HomeMy WebLinkAbout2011/11/29 Item 01
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VITSA ESTABLISHING A NEW CAPITAL
IMPROVEMENT PROJECT "ANIMAL CARE FACILITY
CATTERY EXPANSION" (GG213), AMENDING THE FISCAL
YEAR 2011-12 BUDGET BY APPROPRIATING $150,000 TO THE
NON-DEPARMENTAL CIP BUDGET TO BE OFFSET BY A
H.E.A.R.T. DONATION, AND AWARDING A SOLE SOURCE
DESIGN BUILD AGREEMENT TO ECHO PACIFIC
CONTRUCTION INC. FOR GG213 Il~T.THE AMOUNT OF $150,000
SUBMITTED BY: DIRECTOR OF PUBL C WORK
REVIEWED BY: CITY MANAGER, '
ASSISTANT CIT _ MANAGER ~~
4/STHS VOTE: YES ® NO ^
SLfM1V1ARY
The Chula Vista Animal Care Facility currently has the capacity to house 80-100 cats and
kittens. From March- thru November each year the typical intake of cats and kittens can reach
over 3,600. It has been increasingly necessary to expand the size of the existing Cattery area to
.handle the high seasonal number of adoptable animals. In addition, the expansion of the Cattery
will be to help eliminate over crowding which will then assist in decreasing the amount of stress
among cats. Stress has been identified as being a prime suspect concerning high feline
respiratory infection rates in animal shelters. This will help promote healthy cat and kitten
population, thereby increasing the number of adoptions -.since the public prefers healthy
adoptable animals.
ENVIRONMENTAL REVIEW
The Director of Development Services has reviewed the proposed project for compliance with
the California Environmental Quality Act (CEQA) and has determined that the project qualifies
for a Class 3 categorical exemption pursuant to Section 15303 [New Construction or Conversion
of Small Structures] of the State CEQA Guidelines because the proposed project consists of the
construction of small facilities totaling less than 2,500 square feet to be added to an existing
animal care facility located in an urbanized area. Thus, no further environmental review is
necessary.
RECOMMENDATION
Council adopt the resolution
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11.~/~11, Iterri
Page 2 of 3
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
To address the needs of expanding the Cattery, in January 2010, the Department of Public
Works, Engineering Division, began a research effort concerning the feasibility of a proposal by
Echo Pacific Constniction, Inc. to provide donated services, labor and materials to construct the
needed addition to the Animal Care Facility.
As part of the Design Builders (D/B) proposal, DB submitted an estimated cost of the Project, a
list of trades, donated materials, services and an estimate of capital required to finish the project
should they be unable to obtain fiirther donations from their subcontractors and other parties.
Echo Pacific Construction, Inc. has combined efforts with the project architect Hector Reyes and
consultants, to form the Design Build Team. The design costs were funded through the Heart
Foundation, using grants provided by PETCO ($25,000.00). A Wells Fargo Bank ($150,000.00)
grant secured by H.E.A.R.T. will be used to fiend the construction phase of the project. The
contract, documents and all funds for architectural design services are assignable to Echo Pacific
Construction, Inc. for completion. Following City's approval of 90% Construction Documents
("CD"), and plan check approval by the City's Building Division, DB shall submit an Estimated
Project Cost (EPC) for which the Project may be designed and constntcted. The EPC and
contingency shall riot exceed $150,000. The DB shall complete the Project, as a .public
improvement, according to plans and specifications approved by City, by donating management
services, as well as labor and materials provided by others under their direction and. discretion to
supplement the funding proposed.
The contract is being proposed for award on a "sole source" basis due to the unique proposal
initiated by Eclio Pacific Constriction that includes a substantial amount of donated labor v1d
materials. The City Manager hereby certifies Echo Pacific's "sole source" status on this basis.
Accordingly, the Resolution presented for City Cotmcil approval includes a provision for
waiving the City's standard competitive bid processes under the authority of Chula Vista
Municipal Code Sections 2.56.070.B.3, 2.56.070.B.4 and the Design Build ordinance that allows
for sole source contracting, as set forth in Chula Vista Municipal Code 5:57.040 and 060.D.
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property that is the subject of this action.
CURRENT FISCAL IMPACT
Staff recommends establishing a new CIP "Animal Care .Facility Cattery Expansion" (GG213)
and amending the fiscal year 2011-12 budget by appropriating $150,000 to the Non-
Departmental CIP Project Expenditures category. This appropriation will be offset by a
$150,000 donation from H.E.A.R.T. resulting in no net impact to the General. Fund. Staff costs
for this project shall be in-kind services. A breakdown of costs is as follows:
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Tl/~r~T, Item
Page 3 of 3
PROJECT COSTS -~-
A. Echo Pacific Construction, Inc. DB Agreement (EPC and Contingency) $150,000.00
B. Architectural Services/Design (Nearing Completion) $25,000.00
C. Staff Time (In-kind services) $15,000.00
TOTAL PROJECT COSTS $190,000.00
The estimated value of DB donated costs is $100,000. The estimated total value of the project is
$290,000.
ONGOING FISCAL IMPACT
After project completion, there will be minor on-going annual maintenance required.
ATTACHMENTS
Design Build Agreement
Prepared by: Gordon Day, Bacilding Project Manager and Merce LeClair, Sr. Mgt. Analyst, Public Wor/cs
Departrnertt
J: lEngineerl AGENDA 1 CAS20l 1111-1 S-1 I (FINAL I Cattery Agendarev3. doc
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RESOLUTION NO 2011-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ESTABLISHING A NEW CAPITAL
IMPROVEMENT PROJECT, "ANIMAL CARE FACILITY
CATTERY EXPANSION" (GG213); AMENDING THE FISCAL
YEAR 2011-12 BUDGET BY APPROPRIATING $150,000 TO
THE NON-DEPARTMENTAL CIP BUDGET TO BE OFFSET
BY A H.E.A.R.T. DONATION, AND AWARDING A SOLE
SOURCE DESIGN BUILD AGREEMENT TO ECHO PACIFIC
CONSTRUCTION INC. FOR GG213 IN THE AMOUNT OF
$150,000.
WHEREAS, the Chula Vista Animal Care Facility currently has the capacity to house 80-
100 cats and kittens; and
WHEREAS, it has been increasingly necessary to expand the size of the existing cattery
area to handle the high seasonal number of adoptable animals; and
WHEREAS, to address the needs of expanding the cattery, in January 2010, the
Department of Public Works, Engineering Division, began a research effort concerning the
feasibility of a proposal by Echo Pacific Inc. to provide donated services, labor and materials to
construct the needed addition to the Animal Care Facility; and
WHEREAS, Echo Pacific Construction, Inc.. has combined efforts with the project
architect Hector Reyes and consultants, to form the Design Build Team; and
WHEREAS, based on the unique proposal initiated by Echo Pacific that includes a
substantial amount of donated labor and materials the City Manager has certified Echo Pacific's
qualification for "sole source" status under Chula Vista Municipal: Code 2.57.040; and
WHEREAS, the design costs were funded through the H.E.A.R.T. Foundation, using
grants provided by PETCO ($25,000.00). A Wells Fargo Bank ($150,000.00) grant secured by
H.E.A.R.T. will be used to fund the construction phase of the project; and
WHEREAS, the Estimated Project Cost (EPC) and contingency in the Design Build
Agreement to Echo Pacific Construction, Inc. shall not exceed $150,000; and
WHEREAS, a new Capital Improvement Project (CIP), "Animal Care Facility Cattery
Expansion" (GG213) shall be established for project expenditure, thereby amending the FY
2011-12 CIP Budget and program and appropriating $150,000 of General Fund;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby establish a new CIP, Animal Care Facility Cattery Expansion" (GG213),
accept $150,000 from H.E.A.R.T. for a Wells Fargo grant, amend the FY2011-12 CIP Budget
d - ~'
Resolution No.
Page 2
and program and appropriate $150,000 in General Fund monies, and award ~:a sole source Design
Build Agreement to Echo Pacific Construction, Inc. for GG213 in the amount of $150,000.
BE IT FURTHER RESOLVED, based on the City Manager's certification of Echo
Pacific Construction Inc.'s sole source status, and other qualifying factors in the record, the City
Council hereby finds the City's competitive bidding practice to be impractical, that the City's
interest would be materially better served by a sole source contract, and, accordingly, waives the
City's competitive bidding practices in accordance with Chula Vista Municipal Code Sections
2.56.070.B.3, 2.56.070.B.4, and per the Design Build contracting standards set forth in Chula
Vista Municipal Code Sections 2.57.040 and 2.57.060.D.
Presented by
Richard A. Hopkins
Director of Public Works
Approved as to form by
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~~Glen R. oogins :; \l
rney
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
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~Ien R. ogin
' ity Atto
Dated: ~ i I ~
DESIGN BUILD AGREEMENT
BETWEEN
THE CITY OF CHULA VISTA, AND
ECHO PACIFIC CONSTRUCTION, INC.
FOR ANIMAL CARE FACILITY CATTERY PROJECT
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DESIGN BUILD AGREEMENT FOR.
ANIMAL CARE FACILITY CATTERY PROJECT
Tl-IIS Agreement shall be for the design and construction of The Animal Care Facility - Cattery Struchire and the
payment of permitted costs therefore ("Agreement"). This Agreement is made and entered .into this ,
by and between THE CITY OF CHULA VISTA, a municipal corporation ("City"), and Echo Pacific Construction
Inc, a EPC is an S Corp and was incorporated in the state of California in March 1993 ("Design Builder or D/B").
City and D/B, when referenced herein, may be referred fo individually as "Party" and collectively as "Parties." This
Agreement is entered into with reference to the following facts:
RECITALS
1. The City desires to to expand the size of it's existing catteries to handle the high
seasonal number of adoptable animals, and to eliminate over crowding to decrease stress among the cats and
thereby increase the number ofl~ealthy adoptable animals.
2. As part of this endeavor, on January 2010, the Departrnent of Public Worlcs, Engineering Division, began a
research effort concerning the feasibility of a proposal by Echo Pacific Inc to provide donated services, labor
and materials to construct the needed addition to the Animal Care facility.
;. As part of D/B's proposal, D/B will submit an estimated cost of the Project, a list of trades, donated materials,
services and an estimate of capital required to finish the project should they be unable to obtain further
donations from their subcontractors and other parties.
4. Echo Pacific Inc will combine efforts with the project architect Hector Reyes and consultants, to form the
Design Build Team. Tlie design costs will be funded tlu~ough the Heart Foundation , using a grant provided by
PETCO and Wells Fargo Banlc. The contract, documents and all fiuzds for design services will be assignable to
Echo Pacific for completion.
~. Following City's approval of 90% Construction Documents ("CD"),and plan check approval by the City's
BLllldlllg Division, D/B shall submit an Estimated Project Cost (EPC) One Hundred Fifty Thousand dollars
$150,000.00) for which the Project maybe designed and constructed.
6. D/B shall complete the Project, as a public improvement, according to plans and specifications approved by
City, by donating management services, as well as labor and materials provided by others.
7. This contract is being awarded on a"Sole Source" basis under the authority of CVMC Sections 2.57.060.D
and 2.~6.070.B.4 due to the unique contract proposal made by Echo Pacific Inc. that included a substantial
amount of donated labor and materials.
NOW THEREFORE, iii consideration of the recitals, muhial obligations of the Parties, the covenants and conditions
herein, and for other good and valuable, the sutfciency of which is hereby acknowledge, the Parties agree as
follows:
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ARTICLE I. DEFINITIONS
ADA: The Americans with Disabilities Act of 1990 and any amendments thereto.
Acceptance: Final approval by the City Inspection Team following the Final Inspection that Project Improvements
are complete and work required on the Punch List has been finished.
As-Builts: Project Record Documents that are the Contract plans modified from the original concept of the
design to reflect the actual product built.
CEQA: California Environmental Quality Act.
Calendar Day(s): All days of the week, holidays and weekends included.
Change Order: A written order, approved by City, authorizing a change in the work to be performed.
City: The City of Chula Vista. Unless specifically provided otherwise, whenever this Agreement requires an action
or approval by City, that action or approval shalt be performed by the City representative. designated by the
Agreement.
City Council: The City Cotmcil of the City of Chula Vista.
City's Project Administration Costs: Charges that City incurs to: (i) achrunister the acquisition of the Property,
(ii) review and approve the plans and specifications for the project umprovements, and (iii) inspect the project
improvements during consritiiction, until completion and Acceptance of the Project.
Contract Documents: Including, but not limited to: Conhact Addenda, Notice Inviting Bids, Instructions to
Bidders, Bid (including documentation accompanying Bid and any post-bid doci.unentation submitted prior to
Notice of Award), the Bonds, the general conditions, pernuts from other agencies, the Special Provisions, the Plans,
Standard Plans, Standard Specifications, Reference Specifications, and all modifications issued after the execution
of this Agreement.
Contract Time: The number of Calendar Days pernutted under flux Agreement for D/B to achieve Substantial
Completion.
Defective Work: All work, material, or equipment that is unsatisfactory, faulty, incomplete, or does not conform to
the Contract documents is defective.
Desisn Build Team (D/BT): Contractor ,Architect, Engineering and adn-unistrative personel.
Estimated Project Cost: The total cost of the Project as estimated in prelinuiiary cost estumates as shown in
Gxlubit A.
Extra Worlc: Any City additions, modifications, or deletions to work or D/B obligations under this Agreement not
within the original Scope of Worlc contemplated by this Agreement.
Final Completion: The point at which the last of the following has occtured: (1) recordation of a Notice of
Completion for the Project; (2) acceptance of the Project by the City; (3) submission of a1T documents required to be
supplied by D/B to City under this Agreement, includuzg but not limited to As-Built Drawings, warranties, and
operating manuals; and (4} and delivery to City of a Certificate of Completion duly verified by D/B.
Greenbook: The most recent edition of the Standard Specifications for Public Worlcs Construction (including any
City of Chula Vista standard special provisions).
Hard Construction Costs: Direct construction costs incurred in perfonmulg the work, including taxes, delivery and
installation. Hard Constiziction costs shall not include D/B markup, handling fees, overhead, or other charges,
except as otherwise set forth in this Agreement.
Hazardous Materials: Hazardous waste or hazardous substance as defined ul any federal, state, or local stahrte,
ordinance, rule, or regulation applicable to the Property,, including, without lirnitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States Code
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sections 9601-9675), the Resoruce Conservation and Recovery Act (Title 42 United States Code sections 6901-
69921c), the Carpenter Presley-Tanner Hazardous Substance Account Act (Health and Safety Code sections 25300-
25395.15), and the Hazardous Waste Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous
Materials" shall. also include asbestos or asbestos containing materials, radon gas, and petroleum or petroleum
fractions, whether or not defined as Hazardous waste or hazardous substance in any such stattrte, ordinance, rule, or
. regulation.
Holiday: The City-observed holidays.
Larv; All .Federal, State, or local laws, regulations, ordinances, and/or policies.
Y[ilestones: Dates shown on the Project Schedule by which D/B shall complete major tasks either during design or
construction of the Project.
N/A: Means "Not Applicable" to the subject project /content.
NEPA: National Environmental Policy Act.
Notice to Proceed: City's written notice authorizing D/B to con-unence Work and/or Services on the Project.
Notice o[' Termination: A written notice from City to D/B ternunating the Agreement u1 accordance with Article
XXVI.
Project Site: The property located at 130 Beyer Way and further described in 1/xhibit "A", attached.
Reimbursable Costs: Fees for permits and utility expenses incurred during construction.
Services: Professional services, including design and construction management of the Project that are required to
design and construct the Project in accordance with the Contract Documents. Services cloes.not include Worlc.
Substantial Completion: That stage in the progress of the construction when all Worlc on the Project is sufficiently
complete in accordance with the.Construction Documents, so that City can fiilly utilize entire Project; Substantial
Completion shall fiuther mean that all goods, services and systems to be provided under the terms and conditions of
the Construction Documents are in place, have been initially tested, and are operationally fiulctional, subject only to
final testing, balancing and adjustments and normal Final Completion punch list work.
Title 24: California Building Standards Code, California Code of Regulations, Title 24.
11~orlc: All labor, materials, supplies, and equipment that are necessary to constrict the Project in accordance with
the Contract Documents.
Working Day(s): Monday through Friday, excluding City holidays.
ARTICLE II. SCOPE OF THE AGREEMENT
2.1 General. Except as expressly provided in this Agreement, DB shall design and construct the Project in
accordance with all the terms and conditions of this Agreement, approved Plans and Specifications, and the
timeframes established by the Project Schedule, attached as Exhibit " A", delivering a complete and functional
Project within the agreed upon Contract Time.
ARTICLE III. TERM
3.1 Term of Agreement. This Agreement shall be effective on the date it is executed by the last Party to sign the
Agreement following City Council approval by Resolution. The term of this Agreement will extend from the
date of execution until satisfaction of all terms and conditions herein, unless this Agreement is earlier
tenzunated.
ARTICLE IV. GENERAL PROJECT PERFORMANCE OBLIGATIONS
4.l Standard of Care. Throughout the performance this Agreement, performed under this Agreement, D/B agrees
that all Services and Work provided as part of this Agreement shall be performed in accordance with the
standards customarily adhered to by experienced and competent professional architectural, engineering,
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.landscape arclutecttue, and construction fuzes using the degree of care and skill ordinarily exercised by
reputable professionals practicing in the same field of service in the State of California.
4.2 Compliance with all Laws. In the performance of this Agreement, DB shall connply with all laws, including
but not limited to:
42.1 All City, County, State, and Federal laws, codes and regulations, ordinances, and policies, including,
but not limited to, the following:
4.2.1.1 Environnnental Regulations (i.e. CEQA/ NEPA).
4.2.1.2 The Americans with Disabilities Act ("ADA") and Title 24 of the California Building Code. It
is the sole responsibility of DB to comply with all ADA and Title 24 regulations.
4.2.1.3 The California Fair Employment and Housing Act and all other State, Federal and local laws
including, but not limited to, those prohibiting discrimination on account of race, color,
national origin, religion, age, sex or handicap.
4.1.2.4 The Clean Air Act of 1970, the Clean Water. Act (33 USC 1360-Executive Order 11735, and
the Stormwater Management and Discharge Control-Ordinance No. 0-17958.
4.1.2.5 DB shall comply with the Essential Services Builduig Seismic Safety Act, SB 239 & 132.
4.1.2.6 D/B shall comply innmediately with all directives issued by City of its authorized
representatives under authority of any laws, statutes, ordinances, Hiles, or regulations.
4.1.2.7 DB shall obtain and comply with all pernuts necessary top complete _the Project, including, but
not limited to Development Services Department pernuts and hazardous material permits.
4.1.2.8 Zoning, environmental, building, fire and safety codes and coverage, density and density ratios
and lien laws.
4.2.2 Implied Knowledge of Larvs. DB shall be responsible for all amendments or updates to standards and
of all amendments or updates to standards, whether local, state, or federal, and such knowledge will be
imputed to D/B to the extent allowed by law.
4.3 Design and Construction Standards. In the performance of the Services and Work covered by this
Agreement, D/B shall comply the most current versions of design and construction specifications, all of which
shall be incorporated herein by this reference.
4.3.1 Stalulm-d Specifications.
4.3.1.1 Greenboolc. The 2000 Edition of the Standard Specifications for Public Works Construction.
4.;.1.2 California Department of Transportation Manual of Traffic Controls for Constnuction and
Maintenance Worlc Zones.
4.3.2 City Specificatiols.
4.3.2.1 The 2000 Edition of the Chula Vista Standard Special Provisions.
4.3.2.2 The 2000 Edition of the Regional Standards.
4.3.2.3 The 2002 Edition of the Chula Vista Constriction Standards.
4.3.2.4 The City's facility program, performance and design criteria, concept drawings, and reports.
4.3.3 Energy Conse7-vation. Stmula7-Cls.
4.3.4 Nlciterials Sta7dards. DB shall use industrial grade, not residential grade, equipment and accessories
for alI facets of design and constriction.
4.4 Obtain City Approval. For any and all actions under this Agreement that require City approval, including,
but not linuted to, changes or additions to Agreement, D/B shall obtain approval in writiig fiom the designated
City Representative (Constriction Project Manager or Project Manager), or when required by Law, fiom the
City Council. D/B acknowledges that approval fiom any individual other than the desighated City
Representative or City Council, where required, shall not be valid.
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4.4.1 Failicre to Obtain Approval. Any costs or delays resulting from or associated with additions or
modifications implemented without the written authorization of the City Representative shall be borne
exclusively by DB.
4,4.1.1 Emergency. In the event of an emergency, D/B shall take all reasonable actions necessary to
protect public health, safety or property. Such action shall not require advance City approval;
however, DB shall notify the City immediately of the emergency and as soon as reasonably
possible provide a written statement to the City explaining the emergency and the reasonable
actions taken. Provided the emergency was not caused by or its creation contributed to by the
DJB, its employees, agents, or subcontractors, D/B maybe entitled to reasonable compensation
for such actions.
4.4.2 No Release From Obligations. City approval shall be a general approval only, and such approval shall
in no way release or relieve DB of responsibility for complying with all applicable laws, codes, and
good CO11SLl1t11]g, design, or constlliction practices:
4.5 Decision Ntalcint. D/B shall make decisions with reasonable promptness to avoid delay in the orderly
progress of D/B's obligations under this Agreement and pursuant to the Project Schedule, attached as Exhibit
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4.6 Perform Services and Worlc in Phases. The Services and Worlc under this Agreement shall be performed
three (3) "Phases" in the manner and order described herein.
ARTICLE V, PHASE I -DESIGN DEVELOPMENT
5.1 Design Team. City has awarded this Agreement based on the specific qualifications of D/B to perform the
design selvices required under this Agreemert. All such services shall be provided by DB ul~less the City has
approved of the use of Subconsultants in the mamzer identified in Article VIII.
5.2 Services. In Phase I, DB shall perform Selvices includuzg, but not linuted to, the following:
5.1.1 Project Developrraerst. Develop and refine Project requirements.
5.1.2 DDD. Prepare complete DDDs, such that the DDDs include, without limitation, the following:
5.1.2.1 Site Plans. Site plan with pertinent notes and dimensions indicating property 1u1e; existing
public streets, sidewalks, curb cuts, other public improvements.
5.1.2.2 Floor Plans. Floor plans uzcluding graphically demonstrating interior and exterior walls and
fenestration ~vitli notes, dimensions and gridlines; room names, stnictural bay spacing with
grids, critical dimensions and area calculations.
5.1.2.3 Roof Plans. Roof plans including detailed notes, dimensions, mechanical equipment locations,
define material for mechanical screens, skylights and roof access, roof materials, and roof
drainage.
5.1.2.4 Building Sections. Building sections, which shall include vertical dimensions, floor assembly
thiclaless showing known structural elements, notes and dimensions.
5.1.2.5 Elevations. Exterior elevations, including material references and extent; visible roof top
elements; existing and new line of grade; indicate of floors with leader lines; and vertical
dimensions; notes, dimensions and grid Iu1es.
5.1.2.6 Wall Sections. Wall sections including all wall sections, dimensions, horizontal element
offsets, and guide to exterior face of wall; dimensions, vertical floor to floor, floor to window
head and sill and floor to ceiling; stluctllral elements and assemblies; interior and exterior wall
finishes; and wall and roof assembly;
5.12.7 Specifications, description of components including site work shall be listed on the plans.
5.1 2.~ Traffic circulation and landscaping should also be indicated at this stage if applicable. N/A
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5.1.3 Code Corrapliance. Verify all code compliance, including building conshuction type, occupancy
spriu-ilcler requi:ements, existing, zoning and other agency conformance and ADA.
5.1.4 Subnuttals. Prior to proceeding with Phase 1I, D/B shall prepare and subnut the following to the City
for review and written approval.
5.1.4.1 DDDs. Completed Construction Documents (CD's).
5.1.4.1.1 Conditional Approval. In the event that City grants conditional approval, D/B shall
address all City Building Department comments or issues and make associated
revisions in the next set of drawings developed and submitted.
5.1.4.1.2
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ARTICLE VI. PHASE II
6.1 Phase II Services. In Phase II of the Project, D/B's shall perform Services including, but are not linited to,
the followuig:
6.1.1 Project Development. D/B shall diligently prosecute the development and refinement of Proj ect
requirements and review such. requirements with City;
6.1.2 Dagital Doccamentation. D/B shall prepare CD's which shall include, without limitation, the following:
6.1.2.1 Architectural plans and details, including:
6.1.2.1.1 Site plan indicating general location and improvements. -
6.1.2.1.2 Floor plans, including roof, showing space assignments, sizes, and location of
installed or fixed and movable equipment that affects the design of the spaces.
6.1.2.1.3 Building elevations indicating exterior design elements and featuues, including
fenestration arrangements, materials, mechanical and electrical features appearing on
the walls, roofs, and adjacent areas.
6.1.2.1.4 Interior elevations to establish functional requuemepts, equipment, and all systems
locations. -
6.12.1.5 Typical building sections showing primary struich~ral members, dimensions, and
accommodation of functional systems.
6.1.2.1.6 Typical wall sections sufficient to indicate materials, openings, and major feahues.
6.1.2.2 Stz-uctuual drawings inchding plans and sections of sufficient clarity and detail to show the
extent and type of sh-uchual system and dimensions, final structural design criteria, foundation
design criteria, preliminary sizing of major sti-uctuual components, critical coordination
clearances and applicable material lists.
6.1.2.3 Mechanical plans and details.
6.1.2.4 ~,~.~~1.. ,a r,- ..+; ..,i.. .;,a ,a~+.,;i,. rrin
6.1.2.5 Electrical plans and details.
6.1.2.6 Plumbing plans and details.
6.12.7 Plans showing installation of major systems, equipment, fixed fiunislings and graphics.
G.1.2.8 ,
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6.1.2.9 All other tecluiical drawings, schedules, diagrams and specifications, to set forth in detail the
requirements for construction of the Project which, at a minimiun, include:
6.12.9.1 Information customarily necessary for the use of those in the building trades.
6.1.2.9.2 Documents customarily necessary to obtain regulatory agency approvals.
6.1.2.9.3
6.1.2.10 Mechanical design documentation consisting of continued development and expansion of
schematic mechanical design consisting of:
6.1.2.10.1 Single Line layouts and the approximate sizing of all equipment and capacities,
preliminary equupment layouts.
6.1.2.10.2 Required space requirements for the equipment, required chases and clearances,
acoustical and vibrations control, visual impacts and energy conservation
measures.
6.1.2.11 Electrical design documentation consisting of continued expansion of the schematic electrical
design consisting o£
6.12.11.1 Criteria for lighting, electrical, conuznlnications audio visual, close circuit T.V.,
lighting controls and other electrical systems typical to civic facilities, the
approximate sizes and capacities of major components transformers-panels-switch
gears;
6.1.2.11.2 Preliminary equipment layouts, required space for equipment, required chases and
clearances.
6.1.2.12 Sections tluough critical areas showing coordination of architectural, stnicnual, mechanical
and electrical elements. .
6.1.2.13 Final specifications, including but not linuted to, the following:
6.1.2.13.1 Architecttual. General description of the construction, including interior finishes,
types and locations of acoustical treatment, typical and special floor coverings and
final exterior and interior material selection.
6.1.2.13.2 Mechanical. Description of air conditioning, heatuig and ventilation systems and
controls, ducts, and piping system.
6.1.2.13.3 Electrical. Description of elechical services, including voltage; type and number
of feeders; lighting systems, including lighting levels and audiovisual; security-fire
alarms; and cable antem7a television systems.
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6.1.2.13.6 Site Worlc. General description of the construction, including finishes, types of
materials and locations.
6.1.2.13.7 Other., Such other documents to fix and describe the size, quality and character of
the entire Project, its materials, and such other elements as shall be appropriate.
6.1.2.14 Plumbing drawings, including location and quantity of fixhues, equipment sizes, room sizes
for plumbing equipment, and final specifications as appropriate.
6.1.3 Project Sec~uencii~g. D/B shall determine and establish the sequence of constzrction, and if
appropriate, identify separate bid paclcages to accomplish phased construction of the Project.
6.1.4 Critical Patlz. DB shall prepare a detailed Critical Path Method schedule for all constzction
components of the Project ("Detailed Constriction Schedule") utilizing Microsoft Project sofrivare,
9,~Y3 t -" ~
showing all major milestones, bid dates for the major bid packages, commencement of construction,
sequence of construction, completion of structiu-al elements, and completion of the Proiect, all of
which shall conform with the dates of Substantial Completion and Final Completion of Project.
6.1.5 Goven~r~2ental Review. D/B shall review, as needed, the CD's with the governmental authorities
having jurisdiction over the Project:'
6.1.6 Accounting System: D/B shall provide a master accounting system and matrix on Microsoft Excel that
will be updated, expanded, and provided to the City monthly as the Project develops.
6.1.7 Project Management Pla~z. D/B shall develop and implement a Project Management Plan and
Procedures including:
6.1.7.1 Project stah.rs reports.
6.1.7.2 Coordination/interface with the City and its other consultants/contractors
6.1.73 Initial Design kickoff meeting to be held no later than five (5) working days from the Effective
Date of Agreement.
6.1.7.4 Construction meetings
6.1.7.5 Interface and cornmtmications with other agencies
6.1.7.6 Vendors and subcontractors management
6.1:7.7 Document control
6.1.7.8 Schedule and budget control
6.1.7.9 Quality assurance and quality control. D/B shall establish and maintain a quality control
program with appropriate reviews and independent testing procedures to ensure compliance
with the Construction Documents during the construction phase.
6.6.10 Scheduling and cost control reports, which shall be provided monthly throughout the design
phase. N/A
6.1.8 Construuction Drawings aT~d Specificatio~~s. D/B shall prepare construction drawings and specifications
suitable for obtaining City-approved pernuts and to allow conshuction.
6.1.9 Ciry Approval. D/B shall subrrrit Construction Documents and obtain City approval in writing of the
Construction Documents at seventy percent (70%), and one hundred percent (100%) completion.
6.1.9.1 Condition Precedent. City approval of the Construction Documents is a condition precedent to
authorization to proceed with subsequent work on the Project.
6.1.9.2 Notification, Modification, and Resubmittal. At 70% and 90% Completion, City will notify
D/B in writing within the timeframes established in the Project Schedule following receipt of
Construction Drawings of City approval, or of request for modifications. If modifications are
requested, D/B shall modify and resubmit Construction Drawings for City approval.
6.1.93 D/B Support. D/B shall provide support to a City Constuctability Review Team for the
review of the Constriction Documents at all stages of required subnussion. N/A
6.1.10 Nlateria[s aJUI Ec~uip»ze~xt Sj~ecifications. D/B shall prepare technical materials and equipment
specifications for pre-purchase as necessary.
6.1.11 Surveying and Testing. DB shall coordinate ali surveying, materials testing, and special testing for the
Project at the Project site as required by this Agreement, the State Building Code, or any other law or
regulation, in accordance with and consideruig the following:
6.1.11.1
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6.1.11.2 Existing Conditions. The City shall obtain all necessary soils investigation and conduct
agrononuc testing required for design of the Project. The Soils Consultant shall prepare a
statement that will be included in the Bidding Documents as to the nattue of soils, ground
water conditions and any other information concerning the existing conditions of the site.
6.1.11.3 Utilities. City shall provide all required information for the construction or relocation of
Public or private utility facilities that must be conshucted or relocated as a result of this
Project. D/B shall file all of the required documents for the approval of authorities having
jurisdiction over the Project and in obtaining the services of all utilities required by the
Project
6.1.11.4 GeotecImical Information. City shall obtain all necessary geoteclmical infomtation required
for the design and construction of the Project. The Project Engineering Geologist and/or
Project Soils Engineer (qualified R:C.E. or R.G.E.) shall prepare a statement, that will be
included in the Bidding Documents, to address existing geoteclu7ical conditions of the site
that might affect construction.
6.1.11.5 Additional Surveys. City shall provide additional site surveys and geotechnical investigations
to the extent that DB detern~ines they are necessary for final design.
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6.1.12 Alter7zatives. DB shall evaluate alternative stizicttiral and constriction approaches to enstue
econon-ucal designs, which optinuze constructability, yet meet all codes,.architechual concepts,
schematic designs, and standard specifications of the Project.
6.1. ] 3 Permits. City shall obtauz general builduig pern~it and all ancillary permits and licenses, including but
not limited to, demolition pern-uts, improvement pernuts and grading penluts.
6.1.14 Up~lated Costs. DB shall provide updated constriction cost estimates in conjtruction with the
submittals required in Section 6.1.9 to support Value Engineering ("VE") and constructability reviews.
6.1.15 Filaal Review and.4pproval ofPlares and Specifications. D/B shall deliver to City complete
Construction Documents, including Constnlction Drawings, Flans and Specifications for the design
and construction of the Project. City agrees to review the Constriction Documents and provide City's
written connnents to D/B within five (5) Busuzess Days of the date such Constriction Documents are
delivered to City in accordance with the notice provisions in Article XXVIII. Approval shall not be
uiu-easonably withheld. If requested by City, D/B shall make changes to the Construction Documents.
ARTICLE VII. PHASE III. -CONSTRUCTION PHASE tiVORIC AND SERVICES
7.1 Phase III. Worlc and Services. The DB shall constrict the Project in accordance with City-approved plans
and specifications prepared by the D/B to meet or exceed all regilirements of the City provided progran-i,
schematic design and the performance criteria. The DB shall:
7.1.1 Bidding. D/B shall prepare and submit to the City for review separate bid packages as necessary, such
bid packages shall be organized in the manner that DB determines is appropriate ensure the efficient
and cost effective construction of the Project.
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pree~isled to all--pter~peetit~e bislders. ~!-~ -
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7.1.1.5
7.1.1.6 Equal Opporhmity Contracting/Nondiscrinunation. DB shall not discrinunate on the basis of
race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the
solicitation, selection, hiring or treatment of subcontractors, vendors, or suppliers. D/B shall
provide equal opporh.mity for subcontractors to participate in subcontracting opportunities.
DB understands and agrees that violation of this Subsection shall be considered a material
breach of this Agreement and may result in conhact termination, debarment, or other sanctions.
The language of this Subsection shall be inserted in contracts between DB and any
subcontractors, vendors, or suppliers.
7.1.1.7 Executing Contracts. DB shall be responsible for entering into subcontracts, in DB's own
name, with the bidder who in D/B's discretion and professional opinion best meets the
monetary, tune, and performance requirement of the Project. DB shall be responsible for
ensuring that these contracts fully comply with all applicable local, state and federal laws,
some but not all of which are listed below.
7.1.1.8 ,
7.1.2 Nleeti/zgs. D/B shall conduct meetings identified below:
7.1.2.1 Preconshuction Meeting. D/B shall conduct apse-construction meeting with its officers,
agents and employees and City. The purpose of this meeting is to discuss: (i) the Agreement
conditions, (ii) Scope of Work clarifications, and (iii) City policies, inspection requirements,
and procedures.
7.1.2.1.1 Attendance. DB shall ensure that the pre-construction meeting is attended by D/B's
construction contractor, project manager, all D/B's major subcontractors, the City's
Project Manager, and all other persons necessary as deternzined by D/B or City.
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7.1.2.3 Contractor Meetings. DB shall conduct contractor meetings, as necessary, to provide
technical input.
7.1.2.3.1 D/B shall provide interpretation of technical specifications and drawings.
7.1.2.4 Rescheduling. Progress Meetings may be rescheduled if rescheduled meeting times are
convenient for all necessary parties, and DB has given no less than five (5) Calendar Days
prior written notice of the rescheduled meeting.
7.1.2.5 Minutes. D/B shall take corresponding meeting minutes and distribute copies to all attendees.
7.1.2.6 Reporting. DB shall monitor and report to the City on actual performance compared to the
Project Schedule, provide updated As-Builts, and verify that the latest changes to the Project, if
any, have been made.
7.1.3 Coizst~~c~ction Ma~zage»zent. During constriction of the Project, DB shaIl perform and be responsible
for construction management, supervision, and adnunistration services, including, but not linuted to,
tracking and reporting all expenses and all aspects of the construction and coordinatuzg all construction
means, methods, techniques, sequences and procedures to ensure the efficient and orderly sequence of
the construction of the Project.
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7.1.3.2 Records Management. DB shall implement and maintain an interzzal records management and
document control system as requv:ed to support project operations. The DB shall provide
records management and document control information in a manner consistent with the City's
reporting system.
7.1.33 Cash Flow. DB shall develop aproject-specific Plan for defining, hacking and reporting cash
flow activity requirements aizd submit such plan to the City for review and approval prior to
implementation.
7.1.3.4 Reportuig. D/B shall keep City informed of the progress and quality of the design and
conshuction of the Project.
7.1.3.5 Documents On-Site. DB shall maintain a complete and up-to-date set of Construction
Documents in the Projects field office at all times during constniction that reflect all changes
and modifications:
7.1.3 Site Safety, Security, aTZd Compliance. DB shall be responsible for site safety, security, and
compliance with all related laws and regulations.
7.13.1 Persons. DB shall be fully responsible for the safety and security of its officers, agents, and
employees, City's officers,- agents, and employees, and third parties authorized by D/B to
access the Project site.
7.1.3.2 Envirorunental. D/B shall adrrrinister and enforce the Envirorunental Mitigation Monitoring
and Reporting Plan for the Project, if any. )rr addition, DB shall report environmental issues to
the City in a manner consistent with the City's reporting system. D/B shall Ue responsible For
the environmental consequences of the Project construction and shall comply with all related
laws and regulations, includu1g the Clean Air Act of 1970, the Clean Water Act, Executive
Order number 11T8, and the Stormwater Management and Discharge Control Ordinance No.
0-17988 and any and-all Best Management Practice guidelines and pollution elinunation
requu-ements as maybe established bythe Enforcement Official.
7.1.3.3 Risk of Loss. DB is responsible for the Project, project site, materials, equipment, and all
other incidentals until the Project has been Accepted by the City and shall bear any costs or
expenses associated with the loss thereof or damage thereto, including by theft, fu e, or other
casualties.
7.1.4 Public Right-of--Way. All work, including, materials testing, special testing, and surveying to be
conducted in the Public right-of--way shall be coordinated with the City.
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7.1.4.3 Follow all Laws, Rules, and Regulations. DB agrees to follow all City standards and
regulations while working in the Public right of way, including but not Iirnited to, utilizing
proper traffic control and obtaining necessary permits.
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7.1.5 Traffic Conh•o~l. D/B shall address all traffic control requirements for the Project including, if
necessary, separate traffic control plans and/or notes.
7. l.'? Abatement. D/B shall develop a mutually agreed upon program to abate and nuninuze noise, dust, and
disruption to access for parking and services at all times for adjacent business entities and residences.
7.1.6 Insy~ections. D/B shall coordinate any and all required inspections, including special inspections, in
such a manner that the progress of construction is not affected or impacted. The City shall provide
surveying, and other contracted services as required to complete project construction inspection and
testing tasks. The City will provide inspection, special inspection, reinspection services, and periodic
building inspections.
7.1.7 Perrnits. The Parties acknowledge that the construction work to be performed on the Project by D/B in
compliance with this Agreement is subject to the prior issuance of building, land development, uid/or
public improvement permits paid for and obtained by D/B. In the event that City, or any other
governmental agency, uneasonably refuses to issue the permit(s) necessary to authorize the work to be
performed or if the permit(s) are unreasonably canceled or suspended, then DB is relieved from its
obligation to construct those improvements covered by the denial of said permit(s). City shall, under
such circumstances, pay D/B the reasonable costs, not to exceed the amounts identified in this
Agreement, for all work completed up to the date of denial of said permit(s). All plans, specifications
and improvements completed to the date of the denal, suspension or cancellation of said pernut(s)
shall become the property of City upon D/B's receipt of payment in full as described above.
7.1.8 Maintenance. DB shall ensure Project is maintained in a clean, neat, sanitary and safe condition free
.from accumulation of waste materials or rubbish. Until Acceptance of the Project, D/B shall be
responsible for on-going site maintenance, including any erosion prevention measures. Prior to Final
Completion, D/B shall cause to be removed from and about the Project all tools, constriction
equipment, machinery, surplus materials, waste materials and rubbish and deliver the site to the City in
a clean, neat, sanitary and safe condition.
7.1.8.1 Waste Removal. Please be advised that Chula Vista Municipal Code 8.24.070 provides for an
exclusive franchise for the removal and conveyance of all solid waste for lure (including
recyclables) within City limits.. The exclusive franchise agreement covers any hauling activity
that requires the generator or their agent to pay a fee for any service connected with removing
or conveying waste. The City's franchise hauler is Allied (formerly Pacific) Waste Services
and may be reached at (619) 421-9400.
7.1.9 Request for Information ("IZFI'). Parties acknowledge that the RFI process is solely for.
correspondence between DB and its agents; however, D/B sliall subnut copies of each RFI to City at
the within riventy-four (24) hours of receipt. D/B shall issue responses to RFIs. Unless D/B
specifically requests a City response, City will not respond to RFIs.
7.1.10 Review cznd Approval. DB shall provide timely review and approve shop drawings, samples of
construction materials, product data, schedule submittals, and other submttals for compliance with the
Constriction Documents. DB shall keep the City advised of all such matters being reviewed and
approved by D/B and. forward copies of such documents to City for review.
7.1.11 Royalties and Other Fees. D/B shall pay royalties and license fees, if applicable. D/B shall defend
suits or claims for infringement of patent rights and shall defend and hold City and City's agents
haim-~less from loss on account thereof
7.1.12 Provide City with a Detailed Construction Schedule (DCS) within fourteen (14) worlting days after
receiving Notice to Proceed with Phase III,
ARTICLE VIII. STJBCONTRACTING
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i;.1.1 Design. Services. D/B shall perform or obtain the prior written consent of the City to subcontract all
design services for the Project utilizing qualified, licensed and sufficiently experienced architects,
engineers and other professionals (herein jointly "Design Consultants") as identified in Exhibit "A".
g.12 D/B shall not be pernutted to substitute any Design Consultant unless authorized by City.
g.1.2 Consh-uctiorr. Services. D/B shall perform ail construction on the Project utilizing subcontractors appropriately
licensed by the California Contractors State License Board or other required agency.
ARTICLE IX. PROJECT SCHEDULE
9.1 Proiect Schedule. D/B shall perform and complete flee Services and Work under this Agreement according to
the timeframes set forth in the Project Schedule, attached hereto as Exhibit " A" or a subsequently revised
Project Schedule that is consistent with the Standard of Care identified in Section 4.1.
9.1.1 Project Schedule. DB has submitted, as part of its proposal, a Project Schedule based on its estimate
of the fume and funds necessary to complete the Project.
9.1.2 D/B's Obligatio~z. Subsequent to the effective date of this Agreement, D/B shall provide, coordinate,
revise, and maintain the Project Schedule for all phases of the Project.
9.1.2.1 During the Project initiation and design phases, the D/B shall submit an updated Project
Schedule to City bi-weeldy for approval.
9.1.2.2 During Coiish-uction; DB shall submit an updated Project Schedule bi-weeldy to the City and
shall include:
9.1.2.2.1 Forecast Data with the intended plan for the remainder of the contract dtuation.
9.1.2.2.2 Actual Data with indications of when and how much Work and/or Services was
performed (% complete).
9.1.2.2.3 Logic changes or other changes required to maintain the Project Schedule.
9.1.3 Detail acid Format. The Project Schedule shall be substantially sinular in detail and form to Exhibit A
or it shall be in the form subsequently agreed to by the Parties.
9.1.1 Submittal. Project Schedule shall be subnutted to City as a pdf or Microsoft Excel file.
9.2 Proiect Completion. D/B acknowledges that all work on the Projecttulder tl.is Agreement will be complete
and ready for its intended use by March 30`x' 2012.
9. ; Chanties in Proiect Schedule. Changes in Project Schedule, whether to logic, definition, or 1-elationship must
be brought to the attention of the City inunediately.
ARTICLE X. DELAY IN PERFORMANCE ~~
10.1 Time of Essence. Time is of the essence for this Agreement and each provision of this Agreement, including
the Project Schedule and Start Date contailed herein. DB shall perform all Services and Work as
expeditiously as is consistent with standard of care identified in Section 4.1.
10.2 Notification of Delav. If the DB anticipates or has reason to believe that the performance of Services and/or
Worlc under this Agreement will be delayed, the DB shall immediately notify the.City. A written notice of the
delay must be delivered to the City within five (5) Calendar Days of the initial notification, unless the City
a](ows an additional period of time to ascertain more accurate data in support of the request. The written notice
shall include an explanation of the cause of the delay, a reasonable estimate of the length of the delay, and all
supporting data. The D/B shall include a written statement that the time adjustment requested is the entire time
adjustment to which D/B has reason to believe it is entitled as a result of the cause of the delay. ^ ''
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10.3 Delay. If delays in the performance of Services or Worlc required tinder this Agreement are caused by
unforeseen events beyond the control of the Parties, such delay may entitle the DB to a reasonable extension
of time ^~• ~^ ^~'a~*~^••^' ^^^,^°^°^ti^T. Any such extension of time must be approved in writing by the City.
The following conditions may justify such a delay: war; changes in law or government regulation; labor
disputes; strikes; fu-es, floods, adverse weather or other sinilar condition of the elements necessitating
cessation of the DB's work; inability to obtain materials, equipment, or labor; required additional Professional
Services; or other specific reasons agreed to beriveen the City and the D/B; provided, however, that: {-r} this
provision shall not apply to, and the DB shall not be entitled to an extension of time, additional costs, or
expenses for, a delay caused by the acts or omissions of the DB, its consultants, contractors, employees, or
other agents.; ,
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10.3.1 Caused by City. If DB reasonably believes that any action, inaction, decision or direction by City or
agent for the City will likely result in the GMP or Contract Time being exceeded or the Project being
completed late, D/B will notify City at Project Team meeting and in writing within five (5) calendar
days of discovering such action, iiaction, decision, or direction. Included in such notice will be an
estimate of the cost and time impact resulting from such action, inaction, decision or direction. D/B
shall provide complete and accurate pricing withal ten (10) calendar days of said discovery.
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ARTICLE ZI. PROJECT COSTS
1 1.1 Estimated Cost. The Estimated Cost of Project, according to the Contractor's Estimate One Hundred Fifty
Thousand dollars ($150,000.00) which includes the project contingencyand the D/B's donated labor and
materials.. ~~ ,~- ~ `,
11.1.1 Cost Schedule. The EMP has been allocated among each activity or portion of the Project ("Itemized
Cost(s)"). The Itemized Costs are included in Exhibit "A" attached. The.cost iicw:red by the D/B for
a specific activity or portion of the Project shall not exceed the associated Itemized Cost.
11? EPC.
11.2.1 Not to Exceed AnzourZt. The Established Project Cost (EPC) shall not exceed One Hundred Twenty
Three Thousand, One Hundred Twenty Eight dollars ($123,128.00 ). Any costs incLUred by DB in
excess of said EPC shall be the sole responsibility of the D/B, unless a Change Order is approved by
the City pursuant to Article XII of this Agreement.
11.2.1.1 Included Costs. In calculating the EPC, DB shall include costs of the following:
11.2.1.1.1 Alt Design Consultants, including but not united to architechiral, shlicttu-al, civil,
mechanical, electrical, communications, graphics and art consultants, landscape
architects, and acoustical, audio visual, lighting, and security consultants.
11.2.1.1.2 Estimating, value engineering and construction management.
14 ~'
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11.2.1.13 Conshziction supervision and project management personnel; mcludulg but not
lin>ited to superintendents, Project managers, Project secietaries, Project engineers,
Project accountants, and all other DB personenel wherever located.
11.2.1.1.4 All on-site and off-site equipment, supplies and facilities, including but not lunited
to, computers, estimating, dictating, communication and accounting equipment,
office space, trailers, field equipment and storage facilities.
11.2.1.1.4.1 Option to Purchase. In no case shall the cumulative monthly rental
charges to the Project for equipment and Small Tools used by the D/B exceed 90%
of the. fair market value of any one piece of equipment or Small Tools. At City's
option, the full price for equipment or Small Tools may be paid, and City may take
possession upon completion of the Work.
11.2.1.1.5 All Hard Constlliction Costs.
11.2.1.1.~i DB/ City jointly held Contingency Fund, which shall not exceed $26,$72.00
11.2.1.1.7 Reimbursable Costs.
11.2.1.1.8 ',~
11.2.1.1.9 No more than $25,000.00 for Design Services Pre-paid tlu•ough Heart Foundation
and a Petco Grant.
11.2.1.1.10A11 home-office and field overhead costs of any type including document control
and retention;
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11.2.1.1.12A11 profit D/B intends to earn under this Agreement.
11.2.1.1.13A11 direct and incidental costs incurred by D/B, except for those specifically
identified in this document.
11.2.1.1.14 Not Used.
11.2.1.2 Full Compensation. Unless otherwise expressly provided in this Agreement, EPC shall be the
maximum amount of compensation to due to DB for all pernutted costs of any type incurred
by DB ui performing all services and obligations under this-Agreement.
1 t 2? Itemi_atioiz. D/B shall provide City with an itemization of the. EPC that reconciles the EPC with the
itenuzed costs. The itemization shall include the following:
11.2.1.1 r~~n r.:..~a no,~ rrin
11.2.1.2 Haid Constntction Costs. Hard Construction Costs broken down into categories for each of
the major trades for the Project, which will include labor, material expenses, equipment costs,
and a reasonable D/B Contingency Fund.
11.2.1.3 Not used
11.2.3 Altenzate Bid Items. D/B shall prepare, with the cooperation of the City, alternate bid items to assure
that the cost of the Project will not exceed One Hundred Twenty Tlu-ee Thousand, One Hundred
Twenty Eight dollars ($123,128.00 }.
1 12.4 ~~jefstrnents to EPC Based on Approved Chan.~;e Orders. EPC may be changed, increased or
decreased, based on Change Orders approved pursuant to Article XII.
10.2.5 A~justrnents Based oJn Ot11er Cost Increases. EPC maybe increased due to: (i) acts of God, acts of any
governmental authority, the elements, war, Litigation, shortages of material, labor stripes, inflation,
later commonly accepted or adopted higher standards and specifications of construction, concealed or
unknown conditions encountered in the completion of the Project, or other cause beyond D/B's
control, (ii) actual bids received being greater than estimated, or (iii) other factors not the result of
2 ~ ' - ~-~
uiueasonable conduct by DB. The EPC maybe increased by the amount of such increases; however, if
EPC as proposed to be increased shall exceed the Estimated Costs, such change to EPC shall be subject
to approval by City Cotmcil.
11.3 Duty to Advance Costs. DB shall advance all costs for Project subject to Reimbursement in the maruier
described in Article XV.
1 l.4 Use of Proiect Contin~ency. Project Contingency shall not be used without prior, written City approval and
shall not be used for: (i) work required due to D/B's, its officers', agents' or employees' failure to perform
Worlc a- Services according to the terms of this Agreement, in compliance with the Construction Documents,
and/or Law; or (ii) uninsured losses resulting from the negligence of DB, its officers, agents, or employees.
I l .~ Notification of Increased Costs. If, at any time, the DB anticipates that the amount expended on the Project
will exceed the Estimated Cost, when established, the DB shall inunediately, not more than ten (10) Working
Days from beconung aware of the potential increase, notify the City in writing. This written notification shall
include an ifemized cost estimate and a list of reconunended revisions that the DB believes will bring the
Project cost to within the Estimated Cost. Following the delivery of the Notice, D/B shall assist the City in
reviewing the itenuzed cost breakdown and adjusting the Scope of Worlc and establishing a revised Project, the
cost of which will not exceed the Estimated Cost, once establish.
1 1.5.1 Cite Action. Following consultation with the DB, the City may choose to: (i) approve an increase in
the amount authorized for the Project; (ii) delineate a project, which may be conshlicted for the budget
amount; (iii) any combination of (i) and (ii); or terminate the Project subject to the termination
provisions in Article XXVI.
ARTICLE XII. PRODUCTS
12.1 Submittals. Prior to the bidding process, D/B shall submit for City approval a list of products intended for use
in the Project. Upon DB's completion of plans and specifications, City will review and approve products
specified therein. DB shall provide City a copy of each submittal for City approval tluoughout the duration of
construction within twenty (20) Calendar Days of DB's receipt of submittal. Approval is general approval only
and in no way relieves D/B of its sole responsibilities under this Agreement or any and all laws, codes, pernuts
or regulations.
12.2 Substitutions. DB shall subnut all requests for product substihltions to City in writing within thu-ty (30)
Calendar Days after the date of award of the consri-uction contract. After expiration of the thirty (30) Calendar
Days, City will allow substitution only when a product becomes unavailable due to no fault of D/B's
contractor. City shall review substittrtion requests within thirty (30) Calendar Days of submission of such
requests. D/B agrees that City requires Consultant's input and as such D/B shall coordinate a five (5) Working
Day review by its Consultant.
12.2.1 Substantiate Request. DB shall include with each substihition request complete data substantiating
that the proposed substitution conforms to requirements of the Contract Doctunents.
12.2.2 D/B Representations. By subn~ittuig a substitution request, DB is representing to City all of the
following: (i) D/B has investigated proposed product and deternuned that in alI respect the proposed
product meets or exceeds the specified product; (ii) DB is providing the same warranty for the
proposed product as was available for the specified product; (iii) D/B shall coordinate installation and
make any other necessary modifications which maybe required for work to be complete in all respects;
and (iv) DB shall waive any claims for additional costs related to the substihrted product, unless the
specified product is not commercially available.
12.2.3 Sepa~-ate GV~~itten Request. City will not consider either substitutions that are implied in the product
data submittal without a separate written request or substitutions that will require substantial revision
of constiliction contract doctunents.
12.3 Samples.
11.3. t Postage. Samples shall be sent to D/B's office, carriage prepaid.
16.
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12.3.2 Revie~-v. D/B shall furnish to City for review, prior to purchasing, fabricating; applying or installinv,
(2) two samples (other than field samples) of each required material with the required finish.
12.3.2.1 Where applicable, all samples sf7all be 8" x 10" in size and shall be limited in thiclaless to a
nuiumum consistent with sample analysis. In lieu thereof, the achial fii1l-size item shall be
subnutted.
12.3.22 DB shall assign a submittal number. DB shall include with each subn-ussion a list of all
samples sent, a statement as to the usage of each sample and its location in the Project, the
name of the manufacturer, trade name, style, model, and any other necessary identifying
information. ..
12.3.2.3 All materials, finishes; and worlai~anship in the complete building shall Ue equal in every
respect to that of the reviewed sample.
12.3.2.4 City will retunl one subnutted sample upon completion of City review.
12.3.2.5 DB's, or DB's agent's, field samples shall be prepared at the site. Affected finish work shall
not commence until D/B or its agents have been given a written review of the field samples.
12.3.3 Not a Release of Lictbilit)~. City's review of samples in no way relieves D/B of DB's responsibility for
construction of Project in frill compliance with all Contract Documents.
12.4 Observe Testing. When appropriate, DB shall witness testing and review materials and equipment testing
results and provide continents regarding conformance with specification requirements.
ARTICLE ~1IIi. CHANGE ORDERS
13.I When Required. Change Orders shall be required in the following instances:
13.1.1 EPC. -Any adjustment in EPC.
13.1.2 Contract Tinge. Any adjustment in Conhact Tulle of Completion Date.
13.1.3 Use of Contingency Fund. At any time DB seeks to use the Contingency Fund, irrespective of impact
on the EPC or Conhact Time.
13.1.4 City Requests. The City directs DB to perform Additional Services.
li.1.5 Other. Any other instance for which this Agreement expresses that a Change Order shall be used.
13.2 Process for Approval of Change Orders. Within five (5) Calendar Days of 2ny event that gives rise to the
need for a Change Order, the DB shall provide the City with written notice of the need for the same. The
Change Order must indicate whether the change will affect, in any way, by increasing or decreasing, the EPC,
Project Schedule, or project quality established during the design and submittal review process. In addition, it
shall be accompanied by a detailed and complete estimate of cost impact associated with the Change Order,
including all appropriate direct and indirect costs and credits. All such costs and credits shall be accurately
categorized into DB Fixed Fee, Reimbiusable Costs or Hard Construction Costs. D/B shall also provide City
~i~ith a realistic estimate of the impact, if any, the Change Order will have on the Contract Time.
13.2.1. Project Nlrcnager Approval. If the Change Order request does not result in an increase in the Estimated
Cost, the City's_Project Manager shall either approve or reject the Change Order in writing within ten
(10) Working Days of receiving D/B's written notice, provided D/B has submitted complete
documentation substantiating the need for such Change Order. If City fails to respond to D/B's written
notice within the ten (10) Working Days, the Change Order request shall be deemed denied.
li.2.2 City Council Approval. For Change Orders not subject to section 12.2.1, City Council approval is
required for an increase in the GMP. The City Council may either approve, reject, or approve in part
such Change Orders. Council Approval shall not be subject to the ten (10) Working Day response time
provided for in section 12.3.1.
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13.3 Written Approval of Change Orders. DB shall not proceed on work requested under a Change Order,
absent written approval front the appropriate authority. Any Services or Worlc, which require t he approval of
a Change Order, perform by D/B prior to approval shall not be reimbursed.
13.4 Failw-e to Agree on Cost of Change Order or Time. In the event there is any disagreement or dispute
between the Parties as to whether the DB is entitled to a Change Order, the amount of the Change Order or
any increase in Conhact Time requested tlu•ough the Change Order, the dispute shall be resolved by the
Director of Public Services. If the determination of the Director of Public Works is challenged, such challenge
shall be address in the manner identified in Section 29.17. DB shall not have the right to stop or delay in the
prosecution of any services or work, including services or work that is the subject of the Change Order (if
duected by the City), pending the determination of the Director of Public Services or, if applicable, final
resolution. Instead, DB shall continue diligently prosecuting all such services and work.
13.4 Full Compensation. Payment to DB for Change Orders shall provide full compensation for all equipment,
materials, labor, field and home office overhead, mark-ups, and profit necessary to complete the work By
executing a Change Order, the D/B or D/B's representative acknowledges that no additional compensation or
claims for items of work listed u1 the Change Order will be allowed.
13.5 En•ors and Omissions. D/B shall not be reimbursed for any costs or expenses of a Change Order resulting
from a design error or omission, D/B's negligence, or the negligence of any of D/B's agents or subagents. D/B
shall be reimbursed for any costs or expenses of a Change Order resulting from a design error or omission that
is the direct result of a City request for such design or omission. The City reserves the right to seek
reimbursements for any funds used due to errors or omissions of the Design Consultants, D/B's negligence, or
the negligence of any of D/B's agents, or subcontractors.
13.6 City Refusal to Approve Change Order. DB shall not have the right to terminate this Agreement for the
City's refusal to approve a Change Order pursuant to Sections 12.2.1or and 12.2.3
ARTICLE XIV. EXTRA WORK
14.1 City Authorih~ to Order Extra Work. City may at any time prior to Project Completion order Extra Work
on the Project. The sum of all Extra Work ordered shall not exceed five percent (5%) of the EPC, without
invalidating this Agreement and without notice to any surety.
14.1:1 Requests in Writing. All requests for Extra Work shall be in writing, shall be treated as, and are
subject to the same requirements as Change Orders. DB shall not be responsible for failure to perform
Extra Work, which was requested in a manner inconsistent with this section.
14.2 Bonds Required for Extra Work. D/B's and its agents' bonds, required under Article XXXIII, shall cover
any Extra Work provided that the Extra Work is paid for by the Project Budget
14.3 Reimbursement for Extra Worlc. Work performed by DB as Extra Work is reimbursable in the same
mamler described iu Article XV. The Project contingency as described in Article X, will be used first to cover
the costs of Extra Work.
14.4 ll~[arlcup. D/B will be paid a reasonable allowance for overhead and profit for Extra Work. The allowance
shall not exceed five percent (5%) of the approved costs for the Extra Worlc.
ARTICLE XV. CHANGED CONDITIONS
15.1 Changed Conditions. Changed Conditions shall be addressed under the Greenbooh section 3-4; however,
Parties acknowledge that even if Changed Condirions are found to be present, the Project shall not exceed the
GMP without express City Cotmcil approval of an increase to the Project Budget. Absent such express
approval of additional funds, DB shall provide City with value engineering and Parties will rettu-n Project to
within the total Project cost.
ARTICLE XVI. PAYMENT TERMS
16.1 Payment
16.1.1 Fcuicls fo~° Prryme~at. D/B shall only be entitled to payment for Services and Worlc performed under this
Agreement from the fiords appropriated for the Project.
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16.1.3 N(axi~num Payment. D/B shall be entitled to payment in an amount not to exceed the EPC or
subsequently approved increase in EPC. DB i not entitled to pa}nnent for unapproved expenses,
unapproved increases in costs, or other increases caused by D/B negligence, omissions, or failure to
seek approval for additional or increased costs.
16.1.5 ,~pplicatiorc for Pcryi~zent . DB shall submit to City a certificate and application for payment on or
before the 5`'' day of each calendar month ("Payment Application"}. The Payment Application shall be
based upon the percentage of completion of the Schedule of Values plus any Reimbursable Costs, less
any payments previously made by the City incurred or advanced for the Project for which D/B was
has not previously received payment. The Payment Application must include aI1 relevant documents
in accordance with Section 15.1.6. If the City deternunes that all relevant documents have not been
submitted, City shall request that DB provide additional documentation. D/B shall provide additional
documentation within ten (10) Working Days of request. City is not obligated to make payment to D/B
until City has received all relevant documentation to support Reimbursement Request. After all
appropriate cost documentation has been received and City approves the Payment Application, City
shall make payment to D/B of all uncontested charges within sixty (60) Calendar Days of receipt of a
complete Payment Application.
16.1.5.1 Witl~llolding. From each payment, ten percent (5%) will be deducted and retained by the
City, and the remainder will be paid in accordance with the terms and conditions of this
Agreement. No payment made to D/B or its sureties will constitute a waiver of any rights the
City has under this Agreement. This section is not intended to limit any rights the City may
have under the Performance or Payment Bond. In lieu of witl~l~olding retention under this
Agreement, at the election of D/B, City will deposit retention amounts into escrow and/or the
substitution of securities for money as provided in California Public Contract Code Section
22300.
16.1.5.2 Payment of Withholding. The City will pay the DB for the amounts withheld forty-five (45)
Calendar Days fiom recordation of the Notice of Completion, providing that no Stop Notices
or Mechanic's Liens have been filed since the recordation of the Notice of Completion.
16.1.5.2.1 Where a Stop Notice or Mechanic's Lien has been filed following the recordation of
the Notice of Completion, the amount in controversy shall continue to be witl-illeld
until a fully executed release of Stop Notice or Mechanic's Lien has been filed and
a conformed copy delivered to the City.
16.1.5.3 Contested Charges. In the event City contests any charges contained in the Payment
Application, the dispute shall be resolved iu the manner identified in Section 21.6. D/B shah
not have the right to stop or delay in the prosecution or any Services of Work, pending the
determination of the Director of Public Services or, if applicable, final resolution. Instead
DB shall continue to diligently prosecute all Worlc and Services. During the time of the
dispute, the Ciry shall withhold the amount of the charge in question.
16.1.5.3 Cutoff for Subnussion of Reimbursement Requests. D/B shall submit all Reimbursement
Requests within six (6) months of the date on which Final Completion occurs and City
accepts the Project. Any Reimbursement Request submitted after the Cutoff Date shall not be
reviewed or included in Reimbursable Cost.
16.1.6 Verific~ctiora of Reimbursement Request. DB shall supply documentation to support the
Reimbursement Request including, but not limited to, proof that all mechanic liens have been released,
copies of invoices received and copies of cancelled checks, substihtte checks, or image replacement
doctuments showing that payment has been made in connection with the Reimbursement Request in the
following maiuier:
16.1.6.1 D/B shall submit rivo (2) copies of a Reimbursement Request (cover letter, invoice, and
documentation) to the City.
16.1.6.2 After review and approval, the City shall prepare a memorandum to the Financing
Department that the invoice is appropriate to pay. The memorandum shall indicate any costs
to be disallowed and the reason for the disallowance.
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16.1.6.3 Prior to the approval of the Reimbursement Request, City has the right to verify whether or
not the materials and work for which reimbursement is being requested have been installed
and performed as represented in the Reimbursement Request.
16.1.~Nort.-reimbcasable Costs. Except to the extent that City expressly assumes the risk of loss under this
Agreement, City shall exclude from the amounts payable to DB the fair value, as deternuned by City, of
property that is destroyed, lost, stolen, or damaged rendering it undeliverable or unusable for City. In addition,
DB is not entitled to reimbursement for any cost or expendihire that has not been approved by the City in the
maiu~er required by this Agreement or the City Charter and ntles, regulations, or laws promulgated there-
under.
ARTICLE XVII. INSPECTION
17. f Inspection Team. The Project shall be inspected by a team composed of, at a minimum, the following: i.)
representatives of the City, ii.) representative from D/B's Design Team, iii.) the Construction Manager, and
iv. Representative, (iii) D/B's Consultant(s), and (e) the D/B's construction superintendent [Inspection Team]
172 Inspection StaEes. The Project shall be inspected by the Inspection Team at nunimum during the following
stages: (i) when required by code, (ii.)
17. ; Access. City, its consultants, subcontractors, independent testing laboratories as well as other governmental
agencies with jurisdictional interests will have access at reasonable times for this observation, inspecting and
testing. D/B shall provide them proper and safe conditions for such access and advise them of D/B's safety
procedures and programs so that they may comply.
17.4 Additional Inspections. City will make, or have made, such inspections and tests, as the City deems
necessary to see that the Work is being accomplished in accordance with the requirements of the Construction.
17.5 Notice. D/B shall give City timely notice of readiness of the Work for all required on and off-site inspections,
tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or
tests. DB shall give at least 24 hours notice for on-site uispection and five (5) days notice for off-site
inspection.
17.6 Costs of Inspection. Unless otherwise specified, the cost of inspection and testing will be borne by the City.
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17.7 Concealing Worlc. Prior to concealing work, DB shall obtain approval of work from the City and as required
by all State Building Codes. City has the right to stop or suspend Work activities which will conceal or cover
up DB Work product which is to be inspected or tested, or which will interfere with the inspection or testing
activities, for a reasonable time and DB will have no right to additional cost or time it may uicur as a result of
the Work stoppage.
17.E Defective Work. In the event such inspections or tests reveal non-compliance with the requirements of the
Construction Documents or defective work, the provisions and process of Article XXI shall apply.
17.9 Not a Waiver of Obligations. Neither observations by the City nor inspections, tests, or approvals by City or
others shall relieve D/B from DB's obligations to perform the Work in accordance with the Construction
Documents. This approval is general approval only and in no way relieves DB of its sole responsibilities under
this Agreement or any and all laws, codes, pernuts or regulations.
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XVIII. PROJECT COMPLETION
18.1 Notice to City. When D/B deternunes that the Project is complete, D/B shall notify the City in writing of the
Projects status within seven (7) Calendar Days of the D/B's determination. The notice shall certify to City that
the Project has been completed uz accordance with the Constriction Documents, all applicable building codes
and regulations, all permits, Licenses, and certificates of inspection, use and occupancy, and ordinances relating
to the Project.
18.2 \1~all:-Through Inspection. A preliminary WaIlc-Tluough Inspection shall be conducted by City witlun ten
(10) Working Days following D/B's notice to City of completion ("Walk-Through Inspection"). The Wall:-
Tluough Inspection will be conducted by the Inspection Team identified in Article XVI, Section 16.1.
18.2.1 Punch List. A Punch List, if necessary, shall be prepared by City during the Walk-Tluough Inspection.
The Punch List shall be presented to D/B by the Engineer of Record within tlu•ee (3) Working Days of
the Walk-Through Inspection. D/B shall correct the items listed on the Punch List within tlurty (30)
Calendar Days of receipt of the punch list and prior to the Final Inspection.
18.2.2 Failacre to identify Items. As to any items not included on the Punch List or later discovered, nothing
in this section is intended to limit D/B's obligations under this Agreement and City will maintain all
remedies available under this Agreement and the law.
18.3 Equipment Demonstration. Prior to final inspection, D/B shall demonstrate to City the operation of each
system in the Project, and instrict City personnel in operation, adjustment and maintenance of equipment and
systems, using the operation and maintenance data.
183.1 Startup. The DB shall supervise, manage, and coordinate all project startup and testing activities for
mechanical systems witlun the provisions of the project Contract Documents.
183.2 Reporting. The DB shall report progress of project startup and testing to the City in a manner
consistent with the City's reporting system.
18.4 Final Lspeetion. Provided D/B has corrected the Punch List items and notified the City of the correction
("Notice of Correction"), the Final Inspection for the Project shall be scheduled and conducted within ninety
(90) Calendar Days of the Notice of Correction.
XIX. PROJECT ACCEPTANCE AND FINAL COMPLETION
19.1 Acceptance. Upon approval by the Inspection Team during the Final Inspection that Project improvements are
complete and that work required on the Punch List has been finished, .City shall accept die Project
("Acceptance"). Upon Acceptance, D/B shall do all of the following:
19.1.1 Notice of Completion. City shall execute and file a Notice of Completion with the County Recorder of
San Diego County and shall provide the RE with a conformed copy of the recorded Notice of
Completion.
19.1.2 Lien and Material Releases. D/B shall cause all contractors and subcontractors to provide lien and
material releases as to the Project and provide copies of such lien and material releases to the City or,
upon.approval of City which shall not be unreasonably withheld, provide bonds in lieu of lien and
material releases uz a form reasonably acceptable to City for all such work.
19.2 Final Completion.. Final Completion of the Project shall be deemed to occur on the last date of the following
events: {i} recordation of the Notice of Completion with a conformed copy to City; (ii) submission of all
documents required to be supplied by D/B to City pursuant to this Agreement, including As-Built Drawings,
warranties, and operatnig and maintenance manuals; or issuance of a final certificate of occupancy.
19.2.1 ,4s-Builts•. City will evaluate the subnutted As-Builts for accuracy and completeness and may rehun
comments. D/B shall meet with City turtil all issues are resolved. Upon issue resolution, in
accordance with disputed work procedures in Section 21.6, D/B shall subnut a CD, mylar set and
tluee (3) final blueline sets of As-Builts stamped by the architect/engineer of record as required by
law.
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19.2 No Waiver. DB's obligation to perform and complete the work in accordance with the Contract Documents
shall be absolute. Neither reconuizendation of any progress payment or acceptance ofwork, nor any payment
by City to DB under the Contract Documents, nor any use or occupancy of the Project or any part thereof by
City, nor any act of acceptance by City, nor any failure to do act, nor any review of a shop drawing or sample
submittal, will constitute an acceptance of work, which is not in accordance with the Contract Documents.
ARTICLE XIX. PROJECT DELIVERABLES
20.1 Project Deliverables. Prior to Acceptance, DB shall deliver all of the following to the City in the format
required:
20.1.1 As-Builts•. D/B shall provide As-Builts.
20.1.1.1 As-Builts shall show by dimension accurate to within one (1) rich, the centerline of each run
of conduits and circuits, piping, ducts, and other sinular items as determined by City, both
concealed and visible. D/B shall clearly identify the item by accurate note such as "cast iron
drain," galvanized water, etc. D/B shall clearly show, by symbol or note, the vertical location
of the item ("under slab", "in ceiling", "exposed", etc.), and make all identification
sufficiently descriptive that it maybe related reliably to the specification. DB shall
thoroughly coordinate all changes on the As-Builts making adequate and proper entries on
each page of specifications and each sheet of drawings and other documents where entry is
requi•ed to properly show the change.
20.1.1.2 D/B shall include all of the following on the As-Builts:
20.1.10.2.1Depth of foundation iZ relation to finished first floor.
20.1.10.2.2Horizontal and vertical locations of undergrotmd utilities and appurtenances,
with references to permanent surface improvements.
20.1.10.2.3Locations of internal utilities and appurtenances, with references to visible and
accessible features of the stnict<ue.
20.1.10.2.4Field changes of dimensions and details.
20.1.10.2.SChanges authorized by approved proposal requests, construction Change Orders,
discussion with City that resulted it any change/deviation from City's program,
specifications, approved plans, equipment or materials.
20.1.102.6Details not issued with original Construction Drawings, desigli/build plans
deferred approvals, etc.
20.1.10.2.7Upon completion of work, obtain signature of licensed surveyor or civil engineer
on the Project record set verifying layout information.
20.1.10.2.8Show locations of all utilities on-site with size, and type of pipe, if different than
specified, and invert elevations of pipe at major grade and alignment changes.
20.1.10.2.9The title "PROTECT RECORD" in 3/S" letters.
20.1.10.3 DB shall maintain a set of As-Builts at the Project site for reference. D/B shall ensure that
changes to the As-Builts are made within twenty-four (24) hours after obtaining information.
Changes shall be made with erasable colored pencil (not ink or indelible pencil), shall clearly
describe the change by note (note in ink, colored pencil or rubber stamp) and by graphic line,
shall indicate the date of entry, shall circle the area or areas affected and, in the event of
overlapping changes, use different colors for each change.
20.1.11 Operation and Maintenance Manuals. DB shall submit all Operation and Maintenance manuals
prepared in the following manner:
20.1.11.1 In triplicate, bound in 8'/z x 11 inch (216 x 279 mm) three-ring size binders with durable
plastic covers prior to City's Final Inspection.
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20.1.11.2 A separate volume for each system, including but not linuted to, mechanical, electrical, .
plumbing, roofing, irrigation, and any other system as determined by City, with a table of
contents. and index tabs in each volume as follows:
20.1.11.2.1Part 1: Directory, listing names, addresses, and telephone numbers of DB's
agents, suppliers, manufachirers, and installers.
20.1.11.2.2Part 2: Operation and Maintenance Instructions, arranged by specification
division or system. For each specification division or system, provide names,
addresses and telephone numbers of D/B's agents, suppliers, manufacturers, and
installers. In addition, list the following: (i) appropriate design criteria; (ii) list of
equipment; (iii) parts List; (iv) operating instnictions;(v) maintenance instructions,
equipment; (vi) maintenance instructions, finishes; (vii) shop drawings and
product data; and (viii) warranties.
202 Ownership of Project Deliverables. Upon Final Completion or Termination, Project Deliverables shall
become the property of the City. D/B and City mutually agree that the Conhact documents for the Project
shall not be used on any other work without-the consent of each Party. Assemble and deliver to City upon
Final Completion all records, documents, warranties, bonds, guarantees, maintenance/ service conhacts, and
maintenance aucl operating manuals
ARTICLE Y~I. WARRANTIES
2l . I Warranties Required: DB shall provide and require its agents to provide the warranties listed below. This
warranty requirement is not intended to exclude, and shall-not exclude, other implicit or explicit warranties or
guarantees required or implied by law.
21.1.1 Nlrtterials a~ul Workmanship. DB shall guarantee, and shall require its agents to guarantee, all work
on the Project against defective workmanship and materials furnished by DB for a period of two (7}
years from the date of Project's Final Completion. D/B shall replace or repair any such defective wort:
in a manner satisfactory to City, after notice to do so from City, and witlun the time specified in the
notice.
21.1.2 New Nlcatericlls and Equipment. D/B shall wan ant and guarantee, and shall require its agents to
warrant and guarantee, to City that all materials and equipment incorporated into the Project are new
unless otherwise specified.
21.1:3 Design., Constn~ction, cnad Other Defects. DB shall warrant and guarantee, and shall require its agents
to warrant and guarantee to City that all work is in accordance with the Plans and Specifications and is
not defective in any way in design, construction or otherwise...
21.2 Form and Content. Except manufacturer's standard printed warranties, all warranties shall be on D/B's and
D/B's agent's, material supplier's, installer's or manufacturer's own letterhead, addressed to City. All
warranties shall be subnutted in the format specified in this section, modified as approved by City to suit the
conditions pertaining to the warranty.
21.2.1 Durclhle Binder. Obtain warranties, executed in triplicate by D/B, D/B's agents, installers, and
manufacturers. Provide Table of Contents and assemble in binder with durable plastic cover.
21.2.2 Table of Contents. All warranties shall be listed and typewritten in the sequence of the Table of
Contents of the Project manual, with each item identified with the number and title of the specification
section in which specified, and the name of product or work item.
21.2.3 Index Tabs. Separate each warranty with index tab sheets keyed to the Table of Contents listing.
21.2.4 Detail. Provide fiill information, using separate typewritten sheets, as necessary. List D/B's agents,
installer, and manufacturer, with name, address and telephone number of responsible principal.
21.2.E Yarranty Start Date. Except for items put into use with DB's permission with date nnitually agreed
upon in writing, leave date of begiruling of rime of warranty open until the date of Final Completion.
21.2.6 Signature and Notarisation. All warranties shall be signed and notarized. Signatures shall be required
from D/B's construction contractor and where appropriate, the responsible subconhactor.
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21.3 Term of Warranties. Unless otheLtivise specified or provided by law, warranties shall extend for a term of
two (2) year(s) from the date of Final Completion.
21.3.1 , ,
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21.4 Meetings. During the two (2) year warranty period described in Section 20.3, D/B shall meet, and Shall
require its design Consultant, construction contractor, and lcey subconh•actors to meet, with the City
representatives, on a monthly basis, if requested by City. This meeting shall be held to discuss and resolve any
problems that City discovers in design, constniction, or furnishing, fixtures, and equipment of the Project
dLn"ing the two (2) year warranty period.
21.E Warranty Inspection. At 180 and 360 days following Final Completion, during the one-year general building
warranty period, D/B shall inspect each component of the Project, identify items requiring repair, and oversee
and complete such repairs. Findings of such inspections shall be reported to the City.
ARTICLE XXII. DEFECTIVE WORK
22.1 Correction, Removal, or Replacement. If within the designated warranty period, or such additional period as
may be required by law or regulation, the Project is discovered to contain Defective Work, the D/B shall
promptly and in accordance with the City's written instructions and within the reasonable time limits stated
therein, either correct the Defective Work, or if it has been rejected by City, remove it from the site and replace
it with non-defective and conforming work.
22.2 City's Right to Correct. If circumstances warrant, including but not limited to an emergency or D/6's failure
to adhere to section 21.1, City may correct, remove, or replace the Defective Worlc. In such circumstances,
D/B shall not recover costs associated with the Defective Work and shall reimburse the City for all City's
costs, whether direct or indirect, associated with the correction or removal and replacement.
22. ~ Non-Reimbursable Costs. All costs incurred by D/B or D/B's agents to remedy defects are non-reimbursable
costs. If the City has already reimbursed the D/B for the defective work, City is entitled to an appropriate
decrease in Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against D/B's
bond if D/B has been paid in frill.
22.4 Extension of Warranty. When Defective Worlc, or damage therefrom, has been corrected, removed, or
replaced during the warranty period, the two (2) year, or relevant warranty period, will be extended for an
additional hvo (2) years from the date of the satisfactory completion of the correction, removal, or replacement.
22.5 No Limitation on other Remedies. Exercise of the remedies for defects pursuant to this Article shall not limit
the remedies City may pursue under this A~ Bement or law.
22.6 Disr~utes. If D/B and City are unable to reach agreement on disputed work, City may direct D/B to proceed
with the work and compensate D/B for undisputed amounts. Payment of disputed amounts shall be as later
determined by the Director of Public Services. If this decision is constested, the claims procedure in 29.17
shall be followed. D/B shall maintaii and keep all records relating to disputed work for aperiod of t1u-ee (3)
years in accordance with Article XXVII.
ARTICLE XXIII. MAINTENANCE OF LANDSCAPING & IRRIGATION WORD
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ARTICLE YXIV. BONDS
24.1 Payment Bond. D/B shall provide or require its Construction Contractor to provide City with a Payment
(material and labor) Bond in favor of City for one hundred percent (100%) of the Hard Constri.lction Costs.
24.2 Performance Bond. D/B shall provide or require its Construction Contractor,to provide City with a Faithful
Performance Bond u1 favor of the City for one hundred percent (100%) of the EPC.
24.3 Term. The Payment Bond shall remain in fiill force and effect at least until the Project is accepted by the City
and all claims for materials and Labor are paid, for a nunimum of forty-five (45) Calendar Days after the filing
of the Notice of Completion, except as otherwise provided by law or regulation. The Performance Bond shalt
remain in full force for thirty (30) Calendar Days following the filu1g date of the Notice of Completion and
Acceptance, at which time it will convert to a ten percent (10%) warranty bond, which shall remain in place
until the end of all warranty periods set forth in tlus Agreement.
24.4 Certificate of Agencv. All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
24.5 Licensing and Rating. The bonds shall be duly executed by responsible surety companies admitted to do
business in the State of California, licensed or authorized in the jurisdiction in which the project is located to.
issue bonds for the limits required by this agreement, listed as approved by the United States Department of
Treasury Circular 570, and whose underwriting limitation is sufficient to issue bonds in the amount required by
this agreement and which also satisfy the requirements stated in Section 995.660. of the Code of Civil
Procedure, except as provided otherwise by laws or regulations, secured through an authorized agent with an
office in California, and have a minimum AM Best rating of"A-".
24.6 Form. All bonds shall be in the form prescribed by City Attorney.
24.6 Insolvency or Banla•uptey. If the surety on any bond furnished by the Construction Contractor is declared
bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the
Project is located, D/B shall within seven (7) Calendar Days thereafter substit<ite or require the substitution of
another bond and surety, acceptable to the City.
ARTICLE YXV. INDEMNITY & DUTY TO DEFEND
25.1 Indemnity Defense and Hold Harmless -General Requirement. Except foi liability for Professional
Services covered under Section 24.2, D/B shall defend, indenmify, protect and hold harmless the City, its
elected and appointed officers and employees, from and against any and all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury, in ijaw or equity, to property or persons, including wrongful
death, in any manner arising out of or incident to any alleged acts, omissions, negligence, Or W(llful n115CO11C1UCt
of DlB, its officials, officers, employees, agents, and contractors, arising out of or in connection with the
performance of the Defined Services or this Agreement. This indenuzity provision does not include any
claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the
sole negligence or sole willfill misconduct of the City, its officers, employees. Also covered is liability arising
from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of
the City, its agents, officers, or employees which maybe in combination with the active or passive negligent
acts or omissions of the D/B, its employees, agents or officers, or any third party. y
25.2 Professional Services. For those professionals who are required to be licensed by the state (e.g. architects,
landscape architects, surveyors and engineers) ("Design Professionals"); Design Professionals shall de Pend,
indenliiify and hold the City, its officials, officers, employees, vohmteers,.and agents free and harmless from
any and all claims, deriiands, causes of action, costs, expenses, liability, loss, damage or injury, in law or
equity, to property or persons, including wrongfiil death, in any mamler arising out of, pertaining to, or relating
to any negligence, errors or omissions, recklessness, or willfill misconduct of Design Professional, its officials,
officers, employees, agents, D/Bs, gild contractors arising out of or in connection with the performance of the
Design Professional's Services. Also covered is liability arising from, connected with, caused by, or claimed to
be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees
which maybe in combination with the active or passive negligent acts or omissions of the Design Professional,
its employees, agents or officers, or any third party. The Design Professional's duty to indemnify, protect and
hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willfill
misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the
Design Professional's obligation and duties under this Agreement.
25.3 Indemnification for Liens and Stop Notices. The D/B shall keep the Project and Property fi•ee of any
mechanic's liens and immediately secure the release of any stop notices. The D/B shall defend, indenulify,
protect, and hold ham-iless, the City, its agents, officers and employees from and against any and all liability,
claims, costs, and damages, including but not lin-lited to, attorney fees, arising fi~om or attributable to a failure
to pay claimants. D/B shall be responsible for payment of-all persons entitled to assert liens and stop notices.
25.4 Indenuiitication for Hazardous Materials. D/B agrees to defend, indenmify, and hold harmless, the City, its
agents, officers and employees from and against any and all costs, damages, claims, and liabilities, including
reasonable attorney fees, foreseeable or tulforeseeable, directly or uidirectly, arising from or related to the
Hazardous Materials identified ui the Phase I or Phase II Reports, if any, conducted pursuant xo Article V.
D/B's indemnity shall survive the close of escrow. Seller expressly preserves its rights against other parties
and does not release, or waive its rights to contribution against, any other party.
25.5 Costs of Defense and Award. Included in the obligations in Sections 24. I through 24.4, above, is the D/B's
obligation to defend, at D/B's own cost, expense and risk, any and all aforesaid suits, actions or other legal
proceedings of every kind that maybe brought or instituted against the City, its directors, officials, officers,
emp]oyees, agents and/or volunteers. D/B shall pay and satisfy any judgment, award or decree that maybe
rendered agau7st City or its directors, officials, officers, employees, agents and/or volunteers, for any and all
legal expense and cost incurred by each of them in connection therewith.
25.6 Llsw•ance Proceeds. D/B's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received. by the City, its directors, officials, officers, employees, agents, and/or voll,uiteers.
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2~.7 Enforcement Costs. D/B agr.ees to pay any and all costs City incurs enforcing the indemnity and defense
provisions set forth in this Article XXIV.
25.8Survival, Consultant's obligations under this Article XXIV shall survive the termination
of this Agreement._ ARTICLE XXVI. INSURANCE
26.1 General D/B shall not begin work under this Agreement until it has: ('t) obtained, and upon the City's request
provided to the City, insurance certificates reflecting evidence of all insurance requjred in section 25.2; (ii)
obtained City approval of each company or companies; and (iii) confirmed that all policies contain the specific
provisions required by section 25.4.
26.2 Types of Insurance. At all times during the term of this Agreement, D/B shall maintain insurance coverage as
follows:
26.2.1 Commercial Ceneral Liability. Contractor shall provide at its expense a policy or policies of
Commercial General Liability [CGL] Instuance written on an ISO Occurrence form CG 00 01 07 9~ or
an equivalent form providing coverage at least as broad and which shall cover liability arising from
prenvses and operations, XCU (explosions, underground, and collapse) independent contractors,
products/completed operations, personal injury and advertising injury, bodily injury, property damage,
and liability assumed under an insured's contract (including the tort liability of another assumed in a
business contract). There shall be no endorsement or modification of the CGL Instuance limiting the
scope of coverage for either "insured vs. insured" claims or contractual liability. Contractor shall
maintain the same or equivalent CGL Insurance as described herein for at least ten (10) years
following substantial completion of the work. All costs of defense. shall be outside the policy limits.
The Policy shall provide for coverage in amounts not less than two nullion dollars {$2,000,000) per
occurrence for Bodily Injury, Personal Injury, or Property Damage. If Connnercial General Liability
Instuance or other form with a general aggregate limit shall apply separately to this projecdlocation,
the general aggregate limit shall be twice the required occurrence limit.
26.2.2 Commercial Automobile Liabilit3~. For all of D/B's automobiles used in conjunction with the Project
including owned, hired and non-owned automobiles, DB shall keep in full force and effect, a policy or
policies of Coirmzercial Automobile Liability Insurance written on an ISO form CA 00 O 1 12 90 or a
later version of this form or equivalent form providing coverage at least as broad in the amount of one
million dollars ($1,000,000) combined single limit per occurrence, covering bodily injtuy aid property
damage for owned, non-owned and hired automobiles ["Ariy Auto"]. All costs of defense shall be
outside the policy.
26.2.3 Arc%itects and Engineers Professional Liability. For all of D/B's employees who are subject to this
Agreement, D/B shall keep in full force and effect, or D/B shall require that its architect/engineer(s) of
record keep u1 fii11 force and effect errors and omissions insurance providing coverage for professional
liability with a combined single linut of one million dollars ($1,000,000) per claim and two nvllion
dollars ($2,000,000) annual aggregate. DB shall ensure both that (i) this policy retroactive date is on
or before the date of commencement of the Project; and (ii) this policy has a reporting period of three
(3) years after the date of completion or termination of this Agreement. D/B agrees that for the time
period defined above, there will be no changes or endorsements to the policy that increases the City's
exposure to loss.
26.2.4 Excess Liability. DB shall provide Excess Liability Insurance affording three million dollars
($3,000,000) [Generally Check with Risk) in excess of General Liability and Employer's Liability
linuts afforded on primary policies. The coverage will be subject to the same terms, conditions, and
exclusions found in the primary policies.
26.2.5 Contractors Pollution Liability. If the DB or its Contractors' Work includes cleanup, removal,
storage, or otherwise handluzg of hazardous or toxic chemicals, materials, substances, or any other
pollutants, Contractor shall provide at their expense Contractors Pollution Liability Insurance
appropriate to cover such activities in an amount not less than $3,000,000 Combined Single Limit per
occurrence/aggregate for bodily injtuy, property damage and remediation.
26.2.5.1 Claims made policies will include a five (5) year Extended Clauns Discovery Period
applicable to this Agreement, if reasonably available.
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26.2.5.2 The policy for this insurance shall include Contractual Liability covetage. Such policy shall
be endorsed to specifically provide for Work peifotnzed'under the Agreement.
262.5.3 The D/B or its Contractors of any tier shall fiunish to the City a policy or Certificate of
Contractors Pollution Liability Insurance in which the City, its elected and appointed
officers, employees, and agents, and the D/B are named as additional insureds: The policy or
Certificate must plainly designate the name of the Project, name of the Disposal -Site, and
the permits secured for its disposal. This Certificate must be furnished to the City,
evidencing compliance with the outlined requirements, prior to the D/B or Contractor
beginning thew Work on the Project. Any failure to fiunish this policy or Certificate of
Insurance shall not relieve the DB or Contractor from their obligations under tlus Section.
26.2.6 Kaun•dous Ti•cuzsporters Pollution LiaUilit~~. If the DB's or its contractors' Worlc includes
hansportation of hazardous or toxic chemicals, materials, substances or any other pollutants the D/Q
or its Conri-actor of any tier shall provide, at their expense, Transporters Pollution Liability Insurance
in an amount not less than $3,000,000 Combined Single Limit per occurrence/Aggregate for bodily
injury, property damage and remediation.
26.2.6.1 Claims Made policies will include a five (5) year Extended Claims Discovery Period
applicable to this Agreement, if reasonably available.
26.2.6.2 Such po.iicy shall be endorsed to specifically provide coverage for Work performed under
this Agreement. The D/B or its contractors of any tier shall fiu•nish the City with a policy or
Certificate of Hazardous Transporters Pollution Liability Insurance in which the City, its
elected and appointed officers and employees, and agerts, the D/B, and any upper tiered
contractor are named additional uzsureds.
26.2.6.3 The policy or Certificate must plainly designate the name of the Project, name of the
Disposal Site, and the pernuts secured for its disposal. This Certitcate must be fuurnished to
the City, evidencing compliance with the outlined requirements, prior to the D/B or
Contractor begiruiing their Work on the Project. Any failure to fiunish tlus policy or
Certificate of Insuuance shall not relieve the DB or Contractor from their obligations under
this Section.
26.2.7 Y~or/cer's Cornpef~satior~. For all of D/B's employees who are subject to this Agreement and to the
extent required by the State of California, D/B shall keep in full force and effect, a Workers'
Compensation Insurance and Employers' Liability Insurance to protect D/B against all claims under
applicable state workers' compensation laws. The City, its elected oftici~nls, and employees will not be
responsible for any claims in law or equity occasioned by the failure of the D/B to comply with the
requirements of this section. That policy shall provide at least the statutory muumums of one nullion
($1,000,000) for Bodily Injury by Accident for each accident, one nullion dollars ($1,000,000) for
Bodily Injury by Disease each employee, and a one nullion dollars ($1,000,000) for Bodily Injury by
Disease policy limit.
26.2.7.1 Prior to the execution of the Agreement by the City, the D/B shall file the following signed
certification:
"I aim aware of the provisions of Section 3700 of the Labor Code which requires 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 I will comply with such
provisions before commencing the performance of the work of the Contract."
26.2.1; Builcler's Risk. the City shall provide a policy of "all risk" Builders Risk (nsuranceCity shall add its
respective elected officials, officers, employees, agents, and representatives to the policy as loss
payees, to the extent such insurance is corruzlercially available. Coverage will be provided for the
Replacement Cost of Materials, Equipment and Fixtures destined to become a permanent part of the
struchu-e, and coverage will include Property in Transit and Property in Offsite Storage. D/B shall also
add its construction contractor, and the construction contractor's subcontractors to the policy as
additional named insureds or loss payees, to the extent then interest may appear. The linut for this
policy shall be a minimum of $ One Hundred Twenty Tluee Thousand, One Hundred Twenty Eight
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dollars ($123,128.00) (GMP dollar amount to reflect project soft and hard costs). It shall be D/B's
responsibility to bear the expense of any deductible. The Builders Risk coverage shall expire at the
time such insured property is occupied by City, or a Notice of Completion is filed, whichever occurs
first. Contractor and its Subcontractors will be solely responsible for any loss or damage to their
personal property, including contractor's tools and equipment owned, used, leased or rented by the
Contractor or Subcontractor.
26.3 Rating Requirements. Except for State Compensation Insurance Fund, all insurance required by express
provision of this Agreement shall be carried only by responsible insurance companies that have been given at
least an "A" or "A-" and "V" rating by AM BEST, that are authorized by the California Insurance
Commissioner to do business in the State of Califonua, and that have been approved by the City.
26.3.1 Non-Admitted Carriers. The City will accept insurance provided by non-admitted, "surplus lines"
carriers only if the carrier is authorized to do business in the State of California and is included on the
List of Eligible Suzplus Lines Insurers [LESLI list] with a current AM BEST rating of no less than
A:X.
26.4 Endorsements Required. Each policy required under Article XXV, section 25.2 of this Agreement shall
expressly provide, and an endorsement shall be submitted to the City, that:
26.4.1 Additional Insureds. Except as to Architects and/or Engineers professional liability insurance and
Workers Compensation, the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be named as additional insureds.
26.4.1.1 Corrunercial General Liability. The policy or policies iriust be endorsed to include as an
Additional Insured the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives. Liability Additional Insw-ed Endorsement must be
provided on ISO form CG 2010 (11/85) or equivalent, specifically, coverage afforded City
must be Primary and must not exclude Completed Operations. The coverage for Projects for
which the Engineer's Estimate is one million dollars ($1,000,000) or more shall include
liability arising out of: (i) Ongoing operations performed D/B or on D/B's behalf, (ii) D/B's
products, (iii) D/B's work, including but not limited to completed operations performed by
D/B or on D/B's behalf, or (iv) premises owned, leased, controlled, or used by D/B; the
coverage for Projects for which the Engineer's Estimate is less than one million dollars
($1,000,000) shall include liability arising out of: (i) Ongoing operations performed by D/B
or on D/B's behalf, (ii) D/B's products, work, including but not linuted to completed
operations performed by D/B or on D/B's behalf, or (iii) premises owned, leased, controlled,
or used by you; Except that in comnection with, collateral to, or affecting any conshl~ction
contract to which the provisions of subdivision (b) of Section 2782 of the California Civil
Code apply, these endorsements shall not provide any duty of indenulity coverage for the
active negligence of the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives in any case where an agreement to indemnify the City
of Chula Vista and its respective elected officials, officers, employees, agents, and
representatives would be invalid under subdivision (b) of Section 2782 of the California
Civil Code. In any case where a claim or,loss encompasses the negligence of the Insured and
the active negligence of the City of City of Chula Vista and its respective elected officials,
officers, employees, agents, and representatives that is not covered because of California
Insurance Code Section 11580.04, the hisurer's obligation to the City of San Chula Vista anc(
its respective elected officials, officers, employees, agents, and representatives shall be
limited to obligations permitted by California Insurance Code Section 11580.04.
26.4.1.1 Connnercial Automobile Liability Insurance. Unless the policy or policies of Commercial
Auto Liability Insurance are written on an ISO form CA 00 O 1 12 90 or a later version of this
form or equivalent form providing coverage at least as broad, the policy or policies must be
endorsed to include as an Additional Insured the City of Chula Vista and its respective elected
officials, officers, employees, agents, and representatives, with respect to liability arising out
of automobiles owned, Leased, hired or borrowed by or on behalf of the Contractor; Except
that in connection with, collateral to, or affecting any construction contract to which the
provisions of subdivision (b) of Section 2782 of the California Civil Code apply, this
~~~ (~~~
endorsement shall not provide any duty of indemnity coverage for the active negligence of the
City of Chula Vista and its respective elected officials, officers, employees, agents, and
representatives in any case where an agreement to indemnify the City of Chula Vista and its
respective elected officials, officers, employees, agents, and representatives would be invalid
under subdivision (b) of Section 2782 of the California Civil Code. In any case where a claim
or loss encompasses the negligence of the Insured and the active negligence of the City of
Chula Vista and its respective elected officials, officers, employees, agents, and
representatives that is not covered because of California Insurance Code Section 11580.04,
the insurer's obligation to the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be limited to obligations pernutted by California
Insurance Code Section 11580.04.
26.4.2 Primacy cued Non-Co~xtriUuto~y. The policies are primary and non-contributing to any insurance or
self-insurance that maybe carried by the City of Chula Vista, its elected officials, officers, employees,
agents, and representatives with respect to operations, including the completed operations if
appropriate, of the Named Insured. Any insurance maintained by the City of Chula Vista and its
elected officials, officers, employees, agents, and representatives shall be in excess of D/B's insurance
and shall not contribute to it.
26.4.3 GJ~arl~er of SuU~rogatioi~. Consultant's insurer will provide a Waiver of Subrogation in favor of the City
for each required policy providing coverage for the term required by this Agreement..
26.4.4 Project General Aggregate Lin2it. The CGL policy or policies must be endorsed to provide a
Designated Construction Project General Aggregate Linut that will apply only to the Work performed
under this Agreement. Claims payments not arising from the Work shall not reduce the Designated
Construction Project General Aggregate Limit. The Designated Construction Project General
Aggregate Linut shall be in addition to the aggregate limit provided for the products-completed
operations hazard.
26.4.5 G~ritteix Notice. Except as provided for under California law, the policies caimot be canceled, non-
renewed or materially changed except after thirty (30) Calendar Days prior written notice by D/B to
the City by certified mail, as reflected in an endorsement which shall be subnutted to the City, except
for non-payment of prenuum, in which case ten (10) Calendar Days notice shall be provided.
25.4.3.1 The words "will endeavor" and "but failure to mail such notice shall impose no obligation or
liability of any kind upon the company, its agents, or representatives" shall be deleted from
all certificates.
26.4.6 Additional Insurance. D/B may obtain additional insurance not required by t1-~is Agreement.
26.4.7 Prior to Starting Worlc. Before perfornung any work, D/B shall provide the City with all Certificates
of Insurance accompanied by all endorsements.
26.5 Subcontractors. All coverages for subcontractors or subconsultants shall be subject to all of the requirements
stated herein. Subcontractors and subconsultants shall be protected against risk of loss by maintainin~-
insurance in the categories and at the luzuts required herein. Subcontractors .and subconsultants shall name
City and D/B as additional uisureds under its policies.
26.6 Obligation to Provide Documents. The DB shall provide copies of documents including but not linutec( to
certificates of insurance and endorsements, and shall furnish renewal documentation prior to expiration of
insurance. Each required document shall be signed by the insurer or a person authorized by the insurer to bind
coverage on its behalf. The City reserves the right to require complete, certified copies of all uzsurance policies
required herein.
26.6.1 Cooperation. The D/B and its Contractors shall cooperate fully with and provide any information or
records requested by the City or regarding all aspects of the insurance and project, including but not
Iinuted to claims, audit, payroll, uzsurance records and safety. Delays in reporting information to the
-City may result in delays in progress payments to the D/B.
26.7 Deductibles/Self Insured Retentions. All deductibles and self-insurance retentions on any policy shall be the
responsibility of D/B. Deductibles and self-insurance retentions shall be disclosed to and approved by the City
~~
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at the time the evidence of insurance is provided. At the option of the City, either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and
volunteers; or the D/B shall provide a financial guarantee satisfactory to the City guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
26.8 Policy Changes. DB shall not modify any policy or endorsement thereto which increases the City.'s exposure
to loss for the duration of this Agreement.
26.9 Reservation of Rights. The City reserves the right, from time to time, to review the Contractor's insurance
coverage, limits, deductible acid self-insured retentions to determine if they are acceptable to the City. The City
will reimburse the Contractor for the cost of the additional prenuum for any coverage requested by the City in
excess of that required. by this Agreement without overhead, profit, or any other marlnip.
26.10 Not a Limitation of Other Obligations. Insurance provisions under this section shall not be construed to
limit the D/B's obligations under this Agreement, including Indemnity.
26.11 A'Iaterial Breach. Failure to maintain, renew, or provide evidence of renewal during the term of this
Agreement may be treated by the City as a material breach of contract.
ARTICLE XXVII. TERMINATION/SUSPENSION OF WORK
27.1 Suspension of ~Vorlc for Archaeological and/or Paleontological Discoveries. If a discovery is made of an
archaeological or paleontological interest, D/B shah inunediately cease operations in the area of the discovery
and shall not continue until ordered by City. When resumed, operations within the area of the discovery shall
be as directed by City:'
27.1.1 Discoveries which maybe encountered may include, but are not be linuted to, dwelling sites, stone
implements or other artifacts, animal bones, human bones, fossils or any item with culhu•al
significance.
27.12 D/B shall be entitled to an extension of time and compensation in accordance with the provisions of
this Agreement.
27.2 Termination of Agreement by City for Cause. If, through any cause, D/B shalI fail to fiilfill ui a timely and
proper manner D/B's obligations under this Agreement, or if D/B shall violate any of the covenants,
conditions, agreements or stipulations of this Agreement, City shall have the right to ternunate this Agreement
by giving written notice to D/B of such termination and specifying the effective date thereof at Ieast five (5)
Calendar Days before the effective date of such termnation.
27.3 Termination or Suspension for Convenience by City. City may ternunate ~r suspend this Agreement at any
time and for any reason, by giving specific written notice to D/B of such ten-nination or suspension and
specifying the effective date thereof, at least seven (7) Calendar Days before the effective date of such
suspension or termination. In the event of an emergency, advance notice shall not be required under this
provision.
27.4. Termination of Agreement by D/B. D/B may terminate the Agreement upon ten {10) days written notice to
City, whenever either of the following occur:
27.4.1 Project Suspe~zsion. If the Project has been suspended under the provisions of Section 26.1 or 26.3, :for
more than ninety {90) consecutive days tluough no fault or negligence of D/B, and notice to resume
Work or to ternunate the Agreement has not been received from City within this time period; or,
27.4.2 Failure to Pay Amounts Due a~zd Not in Dispute. If City fails to pay D/B any moiues due and not in
dispute in accordance with the ten-ns of this Agreement widen ninety {90) Calendar Days, plus the tei7
(10) Calendar Days afforded the City to remedy the failure, after presentation to City by D/B of a
request therefore.
27.E D/B Action Required. Upon receipt of the Notice of Ternunation, DB shall take any and all action that may
be necessary, or that the City Manager may direct, for the protection and preservation of the property related to
this Agreement that is in the possession of D/B and in which City has or may acquire an interest.
~ ~
27.6 Possession, Ownership, and Control of Documents. In the event that this Agreement is terminated in
accordance with Sections 262 tlu-ough 26.4, all finished or unfinished documents, data, studies, drawings,
maps, plans, specifications, reports and other materials prepared by D/B, or any of its agents, Design
Consultants or Subcontractors, shall, at the option of the City, become the sole and exclusive property of the
City.
27.7 City Right to Complete Project. In the event that the Agreement is teiniinated pursuant to this Article XXVI,
City may take possession of the Project and may complete the Project by whatever method or means City may
select.
27.7.1 E,ecess Costs. In the event that the costs to complete the Project exceed the balance of funds, 4vhich
had the Project been completed in accordance with this Agreement would have been due, the D/B shall
be .liable for and pay such excess costs to the City.
27.8 Payment to D/B Due to Termination. Upon tennnination, D/B shall be entitled to receive just and equitable
compensation for satisfactory Work completed. In no event shall such amount exceed the total dollar amount
authorized by City, reduced by the amount of payments previously made and any deductions pernnitted herein.
The fair and reasonable amount shall be determined in good faith by City considering the following:
27.8.1 The price for completed services accepted, including any retention, by City not previously paid.
27.8.2 The costs incurred in the perfornzance of the Project ternnated, including initial costs and preparatory
expense allocable thereto. These costs are only for Work completed and accepted by the City based on
an audit of all Contractors' bills of materials and the timecards for Work actually performed.
27.8.3 ~ r'.
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27.8.4 D/B and Design Subcontractor services through the date of termination based on achial time spent as
documented on timecards. Expenses shall be paid based on invoice and receipts provided by D/B.
27.8.5 Any amounts for Work or Services agreed to by the City Manager and DB, but without duplication of
any amounts agreed to above.
27.8.6 Reasonable demobilization costs, to the effective date of such termination.
27.8.7 If termination occurs during Phase I, II, or III, DB shall only be entitled to the. Fees for Phases I, II, or
III, associated therewith, or the respective portion thereof.
27.9 Lost Profits. Under no circtunstances will D/B be entitled to any consideration for lost profit or lost
oppornuiity costs.
27.10 Deductions. The amount due DB shall be reduced by amounts including the following:
27.10.1 Any claim that City has against DB under this Agreement.
27.10.2 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by D/B or
sold under the provisions of this clause and not recovered by or credited to City.
27.10.3 Damages caused by D/B's breach, including Excess Costs pursuant to Section 26.7.1.
27.10.4 Property Destroyed, Lost, Stolen or Damaged. Except to the extent that City expressly assumed the
risk of loss, the City Manager shall exclude from the amounts payable to D/B, the fair value, as
determined by the City Manager, of property that is destroyed, lost, stolen, or damaged so as to
become undeliverable to City.
27.11Disputes. If DB does not agree that the amount determined by the City Manager is fair and reasonable. D/B
shall within thirty (30) Calendar Days of receipt of payment, shall gives notice of such disagreement to City.
The dispute shall be resolved in the manner provide for in Section 21.6.
27.12 Waiver of Claims. In the event of termination under this Article XXVI, failure of DB to dispute amounts
paid in the manner and within the timeframe provided in Section 26.11 shall act as a waiver of any and all
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claims for damages or compensation arising tinder this Agreement for any and all Work and Services
performed under this Agreement up to the effective date of Notice of Termination. D7B hereby expressly
aclazowledges and agrees that such claims shall be waived as herein provided.
27. l 3RiQhts of City Preserved. In the event that the Agreement has been terminated, the ternunation shall not
affect any rights or remedies of City against DB then existing or which may thereafter accrue. Any retention
or payment of moneys due D/B by City will not release DB from liability. It is agreed that ternunation
hereafter will not in any way release, waiver, or abridge any rights the City has against D/B's performance
bond surety.
ARTICLE XVIII. RECORDS AND AUDITS
28.1 Record Svstem - Reimburseable Costs. DB shall develop and maintain an accurate system for tracking all
Reimbursable Costs. Utilizing this system, D/B shall include with each month,payment application an
itemization of all such Reimbtusable Costs actually incuured by D/B, during the previous month.. If requested
by the City, D/B shall provide all backup documentation supporting such Reimbursable Costs.
28.2 12ecord Svstem -Hard Construction Costs. DB shall develop and maintain an accurate system for tracking
all Hard Construction Costs it incurs on the Project. Utilizing this system, D/B shah include with each
monthly application for payment an itemization of all Hard Conshuction Costs actually incurred by DB during
the previous month.
28.3 Retention of Records. DB, contractors, and subconhactors shall maintain data and records related to this
Agreement for a period of not less than tluee (3) years following receipt of final payment under this Agreement
or three (3) years following final settlement associated with the termination of this Agreement pursuant to
Article XXVI, above.
28.2 Auclit of Records. At any time during normal business hours, during the term of the contract plus and record
retention period and as often as the City deems necessary, D/B and any or all Contractors or subcontractors
shall make available to the City for examination at reasonable locations within the City/County of San Diego
all of the data and records with respect to all matters covered by tlus Agreement. DB and all contractors or
subcontractors will permit the City to make audits of all invoices, materials, payrolls, records of persomzel, and
other data and media relating to all matters covered by this Agreement. If records are not made available \vithin
the City/County of San Diego, then D/B shall pay all the City's travel related costs to audit the records
associated with this Agreement at the location where the records are maintained. Such costs will not be
Reimbursable Costs.
28.2.1 Costs. DB and DB's agents shall allow City to audit and exanune books, records, documents, and any
and all evidence and accounting procedures and practices that City determines are necessary to
discover and verify all costs of whatever narirre, which are claimed to have been incurred, anticipated
to be incurred, or for which a claim for additional compensation or for Extra Work have been
submitted under this Agreement.
ARTICLE XXIX. NOTICES
29. ] ~VritinQ. Any demand upon or notice required or permitted to be given by one Party to the other Party shall be
in writing.
29.2 Effective Date. Except u1 relation to Change Orders as provided for ui section 28.4 or as otherwise provided
by law, any demand upon or notice required or perntted to be given by one Party to the other Party shall be
effective: (i) on personal delivery, (ii) on the second business day after mailing by certified or registered U.S.
Mail, return receipt requested, (iii) on the succeeding business day after mailing by Express Mail or after
deposit with a private delivery service of general use (e.g., Federal Express) postage or fee prepaid as
appropriate, or (iv} upon successful transmission of facsimile.
29.3 Recipients. Except in relation to Change Orders, all demands or notices required or permitted to be given
shall be sent to all of the following:
29.3.1 Gordon Day, Builduig Project Manager, Engineering Division, City of Chula Vista
29.3.2 Tonnny Ruiz, Project Manager, Echo Pacific Inc
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29.4 Recipients oC Change Orders.
29.4.1 Gordon Day, Building Project Manager, Engineering Division, City of Chula Vista
29.4.2 Tonuny Ruiz, Project Manager, Echo Pacific Inc
29.E Change of Address(es). Notice of change of address shall be given in the mamler set forth in this Article.
ARTICLE X<YX. MISCELLANEOUS PROVISIONS
30.1 Headings. All article headings are for convenience only and shall not affect the interpretation of this
Agreement.
30.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter gender includes the
masculine and the feminine genders and (ii) the singular number includes the plural number.
30.3 Reference to Paragraphs. Each reference in this Agreement to a section refers, unless otherwise stated, to a
section in this Agreement.
30.4 Incorporation of Recitals. All recitals herein are incorporated 'alto this Agreement and are made a part
hereof.
3 0.~ Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on
the part of the City or the Consultant, shall be deemed to be both covenants and conditions.
30.6 Integration. This Agreement and the Exhibits and references incorporated 'unto this Agreement fully express
all understandings of the Parties concerning the matters covered in this Agreement. No change,, alteration, or
modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their
officers, agents, or employees shall be valid unless made in the form of a written change agreed to in writing
by both Parties or an amendment to this Agreement agreed to by both Parties. All prior negotiations and
agreements are merged into this Agreement.
30.7 Severabilih~. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not
render any any other provision of this Agreement unenforceable, invalid, or illegal.
30.5 Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by
counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether
or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility
of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the
extent to which each Party participated in the draftuZg of the Agreement.
30.9 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this
Agreement and the Exhibits, the main body of this Agreement shall contl•o1. If a conflict exists between an
applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule,
regulation, order, or code shall control. Varying degrees of stringency among the main body of this
Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most
stringent requirement shall control. Each Party shall notify the other iiYUnediately upon the identification of
any apparent conflict or inconsistency concerning this Agreement.
30.10 Prompt Performance. Tune is of the essence of each covenant and condition set forth in this Agreement.
30.11 Good Faith Performance. The parties shall cooperate with each other in good faith, and assist each other in
the performance of the provisions of this Agreement.
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30.12 Further Assurances. City and DB each agree to execute and deliver such additional documents as may be
required to effectuate the purposes of this Agreement. `~
30.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by this reference:
Exhibit A - Schedule of Values & Project Schedule
30.1 ~ Compliance with Controlling Law. The Consultant shall comply with all laws, ordinances, regulations, and
policiesof the federal, state, and local goverrunents applicable to this Agreement, including California Labor
Code section 1720 as amended in 2000 relating to the payment of prevailing wages during the design and
preconstructionphgses of a project, including inspection and land surveying work. In addition, the Consultant
shall comply immediately with all directives issued by the City or its authorized representatives under
authority of any laws, statutes, orduiances, rules, or regulations. The laws of the State of California shall
govern and control the terms and conditions of this Agreement.
30.15 Jurisdiction, Venue, and Attornev Fees. The venue for any suit or proceeding concerning this Agreement,
the interpretation or application of any of its terms, or any related disputes shall be in the County of San
Diego, State of California. The prevailing Party in any such suit or proceeding shall be entitled to a
reasonable award of attorney fees in addition to airy other award made in such suit or proceeding.
30.16 Municipal Potivers..Nothing contained in this Agreement shall be construed as a limitation upon the powers
of the City as a chartered city of the State of California.
30.17 Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arisin~~ out
of this agreement, against the City unless a claim has first been presented in writula and filed with the City
and acted upon by the City in accordance with tlZe proceduues set forth in Chapter 1.34 of the Chula Vista
Municipal Code, as same may fiom time to time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and procedures used by the City in the implementation
of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
30.1 ~ Third Party Relationships. Nothing in tlus Agreement shall create a conhachlal relationship between City
and any third party; however, the Parties understand and agree that City, to the extent permitted by law, is an
intended third party beneficiary of all DB's contracts, purchase orders and other conhacts between D/B and
third party services. DB shall incorporate this provision into its contracts, supply agreements and purchase
orders. -.
30.19 Non-Assignment. Tlie D/B shall not assign the obligations under this Agreement, whether by express
assignment or by sale of the company, nor any monies due or to become due, without the City's prior written
approval. Any assignment in violation of this paragraph shall constitute a Default and is grounds for
immediate ternination of this Agreement, at the sole discretion of the City. In no event shall any putative
assignment create a contractual relationship between the City and any putative assignee.
30.20 Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in
force and effect whether or not any Parties to the Agreement have been succeeded by another entity, and all
rights and obligations created by this Agreement shall be vested and binding on any Party's successor in
interest.
30.21 Independent Contractors. The D/B, any consultants, contractors, subcontractors, and any other individuals
employed by the D/B shall be independent contractors and not agents of the City. Any provisions of this
Agreement that may appear to give the City any right to direct the D/B concerning the details of perfornvng
the Services under this Agreement, or to exercise any control over such performance, shall mean only that the
D/B shall follow the direction of the City concerning the end results of the perforn~ance:
30.22 Approval. Where the consent or approval of a party is required or necessary under this Agreement, the
consent or approval shall not be uru•easonably withheld.
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30.23 lYo Waiver. No failure of either the City or the Consultant to uzsist upon the strict performance by the other
of any covenant, term or condition of this Agreement, nor any failure. to exercise any right or remedy
consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of
any such breach of such covenant, term or condition. No waiver of any breach shall affect oi• alter this
Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to
any existing or subsequent breach.
30.24 Signing Authority. The representative for each Party signing on behalf of a corporation, partnership, joint
venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the
corporation, partnership, joint venhue, or entity and agrees to hold the other Party or Parties hereto harmless
if it is later deternuned that such authority does not exist.
IN WITNESS WHEREOF, this Agreement the City of Chula Vista and Echo Pacific Inc., have executed this
Agreement thereby iiidicatiug that they have read and understood same, and indicate their frill and complete consent
to its terms.
This Agreement is dated
Agreement.
B y:
Its:
Echo Pacific Construction Inc
2011 and this date shall constitute the effective date of this
By:
CHULA VISTA,
A Municipal Corporation
Approved as to form and legality:
Dated
2011.
By:
Glen Googins, City Attorney
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