HomeMy WebLinkAbout2012/03/13 Item 12CITY COUNCIL
AGENDA STATEMENT
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3/13/12, Item (a"Z'
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A $195,673.00 DESIGN BUILD
AGREEMENT WITH ALPHA MECHANICAL FOR THE
"NORMAN PARK SENIOR CENTER VAC SYSTEM RETROFIT
PROJECT" (GG219)
SUBMITTED BY: DIRECTOR OF PUB I WORKS
REVIEWED BY: CITY MANAGE
ASSISTANT CITY ANAGER ~ j
4/STHS VOTE: YES ~ NO
SUMMARY
The Norman Park Senior Center encompasses approximately 17,000 square feet of conditioned
heating and cooling space. The building's current HVAC system, which is comprised of (7)
rooftop package units, (14) Variable Air Volume air-mixing boxes, and a Direct Digital Control
System, have all been in operation since 1992 and have far surpassed their service life
expectancies of approximately 15 years. As such, the "Norman Park Senior Center HVAC
System Retrofit Project" will replace the outdated equipment with high efficiency components
generating over $4,000 in annual energy cost savings. The $195,673 project will be fully funded
through federal Energy Efficiency & Conservation Block Grants.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance with the
California Environmental Quality Act (CEQA) and has determined that the activity qualifies for
a Class 1 categorical exemption pursuant to Section 15301 [Existing Facilities] of the State
CEQA Guidelines because the activity consists of repair and replacement of existing HVAC
mechanical equipment involving negligible or no expansion of an existing use. Thus, no
further CEQA environmental review is necessary. Additionally, because the proposed project
will be utilizing federal Energy Efficiency & Conservation Block Grants, the Development
Services Director has reviewed the project proposal for compliance with the National
Environmental Policy Act (NEPA) as implemented by the U.S. Department of Energy
(DOE) Procedures (lOCFR 1021). The Development Services Director concurs with the DOE
determination that the project proposal qualifies for a Categorical Exclusion pursuant to Code of
Federal Regulations (CFR) Title 10, Appendix B to Subpart D of Part 1021, B1.4
[Installation/modification of air conditioning systems for existing equipment]. Thus, no further
NEPA environmental review or determination is necessary.
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3/13/12, Item
Page 2 of 3
RECOMMENDATION
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
City staff has strived over the years to pursue an aggressive preventative maintenance program
for municipal facilities, including the Norman Park Senior Center's heating, ventilation, and air
conditioning (HVAC) system. However, the Senior Center's HVAC system, which was installed
in March 1992, is no longer functioning effectively and has far surpassed its expected 15-year
useful life. The City has had to perform expensive system repairs over the last few years totaling
over $20,000 to ensure its continued operation. As part of the Council-approved FY12 Capital
Improvement Program, staff has proposed to replace the existing HVAC system, comprised of
(7) rooftop package units, (14) Variable Air Volume air-mixing boxes, and the Direct Digital
Control System, with new, more efficient equipment. In addition to saving approximately
32,000 kWh of energy annually, the new system will allow the building's temperatures to be
better regulated helping to ensure a healthier and more comfortable environment for seniors and
other occupants.
This facilities improvement project is part of the City's broader efforts to promote energy
efficiency at municipal sites and to lower citywide greenhouse gas or "carbon" emissions. The
San Diego Gas & Electric (SDG&E)/California Public Utilities Commission Local Government
Partnership Program has provided financial support for City staff to evaluate, identify, and
coordinate the installation of these energy retrofit projects. Because Partnership funds are not
able to be used for capital costs associated with the improvements, staff has worked to secure
other funding to support the installation of energy efficiency and renewable energy equipment.
As such, the Norman Park Senior Center HVAC System Retrofit Project will be fully funded
through federal Energy Efficiency & Conservation Block Grants.
To perform the HVAC upgrade, the following companies were contacted: Emcor Service/Mesa
Energy Systems, Alpha Mechanical, Lake Mechanical, and Advantage Air. Only two proposals
were received from Emcor/Mesa Energy Systems and Alpha Mechanical. Following interviews
of the two respondents, Alpha Mechanical was selected as the best respondent based on design,
monetary, and time criteria for the project. As part of Alpha Mechanical's Design Builder (D/B)
proposal, a preliminary cost estimate was submitted in the amount of $195,673.00 (includes City
contingency). Following the City's approval of 90% Construction Documents, Alpha
Mechanical will submit a "Not to exceed the Gross Maximum Price" for which the project shall
be designed and constructed.
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 which is the subject of this action.
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3/13/12, Item
Page 3 of 3
CURRENT YEAR FISCAL IMPACT
There is no net, negative impact to the General Fund. The contract amount and costs for
implementing the energy efficiency upgrade project will be funded through federal Energy
Efficiency & Conservation Block Grants. City staff time managing the project will be supported
through the SDG&E Local Government Partnership, which is funded by California utility
ratepayers under the auspices of the California Public Utilities Commission.
FUNDS REQUIRED FOR PROJECT
A. Contractor Amount -Alpha Mechanical
B. City Contingencies $186,355.00
$9,318.00
TOTAL FUNDS REQUIRED FOR CONSTRUCTION $195,673.00
FUNDS AVAILABLE FOR PROJECT
A. Energy Efficiency & Conservation Block Grants $195,673.00
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $195,673.00
ONGOING FISCAL IMPACT
The Ciry's General Fund would realize approximately $4,000 in future energy cost savings
annually. These cost savings will increase as utility rates increase every few years and as
maintenance costs are avoided.
ATTACHMENTS
Exhibit A -Design Build Agreement with Alpha Mechanical
Prepared by: Gordon Day, Building Project Manager, Public Works -Engineering
Brendan Reed, Environmental Resource Manager, Public Works -Conservation Section
H:IPUBLICWORKSIAGENDAICAS20I2103-13-121NormanParkHVAC CAS FINAL.docx
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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
Dated: 8 ~ Z-
DESIGN BUILD AGREEMENT
FOR NORMAN PARK CENTER HVAC SYSTEM RETROFIT
BETWEEN
THE CITY OF CHULA VISTA, AND
ALPHA MECHANICAL, INC.
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DESIGN BUILD AGREEMENT FOR
Norman Park Center HVAC System Retrofit
THIS Agreement shall be for the design and construction the Norman Park Ceuter HVAC System Retrofit apd the O
payment of permitted costs therefore ("Agreement"). This Agreement is made and entered into this ~arLh tiJ,.~~px
by and between THE CITY OF CHULA VISTA, a municipal corporation ("City"), and Alpha Mechanical Inc, a
California Corporation ("Design Builder or D/B"). City and D/B, when referenced herein, may be referred ro
individually as "Party" and collectively as "Parties.° This Agreement is entered into with reference [o the following
facts:
RECITALS
1. The Chula Vista Norman Park Senior Center located at 270F Street is an important location for seniors to
gather and obtain information and services. The second story of the facility is leased by vendors who provide
goods and services to the elderly in our community. The existing HVAC system far the leased office space is
interconnected with the HVAC system for the entire building, therefore the main system cools or heats the
entire building as required for the leased offices.
2. By installing a completely new variable frequency drive chiller urrit, new control systern upgrade and rerouting
of [he supply and return air ducting system for the leased office spaces the City will save 42.3529 KWH per
year, a cost savings of $ 4,133.00 annually.
3. .As paR of that effort, on May 9, 2011 ,the Departtnent of Public Works, Engineering Division, issued a
Request for Proposal (RFP), pursuant to § 2.57 of the City's Municipal Cade, to design and consnvct
replacement stmctures ("Project") to qualified Design-Build firms off the Priority List.
4. The following companies were contacted: Encore /Mesa Mechanical, Alpha Mechanical Inc, Lake
Mechanical and Advantage Air.
5. Following interviews of four (4) respondents, Alpha Mechanical was selected as the respondent who best met
the design, monetary, and time criteria of the project with whom City could negotiate an agreement.
6. As part of D/B's proposal, D/B submitted a "Not to exceed Grass Maximum Price" of the Project in the
amount of $ 195,673.00 ("Estimated Cost"/"EC").
7. Following City's approval of 90% Construction Documents ("CD"), D/B shall subtni[ a guaranteed maximum
price ("GMP'~, not to exceed the Gross Maximum Price, for which the Project shall be designed and
constructed.
8. D/B shall complete the Project, as a public improvetnent, according to plans and specifications approved by
City, for an amount not to exceed the GMP.
NOW THEREFORE, in consideration of the recitals, mutual obligations of the Parties, the covenants and conditions
herein, and for other good and valuable, the sufficiency of which is hereby acknowledge, [he 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 ]tas beets finished.
As-Builts: Project Record Documents [hat 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 shall be performed by the City representative designated by the
Agreement.
City Council: The City Council of the City of Chula Vista.
City's Project Administration Costs: Charges that City incurs to: (i) administer the acquisitimt of the Property,
(ii) review and approve the plans and specifications for the project improvements, and (iii) inspect She project
improvements during constmction, until completion and Acceptance of the Project.
Contract Documents: Including, but not limited to: Contract Addenda, Notice Inviting Bids, Instructions to
Bidders, Bid (including documentation accompanying Bid and any post-bid documentation submitted prior to
Notice of Award), the Bonds, the general conditions, permits 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 permitted under this Agreement for DB 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.
Design Build Team (DBT): Those individuals designated as being a part of the Design Build Team.
Estimated Cost: The total cost of the Project as estimated in preliminary cost estimates as shown iu Exhibit 5\.
Extra Work: Any City additions, modifications, or deletions to work or D/B obligations under this Agreement not
within the original Scope of Work comemplated by this Agreement.
Final Completion: The point at which the last of [he following has occurred: (1) recordation of a Notice of
Completion for the Project; (2) acceptance of the Project by the City; (3) submission of all documents required to be
supplied by D/B to City under this Agreement, including 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 Works Construction (including any
City of Chula Vista standard special provisions).
Guaranteed Maximum Price ("GMP"): The maximum compensation to which D/B may be entitled for the
performance of all Services, Work, and obligations and the satisfaction of al] conditions under dtis Agreement,
which amount shall include all authorized costs for labor, equipment, and material [o design and build a fully
functional Project in accordance with all applicable Hiles, regulations, and laws.
Hard Construction Costs: Direct construction costs incurred in performing the work, including taxes, delivery and
installation. Hard constmction costs shall no[ include D/B markup, handling fees, overhead, or other charges,
except as otherwise set Forth in this Agreement.
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Hazardous Materials: Hazardous waste or hazardous substance as defined in any federal, state, or local statute,
ordinance, rule, or regulation applicable to the Property, including, without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States Code
sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 United States Code sections 6901-
6992k), the Carpenter Presley-Tanner Hazardous Substance Account Act (Health and Safety Code sections 25300-
25395.15), and the Hazazdous Waste Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous
Materials" shat] also include asbestos or asbestos containing materials, radon gas, and petrolewn or petroleum
fractions, whether or not defined as hazardous waste or hazardous substance in auy such statute, ordinance, rule, or
regulation.
Holiday: The City-observed holidays.
Law: All Federal, State, or local laws, regulations, ordinances, and/or policies.
Milestones: Dates shown on the Project Schedule by which D/B shall complete major tasks either during design or
construction of the Project.
NEPA: National Environmental Policy Act.
Notice to Proceed: City's written notice authorizing D/B to commence Work and/or Services on the Project.
Notice of Termination: A written notice from City to D/B terminating the Agreement in accordance with Article
XXVII.
Project Site: The property located at 270 F Street and funkier described in Exhibit "A", attached.
Reimbursable Costs: Building permits and Fees.
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 does not include Work.
Substantial Completion: That stage in the progress of the construction when alt Work on the Project is sufficiently
complete in accordance widr the Construction Documents, so that City can fully utilize entire Project; Substantial
Completion shall further mean that all goods, services and systems to be provided under the terms and conditions of
the Construction Documents are in place, have been inidally tested, and are operationally functional, 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.
Work: All labor, materials, supplies, and equipment that are necessary to construct the Project in accordance with
the Contract Documents. Work does not include Services.
Working Day(s): Monday through Friday, excluding City holidays.
ARTICLE II. SCOPE OF THE AGREEMENT
2.l General. Except as expressly provided in [his Agreement, D/B shall design and cons[nw[ [he 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 tunctional
Project within the Contract Tirne for an amount no[ to exceed the GMP.
ARTICLE [II. 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 [eons and conditions herein, unless this Agreement is earlier
terminated.
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ARTICLE IV. GENERAL PROJECT PERFORMANCE OBLIGATIONS
4.1 Standard of Care. Throughout the perfotmance this Agreement, performed under this Agreement, D(B agrees
that al] 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,
landscape azchitecture, and construction firms using the degree of care and skill ordinarily exercised by
reputable professionals practicing in the same field of service in the State of Califomia.
4.2 Compliance with all Laws. In the performance of this Agreement, D/B shall comply with all laws, including
but not limited to:
4.2.1 All City, County, State, and Federal laws, codes and regulations, ordinances, and policies, including,
but not limited to, the following:
4.2.1.1 Environmental Regulations (i.e. CEQA/ NEPA).
4.2.1.2 The Americans with Disabilities Act ("ADA") and Title 24 of the Califomia Building Code. It
is the sole responsibility of D/B to comply with all ADA and Title 24 regulations.
4.2.1.3 The Califomia 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.
4.2.1.4 The Clean Ait Act of 1970, the Clean Water Act (33 USC 1368)-Executive Order 11738, and
the Stormwater Managetnent and Discharge Control-Ordinance No. 0-17988.
4.2.1.5 D/B shall comply with the Essential Services Building Seismic Safety Act, SB 239 & 132.
4.2.1.6 DB shall comply immediately with all directives issued by City or its authorized
representatives under authority of any laws, statutes, ordinances, rules, or regulations.
4.2.1.7 D/B shall obtain and cmnply with all permits necessary top complete the Project, including,
but not limited to Development Services Department permits and hazardous material permits.
4.2.1.8 Zoning environmental, building, fire and safety codes and coverage, density and density ratios
and lien laws.
4.2.2 Implied Knowledge o~Laws. D/B 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 Desien 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 constmc[ion specifications, all of which
shall be incorporated herein by this reference.
4.3.1 Standard Specifications.
4.3.1.1 Greenbook. The 2003 Edition of the Standard Specifications for Public Works Constrction.
4.3.1.2 California Department of Transportation Manual of Traffic Controls for Construction and
Maintenance Work Zones.
4.3.2 City Specifications.
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 Construction Standards.
4.3.2.4 The City's facility program, performance and design criteria, concept drawings, and reports.
4.3.3 Energy Conservation Standards.
4.3.4 Materials Standards. DB shall use industrial grade, not residential grade, equipment and accessories
for all facets of design and construction.
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4.4 Obtain City Approval. For any and all actions under this Agreement that require City approval, including,
but not limited to, changes or additions to Agreement, D/B shall obtain approval in writing from the designated
City Representative, or when required by Law, from the City Council. D/B acknowledges that approval from
any individual other than the designated City Representative or City Council, where required, shall not be
valid.
4.4.1 Failure to Obtain Approval. Any costs or delays resulting from or associated with additious or
modifications implemented without the written authorization of [he City Representative shall be borne
exclusively by D/B and not be grounds for an increase in GMP or Contract Time.
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, D/B 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
D/B, 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 D/B of responsibility for complying with all applicable laws, codes, and
good consulting design, or construction practices.
4.5 Decision Making. 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
.~A „
4.6 Perform Services and Work in Phases. The Services and Work under this Agreement shall be performed
three (3) "Phases" in the manner and order described herein.
ARTICLE V. PHASE I -DESIGN DEVELOPMENT
5.1 Desi¢n Team. City has awarded this Agreement based on the specific qualifications of D/B to perform the
design services required under this Agreement. Atl such services shall be provided by D/B unless the City has
approved of the use of Subconsultants in the manner identified in Article VIII.
5.2 Services. In Phase I, D/B shall perform Services including, but not limited to, the following:
5.2.1 Project Development. Develop and refine Project requirements.
5.2.2 DDD. Prepare complete DDDs, such that the DDDs include, without limitation, the following
5.2.2.2 Floor Plans. Floor plans including graphically demonstrating interior and exterior walls and
fenestration with notes, room names, supply and return air registers, ductwork and
calculations.
5.2.2.3 Roof Plans. Roof places including detailed notes, dimensions, and mechanical equipment
locations.
5.2.2. ,
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5.2.2.7 Outline specifications, written description of equipment and components including rooftop
work.
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5.2.3 Cade Compliance. Verify all code compliance, including building construction type, occupancy
sprinkler requirements, existing, zoning and other agency conformance and ADA.
5.2.4 Submittals. Prior to proceeding with Phase II, D/B shall prepare and submit the foflowitrg to the City
for review and written approval.
5.2.4.1 DDDs. Completed DDD.
5.2.4.1.1 Conditional Approval. In the event that City grants conditional approval, DB shall
address all City comments or issues and make associated revisions in the next set of
drawings developed and submitted.
5.2.4.1.2 Delay/Costs. Any delay or additional costs resulting from the re-submittal shall be
borne exclusively by D/B and not be grounds for an increase in the GMP or Contract
Time.
5.2.4.2 Other Deliverables. 3D rendered images, color and material boards, reflected ceiling plans,
and special system or equipment plans.
ARTICLE VI. PEiASE II
6.1 Phase II Services. hr Phase II of the Project, D/B's shall perform Services including, but are not limited to,
the following:
6.1.1 Project Development. D/B shall diligently prosecute the development and refinement of Project
requirements and review such requirements with City;
6.1.2 Dagital Documentation. 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 '
6.1.2.].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 features, 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 requirements, equipment, and all systems
locations.
6.1.2.1.5 Typical building sections showing primary structural members, dimensions, and
accommodation of functional systems.
6.1.2.1.6 o
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6.1.22 Structural drawings including plans and sections of sufficient clarity and detail to show the
extent and type of stmctural system and dimensions, final structural design criteria, foundation
design criteria, preliminary sizing of major structural components, critical coordination
clearances and applicable material lists.
6.1.2.3 Mechanical plans and details.
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6.1.2.5 Electrical plans and details.
6.1.2.6 Plumbing plans and details.
6.1.2.7 Plans showing installation of major systems, equipment, fixed furnishings and graphics.
6.1.2.8 Technical specifications.
6.1.2.9 All other technical drawings, schedules, diagrams and specifications, to set forth in detail the
requirements for construction of the Project which, at a minimum, include:
6.1.2.9.1 Infortna[ion customarily necessary for the use of those in the building trades.
6.1.2.9.2 Documents customarily necessary m obtain regulatory agency approvals.
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 equipment 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 of:
6.1.2.1 1.1 ~ ,
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6.1.2.11.2 Preliminary equipment layouts, required space for equipment, required chases and
clearances.
6.1.2.12 Sections through critical areas showing coordination of architectural, stnmmral, mechanical
and electrical elements.
6.1.2.13 Final specifications, including but not limited to, the following:
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6. L2.13.2 Mechanical. Description of air conditioning, heating and ventilation systems and
controls, ducts, and piping system.
6.1.2.13.3 Electrical. Description of electrical services, including voltage; type and number
of feeders; lighting systems, including lighting levels and audiovisual; security-fire
alazms; and cable antenna television systems.
6.1.2.13.4 ~_ ...._..._ ,.«:... ~_,. a~_.. _ ,... ... :..~....
6.1.2.L3.5
6.1.2.13.6
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6.1.3 Project Sequencing. D/B shall determine and establish the sequence of construction, and if
appropriate, identify separate bid packages to accomplish phased construction of the Project.
6.1.4 Critical Path. D/B shall prepaze a detailed Critical Path Method schedule for al] construction
components of the Project ("Detailed Constmction Schedule") utilizing Microsoft Project software,
showing all major milestones, bid dates for the major bid packages, commencement of construction,
sequence of construction, completion of structural elements, and completion of the Norman Park
Center HVAC System, all of which shall conform with the dates of Substantial Completion and Final
Completion of Project.
6.1.5 Governmental Review. D/B shall review, as needed, [he CD's with the govemmental authorities
havingjurisdiction 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 Plan. D/B shall develop and implement a Project Management Plan and
Procedures including:
6.L7.1 Project status reports.
6.1.7.2 Coordination/interface with the City and its other consultants/contractors
6.1.7.3 Initial Design kickoff meeting to be held no later than five (5) working days from [he Effective
Date of Agreement.
6.1.7.4 Biweekly Design and Constmction meetings
6.1.7.5 Interface and communications with other agencies
6.L7.6 Vendors, subcontractors management and daily reports.
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 constmction phase.
6.6.10 Scheduling and cost control reports, which shall be provided monthly throughout the design
phase.
6.1.8 Construction Drawings and Specifications. D/B shall prepare construction drawings and specifications
suitable for obtaining City-approved permits and [o allow constmction.
6.1.9 City Approval. D/B shall submit Construction Documents and obtain City approval in writing of the
Construction Documents at 5fty percent (50%), seventy percent (70%), and ninety percent (90%)
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.
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6.1.9.3 D/B Support. D/B shall provide support to a City Constructability Review Team for the
review of the Construction Documents at all stages of required submission.
6.1.10 Materials and Equipment Specifications. DB shall prepare technical materials and equipment
specifications for pre-purchase.
6.1.11 Surveying and Testing. ° :L°' ^-,,__°'° "°-F°-m °-a ° °" °
_ _ ec..~nn 'i~$
6.1.11.1 Greenbook 2003 Section 2-9 titled "Surveying" and City of Chula Vista's Horizontal and
Vertical Control found on the Survey Control Network Map located on [he City's Internet via
the following link:
httn~//www chulavistaca aov/City Services/Development Services/Engineering/index.asp
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6.1.12 SWPPP.
6.1.12 Alternatives. DB shall evaluate alternative structural and constmction approaches to ensure
economical designs, which optimize constmctability, yet meet all codes, architectural concepts,
schematic designs, and standazd specifications of the Project.
6.1.13 Permits. D/B shall obtain general building permit and all ancillary permits and licenses, including but
not limited to, demolition permits, improvement permits and grading permits at 90°/ CD's. City is
responsible for all permit costs, which will be reimbursed to the DB.
6.1.14 Updated Costs. DB shall provide updated construction cost estimates in conjunction with the
submittals required in Section 6. L9 to support Value Engineering ("VE") and constructabilityrgviews.
6.1.15 Fina[Review and Approval ofP(ans and Specifications. D/B shall deliver to City complete
Construction Documents, including Construction Drawings, Plans and Specifications for the design
and construction of the Project. City agrees to review the Construction Documents and provide City's
written comments to D/B within Thirty 30 Business Days of the date such Construction Documents are
delivered to City in accordance with the notice provisions in Article XXIX. Approval shall not be
unreasonabty withheld. If requested by City, D/B shall make changes to the Construction Documents.
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ARTICLE VII. PHASE III.-CONSTRUCTION PHASE WORK AND SERVICES
7.1 Phase III. Work and Services. The D/B shall construct the Project in accordance with City-approved plans
and specifications prepared by the D/B to meet or exceed all requirements of the City provided program,
schematic design and the performance criteria. The D/B shall:
7.1.1 Bidding. DB shall prepare and submit to the City for review separate bid packages, such bid packages
shall be organized in the manner that DB determines is appropriate ensure the efficient and cost
effective construction of the Project.
7.1.1.1 Competitive Bidding. D/B shall competitively bid the respective bid packages for the
construction of the Project.
7.1.1.2
7.1.1.3 Scheduling. D/B shall coordinate scheduling of bid packages, submittals.
7.1.1.4 Bid Results. D/B shall submit to the City a summary of bid results for each bid package.
7.1.1.5 Bid Protests. DB shall heaz and decide bid protests and shall develop and maintain bid protest
procedures for that purpose. City shall be timely informed of all bid protests (prior to
resolution) and the outcome of said protests.
7.1.1.6 Equal Opportunity Contracting/Nondiscrimination. D/B shall no[ discriminate 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 opportunity for subconhactors to participate in suUcontracting opportunities.
D/B understands and agrees that violation of this Subsection shall be considered a material
breach of this Agreement and may result in contract 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 D/B's. own
name, with the bidder who in DB's discretion and professional opinion best meets the
monetary, time, and performance requirement of the Project. D/B shall be responsible for
ensuring that these contracts fully comply with all applicable local, state and federal laws,
same but not all of which are listed below.
Zl.l.B Additive Alternatives. D/B shall require additive alternates for extended warranties in bid
packages for roofing and HVAC systems.
7.1.2 Meerings. D/B shall conduct meetings identified below:
7.1.2. ] Preconstruction Meeting. D/B shall conduct a preconstmction 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. D/B shall ensure [hat the preconsVUCtion meeting is attended by D/B's
construction contractor, project manager, all D/B's major subconhactors, the City's
Project Manager, and all other persons necessary as determined by D/B or City.
7.1.2.2 Progess Meetings. D/B shall conduct weekly progress meetings with the City and appropriate
design and construction members.
7.1.2.3 Contractor Meetings. D/B shall conduct cotractor meetings, as necessary, to provide
technical input.
7.1.2.3.1 D/B shall provide interpretation of technical specifications and drawings.
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7.1.2.4 Rescheduling. Progress Meetings may be rescheduled if rescheduled meeting times are
convenient for all necessary parties, and D/B has given no less than five (5) Calendar Days
prior written notice of the rescheduled meeting.
7. L.2.5 Minutes. D/B shall take cortesponding meeting minutes and distribute copies to all attendees.
7.1.2.6 Reporting. D/B 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 Construction Management. During construction of the Project, D/B shall perform and be responsible
for construction management, supervision, and administration services, including, but not limited to,
tracking and reporting all expenses and all aspects of the construction and coordinating all constmction
means, methods, techniques, sequences and procedures to ensure the efficient and orderly sequence of
the construction of the Project
7.1.3.1 Resident Management. D/B shall provide resident management and contract administration,
including specialists necessary for the functional, safe, on-budget and on-schedule completion
of the Project, starting with the issuance of a Notice to Proceed, upon receipt of final
construction drawings, from the City and extending through issuance of Notice of Completion
and Acceptance. City staff will perform inspections to verify compliance with the plans,
specifications and contract documents. The D/B resident staff shall ensure construction
compliance with applicable local, state, and federal codes, building and environmental pertni[
requirements, construction mitigation documents and enforcement of the Contract Documents.
7.1.3.2 Records Management. D/B shall implement and maintain an internal records management and
document control system as required to support project operations. The D/B shall provide
records management and document control information in a manner consistent with the City's
reporting system.
7.1.3.3 Cash Flow. D/B shall develop aproject-specific Plan for defining, tracking and reporting cash
flow activity requirements and submit such plan to the City for review and approval prior to
implementation.
7.1.3.4 Reporting. D/B shall keep City infom~ed of the progress and quality of the design and
construction of the Project.
7.1.3.5 Docmnents On-Site. D/B shall maintain a complete and up-to-date se[ of Construction
Documents including daily reports in [he Projects field office ai all times during construction
that reflect all changes and modifications.
7.1.3 Site Safety, Security, and Compliance. D/B shall be responsible for site safety, security, and
compliance with all related laws and regulations.
7.1.3.1 Persons. D/B 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 Environmental. D/B shall administer and enforce the Environmental Mitigation Monitoring
and Reporting Plan for the Project, if any. In addition, D/B shall report environmental issues to
the City in a manner consistent with the City's reporting system. DB shall be responsible for
the environmental consequences of the Project construction and shall comply with a!I related
laws and regulations, including the Clean Air Act of 1970, the Clean Water Act, Executive
Order number 11738, and the Stormwater Management and Dischazge Control Ordinance No.
0-17988 and any and all Best Management Practice guidelines and pollution elimination
requirements as maybe established by the Enforcement Ofticial.
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, fire, or other
casualties.
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7.1.4 Public Right-of-Wny. 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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7.1.4.2 Surveying. DB shall pay for and coordinate with City's Engineering Department all surveying
required within the Public right-of-way.
7.1.4.3 Follow all Laws, Rules, and Regulations. D/B agrees to follow all City standards and
regulations while working in the Public right of way, including but not limited to, utilizing
proper traffic control and obtaining necessary permits.
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7.1.7 Inspections. DB shall coordinate any and all required inspections, including special inspections, in
such a manner that the progress of constmction is not affected or impacted. The D/B shall provide
surveying, and other contracted services as required to complete project construction inspection and
testing tasks. The City will provide inspection, special inspection, re-inspection services, and periodic
building inspections.
7.1.8 Permits. The Parties acknowledge that the constmction work to be performed on the Project by D/B in
compliance with this Agreement is subject [o the prior issuance of building, land development, and/or
public improvement perrnits paid for and obtained by D/B. In the event that City, or any other
governmental agency, unreasonably refuses to issue [he permit(s) necessary to authorize the work to be
performed or if the permit(s) are unreasonably canceled or suspended, then D/B 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 [he 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 denial, suspension or cancellation of said permit(s)
shall become the property of City upon DB's receipt of payment in full as described above.
7.1.9 Maintenance. D/B 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, DB shalt cause to be removed from and about the Project all tools, conshuction
equipment, machinery, surplus materials, waste materials and rubbish and deliver time site to the City in
a clean, neat, sanitazy 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 Imire (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.
7.1.10 Reguest for Information ("RFI'). Parties acknowledge that the RFI process is solely for
correspondence between D/B and its agents; however, DB shall submit copies of each RFI to City a[
the within twenty-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.
7.1.11 Review and Approval. D/B shall provide timely review and approve shop drawirmgs, samples of
construction materials, product data, schedule submittals, and other submittals for compliance with the
constmction Documents. DB shall keep the City advised of all such matters being reviewed and
approved by DB and forward copies of such documents [o City for review.
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7.1.12 Royalties and Other Fees. DB 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
harmless from loss on account thereof
7.1.13 Provide City with a Detailed Construction Schedule (DCS) on an disc (CD) within fourteen
(14) working days after receiving Notice to Proceed with Phase IV, provide updated versions of DCS
on a monthly basis, and provide immediate notice of any impact on critical path items.
ARTICLE VIII. SUBCONTRACTING
8.1 Subcontractine.
8.1.1 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 (hereinjoinfly "Design Consultants") as identified in Exhibit A. D/B
shall no[ be permitted [o substitute any Design Consultant unless authorized by City.
8.1.2 Construction Services. D/B shall perform all constmction on the Project utilizing subcontractors
appropriately licensed by the California Contractors State License Boazd or other required agency.
ARTICLE IX. PROJECT SCHEDULE
9.1 Project Schedule. D/B shall perform and complete the Services and Work under this Agreement according to
the timeframes set forth in Che Project Schedule, attached hereto as Exhibit "A" of a subsequently revised
Project Schedule in such a manner that the GMP or Contract Time of the Project shall not be exceeded and that
is consistent with the Standard of Care identified in Section 4.1.
9.1.1 Project Schedule. D/B has submitted, as part of its proposal, a Project Schedule based on its estimate
of the time necessary [o complete the Project.
9.1.2 D/B's Obligation. 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 monthly to the City far approval.
9.1.2.2 During Construction, D/B shall submit an updated Project Schedule mmtthly to the City and
shall include:
9.1.2.2.1 Forecast Data with the intended plan for [he remainder of the contract duration.
9.1.2.2.2 Actual Data with indications of when and howmuch 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 Detai[ and Format. The Project Schedule shall be substantially similar in detail and form to Exhibit
[INSERT], or it shall be in the form subsequently agreed to by the Parties.
9.1.4 Submittal. Projeot Schedule shall be submitted to City on a computer disk in a version of Microsoft
Project.
9.2 Project Completion. D/B acknowledges that all work on the Project under this Agreement will be complete
and ready for its intended use by the Project Comple[imr Date, August 1, 2012.
9.3 Chanties in Project Schedule. Changes in Project Schedule, whether to logic, definition, or relationship must
be approved by the City in writing as a Change Order pursuant to the manner identified in Article XIII.
ARTICLE X. DELAY IN PERFORMANCE
10.1 Time of Essence. Time is of the essence for [his Agreement and each provision of this Agreemem, including
the Project Schedule, Start Date, and Project Completion Date contained herein, unless oiherwisespecified in
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this Agreement. D/B shall perform all Services and Work as expeditiously as is consistent with standzrd of
care identified in Section 4.1.
10.2 Notification of Delav. If the D/B anticipates or has reason to believe that the performance of Services and/or
Work under this Agreement will be delayed, the D/B shall immediately notify the City. A written notice of the
delay must be delivered to the City within five (5) Calendar Days of [he initial notification, unless the City
allows 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 DB shall include a written statement that the time adjustment requested is the entire time
adjustment to which DB has reason to believe i[ is entitled as a result of the cause of the delay. An increase in
time for completion does not necessarily mean that D/B is entitled to an increase in GMP. If in the opinion of
the City, the delay affects a material pazt of the Project, the City may exercise its rights under Article XXVII of
[his Agreement or any other remedy available in law or equity.
10.3 De1av If delays in the performance of Services or Work required under this Agreement are caused by
unforeseen events beyond the control of the Parties, such delay may entitle the D/B to a reasonable extension
of time or to additional compensation. Any such extension of time must be approved in writing by the City.
The following conditions mayjustify such a delay: war; changes in law or government regulation; labor
disputes; strikes; fires, floods, adverse weather or other similaz condition of [he 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 between the City and the D/B; provided, however, that (i) 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 D/B, its consultants, contractors, employees, or
other agents; and (ii) a delay caused by the inability to obtain materials, equipment, or labor shall not entitle
the D/B to an extension of time unless the D/B furnishes the City, in a timely manner, documentary proof
satisfactory to City of the D/B's inability to obtain materials, equipment, or labor.
10.3.1 Caused by Cil)~. If D/B 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 (S) calendar
days of discovering such action, inaction, 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 within ten (10) calendar days of said discovery.
10.4 Costs of Delav/Liauida[ed Damages. City and D/B recognize that time is of the essence in this Agreement
and that City will suffer financial loss if the Project is not completed by the Substantial Completion Date
identified in the Project Schedule or any extensions subsequently approved. As the exact amount of financial
loss cannot be accurately forecasted, the Parties have used their best efforts to establish an estimate of such
loss. In doing so, the Parties have examined all of the circumstances and factors associated with a delay and
have determined an amount that is fair and reasonable as liquidated damages. City and D/B agree [hat D/B
shall pay as liquidated damages (but not as a penalty) for each calendaz day of delay beyond [he time specified
for Substantial Completion of the Project, the following amounts which D/B expressly agrees are "not
unreasonable under the circumstances" as defined in California Civil Code § 1671(6): $100 for each calendar
day. Liquidated Damages shall not be assessed afrer the date on which Substantial Completion is achieved. In
lieu of paying damages to the City, [he Parties agree dta[ City may choose to reduce the GMP by [he amount of
the liquidated damages.
ARTICLE XI. PROJECT COSTS
] 1.1 Estimated Cost. The Estimated Cost of Project, according to the RFP is $ 195,673.00 . The City's obligation
under this Agreement shall not exceed the Estimated Cost; however, once a GMP is determined and approved,
the GMP shall become the not to exceed amount of the City's obligation. GMP is subject to change pursuant to
methods established is this Agreement.
l ].l.l Cast Schedule. The EMP has been allocated among each activity or portion of the Project ("itemized
Cost(s)"). The Itemized Costs aze included in Exhibit "A" attached. The cos[ incurred by the D/B for
a specific activity or portion of the Project shall not exceed the associated Itemized Cost.
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11.2 GMP. At 90"/o complete construction documents, D/B shall establish a GMP and submit such GMP to the
City for approval.
10.2.1 Not to Exceed Amount. The GMP shall not exceed $ 195,673.00. Any costs incurred by DB in
excess of said GMP shall be the sole responsibility of the D/B, unless a Change Order is approved by
the City pursuant to Article XIII of this Agreement.
11.2.1. ] Included Costs. In calculating the GMP, DB shall include costs of the following:
11.2.1.1.1 All Design Consultants, including but not limited to architectural, structural, 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.
11.2.1.1.3 Construction supervision and project management personnel, including but not
limited [o superintendents, Project managers, Proj ec[ secretaries, Project engineers,
Project accountants, and all other D/B personnel wherever located.
11.2.1.1.4 Al] on-site and off-site equipment, supplies and facilities, including but not limited
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
chazges 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 maybe paid, and City may take possession upon completion of
the Work.
11.2.1.1.5 All Hard Construction Costs.
17.2.1.1.6 City held Contingency Fund, which shall not exceed $ 9,318.00.
l 1.2.1.1.7 Reimbursable Costs. Example: Utility fees.
11.2.1.1.8 D/B Fixed Fee for the complete design and construction of the entire Project as
specified in the 90% CD's.
11.2.1.1.9 No more than $50,000.00 for Design Services and General Conditions.
l 1.2.1.1.10 All home-office and field overhead costs of any type including document control
and retention;
(1.2.1.1.11 All business license costs;
11.2.1.1.12 All profit D/B intends to earn under this Agreement.
11.2.1.1.13 All direct and incidental costs incurred by DB, except for those specifically
identi5ed under the General Conditions section.
11.2.1.1.14 n.~..~~zwru
11.2.1.2 Full Compensation. Unless otherwise expressly provided in this Agreement, GMP shall be
the maximum amount of compensation to due to DB for all permitted costs of any type
incurred by D/B in performing all services and obligations under this Agreement.
11.2.2 Itemization. D/B shall provide City with au itemization of the GMP that reconciles the GMP with the
itemized costs. The itemization shall include the following:
11.2.1.1 D/B Fixed Fees. $ 5,000.00 for the term of the project.
11.2.1.2 Hard Construction 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.
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11.2.1.3 AFFA
11.2.3 Alternate 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 the GMP.
11.2.4 Adjustments [o GMP Based on Approved Change Orders. GMP may be changed, increased or
decreased, based on Change Orders approved pursuant to Article XIII.
11.2.5 Adjustments Based on Other Cost Increases. GMP maybe increased due to: (i) acts of God, acts of any
governmental authority, the elements, war, litigation, shortages of material, labor strikes, inflation,
later commonly accepted or adopted higher standards and specifications of construction, emtcealed 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
unreasonable conduct by DB. The GMP may be increased by the amount of such increases; however,
if GMP as proposed to be increased shall exceed the Estimated Costs, such change to GMP shall be
subject to approval by City Council.
11.3 Dutv [o Advance Costs. D/B shall advance all costs for Project subject to Reimbursement in the manner
described in Article XVI.
11.4 Use of ProlecY Contingencv. 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
Work or Services according to the terms of this Agreement, in compliance with the Construction Documents,
and/or Law; or (ii) uninsured losses resulting from [he negligence of D/B, its officers, agents, or employees.
11.5 Notification of Iucreased Costs. If, aC any time, the D/B anticipates [hat the amount expended on the Project
will exceed the Estimated Cost or the GMP, when established, the D/B shall immediately, not more than ten
(10) Working Days from becoming aware of the potential increase, notify flte City in writing. This written
notification shall include an itemized cost estimate and a list of recommended revisions that the D/B believes
will bring the Project cost to within the Estimated Cost or GMP. Following the delivery of the Notice, D/B
shall assist the City in reviewing the itemized cos[ breakdown and adjusting the Scope of W ork and
establishing a revised Project, the cost of which will not exceed the Estimated Cos[ or GMP, once establish.
1 L5.1 City Action. Following consultation with the D/B, the City may choose to: (i) approve an increase in
the amount authorized for the Project; (ii) delineate a project, which may be constructed for the budget
amount; (iii) any combination of (i) and (ii); or [emtinate the Project subject [o the termination
provisions in Article XXViI.
ARTICLE XII. PRODUCTS
12.1 Submittals. Prior to the bidding process, DB shall submit for City approval a list of products intended for use
in the Project. Upon D/B's completion of plans and specifications, City will review and approve products
specified therein. D/B shall provide City a copy of each submittal for City approval throughout 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 DB of its sole responsibilities under [his Agreement or any and all laws, codes, permits
or regulations.
12.2 Substitutions. D/B shall submit all requests for product subs[imtions to City in writing within thirty (30)
Calendar Days after the date of award of the construction 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 substitution requests within thirty (30) Calendar Days of submission of such
requests. D/B agrees that City requires ConsultanPs input and as such D/B shall coordinate a five (5) Working
Day review by its Consultant.
12.2.1 Substantiate Request. D/B shall include with each substitution request complete data substantiating
that the proposed substitution conforms to requirements of the Contract Documents.
12.2.2 D/B Representations. By submitting a substitution request, DB is representing to City all of the
following: (i) D/B has investigated proposed product and determined that in all respect the proposed
product meets or exceeds the specified product; (ii) D/B is providing the same warranty for the
proposed product as was available for the specified product; (iii) DB shall coordinate installation and
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make any other necessary modifications which maybe required for work to be complete in all respects;
and (iv) D/B shall waive any claims for additional costs related to dre substituted product, utrless the
specified product is not commercially available.
12.2.3 Separate Written Reguest. Ciry will no[ consider either substimtions that are implied in the product
data submittal without a separate written request or substitutions that will require substantial revision
of construction contract documents.
12.3 Samples•
12.3.1 Postage. Samples shall be sent to D/B's office, carriage prepaid.
12.3.2 Review. D/B shall furnish to City for review, prior to purchasing, fabricating, applying or installing,
(2) two samples (other than field samples) of each required material with the required finish.
123.2.1 Where applicable, all samples shall be 8" x 10" in size and shall be limited in thickness to a
minimum consistent with sample analysis. In lieu thereof, the actual full-size item shall be
submitted.
]2.3.2.2 D/B shalt assign a submittal number. D/B shall include with each submission 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 workmanship in [he complete building shall be equal in every
respect to that of the reviewed sample.
12.3.2.4 City will return one submitted sample upon completion of City review.
12.3.2.5 D/B's, or D/B's agent's, field samples shall be prepared at the site. Affected finish work shall
no[ commence until D/B or its agents have been given a written review of [he field samples.
12.3.3 Not a Release ojLiabi[ity. City's review of samples in no way relieves D/B of D/B's responsibility for
construction of Project in full compliance with al] Contract Documents.
12.4 Observe Testing. When appropriate, D/B shall witness testing and review materials and equipment testing
results and provide comments regarding conformance with specification requirements.
ARTICLE XIII. CHANGE ORDERS
13.1 When Renuired. Change Orders shall be required in the following instances:
13.1.1 GMP. Any adjustment in GMP.
13.1.2 Contract Zime. Any adjustment in Contract Time 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 GMP or Contract Time.
13.1.4 City Requests. The City directs D/B [o perform Additional Services.
13.1.5 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 any event that gives rise to the
need for a Change Order, the D/B 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 GMP,
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, Reimbursable Costs or Hazd Construction Costs. DB shall also provide Ci[y
with a realistic estimate of the impact, if any, the Change Order will have on the Contract Time.
13.2.1 Project Manager Approval. If the Change Order request does not result in an increase in the Estimated
Cost, [he City's Project Manager shall either approve or reject the Change Order in writing within ten
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(10) Working Days of receiving D/B's written notice, provided D/B has submitted complete
docutnentation substantiating the need for such Change Order. If City fails to respond to D/B's written
notice within the ten (]0) Working Days, [he Change Order request shall be deemed denied.
13.2.2 City Counci[Approval. For Change Orders not subject to section 12.2.1, City Council approval is
required. 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.
13.3 Written Aanroval of Change Orders. D/B shall not proceed on work requested under a Change Order,
absent written approval from the appropriate authority. Any Services or Work, which require t he approval of
a Change Order, perform by D/B prior to approval shall not be reimbursed.
13.4 Failure to Acree on Cost of Chance Order or Time. In the event there is any disagreement or dispute
between [he. Parties as to whether the D/B is entitled [o a Change Order, the amount of the Change Order or
any increase in ConVact Time requested through the Chu~ge 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 ideutified in Section 29.17. D/B shall not have the right to stop or delay in the
prosecution of any services or work, including services or work that is [he subject of the Change Order (if
directed by the City), pending the determination of the Director of Public Services or, if applicable, final
resolution. Instead, D/B shall continue diligently prosecuting all such services and work.
13.4 Full Compensation. Payment to D/B 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, [he D/B or D/B's representative acknowledges that ^o additimtal compensation or
claims fot items of work listed in dte Change Order will be allowed.
13.5 Errors and Omissions. DB shall no[ be reimbursed for any costs or expenses of a Change Order resulting
from a design error or omission, D/B's negligence, or dte 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 [he direct result of a CiTy request for such design or omission. The City reserves the right to seek
reimbursements for any funds used due [o 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 Ciri Refusal to Aoarove Change Order. D/B shall not have the right to terminate this Agreement for the
City's refusal to approve a Change Order pursuant to Sections 12.2.1 or and 12.2.3
ARTICLE XIV. EXTRA WORK
14.1 Ciri Authority to Order Extra Work. City may at any time prior to Project Completion order Extra Work
on the Project. The smn of all Extra Work ordered shall not exceed 5ve percent (5%) of the Estimated Cost at
the time of the Bid Award, without invalidating this Agreement and without notice [o any surety.
14.1.1 fteguests 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. D/B shall no[ be responsible for failure [o 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 XXN, shall cover any
Extra Work provided that the Extra Work is paid for by the Project Budget
t 4.3 Reimbursement for Extra Work. Work performed by D/B as Extra Work is reimbursable in the same
manner described in Article XVL The Project contingency as described in Article X, will be used first to cover
the costs of Extra Work.
14.4 Markup. 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 Work.
ARTICLE XV. CHANGED CONDITIONS
15.1 Chanced Conditions. Changed Conditions shall be addressed under the Greenbook section 3-4; however,
Parties acknowledge that even if Changed Conditions are found to be present, the Project shall not exceed the
GMP without express City Council approval of an increase to the Project Budget. Absent such express
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approval of additional funds, D/B shall provide City with value engineering and Parties will return Project to
within the total Project cost.
ARTICLE XVI. PAYMENT TERMS
16.1 Pavment
16. L I Funds.jor Payment. D/B shall only be entitled to payment for Services and Work perfornred under this
Agreement from the funds appropriated for the Project.
16.1.3 Maximum Payment. D/B shall be entitled [o payment in an amount not to exceed the GMP or
subsequently approved increase in GMP. D/B is not entitled to payment 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 Application jnr Payment . D/B 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 Reimburseable 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 all relevant documents
in accordance with Section 15.1.6. If the City determines that al] relevant documents have not been
submitted, City shall request that D/B provide additional documentation. D/B shall provide additional
documentation within ten (] 0) 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, Ci[y
shall make payment to D/B of al] uncontested charges within sixty (60) Calendar Days of receipt of a
complete Payment Application.
16.1.5.1 Withholding. From each payment, ten percent (10"/0) 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 [o 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 withholding 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 W ithholding. The City will pay the D/B for the amounts withheld forty-five (45)
Calendar Days from recordation of the Notice of Completion, providing [hat no Stop Notices
or Mechanic's Liens have been Sled since the recordation of the Notice of Cotnple[ion.
16. L5.2.1 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 withheld
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 in the manner identified in Section 21.6. D/B shad
not have the right to stop or delay in the prosecution or any Services of Work, pending the
determination of the Director of Public Works or, if applicable, final resolution. Instead D/B
shall continue to diligently prosecute all Work and Services. During the time of the dispute,
the City shall withhold the amount of the charge in question.
16.1.5.3 Cutoff for Submission of Reimbursement Requests. D/B shalt 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 Perification of Reimbursement Request. D/B 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, substihrte checks, or image replacement
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documents showing that payment has been made in connection with the Reimbursement Request in the
following manner:
16.7.6.1 D/B shall submit two (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.
16.1.6.4 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.
16.1.8 Non-reimbursable 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 fait value, as determined by City,
of property that is destroyed, lost, sioleq or damaged rendering it undeliverable or unusable for City.
In addition, D/B is not entitled to reimbursement for any cost or expenditure that has not been
approved by the City in the manner required by this Agreement or the City Charter and rules,
regulations, or laws promulgated there-under.
ARTICLE XV It. INSPECTION
17.1 Inspection Team. The Project shall be inspected by a team cmnposed of, at a minimum, the following: i.)
representatives of the City, ii.) representative from D/B's Design Team, iii.) the Construction Manager, attd
iv.Representative, (iii) D/B's Consultant(s), and (e) the D/B's construction superintendent [Inspection Team)
17.2 Inspection States. The Project shall be inspected by the Inspection Team at minimum during the following
stages: (i) when required by code, (ii J as directed by the "Special Inspections" provision, (iii) bi-weekly.
17.3 Access. City, its consultants, subcontractors, independent testing laboratories as well as other govemnren[al
agencies with jurisdictional interests will have access at reasonable times with the project managers approval
for this observation, inspecting and testing. D/B shall provide thetn 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 [o see that [he 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 inspection 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.
Any expenses associated with re-inspection shall be borne by DB.
I7.7 Concealint Work. Prior to concealing work, D/B 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 [he inspection or testing
activities, for a reasonable time and D/B will have no right to additional cost or time it may incur as a result of
the Work stoppage.
17.8 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 XXII shall apply.
17.9 Not a Waiver of Oblitations. Neithez observations by the City nor inspections, tests, or approvals by City or
others shall relieve D/B from D/B's obligations to perform the Work in accordance with the Construction
Documents. This 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, permits or regulations.
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ARTICLE XVIII. PROJECT COMPLETION.
18.1 Notice to City. When D/B determines 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 in accordance with [he Construction 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 Walk-Through Inspection. A preliminary Walk-Through Inspection shall be conducted by City within ten
(10) Working Days following DB's notice to City of completion ("Walk-Through Inspection"). The Walk-
Through Inspection will be conducted by the Inspection Team identified in P.rticle XVII, Section 16.1.
18.2.1 Punch List. A Punch List, if necessary, shall be prepared by City during [he Walk-Through Inspection.
The Punch List shall be presented to D/B by dle RE within three (3) Working Days of [he Walk-
Shrough Inspection. D/B shall correct the items listed on the Punch List within thirty (30) Calendar
Days of receipt of the punch list and prior to the Final Inspection.
18.2.2 Fnilure to Identifi~ Items. As to any items not included on the Punch Gist 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 instruct City personnel in operation, adjustment and maintenance of equipment and
systems, using the operation and maintenance data.
18.3.1 Startup. The DB sbal] supervise, manage, and coordinate all project startup and testing activities for
mechanical systems within the provisions of the project Contract Documents.
18.3.2 Reporting. The D/B shall report progress of project staztup and testing to the City in a manner
consistent with the City's reporting system.
18.4 Final Inspection. 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) Calendaz Days of the Notice of Correction.
ARTICLE 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 the Project
("Acceptance"). Upon Acceptance, D/B shall do all of the following:
19.1.1 Notice o(Completion. D/B 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 in a form reasonably acceptable to City for all such work.
] 9.2 Final Completion. Final Completion of [he 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 DB to City pursuant to this Agreement, including As-Built Drawings,
warranties, and operating and maintenance manuals; or issuance of a final certificate of occupancy.
19.2.1 As-Builts. City will evaluate the submitted As-Builts for accuracy and completeness and may return
comments. DB shall meet with City until all issues are resolved. Upon issue resolution, in
accordance with disputed work procedures in Section 21.6, DB shall submit a mylar set and three
(3) final blueline sets of As-Builts stamped by the architect/engineer of record as required by law.
19.2 No Waiver. D/B's obligation to perform and complete the work in accordance with the Contract Documents
shall be absolute. Neither recommendation of any progress payment or acceptance of work, nor any payment
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by City to D/B 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 XX. PROJECT DELIVERABLES
20.1 Proiect 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 in 3 sets of paper and electronic format (pdf) or CAD files on
CD disks.
20.1.1.1 As-Builts shall show by dimension accurate [o within one (1) inch, the centerline of each run
of conduits and circuits, piping, ducts, and other similar 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 locabou
of the item ("under slab", "in ceiling", "exposed", etc.), and make all identihcation
sufficiently descriptive that it may be related reliably to the specification. D/B 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
required 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 in relation to finished first floor.
20.1.10.2.2Horizontal and vertical locations of underground 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 [he s[ructm~e.
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 in any change/deviation from City's program,
specifications, approved plans, equipment or materials.
20.1.10.2.6Details not issued with original Construction Drawings, design 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 infonnatimt.
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 "PROJECT RECORD" in 3/8" letters.
20.1.10.3 D/B 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. D/B shall submit all Operation and Maintenance manuals
prepazed in the following manner
20. L 11.1 In triplicate, bound in 8'/~ x 11 inch (2l6 x 279 mm) three-ring size binders with durable
plastic covers prior ro City's Final Inspection.
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20.1.11.2 A separate volume for each system, inefuding but not limited to, mechanical, electrical,
plumbing, roofing, irrigation, and any other system as detemtitted 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 D/B's
subcontractors, agents, suppliers, manufacturers, and installers.
20.1.11.2.2Part 2: Operation and Maintenance Instmetions, 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 Gst; (iv) operating instmctions;(v) maintenance inshuctions,
equipment; (vi) maintenance instmctions, finishes; (vii) shop drawings and
product data; and (viii) warranties.
20.2 Ownershia of Project Deliverables. Upon Final Completion or Termination, Project Deliverables shall
become [he property of [he City. D/B and City mutually agree that [he Contract documents for the Project
shah 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 contracts, and
maintenance and operating manuals
ARTICLE XXf. WARRANTIES
21.1 Warranties Required. D/B shall provide and require its agents to provide the warranties listed below. This
wananty requirement is not intended to exclude, and shell not exclude, other implicit or explicit warranties or
guarantees required or implied by law.
21.1.1 Materials and Workmanship. D/B shall guarantee, and shall require its agents [o guarantee, all work
on [he Project against defective workmanship and materials furnished by D/B for a period of two (2)
years on the roof top unit, (1) one year on Controls and other materials from the date of Project's Final
Completion. D/B shall replace or repair any such defective work in a manner satisfactory to City, after
notice to do so from City, and within the time specified in the notice.
21.1.2 New Materials and Equipment. D/B shall warrant and guarantee, and shall require its agents [o
warrant and guarantee, to City that all materials and equipment incorporated into [he Proj ec[ are new
unless otherwise specified.
21.1.3 Design, Consiructton, and Other Defects. D/B 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
no[ defective in any way in design, construction or otherwise.
21.2 Form and Content. Except manufacturer's standard pt'inted 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
wananties shall be submitted in the format specified in this section, modified as approved by City to suit the
conditions pertaining to the warranty.
21.2.1 Durable Binder. Obtain warranties, executed in triplicate by D/B, DB's agents, installers, and
manufacturers. Provide Table of Contents and assemble in binder with durable plastic cover.
21.2.2 Tahle or 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 [o the Table of Contents listing.
21.2.4 Detail. Provide full information, using separate typewritten sheets, as necessary. List D/B's agents,
installer, and manufacturer, with name, address and telephone number of responsible principal.
21.2.5 Warranty Start Date. Except for items put into use with D/B's permission with date mutually agreed
upon in writing, leave date of beginning of time of warranty open until the date of Final Completion.
21.2.6 Signature and Notarization. Al] warranties shall be signed and notarized. Signatures shall be required
from D/B's constmction contractor and where appropriate, the responsible subcontractor.
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21.3 Term of Warranties. Unless otherwise specified or provided by law, warranties shall extend for a term of
two (2) year(s) from the date of Final Completion as outlined in the proposal from Alpha Mechanical.
20.3.1
21.4 Meetines. 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 key subcontractors 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, construction, or famishing, fixtures, and equipment of the Project
during the two (2) year warranty period.
21.5 Warranty Ineoection. At 180 and 360 days following Final Completion, during the one-year general building
wartauty 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, orsuch 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 RiEht to Correct. If circumstances warrant, including but not limited to an emergency or D/B's failure
to adhere [o section 21.1, City may correct, remove, or replace the Defective Work. ]n such circumstances,
DB 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.
22.3 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 full.
22.4 Extension of Warranty. When Defective Work, or damage therefrom, has been corrected, removed,br
replaced during the warranty period, the two (2) year, or relevant warranty period, will not be extended for an
additional two (2) years from the date of the satisfactory completion of [he correction, removal, or replacement.
22.5 No Limitation on other Remedies. Exercise of the remedies for defects pursuant to [his Article shall not limit
the remedies City may pursue under this Agreement or law.
22.6 Dieou[es. 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 Works. If this decision is contested, the claims procedure in 29.17 shall
be followed. D/B shall maintain and keep all records relating to disputed work for a period of three (3) years in
accordance with Article XXVIII.
ARTICLE XXIII. -.~I-c-Er. nrwrv a mnrr~x~rrnw*rxrnnv
23.1 Maintenance Period. -rt -----~-«- -'--a---^~^^ ^^a~- ~-_:,....~,._ r, rn ..., t ...,...:.,e
i~
23.2 Maintenance Area. D/B or D/B's Contractor shall maintain all involved areas of the Project.
23.3 Maintenance Reuuired ....+..^«_ __o...r^^.,,.,:^.o a~
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23.6.1
~ ....a .. ..~cea r,... ..v.. ~ _e..
.r
ARTICLE XXIV. BONDS
24.1 Pavment Bond. D/B shall provide or require its Construction ConVactor to provide City with a Payment
(material and labor) Bond in favor of City for one hundred percent (100%) of the Hard Construction Costs.
24.2 Performance Bond. D/B shall provide or require its Construction Contractor to provide City with a Faithful
Performance Bond in favor of the City for one Imndred percent (100°/) of the GMP.
24.3 Term. The Payment Bond shall remain in full force and effect at least until the Project is accepted by the City
and al] claims for materials and labor aze paid, for a minimum 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 shall
remain in full force for thirty (30) Calendaz Days following the filing 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 this Agreement.
24.4 Certificate of Aeencv. All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
24.5 Licensine 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 flee 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--".
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~,~g-
24.6 Form. All bonds shall be in the form prescribed by City Attorney.
24.6 Insolvency or Bankruptcy. If the surety on any bond famished 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 substitute or require the substitution of
another bond and surety, acceptable to the City.
ARTICLE XXV. INDEMNITY & DUTY TO DEFEND
25.1 Indemnity Defense and Hold Harmless -General Requirement. Except for liability for Professional
Services covered under Section 24.2, D/B shall defend, indemnify, protect and hold harmless [Ite 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 ]aw or equity, to property or persons, including wrongful
death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct
of D/B, its officials, officers, employees, agents, and contractors, arising out of or in connection with the
performance of the Defined Services or this Agreement. This indemnity provision does not include any
claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the
sole negligence or sole willful misconduct of [he 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 may be in combination with the active or passive negligent
acts or omissions of the D/B, its employees, agents or officers, or any third party.
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 defend,
indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from
any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or
equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating
to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials,
officers, employees, agents, D/Bs, and 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 chimed to
be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees
which may be 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 indenmify, protect and
hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful
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 Stoo Notices. The D/B shalt keep die Project and Property free of any
mechanic's liens and immediately secure the release of any stop notices.: The D/B shall defend, indemnify,
protect, and hold harmless, the City, its agents, officers and employees from and against any and all liability,
claims, costs, and damages, including but not limited tq attorney fees, arising from or attributable to a failure
to pay claimants. D/B shall be responsible for payment of al] persons entitled to assert liens and stop notices.
25.4 Indemnification for Hazardous Materials. D/B agrees to defend, indemnify, 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 unforeseeable, directly or indirectly, arising from or related to the
Hazardous Materials identified in the Phase I or Phase II Reports, if any, conducted pursuant to 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 24.1 dtrough 24.4, above, is the D/B's
obligation [o defend, at D/B's awn cost, expense and risk, any and all aforesaid suits, actions or other legal
proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers,
employees, agents and/or volunteers. D/B shall pay and satisfy any judgment, award or decree that maybe
rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all
legal expense and cost uncured by each of them in connection therewith.
25.6 Insurance 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 volunteers.
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25.7 Enforcement Costs. D/B agrees to pay any and all costs City incurs enforcing the indenmity and defense
provisions set forth in this Article XXV.
25.8 Survival. Consultant's obligations under this Article XXV 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: (i) obtained, and upon the City's request
provided to the City, insurance certificates reflecting evidence of all insurance required 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 Tvoes of Insurance. At all times during the term of this Agreement, D/B shall maintain insurance coverage as
follows:
26.2.1 Commercial Genera! Liability. Contractor shall provide at its expense a policy or policies of
Commercial General Liability [CGL] Insurance written on an ISO Occurence form CG 00 OI 07 98 or
an equivalent form providing coverage at least as broad and which shall cover liability arising from
premises 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 hrswance 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 million dollars ($2,000,000) per
occurrence for Bodily Injury, Personal Injury, or Property Damage. If Commercial General Liability
Insurance or other form with a general aggregate limit shall apply separately to this project/location,
the general aggregate limit shall be twice the required occurrence limit.
26.2.2 Commercial Automobile Liability. For all of D/B's automobiles used in conjunction with the Project
including owned, hired and non-owned automobiles, D/B shall keep in full force and effect, a policy or
policies of Commercial Automobile Liability Insurance written on an ISO form CA 00 Ol 12 90 or a
later version of this form or equivalent fornr providing coverage at least as broad in the amount of one
million dollars ($1,000,000) combined single limit per occurrence, covering bodily injury and property
damage for owned, non-owned and hired automobiles ["Any Auto"]. All costs of defense shalt be
outside the policy.
26.2.3 Architects 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 amhitect/engineer(s) of
record keep in full force and effect errors and omissions insurance providing coverage far professional
liability with a cmnbined single limit of oue million dollars ($1,000,000) per claim and two million
dollars ($2,000,000) annual aggregate. D/B 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) yeazs 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. D/B shall provide Excess Liability Insurance affording three million dollars
($3,000,000) in excess of General Liability and Employer's Liability limits 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 cleamtp, removal,
storage, or otherwise handling 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
occurence/aggegate for bodily injury, property damage and remediation.
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26.2.5.1 Claims [Wade policies will include a five (5) year Extended Claims Discovery Period
applicable to this Agreement, if reasonably available.
26.2.5.2 The policy for this insurance shall include Contractual Liability coverage. Such policy shall
be endorsed [o specifically provide for Work performed under the Agreement.
26.2.5.3 The D/B or its Contractors of any tier shall furnish 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 none 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 Coutractor
beginning their Work on [he Project. Any failure to famish this policy or Certificate of
Insurance shall no[ relieve [he D/B or Contractor from their obligatimts under this Section.
26.2.6 Hazardous Transporters Pollution Liability. If the D/B's or its contracta's' Work includes
transportation of hazardous or toxic chemicals, materials, substances or any other pollutants the D/B
or its Contractor 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 policy shall be endorsed to specifically provide coverage for Work performed under
this Agreement. The D/B or its contractors of any tier shall famish the City with a policy or
Certificate of Hazardous Transporters Pollution Liability Insurance in which [he City, its
elected and appointed officers and employees, and agents, the D/B, and any upper tiered
contractor aze named additional insureds.
26.2.6.3 The policy or Certificate must plainly designate the name of the Project, name of the
Disposal Si[e, and [he permits secured for its disposal. This Certificate must be furnished [o
the City, evidencing compliance with the outlined requirements, prior to the D/B or
Contractor beginning their Work on the Project. Any failure to famish this policy or
Certificate of Insurance shall not relieve [he D/B or Contractor from their obligations under
this Section.
26.2.7 Worker's Compensatou. For all of D/B's employees who are subject [o 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 officials, and employees will no[ be
responsible for any claims in law or equity occasioned by the failure of the D/B to comply with [he
requirements of this section. That policy shall provide at least the statutory minimums of one million
($1,000,000) for Bodily Injury by Accident for each accident, one million dollars ($1,000,000) for
Bodily Injury by Disease each employee, and a one million 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 am 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."
26.2.8 Builder's Risk. To the extent commercially available, the City shall provide a policy of "all risk"
Builders Risk Insurance. D/B shall add City and its respective elected officials, officers, employees,
agents, and representatives to the policy as loss payees, to the extent such insurance is conunercially
available. Coverage will be provided for the Replacement Cost of Materials, Equipment and Fixtures
destined to become a permanent part of the structure, and coverage will include Property in Transit and
Property in Offsite Storage. D/B shall also add its constmction contractor, and the construction
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contractor's subcontractors to the policy as additional named insureds or loss payees, to [he extent their
interest may appear. The limit for this policy shall be a ininhnum of $195,673.00 (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 firs[. 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 Conractor or Subcontractor.
26.3 Ratine Requirements. Except for State Compensation Insurance Fund, all insurance required by express
provision of this Agreement shalt 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 ttie California Insurance
Commissioner to do business in the State of Califomia, and that have been approved by the City.
26.3.1 Non-Admired 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 Califomia and is included on the
List of Eligible Surplus Lines Insurers [LESLI list] with a current AM BEST ra[iug of no less than
A:X.
26.4 Endorsements Required. Each policy required under Article XXVi, 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 Commercial General Liability. 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. Liability Additional Insured Endorsement must be
provided on ISO form CG 2010 (11/85) or equivalent, specifically, coverage afforded City
must be Primary and must no[ 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 rat limited to completed operations perfotmed 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 limited to completed
operations performed by DB or on D/B's behalf, or (iii) premises owned, leased, controlled,
or used by you; 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, these endorsements 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 Califomia
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 Califomia
Insurance Code Section 11580.04, the insurer's obligation to the City of San Chula Vista and
its respective elected officials, officers, employees, agents, and representatives shall be
limited to obligations permitted by Califomia Insurance Code Section 11580.04.
26.4.1.1 Commercial Automobile Liability Insurance. Unless the policy or policies of Commercial
Auto Liability Insurance are written on an ISO form CA 00 O1 t 2 90 or a later version of this
form or equivalent form providing coverage at feast 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
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provisions of subdivision (b) of Section 2782 ofthe 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 Califomia Civil Code. In any case where a claim
or loss encompasses the negligence of dre Insured and the active negligence of [he City of
Chula Vista and its respective elected officials, officers, employees, agents, and
representatives that is not covered because of Califomia Insurance Code Section 11580.04,
the insurei s obligation to the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be limited to obligations permitted by Califomia
Insurance Code Section 11580.04.
26.4.2 Primary and Nan-Contributory. The policies are primary and non-contributing to any insurance or
self-insurance that may be carried by the City of Chula Vista, its elected officials, officeis, 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 Waiver of Subrogation. 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 Limit. The CGL policy or policies must be endorsed to provide a
Designated Construction Project General Aggregate Limit that will apply only to the Work performed
under this Agreement. Claims payments not arising from the Work shall not reduce the Desigtated
Construction Project General Aggregate Limit. The Designated Construction Project General
Aggregate Limit shall be in addition to the aggregate limit provided for the products-completed
operations hazard.
26.45 Written Notice. Except as provided for under California law, the policies cannot 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 submitted [o the City, except
for non-payment of premium, in which case ten (]0) Calendaz Days notice shall be provided.
26.4.3.1 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 cenificates.
26.4.6 Additionallnsurance. D/B may obtain additional insurance not required by [his Agreement.
26.4.7 Prior to Starting Worh. Before performing any work, D/B shall provide [he City with all Certificates
of Insurance accompanied by all endorsements.
26.5 Subcontractors. Al] coverages for subcontractors or subconsultants shall be subject to all of the requirements
stated herein. Subcontractors and Subconsultauts shall be protected against risk of loss by maintaining
insurance in the categories and at the limits required herein. Subcontractors and Subconsuttants shall name
City and D/B as additional insureds under its policies.
26.6 Obligation to Provide Documents. The D/B shall provide copies of documents including but not limited to
certificates of insurance and endorsements, and shall famish 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 insurance 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
limited to claims, audit, payroll, insurance records and safety. Delays in reporting information to the
City may result in delays in progress payments to the D/B.
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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
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 DB shall provide a financial guarantee satisfactory to the City guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
26.8 Policy Chances. D/B 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 Richts. The City reserves the right, from time to time, to review the Contractor's insurance
coverage, limits, deductible and self-insured retentions to determine if they are acceptable to the City. The City
will reimburse the Contractor for the cost of the additional premium for any coverage requested by the City in
excess of that required by this Agreement without overhead, profit, or any other markup.
26.10 Not a Limitation of Other Obligations. Insm~ance provisions under this section shall no[ be construed [o
limit the D/B's obligations under this Agreement, including Indemnity.
26.1 l Material Breach. Failure to maintain, renew, or provide evidence of renewal during the term of this
Agreement maybe treated by the City as a material breach of contract.
ARTICLE XXVII. TERMINATION/SUSPENSION OF WORK
27.1 Suspension of Work for Archaeological and/or Paleontological Discoveries. If a discovery is made of an
azchaeological or paleontological interest, DB shall immediately 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 limited to, dwelling sites, stone
implements or other artifacts, animal bones, human bones, fossils or any item with cultural
significance.
27.1.2 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 shall fail to fulfill in a timely and
proper manner D/B's obligations under this Agreement, or if DB shall violate any of the covenants,
conditions, agreements or stipulations of [his Agreement, City shall have the right [o terminate this Agreement
by giving written notice to DB of such termination and specifying the effective date thereof at least five (5)
Calendar Days before the effective date of such tennination.
27.3 Termination or Suspension for Convenience by City. City may terminate or suspend this Agreement at any
time and for any reason, by giving specific written notice to DB of such termination or suspensionand
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 [Iris
provision.
27.4 Terminafion 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 Suspension. If the Project has been suspended under the provisions of Section 26.1 or 26.3, for
more than ninety (90) consecutive days through no fault or negligence of DB, and notice to resume
Work or to terrrrinate the Agreement has not been received from City within this time period; or,
27.4.2 Failure to Pay Amounts Due and Not in Dispute. If City fails to pay D/B any monies due and not in
dispute in accordance with the terms of [his Agreement within ninety (90) Calendar Days, plus the ten
(I O) Calendaz Days afforded the City to remedy the failure, after presentation to City by D/B of a
request therefore.
27.5 D/B Action Required. Upon receipt of the Notice of Termination, D/B 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 [o
this Agreement that is in the possession of D/B and in which City has or may acquire an interest.
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27.6 Possession Ownership, and Control of Documents. In the event that this Agreement is terminated in
accordance with Sections 26.2 ttaough 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 Rieht to Complete Proiect. In the event that the Agreement is terminated pursuant to this Article
XXVII, City may take possession of the Project and may complete the Project by whatevermethod or means
City may select.
269.1 Excess Costs. In the event that the costs to complete the Project exceed the balance of funds, which
had the Project been completed in accordance with this Agreement would have been due, [he D/B shall
be liable for and pay such excess costs to the City.
27.8 Payment to DB Due to Termination. Upon terrnitta[ion, 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 pemtitted 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 performance of the Project terminated, including initial costs and preparatory
expense allocable thereto. These costs are only for Work completed and accepted by the City based ott
an audit of all Contractors' bills of materials and the timecards for Work actually performed.
27.8.3 A portion of the DB Fixed Fee (overhead and profit) based on the percentage of Work completed on
the Project; however, if DB would have sustained a loss on the entire Agreement had it been
completed, City shall allow no profit under this section and shall reduce the amount payable to reflect
the indicated rate of loss.
27.8.4 D/B and Design Subcontractor services through the date of termination based on actual 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 D/B, 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, D/B 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 circumstances will D/B be entitled to any consideration for lost profit or last
opportunity costs.
27. ] ODeductlons. The amount due D/B shall be reduced by amounts including [he following:
26.10.1 Any claim that City has against D/B under this Agreement.
26.10.2 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.
26.10.3 Damages caused by D/B's breach, including Excess Costs pursuant [o Section 26.7.1.
26.10.4 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.
27.1 (Disputes. If DB does not agree that [he 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 W giver of Claims. In the event of termination under this Article XXVII, failure of DB to dispute amounts
paid in the manner and within the timeframe provided in Section 26.1 I shall act as a waiver of any and all
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claims for damages or compensation arising under this Agreement for any and all Work and Services
performed under this Agreement up to the effective date of Notice of Termination. D/B hereby expressly
acknowledges and agrees that such claims shall be waived as herein provided.
27.13Ri¢hts of Ciri Preserved. In the event that the Agreement has been terminated, the termination shall not
affect any rights or remedies of City against D/B then existing or which may thereafter accrue. Any retention
or payment of moneys due D/B by City will not release D/B from liability. It is agreed that termination
hereafter will not in any way release, waiver, or abridge any rights the City has against DB's performance
bond surety.
ARTICLE XXVIII. RECORDS AND AUDITS
28.1 Record System - Reimburseable Costs. D/B 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 Reimbursable Costs actually incurred by D/B, during the previous month. If requested
by [he City, D/B shall provide all backup documentation supporting such Reimbursable Costs.
28.2 Record Sys[em -Hard Construction Costs. D/B shall develop and maintain an accurate system for tracking
all Hard Constmction Costs it incurs on the Project. Utilizing this system, D/B shall include with each
monthly application for payment an itemization of all Hard Constmction Costs actually incurred by DB during
the previous month.
28.3 Retention of Records. D/B, contractors, and subcontractors shall maintain data and records related to this
Agreement for a period of not less than three (3) years following receipt of final payment under this Agreement
or three (3) yeazs following final settlement associated with the termination of this Agreement pursuant to
Article XXVII, above.
28.2 Audit of Records. At any time during normal business hours, during the temr of the contract plus and record
retention period and as often as the City deems necessary, D/B and any or all Conractors 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 this Agreement. D/B and all contractors or
subconvactors will permit the City to make audits of all invoices, materials, payrolls, records of persotmel, and
other data and media relating to all matters covered by this Agreement. If records are not made available within
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. D/B and DB's agents shall allow City [o audit and examine 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 nature, 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
29.1 WrN i/ tine, Any demand upon or notice required or permitted to be given by one Party to [he other Patty shall be
in writing.
29.2 Effective Date. Except in relation to Change Orders as provided for in section 28.4 or as otherwise provided
bylaw, any demand upon or notice required or permitted 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 Lauce Penza, Alpha Mechanical Inc.
29.3.2 Gordon Day, Project Manager City of Chula Vista
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29.3.3
29.4 Recipients of Chance Orders.
28 4.1 Lance Penza, Alpha Mechanical Inc.
29.4.2
29.4.3
29.5 Chance of Address(es). Notice of change of address shall be given in the manner set forth in this Article.
ARTICLE XXX. MISCELLANEOUS PROVISIONS
30.1 Headincs. All article headings are for convenience only and shall not affect the interpretation of this
Agreement.
302 Gender & Number. Whenever the context requires, the use herein of (i) the neuter gender includes [he
masculine and the feminine genders and (ii) the singular number includes the plural number.
30.3 Reference to Paracraphs. 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 into [his Agreement and are made a part
hereof.
30.5 Covenants and Conditions. Al] provisions of this Agreement expressed as either covenants or conditions on
[he part of the City or the Consultant, shall be deemed to be both covenants and conditions.
30.6 Intecration. This Agreement and the Exhibits and references incorporated into this Agreement fully express
all understandings of the Parties concerning the matters covered in this Agreement. No change, alteration, or
modification of the tetras 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 Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall no[
render any any other provision of this Agreement unenforceable, invalid, or illegal.
30.8 Draftinc Ambicuities. The Parties agree that they are aware that they have the right to be advised by
counsel with respect to the negotiations, tenus and conditions of this Agreement; and the decision of whether
or not to seek advice of counsel with respect to [his Agreement is a decision which is [he sole responsibility
of each Party. This Agreement shall not be constmed in favor of or against either Party by reason of the
extent to which each Party participated in the drafting 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 control. If a conflict exists between an
applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, tole,
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 immediately upon the identification of
any apparent conflict or inconsistency concerning this Agreement
30.10 Prompt Performance. Time 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 [he provisions of [his Agreement.
30.12 Further Assurances. City and D/B 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:
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Exhibit A - Alplta Mechanical Inc, Proposal including Project Schedule
Exhibit B - RFP -HVAC System for the Norman Park Center
30.14 Compliance with Controlling Law. The Consultant shall comply with all laws, ordinances, regulations, and
policies of the federal, state, and local governments applicable to dtis Agreement, including California Labor
Code section 1720 as amended in 2000 relating to the payment of prevailing wages, if stated in the RFP,
during the design and preconstmctiott phases 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, ordinances, 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 Attorney 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 Pany in any such suit or proceeding shall be entitled to a
reasonable award of attorney fees in addition to any other award made in such suit or proceeding.
30.16 Municipal Powers. Nothing contained in this Agreement shall be construed as a limitation upon the powers
of the City as a chartered city of [he State of California.
30.17 Administrafive Claims Requirements and Procedures. No suit or arbitration shall be brought arising out
of this agreement, against the City unless a claim has first been presented in writing and filed with the City
and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista
Municipal Code, as same may from time [o time be amended, the provisions of which are incorporated by [his
reference as if fully set forth herein, and such policies and procedures used by [he City in the implementation
of same. Upon request by City, Consultant shall meet and confer in good faith with City for the pwpose of
resolving any dispute over the terms of this Agreement.
30.18 Third Party Relationships. Nothing in this Agreement shall create a contractual 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 D/B's contracts, purchase orders and other contracts between D/B and
third party services. D/B shall incorporate [his provision into its contracts, supply agreements and purchase
orders.
30.19 Non-Assignment. The D/B shall not assign the obligations ender 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 termination 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 mot any Parties to [he Agreement have been succeeded by another entity, and all
rights and obligations created by this Agreememt 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
Agreememt that may appear to give the City any right to direct the D/B concerning the details of performing
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 performance.
30.22 Approval. Where [he consent or approval of a party is required or necessary under this Agreement, the
consent or approval shall not be unreasonably withheld.
30.23 No Waiver. No failure of either the City or the Consultant to insist upon the strict perfomance 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, temt, 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 or alter this
Agreememt, and each and every covenant, comdition, and term hereof shall continue in full force and effect to
any existing or subsequent breach.
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30.24 Si¢nine 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 sigu on behalf of the
corporation, partnership, joint venture, or entity and agrees to hold the other Party or Patties hereto harmless
if it is later determined that such authority does not exist.
IN WITNESS WHEREOF, this Agreement Che City of Chula Vista and Alpha Mechanical Inc have executed this
Agreement thereby indicating that they have read and understood same, and indicate [heir full and complete consent
to its terms.
This Agreement is dated !mot((,( C~ ` (~, 201t!(and this date shall cons[ihrte the effective date of this
Agreement.
CITY OF CHULA VISTA, A Municipal Corporation
By:
CHERYL COX, Mayor Mft{'k INPA~fi1`.PQB~ Gb-b•
Approved as to form and legality:
Glen Googins, City Attorney
Dated , 2012
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RESOLUTION NO. 2012-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A $195,673.00 DESIGN BUILD
AGREEMENT WITH ALPHA MECHANICAL FOR THE
"NORMAN PARK SENIOR CENTER HVAC SYSTEM RETROFIT
PROJECT" (GG219)
WHEREAS, the Norman Park Senior Center encompasses approximately 17,000
square feet of conditioned heating and cooling space; and
WHEREAS, the Center's heating, ventilation, and air conditioning (HVAC) system
is no longer functioning effectively and has surpassed its expected 15-year useful life; and
WHEREAS, staff proposed replacing the outdated HVAC system with a new
energy efficient model as part of the Council-approved FY12 Capital Improvement
Program; and
WHEREAS, a competitive bid process was initiated to select aDesign-Build
contractor for the project; and
WHEREAS, following interviews of the two bid respondents, Alpha Mechanical
was selected as the best respondent based on design, monetary, and time criteria for the
project; and
WHEREAS, the new system will allow the building's temperatures to be better
regulated helping to ensure a healthier and more comfortable environment for seniors and
other occupants; and
WHEREAS, the retrofit project will be funded through federal Energy Efficiency &
Conservation Block Grants.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby approve a $195,673.00 Design-Build Agreement with Alpha
Mechanical for the "Norman Park Senior Center HVAC System Retrofit Project"
(GG219).
Presented by
Richard A. Hopkins
Director of Public Works
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