HomeMy WebLinkAbout2010/08/17 Item 5
CITY COUNCIL
AGENDA STATEMENT
~ ~!f:.. CITY OF
.=i~~~ CHUlA VISTA
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
8/17/10, Item ~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA ACCEPTING $201,122 IN ON-BILL FINANCING FUNDS
FROM SAN DIEGO GAS & ELECTRIC TO INSTALL A SPLIT
HV AC SYSTEM AT THE PUBLIC WORKS CORP YARD AND
APPROPRIATING $201,122 IN FINANCING FUNDS TO THE
CITY'S ENERGY CONSERVATION FUND AND AMENDING THE
FY 2010-11 SDG&E ON BILL FINANCING CAPITAL
EXPENDITURE CATEGORY
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VIST A APPROPRIATING $30,000 IN TRANSIT DOLLARS AND
AMENDING THE FY 2010-11 EQUIPMENT REPLACEMENT
CAPITAL EXPENDITURE CATEGORY
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA 1) AWARDING A DESIGN BUILD AGREEMENT FOR THE
"CORPORATE YARD TRANSIT CENTER HVAC SYSTEM
PROJECT" (GG212) TO EMCOR SERVICE/MESA ENERGY
SYSTEMS WHICH WILL BE FUNDED THROUGH THE SAN
DIEGO GAS & ELECTRIC ("SDG&E") ON BILL FINANCING
PROGRAM AND TRANSIT DOLLARS IN THE EQUIPMENT
REPLACEMENT FUND AND 2) AUTHORIZING THE
EXPENDITURE OF ALL AVAIL@BPROJECTCONTINGENCY
FUNDS
DIRECTOR OF PUBLIC WORKS ~
DIRECTOR OF C~V AnON & ENVIRONMENTAL SERVICES ~
CITY MANAGER
ASSIST ANT CITY ANAGER c::;--:r
4/5THS VOTE: YES C8J NO D
SUMMARY
The Chula Vista Transit offices located at the Public Works Center is in operation seven days a
week, twenty or more hours per day. The existing HV AC system for the Transit office is
interconnected with the main HV AC system for the entire Public Works building, therefore, the
main system cools or heats the entire building as required for the Transit offices. Splitting the
systems by installing a completely separate heat pump unit, supply and return air ducting system
for the Transit offices will save 282,700 kWh per year, a cost savings of approximately $32,110
5-1
8/17/10, Item ~
Page 2 of 4
annually. The project will be funded through SDG&E O%-interest on-bill financing and
incentives.
ENVIRONMENT AL 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 3 categorical exemption pursuant to Section 15303 [New Construction or Conversion
of Small Structures] of the State CEQA Guidelines because the proposal includes in addition to
replacing existing equipment, the installation of small new heating and cooling equipment.
Thus, no further environmental review is necessary.
RECOMMENDATION
Council adopt the resolutions.
BOARDS/COMMISSION RECOMMENDATION
The project was presented to the Resource Conservation Commission (RCC) at their April 27,
2009 meeting as part of the City's Energy Efficiency & Conservation Block Grant Strategy.
Although the RCC did not take formal action, the Commission expressed general support for the
Strategy and the identified projects.
DISCUSSION
The Chula Vista Transit offices located at the Public Works Center is in operation seven days a
week, twenty or more hours a day. The existing BV AC system for the Transit office is
interconnected with the main BV AC system for the entire Public Works building, therefore the
main system cools or heats the entire building as required for the Transit offices. Splitting the
systems by installing a new Turbocor Compressor on the main chiller plant, and a completely
separate heat pump unit with supply and return air ducting system for the Transit offices will
save 282,700 KWH per year, a cost savings of $32,110 annually. Taking advantage of SDG&E
incentives will help to pay back the system conversion in 6.26 years.
This facilities improvement project is part of the City's broader efforts to promote energy
efficiency at municipal sites and to lower citywide greenhouse gas or "carbon" emissions. The
San Diego Gas & Electric (SDG&E)/California Public Utilities Commission Local Government
Partnership Program has provided financial support for City staff to evaluate, identify and
coordinate the installation of these energy retrofit projects. Because Partnership funds are not
able to be used for capital costs associated with the improvements, staff was authorized by City
Council to pursue up to $9.1 million of low-interest financing from the California Energy
Commission (CEC) and SDG&E to fund the installation of energy efficiency and renewable
energy technologies at municipal facilities (as amended under Resolution #2010-064). Under the
resolution, the City Manager was also authorized to negotiate and execute all documents
associated with the low-interest financing. As a result, the City of Chula Vista was recently
awarded $201,122 of SDG&E on-bill financing for the split BV AC system retrofit project. The
O%-interest financing, which is repaid through the annual energy cost savings estimated at
$32,110, will be combined with $47,878 ofSDG&E incentives (paid directly to the contractor).
5-2
8/17/10, Item ~
Page 3 of 4
As part of that effort, on June 11, 2009, 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 construct replacement structures (Project) to qualified Design-Build firms from the Priority
List.
The following companies were contacted: MJC Construction, Southern Contracting, Emcor
ServicelMesa Energy Systems, Alpha Mechanical, Heffler Company, Pacific West Energy, and
Independent Energy Solutions. Three proposals were received: MJC Construction, Heffler
Company and EmcorlMesa Energy Systems. Following interviews of the respondents,
EmcorlMesa Energy Systems was selected as the respondent who best met the design, monetary,
and time criteria of the project with whom City could negotiate an agreement.
As part of Design Builder's (D/B) proposal, DIB submitted a "Not to exceed Gross Maximum
Price" of the Project in the amount of$211,064. Following City's approval of90% Construction
Documents, D/B shall submit a guaranteed maximum price, not to exceed the Gross Maximum
Price, for which the Project shall be designed and constructed.
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property which is the subject of this action.
CURRENT YEAR FISCAL IMPACT
There is no net impact to the General Fund. The contract amount and costs for implementing the
energy efficiency improvement project will be funded through SDG&E on-bill financing
program, which provides O%-interest to fund facility energy efficiency improvements, and an
appropriation from the Equipment Replacement Fund. In prior years, Transit Funds were
transferred to the Equipment Replacement Fund for future equipment related expenditures. The
appropriation from the Equipment Replacement Fund will serve as Transit's contribution towards
the implementation of this project.
The resulting energy cost savings (approximately $32,110 annually) will be used to repay the
financing over the 6.26 year payback period. Total net project costs will be reduced through a
$30,000 project fund paid by Transit and energy efficiency incentives estimated at $47,878 from
SDG&E (paid directly to the contractor), while City staff time will be supported through the
SDG&E Local Government Partnership which is funded by California utility ratepayers under
the auspices of the California Public Utilities Commission.
FUNDS REQUIRED FOR PROJECT
A. Contract Amount - Emcor $211,064
B. City Contingencies $20,058
TOT AL FUNDS REQUIRED FOR CONSTRUCTION $231,122
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8/17/10, Item ~
Page 4 of 4
FUNDS AVAILABLE FOR PROJECT
A. SDG&E On Bill Financing $201,122
B. Equipment Replacement Funds (Transit) $30,000
TOT AL FUNDS A V AILABLE FOR CONSTRUCTION $231,122
ONGOING FISCAL IMP ACT
The $201,122 on-bill financing would be fully offset by $32,110 in estimated annual energy
savings (simple payback <7 years). After the financing is repaid, the City's General Fund would
realize the full energy cost savings annually. In addition, the City will realize more immediate
energy cost savings as utility rates increase every few years and as maintenance costs are
avoided.
ATTACHMENTS
1. SDG&E On-Bill Financing Agreement
2. Design Build Agreement
Prepared by: Gordon Day, Building Project Manager, Public Works-Engineering
Brendan Reed, Environmental Resource Manager, Conservation & Environmental Services
J:IEngineerIAGENDA ICAS2010\08-17-10IPWC HVAC Transit Council Agenda_FINAL2.doc
5-4
ATTACHMENT I
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Ilb'E
AfiJ..'.. .... SiHi}pl'a,:E)lett4Yulihiy"l'
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ON~BILLFINANCING LOAN AGREEMENT
The undersignedcustomer '"Customer") and the undersibrned contnict~r(.Contractor") have contracted for the provision
by Contractor to Customer of energy efficiency/dernand response equipment and services (the "Work"). Subject to the
conditions (including the process fmAciju~tment)set forth in thenext paragraph,San Diego Gas & Electric Compimy
("SDG&E") shalIextend a Joan (the "Loan;'jtoCustomer .iT! the.amount ?ft&'e loanbalnnce (the "Loan Balanc01 pursuant
to the terms of this On-Bill Financing Loan Aire~inent ('Loan Agreement") and Rule No. 40 (the "R~lle").C?l1ttactorshall
provide the Work as described in the On-Bill Financing Application ("Application") and any contract bctwccnCust~mer
Rnd Contractor, which shalJ be attached t()the Application.
The estimated Lo~nB~lanceis sct forth below. How~ver, the tot'!] costofthe Work as installed, Incentive, Loan Balance,
monthly payment, and Joan term spedfied in this Loan Agreement maybi'adjusted, if necessary, after the Work and the
posl.imtallatiol1 inspection described in the Applkation and/or herein are completed (thc' Ad'justment"). "The Adjustment
will be ciJ!culatecl using the a.ctual total cost oftheVVork, as installed, and estimated energy savh'lgs(as described in the
Application) of such Work. 1.n no event wiIlthe Loan Balance be increased without Customer's written conseni, even if
Customer is eligible ror such increased Loan Balance, Moreover, in no event will the loan Balance cxceed the maximum
Joan amount stipulated in the Applicillion. Customer undel'stands that in order to be e1igible for an on-bill finilncing loan,
the initial Loan Balance for Work may not fall btilowlhe minimum roan amount, nor may thc payback period exceed the
maximum payback f.>eriod. AccordIngly, it atter the Adjustment,' ule LOan Balance f~lIs below the minimum loan
amount or if the simple paybackpedod e"ceedsthe program ma.x.iml!Ihpaybackperiod, each a~ described in the
Application, SDG&E shaG haveno obligation to extend the Loan, as the Work would not meet l~rogram requirement.s.
The Adjustment described in this par~graph will be communiGated to the Clistomer and Contractor in writing and will
automatically become purt or this Loan Agreement, cxcepnhat any proposed increase In the Loan Balance wi!! only
becom<, part of this L()an Agreement upon Customer's written CQnsent to snch increase. ColJectively the Ap{>lkatioll, this
Loan Agreement (including any Adjustment hereunder) and the Rule comprise the "-Agrecment', In the even'tof any
confl iet among the foregoing component~" of the Abrreemenl, the following order of priority shall apply: 1. the Rule; 2. this
Loan Agreement; 3. the Application,
SDG&E shall have no liability in connection witl:1, aIld makes no warranties, expressed or implied, regarding the
Work. Customer and Contractor af.,rreethatthe, Customer and Contractor shalljointJy andscverally indemnify and hold
harmless SDG&E, its affiliates, and their respective owners, "meers, clirect~rs, employees and agents thereof, from and
~gainst all claims, demands, liahilities, damages; flnes, setllem~nts or jljdgments which directly arise from or are cBused
by (a) any breach of thel\greement (suhjectto theprovlsior'l regarding Contracior at the end of this senten<:eregarding
obligations to repay the Loal1 Balance) or (b) the wrongful or m;glig~nl acts of 0 missions of any party In the conduct or
performance of the 'Workor Contractor's or Customer's duties under the terms of this Agreement; providcd, however, t]~at
in no event shaJl Contractor be deemed a co-obligor, surety or guarantor ofCustomcr's obligations to repay the Loan
Balance under this Agreement.' . "
Cuslomer represer1ls and warrarrts that (a) Customer is receiving this LoanforWork obtained in cOJinection with
Customer's business, and not for p~rsonal, faf(jily or househoJd purposes; (b)C\lstomer,ifJ1?t <m individual, is duly
organized, validlyexisring and in good ~~nd.ingunderthelawsofit~slatedfform.~tion, and hilS fuJl.l~ower and.authority
to enter into this, Agreement andtoca~ryout the provisions of this Agr~ement. . Customer is. dl~iy qualified and in good
standing to do business in a11 jurisdid:ionswheresuchqualifkation is required;'(c) this Loan Agreen1erit has been duly
.' " \"" .
On-Bill Financing Loan Agrccincnt
Fonn No. 132-6263 (2/2009)
Page I of 4
.,..___.........~__._.___......_..~..._fi...._...___
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-----. ...-.----.--.--.-..--------.--..---..
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authorized by all necessary proceedings, has been duly executed and deIiveredby Customer and is a valid a~d lega1ly
binding agreement of Customer duly enforceable in accordance with ij,s terms; (d) no consent, appmval, authorization,
order, registration or qualification of or with any court or regulatory authority or other governmental body having
jurisdiction over Cu,10mer is required for, and the absence of which would. adversely affect, the legal and valid exeGlltion
and delivery of this Loan Agreement, and the performance of the transactions contempl~ted by this Loan Agreement; (e)
the execution and delivery of this L~all Agreement by Customer hereunder and the compliance by Custoroerwith all
provisions of this Loan ^gTeemcnt: (I) willpot conflict with or viola.te any Applicable Law; and (ii) will flot coomct with
or result in a breach of or defaultunderanyoftheterms orprovisi0!1s of anyJ6an agreement or other contractor
agreemenlunder which Customer is an obHgor orby which ilsproperty is bound; (f}aH factual information fur.nished by
Cl1Stomeno SDG&E is true and accurate;and(g) the On-BUJ Financingt'rogTam("Program") was a determining factor in
its decision to have. the Work performed. '
The Application must include tlw Federal Tax Identification Number orS6cialSecurity Number of Ille party wbo wHl be
the recipient of the check for the loan amount. Checks may be iSsued directly to the Customer or the Contractor or both,
for the benefit of the Customer, as specified be]ow. Customer and Contractor each understand that SDG&E wi1lnot be
responsible for any tax lia.bility imposed on the Customer or Contractor in connection with the transactions contemplated
under the Agreement, whether by virtile of the Loan conternphlted Lmder the Agreement, or otherwise, and Customer and
Contractor shall jointly and severally indemnify SDG&E for any tax liabiJity imposed upon SDG&E asa result of the
transactions contemplated undertheAgreement. .
Within sixty (60) days of Customer's and ~nlracto~'s written confirmation sent to SDG&E On.gilTFinancin~ Program
Administrator at address listed below of completion of the Work, SDG&E will (a) condu<.1 a post im;taJlation inspection
and project verification; (b) adjust, rfnec7s~ry!th~total cost, Incentive, Loan Balance,monthly payment, and loan term 83
stilted above; and (c) issue a check (the .Check") for aU ,ah1o~ntsSDG&Eapproves for payment in 1I0?brdimce witjnhe
Agreement. The date of such issuance is t~e'!ssuance Dat~'. The Check shall beissued jf the Work conforms to all
requirements of the Agreernentindmling'V\fitJwut Jimitatioll, th~ Application. [f the Check is made payable to Customer,
Customer shall be responsible to pay the ,;mount thereof 1.0 Contractor. If the Check, is less than .the amount due from
Customer to Contractor! Customer sbaJI be responsible for the eXCess. Customer shall repay the Loan Balance to SDG&E
as provided in this Loan Agreement irrespective of whether or when theWorkis completed! or whether the Work is in
any wuy detective or deficient.
The Customer agrees to repl1Y to SDG&E the L01m Balance, in the n umber of paymentslisted below and i~ equal
instanments (with the final installment adfustecl to account for rounding), by the due date set forth In each SDG&n utility
bill rendered in connection with Customer's account (identified by the number set forth below) r Account"), <.'Ornrnencing
W~. b the bill which has a due date faHing at least 30 days a.fter the Issuance Date. Amounts due ,jhder this Loan
A .eement shall be deem...>d to be amounts due under each bill to theAccount,anda.default undr;!rtJlis Loal1 Agreement
sit 11 be treated as a default under the Account: Although alate payment fee I!~ay be assessed fOr'deljnq~ent payment of a
utWty bill, however, no late payment fee will 00 assessed fordeJinquent Loan repayment. If the Customer is unable to
make a fuJluOlitybil1 paymentin a given month, paymentarrangemel1l;; maybe made at SDG&E's discretion, Any paTti,11
utilHy bill payments wiJI be applied to e~ergy'tharges befor~.payment of the Loan Balance. Further payment detans are
set forth bel<Jw. Any notice from SDG&E to Customer regarding the I'rogram or the transactions contemplated under the
Loan Agreement may be provided within any suph bill, and any sl1ch notices may also be provided to Customer or
Contractor at the addresses below or~s elsewhere specified hJ the Loan Agreement, ana shall be effective five (5) days
after they have been mailed. The monthly payments will bt: included by SDG&E on the Account's regular energy service
bills. The Loan Balance shall not bear interest. There aIe no pre.payment penalties; however, Customer agrees to notify
the On-Bill Financing Program Staff of pre-payment amounts at the lime of payment by telephoning thetollfreephone
number 1-800-411-SDG&.E unci by seni.Urig written notice to SI)G&.E On~BiIlFinancingt)rogram Admi!\istrator at the
On"BitJ FiDanciJ1g Loan Agreement
Fori)) No. 132-6263 (2/Z009)
'Plige2ofJ -.
~___"""'_"_""____""_'.'A_AA_.'__'___."'__'.__A_____w...
_._.'.__._M..__._._.._._.____'_....~.,. _______... ._.______.__.____
....___.w_.__._...._".._, oM_
5-6
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address listed below. In the event the Accolint is dosed orterminated,foranyreasop,or Customer defaults under the
Agreement, the Customer will be required to rep<lY the entire then-unpaid LO;lTl Balance within 30 days. Customer
understands that without limiting any other remedy available to SDG&E against C()ntractor or Customer, failure to repay
the Loan Balance in accordance with the terms of the Agreement touldresult in shuH.Jff of utility energy service, adverse
credit reporting, and collection proc::edures, incJuding, withoutlimitation,Jegal action.
$249,000,00 $47,878.00 $201,122.00 $2,646.34 76 76
Monthly Tenn Number of
Total Cost Incentive Loart Balance Payment (Months~ Payments
Check made payable to:
Contr<lctor D $201,122.00
or
Customer0 $201,122.00
CUSTOMER INFORMATION
City of Chu!a Vista
Nome on Account (Customer of Record)
4969451834
SDG&E Account Number
1800 Maxwell Rd
Service Addr.,s
Chu!a Vista, CA 919] 1
City, State. Zip
t.s. ~~t)OV
Name itnd Tjt1t: of Authorized Representi\t.ive of custome~
c
t:tt-
Rt31atioHship to Customer of R.ecord
On-BiJl Financ.;ng Loan Agreeml'nt
Form No. 132-6263 (212009)
..~~---,- ..~-"....~...-
CONTRACT(iR INFORMATION
EMCOR Mes<iEnergy Systems Ine
COTJlractor [vendor) Name
V ,f\, ~\
6S50Federal Blvd
Businl's, Addres.
Lemon Grove,
619"265-5950
B-u:;in!!:56 Phone Number
1\0
Date
Page3 of3
_'.'~"_"'_____~_____--:"___'__..'.'_M_"'_'" .
5-7
RESOLUTION 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING $201,122 IN ON-BILL
FINANCING FUNDS FROM SAN DIEGO GAS & ELECTRIC
TO INSTALL A SPLIT HVAC SYSTEM AT THE PUBLIC
WORKS CORP YARD AND APPROPRIATING $201,122 IN
FINANCING FUNDS TO THE CITY'S ENERGY
CONSERVATION FUND AND AMENDING THE FY 2010-11
SDG&E ON BILL FINANCING CAPITAL EXPENDITURE
CATEGORY
WHEREAS, the Chula Vista Transit offices located at the Public Works Center is in
operation seven days a week, twenty or more hours per day and the existing HV AC system for
the Transit office is interconnected with the main HV AC system; and
WHEREAS, splitting the systems by installing a completely separate heat pump unit,
supply and return air ducting system for the Transit offices will save 282,700 kWh per year, a
cost savings of approximately $32,110 annually; and
WHEREAS, the San Diego Gas & Electric (SDG&E)/California Public Utilities
Commission Local Government Partnership Program has provided financial support for City
staff to evaluate, identify and coordinate the installation ofthese energy retrofit projects; and
WHEREAS, Partnership funds are not able to be used for capital costs associated with
the improvements, staff was authorized by City Council to pursue up to $9.1 million of low-
interest financing from the California Energy Commission (CEC) and SDG&E to fund the
installation of energy efficiency and renewable energy technologies at municipal facilities; and
WHEREAS, the City of Chula Vista was recently awarded $201,122 of SDG&E on-bill
financing for the split HV AC system retrofit project; and
WHEREAS, the O%-interest financing, which is repaid through the annual energy cost
savings estimated at $32,110, will be combined with $47,878 of SDG&E incentives (paid
directly to the contractor).
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby accept $201,122 in on-bill financing funds from San Diego Gas & Electric to
install a split HV AC system at the Public Works Corp Yard.
5-8
BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does
hereby appropriate $201,122 in financing funds to the City's Energy Conservation Fund and
amend the FY 2010-11 SDG&E On Bill Financing Capital Expenditure Category.
Presented by
Richard A. Hopkins
Director of Public Warks
5-9
RESOLUTION NO. 2010
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROPRIATING $30,000 IN TRANSIT
DOLLARS AND AMENDING THE FY 2010-11 EQUIPMENT
REPLACEMENT CAPITAL EXPENDITURE CATEGORY
WHEREAS, the Chula Vista Transit offices located at the Public Works Center is in
operation seven days a week, twenty or more hours a day; and
WHEREAS, the existing HV AC system for the Transit office is interconnected with the
main HV AC system for the entire Public Works building; and
WHEREAS, splitting the systems by installing a completely separate heat pump unit,
supply and return air ducting system for the Transit offices will save 282,700 KWH per year, a
cost savings of $32,110 annually; and
WHEREAS, taking advantage of San Diego Gas & Electric incentives will help to pay
back the system conversion in 6.26 years; and
WHEREAS, this facilities improvement project is part of the City's broader efforts to
promote energy efficiency at municipal sites and to lower citywide greenhouse gas or "carbon"
emISSIOns.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby appropriate $30,000 in Transit dollars and amend the FY 2010-11 quipme
Replacement Capital Expenditure Category.
Presented by
Richard A. Hopkins
Director of Public Works
5-10
RESOLUTION 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA 1) AWARDING A DESIGN BUILD
AGREEMENT FOR THE "CORPORATE YARD TRANSIT
CENTER HV AC SYSTEM PROJECT" (GG212) TO EMCOR
SERVICE/MESA ENERGY SYSTEMS WHICH WILL BE
FUNDED THROUGH THE SAN DIEGO GAS & ELECTRIC
("SDG&E") ON BILL FINANCING PROGRAM AND TRANSIT
DOLLARS IN THE EQUIPMENT REPLACEMENT FUND
AND 2) AUTHORIZING THE EXPENDITURE OF ALL
AVAILABLE PROJECT CONTINGENCY FUNDS
WHEREAS, the Chula Vista Transit offices located at the Public Works Center is in
operation seven days a week, twenty or more hours a day; and
WHEREAS, the existing HV AC system for the Transit office is interconnected with the
main HV AC system for the entire Public Works building; and
WHEREAS, splitting the systems by installing a completely separate heat pump unit,
supply and return air ducting system for the Transit offices will save 284,980 kWh per year, a
cost savings of approximately $32,110 annually; and
WHEREAS, taking advantage of SDG&E incentives will help to payback the system
conversion in less than 6.26 years; and
WHEREAS, as part of that effort, on June 11, 2009, the Department of Public Works,
Engineering Division, issued a Request for Proposal (RFP), pursuant to 9 2.57 of the City's
Municipal Code, to design and construct replacement structures (Project) to qualified Design-
Build firms from the Priority List; and
WHEREAS, the following companies were contacted: MJC Construction, Southern
Contracting, Emcor ServicelMesa Energy Systems, Alpha Mechanical, Heffler Company, Pacific
West Energy, and Independent Energy Solutions; and
WHEREAS, three proposals were received: MJC Construction, Heffler Company, and
Emcor ServicelMesa Energy Systems; and
WHEREAS, following interviews of the respondents, Emcor Service/Mesa Energy
Systems was selected as the respondent who best met the design, monetary, and time criteria of
the project with whom City could negotiate an agreement; and
WHEREAS, as part of Design Builder's (DIE) proposal, DIE submitted a "Not to exceed
Gross Maximum Price" of the Project in the amount of$241,064; and
5-11
Resolution No.
Page 2
WHEREAS, following City's approval of 90% Construction Documents, D/B shall
submit a guaranteed maximum price, not to exceed the Gross Maximum Price, for which the
Project shall be designed and constructed; and
WHEREAS, the contract amount and costs for implementing the energy efficiency
improvement project will be funded through California Energy Commission which provides low-
interest loans to fund facility improvements.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby award a Design Build Agreement for the "Corporate Yard Transit Center
HV AC System Project" (GG212) to Emcor Service/Mesa Energy Systems which will be funded
through the SDG&E On Bill Financing Program and Transit dollars in the Equipment
Replacement Fund.
BE IT FURTHER RESOLVED, that the City Council of the City of Chula Vista does
hereby authorize the expenditure of all available project contingency funds.
Presented by
Richard A. Hopkins
Director of Public Works
5-12
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROY AL BY
THE CITY COUNCIL
Dated:
B!O /~
I I
DESIGN BUILD AGREEMENT
FOR CORPORATE YARD TURBOCOR RETROFIT AND
TRANSIT CENTER HV AC SYSTEM
BETWEEN
THE CITY OF CHULA VISTA AND
EMCOR SERVICEIMESA ENERGY SYSTEMS
5-13
DESIGN BUILD AGREEMENT FOR
Corporate Yard Turbocor Retrofit and Transit Center HV AC System
THIS Agreement shall be for the design and construction the Corporate Yard Transit Center HV AC System and the
payment ofpennitted costs therefore ("Agreement"). This Agreement is made and entered into this ,
by and between THE CITY OF CHULA VISTA, a municipal corporation ("City"), and EMCOR SERVICEI MESA
ENERGY SYSTEMS, a California Corporation ("Design Builder or D/B"). City and D/B, when referenced herein,
may be referred to individually as "Party" and collectively as "Parties." This Agreement is entered into with
reference to the following facts:
RECITALS
1. The Chula Vista Transit offices located at the J. Lippit Public Works Yard is in operation seven days a week,
twenty or more hours a day. The existing HV AC system for the Transit office is interconnected with the main
HV AC system for the entire Public Works building, therefore the main system cools or heats the entire
building as required for the Transit offices.
2. By installing a completely separate heat pump unit, supply and return air ducting system for the Transit offices
and installing a new Turbocor upgrade to the existing chiller plant, the City will save 307,120 KWH per year, a
cost savings of$ 42,747.00 annually. Taking advantage ofSDG&E incentives will help to pay back the system
conversion in 4.9 years.
3. As part of that effort, on June 11,2009, the Department of Public Works Engineering Division, issued a
Request for Proposal (RFP), pursuant to 9 2.57 of the City's Municipal Code, to design and construct
replacement structures ("Project") to qualified Design-Build fInns off the Priority List.
4. The following companies were contacted: MJC Construction, Southern Contracting, Emcore I Mesa
Mechanical, Alpha Mechanical, Heffler Company, Pacific West Energy, and IndependentEnergy Solutions.
5. Following interviews of three (3) respondents, D/B was selected as the respondent who best met the design,
monetary, and time criteria of the project with whom City could negotiate an agreement.
6. As part ofD/B's proposal, D/B submitted a "Not to exceed Gross Maximum Price" of the Project in the
amount of Two Hundred Eleven Thousand, Sixty Three dollars and 80cents, ($211,063.80) ("Estimated
Cost"/"EC").
7. Following City's approval of90% Construction Documents ("CD"), D/B shall submit a guaranteed maximum
price ("GMP"), not to exceed the Gross Maximum Price, for which the Project shall be designed and
constructed.
8. D/B shall complete the Project, as a public 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. DEFINITIONS
ADA: The Americans with Disabilities Act of 1990 and any amendments thereto.
Acceptance: Final approval by the City Inspection Team following the Final Inspection that Project Improvements
are complete and work required on the Punch List has been [mished.
As-BuiIts: Project Record Documents that are the Contract plans modified from the original concept of the
design to reflect the actual product built.
CEQA: California Environmental Quality Act.
Calendar Day(s): All days of the week, holidays and weekends included.
Change Order: A written order, approved by City, authorizing a change in the work to be performed.
City: The City of Chula Vista. Unless specifically provided otherwise, whenever this Agreement requires an action
or approval by City, that action or approval shall be performed by the City representative designated by the
Agreement.
City Council: The City Council of the City ofChu1a 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 (including documentation accompanying Bid and any post-bid documentation submitted prior to
Notice of Award), the Bonds, the general conditions, permits from other agencies, the Special Provisions, the Plans,
Standard Plans, Standard Specifications, Reference Specifications, and all modifications issued after the execution
of this Agreement.
Contract Time: The number of Calendar Days permitted under this Agreement for D/B to achieve Substantial
Completion.
Defective Work: All work, material, or equipment that is unsatisfactory, faulty, incomplete, or does not conform to
the Contract documents is defective.
Design Build Team (D/BT): Those individuals designated as being a part of the Design Build Team.
Estimated Cost: The total cost of the Project as estimated in preliminary cost estimates as shown in Exhibit A.
Extra Work: Any City additions, modifications, or deletions to work or D/B obligations under this Agreement not
within the original Scope of Work contemplated by this Agreement.
Final Completion: The point at which the last of the following has occurred: (1) recordation of a Notice of
Completion for the Project; (2) acceptance of the Project by the City; (3) submission of all documents required to be
supplied by D/B to City under this Agreement, including but not limited to As-Built Drawings, warranties, and
operating manuals; and (4) and delivery to City of a Certificate of Completion duly verified by DIE.
Greenbook: The most recent edition of the Standard Specifications for Public Works Construction (including any
City ofChula Vista standard special provisions).
Guaranteed Maximum Price ("GMP"): The maximum compensation to which D/B may be entitled for the
performance of all Services, Work, and obligations and the satisfaction of 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 DIB markup, handling fees, overhead, or other charges,
except as otherwise set forth in this Agreement.
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Hazardous Materials: Hazardous waste or hazardous substance as defined in any federal, state, or local statute,
ordinance, rule, or regulation applicable to the Property, including, without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States Code
sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 United States Code sections 6901-
6992k), the Carpenter Presley- Tanner Hazardous Substance Account Act (Health and Safety Code sections 25300-
25395.15), and the Hazardous Waste Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous
Materials" shall also include asbestos or asbestos containing materials, radon gas, and petroleum or petroleum
fractions, whether or not defmed as hazardous waste or hazardous substance in any such statute, ordinance, rule, or
regulation.
Holiday: The City-observed holidays.
Law: All Federal, State, or local laws, regulations, ordinances, and/or policies.
Milestones: Dates shown on the Project Schedule by which DIE 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 DIE to commence Work and/or Services on the Project.
Notice of Termination: A written notice from City to DIE terminating the Agreement in accordance with Article
XXVII.
Project Site: The property located at 1800 Maxwell Road and further described in Exhibit "A", attached.
Reimbursable Costs: Building permits and Fees.
Services: Professional services, including design and construction management of the Project that are required to
design and construct the Project in accordance with the Contract Documents. Services does not include Work.
Substantial Completion: That stage in the progress of the construction when 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 24: California Building Standards Code, California Code of Regulations, Title 24.
Work: All labor, materials, supplies, and equipment that are necessary to construct the Project in accordance with
the Contract Documents. Work does not include Services.
Working Day(s): Monday through Friday, excluding City holidays.
ARTICLE II. SCOPE OF THE AGREEMENT
2.1 General. Except as expressly provided in this Agreement, DIE shall design and construct the Project in
accordance with all the terms and conditions of this Agreement, approved Plans and Specifications, and the
timeframes established by the Project Schedule, attached as Exhibit "A", delivering a complete and functional
Project within the Contract Time for an amount not to exceed the GMP.
ARTICLE III. TERM
3.1 Term of Aireement. This Agreement shall be effective on the date it is executed by the last Party to sign the
Agreement following City Council approval by Resolution. The term of this Agreement will extend from the
date of execution until satisfaction of all terms and conditions herein, unless this Agreement is earlier
terminated.
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ARTICLE IV. GENERAL PROJECT PERFORMANCE OBLIGATIONS
4.1 Standard of Care. Throughout the performance this Agreement, performed under this Agreement, DIB agrees
that all Services and Work provided as part of this Agreement shall be performed in accordance with the
standards customarily adhered to by experienced and competent professional architectural, engineering,
landscape architecture, and construction firms using the degree of care and skill ordinarily exercised by
reputable professionals practicing in the same field of service in the State of California.
4.2 Compliance with all Laws. In the performance of this Agreement, DIB shall comply with all laws, including
but not limited to:
4.2.1 All City, County, State, and Federal laws, codes and regulations, ordinances, and policies, including,
but not limited to, the following:
4.2.1.1 Environmental Regulations (i.e. CEQAI NEP A).
4.2.1.2 The Americans with Disabilities Act ("ADA") and Title 24 of the California Building Code. It
is the sole responsibility of DIB to comply with all ADA and Title 24 regulations.
4.2.1.3 The California Fair Employment and Housing Act and all other State, Federal and local laws
including, but not limited to, those prohibiting discrimination on account ofrace, 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 Storm water Management and Discharge Control-Ordinance No. 0-17988.
4.2.1.5 DIB shall comply with the Essential Services Building Seismic Safety Act, SB 239 & 132.
4.2.1.6 DIB 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 DlBshall obtain and comply with all permits necessary top complete the Project, including,
but not limited to Development Services Department permits and hazardous material permits.
4.2.1.8 Zoning, environmental, building, fire and safety codes and coverage, density and density ratios
and lien laws.
4.2.2 Implied Knowledge of Laws. DIB 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 DIB to the extent allowed by law.
4.3 Desilm and Construction Standards. In the performance of the Services and Work covered by this
Agreement, DIB 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 2000 Edition of the Standard 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.:p The 2000 Edition of the Chula Vista Standard Special Provisions.
4.3.2.2 The 2000 Edition of the Regional Standards.
4.3.2.3 The 2002 Edition of the Chula Vista Construction Standards.
4.3.2.4 The City's facility program, performance and design criteria, concept drawings, and reports.
4.3.3 Energy Conservation Standards.
4.3.4 Materials Standards. D/B shall use industrial grade, not residential grade, equipment and accessories
for all facets of design and construction.
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4.4 Obtain City Approval. For any and all actions under this Agreement that require City approval, including,
but not limited to, changes or additions to Agreement, D/B shall obtain approval in writing from the designated
City Representative, or when required by Law, from the City Council. D/B acknowledges that approval from
any individual other than the designated City Representative or City Council, where required, shall not be
valid.
4.4.1 Failure to Obtain Approval. Any costs or delays resulting from or associated with additions or
modifications implemented without the written authorization of the City Representative shall be borne
exclusively by D/B and not be grounds for an increase in GMP or Contract Time.
4.4.1.1 Emergency. In the event of an emergency, D/B shall take all reasonable actions necessary to
protect public health, safety or property. Such action shall not require advance City approval;
however, D/B shall notify the City immediately of the emergency and as soon as reasonably
possible provide a written statement to the City explaining the emergency and the reasonable
actions taken. Provided the emergency was not caused by or its creation contributed to by the
D/B, its employees, agents, or subcontractors, D/B may be entitled to reasonable compensation
for such actions.
4.4.2 No Release From Obligations. City approval shall be a general approval only, and such approval shall
in no way release or relieve D/B of responsibility for complying with all applicable laws, codes, and
good consulting, design, or construction practices.
4.5 Decision Makin!!:. D/B shall make decisions with reasonable promptness to avoid delay in the orderly
progress ofD/B's obligations under this Agreement and pursuant to the Project Schedule, attached as Exhibit
"A."
4.6 Perform Services and Work in Phases. The Services and Work under this Agreement shall be performed
three (3) "Phases" in the manner and order described herein.
ARTICLE V. PHASE I - DESIGN DEVELOPMENT
5.1 Desi!!:n Team. City has awarded this Agreement based on the specific qualifications ofD/B to perform the
design services required under this Agreement. All such services shall be provided by D/B unless the City has
approved of the use of Sub consultants in the manner identified in Article VIII.
5.2 Services. In Phase I, D/B shall perform Services including, but not limited to, the following:
5.2.1 Project Development. Develop and refme Project requirements.
5.2.2 DDD. Prepare complete DDDs, such that the DDDs include, without.1imitation, the following:
5.2.2.1 Site Plans. Site plan with pertinent notes and dimensions indicating property line; existing
public streets, sidewalks, curb cuts, other public improvements; required setbacks; service,
trash, fire lane and truck access, adjacent buildings, building outline; basketball courts, multi-
use sports field, softball field, informal skate area, play areas, shelters, landscape and site
elements. N/ A
5.2.2.2 Floor Plans. Floor plans including graphically demonstrating interior and exterior walls and
fenestration with notes, dimensions and gridlines; room names, structural bay spacing with
grids, critical dimensions and area calculations.
5.2.2.3 Roof Plans. Roofplans including detailed notes, dimensions, mechanical equipment locations,
, defme material for mechanical screens, 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. N/ A
5.2.2.5 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, dimensions and grid lines.N/ A
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5.2.2.6 Wall Sections. Wall sections including all wall sections, dimensions, horizontal element
offsets, and guide to exterior face of wall; dimensions, vertical floor to floor, floor to window
head and sill and floor to ceiling; structural elements and assemblies; interior and exterior wall
finishes; and wall and roof assembly; N/ A
5.2.2.7 Outline specifications, written description of equipment and components including rooftop
work.
5.2.2.8 Traffic circulation and landscaping should also be indicated at this stage if applicable. N/ A
5.2.3 Code Compliance. Verify all code compliance, including building construction type, occupancy
sprinkler requirements, existing, zoning and other agency conformance and ADA.
5.2.4 Submittals. Prior to proceeding with Phase II, DIE 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, DIE shall
address all City comments or issues and make associated revisions in the next set of
drawings developed and submitted.
5.2.4.1.2 Delay/Costs. Any delay or additional costs resulting from the re-submittal shall be
borne exclusively by DIE and not be grounds for an increase in the GMP or Contract
Time.
5.2.4.2 Other Deliverables. 3D rendered images, color and material boards, reflected ceiling plans,
and special system or equipment plans.
ARTICLE VI. PHASE II
6.1 Phase II Services. In Phase II of the Project, DIE's shall perform Services including, but are not limited to,
the following:
6.1.1 Project Development. DIE shall diligently prosecute the development and refinement of Project
requirements and review such requirements with City;
6.1.2 Digital Documentation. DIE shall prepare CD's which shall include, without limitation, the following:
6.1.2.1 Architectural plans and details, including:
6.1.2.1.1 Site plan indicating general location and nature of on-site and the necessary off-site
improvements. N/ A
6.1.2.1.2 Floor plans, including roof, showing space assignments, sizes, and location of
installed or fixed and movable equipment that affects the design of the spaces.
6.1.2.1.3 Building elevations indicating exterior design elements and features, including
fenestration arrangements, materials, mechanical and electrical features appearing on
the walls, roofs, and adjacent areas.
6.1.2.1.4 Interior elevations to establish functional requirements, equipment, and all systems
locations.
6.1.2.1.5 Typical building sections showing primary structural members, dimensions, and
accommodation of functional systems.
6.1.2.1.6 Typical wall sections sufficient to indicate materials, openings, and major features.
N/A
6.1.2.2 Structural drawings including plans and sections of sufficient clarity and detail to show the
extent and type of structural system and dimensions, final structural design criteria, foundation
design criteria, preliminary sizing of major structural components, critical coordination
clearances and applicable material lists.
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6.1.2.3 Mechanical plans and details.
6.1.2.4 Landscape and Irrigation plan and details. N/ A
6.1.2.5 Electrical plans and details.
6.1.2.6 Plumbing plans and details.
6.1.2.7 Plans showing installation of major systems, equipment, fixed furnishings and graphics.
6.1.2.8 Technical specifications.
6.1 ~2.9 All other technical drawings, schedules, diagrams and specifications, to set forth in detail the
requirements for construction of the Project which, at a minimum, include:
6.1.2.9.1 Information customarily necessary for the use of those in the building trades.
6.1.2.9.2 Documents customarily necessary to obtain regulatory agency approvals.
6.1.2.9.3 Color board and architectural rendering for required presentations. N/ A
6.1.2.10 Mechanical design documentation consisting of continued development and
expansion of schematic mechanical design consisting of:
6.1.2.10.1 Single line layouts and the approximate sizing of all equipment and capacities,
preliminary equipment layouts.
6.1.2.10.2 Required space requirements for the equipment, required chases and clearances,
acoustical and vibrations control, visual impacts and energy conservation
measures.
6.1.2.11 Electrical design documentation consisting of continued expansion of the schematic
electrical design consisting of:
6.1.2.11.1 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 transformers-panels-switch
gears; N/A
6.1.2.11.2 Preliminary equipment layouts, required space for equipment, required chases and
clearances.
6.1.2.12 Sections through critical areas showing coordination of architectural, structural, mechanical
and electrical elements.
6.1.2.13 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
[mal exterior and interior material selection. N/ A
6.1.2.13.2 Mechanical. Description of air conditioning, heating and ventilation systems and
controls, ducts, and piping system.
6.1.2.13.3 Electrical. Description of electrical services, including voltage; type and number
offeeders; lighting systems, including lighting levels and audiovisual; security-fire
alarms; and cable antenna television systems.
6.1.2.13.4 Landscape. General description of the construction, including plan materials, plant
locations, maintenance period, and irrigation systems. N/A
6.1.2.13.5 Play Areas. Description of play equipment, including installation procedures,
type, color, finishes, and locations. N/ A
6.1.2.13.6 Site Work. General description of the construction, including finishes, types of
materials and locations. N/ A
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6.1.2.13.7 Other. Such other documents to fIx and describe the size, quality and character of
the entire Project, its materials, and such other elements as shall be appropriate.
N/A
6.1.2.14 Plumbing drawings, including location and quantity of fIxtures, equipment sizes, room sizes
for plumbing equipment, and [mal specifIcations as appropriate. N/ A
6.1.3 Project Sequencing. D/B shall determine and establish the sequence of construction, and if
appropriate, identify separate bid packages to accomplish phased construction of the Project.
6.1.4 Critical Path. D/B shall prepare a detailed Critical Path Method schedule for all construction
components of the Project ("Detailed Construction Schedule") utilizing Microsoft Project software,
showing all major milestones, bid dates for the major bid packages, commencement of construction,
sequence of construction, completion of structural elements, and completion of the Corporate Yard
Transit Center HV AC System, all of which shall conform with the dates of Substantial Completion and
Final Completion of Project.
6.1.5 Governmental Review. D/B shall review, as needed, the CD's with the governmental authorities
having jurisdiction over the Proj ect.
6.1.6 Accounting System. D/B shall provide a master accounting system and matrix on Microsoft Excel that
will be updated, expanded, and provided to the City monthly as the Project develops.
6.1.7 Project Management Plan. D/B shall develop and implement a Project Management Plan and
Procedures including:
6.1.7.1 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 from the Effective
Date of Agreement.
6.1.7.4 Biweekly Design and Construction meetings
6.1.7.5 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. D/B shall establish and maintain a quality control
program with appropriate reviews and independent testing procedures to ensure compliance
with the Construction Documents during the construction phase.
6. 1.7. 1 o Scheduling and cost control reports, which shall be provided monthly throughout the design
phase.
6.1.8 Construction Drawings and Specifications. D/B shall prepare construction drawings and specifIcations
suitable for obtaining City-approved permits and to allow construction.
6.1.9 City Approval. D/B 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 Construction Documents is a condition precedent to
authorization to proceed with subsequent work on the Project.
6.1.9.2 NotifIcation, ModifIcation, and Resubmittal. At 70% and 90% Completion, City will notifY
D/B in writing within the timeframes established in the Project Schedule following receipt of
Construction Drawings of City approval, or of request for modifIcations. If modifIcations are
requested, D/B shall modify and resubmit Construction Drawings for City approval.
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6.1.9.3 DIE Support. DIE shall provide support to a City Constructabi1ity Review Team for the
review of the Construction Documents at all stages of required submission.
6.1.10 Materials and Equipment Specifications. DIE shall prepare technical materials and equipment
specifications for pre-purchase.
6.1.11 Surveying and Testing. DIE shall coordinate, perform, and complete all surveying, materials testing,
and special testing for the Project at the Project site as required by this Agreement, the State Building
Code, or any other law or regulation, in accordance with and considering the following: NI A
6.1.11.1 Greenbook 2003 Section 2-9 titled "Surveying" and City of Chu1a Vista's Horizontal and
Vertical Control found on the Survey Control Network Map located on the City's Internet via
the following link:
http://www . chulavistaca. gov ICity Services/Development Services/Engineering/index. asp
N/A
6.1.11.2 Existing Conditions. DIE shall obtain all necessary soils investigation and conduct
agronomic testing required for design of the Project. The Soils Consultant shall prepare a
statement that will be included in the Bidding Documents as to the nature of soils, ground
water conditions and any other information concerning the existing conditions of the site. NI A
6.1.11.3 Utilities. DIE shall provide all required information for the construction or relocation of
Public or private utility facilities that must be constructed or relocated as a result of this
Project. DIE shall file all of the required documents for the approval of authorities having
jurisdiction over the Project and in obtaining the services of all utilities required by the
Project. N/A
6.1.11.4 Geotechnical Information. DIE 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 R.C.E. or R.G.E.) shall prepare a statement that will be
included in the Bidding Documents, to address existing geotechnical conditions ofthe site
that might affect construction. N/A
6.1.11.5 Additional Surveys. D/B shall provide additional site surveys and geotechnical investigations
to the extent that D/B determines they are necessary for fmal design. NI A
6.1.11.6 No Reliance. D/B shall not rely on City survey information as it is intended to be preliminary
in nature and may not have sufficient accuracy or scope to support fmal design. NI A
6.1.12 SWP P P. D/B shall prepare and incorporate into the Construction Documents a Stormwater Pollution
Prevention Plan ("SWPPP") to be implemented by the D/B during Project construction. Where
applicable, the SWPPP shall comply with both the California Regional Water Quality Control Board
Statewide General Construction Storm Water permit and National Pollution Discharge Elimination
System permit requirements and any municipal regulations adopted pursuant to the permits. NI A
6.1.12 Alternatives. DIE shall evaluate alternative structural and construction approaches to ensure
economical designs, which optimize constructability, yet meet all codes, architectural concepts,
schematic designs, and standard specifications of the Project.
6.1.13 Permits. D/B shall obtain general building permit and all ancillary permits and licenses, including but
not limited to, demolition permits, improvement permits and grading permits at 90% CD's. City is
resp?nsible for all permit costs, which will be reimbursed to the DB.
6.1.14 Updated Costs. D/B shall provide updated construction cost estimates in conjunction with the
submittals required in Section 6.1.9 to support Value Engineering ("VE") and constructabi1ity reviews.
6.1.15 Final Review and Approval of Plans and Specifications. DIE 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 DIE within Thirty 30 Business Days of the date such Construction Documents are
delivered to City in accordance with the notice provisions in Article XXIX. Approval shall not be
unreasonably withheld. If requested by City, DIE shall make changes to the Construction Documents.
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ARTICLE VII. PHASE Ill. - CONSTRUCTION PHASE WORK AND SERVICES
7.1 Phase lll. Work and Services. The D/B shall construct the Project in accordance with City-approved plans
and specifications prepared by the D/B to meet or exceed all requirements of the City provided program,
schematic design and the performance criteria. The D/B shall:
7.1.1 Bidding. D/B shall prepare and submit to the City for review separate bid packages, such bid packages
shall be organized in the manner that D/B determines is appropriate to ensure the efficient and cost
effective construction of the Project.
7.1.1.1 Competitive Bidding. D/B shall competitively bid the respective bid packages for the
construction of the Project.
7.1.1.2 Pre-Bid Conferences. D/B shall schedule and conduct pre-bid conferences to answer questions
posed by bidders. Said answers and any other information required to provide clarification to
the Construction Documents during the bidding process shall be issued as written addenda and
provided to all prospective bidders. N/ A
7.1.1.3 Scheduling. D/B shall coordinate scheduling of bid packages, submittals.
7.1.IA Bid Results. D/B shall submit to the City a summary of bid results for each bid package.
7.1.1.5 Bid Protests. D/B shall hear and decide bid protests and shall develop and maintain bid protest
procedures for that purpose. City shall be timely informed of all bid protests (prior to
resolution) and the outcome of said protests.
7.1.1.6 Equal Opportunity ContractingINondiscrimination. D/B shall not discriminate on the basis of
race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the
solicitation, selection, hiring or treatment of subcontractors, vendors, or suppliers. DIB shall
provide equal opportunity for subcontractors to participate in subcontracting opportunities.
DIB 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 DIB and any
subcontractors, vendors, or suppliers.
7.1.1. 7 Executing Contracts. DIB shall be responsible for entering into subcontracts, in DIB's own
name, with the bidder who in D/B' s discretion and professional opinion best meets the
monetary, time, and performance requirement of the Project. DIB shall be responsible for
ensuring that these contracts fully comply with all applicable local, state and federal laws,
some but not all of which are listed below.
7.1.1.8 Additive Alternatives. DIB shall require additive alternates for extended warranties in bid
packages for roofing and HV AC systems.
7.1.2 Meetings. DIB shall conduct meetings identified below:
7.1.2.1 Preconstruction Meeting. D/B 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. D/B shall ensure that the preconstruction meeting is attended by D/B's
construction contractor, project manager, all D/B's major subcontractors, the City's
Project Manager, and all other persons necessary as determined by D/B or City.
7.1.2.2 Progress Meetings. D/B shall conduct weekly progress meetings with the City and appropriate
design and construction members.
7.1.2.3 Contractor Meetings. D/B shall conduct contractor meetings, as necessary, to provide
technical input.
7.1.2.3.1 D/B shall provide interpretation of technical specifications and drawings.
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7.1.2.4 Rescheduling. Progress Meetings may be rescheduled if rescheduled meeting times are
convenient for all necessary parties, and DIB has given no less than five (5) Calendar Days
prior written notice of the rescheduled meeting.
7.1.2.5 Minutes. DIB shall take corresponding meeting minutes and distribute copies to all attendees.
7.1.2.6 Reporting. DIB shall monitor and report to the City on actual performance compared to the
Project Schedule, provide updated As-Builts, and verify that the latest changes to the Project, if
any, have been made.
7.1.3 Construction Management. During construction of the Project, DIB shall perform and be responsible
for construction management, supervision, and administration services, including, but not limited to,
tracking and reporting all expenses and all aspects of the construction and coordinating all 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. DIB shall provide resident management and contract administration,
including specialists necessary for the functional, safe, on-budget and on-schedule completion
of the Project, starting with the issuance of a Notice to Proceed, upon receipt offmal
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 DIB resident staff shall ensure construction
compliance with applicable local, state, and federal codes, building and environmental permit
requirements, construction mitigation documents and enforcement of the Contract Documents.
7.1.3.2 Records Management. DIB shall implement and maintain an internal records management and
document control system as required to support project operations. The DIB shall provide
records management and document control information in a manner consistent with the City's
reporting system.
7.1.3.3 Cash Flow. DIB shall develop a project-specific Plan for defining, tracking and reporting cash
flow activity requirements and submit such plan to the City for review and approval prior to
implementation.
7.1.3.4 Reporting. DIE shall keep City informed of the progress and quality of the design and
construction of the Project.
7.1.3.5 Documents On-Site. DIB shall maintain a complete and up-to-date set of Construction
Documents in the Projects field office at all times during construction that reflect all changes
and modifications.
7.1.3 Site Safety, Security, and Compliance. DIE shall be responsible for site safety, security, and
compliance with all related laws and regulations.
7.1.3.1 Persons. DIE shall be fully responsible for the safety and security of its officers, agents, and
employees, City's officers, agents, and employees, and third parties authorized by DIB to
access the Project site.
7.1.3.2 Environmental. DIB shall administer and enforce the Environmental Mitigation Monitoring
and Reporting Plan for the Project, if any. In addition, DIB shall report environmental issues to
the City in a manner consistent with the City's reporting system. DIB shall be responsible for
the environmental consequences of the Project construction and shall comply with all related
laws and regulations, including the Clean Air Act of 1970, the Clean Water Act, Executive
Order number 11738, and the Stormwater Management and Discharge Control Ordinance No.
0-17988 and any and all Best Management Practice guidelines and pollution elimination
requirements as may be established by the Enforcement Official.
7.1.3.3 Risk of Loss. DIE is responsible for the Project, project site, materials, equipment, and all
other incidentals until the Project has been Accepted by the City and shall bear any costs or
expenses associated with the loss thereof or damage thereto, including by theft, fire, or other
casualties.
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7.1.4 Public Right-of- Way. All work, including, materials testing, special testing, and surveying to be
conducted in the Public right-of-way shall be coordinated with the City.
7.1.4.1 Materials Testing. D/B 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. N/A
7.1.4.2 Surveying. D/B shall pay for and coordinate with City's Engineering Department all surveying
required within the Public right-of-way.
7.1.4.3 Follow all Laws, Rules, and Regulations. D/B agrees to follow all City standards and
regulations while working in the Public right of way, including but not limited to, utilizing
proper traffic control and obtaining necessary permits.
7.1.5 Traffic Control. D/B shall address all traffic control requirements for the Project including, if
necessary, separate traffic control plans and/or notes. N/A
7.1.6 Abatement. D/B shall develop a mutually agreed upon program to abate and minimize noise, dust, and
disruption to access forparking and services at all times for adjacent business entities and residences.
NIA
7.1.7 Inspections. DIE shall coordinate any and all required inspections, including special inspections, in
such a manner that the progress of construction is not affected or impacted. The D/B shall provide
surveying, and other contracted services as required to complete project construction inspection and
testing tasks. The City will provide inspection, special inspection, re-inspection services, and periodic
building inspections.
7.1.8 Permits. The Parties acknowledge that the construction work to be performed on the Project by D/B in
compliance with this Agreement is subject to the prior issuance of building, land development, and/or
public improvement permits paid for and obtained by D/B. 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 D/B is relieved from its
obligation to construct those improvements covered by the denial of said permit(s). City shall, under
such circumstances, pay D/B the reasonable costs, not to exceed the amounts identified in this
Agreement, for all work completed up to the date of denial of said permit(s). All plans, specifications
and improvements completed to the date of the denial, suspension or cancellation of said permit(s)
shall become the property of City upon DIE's receipt of payment in full as described above.
7.1.9 Maintenance. D/B shall ensure Project is maintained in a clean, neat, sanitary and safe condition free
from accumulation of waste materials or rubbish. Until Acceptance of the Project, DIE shall be
responsible for on-going site maintenance, including any erosion prevention measures. Prior to Final
Completion, DIE shall cause to be removed from and about the Project all tools, construction
equipment, machinery, surplus materials, waste materials and rubbish and deliver the site to the City in
a clean, neat, sanitary and safe condition.
7.1.9.1 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 or their agent to pay a fee for any service connected with removing
or conveying waste. The City's franchise hauler is Allied (formerly Pacific) Waste Services
and may be reached at (619) 421-9400.
7.1.10 Requestfor Information ("RFI"). Parties acknowledge that the RFI process is solely for
correspondence between D/B and its agents; however, D/B shall submit copies of each RFI to City at
the within twenty-four (24) hours of receipt. DIE shall issue responses to RFIs. Unless DIE
specifically requests a City response, City will not respond to RFIs.
7.1.11 Review and Approval. D/B shall provide timely review and approve shop drawings, samples of
construction materials, product data, schedule submittals, and other submittals for compliance with the
Construction Documents. D/B shall keep the City advised of all such matters being reviewed and
approved by D/B and forward copies of such documents to City for review.
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7.1.12 Royalties and Other Fees. D/B shall pay royalties and license fees, if applicable. D/B shall defend
suits or claims for infiingement of patent rights and shall defend and hold City and City's agents
harmless from loss on account thereof
7.1.13 Provide City with a Detailed Construction Schedule (DCS) on an disc ( CD) within fourteen
(14) working days after receiving Notice to Proceed with Phase IV, provide updated versions ofDCS
on a monthly basis, and provide immediate notice of any impact on critical path items.
ARTICLE VIII. SUBCONTRACTING
8.1 Subcontractinl!.
8.1.1 Design Services. D/B shall perform or obtain the prior written consent ofthe City to subcontract all
design services for the Project utilizing qualified, licensed and sufficiently experienced architects,
engineers and other professionals (herein jointly "Design Consultants") as identified in Exhibit A. D/B
shall not be permitted to substitute any Design Consultant unless authorized by City.
8.1.2 Construction Services. D/B shall perform all construction on the Project utilizing subcontractors
appropriately licensed by the California Contractors State License Board or other required agency.
ARTICLE IX. PROJECT SCHEDULE
9.1 Project Schedule. D/B shall perform and complete the Services and Work under this Agreement according to
the time frames set forth in the Project Schedule, attached hereto as Exhibit "A" or a subsequently revised
Project Schedule in such a manner that the GMP or Contract Time ofthe Project shall not be exceeded and that
is consistent with the Standard of Care identified in Section 4.1.
9.1.1 Project Schedule. D/B has submitted, as part of its proposal, a Project Schedule based on its estimate
of the time necessary to complete the Project.
9.1.2 DIB's Obligation. Subsequent to the effective date of this Agreement, D/B shall provide, coordinate,
revise, and maintain the Project Schedule for all phases of the Project.
9.1.2.1 During the Project initiation and design phases, the D/B shall submit an updated Project
Schedule monthly to the City for approval.
9.1.2.2 During Construction, D/B shall submit an updated Project Schedule montWy to the City and
shall include:
9.1.2.2.1 Forecast Data with the intended plan for the remainder of the contract duration.
9.1.2.2.2 Actual Data with indications of when and how much Work and/or Services was
performed (% complete).
9.1.2.2.3 Logic changes or other changes required to maintain the Project Schedule.
9.1.3 Detail and Format. The Proj ect Schedule shall be substantially similar in detail and form to Exhibit A,
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 computer disk in a version of Microsoft
Project.
9.2 Project Completion. D/B acknowledges that all work on the Project under this Agreement will be complete
and ready for its intended use by the Project Completion Date, September 2010.
9.3 Chanl!es in Project Schedule. Changes in Project Schedule, whether to logic, definition, or relationship must
be approved by the City in writing as a Change Order pursuant to the manner identified in Article XIII.
ARTICLE X. DELAY IN PERFORMANCE
10.1 Time of Essence. Time is of the essence for this Agreement and each provision of this Agreement, including
the Project Schedule, Start Date, and Project Completion Date contained herein, unless otherwise specified in
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this Agreement. D/B 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 D/B anticipates or has reason to believe that the performance of Services and/or
Work under this Agreement will be delayed, the D/B shall immediately notify the City. A written notice of the
delay must be delivered to the City within five (5) Calendar Days of 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 ofthe length of the delay, and all
supporting data. The D/B shall include a written statement that the time adjustment requested is the entire time
adjustment to which D/B has reason to believe it is entitled as a result of the cause of the delay. An increase in
time for completion does not necessarily mean that D/B is entitled to an increase in GMP. If in the opinion of
the City, the delay affects a material part of the Project, the City may exercise its rights under Article XXVII of
this Agreement or any other remedy available in law or equity.
10.3 Delay. If delays in the performance of Services or Work required under this Agreement are caused by
unforeseen events beyond the control of the Parties, such delay may entitle the D/B to a reasonable extension
of time or to additional compensation. Any such extension of time must be approved in writing by the City.
The following conditions may justify such a delay: war; changes in law or government regulation; labor
disputes; strikes; fires, floods, adverse weather or other similar condition of the elements necessitating
cessation of the D/B's work; inability to obtain materials, equipment, or labor; required additional Professional
Services; or other specific reasons agreed to between the City and the D/B; provided, however, that: (i) this
provision shall not apply to, and the D/B shall not be entitled to an extension of time, additional costs, or
expenses for, a delay caused by the acts or omissions of the D/B, its consultants, contractors, employees, or
other agents; and (ii) a delay caused by the inability to obtain materials, equipment, or labor shall not entitle
the D/B to an extension oftime unless the D/B furnishes the City, in a timely manner, documentary proof
satisfactory to City of the D/B's inability to obtain materials, equipment, or labor.
10.3.1 Caused by City. IfD/B reasonably believes that any action, inaction, decision or direction by City or
agent for the City will likely result in the GMP or Contract Time being exceeded or the Project being
completed late, D/B will notify City at Project Team meeting and in writing within five (5) calendar
days of discovering such action, inaction, decision, or direction. Included in such notice will be an
estimate of the cost and time impact resulting from such action, inaction, decision or direction. D/B
shall provide complete and accurate pricing within ten (10) calendar days of said discovery.
10.4 Costs of DelaylLiauidated Dama!!:es. City and D/B recognize that time is of the essence in this Agreement
and that City will suffer fmancialloss if the Project is not completed by the Substantial Completion Date
identified in the Project Schedule or any extensions subsequently approved. As the exact amount of financial
loss cannot be accurately forecasted, the Parties have used their best efforts to establish an estimate of such
loss. In doing so, the Parties have examined all of the circumstances and factors associated with a delay and
have determined an amount that is fair and reasonable as liquidated damages. City and D/B agree that D/B
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 D/B expressly agrees are "not
unreasonable under the circumstances" as defmed in California Civil Code 91671 (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 agree that City may choose to reduce the GMP by the amount of
the liquidated damages.
ARTICLE XI. PROJECT COSTS
11.1 Estimated Cost. The Estimated Cost of Project, according to the RFP is Two Hundred Eleven Thousand Sixty
Three dollars and 80cents, ($211,063.80). The City's obligation under this Agreement shall not exceed the
Estimated Cost; however, once a GMP is determined and approved, the GMP shall become the not to exceed
amount of the City's obligation. GMP is subject to change pursuant to methods established in this Agreement.
11.1.1 Cost Schedule. The EMP has been allocated among each activity or portion of the Project ("Itemized
Cost(s)"). The Itemized Costs are included in Exhibit "A" attached. The cost incurred by the D/B for
a specific activity or portion of the Project shall not exceed the associated Itemized Cost.
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11.2 GMP. At 90% complete construction documents, DIE shall establish a GMP and submit such GMP to the
City for approval.
11.2.1 Not to Exceed Amount. The GMP shall not exceed $ Two Hundred Eleven Thousand Sixty Three
dollars and 80cents, ($211,063.80). Any costs incurred by DIE in excess of said GMP shall be the
sole responsibility of the DIE, unless a Change Order is approved by the City pursuant to Article XIII
of this Agreement.
11.2.1.1 Included Costs. In calculating the GMP, D/B shall include costs of the following:
11.2.1.1.1 All Design Consultants, including but not limited to architectural, structural, civil,
mechanical, electrical, communications, graphics and art consultants, landscape
architects, and acoustical, audio visual, lighting, and security consultants.
11.2.1.1.2 Estimating, value engineering and construction management.
11.2.1.1.3 Construction supervision and project management personnel, including but not
limited to superintendents, Project managers, Project secretaries, Project engineers,
Project accountants, and all other DIE personnel wherever located.
11.2.1.1.4 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, field equipment and storage facilities.
11.2.1.1.4.1 Option to Purchase. In no case shall the cumulative montWy rental
charges to the Project for equipment and Small Tools used by the DIE
exceed 90% of the fair market value of anyone 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 held Contingency Fund, which shall not exceed $ 9,942.00.
11.2.1.1.7 Reimbursable Costs. Example: Utility fees.
11.2.1.1.8 D/B Fixed Fee for the complete design and construction of the entire Project as
specified in the 90% CD's.
11.2.1.1.9 No more than $29,500.00 for Design Services and General Conditions.
1 1.2.1.1. 10 All home-office and field overhead costs of any type including document control
and retention;
1 1.2. 1. l.l 1 All business license costs;
11.2.1.1.12 All profit D/B intends to earn under this Agreement.
11.2.1.1.13 All direct and incidental costs incurred by D/B, except for those specifically
identified under the General Conditions section.
1 1.2. 1. 1.14 Other. N/A
11.2.1.2 Full Compensation. Unless otherwise expressly provided in this Agreement, GMP shall be
the maximum amount of compensation to due to D/B for all permitted costs of any type
incurred by DIE in performing all services and obligations under this Agreement.
11.2.2 Itemization. D/B shall provide City with an itemization of the GMP that reconciles the GMP with the
itemized costs. The itemization shall include the following:
11.2.1.1 DiB Fixed Fees. $ 29,910.00 for the term of the project.
11.2.1.2 Hard Construction Costs. Hard Construction Costs broken down into categories for each of
the major trades for the Project, which will include labor, material expenses, equipment costs,
and a reasonable D/B Contingency Fund.
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11.2.1.3 N/ A
11.2.3 Alternate Bid Items. D/B shall prepare, with the cooperation of the City, alternate bid items to assure
that the cost of the Project will not exceed the GMP.
11.2.4 Adjustments to GMP Based on Approved Change Orders. GMP may be changed, increased or
decreased, based on Change Orders approved pursuant to Article XIII.
11.2.5 Adjustments Based on Other Cost Increases. GMP 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 standards and specifications of construction, concealed or
unknown conditions encountered in the completion of the Project, or other cause beyond D/B's
control, (ii) actual bids received being greater than estimated, or (iii) other factors not the result of
unreasonable conduct by D/B. 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 Duty to Advance Costs. D/B shall advance all costs for Project subject to Reimbursement in the manner
described in Article XVI.
11.4 Use ofProiect Contin2:ency. Project Contingency shall not be used without prior, written City approval and
shall not be used for: (i) work required due to D/B's, its officers', agents' or employees' failure to perform
Work or Services according to the terms of this Agreement, in compliance with the Construction Documents,
and/or Law; or (ii) uninsured losses resulting from the negligence ofD/B, its officers, agents, or employees.
11.5 Notification of Increased Costs. If, at any time, the D/B anticipates that the amount expended on the Project
will exceed the Estimated Cost or the GMP, when established, the D/B shall immediately, not more than ten
(1 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 D/B believes
will bring the Project cost to within the Estimated Cost or GMP. Following the delivery of the Notice, D/B
shall assist the City in reviewing the itemized cost breakdown and 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 D/B, the City may choose to: (i) approve an increase in
the amount authorized for the Project; (ii) delineate a project, which may be constructed for the budget
amount; (iii) any combination of (i) and (ii); or terminate the Project subject to the termination
provisions in Article XXVII.
ARTICLE XII. PRODUCTS
12.1 Submittals. Prior to the bidding process, D/B shall submit for City approval a list of products intended for use
in the Project. Upon D/B's completion of plans and specifications, City will review and approve products
specified therein. D/B shall provide City a copy of each submittal for City approval throughout the duration of
construction within twenty (20) Calendar Days of D/B's receipt of submittal. Approval is general approval only
and in no way relieves D/B of its sole responsibilities under this Agreement or any and all laws, codes, permits
or regulations.
12.2 Substitutions. D/B shall submit all requests for product substitutions to City in writing within thirty (30)
Calendar Days after the date of award of the construction contract. After expiration of the thirty (30) Calendar
Days, City will allow substitution only when a product becomes unavailable due to no fault ofD/B's
contractor. City shall review substitution requests within thirty (30) Calendar Days of submission of such
requests. D/B agrees that City requires Consultant's input and as such D/B shall coordinate a five (5) Working
Day review by its Consultant.
12.2.1 Substantiate Request. D/B shall include with each substitution request complete data substantiating
that the proposed substitution conforms to requirements of the Contract Documents.
12.2.2 DIB Representations. By submitting a substitution request, D/B is representing to City all of the
following: (i) D/B has investigated proposed product and determined that in all respect the proposed
product meets or exceeds the specified product; (ii) D/B is providing the same warranty for the
proposed product as was available for the specified product; (iii) D/B shall coordinate installation and
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make any other necessary modifications which may be required for work to be complete in all respects;
and (iv) D/B shall waive any claims for additional costs related to the substituted product, unless the
specified product is not commercially available.
12.2.3 Separate Written Request. City will not consider either substitutions that are implied in the product
data submittal without a separate written request or substitutions that will require substantial revision
of construction contract documents.
12.3 Samples.
12.3.1 Postage. Samples shall be sent to D/B's office, carriage prepaid.
12.3.2 Review. D/B shall furnish to City for review, prior to purchasing, fabricating, applying or installing,
(2) two samples (other than field samples) of each required material with the required fmish.
12.3.2.1 Where applicable, all samples shall be 8" x 10" in size and shall be limited in thickness to a
minimum consistent with sample analysis. In lieu thereof, the actual full-size item shall be
submitted.
12.3.2.2 D/B shall assign a submittal number. D/B shall include with each submission a list of all
samples sent, a statement as to the usage of each sample and its location in the Project, the
name of the manufacturer, trade name, style, model, and any other necessary identifying
information.
12.3.2.3 All materials, fmishes, and workmanship in the complete building shall be equal in every
respect to that of the reviewed sample.
12.3.2.4 City will return one submitted sample upon completion of City review.
12.3.2.5 D/B's, or D/B's agent's, field samples shall be prepared at the site. Affected finish work shall
not commence until D/B or its agents have been given a written review of the field samples.
12.3.3 Not a Release of Liability. City's review of samples in no way relieves D/B of D/B's responsibility for
construction of Project in full compliance with all Contract Documents.
12.4 Observe Testin2:. When appropriate, D/B shall witness testing and review materials and equipment testing
results and provide comments regarding conformance with specification requirements.
ARTICLE XIII. CHANGE ORDERS
13.1 When Required. Change Orders shall be required in the following instances:
13.1.1 GMP. Any adjustment in GMP.
13.1.2 Contract Time. Any adjustment in Contract Time of Completion Date.
13.1.3 Use of Contingency Fund. At any time D/B seeks to use the Contingency Fund, irrespective of impact
on the GMP or Contract Time.
13.1.4 City Requests. The City directs D/B to perform Additional Services.
13 .1.5 Other. Any other instance for which this Agreement expresses that a Change Order shall be used.
13.2 Process for Approval of Chan2:e Orders. Within five (5) Calendar Days of any event that gives rise to the
need for a C):1ange Order, the D/B shall provide the City with written notice of the need for the same. The
Change Order must indicate whether the change will affect, in any way, by increasing or decreasing, the GMP,
Project Schedule, or project quality established during the design and submittal review process. In addition, it
shall be accompanied by a detailed and complete estimate of cost impact associated with the Change Order,
including all appropriate direct and indirect costs and credits. All such costs and credits shall be accurately
categorized into D/B Fixed Fee, Reimbursable Costs or Hard Construction Costs. D/B 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 in the Estimated
Cost, the City's Project Manager shall either approve or reject the Change Order in writing within ten
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(10) Working Days of receiving D/B's written notice, provided D/B has submitted complete
documentation substantiating the need for such Change Order. If City fails to respond to D/B's written
notice within the ten (10) Working Days, the Change Order request shall be deemed denied.
13.2.2 City Council Approval. For Change Orders not subject to section 13.2.1, City Council approval is
required. The City Council may either approve, reject, or approve in part such Change Orders.
Council Approval shall not be subject to the ten (10) Working Day response time provided for in
section 13.3.l.
13.3 Written Approval of Chan2:e Orders. D/B shall not proceed on work requested under a Change Order,
absent written approval from the appropriate authority. Any Services or Work, which require t he approval of
a Change Order, perform by D/B prior to approval shall not be reimbursed.
13.4 Failure to A!!ree on Cost ofChan!!e Order or Time. In the event there is any disagreement or dispute
between the Parties as to whether the D/B is entitled to a Change Order, the amount ofthe Change Order or
any increase in Contract Time requested through the Change Order, the dispute shall be resolved by the
Director of Public Works. If the determination of the Director of Public Works is challenged, such challenge
shall be addressed in the manner identified in Section 30.17 D/B shall not have the right to stop or delay in the
prosecution of any services or work, including services or work that is the subject of the Change Order (if
directed by the City), pending the determination of the Director of Public Services or, if applicable, fmal
resolution. Instead, DIE shall continue diligently prosecuting all such services and work.
13.5 Full Compensation. Payment to D/B for Change Orders shall provide full compensation for all equipment,
materials, labor, field and home office overhead, mark-ups, and profit necessary to complete the work. By
executing a Change Order, the D/B or D/B's representative acknowledges that no additional compensation or
claims for items of work listed in the Change Order will be allowed.
13.6 Errors and Omissions. D/B shall not be reimbursed for any costs or expenses of a Change Order resulting
from a design error or omission, D/B' s negligence, or the negligence of any of D/B' s agents or subagents. D/B
shall be reimbursed for any costs or expenses of a Change Order resulting from a design error or omission that
is the direct result of a City request for such design or omission. The City reserves the right to seek
reimbursements for any funds used due to errors or omissions of the Design Consultants, DIE's negligence, or
the negligence of any of DIE's agents, or subcontractors.
13.7 City Refusal to Approve Chan2:e Order. DIE shall not have the right to terminate this Agreement for the
City's refusal to approve a Change Order pursuant to Sections 13.2.1 or and 13 .2.2
ARTICLE XIV. EXTRA WORK
14.1 City Authoritv to Order Extra Work. City may at any time prior to Project Completion order Extra Work
on the Project. The sum of all Extra Work ordered shall not exceed five percent (5%) of the Estimated Cost at
the time of the Bid Award, without invalidating this Agreement and without notice to any surety.
14.1.1 Requests in Writing. All requests for Extra Work shall be in writing, shall be treated as, and are
subject to the same requirements as Change Orders. D/B shall not be responsible for failure to perform
Extra Wode, which was requested in a manner inconsistent with this section.
14.2 Bonds ReQuired for Extra Work. DIE's and its agents' bonds, required under Article XXIV, shall cover any
Extra Work provided that the Extra Work is paid for by the Project Budget
14.3 Reimbursement for Extra Work. Work performed by DIE as Extra Work is reimbursable in the same
manner descnbed in Article XVI. The Project contingency as described in Article X, will be used first to cover
the costs of Extra Work.
14.4 Markup. D/B will be paid a reasonable allowance for overhead and profit for Extra Work. The allowance
shall not exceed five percent (5%) of the approved costs for the Extra Work.
ARTICLE XV. CHANGED CONDITIONS
15.1 Chan2:ed Conditions. Changed Conditions shall be addressed under the Greenbook section 3-4; however,
Parties acknowledge that even if Changed Conditions are found to be present, the Project shall not exceed the
GMP without express City Council approval of an increase to the Project Budget. Absent such express
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approval of additional funds, DIE shall provide City with value engineering and Parties will return Project to
within the total Project cost.
ARTICLE XVI. PAYMENT TERMS
16.1 Payment
16.1.1 Fundsfor Payment. DIE shall only be entitled to payment for Services and Work performed under this
Agreement from the funds appropriated for the Project.
16.1.3 Maximum Payment. DIE shall be entitled to payment in an amount not to exceed the GMP or
subsequently approved increase in GMP. D/B is not entitled to payment for unapproved expenses,
unapproved increases in costs, or other increases caused by D/B negligence, omissions, or failure to
seek approval for additional or increased costs.
16.1.5 Applicationfor Payment. DIE shall submit to City a certificate and application for payment on or
before the 5th day of each calendar month ("Payment Application"). The Payment Application shall be
based upon the percentage of completion of the Schedule of Values plus any Reimburseable Costs, less
any payments previously made by the City, incurred or advanced for the Project for which D/B was
has not previously received payment. The Payment Application must include all relevant documents
in accordance with Section 16.1.6 If the City determines that all relevant documents have not been
submitted, City shall request that DIE provide additional documentation. DIE shall provide additional
documentation within ten (10) Working Days of request. City is not obligated to make payment to DIE
until City has received all relevant documentation to support Reimbursement Request. After all
appropriate cost documentation has been received and City approves the Payment Application, City
shall make payment to DIE of all uncontested charges within sixty (60) Calendar Days of receipt of a
complete Payment Application.
16.1.5.1 Withholding. From each payment, ten percent (10%) will be deducted and retained by the
City, and the remainder will be paid in accordance with the terms and conditions of this
Agreement. No payment made to DIE 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 DIE, City will deposit retention amounts into escrow and/or the
substitution of securities for money as provided in California Public Contract Code Section
22300.
16.1.5.2 Payment of Withholding. The City will pay the DIE for the amounts withheld forty-five (45)
Calendar Days from recordation of the Notice of Completion, providing that no Stop Notices
or Mechanic's Liens have been filed since the recordation of the Notice of Completion.
16.1.5.2.1 Where a Stop Notice or Mechanic's Lien has been filed following the recordation of
the Notice of Completion, the amount in controversy shall continue to be withheld
until a fully executed release of Stop Notice or Mechanic's Lien has been filed and
a conformed copy delivered to the City.
16.1.5.3 Contested Charges. In the event City contests any charges contained in the Payment
Application, the dispute shall be resolved in the manner identified in Section 21.6. DIE shall
not have the right to stop or delay in the prosecution or any Services of Work, pending the
determination of the Director of Public Works or, if applicable, final resolution. Instead DIE
shall continue to diligently prosecute all Work and Services. During the time of the dispute,
the City shall withhold the amount of the charge in question.
16.1.5.3 Cutoff for Submission of Reimbursement Requests. DIE shall submit all Reimbursement
Requests within six (6) months of the date on which Final Completion occurs and City
accepts the Project. Any Reimbursement Request submitted after the Cutoff Date shall not be
reviewed or included in Reimbursable Cost.
16.1.6 Verification of Reimbursement Request. DIE 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
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documents showing that payment has been made in connection with the Reimbursement Request in the
following manner:
16.1.6.1 DIB shall submit two (2) copies of a Reimbursement Request (cover letter, invoice, and
documentation) to the City.
16.1.6.2 After review and approval, the City shall prepare a memorandum to the Financing
Department that the invoice is appropriate to pay. The memorandum shall indicate any costs
to be disallowed and the reason for the disallowance.
16.1.6.4 Prior to the approval of the Reimbursement Request, City has the right to verify whether or
not the materials and work for which reimbursement is being requested have been installed
and performed as represented in the Reimbursement Request.
16.1.8 Non-reimbursable Costs. Except to the extent that City expressly assumes the risk ofloss under this
Agreement, City shall exclude from the amounts payable to DIB 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, DIB is not entitled to reimbursement for any cost or expenditure that has not been
approved by the City in the manner required by this Agreement or the City Charter and rules,
regulations, or laws promulgated there-under.
ARTICLE XVII. INSPECTION
17.1 Inspection Team. The Project shall be inspected by a team composed of, at a minimum, the following: i.)
representatives of the City, ii.) representative from DIB's Design Team, iii.) the Construction Manager, and
iv.Representative, (iii) DIB's Consultant(s), and (e) the DIB's construction superintendent [Inspection Team]
17.2 Inspection Stal!es. 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. DIB shall provide them proper and safe conditions for such access
and advise them ofDIB's safety procedures and programs so that they may comply.
17.4 Additional Inspections. City will make, or have made, such inspections and tests, as the City deems
necessary to see that the Work is being accomplished in accordance with the requirements of the Construction.
17.5 Notice. DIB 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. DIB shall give at least 24 hours notice for on-site inspection and five (5) days notice for off-site
inspection.
17.6 Costs of Inspection. Unless otherwise specified, the cost of inspection and testing will be borne by the City.
Any expenses associated with re-inspection shall be borne by DIB.
17.7 Concealinl! Work. Prior to concealing work, DIB 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 DIB Work product which is to be inspected or tested, or which will interfere with the inspection or testing
activities, for a reasonable time and DIB will have no right to additional cost or time it may incur as a result of
the Work stoppage.
17.8 Defective Work. In the event such inspections or tests reveal non-compliance with the requirements of the
Construction Documents or defective work, the provisions and process of Article XXII shall apply.
17.9 Not a Waiver of Obli2"ations. Neither observations by the City nor inspections, tests, or approvals by City or
others shall relieve DIB from DIB's obligations to perform the Work in accordance with the Construction
Documents. This approval is general approval only and in no way relieves DIB of its sole responsibilities under
this Agreement or any and all laws, codes, permits or regulations.
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ARTICLE XVIII. PROJECT COMPLETION
18.1 Notice to City. When D/B detennines that the Project is complete, D/B shall notifY the City in writing of the
Projects status within seven (7) Calendar Days of the D/B's detennination. The notice shall certifY to City that
the Project has been completed in accordance with the Construction Documents, all applicable building codes
and regulations, all pennits, licenses, and certificates of inspection, use and occupancy, and ordinances relating
to the Project.
18.2 Walk-Throu2:h Inspection. A preliminary Walk-Through Inspection shall be conducted by City within ten
(10) Working Days following D/B's notice to City of completion ("Walk-Through Inspection"). The Walk-
Through Inspection will be conducted by the Inspection Team identified in Article XVII, Section 17.1.
18.2.1 Punch List. A Punch List, if necessary, shall be prepared by City during the Walk-Through Inspection.
The Punch List shall be presented to D/B by the RE within three (3) Working Days of the Walk-
Through Inspection. D/B shall correct the items listed on the Punch List within thirty (30) Calendar
Days of receipt of the punch list and prior to the Final Inspection.
18.2.2 Failure to Identify Items. As to any items not included on the Punch List or later discovered, nothing
in this section is intended to limit D/B' s obligations under this Agreement and City will maintain all
remedies available under this Agreement and the law.
18.3 Equipment Demonstration. Prior to fmal inspection, D/B shall demonstrate to City the operation of each
system in the Project, and instruct City personnel in operation, adjustment and maintenance of equipment and
systems, using the operation and maintenance data.
18.3.1 Startup. The D/B shall supervise, manage, and coordinate all project startup and testing activities for
mechanical systems within the provisions ofthe project Contract Documents.
18.3.2 Reporting. The D/B shall report progress of project startup and testing to the City in a manner
consistent with the City's reporting system.
18.4 Final Inspection. Provided D/B has corrected the Punch List items and notified the City of the correction
("Notice of Correction"), the Final Inspection for the Project shall be scheduled and conducted within ninety
(90) Calendar Days of the Notice of Correction.
ARTICLE XIX. PROJECT ACCEPTANCE AND FINAL COMPLETION
19.1 Acceptance. Upon approval by the Inspection Team during the Final Inspection that Project improvements are
complete and that work required on the Punch List has been finished, City shall accept the Project
("Acceptance"). Upon Acceptance, D/B shall do all of the following:
19.1.1 Notice of Completion. D/B shall execute and file a Notice of Completion with the County Recorder of
San Diego County and shall provide the RE with a confonned copy of the recorded Notice of
Completion.
19.1.2 Lien and Material Releases. D/B shall cause all contractors and subcontractors to provide lien and
material releases as to the Project and provide copies of such lien and material releases to the City or,
upon approval of City which shall not be unreasonably withheld, provide bonds in lieu of lien and
material releases in a fonn reasonably acceptable to City for all such work.
19.2 Final Completion. Final Completion of the Project shall be deemed to occur on the last date of the following
events: (i) rt:cordation of the Notice of Completion with a confonned copy to City; (ii) submission of all
documents required to be supplied by D/B to City pursuant to this Agreement, including As-Built Drawings,
warranties, and operating and maintenance manuals; or issuance of a final certificate of occupancy.
As-Builts. City will evaluate the submitted As-Builts for accuracy and completeness and may return
comments. D/B shall meet with City until all issues are resolved. Upon issue resolution, in
accordance with disputed work procedures in Section 21.6, D/B shall submit a mylar set and three
(3) [mal blueline sets of As-Builts stamped by the architect/engineer of record as required by law.
19.2 No Waiver. D/B's obligation to perfonn 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
19.2.1
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by City to DIE under the Contract Documents, nor any use or occupancy of the Project or any part thereof by
City, nor any act of acceptance by City, nor any failure to do act, nor any review of a shop drawing or sample
submittal, will constitute an acceptance of work, which is not in accordance with the Contract Documents.
ARTICLE XX. PROJECT DELIVERABLES
20.1 Proiect Deliverables. Prior to Acceptance, DIE shall deliver all of the following to the City in the format
required:
20.1.1 As-Builts. DIE shall provide As-Builts in 3 sets of paper and electronic format (pdt) 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 similar items as determined by City, both
concealed and visible. D/B shall clearly identify the item by accurate note such as "cast iron
drain," galvanized water, etc. DIE shall clearly show, by symbol or note, the vertical location
of the item ("under slab", "in ceiling", "exposed", etc.), and make all identification
sufficiently descriptive that it may be related reliably to the specification. DIB shall
thoroughly coordinate all changes on the As-Builts making adequate and proper entries on
each page of specifications and each sheet of drawings and other documents where entry is
required to properly show the change.
20.1.1.2 DIE shall include all of the following on the As-Builts:
20.1.1.2.1Depth of foundation in relation to fmished first floor.
20.1.1.2.2Horizontal and vertical locations of underground utilities and appurtenances, with
references to permanent surface improvements.
20. 1. 1.2.3Locations of internal utilities and appurtenances, with references to visible and
accessible features of the structure.
20.1.1 0.2.4Field changes of dimensions and details.
20. 1. 10.2.5Changes authorized by approved proposal requests, construction Change Orders,
discussion with City that resulted in any change/deviation from City's program,
specifications, approved plans, equipment or materials.
20.1.10.2.6Details not issued with original Construction Drawings, designlbuild plans
deferred approvals, etc.
20.1.10.2.7Upon completion of work, obtain signature oflicensed surveyor or civil engineer
on the Project record set verifying layout information.
20.1.1 0.2.8Show locations of all utilities on-site with size, and type of pipe, if different than
specified, and invert elevations of pipe at major grade and alignment changes.
20.1.10.2.9The title "PROJECT RECORD" in 3/8" letters.
20.1.10.3 D/B shall maintain a set of As-Builts at the Project site for reference. D/B shall ensure that
changes to the As-Builts are made within twenty-four (24) hours after obtaining information.
Changes shall be made with erasable colored pencil (not ink or indelible pencil), shall clearly
describe the change by note (note in ink, colored pencil or rubber stamp) and by graphic line,
shall indicate the date of entry, shall circle the area or areas affected and, in the event of
overlapping changes, use different colors for each change.
20.1.11 Operation and Maintenance Manuals. DIE shall submit all Operation and Maintenance manuals
prepared in the following manner:
20.1.11.1 In triplicate, bound in 812 x 11 inch (216 x 279 mm) three-ring size binders with durable
plastic covers prior to City's Final Inspection.
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"._"._~._-
20.1.11.2 A separate volume for each system, including but not limited to, mechanical, electrical,
plumbing, roofmg, irrigation, and any other system as determined by City, with a table of
contents and index tabs in each volume as follows:
20.1.11.2.1 Part 1: Directory, listing names, addresses, and telephone numbers of DIB 's
subcontractors, agents, suppliers, manufacturers, 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 ofDIB's agents, suppliers, manufacturers, and
installers. In addition, list the following: (i) appropriate design criteria; (ii) list of
equipment; (iii) parts list; (iv) operating instructions;(v) maintenance instructions,
equipment; (vi) maintenance instructions, finishes; (vii) shop drawings and
product data; and (viii) warranties.
20.2 Ownership of Proiect DeIiverables. Upon Final Completion or Termination, Project Deliverables shall
become the property of the City. DIB 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 Completion all records, documents, warranties, bonds, guarantees, maintenance/ service contracts, and
maintenance and operating manuals
ARTICLE XXI. WARRANTIES
21.1 Warranties ReQuired. DIE shall provide and require its agents to provide the warranties listed below. This
warranty requirement is not intended to exclude, and shall not exclude, other implicit or explicit warranties or
guarantees required or implied by law.
21.1.1 Materials and Workmanship. DIE shall guarantee, and shall require its agents to guarantee, all work
on the Project against defective workmanship and materials furnished by DIB for a period of two (2)
years from the date of Project's Final Completion. DIB 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. DIB shall warrant and guarantee, and shall require its agents to
warrant and guarantee, to City that all materials and equipment incorporated into the Project are new
unless otherwise specified.
21.1.3 Design, Construction, and Other Defects. DIE shall warrant and guarantee, and shall require its agents
to warrant and guarantee to City that all work is in accordance with the Plans and Specifications and is
not defective in any way in design, construction or otherwise.
21.2 Form and Content. Except manufacturer's standard printed warranties, all warranties shall be on DIB's and
DIE'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 City to suit the
conditions pertaining to the warranty.
21.2.1 Durable Binder. Obtain warranties, executed in triplicate by DIB, DIB's agents, installers, and
manufacturers. Provide Table of Contents and assemble in binder with durable plastic cover.
21.2.2 Table of Contents. All warranties shall be listed and typewritten in the sequence of the Table of
Contents of the Project manual, with each item identified with the number and title of the specification
section in which specified, and the name of product or work item.
21.2.3 Index Tabs. Separate each warranty with index tab sheets keyed to the Table of Contents listing.
21.2.4 Detail. Provide full information, using separate typewritten sheets, as necessary. List DIB's agents,
installer, and manufacturer, with name, address and telephone number of responsible principaL
21.2.5 Warranty Start Date. Except for items put into use with D/B's permission with date mutually agreed
upon in writing, leave date of beginning of time of warranty open until the date of Final Completion.
21.2.6 Signature and Notarization. All warranties shall be signed and notarized. Signatures shall be required
from DIB's construction contractor and where appropriate, the responsible subcontractor.
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21.3 Term of Warranties. Unless otherwise specified or provided by law, warranties shall extend for a term of
two (2) year(s) from the date of Final Completion.
20.3.1 Plants, Trees, and Shrubs. Not withstanding above, all shrubs and ground cover shall have a ninety
(90) Calendar Day warranty period and trees shall have a one (1) year warranty period. All plant
warranties shall commence from the date of Final Completion.
21.4 Meetin2s. During the two (2) year warranty period described in Section 21.3, D/B shall meet, and shall
require its design Consultant, construction contractor, and key subcontractors to meet, with the City
representatives, on a monthly basis, if requested by City. This meeting shall be held to discuss and resolve any
problems that City discovers in design, construction, or furnishing, 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-year general building
warranty period, D/B shall inspect each component ofthe Project, identify items requiring repair, and oversee
and complete such repairs. Findings of such inspections shall be reported to the City.
ARTICLE XXII. DEFECTIVE WORK
22.1 Correction, Remoyal, or Replacement. If within the designated warranty period, or such additional period as
may be required by law or regulation, the Project is discovered to contain Defective Work, the D/B shall
promptly and in accordance with the City's written instructions and within the reasonable time limits stated
therein, either correct the Defective Work, or if it has been rejected by City, remove it from the site and replace
it with non-defective and conforming work.
22.2 City's Ri2ht to Correct. If circumstances warrant, including but not limited to an emergency or D/B' s failure
to adhere to section 22.1, City may correct, remove, or replace the Defective Work. In such circumstances,
D/B shall not recover costs associated with the Defective Work and shall reimburse the City for all City's
costs, whether direct or indirect, associated with the correction or removal and replacement.
22.3 Non-Reimbursable Costs. All costs incurred by D/B or D/B's agents to remedy defects are non-reimbursable
costs. If the City has already reimbursed the D/B for the defective work, City is entitled to an appropriate
decrease in Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against D/B' s
bond if D/B has been paid in fulL
22.4 Extension of War ran tv. When Defective Work, or damage therefrom, has been corrected, removed, or
replaced during the warranty period, the two (2) year, or relevant warranty period, will not be extended for an
additional two (2) years from the date of the satisfactory completion of the correction, removal, or replacement.
22.5 No Limitation on other Remedies. Exercise of the remedies for defects pursuant to this Article shall not limit
the remedies City may pursue under this Agreement or law.
22.6 Disputes. IfD/B and City are unable to reach agreement on disputed work, City may direct D/B to proceed
with the work and compensate D/B for undisputed amounts. Payment of disputed amounts shall be as later
determined by the Director of Public Works. If this decision is contested, the claims procedure in 30.17 shall
be followed. D/B shall maintain and keep all records relating to disputed work for a period of three (3) years in
accordance with Article XXVIII.
ARTICLE XXIII. MAINTENANCE OF LANDSCAPING & IRRIGATION WORK
23.1 Maintenance Period. IfD/B is required to install or maintain landscaping and/or irrigation, D/B shall provide
a maintenance period which shall begin on the first day after all landscape and irrigation 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.
N/A
23.2 Maintenance Area. D/B or D/B's Contractor shall maintain all involved areas of the Project.
23.3 Maintenance Reauired. D/B or D/B's Contractor shall conduct regular planting maintenance operations
immediately after each plant is planted. Plants shall be kept in a healthy, growing condition and in a visually
pleasing appearance by watering, pruning, mowing, rolling, trimming, edging, fertilizing, restaking, pest and
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disease controlling, spraying, weeding, cleaning up and any other necessary operation of maintenance.
Landscape areas shall be kept free of weeds, noxious grass and all other undesired vegetative growth and
debris. DIE or DIE'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 low 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 or other potential causes of
damage. N/ A
23.4 Landscape and Irri!!ation Inspection. At the conclusion of the maintenance period, City shall inspect the
landscaping and irrigation to determine the acceptability of the work, including maintenance. This inspection
shall be scheduled with two (2) weeks notice, a minimum of ninety (90) Calendar Days after the plant
maintenance period commencement, or when the DIE or DIE's contractor notifies the City that they are ready
for the final inspection, whichever comes last. The City will notify DIE of all deficiencies revealed by the
inspection before acceptance. N/ A
23.5 Extension of Maintenance Period. DIE shall extend completion of the maintenance period when, in City's
opinion, improper maintenance and/or possible poor or unhealthy condition of planted material is evident at the
termination of the scheduled maintenance period. D/B 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. N/ A
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 fourteen (14) Working
Days of notification by City. D/B shall include, at DIE's or D/B's Contractor's expense, a timely written
diagnosis of plant health by a certified Arborist, should a dispute arise. Arborist's report shall indicate reason
for lack of vigor, potential remedies, if any, and estimate oftime required to regain vigor and specified size.
N/A
23.6.1 Same Kind and Size. Plants used for replacement shall be same kind and size as specified and shall be
furnished, planted and fertilized as originally specified. Cost of all repair work to existing
improvements damaged during replacements shall be borne by D/B and shall not be Reimbursable
Costs. N/ A
ARTICLE XXIV. BONDS
24.1 Payment Bond. D/B shall provide or require its Construction Contractor to provide City with a Payment
(material and labor) Bond in favor of City for one hundred percent (100%) of the Hard Construction Costs.
24.2 Performance Bond. D/B shall provide or require its Construction Contractor to provide City with a Faithful
Performance Bond in favor of the City for one hundred percent (100%) of the GMP.
24.3 Term. The Payment Bond shall remain in full force and effect at least until the Project is accepted by the City
and all claims for materials and labor are paid, for a minimum offorty-five (45) Calendar Days after the filing
of the Notice of Completion, except as otherwise provided by law or regulation. The Performance Bond shall
remain in full force for thirty (30) Calendar Days following the filing date ofthe Notice of Completion and
Acceptance, at which time it will convert to a ten percent (10%) warranty bond, which shall remain in place
until the end of all warranty periods set forth in this Agreement.
24.4 Certificate of A!!encv. All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
24.5 Licensin!! and Ratin!!. 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-".
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24.6 Form. All bonds shall be in the fonn prescribed by City Attorney.
24.6 Insolvency or Bankruptcy. If the surety on any bond furnished by the Construction Contractor is declared
bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the
Project is located, DIE shall within seven (7) Calendar Days thereafter substitute or require the substitution of
another bond and surety, acceptable to the City.
ARTICLE XXV. INDEMNITY & DUTY TO DEFEND
25.1 Indemnity Defense and Hold Harmless - General Requirement. Except for liability for Professional
Services covered under Section 25.2, DIE 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, loss, damage or injury, in law or equity, to property or persons, including wrongful
death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct
of DIE, its officials, officers, employees, agents, and contractors, arising out of or in connection with the
perfonnance of the Defmed 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 acts or omissions of
the City, its agents, officers, or employees which may be in combination with the active or passive negligent
acts or omissions of the DIE, its employees, agents or officers, or any third party.
25.2 Professional Services. For those professionals who are required to be licensed by the state (e.g. architects,
landscape architects, surveyors and engineers) ("Design Professionals"), Design Professionals shall defend,
indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and hannless from
any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or
equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating
to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials,
officers, employees, agents, DIEs, and contractors arising out of or in connection with the perfonnance ofthe
Design Professional's Services. Also covered is liability arising from, connected with, caused by, or claimed to
be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees
which may be in combination with the active or passive negligent acts or omissions of the Design Professional,
its employees, agents or officers, or any third party. The Design Professional's duty to 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 DIE shall keep the Project and Property free of any
mechanic's liens and iInmediately secure the release of any stop notices. The DIE 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. DIE shall be responsible for payment of all persons entitled to assert liens and stop notices.
25.4 Indemnification for Hazardous Materials. DIE agrees to defend, indemnify, and hold harmless, the City, its
agents, officers and employees from and against any and all costs, damages, claims, and liabilities, including
reasonable attorney fees, foreseeable or unforeseeable, directly or indirectly, arising from or related to the
Hazardous Materials identified in the Phase I or Phase II Reports, if any, conducted pursuant to Article V.
DIE's indemnity shall survive the close of escrow. Seller expressly preserves its rights against other parties
and does no~ release, or waive its rights to contribution against, any other party.
25.5 Costs of Defense and Award. Included in the obligations in Sections 25.1 through 25.4, above, is the DIE's
obligation to defend, at DIE'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. DIE shall pay and satisfy any judgment, award or decree that may be
rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all
legal expense and cost incurred by each of them in connection therewith.
25.6 Insurance Proceeds. DIE's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, its directors, officials, officers, employees, agents, and/or volunteers.
I'
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25.7 Enforcement Costs. D/B agrees to pay any and all costs City incurs enforcing the indemnity and defense
provisions set forth in this Article XXV.
25.8 Survival. Consultant's obligations under this Article XXV shall survive the tennination of this Agreement.
ARTICLE XXVI. INSURANCE
26.1 General. DIB shall not begin work under this Agreement until it has: (i) obtained, and upon the City's request
provided to the City, insurance certificates reflecting evidence of all insurance required in section 26.2; (ii)
obtained City approval of each company or companies; and (iii) confinned that all policies contain the specific
provisions required by section 26.4.
26.2 Tvpes of Insurance. At all times during the tenn of this Agreement, DIB shall maintain insurance coverage as
follows:
26.2.1 Commercial General Liability. Contractor shall provide at its expense a policy or policies of
Commercial General Liability [CGL] Insurance written on an ISO Occurrence fonn CG 00 010798 or
an equivalent fonn providing coverage at least as broad and which shall cover liability arising from
premises and operations, XCD (explosions, underground, and collapse) independent contractors,
products/completed operations, personal injury and advertising injury, bodily injury, property damage,
and liability assumed under an insured's contract (including the tort liability of another assumed in a
business contract). There shall be no endorsement or modification of the CGL Insurance limiting the
scope of coverage for either "insured vs. insured" claims or contractual liability. Contractor shall
maintain the same or equivalent CGL Insurance as described herein for at least ten (10) years
following substantial completion of the work. All costs of defense shall be outside the policy limits.
The Policy shall provide for coverage in amounts not less than two million dollars ($2,000,000) per
occurrence for Bodily Injury, Personal Injury, or Property Damage. If Commercial General Liability
Insurance or other fonn with a general aggregate limit shall apply separately to this project/location,
the general aggregate limit shall be twice the required occurrence limit.
26.2.2 Commercial Automobile Liability. For all ofDlB's automobiles used in conjunction with the Project
including owned, hired and non-owned automobiles, DIB shall keep in full force and effect, a policy or
policies of Commercial Automobile Liability Insurance written on an ISO fonn CA 00 01 1290 or a
later version of this fonn or equivalent fonn providing coverage at least as broad in the amount of one
million dollars ($1,000,000) combined single limit per occurrence, covering bodily injury and property
damage for owned, non-owned and hired automobiles ["Any Auto"]. All costs of defense shall be
outside the policy.
26.2.3 Architects and Engineers Professional Liability. For all ofDlB's employees who are subject to this
Agreement, DIB shall keep in full force and effect, or DIB shall require that its architect/engineer(s) of
record keep in full force and effect errors and omissions insurance 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. DIB 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 tennination of this Agreement. DIB agrees that for the time
period defmed above, there will be no changes or endorsements to the policy that increases the City's
exposure to loss.
26.2.4 Excess Liability. DIB shall provide Excess Liability Insurance affording three million dollars
($3,000,000) in excess of General Liability and Employer's Liability limits afforded on primary
policies. The coverage will be subject to the same tenns, conditions, and exclusions found in the
primary policies.
26.2.5 Contractors Pollution Liability. If the DIB 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.
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26.2.5.1 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 insurance shall include Contractual Liability coverage. Such policy shall
be endorsed to specifically provide for Work perfonned under the Agreement.
26.2.5.3 The DIE or its Contractors of any tier shall furnish to the City-a policy or Certificate of
Contractors Pollution Liability Insurance in which the City, its elected and appointed
officers, employees, and agents, and the DIE are named as additional insureds. The policy or
Certificate must plainly designate the name of the Project, name of the Disposal- Site, and
the pennits secured for its disposal. This Certificate must be furnished to the City,
evidencing compliance with the outlined requirements, prior to the DIE or Contractor
beginning their Work on the Project. Any failure to furnish this policy or Certificate of
Insurance shall not relieve the DIE or Contractor from their obligations under this Section.
26.2.6 Hazardous Transporters Pollution Liability. If the DIE's or its contractors' Work includes
transportation of hazardous or toxic chemicals, materials, substances or any other pollutants the DIE
or its Contractor of any tier shall provide, at their expense, Transporters Pollution Liability Insurance
in an amount not less than $3,000,000 Combined Single Limit per occurrence/Aggregate for bodily
injury, property damage and remediation.
26.2.6.1 Claims Made policies will include a five (5) year Extended Claims Discovery Period
applicable to this Agreement, if reasonably available.
26.2.6.2 Such policy shall be endorsed to specifically provide coverage for Work perfonned under
this Agreement. The DIE or its contractors of any tier shall furnish 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 DIE, and any upper tiered
contractor are named additional insureds.
26.2.6.3 The policy or Certificate must plainly designate the name of the Project, name of the
Disposal Site, and the pennits secured for its disposal. This Certificate must be furnished to
the City, evidencing compliance with the outlined requirements, prior to the DIE or
Contractor beginning their Work on the Project. Any failure to furnish this policy or
Certificate of Insurance shall not relieve the DIE or Contractor from their obligations under
this Section.
26.2.7 Worker's Compensation. For all of DIE's employees who are subject to this Agreement and to the
extent required by the State of California, DIE shall keep in full force and effect, a Workers'
Compensation Insurance and Employers' Liability Insurance to protect DIE against all claims under
applicable state workers' compensation laws. The City, it's elected officials, and employees will not
be responsible for any claims in law or equity occasioned by the failure of the DIE 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 employee, and one million dollars ($1,000,000) for Bodily Injury by
Disease policy limit.
26.2.7.1 Prior to the execution of the Agreement by the City, the DIE shall file the following signed
certification:
"I am aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for worker's compensation or to undertake self-
insurance, in accordance with the provisions of that code, and I will comply with such
provisions before commencing the perfonnance of the work of the Contract."
26.2.8 Builder's Risk To the extent commercially available, the City shall provide a policy of "all risk"
Builders Risk Insurance. DIE shall add City and its respective elected officials, officers, employees,
agents, and representatives to the policy as loss payees, to the extent such insurance is commercially
available. Coverage will be provided for the Replacement Cost of Materials, Equipment and Fixtures
destined to become a pennanent part of the structure, and coverage will include Property in Transit and
Property in Offsite Storage. DIE shall also add its construction contractor, and the construction
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contractor's subcontractors to the policy as additional named insureds or loss payees, to the extent their
interest may appear. The limit for this policy shall be a minimum of$ 211,063.80 (GMP dollar
amount to reflect project soft and hard costs). It shall be D/B's responsibility to bear the expense of
any deductible. The Builders Risk coverage shall expire at the time such insured property is occupied
by City, or a Notice of Completion is filed, whichever occurs first. Contractor and its Subcontractors
will be solely responsible for any loss or damage to their personal property, including contractor's
tools and equipment owned, used, leased or rented by the Contractor or Subcontractor.
26.3 Ratinl?: 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] with a current AM BEST rating of no less than
A:X.
26.4 Endorsements Required. Each policy required under Article XXVI, section 26.2 of this Agreement shall
expressly provide, and an endorsement shall be submitted to the City, that:
26.4.1 Additional Insureds. Except as to Architects and/or Engineers professional liability insurance and
Workers Compensation, the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be named as additional insureds.
26.4.1.1 Commercial General Liability. The policy or policies must be endorsed to include as an
Additional Insured the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives. Liability Additional Insured Endorsement must be
provided on ISO form CG 2010 (11/85) or equivalent, specifically, coverage afforded City
must be Primary and must not exclude Completed Operations. The coverage for Projects for
which the Engineer's Estimate is one million dollars ($1,000,000) or more shall include
liability arising out of: (i) Ongoing operations performed D/B or on D/B's behalf, (ii) D/B's
products, (iii) D/B's work, including but not limited to completed operations performed by
D/B or on D/B's behalf, or (iv) premises owned, leased, controlled, or used by D/B; the
coverage for Projects for which the Engineer's Estimate is less than one million dollars
($1,000,000) shall include liability arising out of: (i) Ongoing operations performed by D/B
or on D/B's behalf, (ii) D/B's products, work, including but not limited to completed
operations performed by D/B or on D/B's behalf, or (iii) premises owned, leased, controlled,
or used by you; Except that in connection with, collateral to, or affecting any construction
contract to which the provisions of subdivision (b) of Section 2782 of the California Civil
Code apply, these endorsements shall not provide any duty of indemnity coverage for the
active negligence of the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives in any case where an agreement to indemnify the City
of Chula Vista and its respective elected officials, officers, employees, agents, and
representatives would be invalid under subdivision (b) of Section 2782 of the California
Civil Code. In any case where a claim or loss encompasses the negligence of the Insured and
the active negligence of the City of City of Chula Vista and its respective elected officials,
officers, employees, agents, and representatives that is not covered because of California
Insurance Code Section 11580.04, the 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 California 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 0112 90 or a later version of this
form or equivalent form providing coverage at least as broad, the policy or policies must be
endorsed to include as an Additional Insured the City of Chula Vista and its respective elected
officials, officers, employees, agents, and representatives, with respect to liability arising out
of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; Except
that in connection with, collateral to, or affecting any construction contract to which the
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provisions of subdivision (b) of Section 2782 of the California Civil Code apply, this
endorsement shall not provide any duty of indemnity coverage for the active negligence of the
City of Chula Vista and its respective elected officials, officers, employees, agents, and
representatives in any case where an agreement to indemnify the City of Chula Vista and its
respective elected officials, officers, employees, agents, and representatives would be invalid
under subdivision (b) of Section 2782 of the California Civil Code. In any case where a claim
or loss encompasses the negligence of the Insured and the active negligence of the City of
Chula Vista and its respective elected officials, officers, employees, agents, and
representatives that is not covered because of California Insurance Code Section 11580.04,
the insurer's obligation to the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be limited to obligations permitted by California
Insurance Code Section 11580.04.
26.4.2 Primary and Non-Contributory. The policies are primary and non-contributing to any insurance or
self-insurance that may be carried by the City of Chula Vista, its elected officials, officers, employees,
agents, and representatives with respect to operations, including the completed operations if
appropriate, of the Named Insured. Any insurance maintained by the City of Chula Vista and its
elected officials, officers, employees, agents, and representatives shall be in excess ofD/B's insurance
and shall not contribute to it.
26.4.3 Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City
for each required policy providing coverage for the term required by this Agreement.
26.4.4 Project General Aggregate Limit. The CGL policy or policies must be endorsed to provide a
Designated Construction Project General Aggregate Limit that will apply only to the Work performed
under this Agreement. Claims payments not arising from the Work shall not reduce the Designated
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 Notice. Except as provided for under California law, the policies cannot be canceled, non-
renewed or materially changed except after thirty (30) Calendar Days prior written notice by D/B to
the City by certified mail, as reflected in an endorsement which shall be submitted to the City, except
for non-payment of premium, in which case ten (10) Calendar 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. D/B may obtain additional insurance not required by this Agreement.
26.4.7 Prior to Starting Work. Before performing any work, D/B shall provide the City with all Certificates
of Insurance accompanied by all endorsements.
26.5 Subcontractors. All coverages for subcontractors or sub consultants shall be subject to all of the requirements
stated herein. Subcontractors and Sub consultants shall be protected against risk ofloss by maintaining
insurance in the categories and at the limits required herein. Subcontractors and Subconsultants shall name
City and D/B as additional insureds under its policies.
26.6 Obli!!ation to Provide Documents. The D/B shall provide copies of documents including but not limited to
certificates of insurance and endorsements, and shall furnish renewal documentation prior to expiration of
insurance. Each required document shall be signed by the insurer or a person authorized by the insurer to bind
coverage on its behalf. The City reserves the right to require complete, certified copies of all insurance policies
required herein.
26.6.1 Cooperation. The D/B and its Contractors shall cooperate fully with and provide any infonnation 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 infonnation to the
City may result in delays in progress payments to the D/B.
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26.7 Deductibles/SelfInsured Retentions. All deductibles and self-insurance retentions on any policy shall be the
responsibility of D/B. Deductibles and self-insurance retentions shall be disclosed to and approved by the City
at the time the evidence of insurance is provided. At the option of the City, either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the City, its officers,. officials, employees and
volunteers; or the D/B shall provide a [mancial guarantee satisfactory to the City guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
26.8 Policy Chan!!:es. D/B shall not modify any policy or endorsement thereto which increases the City's exposure
to loss for the duration of this Agreement.
26.9 Reservation of Ri!!:hts. The City reserves the right, from time to time, to review the Contractor's insurance
coverage, limits, deductible and self-insured retentions to determine if they are acceptable to the City. The City
will reimburse the Contractor for the cost of the additional premium for any coverage requested by the City in
excess of that required by this Agreement without overhead, profit, or any other markup.
26.10 Not a Limitation of Other Obli!!ations. Insurance provisions under this section shall not be construed to
limit the D/B's obligations under this Agreement, including Inderrmity.
26.11 Material Breach. Failure to maintain, renew, or provide evidence of renewal during the term of this
Agreement may be treated by the City as a material breach of contract.
ARTICLE XXVII. TERMINATION/SUSPENSION OF WORK
27.1 Suspension of Work for Archaeolo!!ical and/or Paleontolo!!ical Discoveries. If a discovery is made of an
archaeological or paleontological interest, D/B shall immediately cease operations in the area of the discovery
and shall not continue until ordered by City. When resumed, operations within the area of the discovery shall
be as directed by City.
27.1.1 Discoveries which may be encountered may include, but are not be limited to, dwelling sites, stone
implements or other artifacts, animal bones, human bones, fossils or any item with cultural
significance.
27 .1.2 D/B shall be entitled to an extension of time and compensation in accordance with the provisions of
this Agreement.
27.2 Termination of A!!:reement by City for Cause. If, through any cause, D/B shall fail to fulfill in a timely and
proper manner D/B's obligations under this Agreement, or ifD/B 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 D/B of such termination and specifying the effective date thereof at least five (5)
Calendar Days before the effective date of such termination.
27.3 Termination or Suspension for Convenience by City. City may terminate or suspend this Agreement at any
time and for any reason, by giving specific written notice to D/B of such termination or suspension and
specifying the effective date thereof, at least seven (7) Calendar Days before the effective date of such
suspension or termination. In the event of an emergency, advance notice shall not be required under this
provision.
27.4 Termination of A!!reement by D/B. D/B may terminate the Agreement upon ten (10) days written notice to
City, whenever either of the following occur:
27.4.1 Project Suspension. If the Project has been suspended under the provisions of Section 27.1 or 27.3, for
more than ninety (90) consecutive days through no fault or negligence ofD/B, and notice to resume
Work or to terminate the Agreement has not been received from City within this time period; or,
27.4.2 Failure to Pay Amounts Due and Not in Dispute. If City fails to pay D/B any monies due and not in
dispute in accordance with the terms of this Agreement within ninety (90) Calendar Days, plus the ten
(10) Calendar Days afforded the City to remedy the failure, after presentation to City by D/B of a
request therefore.
27.5 D/B Action Required. Upon receipt of the Notice of Termination, D/B shall take any and all action that may
be necessary, or that the City Manager may direct, for the protection and preservation of the property related to
this Agreement that is in the possession ofD/B and in which City has or may acquire an interest.
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27.6 Possession, Ownership, and Control of Documents. In the event that this Agreement is terminated in
accordance with Sections 27.2 through 27.4, all fInished or un[mished documents, data, studies, drawings,
maps, plans, specifications, reports and other materials prepared by D/B, or any of its agents, Design
Consultants or Subcontractors, shall, at the option of the City, become the sole and exclusive property of the
City.
27.7 City Rh!:ht to Complete Proiect. In the event that the Agreement is terminated pursuant to this Article
XXVII, City may take possession of the Project and may complete the Project by whatever method or means
City may select.
27.7.1 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 Agreement would have been due, the D/B shall
be liable for and pay such excess costs to the City.
27.8 Payment to D/B Due to Termination. Upon termination, D/B shall be entitled to receive just and equitable
compensation for satisfactory Work completed. In no event shall such amount exceed the total dollar amount
authorized by City, reduced by the amount of payments previously made and any deductions 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 ofthe D/B Fixed Fee (overhead and profIt) based on the percentage of Work completed on
the Project; however, ifD/B would have sustained a loss on the entire Agreement had it been
completed, City shall allow no profit under this section and shall reduce the amount payable to reflect
the indicated rate of loss.
27.8.4 D/B and Design Subcontractor services through the date of termination based on actual time spent as
documented on timecards. Expenses shall be paid based on invoice and receipts provided by D/B.
27.8.5 Any amounts for Work or Services agreed to by the City Manager and D/B, but without duplication of
any amounts agreed to above.
27.8.6 Reasonable demobilization costs, to the effective date of such termination.
27.8.7 If termination occurs during Phase I, II, or III, D/B shall only be entitled to the Fees for Phases I, II, or
III, associated therewith, or the respective portion thereof.
27.9 Lost Profits. Under no circumstances will D/B be entitled to any consideration for lost profit or lost
opportunity costs.
27.10Deductions. The amount due D/B shall be reduced by amounts including the following:
27.10.1 Any claim that City has against D/B under this Agreement.
27.10.2 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by D/B or
sold under the provisions of this clause and not recovered by or credited to City.
27.10.3 Damages caused by D/B's breach, including Excess Costs pursuant to Section 27.7.1.
27.10.4 Property Destroyed, Lost, Stolen or Damaged. Except to the extent that City expressly assumed the
risk ofloss, the City Manager shall exclude from the amounts payable to D/B, the fair value, as
determined by the City Manager, of property that is destroyed, lost, stolen, or damaged so as to
become undeliverable to City.
27.1lDisputes. IfD/B does not agree that the amount determined by the City Manager is fair and reasonable. D/B
shall within thirty (30) Calendar Days of receipt of payment, shall gives notice of such disagreement to City.
The dispute shall be resolved in the manner provide for in Section 22.6.
27.12 Waiver of Claims. In the event of termination under this Article XXVII, failure ofD/B to dispute amounts
paid in the manner and within the time frame provided in Section 26.11 shall act as a waiver of any and all
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claims for damages or compensation arising under this Agreement for any and all Work and Services
performed under this Agreement up to the effective date of Notice of Termination. D/B hereby expressly
acknowledges and agrees that such claims shall be waived as herein provided.
27.13Ri!!hts of City Preserved. In the event that the Agreement has been terminated, the termination shall not
affect any rights or remedies of City against D/B then existing or which may thereafter accrue. Any retention
or payment of moneys due D/B by City will not release D/B from liability. It is agreed that termination
hereafter will not in any way release, waiver, or abridge any rights the City has against D/B's performance
bond surety.
ARTICLE XXVllI. RECORDS AND AUDITS
28.1 Record System - Reim burseable Costs. D/B shall develop and maintain an accurate system for tracking all
Reimbursable Costs. Utilizing this system, D/B shall include with each month payment application an
itemization of all such Reimbursable Costs actually incurred by D/B, during the previous month. If requested
by the City, D/B shall provide all backup documentation supporting such Reimbursable Costs.
28.2 Record System - Hard Construction Costs. D/B shall develop and maintain an accurate system for tracking
all Hard Construction Costs it incurs on the Project. Utilizing this system, D/B shall include with each
monthly application for payment an itemization of all Hard Construction Costs actually incurred by D/B during
the previous month.
28.3 Retention of Records. D/B, contractors, and subcontractors shall maintain data and records related to this
Agreement for a period of not less than three (3) years following receipt of final payment under this Agreement
or three (3) years following final settlement associated with the termination of this Agreement pursuant to
Article XXVII, above.
28.2 Audit of Records. At any time during normal business hours, during the term of the contract plus and record
retention period and as often as the City deems necessary, D/B and any or all Contractors or subcontractors
shall make available to the City for examination at reasonable locations within the City/County of San Diego
all of the data and records with respect to all matters covered by this Agreement. D/B and all contractors or
subcontractors will permit the City to 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/County of San Diego, then D/B shall pay all the City's travel related costs to audit the records
associated with this Agreement at the location where the records are maintained. Such costs will not be
Reimbursable Costs.
28.2.1 Costs. D/B and D/B's agents shall allow City to audit and examine books, records, documents, and any
and all evidence and accounting procedures and practices that City determines are necessary to
discover and verify all costs of whatever nature, which are claimed to have been incurred, anticipated
to be incurred, or for which a claim for additional compensation or for Extra Work have been
submitted under this Agreement.
ARTICLE XXIX. NOTICES
29.1 Writin!!. Any demand upon or notice required or permitted to be given by one Party to the other Party shall be
in writing.
29.2 Effective Date. Except in relation to Change Orders as provided for in section 29.4 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 fee prepaid as
appropriate, or (iv) upon successful transmission of facsimile.
29.3 Recipients. Except in relation to Change Orders, all demands or notices required or permitted to be given
shall be sent to all of the following:
29.3.1 Steve Panico, EMCOR ServicelMesa Energy Systems Inc.
29.3.2 Gordon Day, Project Manager City ofChula Vista
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29.3.3
29.4 Recipients of Chan2:e Orders.
28.4.1 Steve Panico, EMCOR Service/Mesa Energy Systems Inc.
29.4.2
29.4.3
29.5 Chan!!e of Address(es). Notice of change of address shall be given in the manner set forth in this Article.
ARTICLE XXX. MISCELLANEOUS PROVISIONS
30.1 Headin!!s. All article headings are for convenience only and shall not affect the interpretation of this
Agreement.
30.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter gender includes the
masculine and the feminine genders and (ii) the singular number includes the plural number.
30.3 Reference to Para2:raphs. 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 Inte!!ration. This Agreement and the Exhibits and references incorporated into this Agreement fully express
all understandings ofthe 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 Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not
render any any other provision of this Agreement unenforceable, invalid, or illegal.
30.8 Dramn!! Ambi!!uities. The Parties agree that they are aware that they have the right to be advised by
counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether
or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility
of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the
extent to which each Party participated in the drafting of the Agreement.
30.9 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this
Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an
applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule,
regulation, order, or code shall control. Varying degrees of stringency among the main body of this
Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most
stringent requirement shall control. Each Party shall notify the other immediately upon the identification of
any apparent conflict or inconsistency concerning this Agreement.
30.1 0 Prompt Performance. Time is of the essence of each covenant and condition set forth in this Agreement.
30.11 Good Faith Performance. The parties shall cooperate with each other in good faith, and assist each other in
the performance of the provisions of this Agreement.
30.12 Further Assurances. City and DIE each agree to execute and deliver such additional documents as may be
required to effectuate the purposes of this Agreement.
30.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by this reference:
34
5-47
Exhibit A
Exhibit B
Emcor Service/Mesa Energy Systems, Inc. Proposal including Project Schedule
HV AC Split System for the Corporation Yard Transit Offices RFP
30.14 Compliance with ControlIin2 Law. The Consultant 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, if stated in the RFP,
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 Attornev Fees. The venue for any suit or proceeding concerning this Agreement,
the interpretation or application of any of its terms, or any related disputes shall be in the County of San
Diego, State of California. The prevailing Party in any such suit or proceeding shall be entitled to a
reasonable award of attorney fees in addition to any other award made in such suit or proceeding.
30.16 Municipal Powers. Nothing contained in this Agreement shall be construed as a limitation upon the powers
of the City as a chartered city of the State of California.
30.17 Administrative Claims ReQuirements and Procedures. No suit or arbitration shall be brought arising out
of this agreement, against the City unless a claim has first been presented in writing and filed with the City
and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista
Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and procedures used by the City in the implementation
of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
30.18 Third Partv Relationships. Nothing in this Agreement shall create a contractual relationship between City
and any third party; however, the Parties understand and agree that City, to the extent permitted by law, is an
intended third party beneficiary of all DIE's contracts, purchase orders and other contracts between DIE and
third party services. DIE shall incorporate this provision into its contracts, supply agreements and purchase
orders.
30.19 Non-Assi2nment. The DIE shall not assign the obligations under this Agreement, whether by express
assignment or by sale ofthe company, nor any monies due or to become due, without the City's prior written
approval. Any assignment in violation of this paragraph shall constitute a Default and is grounds for
immediate termination of this Agreement, at the sole discretion of the City. In no event shall any putative
assignment create a contractual relationship between the City and any putative assignee.
30.20 Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in
force and effect whether or 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 DIE, any consultants, contractors, subcontractors, and any other individuals
employed by the DIE 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 DIE concerning the details of performing
the Services under this Agreement, or to exercise any control over such performance, shall mean only that the
DIE shall follow the direction of the City concerning the end results of the performance.
30.22 Approval. Where the consent or approval of a party is required or necessary under this Agreement, the
consent or approval shall not be unreasonably withheld.
30.23 No Waiver. No failure 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 continue in full force and effect to
any existing or subsequent breach.
35
5-48
30.24 Si2:nifi!! Authoritv. 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 Party or Parties hereto harmless
if it is later determined that such authority does not exist.
IN WITNESS WHEREOF, this Agreement the City ofChula Vista and EMCOR Service/Mesa Energy Systems
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.
, 2010 and this date shall constitute the effective date of this
CITY OF CHULA VISTA, A Municipal Corporation
EMCOR SERVICE /MESA ENERGY SYSTEMS
By:
CHERYL COX, Mayor
By: ti!- 6vD ~
~ $""" ), 1"
CHRIS A. O'CONNOR, CFO
Approved as to form and legality:
By:
BART MEISFELD, City Attorney
Dated
,2010
36
5-49
EXHIBIT A
37
5-50
ChuJa Vista Transit Center
Proposal For:
HV AC Ener~v Reduction Retrofit
TURBOCOR RETROFIT
&
SPLIT SYSTEM INSTALL
RETURN AIR MODIFICATION
Presented to:
.
-
--
--
El\1COR
Service
Mesa Energy Systems
-
-
-
-;..--
----
":""
Prepared By:
Steve Panico
EM COR Service/Mesa Energy Systems, Inc.
6550 Federal Blvd.
Lemon Grove, CA 91945
Cell: 619-328-7653
Quote # 10-3074
Date: April 29, 2010
Proposal Valid for 30 Days
5-51
Introduction:
EMCOR Service/Mesa Energy Systems, Inc. is a full service mechanical contractor with an in
depth background of years of experience in building automation system retrofits throughout
California. Our ability to provide turnkey projects gives our customers the assurance of quality,
precision and professionalism. We are pleased to submit this proposal for the following scope
of work.
Scope of Work for Turbocor retrofit:
. Tag-out existing chiller electrical power
. Remove oil and refrigerant from both systems.
. Demo, disconnect, remove and properly dispose of (2) Trane compressors, and selected refrigerant
piping
. Furnish, rig and install two 70-ton R-134a Turbocor compressor systems
. Furnish and install new suction valves, discharge valves and check valves for each compressor
. Furnish and install load balance valve and electronic expansion valve for the chiller
. Engineer and modify refrigerant copper piping within the chiller as needed for the R-134a based
system
. Furnish and install new fused disconnects and line reactors for the new compressors
. Modify existing upstream breaker as required for the new system
. Furnish and install and wire a new Mag Lev Multiple compressor controller for compressor staging
management
. Maglev controller will be tied into existing condenser fans to allow for modulation
. Perform an eddy current test of chiller evaporator tubes
. Provide and install necessary power and control conduit and wiring connection to the new panels
. Eyacuate system and check for leaks
. Furnish and charge new system with R-134a LEED Friendly refrigerant
. Perform factory start-up and commissioning of new retrofitted chiller
. Insulate refrigeration piping as necessary
. Operator training, OIM manuals.
5-52
Scope of Work for Split System install, Return air modification:
Provide and install Ductless split system for a total of 6 areas. 2 Condensing units will serve 2 fan coils
each for a total of 4 fan coils and 2 separate Ductless split systems for computer rooms, 1 ea 2 ton
system, and 1 ea 3.5 ton system. Also relocate return air duct across roof approximately 50'.
. Provide Submittals and Operation and Maintenance manuals for associated work
. Supply and install (2) Condensing unit and associated (4) Fan coils
. Supply and install (2) Ductless split system for computer rooms, (2) CU , (2) FC
. Provide and install all associated electrical needed for turn key system
. Tap into Existing Duct under roof for new Exhaust Duct run
. Penetrate roof for new Exhaust done and run approximately 50' across roof
. Penetrate back thru roof and branch off to supply Return grills
. Seal all new Duct and leak check
. Provide all dampers and associated hangers, Duct legs, etc... for complete system
. Patch roof by certified "Cool Roof' Tremco installer
. Furnish Crane and man power to set all HVAC equipment
. Supply and install all associated refrigerant piping, hangers, and insulation for all split systems
. Supply and install all Condensate piping to approve drain location
. Supply and provide condensate pumps for all new Fan Coils
. leak check of all refrigerant lines prior to stat up, insure holding charge of 150psi, over 24hrs
. Triple evacuate systems per manufacture specifications
. Start up HVAC systems and insure all are working with in manufactures recommendations
Make any adjustments needed to insure proper operation of units
. Perform Air Balance for new ductless split systems and furnish report of findings
. Provide supervision and coordination through out job
Exclusions:
. Work to be done during normal working hours, M- F 7am - 4pm
. Painting of New Exhaust excluded
. Permits Excluded
. Assistance by building maintenance personnel during shut down of existing AHU in order to
modify existing return ductwork
. Temporary Chiller during retrofit
3
Client Initials
EMCOR Service / Mesa Energy Systems
5-53
Savings Analysis:
Chula Vista Transit Center
Project
Baseline kWh 592,1 00 Est. annual kWh savings
Turbocor Retrofit kWh 478,500 Average kWh Cost
113,600 $ yearly savings
Turbocor and Shut down
Central plant at night kWh 297,600
Add Split System kWh to
EEMs 9,520
Final kWh after projects 307,120 Est incentive turbocor
Est incentive Split
System
kWh savings 171,380
Baseline kW 165.75
Turbocor Retrofit kW 111.03
kW savings 54.72 Est kW incentive amount
Client Initials
eQuest simulation results
284,980
$0.15
$
42,747.00
Project cost
Incentive amount
Final Project Cost
Simple Payback period after
incentives
$17,040.00
$15,424.20
$32,464.20
$
5,472.00
4
EMCOR Service I Mesa Energy Systems
5-54
$249,000
$37,936.20
$211,063.80
4.9
Inclusions and Exclusions
Checked items below are included in this proposal, non-checked items are specifically excluded.
Engineering, Permits & Bonds
Mechanical Engineering ~ Structural Engineering ~
Electrical Engineering Plan Check Fees
Mechanical Permits Electrical Permits
Structural Permits Other Permits
Performance Bond Architectural Drawings
Rigging and Specialty Rentals
Rigging ~ Scissor Lift as Required B
Helicopter Other:
I Additional Services
Comfort Air Balance ~ Flush and Re-treat Closed Loops ~
Water Balance Certified Water Balance
Recover Refrigerant Per EPA Guideline X Dispose of old Equipment
Other Salvage Rights to EMCOR
Project to be Performed at below Listed Times
Normal Business Hours (M-F 7 am to 5 pm) ~ Overtime (other than Normal Business Hours)
Normal Hours and Overtime Other:
I Specialty Trades
Electrical m Abatement ~
Framing of Curbs & Openings Duct Cleaning
Roof repairs - "Cool Roof' Seismic Upgrades
Insulation of New Ducting (As Required) Insulation of Piping (As Required)
Coring X-Ray Prior to Coring
I Project Completion
Start Up and Commissioning ~ Factory Start Up ~
Operation & Maintenance Manuals As Built Drawings
I Additional Components
Expansion and Buffer Tanks B CHW / CW/ & HW Pumps With Trim @
Smoke Detectors in Supply Duct Smoke Detectors in Supply and Return Ducts
New Roof Ducting as Required Other: Tie-in of Control System
I Warranties
X
X
5
Client Initials
EMCOR Service I Mesa Energy Systems
5-55
General Project Clarifications
Concealed Conditions
If concealed or unknown conditions of an unusual nature which affect the performance of the
work are encountered below the roof line or above the ceiling or in an existing part of the
building other than the work, which conditions are not ordinarily found to exist or which differ
materially from those generally recognized as inherent in work of the character provided for in
this Agreement, notice by the observing party shall be given promptly to the other party, if
possible before conditions are disturbed and in no event later than fourteen days after first
observance of the conditions. The Contract Sum shall be equitably adjusted for such
concealed or unknown conditions by Change Order upon claim made within fourteen days after
claimant becomes aware of the conditions.
Regulatory Changes
EMCOR Service/Mesa Energy Systems, Inc. shall be compensated for changes in the Work
necessitated by the enactment or revision of codes, laws or regulations subsequent to the
execution of this Agreement.
Hazardous Materials
The City of Chula Vista hereby agrees to indemnify, defend and hold harmless Emcor
Service/Mesa Energy Systems, Inc. and its agents, employees, consultants and subcontractors
from and against any claim, damage, allegation, suit, cause of action, cost, loss, expense or
injury in connection with Hazardous Materials not introduced to the Project by the Indemnified
Parties, including, without limitation, all costs of remediation, experts, consultants or other costs
in connection with Hazardous Materials associated with the Project.
Unforeseen Conditions
The City of Chula Vista understands and agrees that Emcor Service/Mesa Energy Systems,
Inc. shall not be liable for added costs or time delays caused by unforeseen conditions at the
Project, including, without limitation, unanticipated rerouting of existing piping, fire sprinklers or
gas piping. In the event that the fire sprinklers, water, electrical conduit or gas piping are
required to be relocated, Emcor Service/Mesa Energy Systems, Inc. shall not be responsible for
such work. Emcor Service/Mesa Energy Systems, Inc. or a subcontractor under the control and
supervision of The City of Chula Vista shall perform such work.
6
Client Initials
EMCOR Service I Mesa Energy Systems
5-56
Terms and Conditions:
A. Unless stated othelWise in this agreement, services provided under this agreement will be performed during normal
working hours of 7 a.m. to 5 p.m., Monday through Friday.
B. The guarantees and services provided under the scope of this agreement are conditioned upon THE CITY OF CHULA
VISTA operating and maintaining systems/equipment. THE CITY OF CHULA VISTA will do so in according to industry-
accepted practices, or in consideration of our recommendations.
C. THE CITY OF CHULA VISTA will provide and permit reasonable access to all areas where work is to be performed.
EMCOR Service will be allowed to start and stop equipment as necessary to perform its services and be permitted use of
existing facilities arid building services.
D. Any repairs or services resulting from power failures, freezing, roof leaks through curbs or equipment, or air side corrosion
will be paid for by the THE CITY OF CHULA VISTA in accordance with EMCOR Service's currently established rates.
E. The agreement does not include responsibility for system design deficiencies, such as, but not limited to poor air
distribution, water flow imbalances, system equipment and component obsolescence, electrical failures, unserviceable
equipment, and operating the system(s), unless othelWise stated in this Agreement.
F. EMCOR Service will not be liable for delays or failure to obligate due to fire, flood, strike, lockout, freezing, unavailability
of material, riots, acts of god, or any cause beyond reasonable control.
G. EMCOR Service is not responsible for the removal or disposal of any hazardous materials or any cost associated with
these materials unless othelWise noted In this Agreement.
H. The agreement does not include repairing any damage resulting from improper/inadequate water treatment or filter
service not supplied by EMCOR Service.
I. This agreement does not include any services occasioned by improper operation, negligence, vandalism, or alterations,
modifications, abuse, or misuse, or repairs to equipment not performed by EMCOR Service. Unless othelWise agreed,
also excluded is the furnishing of materials and supplies for painting or refurbishing existing equipment.
J. EMCOR Service shall not be required to furnish any items of equipment, labor, or make special tests recommended or
required by insurance companies, Federal State Municipal or other authorities except as othelWise included in this
Agreement.
K. In the event either party must commence a legal action in order to enforce any rights under this contract, the successful
party shall be entitled to all court costs and reasonable attorney's fees as determined by the court for prosecuting and
defending the claim, as the case may be.
L. EMCOR Service shall not be liable for the operation of the equipment nor for injuries to persons or damage to property,
except those directly due to the negligent acts or omissions of its employees and in no event shall it be liable for
consequential or speculative damages. It shall not be liable for expense incurred in removing, replacing or refinishing
any part of the building structure necessary to the execution of this Agreement. It shall not be held liable for any loss by
reason of strikes or labor troubles affecting its employees who perform the service called for herein, delays in
transportation, delays caused by priority or preference rating, or orders or regulations established by any govemment,
authority, or by unusual delays in procuring supplies or for any other cause beyond its reasonable control.
M. Only EMCOR Service's personnel or agent are authorized to perform the work included in the scope of this agreement.
EMCOR Service may, at its option, cancel or waive its obligations under this Agreement should non-authorized
individuals perform such work.
N. This Agreement and all rights hereunder shall not be assignable unless approved by EMCOR Service. In the event of
additional freight, labor, or material costs resulting from THE CITY OF CHULA VISTA's request to avoid delays with
respect to equipment warranties, or accelerated delivery of parts and supplies, the Customer agrees to pay these
additional costs at EMCOR Service's currently established rates.
O. EMCOR Service's scope of work shall not include the identification, detection, abatement, encapsulation or removal of
asbestos or products or materials containing asbestos or similar hazardous substances. In the event EMCOR Service
encounters such material in performing its work, EMCOR Service will have the right to discontinue work and remove its
employees until the hazard is corrected or its determined no hazard exists. .
P. This Agreement contains the entire Contract and the parties hereby agree that this Agreement has been agreed to and
the entire Agreement is then accepted and approved by an authorized person for both parties, and no statement, remark,
agreement or, understanding, oral or written, not contained herein, will be recognized or enforced.
Q. This agreement does not include the disposal of hazardous waste, any charges incurred for their proper disposal will be
bom by the customer as an extra to the contract price.
R. The THE CITY OF CHULA VISTA agrees that in the event that there shall have been passed a federal and/or state law
which shall compel EMCOR Service to contribute to a federal and/or state health plan for its employees, then the terms
of this Agreement shall be subject to adjustment to the extent that the cost of such mandated contributions increase by
EMCOR Service's cost of performing this contract.
S. The THE CITY OF CHULA VISTA acknowledges and agrees that any purchase order issued by THE C/TY OF CHULA
VISTA, in accordance with this Agreement, is intended only to establish payment authority for THE CITY OF CHULA
VISTA's intemal accounting purposes. No purchase order shall be considered to be. a counteroffer, amendment,
modification, or other revision to the terms of this agreement. No term or condition included in the THE CITY OF CHULA
VISTA's purchase order will have any force or effect.
7
Client Initials
EMCOR Service / Mesa Energy Systems
5-57
PricinQ: (Includes labor, materials and applicable tax)
Turbocor retrofit cost ...... ....... ....... .................................................. ....$141 ,000.00
Split System Install.......................................................................... ..$1 08,000.00
Grand Total.. ......... ......... ...... ..... .......... ............................... ... ..... ..... .$249,000.00
Potential Rebates............................................................................. ..$ 37,936.20
Total Cost....................................................................................... .$211 ,063.80
Terms:
Thank you for the opportunity to submit this proposal. Should you have any questions or require additional
information, please feel free to contact our office at (619) 265-5880.
Sincerely,
EMCOR Service I Mesa Energy Systems
Steve Panico,
Account Manager
619-328-7653
Execution of Contract Below:
This agreement defines the understanding of services between EMCOR Service/ Mesa Energy Systems and The
City of Chula Vista. This agreement shall begin on Customers Acceptance Date, or upon receipt of a Letter of
Intent.
Customer Acceptance:
EMCOR Service Acceptance:
Signature
Signature
Printed Name
Printed Name
Title
Title
Date
Date
8
5-58
AlA DOCUMENT
G.C.:
JOB Corporate Transit Yard
Application No.:
Application Date:
Period To:
Project No:
Sub Contract No.:
C11
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CO
A B C 0 E F G H I J K
WORK COMPLETED MATERIALS TOTAl COMPLETED RETAlNAGE
ITEM PRESENTLY BALANCE TO FINISH
NO. DESCRIPTION OF WORK SCHEDULED VAlUE FROM PREVIOUS THIS PERIOD STORED (NOT IN 0 AND STORED TO DA IE PERCENT (GIG) (C-G) RETAlNAGE 10% This Period
APPLICATION ORE) (D+E+F) 10%
Design Phase 25,000.00
Construction Phase 10.00%
1 Disconnect Existing Chiller and prepare for retrofit 25,000.00 - - 25,000.00
2 Install Turbocor Maglev compressors and associated com 65,000.00 - 65,000.00
3 Start up Chiller and intregrate controls into existing system 5,000.00 - 5,00000
4 Modify existing return air duct to allow for optimal operation 35,000.00 35,000.00
5 Install Duclless split sytems 45,000.00 - - - 45,000.00
6 Test new unit and existing sytem for proper operations 4,500.00 - 4,500.00
7 Adjust existing control system for new system operations 3,500.00 - - 3,500.00 -
8 Start up & Training 2,600.00 2,600.00
9 Furnish Operations and Maintenance Manuals 1,500.00 - - 1,500.00
10 -
11 -
12 - -
13 - - -
Soft Costs 187,100.00
14
15
General Conditions 4,500.00 I I I I I
16
17
Fixed Fees 32,400.00 I I I I
18
19
Insurance, Bonds 2,490.00
Oriainal Contract 249,000.00 -
Utllitv Rebates (47,878.00)
Continaencies $9,942_00
Reimbursables
CHANGE ORDERS
26 Change Order # 01
27 Change Order # 02
Approved CO's - Subtotal
IPROJECT TOTAL I $211,063.80 I - I - I - I - I I -
AlA Form - Corp Transit Center R7-30-1 0 SOV-contracl 0713012010
(II Name Duration Start Finish 130 Mav 10 16 Jl
S Is 1M IT IwlT IF Is Is II
1 1HY Provide equipment submittals for City approval 2 days 9/1/108:00 AM 9/2/10 5:00 PM
2 11.1 Turbocor Equipment and accessories lead time 45 days 9/6/10 8:00 AM 11/5/105:00 PM
3 11.1 Ductless Split Systems lead time 21 days 9/6/108:00 AM 10/4/10 5:00 PM
4 1iI Ductwork Fabrication 7 days 9/6/108:00 AM 9/14/105:00 PM
5 1mI Modify return duct per scope 3 days 9/14/10 8:00 AM 9/16/10 5:00 PM
6 !mI Install DuctlessSplit systems 14 days 10/7/108:00 AM 10/26/10 5:00 PM
7 1iI Start up ductless split system and test 1 day? 10/8/108:00 AM 10/8/10 5:00 PM
8 1mI Shut down existing Trane Chiller 1 day? 11/8/10 9:00 AM 11/9/109:00 AM
9 !mI Reclaim refrigerant from Chiller, remove compressor and dispose 1 day? 11/8/10 9:00 AM 11/9/109:00 AM
10 im Install Turbocor compressors and all associated components 4 days? 11/9/10 9:00 AM 11/15/10 9:00 AM
11 Ii Install contois and commission 5 days 11/15/10 9:00 AM 11/22/10 9:00 AM
12 iii Start up chiller and test 1 day? 11/19/10 9:00 AM 11/22/10 9:00 AM
13 III Provide training City for service personnel 1 day? 11/22/10 9:00 AM 11/23/10 9:00 AM
14 Ii Provide as built drawings 10 days 11/15/10 9:00 AM 11/29/109:00 AM
15 11.1 Install data loggers post project 21 days 11/29/10 9:00 AM 12/28/109:00 AM
C11
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EXHIBIT B
38
5-65
~{~
~
.....-...... ~ .......... ~
'~-.-a:- _--_--
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~~~"'-
(llY OF
(HUlA VISfA
REQUEST FOR PROPOSAL (RFP)
TO PROVIDE
DESIGN BIDLD SERVICES FOR
THE DESIGN, RETROFIT AND INSTALLATION OF
AN HV AC SPLIT SYSTEM FOR THE CORPORATE YARD TRANSIT OFFICES
IN THE CITY OF CHULA VISTA, CA
RFP ISSUED:
June 11, 2009
SUBMITTALS ARE DUE BY:
July 16, 2009
City of Chula Vista
Engineering Department
276 Fourth Avenue Building 200
Chula Vista, CA 91910
5-66
TABLE OF CONTENTS
1. WTRODU CTION.................................. ............................. ...................................... ...........1
II SCOPE OF SERVICES ....... ................................................................................. ..............2
A. Project Control (All Phases) ............................................... .......... .......... .......................2
B. Design Phase Services...................................... .............................................................2
C. Construction Phase Services..........................................................................................4
D. Operations and Startup Phase Services.... ...................... ................. ...............................5
III DESIGN BUILDER SELECTION PROCESS................................................. ...6
IV REQUEST FOR PROPOSALS SCHEDULE.......................................... ...7
V PUBLIC DISCLOSURE..... ..................................................................... ....7
VI SUBMITTAL REQUIREMENTS......... ...... ........ ................ ..................... ... ...7
VII CONTRACT TERMS AND CONDITIONS.................................................. ....9
ATTACHMENT 1- SAMPLE DESIGN BUILD AGREEMENT....................................ll
5-67
The following Request for Proposal (RFP) pertains to the design, construction and
installation of an HV AC split system and relocated duct work at the Transit Offices, 1800
Maxwell Road in the City of Chula Vista. Firms with design build experience are being
solicited to present proposals for review. Based upon the submitted information, qualified
candidates may be interviewed and presentations may be considered for the project as
permitted by the City's Design-Build Ordinance.
I. INTRODUCTION
The City of Chula Vista is circulating this RFP to firms qualified to provide design build
services to the City with: design services, value engineering, programming, design services,
construction and construction management for the final design and installation of a Daikin
Split System BV AC unit and relocated return air plenum in the City of Chula Vista. The
City currently has a proposed budget of$ 70,000.00 for the design and construction phases of
the proj ect.
All DBT members shall be licensed and registered with the State of California, as required.
This RFP document describes the typical elements of a project, the required scope of
services, the selection process, and the minimum information that must be included in the
proposal submittal.
This RFP is intended to allow for the following scenarios:
· DB will combine work efforts with the City's current management team that has
previously prepared the planning and/or conceptual documents.
· DBT, created by the DB, prepares all planning and/or conceptual documents.
· DBT, created by the DB, uses previously prepared planning and/or conceptual
documents.
All scenarios will result in continuing with design development, construction document
preparation and construction of the project.
This RFQ does not commit the City to award a contract, to pay any costs incurred in the
preparation of submittals to this request, or to procure or contract for services or supplies.
The City reserves the right to accept or reject any or all submittals received as a result of this
request, to negotiate with any qualified source, or to cancel in part or entirely the RFP.
The City reserves the right to reject any or all proposals in the City's sole discretion at any
time prior to an award.
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II SCOPE OF SERVICES
The DBT shall design and install the split system and new duct work to comply with all the
applicable federal, state and local laws, including the American's with Disabilities Act-
Accessibility Guidelines (ADAAG) and Title 24 of the California Code of Regulations.
A. Project Control (All Phases)
The DBT shall develop and implement the following Project Management Plan and
Procedures:
1. Monthly project status reports (including schedule and budget updates)
2. Coordination/interface with the City and its other consultants/contractors
3. Progress meetings
4. Interface and communicate with other agencies, as directed by the City.
5. Vendors and subcontractors management
6. Document control
7. Schedule and budget control
8. Quality assurance and quality control
B. Design Phase Services
Utilizing the City's required standard specifications, facility program requirements, Federal,
State and local laws, and City performance and design criteria, approved planning documents
(if available), and reports that will be identified in the Design/Build contract, for a typical
project, the DBT will:
1. Prepare, submit and receive City approval for any site-specific
planning/environmental documents, if required.
2. Prepare design development and construction drawings and specifications
suitable for obtaining City approval and issuance of permits to allow for
construction.
3. Complete the design for all elements of the projects, including but not limited
to: landscape architectural, architectural design, civil engineering, structural
engineering, mechanical design, electrical design and any specialty consulting
area.
4. Incorporate the requirements of permitting agencies as may become apparent
in the course of design. The DBT shall apply for and secure all permits and
provide all necessary reports, studies and support required to obtain all
required permits. In addition, the DBT shall research Air Pollution Control
District and noise abatement requirements, along with any hazardous
materials management requirements ofNFP A, Cal-OSHA and the City Fire
Department. The DBT shall develop all appropriate environmental plans,
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including but not limited to, an air pollution control plan, a noise abatement
plan and a hazardous materials management plan. The DBT shall submit and
obtain approval of an application for Storm Water Pollution Prevention Plan
to the appropriate authority. If required, the DBT shall incorporate
appropriate facilities in the design.
5. Conduct site surveys and geotechnical investigations to the extent necessary
for final design. Survey and geotechnical information to be provided by the
City may be preliminary in nature and may not have sufficient accuracy or
scope to support final design.
6. Prepare cost estimates throughout all phase of project development.
7. Perform a value-engineering reviews to reduce cost/and or add value,
utilizing all team members and City resources. Include recommendations to
maximize energy efficient and build a "green" or low-pollution project.
Prepare a Value Engineering Report of all considerations, recommendations
and decisions. The goal is to maximize the quality of construction at a cost
equal to or below the Project Budget.
8. Perform Quality Control (QC) Review of the Drawings and Specifications
throughout all phases in order to correct errors and omissions and reduce the
quantity of Change Orders during the course of construction. Include a
detailed review of drawings and designs relative to Code Compliance Laws.
Organize and publish detailed QC Reports based on all [mdings.
9. Establish a Critical Path Method (CPM) Construction Schedule. Monitor and
update to keep the project on schedule.
10. Establish a bidding strategy. Identify, contract, and procure long lead items.
Create early bid packages where applicable.
11. Provide construction cost control estimates during the design to support value
engineering and constructability reviews.
12. Identify all permit requirements and prepare applications and support
documents necessary for obtaining all permits. Permit fees are not a part of
the cost of construction of the project.
13. The DBT shall be required to provide a cost estimate that will be used to
establish a Guaranteed Maximum Price (GMP). Any savings at the end of
the project will be deducted from the GMP and returned to the owner.
14. During the bidding ofthe Project, the DBT shall:
a. Create appropriate subdivisions of work into Bid Packages that reflect
the major items of work. A detailed scope of work will be included
with all bid packages.
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b. Secure a minimum of three complete and competitive bids for each
package.
c. Receive and resolve all RFI's and bid questions.
d. Schedule meetings with the City to open and review bids for each
subdivision of work. Review bids in detail. Clarify Scopes ofW ork,
exclusions, etc. Ensure bids match DBT Scope of Work.
e. Provide cost spreadsheets which compares actual bids to cost
estimates.
15. Prepare draft Operations Manual Index to serve as the basis for preparing the
final operations Manual during the construction phase.
C. Construction Phase Services
The DBT shall construct the facility in accordance with the approved construction drawings,
specifications and associated permits. The DBT shall also:
1. Conduct weekly team meetings with the City and appropriate design team
members during the course of construction to review the status of the project.
2. Ensure the workmanship and materials provided are in accordance with the
Project Specifications and the Architects meet or exceed quality construction
industry standards for this type of work.
3. Provide list of required shop drawing submittals. Review shop-drawing
submittals for technical and code compliance. Provide copy to the City for
review and comment.
4. Provide resident engineering, contract administration, and inspection staff,
including specialists necessary for the functional, safe, on budget and on-
schedule completion ofthe Project, starting with the issuance of a Notice to
Proceed from the City and extending through issuance of Notice of
Completion and Acceptance. City staff will also perform inspection to verify
compliance with the plans and specifications, permits and contract
documents.
5. Ensure construction compliance with applicable local, state, and federal
codes, building and environmental permit requirements, and construction
mitigation documents and enforcement of the Contract Documents.
6. Purchase and install all necessary equipment and witness all factory and field
component, equipment and system testing as required by the project Contract
Documents.
7. Submit the proposed QNQC Plan to the City for review. The Plan shall not
be implemented without written approval of the City.
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8. Provide surveying, and other contracted services as required completing
projects construction. Coordinate City contracted testing and inspection
services during the course of construction.
9. Develop, implement and manage a construction phase Quality
Assurance/Quality Control (QA/QC). The Plan shall include but not be
limited to; 1) a statement and definition of QA/QC goals; 2) an identification
of QA/QC criteria and elements; 3) development of the project QA/QC
implementation plan; 4) development of the QA/QC materials, components,
equipment and system testing plans; and, 5) enforcement of the plans and
specifications.
10. Be responsible for preparing the Critical Path Method (CPM) schedule
utilized during the project construction and startup activities. Use Microsoft
Project scheduling software consistent with the City reporting system.
11. Develop a project-specific Plan for defining, tracking and reporting cash flow
activity requirements and submit such plan to the City for review and
approval prior to implementation.
12. Develop a project-specific Change Order Administration Plan for review
and approval by the City. Upon written approval of the Plan, the DBT shall
initiate implementation. The Plan shall defme the required Change Order
procedures, including requirements for requesting, developing, approving,
and filing.
13. Implement and maintain an internal records management and document
control system as required to support project operations. The DBT shall
provide records management and document control information in a manner
consistent with the citywide Prolog Management reporting/filing system.
14. The DBT shall develop an on-site Project Safety Plan for review and
approval by the City. The DBT shall administer and enforce the City
approved on-site Project Safety Plan for the Project. The DBT shall monitor
and enforce construction responsibility for safety and health issues relating to
all workers at the Project Site. This shall include workers in direct
employment to the Contractor and workers involved in a subcontracting,
equipment supply, or any other project-related oral or written arrangement
with the DBT.
15. Report accidents, claims, and other on-going safety related issues to the City
in a manner consistent with Citywide reporting systems.
D. Operations and Startup Phase Services
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1. The DB T shall prepare, submit for City review and written approval a Proj ect
Startup and Testing Plan for the Project. The DBT shall fully implement the
plan.
2. The DBT shall conduct Operator Training Sessions for personnel.
3. The DBT shall supervise, manage, and coordinate all project startup and
testing activities for all systems.
4. Provide operation and maintenance manuals for equipment purchase and
installed by DBT.
5. The DBT shall report progress of project startup and testing to the City in a
manner consistent with the City's reporting system.
6. The DBT shall coordinate and expedite record drawings and specifications.
7. The DBT shall prepare final accounting and close out reports.
8. The DBT shall prepare occupancy plan reports.
9. Post Construction: DBT shall coordinate an II-month walk through of the
Project to review guarantee/warranty items. DBT shall coordinate all
corrective work with the responsible parties and the City. The DBT shall
report to the City all guarantee/warranty disputes. The DBT shall proceed to
resolve such disputes after having submitted to the City for review and
approval the DBT's approach for obtaining resolution of the dispute.
III DESIGN BUILDER SELECTION PROCESS
Candidates will compete first on the basis of experience, design talent, past performance,
resources, construction and management skills. Selected DB may be requested to coordinate
and negotiate with a City appointed design team that has been involved in the
planning/conceptual design of the project. Contracts will be awarded in accordance with
the Chula Vista Municipal code and the Design/Build ordinance as outlined in Section .257
of the Chula Vista Municipal Code.
IV REQUEST FOR PROPOSALS SCHEDULE
The following schedule applies to the solicitation, receipt and evaluation of the SOQ and the
selection of the DB. This RFP schedule is subject to modification in the City's sole
discretion:
Advertise and Issue RFP
SOQ Submittals Due
City may Interview Qualified Candidates
City Council Certifies DB
June 11, 2009
July 16, 2009
July 30, 2009
August 2009
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V PUBLIC DISCLOSURE
Under the California Public Records Act Under the California Public Records Act
(California Government Code Section 6250 et seq.) records in the custody of a public entity
generally have to be disclosed unless the information being sought falls into one or more of
the exemptions to disclosure set out in Government Code Sections 6254 through 6255. The
cover letter of the submittal should contain a paragraph that states whether or not DBT
believes that its submittal does or does not contain information that falls into one of the
exemptions of Government Code Sections 6254 through 6255 and whether or not DBT
considers such information to be confidential.
In the absence of a declaration, City may be obligated to disclose proposal to any party that
requests it. Regardless of assertions of confidentiality, proposal contents may still be
disclosed if City, or a court with j urisdiction, determines that such proposal is a public record
requiring disclosure.
VI SUBMITTAL REQUIREMENTS
The submittal deadline is July 16,2009 no later than 4:00 P.M. (PST)_at the City ofChula
Vista, Public Works and Engineering Department, 276 Fourth Avenue Building 200
Chula Vista, CA 91910
1. Three (3) single-spaced copies, no more than 20 pages in length excluding
exhibits and appendices, are required for submittal. Submittals should be as
brief as possible, while adequately describing how the DBT will approach the
design build work program. Proposal creativity is encouraged, but
extravagance in proposal style and format is discourage. Statement of
Qualifications (SOQ) shall include:
A letter of interest
Summary of Qualifications
Organizational Chart for project Team
Design Build fee structure
Preliminary Estimates
Product Submittal
Client References
Schedule of Rates
2. The submittal should focus on previous experience developing public
projects as well as knowledge of issues germane to large scale development
projects, a demonstrated ability to implement creative solutions to complex
planning issues and a demonstrated ability to complete complex tasks within
the parameters of a fast-paced performance schedule and within the terms of
the contract.
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3. The submittal shall also provide the name, title, address, and telephone
number of individual( s) with authority to negotiate for the candidate and also
who may be contacted during the period of submittal evaluation.
4. Statement of the DBT's ability, if selected, to enter into a City contract with
the City of Chula Vista, and ability to avoid conflicts of interest on this or any
other public or private projects.
5. Other Information
a. Description of insurance coverage for prime respondent and co-
venture partner(s) (types of coverage and policy limits, deductible,
exclusions, and outstanding claims).
b. Description of in-house resources for prime respondent and co-
venture partner(s) (i.e., computer capabilities, software applications,
model protocol, and modeling programs, etc.)
c. Respondents should provide, on a strictly confident basis, the
following information:
1) Financial statement for last three years
2) List ofprojects completed in the last year
3) List ofprojects currently under development, or construction
with status, development schedule and financial commitment
4) List of projects currently involved in litigation or unresolved
claims for the contract
7. Incomplete submittals, incorrect information, or late submittals may be cause
for immediate disqualifications.
VII CONTRACT TERMS AND CONDITIONS
City retains the right to reject any or all submittals. All respondents should note that the
execution of any contract pursuant to this RFP is dependent upon the approval of the Chula
Vista City Council in its sole discretion.
Selection is also dependent upon the negotiation of a mutually acceptable contract with the
successful respondent. The contract shall be prepared on a form acceptable to the City. The
form of compensation shall be negotiated. The City reserves the right to proposed a variety
of compensation structures, including: 1) time and materials not to exceed, 2) guaranteed
lump sum, and 3) percentage of project costs.
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City reserves the right on a project specific basis to request insurance including but not
limited to increased limits of Liability coverage, CA admitted carriers A.M. Best rated no
less than A V, Additional Insured Endorsement which does not exclude Completed
Operations, Excess Liability, Pollution Liability, E&O / Professional Liability Extended
Reporting Period excess of 2 years, Completed Operations Coverage of up to ten years,
Contractor Controlled or "Wrap Up" Insurance Program, Bonds.
Each submittal shall be valid for not less than one hundred and twenty (120) days from the
date of receipt. The firm(s) selected to perform the work described in this RFP will be
required to provide minimum evidence of insurance as follows:
1. Commercial General Liability insurance, ISO CG 0001 Occurrence form,
with limits of not less than $1,000,000 per occurrence per project. Policy to
include endorsement naming City of Chula Vista, its officers, officials,
employees and volunteers as Additional Insured against all liability of the
DB, its subcontractors, and its authorized representatives, arising out of, or in
connection with, the performance of work under the contract with the City.
Policy is to be endorsed to state it is Primary to any other insurance available
to the City of Chula Vista and that insurer will provide THIRTY (30) days
written notice to the City Clerk of the City of Chula Vista of cancellation or
material change.
2. Commercial Automobile Liability Insurance, ISO CA 0001 form, Any Auto
code, with a combined single limit of not less than $l,OOO,OOO,_covering
bodily injury and property damage for owned, non-owned and hired
automobiles, and name the City, its officers, officials, employees and
volunteers as additional insured's.
3. Workers' Compensation and Employer's Liability insurance, for all
employees who are normally engaged in Work at the Project Site, with
Statutory Limits for Workers' Compensation and not less than Employer's
Liability limit for Bodily injury by Accident $1,000,000, each accident Bodily
Injury by Disease $1,000,000, Bodily Injury by Disease $1,000,000. A
Waiver of Subrogation shall be endorsed to the policy naming the City of
Chula Vista.
4. Professional Liability insurance shall be required of said firm for professional
liability or errors and omissions insurance with a per claim limit of not less
than $2,000,000 for services performed by the Design contractors and any
subcontractors performing design services. The policy shall contain an
extended reporting period of not less than 2 years.
5. Builder's Risk Property Insurance may be provided by the DB. The DB will
add the City, its officials, officers, employees and volunteers as Loss Payee.
The insurance shall waive any right of recovery under subrogation for those
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insured under this policy. The limit is to reflect full replacement cost of hard
cost construction values. Perils are to be all risk excluding Earthquake and
Flood. Perils are to include any transportation risk but is to exclude any
equipment, machinery, tools, or property of similar nature, owned, rented or
used by DB or contractors.
6. Other Provisions. Prior to beginning Work under the Agreement, each and
every contractor of any tier shall furnish Certificates of Insurance satisfactory
to the City. All such certificates will contain at least the following
provisIOns:
a. Thirty (30) days written notice to the City prior to any cancellation,
non-renewal or materials reduction in coverage.
b. The words "will endeavor" and "but failure to mail such notice shall
impose no such obligation or liability of any kind upon the company,
its agents or representatives" will be deleted from the certificate.
c. Throughout the life of the Agreement, each and every contractor of
any tier shall pay for and maintain in full force and effect, with an
insurer authorized by the California Insurance Commissioner to do
business in the State of California, the policies evidenced herein.
The City reserves the right to modify the insurance requirements or to substitute project
insurance during contract negotiations.
Bonds may be required for individual projects as required by City Policy.
End of Request for Proposals
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PART 2
SPECIAL PROVISIONS - TECHNICAL
2-1 WORK TO BE DONE
The general scope of the project is the installation of a new Daikin VRV 8 ton Heat Recovery Unit
or equal unit, associated process piping, branch selector, thermostats and 5 drop ceiling cassette
units at the Corporate Yard Bus Transit Offices in the City of Chula Vista, California. The work will
also include the relocation of the return air ductwork for the building air handler and the installation
of 2 split system cassette units for a remote computer server room. New relocated return air
ductwork will reconnect at the existing air handler unit, transition through the existing roof, run
approx. 50' across the roof with insulated, exposed metal duct and re-penetrate the roof in a new
location. Below the roof relocated re-turn air ductwork and drop ceiling grills will be installed in new
optimum locations. The Tremco " Cool Roof" system must be repaired by a Tremco certified
contractor.
The work to be done includes all labor, material, equipment, transportation, interaction with staff and
scheduling necessary for the project as described in these documents.
The completed projects will be turn-key and work in general includes, but is not limited to the
following: an all new installation as outlined in, but not limited to the specifications listed below,
the existing unit removal which will include protection of related components, disposal of removed
equipment, installation of the new equipment, new process piping, testing and training of staff, and
construction of all appurtenances and other work as may be necessary to render the above
improvements operational when the project is considered complete.
The items are to be constructed or finished and installed in a complete and workmanlike manner, in
accordance with the plans, "Greenbook 2000" Standards and specifications. Bidders must have a
valid certification from the California State Contractors License Board in B, wi C-20 subcontractor
with proof of 3 yrs. experience in split system installations. No other single license classification
will be accepted.
Such other items or details not mentioned above, that are required by the Manufacturers
Recommendations, Specifications, or these Special Provisions, shall be performed, placed,
constructed or installed as required for a completely functionine system.
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Exhibit A
Floor Plan
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ATTACHMENT 1
SAMPLE DESIGN BUILD AGREEMENT
s-at
DESIGN BUILD AGREEMENT FOR
[INSERT PROJECT NAME] PROJECT
This Agreement shall be for the design and construction of [INSERT NAME OF PROJECT] and the payment
of permitted costs therefore ("Agreement"). This Agreement is made and entered into this . by and
between THE CITY OF CHULA VISTA, a municipal corporation ("City"), and [INSERT NAIvrE OF DiB], a
[ENTER TYPE OF CORPORATE ENTITY AND PLACE OF INCORPORATION] ("Design Builder or D/B").
City and DIE, when referenced herein, may be referred to individually as "Party" and collectively as "Parties." This
Agreement is entered into with reference to the following facts:
RECITALS
1. [INSERT].
2. [INSERT].
3. [INSERT].
4. [LNSERT].
5. [INSERT].As part of that effort, on [INSERT DATE], the Department of Public Works, Engineering Division,
issued a Request for Proposal (RFP), pursuant to 9 2.57 of the City's Municipal Code, to design and construct
replacement structures ("Project") to qualified Design-Build finns off the Priority List.
6. [INSERT].
7. Following interviews of all [INSERT#] respondents, D/B was selected as the respondent who best met the
design, monetary, and time criteria of the project with whom City could negotiate an agreement.
8. As part ofD/B's proposal, D/B submitted a "Not to exceed Gross Maximum Price" of the Project in the
amount of [INSERT WRrrTEN DOLLAR AJ\lIOUNT] ($[INSERT NUMERlC AMOUNT]) ("Estimated
Cost"/"EC").
9. Following City's approval of 90% Construction Documents ("CD"), D/B shall submit a guaranteed maximum
price ("GMP"), not to exceed the Gross Maximum Price, for which the Project shall be designed and
constructed.
10. D/B 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. DEFINITIONS
ADA: The Americans with Disabilities Act of 1990 and any amendments thereto.
Acceptance: Final approval by the City Inspection Team following the Final Inspection that Project Improvements
are complete and work required on the Punch List has been fInished.
As-Builts: Project Record Documents that are the Contract plans modifIed from the original concept of the design
to reflect the actual product built.
CEQA: California Environmental Quality Act.
Calendar Day(s): All days ofthe 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 ofChula 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 (including documentation accompanying Bid and any post-bid documentation submitted prior to
Notice of A ward), the Bonds, the general conditions, permits from other agencies, the Special Provisions, the Plans,
Standard Plans, Standard Specifications, Reference SpecifIcations, and all modifIcations issued after the execution
of this Agreement.
Contract Time: The number of Calendar Days permitted under this Agreement for DIE to achieve Substantial
Completion.
Defective Work: All work, material, or equipment that is unsatisfactory, faulty, incomplete, or does not conform to
the Contract documents is defective.
Design Build Team (D/BT): Those individuals designated as being a part of the Design Build Team.
Estimated Cost: The total cost of the Project as estimated in preliminary cost estimates as shown in Exhibit
[INSERT].
Extra Work: Any City additions, modifIcations, or deletions to work or DIE obligations under this Agreement not
within the original Scope of Work contemplated by this Agreement.
Final Completion: The point at which the last of the following has occurred: (1) recordation of a Notice of
Completion for the Project; (2) acceptance of the Project by the City; (3) submission of all documents required to be
supplied by DIE 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 DIE.
Greenbook: The,most recent edition of the Standard Specifications for Public Works Construction (including any
City ofChula Vista standard special provisions).
Guaranteed Maximum Price ("GMP"): The maximum compensation to which DIE 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 DIE markup, handling fees, overhead, or other charges,
except as otherwise set forth in this Agreement.
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Hazardous Materials: Hazardous waste or hazardous substance as defined in any federal, state, or local statute,
ordinance, rule, or regulation applicable to the Property, including, without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States Code
sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 United States Code sections 6901-
6992k), the Carpenter Presley-Tanner Hazardous Substance Account Act (Health and Safety Code sections 25300-
25395.15), and the Hazardous Waste Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous
Materials" shall also include asbestos or asbestos containing materials, radon gas, and petroleum or petroleum
fractions, whether or not defmed as hazardous waste or hazardous substance in any such statute, ordinance, rule, or
regulation.
Holiday: The City-observed holidays.
Law: All Federal, State, or local laws, regulations, ordinances, and/or policies.
Milestones: Dates shown on the Project Schedule by which DIE shall complete major tasks either during design or
construction of the Project.
NEP A: National Environmental Policy Act.
Notice to Proceed: City's written notice authorizing DIE to commence Work and/or Services on the Project.
Notice of Termination: A written notice from City to DIE terminating the Agreement in accordance with Article
XXVII.
Project Site: The property located at [lNSERT] and further described in Exhibit "[INSERT]", attached.
Reimbursable Costs: [PLEASE INSERT]
Services: Professional services, including design and construction management of the Project that are required to
design and construct the Project in accordance with the Contract Documents. Services does not include Work.
Substantial Completion: That stage in the progress of the construction when 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
fmal testing, balancing and adjustments and normal Final Completion punch list work.
Title 24: California Building Standards Code, California Code of Regulations, Title 24.
Work: All labor, materials, supplies, and equipment that are necessary to construct the Project in accordance with
the Contract Documents. Work does not include Services.
Working Day(s): Monday through Friday, excluding City holidays.
ARTICLE II. SCOPE OF THE AGREEMENT
2.1 General. Except as expressly provided in this Agreement, D/B 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 "[INSERT]", delivering a complete and
functional Project within the Contract Time for an amount not to exceed the GMP.
ARTICLE III. TERM
3.1 Term of Ae:reement. This Agreement shall be effective on the date it is executed by the last Party to sign the
Agreement following City Council approval by Resolution. The term of this Agreement will extend from the
date of execution until satisfaction of all terms and conditions herein, unless this Agreement is earlier
terminated.
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ARTICLE IV. GENERAL PROJECT PERFORMANCE OBLIGATIONS
4.1 Standard of Care. Throughout the performance this Agreement, performed under this Agreement, DIE agrees
that all Services and Work provided as part of this Agreement shall be performed in accordance with the
standards customarily adhered to by experienced and competent professional architectural, engineering,
landscape architecture, and construction fIrms using the degree of care and skill ordinarily exercised by
reputable professionals practicing in the same fIeld of service in the State of California.
4.2 Compliance with all Laws. In the performance of this Agreement, DIE shall comply with all laws, including
but not limited to:
4.2.1 All City, County, State, and Federal laws, codes and regulations, ordinances, and policies, including,
but not limited to, the following:
4.2.1.1 Environmental Regulations (i.e. CEQAI NEP A).
4.2.1.2 The Americans with Disabilities Act ("ADA") and Title 24 of the California Building Code. It
is the sole responsibility of DIE to comply with all ADA and Title 24 regulations.
4.2.1.3 The California Fair Employment and Housing Act and all other State, Federal and local laws
including, but not limited to, those prohibiting discrimination on account of race, color,
national origin, religion, age, sex or handicap.
4.2.1.4 The Clean Air Act of 1970, the Clean Water Act (33 USC 1368)-Executive Order 11738, and
the Storm water Management and Discharge Control-Ordinance No. 0-17988.
4.2.1.5 DIE shall comply with the Essential Services Building Seismic Safety Act, SB 239 & 132.
4.2.1.6 DIE 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 DIE shall obtain and comply with all permits necessary top complete the Project, including,
but not limited to Development Services Department permits and hazardous material permits.
4. 2.1.8 Zoning, environmental, building, fIre and safety codes and coverage, density and density ratios
and lien laws.
4.2.2 Implied Knowledge of Laws. DIE 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 DIE to the extent allowed by law.
4.3 Desi!?:n and Construction Standards. In the performance of the Services and Work covered by this
Agreement, DIE 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 2000 Edition of the Standard 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 2000 Edition of the Chula Vista Standard Special Provisions.
4.3.2.2 The 2000 Edition of the Regional Standards.
4.3.2.3 The 2002 Edition of the Chula Vista Construction Standards.
4.3.2.4 The City's facility program, performance and design criteria, concept drawings, and reports.
4.3.3 Energy Conservation Standards.
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4.3.4 Materials Standards. D/B shall use industrial grade, not residential grade, equipment and accessories
for all facets of design and construction.
4.4 Obtain Citv Approval. For any and all actions under this Agreement that require City approval, including,
but not limited to, changes or additions to Agreement, D/B shall obtain approval in writing from the designated
City Representative, or when required by Law, from the City Council. D/B acknowledges that approval from
any individual other than the designated City Representative or City Council, where required, shall not be
valid.
4.4.1 Failure to Obtain Approval. Any costs or delays resulting from or associated with additions or
modifications implemented without the written authorization of the City Representative shall be borne
exclusively by D/B and not be grounds for an increase in GJ'vIP or Contract Time.
4.4.1.1 Emergency. In the event of an emergency, D/B shall take all reasonable actions necessary to
protect public health, safety or property. Such action shall not require advance City approval;
however, DIE shall notify the City immediately of the emergency and as soon as reasonably
possible provide a written statement to the City explaining the emergency and the reasonable
actions taken. Provided the emergency was not caused by or its creation contributed to by the
D/B, its employees, agents, or subcontractors, D/B may be entitled to reasonable compensation
for such actions.
4.4.2 No Release From Obligations. City approval shall be a general approval only, and such approval shall
in no way release or relieve D/B of responsibility for complying with all applicable laws, codes, and
good consulting, design, or construction practices.
4.5 Decision MakiD!!. D/B shall make decisions with reasonable promptness to avoid delay in the orderly
progress ofD/B's obligations under this Agreement and pursuant to the Project Schedule, attached as Exhibit
"[INSERT]" .
4.6 Perform Services and Work in Phases. The Services and Work under this Agreement shall be performed
three (3) "Phases" in the manner and order described herein.
ARTICLE V. PHASE I - DESIGN DEVELOPMENT
5.1 Desi!!n Team. City has awarded this Agreement based on the specific qualifications ofD/B to perform the
design services required under this Agreement. All such services shall be provided by D/B unless the City has
approved of the use of Sub consultants in the manner identified in Article VIII.
5.2 Services. In Phase I, D/B shall perform Services including, but not limited to, the following:
5.2.1 Project Development. Develop and refine Project requirements.
5.2.2 DDD. Prepare complete DDDs, such that the DDDs include, without limitation, the following:
5.2.2.1 Site Plans. Site plan with pertinent notes and dimensions indicating property line; existing
public streets, sidewalks, curb cuts, other public improvements; required setbacks; service,
trash, fire lane and truck access, adjacent buildings, building outline; basketball courts, multi-
use sports field, softball field., informal skate area, play areas, shelters, landscape and site
elements.
5.2.2.2 Floor Plans. Floor plans including graphically demonstrating interior and exterior walls and
fenestration with notes, dimensions and gridlines; room names, structural bay spacing with
grids, critical dimensions and area calculations.
5.2.2.3 Roof Plans. Roofplans including detailed notes, dimensions, mechanical equipment locations,
define material for mechanical screens, 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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5.2.2.5 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, dimensions and grid lines.
5.2.2.6 Wall Sections. Wall sections including all wall sections, dimensions, horizontal element
offsets, and guide to exterior face of wall; dimensions, vertical floor to floor, floor to window
head and sill and floor to ceiling; structural elements and assemblies; interior and exterior wall
fInishes; and wall and roof assembly;
5.2.2.7 Outline specifIcations, written description of [INSERT] and components including site work.
5.2.2.8 Traffic circulation and landscaping should also be indicated at this stage if applicable.
5.2.3 Code Compliance. Verify all code compliance, including building construction type, occupancy
sprinkler requirements, existing, zoning and other agency confonnance and ADA.
5.2.4 Submittals. Prior to proceeding with Phase II, DIB 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, DIB shall
address all City comments or issues and make associated revisions in the next set of
drawings developed and submitted.
5.2.4.1.2 Delay/Costs. Any delay or additional costs resulting from the re-submittal shall be
borne exclusively by DIB and not be grounds for an increase in the GMP or Contract
Time.
5.2.4.2 Other Deliverables. 3D rendered images, color and material boards, reflected ceiling plans,
and special system or equipment plans.
ARTICLE VI. PHASE II
6.1 Phase II Services. In Phase II of the Project, DIB's shall perfonn Services including, but are not limited to,
the following:
6.1.1 Project DfJVelopment. DIB shall diligently prosecute the development and refmement of Project
requirements and review such requirements with City;
6.1.2 Digital Documentation. DIB shall prepare CD's which shall include, without limitation, the following:
6.1.2.1 Architectural plans and details, including:
6.1.2.1.1 Site plan indicating general location and nature of on-site and the necessary off-site
improvements.
6.1.2.1.2 Floor plans, including roof, showing space assignments, sizes, and location of
installed or fIxed and movable equipment that affects the design of the spaces.
6.1.2.1.3 Building elevations indicating exterior design elements and features, including
fenestration arrangements, materials, mechanical and electrical features appearing on
the walls, roofs, and adjacent areas.
6.1.2.1.4 Interior elevations to establish functional requirements, equipment, and all systems
locations.
6.1.2.1.5 Typical building sections showing primary structural members, dimensions, and
accommodation of functional systems.
6.1.2.1.6 Typical wall sections sufficient to indicate materials, openings, and major features.
6.1.2.2 Structural drawings including plans and sections of sufficient clarity 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.
6.1.2.4 Landscape and Irrigation plan and details.
6.1.2.5 Electrical plans and details.
6.1.2.6 Plumbing plans and details.
6.1.2.7 Plans showing installation of major systems, equipment, fixed furnishings and graphics.
6.1.2.8 Technical specifications.
6.1.2.9 All other technical drawings, schedules, diagrams and specifications, to set forth in detail the
requirements for construction of the Project which, at a minimum, include:
6.1.2.9.1 Information customarily necessary for the use of those in the building trades.
6.1.2.9.2 Documents customarily necessary to obtain regulatory agency approvals.
6.1.2.9.3 Color board and architectural rendering for required presentations.
6.1.2.10 Mechanical design documentation consisting of continued development and
expansion of schematic mechanical design consisting of:
6.1.2.10.1 Single line layouts and the approximate sizing of all equipment and capacities,
preliminary equipment layouts.
6.1.2.10.2 Required space requirements for the equipment, required chases and clearances,
acoustical and vibrations control, visual impacts and energy conservation
measures.
6.1.2.11 Electrical design documentation consisting of continued expansion of the schematic
electrical design consisting of:
6.1.2.11.1 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 transformers-panels-switch
gears;
6.1.2.11.2 Preliminary equipment layouts, required space for equipment, required chases and
clearances.
6.1.2.12 Sections through critical areas showing coordination of architectural, structural, mechanical
and electrical elements.
6.1.2.13 Final specifications, including but not limited to, the following:
6.1.2.13.1 Architectural. General description of the construction, including interior fmishes,
types and locations of acoustical treatment, typical and special floor coverings and
final exterior and interior material selection.
6.1.2.13.2 Mechanical. Description of air conditioning, heating and ventilation systems and
controls, ducts, and piping system.
6.1.2.13.3 Electrical. Description of electrical services, including voltage; type and number
offeeders; lighting systems, including lighting levels and audiovisual; security-fire
alarms; and cable antenna television systems.
6.1.2.13.4 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 of the construction, including finishes, types of
materials and locations.
6.1.2.13.7 Other. Such other documents to fix and describe the size, quality and character of
the entire Project, its materials, and such other elements as shall be appropriate.
6.1.2.14 Plumbing drawings, including location and quantity of fixtures, equipment sizes, room sizes
for plumbing equipment, and [mal specifications as appropriate.
6.1.3 Project Sequencing. DIE 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. DIE shall prepare a detailed Critical Path Method schedule for all construction
components of the Project ("Detailed Construction Schedule") utilizing Microsoft Project software,
showing all major milestones, bid dates for the major bid packages, commencement of construction,
sequence of construction, completion of structural elements, and completion ofthe 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. DIE shall review, as needed, the CD's with the governmental authorities
having jurisdiction over the Project.
6.1.6 Accounting System. DIE shall provide a master accounting system and matrix on Microsoft Excel that
will be updated, expanded, and provided to the City monthly as the Project develops.
6.1.7 Project Management Plan. DIE 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 from the Effective
Date of Agreement.
6.1.7.4 Biweekly Design and Construction meetings
6.1.7.5 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. D/B shall establish and maintain a quality control
program with appropriate reviews and independent testing procedures to ensure compliance
with the Construction Documents during the construction phase.
6.6.10 Scheduling and cost control reports, which shall be provided monthly throughout the design
phase.
6.1.8 Construction Drawings and Specifications. DIE shall prepare construction drawings and specifications
suitable for obtaining City-approved permits and to allow construction.
6.1.9 City Approval. DIE shall submit Construction Documents and obtain City approval in writing of the
Con;truction Documents at fifty percent (50%), seventy percent (70%), and ninety percent (90%)
completion.
6.1.9.1 Condition Precedent. City approval of the Construction Documents is a condition precedent to
authorization to proceed with subsequent work on the Project.
6.1.9.2 Notification, Modification, and Resubmittal. At 50%, 70% and 90% Completion, City will
notify D/B in writing within the timeframes established in the Project Schedule following
receipt of Construction Drawings of City approval, or of request for modifications. If
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modifications are requested, D/B shall modify and resubmit Construction Drawings for City
approval.
6.1.9.3 D/B Support. D/B shall provide support to a City Constructability Review Team for the
review of the Construction Documents at all stages of required submission.
6.1.10 Materials and Equipment Specifications. D/B shall prepare technical materials and equipment
specifications for pre-purchase.
6.1.11 Surveying and Testing. D/B shall coordinate, perform, and complete all surveying, materials testing,
and special testing for the Project at the Project site as required by this Agreement, the State Building
Code, or any other law or regulation, in accordance with and considering the following:
6.1.11.1 Greenbook 2003 Section 2-9 titled "Surveying" and City of Chula Vista's Horizontal and
Vertical Control found on the Survey Control Network Map located on the City's Internet via
the following link:
http://www .chulavistaca. gov/City Services/Development Services/Engineering/index.asp
6.1.11.2 Existing Conditions. D/B shall obtain all necessary soils investigation and conduct
agronomic testing required for design of the Project. The Soils Consultant shall prepare a
statement that will be included in the Bidding Documents as to the nature of soils, ground
water conditions and any other information concerning the existing conditions of the site.
6.1.11.3 Utilities. D/B shall provide all required information for the construction or relocation of
Public or private utility facilities that must be constructed or relocated as a result of this
Project. D/B shall file all of the required docwnents for the approval of authorities having
jurisdiction over the Project and in obtaining the services of all utilities required by the
Project.
6.1.11.4 Geotechnical Information. D/B 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 R.C.E. or R.G.E.) 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. D/B shall provide additional site surveys and geotechnical investigations
to the extent that D/B determines they are necessary for final design.
6.1.11.6 No Reliance. D/B shall not rely on City survey information as it is intended to be preliminary
in nature and may not have sufficient accuracy or scope to support fmal design. '
6.1.12 SWP P P. D/B shall prepare and incorporate into the Construction Documents a Storm water Pollution
Prevention Plan ("SWPPP") to be implemented by the D/B during Project construction. Where
applicable, the SWPPP shall comply with both the California Regional Water Quality Control Board
Statewide General Construction Storm Water permit and National Pollution Discharge Elimination
System permit requirements and any municipal regulations adopted pursuant to the permits.
6.1.13 Alternatives. D/B shall evaluate alternative structural and construction approaches to ensure
economical designs, which optimize constructability, yet meet all codes, architectural concepts,
schematic designs, and standard specifications of the Project.
6.1.14 Permits. D/B shall obtain general building permit and all ancillary permits and licenses, including but
not limited to, demolition permits, improvement permits and grading permits [WHEN???].
6.1.15 Updated Costs. D/B shall provide updated construction cost estimates in conjunction with the
submittals required in Section 6.1.9 to support Value Engineering ("VB") and constructability reviews.
6.1.16 Final Review and Approval of Plans and Specifications. D/B shall deliver to City complete
Construction Documents, including Construction Drawings, Plans and Specifications for the design
and construction of the Project. City agrees to review the Construction Documents and provide City's
written comments to D/B within [INSERT TTh1EFRAME] Business Days of the date such
Construction Documents are delivered to City in accordance with the notice provisions in Article
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XXIX. Approval shall not be unreasonably withheld. If requested by City, D/B shall make changes to
the Construction Documents.
ARTICLE VII. PHASE Ill. - CONSTRUCTION PHASE WORK AND SERVICES
7.1 Phase ID. Work and Services. The DIE shall construct the Project in accordance with City-approved plans
and specifications prepared by the DIE to meet or exceed all requirements of the City provided program,
schematic design and the performance criteria. The DIE shall:
7.1.1 Bidding. DIE shall prepare and submit to the City for review separate bid packages, such bid packages
shall be organized in the manner that DIE determines is appropriate ensure the efficient and cost
effective construction of the Project.
7.1.1.1 Competitive Bidding. D/B shall competitively bid the respective bid packages for the
construction of the Project.
7.1.1.2 Pre-Bid Conferences. D/B shall schedule and conduct pre-bid conferences to answer questions
posed by bidders. Said answers and any other information required to provide clarification to
the Construction Documents during the bidding process shall be issued as written addenda and
provided to all prospective bidders.
7.1.1.3 Scheduling. D/B shall coordinate scheduling of bid packages, submittals.
7.1.1.4 Bid Results. D/B shall submit to the City a summary of bid results for each bid package.
7.1.1.5 Bid Protests. DIE shall hear and decide bid protests and shall develop and maintain bid protest
procedures for that purpose. City shall be timely informed of all bid protests (prior to
resolution) and the outcome of said protests.
7.1.1.6 Equal Opportunity Contracting/N ondiscrimination. DIE shall not discriminate on the basis of
race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the
solicitation, selection, hiring or treatment of subcontractors, vendors, or suppliers. D/B shall
provide equal opportunity for subcontractors to participate in subcontracting opportunities.
D/B understands and agrees that violation of this Subsection shall be considered a material
breach of this Agreement and may result in contract termination, debarment, or other sanctions.
The language of this Subsection shall be inserted in contracts between DIE and any
subcontractors, vendors, or suppliers.
7.1.1.7 Executing Contracts. D/B shall be responsible for entering into subcontracts, in D/B's own
name, with the bidder who in DIE's discretion and professional opinion best meets the
monetary, time, and performance requirement of the Project. DIE shall be responsible for
ensuring that these contracts fully comply with all applicable local, state and federal laws,
some but not all of which are listed below.
7.1.1.8 Additive Alternatives. DIE shall require additive alternates for extended warranties in bid
packages for roofing and HV AC systems.
7.1.2 Meetings. D/B shall conduct meetings identified below:
7.1.2.1 Preconstruction Meeting. D/B 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. D/B shall ensure'that the preconstruction meeting is attended by DIE's
construction contractor, project manager, all DIE's major subcontractors, the City's
[INSERT], and all other persons necessary as determined by DIE or City.
7.1.2.2 Progress Meetings. D/B shall conduct weekly progress meetings with the City and appropriate
design and construction members.
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7.1.2.3 Contractor Meetings. D/B shall conduct contractor meetings, as necessary, to provide
technical input.
7.1.2.3.1 D/B shall provide interpretation of technical specifications and drawings.
7.1.2.4 Rescheduling. Progress Meetings may be rescheduled if rescheduled meeting times are
convenient for all necessary parties, and D/B has given no less than five (5) Calendar Days
prior written notice of the rescheduled meeting.
7.1.2.5 Minutes. D/B shall take corresponding meeting minutes and distribute copies to all attendees.
7.1.2.6 Reporting. D/B shall monitor and report to the City on actual performance compared to the
Project Schedule, provide updated As-Builts, and verify that the latest changes to the Project, if
any, have been made.
7.1.3 Construction Management. During construction of the Project, DIB shall perform and be responsible
for construction management, supervision, and administration services, including, but not limited to,
tracking and reporting all expenses and all aspects of the construction and coordinating all 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. D/B shall provide resident management and contract administration,
including specialists necessary for the functional, safe, on-budget and on-schedule completion
of the Project, starting with the issuance of a Notice to Proceed, upon receipt offmal
construction drawings, from the City and extending through issuance of Notice of Completion
and Acceptance. City staff will perform inspections to verify compliance with the plans,
specifications and contract documents. The D/B resident staff shall ensure construction
compliance with applicable local, state, and federal codes, building and environmental permit
requirements, construction mitigation documents and enforcement of the Contract Documents.
7.1.3.2 Records Management. D/B shall implement and maintain an internal records management and
document control system as required to support project operations. The D/B shall provide
records management and document control information in a manner consistent with the City's
reporting system.
7.1.3.3 Cash Flow. D/B shall develop a project-specific Plan for defIDing, tracking and reporting cash
flow activity requirements and submit such plan to the City for review and approval prior to
implementation.
7.1.3.4 Reporting. D/B shall keep City informed of the progress and quality of the design and
construction of the Project.
7.1.3.5 Documents On-Site. D/B shall maintain a complete and up-to-date set of Construction
Documents in the Projects field office at all times during construction that reflect all changes
and modifications.
7.1.4 Site Safety, Security, and Compliance. D/B shall be responsible for site safety, security, and
compliance with all related laws and regulations.
7.1.4.1 Persons.' D/B shall be fully responsible for the safety and security of its officers, agents, and
employees, City's officers, agents, and employees, and third parties authorized by D/B to
access the Project site.
7.1.4'.2 Environmental. D/B shall administer and enforce the Environmental Mitigation Monitoring
and Reporting Plan for the Project, if any. In addition, D/B shall report environmental issues to
the City in a manner consistent with the City's reporting system. D/B shall be responsible for
the environmental consequences of the Project construction and shall comply with all related
laws and regulations, including the Clean Air Act of 1970, the Clean Water Act, Executive
Order number 11738, and the Stormwater Management and Discharge Control Ordinance No.
0-17988 and any and all Best Management Practice guidelines and pollution elimination
requirements as may be established by the Enforcement Official.
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7.1.4.3 Risk of Loss. D/B is responsible for the Project, project site, materials, equipment, and all
other incidentals until the Project has been Accepted by the City and shall bear any costs or
expenses associated with the loss thereof or damage thereto, including by theft, fIre, or other
casualties.
7.1.5 Public Right-of Way. All work, including, materials testing, special testing, and surveying to be
conducted in the Public right-of-way shall be coordinated with the City.
7.1.5.1 Materials Testing. D/B 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.
7.1.5.2 Surveying. D/B shall pay for and coordinate with City's [INSERT DEPARTMENT] all
surveying required within the Public right-of-way.
7.1.5.3 Follow all Laws, Rules, and Regulations. D/B agrees to follow all City standards and
regulations while working in the Public right of way, including but not limited to, utilizing
proper traffic control and obtaining necessary permits.
7.1.6 Traffic Control. D/B shall address all traffic control requirements for the Project including, if
necessary, separate traffic control plans and/or notes.
7.1.7 Abatement. D/B shall develop a mutually agreed upon program to abate and minimize noise, dust, and
disruption to access for parking and services at all times for adjacent business entities and residences.
7.1.8 Inspections. D/B shall coordinate any and all required inspections, including special inspections, in
such a manner that the progress of constI:uction is not affected or impacted. The D/B shall provide
surveying, and other contracted services as required to complete project construction inspection and
testing tasks. The City will provide inspection, special inspection, re-inspection services, and periodic
building inspections.
7.1.9 Permits. The Parties acknowledge that the construction work to be performed on the Project by D/B in
compliance with this Agreement is subject to the prior issuance of building, land development, and/or
public improvement permits paid for and obtained by D/B. 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 D/B is relieved from its
obligation to construct those improvements covered by the denial of said permit(s). City shall, under
such circumstances, pay D/B the reasonable costs, not to exceed the amounts identifIed in this
Agreement, for all work completed up to the date of denial of said permit(s). All plans, specifIcations
and improvements completed to the date of the denial, suspension or cancellation of said permit(s)
shall become the property of City upon D/B's receipt of payment in full as described above.
7.1.10 Maintenance. D/B shall ensure Project is maintained in a clean, neat, sanitary and safe condition free
from accumulation of waste materials or rubbish. Until Acceptance of the Project, D/B shall be
responsible for on-going site maintenance, including any erosion prevention measures. Prior to Final
Completion, D/B shall cause to be removed from and about the Project all tools, construction
equipment, machinery, surplus materials, waste materials and rubbish and deliver the site to the City in
a clean, neat, sanitary and safe condition.
7.1.1 0.1 Waste Removal. Please be advised that Chula Vista Municipal Code 8.24.070 provides
for an exclusive franchise for the removal arid conveyance of all solid waste for hire (including
recyclables) within City limits. The exclusive franchise agreement covers any hauling activity
that requires the generator or their agent to pay a fee for any service connected with removing
or conveying waste. The City's franchise hauler is Allied (formerly PacifIc) Waste Services
and may be reached at (619) 421-9400.
7.1.11 Requestfor Information (uRF],,). Parties acknowledge that the RFI process is solely for
correspondence between D/B and its agents; however, D/B shall submit copies of each RFI to City at
the within twenty-four (24) hours of receipt. D/B shall issue responses to RFls. Unless D/B
specifIcally requests a City response, City will not respond to RFls.
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7.1.12 Review and Approval. D/B shall provide timely review and approve shop drawings, samples of
construction materials, product data, schedule submittals, and other submittals for compliance with the
Construction Documents. D/B shall keep the City advised of all such matters being reviewed and
approved by D/B and forward copies of such documents to City for review.
7.1.13 Royalties and Other Fees. D/B shall pay royalties and license fees, if applicable. D/B shall defend
suits or claims for infringement of patent rights and shall defend and hold City and City's agents
harmless from loss on account thereof
7.1.14 Provide City with a Detailed Construction Schedule (DCS) on an disc ( CD) within fourteen (14)
working days after receiving Notice to Proceed with Phase IV, provide updated versions ofDCS on a
monthly basis, and provide immediate notice of any impact on critical path items.
ARTICLE VIll. SUBCONTRACTING
8.1 Subcontractim!.
8.1.1 Design Services. D/B shall perform or obtain the prior written consent of the City to subcontract all
design services for the Project utilizing qualified, licensed and sufficiently experienced architects,
engineers and other professionals (herein jointly "Design Consultants") as identified in Exhibit
[INSERT]. D/B shall not be permitted to substitute any Design Consultant unless authorized by City.
8.1.2 Construction Services. D/B shall perform all construction on the Project utilizing subcontractors
appropriately licensed by the California Contractors State License Board or other required agency.
ARTICLE IX. PROJECT SCHEDULE
9.1 Proiect Schedule. D/B shall perform and complete the Services and Work under this Agreement according to
the timeframes set forth in the Project Schedule, attached hereto as Exhibit "[INSERT]", 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. D/B has submitted, as part of its proposal, a Project Schedule based on its estimate
of the time necessary to complete the Project.
9.1.2 DIB's Obligation. Subsequent to the effective date of this Agreement, D/B shall provide, coordinate,
revise, and maintain the Project Schedule for all phases of the Project.
9.1.2.1 During the Project initiation and design phases, the D/B shall submit an updated Project
Schedule monthly to the City for approval.
9.1.2.2 During Construction, D/B shall submit an updated Project Schedule monthly to the City and
shall include:
9.1.2.2.1 Forecast Data with the intended plan for the remainder of the contract duration.
9.1.2.2.2 Actual Data with indications of when and how much Work and/or Services was
performed (% complete).
9.1.2.2.3 Logic changes or other changes required to maintain the Project Schedule.
9.1.3 Det~il 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 computer disk in a version of Microsoft
Project.
9.2 Proiect Comvletion. D/B acknowledges that all work on the Project under this Agreement will be complete
and ready for its intended use by the Project Completion Date, [INSERT].
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9.3 Chan2:es in Proiect Schedule. Changes in Project Schedule, whether to logic, definition, or relationship must
be approved by the City in writing as a Change Order pursuant to the manner identified in Article XIII.
ARTICLE X. DELAY IN PERFORMANCE
10.1 Time of Essence. Time is of the essence for this Agreement and each provision of this Agreement, including
the Project Schedule, Start Date, and Project Completion Date contained herein, unless otherwise specified in
this Agreement. DIB shall perform all Services and Work as expeditiously as is consistent with standard of
care identified in Section 4.1.
10.2 Notification of Delav. If the DIB anticipates or has reason to believe that the performance of Services and/or
Work under this Agreement will be delayed, the DIB shall immediately notify the City. A written notice of the
delay must be delivered to the City within five (5) Calendar Days of the initial notification, unless the City
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 ofthe delay, a reasonable estimate of the length of the delay, and all
supporting data. The DIB shall include a written statement that the time adjustment requested is the entire time
adjustment to which DIB has reason to believe it is entitled as a result of the cause of the delay. An increase in
time for completion does not necessarily mean that DIB is entitled to an increase in GMP. If in the opinion of
the City, the delay affects a material part ofthe Project, the City may exercise its rights under Article XXVII of
this Agreement or any other remedy available in law or equity.
10.3 Delav. If delays in the performance of Services or Work required under this Agreement are caused by
unforeseen events beyond the control of the Parties, such delay may entitle the DIB to a reasonable extension
of time or to additional compensation. Any such extension of time must be approved in writing by the City.
The following conditions may justify such a delay: war; changes in law or government regulation; labor
disputes; strikes; fires, floods, adverse weather or other similar condition of the elements necessitating
cessation of the DIB's work; inability to obtain materials, equipment, or labor; required additional Professional
Services; or other specific reasons agreed to between the City and the DIB; provided, however, that: (i) this
provision shall not apply to, and the DIB shall not be entitled to an extension of time, additional costs, or
expenses for, a delay caused by the acts or omissions of the DIB, 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 DIB to an extension of time unless the DIB furnishes the City, in a timely manner, documentary proof
satisfactory to City of the DIB's inability to obtain materials, equipment, or labor.
10.3.1 Caused by City. IfDIB reasonably believes that any action, inaction, decision or direction by City or
agent for the City will likely result in the GMP or Contract Time being exceeded or the Project being
completed late, DIB will notify City at Project Team meeting and in writing within five (5) calendar
days of discovering such action, inaction, decision, or direction. Included in such notice will be an
estimate of the cost and time impact resulting from such action, inaction, decision or direction. DIB
shall provide complete and accurate pricing within ten (10) calendar days of said discovery.
10.4 Costs of Delav/LiQuidated Dama2:es. City and DIB recognize that time is of the essence in this Agreement
and that City will suffer tinancialloss if the Project is not completed by the Substantial Completion Date
identified in the Project Schedule or any extensions subsequently approved. As the exact amount of financial
loss cannot be accurately forecasted, the Parties have used their best efforts to establish an estimate of such
loss. In doing so, the Parties have examined all of the circumstances and factors associated with a delay and
have determined an amount that is fair and reasonable as liquidated damages. City and DIB agree that DIB
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 DIB expressly agrees 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 agree that City may choose to reduce the GMP by the amount of
the liquidated damages.
ARTICLE XI. PROJECT COSTS
11.1 Estimated Cost. The Estimated Cost of Project, according to the RFP is [INSERT WRITTEN DOLLAR
AMOUNT (INSERT NUMERIC DOLLAR AMOUNT)]. The City's obligation under this Agreement shall not
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exceed the Estimated Cost; however, once a GMP is determined and approved, the GMP shall become the not
to exceed amount of the City's obligation. GMP is subject to change pursuant to methods established in this
Agreement.
11.1.1 Cost Schedule. The EMP has been allocated among each activity or portion of the Project ("Itemized
Cost(s)"). The Itemized Costs are included in Exhibit "[NSERT]", attached. The cost incurred by the
DIE for a specific activity or portion of the Project shall not exceed the associated Itemized Cost.
11.2 GMP. At 90% complete construction documents, DIE shall establish a GMP and submit such GMP to the
City for approval.
11.2.1 Not to Exceed Amount. The GMP shall not exceed $[INSERT NUMERIC DOLLAR AMOUNT].
Any costs incurred by DIE in excess of said GMP shall be the sole responsibility of the DIE, unless a
Change Order is approved by the City pursuant to Article XIII of this Agreement.
11.2.1.1 Included Costs. In calculating the GMP, DIE shall include costs of the following:
11.2.1.1.1 All Design Consultants, including but not limited to architectural, structural, civil,
mechanical, electrical, communications, graphics and art consultants, landscape
architects, and acoustical, audio visual, lighting, and security consultants.
11.2.1.1.2 Estimating, value engineering and construction management.
11.2.1.1.3 Construction supervision and project management personnel, including but not
limited to superintendents, Project managers, Project secretaries, Project engineers,
Project accountants, and all other D/B personnel wherever located.
11.2.1.1.4 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, field equipment and storage facilities.
11.2.1.1.4.1 Option to Purchase. In no case shall the cumulative monthly rental
charges to the Project for equipment and Small Tools used by the D/B
exceed 90% of the fair market value of anyone 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 DIE Contingency Fund, which shall not exceed 5% of Hard Construction Costs.
11.2.1.1.7 Reimbursable Costs. Example: Utility fees.
11.2.1.1.8 DIE Fixed Fee for the complete design and construction of the entire Project as
specified in the 90% CD's.
11.2.1.1.9 No more than $[INSERT NUMERIC DOLLAR AMOUNT]. for Design Services
and General Conditions.
11.2.1.1.10 All home-office and field overhead costs of any type including document control
and retention;
11.2.1.1.11 All business license costs;
11.2.1.1.12 All profit D/B intends to earn under this Agreement.i
11.2.1.1.13 All direct and incidental costs incurred by DIE, except for those specifically
identified under the General Conditions section. [WHERE DO WE DEFINE
DIRECT OR INCIDENTAL COSTS?].
11.2.1.1.14 [INSERT OTHER???].
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11.2.1.2 Full Compensation. Unless otherwise expressly provided in this Agreement, GMP shall be
the maximum amount of compensation to due to DIE forall permitted costs of any type
incurred by DIE in performing all services and obligations under this Agreement.
11.2.2 Itemization. D/B shall provide City with an itemization of the GMP that reconciles the GMP with the
itemized costs. The itemization shall include the following:
11.2.1.1 DIE 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 Construction Costs. Hard Construction Costs broken down into categories for each of
the major trades for the Project, which will include labor, material expenses, equipment costs,
and a reasonable DIE Contingency Fund.
11.2.1.3 [\v11at else???].
11.2.3 Alternate Bid Items. DIE shall prepare, with the cooperation of the City, alternate bid items to assure
that the cost of the Project will not exceed the GMP.
11.2.4 Adjustments to GMP Based on Approved Change Orders. GMP may be changed, increased or
decreased, based on Change Orders approved pursuant to Article XIII.
11.2.5 Adjustments Based on Other Cost Increases. GMP 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 standards and specifications of construction, concealed or
unknown conditions encountered in the completion of the Project, or other cause beyond DIE's
control, (ii) actual bids received being greater than estimated, or (iii) other factors not the result of
unreasonable conduct by D/B. 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 Duty to Advance Costs. DIE shall advance all costs for Project subject to Reimbursement in the manner
described in Article XVI.
11.4 Use of Project Contin!!encv. Project Contingency shall not be used without prior, written City approval and
shall not be used for: (i) work required due to D/B's, its officers', agents' or employees' failure to perform
Work or Services according to the terms of this Agreement, in compliance with the Construction Documents,
and/or Law; or (ii) uninsured losses resulting from the negligence of DIE, its officers, agents, or employees.
11.5 Notification of Increased Costs. If, at any time, the DIE anticipates that the amount expended on the Project
will exceed the Estimated Cost or the GMP, when established, the DIE shall immediately, not more than ten
(10) Working Days from becoming aware of the potential increase, notify the City in writing. This written
notification shall include an itemized cost estimate and a list of recommended revisions that the D/B believes
will bring the Project cost to within the Estimated Cost or GMP. Following the delivery of the Notice, DIE
shall assist the City in reviewing the itemized cost breakdown and 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 DIE, the City may choose to: (i) approve an increase in
the amount authorized for the Project; (ii) delineate a project, which may be constructed for the budget
amount; (iii) any combination of (i) and (ii); or teIDlinate the Project subject to the termination
provisions in Article XXVII.
ARTICLE XII. PRODUCTS
12. 1 Submittals. Prior to the bidding process, D/B shall submit for City approval a list of products intended for use
in the Project. Upon D/B's completion of plans and specifications, City will review and approve products
specified therein. DIE shall provide City a copy of each submittal for City approval throughout the duration of
construction within twenty (20) Calendar Days of DIE's receipt of submittal. Approval is general approval only
and in no way relieves DIE of its sole responsibilities under this Agreement or any and all laws, codes, permits
or regulations.
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12. 2 Substitutions. D/B shall submit all requests for product substitutions to City in writing within thirty (30)
Calendar Days after the date of award of the construction contract. After expiration of the thirty (30) Calendar
Days, City will allow substitution only when a product becomes unavailable due to no fault ofD/B's
contractor. City shall review substitution requests within thirty (30) Calendar Days of submission of such
requests. D/B agrees that City requires Consultant's input and as such D/B shall coordinate a five (5) Working
Day review by its Consultant.
12.2.1 Substantiate Request. D/B shall include with each substitution request complete data substantiating
that the proposed substitution conforms to requirements ofthe Contract Documents.
12.2.2 DIB Representations. By submitting a substitution request, D/B is representing to City all of the
following: (i) D/B has investigated proposed product and determined that in all respect the proposed
product meets or exceeds the specified product; (ii) D/B is providing the same warranty for the
proposed product as was available for the specified product; (iii) D/B shall coordinate installation and
make any other necessary modifications which may be required for work to be complete in all respects;
and (iv) D/B shall waive any claims for additional costs related to the substituted product, unless the
specified product is not commercially available.
12.2.3 Separate Written Request. City will not consider either substitutions that are implied in the product
data submittal without a separate written request or substitutions that will require substantial revision
of construction contract documents.
12.3 Samples.
12.3.1 Postage. Samples shall be sent to D/B's office, carriage prepaid.
12.3.2 Review. D/B shall furnish to City for review, prior to purchasing, fabricating, applying or installing,
(2) two samples (other than field samples) of each required material with the required finish.
12.3.2.1 Where applicable, all samples shall be 8" x 10" in size and shall be limited in thickness to a
minimum consistent with sample analysis. In lieu thereof, the actual full-size item shall be
submitted.
12.3.2.2 D/B shall assign a submittal number. D/B shall include with each submission a list of all
samples sent, a statement as to the usage of each sample and its location in the Project, the
name of the manufacturer, trade name, style, model, and any other necessary identifying
information.
12.3.2.3 All materials, finishes, and workmanship in the complete building shall be equal in every
respect to that of the reviewed sample.
12.3.2.4 City will return one submitted sample upon completion of City review.
12.3.2.5 D/B's, or D/B's agent's, field samples shall be prepared at the site. Affected finish work shall
not commence until D/B or its agents have been given a written review of the field samples.
12.3.3 Not a Release of Liability. City's review of samples in no way relieves D/B ofD/B's responsibility for
construction of Project in full compliance with all Contract Documents.
12.4 Observe Testinl!. When appropriate, D/B shall witness testing and review materials and equipment testing
results and provide comments regarding conformance with specification requirements.
ARTICLE XIII. CHANGE ORDERS
13.1 When Reauired. Change Orders shall be required in the following instances:
13.1.1 GMP. Any adjustment in GMP.
13 .1.2 Contract Time. Any adjustment in Contract Time of Completion Date.
13.1.3 Use of Contingency Fund. At any time D/B seeks to use the Contingency Fund, irrespective ofirnpact
on the GMP or Contract Time.
13.1.4 City Requests. The City directs D/B to perform Additional Services.
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13.1.5 Other. Any other instance for which this Agreement expresses that a Change Order shall be used.
13.2 Process for Aonroval of Chamle Orders. Within five (5) Calendar Days of any event that gives rise to the
need for a Change Order, the DIE shall provide the City with written notice of the need for the same. The
Change Order must indicate whether the change will affect, in any way, by increasing or decreasing, the GMP,
Proj~ct Schedule, or project quality established during the design and submittal review process. In addition, it
shall be accompanied by a detailed and complete estimate of cost impact associated with the Change Order,
including all appropriate direct and indirect costs and credits. All such costs and. credits shall be accurately
categorized into DIE Fixed Fee, Reimbursable Costs or Hard Construction Costs. DIE shall also provide City
with a realistic estimate of the impact, if any, the Change Order will bave on the Contract Time.
13.2. 1 Project A-lanuger Approval. If the Change Order request does not result in an increase in the Estimated
Cost, the [INSERT WHO] shall either approve or reject the Change Order m writing within ten (10)
Working Days of receiving DIB's written notice, provided DIB has submitted complete documentation
substantiating the need for such Change Order. If City fails to respond to DIB's written notice within
the ten (10) Workmg Days, the Change Order request shall be deemed denied.
13.2.2 City Council Approval. For Change Orders not subject to section 13.2.1, City Council approval is
required. The City Council may either approve, reject, or approve in part such Change Orders.
Council Approval shall not be subject to the ten (10) Working Day response time provided for in
section 13.3.1.
13.3 Written Aporoval of Change Orders. DIB shall not proceed on work requested under a Change Order,
absent written approval from the appropriate authority. Any Services or Work, which require t he approval of
a Change Order, perform by DIB prior to approval shall not be reimbursed.
13.4 Failure to Agree on Cost ofChan2:e Order or Time. In the event there is any disagreement or dispute
between the Parties as to whether the DIB 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 determination of the Director of Public Works is challenged, such challenge
shall be address in the manner identified in Section 30.17. DIE shall not have the right to stop or delay in the
prosecution of any services or work, including services or work that is the subject of the Ghange Order (if
directed by the City), pending the determination of the Director of Public Services or, if applicable, final
resolution. Instead, DIB shall continue diligently prosecuting all such services and work.
13.4 Full Compensation. Payment to DIE for Change Orders shall provide full compensation for all equipment,
materials, labor, field and home office overhead, mark-ups, and profit necessary to complete the work. By
executing a Change Order, the DIB or DIB's representative acknowledges that no additional compensation or
claims for items of work listed in the Change Order will be allowed.
13.5 Errors and Omissions. DIB shall not be reimbursed for any costs or expenses of a Change Order resulting
from a design error or omission, DIE's negligence, orthe negligence of any of DIE's agents or subagents. DIE
shall be reimbursed for any costs or expenses of a Change Order resulting from a design error or omission that
is the direct result of a City request for such design or omission. The City reserves the right to seek
reimbursements for any funds used due to errors or omissions of the Design Consultants, D/B's negligence, or
the negligence of any ofD/B's agents, or subcontractors.
13 6 Citv Refusal to Approve Chan2"e Order. D/B shall not have the right to terminate this Agreement for the
City's refusal to approve a Change Order pursuant to Sections 13.2.1 or and 13.2.3 .
ARTICLE XIV. EXTRA WORK
14.1 Citv Authoritv to Order Extra Work. City may at any time prior to Project Completion order Extra Work
on the Project. The sum of all Extra Work ordered shall not exceed five percent (5%) of the Estimated Cost at
the time of the Bid Award, without invalidating this Agreement and without notice to any surety.
14.1.1 Requests in Writing. Al~ requests for Extra Work shall be in writing, shall be treated as, and are
subject to the same requirements as Change Orders. DIB shall not be responsible for failure to perform
Extra Wark, which was requested in a manner inconsistent with this section.
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14.2 Bonds Reauired for Extra \Vork. DIB's and its agents' bonds, required under Article XXIV, shall cover any
Extra Work provided that the Extra Work is paid for by the Project Budget
14.3 Reimbursement for Extra Work. Work performed by DIE as Extra Work is reimbursable in the same
manner described in Article XVI. The Project contingency as described in Article Xl, will be used first to
cover the costs of Extra Work.
14.4 MarkuD. D/B will be paid a reasonable allowance for overhead and profit for Extra Work. The allowance
shall not exceed five percent (5%) of the approved costs for the Extra Work.
ARTICLE XV. CHANGED CONDITIONS
15. 1 Chan2:ed Conditions. Changed Conditions shall be addressed under the Greenbook section 3-4; however,
Parties acknowledge that even if Changed Conditions are found to be present, the Project shall not exceed the
GMP without express City Council approval of an increase to the Project Budget. Absent such express
approval of additional funds, D/B shall provide City with value engineering and Parties will return Project to
within the total Project cost.
ARTICLE XVI. PAYMENT TERMS
16.1 Payment
16.1.1 Fundsfor Payment. DIB shall only be entitled to payment for Services and Work performed underthis
Agreement from the funds appropriated for the Project.
16.1.2 Maximum Payment. D/B shall be entitled to payment in an amount not to exceed the GMP or
subsequently approved increase in GMP. DIB is not entitled to payment for unapproved expenses,
unapproved increases in costs, or other increases caused by DfB negligence, omissions, or failure to
seek approval for additional or increased costs.
16.1.3 Applicationfor Payment. DIE shall submit to City a certificate and application for payment on or
before the 5th day of each calendar month ("Payment Application"). The Payment Application shall be
based upon the percentage of completion of the Scbedule of Values plus any Reimburseable Costs, less
any payments previously made by the City, incurred or advanced for the Project for which DIE was
has not previously received payment. The Payment Application must include all relevant documents
in accordance with Section 15.1.6. If the City determines that all relevant documents have not been
submitted, City shall request that DIE provide additional documentation. DIE shall provide additional
documentation within ten (10) Working Days of request. City is not obligated to make payment to DIE
until City has received all relevant documentation to support Reimbursement Request. After all
appropriate cost documentation has been received and City approves the Payment Application, City
shall make payment to DIE of all uncontested charges within sixty (60) Calendar Days of receipt ofa
complete Payment Application.
16.1.3. I Withholding. From each payment, ten percent (10%) will be deducted and retained by the
City, and the remainder will be paid in accordance with the terms and conditions of this
Agreement. No payment made to DfB 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 ofDIB, 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'.3. 2 Payment of Withholding. The City will pay the DIE for the amounts withheld forty-five (45)
Calendar Days from recordation of the Notice of Completion, providing that no Stop Notices
or .Mechanic's Liens have been filed since the recordation of the Notice of Completion.
16.1.3.2.1 \\There 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 lvlechanic' s Lien has been filed and
a conformed copy delivered to the City.
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16.1.3. 3 Contested Charges. In the event City contests any charges contained in the Payment
Application, the dispute shall be resolved in the manner identified in Section 21.6. D/B shall
not have the right to stop or delay in the prosecution or any Services of Work, pending the
determination of the Director of Public Services or, if applicable, [mal resolution. Instead
D/B shall continue to diligently prosecute all Work and Services. During the time of the
dispute, the City shall withhold the amount of the charge in question.
16.1.3. 4 Cutoff for Submission of Reimbursement Requests. D/B shall submit all Reimbursement
Requests within six (6) months of the date on which Final Completion occurs and City
accepts the Project. Any Reimbursement Request submitted after the Cutoff Date shall not be
reviewed or included in Reimbursable Cost.
16.1.4 Verification of Reimbursement Request. D/B shall supply documentation to support the
Reimbursement Request including, but not limited to, proof that all mechanic liens have been released,
copies of invoices received and copies of cancelled checks, substitute checks, or image replacement
documents showing that payment has been made in connection with the Reimbursement Request in the
following manner:
16.1.4. 1 D/B shall submit two (2) copies of a Reimbursement Request (cover letter, invoice, and
documentation) to the City.
16.1.4. 2 After review and approval, the City shall prepare a memorandum to the Financing
Department that the invoice is appropriate to pay. The memorandum shall indicate any costs
to be disallowed and the reason for the disallowance.
16.1.4. 3 Prior to the approval of the Reimbursement Request, City has the right to verify whether or
not the materials and work for which reimbursement is being requested have been installed
and performed as represented in the Reimbursement Request.
16.1.5 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 D/B the fair value, as determined by City,
of property that is destroyed, lost, stolen, or damaged rendering it undeliverable orunusable for City.
In addition, D/B is not entitled to reimbursement for any cost or expenditure that has not been
approved by the City in the manner required by this Agreement or the City Charter and rules,
regulations, or laws promulgated there-under.
ARTICLE XVII. INSPECTION
17.1 Insoection Team. The Project shall be inspected by a team composed of, at a minimum, the following: i.)
representatives of the City, ii.) representative from D/B's Design Team, iii.) the Construction Manager, and
iv.Representative, (iii) D/B's Consultant(s), and (e) the D/B's construction superintendent [Inspection Team]
17.2 Insoection Sta!!es. 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 manager's approval
for this observation, inspecting and testing. D/B shall provide them proper and safe conditions for such access
and advise them ofD/B's safety procedures and programs so that they may comply.
17.4 Additional Insoections. City will make, or have made, such inspections and tests, as the City deems
necessary to see that the Work is being accomplished in accordance with the requirements of the Construction.
17.5 Notice. D/B shall give City timely notice of readiness of the Work for all required on and off-site inspections,
tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or
tests. DIE shall give at least 24 hours notice for on-site inspection and five (5) days notice for off-site
inspection.
17.6 Costs ofInsoection. Unless otherwise specified, the cost of inspection and testing will be borne by the City.
Any expenses associated with re-inspection shall be borne by DIE.
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17.7 Concealin!! Work. Prior to concealing work, D/B shall obtain approval of work from the City and as required
by all State Building Codes. City has the right to stop or suspend Work activities which will conceal or cover
up D/B Work product which is to be inspected or tested, or which will interfere with the inspection or testing
activities, for a reasonable time and D/B will have no right to additional cost or time it may incur as a result of
the Work stoppage.
17.8 Defective Work. In the event such inspections or tests reveal non-compliance with the requirements of the
Construction Documents or defective work, the provisions and process of Article XXII shall apply.
17.9 Not a Waiver of Obli!!ations. Neither observations by the City nor inspections, tests, or approvals by City or
others shall relieve D/B from D/B's obligations to perform the Work in accordance with the Construction
Documents. This approval is general approval only and in no way relieves D/B of its sole responsibilities under
this Agreement or any and all laws, codes, permits or regulations.
ARTICLE XVIII. PROJECT COMPLETION
18.1 Notice to Citv. When D/B determines that the Project is complete, D/B shall notify the City in writing of the
Proj ects status within seven (7) Calendar Days of the D/B' s determination. The notice shall certify to City that
the Project has been completed in accordance with the Construction Documents, all applicable building codes
and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating
to the Project.
18.2 Walk-Throu!!h Inspection. A preliminary Walk-Through Inspection shall be conducted by City within ten
(10) Working Days following D/B's notice to City of completion ("Walk-Through Inspection"). The Walk-
Through Inspection will be conducted by the Inspection Team identified in Article XVII, Section 17.1.
18.2.1 Punch List. A Punch List, if necessary, shall be prepared by City during the Walk-Through Inspection.
The Punch List shall be presented to D/B by the RE within three (3) Working Days of the Walk-
Through Inspection. D/B shall correct the items listed on the Punch List within thirty (30) Calendar
Days of receipt of the punch list and prior to the Final Inspection.
18.2.2 Failure to Identifj; Items. As to any items not included on the Punch List or later discovered, nothing
in this section is intended to limit D/B' s obligations under this Agreement and City will maintain all
remedies available under this Agreement and the law.
18.3 EQuipment Demonstration. Prior to fmal inspection, D/B shall demonstrate to City the operation of each
system in the Project, and instruct City personnel in operation, adjustment and maintenance of equipment and
systems, using the operation and maintenance data.
18.3.1 Startup. The D/B shall supervise, manage, and coordinate all project startup and testing activities for
mechanical systems within the provisions of the project Contract Documents.
18.3.2 Reporting. The D/B shall report progress of project startup and testing to the City in a manner
consistent with the City's reporting system.
18.4 Final Inspection. Provided D/B has corrected the Punch List items and notified the City of the correction
("Notice of Correction"), the Final Inspection for the Project shall be scheduled and conducted within ninety
(90) Calendar Days of the Notice of Correction.
ARTICLE XIX. PROJECT ACCEPTANCE AND FINAL COMPLETION
19.1 Acceptance. Upon approval by the Inspection Team during the Final Inspection that Project improvements are
complete and that work required on the Punch List has been fmished, City shall accept the Project
("Acceptance"). Upon Acceptance, D/B shall do all ofthe following:
19.1.1 Notice of Completion. D/B shall execute and file a Notice of Completion with the County Recorder of
San Diego County and shall provide the RE with a conformed copy of the recorded Notice of
Completion.
19.1.2 Lien and Material Releases. D/B shall cause all contractors and subcontractors to provide lien and
material releases as to the Project and provide copies of such lien and material releases to the City or,
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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 ofthe Project shall be deemed to occur on the last date of the following
events: (i) recordation of the Notice of Completion with a conformed copy to City; (ii) submission of all
documents required to be supplied by D/B to City pursuant to this Agreement, including As-Built Drawings,
warranties, and operating and maintenance manuals; or issuance of a final certificate of occupancy.
19.2.1
As-Builts. City will evaluate the submitted As-Builts for accuracy and completeness and may return
comments. D/B shall meet with City until all issues are resolved. Upon issue resolution, in
accordance with disputed work procedures in Section 22.6, D/B shall submit a mylar set and three
(3) [mal blueline sets of As-Builts stamped by the architect/engineer of record as required by law.
19.2 No Waiver. D/B's obligation to perform and complete the work in accordance with the Contract Documents
shall be absolute. Neither recommendation of any progress payment or acceptance of work, nor any payment
by City to D/B under the Contract Documents, nor any use or occupancy of the Project or any part thereof by
City, nor any act of acceptance by City, nor any failure to do act, nor any review of a shop drawing or sample
submittal, will constitute an acceptance of work, which is not in accordance with the Contract Documents.
ARTICLE XX. PROJECT DELIVERABLES
20.1 Proiect Deliverables. Prior to Acceptance, D/B shall deliver all of the following to the City in the format
required:
20.1.1 As-Builts. D/B shall provide As-Builts in 3 sets of paper and electronic format (pdt) 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 similar items as determined by City, both
concealed and visible. D/B shall clearly identify the item by accurate note such as "cast iron
drain," galvanized water, etc. D/B shall clearly show, by symbol or note, the vertical location
of the item ("under slab", "in ceiling", "exposed", etc.), and make all identification
sufficiently descriptive that it may be related reliably to the specification. D/B shall
thoroughly coordinate all changes on the As-Builts making adequate and proper entries on
each page of specifications and each sheet of drawings and other documents where entry is
required to properly show the change.
20. 1.1.2 D/B shall include all of the following on the As-Builts:
20.1.1.2.1 Depth offoundation in relation to flllished first floor.
20. 1.1.2.2 Horizontal and vertical locations of underground utilities and appurtenances,
with references to permanent surface improvements.
20. 1.1.2.3 Locations of internal utilities and appurtenances, with references to visible and
accessible features of the structure.
20. 1.1.2.4 Field changes of dimensions and details.
20. 1.1.2.5 Changes authorized by approved proposal requests, construction Change Orders,
discussion with City that resulted in any change/deviation from City's program,
specifications, approved plans, equipment or materials.
20. 1.1.2.6 Details not issued with original Construction Drawings, designlbuild plans
deferred approvals, etc.
20. 1.1.2.7 Upon completion of work, obtain signature oflicensed surveyor or civil engineer
on the Project record set verifying layout information.
20. 1.1.2.8 Show 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. 1.1.2.9 The title "PROJECT RECORD" in 3/8" letters.
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20. 1.1.3 D/B shall maintain a set of As-Builts at the Project site for reference. D/B shall ensure that
changes to the As-Builts are made within twenty-four (24) hours after obtaining information.
Changes shall be made with erasable colored pencil (not ink or indelible pencil), shall clearly
describe the change by note (note in ink, colored pencil or rubber stamp) and by graphic line,
shall indicate the date of entry, shall circle the area or areas affected and, in the event of
overlapping changes, use different colors for each change.
20.1.2 Operation and Maintenance Manuals. D/B shall submit all Operation and Maintenance manuals
prepared in the following manner:
20.1.2. 1 In triplicate, bound in 8Yz x 11 inch (216 x 279 mm) three-ring size binders with durable
plastic covers prior to City's Final Inspection.
20.1.2. 2 A separate volume for each system, including but not limited to, mechanical, electrical,
plumbing, roofmg, irrigation, and any other system as determined by City, with a table of
contents and index tabs in each volume as follows:
20. 1.2. 2. 1 Part 1: Directory, listing names, addresses, and telephone numbers ofD/B's
subcontractors, agents, suppliers, manufacturers, and installers.
20. 1.2. 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 ofD/B's agents, suppliers, manufacturers, and
installers. In addition, list the following: (i) appropriate design criteria; (ii) list of
equipment; (iii) parts list; (iv) operating instructions;(v) maintenance instructions,
equipment; (vi) maintenance instructions, fmishes; (vii) shop drawings and
product data; and (viii) warranties.
20.2 Ownership ofProiect DeIiverables. Upon Final Completion or Termination, Project Deliverables shall
become the property of the City. D/B 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 Completion all records, documents, warranties, bonds, guarantees, maintenance/ service contracts, and
maintenance and operating manuals
ARTICLE XXI. WARRANTIES
21.1 Warranties Required. D/B shall provide and require its agents to provide the warranties listed below. This
warranty requirement is not intended to exclude, and shall not exclude, other implicit or explicit warranties or
guarantees required or implied by law.
21.1.1 Materials and Workmanship. D/B shall guarantee, and shall require its agents to guarantee, all work
on the Project against defective workmanship and materials furnished by D/B for a period of two (2)
years from the date of Project's Final Completion. D/B shall replace or repair any such defective work
in a manner satisfactory to City, after notice to do so from City, and within the time specified in the
notice.
21.1.2 New Materials and Equipment. D/B shall warrant and guarantee, and shall require its agents to
warrant and guarantee, to City that all materials and equipment incorporated into the Project are new
unless otherwise specified.
21.1.3 Design, Construction, and Other Defects. D/B shall warrant and guarantee, and shall require its agents
to warrant and guarantee to City that all work is in accordance with the Plans and Specifications and is
not defective in any way in design, construction or otherwise.
21.2 Form and Content. Except manufacturer's standard printed warranties, all warranties shall be on D/B's and
D/B's agent's, material supplier's, installer's or manufacturer's own letterhead, addressed to City. All
warranties shall be submitted in the format specified in this section, modified as approved by City to suit the
conditions pertaining to the warranty.
21.2.1 Durable Binder. Obtain warranties, executed in triplicate by D/B, D/B' s agents, installers, and
manufacturers. Provide Table of Contents and assemble in binder with durable plastic cover.
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21.2.2 Table a/Contents. All warranties shall be listed and typewritten in the sequence ofthe Table of
Contents of the Project manual, with each item identified with the number and title of the specification
section in which specified, and the name of product or work item.
21.2.3 Index Tabs. Separate each warranty with index tab sheets keyed to the Table of Contents listing.
21.2.4 Detail. Provide full information, using separate typewritten sheets, as necessary. List D/B's agents,
installer, and manufacturer, with name, address and telephone number of responsible principal.
21.2.5 Warranty Start Date. Except for items put into use with D/B's permission with date mutually agreed
upon in writing, leave date of beginning oftime of warranty open until the date ofFinal Completion.
21.2.6 Signature and Notarization. All warranties shall be signed and notarized. Signatures shall be required
from D/B'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.
21.3.1 Plants, Trees, and Shrubs. Not withstanding above, all shrubs and ground cover shall have a ninety
(90) Calendar Day warranty period and trees shall have a one (1) year warranty period. All plant
warranties shall commence from the date of Final Completion.
21.4 Meetin!!s. During the two (2) year warranty period described in Section 21.3, D/B shall meet, and shall
require its design Consultant, construction contractor, and key subcontractors to meet, with the City
representatives, on a monthly basis, if requested by City. This meeting shall be held to discuss and resolve any
problems that City discovers in design, construction, or furnishing, fixtures, and equipment ofthe Project
during the two (2) year warranty period.
21.5 Warranty Inspection. At 180 and 360 days following Final Completion, during the one-year general building
warranty period, D/B shall inspect each component of the Project, identify items requiring repair, and oversee
and complete such repairs. Findings of such inspections shall be reported to the City.
ARTICLE XXII. DEFECTIVE WORK
22.1 Correction. Removal. or Replacement. If within the designated warranty period, or such additional period as
may be required by law or regulation, the Project is discovered to contain Defective Work, the DIE shall
promptly and in accordance with the City's written instructions and within the reasonable time limits stated
therein, either correct the Defective Work, or if it has been rejected by City, remove it from the site and replace
it with non-defective and conforming work.
22.2 City's Ri!!ht to Correct. If circumstances warrant, including but not limited to an emergency or D/B's failure
to adhere to section 21.1, City may correct, remove, or replace the Defective Work. In such circumstances,
DIE shall not recover costs associated with the Defective Work and shall reimburse the City for all City's
costs, whether direct or indirect, associated with the correction or removal and replacement.
22.3 Non-Reimbursable Costs. All costs incurred by DIE or DIE's agents to remedy defects are non-reimbursable
costs. If the City has already reimbursed the DIE for the defective work, City is entitled to an appropriate
decrease in Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against D/B' s
bond if DIE has been paid in full.
22.4 Extension of War ran tv. When Defective Work, or damage therefrom, has been corrected, removed, or
replaced during the warranty period, the two (2) year, or relevant warranty period, will be extended for an
additional two (2) years from the date of the satisfactory completion of the correction, removal, or replacement.
22.5 No Limitation on other Remedies. Exercise of the remedies for defects pursuant to this Article shall not limit
the remedies City may pursue under this Agreement or law.
22.6 Disputes. IfD/B and City are unable to reach agreement on disputed work, City may direct D/B to proceed
with the work and compensate D/B for undisputed amounts. Payment of disputed amounts shall be as later
determined by the Director of Public Services. If this decision is contested, the claims procedure in 29.17 shall
be followed. D/B shall maintain and keep all records relating to disputed work for a period of three (3) years in
accordance with Article XXVIII.
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ARTICLE XXIII. MAINTENANCE OF LANDSCAPING & IRRIGATION WORK
23.1 Maintenance Period. If DIE is required to install or maintain landscaping and/or irrigation, DIE shall provide
a maintenance period which shall begin on the fIrst day after all landscape and irrigation 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. DIE or D/B's Contractor shall maintain all involved areas of the Project.
23.3 Maintenance Required. DIE or D/B's Contractor shall conduct regular planting maintenance operations
immediately after each plant is planted. Plants shall be kept in a healthy, growing condition and in a visually
pleasing appearance by watering, pruning, mowing, rolling, trimming, edging, fertilizing, restaking, pest and
disease controlling, spraying, weeding, cleaning up and any other necessary operation of maintenance.
Landscape areas shall be kept free of weeds, noxious grass and all other undesired vegetative growth and
debris. D/B or D/B'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 low 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 or other potential causes of
damage.
23.4 Landscaoe and Irri!!ation Insoection. At the conclusion of the maintenance period, City shall inspect the
landscaping and irrigation to determine the acceptability of the work, including maintenance. This inspection
shall be scheduled with two (2) weeks notice, a minimum of ninety (90) Calendar Days after the plant
maintenance period commencement, or when the DIE or DIE's contractor notifIes the City that they are ready
for the fmal inspection, whichever comes last. The City will notify D/B of all defIciencies revealed by the
inspection before acceptance.
23.5 Extension of Maintenance Period. DIE shall extend completion of the maintenance period when, in City's
opinion, improper maintenance and/or possible poor or unhealthy condition of planted material is evident at the
termination ofthe scheduled maintenance period. D/B 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 Reolacement. 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 fourteen (14) Working
Days of notifIcation by City. D/B shall include, at D/B's or DIE's Contractor's expense, a timely written
diagnosis of plant health by a certifIed Arborist, should a dispute arise. Arborist'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
furnished, planted and fertilized as originally specifIed. Cost of all repair work to existing
improvements damaged during replacements shall be borne by D/B and shall not be Reimbursable
Costs.
ARTICLE XXIV. BONDS
24.1 Payment Bond. DIE 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 Construction Costs.
24.2 Performance Bond. D/B shall provide or require its Construction Contractor to provide City with a Faithful
Performance Bond in favor of the City for one hundred percent (100%) of the GMP.
24.3 Term. The Payment Bond shall remain in full force and effect at least until the Project is accepted by the City
and all claims for materials and labor are paid, for a minimum offorty-five (45) Calendar Days after the filing
of the Notice of Completion, except as otherwise provided by law or regulation. The Performance Bond shall
remain in full force for thirty (30) Calendar Days following the fIling date of the Notice of Completion and
Acceptance, at which time it will convert to a ten percent (10%) warranty bond, which shall remain in place
until the end of all warranty periods set forth in this Agreement.
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24.4 Certificate of A!!:encv. All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
24.5 Licensin!! and Ratin!!. The bonds shall be duly executed by responsible surety companies admitted to do
business in the State of California, licensed or authorized in the jurisdiction in which the project is located to
issue bonds for the limits required by this agreement, listed as approved by the United States Department of
Treasury Circular 570, and whose underwriting limitation is sufficient to issue bonds in the amount required by
this agreement and which also satisfy the requirements stated in Section 995.660 of the Code of Civil
Procedure, except as provided otherwise by laws or regulations, secured through an authorized agent with an
office in California, and have a minimum AM Best rating of "A-".
24.6 Form. All bonds shall be in the form prescribed by City Attorney.
24.7 Insolvencv or Bankruptcv. Ifthe surety on any bond furnished by the Construction Contractor is declared
bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the
Project is located, DIE shall within seven (7) Calendar Days thereafter substitute or require the substitution of
another bond and surety, acceptable to the City.
ARTICLE XXV. INDEMNITY & DUTY TO DEFEND
25.1 Indemnity Defense and Hold Harmless - General ReQuirement. Except for liability for Professional
Services covered under Section 25.2, DIE 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, loss, damage or injury, in law or equity, to property or persons, including wrongful
death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct
of DIE, its officials, officers, employees, agents, and contractors, arising out of or in connection with the
performance of the Defmed 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 acts or omissions of
the City, its agents, officers, or employees which may be in combination with the active or passive negligent
acts or omissions of the DIE, its employees, agents or officers, or any third party.
25.2 Professional Services. For those professionals who are required to be licensed by the state (e.g. architects,
landscape architects, surveyors and engineers) ("Design Professionals"), Design Professionals shall defend,
indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from
any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or
equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating
to any negligence, errors or omissions, recklessness, or willful misconduct of Design Professional, its officials,
officers, employees, agents, DIEs, 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 active or passive negligent acts or omissions of the City, its agents, officers, or employees
which may be in combination with the active or passive negligent acts or omissions of the Design Professional,
its employees, agents or officers, or any third party. The Design Professional's duty to 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 DIE shall keep the Project and Property free of any
mechanic's Hens and immediately secure the release of any stop notices. The DIE 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. DIE shall be responsible for payment of all persons entitled to assert liens and stop notices.
25.4 Indemnification for Hazardous Materials. DIE agrees to defend, indemnify, and hold harmless, the City, its
agents, officers and employees from and against any and all costs, damages, claims, and liabilities, including
reasonable attorney fees, foreseeable or unforeseeable, directly or indirectly, arising from or related to the
Hazardous Materials identified in the Phase I or Phase II Reports, if any, conducted pursuant to Article V.
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DIE's indemnity shall survive the close of escrow. Seller expressly preserves its rights against other parties
and does not release, or waive its rights to contribution against, any other party.
25.5 Costs of Defense and A ward. Included in the obligations in Sections 25.1 through 25.4, above, is the DIB' s
obligation to defend, at DIE'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. D/B shall pay and satisfy any judgment, award or decree that may be
rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all
legal expense and cost incurred by each of them in connection therewith.
25.6 Insurance Proceeds. D/B's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, its directors, officials, officers, employees, agents, and/or volunteers.
25.7 Enforcement Costs. DIE agrees to pay any and all costs City incurs enforcing the indemnity and defense
provisions set forth in this Article XXV.
25.8 Survival. Consultant's obligations under this Article XXV shall survive the termination of this Agreement.
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ARTICLE XXVI. INSURANCE
26.1 General. D/B shall not begin work under this Agreement until it has: (i) obtained, and upon the City's request
provided to the City, insurance certificates reflecting evidence of all insurance required in section 26.2; (ii)
obtained City approval of each company or companies; and (iii) confirmed that all policies contain the specific
provisions required by section 26.4.
26.2 Tvpes of Insurance. At all times during the term of this Agreement, D/B shall maintain insurance coverage as
follows:
26.2.1 Commercial General Liability. Contractor shall provide at its expense a policy or policies of
Commercial General Liability [CGL] Insurance written on an ISO Occurrence fonn CG 00 010798 or
an equivalent fonn providing coverage at least as broad and which shall cover liability arising from
premises and operations, XCD (explosions, underground, and collapse) independent contractors,
products/completed operations, personal injury and advertising injury, bodily injury, property damage,
and liability assumed under an insured's contract (including the tort liability of another assumed in a
business contract). There shall be no endorsement or modification of the CGL Insurance limiting the
scope of coverage for either "insured vs. insured" claims or contractual liability. Contractor shall
maintain the same or equivalent CGL Insurance as described herein for at least ten (l0) years
following substantial completion of the work. All costs of defense shall be outside the policy limits.
The Policy shall provide for coverage in amounts not less than two million dollars ($2,000,000) per
occurrence for Bodily Injury, Personal Injury, or Property Damage. If Commercial General Liability
Insurance or other fonn with a general aggregate limit shall apply separately to this projecUlocation,
the general aggregate limit shall be twice the required occurrence limit.
26.2.2 Commercial Automobile Liability. For all ofD/B's automobiles used in conjunction with the Project
including owned, hired and non-owned automobiles, D/B shall keep in full force and effect, a policy or
policies of Commercial Automobile Liability Insurance written on an ISO fonn CA 00 01 1290 or a
later version of this fonn or equivalent form providing coverage at least as broad in the amount of one
million dollars ($1,000,000) combined single limit per occurrence, covering bodily injury and property
damage for owned, non-owned and hired automobiles ["Any Auto"]. All costs of defense shall be
outside the policy.
26.2.3 Architects and Engineers Professional Liability. For all ofD/B's employees who are subject to this
Agreement, D/B shall keep in full force and effect, or DIE shall require that its architecUengineer(s) of
record keep in full force and effect errors and omissions insurance 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. D/B shall ensure both that (i) this policy retroactive date is on
or before the date of commencement ofthe Project; and (ii) this policy has a reporting period of three
(3) years after the date of completion or tennination of this Agreement. D/B agrees that for the time
period defmed above, there will be no changes or endorsements to the policy that increases the City's
exposure to loss.
26.2.4 Excess Liability. D/B shall provide Excess Liability Insurance affording three million dollars
($3,000,000) [Generally Check with Risk) in excess of General Liability and Employer's Liability
limits afforded on primary policies. The coverage will be subject to the same terms, conditions, and
exclusions found in the primary policies.
26.2.5 Contractors Pollution Liability. If the D/B or its Contractors' Work includes cleanup, removal,
stO'rage, 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.
26.2.5.1 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 insurance shall include Contractual Liability coverage. Such policy shall
be endorsed to specifically provide for Work performed under the Agreement.
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26.2.5.3 The DIE or its Contractors of any tier shall furnish to the City a policy or Certificate of
Contractors Pollution Liability Insurance in which the City, its elected and appointed
officers, employees, and agents, and the D/B are named as additional insureds. The policy or
Certificate must plainly designate the name ofthe Project, name of the Disposal- Site, and
the permits secured for its disposal. This Certificate must be furnished to the City,
evidencing compliance with the outlined requirements, prior to the D/B or Contractor
beginning their Work on the Project. Any failure to furnish this policy or Certificate of
Insurance shall not relieve the DIE or Contractor from their obligations under this Section.
26.2.6 Hazardous Transporters Pollution Liability. If the D/B's or its contractors' Work includes
transportation of hazardous or toxic chemicals, materials, substances or any other pollutants the D/B
or its Contractor of any tier shall provide, at their expense, Transporters Pollution Liability Insurance
in an amount not less than $3,000,000 Combined Single Limit per occurrence/Aggregate for bodily
injury, property damage and remediation.
26.2.6.1 Claims Made policies will include a five (5) year Extended Claims Discovery Period
applicable to this Agreement, if reasonably available.
26.2.6.2 Such policy shall be endorsed to specifically provide coverage for Work performed under
this Agreement. The DIE or its contractors of any tier shall furnish 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 D/B, and any upper tiered
contractor are named additional insureds.
26.2.6.3 The policy or Certificate must plainly designate the name of the Project, name ofthe
Disposal Site, and the permits secured for its disposal. This Certificate must be furnished to
the City, evidencing compliance with the outlined requirements, prior to the D/B or
Contractor beginning their Work on the Project. Any failure to furnish this policy or
Certificate of Insurance shall not relieve the D/B or Contractor from their obligations under
this Section.
26.2. 7 Worker's Compensation. For all of DIE's employees who are subject to this Agreement and to the
extent required by the State of California, D/B shall keep in full force and effect, a Workers'
Compensation Insurance and Employers' Liability Insurance to protect DIE 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 D/B 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 employee, and a one million dollars ($1,000,000) for Bodily Injury by
Disease policy limit.
26.2.7.1 Prior to the execution of the Agreement by the City, the D/B shall file the following signed
certification:
"I am aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for worker's compensation or to undertake self-
insurance, in accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of the Contract."
26.2.8 Builder's Risk. To the extent commercially available, the City shall provide a policy of "all risk"
Builders Risk Insurance. D/B shall add City and its respective elected officials, officers, employees,
agents, and representatives to the policy as loss payees, to the extent such insurance is commercially
available. Coverage will be provided for the Replacement Cost of Materials, Equipment and Fixtures
destined to become a permanent part of the structure, and coverage will include Property in Transit and
Property in Off site Storage. D/B shall also add its construction contractor, and the construction
contractor's subcontractors to the policy as additional named insureds or loss payees, to the extent their
interest may appear. The limit for this policy shall be a minimum of$ [INSERT] (GMP dollar amount
to reflect project soft and hard costs). It shall be D/B's responsibility to bear the expense of any
deductible. The Builders Risk coverage shall expire at the time such insured property is occupied by
City, or a Notice of Completion is filed, whichever occurs first. Contractor and its Subcontractors will
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be solely responsible for any loss or damage to their personal property, including contractor's tools and
equipment owned, used, leased or rented by the Contractor or Subcontractor.
26.3 Ratin!! 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] with a current AM BEST rating of no less than
A:X.
26.4 Endorsements Required. Each policy required under Article XXVI, section 26.2 of this Agreement shall
expressly provide, and an endorsement shall be submitted to the City, that:
26.4.1 Additional Insureds. Except as to Architects and/or Engineers professional liability insurance and
Workers Compensation, the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives shall be named as additional insureds.
26.4.1.1 Commercial General Liability. The policy or policies must be endorsed to include as an
Additional Insured the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives. Liability Additional Insured Endorsement must be
provided on ISO form CG 2010 (11/85) or equivalent, specifically, coverage afforded City
must be Primary and must not exclude Completed Operations. The coverage for Projects for
which the Engineer's Estimate is one million dollars ($1,000,000) or more shall include
liability arising out of: (i) Ongoing operations performed D/B or on D/B's behalf, (ii) D/B's
products, (iii) D/B's work, including but not limited to completed operations performed by
D/B or on D/B's behalf, or (iv) premises owned, leased, controlled, or used by D/B; the
coverage for Projects for which the Engineer's Estimate is less than one million dollars
($1,000,000) shall include liability arising out of: (i) Ongoing operations performed by D/B
or on D/B's behalf, (ii) D/B's products, work, including but not limited to completed
operations performed by D/B or on D/B's behalf, or (iii) premises owned, leased, controlled,
or used by you; Except that in connection with, collateral to, or affecting any construction
contract to which the provisions of subdivision (b) of Section 2782 of the California Civil
Code apply, these endorsements shall not provide any duty of indemnity coverage for the
active negligence of the City of Chula Vista and its respective elected officials, officers,
employees, agents, and representatives in any case where an agreement to indemnify the City
of Chula Vista and its respective elected officials, officers, employees, agents, and
representatives would be invalid under subdivision (b) of Section 2782 of the California
Civil Code. In any case where a claim or loss encompasses the negligence of the Insured and
the active negligence of the City of City of Chula Vista and its respective elected officials,
officers, employees, agents, and representatives that is not covered because of California
Insurance Code Section 11580.04, the 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 California 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 01 1290 or a later version of this
form or equivalent form providing coverage at least as broad, the policy or policies must be
endorsed to include as an Additional Insured the City of Chula Vista and its respective elected
officials, officers, employees, agents, and representatives, with respect to liability arising out
of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; Except
that in connection with, collateral to, or affecting any construction contract to which the
provisions of subdivision (b) of Section 2782 of the California Civil Code apply, this
endorsement shall not provide any duty of indemnity coverage for the active negligence of the
City of Chula Vista and its respective elected officials, officers, employees, agents, and
representatives in any case where an agreement to indemnify the City of Chula Vista and its
respective elected officials, officers, employees, agents, and representatives would be invalid
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under subdivision (b) of Section 2782 of the California Civil Code. In any case where a claim
or loss encompasses the negligence of the Insured and the active negligence ofthe 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 California
Insurance Code Section 11580.04.
26.4.2 Primary and Non-Contributory. The policies are primary and non-contributing to any insurance or
self-insurance that may be carried by the City of Chula Vista, its elected officials, officers, employees,
agents, and representatives with respect to operations, including the completed operations if
appropriate, of the Named Insured. Any insurance maintained by the City of Chula Vista and its
elected officials, officers, employees, agents, and representatives shall be in excess of DIE's insurance
and shall not contribute to it.
26.4.3 Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City
for each required policy providing coverage for the term required by this Agreement.
26.4.4 Project General Aggregate Limit. The CGL policy or policies must be endorsed to provide a
Designated Construction Project General Aggregate Limit that will apply only to the Work performed
under this Agreement. Claims payments not arising from the Work shall not reduce the Designated
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 Notice. Except as provided for under California law, the policies cannot be canceled, non-
renewed or materially changed except after thirty (30) Calendar Days prior written notice by DIE 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 (10) Calendar 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. DIE may obtain additional insurance not required by this Agreement.
26.4.7 Prior to Starting Work. Before performing any work, DIE shall provide the City with all Certificates
of Insurance accompanied by all endorsements.
26.5 Subcontractors. All coverages for subcontractors or subconsultants shall be subject to all of the requirements
stated herein. Subcontractors and Subconsultants shall be protected against risk ofloss by maintaining
insurance in the categories and at the limits required herein. Subcontractors and Subconsultants shall name
City and DIE as additional insureds under its policies.
26.6 Obli!:!ation to Provide Documents. The DIE shall provide copies of documents including but not limited to
certificates of insurance and endorsements, and shall furnish renewal documentation prior to expiration of
insurance. Each required document shall be signed by the insurer or a person authorized by the insurer to bind
coverage on its behalf. The City reserves the right to require complete, certified copies of all insurance policies
required herein.
26.6.1 Cooperation. The DIE 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 DIE.
26.7 Deductibles/Self Insured Retentions. All deductibles and self-insurance retentions on any policy shall be the
responsibility of DIE. Deductibles and self-insurance retentions shall be disclosed to and approved by the City
at the time the evidence of insurance is provided. At the option of the City, either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and
volunteers; or the DIE shall provide a financial guarantee satisfactory to the City guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
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26.8 Policy Chanlles. DIE shall not modify any policy or endorsement thereto which increases the City's exposure
to loss for the duration of this Agreement.
26.9 Reservation of Rillhts. The City reserves the right, from time to time, to review the Contractor's insurance
coverage, limits, deductible and self-insured retentions to determine if they are acceptable to the City. The City
will reimburse the Contractor for the cost of the additional premium for any coverage requested by the City in
excess of that required by this Agreement without overhead, profit, or any other markup.
26.10 Not a Limitation of Other Oblillations. Insurance provisions under this section shall not be construed to
limit the DIE's obligations under this Agreement, including Indemnity.
26.11 Material Breach. Failure to maintain, renew, or provide evidence of renewal during the term of this
Agreement may be treated by the City as a material breach of contract.
ARTICLE XXVII. TERMINATION/SUSPENSION OF WORK
27.1 Suspension of Work for Archaeolollical and/or Paleontolollical Discoveries. If a discovery is made of an
archaeological or paleontological interest, D/B shall immediately cease operations in the area of the discovery
and shall not continue until ordered by City. When resumed, operations within the area of the discovery shall
be as directed by City.
27.1.1 Discoveries which may be encountered may include, but are not be limited to, dwelling sites, stone
implements or other artifacts, animal bones, human bones, fossils or any item with cultural
significance.
27.1.2 DIB shall be entitled to an extension oftime and compensation in accordance with the provisions of
this Agreement.
27.2 Termination of AHeement by City for Cause. If, through any cause, DIE shall fail to fulfill in a timely and
proper manner DIE's obligations under this Agreement, or if DIE 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 DIE of such termination and specifying the effective date thereof at least five (5)
Calendar Days before the effective date of such termination.
27.3 Termination or Suspension for Convenience bv Citv. City may terminate or suspend this Agreement at any
time and for any reason, by giving specific written notice to DIE of such termination or suspension and
specifying the effective date thereof, at least seven (7) Calendar Days before the effective date of such
suspension or termination. In the event of an emergency, advance notice shall not be required under this
prOVlSlon.
27.4 Termination of Allreement by D/B. DIE may terminate the Agreement upon ten (10) days written notice to
City, whenever either of the following occur:
27.4.1 Project Suspension. If the Project has been suspended under the provisions of Section 27.1 or 27.3, for
more than ninety (90) consecutive days through no fault or negligence ofDIB, and notice to resume
Work or to terminate the Agreement has not been received from City within this time period; or,
27.4.2 Failure to Pay Amounts Due and Not in Dispute. If City fails to pay DIE any monies due and not in
dispute in accordance with the terms of this Agreement within ninety (90) Calendar Days, plus the ten
(10) Calendar Days afforded the City to remedy the failure, after presentation to City by DIE of a
request therefore.
27.5 D/B Action Required. Upon receipt of the Notice of Termination, DIE shall take any and all action that may
be necessary, or that the City Manager may direct, for the protection and preservation of the property related to
this Agreement that is in the possession of D/B and in which City has or may acquire an interest.
27.6 Possession, Ownership, and Control of Documents. In the event that this Agreement is terminated in
accordance with Sections 27.2 through 27.4, all finished or un[mished documents, data, studies, drawings,
maps, plans, specifications, reports and other materials prepared by DIE, or any of its agents, Design
Consultants or Subcontractors, shall, at the option of the City, become the sole and exclusive property ofthe
City.
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27.7 City Ri!!:ht to Complete Proiect. In the event that the Agreement is terminated pursuant to this Article
XXVII, City may take possession of the Project and may complete the Project by whatever method or means
City may select.
27.7.1 Excess Costs. In the event that the costs to complete the Project exceed the balance offunds, which
had the Project been completed in accordance with this Agreement would have been due, the DIE shall
be liable for and pay such excess costs to the City.
27.8 Payment to D/B Due to Termination. Upon termination, D/B shall be entitled to receive just and equitable
compensation for satisfactory Work completed. In no event shall such amount exceed the total dollar amount
authorized by City, reduced by the amount of payments previously made and any deductions 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 ofthe D/B Fixed Fee (overhead and profit) based on the percentage of Work completed on
the Project; however, ifD/B would have sustained a loss on the entire Agreement had it been
completed, City shall allow no profit under this section and shall reduce the amount payable to reflect
the indicated rate of loss.
27.8.4 DIE and Design Subcontractor services through the date of termination based on actual time spent as
documented on timecards. Expenses shall be paid based on invoice and receipts provided by D/B.
27.8.5 Any amounts for Work or Services agreed to by the City Manager and DIE, but without duplication of
any amounts agreed to above.
27.8.6 Reasonable demobilization costs, to the effective date of such termination.
27.8.7 If termination occurs during Phase I, II, or III, D/B shall only be entitled to the Fees for Phases I, II, or
III, associated therewith, or the respective portion thereof
27.9 Lost Profits. Under no circumstances will D/B be entitled to any consideration for lost profit or lost
opportunity costs.
27.10Deductions. The amount due D/B shall be reduced by amounts including the following:
27.10.1 Any claim that City has against D/B under this Agreement.
27.10.2 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by DIE or
sold under the provisions of this clause and not recovered by or credited to City.
27.10.3 Damages caused by D/B's breach, including Excess Costs pursuant to Section 27.7.1.
27.10.4 Property Destroyed, Lost, Stolen or Damaged. Except to the extent that City expressly assumed the
risk of loss, the City Manager shall exclude from the amounts payable to DIE, 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.
27.1IDisputes. IfD/B does not agree that the amount determined by the City Manager is fair and reasonable. D/B
shall within thirty (30) Calendar Days of receipt of payment, shall gives notice of such disagreement to City.
The dispute shall be resolved in the manner provide for in Section 22.6.
27.12 Waiver of Claims. In the event of termination under this Article XXVI, failure ofD/B to dispute amounts
paid in the manner and within the timeframe provided in Section 27.11 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. D/B hereby expressly
acknowledges and agrees that such claims shall be waived as herein provided.
27. I 3 Ri!!:hts of City Preserved. In the event that the Agreement has been terminated, the termination shall not
affect any rights or remedies of City against D/B then existing or which may thereafter accrue. Any retention
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or payment of moneys due D/B by City will not release DIE from liability. It is agreed that termination
hereafter will not in any way release, waiver, or abridge any rights the City has against D/B's performance
bond surety.
ARTICLE XXVID. RECORDS AND AUDITS
28.1 Record System - Reimburseable Costs. DIE shall develop and maintain an accurate system for tracking all
Reimbursable Costs. Utilizing this system, DIE shall include with each month payment application an
itemization of all such Reimbursable Costs actually incurred by DIE, during the previous month. If requested
by the City, DIE shall provide all backup documentation supporting such Reimbursable Costs.
28.2 Record System - Hard Construction Costs. DIE shall develop and maintain an accurate system for tracking
all Hard Construction Costs it incurs on the Project. Utilizing this system, DIE shall include with each
monthly application for payment an itemization of all Hard Construction Costs actually incurred by DIE during
the previous month.
28.3 Retention of Records. DIE, contractors, and subcontractors shall maintain data and records related to this
Agreement for a period of not less than three (3) years following receipt of final payment under this Agreement
or three (3) years following [mal settlement associated with the termination of this Agreement pursuant to
Article XXVII, above.
28.4 Audit of Records. At any time during normal business hours, during the term of the contract plus and record
retention period and as often as the City deems necessary, D/B and any or all Contractors or subcontractors
shall make available to the City for examination at reasonable locations within the CitylCounty of San Diego
all of the data and records with respect to all matters covered by this Agreement. DIE and all contractors or
subcontractors will permit the City to make audits of all invoices, materials, payrolls, records of personnel, and
other data and media relating to all matters covered by this Agreement. Ifrecords are not made available within
the CitylCounty of San Diego, then DIE shall pay all the City's travel related costs to audit the records
associated with this Agreement at the location where the records are maintained. Such costs will not be
Reimbursable Costs.
28.4.1 Costs. DIE and DIE's agents shall allow City to audit and examine books, records, documents, and any
and all evidence and accounting procedures and practices that City determines are necessary to
discover and verify all costs of whatever nature, which are claimed to have been incurred, anticipated
to be incurred, or for which a claim for additional compensation or for Extra Work have been
submitted under this Agreement.
ARTICLE XXIX. NOTICES
29.1 Writin!!. Any demand upon or notice required or permitted to be given by one Party to the other Party shall be
in writing.
29.2 Effective Date. Except in relation to Change Orders as provided for in section 29.4 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 fee prepaid as
appropriate, or (iv) upon successful transmission of facsimile.
29.3 Recipients. Except in relation to Change Orders, all demands or notices required or permitted to be given
shall be senUo all of the following:
29.3.1
29.3.2
29.3.3
29.4 Recipients of Chan!!e Orders.
29.4.1
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29.4.2
29.4.3
29.5 Chan!!:e of Address(es). Notice of change of address shall be given in the manner set forth in this Article.
ARTICLE XXX. MISCELLANEOUS PROVISIONS
30.1 Headin!!:s. All article headings are for convenience only and shall not affect the interpretation of this
Agreement.
30.2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter gender includes the
masculine and the feminine genders and (ii) the singular number includes the plural number.
30.3 Reference to Para!!:raphs. 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 oftrus 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 Inte!!:ration. 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 Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not
render any any other provision of this Agreement unenforceable, invalid, or illegal.
30.8 Dramn!!: Ambi!!:uities. The Parties agree that they are aware that they have the right to be advised by
counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether
or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility
of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the
extent to which each Party participated in the drafting of the Agreement.
30.9 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this
Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an
applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule,
regulation, order, or code shall control. Varying degrees of stringency among the main body of this
Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most
stringent requirement shall control. Each Party shall notify the other immediately upon the identification of
any apparent conflict or inconsistency concerning this Agreement.
30.10 Prompt Performance. Time is of the essence of each covenant and condition set forth in this Agreement.
30.11 Good Faith Performance. The parties shall cooperate with each other in good faith, and assist each other in
the performance of the provisions of this Agreement.
30.12 Further Assurances. City and DIE each agree to execute and deliver such additional documents as may be
required to effectuate the purposes of this Agreement.
30.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by this reference:
Exhibit A
Exhibit B
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Exhibit C
Exhibit D
Exhibit E
Exhibit F
30.14 Compliance with Controllin2: Law. The Consultant 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 if stated in the RFP,
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 Attornev Fees. The venue for any suit or proceeding concerning this Agreement,
the interpretation or application of any of its terms, or any related disputes shall be in the County of San
Diego, State of California. The prevailing Party in any such suit or proceeding shall be entitled to a
reasonable award of attorney fees in addition to any other award made in such suit or proceeding.
30.16 Municipal Powers. Nothing contained in this Agreement shall be construed as a limitation upon the powers
of the City as a chartered city of the State of California.
30.17 Administrative Claims Reauirements and Procedures. No suit or arbitration shall be brought arising out
of this agreement, against the City unless a claim has fIrst been presented in writing and fIled with the City
and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 ofthe 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 Agreement.
30.18 Third Party Relationships. Nothing in this Agreement shall create a contractual relationship between City
and any third party; however, the Parties understand and agree that City, to the extent permitted by law, is an
intended third party benefIciary of all DIE's contracts, purchase orders and other contracts between DIE and
third party services. DIE shall incorporate this provision into its contracts, supply agreements and purchase
orders.
30.19 Non-Asshmment. The DIB shall not assign the obligations under this Agreement, whether by express
assignment or by sale of the company, nor any monies due or to become due, without the City's prior written
approval. Any assignment in violation of this paragraph shall constitute a Default and is grounds for
immediate termination of this Agreement, at the sole discretion of the City. In no event shall any putative
assignment create a contractual relationship between the City and any putative assignee.
30.20 Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in
force and effect whether or 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 DIE, any consultants, contractors, subcontractors, and any other individuals
employed by the DIB 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 DIB concerning the details of performing
the Services under this Agreement, or to exercise any control over such performance, shall mean only that the
DIE shall follow the direction of the City concerning the end results of the performance.
30.22 Approval. Where the consent or approval of a party is required or necessary under this Agreement, the
consent or approval shall not be unreasonably withheld.
30.23 No Waiver. No failure 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
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Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to
any existing or subsequent breach.
30.24 Si!!nin!! Authoritv. 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 ofthe
corporation, partnership, joint venture, or entity and agrees to hold the other Party or Parties hereto harmless
if it is later determined that such authority does not exist.
IN WITNESS WHEREOF, this Agreement the City ofChula 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.
, 2010 and this date shall constitute the effective date of this
CITY OF CHULA VISTA, A Municipal Corporation
[INSERT COMPANY]
By:
CHERYL COX, Mayor
By:
[NAME OF AUTHORlZED REPRESENTATIVE}
Attest:
Approved as to form and legality:
DONNA NORRlS, City Clerk
By:
BART MEISFELD, City Attorney
Dated
,2010
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