HomeMy WebLinkAbout2013/07/23 Item 05TY COUNCIL
STATEMENT
~`~~ CITY OF
CHUTAVISTA
7/23/13, Item 5
ITED4 TITLE: RESOLUTION OF THE CITY COU1'CIL OF THE CITY OF
CHULA VISTA APPROVING THE DESIGN/BUILD AGREEi\~IENT
tV'ITH \\'EBCOR BUILDERS FOR THE DESIGN AND
CO\'STRUCTIOivT OF ORANGE PA IP NO. PRi 16)
SUB~4ITTED BY: DIRECTOR OF PUBLI \\TORKS
RE~TE~VED BY: CITY MANAG
ASSISTA\TT CITY 4A\TAGEF~
4hTHS VOTE: I'ES ^ NO Cl
SUi1It1Z~1RY
On January 28, 2010, the Pazks and Recreation Commission voted to approve a Parks A4aster
Plan fora 3.9-acre neighborhood pazk located on Fourth Avenue south of Orange Avenue in
western Chula Vista. The proposed park is located in the Montgomery azea; west of 1-80~ and is
within an SDG&E easement adjacent to and immediately south of the South Chula Vista Librazy.
Community input was received for the park design and park elements, which will be within the
constraints of the SDG&E power line parcel. Given that the local community voted for the name
"Orange Park" the pazk theme will reflect [he locality and the name.
E\~'IRONAZENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed project for compliance with
the California Environmental Quality Act (CEQA) and has determined that the project qualifies
.for a Class 4(b)[New gardening/landscaping] categorical exemption pursuant to Section 1 X304
[Minor Alterations to Land] of the State CEQA Guidelines, because the proposal consists of
local passive park with minimal physical changes to the environment that will introduce water
efficient landscaping. Thus; no further environmental review is necessary.
RECOi\I~IENDATION
Council adopt the resolution.
BOARDS/COD~7ISSION RECO~~'IENDATION
There will be a verbal update to the P&R Commission.
DISCUSSION
The proposed park site is located in the Montgomery azea; west of 1-805 in western Chula Vista;
along the east side of Fourth Avenue and south of the existing South Chula Vista Library on
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7/23/13, Item `~
Page 2 of 4
Orange Avenue. Existing improvements on the parcel consist of an existing electrical tower, a
pole, a 24-foot wide driveway and miscellaneous SDG&E maintenance areas. The majority of
the site is unimproved open space. The parcel measures approximately 250 feet in width by 650
feet in length and is approximately 5-10 feet lower than the existing Public Library overall. The
General Plan designation for this parcel is parkland with surrounding residential consisting of
MHP (mobile home park zone), R2P (one & two family residential zone) and R3P (apartment
residential zone).
Park improvements will consist of:
• Site grading a 150'x300' standard FBderation Internationale de Football Association
(FIFA) dimension multi-purpose field
• Playground equipment for age groups 2-5 and 5-12
• Exercise equipment
• Shade structures/picnic shelters _
• Comfort station
• Paved and gravel parking lots
• Irrigation
• Turf
• A stepped turf performance area
• Low growing trees, shrubs, ground cover, with an emphasis on low water use planting
• Mulch
• Pathways
• Fencing
• Enhanced concrete
• Benches
• Trash and recycling receptacles
• Off-leash dog area
• Half basketball court
The Montgomery Area has seven existing neighborhood parks: Lauderbach Park, Loma Verde
Park and Orange Avenue Fields, Los Ninos Park, Otay Park, Reinstra Ball Fields, SDG&E Park
and Harborside Park. All seven parks contain the typical support facilities required for
neighborhood parks. Lauderbach Park and Loma Verde Park also contain community centers
and one stand-alone recreation complex. Facilitated by City staff, several community outreach
workshops were held to gather community input. The main community group that participated
in the outreach efforts was the Southwest Chula Vista Civic Association. Staff also met with
local residents of the neighborhood. Public informational meetings were held nn September 16,
2009, and September 28, 2009. In addition, staff met and discussed the project with the local
soccer league to identify their specific needs. The workshops and meetings provided an
opportunity for residents and community leaders to voice their ideas, facility needs, wants and
opinions. The workshops also provided an opportunity for City staff to inform, educate, and
orient workshop participants about opportunities and constraints identified in the overall park
design concept. The Park Master Plan for this park was approved by the City Council on
February 18, 2010.
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7/23/13, Item S
Page 3 of 4
On October 10; 2012; the Department of Public V.'orks issued a Request for Proposals (RFP) to
qualified Design-Build firms pursuant to § 2S7 of the Cin~'s Municipal Code for the desien and
construction of Orange Park.
The folloti~ing companies were sent requests for proposals: y~iebcor Inc.; T.B. Penick, MJC
Construction and C.~V. Driver. Only three qualified companies responded to the RFP.
A five-member panel comprised of qualified City staff were approved by the City Manager for
the review process. Following the review and scoring of all three proposals; the respondents
were notified about the interview process. On January 25, 2013; all three Design/Build teams
were interviewed and their presentations were scored by the City review team. Webcor Builders
was selected as the respondent who best met the desien, monetary; and time criteria of the
project .
As part of ~~'ebcors proposal; they submitted a "Ix'ot to exceed Gross Maximum Price" of the
Project in the amount of $1;993;151 (Estimated Cost/BC) including 5398,630 for City held
project contingenc}~ and $261;025 for the design and construction documents.
Follo~+°ing City's approval of the 90% Construction Documents (CDs) V~'ebcor shall submit a
Guazanteed Maximum Price (GMP). 1f the GMP exceeds $2,391;781; staff will return to
Council for approval prior to construction.
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the Chula Vista Cirv Council and has found that
Councilmember Ramirez has property holdings within 500 feet of the boundaries of the property
which is the subject of this action. Staff is not independently aware; nor has staff been informed
by any Chula Vista Councilmember; of any other fact that may constitute a basis for a decision
maker conflict of interest in this matter.
CURRENT PEAR FISCAL IMPACT
The current project balance for PR316 is approximately 52.8 million. Therefore, sufficient funds
are available to complete construction of the park and to cover related staff costs. The project is
funded by Proposition 84 funds. There is no direct impact to the General Fund. Project costs aze
summarized below:
FUNDS REQUIRED FOR PROJECT
A. Contract Amount 51,993;151.00
B. Utilities and associated fees ~ 5250,000.00
C. Contingencies (included) S398;630.00
D. Staff Time 5158;219.00
TOTAL FUNDS REQUIRED FOR CONSTRUCTION 52;800;000.00
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7/23/13, Item S
Page 4 of 4
ONGOING FISCAL IMPACT
Upon completion of Orange Park, the City will incur additional park maintenance costs of
approximately $11,400 per acre/year for a total of $44,460 annually for 3.9 acres.
ATTACHMENTS
Design Build Agreement
Prepared by: Gordan Day, Buildireg Project Manager, Public Works Department
1:\EngineerWGENDA\CA52013\07-23-13U2EPORT-Pw-Orange Park Agenda-gary's edits.doc
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COUNCIL RESOLUTION NO.
RESOLUTION OF THE CITY COUTrCIL OF THE CITY OF
CHULA - VISTA APPROVING THE DESIGN/BUILD
AGREEMENT WITH \4'EBCOR BUILDERS FOR THE DESIGN
AND CONSTRUCTION OF OILAIx'GE PARK (CIP NO. PR316)
\\'HEREAS; the Pazk Master Plan for Orange Park was approved by City Council on
February 18. 2010: and
WHEREAS, the proposed pazk site is located in the Montgomery area, west of 1-805 in
western Chula Vista, alone the east side of Fourth Avenue and south of the existine South Chula
Vista Librazy on Orange Avenue; and
\S%HEREAS. on October 10; 2012; the Department of Public Works Engineerine Division
issued a Request for Proposals (RFP) to qualified Design-Build firms pursuant to § 2.57 of the
Citys Municipal Code; to design and construct Orange Pazk; and
W"HEREAS; RFPs were sent to the followine companies: \Vebcor Inc.; T.B. Penick;
MJC Construction and C.W. Driver. Only three qualified companies responded to the RFP; and
\\%HEREAS, \S'ebcor Builders was selected as the respondent who best met the design.
monetary; and time criteria of the project with whom the City could neeotiate an agreement to
design and construct Orange Park; and
\VTIEREAS; as part of the proposal; the R%ebcor Builders submitted a "Not to exceed
Gross Maximum Price" of the Project in the amount of 51,993,151 (Estimated Cost/EC)
including 5398;630 for City held project contingency and 5261;025 for the design and
construction documents: and
t4'HEREAS, followins Ciri's approval of the 90% Construction Documents (CDs)
Webcor Builders shall submit a Guazanteed Maximum Price (GA4P). If the GD4P exceeds
52.391.781, staff will return to Council for approval prior to construction.
NOW; THEREFORE, BE IT RESOLVED b_v the City Council of the City of Chula Vista
does hereby approve the design build agreement with Webcor Builders for the design and
construction of Orange Park (CIP No. PR316).
Presented by
Richazd A. Hopkins
Director of Public \Vorks
1:Wnornev\FINAL FtESOS AND ORD[NANCES\2013\07 16 liU2ES0-PN'-Oranee Pazk.doc
6/28/2013 2:~ i P\1 -
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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:
DESIGN BUILD AGREEMENT
BETWEEN
THE CITY OF CHULA VISTA AND
WEBCOR BUILDERS
FOR ORANGE PARK
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DESIGN BUII.D AGREEMENT FOR
THE ORANGE PARK PROJECT
THIS Agreement shall be for the design and conshuction of Orange Park and the payment of pemtitted costs
therefore ("Agreement'. This Agreement is made and entered into this , by and between THE CITY
OF CHULA VISTA, a municipal corporation ("City"), and Webcor Builders, a [ENTER TYPE OF CORPORATE
ENTITY AND PLACE OF INCORPORATION] ("Design Builder or DB'~. City and DB, when referenced
herein, tray be referred to individually as "Part}r' and collectively as "Parties." This Agreement is entered into with
reference [o the following facts:
RECTTALS
I. On January 28, 2010 the Parks and Recreation Commission voted to approve a Parks Master plan fora 3.9-acre
neighborhood patio located on Fourth Averme in Western Chula Vista The proposed park is located in the
Montgomery area, west of I-805 and is part of an SDG & E easement adjacent to and immediately south of the
South Chula Vista Library.
2. The Montgomery Area has seven existing neighborhood pazks, containing the basic support facilities required
for a neighborhood park, therefore several community outreach workshops were held to gather community
inpm for the project
3. The workshops provided an opportunity for city staff to inform, educate, and orient workshop participants
about opportunities and constraints identified in the overall park design concept
4. The City Council on February ] 8, 2010 approved 1&e pazk master plan for the site. With Council approval
State Park grant funds were applied for and later awarded to the City for construction of Orange Park.
5. .As part of that effort, on October 10, 2012, the Department of Public Works, Engineering Division, issued a
Request for Proposal (RFP), pursuant to § 2.57 of the City's Municipal Code, to design and wnsWct
replacement structures ("Project") to qualified Design-Build tirms off the Priority List.
6. The following companies were sent requests for proposals: Webcor ]nc., TB. Penick, MJC Construction and
C.W. Driver. Only Three (3) qualified companies responded to the RFP. A five member panel comprised of
qualified City staff were approved by the City Manager for the review process.
7. Following interviews of all Three (3 }respondents, Design Builder (DB) Webcor Builders; was selected as
the respondent who best met the desigt, monetary, and time criteria of the project with whom City could
negotiate an agreement
8. As part of DB's proposal, DB submitted a "Not to exceed Gross Maximum Price" of the Project in the
amount of one million nine hundred ninety-three thousand one hundred fifty-one dollars ($1,993,151.00 )
("Estimated Cost"/"EC'~.
9. Following City's approval of 90% Construction Documents ("CD's, DB shall submit a guaranteed maximum
price ("GMF'~, not to exceed the Gross Maximum Price plus City Contingency, for which the Project shall be
designed and constructed.
10. DB shall complete the Project, as a public improvement, 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, the Parties agree as
follows:
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ARTICLE I.
ADA: The Americans with Disabilities Act of 1990 and soy amendments thereto.
Acceptance: Final approval by the City Inspection Team following the Final Inspection that Project Improvements
are complete and work requred on the Punch List has been finished.
As-Bunts: Project Record Documents that aze the Contract plans modified from the original concept of the
design to reflect the ach~a] 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 acquisition of the Property,
(ii) review and approve the plans and specifications for the project improvements, and (iii) inspect the project
improvements during construction, until completion and Acceptance of the Project.
Contract Documents; Including, but not limited to: Contract Addenda, Notice Inviting Bids, Instructions to
Bidders, Bid (imcluding documentation acwmpanying Bid and any post-bid documentation submitted prior to
Notice of Awazd), the Bonds, the general wndi6ons, permits from other agencies, the Special Provisions, the Plans,
Standard Plans, Standazd 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 no[ conform to
the Contract documents is defective.
Design Build Team (DBT): Those individuals desigmated 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 in Exhibit A
Extra Work: Any City additions, modifications, or deletions to work or DB obligations under this Agreement not
within the original Scope of Work contemplated by this Agreement.
Fiaal Completion: The point at which the last of the following has occurred: (1) recordation of a Nofice of
Completion for the Project; (2) acceptance of the Project by the City; (3) submission of all documents required to be
supplied by DB 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 DB.
Greenbook: The most recent edition ofthe Standard Specifications for Public Works Construction (including any
City of Chula Vista standard special provisions).
Guaranteed Maximum Price ("GMP"): The maximum compensation to which DB may be entitled for the
performance of all Services, Work, and obligations and the satisfaction of all conditions under this Agreement,
which amount shall include all authorized costs for labor, equipment, and material to design and build a fully
functional Project in accordance with all applicable rules, regulations, and laws.
Hard Construction Costs: Direct construction costs incurred in performing the work, including taxes, delivery and
installation. Hard Construction costs shall not include DB markup, handling fees, overhead, or other chazges,
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
Envronmental 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 Carp®ter Presley-Tanner Hazardous Substance Accotmt Act (Health and Safety Code sections 25300-
25395.15), and the Hazardous Waste Control Law (Health and Safety Code sections 2SI00-2S2S0.2S). "Hazardous
Materials° shall also include asbestos or asbestos containing materials, radon gas, and petroleum or petroleum
fittctions, whether or not defined as hazardous waste or hazardous substance in any such stahrte, ordinance, rule, or
regulation
Holiday: The City-observed holidays.
Laws All Fedetal, State, or local laws, regulations, ordinances, and/or policies.
Milestones: Dates shown on the Project Schedule by which DB 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 DB to commence Work and/or Services on the Project.
Notice of Termination: A written notice from City to DB terminating the Agreement in accordance with Ar[icle
XXVII.
Project Site: The property located at Fourth and Orange Avemte and fuNrer described in Exhtbit "[INSERT]",
attached.
Reimbursable Costs: N!A '
Services: Professional services, including design and construction management of the Project that are requ¢ed 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 all Work on the Project is sufficiently
complete in accordance with 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 initially tested, and are operationally functional, subject only to
final testing, balancing and adjustments and normal Final Completion punch list work.
Title 2d: Califotia Building Standards Code, California Cade of Regulations, Title 24.
Work: All labor, materials, supplies, and equipment that are necessary tc 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
2.1 General Except as expressly provided in this Agreement, DB shall design and construct the Project in
accordance with all the terms and conditions of this Agreement, approved Plans and Specifications, and the
timeframes established by the Project Schedule, attached as Exhibit B delivering a complete and functional Project
within the Contract Time for an amount not to exceed the GMP.
ARTICLE III. TEIL17
3.1 Term of Agreement. 7}uis Agreement shall be effective on the date it is executed by the last Party to sign the
Agreement following City Council approval by Resolution. The term of this Agreement will extend from the
date of execution until satisfaction of all terms and conditions herein, unless this Agreement is earlier
terminated.
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ARTICLE Ti'. GENERAL PROJECT PERFORMANCE OBLIGATIONS
4.1 Standard of Care, Throughout the performance this Ageement, performed under this Ageement, DB agees
that all Services and Work provided as part of this Agreement shall be performed in accordance with the
standards customarily adhered to by experienced and competent professional architectural, engineering,
landscape azchitecture, and constnrction 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 sll Laws. In the performance of this Ageement, DB 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,
42.1.1 Environmental Regulations (i.e. CEQA! NEPA).
42.1.2 The Americans with Disabilities Act ("ADA°) and Title 24 of the California Building Code. It
is the sole responsibility of DB to comply with all ADA and Title 24 regulations.
4.2.1.3 The California Fau Employment and Housing Act and all other State, Federal and local laws
including, but not limited to, those prolubiting discrimination on account of race, color,
national origin, religion, age, sex or handicap.
4.2.1.4 The Clean Air Act of 1970, the Clean Water Act (33 USC 1368}Executive Order 11738, and
the Stormwater Management and Discharge Control-Ordinance No. 0-17988.
42.1.5 DB shall comply with the Essential Services Building Seismic Safety Act, SB 239 & 132.
42.1.6 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 DB shall obtain and comply with all permits necessary top complete the Project, includmg,
but not limited to Development Services Department permits and hazardous material permits.
42.1.8 Zoning, environmental, building, fire and safety codes and coverage, density and density ratios
and lien laws.
4.22 Implied Knowledge ojLaws. DB shall be responsible for all amendments or updates to standards and
of all amendments or updates to standards, whether local, state, or federal, and such knowledge will be
imputed to DB to the extent allowed by law.
4.3 Desiso and Construction Standards. [n the performance of the Services and Work covered by this
Ageement, DB shall comply the most current versions of design and construction specifications, all of which
shall be incorporated herein by this reference.
4.3.1 Standard Specifications.
4.3.1.1 Greenbook. The 2009 Edition of the Standazd Specifications for Public Works Construction.
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 2009 Edition of the Chula Vista Standard Specia] Provisions.
4.32.2 The 2012 Edition of the Regional Standazds.
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.
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4.3.4 MateriaGs Standards. DB shall use industrial grade, not residential grade, equipment and accessories
for all facets of design and construction.
4.4 Obtain City Aoomval. For any and all actions under this Agreement that require City approval, including,
but not limited to, changes or additions to Agreement, DB shall obtain approval in writing from the designated
City Representative, or when required by Law, from the City Council. DB aclmowledges 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 additions or
modifications implemented without the written authorization of the City Representative shall be home
exclusively by DB and not be grounds for an increase in G1v1P or Contract Time.
4.4.1.1 Emergency. In the event of an emergency, DB shall take all reasonable-actions necessarv~to _ _ ___
protect public health, safety or property. Such action shall not require advance City approval;
however, DB shall notify the City immediately of the emergency and as soon as reasonably
possible provide a written statement to the City explaining the emergency and the reasonable
actions taken. Provided the emergency was not caused by or its creation contnbuted to by the
DB, its employees, agents, or subconttaMors, DB maybe entitled to.reasonable compensation
-for such actions.
4.4.2 No Release From Obligations. City approval shall be a general approval only, and such approval shall
in no way release or relieve DB of responsibility for complying with all applicable laws, codes, and
good consulting, design, or construction practices.
4.5 Decision Makine. DB shall make decisions with reasonable promptness to avoid delay in the orderly
progress of DB's obligations under this Agreement and pursuant to the Project Schedule, attached as Exhibit
"B".
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 Desiru Team. City has awarded this Agreement based on the specific qualifications of DB to perform the
design services required under this Agreement. All such services shall be provided by DB unless the City has
approved of the use of Subconsultants in the manner idemified in ARicle VIII.
5.2 Services, in Phase [, DB shall perform Services including, but not limited to, the following:
5.2.1 Project Development. Develop and refine Project requirements.
522 DDD. Prepare complete DDDs, such that the DDDs include, without limitation, the following:
522.1 Site Plans. Site plan w2th pertinem notes and dimensions indicating property line; existing
public streets, sidewalks, curb cuts, other public improvements; required setbacks; service,
trash, fire lane and truck access, adjacem buildings, building outline; basketball ccurts,'multi-
use sports field, softball field, informal skate area, play areas, shelters, landscape and site
elements.
522.2 Floor Plans. Floor plans including graphically demonstrating interior and exterior walls and
fenestration with notes, dimensions and gridlines; mom names, sWCtt>ral bay spacing with
grids, critical dimensions and area calculations.
52.2.3 Roof Plans. Roof plans including detailed notes, dimensions, mechanical equipment locations,
define material for mechanical streets, skylights and roof access, roof materials, roof drainage
and establish window-washing concept.
5.2.2.4 Building Sections. Building sections, which shall include vertical dimensions, floor assembly
thickness showing known structural elements, notes and dimensions.
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52.2.5 Elevations. Exterior elevations, including material references and extent; visible rooftop
elements; existing and new line of grade; indicate of floors with leader lines; and vertical
dimensions; notes, d®ensions and grid lines.
522.6 Wall Sections. Wall sections including all wall sections, dimensions, horizontal element
offsets, and guide to exterior face of wall; dimensioos, vertical floor to floor, floor to window
head and sill and floor to ceiling; structural elements and assemblies; interior and exterior wall
finishes; and wall and roof assembly;
5.2.2.7 Outline specifications, written description of materials and components including site work
5.22.8 Traffic circulation and landscaping should also be indicated at this stage if applicable.
52.3 Code Compliance. Verify all code compliance, including building conshuction type, occupancy
~th~ai gen~ttfainSat~aad~IDt~.
52.4 Submittals. Prior to proceeding with Phase II, DB shall prepare and submit the following 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.
52.4.12 Delay/Costs. Any delay or additional costs resulting from the re-submittal shall be
borne exclusively by DB and no[ be grounds for an increase m the GMP or Contract
Time, unless the re-submittal was required for reasons outside of DB's responsrbility
or control.
5.2.4.2 Other Deliverables. 3D rendered images, color and material boards, reflected ceiling plans,
and special system or equipment plans.
ARTICLE VI. PHASE II
6.1 Phase II Services. In Phase II of the Project, DB's shall perform Services including, but are not limited to,
the following:
6.1.1 Project Development. DB shall diligently prosecute the development and refinement of Project
requirements and review such requirements with City;
6.1.2 Digital Documentation. DB shall prepaze CD's which shall include, without limitation, the following:
6.1.2.1 Architectural plans and details, including:
6.1.2.1.1 Site plan indicating general location and nature of on-site and the necessary off-site
improvements.
6.1.2. L2 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 feattaes, including
fenestration arrangements, materials, mechanical and electrical features appeazing on
the walls, roofs, and adjacent areas.
6.12. L4 Interior elevations to establish functional requrements, equipment, and all systems
locations.
6.1.2.1.5 Typical building sections showing primary sWCtural members, dimensions, and
accommodation of functional systems.
6.1.2.1.6 Typical wall sections sufficiem to indicate materials, openings, and major features.
6.1.2.2 Structural drawings including plans and sections of sufficient clazity and detail to show the
extent and type of structural system and dimensions, final structural design criteria, foundation
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design criteria, preliminary sizing of major structural components, critical coordination
clearances and applicable material lists.
6.1.2.3 Mechanical plans and details.
6.12.4 Landscape and Irrigation plan and details.
6.1.2.5 Electrical plans and details.
6.12.6 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.E 9 All Ot11erSPr ni~Ldigwing~..sOlu;dnlec~dyagrgrngand rpe,0ifiratinnq, to crt forth in rlrtail the
requirements for construction of the Project which, at a minimum, include:
6.1.2.9.1 Information customarily necessary for the use of those ht the building trades.
6.12.9.2 Documents customarily necessary to obtain regulatory agency approvals.
6.12.9.3 Color boazd and azchi[ectural rendering for required presentations.
6.12.10 Mechanical design documentation consisting of continued development and
expansion of schematic mechanical design consisting of
6.12.10.1 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, requred chases and clearances,
acoustical and vibrations control, visual mipacts and energy conservation
measures.
6.12.11 Electrical design documentation consisting of continued expansion of the schematic
electrical design consisting of.
6.12.11.1 Criteria for lighting, electrical, communications audio visual, close circuit T.V.,
lighting controls and other electrical systems typical to civic facilities, the
approximate sizes and capacities of major components leansformers-panels-switch
gam;
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 architecnsal, structural, mechanical
and electrical elements.
6.12.13 Final specifications, including but not limited to, the following:
6.1.2.13.1 Architectural. General description of the construction, including interior finishes,
types and locations of acoustical treatment, typical and special floor coverings and
fuuil exterior and interior material selection.
6.1.2.13.2 Mechanical. Description of av conditioning, heating and ventilation systems and
controls, ducts, and piping system.
6.1.2. ] 3.3 Electrical. Description of electrical services, including voltage; type and number
of feeders; Lighting systems, including lighting levels and audiovisual; security-fire
alarms; and cable antenna television rystems.
6.12.13.4 Landscape. General description of the construction, including plan materials, plant
locations, maintenance period, and irrigation systems.
6.1.2.13.5 Play Areas. Description of play equipment, including installation procedures,
type, color, finishes, and locations.
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6.1.2.13.6 Site Work. General description ofthe construction, including finishes, types of
materials and locations.
6.12.13.7 Other. Such other documents to fix and descn'be the size, quality and character of
the entire Project, its materials, and such other elements as shall be appropriate.
6.12.14 Plumbing drawings, including location and quantity of fndures, equipment sizes, room sizes
for plumbing equipment, and final specifications as appropriate.
6.1.3 Project Sequencing. DB 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. DB shall prepaze a detailed Critical Path Method schedule for all construction
components of the Project ("Detailed Construction Schedule") utilizing MicrosoftPmjed-software,. _ .. .. .
owing a mayor es ones, r s or a ma3or t pac ages, commencemen o cons con,
sequence of construction, completion of strttctural elements, and completion of the Rohr Park Shade
Structures, all of which shall conform with the dates of Substantial Completion and Final Completion
of Project.
6.1.5 Governmental Review. DB shall review, as needed, the CD's with the governmental authorities
havirigjurisdiction over the Project.
6.1.6 Accounting System. DB shall provide a masteraccounting 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. DB shall develop and implement a Project Management Plan and
Procedures including:
6.1.7.1 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 fiom the Effective
Date of Agreement
6.1.7.4 Biweekly Design and Construction meetings
6.1.75 Interface and communications with other agencies
6.1.7.6 Vendors and subcontractors management
6.1.7.7 Document control
6.1.7.8 Schedule and budget control
6.1.7.9 Quality assurance and quality control. DB shall establish and maintain a quality control
program with appropriate reviews and independent testing procedures to ensure compliance
with the Construction Documents during the construction phase.
6.6.10 Scheduling and cost control reports, which shall be provided monthly throughout the design
phase.
6.1.8 Construction Drawings and Specifications. DB shall prepare construction drawings and specifications
suitable for obtaining City-approved permits and to allow consWction.
6.1.9 Crty Approval. DB shall submit Construction Documents and obtain City approval in writing of the
Construction Documents at fifty percent (50%), seventy percent (70%), and ninety percent (90%)
completion.
6.1.9.1 Condition Precedent City approval of the Constmction Documents is a condifion precedent to
authorization to proceed with subsequent work on the Project.
6. L92 Notification, Modification, and Resubmittal. At 50%, 7D% and 90% Completion, City will
notify DB in writing within the timeframes established in the Project Schedule following
receipt of Construction Drawings of City approval, or of request for modifications. If
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modifications are requested, DB shall modify and resubmit Construction Drawings for City
approval
6.1.9.3 DB Support. DB 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 mrd Equipment Spec cations. DB shall prepare technical materials and equipment
specifications for pre-purchase.
6.1.11 Stm•eying and Testing. DB shall coordinate, perform, and complete all surveying, materials testing,
and special testing for the Project of the Project site as required by this Agreement, the State Building
Code, or any other law or regulation, m accordance with and considering the following:
_ ___ 6.1,11.1 Greenbnok 2006_ Section 2-9 titled "Surveying" and City of Chula Vista's Horizontal.and . _ ....
ono nun on a urvey n e o ap o on e t s eme vta
the following link:
httn•l/www.chulavistaca. og v/Cfh• Services/Develonment Services/Eneineerine/index.asp
6.1.11.2 Existing Conditions. DB shall obtain all necessary soils investigation and conduct
agronomic testing required for design of the Project. The Soils Consultam shall prepare a
statement that will be included in the Bidding Doctments as to the nature of soils, ground
water conditions and any other information concerning the existing conditions of the site.
6.1.11.? Utilities. DB shall provide all requited information for the construction or relocation of
Public or private utility facilities that must be constructed or relocated as a result of this
Project. DB shall file all of the required documents for the approval of audtorities having
jurisdiction over the Project and in obtaining the services of all utilities required by the
Project
6.1.11.4 Geotechnical Information. DB shall obtain all necessary geotechnical information required
for the design and construction of the Project. The Project Engineering Geologist and/or
Project Soils Engineer (qualified RC.E. or RG.E J shall prepare a statement that will be
included in the Bidding Documents, to address existing geotechnical conditions of the site
that might affect construction.
6.1.11.5 Additional Surveys. DB shall provide additional site surveys and geotechnical investigations
[o the extent that DB determines they are necessary for final design ,
6.1.11.6 Aro Reliance. DB shall not rely on City survey infomrazion as it is intended to be preliminary
in nature and may not have sufficient accuracy or scope to support fatal design.
6.1.12 Sil'PPP. DB shall prepare and incorporate into dte Construction Documents a Stortnwater Pollution
Prevention Plan ("SWPPP") to be implemented by the DB during Project construction. Where
applicable, the SWPPP shall comply with both the California Regional Water Quality Control Boazd
Statewide General Construction Storm Water permit and National Pollution Discharge Elimination
System permit requirements and any municipal regulations adopted pursuant to [he permits.
6.1.12 Alternatives. DB shall evaluate alternative structural and construction approaches to ensure
ecanomica! designs, which optimize constructability, yet meet all codes, architectural concepts,
schematic designs, and standazd specifications of the Project.
6.1.13 Permits. DB shall obtain general building permit and all ancillary permits and licenses, including but
not limited to, demolition permits, improvement permits and giading permits at 100% construction
documents.
6.1.14 Updated Costs. DB shall provide updated construction cost estimates in conjunction with the
submittals required in Section 6.1.9 to support Value Engineering ("VE") and constructability reviews.
6.1.15 Final Review and Approval of Plans and Specifications. DB 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 DB within 10 Business Days of the date such Construction Documents are
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delivered to City in accordance with the notice provisions in Article }D.'IX. Approval shall not be
unreasonably withheld. If requested by City, DB shall make changes to the Constmction Documents.
ARTICLE VII. PHASE III. -CONSTRUCTION PHASE WORK AND SERVICES
7.1 Phase III. Work and Services. T'he DB shall construct the Project in accordance with City-approved plans
and specifications prepared by the DB to meet or exceed all requtrements of the City provided program,
schematic design and the performance criteria. The DB shall;
7.7.1 Bidding. DB shall prepare and submit to the City for review sepaza[e 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.
... ompe rue ~ mg. comp ttrve y ~ e respective t pac ages or e
construction of the Project
7.1.1.2 Pre-Bid Conferences. DB shall schedule and conduct pre-bid conferences to answer questions
posed by bidders. Said answers and any other information required to provide clazification to
the Construction Documents doming the bidding process shall be issued as written addenda and
provided to all prospective bidders.
7.1.1.3 Scheduling. DB shall coordinate scheduling of bid packages, submittals.
7.1.1.4 Bid Resuks. DB shall submit to the City a summary of bid resuhs 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 al] bid protests (prior to
resohriion) and the outcome of said protests.
7.1.1.6 Equal Opportunity ContractingMondis~rtm=nation, DB shall not discriminate on the basis of
race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the
solicitation, selection, hiring or tr~eatrnent of subcontractors, vendors, or suppliers. DB shat]
provide equal opportunity for subcontractors to participate in subcontracting opportunities.
DB understands and agrees that violation of this Subsection shall be considered a material
breach of this Agreement and may result in contract termination, debarment, or other sanctions.
The language of this Subsection shall be inserted in contracts between DB and any
subcontractors, vendors, or supplier.
7.1.1.7 Executing Contracts. DB shall be responsible for entering into subcontracts, in DB's own
name, with fire bidder who in DB's discretion and professional opinion best meets the
monetary, time, and performance requirement of the Project DB shall be responsble for
ensuring that these contracts fully comply with all applicable local, state and federal laws,
some but not all of which are listed below.
7.1.1.8 Additive Ahematives. DB shall requve additive alternates for extended warranties in bid
packages for roofing and HVAC systems.
7.1.2 Meetings. DB shall conduct meetings identified below:
7.1.2.1 Preconstmction Meeting. DB shall conduct a preconstruction meeting with its officers, agents
and employees and City. The purpose of this meeting is to discuss: (i) the Agreement
conditions, (ii) Scope of Work clarifications, and (iii}City policies, inspection requirements,
and procedures.
7.1.2.1.1 Attendance. DB shall ensure that the preconstruction meeuing is attended by DB's
construction contractor, project manager, all DB's major subcontractors, the City's
project manager and all other persons necessary as detemtined by DB or City.
7.1.2.2 Progress Meetings. DB shall conduct weekly progress meetings with the City and appropriate
design and construction members,
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7.1.2.3 Contractor Meetings. DB shall conduct cemractor meetings, as necessary, to provide
technical input.
7.12.3.1 DB shall provide interpretation of technical specifications and drawings.
7.1.2.4 Rescheduling. Progress Meetings may be rescheduled ifrescheduled meeting times are .
convenient for all necessary parties, and DB has given no less than 5ve (5) Calendar Days
prior written notice of the rescheduled meeting.
7.1.2.5 Minutes. DB shall take corresponding meeting minutes and distribute copies to all attendees.
7.1.2.6 Reporting. DB shall monitor and report to the City on actual performance compared to the
Project Schedule, provide updated As-Bunts, and verify that the latest changes to the Project, if
anX, have been tn.@lie. __ . _. -- _ ...
7.1.3 Construction Management. During construction of the Project, DB shall perform and be responsible
for construction management, supervisioq and administration services, including, but not limited to,
tracking and reporting all expenses and all aspects of the constnucion and coordinating all construction
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 DB shall provide resident management and contract administratioq
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 DB resident staff shall ensure construction
compliance with applicable local, state, and federal codes, building and environmental permit
requirements, construction mitigation documents and ceforeement of the Contract Documents.
7.1.3.2 Records Management DB shall implement and maintain an internal records management and
docr~ent control system as requved to support project operations. The DB shall provide
records management and document control information in a manner consistent with the City's
reporting system.
7.13.3 Cash Flow. DB shall develop a project-specific Plan for detming, 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. DB shall keep City informed of the progress and quality of the design and
construction of the Project.
7.1.3.5 Documents On-Site. DB shall maintain a complete and up-todate set of Construction
Doctmrents in the Projects 5eld office at all times during construction that reflect all changes
and modifications.
7.1.3 Site Safety, Secrvity, and Compliance. DB shall be responsible for site safety, security, and
compliance with all related laws and regulations.
7.].3.1 Persons. DB shall be Cully responsible for the safety and security of its officers, agents, and
employees, City's officers, agents, and employees, and third parties authorized by DB to
access the Project site.
7.1.32 Enviromnental. DB shall administer and enforce the Environmental Mitigation Monitoring
and Reporting Plan for the Project, if any. In additioq DB shall report enviromnenffil issues m
the City in a manner consistent with the City's reporting system. DB shall be responsible for
the environmenffi1 consequences of the Project construction and shall comply with all related
laws and regulations, includmg the Clean Air Act of 1970, the Clean Water Act, Executive
Order number 11738, and the Stormwater Managoment and Discharge Control Ordinance No.
0-17988 and any and all Best Management Practice guidelines and pollution elimination
requirements as may be established by ilre Enforcement Official.
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7.1.3.3 Risk of Loss. DB is responsible far the Project, project site, materials, equipment, and all
other incidentals until the Project has been Accepted by the City and shall beaz any vests or
expenses associated with the loss thereof or damage thereto, including by theft, fne, or other
casualties.
7.1.4 Public Right-of--Way. Al] work, including, materials testing, special testing, and surveying to be
conducted in the Public right-of--way shall be coordinated with the City.
7.1.4.1 Materials Testing. DB shall pay for and coordinate with City to have all material tests within
the Public right-of--way and any asphalt paving completed by City's Material Testing
Laboratory.
7.1.42 Surveying. DB shall pay for and coordinate with City's Engineering Division all surveying
rernired within the Pi~hlic rig tof-w
7.1.4.3 Follow all Laws, Rules, and Regulations. DB agrees to follow all City standazds and
regulations while working in the Public right of way, including but not limited to, utilizing
proper traffic control and obtaining necessary permits.
7.1.5 Traffic Control. DB shall address all traffic control requirements for the Project including, if
necessary, separate traffic control plans and/or notes.
7.1.6 Abatemera, DB shall develop a mutually agreed upon program to abate and minimize noise, dust, and
dnseption to access for pazking and services a[ al] times for adjacent business entities and residences.
7.1.7 Inspections. DB shall coordinate any and al] requved inspections, including special inspections, in
such a manner that the progress of construction is not affected or impacted. The DB 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 Permlls. The Parties acknowledge that the construction work to be performed on the Project by DB in
compliance with this Agreement is subject to the prior issuance of building, land development, and/or
public improvement permits paid for and obtained by DB. In the event that City, or any other
governmental agency, unreasonably refuses to issue the permit(s) necessary to authorize the work to be
performed or if the permit(s) are unreasonably canceled or suspended, then DB is relieved fmm its
obligation to construct those improvements covered by the denial of said permit(s). City shall, under
such cvcumstances, pay DB the reasonable costs, not to exceed fhe amounts identified in this
Agreement, for all work completed up to the date of denial of said permit(s). All plans, specifications
and improvements wmpleted 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. DB shall ensure Project is maintained in a clean, neat, sanitary and safe condition free
from accumulation of waste materials or rubbish. Until Acceptance of the Project, DB shall be
responsible for on-going site maintenance, including any erosion prevenfion measures. Prior to Final
Completion, DB shall cause to be removed from and about the Project all tools, constmction
equipment, machinery, surplus materials, waste materials and mbbish and deliver the site to the City in
a clean, neat, sanitary and safe condition.
7.1.8.1 Waste Removal. Please be advised that Chula Vista Municipal Code 8.24.070 provides for an
exclusive franchise for the removal and conveyance of all solid waste for hire (including
recyclables) within City limits. The exclusive franchise agreement covers any hauling activity
that requires the generator oz 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 Request for Information ("RFI'). Parties acknowledge that the RFI process is solely for
correspondence between DB and its agents; however, DB shall submit copies of each RFI to City at
the within twenty-four (24) hours of receipt. DB shall issue responses to RFIs. Unless DB
specifically requests a City response, City will not respond to RFIs.
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7,1.11 Review and Approval. DB shall provide timely re~dew and approve shop drawings, samples of
construction materials, product data, schedule submittals, and other submittals for compliance with the
Construction Documents. DB shall keep the City advised of all such matters being reviewed and
approved by DB and forward copies of such documents to City for review.
7.1.12 Royalties and Other Fees. DB shall pay royalfies and ]icense fees, if applicable. DB shall defend
suits or claims for infringement of patent rights and shall defend and bold 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 N, provide updated versions of DCS
on a monthly basis, and provide immediate notice of any impact on critical path items.
ARTICLE VIII. SUBCONTRACTIlVG
8.] Sabcontractinti.
8.1.1 Design Services. DB 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 arctriteds,
engineers and other professionals (herein jointly "Design Consultants' as identified in Exhibit
[INSERT]. DB shall not be permitted to substitute any Design Consultant unless authorized by City.
8.1.2 Construction Services. DB shall perform all construction on the Project utilizing subcontractors appropriately
licensed by the California Contractors State License Boazd or other required agency.
ARTICLE 1X. PROJECT SCHEDULE
9.1 ProieM Schedule. DB shall perform and complete the Services and Work under this Agreement according to
the timeframes set forth in the Project Schedule, attached hereto as Exhibit "B", or 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. DB has submitted, as part of its proposal, a Project Schedule based on its estimate
of the time necessary to complde the Project.
9.12 D/B's Obligation. Subsequent to the effective date of this Agreemant, DB 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 DB shall submit an updated Project
Schedule monthly to the City for approval.
9.1.22 During Construction, DB shall submit an updated Project Schedule monthly [o dre City and
shall include:
9.1.22.1 Forecast Data with the intended plan for the remainder of the contrail duration.
9.1.22.2 Actual Data with indications of when and how much Work and/or Senzces was
performed (% complete).
9.1.22.3 Logic changes or other changes required to mafrttain the Project Schedule.
9.1.3 Detail 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. Project Schedule shall be submitted to City on a wmputer disk in a version of Microsoft
Project or similar program.
92 Protect Completion. DB aclmowledges drat all work on the Project ~mder this Agreement will be complete
and ready for its intended use by the Project Completion Date, January 2015.
9.3 Chanties in Protect Schedule. Changes in Project Schedule, whether to logic, defurition, or relationship must
be approved by the City in writing as a Change Order pursuant to the manner identified in Amcle 7GIII.
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ARTICLE X. DELAY IN PERFORMANCE
10.1 Time of Essence. Time is of the essence for this Ageement and each provision of this Agreement, including
the Project Schedule, Start Date, and Project Completion Date contained herein, unless otherwise specified in
this Agreement. DB shall perform all Services and Work as expeditiously as is consistent with standard of
care identified in Section 4.1.
10.2 Notification of Delay. If the DB anticipates or has reason to believe that the performance of Services andlor
Work under this Agreement will be delayed, the DB shall immediately notify the City. A written notice of the
delay must be delivered to the City within five (5) Calendaz Days of the 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
citn~nnrting~data-The nB challiriclude~a written'statementthat the time adiuchnem-requected-is-the-entire tLR1E -
adjustment to which DB has reason to believe it is entitled as a result of the cause of the delay. An increase m
time for completion does not necessarily mean that DB is entitled to an increase in GMP. If in the opinion of
the City, the delay affects a material part of the Project, the City may exercise its rights under Article XXVD of
this Agreement or any other remedy available in law or equity.
]0.3 ela . If delays in the performance of Services or Work required under this Ageement are caused by
unforeseen events beyond the control of the Parties, such delay may entitle the DB to a reasonable extension
of time or to additional compensation. Arty such extension of time must be approved in writing by the City.
The following conditions may justify such a delay: war; changes in law or government regulation; labor
disputes; stn7ces; fires, floods, adverse weather or other similar condition of the elements necessitating
cessation of the DB's work; inability to obtain materials, equipment, or labor, required additional Professional
Services; or other specific reasons agreed to between the City and the DB; 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 DB, 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 DB to an extension of time unless the DB furnishes the City, in a timely manner, documentary proof
satisfactory to City of the DB's inability to obtain materials, equipment, or labor,
10.3.1 Caused by Ciry. If DB reasonably believes that any action, inaction, decision or direction by City or
agent for the City will likely result in the GMP or Contrail Time being exceeded or the Project being
completed late, DB will notify City at Project Team meeting and in writing within five (5) calendaz
days of discovering such action, inaction, decision, or direction Included in such nofice will be an
estimate of the cost and time impact resulting from such action, inaction, decision or direction. DB
shall provide complete and accurate pricing within ten (10) calendar days of said discovery.
10.4 Costs of Delav/Liauidated Damaues. City and D/B recognize that time is of [he 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 they best efforts [e 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 DB agree that DB
shall pay as liquidated damages (but not as a penalty) for each calendar day of delay beyond the time specified
for Substantial Completion of the Project, the following amounts which DB expressly agees are "not
unreasonable under the circumstances" as defined in California Civil Code §1671(b): $100 for each calendar
day. Liquidated Damages shall not be assessed after the date on which Substantial Completion is achieved. In
lieu'of paying damages to the City, the Parties agee that City may choose to reduce the GIvIP by the amount of
the liquidated damages.
ARTICLE XI. PROJECT COSTS
11.1 Estimated Cost. The Est'unated Cost of Project, according to the RFP one million nine hundred ttinety-
three thousand one httndred fifty-one dollars ($1,993,151.00 ). The City's obligation under this
Ageement shall not exceed the Estimated Cost; however, once a GMP is determined and approved, the GMP
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shall become the not to exceed amount of the City's obligation GMP is subject to change pursuant to methods
established in this Agreement
11.1.1 Cost Schedule. The GMP has been allocated among each activity or portion of the Project ("Itemized
Cost(s)'. The Itemized Costs are included in Exhibit "A", attached. The cost incurred by the DB
for a specific activity or portion of the Project shall not exceed the associated Itemized Cost, if such
cost would result in the overall costs exceeding the GIvIP.
11.2 ~. At 90% complete construction documents, DB 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 $ 2,391,781.00 Any costs incurred by DB in
excess of said G1vIP shall be the sole responsibility of the DB, unless a Change Order is approved by
11.2.1.1 Included Costs. In calculating the GMP, DB shall include costs of the following:
11.2,1.1.1 fill Design Consultants, including but not limited to architectural, swctural, civil,
mechanical, electrical, communications, graphics and art consultants, landscape
architects, and acoustical, audio visual, lighting, and security consultants.
112.1.1.2 Estimating, value engineering and construction management.
11.2.1.1.3 Construction supervision and project management personnel, including but not
limited to superintendents, Project managers, Project secretaries, Project engineers,
Project accountants, and all other DB personnel wherever located
112.1.1.4 All on-site and off-site equipment, supplies and facilities, including but not limited
to, computers, estimating, dictating, communication and accounting equipment,
office space, trailers, 5eld equipment and storage facilities.
11.2.1.1.4. ]Option to Purchase. in no case shall the cumulative monthly rental
charges to the Project for equipment and Small Tools aced by the DB
exceed 90% of the fair market value of any one piece of equipment or
Small Tools. At City's option, the full price for equipment or Small
Tools may be paid, and City may take possession upon completion of
the Work.
11.2.1.1.5 All Hard Construction Costs.
11.2.1.1.6 DB Contingency Fund, $ 18,335.00 which shall not exceed 5% of Hard
Conswction Costs. City controlled contingency shall be $ 398,630.00
112.1.1.7 Reimbursable Costs. Example: Utility fees.
112.1.1.8 DB Fixed Fee far the complete design and construction of the entire Project as
specified in the 90% CD's.
1 L2.1.1.9 No more than $435,282.00 for Design Services and General Conditions.
112.1.1.10 All home-office and 5eld overhead costs of any type including document control
and retention;
112.1.1.11 All business license costs;
11.2.1.1.12 All profit DB intends to eam under this Agreement
11.2.1.1. ] 3 All direct and incidental costs incurred by DB, except for those specifically
identified under the General Conditions section.
112.1.1.14 N/A
112.12 Full Compensation. Unless otherwise expressly provided in this Agreement, GMP shall be
the ma~dmum amount of compensation to due to DB for all peamitted costs of any type
insured by DB in performing all sen~ces and obligations under this Agreement
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11.2.2 Itemization. DB shall provide City with an itemization of the GMP that rewnciles the GMP with the
itemized costs. The itemization shall include the following:
112.1.1 DB Fixed Fees. The fees charged by the contractor for staff, equipment, office space and overhead
during the term of the project
11.2.1.2 Hard Consttvction Coss. Hazd Construction Costs broken down into categories for each of
the major t[ades for the Project, which will include labor, material expenses, equipment vests,
and a reasonable DB Contingency Fund
1 ] 2.1.3 N/A
11.2.3 Alternate Bid Items. DB shall prepare, with the cooperation of the City, alternate bid items to assure
that the costofthe-Pcojectwill_not.exceed~the-GMP-.------------- -----..._.._..---.-
11.2.4 Adjustments to GMP Based on Approved Change Orders. GMP may be. changed, increased or
decreased, based on Change Orders approved pursuant to Article XIII.
112.5 Adjustments Based on Other Cast Increases. GMP may be 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 standazds and specifications of construction, concealed or
unknown conditions encountered in the completion of the Project, or other cause beyond DB'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 to Advance Costs. DB shall advance all costs for Project subject to Reimbursement in the manner
described in Article XVI.
11.4 Use of Project Contingencv. Project Contingency shall not be used without prior, written City approval and
shall not be used for: (i) work required due to DB's, its officers', agents' or employees' failure to perform
Work or Services according to the terms of this Agreement, in compliance with the Constmction Documemts,
and/or Law; or (ii) uninsured losses resulting from the negligence of DB, its officers, agents, or employees.
11.5 Notification of Increased Costs. If, at any time, the DB anticipates that the amount expended on the Project
will exceed the Estimated Cost or the GMP, when established, the DB shall immediately, not more than ten
(]0) Working Days from becoming aware ofthe potential increase, notify the City in writing. This written
notification shall include an itemized cost estimate and a list of recommended revisions that the DB believes
wilt bring the Project cost to within the Estimated Cost or GMP. Following the delivery of the Notice, DB
shall assist the City in reviewing the itemized cost breakdown end adjusting the Scope of Work and
establishing a revised Project, the cost of which will not exceed the Estimated Cost or GMP, once establish.
11.5.1 City Action. Following consultation with the DB, the City may choose to: (i) approve an increase in
the amount authorized far the Project; (ii) delineate a project, which maybe constructed for the budget
amount; (iii) any combination of (i) and (ii); or terminate the Project subject to 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 far use
in the Project. Upon DB's completion of plans and speciflcations, City will review and approve products
specified therein. DB 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 this Agreement or any and all laws, codes, permits
or regulations.
12.2 Substitutions. DB shall submit al] requests for product subskitutions to City in writing within thirty (30)
Calendaz Days after the date of award of the construction contract. After expiration of the thirty (30) Calendaz
Days, City will allow substitution only when a product becomes unavailable due to no fault of DB's
contractor City shall review substitution requests within thirty (30) Calendar Days of submission of such
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requests. DB agrees that City requires Consultant's input end as such DB shall coordinate a 5ve (5) Working
Day review by its Consultant.
12.2.1 Substantiate Request. DB shall include with each substitution request complete data substantiating
that the proposed substitution conforms to requirements of the Contras Documents.
122.2 D/B Representations. By submitting a substitution request, DB is representing to City all of the
following: (i) DB has investigated proposed product and determined that in all respect the proposed
product meets or exceeds the specified product; (ii) DB is providing the same warranty for the
proposed product es was available for the specified product; (iii) DB shall coordinate installation and
make any other necessary modifications which may be required for work to be complete in all respects;
and (iv) DB shall waive any claims for additional costs related to the substituted product, unless the
__... specifiedproduct.is not commercially available.
12.2.3 Separate Written Request. City will not consider either substitutions that ere implied in the product
data submittal without a separate written request or substitutions that will require substantial revision
of construction contract documenu.
12.3 Samples. _
12.3.1 Postage. Samples shall be s®t to DB's office, carriage prepaid.
123.2 Review. DB shall fwnish to City for review, prior to purchasing, fabricating, applying or installing,
(2) two samples (other than field samples) of each requved material with the required finish
12.3.2.1 Where applicable, all samples shall be 8" x ]0" 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
12.32.2 DB shall assigt a submittal number. DB 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 namq style, model, and any other necessary identifying
information.
12.3.2.3 All materials, fuvshes, and workmanship in the complete building shall be equal in every
aspect to that of the reviewed sample.
12.3.2.4 City will serum one submitted sample upon completion of City review.
12.3.2.5 DB's, or DB's agent's, field samples shall be prepared at the site. Affected finish work shall
not commence until DB or its agents have been given a written review of the field samples.
12.3.3 Not a Release of Liability. City's review of samples in no way relieves DB of DB's responsibility for
construction of Project in full compliance with all Contract Documents.
12.4 Observe Testine. R7ten appropriate, DB shall witness testing and review mazerials and equipment testing
results and provide comments regarding conformance with specification requvements.
ARTICLE XIII. CHANGE ORDERS
13.1 When Required. Change Orders shall be required in the following instances:
13.1.1 GMP. Any adjustment in GMP.
13.1.2 Contract Time. Any adjusment in Contract Time of Completion Date.
13.1.3 Use ofCoraingency Fund. At any time DB seeks to use the Contingency Fund, inrespective of impact
on the GMP or Contract Time.
13.1.4 City Requests. The City directs DB to perform Additional Services.
13.1.5 Other. Any other instance for which this Agrcement expresses that a Change Order shall be used.
13.2 Process for Agoroval of Change Orders. Within five (5) Calendar Days of any event that gives rise to the
need for a Change Order, the DB shall provide the City with written notice of the need for the same. The
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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 indvect costs end credits. All such costs and credits shall be accurately
categorized into DB Fixed Fee, Reimbursable Costs or Hard Construction Costs. DB shall also provide City
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 m the Estimated
Cos[, the City's project manager shall either approve or reject the Change Order in writing within ten
(10) Working Days ofreceiving DB's written notice, provided DB has submitted complete
documentation substantiating the need for such Change Order. If City fails to respond to DB's written
notice within the ten (] 0) Working Days, the Change Order request shall be deemed denied.
requued. 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 Auorova- of Change Orders. DB shall not procced 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 DB prior to approval shall not be reimbursed.
13.4 Failure to Agree on Cost of Change Order or Time. In the event there is any disagreement or dispute
between the Parties as to whether the DB is entitled to a Change Order, the amount of the Change Order or
any increase in Contract Time requested through the Change Order, the dispute shall be resolved by the
Director of Public Services. If the detemunation of the Director of Public Works is challenged, such challenge
shall be address in the manner identified in Section 29.17. DB shall no[ have the right to stop or delay in the
prosecution of any services or work, including services or work that is the subject of the Change Order (if
directed by the City), pending the determination of the Director of Public Services or, if applicable, final
resolution. Instead, DB shall continue diligently prosecuting all such services and work.
13.4 Full Comnensatioa. Payment to DB for Change Orders shall provide full compensation for all equipment,
materials, labor, field and home office overhead, mazk-ups, and profit necessary to complete the work. By
executing a Change Order, the DB or DB's representative acknowledges that no additional wmpensation or
claims for items of work listed in the Change Order will be allowed.
13.5 Errors and Omissions. DB shall no[ be reunbursed for any costs or expenses of a Change Order resulting
from a design en•or or omission, DB's negligence, or the negligence of any of DB's agents or subagents. DB
shall be reimbursed for any costs or expenses of a Change Order resulting from a design error or omission that
is the direct result of a City request for such design or omission. The City reserves the right to seek
reimbursements for any funds used due to errors or omissions of the Design Consultants, DB's negligence, or
the negligence of any of DB's agents, or subcontractors.
13.6 Citv Refusal to Aaarove Change Order. DB shall not have the right to terminate this Agreement for the
City's refusal to approve a Change Order pursuant to Sections 12.2.1 or and 12.2.3
ARTICLE XIV. EXTRA WORK
14.1 Citv Authority to Order Extra Work. City may at any time prior to Project Completion order Extra Work
on the Project. The Bran of all Extra Work ordered shall not exceed five percent (5%) of the Estimated Cost at
the time of the Bid Awazd, without invalidating this Agreement and without notice to any surety.
14.1.1 Requests in Writing. All requests for Extra Work shall be in writing, shall be treated as, and are
subject to the same requvements as Change Orders. DB shall not be responsible for failure to perform
Extra Work, which was requested in a manner inconsistent with this section.
14.2 Bonds Reouired for Extra Work. DB'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
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14.3 Reimbursement for Extra Work Work performed by DB as Extra Work is reimbursable in the same
manner described in Article XVI. The Project contingency as described in Article X, will be used first to cover
the costs of Extra Work.
14.4 Markus DB 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 CONDTTIONS
15.1 Chanced Conditions. Changed Conditions shall be addressed under the Greenbook section 3-0; however,
Parties acknowledge that even if Changed Conditions ere 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
approval of additional funds, DB shall provide City with value engineering and Parties will return Project to.
ARTICLE XVI. PAY11'IFNT TERMS
16.1 Pavment
16.1.1 Funds for Paymert. DB shall only be entitled to payment for Services and Work performed under this
Agreement ti•om the funds appropriated for the Project. "
16.1.3 Maximum Paymerrt. DB shall be entitled to payment in an amount not to excced the GMP or
subsequently approved increase in GMP. DB is not entitled to payment for unapproved expenses,
unapproved increases m costs, or other increases caused by DB negligence, omissions, or failure to
seek approval for additional or increased costs.
16.1.5 Application for Paymera . DB shall submit to City a certificate and application for payment on or
before the 5'h 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
a~ payme~s previously made by the City, incurred or advanced for the Project for which DB was
has not previously received payment The Payment Application must include all relevant docunents
in accordance w~dt Section 15.1.6. If the City determines that all relevant documents have not been
submitted, City shall request that DB provide additional documentation. DB shall provide additional
documentation within ten (10) Working Days of request City_ is not obligated to make payment to DB
umil City has received all relevam documentation to support Reimbursement Request. After all
appropriate cost documentation has been received and City approves fire Paymettt Application, City
shall make payment m DB of all uncontested charges within sixty (60) Calendar Days of receipt of a
corrrplete Payment Application.
16.1.5.1 Withholding. From each payment, five percent (5%) will be deducted and retained by the
City, and the remainder will be paid in accordance with the tents and conditions of this
Agreement. No payment made to DB 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 DB, 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 Nithholding. The City will pay the DB for the amounts withheld thirty-five (35)
Calendar Days from recordation of the Notice of Completion, which the City will promptly
file upon completion of the Work, providing that no Stop Notices or Mechanic's Liens have
been Sled since the recordation of the Notice of Completion.
16.1.5.2.1 Where a Stop Notice or Mechanic's Lien has been filed following the recordation of
the Notice of Completion, the amount in controversy shall continue to be withheld
until a fully executed release of Stop Notice or Mechanic's Lien hes 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. DB shall
not have the right to stop or delay in the prosecution or any Services of Work, pending the
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determination of the Director of Public Works or, if applicable, fma] resolution. Instead DB
shall continue to diligently prosecute all Work and Services. During the time of the dispute,
the City shall withhold the amount of the chazge in question.
16.1.5.3 Cutoff for Submission of Reimbursement Requests. DB shall submit all Reimbursement
Requests within six (6) months of the date on which Final Completion occurs and City
accepts the Project Any Reimbursement Request submitted after the CutoffDate shall not be
reviewed or included in Reimbursable Cost
16.1.6 Ver~catian of Reimbursement Request. DB shall supply documentation to support the
Reimbursement Request including, but not limited to, proof that all mechanic liens have been released,
copies of invoices received and copies of cancelled checks, substitute checks, or image replacement
doctnnents showing that payment has been made in connection with the Reimbursement Request in the
16.1.6.1 DB 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 prepaze 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 fair value, as determined by City, of property
that is destroyed, lost, stolen, or damaged rendering it undeliverable or unusable for City. In addition, DB is not
entitled to reimbursement for any cost or expenditure that has not been approved by the City in the manner requved
by this Agreement or the City Charter and rules, regulations, or laws promulgated there-under.
ARTICLE XVII. INSPECTION
17.1 [nsoection Team. The Project shall be inspected by a team composed a1; at a minimum, the following: i.)
representatives of the City, ii.) representative from DB's Design Team, iii.) the Construction Manager, and
iv.Representative, (iii) DB's Consultant(s), and (e) the DB's construction superintendent.[Inspection Team]
17.2 Inspection Staves. The Project shall be inspected by the Inspection Team at minimum during the following
stages: (i) when required by code, (ii.) as directed by the "Special Inspections" provision, (iii) bi-weekly.,
17.3 Access. City, its consultants, subcontractors, independent testing laboratories as well as other governmental
agencies with jurisdictional interests will have access at reasonable times with the project managers approval
for this observation, inspecting and testing. DB shall provide them proper and safe conditions for such access
and advise them of DB's safety procedures and programs so that they may comply.
17.4 Additional Inspections. City will make, or have made, such inspections and tests, as the City deems
necessary to see that the Work is being accomplished in accordance with the requ'vements of the Construction.
17.5 Notice. DB 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 lasoection. Unless othenx~se specified, the cost of inspection and testing will be borne by the City.
Any expenses associated with re-inspection shall be borne by DB.
17.7 Cancealinv Work Prior to concealing work, DB shall obtain approval of work from the City and as required
by all State Building Codes. City has the right to stop or suspend Work activities which will conceal or cover
up DB Work product which is to be inspected or tested, or which will interfere with the inspection or testing
activities, for a reasonable time and DB will have no right to additional cost or time it may incur as a result of
the Work stoppage.
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17.8 Defective Work In the event such inspections or tests reveal non-compliance wilt the requirements of the
Construction Documents or defective work, the provisions and process of Article XXII shal] apply.
17.9 Not a Waiver of Obli¢ations. Neither observations by the City nor inspections, tests, or approvals by City or
others shall relieve DB from DB's obligations to perform the Work in accordance with the Conswction
Documents. This approval is general approval only and in no way relieves DB of its sole responsibilities under
this Agreement or any and all Ltws, codes, permits or regulations.
ARTICLE XVID. PROJECT COMPLETION
18.1 Notice to City. When DB determines that the Project is complete, DB shall notify the City in writing of the
Projects status w7thin seven ('>) Calendar Days of the DB's determination. The notice shall certify to City that
and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating
to the Project.
18.2 Walk-Tbroaeh 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 htspection'~. The Walk-
Through Inspection will be conducted by the Inspection Team identified in Article XVQ, Section 16.1.
18.2.1 Punch List A Punch List, if necessary, shall be prepazed by City during the Walk-Through Inspection.
The Punch List shall be presented to DB by the RE within three (3) Working Days of the Walk-
- Through Inspection. DB shall correct the items listed on the Punch List within thirty (30) Calendar
Days of receipt of the punch list and prior to dte Final Inspection
18.2.2 Failure to Ident~ Items. As to any items not included on the Punch List or later discovered, nothing
in this section is imended to limit DB's obligations tinder this Agreement and City will maintain all
remedies available tinder this Agreement and the law.
18.3 Eguipmept Demonstration. Prior to final inspection, DB 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 shall supervise, manage, and coordinate all project startup and testing activities for
mechanical rystems within the provisions of the project Cotttrad Doctnnents.
18.3.2 Reporting. The DB shall report progress of project startup and testing to the City in a manner
consistent with the City's reporting system.
18.4 Final Iasttertiop. Provided DB has corrected the Punch List items and notified the Ciry of the correction
("Notice of Correction', the Final Inspection for the Project shall be scheduled and conducted writ&in Watery
(90) Calendar Days of the Notice of Correction
ARTICLE XDZ 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 dte Project
("Acceptance'. Upon Acceptance, DB shall do all of the following:
19.1. l Notice of Completion DB shall execute and file a Notice of Completion with the Cdunty Recorder of
San Diego Cotmty and shall provide the RE with a conformed copy of the recorded Notice of
Completion.
19.1.2 Lien and Material Releases. DB shall cause all contractors and subcontractors to provide lien and
material releases as to the Project and provide copies of such lien and material tleases 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.
19.2 Final Completion. Final Completion of the Project shall be deemed to occtn 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
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documents required to be supplied by DB to City purarant to this Agreement, including As-Built Drawings,
waranties, and operating and maintenance manuals; or issuance of a final certi5cate of occupancy.
19.2. ] 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 mylaz set and three
(3) final blueline sets of As-Builts stamped by the azchitect/engineer ofrecord as required by law.
19.2 No Waiver. DB'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
by City to DB under the Contract Documents, nor any use or occupancy of the Project or any part thereof by
City, nor any act of aceeptance 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 Project Deliverables. Prior to Acceptance, DB shall deliver all of the following to the City in the format
required:
20.1.1 As-Builts. DB shall provide As-Builts on 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 to within one (1) inch, the centerline of each run
of conduits and circuits, piping, ducts, and other similaz items as determined by City, both
concealed and visible. DB shall clearly identify the item by accurate note such as "cast 'von
drein," galvanized water, etc. DB shall cleazly show, by symbol or note, the vertical location
of the item ("under slab", "ur ceiling", "exposed", etc.), and make all identification
sufficiently descriptive that it may be related reliably to the specification. DB shall
thoroughly coordinate all changes onthe 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. ]. L2 DB shall include all of the following on the As-Builts:
20.1.10.2.1Depth of foundation in relation to finished fast floor.
20.1.102.2Horizontal 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 ofthe sWcture.
20.1.10.2.4Field changes of dimensions and details.
20.1.10.2.SChanges authorized by approved proposalrequests, consUuction Change Orders,
discussion with City that resulted in any change/deviation from City's program,
specifications, approved plans, equipment or materials.
20.1.10.2.6Detailsoot 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 information.
20.1.10.2.8Show locations of all utilities on-site with size, and type of pipe, if different than
specified, and 'invert elevations of pipe at major grade and alignment changes.
20.1.102.9The title "PROJECT RECORD" in 3/8" letters.
20.1.10.3 DB shall maintain a set of As-Builts a[ the Project site for reference. DB 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
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descn'be 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 wlors for each change.
20.1.11 Operation and Maintenance Manuals. DB shall submit all Operation and Maintenance manuals
prepazed in the following manner:
20.1.11.1 In triplicate, bound in 8'/a x 11 inch (216 x 279 mm) three-ring size binders witlt durable
plastic covets prior to City's Final Inspection.
20.1.1 l.2 A separate volume for each system, includmg but not limited to, mechanical, electrical,
plumbing, roofing, irrigation, and any other system as determined by City, with a table of
contents and index tabs in each volume as follows:
.. .. art rte g names, es, an ep one num ers o s
subcontractors, agents, suppliers, manufachsers, and installers.
20.1.11.2.2Part 2: Operation and Maintenance Instructions, arranged by specification
division or system. For each specification division or system, provide names,
addresses and telephone numbers of DB's agents, suppliers, manufacturers, and
installers. In addition, list the following: (i) appropriate design criteria; (ii) list of
equipment; (iii) parts lisp, (iv) operating instructions;(v) maintenance instructions,
equipment; (vi) maintenance instructions, 5nishes; (vii) shop drawings and
product data; and (viii) warranties.
20.2 Ownership of Protect Deliverables. Upon Final Completion or Termination, Project Deliverables shall
become the property of the City. DB and City mutually agree that the Contract documents for the Project
shall not be used on any other work without the consent of each Party. Assemble and deliver to City upon
Final Completian all records, documents, warranties, bonds, guarantees, maintenance/ service contracts, and
maintenance and operating manuals
ARTICLE XXI. WARRANTIES
21.1 Warranties Reaaired. DB shall provide and require its agents to provide the warranties listed below. This
warranty requirement is not intended to exclude, and shall not exclude, other implicit or explicit warratties of
guarantees required or implied by law.
21.1.1 Materials and workmanship. DB shall guarantee, and shall require its agents to guarantee, all work
on the Project against defective workmanship and materials famished by DB for a period of two (2)
years from the date of Project's Final Completion. DB 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. DB shall warrant and guarantee, and shall require its agetrts to
warrant and guarantee, to City that all materials and equipment incorporated into the Project are new
unless otherwise specified.
21.1.3 Desrgn, Construction, and Other Defects. DB shall warrant and guarantee, and shall require its agents
to warrant and guarantee to City that all work is in accordance with the Plans and Specifications and is
not defective in any way in design, construction or otherwise.
21.2 Form and Cooteot. Except manufachuer's standazd printed warranties, all warranties shall be on DB's and
DB's agent's, material supplier's, installer's or manufacturer's own letterhead, addressed to City. All
warranties shall be submitted in the format specified in this section, modified as approved by Ciry to suit the
conditions pertaining to the warranty.
21.2.1 Durable Binder. Obtain warranties, executed in triplicate by DB, DB's agents, installers, and
manufacturers. Provide Table of Contents and assemble in binder with durable plastic cover.
21.2.2 Table ofCorueras. All warranties shall be listed and typewritten in dre sequence of the Table of
Contents of the Project manual, with each item identified with the number and title of the specification
section in v,•hic6 specified, and the name of product or work item.
23 2 9
21.2.3 Index Tabs. Separate each warranty with index tab sheets keyed to the Table of Contents listing.
21.2.4 Detail. Provide full information, using separate typewrittensheets, as necessary. Lis[ DB's agents,
installer, and manufacturer, with name, address and telephone number of responsible principal.
21.25 Warranty Start Date. Except for items put into use with DB'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 Signatwe and Notarization. All warranties shall be signed and notarized. Signatures shall be required
from DB's construction contractor and where appropriate, the responsible subcontractor.
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.
7n'i 1 Plnn[r, '~_~,.., a Ch h N t 'thcr ~i ^,g h 11 ch hgy~nrl grq and rOV[2511a1J.18Ve a n'nr
(90) Calendar Day warranty period and trees shall have a one (]) yeaz warranty period. All plant
warranties shall commence from the date of Final Completion
21.4 MeetinQS. During the two (2) year warranty period described in Section 20.3, DB 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 shat! 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 Inspection. At 180 and 360 days following Final Completion, during the one-yeaz general building
warranty period, DB shall inspect each component of the Project, identify items requirurg repay, 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 Realacement. If within the designated warranty period, or such additonal period as
may be required by law or regulation, the Project is discovered to contain Defective Work, ~e DB shall
promptly and in accordance with the City's written instructions and within the reasonable tune limits stated
therein, either correct the Defective-Work, or if i[ 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 DB's failure
to adhere to section 2 C.1, City may correct, remove, or replace the Defective Work. In 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 conection or removal and replacement.
22.3 Non-Reimbursable Costs. All costs incurred by DB or DB's agents to remedy defects are oon-reimbursable
costs. If the City has already reimbursed the DB 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 DB's
bond if DB has been paid in full.
22.4 Extension of Warranty. When Defective Work, or damage therefrom, has been corrected, removed, or
reph+ced during the warranty period, the two (2) yeaz, ar relevant warranty period, will be emended for an
additional two (2) years from the date of the satisfactory completion of the correction, removal, or replacement.
22.5 No Limitation o0 other Remedies. Exercise of the remedies for defects pursuant to this Article shall not limit
the remedies City may ptnsue under this Ageement or law.
22.6 Disputes. If DB and City aze unable to reach agreement on disputed work, City may direct DB to proceed
with the work and compensate DB 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. DB shall maintain and keep all records relating to disputed work for a period of three (3) years in
accordance with Article XXVIII.
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ARTICLE XXIII. MAINTENANCE OF LANDSCAPING 8: IRRIGATION WORK
23.1 Maintenance Period. If DB is requited to install or maintain landscaping and/or irrigation, DB shall provide
a maintenance period which shall begin on the first day after all landscape andurigation work on the Project is
complete, checked, approved by City, and City has given written approval to begin the maintenance period,
and shall continue thereafter for ninety (90) Calendar Days or until Project Acceptance, whichever is longer.
23.2 Maintenance Area. DB or DB's Contractor shall maintain all involved areas of the Project.
23.3 Maintenance Required. DB or DB's Contractor shall conduct regular planting maintenance operations
immediately afer each plant is planted. Plants shall be kept in a healthy, growing condition and in a visually
pleasing appearance by watering, ptullhrg, mowing, rolling, trimming, edging, feRilizing, restaking, pest and
Landscape areas shall be kept free of weeds, noxious grass and all other undesired vegetative growth and
debris. DB or DB's Contractor shall replace all plants found to be dead or in an impaired condition within
fourteen (14) days. Maintenance shall also include the following: (i) Filling and replanting of any Iow areas
which may cause standing water, (ii) Adjusting of sprinkler head height and watering pattern; (iii) Filling and
recompaction of eroded areas; (iv) Weekly removal of trash, litter, clippings and foreign debris; (v) Inspecting
plants at least twice per week; (vi) Protecting all planting areas against traffic ar other potential causes of
damage.
23.4 Landscane and Irtieation InsneMiog. At the conclusion of the maintenance period, City shall inspect the
landscaping and imgation to determine the acceptability of the work, including maintenance. This inspection
shall be scheduled with two (2) weeks notice, a minimum of ninety (90) Calendaz Days after the plant
maintenance period commencement, or when the DB or DB's contractor notifies the City that they are ready
for the final inspection, whichever comes last The City will notify DB of al! deficiencies revealed by the
inspection before acceptance.
23.5 Eatensiog of Maintenance Period. DB shall extend completion of the maintenance period when, in City's
opinion, improper maintenance and/or possible poor or unheahhy condition of planted material is evident at the
trrtnination of the scheduled maintenance period. DB shall be responsible for additional maintenance of the
work until all of the work is completed and acceptable. Additional costs for faIlure to maintain landscaping
during the Maintenance Period are not Reimbursable Costs.
23.6 Replacement Plants found to be dead or not in a vigorous condition, or if root balls have been damaged,
within the installation, maintenance and guarantee periods, shall be replaced within fowteen (14) Working
Days of notification by City. DB shall include, at DB's or DB's Contractor's expense, a timely written
diagnosis of plant health by a certified Arborist, should a dispute arise. Atborist's report shall indicate reason
for lack of vigor, potential remedies, if any, and estimate of time required to regain vigor and specified size.
23.6.1 Same Kind and Size. Plants used for replacement shall be same kind and size as specified and shall be
famished, planted and fertilized as originally specified. Cost of all repair work to existing
improvements damaged during replacements shall be home by DB and shall not be Reimbursable
Costs.
ARTICLE XXIV. BONDS
24.1 Pavment Bond. DB shall provide or require its Construction Contractor to provide City with a Payment
(material and labor) Bond in favor of City for one hundred percent (100%) of the Hard Constmction Costs.
24.2 Performance Boad. DB shall provide or require its Construction Contractor to provide City with a Faithful
Performance Bond in favor of the City for one hundred percent (100%) of the GMP.
24.3 Term. The Payment Bond shall remain in full force and effect at least until are Project is accepted by the City
end all claims for materials and labor are 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 fotce for thirty (30) Calendar Days following the filing date of the Notice of Completion and
Acceptance, at which time it will convert to a ten percent (] 0%) warranty bond, which shall remain in place
until the end of all warranty periods set forth in this Agreement
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24.4 Certificate of Agencv. All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
24.5 Licensing sod Rating. The bonds shall be duly executed by responsible surety companies admitted to do
business in the State of California, licensed or authorized in the jurisdiction in which the project is located to
issue bonds for the limits required by this agreement, listed as approved by the United States Department of
Treasury Circular 570, and whose underwriting limitation is sufficient to issue bonds in the amount required by
this agreement and which also satisfy the requirements stated in Section 995.660 of the Code of Civil
Procedure, except as provided otherwise by laws or regulations, secured through an authorized agent with an
office in California, and have a minimum AM Best rating of "A--".
24.6 Form.. All bonds shall be in the form prescribed by City Attorney.
4 6 incolvenev or nkruotev. Ifthe curety nn and bond firrnished b~ the Cnnstn~ction (:ontractnr is declared
barrlmrpt or becomes insolvent or its right to do business is terminated in any state where any part of the
Project is located, DB shall within Bevan (7) Calendaz Days thereafter substitute or require the substitution of
another bond and surety, acceptable to the City.
ARTICLE XXV. INDEMNITY & DUTY TO DEFEND- -
25.1 Indemuitv Defense and Hold Harmless -General Requirement. Except for liability for Professional
Services covered under Section 25.2, DB shall defend, indemnify, protect and hold harmless the City, its
elected and appointed officers and employees, from and against any and all claims, demands, causes of action,
costs, expenses, liability, lass, damage or injury, in law or equity, to property or persons, including wrongful
death, hr any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct
of DB, 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 the City, its officers, employees. Also covered is liability arising
from, connected with, caused by or claimed to be caused by the active or passive negligent ads or omissions of
the City, its agents, officers, or employees which may be in combination with the passive neghgent ads or
omissions of the DB, 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 azchiteds, 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 ot; pertaining to, or relating
to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials,
officers, employces, agents, DBs, 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 claimed to
be caused by the passive negligent acts or omissions of the City, its agents, officers, or employees which may
be in combination with the active or passive negligent ads or omissions of the Design Professional, its
employees, agents or officers, or any third party. The Design Professional's duty to indemnify, protect and
hold harmless shall not include any claims or liabilities arising from the sole negligence or sole 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 Stop Notices. The DB shall keep the Project and Property free of any
mechanic's liens and immediately secure the release of any stop notices. The DB 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 to, attorney fees, arising from or attributable to a failure
to pay claimants. DB shall be responsible for payment of all persons entitled to assert liens and stop notices
Nothing contained herein shall requrre DB to indemnify the City for liens or stop notices that are the result of
the City's failure to fulfill its payment obligations under this Agreement.
25.4 Indemnification for Hazardous Materiels. DB 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
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Hazardous Materials iderrtified in the Phase I or Phase II Reports, if any, conducted pursuant to Article V.
DB's indemnity shall survive the close of escrow. Seller expressly preserves its rights against other parries
and does not release, or waive its rigbts to contribution against, any other party.
25.5 Costs of Defense and Award. Included in the obligations in Sections 24.1 through 24.4, above, is the DB's
obligation to defend, at DB's own 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. DB shall pay and satisfy any judgment, award or decree that may be
rendered against City or its directors, officials, officers, employees, agents andlor volunteers, for any and all
legal expense and cost incurred by each of ffiem in connection therewith.
25.6 Insurance Proceeds. DB'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 vohmteers.
25.7 Enforcement Costs. DB agrees to pay any and all costs City incurs enforcing the indemnity and defense
provisions set forth in this Article XXV.
25.8 Sarvn•aL Consultant's obligations ands this Article XXV shall survive the termination of ails Agreement.
ARTICLE XXVI. INSURANCE
26.1 General DB 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 evidrnce 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 Tsves of Insurance. At all times during the term of this Agreement, DB 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 ]SO Occurrence form CG 00 Ol 07 98 or
an equivalent form providing coverage at least as broad and which shall cover Lability 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 rndorsemrn[ or modification of the CGL Insurance limiting the
scope of coverage for eidrer "insured vs. insured" clahns or conhachral liability. Contrnctor shall
maintain the same or equivalent CGL hnsurance as described herein for at least ten (] 0) 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 (S2,000,000) per
occurrence for Bodily Injury, Personal Injury, or Property Damage. If Commercial General Liability
Insurance or other farm with a general aggregate limit shall apply separately to this projectllocation,
the general aggregate limit shall be twice the required occurrence limit
26.2.2 Commercial Automobile Liability. For all of DB's automobiles used in conjunction with the Project
including owned, Erred and non-owned automobiles, DB shall keep m 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 equivalnt form providing coverage at least as broad in tare 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 shall be
outside the policy.
262.3 Architects and Engineers Professional Liability. For all of DB's employees who are subject to
this Agreement, DB shall keep in full force and effect, or DB shall require that its
azchitect/rngineer(s) ofrecord keep in full force and effect errors and omissions insmarice providing
coverage for professional liability with a combined single limit of one million dollars ($1,000,000) per
claim and two million dollars ($2,000,000) annual aggregate. DB shall ensure both that (i) this policy
retroactive date is on or before the date of commencement of the Project; and (ii) this policy has a
reporting period of three (3) years after the date of completion or termination of this Agreement. DB
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agrees that for the time period defined above, there will be no changes or endorsements to the policy
that increases the City's exposure to loss.
26.2.4 Excess Liability. DB shall provide Excess Liability Insurance affording three million dollars
($3,000,000) hr excess of General Liability and Employer's Liability limits afforded on primary
policies. The coverage will be subject to the same terms, conditions, end exclusions found in the
primary policies.
26.2.5 Contractors Pollution Liability. If the DB or its Contractors' Work includes cleanup, removal,
storage, or otherwise 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
occurrence/aggregate for bodily injury, property damage and remediation.
262.5.1 Claims made 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 +n~~ra*+ce shall include Contractual Liability coverage. Such policy shall
be endorsed to specifically provide for Work performed under the Agreement.
26.2.5.3 The DB or its Contractors of any tier shall famish to the City a policy or Certificate of
Contactors Pollution Liability Insurance in which the City, its elected and appointed
officers, employees, and agents, and the DB are named as additional insureds. The policy or
Certificate must plainly designate the name of the Project, name of the Disposal -Site, and
the permits secured for its disposal. This Certificate must be famished to the City,
evidencing compliance with the outlined requirements, prior to the DB or Contractor
beginning their Work on the Project. Any failure to famish this policy or Certificate of
Insurance shall not relieve the DB or Contractor from their obligations under this Section.
26.2.6 Hazardous Transporters Pollution Liability. If the DB's or its contractors' Work includes
transportation of hazardous or toxic chemicals, materials, substances or any other pollutants the DB
or its Contractor of any tier shall provide, at their expense, Transporters Polluton 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) yeaz 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 DB or its contractors of any tier shall firmish the City with a policy or
Certificate of Hazardous Transporters Pollution Liability Insurance in which the City, its
elected and appointed officers and employees, and agents, the DB, and any upper tiered
contractor are named additional insureds.
26.2.6.3 The policy or Certificate must plainty designate the name of the Project, name of the
Disposal Site, and the permits secured for its disposal. This Certificate must be furnished to
the City, evidencing compliance with the outlined requirements, prior to the DB or
Contractor beginning their Work on the Project. Any failure to famish this policy or
Certificate of Insurance shall not relieve the DB or Contractor from they obligations under
this Section.
26.2.7 Worker's Compensation For all of DB's employees who aze subject to this Agreement and to the
extent required by the State of California, DB shall keep in full force and effect, a Workers'
Compensation Insurance and Employers' Liability Insurance to protect DB against all claims under
applicable state workers' compensation laws. The City, its elected officials, and employees will not be
responsible for any claims in law or equity occasioned by the failure of the DB to comply with the
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 emplyee, and a one million dollars ($1,000,000) for Bodily Injury by
Disease policy limit.
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262.7.1 Prior to the execution of the Agreement by the City, the DB 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, inaccordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of the ConhaM."
26.2.8 Builder's Risk To the extent commercially available, the City shall provide a policy of "all risk"
Builders Risk Insurance. DB shall add City and its respective elected officials, officers, employees,
agents, and representatives to dte policy as loss payees, to the extent such insurance is commercially
available. Coverage will be provided for the Replacement Cost of Materials, Equipme~ and FixNres
destined to become a permanent part of the structure, and coverage will include Property in Transit and
o m r e orage. a o r cons ion con c r, an e cons on
contrador's subcontractors to the policy as additional named insareds or loss payees, to the extent theQ
interest may appeaz. The limit for this policy shall be a minvnum of $ $ 2,391,781.00 (GMP dollar
amount to reflect projeM soft and hard costs). It shall be DB's responsibility to bear the expense of
a~ deductible. The Builders Risk coverage shall expire at the t®e such insured property is occupied
by City, or a Notice of Completion is filed, whichever occurs fit Contractor and its Subcontractors
will be solely responsible for any loss or damage to their personal property, including contractor's
tools and equ~ment owned, used, leased or rented by the Contractor or Subcontractor.
26.3 Refine Requirements. Except for State Compensation Insurance Fund, all insurance required by express
provision of this Agreement shall be carried only by responsible insurance companies that have been given at
least an "A" or "A--" and "V" rating by AM BEST, that are authorized by the California Insurance
Commissioner to do business in the State of California, and that have been approved by the City.
26.3.1 Non-Admitted Carriers. The City will accept insurance provided by non-admitted, "surplus lines"
carriers only if the carrier is authorized to do business in the State of California and is included on the
List of Eligible Surplus Lines Insurers [LESLI list] widt a current AM BEST rating of no less than
A:X.
26.4 Endorsements Required. Each policy required under Article XXV[, section 25.2 ofthis 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
Wodcers Compensation, the Ciry 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 Instved 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 (1 !/85) or equivalent, specifically, coverage afforded City
must be Printery and must not exclude Completed Opcations. The coverage for Projects for
which the Engineer's Estimate is one million dollars (51,000,000) or more shall include
liability arising out of: (i) Ongoing operations performed DB or on DB's behalf, (ii) DB's
products, (iii) DB's work, including but not lhnited to wmpleted operations performed by
DB or on DB's behalf; or (iv) premises owned, leased, wntrolled, or used by DB; 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 DB
or an DB's behalf; (ii) DB's products, work, including but not limited to completed
operations performed by DB or on DB'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, otHcers,
employees, agents, and representatives in any case where an agreement to indemnity the City
of Chula Vista and its respective elected officials, ofEcers, employees, agents, and
representatives would be invalid under subdivision (b) of Section 2782 of the California
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Civil Code. In any case where a claim or loss enwmpasses the negligence of the Insured and
the active negligence of the City of City of Chula Vista and its respective elected officials,
officers, employees, agents, and representatives that is not covered because of California
Insurance Code Section 11580.04, the 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 Ol 12 90 or a later version of this
form or equivalent form providing coverage at leas[ 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.l~1, hired or borrowed by or on behalf of the Contractor Fxcent
that in connection with, collateral to, or affecting any construction contract to which the
provisions of subdivision (b) of Section 2782 of the Califomia 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
represen[afives 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 ariy case where a claim
or loss encompasses the negligence of the Insured and the active negligence of the City of
Chula Vista and its respective elected officials, officers, employees, agents, and
representatives that is not covered because of California Insurance Code Section 11580.04,
the insurer's obligation to the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be limited to obligations permitted by Califomia
Insurance Cade Section 11580.04.
26.4.2 Primary and Non-Corrtribtttory. The policies aze primazy and non-contributing to any insurance or
self-insurance that may be carried by the City of Chula Vista, its elected officials, officers, employees,
agents, and representatives with respect to operations, including the completed operations if
appropriate, of the l~Tamed Insured. Any insurance maintained by the City of Chula V ista and its
elected officials, officers, employees, agents, and representatives shall be in excess of DB's insurance
and shall not contribute to it.
26.4.3 Waiver ojSubrogation. 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 Desigoated
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.
26.4.5 Written Nottce. Except as provided for under Califomia law, the policies cannot be canceled, non-
renewed or materially changed except after thirty (30) Calendar Days prior written notice by DB to
the City by certified mail, as reflected in an endorsement which shall be submitted to 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 certificates.
26.4.6 Additional Insurance. DB may obtain additional insurance not required by this Agreement.
26.4.7 Prior to Starting Work. Before performing any work, DB shall provide the City with all Certificates
of Insurance accompanied by all endorsements.
26.5 Subcontractors. All coverages for subcontractors or subwnsultants shall be subject to all of the requirements
stated herein. Subcontractors ahd Subconsultants shall be protected against risk of loss by maintaining
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insurance in the categories and at the limits required herein. Subcontractors and Subconsultants shall name
City and DB as additional insureds render its policies.
26.6 Oblicatioo to Provide Docaments. The DB 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 DB 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 DB.
26.7 Dedactibles/Self Insured Retentions. All deductibles end self-insurance retentions on any policy shall be the
responstbility of DB. Deductibles and self-insurance retemions 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 acrd related investigations, claim administration and defense expenses.
26.8 Policy Chances. DB shall not modify any policy or endorsement thereto which increases the Cit}fs exposure
to loss for the duraticn of this Agreement
26.9 Reservation of Richts. The City reserves the right, firom 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 Oblieatioos. L>.surance provisions under this section shall not be construed to
limit the DB's obligations under this Agreement, including Indemnity.
26. I 1 Material Breach. Faihrre to maintain, renew, or provide evidence of renewal during the term of this
Agcement may be treated by the City as a material breach of contract
ARTICLE XXVIL TERMINATION/SUSPENSION OF WORK
27.1 S¢snension of Work for Archaeoloeical and/or PaleontoloeicalDiscnveries. If a discovery is made of an
archaeological or paleontological interest, DB shall immediately cease operations in the azea 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 Diswveries which may be encountered may include, but aze 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 DB shall be entitled to an extension of time and compensation m accordance with the provisions of
this Agreement.
27.2 Termination of Agreement by City for Cause. If, through any cause, DB shall fail to fulfill in a timely and
proper manner DB's obligations under this Agreement, or if DB shall violate any of the covenants,
conditions, agreements or stipulations of this Agreement, City shall have the right to 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 ternnation.
27.3 Termination or Susaension 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 suspension and
specifying the effective date thereof; at (east seven (7) Calendar Days before the effective date of such
suspension or termination. 1n the event of an emergency, advance notice shall not be requred under this
provision.
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27.4 Termination of Agreemegt by DB. DB may terminate the Ageement 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 [o resume
Work or to terminate the Agcement has not been received from City within this thne period; or,
27.4.2 Failure to Pay Amounts Due and Not in Dispute. If City fails to pay DB any monies due and not in
dispute in accordance with the terms of this Ageement within ninety (90) Calendar Days, plus the ten
(10) Calendaz Days afforded the City to remedy the failure, after presentation to City by DB of a
request therefore.
27.5 D/B Actiou Required. Upon receipt of the Notice of Termination, DB shall take any and all action that may
this Agcement that is in the possession of DB and in which City has or may acquire an interest.
27.6 Possession. Ownership, agd Control of Documents. In the event that this Agreement is terminated in
accordance widt Sections 26.2 through 26.4, all finished or unfinished documents, data, studies, drawings,
maps, plans, specifications, reports and other materials prepared by DB, 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 Project. In the event that the Agreement is temtinated pursuant to this Article
XXVII, City may take possession of the Project and may complete the Project by whatever method or means
City may select.
26.7.1 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 Ageement would have been due, the DB shall
be liable for and pay such excess costs to the City.
27.8 Payment to DB Due to Termination. Upon termination, DB shall be entitled to receive just and equitable
compensation for satisfactory Work completed. Tn no event shall such amount exceed the total dollar amount
authorized by City, reduced by the amount of payments previously made and any deductions permitted 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 on
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 Ageement had it been
wmpleted, City shall allow no profit under this section and shall reduce the amount payable to reflect
the indicated rate of loss.
27.8.4 DB and Design Subcontractor services through the date of termination based on actual time spent as
documented on timecazds. Expenses shall be paid based on invoice and receipts provided by DB.
27.8.5 Any amounts for Work or Services ageed to by the City Manager and DB, but without duplication of
any amounts agreed to above.
27.8.6 Reasonable demobilization costs, to the effective date of such termination.
27.8.7 If termination occurs during Phase I, fl, or III, DB shall only be entitled to the Fees for Phases I, II, or
III, associated therewith, or the respective portion thereof.
27.9 Lost Profits. Under no cvcumstances will DB be entitled to any consideration for lost profit or lost
opportunity costs.
27.lODeduMions. The amount due DB shall be reduced by amounts including the following:
26.10.1 Any claim that Ciry has against DB under this Ageement.
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26.102 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by DB or
sold under the provisions of this clause and not recovered by or credited to City.
26.10.3 Damages caused by DB's breach, including Excess Costs pursuant to Section 26.7.1.
26.10.4 Property Destroyed, Lost, Smlen or Damaged. Except to the extent that City expressly assumed the
risk of loss, the City Manager shall exclude from the amounts payable to DB, 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.
27.11 Disputes. If DB dces not agree that the amount determined by the City Manager is fair and reasonable. DB
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.
arver o arms. a even o rmmanon un er c e ure o o u e amoun
paid in the manner and within the timeframe provided in Section 26.11 shall act as a waiver of any and all
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. DB hereby expressly
aclmowledges and agrees that such claims shall be waived as herein provided. _
27.13Riehts of City Preserved. In the event that the Agreemant has been terminated, the termination shall not
affect anY rights or remedies of City against DB then existing or which may thereafter accrue. Any retention
or payment of moneys due DB by City will not release DB from liability. 1t 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 XXV~. RECORDS AND AUDITS
28.1 Record Svstem - Reimburseable Costs. DB shall develop and maintain an accurate system for tracking all
Reimbursable Costs. Utilizing [his system, DB shall include with each month payment application an
itemization of all such Reimbursable Costs actually incurred by DB, during the previous month. If requested
by the City, DB shall provide all backup documentation supporting such Reimbursable Costs.
28.2 Reeord Svstem -Hard Constructiom Costs. DB shall develop and maintain an accurate system for tracking
sll Hard Conshuction Costs it incurs on the Project Utilizing this system, DB shall include with each
monthly application for payment an itemization of all Hazd Construction Costs actually incurred by DB during
the previous month.
28.3 Retention of Rewrds. DB, contractors, and subcontractors shall maintain date and records related to this
Agreement for a period of not less than three (3) years following receipt of final payment render this Agreement
or three (3) years following final settlement associated with the r~;nA++on of this Ageement pursuant to
Article XXVII, above.
28.2 Aadk of Records. At any time during normal business hours, during the term of the contract phrs end record
retention period and as often as the City deems necessary, DB end any or all Contractors or subcontractors
shall make available to the City for examination at reasonable locations within the City/County of San Diego
all of the data and records with respell to all matters covered by this Agreement DB and all contractors or
subcontractors will permit dte City [o make audits of all invoices, materials, payrolls, records of personnel, and
other data and media relating to all matters covered by this Agreement if records are not made available within
the City/Cormty of San Diego, then DB 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
Reimbmsable Costs.
28.2.1 Casts. DB and DB's agents shall allow City io 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.
33
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ARTICLE XXIX. NOTICES
29.1 Writine. Any demand upon or nofice required or permitted to be given by one Party to the other Party shall be
in writing.
29.2 Effective Date. Except um relation to Change Orders as provided for in section 28.4 or as otherwise provided
by law, 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 fce 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
chall he cent to all of the followin¢:
29.3.1 Gordon Day ,City's Project Manager
29.3.2 Matt Johnson, Webcor's Project Manager
29.3.3
29.4 Recipients of Change Orders.
28.4.1 Gordon Day, City's Project Manager
29.4.2 Webcor's Project Manager
29.4.3
29.5 Chance of Address(es). Notice of change of address shall be given in the mamer set forth in this Article.
ARTICLE XXX. MISCELLANEOUS PROVISIONS
30. ] Hcadines. All article headings are for convenience only and shall not affect the interpretation of this
Agreement.
30.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter gender includes the
masculine and the feminine genders and (ii) the singulaz number includes the plural number.
30.3 Reference to Paragraphs. Each reference in this Agreement to a section refers, unless otherwise stated, to a
section in this Agreement.
30.4 Incorporation of Recitals. All recitals herein are incorporated into this Agreement and are made a part
hereof.
30.5 Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on
the part of the City or the Consultant, shall be deemed to be both covenants and conditions.
30.6 Integration. This Agreement and the Exhibits and references incorporated into this Agreement fully express
all understandings of the Parties concerning the matters covered in this Agreement. No change, alteration, or
modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their
officers, agents, or employees shall be valid unless made in the form of a written change agreed to in writing
by both Parties or an amendment to this Agreement agreed to by both Parties. All prior negotiations and
agreements are merged into this Agreement
30.7 Severabiliri. The uneuforceability, invalidity, or illegality of any provision of this Agreement shall not
render any any other provision of this Agreement unenforceable, invalid, or illegal.
30.8 Drafting Ambiguities. The Parties agree that they aze aware that they have the right to be advised by
counsel with respell to the negotiations, terms and condi8ons of this Agreement, and the decision of whether
34
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or not to seek advice of counsel with respect to this Ageement is a decision which is the sole responsibility
of each Party. This Agreement shall not be conshved in favor of or against either Pary by reason of the
extent to which each Party participated in the drafting of the Ageemenl
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, rule,
regulation, order, or code shall control. Varying degees of stringency among the main body of this
Agreement, the Exhibits, and laws, Hiles, regu]ations, orders, or codes are not deemed conflicts, and the most
stringent requirement shall control. Each Party shall notify the other immediately upon dre 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 Ageement.
30.11 Good Faith Performance. The parties shall cooperate with each other in good faith, and assist each other in
the performance of the provisions of [his Ageement
30,12 Further Assprances. City and DB each agee to execute and deliver such additional docwnents as maybe
required to effectuate the purposes of this Agreement.
30.13 Exhibits. Each of the followhtg Exhibits is attached hereto and incorporated herein by this reference:
Exhbbit A - Schedule of Values
Exhibit B - Design & Construction Schedule
30.14 Compliance wkh Controlling Law. The Copsuhant shall comply with all laws, ordinances, regulations, and
policies of the federal, state, and local governments applicable to this Agreement, including California Labor
Code section 1720 as amended in 2000 relating to the payment of prevailing wages as stated in the 1tFP,
during the design and preconstruction 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 Attomev Fees. The venue for any suit or proceeding concerning this Ageement,
the interpretation or application of arty of its terms, or any related disputes shall be in the County of San
Diego, State of California. The prevailing Party in any such suit or proceeding shall be entitled [o a
reasonable award of attorney fees in addition to any other award made hr such suitor 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 the State of California.
30.17 Admipistrative Claims Repuirements and Procedures. No suit or arbitration shall be brought arising out
of this ageement, against the City unless a claim has first been presented in writing and filed with the Ciiy
and acted upon by the City in accordance with the procedures set forth m Chapter 1.34 of the Chula Vista
Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and procedures used by the City in the implementation
of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Ageement.
30.18 Third Party Relationships. Nothing in this Agreement shad 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 DB's contracts, purchase orders and other contracts between DB and
third party services. DB shall incorporate this provision into its contracts, supp}y agreements and purchase
orders.
30.19 Non-Assignment The DB shall not assign the obligations under this Agreement, whether by express
assignment or by sale of the company, nor any monies due or to become due, without the City's prior written
approval. Any assignment in violation of this paragraph shall constihrte a Default and is Bounds for
immediate terminarion of this Agreement, at the sole discretion of the City. Tn no event shall any putative
assignment create a contractual relationship between the City and any putative assignee.
35
5-41
30.20 Successors io Interest. This Agreement and all rights and obligations created by this Agreement shall be in
force and effect whether or not any Parties to the Agreement have been succeeded by another entity, and all
rights and obligations created by this Agreement shall be vested and binding on any Party's successor in
interest.
30.21 Independent Contractors. The DB, any consultants, contractors, subcontractors, and any other individuals
employed by the DB shall be independent contractors and not agents of the City. Any provisions of this
Agreement that may appear to give the City any right to direct the DB concerning the details of perforating
the Services under this Agreement, or to exercise any wntrol over such performance, shall mean only that the
DB shall follow the direction of the City concerning the end results of the performance.
30.22 Ammroval. Where the consent or approval of a party is required or necessary under this Agreement, the
wnsent or approval shall not be unreasonably withheld.
30.23 No Waiver. No faihtre of either the City or the Consultant to insist upon the strict performance by the other
of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy
consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of
any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this
Agreement, and each and every covenant, condition, and term hereof shall contimte in full force and effect to
any existing or subsequent breach.
30.24 Sienine Authoriri. The representative for each Party signing on behalf of a corporation, partnership, joint
venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the
corporation, partnership, joint venture, or entity and agrees to hold the other Parly or Parties hereto harmless
if it is later determined that such authority does not exist.
IN WITNESS WHEREOF, this Agreement the City of Chula Vista and [INSERT] have executed this Agreement
thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms.
This Agreement is dated
Agreement.
CITY OF CHULA VISTA
~ 2013 and this date shall constitute the effective date of this
Webcor Builders
ay:
CHERYL COX, Mayor
Approved as to form and legality:
Glen Googins, City Attorney
Dated
2013
[NAME OF AUTHORIZED
36
5-42
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