----- Barry W- Moses, Assistant Secretary
064156ADE54aC...
DocuSignEnvelope ID:3352BFD6-5E9D-4796-837E-C1 E455E6530F
POA No. N/A
Ed.0323
ATTACHMENT 4
WORKERS COMPENSATION CERTIFICATION
Labor Code section 3700 in relevant part provides:
Every employer except the State shall secure the payment of compensation in
one or more of the following ways:
(a) By being insured against liability to pay compensation in one or more insurers
duly authorized to write compensation insurance in this State.
(b) By securing from the Director of Industrial Relations a certificate of consent to
self -insure, which may be given upon furnishing proof satisfactory to the Director of
Industrial Relations of ability to self -insure and to pay any compensation that may
become due to his employees.
I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers' compensation or to undertake
self-insurance in accordance with the provisions of that code, and I will comply with
such provisions before commencing the performance of the work of this contract.
AXIOM GROUP:
BY:
y
TITLE:
DATE:
In accordance with Article 5 (commencing at section 1860), chapter 1, part 7, division 2
of the Labor Code, the above certificate must be signed and filed with the awarding
body prior to performing any work under this contract.
24347.00600\31594114.1 - 15 - WORKERS COMPENSATION
CERTIFICATION
ATTACHMENT 5
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
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. See J_% lir.ca.gov/Public
Works/PublicWorks.htmi for additional information.
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 hereby certifies that it is aware of the registration requirements set forth in
Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the
Department of Industrial Relations.'
Name of Design -Build Entity:
/Of,o l
DIR Registration Number:_
0060 L{d ZZ
DIR Registration Expiration:
60 202
Small Project Exemption:
Yes or No
Unless Design -Build Entity is exempt pursuant to the small project exemption, Design -Build Entity
further acknowledges:
• Design -Build Entity shall maintain a current DIR registration for the duration of the
project.
Design -Build Entity shall include the requirements of Labor Code sections 1725.5 and
1771.1 in its contract with subcontractors and ensure that all subcontractors are
registered at the time of bid opening and maintain registration status for the duration of
the project.
• Failure to submit this form or comply with any of the above requirements may result in a
finding that the bid is non -responsive.
Name of Desi n-Bvilcl Entity
Signature
Name and Title�'�
2 u�
' If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under
Labor Code Sections 1725.5 and 1771.1, please mark "Yes" in response to "Small Project Exemption."
24347.00600\31594114.1 - 16 - PUBLIC WORKS CONTRACTOR
REGISTRATION CERTIFICATION
I
GENERAL CONDITIONS
DESIGN BUILD CONTRACT
BETWEEN
CITY OF ARCADIA
AND
AXIOM GROUP
ARTICLE 1:
GENERAL PROVISIONS............................................................................. 1
1.1
BASIC DEFINITIONS........................................................................................
1
1.2
OWNERSHIP AND USE OF CONSTRUCTION DOCUMENTS .........................
4
1.3
INTERPRETATION OF DOCUMENTS AND ORDER OF PRECEDENCE.........
5
ARTICLE 2:
CITY'S RIGHTS AND RESPONSIBILITIES.................................................
7
2.1
FEE AND PERMIT REQUIREMENTS...............................................................
7
2.2
ACCESS TO PROJECT SITE............................................................................
7
2.3
THE CITY'S RIGHT TO STOP WORK ON THE PROJECT ............................... 7
2.4
THE CITY'S RIGHT TO CARRY OUT WORK ON THE PROJECT .................... 7
2.5
THE CITY'S RIGHT TO REPLACE THE CITY'S REPRESENTATIVE ............... 7
2.6
PARTIAL OCCUPANCY OR USE......................................................................
8
2.7
INFORMATION PROVIDED BY CITY................................................................ 8
ARTICLE 3:
DESIGN BUILD ENTITY'S RIGHTS AND RESPONSIBILITIES ................... 8
3.1
DESIGN BUILD ENTITY'S RESPONSIBILITY; INDEPENDENT
CONTRACTOR................................................................................................. 8
3.2
REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS;
SINGLE POINT RESPONSIBILITY OF THE DESIGN BUILD ENTITY ..............
9
3.3
DESIGN, SUPERVISION AND CONSTRUCTION PROCEDURES ..................10
3.4
LABOR AND MATERIALS................................................................................11
3.5
DESIGN BUILD ENTITY'S WARRANTY...........................................................11
3.6
TAXES..............................................................................................................11
3.7
PERMITS, FEES, AND NOTICES....................................................................11
3.8
APPLICABLE CODE REQUIREMENTS...........................................................12
3.9
SUPERINTENDENT.........................................................................................12
3.10
PROJECT STAFFING......................................................................................13
3.11
TOXIC MATERIALS..........................................................................................13
3.12
HAZARDOUS MATERIALS..............................................................................13
3.13
COMPLIANCE WITH STATE STORM WATER PERMIT FOR
CONSTRUCTION.............................................................................................14
3.14
CONSTRUCTION DOCUMENTS.....................................................................14
24347.00600\31594337.2 i GENERAL CONDITIONS
3.15
MONTHLY REPORT........................................................................................16
3.16
OTHER REPORTS...........................................................................................17
3.17
NOTICES OF LABOR DISPUTE.......................................................................17
3.18
GUARANTEE...................................................................................................17
3.19
WARRANTY.....................................................................................................18
3.20
SCHEDULES REQUIRED OF THE DESIGN BUILD ENTITY ...........................18
3.21
AS BUILT DOCUMENTS..................................................................................19
3.22
DOCUMENTS AND SAMPLES AT PROJECT SITE.........................................20
3.23
SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES..................................20
3.24
USE OF SITE AND CLEAN UP........................................................................21
3.25
CUTTING, FITTING, AND PATCHING.............................................................22
3.26
ACCESS TO WORK.........................................................................................22
3.27
ROYALTIES AND PATENTS............................................................................22
3.28
CONCEALED OR UNKNOWN CONDITIONS..................................................22
3.29
LIABILITY FOR AND REPAIR OF DAMAGED WORK......................................23
3.30
INDEMNIFICATION..........................................................................................23
ARTICLE 4:
ADMINISTRATION OF THE CONTRACT...................................................23
4.1
ADMINISTRATION OF THE CONTRACT BY THE CITY'S
REPRESENTATIVE..........................................................................................23
4.2
THE DESIGN BUILD ENTITY CHANGE ORDER REQUESTS .........................25
4.3
CLAIMS............................................................................................................26
4.4
ASSERTION OF CLAIMS.................................................................................27
4.5
DECISION OF THE CITY'S REPRESENTATIVE ON CLAIMS .........................27
4.6
RESOLUTION OF CLAIMS..............................................................................27
4.7
NO WAIVER.....................................................................................................31
ARTICLE 5:
SUBCONTRACTORS.................................................................................31
5.1
AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR
PORTIONS OF THE WORK.............................................................................31
5.2
SUBCONTRACTOR RELATIONS....................................................................32
ARTICLE 6:
CONSTRUCTION BY THE CITY OR BY SEPARATE
CONTRACTORS........................................................................................33
6.1
THE CITY'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD
SEPARATE CONTRACTS................................................................................33
6.2
MUTUAL RESPONSIBILITY.............................................................................34
ARTICLE 7:
CHANGES IN THE SCOPE OF WORK......................................................34
7.1
CHANGES........................................................................................................34
24347.00600\31594337.2 ii GENERAL CONDITIONS
7.2
DEFINITIONS...................................................................................................34
7.3
CHANGE ORDER PROCEDURES...................................................................35
7.4
FIELD ORDERS...............................................................................................38
7.5
VARIATION IN QUANTITY OF UNIT PRICE WORK........................................38
7.6
NO WAIVER.....................................................................................................39
ARTICLE8:
CONTRACT TIME.......................................................................................39
8.1
COMMENCEMENT OF WORK ON THE PROJECT.........................................39
8.2
PROGRESS AND COMPLETION.....................................................................39
8.3
DELAY..............................................................................................................40
8.4
ADJUSTMENT OF THE CONTRACT TIME FOR EXCUSABLE DELAY ...........
40
8.5
COMPENSATION FOR EXTRA WORK DUE TO EXCUSABLE DELAY ...........
42
8.6
NO WAIVER.....................................................................................................43
ARTICLE 9:
PAYMENTS AND COMPLETION...............................................................43
9.1
COST BREAKDOWN/SCHEDULE OF VALUES...............................................43
9.2
PROGRESS PAYMENT...................................................................................43
9.3
APPLICATION FOR PAYMENT........................................................................44
9.4
APPROVAL OF CERTIFICATE FOR PAYMENT BY CITY...............................45
9.5
DEPOSIT OF SECURITIES IN LIEU OF RETENTION AND DEPOSIT OF
RETENTION INTO ESCROW...........................................................................46
9.6
[RESERVED.]...................................................................................................47
9.7
[RESERVED.]...................................................................................................47
9.8
FINAL COMPLETION AND FINAL PAYMENT..................................................47
ARTICLE 10:
PROTECTION OF PERSONS AND PROPERTY........................................48
10.1
SAFETY PRECAUTIONS AND PROGRAMS...................................................48
10.2
SAFETY OF PERSONS AND PROPERTY.......................................................48
10.3
EMERGENCIES...............................................................................................48
ARTICLE11:
INSURANCE...............................................................................................49
11.1
THE DESIGN BUILD ENTITY'S INSURANCE..................................................49
ARTICLE 12:
UNCOVERING AND CORRECTION OF CONSTRUCTION WORK ...........51
12.1
UNCOVERING OF WORK ON THE PROJECT................................................51
12.2
CORRECTION OF DEFECTIVE WORK AND GUARANTEE TO REPAIR
PERIOD............................................................................................................51
ARTICLE 13:
TERMINATION OR SUSPENSION OF THE CONTRACT ..........................52
13.1
TERMINATION BY THE CITY FOR CAUSE.....................................................52
13.2
SUSPENSION BY THE CITY FOR CONVENIENCE........................................53
24347.00600\31594337.2 III GENERAL CONDITIONS
13.3
TERMINATION BY THE CITY FOR CONVENIENCE.......................................54
ARTICLE 14:
STATUTORY REQUIREMENTS.................................................................55
14.1
NONDISCRIMINATION/EQUAL OPPORTUNITY EMPLOYMENT
...................55
14.2
HOURS OF WORK...........................................................................................55
14.3
PAYROLL RECORDS; WAGE RATES, CONTRACTOR
REGISTRATION; LABOR COMPLIANCE AND STOP ORDERS......................57
14.4
APPRENTICES................................................................................................58
14.5
THIRD -PARTY CLAIMS (Pub...........................................................................59
14.6
ANTI-TRUST CLAIM ASSIGNMENT (Pub........................................................59
14.7
STORMWATER POLLUTION PREVENTION PLAN.........................................59
ARTICLE 15:
MISCELLANEOUS PROVISIONS...............................................................60
15.1
IMMIGRATION reform and control act..............................................................60
15.2
GOVERNING LAW...........................................................................................61
15.3
SUCCESSORS AND ASSIGNS........................................................................61
15.4
RIGHTS AND REMEDIES................................................................................61
15.5
SURVIVAL........................................................................................................61
15.6
COMPLETE CONTRACT.................................................................................62
15.7
SEVERABILITY OF PROVISIONS...................................................................62
15.8
THE CITY'S RIGHT TO AUDIT.........................................................................62
15.9
NOTICES..........................................................................................................62
15.10
TIME OF THE ESSENCE.................................................................................62
15.11
STATUTORY LIMITATION...............................................................................62
15.12
CORRECTION OF ERRORS AND OMISSIONS..............................................62
15.13
INTERPRETATION...........................................................................................62
24347.00600\31594337.2 IV GENERAL CONDITIONS
ARTICLE 1: GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 ACT OF GOD. The term "Act of God" shall include earthquakes in
excess of a magnitude of 3.5 on the Richter Scale, tidal waves, floods, unusually severe
weather, epidemic, or other severe natural disaster.
1.1.2 CEQA. The term "CEQA" means the California Environmental
Quality Act, Public Resources Code Section 21000 et seq. All CEQA compliance
documentation prepared for the Project shall be provided to the Design -Build Entity.
1.1.3 CITY. The term "City" shall mean the City of Arcadia.
1.1.4 CITY'S REPRESENTATIVE. The term "The City's Representative"
means the person or firm identified as the City's primary contact person as designated
in the Contract.
1.1.5 CONSTRUCTION DOCUMENTS. The term "Construction
Documents" shall mean the plans and specifications prepared by the Design -Build
Entity for the Project, approved by the City. The Construction Documents shall set forth
in detail all items necessary to complete the construction (other than such details
customarily provided by others during construction) of the Project in accordance with
the Contract Documents (subject to their completion following commencement of the
Construction Phase). All amendments and modifications to the Plans and Specifications
must be approved by the City in writing.
1.1.6 CONSTRUCTION DOCUMENTS PHASE. The term "Construction
Documents Phase" shall mean the second of three phases of the Scope of Work and
will commence with the issuance of the City's written approval of the Schematic Design
Phase services.
1.1.7 CONSTRUCTION PHASE. The term "Construction Phase" shall
mean the third phase of the Scope of Work and will commence upon final written
approval of the plans and specifications by the City.
1.1.8 CONSTRUCTION WORK. The term "Construction Work" shall
mean that portion of the work on the Project consisting of the provision of labor,
materials, furnishings, equipment and services in connection with the construction of the
Project as set forth in the Contract Documents.
1.1.9 CONTRACT. The term "Contract" means the written agreement
between the Design -Build Entity and the City set forth in the Contract Documents.
1.1.10 CONTRACT DOCUMENTS. The "Contract Documents" consist of
the documents as stated in the Contract.
24347.00600\31594337.2 1 GENERAL CONDITIONS
1.1.11 CRITERIA DOCUMENTS. The term "Criteria Documents" means,
but is not limited to, the portions of the Contract Documents the City's written outline of
design requirements, Scope of Work, Project Program, Performance Specifications and
schematic drawings.
1.1.12 CONTRACT PRICE. The Term "Contract Price" shall mean the
lump sum price the City will pay for the completion of all work on the Project as set forth
in the Contract.
1.1.13 CONTRACT TIME. The term "Contract Time" shall mean the
date(s) by which the Design -Build Entity agrees that all work on the Project, or specified
portions of the work, shall be completed as set forth in the Contract.
1.1.14 DAY. The term "day," shall mean calendar day, unless otherwise
specifically provided.
1.1.15 DESIGN BUILD ENTITY. The term "the Design -Build Entity" means
the person or firm identified as such in the Contract and is referred to throughout the
Contract Documents as if singular in number.
1.1.16 DESIGN BUILD ENTITY REPRESENTATIVE. The Design -Build
Entity Representative shall mean the person identified as the primary contact person
and representative of the Design -Build Entity as designated in the Contract.
1.1.17 DESIGN MATERIALS. The term "Design Materials" shall mean any
and all documents, shop drawings, electronic information, including computer programs
and computer generated materials, data, plans, drawings, sketches, illustrations,
specifications, descriptions, models and other information developed, prepared,
furnished, delivered or required to be delivered by, or for, the Design -Build Entity: (1) to
the City under the Contract Documents or; (2) developed or prepared by or for the
Design -Build Entity specifically to discharge its duties under the Contract Documents.
1.1.18 DESIGN PROFESSIONAL OF RECORD. The term "Design
Professional of Record" means the architectural and/or engineering professional
identified in the Design -Build Entity's Proposal that is properly qualified and licensed in
the State of California and is part of the Design -Build Entity..
1.1.19 DESIGN WORK. The term "Design Work" shall mean the portion of
the work on the Project consisting of the Design services and design deliverables
required to be provided in connection with the Design of the Project as set forth in the
Contract Documents.
1.1.20 DRAWINGS. The term "Drawings" means the graphic and pictorial
portions of the Contract Documents showing the design, location, and dimensions of the
work to he done on the Project, generally including plans, elevations, sections, details,
schedules, and diagrams prepared as part of the Design Materials. The Drawings are
listed in the List of Drawings.
24347.00600\31594337.2 2 GENERAL CONDITIONS
1.1.21 EXCUSABLE DELAY. The term "Excusable Delay" means a delay that
meets the requirements of Articles 7 and 8 of these General Conditions, and may entitle the
Design -Build Entity to an adjustment of the Contract Time and/or an adjustment to the Contract
Price, as specified in Articles 7 and 8 herein.
1.1.22 FINAL COMPLETION. The term "Final Completion" means the
point at which the work on the Project has been fully completed in accordance with the
Contract Documents as determined by the City's Representative pursuant to Paragraph
9.8, Final Completion and Final Payment, of the General Conditions.
1.1.23 GOVERNMENTAL APPROVALS. Term "Governmental Approvals"
means those governmental (including agency) actions required to be obtained by the
City and necessary for the completion of the Project.
1.1.24 MASTER PROJECT SCHEDULE. The term "Master Project
Schedule" shall mean the overall schedule for completion of Project as prepared by the
City and included in the RFP.
1.1.25 NOTICE(S) TO PROCEED. The term "Notice to Proceed" shall
mean the written notice(s) given by the City to the Design -Build Entity advising that the
Site is available to the Design -Build Entity and directing the Design -Build Entity to
commence work on the Project. The City shall issue two separate Notices to Proceed to
the Design -Build Entity. The first Notice to Proceed will be issued for the Design -Build
Entity to proceed with the design of the Project. The City shall issue a second Notice to
Proceed for the construction work on the Project upon the City's review and approval of
the Construction Documents prepared by the Design -Build Entity.
1.1.26 OWNER. The term "Owner" shall mean the City.
1.1.27 PROJECT. The term "Project" means the total design and
construction of which the work performed under the Contract Documents may be the
whole, or a part, and which may include separate design or construction work
performed by the City or by Separate Contractors.
1.1.28 PROPOSAL. The term "Proposal" means the proposal submitted by
the Design -Build Entity in response to the Request for Proposal for this Project.
1.1.29 REQUEST FOR PROPOSAL. The term "Request for Proposal"
also referred to as the "RFP" herein, means the request for proposal issued by the City
for PROJECT and includes all documents, exhibits, attachments, and addenda thereto.
1.1.30 SCHEMATIC DESIGN PHASE. The term "Schematic Design
Phase" shall mean the first of three phases of the Scope of Work. The scope of the
Schematic Design Phase is further defined in the RFP.
1.1.31 SCOPE OF WORK. The term "Scope of Work" shall mean all the all
labor, materials, and services required to be performed or provided by the Design -Build
24347.00600\31594337.2 3 GENERAL CONDITIONS
Entity pursuant to the Contract Documents necessary to design, construct, and
complete the Project.
1.1.32 SPECIFICATIONS. The term "Specifications" means that portion of
the Contract Documents consisting of the written requirements for materials, equipment,
construction systems, standards and workmanship for the work on the Project, and
performance of related services.
1.1.33 SUBCONTRACTOR. The term "Subcontractor" means any person
or firm that has a contract with the Design -Build Entity or with a Subcontractor of the
Design -Build Entity to perform a portion of the Project. Unless otherwise specifically
provided, the term Subcontractor includes Subcontractors of all tiers.
1.1.34 SUPERINTENDENT. The term "Superintendent" means the person
designated by the Design -Build Entity to represent the Design -Build Entity at the Project
site, in accordance with Article 3.
1.1.35 UNEXCUSABLE DELAY. The term "Unexcusable Delay" means
any delay other than an Excusable Delay, as described in Articles 7 and 8 of these
General Conditions, that does not entitle the Design -Build Entity to an adjustment of the
Contract Price and does not entitle the Design -Build Entity to an adjustment of the
Contract Time..
1.2 OWNERSHIP AND USE OF CONSTRUCTION DOCUMENTS
The Construction Documents, and all copies thereof, furnished to, or provided by,
the Design -Build Entity are the property of the City. The City and the Design -Build Entity
explicitly agree that all materials and documents developed in the performance of this
Contract are the property of the City. The City shall have unlimited rights, for the benefit
of the City, in all drawings, designs, specifications, notes and any other documentation
and other work developed in the performance of this Contract for the Project, including
the right to reuse details of the Design on any other City work at no additional cost to
the City. The Design -Build Entity agrees to, and hereby does, grant to the City a royalty
free license to all such data that the Design -Build Entity may cover by copyright and to
all designs as to which the Design -Build Entity may assert any right or establish any
claim to under the patent or copyright laws. The Design -Build Entity, for a period up to
five (5) years from the Date of Substantial Completion of the Project, agrees to furnish
and to provide access to the originals or copies of all such materials immediately upon
the written request of the City. Any use or reuse by City of the Construction Documents
on any project other than this Project without employing the services of the Design -Build
Entity shall be at City's own risk with respect to third parties. If the City uses or reuses
the Construction Documents on any project other than this Project, they shall remove
the Design -Build Entity's Design Professional of Record's seal from the Construction
Documents and hold harmless Design -Build Entity and its officers, directors, agents and
employees from claims arising out of the negligent use or re -use of the Construction
Documents on such other project. Design -Build Entity shall not be responsible or liable
for any revisions to the Construction Documents made by any party other than the
24347.00600\31594337.2 4 GENERAL CONDITIONS
Design -Build Entity, a party for which the Design -Build Entity is legally responsible or
liable, or anyone approved by the Design -Build Entity.
1.3 INTERPRETATION OF DOCUMENTS AND ORDER OF PRECEDENCE
1.3.1 The intent of the Contract Documents is to include all necessary
criteria to establish the scope and quality for completion of the Project by the Design -
Build Entity. The Contract Documents are complementary and what is required by one
shall be as binding as if required by all. Performance by the Design -Build Entity shall be
required to the extent consistent with, and reasonably inferable from, the Contract
Documents.
1.3.2 In the case of conflict or inconsistency, the following order of
precedence shall apply:
a. Change Orders/Modifications
b. Addenda
c. Contract
d. Special Conditions
e. General Conditions
f. Construction Documents prepared by Design -Build Entity and
approved in writing by Owner.
g. Revised and/or Additional Plans/Specifications Portions of Design -
Build Entity Proposal in response to RFP as reviewed and approved in
writing by Owner.
h. Request for Proposal ("RFP") and all addenda
i. All Attachments and Appendices to RFP
1.3.3 The City and the Design -Build Entity acknowledge that the Contract
Documents may differ in some respect(s) from the other documents included in the
Design Build Request for Proposal package upon which the Design -Build Entity based
its response(s) to Request for Proposal. Prior to the commencement of construction on
the Project, the Parties shall confirm, in writing, the final form of the Contract
Documents that are to be utilized.
1.3.4 Organization of the Specifications into various subdivisions and the
arrangement of the Drawings shall not control the Design -Build Entity in dividing
portions of the work necessary for the Project among Subcontractors or in establishing
the extent of work to be performed by any trade.
1.3.5 Unless otherwise stated in the Contract Documents, technical
words and abbreviations contained in the Contract Documents are used in accordance
with commonly understood design professional and construction industry meanings;
24347.00600\31594337.2 5 GENERAL CONDITIONS
non -technical words and abbreviations are used in accordance with their commonly
understood meanings.
1.3.6 The Contract Documents may omit modifying words such as "all"
and "any," and articles such as "the" and "an," but the fact that a modifier or an article is
absent from one statement and appears in another is not intended to affect the
interpretation of either statement. The use of the word "including," when following any
general statement, shall not be construed to limit such statement to specific items or
matters set forth immediately following such word or to similar items or matters, whether
or not non limiting language (such as "without limitation," "but not limited to," or words of
similar import) is used with reference thereto, but rather shall be deemed to refer to all
other items or matters that could reasonably fall within the broadest possible scope of
such general statement.
1.3.7 Whenever the context so requires, the use of the singular number
shall be deemed to include the plural and vice versa. Each gender shall be deemed to
include any other gender, and each shall include corporation, partnership, trust, or other
legal entity, whenever the context so requires. The captions and headings of the various
subdivisions of the Contract Documents are intended only for reference and
convenience and in no way define, limit, or prescribe the scope or intent of the Contract
Documents or any subdivision thereof.
1.3.8 Each and every provision of law required by law to be inserted in
the Contract Documents shall be deemed to be inserted herein, and the Contract
Documents shall be read and enforced as though it were included herein, and if through
mistake or otherwise any such provision is not inserted, or is not correctly inserted, then
upon application of either party the Contract shall be amended in writing to make such
insertion or correction.
1.3.9 Before commencing any work on the Project, the Design -Build
Entity shall check and review the plans and specifications and Contract Documents for
conformance and compliance with all laws, ordinances, codes, rules and regulations of
all Governmental Authorities and public utilities affecting the Project, all quasi -
governmental and other regulations affecting the Project, and other special
requirements, if any, designated in the Contract. In the event the Design -Build Entity
observes any violation of any law, ordinance, code, rule or regulation, or inconsistency
with any such restrictions or special requirements of the Contract, the Design -Build
Entity shall immediately notify the City's Representative in writing of same and shall
cause to be corrected any such violation or inconsistency in the manner provided
hereunder. The Design -Build Entity shall be solely liable for any such violation,
inconsistency or special requirement, if Design -Build Entity fails to conduct such review
or notification to the City.
1.3.10 Before commencing any work on the Project, the Design -Build
Entity shall carefully examine all specifications, Contract Documents and other
information provided to the Design -Build Entity as to Project requirements. The Design -
Build Entity shall immediately notify the City's Representative of any perceived or
24347.00600\31594337.2 6 GENERAL CONDITIONS
alleged error, inconsistency, ambiguity, or lack of detail or explanation in such
documents in writing. If the Design -Build Entity or its Subcontractors, material or
equipment suppliers, or any of their officers, agents, and employees performs, permits,
or causes the performance of any work under the Contract, which it knows or should
have known to be in error, inconsistent, or ambiguous, or not sufficiently detailed or
explained, the Design -Build Entity shall bear any and all costs arising therefrom
including, without limitation, the cost of correction thereof without increase or adjustment
to the Contract Price or the Contract Time. In no case shall any Subcontractor proceed
with work if uncertain without the Design -Build Entity's written direction and/or approval.
ARTICLE 2: CITY'S RIGHTS AND RESPONSIBILITIES
2.1 FEE AND PERMIT REQUIREMENTS.
Except as otherwise provided in the Contract Documents, the Design -Build Entity
will identify, prepare and submit on behalf of the City the applications for any necessary
permits, easements, fees and/or other government approvals for the use or occupancy
of the Project. The City will pay for such permits and fees which the Design -Build Entity
shall be responsible for obtaining on the City's behalf, as applicable.
2.2 ACCESS TO PROJECT SITE
The City will provide, as reasonably required, but in no event later than the date
designated in the Notice to Proceed with Construction, access to the lands and facilities
upon which the Construction Work is to be performed, including such access to other
lands and facilities designated in the Contract Documents for use by the Design -Build
Entity.
2.3 THE CITY'S RIGHT TO STOP WORK ON THE PROJECT
If the Design -Build Entity fails to correct Defective Work as required by
Paragraph 12.2 or fails to perform the Work in accordance with the Contract
Documents, the City or the City's Representative may direct the Design -Build Entity to
stop work on the Project, or any portion thereof, until the cause for such order has been
eliminated by the Design -Build Entity. The Design -Build Entity shall not be entitled to
any adjustment of Contract Time or the Contract Price as a result of any such order.
The City and the City's Representative have no duty or responsibility to the Design -
Build Entity or any other party to exercise the right to stop work on the Project.
2.4 THE CITY'S RIGHT TO CARRY OUT WORK ON THE PROJECT
If the Design -Build Entity fails to carry out the Project in accordance with the
Contract Documents, fails to provide sufficient labor, materials, equipment, tools, and
services, , or otherwise fails to comply with any material term of the Contract
Documents, and fails within two (2) days after receipt of notice from the City to promptly
commence and thereafter diligently continue to completion the correction of such failure,
the City may, without prejudice to other remedies the City may have, correct such failure
at the Design -Build Entity's expense. In such case, the City will be entitled to deduct
24347.00600\31594337.2 7 GENERAL CONDITIONS
from payments then or thereafter due the Design -Build Entity the cost of correcting such
failure, including compensation for the additional services and expenses of the City's
Representative and the City's consultants made necessary thereby. If payments then or
thereafter due the Design -Build Entity are not sufficient to cover such amounts, the
Design -Build Entity shall pay the additional amount to the City within ten (10) days of
the City's written demand.
2.5 THE CITY'S RIGHT TO REPLACE THE CITY'S REPRESENTATIVE
The City may at any time and from time to time, without prior notice to or
approval of the Design -Build Entity, replace the City's Representative with a new
individual. Upon receipt of notice from the City informing the Design -Build Entity of such
replacement and identifying the new City's Representative, the Design -Build Entity shall
recognize such person or firm as the City's Representative for all purposes under the
Contract Documents.
2.6 PARTIAL OCCUPANCY OR USE
2.6.1 The City may occupy or use any completed or partially completed
portion of the Project at any time. The City and the Design -Build Entity shall agree in
writing to the condition and status of the Project (or designated portion), the
responsibilities assigned to each of them for payments, security, maintenance, heat,
utilities, damage to the work (or designated portion), insurance, the period for correction
of the work (or designated portion), and the commencement of warranties for the work
(or designated portion) required by the Contract. When requested by the City, the
Design -Build Entity shall complete all Punch List items for the occupied portion of the
Project.
2.6.2 Immediately prior to such partial occupancy or use, the City and the
Design -Build Entity shall jointly inspect the portions of the Project (or designated
portion) to be occupied or used, in order to determine and document the condition and
status of the work on the Project.
2.6.3 Unless otherwise agreed by the Parties in writing, partial occupancy
or use of a portion or portions of the Project shall not constitute final acceptance of the
Project, shall not be deemed an approval of any portion or portions of the Project not in
compliance with the requirements of the Contract, and shall not relieve the Design -Build
Entity of any responsibility or obligation under the Contract.
2.7 INFORMATION PROVIDED BY CITY
2.7.1 The City provided the Design -Build Entity with information
regarding the Site in the RFP and its respective components, including, but not limited
to previous plans and other data.
2.7.2 This information is for the Design -Build Entity's use in performing
the Project work. Design -Build Entity is responsible for verifying field conditions and
24347.00600\31594337.2 8 GENERAL CONDITIONS
other data in the information provided by Owner and requesting written clarification of
any errors or ambiguities discovered by the Design -Build Entity.
ARTICLE 3: DESIGN BUILD ENTITY'S RIGHTS AND RESPONSIBILITIES
3.1 DESIGN BUILD ENTITY'S RESPONSIBILITY; INDEPENDENT
CONTRACTOR
The Design -Build Entity shall be responsible to the City for acts and omissions of
the Design -Build Entity's employees, Subcontractors, material and equipment suppliers,
and their agents, employees, invitees, and other persons performing portions of work on
the Project under direct or indirect contract with the Design -Build Entity or any of its
Subcontractors The City retains the Design -Build Entity as an independent contractor.
The Design -Build Entity is not an employee, agent or representative of the City. The
Design -Build Entity represents that it is fully experienced and properly qualified as well
as properly licensed, equipped, organized, and financed to perform the Project. The
Design -Build Entity shall maintain complete control over its employees and its
subcontractors and shall pay all wages, salaries and other amounts due such personnel
in connection with their performance as required by law. The Design -Build Entity shall
be responsible for all reports and obligations respecting such personnel, including but
not limited to, social security taxes, income tax withholdings, unemployment insurance,
and workers' compensation insurance.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS;
SINGLE POINT RESPONSIBILITY OF THE DESIGN BUILD ENTITY
3.2.1 In addition to the examination and reviews performed, and
obligations assumed, incident to making the representations set forth in Article 10 of the
Contract, the Design -Build Entity shall carefully study and compare each of the Contract
Documents provided by the City with the others and with information furnished by the
City, and shall promptly report in writing to the City's Representative any errors,
inconsistencies, or omissions in the Contract Documents provided by the City or
inconsistencies with Applicable Code Requirements observed by the Design -Build
Entity. The Design -Build Entity shall be solely responsible for any errors,
inconsistencies or omissions in the Contract Documents if the Design -Build Entity fails
to perform such review and examination or fails to report such errors, inconsistencies or
omissions to the City in writing.
3.2.2 The Design -Build Entity is responsible for the design and
construction of the Project and shall use the highest design and engineering standards
of care applicable to public projects, buildings or work of similar size, complexity, quality
and scope in performing work on the Project. The Design -Build Entity shall be solely
responsible for any and all design errors including, but without limitation, errors,
inconsistencies or omissions in the Construction Documents. The Design -Build Entity
shall take field measurements, verify field conditions, and carefully compare with the
Contract Documents such field measurements, conditions, and other information known
to the Design -Build Entity before commencing work on the Project. Errors,
24347.00600\31594337.2 9 GENERAL CONDITIONS
inconsistencies, or omissions discovered at any time shall be promptly reported in
writing to the City's Representative.
3.2.3 If the Design -Build Entity performs any design and/or construction
activity which it knows, or should know, involves an error, inconsistency, or omission
referred to in Subparagraphs 3.2.1 and 3.2.2, without notifying and obtaining the written
consent of the City's Representative, the Design -Build Entity shall be responsible for the
resultant Losses, including, without limitation, the costs of correcting Defective Work.
3.2.4 The City does not assume any obligation to employ the Design -
Build Entity's services or pay the Design -Build Entity royalties of any type as to future
projects that may result from work performed under this Contract.
3.2.5 The Design -Build Entity shall be responsible for all plotting, printing,
copying and distribution costs of any and all documents required in connection with
work on the Project.
3.2.6 The Design -Build Entity agrees that it has single point responsibility
for the Design and construction of this Project, and agrees to utilize the highest
standard of excellent design, engineering and construction practices. The Design -Build
Entity agrees that, in light of the high degree of confidence and trust that the City has
reposed in the Design -Build Entity, the Design -Build Entity is a fiduciary of the City and,
as such, has the duty to act in the City's best interests at all times throughout the course
and performance of this Contract.
3.3 DESIGN, SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Design -Build Entity shall supervise, coordinate, and direct all
work on the Project using the Design -Build Entity's best skill and attention. The Design -
Build Entity shall be solely responsible for, and have control over, the entire design
effort, construction means, methods, techniques, sequences, procedures, and the
coordination of all portions of work on the Project, including, but without limitation,
landscape and site work, utilities, and building systems.
3.3.2 The Design -Build Entity shall be responsible to the City for acts and
omissions of the Design -Build Entity, its agents, employees, and Subcontractors, and
their respective agents and employees.
3.3.3 The Design -Build Entity shall not be relieved of its obligation to
perform all work on the Project in accordance with the Contract Documents either by
acts or omissions of the City or the City's Representative in the administration of the
Contract, or by tests, inspections, or approvals required, or performed, by persons or
firms other than the Design -Build Entity.
3.3.4 The Design -Build Entity shall be responsible for inspection of all
portions of work on the Project, including those portions already performed under this
Contract, to determine that such portions conform to the requirements of the Contract
Documents and are ready to receive subsequent work.
24347.00600\31594337.2 10 GENERAL CONDITIONS
3.3.5 To facilitate communications and the management of the Design
process, the Design -Build Entity shall establish a local office, within the City limits, for
the duration of the Design process.
3.3.6 [RESERVED.]
3.3.7 The Design -Build Entity is required to deliver to the City, if
requested, any and all design materials including, but not limited to, calculations,
preliminary drawings, construction drawings, shop drawings, electronic media data,
tenant improvement documents, sketches, illustrations, specifications, descriptions,
models, mock ups, and other information developed, prepared, furnished, or delivered
in the prosecution of the Design Work.
3.3.8 The Design -Build Entity shall at all times participate in, implement,
and comply with the CEQA documentation prepared for the Project and provided to the
Design -Build Entity in order to ensure conformance with the requirements of CEQA as
required in the Contract Documents.
3.3.9 The Design -Build Entity is responsible for preparation of the
Construction Documents for the entire Project.
3.3.10 The Design -Build Entity is responsible for construction of the entire
Project as required by the Contract Documents.
3.3.11 The Design -Build Entity shall at all times maintain good discipline
and order among its employees and subcontractors. The Design -Build Entity shall
provide competent, fully qualified personnel to perform all work on the Project.
3.4 LABOR AND MATERIALS
Unless otherwise provided in the Contract Documents, the Design -Build Entity
shall provide and pay for all professional services, services, labor, materials, equipment,
tools, construction equipment and machinery, water, heat, utilities, transportation, and
other facilities and services necessary for proper execution and completion of the Scope
of Work on the Project, whether temporary or permanent and whether or not
incorporated or to be incorporated in work on the Project.
3.5 DESIGN BUILD ENTITY'S WARRANTY
The Design -Build Entity warrants to the City that all Design Work will be
performed in accordance with the highest professional standards and degree of care
applicable to those design professionals who specialize in designing and providing
services for public projects of the type, scope, quality and complexity of the Project
utilizing the Design Build contracting mode. The Design -Build Entity warrants to the City
that all labor, materials, equipment and furnishings used in, or incorporated into, the
Construction Work will be of good quality, new (unless otherwise required or permitted
by the Contract Documents), and all work will be free of liens, claims and security
interests of third parties; that the work will be of the highest quality and free from defects
24347.00600\31594337.2 11 GENERAL CONDITIONS
and that all work will conform with the requirements of the Contract Documents. If
required by the City's Representative, the Design -Build Entity shall furnish satisfactory
evidence of compliance with this warranty. Further, the type, quality and quantum of
such evidence shall be within the sole discretion of the City's Representative.
3.6 TAXES
The Design -Build Entity shall pay all sales, consumer, use, income, payroll and
similar taxes in connection with the Project.
3.7 PERMITS, FEES, AND NOTICES
Except for the permits and approvals which are to be obtained on behalf of the
City or the requirements with respect to which the City is not subject, as provided in
Subparagraph 2.1.1, the Design -Build Entity shall secure, and pay for, all other permits,
approvals, government fees, licenses, and inspections necessary for the proper
execution and performance of work on the Project. The Design -Build Entity shall deliver
to the City all original licenses, permits, and approvals obtained by the Design -Build
Entity in connection with work on the Project prior to the final payment or upon
termination of the Contract, whichever is earlier.
3.8 APPLICABLE CODE REQUIREMENTS
3.8.1 The Design -Build Entity shall perform all work on the Project in
accordance with the following Applicable Code Requirements and all code requirements
listed in the Scope of Work:
(a) All laws, statutes, the most recent building codes, ordinances,
rules, regulations, and lawful orders of all public authorities having jurisdiction over the
City, the Design -Build Entity, any Subcontractor, the Project, the Project site, the work
on the Project, or the prosecution of the work on the Project.
(b) All requirements of any insurance company issuing insurance
required hereunder.
(c) Applicable sections in the State of California Labor Code.
(d) All Applicable Code Requirements relating to nondiscrimination,
payment of prevailing wages, payroll records, apprentices, and work day.
3.8.2 The Design -Build Entity shall comply with and give notices required
by all Applicable Code Requirements, including all environmental laws and all notice
requirements under the State of California Safe Drinking Water and Enforcement Act of
1986 (State of California Health and Safety Code Section 25249.5, and applicable
sections that follow). The Design -Build Entity shall promptly notify the City's
Representative in writing if the Design -Build Entity becomes aware during the
performance of work on the Project that the Contract Documents are at variance with
Applicable Code Requirements.
24347.00600\31594337.2 12 GENERAL CONDITIONS
3.8.3 If the Design -Build Entity performs work which it knows or should
know is contrary to Applicable Code Requirements, without prior notice to the City and
the City's Representative, the Design -Build Entity shall be responsible for such work
and any resulting damages including, without limitation, the costs of correcting Defective
Work.
3.9 SUPERINTENDENT
3.9.1 The Design -Build Entity shall employ a competent Superintendent
satisfactory to the City who shall be in attendance at the Project site at all times during
the performance of the Construction Work. Superintendent shall represent the Design -
Build Entity and communications given to, and received from, Superintendent shall be
binding on the Design -Build Entity. Failure to maintain a Superintendent on the Project
site at all times work on the Project is in progress shall be considered a material breach
of this Contract, entitling the City to terminate the Contract or, alternatively, issue a stop
work order until the Superintendent is on the Project site. If, by virtue of issuance of said
stop work order, the Design -Build Entity fails to complete the Contract on time, the
Design -Build Entity will be assessed Liquidated Damages in accordance with the
Contract.
3.9.2 Any changes to the assignment of the Superintendent shall receive
prior written approval from the City. The Superintendent may not perform the work of
any trade, pick up materials, or perform any work not directly related to the supervision
and coordination of the Construction Work at the Project site when work is in progress.
In addition, the Design -Build Entity will provide all key personnel identified in the
Contract for the time periods stipulated.
3.10 PROJECT STAFFING
3.10.1 The Design -Build Entity and each Subcontractor shall furnish a
competent and adequate staff as necessary for the proper administration, coordination,
supervision, and superintendence of its portion of the work on the Project; organize the
procurement of all materials and equipment so that the materials and equipment will be
available at the time they are needed for the work; and keep an adequate force of
skilled and fit workers on the job to complete all work on the Project in accordance with
all requirements of the Contract.
3.10.2 The City shall have the right, but not the obligation, to require the
removal from the Project of the Design -Build Entity's Representative, or any
superintendent, staff member, agent, or employee of any contractor, Subcontractor,
material or equipment supplier, or any other entity working on the Project. Removal may
be required for any reason designated by the City, including but not limited to, failure or
refusal to perform work on the Project in a manner acceptable to the City, uncooperative
or incompetent performance on the Project, threatening the adequate or timely
completion of the Project, or threatening the safety of persons or property.
24347.00600131594337.2 13 GENERAL CONDITIONS
3.11 TOXIC MATERIALS
The Design -Build Entity is responsible for unforeseen site conditions and toxic
materials to the extent described in the Contract Documents and/or that could be
reasonably inferred by the Design -Build Entity based on its experience and expertise on
similar projects.
3.12 HAZARDOUS MATERIALS
3.12.1 The Design -Build Entity is solely responsible for investigating and
performing remedial actions on all hazardous materials and other related environmental
requirements located on the Project site. For the purposes of this Contract, hazardous
materials shall also include, but are not limited to, underground storage tanks. Any
hazardous materials that are encountered beyond those described in the Contract
Documents or Proposal Requirements, or which reasonably could not have been
discovered within the time permitted, may properly be the subject of a Change Order
Request. The City agrees that the Design -Build Entity cannot be considered a
hazardous materials generator of any such materials in existence on the Site at the time
it is given possession of the Site.
3.12.2 "Hazardous materials" means any substance: the presence of
which requires investigation or remediation under any federal, state or local law, statute,
regulation, ordinance, order, action, policy or common law; which is or becomes defined
as a "hazardous waste," "hazardous substance," pollutant or contaminant under any
federal, state or local law, statute, regulation, rule or ordinance or amendments thereto,
including, without limitations, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as
amended, or the Resource, Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq. ("RCRA"); which is petroleum, including crude oil or any fraction
thereof not otherwise designated as a "hazardous substance" under CERCLA, including
without limitation gasoline, diesel fuel or order petroleum hydrocarbons; which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or
otherwise hazardous and is or becomes regulated by any regulatory agency or
instrumentality or the United States; the presence of which on the Site causes or
threatens to cause a nuisance upon the Site or to the adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about the Site; the
presence of which on adjacent properties could constitute a trespass by the Design -
Build Entity or the City; or as defined in the California Health and Safety Code.
3.12.3 "Underground Storage Tank" shall have the Definition assigned to
that term by Section 9001 of RCRA, 42 U.S.C. Section 6991 , and also shall include:
any tank of one thousand one hundred (1, 100) gallons or less capacity used for storing
motor fuel; any tank used for storing heating oil for consumption on the premises where
stored; any septic tank; and any pipes connected to the above items.
3.12.4 "Environmental Requirements" means all applicable laws, statutes,
regulations, rules, ordinances, codes, licenses, permits, orders and similar items of all
24347.00600\31594337.2 14 GENERAL CONDITIONS
governmental agencies or other instrumentality's of the City, State of California, and
United States and all applicable judicial, administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the environment,
including, without limitation: all requirements, including, but not limited to, those
pertaining to reporting, licensing, permitting, investigation and remediation of emissions,
discharges, releases or threatened releases of hazardous materials into the air, surface
water, ground water or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of hazardous materials; and all
requirements pertaining to the protection of the health and safety of employees or the
public.
3.13 COMPLIANCE WITH STATE STORM WATER PERMIT FOR
CONSTRUCTION
The Design -Build Entity shall be required to comply with all conditions of the
State Water Resources Control Board National Pollutant Discharge Elimination System
General Permit for Waste Discharge Requirements for Discharges of Storm Water
Runoff Associated with Construction Activity ("Permit") for all construction activity which
results in the disturbance of in excess of one acre of total land area or which is part of a
lager common area of development or sale as described in Article 14.10 below. Failure
to comply with the Permit is in violation of federal and state law. The Design -Build Entity
hereby agrees to provide indemnification pursuant to Section 1.10 of the Contract of the
Design Build Contract..
3.14 CONSTRUCTION DOCUMENTS
3.14.1 Construction Documents
(a) Upon receipt of the Notice to Proceed, the Design -Build
Entity shall instruct the Design Professional of Record to commence the design of the
Project and the preparation of the Schematic Design and Construction Documents.
Upon review and written approval of the Schematic Design by the City, the Design -Build
Entity shall complete the Construction Documents. The Design -Build Entity shall
address all of the City's comments on the Schematic Design documents in the
Construction Documents, either by incorporating the comments or providing a written
explanation of why the comment is not incorporated. The Construction Documents shall
provide information customarily necessary in documents for projects of similar size,
complexity, and quality. The Construction Documents shall include all information
required by the building trades to complete the construction of the Project, other than
such details customarily developed by others during construction. The City's review of
the Construction Documents shall be conducted in accordance with the approved
Contract Schedule with procedures set forth in Article 3 relating to Schedule. Such
review shall not relieve the Design -Build Entity from its responsibilities under the
Contract. Such review shall not be deemed an approval or waiver by the City of any
deviation from, or of the Design -Build Entity's failure to comply with, any provision or
requirement of the Contract Documents, unless such deviation or failure has been
24347.00600\31594337.2 15 GENERAL CONDITIONS
identified as such in writing in the Document submitted by the Design -Build Entity and
approved by the City.
(b) However, it is acknowledged by the parties hereto that
inherent in a Design Build concept, bridging or otherwise, the production and review of
Construction Documents may be a continuing process with portions thereof completed
at different times. The Design -Build Entity will limit the Construction Document
packages submitted to the City for review and approval for construction to five (5),
unless approved in writing by the City. Contract Schedule shall indicate the times for the
City to review the completion of each such portion of the Construction Documents and a
reasonable time for review of same.
(c) The Design -Build Entity shall submit completed packages of
the Construction Documents for review by the City, and all other required governmental
agencies, at the times indicated on the Contract Schedule and as defined in the
Scheduling Specification. Meetings between the Design -Build Entity and the City to
review the Construction Document packages, shall be scheduled and held so as not to
delay work on the Project.
(d) The Construction Documents for hazardous and/or toxic
abatement efforts and demolition activity shall be of sufficient clarity and shall be fully
detailed and approved by a licensed engineer if required by law when submitted to the
City for review.
3.14.2 Shop Drawings, Product Data, Samples, Materials, and Equipment
(a) Shop drawings are drawings, submitted to the Design -Build
Entity by subcontractors, manufacturers, supplier or distributors, showing in detail the
proposed fabrication and assembly of building elements and the installation (e.g., form,
fit, and attachment details) of materials or equipment.
(b) The Design -Build Entity shall coordinate all submittals and
review them for accuracy, completeness, and compliance with the requirements of the
Contract Documents and the Design -Build Entity's Construction Documents and shall
indicate its approval thereon as evidence of such coordination and review.
(c) Materials and equipment incorporated in the work on the
Project shall match the approved samples within tolerances appropriate to the items,
and as may be described in the Contract Documents.
(d) The Design -Build Entity shall submit shop drawings
approved by the Design Professional of Record and samples of submittals that relate to
finish materials and products.
(e) Wherever the name or brand of manufacturer or an article is
listed in the Contract Documents, it is to be used in work on the Project as the standard.
Any variation in quality must be approved by the City.
24347.00600\31594337.2 16 GENERAL CONDITIONS
3.14.3 Field Engineering
(a) If requested by the City, the Design -Build Entity shall retain
and pay expenses of a civil engineer or land surveyor to establish on the Site the
required reference points and benchmarks, establish building lines and elevations,
check for building framing, plumbness, and establish on building frame the required
basic grid lines. The engineer or land surveyor shall be licensed in the State of
California.
(b) The Design -Build Entity shall locate and protect control
points prior to starting work on the Project site and preserve permanent reference points
during construction, and shall require the engineer or surveyor to replace control points
which become lost or destroyed.
3.14.4 Geotechnical and Survey
(a) The City may provide the Design -Build Entity with a
geotechnical report which includes supporting data, findings and recommendations; and
also with a legal description and a project survey that are included in the Contract
Documents. The Design Work shall be consistent with both the findings and
recommendations of the geotechnical report and legal description and project survey.
(b) The Design -Build Entity shall verify the location and depth
(elevation) of all existing utilities and services before performing any excavation work.
(c) Any additional tests, borings, etc. necessary to support the
Construction Documents shall be the responsibility of the Design -Build Entity.
3.15 MONTHLY REPORT
Upon request by the City, the Design -Build Entity shall prepare and submit,
during both the Construction Documents Phase and the Construction Phase, monthly
reports on the work accomplished during the prior monthly period. Such reports shall be
prepared in a manner and in a format approved by the City. Reports shall be furnished
at the time of submission of each monthly application for payment. The monthly report
shall also set forth the Design -Build Entity's projected progress for the forthcoming
month.
3.16 OTHER REPORTS
The Design -Build Entity will cooperate with the City in preparing, or causing to be
prepared, all or part of, periodic project reports required by state or federal agencies.
3.17 NOTICES OF LABOR DISPUTE
3.17.1 If the Design -Build Entity has knowledge that any actual or potential
labor dispute is delaying, or threatens to delay, the timely performance of work on the
24347.00600131594337.2 17 GENERAL CONDITIONS
Project, the Design -Build Entity shall immediately give written notice including all
relevant information to the City.
3.17.2 The Design -Build Entity agrees to insert the substance of this
Article in any subcontract to which a labor dispute may delay the timely performance of
work on the Project, except that each subcontract shall provide that in the event its
timely performance is delayed or threatened by delay by any actual or potential labor
dispute, the subcontractor shall immediately notify the next higher tier subcontractor or
the Design -Build Entity, as the case may be, of all relevant information concerning the
Dispute.
3.18 GUARANTEE
3.18.1 The Design -Build Entity unconditionally guarantees all work on the
Project will be completed in accordance with the Contract Documents, and will remain
free of defects in workmanship and materials for a period of one (1) year from the date
of Final Completion, unless a longer guarantee period is specifically called for in the
Contract Documents. However, a shorter guarantee period shall apply to landscape
plants, trees, turf, and other living landscape materials. Trees or shrubs greater than
one gallon in size at the time of planting shall be guaranteed for one (1) year, and all
other plant material shall be guaranteed for six (6) months. The Design -Build Entity shall
repair or replace any and all work, together with any adjacent work that may have been
damaged or displaced, which was not in accordance with the requirements of the
Contract Documents, or that may be defective in its workmanship or material within the
guarantee period specified in the Contract Documents, without any expense whatsoever
to the City; ordinary wear and tear and abuse excepted. The Design -Build Entity shall
bear all costs of such correction, replacement, repair, or restoration, and all Losses
resulting from such Defective Work, including additional testing, inspection, and
compensation for the City's Representative's services and expenses. The Design -Build
Entity shall perform corrective work on the Project at such times that are acceptable to
the City and in such a manner as to avoid, to the extent practicable, disruption to the
City's activities.
3.18.2 The Design -Build Entity further agrees, within fourteen (14) days, or
as such shorter period as may be designated for emergency repairs, after being notified
in writing by the City, of any work not in accordance with the requirements of the
Contract Documents or any defects in the work on the Project, that the Design -Build
Entity shall commence and execute, with due diligence, all work necessary to fulfill the
terms of the guarantee. If the City finds that the Design -Build Entity fails to perform any
of the work under the guarantee, the City may elect to have the work completed at the
Design -Build Entity's expense and the Design -Build Entity will pay costs of the work
upon demand. The City will be entitled to all costs, including reasonable attorneys' fees
and consultants' expenses necessarily incurred upon the Design -Build Entity's refusal to
pay the above costs.
3.18.3 Notwithstanding the foregoing subparagraph, in the event of an
emergency constituting an immediate hazard to health or safety of the City employees,
24347.00600\31594337.2 18 GENERAL CONDITIONS
property, or licensees, the City may undertake, at the Design -Build Entity's expense and
without prior notice, all work necessary to correct such condition(s) when it is caused by
work of the Design -Build Entity not being in accordance with the requirements of the
Contract Documents
3.18.4 The Design -Build Entity's obligations under this Article 3.18 are in
addition to and not in limitation to any other obligation of the Design -Build Entity under
the Contract Documents or at law. Enforcement of the Design -Build Entity's express
warranties and guarantees to repair contained in the Contract Documents shall be in
addition to and not in limitation of any other rights or remedies the City may have under
the Contract Documents or at law or in equity for Defective Work.
3.19 WARRANTY
The Design -Build Entity warrants to the City that any and all materials, equipment
and furnishings incorporated in the Project will be of good quality and new unless
otherwise required or permitted by the Contract Documents. Work not conforming to
these requirements, including substitutions not properly approved and authorized, may
be considered defective. The foregoing warranty excludes damage caused by improper
operation, or normal wear and tear under normal usage under the control of the City.
Such warranty shall exclude warranties relating to design, warranty of fitness, and any
other express or implied warranties other than as set forth herein or in the Contract
Documents; provided, however, that the foregoing shall not impair the rights of the City
to maintain an action for breach of contract against the Design -Build Entity.
3.20 SCHEDULES REQUIRED OF THE DESIGN BUILD ENTITY
3.20.1 The Design -Build Entity shall plan, develop, supervise, control, and
coordinate the performance of the work on the Project so that its progress and the
sequence and timing of Work activities complete the Project within the Contract Time(s).
Design -Build Entity shall use the Critical Path Method (CPM ) in planning, coordinating,
performing and reporting on the Work, including all activities of Design -Build Entity,
Subcontractors, equipment vendors, and suppliers, and in assisting the City in
monitoring the progress of the Work.
3.20.2 The Schedule shall depict events and activities, their durations and
their interrelationships, and shall recognize the progress that must be made in one task
before subsequent tasks can begin. The CPM network shall be comprehensive and
shall include all activities, interdependencies and interactions required to perform the
Work. Design -Build Entity shall submit the construction schedule to the City for review.
3.20.3 All Schedules, including the initial schedule, the baseline schedule,
and the monthly updates, shall be submitted to the City in both hard copy and electronic
form. The electronic files shall be the actual scheduling program files, not a pdf version
of the schedule. Design -Build Entity shall submit three hard copies of all Schedules
printed in a bar chart format on a timeline, showing the entire construction period.
24347.00600\31594337.2 19 GENERAL CONDITIONS
3.20.4 Within thirty (30) days of execution of the Design Build Contract,
the Design -Build Entity shall provide the City, for its review and written approval, a
detailed Schedule which fully sets forth the Design -Build Entity's proposed schedule for
completion of all design and construction services on the Project within the Contract
Times. The Schedule shall be created in the current version of one of the following
scheduling programs: Primavera Project Planner (version P3 or P6), Suretrak Project
Manager, or Microsoft Project.
3.20.5 The Schedule shall be updated and submitted to the City on a
monthly basis for the purpose of recording and monitoring the actual progress of the
Work. Each monthly update shall include actual dates of activities started and/or
completed during the previous month, and the percentage of work completed to date on
each activity started but not completed. The monthly update shall incorporate all
changes mutually agreed upon by the Design -Build Entity and the City during preceding
periodic reviews and all changes resulting from approved Change Orders and Field
Directives. The monthly update shall also include a forecast of the remaining duration
for each activity, if the remaining duration is expected to be greater than that calculated
by the scheduling program based on the percentage complete.
3.20.6 [RESERVED.]
3.20.7 The Design -Build Entity shall continuously obtain from
Subcontractors information and data about the planning for, and progress of, the work
on the Project and the delivery of equipment. During its work on the Project, the Design -
Build Entity shall coordinate and integrate such information and data into updated
Contract Schedules, and shall monitor the progress of the work on the Project and the
delivery of equipment. The Design -Build Entity shall act as the expediter of potential and
actual delays, interruptions, hindrances, or disruptions for its own forces and those
forces of Subcontractors, regardless of tier.
3.20.8 Failure of the City's Representative to discover errors or omissions
in schedules that it has reviewed, or to inform the Design -Build Entity that the Design -
Build Entity, Subcontractors, or others are behind schedule, or to direct or enforce
procedures for complying with the Contract Schedule shall not relieve the Design -Build
Entity from its sole responsibility to perform and complete the Project within the Contract
Time and shall not be a cause for an adjustment of the Contract Time or the Contract
Price.
3.21 AS BUILT DOCUMENTS
The Design -Build Entity shall maintain one (1) set of As -Built drawings and
specifications, which shall be kept up to date during the work of the Contract. All
changes from the Documents as drawn and written and approved which are
incorporated into the work on the Project shall be noted on the As -Built set. Notations
shall reflect the actual materials, equipment and installation methods used for the work
on the Project, as well as the actual location of the work, and each revision shall be
initialed and dated by Superintendent. Prior to filing of the Notice of Completion, each
24347.00600\31594337.2 20 GENERAL CONDITIONS
drawing and the specification cover shall be signed by the Design -Build Entity and
dated, attesting to the completeness of the information noted therein. As -Built
Documents shall be turned over to the City's Representative and shall become part of
the Record Documents as required by the Scope of Work.
3.22 DOCUMENTS AND SAMPLES AT PROJECT SITE
The Design -Build Entity shall maintain the following at the Project site:
1. One current copy of the Contract Documents (including Construction
Documents), in good order and marked to record current changes and selections made
during construction.
2. One copy of the prevailing wage rates applicable to the Project.
3. The current accepted Contract Schedule.
4. Shop Drawings, Product Data, and Samples.
5. One current copy of all As built documents.
6. All other required submittals.
These shall be available to the City's Representative and shall be delivered to
the City's Representative for submittal to the City upon the earlier of Final Completion or
termination of the Contract, or at any time upon the City's written demand.
3.23 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES
3.23.1 Definitions:
(a) Shop Drawings [above] are drawings, diagrams, schedules,
and other data specially prepared for the Project by the Design -Build Entity or a
Subcontractor to illustrate some portion of the work on the Project.
(b) Product Data are illustrations, standard schedules,
performance charts, instructions, brochures, diagrams, and other information furnished
by the Design -Build Entity to illustrate or describe materials or equipment for some
portion of work on the Project.
(c) Samples are physical examples that illustrate materials,
equipment, or workmanship and establish standards by which the work on the Project
will be judged.
3.23.2 Shop Drawings, Product Data, Samples, and similar submittals are
not Contract Documents. Their purpose is to demonstrate, for those portions of work on
the Project for which submittals are required, how the Design -Build Entity proposes to
24347.00600\31594337.2 21 GENERAL CONDITIONS
conform to the information given and the Design concept expressed in the Contract
Documents.
3.23.3 The Design -Build Entity shall review, approve, and submit to the
City's Representative Shop Drawings, Product Data, Samples, and similar submittals
required by the Contract Documents with reasonable promptness and in such sequence
as to cause no delay in the work on the Project or in the activities of the City or of
Separate° Contractors. Submittals made by the Design -Build Entity that are not required
by the Contract Documents may be returned without action by the City's
Representative.
3.23.4 The Design -Build Entity shall perform no portion of the work
requiring submittal and review of Shop Drawings, Product Data, Samples, or similar
submittals until the respective submittal has been reviewed by the City's Representative
and no exceptions have been taken by the City's Representative. Such work shall be in
accordance with approved submittals and the Contract Documents. The City shall
provide review and response to all such submittals within ten (10) working days.
3.23.5 By approving and submitting Shop Drawings, Product Data,
Samples, and similar submittals, the Design -Build Entity represents that it has
determined or verified materials and field measurements and conditions related thereto,
and that it has checked and coordinated the information contained within such
submittals with the requirements of the Contract Documents and Shop Drawings for
related work.
3.23.6If the Design -Build Entity discovers any conflicts, omissions, or
errors in Shop Drawings or other submittals, the Design -Build Entity shall notify the
City's Representative and receive instruction before proceeding with the affected work.
The Design -Build Entity shall be responsible to correct to the satisfaction of the City,
any conflicts, omissions, or errors in Shop Drawings or other submittals.
3.23.7 The Design -Build Entity shall not be relieved of responsibility for
deviations from requirements of the Contract Documents by the City's Representative's
review of Shop Drawings, Product Data, Samples, or similar submittals, unless the
Design -Build Entity has specifically informed the City's Representative in writing of such
deviation at the time of submittal and the City's Representative has given written
approval of the specific deviation. The Design -Build Entity shall not be relieved of
responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or
similar submittals by the City's Representative's review, acceptance, comment, or
approval thereof.
3.23.8 The Design -Build Entity
on resubmitted Shop Drawings, Product
revisions other than those requested by
submittals.
shall direct specific attention, in writing or
Data, Samples, or similar submittals, to
the City's Representative on previous
24347.00600\31594337.2 22 GENERAL CONDITIONS
3.23.9 The City will review first resubmittal of Shop Drawing at its cost.
The City reserves the right to reduce the Contract Price by Change Order for its cost for
any subsequent reviews of Shop Drawing resubmittals.
3.24 USE OF SITE AND CLEAN UP
3.24.1 The Design -Build Entity shall confine operations at the Project site
to areas permitted by law, ordinances, permits, and the Contract Documents. The
Design -Build Entity shall not unreasonably encumber the Project site with materials or
equipment.
3.24.2 The Design -Build Entity shall, during performance of work on the
Project, keep the Project site and surrounding area free from the accumulation of
excess dirt, waste materials, and rubbish caused by the Design -Build Entity. The
Design -Build Entity shall remove all excess dirt, waste material, and rubbish caused by
the Design -Build Entity; tools; equipment; machinery; and surplus materials from the
Project site and surrounding area at the completion of the Project.
3.24.3 Personnel of the Design -Build Entity and Subcontractors shall not
occupy, live upon, or otherwise make use of the Project site during any time that work is
not being performed at the Project site, except as otherwise provided in the Contract
Documents.
3.25 CUTTING, FITTING, AND PATCHING
3.25.1 The Design -Build Entity shall do all cutting, fitting, or patching work
required to make all parts of the Project come together properly and to allow the Project
to receive or be received by the work of Separate Contractors shown upon, or
reasonably implied by, the Contract Documents.
3.25.2 The Design -Build Entity shall not endanger the Project, or adjacent
property by cutting, digging, or otherwise. The Design -Build Entity shall not cut or alter
the work of any Separate Contractor without the prior consent of The City's
Representative.
3.26 ACCESS TO WORK
The City, the City's Representative, their consultants, and other persons
authorized by the City will at all times have access to the work on the Project wherever
it is in preparation or progress. The Design -Build Entity shall provide safe and proper
facilities for such access and for inspection.
3.27 ROYALTIES AND PATENTS
The Design -Build Entity shall pay all royalties and license fees required for the
performance of work on the Project. The Design -Build Entity shall defend suits or claims
resulting from the Design -Build Entity's or any Subcontractor's infringement of patent
24347.00600\31594337.2 23 GENERAL CONDITIONS
rights and shall Indemnify the City and the City's Representative from Losses on
account thereof.
3.28 CONCEALED OR UNKNOWN CONDITIONS
3.28. 1 Except and only to the extent provided otherwise in Article 7 and 8
of the General Conditions, by signing the Contract, the Design -Build Entity agrees:
(a) To bear the risk of concealed or unknown conditions, if any,
which may be encountered in performing the Contract, as described in these Contract
Documents, and/or that can reasonably be inferred by the Design -Build Entity based on
its experience and expertise; and
(b) That the Design -Build Entity's Contract Price for the Contract
was made with full knowledge of this risk.
3.28.2 In agreeing to bear the risk of concealed or unknown conditions,
The Design -Build Entity understands that, except and only to the extent provided
otherwise in Articles 7 and 8, concealed and/or unknown conditions shall not excuse
The Design -Build Entity from its obligation to achieve full completion of the Project
within the Contract Time, and shall not entitle the Design -Build Entity to an adjustment
of the Contract Price.
3.28.3 If concealed or unknown conditions are encountered which require,
in the opinion of the City's Representative, design details which differ from those details
shown in the Criteria Documents and the City's Representative finds that such revised
design details will cause an increase or decrease in the cost of, or the time required for
performance of the Contract, and if the City agrees with the City's Representative's
determinations, the City will issue a Change Order modifying the Contract Terms to
provide for the change in design details and to provide for an adjustment in the Contract
Price and/or Contract Time pursuant to Articles 7 and 8.
3.28.4If the Design -Build Entity encounters concealed or unknown
conditions that differ materially from those anticipated or expected, the Design -Build
Entity shall notify the City's Representative in writing within 24 hours in writing of such
conditions so that the City's Representative can determine if such conditions require
design details which differ from those design details shown in the Criteria Documents.
The Design -Build Entity shall be liable to the City for any extra costs incurred as the
result of the Design -Build Entity's failure to give such notice.
3.29 LIABILITY FOR AND REPAIR OF DAMAGED WORK
Except as otherwise provided in the Contract Documents, the Design -Build Entity
shall be liable for any and all damages and losses to the work or materials that would
otherwise be covered by Builder's Risk coverage (whether by fire, theft, vandalism,
earthquake, flood or otherwise) prior to the City's acceptance of the Project as fully
completed.
24347.00600\31594337.2 24 GENERAL CONDITIONS
3.30 INDEMNIFICATION
The Design -Build Entity's indemnification obligations are fully set forth in Section
10 of the Design Build Contract.
ARTICLE 4: ADMINISTRATION OF THE CONTRACT
4.1 ADMINISTRATION OF THE CONTRACT BY THE CITY'S
REPRESENTATIVE
4.1.1 The City's Representative will have authority to act on behalf of the
City only to the extent provided in the Contract Documents.
4.1.2 The City shall designate in the Contract one or more
representatives authorized to act on the City's behalf with respect to the Project,
together with the scope of his/her respective authority. If the City's Representative(s)
changes, the City shall notify the Design -Build Entity in writing as provided in the
Contract. Functions for which this Contract Documents provide will be performed by the
City may be delegated by the City only by written notice to the Design -Build Entity from
the City. The Design -Build Entity shall not be entitled to rely on directions (nor shall it be
required to follow the Directions) from anyone outside the scope of that person's
authority as set forth in written authorization pursuant to this Design Build Contract.
Only directions and decisions made by the City's Representative shall be binding on the
City.
4.1.3 During the term of this Design Build Contract, the City's
Representative shall have the right to review the Design Professional of Record's work
at such intervals as deemed appropriate by the City's Representative. However, no
actions taken during such review or site visit by the City's Representative, shall relieve
the Design -Build Entity of any of its obligations of single point responsibility for the
Design and construction of this Project nor form the basis for a Claim if such actions
extend beyond the Contract Time.
4.1.4 The City's Representative will not have control over, will not be in
charge of, and will not be responsible for design or construction means, methods,
techniques, sequences, or procedures, or for safety precautions and programs in
connection with the work on the Project, since these are solely the Design -Build Entity's
responsibility.
4.1.5 Except as otherwise provided in the Contract Documents or when
direct communications have been specifically authorized, the City and the Design -Build
Entity shall communicate through the City's Representative. Communications by the
Design -Build Entity with the City's consultants and the City's Representative's
consultants shall be through the City's Representative. Communications by the City and
the City's Representative with Subcontractors will be through the Design -Build Entity.
Communications by the Design -Build Entity and Subcontractors with Separate
Contractors shall be through the City's Representative. The Design -Build Entity shall not
rely on oral or other non -written communications.
24347.00600\31594337.2 25 GENERAL CONDITIONS
4.1.6 Based on the City's Representative's Project site visits, review of
Design Work, and evaluations of the Design -Build Entity's Applications For Payment,
the City's Representative will recommend amounts, if any, due the Design -Build Entity
and will issue Certificates For Payment in such amounts.
4.1.7 The City's Representative will have the authority to reject work on
the Project, or any portion thereof, which does not conform to the Contract Documents.
The City's Representative will have the authority to stop work on the Project, or any
portion thereof. Whenever the City's Representative considers it necessary, or
advisable, for implementation of the intent of the Contract Documents, the City's
Representative will have the authority to require additional inspection or testing of the
work on the Project in accordance with the Contract Documents, whether or not such
work is fabricated, installed, or completed. However, no authority of the City's
Representative conferred by the Contract Documents nor any decision made in good
faith either to exercise, or to not exercise such authority, will give rise to a duty or
responsibility of the City or the City's Representative to the Design -Build Entity, or any
person or entity claiming under, or through, the Design -Build Entity.
4.1.8 The City's Representative will have the authority to conduct
inspections and to determine Final Completion; will receive for review and approval any
records, written warranties, and related documents required by the Contract Documents
and assembled by the Design -Build Entity; and will issue a final Certificate For Payment
upon the Design -Build Entity's compliance with the requirements of the Contract
Documents.
4.1.9 The City's Representative will be, in the first instance, the
interpreter of the requirements of the Contract Documents and the judge of performance
thereunder by the Design -Build Entity. Should the Design -Build Entity discover any
conflicts, omissions, or errors in the Construction Documents or the Contract
Documents; have any questions about the interpretation or clarification of the Contract
Documents; question whether work is within the scope of the Contract Documents;
then, before proceeding with the work affected, the Design -Build Entity shall notify the
City's Representative in writing and request interpretation or clarification. The City's
Representative's response to questions and requests for interpretations, clarifications,
instructions, or decisions will be made with reasonable promptness. Should the Design -
Build Entity proceed with the work affected before receipt of a response from the City's
Representative, any portion of the work on the Project which is not done in accordance
with the City's Representative's interpretations, clarifications, instructions, or decisions
shall be removed or replaced and the Design -Build Entity shall be responsible for all
resultant losses.
4.2 THE DESIGN BUILD ENTITY CHANGE ORDER REQUESTS
4.2.1 The Design -Build Entity may request changes to the Contract Price
and/or Contract Time for Extra Work or Excusable Delays to completion of the Project
caused by the acts, errors, or omissions of the City, the City's Representative, their
agents or employees, or caused by unforeseen conditions if, and only if, the Design-
24347.00600\31594337.2 26 GENERAL CONDITIONS
Build Entity follows the procedures specified in this Paragraph 4.2. As used in this
Paragraph 4.2, such acts, errors, or omissions shall include, but not be limited to, the
provision of instructions, or interpretations that involve an increase or decrease in
Project Scope, Extra Work or delay completion of the Project.
4.2.2 If the Design -Build Entity asserts that the Design -Build Entity is
entitled to an adjustment of the Contract Price and/or Contract Time as the result of an
act, error, or omission of the City, the City's Representative, their agents or employees,
or as the result of unforeseen conditions, then the Design -Build Entity may submit a
Change Order Request in a form acceptable to the City, to the City's Representative.
4.2.3 A Change Order Request must state that it is a Change Order
Request, state and justify the reason for the request, and specify the amount of any
requested adjustment to the Contract Price and/or Contract Time. Upon request of the
City's Representative, the Design -Build Entity shall submit such additional information
as may be requested by the City's Representative for the purpose of evaluating the
Change Order Request. Such additional information may include a Cost Proposal
meeting the requirements of Article 7 and written documentation demonstrating the
Design -Build Entity's entitlement to a time extension under Paragraph 8.4. If the
Change Order Request seeks an adjustment of the Contract Price for an Excusable
delay, upon request of the City's Representative, the Design -Build Entity shall submit
written documentation demonstrating the Design -Build Entity's entitlement to such an
adjustment under Subparagraph 7.3.9.
4.2.4 A condition precedent to obtaining an adjustment of the Contract
Price and/or Contract Time as the result of an act, error, or omission of the City, the
City's Representative, their agents or employees, or as the result of an unforeseen
condition, is timely submission of a Change Order Request that meets the requirements
set forth in Subparagraphs 4.2.2 and 4.2.3. A Change Order Request based upon such
acts, errors or omissions will be deemed timely submitted if, and only if, it is submitted
within ten (10) days of the date the Design -Build Entity discovers, or reasonably should
discover, that an act, error, or omission of the City, the City's Representative, their
agents or employees, has occurred that may entitle the Design -Build Entity to an
adjustment of the Contract Price and/or Contract Time (even if the Design -Build Entity
has not been damaged, delayed, or incurred extra cost when the Design -Build Entity
discovers, or reasonably should discover, the act, error or omission giving rise to the
Change Order Request). A Change Order Request based upon an unforeseen condition
will be deemed timely submitted if, and only if, it is submitted within ten (10) days of the
Date the Design -Build Entity discovers, or reasonably should discover, the existence of
an unforeseen condition that may entitle the Design -Build Entity to an adjustment of the
Contract Price and/or Contract Time (even if the Design -Build Entity has not been
damaged, delayed, or incurred extra cost when the Design -Build Entity discovers, or
reasonably should discover, the unforeseen condition giving rise to the Change Order
Request).
4.2.5 If the City's Representative issues a final decision on all or part of a
Change Order Request, the Design -Build Entity may contest the decision by filing a
24347.00600\31594337.2 27 GENERAL CONDITIONS
timely Claim under the procedures specified in Paragraph 4.3. A final decision is any
decision on a Change Order Request which states that it is final.
4.3 CLAIMS
4.3.1 The term "Claim" means a written demand or assertion by the
Design -Build Entity seeking an adjustment or interpretation of the terms of the Contract
Documents, payment of money, extension of time, or other relief with respect to the
Contract Documents, including a determination of disputes or matters in question
between the City and the Design -Build Entity arising out of or related to the Contract
Documents or the performance of work on the Project, and claims alleging an
unforeseen condition or an act, error or omission by the City, the City's Representative,
their agents or employees. However, the term "Claim" shall not include, and the Claims
procedures provided under this Article 4 shall not apply to the following:
(a) Claims respecting penalties for forfeitures prescribed by
statute or regulation that a government agency is specifically authorized to administer,
settle, or determine.
(b) Claims respecting personal injury, death, reimbursement, or
other compensation arising out of or resulting from liability for personal injury or death.
guarantee to repair.
(c) Claims respecting a latent defect, breach of warranty, or
(d) Claims respecting stop notices.
4.3.2 If a Claim is subject to the procedures specified in Paragraph 4.2,
the Claim arises upon the issuance of a written final decision denying in whole or in part
the Design -Build Entity's Change Order Request. If a Claim is not subject to the
procedures specified in Paragraph 4.2, the Claim arises when the Design -Build Entity
discovers, or reasonably should discover, the condition or event giving rise to the Claim
(even if the Design -Build Entity has not been damaged, delayed, or incurred extra cost
when the Design -Build Entity discovers, or reasonably should discover, the condition or
event giving rise to the Claim).
4.3.3 A Claim not subject to the procedures specified in Paragraph 4.2
may be asserted if, and only if, the Design -Build Entity gives a valid written notice of
intent to file the Claim within ten (10) calendar days of the date the Claim arises under
Subparagraph 4.3.2. A written notice of intent to file a Claim will be deemed valid, if and
only, if it identifies the event or condition giving rise to the Claim and states its probable
effect, if any, with respect to the Design -Build Entity's entitlement to an adjustment of
the Contract Price and/or the Contract Time.
4.4 ASSERTION OF CLAIMS
4.4.1 Claims by the Design -Build Entity shall be first submitted to the
City's Representative for decision.
24347.00600\31594337.2 28 GENERAL CONDITIONS
4.4.2 Notwithstanding the making of any Claim or the existence of any
dispute regarding any Claim, unless otherwise directed by the City's Representative, the
Design -Build Entity shall not delay, cease, or terminate performance of work on the
Project, but shall diligently proceed with performance of the work in accordance with the
Contract Documents. The City will continue to make payments in accordance with the
Contract Documents.
4.4.3 The Design -Build Entity shall submit a Claim in writing, together
with the supporting data specified herein, to the City's Representative as soon as
possible but not later than thirty (30) days after the Date the Claim arises under
Subparagraph 4.3.2.
4.4.4 The Design -Build Entity agrees that strict compliance with the
requirements of Article 4 is an express condition precedent to the Design -Build Entity's
right to arbitrate or litigate a Claim.
4.5 DECISION OF THE CITY'S REPRESENTATIVE ON CLAIMS
The City's Representative will timely review Claims submitted by the Design -
Build Entity and render a decision in accordance with the timelines specified in
Paragraph 4.6. The decision of the City's Representative regarding the disposition of a
Claim shall be final and conclusive and shall not be appealable administratively.
4.6 RESOLUTION OF CLAIMS
4.6.1 In addition to any other requirements set forth in the Contract, all
Claims shall be filed in accordance with the statutory claim resolution procedures set
forth in Public Contract Code sections 9204 and 20104 et seq., the implementation of
which is set forth in this Section. The failure to timely submit a notice of delay or notice
of change, or to timely request a change in price or time, or to timely provide any other
notice or request required herein shall constitute a waiver of the right to further pursue
the Claim under the Contract or at law.
4.6.2 Effective January 1, 1991, Section 20104 et seq., of the California
Public Contract Code prescribes a process utilizing informal conferences, non -binding
judicial supervised mediation, and judicial arbitration to resolve disputes on construction
claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public
Contract Code prescribes a process for negotiation and mediation to resolve disputes
on construction claims. The intent of this Section is to implement Sections 20104 et seq.
and Section 9204 of the California Public Contract Code. This Section shall be
construed to be consistent with said statutes.
4.6.3 The Design -Build Entity shall submit all Claims in accordance with
the following format:
(a) A statement that it is a Claim and a request for a decision
pursuant to Paragraph 4.5
24347.00600\31594337.2 29 GENERAL CONDITIONS
(b) Summary of Claim merit and price, reference Contract
provisions pursuant to which the Claim is made (ensure Claim includes a detailed
description of the act, error, omission, unforeseen condition, event or other condition
giving rise to the Claim)
(c) If the Claim is subject to the procedures specified in
Paragraph 4.2, a statement demonstrating that a Change Order Request was timely
submitted as required by Subparagraph 4.2.4. If the Claim is not subject to the
procedures specified in Paragraph 4.2, a statement demonstrating that a valid notice of
intent to file the Claim was timely submitted as required by Subparagraph 4.3.3.
(d) List of documents relating to the Claim:
(i) Specifications
(ii) Drawings
(iii) Clarifications (Requests for Information)
(iv) Schedules
(v) Other
(e) Chronology of events and correspondence
(f) Analysis of Claim merit
(i) If the Claim involves Extra Work, a detailed cost
breakdown of the amounts claimed, including the items specified in Subparagraph
7.3.2. The breakdown must be provided even if the costs claimed have not been
incurred when the Claim is submitted. To the extent costs have been incurred when the
Claim is submitted, the Claim must include actual cost records (including without
limitation, payroll records, material and rental invoices and the like) demonstrating that
costs claimed have actually been incurred. To the extent costs have not yet been
incurred at the time the Claim is submitted, actual cost records must be submitted on a
current basis not less than once a week during any periods costs are incurred. A cost
record will be considered current if submitted within 7 days of the Date the cost reflected
in the record is incurred. At the request of the City's Representative, claimed extra costs
may be subject to further verification procedures (such as having an inspector verify the
performance of alleged extra work on a daily basis).
(ii) If the Claim involves an extension of the Contract
Time, written documentation demonstrating the Design -Build Entity's entitlement to a
time extension under Paragraph 8.4.
(iii) If the Claim involves an adjustment of the Contract
Price for an Excusable delay, written documentation demonstrating the Design -Build
Entity's entitlement to such an adjustment under Subparagraph 7.3.9.
24347.00600\31594337.2 30 GENERAL CONDITIONS
(g) Analysis of Claim cost
(h) Time impact analysis in CPM format
4.6.4 Upon receipt of a Claim pursuant to this Article, City shall conduct a
reasonable review of the Claim and, within a period not to exceed 45 Days, shall
provide the Design -Build Entity a written statement identifying what portion of the Claim
is disputed and what portion is undisputed. Any payment due on an undisputed portion
of the Claim will be processed and made within 60 Days after the City issues its written
statement.
(a) If the City needs approval from its governing body to provide
the Design -Build Entity a written statement identifying the disputed portion and the
undisputed portion of the Claim, and the City's governing body does not meet within the
45 Days or within the mutually agreed to extension of time following receipt of a Claim
sent by registered mail or certified mail, return receipt requested, the City shall have up
to three Days following the next duly publicly noticed meeting of the City's governing
body after the 45-Day period, or extension, expires to provide the Design -Build Entity a
written statement identifying the disputed portion and the undisputed portion.
(b) Within 30 Days of receipt of a Claim, the City may request in
writing additional documentation supporting the Claim or relating to defenses or claims
the City may have against the Design -Build Entity. If additional information is thereafter
required, it shall be requested and provided pursuant to this subdivision, upon mutual
agreement of City and the Design -Build Entity. The City's written response to the
Claim, as further documented, shall be submitted to the Design -Build Entity within 30
Days (if the Claim is less than $15,000, within 15 Days) after receipt of the further
documentation, or within a period of time no greater than that taken by the Design -Build
Entity in producing the additional information or requested documentation, whichever is
greater.
4.6.5 If the Design -Build Entity disputes the City's written response, or
the City fails to respond within the time prescribed, the Design -Build Entity may so notify
the City, in writing, either within 15 Days of receipt of the City's response or within 15
Days of -the City's failure to respond within the time prescribed, respectively, and
demand in writing an informal conference to meet and confer for settlement of the
issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer
conference within 30 Days for settlement of the dispute.
4.6.6 Within 10 business Days following the conclusion of the meet and
confer conference, if the Claim or any portion of the Claim remains in dispute, the City
shall provide the Design -Build Entity a written statement identifying the portion of the
Claim that remains in dispute and the portion that is undisputed. Any payment due on
an undisputed portion of the Claim shall be processed and made within 60 Days after
the City issues its written statement. Any disputed portion of the Claim, as identified by
the Design -Build Entity in writing, shall be submitted to nonbinding mediation, with the
City and the Design -Build Entity sharing the associated costs equally. The City and
24347.00600131594337.2 31 GENERAL CONDITIONS
Design -Build Entity shall mutually agree to a mediator within 10 business Days after the
disputed portion of the Claim has been identified in writing, unless the parties agree to
select a mediator at a later time.
(a) If the parties cannot agree upon a mediator, each party shall
select a mediator and those mediators shall select a qualified neutral third party to
mediate with regard to the disputed portion of the Claim. Each party shall bear the fees
and costs charged by its respective mediator in connection with the selection of the
neutral mediator.
(b) For purposes of this section, mediation includes any
nonbinding process, including, but not limited to, neutral evaluation or a dispute review
board, in which an independent third party or board assists the parties in dispute
resolution through negotiation or by issuance of an evaluation. Any mediation utilized
shall conform to the timeframes in this section.
(c) Unless otherwise agreed to by the City and the Design -Build
Entity in writing, the mediation conducted pursuant to this section shall excuse any
further obligation under Public Contract Code Section 20104.4 to mediate after litigation
has been commenced.
(d) The mediation shall be held no earlier than the date the
Design -Build Entity completes the Work or the date that the Design -Build Entity last
performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in
a single mediation, unless a new unrelated Claim arises after mediation is completed.
4.6.7 If following the mediation, the Claim or any portion remains in
dispute, the Design -Build Entity must file a claim pursuant to Chapter 1 (commencing
with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division
3.6 of Title 1 of the Government Code prior to initiating litigation. For purposes of those
provisions, the running of the period of time within which a claim must be filed shall be
tolled from the time the Design -Build Entity submits his or her written Claim pursuant to
this Article 4 until the time the Claim is denied, including any period of time utilized by
the meet and confer conference.
4.6.8 The following procedures are established for all civil actions filed to
resolve claims of $375,000 or less:
(a) Within 60 Days, but no earlier than 30 Days, following the
filing or responsive pleadings, the court shall submit the matter to non -binding mediation
unless waived by mutual stipulation of both parties or unless mediation was held prior to
commencement of the action in accordance with Public Contract Code section 9204
and the terms of this Contract. The mediation process shall provide for the selection
within 15 Days by both parties of a disinterested third person as mediator, shall be
commenced within 30 Days of the submittal, and shall be concluded within 15 Days
from the commencement of the mediation unless a time requirement is extended upon a
good cause showing to the court.
24347.00600\31594337.2 32 GENERAL CONDITIONS
(b) If the matter remains in dispute, the case shall be submitted
to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of
Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that
code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of
Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any
proceeding brought under this subdivision consistent with the rules pertaining to judicial
arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of
Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be
experienced in construction law, and (B) any party appealing an arbitration award who
does not obtain a more favorable judgment shall, in addition to payment of costs and
fees under that chapter, also pay the attorney's fees on appeal of the other party.
4.6.9 In addition to any and all Contract requirements pertaining to
notices of and requests for compensation or payment for extra Work, disputed Work,
construction claims and/or changed conditions, the Design -Build Entity must comply
with the claim procedures set forth in Government Code Sections 900, et seq. prior to
filing any lawsuit against the City. Such Government Code claims and any subsequent
lawsuit based upon the Government Code claims shall be limited to those matters that
remain unresolved after all procedures pertaining to extra Work, disputed Work,
construction claims, and/or changed conditions have been followed by Design -Build
Entity. If no such Government Code claim is submitted, or if the prerequisite contractual
requirements are not satisfied, no action against the City may be filed. A Government
Code claim must be filed no earlier than the date the Work is completed or the date the
Design -Build Entity last performs Work on the Project, whichever occurs first. A
Government Code claim shall be inclusive of all unresolved Claims unless a new
unrelated Claim arises after the Government Code claim is submitted.
4.7 NO WAIVER
4.7.1 A waiver of, or failure by, the City or the. City's Representative to
enforce any requirement in this Article 4, in connection with any Claim shall not
constitute a waiver of, and shall not preclude the City or the City's Representative from
enforcing such requirements in connection with any other Claims.
4.7.2 The Design -Build Entity agrees and understands that no oral
approval, either express or implied, of any Claim shall be binding upon the City unless
and until such approval is ratified by execution of a written Change Order.
ARTICLE 5: SUBCONTRACTORS
5.1 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR
PORTIONS OF THE WORK
5.1.1 All subcontractors shall be retained in compliance with the
requirements of the RFP. All subcontractors shall be afforded the applicable protections
of the Subletting and Subcontracting Fair Practices Act (Public Contract Code Section
4100 et seq.), the Design -Build Entity shall not, without the written consent of the City:
24347.00600\31594337.2 33 GENERAL CONDITIONS
substitute any person or entity as a Subcontractor in place of a Subcontractor
designated in the Design -Build Entity's original proposal or subsequently awarded a first
tier subcontract from the Design -Build Entity; permit any such subcontract to be
assigned or transferred, or allow it to be performed by any person or entity other than
the original Subcontractor listed in the Design -Build Entity's original or subsequently
awarded a first tier subcontract from the Design -Build Entity. Any such assignment or
substitution made without the prior written consent of the awarding authority or not in
compliance with the Subletting and Subcontracting Fair Practices Act shall be void, and
the assignees shall acquire no rights in the Contract. Any consent, if given, shall not
relieve the Design -Build Entity or its Subcontractors from their obligations under the
terms of the Contract. All requests by the Design -Build Entity for substitution will be
handled through the City's Representative.
5.1.2 The City have the right to request all documentation that supports
the Design -Build Entity's selection of a Subcontractor. The City shall have the right of
final approval as to the qualifications of a Subcontractor to perform its designated scope
of work. Within the City's sole discretion, any Subcontractor may be deemed not
qualified to perform work on the Project if the City or the City's Representative
determines that the Subcontractor fails to meet the requirements of the Contract
Documents, or for any other reason.
5.1.3 Any increase in the cost of the work on the Project resulting from
the replacement or substitution of a Subcontractor or as required by the City or the
City's Representative, shall be borne solely by the Design -Build Entity. The Design -
Build Entity shall not be entitled to any increase in Contract Price or an extension of
Contract Time due to such replacement or substitution.
5.1.4 The Design -Build Entity shall require, in each subcontract for any
portion of work on the Project, the Subcontractor to indemnify the City, its Consultants,
representatives, directors, officers, agents and employees, pursuant to the provisions
set forth in Paragraph 3.30.
5.2 SUBCONTRACTOR RELATIONS
5.2.1 Any part of the work on the Project performed for the Design -Build
Entity by a Subcontractor shall be pursuant to a written subcontract. Each such
subcontract shall require the Subcontractor, to the extent of the work to be performed by
the Subcontractor, to be bound to the Design -Build Entity by the terms of the Contract
Documents, to assume toward the Design -Build Entity all the obligations and
responsibilities which the Design -Build Entity assumes towards the City by the Contract
Documents, and to perform such portion of the work on the Project in accordance with
the Contract Documents. Each such subcontract shall preserve and protect the rights of
the City under the Contract Documents, with respect to the work to be performed by
Subcontractor, so that subcontracting thereof will not prejudice such rights. Where
appropriate, the Design -Build Entity shall require each Subcontractor to enter into
similar agreements with Sub -Subcontractors. The Design -Build Entity shall make
available to each proposed Subcontractor, prior to the execution of the subcontract
24347.00600\31594337.2 34 GENERAL CONDITIONS
agreement, copies of the Contract to which the Subcontractor will be bound.
Subcontractors shall similarly make copies of applicable portions of such documents
available to their respective proposed Sub -Subcontractors. The Design -Build Entity
shall cause each such subcontract to expressly include the following requirements:
(a) Subcontractor waives all rights that Subcontractor may have
against the City for damages caused by fire or other perils covered by builder's risk
property insurance carried by Design -Build Entity or the City, except for such rights
Subcontractor may have to the proceeds of such insurance held by the City under
Article 11.
(b) The City and entities and agencies designated by the City
will have access to and the right to audit and the right to copy at the City's cost all of
Subcontractor's books, records, contracts, correspondence, instructions, drawings,
receipts, vouchers, purchase orders, and memoranda relating to work on the Project.
Subcontractor shall preserve all such records and other items for a period of at least 3
years after Final Completion.
(c) The Design -Build Entity is responsible for reviewing and
coordinating the work of and among his subcontractors and the Design Professional of
Record. This review and coordination includes, but is not limited to, resolution of any
inconsistencies, errors or omissions.
5.2.2 Upon the request of the City, the Design -Build Entity shall promptly
furnish to the City a true, complete, and executed copy of any subcontract.
5.2.3 Nothing contained in the Contract Documents shall create any
contractual relationship between any Subcontractor and the City.
ARTICLE 6: CONSTRUCTION BY THE CITY OR BY SEPARATE CONTRACTORS
6.1 THE CITY'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD
SEPARATE CONTRACTS
6.1.1 The City reserve the right to award separate contracts for, or to
perform with its own forces, construction or operations related to the work or other
construction or operations at or affecting the Project site, including portions of work on
the Project which have been deleted by Change Order. The Design -Build Entity shall
cooperate with the City's forces and Separate Contractors.
6.1.2 The City will provide coordination of the activities of the City's
forces and of each Separate Contractor with the work of the Design -Build Entity. The
Design -Build Entity shall participate with the City and Separate Contractors in joint
review of construction schedules and Project requirements when directed to do so. The
Design -Build Entity shall make necessary revisions to the Contract Schedule after such
joint review.
24347.00600\31594337.2 35 GENERAL CONDITIONS
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Design -Build Entity shall afford the City and Separate
Contractors reasonable opportunity for introduction and storage of their materials and
equipment and performance of their activities. The Design -Build Entity shall connect,
schedule, and coordinate its construction and operations with the construction and
operations of the City and Separate Contractors as required by the Contract
Documents.
6.2.2 If a portion of the work on the Project is dependent upon the proper
execution or results of other construction or operations by the City or Separate
Contractors, the Design -Build Entity shall inspect such other design or construction or
operations before proceeding with that portion of the work on the Project. The Design -
Build Entity shall promptly report to the City's Representative apparent discrepancies or
defects which render the other design, construction or operations unsuitable to receive
the work on the Project. Unless otherwise directed by the City's Representative, the
Design -Build Entity shall not proceed with the portion of the work on the Project affected
until apparent discrepancies or defects have been corrected. Failure of the Design -Build
Entity to so report within a reasonable time after discovering such discrepancies or
defects shall constitute an acknowledgment that the other construction or operations by
the City or Separate Contractors is suitable to receive the work on the Project, except
as to defects not then reasonably discoverable.
ARTICLE 7: CHANGES IN THE SCOPE OF WORK
7.1 CHANGES
7.1.1 The City may, from time to time, order or authorize additions,
deletions, and other changes in the Scope of Work by Change Order or Field Order
without invalidating the Contract and without notice to sureties. Absence of such notice
shall not relieve such sureties of any of their obligations to the City.
7.1.2 The Design -Build Entity may request a Change Order under the
procedures specified in Paragraph 4.2.
7.1.3 A Field Order, as defined below, may be issued by the City, does
not require the agreement of the Design -Build Entity, and shall be valid with or without
the signature of the Design -Build Entity.
7.1.4 The Design -Build Entity shall proceed promptly with any changes in
the Scope of Work, unless otherwise provided in the relevant Change Order, Owner
Directed Change Order or Field Order.
7.2 DEFINITIONS
7.2.1 A Change Order becomes a Contract Document when, (i) it is an
Owner Directed Change Order as described in Section 7.2.2; or (ii) after it has been
24347.00600\31594337.2 36 GENERAL CONDITIONS
signed by both the City and the Design -Build Entity, and states their agreement upon all
of the following:
(a) A change in the Scope of Work, if any.
(b) The amount of an adjustment of the Contract Price, billed as
Extra Work pursuant to Attachment 1 to the Contract, if any.
(c) The amount of an adjustment of the Contract Time, if any.
7.2.2 An Owner Directed Change Order is a type of Change Order which
may be issued by the City and incorporated into the Contract Documents without the
Design -Build Entity's signature, where the City determine that it is in the City's best
interest to adjust the Contract Price and/or Contract Time as the City believe necessary,
even though no agreement has been reached between the City and the Design -Build
Entity.
7.2.3 A Field Order is a preliminary to a Change Order that describes a
change in the Scope of the Work, the estimated adjustments of the Contract Price
and/or the Contract Time, if any, and orders a change in the Scope of Work before all of
the terms of the change are fully agreed upon by the City and the Design -Build Entity. A
Field Order must eventually be memorialized as a Change Order or an Owner Directed
Change Order and incorporated into the Contract Documents.
7.3 CHANGE ORDER PROCEDURES
7.3.1 When requested by the City's Representative, the Design -Build
Entity shall provide promptly, but in no event longer than seven (7) days from the date
of the request, a Cost Proposal setting forth the Design -Build Entity's proposed
adjustments of the Contract Price and/or the Contract Time, if any, for performing the
proposed change in the Scope of Work. Adjustments of the Contract Price resulting
from Extra Work and/or deductive work shall be determined using one of the methods
described in Article 7. Adjustments of the Contract Time shall be subject to the
provisions in Article 8.
7.3.2 The term "Cost of Extra Work" as used in this Article shall mean
actual costs incurred by the Design -Build Entity and each Subcontractor regardless of
tier involved, and shall be limited to the following (to the extent the Design -Build Entity
demonstrates that they were actually incurred):
(a) Overhead and Profit not to exceed 15% of the Cost of the
Extra Work (not more than 10% Overhead and 5% Profit) and straight time wages or
salaries for employees employed at the Project site, or at fabrication sites off the Project
site, in the direct performance of the Extra Work.
(b) Fringe Benefits and Payroll Taxes for employees employed
at the Project site, or at fabrication sites off the Project site, in the direct performance of
the Extra Work.
24347.00600\31594337.2 37 GENERAL CONDITIONS
(c) Overtime wages or salaries, specifically authorized in writing
by The City's Representative, for employees employed at the Project site, or at
fabrication sites off the Project site, in the direct performance of the Extra Work.
(d) Fringe Benefits and Payroll Taxes for overtime Work
specifically authorized in writing by the City's Representative, for employees employed
at the Project site, or at fabrication sites off the Project site, in the direct performance of
the Extra Work.
5. Costs of materials and consumable items which are furnished and incorporated into
the Extra Work, as approved by the City's Representative. Such costs shall be charged
at the lowest price available to the Design -Build Entity but in no event shall such costs
exceed competitive costs obtainable from other subcontractors, suppliers,
manufacturers, and distributors in the area of the Project site. All discounts, rebates,
and refunds and all returns from sale of surplus materials and consumable items shall
accrue to the City and the Design -Build Entity shall make provisions so that they may be
obtained.
(e) Sales taxes on the costs of materials and consumable items
which are incorporated into and used in the performance of the Extra Work.
(f) Rental charges for necessary machinery and equipment,
whether owned or hired, as authorized in writing by the City's Representative, exclusive
of hand tools, used directly in the performance of the Extra Work. Such rental charges
shall not exceed the generally accepted rental rates for the area in which the work is
performed. The Design -Build Entity shall attach a copy of said schedule to the Cost
Proposal. The charges for any machinery and equipment shall cease when the use
thereof is no longer necessary for the Extra Work.
(g) Additional costs of royalties and permits due to the
performance of the Extra Work.
(h) Cost for revisions in the Schematic Design Documents or
Construction Documents, when such revisions are inconsistent with approvals or
instructions previously given by the City. Revisions made necessary by adjustments in
the City's program or project budget shall be computed at the hourly rates specified in
the Exhibits.
(i) The cost for Insurance and Bonds shall not exceed 1 % of
items (a) — (h) above.
7.3.3 Cost of Extra Work shall not include any of the following:
Superintendent(s), Assistant Superintendent(s), Project Engineer(s), Project
Manager(s), Scheduler(s), Estimator(s), incidental drafting or detailing, small tools
(replacement value does not exceed $300), office expenses including staff, materials
and supplies, on site or off site trailer and storage rental and expenses, site fencing,
utilities including gas, electric, sewer, water, telephone, facsimile, copier equipment,
data processing personnel and equipment, federal, state, or local business income and
24347.00600\31594337.2 38 GENERAL CONDITIONS
franchise taxes, overhead and profit in excess 15% of the cost of the extra work (and of
the 15% not more than 10% shall consist of overhead and 5% of profit), costs and
expenses of any kind or item not specifically and expressly included in Section 7.3.2,
and costs in excess of the hourly rates included in the Design Professional of Record's
Rate Schedule.
7.3.4 Compensation for Extra Work as an adjustment to the Contract
Price, authorized by Change Order shall be computed as specified in Attachment 2 of
the Contract.
7.3.5 As a condition to the Design -Build Entity's right to an adjustment of
the Contract Price, pursuant to Subparagraph 7.3.4, the Design -Build Entity must keep
daily detailed and accurate records itemizing each element of cost and shall provide
substantiating records and documentation, including time cards and invoices. Such
records and documentation shall be submitted to and approved by the City's
Representative on a daily basis.
7.3.6 For work to be deleted by Change Order, the reduction of the
Contract Price shall be computed on the basis of one or more of the following:
(a) Unit prices stated in the Contract or an Attachment thereto.
(b) Unit prices agreed upon by the City and the Design -Build
Entity.
(c) A lump sum agreed upon by the City and the Design -Build
Entity, based upon the actual costs which would have been incurred in performing the
Deleted portions of the work on the Project as calculated in accordance with
Subparagraphs 7.3.2 and 7.3.3.
7.3.7 If any one Change Order involves both Extra Work and deleted
work in the same portion of the work on the Project, the Contract Price shall not be
increased if the deductive cost exceeds the additive cost. If the additive cost exceeds
the deductive cost, an increase in the Contract Price will be allowed only on the
difference between the two amounts.
7.3.8 The Contract Price will be adjusted for a delay if, and only if, the
Design -Build Entity demonstrates that all of the following four conditions are met:
(a) Condition Number One: The delay results in an extension of
the Contract Time pursuant to Subparagraph 8.4.1.
(b) Condition Number Two: The delay is caused solely by one,
or more of the following:
(i) An error or omission in the Contract Documents
caused solely by the City and not as a result of the Design -Build Entity's failure to
24347.00600\31594337.2 39 GENERAL CONDITIONS
conform to criteria documents, performance standards, Construction Documents, or
Contract Documents; or
(ii) The City's decision to change the Scope of the Work,
where such decision is not the result of any default or misconduct of the Design -Build
Entity; or
(iii) The City's decision to suspend work on the Project,
where such decision is not the result of any default or misconduct of the Design -Build
Entity; or
(iv) The failure of the City or the City's Representative to
timely perform any contract obligation where the failure to so perform is not the result of
any default or misconduct of the Design -Build Entity.
(c) Condition Number Three: The delay is not concurrent with a
delay that is:
(i) Critical under Subparagraph 8.4.1.(b); and
(ii) Caused by an event not listed in Subparagraph
7.3.8.(b) above.
(d) Condition Number Four: The delay is not caused, in whole or
in part, by an event not listed in Subparagraph 7.3.8.(b) above.
7.3.9 For each day of delay that meets all four conditions prescribed in
Subparagraph 7.3.8 the Contract Price will be adjusted by the rates for Extra Work as
included in the Contract. Pursuant to Subparagraph 9.7.4, said rate shall not apply to
delays occurring after Substantial Completion.
7.3.10 Except as provided in Articles 7 and 8, the Design -Build Entity shall
have no claim for damage or compensation for any delay, interruption, hindrance, or
disruption.
7.3.11 If for any reason one or more of the conditions prescribed in
Subparagraph 7.3.4 is held legally unenforceable, the remaining conditions must be met
as a condition to obtaining an adjustment of the Contract Time under Subparagraph
7.3.8.
7.4 FIELD ORDERS
7.4.1 A Field Order as described in Subparagraph 7.2.3 above, may be
issued by the City. If requested in writing, the Design -Build Entity shall promptly provide
the City's Representative with a Cost Proposal, setting forth the proposed adjustments
of the Contract Price and/or the Contract Time, if any, for performing the change in the
Scope of Work. The Field Order will be superseded by a Change Order which shall
24347.00600\31594337.2 40 GENERAL CONDITIONS
include the actual adjustments, if any, of the Contract Price and the Contract Time, as
well as the change in the Scope of Work.
7.4.2 A Field Order signed by the Design -Build Entity indicates the
agreement of the Design -Build Entity therewith, including the Design -Build Entity's
agreement to the proposed adjustments to the Contract Price and/or the Contract Time
stated therein. Such agreement shall be effective immediately and will be incorporated
into a Change Order.
7.4.3 Upon receipt of a Field Order, the Design -Build Entity shall
promptly proceed with the change in the Scope of Work.
7.4.4 If the Design -Build Entity does not agree to the adjustment of the
Contract Price set forth in a Field Order, the amount shall be determined in accordance
with the provisions of Subparagraph 7.3.4 above; and the Design -Build Entity shall
comply with the provisions of Subparagraph 7.3.6 regarding records and documentation
of actual costs.
7.5 VARIATION IN QUANTITY OF UNIT PRICE WORK
The City have the right to increase or decrease the quantity of any Unit price item
for which an estimated quantity is stated in the Bid Form/Design-Build Entity's proposal.
The Design -Build Entity shall be required to provide all quantities requested by the City
for the prices provided in the proposal as incorporated into the Contract Documents.
7.6 NO WAIVER
7.6.1 A waiver of, or failure by, the City or the City's Representative to
enforce any requirement in this Article 7, including, without limitation, the requirements
in Subparagraphs 7.3.6, 7.3.8, 7.3.9, 7.3.10, or 7.3.11 in connection with any
adjustment of the Contract Price, will not constitute a waiver of, and will not preclude the
City, or the City's Representative, from enforcing, such requirements in connection with
any other adjustments of the Contract Price.
7.6.2 The Design -Build Entity agrees and understands that no oral
approval, either express or implied, of any adjustment of the Contract Price by the City
or its agents shall be binding upon the City unless and until such approval is ratified by
execution of a written change order.
ARTICLE 8: CONTRACT TIME
8.1 COMMENCEMENT OF WORK ON THE PROJECT
The date of commencement of the Scope of Work shall be set forth in the
Notice(s) To Proceed. The date of commencement shall not be postponed by the failure
of the Design -Build Entity, Subcontractors, or of persons or firms for whom the Design -
Build Entity is responsible, to act.
24347.00600131594337.2 41 GENERAL CONDITIONS
8.2 PROGRESS AND COMPLETION
8.2.1 By signing the Contract:
(a) The Design -Build Entity represents to the City that the
Contract Time is reasonable for performing the Scope of Work and that the Design -
Build Entity is able to perform and complete the Scope of Work within the Contract
Time.
(b) The Design -Build Entity agrees that the City is purchasing
the right to have the Design -Build Entity present on the Project for the full duration of the
time period necessary to complete the Scope of Work described in the RFP.
8.2.2 The Design -Build Entity shall not, except by agreement or
instruction of the City in writing, commence operations on the Project site or elsewhere
prior to the effective date of insurance required by Article 11 to be furnished by the
Design -Build Entity. The date of commencement and the Contract Time shall not be
changed by the effective date of such insurance.
8.2.3 The Design -Build Entity shall proceed expeditiously with adequate
forces and shall achieve full completion of the work by the Contract Time. If the City's
Representative determines and notifies the Design -Build Entity that the Design -Build
Entity's progress is such that the Design -Build Entity will not achieve full completion of
the work by the Contract Time, the Design -Build Entity shall immediately and at no
additional cost to the City, take all measures necessary, including working such
overtime, additional shifts, Sundays, or holidays as may be required to ensure that the
entire Project is completed within the Contract Time. Upon receipt of such notice from
the City's representative, the Design -Build Entity shall immediately notify the City's
Representative of all measures to be taken to ensure full completion of the work within
the Contract Time. The Design -Build Entity shall reimburse the City for any extra costs
or expenses (including the reasonable value of any services provided by the City's
employees) incurred by the City as the result of such measures.
8.3 DELAY
8.3.1 There are only two kinds of delay, Excusable Delay and
Unexcusable Delay. Only Excusable Delay, that meets the requirements specified
herein may result in the adjustment of the Contract Time, and/or the Contract Price and
may be compensated as Extra Work as described below. All other delay(s) are
Unexcusable, and except and only to the extent provided otherwise in Articles 7 and 8,
by signing the Contract, the Design -Build Entity agrees:
(a)
work on the Project; and
(b)
to bear the risk of Unexcusable Delays to completion of the
that the Proposal was made with full knowledge of this risk.
24347.00600\31594337.2 42 GENERAL CONDITIONS
8.3.2 In agreeing to bear the risk of Unexcusable Delays to completion of
the work on the Project, the Design -Build Entity understands that, except and only to the
extent provided otherwise in Articles 7 and 8, the occurrence of events that result in any
delay in completion of the Project shall not excuse the Design -Build Entity from its
obligation to achieve full completion of the Project within the Contract Time, and shall
not entitle the Design -Build Entity to an adjustment of the Contract Price.
8.4 ADJUSTMENT OF THE CONTRACT TIME FOR EXCUSABLE DELAY
8.4.1 The Contract Time will be extended for an Excusable Delay, if and
only if, the Design -Build Entity demonstrates that all of the following six conditions are
met:
(a) Condition Number One: When the event causing the delay
commences, the Design -Build Entity has complied with all Contract requirements for
maintaining, submitting, and updating Contract Schedules.
(b) Condition Number Two: The delay is critical. A delay is
critical if and only to the extent it delays a work activity that cannot be delayed without
delaying completion of the entire Project beyond the contractually specified date for full
completion of the work on the Project as stated in the Notice to Proceed, or as amended
by Change Order. Under this Subparagraph:
(i) If the Contract Schedule shows completion of the
entire Project before the contractually specified date for full completion of the Project, a
delay is critical if and only to the extent the delay pushes completion of the entire project
to a date that is beyond the contractually specified date for full completion of the Project.
(ii) When two or more delays occur concurrently, and
each such concurrent delay by itself without consideration of the other delays would be
critical, then all such concurrent delays shall be considered critical. For the purpose of
determining whether and to what extent the Contract Time should be adjusted pursuant
to Subparagraph 8.4.2, such concurrent critical delays shall be treated as a single delay
which commences at the start of the delay that begins first and terminates at the
cessation of the delay that ends last.
(c) Condition Number Three: The delay is supported by the
Contract Schedule (or, if appropriate, the Preliminary Schedule), current at the
commencement of the event giving rise to the delay. A delay is supported only to the
extent the Contract Schedule (or, if appropriate, the Preliminary Schedule) corroborates
that it causes a delay to completion of the entire Project beyond the contractually
specified date for full completion because of its effect on the operation referred to in
Subparagraph 8.4.1.(b). The requirement that a delay be supported will be excused if
the event causing the delay commences before approval of the Contract Schedule,
provided that the absence of an approved Contract Schedule is not due to the Design -
Build Entity's failure to timely submit an acceptable Proposed Contract Schedule.
24347.00600\31594337.2 43 GENERAL CONDITIONS
(d) Condition Number Four: Within three (3) days of the date the
Design -Build Entity discovers or reasonably should discover an act, error, omission or
unforeseen condition causing the delay, (even if the Design -Build Entity has not been
delayed when the Design -Build Entity discovers or reasonably should discover the act,
error, omission or unforeseen condition giving rise to the delay) the Design -Build Entity
submits a timely Change Order Request that meets the requirements of Paragraph 4.2.
(e) Condition Number Five: The delay is not caused by:
(i) A naturally occurring unforeseen site condition not
anticipated in the Contract Documents or other written information provided by Owner
(e.g., unanticipated naturally occurring rock or sand); or
(ii) The financial inability, misconduct or default of the
Design -Build Entity, a Subcontractor or supplier; or
(iii) The unavailability of materials or parts, as long as
such materials or parts were timely ordered by Design -Build Entity; or
(iv) An error or omission in the Contract Documents
caused by the Design -Build Entity or the Design -Build Entity's Design Consultants.
(f) Condition Number Six: The delay is caused by:
(i) Fire; or
(ii) Strikes, boycotts, or like obstructive actions by
employees or labor organizations; or
(iii) Acts of God, including earthquakes in excess of a
magnitude of 3.5 on the Richter Scale, tidal waves, floods, unusually severe weather,
epidemic, or other severe natural disaster; or
(iv) A man made (not naturally occurring) unforeseen site
condition such as buried utility lines, pipes, and the like; or
(v) An error or omission in the Contract Documents
caused by the City; or
(vi) The City's decision to change the Scope of Work,
where such decision is not the result of any default or misconduct of the Design -Build
Entity; or
(vii) The City's decision to suspend the work on the
Project, where such decision is not the result of any default or misconduct of the
Design -Build Entity; or
24347.00600\31594337.2 44 GENERAL CONDITIONS
(viii) The failure of the City or the City's representative to
timely perform any Contract obligation unless such failure is due to the Design -Build
Entity's default or misconduct.
8.4.2 If and only if a delay meets all six conditions prescribed in
Subparagraph 8.4.1, then the Contract Time will be extended by the number of days
completion of the entire Project is delayed beyond the Contract Time for completion of
the Project.
8.4.3 If for any reason one or more of the six conditions prescribed in
Subparagraph 8.4.1 is held legally unenforceable, then all remaining conditions must be
met as a condition to obtaining an extension of the Contract Time under Subparagraph
8.4.2.
8.5 COMPENSATION FOR EXTRA WORK DUE TO EXCUSABLE DELAY
8.5.1 To the maximum extent allowed by law, any adjustment of the
Contract Price as the result of Excusable Delays shall be limited to the amounts
specified in Article 7.
8.5.2 By signing the Contract, the parties agree that the City has the right
to do any or all of the following, which are reasonable and within the contemplation of
the parties:
(a) To order changes in the Scope of Work, regardless of the
extent and number of changes, including without limitation:
(1) Changes to correct errors or omissions caused by the
City, if any, in the Contract Documents.
(ii) Changes resulting from the City's decision to change
the Scope of the Work subsequent to execution of the Contract.
(iii) Changes due to unforeseen conditions.
(b) To suspend work on the Project or any part thereof.
(c) To delay work on the Project, including without limitation,
delays resulting from the failure of the City or the City's Representative to timely perform
any Contract obligation and delays for The City's convenience.
8.6 NO WAIVER
A waiver of, or failure by, the City or the City's Representative to enforce any
requirement in this Article 8, including without limitation the requirements in Paragraph
8.4, in connection with any or all past delays shall not constitute a waiver of, and shall
not preclude the City or the City's Representative from enforcing, such requirements in
connection with any present or future delays.
24347.00600\31594337.2 45 GENERAL CONDITIONS
The Design -Build Entity agrees and understands that no oral approval, either
express or implied, of any time extension by the City or its agents shall be binding upon
the City unless and until such approval is ratified by execution of a written Change
Order.
ARTICLE 9: PAYMENTS AND COMPLETION
9.1 COST BREAKDOWN/SCHEDULE OF VALUES
Within ten (10) days after commencement of each phase of the Scope of Work,
the Design -Build Entity shall submit to the City's Representative a detailed Cost
Breakdown/Schedule of Values ("Cost Breakdown") of the portion of the Contract Price
applicable to that phase of the work in a form reasonably approvable to the City. Each
such Cost Breakdown shall itemize as separate line items the cost of each work activity
for the applicable phase and all associated costs, including but not limited to warranties,
as built documents, overhead expenses, and the total allowance for profit. Insurance
and bonds shall each be listed as separate line items. The total of all line items shall at
all times be consistent with the Contract Price. The Cost Breakdown, when approved by
the City's Representative, shall become part of the Contract Documents and shall be
the basis for determining the cost of the work performed for the Design -Build Entity's
Applications for Payment.
9.2 PROGRESS PAYMENT
9.2.1 The City agrees to pay monthly to the Design -Build Entity, subject
to Subparagraph 9.4.2, an amount equal to 95% of the sum of the following:
(a) Cost of the Construction Work in permanent place as of the
end of the preceding month.
(b) Cost of materials not yet incorporated in the Construction
Work, subject to Subparagraph 9.3.5.
(c) Less amounts previously paid.
(d) During the Design Work, the City shall pay the Design -Build
Entity monthly a uniform amount prorated, based on the Contract Time and Contract
Price associated with either Schematic Design or Construction Documents Phase.
9.2.2 At any time after 50% of the work on the Project has been
completed, if the City finds that satisfactory progress of the work on the Project is being
made, the City may, at its sole discretion, make any of the remaining progress
payments in full.
9.3 APPLICATION FOR PAYMENT
9.3.1 On or before the 10th day of the month or such other date as is
established by the Contract Documents, the Design -Build Entity shall submit to the
24347.00600\31594337.2 46 GENERAL CONDITIONS
City's Representative an itemized Application For Payment, for the cost of the work in
permanent place, as approved by the City's Representative, which has been completed
in accordance with the Contract Documents as of the last day of the preceding month,
less amounts previously paid. The Application For Payment shall be prepared as
follows:
(a) In a form approved by the City.
(b) Itemized in accordance with the Cost Breakdown as
applicable.
(c) Include such data substantiating the Design -Build Entity's
right to payment as the City's Representative may reasonably require, such as invoices,
certified payrolls, daily time and material records, and, if securities are deposited in lieu
of retention pursuant to Paragraph 9.5, a certification of the market value of all such
securities as of a date not earlier than 5 days prior to the date of the Application For
Payment as applicable.
(d) Itemized retention.
9.3.2 Applications For Payment shall not include requests for payment on
account of (1) changes which have not been authorized by Change Orders or (2)
amounts the Design -Build Entity does not intend to pay a Subcontractor because of a
dispute or other reason.
9.3.3 If required by the City, an Application For Payment shall be
accompanied by (1) a summary showing payments that will be made to Subcontractors
covered by such application and (2) unconditional waivers and releases of claims and
stop notices, in the form contained in the Exhibits, from each Subcontractor listed in the
preceding Application For Payment covering sums disbursed pursuant to that preceding
Application For Payment.
9.3.4 The Design -Build Entity warrants that, upon submittal of an
Application For Payment, all work on the Project, for which Certificates For Payment
have been previously issued and payment has been received from the City, shall be
free and clear of all claims, stop notices, security interests, and encumbrances in favor
of the Design -Build Entity, Subcontractors, or other persons or firms entitled to make
claims by reason of having provided labor, materials, or equipment relating to work on
the Project.
9.3.5 At the sole discretion of the City, the City's Representative may
approve for inclusion in the Application For Payment the cost of materials not yet
incorporated in the Construction Work but already delivered and suitably stored either at
the Project site or at some other appropriate location acceptable to the City's
Representative. In such case, the Design -Build Entity shall furnish evidence satisfactory
to the City's Representative (1) of the cost of such materials and (2) that such materials
are under the exclusive control of the Design -Build Entity. Only materials to be
incorporated in the work on the Project will be considered for payment. The City may
24347.00600\31594337.2 47 GENERAL CONDITIONS
require as a condition of payment for any stored materials that the Design -Build Entity
execute a Security Agreement and UCC-1. Any payment shall not be construed as
acceptance of such materials nor relieve the Design -Build Entity from sole responsibility
for the care and protection of such materials; nor relieve the Design -Build Entity from
risk of loss to such materials from any cause whatsoever; nor relieve the Design -Build
Entity from its obligation to complete the work on the Project in accordance with the
Contract; nor act as a waiver of the right of the City to require fulfillment of all terms of
the Contract.
9.4 APPROVAL OF CERTIFICATE FOR PAYMENT BY CITY
9.4.1 If the Design -Build Entity has made Application for Payment in
accordance with Paragraph 9.3, the City's Representative shall, not later than 5 days
after the Date of receipt of the Application For Payment, review and approve the
Application For Payment for such amount as the City's Representative determines to be
properly due.
9.4.2 The City may decide to withhold payment in whole, or in part, to the
extent reasonably necessary to protect the City if, in the City's opinion, the
representations to the City required of the Design -Build Entity pursuant to the Contract
Documents cannot be made. Failure by the City to deduct any sums from a progress
payment shall not constitute a waiver of the City's right to such sums. The City may
keep any moneys which would otherwise be payable at any time hereunder and apply
the same, or so much as may be necessary therefore, to the payment of any expenses,
losses, or damages as determined by the City, incurred by the City for which the
Design -Build Entity is liable under the contract. For instance, the City may withhold
payment, in whole or in part, to such extent as may be necessary to protect the City
from loss because of:
(a) Failure to provide requested supporting documents,
including those noted in Section;
(b) Defective work not timely remedied;
(c) Stop Notices. If any Stop Notice or other lien is filed on the
Project for labor, materials, supplies, equipment or any other thing of value claimed to
have been furnished to or incorporated into the work on the Project, or for other alleged
contribution thereto, the City shall retain from payments otherwise due the Design -Build
Entity, in addition to other amounts properly withheld under this Section or under other
provisions of the Contract, an amount equal to 125 percent (125%) of the amount
claimed under such Stop Notice; provided, however, that the City may release such
funds upon receipt of evidence satisfactory to the City to the effect that the Design -Build
Entity has resolved such claim, by settlement, Stop Notice Bond or otherwise. All other
provisions of state law with respect to stop notices shall also apply;
(d) Liquidated damages assessed against the Design -Build
Entity;
24347.00600\31594337.2 48 GENERAL CONDITIONS
(e) Reasonable doubt that the work on the Project can be
completed for the unpaid balance of any Contract Price or within the Contract Time;
(f) Damage to the City, another the Design -Build Entity, or
subcontractor, including any sums expended by or on behalf of the City in performing
any of the Design -Build Entity's obligations under the Contract which the Design -Build
Entity has failed to perform or has performed inadequately;
Entity;
(g) Unsatisfactory prosecution of the work by the Design -Build
(h) Failure to store and properly secure materials;
(i) Failure of the Design -Build Entity to submit on a timely basis,
proper and sufficient documentation required by the Contract, including, without
limitation, monthly progress schedules, shop drawings, submittal schedules, schedule of
values, product data and samples, proposed product lists, executed change orders, and
verified reports;
0) Failure of the Design -Build Entity to maintain record
drawings;
(k) Erroneous estimates by the Design -Build Entity of the value
of the work on the Project performed, or other false statements in an Application for
Payment;
(1) Unauthorized deviations from the Contract Documents;
(m) Failure of the Design -Build Entity to prosecute the work on
the Project in a timely manner in compliance with established progress schedules and
completion dates; or
(n) Forfeiture of funds pursuant to California Labor Code
Section 1727. The City shall retain and transfer those funds pursuant to California Labor
Code Section 1730.
9.4.3 Subject to the withholding provisions of Subparagraph 9.4.2, the
City will pay the Design -Build Entity the amount set forth in the Application For Payment
no later than 15 days after the approval of the Application For Payment by the City's
Representative as described in section 9.4.1 above.
9.4.4 Neither the City nor the City's Representative will have an
obligation to pay or to see to the payment of money to a Subcontractor, except as may
otherwise be required by law.
9.4.5 Neither an approved Application For Payment nor a progress
payment made by the City will constitute acceptance of Defective Work.
24347.00600\31594337.2 49 GENERAL CONDITIONS
9.5 DEPOSIT OF SECURITIES IN LIEU OF RETENTION AND DEPOSIT OF
RETENTION INTO ESCROW
9.5.1 At the request and expense of the Design -Build Entity, a
substitution of securities may be made for any monies retained by the City under
Paragraph 9.2 to ensure performance under the Contract Documents. Securities
equivalent in value to the retention amount required by the Contract Documents for
each Certificate For Payment shall be deposited by the Design -Build Entity with a state
or federally chartered bank in the State of California ("Escrow Agent'), which shall hold
such securities pursuant to the escrow Contract referred to in Subparagraph 9.5.3 until
final payment is due in accordance with Paragraph 9.8. Securities shall be valued as
often as conditions of the securities market warrant, but in no case less than once per
month. The Design -Build Entity shall deposit additional securities so that the current
market value of the total of all deposited securities shall be at least equal to the total
required amount of retention.
9.5.2 Alternatively to Subparagraph 9.5.1, and at the request and
expense of the Design -Build Entity, the City will deposit retention directly with Escrow
Agent. The Design -Build Entity may direct the investment of such deposited retention
into interest bearing accounts or securities, and such deposits or securities shall be held
by Escrow Agent upon the same terms provided for securities deposited by the Design -
Build Entity.
9.5.3 A prerequisite to the substitution of securities in lieu of retention or
the Deposit of retention into escrow shall be the execution by the Design -Build Entity,
the City, and Escrow Agent of an Escrow Contract for Deposit of Securities in Lieu of
Retention and Deposit of Retention in the form contained in the Exhibits. The terms of
such escrow Contract are incorporated into the requirements of this Paragraph 9.5.
9.6 [RESERVED.]
9.7 [RESERVED.]
9.8 FINAL COMPLETION AND FINAL PAYMENT
9.8.1 Upon receipt of notice from the Design -Build Entity that the work on
the Project is ready for final inspection, the City's Representative will make such
inspection. Final Completion shall be when the City's Representative determines that
the work on the Project is fully completed and in accordance with the Contract
Documents. The City intends to file a Notice of Completion within 10 days after Final
Completion. After receipt of the final Application For Payment, if the City's
Representative determines that Final Completion has occurred, the City's
Representative will issue the final Certificate For Payment.
9.8.2 Neither final payment nor any retention shall become due until the
Design -Build Entity submits the following items to the City's Representative:
24347.00600\31594337.2 50 GENERAL CONDITIONS
(a) The final Application For Payment and all submittals required
in accordance with Paragraph 9.3.
(b) All guarantees and warranties procured by the Design -Build
Entity from Subcontractors, all operating manuals for equipment installed in the Project,
As built documents, and all other submittals required by the Contract Documents.
(c) The final payment shall be made, subject to the satisfaction
of all other legal conditions to final payment, no later than sixty (60) days after the filing
of the Notice of Completion.
9.8.3 Acceptance of final payment by the Design -Build Entity shall
constitute a waiver of all claims, except those previously made in writing and identified
by the Design -Build Entity as unsettled at the time of the final Application For Payment,
and Design -Build Entity shall submit a waiver of all such claims, in a form reasonably
acceptable to the City, at the time of final payment.
ARTICLE 10: PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Design -Build Entity shall be solely responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the performance of
the Contract.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Design -Build Entity shall take adequate precautions for safety
of and shall provide adequate protection to prevent damage, injury, or loss to the
following:
(a) Employees involved in the Construction Work and other
persons who may be affected thereby.
(b) The Construction Work in place and materials and
equipment to be incorporated therein, whether in storage on or off the Project site,
under care, custody, or control of the Design -Build Entity or Subcontractors.
(c) Other property at the Project site and adjoining property.
10.2.2 The Design -Build Entity shall erect and maintain, as required by
existing conditions and performance of the work on the Project, adequate safeguards
for safety and protection, including providing adequate lighting and ventilation, posting
danger signs and other warnings against hazards, promulgating safety regulations, and
notifying City and users of adjacent sites and utilities.
10.2.3 When use or storage of explosives, other hazardous materials,
equipment, or unusual methods are necessary for execution of the Construction Work,
24347.00600\31594337.2 51 GENERAL CONDITIONS
the Design -Build Entity shall exercise the utmost care and carry on such activities only
under the supervision of properly qualified personnel.
10.2.4 The Design -Build Entity shall designate a responsible member of
the Design -Build Entity's organization at the Project site whose duty shall be the
prevention of accidents. That person shall be the Superintendent, unless otherwise
designated by the Design -Build Entity in writing to the City and the City's
Representative.
10.2.5 The Design -Build Entity shall not load or permit any part of the
Construction Work or the Project site to be loaded so as to endanger the safety of
persons or property.
10.3 EMERGENCIES
In an emergency affecting the safety of
Entity shall act to prevent or minimize damage,
shall promptly notify the City's Representative,
written confirmation, of the occurrence of suc
Entity's action.
ARTICLE 11: INSURANCE
h
persons or property, the Design -Build
injury, or loss. The Design -Build Entity
which notice may be oral followed by
an emergency and the Design -Build
11.1 THE DESIGN BUILD ENTITY'S INSURANCE
11.1.1 A letter from an insurance company indicating ability to provide
insurance for the services described in the RFP shall be submitted to the City's
Representative with submission of the Design -Build Entity's response to the RFP.
Insurance requirements are as follows:
(a) Minimum Scope of Insurance.
(i) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001).
(ii) Automobile Liability: Insurance Services Office
Business Auto Coverage form number CA 0001, code 1 (any auto).
(iii) Workers' Compensation and Employers' Liability:
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
(iv) Professional Liability: Professional Liability Insurance
insuring the that Design -Build Entity and all other persons for whose acts the Design -
Build Entity may be liable, against any and all liabilities arising out of or in connection
with the negligent acts, errors or omissions of any of the foregoing in connection with
the carrying out of their professional architectural or engineering responsibilities
described in this Contract. Professional Liability Insurance shall remain in full force and
24347.00600\31594337.2 52 GENERAL CONDITIONS
effect, and shall be so certified to the City by the insurer, for a period of three (3) years
after the termination of this Contract and the completion of all of the Design -Build
Entity's services hereunder.
(b) Minimum Limits of Insurance.
(i) General Liability: General Liability will be provided in
the following $4,000,000 per occurrence for bodily injury, personal injury and property
damage, as well as an excess Umbrella Liability policy in the amount of $4,000,000
covering the above named perils. In either case, if Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this Project or the general aggregate limit shall
be twice the required occurrence limit.
(ii) Automobile Liability: $2,000,000 per accident for
bodily injury and property damage.
(iii) Workers' Compensation and Employers' Liability:
Workers' compensation limits as required by the Labor Code of the State of California.
Employers Liability limits of $1,000,000 per accident for bodily injury or disease.
(iv) Professional Liability Insurance: $2,000,000 per claim
and in the aggregate.
(v) All Coverages: Each insurance policy required by this
RFP shall be endorsed to state that coverage shall not be canceled except after thirty
(30) days prior written notice by certified mail, return receipt requested, has been given
to the City.
(c) Verification of Coverage. The Design -Build Entity shall
provide to City certificates of insurance and endorsements effecting coverage required
by this Contract. All insurance is to be placed with insurers with a current A.M. Best's
rating no less than A:VIII, licensed to do business in California, and satisfactory to the
City. All insurance required by this Section shall also contain standard separation of
insureds provisions and shall not contain any special limitations on the scope of
protection afforded to the City, its directors, officials, officers, employees, agents and
volunteers. All policies shall contain a provision stating that such policies are primary
insurance and that the insurance of City or any named insured shall not be called upon
to contribute to any loss. The certificates and endorsements for each insurance policy
shall be signed by a person authorized by that insurer to bind coverage on its behalf,
and shall be on industry standard forms (such as an ISO CG 2010 (or insurer's
equivalent) signed by the insurer's representative, and a certificate of insurance (Acord
form 25-S or equivalent) with additional insured endorsements attached, naming the
City, its elected officials, officers, employees, and agents as additional insureds, and in
a form acceptable to the City. All certificates and endorsements must be received and
approved by the City within five (5) calendar days of the date of the Letter of Award. The
24347.00600131594337.2 53 GENERAL CONDITIONS
City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
(d) Subcontractor Insurance Requirements. The Design -Build
Entity shall require each all Subcontractors and Subconsultant to meet the requirements
of this insurance section before commencing work except that the Design -Build Entity
shall determine the appropriate dollar amount of coverage required based on the scope
of the work to be performed by the Subcontractor. In addition, the Design -Build Entity
shall include all subcontractors as insureds under its policies or shall furnish separate
certificates and endorsements for each subcontractor. All coverages for subcontractors
shall be subject to all of the requirements stated herein.
(e) Builder's Risk "All -Risk" Insurance. The Design -Build Entity,
prior to commencement of any construction of the Project and until Final Acceptance of
the Project by the City upon completion of the Project, shall maintain Builder's Risk "All -
Risk" Completed Value Insurance Coverage on all insurable work included under the
Contract Documents which coverage is to provide extended coverage and insurance
against vandalism and malicious mischief, perils of fire, sprinkler leakage, civil authority,
sonic boom, and collapse upon the Project, and including work completed and work in
progress to the full insurable value thereof. Such insurance shall include the City as an
additional named insured, and any other person with an insurable interest designated
by the City as an additional named insured. The risk of damage to the Project due to the
perils covered by the Builder's Risk "All Risk" Insurance, as well as any other hazard
which might result in damage to the Project, is that of the Design -Build Entity and the
surety, and no claims for such loss or damage shall be recognized by the City, nor will
such loss or damage excuse the complete and satisfactory performance of the Project
by the Design -Build Entity.
(f) Other Insurance. The Design -Build Entity shall provide all
other insurance required to be maintained under applicable laws, ordinances, rules, and
regulations.
ARTICLE 12: UNCOVERING AND CORRECTION OF CONSTRUCTION WORK
12.1 UNCOVERING OF WORK ON THE PROJECT
12.1.1 If a portion of the Construction Work is covered contrary to the
City's Representative's request or direction, or contrary to the requirements of the
Contract Documents, it must, if required in writing by the City's Representative, be
uncovered for the City's Representative's observation and be replaced at the Design -
Build Entity's expense without adjustment of the Contract Time or the Contract Price.
12.1.2 If a portion of the Construction Work has been covered, which is
not required by the Contract Documents to be observed or inspected prior to its being
covered and which the City's Representative has not specifically requested to observe
prior to its being covered, the City's Representative may request to see such
Construction Work and it shall be uncovered and replaced by the Design -Build Entity. If
24347.00600\31594337.2 54 GENERAL CONDITIONS
such Construction Work is in accordance with the Contract Documents, the costs of
uncovering and replacing the Construction Work shall be added to the Contract Price by
Change Order; and if the uncovering and replacing of the Construction Work extends
the Contract Time, an appropriate adjustment of the Contract Time shall be made by
Change Order. If such Construction Work is not in accordance with the Contract
Documents, the Design -Build Entity shall pay such costs and shall not be entitled to an
adjustment of the Contract Time or the Contract Price.
12.2 CORRECTION OF DEFECTIVE WORK AND GUARANTEE TO REPAIR
PERIOD
The term "Guarantee To Repair Period" means a period of one (1) year as
described in Article 3.18 above, unless a longer period of time is specified elsewhere in
the Contract Documents, commencing as follows:
1. For any Construction Work not described as incomplete in the Certificate of
Substantial Completion, on the Date of Substantial Completion.
2. For space beneficially occupied or for separate systems fully utilized prior to
Substantial Completion pursuant to Paragraph 9.6, from the first date of such Beneficial
Occupancy or actual use, as established in a Certificate of Beneficial Occupancy.
3. For all Construction Work other than (1) or (2) above, from the Date of Final
Completion.
Nothing contained in this Article 12 shall be construed to establish a period of
limitation with respect to other obligations of the Design -Build Entity under the Contract
Documents. Establishment of the Guarantee To Repair Period relates only to the
specific obligation of the Design -Build Entity to correct the work on the Project and in no
way limits either the Design -Build Entity's liability for Defective Work or the time within
which proceedings may be commenced to enforce the Design -Build Entity's obligations
under the Contract Documents.
ARTICLE 13: TERMINATION OR SUSPENSION OF THE CONTRACT
13.1 TERMINATION BY THE CITY FOR CAUSE
13.1.1 The City will have the right to terminate the Contract for cause at
any time after the occurrence of any of the following events:
(a) The Design -Build Entity becomes insolvent or files for relief
under the bankruptcy laws of the United States.
(b) The Design -Build Entity makes a general assignment for the
benefit of its creditors or fails to pay its debts as the same become due.
(c) A receiver is appointed to take charge of the Design -Build
Entity's property.
24347.00600\31594337.2 55 GENERAL CONDITIONS
(d) The commencement or completion of any work activity is 14
days or more behind the Date set forth in the Contract Schedule for such work activity,
and which results in an Unexcusable Delay.
(e) The Design -Build Entity abandons work on the Project.
13.1.2 Upon the occurrence of any of the following events, the City will
have the right to terminate the Contract for cause if the Design -Build Entity fails to
promptly commence to cure such default and diligently prosecute such cure within five
(5) days after notice from the City, or within such longer period of time as is reasonably
necessary to complete such cure:
(a) The Design -Build Entity persistently or repeatedly refuses or
fails to supply skilled supervisory personnel, an adequate number of properly skilled
workers, proper materials, or necessary equipment to prosecute the work on the Project
in accordance with the Contract Documents.
(b) The Design -Build Entity fails to make prompt payment of
amounts properly due Subcontractors after receiving payment from the City.
(c) The Design -Build Entity disregards Applicable Code
Requirements.
(d) The Design -Build Entity persistently or materially fails to
execute the work on the Project in accordance with the Contract Documents.
(e) The Design -Build Entity is in default of any other material
obligation under the Contract Documents.
(f) The Design -Build Entity persistently or materially fails to
comply with applicable safety requirements.
13.1.3 Upon any of the occurrences referred to in Subparagraphs 13.1.1
and 13.1.2, the City may, at its election and by notice to the Design -Build Entity,
terminate the Contract and/or the Design -Build Entity's right to perform work on the
Project, and take possession of the Project site and all materials, supplies, equipment,
tools, and construction equipment and machinery thereon owned by the Design -Build
Entity; accept the assignment of any or all of the subcontracts; and then complete the
Project by any method the City may deem expedient. If requested by the City, the
Design -Build Entity shall remove any part or all of the Design -Build Entity's materials,
supplies, equipment, tools, and construction equipment and machinery from the Project
site within seven (7) days of such request; and if the Design -Build Entity fails to do so,
the City may remove or store, and after ninety (90) days sell, any of the same at the
Design -Build Entity's expense.
13.1.4If the Contract is terminated by the City as provided in this
Paragraph 13.1, the Design -Build Entity shall not be entitled to receive any further
24347.00600\31594337.2 56 GENERAL CONDITIONS
payment until the expiration of thirty-five (35) days after Final Completion and
acceptance of all work on the Project by the City.
13.1.5If the unpaid balance of the Contract Price exceeds the cost of
completing the Project, including all additional costs and expenses made necessary
thereby, including costs for the City staff time, plus all Losses sustained, including any
liquidated damages provided under the Contract Documents, such excess shall be paid
to the Design -Build Entity. If such costs, expenses, Losses, and liquidated damages
exceed the unpaid balance of the Contract Price, the Design -Build Entity shall pay such
excess to the City.
13.1.6 No termination or action taken by the City after termination shall
prejudice any other rights or remedies of the City provided by law or by the Contract
Documents upon such termination; and the City may proceed against the Design -Build
Entity to recover all Losses suffered by the City.
13.2 SUSPENSION BY THE CITY FOR CONVENIENCE
13.2.1 The City may, at any time and from time to time, without cause,
order the Design -Build Entity, in writing, to suspend, delay, or interrupt the work on the
Project in whole or in part for such period of time, up to ninety (90) days, as the City
may determine, with such period of suspension to be computed from the Date of
delivery of the written order. Such order shall be specifically identified as a "Suspension
Order' under this Paragraph 13.2. The work on the Project may be stopped for such
further period as the parties may agree. Upon receipt of a Suspension Order, the
Design -Build Entity shall, at the City's expense, comply with its terms and take all
reasonable steps to minimize costs allocable to the work covered by the Suspension
Order during the period of work stoppage. Within ninety (90) days after the issuance of
the Suspension Order, or such extension to that period as is agreed upon by the
Design -Build Entity and the City, the City shall either cancel the Suspension Order or
delete the work covered by such Suspension Order by issuing a Change Order.
13.2.2If a Suspension Order is canceled or expires, the Design -Build
Entity shall continue with the work on the Project. A Change Order will be issued to
cover any adjustments of the Contract Price or the Contract Time necessarily caused by
such suspension. Any Claim by the Design -Build Entity for an adjustment of the
Contract Price or the Contract Time shall be made within twenty-one (21) days after the
end of the work suspension. The Design -Build Entity agrees that submission of its claim
within said twenty-one (21) days is an express condition precedent to its right to
Arbitrate or Litigate such a claim.
13.2.3 The provisions of this Paragraph 13.2 shall not apply if a
Suspension Order is not issued by the City. A Suspension Order shall not be required to
stop the work on the Project as permitted or required under any other provision of the
Contract Documents.
24347.00600\31594337.2 57 GENERAL CONDITIONS
13.3 TERMINATION BY THE CITY FOR CONVENIENCE
13.3.1 The City may, at its option, terminate this Contract, in whole or from
time to time in part, at any time by giving notice to the Design -Build Entity. Upon such
termination, the Design -Build Entity agrees to waive any claims for damages, including
loss of anticipated profits, on account thereof; and, as the sole right and remedy of the
Design -Build Entity, the City shall pay the Design -Build Entity in accordance with
Subparagraph 13.3.4.
13.3.2 Upon receipt of notice of termination under this Paragraph 13.3, the
Design -Build Entity shall, unless the notice directs otherwise, do the following:
(a) Immediately discontinue the work on the Project to the
extent specified in the notice.
(b) Place no further orders or subcontracts for materials,
equipment, services, or facilities, except as may be necessary for completion of such
portion of the work on the Project as is not discontinued.
(c) Promptly cancel, on the most favorable terms reasonably
possible, all subcontracts to the extent they relate to the performance of the
Discontinued portion of the work on the Project.
(d) Thereafter do only such work as may be necessary to
preserve and protect work on the Project already in progress and to protect materials,
plants, and equipment on the Project site or in transit thereto.
13.3.3 Upon such termination, the obligations of the Contract shall
continue as to portions of the work on the Project already performed and, subject to the
Design -Build Entity's obligations under Subparagraph 13.3.2, as to bona fide obligations
assumed by the Design -Build Entity prior to the Date of termination.
13.3.4 Upon such termination, the City shall pay to the Design -Build Entity
the sum of the following:
(a) The amount of the Contract Price allocable to the portion of
the work on the Project properly performed by the Design -Build Entity as of the Date of
termination, less sums previously paid to the Design -Build Entity.
(b) Plus previously unpaid costs of any items delivered to the
Project site which were fabricated for subsequent incorporation in the work on the
Project.
(c) Plus any proven Losses with respect to materials and
equipment directly resulting from such termination.
(d) Plus reasonable demobilization costs.
24347.00600\31594337.2 58 GENERAL CONDITIONS
(e) Plus reasonable costs of preparing a statement of the
aforesaid costs, expenses, and Losses in connection with such termination.
13.3.5 The above payment shall be the sole and exclusive remedy to
which the Design -Build Entity is entitled in the event of termination of the Contract by
the City pursuant to Paragraph 13.3; and the Design -Build Entity will be entitled to no
other compensation or damages and expressly waives same.
13.3.6 The Design -Build Entity shall provide the City a written payment
application for the termination costs within sixty (60) days of the effective date of
termination. The application shall itemize the costs as set forth, in Section 13.3.4 above,
and shall be supported by such documentation as the City may reasonably request.
ARTICLE 14: STATUTORY REQUIREMENTS
14.1 NONDISCRIMINATION/EQUAL OPPORTUNITY EMPLOYMENT
Design -Build Entity represents that it is an equal opportunity employer and the
Design -Build Entity and its Subcontractors shall not discriminate against any employee
or applicant for employment because of race, color, religion, sex, national origin, age, or
any other classification protected by federal or state law. Such nondiscrimination shall
include, but not be limited to, all activities related to initial employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Design -
Build Entity and its Subcontractors shall also comply with all relevant provisions of the
City's minority business enterprise program, affirmative action program, or other related
programs or guidelines currently in effect or hereinafter enacted.
14.2 HOURS OF WORK
14.2.1 The Design -Build Entity and Subcontractors shall furnish sufficient
forces to ensure the prosecution of the work on the Project in accordance with the
Construction Schedule and in such a manner to allow for the full and adequate
completion of the Project within the Contract Time.
14.2.2 work on the Project shall be performed during regular working
hours, except that in the event of an emergency or when required to complete the work
on the Project in accordance with job progress, work may be performed outside of
regular working hours with advance written notice to the City. Regular working hours
shall be 7:00 a.m. to 3:30 p.m. and shall not be changed except with consent of the
City.
14.2.3 As provided in Article 3 (commencing at § 1810), Chapter 1, Part 7,
Division 2 of the Labor Code, eight (8) hours of labor shall constitute a legal day's work.
The time of service of any worker employed at any time by the Design -Build Entity or by
any Subcontractor on any subcontract under this Contract, upon the work or upon any
part of the work contemplated by this Contract, is limited and restricted to eight (8)
hours during any one calendar day and forty (40) hours during any one calendar week,
except as hereinafter provided. Notwithstanding the provision hereinabove set forth,
24347.00600\31594337.2 59 GENERAL CONDITIONS
work performed by employees of Design -Build Entity in excess of eight (8) hours per
day and forty (40) hours during any one week shall be permitted upon this public work
compensation for all hours worked in excess of eight (8) hours per day at not less than
one and one-half (1-1/2) times the basic rate of pay.
(a) The Design -Build Entity shall pay to the City the maximum
statutory penalty for each worker employed in the execution of this Contract by the
Design -Build Entity, or by any Subcontractor, for each calendar day during which such
worker is required or permitted to work more than eight (8) hours in any calendar day
and forty (40) hours in any one (1) calendar week, in violation of the provisions of Article
3 (commencing at § 1810), Chapter 1, Part 7, Division 2 of the Labor Code, unless
compensation for the workers so employed by Design -Build Entity is not less than one
and one-half (1-1/2) times the basic rate of pay for all hours worked in excess of eight
(8) hours per day. Design -Build Entity shall forfeit a penalty of $25.00 per worker for
each day that each worker is permitted to work more than eight (8) hours in any one
calendar day and forty (40) hours in any one calendar week, except when payment for
overtime is made at not less than one and one-half (1-1/2) times the basic rate for that
worker.
(b) If the work done after hours is required by the Contract to be
done outside the Design -Build Entity's or the Inspector's regular working hours, the
costs of any inspections, if required to be done outside normal working hours, shall be
borne by the City.
(c) If the City allows the Design -Build Entity to do work outside
regular working hours for the Design -Build Entity's own convenience, the costs of any
inspections required outside regular working hours shall be invoiced to the Design -Build
Entity by the City and deducted from the next Progress Payment.
(d) If the Design -Build Entity elects to perform work outside the
Inspector's regular working hours, costs of any inspections required outside regular
working hours shall be invoiced to the Design -Build Entity by the City and deducted
from the next Progress Payment.
(e) No work on the Project or other activities by or on behalf of
the Design -Build Entity which presents a hazard or unreasonable disruption to the
public safety or health shall be allowed. The determination as to whether work on the
Projector some other activity presents a hazard or constitutes such a danger to public
health or safety shall be made by and pursuant to the sole discretion of the City. All
work on the Project or other activities which could present such a hazard shall be
performed at a time when the hazard can be avoided as designated by the City. Neither
the Design -Build Entity nor its subcontractors or anyone working on behalf of the
Design -Build Entity or subcontractors shall be entitled to additional compensation or
Contract Time for having to arrange their work schedule so as not to violate the
provisions of this Section. The Design -Build Entity, subcontractors and persons working
on behalf of the Design -Build Entity and subcontractors shall be expected to arrange
24347.00600\31594337.2 60 GENERAL CONDITIONS
such work and other activities in advance so as to avoid creating monetary or time
impacts.
14.3 PAYROLL RECORDS; WAGE RATES, CONTRACTOR
REGISTRATION; LABOR COMPLIANCE AND STOP ORDERS
14.3.1 Design -Build Entity and each subcontractor shall keep an accurate
payroll record, showing the name, address, social security number, work classification,
straight time and overtime hours worked each day and week, and the actual per diem
wages paid to each journeyman, apprentice, worker, or other employee employed by
him or her in connection with the public work. The payroll records shall be certified and
shall be available for inspection at all reasonable hours at the principal office of Design -
Build Entity in the manner provided in Labor Code section 1776. In the event of
noncompliance with the requirements of this section, Design -Build Entity shall have 10
days in which to comply subsequent to receipt of written notice specifying in what
respects such Design -Build Entity must comply with this section. Should
noncompliance still be evident after such 10-day period, Design -Build Entity shall, as a
penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof,
for each worker, until strict compliance is effectuated. The amount of the forfeiture is to
be determined by the Labor Commissioner. A contractor who is found to have violated
the provisions of law regarding wages on Public Works with the intent to defraud shall
be ineligible to bid on Public Works contracts for a period of one to three years as
determined by the Labor Commissioner. Upon the request of the Division of
Apprenticeship Standards or the Division of Labor Standards Enforcement, such
penalties shall be withheld from progress payments then due. The responsibility for
compliance with this section is on Design -Build Entity. The requirement to submit
certified payroll records directly to the Labor Commissioner under Labor Code section
1771.4 shall not apply to work performed on a public works project that is exempt
pursuant to the small project exemption specified in Labor Code Section 1771.4.
14.3.2 Design -Build Entity is aware of the requirements of California Labor
Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations,
Title 8, Section 16000 et seq., ("Prevailing Wage Laws"), which require the payment of
prevailing wage rates and the performance of other requirements on "public works" and
"maintenance" projects. Since the Services are being performed as part of an
applicable "public works" or "maintenance" project, as defined by the Prevailing Wage
Laws, and since the total compensation is $1,000 or more, Design -Build Entity agrees
to fully comply with such Prevailing Wage Laws. City shall provide Design -Build Entity
with a copy of the prevailing rates of per diem wages in effect at the commencement of
this Contract upon request. Design -Build Entity shall make copies of the prevailing
rates of per diem wages for each craft, classification or type of worker needed to
execute the Services available to interested parties upon request, and shall post copies
at Design -Build Entity's principal place of business and at the project site. Design -Build
Entity shall defend, indemnify and hold the City, its officials, officers, employees and
agents free and harmless from any claim or liability arising out of any failure or alleged
failure to comply with the Prevailing Wage Laws. Design -Build Entity and any
24347.00600\31594337.2 61 GENERAL CONDITIONS
subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for
each worker paid less than the prevailing wage rates.
14.3.3 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. Notwithstanding the foregoing, the contractor
registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall
not apply to work performed on a public works project that is exempt pursuant to the
small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
14.3.4 This Project is subject to compliance monitoring and enforcement
by the Department of Industrial Relations. It shall be the Design -Build Entity's sole
responsibility to evaluate and pay the cost of complying with all labor compliance
requirements under this Contract and applicable law. Any stop orders issued by the
Department of Industrial Relations against Design -Build Entity or any subcontractor that
affect Design -Build Entity's performance of Work, including any delay, shall be Design -
Build Entity's sole responsibility. Any delay arising out of or resulting from such stop
orders shall be considered Design -Build Entity caused delay subject to any applicable
liquidated damages and shall not be compensable by the City. Design -Build Entity shall
defend, indemnify and hold the City, its officials, officers, employees and agents free
and harmless from any claim or liability arising out of stop orders issued by the
Department of Industrial Relations against Design -Build Entity or any subcontractor.
14.3.5 The Design -Build Entity shall include provisions in this Article in all
Subcontracts and require Subcontractors to comply with these provisions at no
additional cost to the City.
14.3.6 The Design -Build Entity, or any subcontractor working under the
Design -Build Entity may not perform work on a public works project with a subcontractor
who is ineligible to perform work on a public project pursuant to Section 1777.1 or
Section 1777.7 of the California Labor Code. Any contract on a public works project
entered into between the Design -Build Entity and a debarred subcontractor is void as a
matter of law. A debarred subcontractor may not receive any public money for
performing work as a subcontractor on a public works contract. Any public money that is
paid, or may have been paid to a debarred subcontractor by the Design -Build Entity on
the project shall be returned to the City. The Design -Build Entity shall be responsible for
the payment of wages to workers of a debarred subcontractor who has been allowed to
work on the project.
14.4 APPRENTICES
The Design -Build Entity's attention is directed to the provisions of Sections
1777.5, 1777.6, and 1777.7 of the Labor Code concerning employment of apprentices
by the Design -Build Entity or any subcontractor. The Design -Build Entity shall obtain a
24347.00600\31594337.2 62 GENERAL CONDITIONS
certificate of apprenticeship before employing any apprentice pursuant to Section
1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to apprenticeship
standards, wage schedules, and other requirements may be obtained from the Director
of Industrial Relations, the Administrator of Apprenticeships, San Francisco, California,
or from the Division of Apprenticeship Standards and its branch offices.
14.5 THIRD -PARTY CLAIMS (PUB. CONTRACT CODE § 9201.)
The City will provide the Design -Build Entity with timely notice of any third party
claim relating to the Contract for the Project. The City also retain full authority to
compromise or otherwise settle any claim related to the Contract for the Project.
14.6 ANTI-TRUST CLAIM ASSIGNMENT (PUB. CONTRACT CODE
§7103.5).)
The City must provide the Design -Build Entity with timely notification of the
receipt of any third -party claim, relating to the Contract and the City is entitled to recover
its reasonable costs incurred in providing such notification.
At final payment, contractor or subcontractor must agree to assign awarding
party 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.
14.7 STORMWATER POLLUTION PREVENTION PLAN
14.7.1 The Design -Build Entity shall be required to comply with all aspects
of the State Water Resources Control Board (State Board) Water Quality Order No.
2009-0009-DWQ, National Pollutant Discharge Elimination System General Permit for
Storm Water Discharges Associated with Construction Activity (Permit) for all projects
that involve construction on or disturbance of one acre or more of land or which are part
of a larger common area of development. The Design -Build Entity shall be responsible
for filing the Notice of Intent and for obtaining the Permit. The Design -Build Entity shall
be solely responsible for preparing and implementing a Storm Water Pollution
Prevention Plan ("SWPPP") prior to initiating work on the Project. In bidding on this
Contract, it shall be the Design -Build Entity's responsibility to evaluate the cost of
procuring the Permit and preparing the SWPPP as well as complying with the SWPPP
and any necessary revision to the SWPPP. The Design -Build Entity shall comply with all
requirements of the State Water Resources Control Board. The Design -Build Entity
shall include all costs of compliance with specified requirements in the Contract Price.
14.7.2 The Design -Build Entity shall be responsible for procuring,
implementing and complying with the provisions of the Permit and the SWPPP,
including the standard provisions, monitoring and reporting requirements as required by
the Permit. The Design -Build Entity shall provide copies of all reports and monitoring
information to the City's Representative. Before any NOI, SWPPP, or other Permit
24347.00600\31594337.2 63 GENERAL CONDITIONS
related document may be submitted to the State Board or implemented on the Project
site, it must first be reviewed and approved by the City.
14.7.3 The City retains the right to procure and maintain coverage under
the Permit for the Project site if the Design -Build Entity fails to draft a satisfactory NOI or
SWPPP or proceed in a manner that is satisfactory to the City. Any costs incurred by
the City in procuring and maintaining coverage under the Permit, or drafting an NOI or
SWPPP in the event that Design -Build Entity is unwilling or unable to maintain
compliance or draft a satisfactory permit related documents, shall be paid by the
Design -Build Entity.
14.7.4 Design -Build Entity shall be responsible for maintaining compliance
with all aspects of the Permit during the course of the Project. Design -Build Entity shall
provide copies of all reports and monitoring information to the City Representative. If the
Design -Build Entity has failed or is unable to maintain compliance with the Permit, the
City reserves the right to implement its own SWPPP at the Project site, and hire
additional contractors to maintain compliance. Whether Design -Build Entity has
adequately maintained compliance with the Permit shall be the City's sole
determination. In the event that Design -Build Entity has failed or is unable to maintain
compliance with the Permit, any costs incurred by the City in drafting and implementing
a SWPPP, or otherwise maintaining compliance with the Construction General Permit
shall be paid by the Design -Build Entity.
14.7.5In entering into this Contract, it shall be Design -Build Entity's
responsibility to evaluate and include in the contract amount the cost of procuring
coverage under the Permit, preparing a SWPPP that is acceptable to the City, and
complying with the SWPPP and any revisions to the SWPPP that become necessary
during the course of construction.
14.7.6 In addition to compliance with the Permit, Design -Build Entity shall
comply with the lawful requirements of any applicable municipality, drainage district, and
other local agencies regarding discharges of storm water to the storm drain system or
other watercourses under their jurisdiction, including applicable requirements in
municipal storm water management programs.
14.7.7 Storm, surface, nuisance, or other waters may be encountered at
various times during construction of the Work. The Design -Build Entity, by executing
this Contract, hereby acknowledges that it has investigated the risk arising from such
waters, and assumes any and all risks and liabilities arising therefrom.
14.7.8 Failure to comply with the Permit is in violation of federal and state
law. The Design -Build Entity hereby agrees to indemnify and hold harmless the City, its
officials, officers, agents, employees and authorized volunteers from and against any
and all claims, demands, losses or liabilities of any kind or nature which City, its
officials, officers, agents, employees and authorized volunteers may sustain or incur for
noncompliance with the Permit arising out of or in connection with the Project, except
for liability resulting from the sole negligence, willful misconduct or active negligence of
24347.00600131594337.2 64 GENERAL CONDITIONS
the City, its officials, officers, agents, employees or authorized volunteers. The City may
seek damages from the Design -Build Entity for delay in completing the Contract in
accordance with the Contract Documents, caused by the Design -Build Entity's failure to
comply with Permit.
ARTICLE 15: MISCELLANEOUS PROVISIONS
15.1 IMMIGRATION REFORM AND CONTROL ACT
The Design -Build Entity acknowledges that the Design -Build Entity, and all
subcontractors hired by Design -Build Entity to perform services under this agreement,
are aware of and understand the Immigration Reform and Control Act ("IRCA"). Design -
Build Entity is and shall remain in compliance with the IRCA and shall ensure that any
subcontractors hired by Design -Build Entity to perform services under this agreement
are in compliance with the IRCA. In addition, Design -Build Entity agrees to indemnify,
defend and hold harmless the City, its agents, officers and employees, from any liability,
damages or causes of action arising out of or relating to any claims that Design -Build
Entity's employees, or the employees of any subcontractor hired by Design -Build Entity,
are not authorized to work in the United States for Design -Build Entity or its
subcontractor and/or any other claims based upon alleged IRCA violations committed
by Design -Build Entity or Design -Build Entity's subcontractor(s).
15.2 GOVERNING LAW
This Contract shall be governed by the laws of the State of California.
15.3 SUCCESSORS AND ASSIGNS
The City and the Design -Build Entity respectively bind themselves and their
successors, permitted assigns, and legal representatives to the other party and to the
successors, permitted assigns, and legal representatives of such other party in respect
to covenants, Contracts, and obligations contained in the Contract Documents. Neither
party to the Contract shall assign the Contract, in whole or in part, without prior written
consent of the other party. Notwithstanding any such assignment, each of the original
contracting parties shall remain legally responsible for all of its obligations under the
Contract.
15.4 RIGHTS AND REMEDIES
15.4.1 All the City's rights and remedies under the Contract Documents
will be cumulative and in addition to, and not in limitation of, all other rights and
remedies of the City under the Contract Documents or otherwise available at law or in
equity.
15.4.2 No action or failure to act by the City or the City's Representative
will constitute a waiver of a right afforded them under the Contract, nor will such action
or failure to act constitute approval of or acquiescence in a condition or breach
thereunder, except as may be specifically agreed in writing. No waiver by the City or the
24347.00600\31594337.2 65 GENERAL CONDITIONS
City's Representative of any condition, breach or default will constitute a waiver of any
other condition, breach or default; nor will any such waiver constitute a continuing
waiver.
15.4.3 No provision contained in the Contract Documents shall create or
give to third parties any claim or right of action against the City, the City's
Representative, or the Design -Build Entity.
15.5 SURVIVAL
The provisions of the Contract which by their nature survive termination of the
Contract or Final Completion, including all warranties, indemnities, payment obligations,
and the City's right to audit the Design -Build Entity's books and records, shall remain in
full force and effect after Final Completion or any termination of the Contract.
15.6 COMPLETE CONTRACT
The Contract Documents constitute the full and complete understanding of the
parties and supersede any previous agreements or understandings, oral or written, with
respect to the subject matter hereof. The Contract may be modified only by a written
instrument signed by both parties or as provided herein.
15.7 SEVERABILITY OF PROVISIONS
If any one or more of the provisions contained in the Contract Documents should
be invalid, illegal, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby.
15.8 THE CITY'S RIGHT TO AUDIT
The City and entities and agencies designated by the City will have access to
and the right to audit and the right to copy at the City's cost all of the Design -Build
Entity's books, records, contracts, correspondence, instructions, drawings, receipts,
vouchers, purchase orders, and memoranda relating to the Design -Build Entity shall
preserve all such records and other items for a period of at least three (3) years after
Final Completion.
15.9 NOTICES
All notices shall be in writing and either served by personal delivery or mailed to
the other party as designated in the Contract unless another address is designated in
writing. Notice shall be effective upon receipt or three (3) Days after being sent by first
class mail, whichever is earlier. Notice given by facsimile or electronic mail shall not be
effective unless acknowledged in writing by the receiving party.
24347.00600\31594337.2 66 GENERAL CONDITIONS
15.10 TIME OF THE ESSENCE
Time limits stated in the Contract Documents are of the essence of the Contract.
15.11 STATUTORY LIMITATION
Commencement of statutory limitation periods and statute of repose shall be as
provided by California law.
15.12 CORRECTION OF ERRORS AND OMISSIONS
The Design -Build Entity agrees to correct any error or omission in the
Construction Documents at no additional cost to the City.
15.13 INTERPRETATION
This Contract shall not be construed in favor of or against any party, but shall be
construed as if all parties prepared this Contract.
24347.00600\31594337.2 67 GENERAL CONDITIONS