REQUEST FOR PROPOSAL
DESIGN-BUILD
Crew Quarters Building (CQB)
February 25, 2025
Due Date (Technical Proposal): May 2, 2025, at 2:00 p.m. (Pacific) Due Date (Price Proposal): May 9, 2025, at 2:00 p.m . (Pacific) Submit Proposals to: Electronic Proposals shall be submitted using the City’s OpenGov site. OpenGov login information (username and password) will be issued confidentially to each Proposer’s point of contact under separate cover.
Link for the RFP is located on: https://procurement.opengov.com/portal/anaheim/projects/149555 City Contact Information: Annie Singhal, Constructi on Contract Administrator Construction Services Division, Public Works Department [email protected] / (714) 765-5272
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
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City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
Table of Contents
List of Acronyms ................................................................................................................................................................... 1
List of Defined Terms ........................................................................................................................................................... 1
1. Introduction ...................................................................................................................................................................... 3
1.1 RFP Administrative Information ................... ...................................................................................... 3
1.2 General Project Introduction ..................... ......................................................................................... 3
1.3 Project Goals .................................... ................................................................................................. 4
1.4 Target Price and Procurement ..................... ...................................................................................... 4
2. Summary of Respondent Responsibilities ...................................................................................................................... 6
2.1 Reference Documents .............................. ......................................................................................... 6
2.2 Existing Site Conditions and Examination of DB Agr eement Documents ........................................... 6
3. Procurement Process ...................................................................................................................................................... 7
3.1 Procurement Process Overview and Schedule .... .............................................................................. 7
3.2 Respondent Team Requirements ..................... ................................................................................. 8
3.3 Communications Protocols for Questions and RFIs/Cl arifications...................................................... 8
3.4 RFP Addenda ...................................... .............................................................................................. 9
3.5 Public Records and Firm Proprietary Information .. ............................................................................ 9
3.6 Site Access ...................................... ................................................................................................ 10
3.7 Confidential One-on-One Meeting(s) ............... ................................................................................ 10
3.8 Proposal Evaluation Process ...................... ..................................................................................... 11
3.9 Interviews ....................................... ................................................................................................. 11
3.10 Contract Negotiations ............................ .......................................................................................... 12
3.11 Respondent Expenses and Stipends ................. .............................................................................. 12
3.12 Appeals/Protests ................................. ............................................................................................ 12
3.13 Miscellaneous..................................... ............................................................................................. 13
4. Instructions to Bidders and Proposal Submittal Requirements .....................................................................................14
4.1 Submittal Deadline and Location .................. ................................................................................... 14
4.2 Proposal Size Limitations ........................ ........................................................................................ 14
4.3 Withdrawals / Resubmittals of Proposals .......... ............................................................................... 14
4.4 Proposals: Required Sections and Section Weighting ..................................................................... 14
4.5 Evaluation Methodology ........................... ....................................................................................... 15
4.6 Required Proposal Organization, Contents, and Eval uation Criteria ................................................ 16
5. Design-Build Agreement and Commercial Requirements Summary ............................................................................25
5.1 General Overview ................................. ........................................................................................... 25
5.2 Contract Security ................................ ............................................................................................. 25
5.3 Required Insurance ............................... .......................................................................................... 25
5.4 Other Project Requirements ....................... ..................................................................................... 25 Attachment A: Required Forms ..........................................................................................................................................27 Building Program ........................................................................................................................................... 29 Alternates, Project Enhancements, and Added Value Matrix ......................................................................... 31 Non-Collusion Affidavit .................................................................................................................................. 32 Designation of Subcontractors ...................................................................................................................... 33 Equal Employment Opportunity Certificates of Compliance ........................................................................... 34 Letter of Assent ............................................................................................................................................. 36 Certification of Proposal ................................................................................................................................ 37 Opinion of Cost ............................................................................................................................................. 43 Bid Bond ....................................................................................................................................................... 47 City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
Attachment B: Draft Design-Build Agreement and General Conditions .......................................................... 49 Appendix 1: Basis of Design (BOD) .................................................................... ....................................... A1-1 Introduction ......................................................................................... ................................................... ... A1-1
1.1 Site Civil and Exterior Design Criteria ....... ................................................... ................................ A1-2
1.2 Landscape Design Criteria ..................... ................................................... .................................. A1-5
1.3 Architecture and Interior Design Criteria ..... ................................................... .............................. A1-6
1.4 Acoustical .................................... ................................................... ............................................. A1-8
1.5 Structural Design Criteria .................... ................................................... ..................................... A1-8
1.6 Mechanical Systems............................. ................................................... .................................... A1-8
1.7 Plumbing Systems .............................. ................................................... ...................................... A1-8
1.8 Electrical and Low Voltage..................... ................................................... ................................... A1-9
1.9 Security and Communications Systems............ ................................................... ...................... A1-10
1.10 IT and AV Systems ............................ ................................................... ..................................... A1-10
1.11 Fire Alarm and Fire Protection Systems........ ................................................... .......................... A1-16
1.12 Energy Efficiency and Sustainability Criteria ................................................... ........................... A1-17
1.13 Photo Voltaic (PV) ........................... ................................................... ....................................... A1-17
1.14 FF&E ......................................... ................................................... ............................................. A1-18
1.15 Building Program ............................. ................................................... ....................................... A1-18
1.16 Adjacency Diagram ............................ ................................................... .................................... A1-20 Appendix 2. Reference Documents ................................................................................................................................ A2-1
2.1 Purpose .......................................... ................................................... .......................................... A2-1
2.2 Documents Made Available to DBE .................. ................................................... ........................ A2-1
2.3 Proposer Reliance on City Provided Documents ..... ................................................... ................. A2-2 Appendix 3. Minimum Technical Requirements .............................................................................................................. A3-1
3.1 Purpose and Applicability ........................ ................................................... ................................. A3-1
3.2 Codes, Standards and Guidelines .................. ................................................... .......................... A3-1
3.3 General Project Objectives ....................... ................................................... ................................ A3-3
3.4 Utility Service .................................. ................................................... .......................................... A3-3
3.5 Other Design Requirements ........................ ................................................... ............................. A3-4
3.6 Construction Requirements ........................ ................................................... .............................. A3-5 Appendix 4. Submittals and Design Process.................................................................................................................. A4-1
4.1 Purpose .......................................... ................................................... .......................................... A4-1
4.2 Project Controls (PMIS, Communication Plan, Schedu le, SOV) ............................................... A4-1
4.3 Design Submittals, Workshops and Technical Reviews ............................................................... A4-2
4.4 Permits Submittals and Reviews ................... ................................................... ........................... A4-4
4.5 Construction Submittals and Reviews .............. ................................................... ........................ A4-4
4.6 Submittal Schedule and Review Times ........... ................................................... .......................... A4-5 Appendix 5. Permits and Approvals ................................................................................................................................ A5-1
5.1 Purpose .......................................... ................................................... .......................................... A5-1
5.2 Overall Responsibility of the DBE for Obtaining Pe rmits and Approvals....................................... A5-1
5.3 COA Support for DBE’s Permitting Efforts ......... ................................................... ....................... A5-1
5.4 Future Regulatory Changes ........................ ................................................... .............................. A5-1
5.5 DBE’s Permit Acquisition Plan .................... ................................................... .............................. A5-1
5.6 Project Permits and Approvals .................... ................................................... ............................. A5-2
Non-disclosure agreement (DBE to sign and return)
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
1 List of Acronyms
APU Anaheim Public Utilities PW Public Works
AOR Architect of Record RFC Request for Clarification
COA City of Anaheim, California RFI Request for Information CWA Community Workforce Agreement RFQ Request for Qualifications DB Design Build RFP Request for Proposal
DBE Design-Build-Entity (inclusive of all
members)
SOQ Statement of Qualifications
List of Defined Terms
Any capitalized terms not defined in this below or other sections in this Request for Proposal (RFP) shall have the meaning ascribed to them in Chapter 10.06 of the Anaheim Municipal Code.
Basis of Design (BOD) – Project
Design Criteria. The Basis of Design
includes project design criteria specified
as requirements that must be met by
the Project delivered by the DBE.
Contract Documents. The Design-Build
Agreement, including all Appendices,
amendments, and attachments. Described in
Article 1 of the Agreement.
Design-Build (DB). The fixed-price, single contract
procurement and delivery methodology used for
this project is under the auspices of Anaheim
Municipal Code 10.06.
Design-Build Agreement (DB Agreement, DB
Contract, Contract). Agreement to be awarded by
the City Council to the Successful Proposer for the
Project.
Design-Build-Entity (DBE). As defined in Chapter
10.06 and referred herein as DBE.
Architect of Record (AOR). The individual(s) in
responsible charge of the design. The Engineer of
Record shall be a licensed professional engineer in
the State of California.
Evaluation Committee. The City has established
an Evaluation Committee responsible for
evaluating the Proposal for this RFP and
recommending a Selected Respondent for the
Project.
Final Completion. The stage of performance when
all Work has been completed in accordance with the
DB Agreement including, without limitation, all
correction or completion items noted in the
Certificate of Substantial Completion.
DBE members. Firms fulfilling the key roles
identified in Respondent’s Proposal and committed
to work on the Project if Respondent is selected as
the Successful Respondent. At a minimum,
members of the DBE shall include the Design-
Builder (General Contractor), Design Architect, and
may also include other subconsultants and
subcontractors that the DBE will use to deliver the
Project. The Lead Contractor shall hold a current
and active General Building–B California
Contractor’s License. The Lead Architect (AOR)
shall hold a current and active license issued by the
California Architects Board.
Design-Build Period. The period from the Notice to
Proceed to Final Completion.
Key Personnel. Individuals fulfilling the roles
identified in Respondent’s Proposal and committed
to work on the Project. At a minimum, Key Personnel
for the Design-Builder shall include, but are not
limited to, Project Executive,
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
2 Construction Project Manager,
Construction Superintendent, and
Construction QA/QC Manager. Key
Personnel for the Design-Build Architect shall
include, but are not limited to, Principal-in-
Charge, Design Manager, Project Manager,
and Design QA/QC Manager.
Respondents may identify other individuals who will
play key roles in the DBE and shall add them to the
list of Key Personnel.
Owner or City. City of Anaheim, California.
Performance-Based Requirements. Criteria
(in Owner’s Project Criteria attached to this RFP)
that define measurable project performance criteria
and operational objectives. These criteria include
technical requirements, standard construction
specifications, and quality standards.
Price Proposal. Proposed price for completion of
the Project, which is known as the Price Proposal
submitted after the Technical Proposal for the
Project.
Project. The design and construction of the
Sustainability Education Center, as described in
this RFP and Design-Build Agreement.
Proposal. A response to the City’s RFP submitted
by a Respondent for the Project.
Request for Proposal (RFP). This solicitation
document comprises the second step of the two-
step procurement process for the Project.
Request for Qualifications (RFQ). The first part
of the two-step procurement process to select the
DBE for the Project.
Respondent. A DBE who has submitted a
response to this solicitation.
Selected Respondent. The Respondent that is
determined by the Anaheim City Council to provide
the most advantageous Proposal to the City based
on RFP evaluation.
Statement of Qualifications (SOQ). The
documents submitted by a Respondent in
accordance with the requirements of the RFQ.
Substantial Completion. Demonstration by the
DBE that all preconditions for achieving
Substantial Completion as set forth in the DB
Agreement.
Work. All of the administrative, design, engineering,
professional, manufacturing, supply, installation,
construction, supervision, management, testing,
verification, labor, materials, equipment,
maintenance, documentation and other duties and
services to be furnished and provided by Design-
Builder as required by the DB Agreement, including
all efforts necessary and appropriate to achieve
Final Completion of the entire Project, except for
those efforts which the DB Agreement specify will
be performed by the City or other Persons.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
3 1. Introduction
1.1 RFP Administrative Information
RFP Title: Crew Quarters Building Request for Proposal
Technical Proposal
Submittal Due Date: May 2, 2025, at 2:00 p.m. Pacific Time Price Proposal
Submittal Due Date: May 9, 2025, at 2:00 p.m. Pacific Time City Contact Information: Annie Singhal
Construction Contract Administrator
Anaheim City Hall – Public Works
200 S. Anaheim Blvd., 2nd Floor, Anaheim, CA 92805
Attn: Annie Singhal, Mail Stop: 276
Email: [email protected]
(714) 765-5272
Electronic Proposal Submittal Requirements
Submit Electronic
Technical Proposals to:
City of Anaheim OpenGov Site
Submit Electronic
Price Proposals to:
Email to City Contact above
1.2 General Project Introduction
1.2.1 Procurement Update
In partnership with the Public Works Department, this Request for Proposal (RFP) for the Crew Quarters Building project is being issued by Anaheim Public Utilities (APU) to the Most Qualified Respondents based on the outcome of the SOQ evaluation process completed February 21, 2025. No other firm than the Most Qualified Respondents listed below are eligible to submit Proposals under this RFP solicitation.
The Most Qualified Respondents are (in alphabetical order):
• Team A: Balfour Beatty & Miller Hunt
• Team B: PCL & Gensler
• Team C: Swinerton & LPA
COA encourages Respondents to provide the best solution for the Project within the boundaries of COA’s requirements as described in these RFP documents. COA expects to enter a Design-Build (DB) Agreement with a Design-Build Entity (DBE), selected from the Respondents, for the performance of the Agreement.
Submitted Proposals shall conform to the requirements of this RFP and shall be signed by the appropriately authorized official with the authority to commit Respondents to perform the services defined in the DB Agreement. By submitting a Proposal, a Respondent agrees, if selected, to enter good faith negotiations leading to execution of a DB Agreement based on the provided DB Agreement and information submitted with the selected Proposal. The criteria by which City will evaluate Proposals are set forth in this RFP.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
4 1.2.2 Introduction to Anaheim Public Utilities
Anaheim Public Utilities (APU) is comprised of professionals that serve a residential population of 350,000 and more than 20 million annual visitors to the City’s world class entertainment venues including the Anaheim Convention Center, Honda Center, City National Grove of Anaheim, the Anaheim Resort including Disneyland Resort and Anaheim Garden Walk, and Angel Stadium of Anaheim.
Anaheim Public Utilities (APU) plans to complete the construction of a new Crew Quarter’s Building (CQB) at APU’s Edward’s Utility Complex (EUC) on Vermont Ave. APU intends to use this building as the new main field office for APU’s Electric and Water field staff to be able to meet the workspace demands with the current work functions. It will serve as a multi-purpose building with office spaces, locker rooms, storage, and assembly spaces. APU has an existing space plan that APU staff and the Owner Advisor (OA) will update during the design-build procurement period.
The CQB will be constructed in the northern area of the existing EUC near South Street. The EUC is approximately seventeen acres and currently consists of the existing head office building, several warehouses, a substation, the City’s Emergency Operation Center, miscellaneous storage areas/lots, and parking areas.
Currently, APU’s Electric and Water field crews, APU Environmental Services staff, and field administrative support groups are at the main office building. APU anticipates the new CQB will be about 25,000 SF; however, the final size and layout of the building will be based on ultimate space planning, determined during the initial Project stages. All future City-owned projects over 10,000 square feet in building area that enter the design and construction phase shall meet U.S. Green Building Council’s LEED registration and certification, provided that the project is cost-effective over the life of the building. The CQB should be assumed to be LEED certified unless waived by the City Council, when the goals of LEED certification are met or exceeded.
1.2.3 Project Scope
This RFP solicits Proposals from DBEs to deliver a scope of services described in this RFP, DB Agreement and Appendices, and includes design, permitting, procurement, development of O&M manuals, construction, and commissioning. Refer to the appendices for more details regarding the project overview and scope, Basis of Design (BOD), and other requirements.
1.3 Project Goals
The intent of this solicitation is to produce a highly sustainable completed facility of commercial quality which will operate efficiently and without unreasonable architectural, structural, mechanical, and electrical failure or deficiency throughout the expected life of the facilities. The design life required for the facilities shall be at least 50 years.
COA intends to achieve the optimum value for the budget available within the desired schedule. The DBE that provides the best value as described in this RFP will be selected. COA defines value in terms of exceeding minimum program requirements, excellence of design, durability of materials, and optimized life- cycle energy and maintenance costs, within the available budget as outlined in this RFP.
1.4 Target Price and Procurement
In addition to a fully furnished and functional facility, proposals shall include all costs for labor, materials, supervision, general conditions, mobilization, special inspections, and any/all fees, including all applicable design, regulatory compliance applications and permits.
The Target Price (TP) is currently $28,000,000. The TP represents the current total available funding for contract award of the base scope of work. The base scope of work is defined in the Basis of Design (BOD).
Unless otherwise prescribed as an “Alternate,” all work defined in this RFP and its attachments, and appendices including the BOD shall be considered the base scope of work.
The GMP shall include all the cost detail and breakdown as defined in the Price Proposal form. The Price City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
5 Proposal must represent and include all items of the Technical Proposal and Performance Criteria and remain valid for 180 calendar days after the proposal due date and time.
The design and construction of the facility shall be completed in a Guaranteed Maximum Price (GMP) contract and include all requirements set forth in this RFP. This is noted to be constructed as a stipulated sum subject to change, but rather a true guaranteed not-to-exceed maximum cost.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
6 2. Summary of Respondent Responsibilities
2.1 Reference Documents
Links to reference documents are issued as an Appendix.
2.2 Existing Site Conditions and Examination of DB Agreement Documents
2.2.1 Existing Site Conditions
Certain City-issue information is issued with this RFP and includes to an extent a site survey showing site boundaries and access, existing utilities, land use constraints, and geotechnical information.
2.2.2 Underground Facilities
Information and data with respect to underground facilities at the site is the responsibility of Proposers. It shall be the responsibility of the DBE to verify the substructure locations during the design phase. Proposers should complete the Non-disclosure agreement (NDA) in the RFP documents for future release of City of Anaheim documents.
2.2.3 Familiarization with the Scope of Work
Before submitting a Proposal, each Respondent shall familiarize itself with the scope of work, laws, regulations, and other factors affecting DB Agreement performance. The Respondent shall be responsible for fully understanding the requirements of the subsequent DB Agreement and otherwise satisfy itself as to the expense and difficulties accompanying the fulfillment of DB Agreement requirements. The submission of a Proposal will constitute a representation of compliance by the Respondent. There will be no subsequent financial adjustment, other than that provided by the subsequent DB Agreement, for lack of such familiarization.
2.2.4 Permitting and Approvals
This RFP includes a document titled, “Permits and Approvals” and defines the allocation of responsibilities between COA and the DBE for obtaining various permits and approvals. Respondents should note that in certain circumstances, the DBE shall be responsible for obtaining permits and approvals from other agencies as applicable on behalf of COA since the permit or approval will be issued to the City. This does not relieve the DBE of the responsibility for obtaining such permits and approvals in time to meet its contractual schedule obligations.
Permitting price shall include all design-builder scope for obtaining required permits and approvals, including price of supporting studies, drawings, calculations, etc. COA reserves the right to monitor the DBE’s permitting activities, but this shall not relieve the DBE’s obligation to obtain and comply with all permits necessary for the performance of the services described in the DB Agreement and Appendices. Proposers that can exhibit previous experience with permitting within the City of Anaheim will receive additional consideration and those that do not have experience must be able to exhibit a permit procurement plan as part of the narrative of construction to receive the additional consideration.
2.2.5 Design-Build Period Services and Responsibilities The Design-Build Period is the period from the Notice to Proceed to Final Completion. The DBE shall provide all necessary services associated with the Project during this period as defined in the DB Agreement.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
7 3. Procurement Process
3.1 Procurement Process Overview and Schedule
3.1.1 Design-Build Procurement Process
The Project will be contracted and delivered using a single contract for the design and construction of the facility.
Step One was the RFQ prequalification process that resulted in the identification of the Most Qualified Respondents.
Step Two is the RFP process.
An evaluation committee will review and evaluate the Proposals received in Step Two. The evaluation criteria are prescribed and will not be based primarily on lowest total cost. The Evaluation Committee will rank Proposals and enter negotiations with the top-ranked Respondent. The City Council will award the Project to the DBE whose Proposal is most advantageous to the city based on the evaluation criteria included within the RFP.
To support the evaluation process, Technical Proposals shall be submitted and evaluated prior to the submittal of the Price Proposal. Requests for clarification (RFC) may be issued to Respondents to allow for amendment, if necessary, of Technical Proposals prior to submittal of the Price Proposal. Further RFCs regarding pricing may be issued after submittal of Price Proposals.
3.1.2 Procurement Schedule
Detailed dates for key milestones for both the Respondents and COA through the procurement process are prescribed and subject to change; any changes will be communicated via addendum to this RFP.
Anticipated Procurement and Project Schedule
Procurement Milestone Date
RFP Release to DBE shortlist teams 2/25/2025
Mandatory In-person Commercial One-on-One Meetings
Team A: 10:30 a.m. to 12:00 p.m.
Team B: 1:00 p.m. to 2:30 p.m.
Team C: 3:00 p.m. to 4:30 p.m.
3/10/2025
Mandatory In-person Preproposal Meeting and Job Walk 3/11/2025 Mandatory In-person Technical One-on-One Meetings
Team B: 8:30 a.m. to 10:00 a.m.
Team C: 10:30 a.m. to 12:00 p.m.
Team A: 1:00 p.m. to 2:30 p.m.
3/17/2025
Addendum 1 (if needed) 3/25/2025
Last Day for Questions 4/8/2025
Responses to Questions Issued 4/18/2025
Technical Proposal Due 5/2/2025
RFCs 5/5/2025-5/8/2025
Price Proposal Due 5/9/2025
1:1 Interview with DBE 5/12/2025
Make final selection 5/19/2025 – 5/25/2025
Negotiations 5/26/2025 – 6/10/2025
PUB Approval June 2025
City Council Approval July 2025
NTP August 2025
Design Phase August 2025 – June 2026
Construction Phase July 2026 – July 2027
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
8 3.2 Respondent Team Requirements
3.2.1 Conflict of Interest Policy
Engineering firms, architectural firms, consultants, or individuals retained by COA to assist in drafting the RFQ, RFP, or the Project’s preliminary design are not eligible to participate in the competition with any DBE bidding for the Project.
3.2.2 Restricted Parties
COA has retained the following consulting firms to provide guidance in preparing the RFQ, the RFP, and input to related financial, contractual, and technical matters. These firms are prohibited from responding to this procurement, joining any DBE, or otherwise assisting any Respondent with this procurement process:
John Friedman Alice Kimm Architects
3.2.3 Obligation to Keep Team Intact
COA advises that the DBE, its members, and its Key Personnel identified in this Proposal shall remain in the DBE for the duration of the procurement process (and if successful, from award through completion of the Project). If extraordinary circumstances necessitate a change to Respondent’s DBE (firms or people), Respondent shall submit a change request to COA, which will determine whether to authorize the change at its sole discretion. If changes are necessitated by circumstances beyond Respondent’s control, substitute members of the DBE, its members, and Key Personnel shall be submitted to and approved by COA. Changes to DBE members or Key Personnel made by Respondent during the procurement process without COA’s authorization may disqualify the Respondent.
3.3 Communications Protocols for Questions and RFIs/Clarifications During the proposal period, Respondents may submit questions to COA according to the process described in the following sections for requests for information (RFIs) and non-confidential questions, requests for interpretation of DB Agreement, confidential questions, and/or communications with regulatory agencies. COA may, at any time, seek clarification on submitted materials or seek any other information from Respondents on an individual or collective basis.
3.3.1 Communication Protocol and Questions from Respondents If a Respondent is in doubt as to the true meaning of any part of the RFP, project technical requirements, specifications, or DB Agreement, or finds discrepancies or omissions, the Respondent may submit to COA a written request for an interpretation or correction. All communications regarding the Project, COA data related directly or indirectly to the Project, this Proposal, shall comply with the following communications protocol:
All non-confidential questions related to this solicitation shall be submitted via email to the City Contact. Questions received after the specified due date may not be considered, however, Respondents are encouraged to submit all questions for consideration. Clarifications deemed by the City to be material shall be answered via addendum. Addenda may be posted on the City OpenGov site or individual links to the Addenda shall be sent to the Respondents via email. Only questions answered by formal written addenda shall be binding. Oral and other interpretations or clarifications shall be without legal effect. It is the Respondent's responsibility to be informed of any addenda that have been issued. Upon release of this RFP, Respondents, agents of Respondents, and consultants of Respondents shall only make inquiries to the designated Contact Person.
Any oral communication will be considered unofficial and non-binding to the city. Any verified allegation that a Respondent or an employee, agent, advisor, consultant, or subcontractor of a Respondent has engaged in prohibited communications or to unduly influence the selection process may be cause for the City to disqualify Respondent from participating, at City discretion.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
9 3.3.2 Confidential Questions
All Respondents shall comply with the following communications protocols and process for confidential questions:
Respondents may submit confidential questions in accordance with this section. All confidential questions related to this solicitation shall be submitted via email to the City Contact and shall be specifically marked as “Confidential.”
“Confidential” questions are restricted to those related to a given Respondent’s proprietary approach (e.g., an alternative technical solution) or specific circumstances (e.g., insurance or financial requirements) that would justify a confidential response.
If a question is marked “Confidential,” a direct response to the originating Respondent will be considered.
Responses to questions submitted as “Confidential” will be provided only to the original requesting Respondent.
Questions marked “Confidential” that, in COA’s sole opinion, warrant a response to all Respondents (e.g., changes or clarification of requirements or interpretation of RFP) or that, in COA’s sole determination, do not contain proprietary information will be returned to the submitter unanswered, with a request to withdraw the question or to submit it on a “non-Confidential” basis. Confidential Questions received after the specified due date may not be considered, however Respondents are encouraged to submit all questions for consideration. Additional information and rules regarding confidential meetings and correspondence can be viewed in Appendix 9. Confidentiality agreement is included in Appendix 9.
3.3.3 COA Requests for Clarification (RFC) from Respondents COA may ask for clarification on the information provided as part of Respondent’s Proposal via Requests for Clarification (RFCs). RFCs may include, but are not limited to, holding discussions or meetings with Respondents, requesting additional information from Respondents to support the information included in the Proposal and requesting resubmission of Proposals.
The Technical Proposal submittal due date is prior to the Price Proposal submittal due date so that COA may issue RFC requests, and Respondents may adjust their Proposals, prior to submittal of their Price Proposal.
From time to time, COA may request information from Respondents for informational purposes or to obtain feedback on Project-related issues. Such requests will be made collectively on an equal basis to all Respondents.
COA may also seek clarification from a specific Respondent on a confidential basis based on publicly available information regarding its team composition, financial condition, or performance.
In addition, COA may request clarifications on a confidential basis from individual Respondents to obtain further information regarding previously submitted materials or questions. In general, these clarification requests and responses are intended to be confidential in nature, but COA reserves the right to issue RFP Addenda to all Respondents when a clarification would result in information or changes to the Project requirements or scope.
3.4 RFP Addenda
COA will provide written responses to any questions submitted in writing, on the Proposal to all Respondents.
Where inquiries lead to changes in the Proposal, such changes will be issued by COA via addendum. It is the Respondent’s responsibility to obtain a copy of any Addenda relevant to this solicitation. COA takes no responsibility for informing recipients of changes to the original solicitation document. Respondents shall include an acknowledgement of all addenda with its Proposal’s Transmittal Letter.
3.5 Public Records and Firm Proprietary Information
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
10 3.5.1 Public Record
All proposals submitted in response to this RFP shall become the property of COA and shall become a matter of public record following the City Council Meeting for contract award.
3.5.2 Respondent Proprietary Information
The Respondent shall submit all documents deemed to be confidential in a separate envelope/file marked “CONFIDENTIAL & PROPRIETARY” and COA will make all reasonable efforts to maintain such documents in non-public files. The Respondent shall supply the company address and contact person (including contact phone and email address). These documents shall be submitted to the City Contact no later than the Technical Proposal submittal due date. If COA receives a public records request for a Proposal under state or federal law, COA will notify the Proposer of the request prior to release of the Proposal to allow adequate time for the Proposer, at its sole cost and expense, to seek a protective order or other appropriate remedy concerning such public records request.
3.6 Site Access
Proposers cannot access the site without prior approval from COA. Proposers will need to request access via email to the City Contact to gain access to the site and other restricted areas (if any).
3.7 Confidential One-on-One Meeting(s)
COA will invite Respondents to Confidential One-on-One Meeting(s) to discuss the Project before the due date for the technical proposals. The topics discussed in these meetings will remain confidential and will not be disclosed to competing firms. These confidential meeting(s) are not scored or otherwise evaluated as part of the Proposal.
The meeting is for the sole benefit of the Respondent to ask questions and dialogue with COA staff about the Project and project requirements, thus enabling the Respondent to better prepare its Proposal.
The purpose of these meetings is to give Respondents an opportunity to provide insight into its respective technical and delivery approaches to ensure compliance with COA’s Project objectives. In addition, each Respondent shall have an opportunity to (a) ask questions of COA to gain a better understanding of the Project and RFP requirements; (b) ask questions or raise concerns related to the procurement process or submittal requirements; and (c) ask any questions related to clarifying COA’s vision for the Project. Any information presented by a Respondent will be preliminary and non-binding until formally offered in writing or set forth in its Proposal. Information regarding a Respondent’s individual approach and potential proprietary solutions will not be shared with other Respondents.
Confidential One-on-One Meeting Ground Rules. Confidential One-on-One Meetings will generally be structured according to the following ground rules:
Apart from any Project update and introductory comments to be presented by COA and its Representatives, the agenda is at each Respondent’s discretion. A confidentiality agreement will be signed by each meeting attendee, including COA staff and others attending on COA's behalf, prior to the start of each Confidential One-on-One meeting. COA will never discuss any information submitted by other Respondents as part of this procurement. COA will discuss information related to a Respondent’s own submittal, as requested by the Respondent. COA will not provide, and Respondents shall not seek to obtain commitments during these meetings. Respondents shall not seek to obtain an unfair competitive advantage over any other Respondent. These meetings are not intended to give any Respondent access to information not similarly available to other Respondents. Accordingly, material information about the Project or procurement that COA reveals or discusses in response to questions raised in a Confidential One-on-One Meeting will be made available to the other Respondents unless COA, in its sole discretion, determines that disclosure of such information:
would impair the confidentiality of information submitted as part of this procurement or reveal a Respondent’s confidential business strategies,
is not necessary to address an error in the RFP Documents, is not necessary for purposes of fairness and transparency, and is not required by the Public Records Act
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
11 The conduct and/or discussions that occur during Confidential One-on-One Meetings will not be considered during Proposal evaluations.
The proposer shall keep meeting minutes of these confidential meetings and shall submit those meeting minutes as part of their final technical proposal.
For further information and confidentiality agreement See Appendix 9.
3.8 Proposal Evaluation Process
COA will establish an Evaluation Committee to review and score Proposals, conduct interviews, and ultimately select the top ranked candidate from among the Respondents. The Proposal Evaluation Committee may differ from the SOQ Evaluation Committee at the discretion of COA.
Evaluation Committee members represent a range of specialties within the electrical and water industry.
Proposals shall be written and compiled in such a way that allows both experts and non-experts to understand the contents.
Each Proposal will be reviewed to determine whether it is responsive to the RFP. Failure to comply with the requirements of this RFP may result in a Proposal being rejected as non-responsive. At its sole discretion, however, the Evaluation Committee may waive any minor irregularity in the RFP and may request clarification or additional information to remedy a failure. At its sole discretion, the Evaluation Committee may also reject all Proposals and/or terminate this solicitation.
Respondents will be required to demonstrate that they meet submittal requirements. The Evaluation Committee will evaluate, score, and rank the responsive Proposals that satisfy the evaluation criteria set forth herein. Price Proposals will be evaluated and scored separately from the non-financial material of the Technical Proposal. The Respondents will receive a final ranking based on the combined Technical Proposal and Price Proposal scores as described in this RFP. Upon completion of the evaluation process, COA will negotiate with the top ranked Respondent. If negotiations are successful, the top ranked candidate will be recommended to the City Council and, if the City Council determines that the Respondent’s Proposal is the most advantageous to the City based on the evaluation criteria, the City Council will award the agreement unless the solicitation is cancelled prior to award. Upon completion of the procurement process, COA will notify each Respondents of its status.
3.8.1 Evaluation Committee
An Evaluation Committee will be established by COA. The Committee will evaluate all Proposals received in accordance with the evaluation criteria and will be solely responsible for review and scoring Proposals, conducting interviews, and ultimately recommending a Selected Respondent with which to start negotiations.
Technical consultation by COA staff and their advisors will be provided to support the Evaluation Committee's evaluation process. COA reserves the right to modify evaluation committee membership at any time, including between Step 1 and Step 2 Proposal phase evaluation.
3.8.2 Proposal Compliance to RFP Requirements
Proposals will be reviewed for compliance with requirements of the RFP by COA staff and advisors. The results of these reviews will be given to the Evaluation Committee for evaluation.
3.9 Interviews
COA will conduct interviews as part of the evaluation process. Information provided during the interviews may be considered when evaluating the Respondent’s Proposal. COA will not reimburse the Respondents for the costs associated with the interview process. Interviews will be held at a time and place specified by COA. The interview’s format, instructions, and interview room setup will be provided prior to the interviews.
The following ground rules shall govern the interview process:
All interviews shall be of uniform duration.
The number of attendees allowed at the interview may be limited and will be at COA's sole discretion.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
12 COA may elect to ask Proposal-specific questions (i.e., each team may be asked different questions based upon the specifics of its Proposal). Alternatively, COA may elect to use the same interview questions for all Respondents.
3.10 Contract Negotiations
The following is the procedure for contract negotiations and award:
1. If COA determines that it intends to award a DB Agreement to the Selected Respondent, it will transmit the Notice of Intent to Commence Negotiation with Highest Ranked Respondent.
2. COA will enter negotiations with the Highest Ranked Respondent to, among other things, finalize project costs, scope, schedule, and the DB Agreement and Appendices.
3. When negotiations are successfully completed with the Highest Ranked Respondent, a DB Agreement shall be signed by the Highest Ranked Respondent and will be submitted to the City Council for approval.
Following approval, City and this Respondent will execute the DB Agreement.
4. If negotiations are unsuccessful, negotiations will cease with the Highest Ranked Respondent and may begin with the next highest ranked Respondent.
5. The RFP, the RFP attachments, DB Agreement, and the Selected Respondent’s Proposal will become incorporated as the complete Agreement. The Selected Respondent shall execute the DB Agreement, including but not limited to:
Signing all necessary documents and submitting all required evidence of insurance, within ten (10) days after personal delivery of the notice or within fifteen (15) days after such notice has been deposited in the United States mail.
Once the award is made by the City Council, the successful DBE shall post the Performance and Payment Bonds for the full value of the project's target price.
One copy of the DB Agreement will be returned to the Selected Respondent after the City executes the Agreement.
In case of the failure of the Selected Respondent to execute and return the contract and all required documents within the time allowed, the City may, at its option, consider that the Selected Respondent has/have abandoned the DB Agreement.
6. Upon execution of the DB Agreement, the City will issue a Notice to Proceed to the DBE to commence work under the Agreement.
3.11 Respondent Expenses and Stipends
3.11.1 Respondent Expenses
Nothing contained in this RFP shall create any contractual relationship between any responding firm and COA. COA accepts no fiscal responsibility for costs incurred by any Respondent regarding this RFP.
3.11.2 Respondent Honoraria and/or Stipends
COA will not provide any compensation in the form of a stipend or honorarium to Respondents in conjunction with this procurement process.
3.12 Appeals/Protests
Respondents that are not selected as the Successful Proposer may appeal the determination by (1) giving written notice to the City Contact of its intent to appeal no later than three business days after receiving notice of COA’s determination, and (2) requesting a hearing. Hearings shall be conducted and concluded no later than ten business days (or such later date as reasonably required by COA) after COA’s receipt of a timely appeal and
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
13 hearing request.
The hearing so provided shall be an informal process conducted by a Hearing Officer to whom COA has delegated responsibility to hear such appeals. At or prior to the hearing, COA will provide a basis for selection.
The Respondent will be given an opportunity to present information and argument in opposition to the Respondent selection determination. No later than ten business days after completion of the hearing (or such later date as reasonably required by COA), the Hearing Officer will render his/her decision. The City Council award of the DB Agreement will not be delayed allowing for completion of an appeal process.
Failure to submit a timely appeal and hearing request with COA waives all rights to challenge COA’s selection determination.
3.13 Miscellaneous
COA may, in its sole and absolute discretion, in connection with this RFP do, without limitation, all the following:
Ask for clarification on information provided as part of Respondent’s RFP.
Conduct investigations with respect to the qualifications and experience of each Respondent.
Visit and examine any of the facilities relevant to a Respondent’s Proposal, discuss Respondent’s work with representatives at such facilities, and observe and inspect the operations at such facilities.
Reject any or all Proposals, waive any technicalities, immaterial irregularities, or minor informalities in a Proposal, and request clarifications or modifications during evaluation.
Qualify additional Respondents to submit a Proposal.
Eliminate any Respondent who submits an incomplete or inadequate Proposal or is not responsive to the requirements of this RFP.
Supplement, amend, or otherwise modify the RFP through the issuance of Addenda to all Respondents, and to supplement the RFP with information, prior to the RFP Response due date.
Addenda issued to the RFP may expand or cancel any work described in the RFP.
Issue one or more addenda to the RFP, including addenda that extend the RFP response due date.
Cancel this RFP in whole or in part, with or without substitution of another RFP.
COA assumes no obligation to accept or act on any Proposal.
Disqualify, in its discretion, any Respondent who violates communication protocols or otherwise compromises the objectivity, integrity or fairness of the procurement process.
Perform investigations as may be deemed necessary by COA to verify the accuracy of the contents of Proposals.
Determine that a question submitted by a Respondent as “confidential” warrants a response to all Respondents, and to return the question to the Respondent unanswered with a request to withdraw the question or submit it on a ‘non-confidential’ basis.
Appoint an Evaluation Committee and evaluation teams to review Proposals and to consider the advice and assistance of advisors in any subject matter in Proposal evaluation.
Disqualify any Respondent that changes its organization as presented in its SOQ that was submitted to COA within its Proposal, without COA written approval.
End contract negotiations with the Selected Respondent, at any time and for any reason, at the sole discretion of COA.
Begin contract negotiations with the second ranked Respondent, if contract negotiations with the highest ranked Respondent fail, at the sole discretion of COA.
By responding to this RFP, the Respondent agrees that any finding by COA of any fact in dispute as to this RFP or the responses thereto shall be final and conclusive, except as provided herein.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
14 4. Instructions to Bidders and Proposal Submittal Requirements
4.1 Submittal Deadline and Location
Respondents shall upload complete electronic PDF fi les of the complete Technical Proposal to COA’s Ope nGov site no later than the specified deadline. Responde nts shall email complete electronic PDF files of th e complete Price Proposal to the COA’s email contact no later than the specified deadline.
Proposals received after the time and date specified above will not be considered. Each Proposal Volume shall be uploaded separately to the City of Anaheim OpenGov Website.
4.2 Proposal Size Limitations
Respondents are highly encouraged to limit responses to only the length necessary, avoid marketing materials and extraneous content. Respondents shall strictly follow the submittal outline. Required information not provided within the required section may receive significantly lower scores.
Page layout and font types and sizes shall be legible. While there is no minimum font size, it is expected that narrative sections are legible. Smaller fonts are to be expected for tables and graphics, but illegible or difficult to read material may receive significantly lower scores. Where page limits are noted for specific sections, a page is considered one 8.5 inch by 11-inch face and all pages shall be numbered (e.g., an 11 inch by 17-page counts as two pages).
Electronic submittals shall be in PDF format set for printing on standard equipment and paper sizes without printer adjustment.
Respondents may add password-protection security to their Price Proposal and any proclaimed confidential or proprietary information. Once Submitted, any passwords shall be provided to the City Contact.
4.3 Withdrawals / Resubmittals of Proposals
A Respondent may formally withdraw and resubmit its Proposal at any time prior to the Proposal due dat e and time. Additionally, a Respondent shall notify COA i f it intends to withdraw from the procurement, via a written letter sent to the designated City Contact.
4.4 Proposals: Required Sections and Section Weighting To facilitate review of the information submitted, Proposals must contain the required sections presented in the order listed below. The Technical Proposal will be scored as follows:
Required Proposal Organization and Scoring
Required Sections Points Available
Volume 1. Detailed Technical (Non-Price) Proposal
Section 1. Transmittal Letter & Executive Summary Evaluated for Compliance Only
Section 2. Project Organization and Key Personnel 5
Section 3. Architectural Design 25
Section 4. Site, Civil, Landscape, and Circulation Design 15 Section 5. Mechanical, Electrical, and Plumbing Design 10 Section 6. Structural Design 10
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
15 Section 7. Alternates, Project Enhancements, and Added Value 20 Section 8. Efficient and Quality Delivery and Completion On (or ahead of) Schedule 10 Section 9. Mitigation of Subsurface Conditions and Negative Construction Impacts 5 Section 10. Statement of Exceptions Deductive
Evaluation Only
Section 11. Proposal Attachments Evaluated for
Compliance Only
Volume 2. Drawings and Materials/Equipment Data Sheets
Section 12. Drawings and Materials/Equipment Data Sheets Scored as part of
the criteria in
Volume 1
Interviews: Scored at time of Interview (scoring criteria will be issued with Interview instructions prior to interview dates) 25
TOTAL: 125
The Price Proposal (Volume 3) shall be maintained as a separate file/detached from the Technical Proposal.
Volume 3. Price Proposal
Section 13. Price Proposal Evaluated for Compliance
Only
Proposals that do not contain the requested information may be rejected at COA’s discretion.
4.5 Evaluation Methodology
COA will evaluate compliant Proposals on a combination of compliance, non-price (technical), and price factors to determine which one provides the city with the “best value,” as defined below. The DBE that achieves the lowest cost per technical point will be selected as the apparent Best Value Proposer.
Conformance. It is COA's intent that all Respondents comply with the minimum requirements of the RFP and supporting documents. It is each Respondent's responsibility to demonstrate that its Proposal conforms to COA's requirements. Non-conforming submittals are likely to be scored significantly lower by the Evaluation Committee and, in extreme cases, non-conforming Proposals may be disqualified at COA's sole discretion.
Using the evaluation criteria identified in this RFP, the Evaluation Committee will evaluate the proposals to determine the score of each technical proposal.
BEST VALUE DETERMINATION. For each technical proposal, the Best Value Score will be calculated as follows:
DBE’S TOTAL PROPOSAL PRICE. The DBE’s Total Proposal Price used to determine best value for each responsive proposal will be the sum of the following:
(1) DBE’s Phase 1 Price Proposal for Base Scope of Work + (2) Total of all Alternates
DBE’s Total Proposal Price
Notes:
1. DBE’s Price Proposal for Base Scope of Work: This amount will be taken from the Price Proposal Form.
2. Alternates: Alternates will be taken from the Price Proposal Form.
DBE’s Phase 1 Total Proposal Price (Volume 3)
Total Proposal Points (Volume 1 and 2)
Best Value Score =
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
16 TOTAL PROPOSAL POINTS. The Total Proposal Points used to determine best value for each technical proposal will be determined as follows:
EXAMPLE BEST VALUE DETERMINATION. An example of how the best value is determined is as follows:
Team Technical
Proposal
Lifecycle Cost Total Proposal DBE’s Total
Proposal
Best Value Score
(Cost/Technical)
A 87 0 87 $9,400,000 $108,045.98 per
point
B 95 0 95 $9,500,000 $100,000.00 per
point
C 75 -5 70 $8,900,000 $127,142.86 per
point
In the example, Team B has the lowest cost per technical point/Best Value Score and would be selected as the apparent Lowest Responsible Proposer.
4.6 Required Proposal Organization, Contents, and Evaluation Criteria The response to the RFP will be evaluated and scored according to the Proposal content requirements and evaluation criteria on the following pages, which contain instructions to Respondents, Proposal submittal requirements and evaluation criteria.
Each main section will be separated with a tab or page break (at a minimum). This organization aligns with the evaluation criteria. Thus, Proposals not submitted to this organization will be scored lower. Responses to the submittal requirements that do not account for the evaluation considerations will be scored lower.
Total Proposal Points = Total Average Points Awarded by Evaluation Committee City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
17 This space intentionally left blank
City of Anaheim Public Utilities – CrewQuarters Building Request for Proposal (RFP)
18 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
Volume 1 Technical Proposal. Volume 1 SHALL NOT include any pricing information. Inclusion of such information shall constitute grounds for determining a Proposal to be non-responsive.
Table of
Contents
Provide a Table of Contents that includes major headings of the Proposal and associated page numbers as well as lists of tables, graphics, figures, exhibits, and required attachments.
Evaluated for
Compliance Only
1. Transmittal
Letter &
Executive
Summary
1. Provide a Transmittal Letter that includes:
Signature of an authorized representative of Respondent with authority to commit Respondent to the work The name, title, address, email, and phone for Respondent’s preferred single point of contact for all procurement-related communication
Acknowledgement of all Addenda
Certify under penalty of perjury that the information provided in the Proposal is true and correct
2. Provide an Executive Summary that address the following topics:
Overall summary of enhancements and benefits of Respondent’s proposed approach with respect to COA’s goals and objectives.
Ability to deliver on (or ahead of) schedule.
Address why the project approach represents the overall best value to the city.
Evaluated for
Compliance Only
Transmittal
Letter: 1 page
max
Executive
Summary: 2
pages max
2. Project
Organization,
and
Qualifications of
Key Personnel
Describe proposed project organization, including:
Roles and responsibilities of the Design-Builder as the primary contracting entity. How local firms are being utilized to ensure a strong understanding of local laws, ordinances, regulations, policies, requirements, permitting, etc.
Staffing levels and the extent of commitment of key personnel for duration of the contract. Design-Builder’s capacity to perform the work within the time limitations, considering and identifying Design-Builder’s current and planned workload and Design-Builder’s workforce. 2 pages max
(excluding
teaming
agreements and
resumes – each
resume shall not
exceed 2 pages)
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
19 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
Provide an organizational/key personnel chart, including identification and responsibilities of key personnel as follows:
Design-Builder (Contractor) Architect Subconsultants &
Subcontractors* Project Executive Principal-in-Charge Structural Construction Project Design Manager Mechanical/Electrical/Plumbing Manager Project Manager Civil
Construction Project Design QA/QC Geotechnical
Engineer Manager
Construction Superintendent
Construction QA/QC Manager
*Include names of subcontractors if known at the time of Technical Proposal submittal.
Attach the resumes of proposed Key Personnel identified above; include their professional licenses and registrations (DBIA certification preferred); and indicate whether they worked on comparable project including any of the comparable projects submitted for consideration with the Prequalification/SOQ.
The City’s evaluation will consider the entire team, therefore changes in team composition or personnel after award will not be allowed without prior written approval of the City.
A copy of the teaming agreements between all parties must provide and will be attached as an Exhibit to the DB Agreement
The selected DBE’s management and key personnel chart will be attached as an Exhibit to the DB Agreement.
3. Architectural
Design
Identify the design context and philosophy; demonstrate the proposed architectural design provides for a fully functional education facility; and:
Achieves the project goals outlined in the Basis of Design (BOD). Incorporates architectural designs and materials consistent with the contextual design principles of facilities with matching size, functionality, and aesthetic presented by the city. Addresses flexibility, functionality, and circulation of interior space access and usage. Place the completed Building Program Spreadsheet in this section. 4 pages max
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
20 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
Includes considerations for durability and extended deferred maintenance with quality construction. Includes other architectural, landscape, circulation, and acoustic design and aesthetic considerations. Explain how the DBE team will work seamlessly with the City’s Exhibit Designer and will include those designs in their solution.
4. Site, Civil,
Landscape, and
Circulation
Design
Demonstrate the proposed site, civil, landscape, and circulation designs:
Comply with the requirements outlined in the Basis of Design (BOD). Include the following:
Innovative and cost-effective solutions to design and construct the site, building, and systems. Functionality, circulation, safety, and security of the site for occupants, visitors, and vehicles, including buses.
Other architectural, landscape, and circulation design and aesthetic considerations. Site utility design, including upgrades, rerouting, points of connection, and locating of existing underground services.
Compliance with all accessibility codes and other applicable documents referenced in the BOD. 3 pages max
5. Mechanical,
Electrical, and
Plumbing Design
Describe the proposed mechanical, electrical including low-voltage, and plumbing designs; identify their features and system advantages; and demonstrate that they will:
Meet or exceed the requirements outlined in the Basis of Design (BOD). Provide durability, ease of maintenance, aesthetic, and energy efficiency/conservation considerations. Include acoustical, vibration, and sustainable considerations. 2 pages max
6. Structural
Design
Describe the proposed structural design and identify proposed materials and system advantages; and demonstrate that the proposed structural system:
Will meet or exceed the requirements of the Basis of Design (BOD), the California Building Code (CBC), and other seismic and safety considerations.
Explain how the Structural Design considers the needs of the Exhibit Designer’s solutions. 2 pages max
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
21 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
7. Alternates,
Project
Enhancements,
and Added Value
Submit the Alternates, Project Enhancements, and Added Value Matrix listing project enhancements and indicating whether project Alternates are included in the base bid,at no additional cost. Project enhancements provide COA with added value to the base bid requirements,at no additional cost. Show that the proposed design, materials, and construction quality exceed the Basis of Design requirements. For each Alternate Description, include details on proposed manufacturer or product, its advantages, and all associated materials and applications, if applicable. Show local experience with the local City of Anaheim permitting process and experience expediting the permit approvals.
1 page max,
excluding Matrix
8. Efficient and
Quality Delivery
and Completion
On (or ahead of)
Schedule
Describe how the Respondent will manage the Project, including, but not limited to, how it will track decisions, facilitate reviews, and communicate with COA, its stakeholders, regulatory agencies, and other third parties. Describe the process of advancing the design while controlling costs as well as decision making process Describe the Respondent’s Quality Control methods and how they will comply (at a minimum) with any Quality Requirements defined in the Contract Documents. 2 pages max
(excluding
Schedule)
Provide a Preliminary Design and Construction Schedule considering all Project deliverables. This schedule should reflect major design and construction activities. Outline any concerns regarding the schedule.
Provide the following information:
With specific emphasis on long-lead items, describe the approach to procuring materials for the Project. Describe approach to obtaining the required permit and approvals necessary to complete the design and construction. Provide your approach and assumptions to obtaining permits. Identify any permits unique for your design concept not identified in this RFP including the issuing agency and any support required to secure them.
Describe approach for administering and enforcing the obligations of the Amended and Restated CWA.
Describe the overall approach to meeting the specified Substantial Completion date. Provide the detailed Project schedule.
Identify significant contract activities including shoulder-to-shoulder sessions, and procurement activities and durations, including the activities required to complete the Construction Documents and obtain required approvals.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
22 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
9. Mitigation of
Subsurface
Conditions and
Negative
Construction
Impacts
Describe how Respondent will minimize or eliminate the risk of increased costs or adjustments to the Contract Time with consideration of the following:
Excavation and grading requirements including proposed shoring and monitoring of existing facilities and/or structures.
Underground utility identification, relocation, and/or removal. Existing groundwater conditions. Description includes discussion of potential mitigation of shallow groundwater conditions including the need for dewatering and the potential use of excavated soils as backfill.
Other geotechnical conditions include rock or sand/fill. Subsurface contamination.
Mitigation of construction noise, vibration, dust, traffic, etc. affecting surrounding community. 2 pages max
10. Statement of
Exceptions
Respondent shall certify that it takes no exceptions to the project requirements and the contents of this RFP. If the DBE takes exception(s) to any portion of the project requirements, scope of work, or this RFP, the specific portion to which exception is taken shall be identified and explained.
Deductive
Evaluation Only
11. Proposal
Attachments
Proposal Attachments and Non-Price Forms
Non-Price Forms
Building Program Spreadsheet
Alternates, Project Enhancements, and Added Value Matrix Non-Collusion Affidavit
Designation of Subcontractors
Equal Employment Opportunity Certificates of Compliance CWA Letter of Assent
Certification of Proposal
Evaluated for
Compliance Only
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
23 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
Volume 2 – Drawings, Equipment Data Sheets, and Schedule
12. Drawings,
Materials/
Equipment Data
Sheets, and
FF&E
Certification
Respondent may submit any of the following to support the contents of its Technical Proposal It is understood that this design is only conceptual and should be used only to describe your approach and process. Extra value will be awarded for innovative ideas in design or potential project savings as a result of design excellence.
Scored as part of
the criteria in
Volume 1
No page limits
1. Site Plan depicting building layout and proposed finished conditions. Illustrate relationships with existing site elements and buildings, and include:
o Location and descriptions of proposed hardscape design elements in relation to facilities and site amenities, including emergency vehicle access and fire hydrants. o Location of proposed parking, roads, ramps, driveways, sidewalks, landscape, access gate(s), perimeter walls, and other various site/building features. o Building(s) and site (ADA) accessibility.
o Location of existing and proposed site lighting and proposed site electrical equipment.
2. Conceptual Structural Plan and Conceptual Foundation Plans illustrating structural design concept.
3. Architectural Plans:
Exterior elevations with material textures and colors. Floor plan(s) with all developed spaces.
Roof plan(s) with any major roof mounted equipment.
Optional: 3D/perspective representation of the exterior design. Optional: 3D/perspective representation of interior design to show distinctive features facility floor plan. Materials/Equipment/ Color Board
Furniture, Fixtures, and Equipment and Exhibit Layout:
Confirm the FF&E program for all furniture, fixtures, and equipment and review the proposed Exhibit Program. Confirm that DBE understands all requirements that will be needed to integrate the FF&E and Exhibits.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
24 Technical Proposal Content Requirements
Proposal
Section/
Evaluation
Category
Submittal Requirements /
Instructions
Evaluation
Considerations
Volume 3 – Price Proposal Volume 3 shall be submitted under separate cover.
13. Price
Proposal
Price Proposal Form. The form includes descriptions for specific allowances. Use of the allowances will only be authorized by COA.
Evaluated for
Compliance &
Best Value
Determination
Bid Bond on COA form.
Each Proposal shall be accompanied by a Bid Bond on the form provided by COA executed by the bidder as principal and an admitted surety insurer, pursuant to Code of Civil Procedure, Section 995.120, in an amount not less than 10% of the maximum amount of the DBE’s price proposal for the target Value of the Project.
The check or Bid Bond shall be given as a guarantee that the Respondent shall execute the DB Agreement if awarded, in conformity with the Agreement and shall provide the surety bond or bonds as specified therein after notification of COA’s intent to award the Agreement to the bidder.
The bond or bonds shall be issued by a company or individual possessing a Certificate of Authority to transact surety insurance in California issued by the California State Department of Insurance. Surety shall be a California admitted surety who is U.S. Treasury listed and whose U.S. Treasury listing indicates a bonding capacity more than the DBE’s price proposal for the base scope of work. If a California admitted surety insurer issuing a bond does not meet these requirements, the insurer will be considered sufficient if all the submittal requirements of Section 995.660 of the California Code of Civil Procedures are satisfied. Opinion of Cost Spreadsheet
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
25 5. Design-Build Agreement and Commercial Requirements Summary
5.1 General Overview
The Design-Build Agreement and Appendices constitute the risk allocation, responsibilities, and obligations sought by COA. Certain Appendices will require Proposal-specific information to complete. Respondents shall be aware that, if selected, information submitted in its Proposal will be included in the final DB Agreement and Appendices.
Proposal-specific information that may become part of the DB Agreement and Appendices includes, but is not limited to, drawings, equipment lists, equipment data sheets, pricing forms, operating parameters, and insurance forms. The DB Agreement may also include, either by reference or as additional exhibits, applicable portions of the Selected Respondent’s SOQ.
Note: The DB Agreement represents the City’s standard language for its projects. If a Respondent has any specific concerns regarding any of the City’s contract language or requirements, which would render the Respondent unable or unwilling to enter into a DB Agreement with the City, the Respondent shall identify these concerns during the Confidential One-on-On Meeting(s). Exception to or deviations from the City’s standard language may be considered by the city in its evaluation of the responsiveness of a Proposal.
5.2 Contract Security
5.2.1 Design-Build Payment and Performance Bonds
The selected Respondent will be required to obtain 100% Payment and Performance Bonds provided as an attachment to the RFP.
5.3 Required Insurance
The types and limits of insurance provided by the Selected Respondent are in Article 13 Insurance and Bonds of the General Conditions.
5.4 Other Project Requirements
5.4.1 Amended and Restated Community Workforce Agreement (CWA) The City entered a Community Workforce Agreement (CWA) with the Los Angeles/Orange Counties Building and Construction Trades Council and the Signatory Craft Councils and Local Unions. The CWA, as amended and restated, is a pre-hire collective bargaining agreement that establishes labor relations procedures. This project is anticipated to include covered “Project Work” as defined in the CWA and the Successful Proposer and its subcontractors of all tiers shall agree to execute and be bound by the terms of the CWA by signing a Letter of Assent (a form attached to the CWA as Attachment A). The Amended and Restated CWA will be incorporated by reference in the DB Agreement and can be accessed on the City’s website at http://anaheim.net/DocumentCenter/View/40087/Amended-and-Restated-Community- Workforce-Agreement- Executed.
Respondents shall include costs associated with fulfilling their obligations to comply with the policies and procedures prescribed in the CWA including working with the City’s designated CWA Administrator to ensure full compliance with the CWA in their Price Proposals.
A. Assent by DBE upon Award
An authorized representative of the DBE shall sign the Letter of Assent evidencing the DBE’s City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
26 agreement to be party to and bound by the terms and conditions of the CWA for the duration of the work contained in this DB Agreement and submit it to COA not later than the 21st calendar day after receipt of Notice of Award.
B. Assent by Subcontractors and All Others Covered by the CWA upon Award At the time the awarded DBE enters into a subcontract with any subcontractor of any tier providing for the performance of Project Work, the DBE shall provide a copy of the CWA to said Subcontractor and shall require the Subcontractor, as a part of accepting the award from the DBE, to agree in writing in the form of the Letter of Assent to be bound by each and every provision of the CWA prior to the commencement of Project Work. No DBE or subcontractor shall commence Project Work without executing a Letter of Assent and submitting copies in accordance with the procedures outlined in the CWA.
Subcontractors and all others covered by the CWA shall submit signed Letters of Assent at the earliest of the following: 1) at the mandatory CWA Pre-Job Conference described in Sections 8.4 and 16.1 of the CWA, 2) within 48 hours after the award of the Work contained in the DB Agreement to the awarded DBE, or 3) no later than 48 hours prior to the time the subcontractor desires to gain site access and commence work at the site. Access to the site includes initial mobilization of equipment and materials.
5.4.2 Prevailing Wage Rates
Prevailing wage rates will apply to the construction aspects of this DB Agreement, subject to Article 5 of the CWA, and other applicable Public Works requirements.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
27 Attachment A: Required Forms
Non-Price Forms:
Building Program
Alternates, Project Enhancements, and Added Value Matrix Non-Collusion Affidavit
Designation of Subcontractors
Equal Employment Opportunity Certificates of Compliance Letter of Assent
Certification of Proposal
Price Forms:
Price Proposal Form
Opinion of Cost
Bid Bond
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
28 This page was intentionally left blank.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
29 Building Program
See COA Building Program information in Appendix A: Basis of Design. The DBE is to complete this form confirming their program. The DBE to provide the Assignable Square Footages for each space as proposed in the Technical Design in the below matrix. This matrix shall be completed in its entirety and submitted with the Technical Proposal behind Section 3 - Architectural Design.
Division Room Purpose NSF Floor
ELECTRICAL Open Office 1: Line Crew Supervisors (T&D Supervisors) ELECTRICAL Shared Office 2: Electrical T&D Staff (Foreman) ELECTRICAL Office 3: Administrative Assistants
ELECTRICAL Office 4: Electrical T&D Staff (Superintendent) ELECTRICAL Office 5: Electrical Administration (Substation) ELECTRICAL Office 6: Electrical Administration (Substation) ELECTRICAL Office 7: Electrical Administration (Substation)
ELECTRICAL
Office 8: Electrical Administration (Field Services
Superintendent)
ELECTRICAL Office 9: Electrical Administration (Inspection) ELECTRICAL Office 10: Electrical Inspection
ELECTRICAL Office 11: Utilities/ Meter Reading (Meter Supervisor) ELECTRICAL Office 12: Flex Office
ELECTRICAL Office 13: Flex Office
ELECTRICAL Office 14: Flex Office
ELECTRICAL Line Mechanics Assembly Room
ELECTRICAL Meter Shop
ELECTRICAL Copy / File Room
ELECTRICAL Storage
ELECTRICAL Substation Electricians
ELECTRICAL Substation and Test Tech
ELECTRICAL
Electrical Assembly Room (Inspection/Meter
Reading/Revenue Protection Coordinators/Sr. Utilities
Service Representative/Office Specialist/Meter Reader and Utilities Field Workers)
COMMON Office 15: General (Utilities Inventory & Facilities Manager) COMMON Office 16: General (Shared Office for Warehouse Staff) COMMON Office 17: General
COMMON Unisex Bathroom
COMMON Stairwell and Elevator Core
ENVIRONMENTAL Office 18: Environmental Services (Safety Administrator) ENVIRONMENTAL Office 19: Environmental Services (Safety Coordinator)
ENVIRONMENTAL
Office 20: Environmental Services (Environmental
Specialist II)
COMMON Lobby / Admin Desk / Front Office
COMMON Stairwell and Elevator Core
COMMON Assembly Room
COMMON Food Prep
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
30 COMMON Breakroom / Computer Bar
COMMON Storage
COMMON Men's Locker Room
COMMON Women’s Locker Room
COMMON Unisex Bathroom
COMMON Janitor
COMMON Large Conference Room/ Computer Bar
COMMON Chair and Table Storage Assembly Room
COMMON Telecommunications Room (IT)
COMMON Electrical Room
COMMON Electrical Closet
COMMON Fire Riser
COMMON Trash
WATER
Crew Assembly Room (Production, Valve, Hydrant &
Meter)
WATER T&D Crew Assembly Hall
WATER
Open Office 21: Production Crew Supervisors/Pipe
Fitter/Meter Crew Workstations/Valve Hydrant
Supervisor/Meter Supervisors
WATER Open Office 22: Crew Supervisors
WATER Office 23: Water Production
WATER Office 24: Water Production
WATER Office 25: Water Production
WATER Office 26: Water T&D
WATER Office 27: Water T&D
WATER Office 28: Water T&D
WATER Office 29: Water Admin
SUMMARY
FLOOR 2 TOTAL SQFT
FLOOR 1 TOTAL SQFT
SQFT without Circulation Factor
SQFT with XX% Circulation Factor
DESIGN CRITERIA:
CEILINGS SHOULD BE A MIN OF XX'-0" CLEAR
CEILINGS SHOULD BE A MIN OF XX'-0" CLEAR IN THE ASSEMBLY SPACE City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
31 Alternates, Project Enhancements, and Added Value Matrix Submit the Alternates, Project Enhancements, and Added Value Matrix listing project enhancements and indicating whether project Alternates are included in the base bid,at no additional cost. Project enhancements provide COA with added value to the base bid requirements,at no additional cost.
Demonstrate that the proposed design, materials, and construction quality exceed the requirements of the base bid. For each Alternate Description, include details on proposed manufacturer or product, its advantages, and all associated materials and applications, if applicable. Do not include any pricing data.
If Proposers elect to recreate this form, the contents should include the information shown here.
Submitted by Proposer:
PROJECT ENHANCEMENTS AND ADDED VALUE
ITEMIZED LIST OF
PROJECT ENHANCEMENTS DESCRIPTION
ALTERNATES
ALTERNATE NO. ALTERNATE DESCRIPTION
1 Alternate No. 1 LEED Certification (DBE to propose lead of LEED goal that is proposed). Note if this is included in Base Bid? Circle Yes or No 32 Non-Collusion Affidavit
(To be Executed by Bidder and Submitted with Bid)
State of California)
) ss
County of Orange)
____________________________________ being first duly sworn, deposes and says that he or she is (Name)
_______________________________________________o f__________________________________the party making the foregoing bid (Title) (Firm)
that the bid is not made in the interest of, or on the behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay fee to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.
State of California)
) ss
County of _________________ )
__________________________________________
Name of Bidder
Subscribed and sworn to before me _________________________________________ Signature of Bidder
_______ day of _____________________ 20 ______
WITNESS my hand and official seal
______________________________
Notary Public
Address of Bidder
Approved as to form By
City Attorney
By ______________________________________
ALL SIGNATURES ON THIS NONCOLLUSION AFFIDAVIT
MUST BE WITNESSED BY A NOTARY
(attach appropriate jurats)
33 Designation of Subcontractors
Submit with Design-Build Proposal
Proposer shall complete and submit the Designation of Subcontractors listing only those subcontractors that have been identified at the time of proposal submittal to perform work, furnish labor or render services. The Design-Builder is obligated to identify the balance of their Subcontractors at a later date, subject to its compliance with the Subcontractor selection policy set forth in Article 5 of the General Conditions. All Subcontractors shall be afforded the protections contained in the Subcontracting Act.
Portion of Work Subcontractor Address Contractor
License
No.
DIR
Registration
No.
The Design-Builder shall comply with the Subcontracting Act and Chapter 10.06 of the Anaheim Municipal Code when the Design-Builder selects a Subcontractor to perform any portion of the Work. Design-Builder agrees that any Subcontractor not identified within the Proposal who will perform Work or labor or render Service in the performance of the Contract in the amount exceeding ½ of 1% of the difference between the Total of the Contract Price and the amount allocated to Design Services, shall be submitted to the City for approval prior to the execution of any subcontract. Unless waived in writing by the City, the Design-Builder shall submit to the City for approval its final list of Subcontractors no later than the Design Documents being 50% complete. Once a Subcontractor approved by the City has been selected for any such Work, Design- Builder shall not have the right to make any substitution of such Subcontractor except in accordance with the provisions of the Subcontracting Fair Practices Act, Public Contract Code §§ 4100, et seq. The Engineer shall serve as the hearing officer for the purposes of any hearing dealing with the substitution of a subcontractor.
City of Anaheim Equal Employment Opportunity Certificates of Compliance 34 Equal Employment Opportunity Certificates of Compliance As used in this Certificate, the word "Contract" shall mean either "Contract,”or "Subcontract." The word "Contractor" shall mean either "Contractor" or "Subcontractor." The undersigned Contractor certifies the following to theCity of Anaheim:
1. COMPLIANCE REPORTS:
That if the Contractor has participated in a previous Contract subject to the rules and regulations on Equal Opportunity set forth in 41 Code of Federal Regulations Part 60-1, he has filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance of the United States Department of Labor, the appropriate Government Agencies or the Equal Employment Opportunity Commission all reports due under the applicable filing requirements, or if he has not he agrees to do so promptly and before any Contract is awarded.
2. NON-DISCRIMINATION:
During the performance of any Contract placed with him by the City of Anaheim, the Contractor agrees as follows:
1. The Contractor will not discriminate against any employee or applicant for employment because of, race, religion, sex, creed, color, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, creed, color, or national origins. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff of termination, rates of pay, or other forms of compensation, and selection for training, including apprenticeship.
2. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, religion, sex, creed, color, or national origin.
3. The Contractor will send to each labor union or representative of workers with which he has a Collective Bargaining Agreement or other Contract or understanding, a notice advising the labor union or worker's representative of the Contractors commitments under Section 202 of Executive Order Number 11246 of September 24, 1965, as amended, and shall post copies of the notices in conspicuous places available to employees and to applicants for employment.
4. The Contractor will comply with all provisions of Executive Order Number 11246 of September 24, 1965, as amended, and with the rules, regulations, and relevant orders of the Secretary of Labor.
5. The Contractor will furnish all information and reports required by Executive Order Number 11246 of September 24, 1965, as amended, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the Contracting Agency and the Secretary of Labor for purposes of investigations to ascertain compliance with such rules, regulations, and orders.
6. In the event of the Contractor's non-compliance with the nondiscrimination clauses of this Contract or with any of such rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further City Executive Order Number 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in Executive Order Number 11246 of September 24, 1965, as amended, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
3. AFFIRMATIVE ACTION PROGRAM:
Contractor's attention is directed to Section 60-1.40 of Title 41 of the Code of Federal Relations, related City of Anaheim Equal Employment Opportunity Certificates of Compliance 35 to Affirmative Action Compliance Programs, and applying to each Subcontractor with a Subcontract of $50,000 or more and 50 or more employees.
Contractor certifies that he has developed and has on file at each of his establishments a written Affirmative Action Compliance Program, as is called for in section 60-1.40 of and pursuant to part 60-2 of Title 41 of the code of Federal Regulations, and that such Affirmative Action Compliance Program is current, or if it is not, within 120 days after receipt of any order, the undersigned firm agrees to develop and maintain a written Affirmative Action Compliance Program, for each of his facilities unless such firm is not required by law or regulation to develop such program.
4. CERTIFICATION OF NON-SEGREGATED FACILITIES:
The Contractor certifies that it does not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not permit its employees to perform their services at any locations, under its control, where segregated facilities are maintained. The bidder, offeror, applicant, or Subcontractor agrees that a breach of this Certification is a violation of the Equal Opportunity Clause of any Contract placed with it. As used in this Certification, the term "Segregated Facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, which are segregated by explicit directive or in fact segregated on the basis of race, religion, sex, creed, color, or national origin because of habit, local custom or otherwise.
The contractor further certifies that it will obtain identical certifications from proposed Subcontractors prior to the award of Subcontracts exceeding $10,000 covering the procurement of personal property and non- personal services (including construction).
CONTRACTOR'S FIRM
NAME:
ADDRESS: _______________________________________________________
SIGNED PRINT
NAME
TITLE DATE
36 Letter of Assent
To be signed by all Contractors awarded Project Work covered by the Community Workforce Agreement with the City of Anaheim prior to commencing work.
City of Anaheim Public Works Department 200
S. Anaheim Blvd, Second Floor
Anaheim, CA 92805
Attn: John Martin, CWA Administrator, Construction Services Division Re: Community Workforce Agreement - Letter of Assent
Crew Quarters Building
Dear CWA Administrator:
This is to confirm that agrees to
(Name of Construction Company)
be party to and bound by the Community Workforce Agreement with the City of Anaheim effective _______________________, 2025, as such Agreement may, from time to time, be amended by the negotiating parties or interpreted pursuant to its terms. Such obligation to be a party and bound by this Agreement shall extend to all Project Work covered by the Community Workforce Agreement undertaken by this Company on the Project and shall require all of its contractors and subcontractors of whatever tier to be similarly bound for all Project Work within the scope of the Community Workforce Agreement by signing and furnishing to you an identical letter of assent prior to their commencement of work.
Sincerely,
_____________________________________________________
Name of Construction Company
By: __________________________________________________
Signature
______________________________________________________
Name and Title of Authorized Executive
______________________________________________________
Contractor State License No.
[Copies of this letter must be submitted to the CWA Administrator and to the Trades Council Consistent with Section 2.6.2.]
37 Certification of Proposal
In responding to the RFP for Crew Quarters Building, the undersigned Offeror(s) agrees to provide services for COA per the specifications. Offeror further agrees to the terms and conditions that are a part of this proposal and any resulting contract. If there are any exceptions, they must be stated in the proposal.
A. The Offeror hereby certifies that the individual signing the submittal is an authorized agent for the Offeror and has the authority to legally bind the Offeror to the Contract.
Signature below verifies that the Offeror has read, understands, and agrees to the conditions contained herein and on all of the attachments and agenda.
B. The submission of the offer did not involve collusion or other anti-competitive practices.
C. The Offeror has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, meal or service to a public employee in connection with the submitted offer.
D. The Offeror shall not discriminate against any employee or applicant for employment in violation of Federal or State law.
E. The Offeror complies fully with the Federal Debarment Certification regarding debarment suspension, ineligibility and voluntary exclusion.
INDEPENDENT PRICE DETERMINATION:
I certify that this offer is made without prior understanding, arrangement, agreement, or connection with any corporation, firm or person submitting an offer for the same services and is in all respects fair and without collusion or fraud. I certify that I have not entered into any arrangement or agreement with any COA public officer. I understand collusive bidding is a violation of State and Federal law and can result in fines, prison sentences, and civil damage awards. I agree to abide by all conditions of this offer and certify that I am authorized to sign this agreement for the offeror.
TO THE CITY OF ANAHEIM:
The Undersigned hereby offers and shall furnish the services in compliance with all terms, scope of work, conditions, specifications, and amendments in the Request for Proposal which is incorporated by reference as fully set forth herein. The representations herein are made under penalty of perjury.
_________________________________________________________ Name of Firm
Street Address, City, State, Zip
By: _________________________________________ _______________________ Signature of Authorized Executive Date
Printed Name Title
City of Anaheim Crew Quarters Building
38 Price Proposal Form
CREW QUARTERS BUILDING
PROPOSAL TO:
CITY OF ANAHEIM (COA)
200 S. Anaheim Blvd.
Anaheim, CA 92805
PROPOSAL FROM:
DESIGN-BUILDER
________________________________________________________ (Name of Firm Submitting Proposal)
________________________________________________________ (Street Address, City, State, Zip Code)
__________________________________________________
(Telephone)
__________________________________________________
(Design-Builder Project Executive Name & Title)
__________________________________________________
(Design-Builder Project Executive Email Address)
__________________________________________________
(Design-Builder Project Executive Telephone)
___________________________________________________
(Date Submitted)
Note: All portions of this Price Proposal Form must be completed and must include the signed Declaration on the last page of this form before the Proposal is submitted. Failure to execute the Declaration will result in the Proposal being rejected as nonresponsive.
City of Anaheim Crew Quarters Building
39 1.0 Proposer’s Representation
Proposer, represents that a) it has the appropriate active Contractor's license required by the State of California; b) it has carefully read and examined the Proposal Documents for the proposed Work on this Project; c) it has examined the site of the proposed Work and all Reference Documents; d) it has become familiar with all the conditions related to the proposed Work, including the availability of labor, materials, and equipment; e) that all information and submittals provided as part of the prequalification process are accurate and correct; and f) Proposer and all Subcontractors, regardless of tier, are currently registered with the California Department of Industrial Relations pursuant to California Labor Code Section 1725.5 and 1771.1. Proposer hereby offers to furnish all labor, materials, equipment, tools, transportation, and services necessary to complete the proposed Work on this Project in accordance with the Contract Documents for the sums quoted. Proposer further agrees that it will not withdraw its Proposal within 180 days after the Proposal Deadline, and that, if it is selected as the apparent lowest responsive and responsible Proposer, that it will, after receipt of notice of selection, sign and deliver to COA the Design-Build Agreement in triplicate and furnish to COA all items required by the Proposal Documents. If awarded the Contract, Proposer agrees to complete the proposed Work within the number of days specified in the Design-Build Agreement.
2.0 Addenda
Proposer acknowledges that it is Proposer's responsibility to ascertain whether any Addenda have been issued and if so, to obtain copies of such Addenda from COA at the appropriate address stated. Proposer therefore agrees to be bound by all Addenda that have been issued for this Proposal.
Addendum 1 Date Acknowledge
Addendum 2 Date Acknowledge
3.0 DESIGN-BUILD ENTITY’S PRICE PROPOSAL
Total Price Proposal
$ , , *
(Place figures in appropriate boxes)
*Proposer includes the following allowances in the Price Proposal:
Allowance No. 1: Allow $600,000 for Owner Design Directives Allowance No. 2: Allow $300,000 for permitting & CEQA Mitigation Measures Allowance No. 3: Allow $1,100,000 for Unforeseen Field Conditions City of Anaheim Crew Quarters Building
40 4.0 Alternatives
Provide all design, engineering, coordination, labor, materials, equipment, accessories, and Design Builder and subcontractor overhead, mark-up, and profit required for the following Alternates. Indicate by marking only one of the three boxes (“Add”, “Deduct”, or “No Change”) and state the amount by placing figures in the corresponding boxes. Check the “No Change” box when there is no change in the Price Proposal. No amount is required if the “No Change” box is selected. Failure to quote an amount or check “No Change” or the insertion of any words that qualify the Price Proposal will result in the Proposal being rejected as nonresponsive. No extension of time will be granted if the Alternate is accepted.
Note: All Alternates are not included in the scoring calculation.
Voluntary Proposed
Alternate No. 1 (use for
LEED if applicable, if not
use as needed)
$ , , (Place figures in appropriate boxes.)
The city reserves the right to accept this alternate within 90 days of Notice to Proceed for Phase 1.
☐ Add
☐ Deduct
☐ No Change
Voluntary Proposed
Alternate No. 2 $ , , (Place figures in appropriate boxes.)
The city reserves the right to accept this alternate within 90 days of Notice to Proceed for Phase 1.
☐ Add
☐ Deduct
☐ No Change
Voluntary Proposed
Alternate No. 3 $ , , (Place figures in appropriate boxes.)
The city reserves the right to accept this alternate within 90 days of Notice to Proceed for Phase 1.
☐ Add
☐ Deduct
☐ No Change
Voluntary Proposed
Alternate No. 4 $ , , (Place figures in appropriate boxes.)
The city reserves the right to accept this alternate within 90 days of Notice to Proceed for Phase 1.
☐ Add
☐ Deduct
☐ No Change
[Additional Voluntary Alternates may be attached on a separate form] City of Anaheim Crew Quarters Building
41 5.0 Proposer Information
TYPE OF ORGANIZATION: ____________________________________________________________ (Corporation, Partnership, Individual, Joint Venture, etc.) If a Corporation, the Corporation is organized under the laws of the State of:
(State)
President of the Corporation: ____________________________________________ (Name)
Name of Secretary of the Corporation: _____________________________________ (Name)
If a Partnership or Joint Venture, names and titles of persons signing the bid on behalf of proposer and all general partners:
Persons signing the bid on behalf of Proposer: _____________________________________________ (Name & Title)
General Partners: ________________________________________________________________ (Name & Title)
CALIFORNIA CONTRACTORS
LICENSE(S):
__________________________________
(Name of Licensee)
(Classification) (License Number) (Expiration Date)
For Joint Venture, list Joint Venture's license and licenses for Joint Venture partner:
(Name of Licensee)
(Classification) (License Number) (Expiration Date)
(Name of Licensee)
(Classification) (License Number) (Expiration Date)
City of Anaheim Crew Quarters Building
42 6.0 Declaration
I, ______________________________ (printed name), hereby declare that I am the _____________________________ (Title) of ______________________________________ (Name of Proposer) submitting this Price Proposal Form; that I am duly authorized to execute this Price Proposal Form on behalf of Proposer; and that all information set forth in this Price Proposal Form and all attachments hereto are, to the best of my knowledge, true, accurate, and complete as of its submission date.
I further declare that this bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.
I declare, under penalty of perjury, that the foregoing is true and correct, and that this declaration was subscribed at: __________________________________________________(Location and City), County of _____________________________, State of _________________________, on _____________________(Date).
__________________________________________
(Signature)
City of Anaheim Crew Quarters Building
Option of Cost
43 Opinion of Cost
REF NO. TRADE Cost
0.00 GENERAL CONDITIONS, OH & FEE
0.10 General Expenses $
0.20 Supervision, Fringes, Taxes & Surcharges $
0.30 Performance & Payment Bond $
0.40 Insurance $
0.50 All-Risk Builder's Risk Insurance $
0.60 Other: $
Subtotal: $
1.00 GENERAL REQUIREMENTS
1.01 Design Fee Through Schematic $
1.02 Design Fee Through Design Development $
1.03 Design Fee Through Construction Documents $
1.04 Design Fee Through Permit $
1.05 Design Fee for Construction Admin and Closeout $
1.06 Testing and Inspection $
1.07 Allowances $
1.08 Commissioning $
1.09 Water Quality Management Plan $
1.10 Mobilization $
1.11 Temporary Facilities/Fencing $
1.12 Off Site Staging $
1.13 Hoist Facilities $
1.14 Temporary Utilities $
1.15 Cleaning $
1.16 Protection & Safety $
1.17 Demobilization $
1.18 Trash Removal $
1.19 Safety $
1.20 Other: $
Subtotal: $
2.00 SITE
2.10 Earthwork $
2.20 Site Concrete $
2.30 Concrete Paving $
2.40 Asphalt $
2.50 Site Utilities Dry $
2.60 Site Utilities Wet $
2.70 Landscaping $
2.75 Fencing $
2.76 Irrigation $
2.90 Other: $
Subtotal: $
City of Anaheim Crew Quarters Building
Option of Cost
44 3.00 CONCRETE
3.10 Cast in Place Concrete $
3.20 Architectural Concrete $
3.30 Precast Architectural Concrete $
3.40 Other: $
Subtotal: $
4.00 MASONRY
4.10 Unit Masonry $
4.20 Brick Veneer Masonry $
Subtotal: $
5.00 METALS
5.10 Structural Steel Framing $
5.20 Metal Framing $
5.30 Metal Fabrications $
5.40 Metal gates $
5.50 Handrails $
5.60 Other: $
Subtotal: $
6.00 WOOD, PLASTICS, AND COMPOSITES
6.10 Miscellaneous Carpentry $
6.20 Sheathing $
6.30 Interior Architectural Woodwork $
6.40 Other: $
Subtotal: $
7.00 THERMAL AND MOISTURE PROTECTION
7.10 Thermal Insulation $
7.20 Roofing $
7.30 Sheet Metal Flashing and Trim $
7.40 Roof Accessories $
7.50 Joint Sealants $
7.60 Other: $
Subtotal: $
8.00 OPENINGS
8.10 Doors Frames and Hardware $
8.20 Windows $
8.30 Other: $
Subtotal: $
9.00 FINISHES
9.10 Gypsum Board Assemblies $
9.20 Non-Structural Metal Framing $
9.30 Portland Cement Plastering $
City of Anaheim Crew Quarters Building
Option of Cost
45 9.40 Tiling $
9.50 Acoustical Panel Ceilings $
9.60 Flooring $
9.70 Interior Painting $
9.80 High-Performance Coatings $
9.90 Other: $
Subtotal: $
10.00 SPECIALTIES
10.10 Interior Signage $
10.20 Exterior Signage $
10.30 Toilet Compartments $
10.40 Operable Partitions $
10.50 Wall and Door Protection $
10.60 Toilet Accessories $
10.70 Fire Protection Specialties $
10.80 Other: $
Subtotal: $
11.00 EQUIPMENT
11.10 Access Gate $
11.20 Trash Area $
11.30 Solar Equipment $
11.40 Other: $
Subtotal: $
12.00 FURNISHINGS
12.10 Window coverings $
12.20 Site Furnishings $
12.30 Other: $
Subtotal: $
14.00 CONVEYING EQUIPMENT (not used)
21.00 FIRE SUPPRESSION
21.10 Fire Sprinkler System $
Subtotal: $
22.00 PLUMBING
22.10 Plumbing $
Subtotal: $
23.00 HEATING VENTILATING AND AIR CONDITIONING
23.10 Common Work Results for HVAC $
23.20 Testing, Adjusting, and Balancing for HVAC $
23.30 Commissioning of HVAC $
City of Anaheim Crew Quarters Building
Option of Cost
46 23.40 Instrumentation and Controls $
Subtotal: $
26.00 ELECTRICAL
26.10 General Electrical $
26.20 Lighting $
26.30 Solar panels inverters transfer switches $
26.40 Interior Lighting $
26.50 Exterior Lighting $
26.60 Low Voltage and Structured Cabling $
26.70 Communications $
26.80 AV $
26.90 Other: $
Subtotal: $
City of Anaheim Crew Quarters Building
Option of Cost
47 Bid Bond
KNOW ALL BY THESE PRESENTS, that we, __________________________________________ , as Principal, and ______________________________________________,a corporation organized and existing under the laws of the State of _________________________ and whose principal office is located in the City of ________________________ , as surety, are jointly and severally bound unto the CITY OF ANAHEIM of Orange County, California, in the sum of: DOLLARS ($________________) lawful money of the United States of America to be paid to the said CITY OF ANAHEIM, for which payment well and truly to be made, we bind ourselves, our heirs, successors, executors, administrators and assigns, jointly and severally, by these presents.
THE CONDITION OF THIS OBLIGATION is such that whereas the Principal has submitted the accompanying bid dated _________________________________ , 20 ____, for the construction of ____________________________________________ for the CITY OF ANAHEIM, Orange County, California.
NOW, THEREFORE, if the Principal shall not withdraw said bid within one hundred and eighty (180) days after the opening of same, and shall within twenty-one (21) days after the agreement has been presented to him for execution enter into a written contract with the City in accordance with the bid as accepted, and if the Principal shall give the required bond with good and sufficient sureties, or sureties for the faithful performance and proper fulfillment of such contract and for the protection of laborers and materialmen, or in the event of the withdrawal of said bid within the periods specified, or the failure to enter into said contract and give said bond within the time specified if the Principal shall within sixty (60) days after request by the City, pay the City the difference between the amount specified in said bid and the amount for which the City may procure the required work and/or supplies if the latter amount be in excess of the former, then the above obligation shall be void and of no effect, otherwise to remain in full force and virtue.
IN WITNESS WHEREOF the above-obligated parties have executed this instrument under their several seals this ____________________ day of _________________ , 20 , the name and corporate seal of each corporate party being affixed hereto and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
Two Witnesses (if individual)
PRINCIPAL
ATTEST (if corporation) By __________________________________________ Title
Title Surety
By
Corporate Seal Title
ATTEST
Corporate Seal (SEAL)
City of Anaheim
Crew Quarters Building
Price Proposal Spreadsheet
48 Notes:
The purpose of Allowance line items is to accommodate scope beyond the minimum requirements described in the RFP. As all Respondents are asked to carry the same allowance values, the inclusion of allowances will have no impact on price competitiveness among the Respondents. Allowances are to be implemented using the following concepts:
During project execution, the expenditure of Allowances is solely at COA's discretion; As established, Allowances are intended as “not-to-exceed” budgets for each scope item s Additional funds required for unanticipated or expanded scope for Allowance-related items may be covered under Change Order provisions, at COA's discretion;
Once scope is better defined, the DBE will be required to estimate for and then document actual costs incurred for Allowance items;
Only actual cost expended, including fee for overhead and profit, for Allowances will be reimbursed to the DBE;
At the completion of the project, any remaining allowances belongs to COA.
49 City of Anaheim Public Utilities - Crew Quarters Building Request for Proposal (RFP)
Attachment B: Draft Design-Build Agreement and General
Conditions
Includes:
Appendix 1: Basis of Design (BOD)
Appendix 2. Reference Documents
Appendix 3. Minimum Technical Requirements
Appendix 4. Submittals and Design Process
Appendix 5. Permits and Approvals
50 CITY OF ANAHEIM
DESIGN -BUILD AGREEMENT
FOR
CREW QUARTERS BUILDING
Draft D ATE : February 24, 2025
CITY OF ANAHEIM
PUBLIC WORKS DEPARTMENT
200 S. A NAHEIM BLVD ., SUITE 276
ANAHEIM , CA 92805
.
51 Design-Build Agreement
This Design-Build Agreement ("Agreement") is made effective as of this day of , by and between the City of Anaheim (“City” or “Owner”) and ( "Design-Builder") for the design, management, and construction of the Crew Quarters Building Projec t ("Project"). In consideration of the mutual covenants and obligations contained herein, City and Design-Builder agree to the following terms and conditions.
RECITALS
WHEREAS, the City Charter and Chapter 10.06 of the Anaheim Municipal Code authorize the City to use design-build procurement for the design and construction of certain public works projects of th e Public Works Department. Design-Builder shall perfo rm, either directly or through subcontracts, the services set forth in this Agreement and the Contract Documents;
WHEREAS, City issued a Request for Proposals ("RFP") to select a design-builder to design, build and deliver to City certain improvements at the Project as described in, and in accordance with, the Scope of Services, complete with all appurtenances necessary to produce such facilities;
WHEREAS , City has selected Design-Builder for the Project based on its response to the RFP;
WHEREAS , Design-Builder warrants and represents that it is ready, willing and able to design and build the Project in strict accordance with the terms and conditions of the Agreement; and
WHEREAS , Design-Builder warrants and represents th at is has the necessary professional expertise and skill to perform such services.
NOW, THEREFORE, in consideration of the covenants hereinafter set forth, City and Design-Builder mutually agree as follows:
ARTICLE I: CONTRACT DOCUMENTS
Definitions
The meanings of all capitalized terms used in the Contract Documents and not otherwise defined herein are contained in the General Conditions. If not defined in the General Conditions, they shall have the meanings assigned to them elsewhere in the Contract Document s. If not defined in the General Conditions or elsewhere, they shall have the meanings reasonably understood to apply to them by the context of the portion of the Contract Documents where such terms are used. City and Design-Builder are sometimes individually referred to as a “Party” and collectiv ely as the “Parties.” Except as indicated otherwise , all references to City include its elected officials, officers, directors, employees, agents and volunteers. Except as indicated otherwise, all references to Design-Bu ilder include its personnel, employees, agents and subcontractors.
Contract Documents
The "Contract Documents" are comprised of the follo wing documents (not in order of precedence), all of which are either attached hereto as exhibits or are incorporated herein by this reference with the sam e force and effect as if the same were set forth at length herein:
52 1.2.1 This Agreement including all exhibits and attachments noted below, executed by City and Design- Builder:
Exhibit A – Site Legal Description
Exhibit B – Scope of Work and Index of Design Development Documents Exhibit C – Approved Deviations
Exhibit D – Design-Builder’s Key Personnel List Exhibit E – Project Schedule Exhibit F – Performance Bond Exhibit G – Payment Bond
Exhibit H – Certification of Contractor and Subcontractor Department of Industrial Relations Registration
Exhibit I – Designation of Subcontractors
Exhibit J – Community Workforce Agreement, as amended from time to time
1.2.2 General Conditions of the Contract;
1.2.3 All written modifications, amendments, minor cha nges, and Change Orders to this Agreement issued
in accordance with the General Conditions of Contract;
1.2.4 Design and Performance Criteria comprised of the Scope of Work;
1.2.5 2021 Standard Specifications for Public Works Construction (“Standard Specifications”) by the Southern California Chapter, American Public Wo rks Association and the Southern California District, Associated General Contractors of California Joint Cooperative Committee, as modified and supplemented by the City;
1.2.6 Design Development Documents to be prepared by the Design-Builder;
1.2.7 Request for Proposals (“RFP” or “Requests for Propo sals”) and any addenda (“RFP Addenda”) which are all on file at the Public Works Department;
1.2.8 Design-Builder’s Proposal (including the Best and F inal Offer) and Approved Deviations identified in Exhibit C hereto, if any, contained i n the Design-Builder’s Proposal and approved by City, which shall specifically identify any and all deviations from the Design Development Documents and Request for Proposals; and
1.2.9 Final Construction Documents to be hereafter prepar ed by the Design-Builder that are approved by the City in writing in accordance with the terms of the Contract Documents.
53 Reference Documents [OPTIONAL]
The following Reference Documents are not considere d Contract Documents and were provided to the Design-Builder for informational purposes only. Design-Builder may rely upon the technical data contained in such documents but not upon the non-technical data, interpretations, opinions or provisional statements contained therein:
1.2.10 Insert Description
1.2.11 Insert Description
1.2.12 Insert Description
Entire Agreement
This Agreement together with all other Contract Doc uments constitutes the entire agreement between the Parties and all other representations or statements theretofore made, oral or written, are merged here in.
Both Parties have, with the assistance of their respective legal counsel, drafted the provisions contained in the Agreement. Therefore, no provision in the Agreement will be construed in favor of or against any party by virtue of the identity of its preparer. This Agr eement may be amended only by written modification executed by duly authorized representatives of the Parties hereto or according to the procedure set forth in the General Conditions. If any provision of this Ag reement shall be held invalid, such invalidity shal l not affect the other provisions hereof and the provisio ns of this Agreement are intended to be and shall b e deemed severable.
ARTICLE II: THE WORK
2.1.1 Design-Builder shall provide, furnish, and perform all necessary planning, architectural, engineering, and all other design services of any t ype, procurement, permitting and support services, construction, landscaping, clean-up, and all other construction services of any type, provide and furnish all necessary supplies, materials, and equipment (except those to be provided by City, if any) and all necessary supervision, labor, and services required for the c omplete engineering, design, procurement, quality control/quality assurance, construction and all nec essary installation, start-up and testing and commissioning required to complete the Work describ ed in and reasonably inferable from the Contract Documents (hereinafter, the all-inclusive obligations of the Design-Builder set forth in this sentence shall be referred to as the "Work"). Except with regard to any material to be provided and/or installed by City, Design- Builder shall fully commission and turn over a comp lete operational, and fully functional Project to C ity.
Without limiting the generality of this section, Design-Builder shall provide the following work and services:
2.1.2 Design-Builder shall prepare complete designs, engi neering calculations, working drawings, shop drawings and generate detailed construction drawings and/or engineering analysis setting forth in detail the specifications and requirements for the purchasing and procurement of the services , materials, and equipment and for the construction of the complete, operational, and fully functional Project, and shall furnish the services of all necessary sup ervisors, engineers, designers, draftsmen, and othe r personnel necessary for preparation of those drawin gs and specifications required for the Work, includ ing the pertinent information for natural gas, electrical, water supply, and any other utilities, as required.
2.1.3 Design-Builder shall provide, install and complete as specified and pay for all labor, materials and equipment, tools, supplies, construction equipment and machinery, construction, start-up and testing, wet and dry utilities, communications of a ll type, transportation, and other facilities and s ervices (including any temporary materials, equipment, supplies and facilities) necessary for the proper execu tion and completion of the complete, operational, and fu lly functional Project, including the permanent interconnection for electricity, natural gas, water supply, and any other utilities, and demonstration of fully satisfactory operation of all systems and equipment.
54 2.1.4 Design-Builder shall plan, coordinate, supervise an d direct the entirety of the Work, and shall furnish the services of all supervisors, forepersons, skilled and unskilled labor, and all other personnel necessary to design and construct the complete, ope rational, and fully functional Project. Design-Buil der shall provide, manage and organize such personnel as necessary to complete the Work in accordance with all requirements of the Contract Documents.
2.1.5 Design-Builder shall obtain, at Design-Builder's ex pense, all governmental and private approvals, licenses, and permits required to complete the Work. Design-Builder shall design and construct a complete, operational and fully functional Project in full compliance with all applicable laws, codes, and standards (both public and private), including but not limited to, the standards and warranties includ ed and/or expressed in the Contract Documents and manufacturer's recommendations pertaining to individual items of equipment or systems.
Standard of Performance
In addition to and without limiting Design-Builder' s other obligations under the Contract Documents, D esign-Builder shall at all times in its performance of its obligations under t he Contract Documents conform to the following gene ral standards of performance:
2.1.6 Comply with the requirements of the Contract Documents;
2.1.7 Comply with Applicable Laws;
2.1.8 Conform to the standard of care applicable to those who provide design-build project services and construction of the type called for by this Agreement for projects of a scope and complex ity that is comparable to the Project;
2.1.9 Furnish efficient business administration of the Wo rk, utilizing sufficient senior level management and other qualified personnel to manage the Work; and
2.1.10 Apply its best and highest skill and attention to completing the Work in an expeditious and economical manner, consistent with the expressed be st interests of City and within the limitations of the Contract Price and Contract Time.
ARTICLE III: TIME FOR PERFORMANCE
Contract Time
Design-Builder agrees to commence the Work within five (5) days of Design-Builder’s receipt of a Notice to Proceed issued by City (“Date of Commencement”), unless the parties mutually agree otherwise in writing.
If City's issuance of a Notice to Proceed is delayed due to Design-Builder's failure to return a fully-executed Agreement, insurance documents or bonds within four teen (14) calendar days after the date of the award of the Contract letter from the City, one (1) calendar day will be deducted from the number of days to achieve Substantial Completion of the Work for every day of delay in City's receipt of such documents. This ri ght is in addition to and does not affect City's right to demand forfeiture of Design-Builder's bid security, or any other rights or remedies available to City if Desig n-Builder persistently delays in providing the requ ired documentation.
55 Design-Builder agrees to promptly commence the Work after the Notice to Proceed is issued by City, and to achieve Substantial Completion of the entire Work no later than calendar days after the Dat e of Commencement in the Notice to Proceed. Final Completion of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Article 1.1.24 of the General Conditions of Contract. All of the dates set forth in the Article (collectively “Contract Time”) shall be subject to adjustment in accordance with the Ge neral Conditions of Contract. By executing this Agreement, Design-Builder confirms that the Contract Time is a reasonable period for performing the Work.
Liquidated Damages
3.1.1 City and Design-Builder recognize that time is of the essence as to this Agreement and that City may suffer damages which are difficult to dete rmine and accurately specify, such as lost grant fu nds, additional contract administration expenses, and loss of public use, if the Work is not completed within the Contract Time, including any extensions thereof allowed in accordance with the Contract Documents.
3.1.2 Design-Builder and City agree to liquidate damages with respect to Design-Builder's failure to achieve Substantial Completion of the Work within the Contract Time. The Parties intend for the liquidated damages set forth herein to apply to this Contract as set forth in Government Code § 53069.85. Design- Builder acknowledges and agrees that the liquidated damages are intended to compensate City solely for Design-Builder's failure to meet the deadline for Substantial Completion and shall not excuse Design-Builder from liability from any other breach, including any failure of the Work to conform to the requirements of the Contract Documents.
3.1.3 In the event that Design-Builder fails to achieve Substantial Completion of the Work within the Contract Time, Design-Builder agrees to pay City the following:
(a) $ 1,500 per day for each calendar day that Substantial Comp letion is delayed for the first thirty (30) days of delay; and
(b) $ 2,000 per day for each calendar day that Substantial Completion is delayed thereafter provided, however, that in an event Design-Builder’s liability to City for liquidated damages shall be limited to ten percent (10%) of the Contract Price.
3.1.4 Design-Builder acknowledges and agrees that the for egoing liquidated damages have been set based on an evaluation by City of damages that it will incur in the event of the late complet ion of the Work. Design- Builder and City agree that becau se of the nature of the Project it would be impract ical or extremely difficult to fix the amount of actual damages incurred by City due to a delay in completi on of the Work. Accordingly, City and Design- Builder hav e agreed to such liquidated damages to fix Design- Builder's costs and to avoid later disputes. It is understood and agreed by Design-Builder that any liquidated damages payable pursuant to this Agreement are not a penalty and represent a fair and reasonable estimate of compensation for losses to be incurred under the circumstances existing as of the effective date of this Agreement.
3.1.5 It is further mutually agreed that City shall have the right to deduct liquidated damages against progress payments or retainage. In the even t the remaining unpaid Contract Price is insufficient to cover the full amount of liquidated damages, Design-Builder shall pay the difference to City.
3.1.6 Permitting or requiring Design-Builder to continue and finish the Work, or any part thereof, after the deadline for Substantial Completion shall not act as a waiver of City’s right to receive liq uidated damages hereunder or any rights or remedies otherwise available to City.
56 Early Completion Bonus [OPTIONAL]
3.1.7 If the Work is completed to the point of Substantial Completion (as defined in the General Conditions) prior to (“Bonus Date”)
and Design-Builder has fully performed all of its o bligations to be performed as of such time and full y complies with all terms and conditions of the Design-Build Agreement in effect at such time, then City shall pay Design-Builder at the time of final payment an early completion bonus of Dollars ($ ) for each calendar day that Substantial Completion is at tained earlier than the Bonus Date. City and Design - Builder agree that the maximum aggregate amount tha t Design-Builder shall receive as the early completion bonus is
Dollars ($ ).
3.1.8 If there is an Excusable Delay or Compensable Delay for which Design-Builder is entitled to a Contract Adjustment extending the Contract Time for Substantial Completion, the Bonus Date shall be deemed extended by the same number of days as such Contract Adjustment. In the case of an inexcusable delay, the Bonus Date shall not be extended.
3.1.9 City assumes no obligation to take special or extra ordinary measures to expedite performance of any of its obligations under the Con tract Documents in order to assist Design-Builder i n achieving Substantial Completion by the Bonus Date and assumes no obligation to agree to any extensions of time to the Bonus Date, save and except to the e xtent that Design-Builder has established its right to a corresponding extension to the Contract Time for Substantial Completion as aforesaid. If and to the ex tent that an acceleration in performance by Design-Builder or any Subcontractor is undertaken for the purpose of enabling the Design-Builder to achieve Substanti al Completion by the Bonus Date, such acceleration shall only be undertaken after Design-Builder has p rovided for City’s information, complete disclosure of those activities that will be accelerated and/or th ose activities that will be performed in parallel t o support Design-Builder’s early completion, and such acceler ation shall be performed entirely at Design-Builder ’s own expense.
3.1.10 Such additional payment is subject to a judgment by City to the extent any sums may be lawfully retained under any provisions of the Contract Documents or at law. The obligation of City to pay such amount is subject to the condition that Design-Buil der complete the Work to the point of Final Complet ion and that Design-Builder not be in breach or default of any of its obligations under the Contract Documents at the time of final payment. This provision does not alter the Contract Documents provisions on ownership and use of schedule float, and this provision shall not be used by Design-Builder to assert claims bas ed upon use of schedule float or the City’s exercise of any rights or obligations under the Contract Documents.
3.1.11 No early completion bonus or any portion thereof shall be due or payable to Design-Builder in the event that the Contract is (1) rightfully terminated by City for cause on the grounds of an event of Design- Builder default;
(2) terminated by City for convenience at a point prior to the overall Work (including approved Change Orders) being 75% completed, or (3) is wrongfully terminated by Design-Builder.
3.1.12 Design-Builder specifically and expressly waives and relinquishes any claims against City that City caused Design-Builder to fail to achieve early Substantial Completion thereby depriving Desi gn- Builder of the opportunity to earn said bonus.
ARTICLE IV : CONTRACT PRICE
Contract Price
4.1.1 Total Compensation. City shall pay Design-Builder for Design-Builder's complete performance of the Work in accordance with the Contract Documents the Contract Price of Dollars ($ ).
57 4.1.2 Design Fee. The Contract Price includes a Design Fee of Dollars ($ ). The sole purpose of the Design Fee is to determine: (1) the compensation City is obligated to pay to Desig n- Builder under Article 15 of the General Conditions in the event the Agreement is terminated, for cause or convenience, prior to commencement of any physical construction at the Site; and (2) the amount that Design-Builder is entitled to pursuant to Article 10.3 of the General Conditions, to include in its Applications for Payment seeking progress payments for the design and construction portions of the Work.
4.1.3 The Contract Price is the total amount payable by City to Design-Builder for performance of the Work under the Contract Documents and is deemed to cover all costs arising out of or related to th e performance of the Work, including, without limitat ion, the effects of natural elements upon the Work, unforeseen difficulties or obstructions affecting the performance of the Work (including, without limi tation, unforeseen conditions at the Site that do not constitute Differing Site Conditions), and fluctuations in market conditions and price escalations (whether occurring locally, nationally, or internationally) from any cause, including, without limitation, causes beyond the control or foreseeability of Design-Builder.
Allowance Items and Allowance Values [OPTIONAL]
4.1.4 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth below: Allowance 1 - $
Allowance 2 - $
4.1.5 Design-Builder and City have worked together to review the Allowance Items and Allowance Values based on design information then available t o determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Desig n-Builder and City will continue working closely together during the preparation of the design to de velop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value.
4.1.6 No work shall be performed on any Allowance Item wi thout Design-Builder first obtaining in writing advanced authorization to proceed from C ity. City agrees that if Design-Builder is not prov ided written authorization to proceed on an Allowance Item by the date set forth in the Project schedule, d ue to no fault of Design-Builder, Design- Builder may be entitled to an adjustment of the Contract Time and Contract Price.
4.1.7 The Allowance Value for an Allowance Item includes the direct cost of labor, materials, equipment, transportation, taxes and insurance asso ciated with the applicable Allowance Item. All othe r costs, including design fees, Design-Builder's over all project management and general conditions costs , overhead and fee, are deemed to be included in the original Contract Price, and are not subject to adjustment, regardless of the actual amount of the Allowance Item.
4.1.8 Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjust ed accordingly by Change Order, in accordance with the General Conditions. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value.
ARTICLE V: DESIGN-BUILDER’S REPRESENTATIONS AND WARRANTIES
In order to induce City to enter into this Agreement, Design-Builder makes the following representations and warranties:
58 5.1 Design-Builder has and throughout the term of the C ontract shall maintain all required authority, license status, professional ability, skills and ca pacity to perform Design-Builder’s obligations here under and shall perform them in accordance with the requirements contained in the Contract Documents.
5.2 Design-Builder has visited the Site and has reasona bly examined the nature and extent of the Work, Site, locality, impact(s) to adjoining privat e property, actual conditions, as-built conditions, and all local and federal, state and local laws and regulat ions that in any manner may affect cost, progress, performance or furnishing of Work or which relate to any aspect of the design and/or the means, methods, techniques, sequences or procedures of construction to be employed by Design-Builder and safety precautions and programs incident thereto.
5.3 Design-Builder has reasonably examined all reports of exploration and tests of subsurface conditions, as-built drawings, other drawings or reports, available for design and construction purposes, of physical conditions, or which may be apparent at th e Site and accepts the criteria set forth in these documents and the General Conditions to the extent of the information contained in these documents upon which Design-Builder is entitled to rely. Design-Bu ilder agrees that except for the information so identified, Design-Builder does not and shall not rely on any other information contained in these documents.
5.4 After contract award, Design-Builder, will conduct or obtain any additional examinations, investigations, explorations, tests, reports and st udies, including but not limited to geotechnical investigations, upon which the design will be based, that pertain to the surface and subsurface conditions, as-built conditions, underground facilities and all other physical conditions at or contiguous to the Site as Design-Builder considers necessary for the performa nce or furnishing of Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents.
5.5 All design and engineering services furnished by De sign-Builder shall be performed by or under the supervision of persons licensed to practice architecture, engineering or surveying (as applicable) in the State of California, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to pe rform the Work in accordance with the Contract Documents and who shall have professional responsibility for the accuracy and completeness of the design documents and construction documents prepared or checked by them.
5.6 Design-Builder has given City prompt written notice of all conflicts, errors, ambiguities, or discrepancies that it has discovered at any time in or among the Contract Documents and as-built drawings and actual conditions and the written resolution th ereof through Addenda issued by City is acceptable to Design-Builder.
5.7 Design-Builder is duly organized, existing and in good standing under applicable state law, and is duly qualified to conduct business in the State of California.
5.8 Design-Builder has duly authorized the execution, delivery and performance of this Agreement, the other Contract Documents and the Work to be performed herein. The Contract Documents do not violate or create a default under any instrument, agreement, order or decree binding on Design-Builder.
5.9 Design-Builder represents and warrants that it is a ware of the provisions of Section 3700 of the Labor Code which require every employer to be insur ed against liability for workers’ compensation or t o undertake self-insurance in accordance with the pro visions of that code, and Design-Builder agrees to comply with such provisions before
59 commencing the performance of the work of this Contract and at all times during the term hereof, whether by provision of its own insurance or self-insurance.
5.10 Design-Builder shall comply with all requirements o f any Quality Control/Quality Assurance Plan accepted by City.
5.11 At all times during the term hereof, including during the course of, and notwithstanding the existence of any dispute, Design-Builder shall perform as dir ected by City, in a diligent manner and without del ay, shall abide by City’s decision or order, and shall comply with all applicable provisions of the Contra ct Documents.
5.12 Design-Builder confirms its intent to include in the Project the prequalified subcontractors, who were listed in the Design-Builder's Proposal. Design-Builder acknowledges its responsibility to provide City with a complete and updated list of subcontractors as they become known on the Project, and that such listi ng shall be in accordance with the requirements of California Public Contract Code § 20133 et seq. Specifically, California Public Contract Code Section 20133(f) re quires that all subcontractors not listed by Design•Builder in its submission in response to the Request for Proposals be awarded in accordance with the design-build process set forth by City. The Cit y process allows the selection of subcontractors ba sed upon the best value to the Project and requires the Design-Builder do both of the following: (1) Provi de public notice of the availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the City; and (2) Provide a fixed date and time on which the subcontracted work will be awarded in accordance wi th the procedure established pursuant to Public Contract Code Section 20133(f).
ARTICLE VI: BONDS AND INSURANCE
Insurance
Design-Builder shall procure the insurance coverages in accordance with Article 13 of the General Conditions of Contract.
Bonds and Other Performance Security
6.1.1 Design-Builder shall furnish a Performance Bond and a Payment Bond in the forms provided in Exhibits F and G, respectively, or on a ny other form provided by City or approved by City.
Design-Builder shall deliver to City, not later than fourteen (14) calendar days after the date of the award of the Contract letter issued by City, evidence satisfactory to City that Design-Builder is capable of furnishing the Bonds. The Performance Bond shall be furnished as a guarantee of the faithful performance of the requirements of the Contract Documents (including the obligation to pay liquidated damages) in an amount equal to one-hundred percent (100%) of the Contract Price. The Payment Bond shall secure payment of all claims, demands, stop payment notices, mechanics li ens, or charges of material suppliers, mechanics or laborers employed by Design-Builder or by any Subco ntractor or any person, form, or entity eligible to file a stop payment notice with respect to the Work in a n amount equal to one-hundred percent (100%) of the Contract Price. Design-Builder shall maintain the P ayment Bond in full force and effect until (a) Desi gn- Builder has obtained unconditional releases pursuan t to Civil Code § 8138 from all claimants who filed preliminary notice of a claim against the bond, or (b) expiration of the statutory period for claims against the bond. Bonds may be obtained through Design-Builder’s usual source and the cost thereof shall be included in the Contract Price.
6.1.2 The bonds shall be executed by California admitted surety with an A.M. Best Company minimum rating of no less than “A:IX”. If an A.M. Best rating is not available, the proposed surety must meet comparable standards of another rating service satisfactory to City. Bonds issued by a California admi tted
60 surety listed in the latest version of the U.S. Dep artment of Treasury Circular 570 shall be deemed to be accepted unless specifically rejected
61 62
by City. Bonds from a California admitted surety not listed in Treasury Circular 570 must be accompanied by all the documents enumerated in California Code of Civil Procedure § 995.660(a).
6.1.3 All such bonds shall be accompanied by a power of a ttorney for the surety company authorizing the person executing the bond to sign o n behalf of the company. If the bonds are executed outside the State of California, all copies of the bonds must be countersigned by a California representative of the surety. The signature of the person executing the bond shall be acknowledged by a notary public as a signature of the person designated in the power of attorney.
6.1.4 If, during the continuance of the Contract, any of the sureties, in the opinion the City, are or become non-responsible or otherwise unacceptable to City, City may require other new or additional sureties which Design- Builder will furnish to the satisfaction of City within ten (10) days after written notice, and in default thereof, the Contract may be suspended and the work completed as provided in Article 15 of the General Conditions.
6.1.5 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, Design-Builder shall promptly furnish a copy of the bonds or shall permit a copy to be made.
6.1.6 In the event of increases in the Contract Price by change orders or otherwise aggregating to ten percent (10%) of the Contract Price or more, and by all such subsequent increases in the Contra ct Price thereafter, the Design-Builder shall submit t o City evidence of additional bond coverage for suc h increases in the Contract Price. Design-Builder shall be compensated for such additional bond coverage.
ARTICLE VII: MISCELLANEOUS PROVISIONS
Independent Contractor
Design-Builder is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. This Agreement is not intended, and shall not be construed, to create the relationship of agent, servant employee, partnership, joint venture or ass ociation as between Design-Builder and City. Design - Builder shall secure at its expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployme nt compensation and other payroll deductions for Design-Builder and its officers, agents and employees and all business licenses, if any, in connection with the services to be performed hereunder.
City Employees and Officials
Design-Builder shall employ no City official nor any regular City employee in the Work performed pursuant to this Agreement. No officer or employee of City s hall have any financial interest in this Agreement in violation of applicable provisions of law.
Notices
All notices, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly delivered: (a) upon personal delivery; (b) as of the third working day after mailing by United States mail, ce rtified-return receipt requested, postage prepaid, addressed to the proper party at the appropriate address set forth below; (c) on the working day immediately after the date it is deposited with and accepted by an overnight courier service, addressed to the pro per party at the appropriate address set forth below and marked for the next working day morning delivery; and (d) upon facsimile communication or other electroni c communication (such as email or cooperative computer software) approved by City followed by a h ard copy with receipt confirmed by telephone or by email. Notice sent by facsimile or other electronic communication after 4:00 p.m. Pacific Standard or
63 Daylight Time (as applicable) shall be deemed recei ved on the next working day following delivery. For purposes of this Agreement, a “working day” means a ny day Monday through Friday that is not a holiday recognized by the federal government or the State of California.
All notice correspondence between City and Design-Builder shall be sent to the individuals noted below (or as otherwise directed in writing) at the following addresses:
TO CITY:
City Clerk
City of Anaheim
200 S. Anaheim
Blvd. Anaheim, CA
92805
w/copies to:
TO DESIGN-BUILDER:
Name:
Title:
Company
:
Address:
ATTN:
Director of Public
Works Public Works
Department City of
Anaheim
200 S. Anaheim Blvd., Suite 276
Anaheim, CA 92805
Contractor’s License Notice
Contractors are required by law to be licensed and regulated by the Contractors' State License Board, which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding an act or omission pertaining to latent defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors' State License Board, P.O.
Box 26000, Sacramento, California 95826.
Taxes and Reporting
7.1.1 Project Construction - Design-Builder shall coopera te with City in all matters relating to taxation and the collection of taxes, particularly with respect to the self-accrual of use tax. Prior to commencement of construction of the Work, Design-Bu ilder shall obtain a Board Equalization sales and use tax sub-permit for the Site and allocate eligible sales and use tax payments for individual contracts over $5,000,000 to the City. Design-Builder will follow the guidelines set forth in the relevant sections o f the Sales and Use Tax Regulations. The Design-Builder m ust, on its quarterly use tax return, identify the use tax applicable to the Sites and use the appropriate Board of Equalization forms and schedules to ensur e that the tax is allocated to the Sites. In determin ing the amounts of use tax to be paid, the Design-B uilder must follow the Sale and Use Tax Regulations. In the event it is later determined that certain eligible use tax amounts were not included on Design-Builder's use tax return(s), Design-Builder must agree to amend those returns and file them with the Board of Equalization in a manner that will ensure that the City receives such additional use tax from the Project.
64 7.1.2 Use Tax Direct Payment Process - Design-Builder shall follow the Use Tax Direct Payment Permit Process established in the Revenue and Taxat ion Code and use the sub-permit for all qualifying individual purchases in excess of $100,000 so that the local share of its sales/use tax payments is allocated to the City as the point of sale.
7.1.3 Fixtures, Materials and Equipment - It is understood and agreed that any fixtures, materials and equipment shipped from outside California, with a purchase total that exceeds $100,000 purchased directly by Design- Builder and shipped to Design-Builder's Anaheim location, may also be eligible for direct allocation of sales/use tax to the City. Design-Bui lder shall complete and submit to the City the Use Tax Direct Payment Permit. Upon request, Design-Builder shall provide to City on a semi-annual basis with a list of purchases exceeding the $100,000 threshold during the preceding six-month period, including th e amount of the purchase and, if readily available, the name and contact information for the vendor upon request by the City. The City agrees to review the semi-annual list of purchases made by Design-Builder.
7.1.4 Permits - Copies of the permit(s) shall be delivered to the City Engineer. In completing the permit, Design-Builder shall use the address of the Site as its business address and may use any address for its mailing address. Copies of the permit(s) sh all also be delivered to the City Engineer. The Des ign- Builder shall provide documentation to the City that the sub-permit(s) have been obtained and provide the sub-permit number(s) to City. The permit(s) must be obtained as soon as reasonably possible after Design- Builder receives a Notice to Proceed. Design-Builder shall not order any materials or equipment of $100,000 from vendors outside California until the permit(s) are obtained; and if Design-Builder do so, it shal l be a material breach of this Agreement.
Department of Industrial Relations Registration
Strict compliance with all Department of Industrial Relations (“DIR”) registration requirements in accordance with Labor Code §§ 1725.5 and 1771.1 is a material obligation of Design-Builder and all of its Subcontractors (of any tier) under the Contract Doc uments. The foregoing includes, without limitation, compliance with DIR registration requirements at al l times during performance of the Work by Design- Builder and all of its Subcontractors of any tier. Design-Builder shall execute Exhibit G which is a certification that Design-Builder is in compliance with the DIR registration requirements. In addition, Design-Builder shall provide certification of registration and registration number to City before a Subcontractor will be allowed to work on the Project. The failure of Design-Builder and its Subcontractors of any tier to be properly registered with DIR at all times during performance of the Wor k is a material breach of the Contract and grounds for termination for cause. An affirmative and ongoing o bligation of Design-Builder under the Contract Documents is the verification that all Subcontracto rs of any tier are at all times during performance of the Work in full and strict compliance with the DIR registration requirements. Design-Builder shall not permit or allow any Subcontractor of any tier to perform any Work without Design-Builder’s verification that all Subcontractors are in full and strict compliance with the DIR registration requirements. Any Subcontractor not properly registered with DIR shall be substitut ed in accordance with Labor Code § 1771.1. Design- Builder or its Subcontractors shall not be entitled to any additional costs or time arising from or in any way related to compliance with the DIR registration requirements .
Community Workforce Agreement
Design-Builder agrees to comply with the Community Workforce Agreement (“CWA”) if the Project includes covered “Project Work” as defined in the CWA. (Exhi bit J) If there is conflict between this Agreement and the CWA, Design- Builder agrees to comply with the terms of the CWA. Design-Builder shall require each of its Subcontractors, of whatever tier, to be bound by the terms of the CWA.
Equal Employment Opportunity
During performance of the Contract, Deign-Builder w ill not discriminate against any person or group of persons on account of race, color, religion, creed, national origin, ancestry, physical handicap, medi cal
65 condition, age, marital status, sex or sexual orien tation. Design-Builder confirms that it has an equa l opportunity policy ensuring equal
66 employment opportunity without regard to race, color, national origin, sex, age, religion or handicap; and that it maintains no employee facilities segregated on the basis of race, color, religion or national origin.
Provisions Required by Law
Each and every provision of law required to be incl uded in these Contract Documents shall be deemed to be included in these Contract Documents. The Design-Builder shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and the California Public Contract Code where applicable to this Project.
WHEREFORE, this Design-Build Agreement is entered into as of the day and year first written above. INSERT
NAME OF DESIGN-BUILDER
By:
Name:
Title:
Dated:
CITY OF ANAHEIM
By: Mayor
Dated:
ATTEST:
By: City Clerk
APPROVED AS TO FORM: ANAHEIM CITY ATTORNEY
By:
NOTE: Signatures of corporate officials must be notarized.
[END OF DOCUMENT]
67 EXHIBIT A: SITE LEGAL DESCRIPTION
68 EXHIBIT B: SCOPE OF WORK AND INDEX OF DESIGN DEVELOPMENT DOCUMENT
69 EXHIBIT C: APPROVED DEVIATIONS
70 EXHIBIT D: DESIGN-BUILDER’S KEY PERSONNEL LIST
71 EXHIBIT E: PROJECT SCHEDULE
72 EXHIBIT F: PERFORMANCE BOND
Performance Bond No.
WHEREAS , the City of Anaheim ("City") has awarded Insert Name of Contractor designated as the "Principal" or “Design-Builder” herein, a contract for the work described as follows:
Insert Description
WHEREAS, on or about Insert Date , the Principal entered into a Contract with the Ci ty for the design and construction of the work of improvement, which Cont ract and all Contract Documents set forth therein a re incorporated herein and made a part hereof by this reference; and
WHEREAS, Principal is required to furnish a bond gu aranteeing the faithful performance of its obligations under the Contract Documents concurrently with delivery to City of the executed Contract.
NOW, THEREFORE, Principal and Insert Surety Name ("Surety"), a duly admitted surety in the State of California, are held and firmly bound to City for payment of the penal sum of $ Insert Amount ("the Bonded Sum"), in lawful money of the United States, for pa yment of which sum Principal and Surety jointly and severally bind themselves and their heirs, executors, administrators, successors and assigns.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT if Principal shall promptly and faithfully perform all of its obligations under the Contract Documents , including any and all amendments and supplements thereto, then this obligation shall be null and void; otherwise it shall remain in full force and effect.
The following terms and conditions shall apply with respect to this Bond:
1. The Design-Builder and the Surety, jointly and seve rally, bind themselves, their heirs, executors, administrators, successors and assigns to City for the complete and proper performance of the Contract, which is incorporated herein by reference.
2. If the Design-Builder completely and properly performs all of its obligations under the Contract, the Surety and the Design-Builder shall have no obligation under this Bond.
3. If there is no City Default, the Surety's obligation under this Bond shall arise after:
3.1 City has declared a Design-Builder Default under the Contract pursuant to the terms of the Contract; and
3.2 City has agreed to pay the Balance of the Contract Price to:
3.2.1 The Surety in accordance with the terms of this Bond and the Contract; or
73 3.2.2 The contractor selected to perform the Contract in accordance with the terms of this Bond and the Contract.
4. When City has satisfied the conditions of Paragraph 3, the Surety shall promptly (within thirty (30) days) and at the Surety's expense elect to take one of the following actions (provided, that unless and until City has actually terminated Design-Build er for default, the Surety need only respond to City and commence a diligent investigation, not make an election):
4.1 Arrange for the Design-Builder, with consent of City, to perform and complete the Contract (but City may withhold consent, in its sole discretion, in which case the Surety must elect an option described in Paragraphs 4.2, 4.3 or 4.4, below); or
4.2 Undertake to perform and complete the Contract itse lf, through its agents or through independent contractors, but City may reject use of the contractor as an agent or independent contractor; or
4.3 Obtain bids from qualified contractors acceptable to City for a contract for performance and completion of the Contract (other than the original Design-Builder), and, upon determination by City of the lowest responsible bid der, arrange for a contract to be prepared for execution by City and the contractor s elected with City's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Contract; and, if the Su rety's obligations defined in Paragraph 6, below, exceed the Balance of the Contract Price, then the Surety shall pay to City the amount of such excess; or
4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstan ces, and, after investigation and consultation with City, determine in good faith its monetary obligation for which it may then be liable to City under Paragraph 6, below, for the performance and completion of the Contract and, as soon as practicable after the amou nt is determined, tender payment therefor to City with full explanation of the payment's calculation. If City accepts the Surety's tender under this Paragraph 4.4, City may still hol d Surety liable for future damages then unknown or unliquidated resulting from the Design-B uilder Default. If City disputes the amount of Surety's tender under this Paragraph 4.4, City may exercise all remedies available to it at law to enforce the Surety's liability under Paragraph 6 below.
5. If the Surety does not proceed as provided in Paragraph 4, above, then the Surety shall be deemed to be in default on this Bond ten (10) calendar days after receipt of an additional written notice from City to the Surety demanding that the Surety perform its obligations under this Bond. At all times City shall be entitled to enforce any remedy available t o City at law or under the Contract including, without limitation, and by way of example only, rig hts to perform work, protect work, mitigate damages, or coordinate work with other consultants or contractors.
6. The Surety's monetary obligation under this Bond is limited to the amount of this Bond, plus the Balance of the Contract Price paid hereunder. Subject to these limits, the Surety's obligations under this Bond are commensurate with the obligations of the Design-Builder under the Contract. The Surety's obligations shall include, but are not limited to:
6.1 The responsibilities of the Design-Builder under the Contract for completion of the Contract and correction of defective work;
6.2 The responsibilities of the Design-Builder under th e Contract to pay liquidated damages, and for damages for which no liquidated damages are specified in the Contract, actual damages caused by
74 non-performance of the Contract, including but not limited to, all valid and proper back charges, offsets, payments, indemnities, or other damages;
6.3 Additional legal, design professional and delay cos ts resulting from the Design-Builder Default or resulting from the actions or failure to act of the Surety under Paragraph 4, above.
7. No right of action shall accrue on this Bond to any person or entity other than City or its heirs, executors, administrators, or successors.
8. The Surety hereby waives notice of any change, alteration or addition to the Contract or to related subcontracts, purchase orders and other obligations , including changes of time. The Surety consents to all terms of the Contract, including provisions on changes to the Contract. No extension of time, change, alteration, modification, deletion, or addition to the Contract Documents, or of the work required thereunder, shall release or exonerat e Surety on this Bond or in any way affect the obligations of Surety on this Bond.
9. Any proceeding, legal or equitable, under this Bond shall be instituted in any court of competent jurisdiction where a proceeding is pending between City and the Design-Builder regarding the Contract, or in the courts of the City of Anaheim, or in a court of competent jurisdiction in the location in which the work is located.
10. Notice to the Surety, City or the Design-Builder shall be mailed or delivered to the address shown on the signature page.
11. Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted here from and provisions conforming to such statutory requirement shall be deemed incorporated herein.
12. Definitions.
12.1 Balance of the Contract Price: The total amount pay able by City to the Design-Builder pursuant to the terms of the Contract after all pro per adjustments have been made under the Contract, for example, deductions for progress payments made, and increases/decreases for approved modifications to the Contract.
12.2 Contract: The agreement between City and the Design -Builder identified on the signature page, including all Contract Documents and changes thereto.
12.3 Design-Builder Default: Material failure of the Des ign-Builder, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Contract.
12.4 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Design- Builder progress payments due under the Con tract or to perform other material terms of the Contract, if such failure is the cause of the asserted Design-Builder Default and is sufficient to justify Design- Builder termination of the Contract.
13. Qualification Regarding Extended Warranties. The Su rety’s liability for extended warranties for Subcontractors and suppliers shall not apply to a breach of any such extended warranty under the Contract that occurs more than one year after the applicable warranty commencement date under the Contract.
IN WITNESS WHEREOF, three (3) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety of the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned
75 representative(s) pursuant to authority of its governing body. Principal and Surety have caused this Bond to be duly executed and delivered as of this day of , 2 0 .
SURETY:
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PRINCIPAL:
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Name
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Name
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Principal Place of Business Address
By:
_
Signature
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_
Attorney-In-Fact
By:
_
Signature
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_
Printed Name
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_ Title
76 NOTARIAL CERTIFICATION OF ATTORNEY IN FACT, CORPORATION SEAL AND SURETY SEAL MUST BE
ATTACHED
(Seal)
Signature
On Click or tap here to enter text. before me, Click or tap here to enter text. personally appeared Click or tap here to enter text. , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/ executed the same in his/her/their authorized capa city(ies) and that by his/her/their signature(s) on the instrument the pe rson(s), or the entity upon behalf of which the per son(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
State of California
City of
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ACKNOWLEDGMENT OF PERFORMANCE BOND
A Notary Public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this ce rtificate is attached, and not the truthfulness, accuracy, or validity of that document.
77 (Seal)
Signature
On Click or tap here to enter text. before me, Click or tap here to enter text. personally appeared Click or tap here to enter text. , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/ executed the same in his/her/their authorized capa city(ies) and that by his/her/their signature(s) on the instrument the pe rson(s), or the entity upon behalf of which the per son(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
State of California
City of
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ACKNOWLEDGMENT OF ATTORNEY IN FACT
PERFORMANCE BOND
A Notary Public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this ce rtificate is attached, and not the truthfulness, accuracy, or validity of that document.
78 EXHIBIT G: PAYMENT BOND
(Labor and Material Bond)
Payment Bond No.
WHEREAS , the City of Anaheim ("City") has awarded Insert Name of Contractor designated as the "Principal" or “Design-Builder” herein, a contract for the work described as follows:
Insert Description
WHEREAS, on or about Insert Date , the Principal entered into a Contract with the Ci ty for the design and construction of the work of improvement, which Cont ract and all Contract Documents set forth therein a re incorporated herein and made a part hereof by this reference; and
WHEREAS, by terms of the Contract, as well as Calif ornia Civil Code § 9550 et seq. and Public Contract Code § 22165(a), Principal is required to furnish a bond guaranteeing payment of claims.
NOW, THEREFORE, Principal and Insert Surety Name ("Surety"), a duly admitted surety in the State of California, are held and firmly bound to the City for payment of the penal sum of $Insert Amount ("the Bonded Sum"), in lawful money of the United States, for pa yment of which sum Principal and Surety jointly and severally bind themselves and their heirs, executors, administrators, successors and assigns.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT if Pr incipal shall fail to pay any of the persons named in California Civil Code § 9100 for all labor , materials, equipment or services used or reasonab ly required for use in performance of the Work of the Project, then Surety shall pay for the same in an amount not-to-exceed the Bonded Sum, otherwise this obligation shall be null and void.
The following terms and conditions shall apply with respect to this Bond:
1. The Design-Builder and the Surety, jointly and seve rally, bind themselves, their heirs, executors, administrators, successors and assigns to City and to Claimants, to pay for labor, materials and equipment furnished for use in the performance of t he Contract, which is incorporated herein by reference.
2. With respect to City, this obligation shall be null and void if the Design-Builder:
2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and
2.2 Defends, indemnifies and holds harmless City from a ll claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Contract, provided City has promptly notifie d the Design-Builder and the Surety (at the address described in Paragraph 10) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Design-Builder and the Surety, and provided there is no City Default.
3. With respect to Claimants, this obligation shall be null and void if the Design-Builder promptly makes payment, directly or indirectly through its subcont ractors, for all sums due Claimants. However, if Design-Builder or its subcontractors fail to pay any of the persons named in California Civil Code § 3181, or amounts due under the Unemployment Insuran ce Code with respect to work or labor performed under the Contract, or for any
79 amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Design-Builder or subcontractors pursuant to the Unemployment Insurance Code
§ 13020, with respect to such work and labor, then Surety will pay for the same, and also, in case suit is brought upon this bond, a reasonable attorney's fee, to be fixed by the Court.
4. The Surety shall have no obligation to Claimants under this Bond unless the Claimant has satisfied all applicable notice requirements under Civil Code § 9560.
5. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety under this Bond.
6. Amounts due the Design-Builder under the Contract s hall be applied first to satisfy claims, if any, under any Construction Performance Bond and second, to satisfy obligations of the Design-Builder and the Surety under this Bond.
7. City shall not be liable for payment of any costs, expenses, or attorney's fees of any Claimant under this bond, and shall have under this Bond no obliga tions to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond.
8. The Surety hereby waives notice of any change, incl uding changes of time, to the Contract or to related subcontracts, purchase orders and other obligations.
9. Suit against Surety on this Payment Bond may be bro ught by any Claimant, or its assigns, at any time after the Claimant has furnished the last of t he labor or materials, or both, but, pursuant to California Civil Code § 9558, must be commenced bef ore the expiration of six months after the period in which stop payment notices may be filed as provided in Civil Code § 9356.
10. Notice to the Surety, City or the Design-Builder shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, City or the Principal, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page.
11. This Bond has been furnished to comply with Civil Code § 9000 et seq. Any provision in this Bond conflicting with said statutory requirements shall be deemed deleted and provisions conforming to such statutory or other legal requirements shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond.
12. Upon request by any person or entity appearing to b e a potential beneficiary of this Bond, the Design-Builder shall promptly furnish a copy of this Bond or shall permit a copy to be made.
13. DEFINITIONS
13.1 Claimant: An individual or entity having a direct c ontract with the Design-Builder or with a subcontractor of the Design-Builder to furnish labor, materials or equipment for use in the performance of the Contract, as further defined in California Civil Code § 9100. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, g asoline, telephone service or rental equipment used in the Contract, architectural and e ngineering services required for performance of the work of the Design- Builder and the Design-Builder's subcontractors, and all other items for which a stop payment notice might be asserted.
80 13.2 Contract: The agreement between City and the Design -Builder identified on the signature page, including all Contract Documents and changes thereto.
13.3 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Design- Builder as required by the Contract, provided that failure is the cause of the failure of Design-Builder to pay the Claimants and is sufficient to justify termination of the Contract.
IN WITNESS WHEREOF, three (3) identical counterpart s of this instrument, each of which shall for all purposes be deemed an original hereof, have been du ly executed by Principal and Surety of the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by i ts undersigned representative(s) pursuant to authority of its governing body. Principal and Surety have caused this Bond to be duly executed and delivered as of this day of , 20 .
SURETY:
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PRINCIPAL:
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Name
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Name
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Principal Place of Business Address
By:
Signature
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text.
Attorney-In-Fact
By:
Signature
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text.
Printed Name
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text.
Title
81 NOTARIAL CERTIFICATION OF ATTORNEY IN FACT, CORPORATION SEAL AND SURETY SEAL MUST BE
ATTACHED
(Seal)
Signature
On Click or tap here to enter text. before me, Click or tap here to enter text. personally appeared Click or tap here to enter text. , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/ executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws o f the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
State of California
City of
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text. )
ACKNOWLEDGMENT OF PAYMENT BOND
A Notary Public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this ce rtificate is attached, and not the truthfulness, accuracy, or validity of that document.
82 (Seal)
Signature
On Click or tap here to enter text. before me, Click or tap here to enter text. personally appeared Click or tap here to enter text. , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/ executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws o f the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
State of California
City of
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ACKNOWLEDGMENT OF ATTORNEY IN FACT
PAYMENT BOND
A Notary Public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this ce rtificate is attached, and not the truthfulness, accuracy, or validity of that document.
83 EXHIBIT H: CERTIFICATION OF CONTRACTOR AND SUBCONTRACTOR DEPARTMENT OF
INDUSTRIAL RELATIONS REGISTRATION
Pursuant to Labor Code Section 1725.5, a contractor or subcontractor must be registered with the Department of Industrial Relations in order to bid on, be listed in a bid proposal, or engage in the performance of any defined public work contract.
I, Name , Title certify that Contractor Name is currently registered with the Department of Industrial Relations (“DIR”): Contractor’s DIR Registration Number: Click or tap here to enter text.
Expiration Date: Click or tap here to enter
text. Contractor further acknowledges that:
Contractor shall maintain DIR registered status for the duration of the Project without lapse in registration.
Contractor shall note in its invitation to bid the DIR’s registration requirement for all subcontractors and their subcontractors.
Contractor shall ensure that all subcontractors are registered at the time of bid opening and maintain registered status for the duration of the Project.
Contractor is to furnish DIR Registration Number for all subcontractors on the project either at the time of bid or within 24 hours of the bid opening.
Contractor shall substitute any subcontractor with a DIR registered subcontractor if listed subcontractor is unable to perform the Work.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Signature
Date
84 EXHIBIT I: DESIGNATION OF SUBCONTRACTORS
Design-Builder shall set forth below:
1. The name and location of the place of business of each subcontractor who will perform work or labor or render service to the Design-Builder in or about the construction of the work of improvement, or a subcontractor licensed in the State of California who, under subcontract to the Design-Builder, specially fabricates and installs a portion of the work of improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-half of one percent (0.5%) of the Design-Builder 's total bid.
2. The portion and estimated dollar amount of the work which will be done by each subcontractor. The Design- Builder shall list only one subcontractor for each portion as is defined by the Design-Builder in his/her bid.
3. If the Design-Builder fails to specify a subcontrac tor, or if the Design-Builder specifies more than one subcontractor for the same portion for work to be performed under the Contract in excess of one-half of one percent of the Design-Builder's tot al bid, then he/she agrees that he/she is fully qualified to perform that portion himself/herself, and that he/she shall perform that portion himself/herself. If after award of Contract, the De sign-Builder subcontracts any such portion of the Work, the Design-Builder shall be subject to the statutory penalties.
4. All subcontractors (of any tier) performing any portion of the work or labor or rendering services to the Design- Builder must comply with Labor Code Sec tions 1771.1 and 1725.5, must be properly registered with the California Department of Indust rial Relations, and must be qualified to perform public works pursuant to Labor Code Section 1725.5 throughout the duration of the Project.
Please type or legibly print (attach additional sheets as necessary).
85 Subcontractor Information for City and
DIR Dated:
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text.
1.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
2. Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
3. Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
4.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
5.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
6.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
DESIGN-BUILD AGREEMENT
Exhibit I-3
7.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
8.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
9.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
10.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
11.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
12.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
DESIGN-BUILD AGREEMENT
Exhibit I-4
13.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
14.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
15.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
16.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
17.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
18.Subcontractor
Name
Item of Work
Complete Street Address
Phone No.
Project Manager
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
DESIGN-BUILD AGREEMENT
Exhibit J-1
EXHIBIT J: COMMUNITY WORKFORCE AGREEMENT
CITY OF ANAHEIM
GENERAL CONDITIONS
FOR
DESIGN -BUILD CONTRACT
TABLE OF CONTENTS
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1. GENERAL PROVISIONS ................................................................................................................. 1
1.1 Basic Definitions ............................. .............................................................................................. 1
1.2 Correlation and Intent of the Contract Document s ....................................................................... 5
1.3 Interpretation ................................ ................................................................................................ 6
1.4 Ownership and Use of Drawings, Specifications a nd Other Instruments of Service ................... 7
2. CITY'S DUTIES AND RESPONSIBILITIES ..................................................................................... 8
2.1 General ....................................... ................................................................................................. 8
2.2 Duty to Cooperate ............................. ........................................................................................... 8
2.3 City Review of Design Materials ............... ................................................................................... 9
2.4 Information and Services Required of City ..... ............................................................................. 9
2.5 City's Right to Stop the Work ................. .................................................................................... 10
2.6 City's Right to Carry Out the Work ............ ................................................................................. 10
2.7 Suspension of Operations ...................... .................................................................................... 10
2.8 Prohibited Interests .......................... .......................................................................................... 10
2.9 City's Right to Order Extraordinary Measures .. .......................................................................... 11
3. DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES............................................................. 11
3.1 General Scope of Work ......................... ..................................................................................... 11
3.2 Review of Design and Performance Criteria in RF P and Field Conditions ................................ 12
3.3 Before Starting Work .......................... ........................................................................................ 12
3.4 Initial Conference ............................ ........................................................................................... 13
3.5 Evaluation of Preliminary Submittals........... ............................................................................... 13
3.6 Design Professional Licensing Requirements .... ....................................................................... 13
3.7 Standard of Care .............................. .......................................................................................... 13
3.8 Constructability and Coordination Reviews ..... .......................................................................... 14
3.9 Design Development Documents – Phase 1 ........ ..................................................................... 14
3.10 Construction Documents – Phase 2 ............. ............................................................................. 14
3.11 Construction – Phase 3 ....................... ....................................................................................... 16
3.12 Daily Reports ................................ .............................................................................................. 16
3.13 Record Drawings and As-Builts ................ ................................................................................. 16
3.14 Supervision and Construction Procedures ...... .......................................................................... 17
3.15 Labor and Materials .......................... ......................................................................................... 18
3.16 Intellectual Property and Patent Rights ...... ................................................................................ 19
3.17 Warranty ..................................... ................................................................................................ 20
3.18 Taxes ........................................ .................................................................................................. 21
3.19 Permits, Fees and Notices .................... ..................................................................................... 22
3.20 Compliance with Applicable Law ............... ................................................................................ 22
3.21 Allowances ................................... .............................................................................................. 23
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3.22 Design-Builder's Key Personnel, Design Consult ants and Subcontractors ............................... 23
3.23 Site Conditions .............................. ............................................................................................. 24
3.24 Instruction/Training ......................... ............................................................................................ 25
3.25 Manuals ...................................... ................................................................................................ 25
3.26 Use of Site .................................. ................................................................................................ 26
3.27 Cleaning Up .................................. ............................................................................................. 27
3.28 Responsibility for Environmental Compliance... ......................................................................... 32
3.29 Access to Work ............................... ........................................................................................... 32
3.30 Signs and Advertising ........................ ........................................................................................ 33
3.31 Coordination with Neighboring Property ....... ............................................................................. 33
3.32 Shop Drawings, Product Data and Samples ...... ....................................................................... 33
4. DESIGN SUBMISSIONS ............................................................................................................... 35
4.1 Applicability ................................. ............................................................................................... 35
4.2 Design Reviews ................................ ......................................................................................... 35
4.3 Purpose ....................................... ............................................................................................... 36
4.4 Resolution of Comments ........................ .................................................................................... 36
4.5 Schematic Documents ........................... .................................................................................... 36
4.6 Design Development Documents .................. ............................................................................ 38
4.7 Construction Documents ........................ .................................................................................... 41
4.8 Building Permit Documents ..................... ................................................................................... 41
4.9 Procedures .................................... ............................................................................................. 41
5. ADMINISTRATION OF THE CONTRACT ..................................................................................... 41
5.1 Role of City Engineer ......................... ........................................................................................ 41
5.2 Design Concept Meetings ....................... ................................................................................... 42
5.3 Coordination Meetings ......................... ...................................................................................... 42
5.4 Administration of the Contract ................ .................................................................................... 42
5.5 Supervision and Inspection by City ............ ................................................................................ 42
6. SUBCONTRACTORS AND DESIGN CONSULTANTS ................................................................. 44
6.1 Award of Subcontracts and Other Contracts for P ortions of the Work ....................................... 44
6.2 Design Consultant and Subcontractor Relations . ...................................................................... 46
6.3 Contingent Assignment of Design Consultant, Sub contractor and Material Supply Agreements .................................................................................................................................................. 47
7. CONSTRUCTION BY CITY OR BY SEPARATE CONTRACTORS .............................................. 48
7.1 City's Right to Perform Construction and to Awa rd Separate Contracts .................................... 48
7.2 City's Right to Clean Up ...................... ....................................................................................... 48
7.3 Independent Testing ........................... ........................................................................................ 48
8. CHANGES IN THE WORK............................................................................................................. 49
8.1 General ....................................... ............................................................................................... 49
8.2 Change Orders ................................. .......................................................................................... 49
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8.3 Construction Change Directives ................ ................................................................................ 50
8.4 Computation of Cost or Credit for Changes ..... .......................................................................... 50
8.5 Authority to Approve Changes .................. ................................................................................. 52
8.6 City Originated Proposal Request .............. ................................................................................ 53
8.7 Design-Builder Originated Change Order Request (COR) ........................................................ 53
9. SCHEDULE AND EXTENSIONS OF TIME ................................................................................... 54
9.1 Definitions ................................... ............................................................................................... 54
9.2 Progress and Completion........................ ................................................................................... 54
9.3 Design-Builder's Schedules .................... ................................................................................... 54
9.4 Delays and Extensions of Time ................. ................................................................................. 57
10. PAYMENTS AND COMPLETION .................................................................................................. 60
10.1 Contract Price ............................... ............................................................................................. 60
10.2 Schedule of Values ........................... ......................................................................................... 60
10.3 Applications for Payment ..................... ...................................................................................... 60
10.4 Decision to Withhold Payment ................. .................................................................................. 64
10.5 Progress Payments ............................ ........................................................................................ 66
10.6 Substantial Completion ....................... ....................................................................................... 67
10.7 Partial Occupancy or Use ..................... ..................................................................................... 68
10.8 Final Completion and Final Payment ........... .............................................................................. 69
11. PROTECTION OF PERSONS AND PROPERTY ......................................................................... 73
11.1 Safety Precautions and Programs .............. ............................................................................... 73
11.2 Safety of Persons and Property ............... .................................................................................. 74
11.3 Hazardous Materials .......................... ........................................................................................ 76
11.4 Design-Builder Materials ..................... ....................................................................................... 77
11.5 Emergencies .................................. ............................................................................................ 77
11.6 Protection of the Work ....................... ......................................................................................... 77
11.7 Protection of Existing Property .............. ..................................................................................... 77
12. INDEMNIFICATION ....................................................................................................................... 78
12.1 Indemnity for Professional Liability ......... ................................................................................... 78
12.2 Indemnity for Other Than Professional Liabilit y ......................................................................... 78
12.3 Enforcement .................................. ............................................................................................. 79
12.4 No Limitations ............................... ............................................................................................. 80
12.5 Notice and Legal Defense ..................... ..................................................................................... 80
12.6 Failure to Defend Action ..................... ........................................................................................ 80
12.7 Survival ..................................... ................................................................................................. 81
13. INSURANCE .................................................................................................................................. 81
13.1 Insurance Requirements ....................... ..................................................................................... 81
13.2 Commercial Automobile Liability Insurance .... ........................................................................... 81
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13.3 Commercial General Liability Insurance ....... ............................................................................. 81
13.4 Excess Liability ............................. .............................................................................................. 82
13.5 Workers' Compensation/Employer’s Liability Ins urance ............................................................ 82
13.6 Professional Liability Insurance ............. .................................................................................... 82
13.7 Design-Builder's Equipment Floater ........... ............................................................................... 82
13.8 Builders Risk Insurance — Including Transporta tion Floater ..................................................... 83
13.9 Pollution Liability Insurance ................ ....................................................................................... 84
13.10 Additional General Requirements ............. ................................................................................. 84
14. QUALITY AND CORRECTION OF WORK .................................................................................... 86
14.1 Quality of Work and Material ................. ..................................................................................... 86
14.2 Quality Assurance / Quality Control Plan ..... .............................................................................. 87
14.3 Uncovering of Work ........................... ......................................................................................... 88
14.4 Correction of Work ........................... .......................................................................................... 89
15. TERMINATION OR SUSPENSION OF CONTRACT .................................................................... 89
15.1 Termination by Design-Builder ................ ................................................................................... 89
15.2 Termination by City for Cause ................ .................................................................................... 90
15.3 Suspension by City ........................... ......................................................................................... 91
15.4 Termination by City for Convenience .......... ............................................................................... 92
16. LABOR PROVISIONS .................................................................................................................... 93
16.1 Normal Hours of Work ......................... ....................................................................................... 93
16.2 Saturday, Sunday, Holiday and Overtime Work .. ....................................................................... 93
16.3 DIR Registration ............................. ............................................................................................ 94
16.4 Wage Rates ................................... ............................................................................................. 94
16.5 Hours of Labor ............................... ............................................................................................ 95
16.6 Records of Wages Paid......................... ..................................................................................... 95
16.7 Monitoring and Enforcement by Labor Commission er ............................................................... 97
16.8 Apprentices .................................. .............................................................................................. 97
16.9 Skilled and Trained Workforce ................ ................................................................................... 99
16.10 Prohibition Against Use of Debarred Contracto rs ...................................................................... 99
16.11 Character of Workers ........................ ......................................................................................... 99
16.12 Workers’ Compensation ....................... ...................................................................................... 99
17. CLAIMS AND DISPUTE RESOLUTION ........................................................................................ 99
17.1 Submission of Claims ......................... ....................................................................................... 99
17.2 Claims Resolution ............................ ........................................................................................ 103
17.3 Dispute Resolution ........................... ........................................................................................ 105
18. MISCELLANEOUS PROVISIONS ............................................................................................... 105
18.1 Amendments ................................... ......................................................................................... 105
18.2 Successors and Assigns ....................... ................................................................................... 105
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18.3 Waiver ....................................... ............................................................................................... 106
18.4 Limitation on Third Party Beneficiaries ...... ............................................................................... 106
18.5 No Assignment or Delegation .................. ................................................................................ 106
18.6 Gratuities and Conflicts of Interest ......... .................................................................................. 106
18.7 Maintenance of, Access to and Audit of Records .................................................................... 107 - vi -
18.8 Retention of Records ......................... ...................................................................................... 108
18.9 Public Records Act ........................... ........................................................................................ 108
18.10 Keys and Access ............................. ......................................................................................... 108
18.11 Interference ................................ .............................................................................................. 108
18.12 Clean Premises .............................. .......................................................................................... 109
18.13 Sanitary Facilities ......................... ............................................................................................ 109
18.14 City Engineer’s Office ...................... ......................................................................................... 109
18.15 Partnering .................................. ............................................................................................... 110
18.16 Survival of Terms ........................... ........................................................................................... 111
18.17 No Personal Liability of City Employees ..... ............................................................................. 111
18.18 Compliance with Restrictions ................ ................................................................................... 111
18.19 Governing Law and Venue ..................... .................................................................................. 111
18.20 Further Assurances .......................... ........................................................................................ 111
18.21 Headings .................................... .............................................................................................. 111
18.22 Entire Agreement ............................ ......................................................................................... 112
18.23 Counterparts ................................ ............................................................................................ 112
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GENERAL CONDITIONS FOR DESIGN-BUILD CONTRACT
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General Conditions for Design-Build Contract
GENERAL PROVISIONS
Basic Definitions
1.1.1 Acceleration Proposal Request. City's written reque st to Design-Builder to submit an itemized proposal for Extraordinary Measu res in order to achieve early completion of all or a portion of the Work when the need for such measures is not due to the fault of Design- Builder.
1.1.2 Addenda. The Addenda or Addendum consist of the written clarifications of the Request for Proposal requirements or the Contract Documents issued by City prior to the execution of the Agreement.
1.1.3 Agreement. When capitalized, means the document signed by City and Design- Builder for performance of the Work, as amended fro m time to time, which sets forth the rights and obligations of the Parties, including all exhibits and attachments.
1.1.4 Allowance. An amount carried in the Contract Price for a particular scope of Work insufficiently defined so as to allow Design-Builder to adequately determine the fair value on the Pro posal deadline.
1.1.5 Applicable Laws. All State, federal and local laws, statutes, ordinances, building codes, rules, and regulations relating to the Work including, but not limited to, disabled access.
1.1.6 As-Built Drawings. A set of drawings updated and ma rked to show deviations made during construction, details in the Work not p reviously shown, changes to existing conditions fou nd to differ from those shown on existing drawings, and the actual installed position of equipment and fixtures.
1.1.7 Change Order. A Change Order is a written document prepared by City reflecting the agreement between City and Design-Bu ilder for a change in the terms or conditions of th e Contract, if any; a specific scope change in the Work; the amount of the adjustment, if any, in the Contract Price; and the extent of the adjustment, if any, in the Contract Time.
1.1.8 Change Order Request. As more specifically described herein below, a Change Order Request is a written document originated by D esign-Builder, which describes an instruction issue d by City after the effective date of the Contract, w hich Design-Builder believes to be a scope change t hat may result in changes to the Contract Price or Contract Time or, which describes the need for or desirability of a change in the Work proposed by Design-Builder.
1.1.9 City’s Representative. The person designated as the City’s representative for the Project. The Director of Public Works (“Directo r”) or his/her designee shall represent the City in all matters concerning this Agreement. The Director has designated the City Engineer as the City’s authorized representative for this Project. The City Engineer may designate in writing, from time to time, one or more representatives authorized to act on the City’s beh alf with respect to the Project. The City's Representative interprets and clarifies City's poli cies,
GENERAL CONDITIONS FOR DESIGN-BUILD CONTRACT
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renders decisions with respect to Design-Builder's performance of the Work, approves Design- Builder Applications For Payment, reviews and approves Desi gn-Builder schedules and submittals, reviews and approves Change Order Requests and Change Orders, r eviews all quantity calculations related to pay quantities, reviews and approves changes in the Contract Time, concurs in any defective work notification, and reviews and determines Substantial Completion of the Work and Final Completion of the Work.
1.1.10 Construction Change Directive. A Construction Change Directive is a unilateral written order prepared and signed by City, directing Design-Builder to perform a change in the Work prior to agreement on adjustment, if any, in the Contract Price or Contract Time, or both.
1.1.11 Construction Documents. All technical drawings, sho p drawings, working drawings, specifications, schedules, diagrams and S amples, setting forth in detail the requirements necessary for construction of the Project in accordance with the Contract Documents, approved by City and incorporated into the Contract after such approval. All amendments to the Construction Documents must be approved by City prior to incorporation into the Contract and prior to the construction of the Work affected by the change.
("Contract").
1.1.12 Contract. The Contract Documents form the Design-Build Contract
1.1.13 Contract Documents. The Contract Documents consist of the documents enumerated as such in the Agreement between City and Design-Builder, all Addenda issued prior to and all Modifications issued after the effective date of the Agreement.
1.1.14 Contract Price. The Contact Price indicated in the Agreement.
1.1.15 Date of Commencement. The date for commencement of the Work fixed by City in a Notice to Proceed to Design-Builder.
1.1.16 Day(s). The terms "day" or "days" mean calendar day s unless otherwise specifically designated in the Contract Documents. The term "Work Day" or "Working Day" shall mean any calendar day except Saturdays, Sundays and City-recognized legal holidays.
1.1.17 Design-Build. The terms "Design-Build" and "Design- Build Services" mean a method of construction in which Design-Builder furn ishes both professional design services and construction services for all or portions of the Wo rk so designated in the Contract Documents. Design- Builder shall be solely responsible for all design, construction means and methods, cost overruns, defects, errors, omissions and delays arising from its Design-Build Services required by the Contract Documents.
1.1.18 Design-Build Team Members. Design-Builder, Subcontr actors, and licensed Design Consultants identified in the Agreement.
1.1.19 Design-Builder. Design-Builder is the person or ent ity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. Design-Builder.
Design-Builder is a person or entity who has a direct contract with City to perform a portion of the W ork at the Site. The term “Design-Builder" does not include Separate Contractors.
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1.1.20 Design Consultant. A qualified licensed design prof essional who is not an employee of Design-Builder, but is retained by Desi gn-Builder, or anyone under contract with Design- Builder or a Subcontractor, to furnish design services required by the Contract Documents.
1.1.21 Design Development Documents. Design Development Do cuments may include, but are not limited to, conceptual design documents, preliminary drawings, outline technical specifications, design and performance criteria, an d other documents provided by Design-Builder establishing the Project’s basic elements and scale and their relationship to the Work Site.
1.1.22 Drawings. The graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work, g enerally including plans, elevations, sections, det ails, schedules, and diagrams.
1.1.23 Extraordinary Measures. Measures implemented by Des ign-Builder at City's direction to expedite the progress of design or construction of all or a portion of the Work, including, without limitation, (i) working additional shifts or overti me, (ii) supplying additional manpower, equipment, and facilities, and (iii) submitting a recovery schedule for resequencing performance of the Work or other similar measures, as more specifically described in Paragraph 2.8.
1.1.24 Final Completion. The stage of performance when all Work has been satisfactorily completed in accordance with all iss ued permits and the Contract Documents and as evidenced by City’s approval of Design-Builder’s Fi nal Application for Payment. The determination of t he date of Final Completion shall be made reasonably and in good faith by City and shall be fixed in a No tice of Completion issued by City.
1.1.25 Final Payment. City's payment of the Contract Price due to Design- Builder for the entire Work, less only the sums which City is s pecifically allowed to withhold under the terms of the Contract Documents and Applicable Law.
1.1.26 Modification. A Modification is (i) a written amendment to the Agreement signed by duly authorized representatives of the Parties, (ii) a Change Order signed by both parties, or (iii ) a Construction Change Directive.
1.1.27 Notice of Completion. City intends to record a Notice of Completion when all Work called for in the Construction Documents has been completed.
1.1.28 Notice to Proceed. The Notice to Proceed is a writt en document issued by City fixing the date for commencement of the Work. The Contract Time for Design-Builder's performance of the Work is measured in calendar days (not Work Days).
1.1.29 Parties. City and Design-Builder may be referred to in the Contract Documents from time to time as the Parties.
1.1.30 Preliminary Design Documents. The preliminary desig n documents prepared and submitted by Design-Builder as part of the Proposal process.
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1.1.31 Project. The Project is the total design and constr uction of which the Work performed under the Contract Documents may be the whole or a part and which may include design and/or construction by City or by Separate Contractors.
1.1.32 Project Representative. Those individuals designate d by the Parties in writing with authority to render decisions in connection with the Work and the Agreement.
1.1.33 Project Schedule. The schedule for performance of t he Work attached to the Agreement pursuant to which Design-Builder has agreed to complete the Work. The Project Schedule shall be adjusted pursuant to the provisions of the Contract Documents.
1.1.34 Proposal. A complete and properly executed offer by Design-Builder to perform the Work for the sums stipulated therein, submitted in accordance with the RFP Documents.
1.1.35 Proposer. A person or entity who, as the lead Desig n-Build Team Member, submits a Proposal to the Owner.
1.1.36 Recovery Schedule. A plan submitted by Design-Builder in the event the Work is lagging behind the Critical Path demonstrating Desi gn-Builder’s proposed plan to regain lost schedule progress and to achieve Substantial Completion in a ccordance with the requirements of the Contract Documents.
1.1.37 Request for Proposals ("RFP"). The Request for Prop osals issued by City, including any and all attachments and addenda.
1.1.38 RFP Documents. RFP Documents include the Proposal r equirements and the proposed Contract Documents.
1.1.39 Scope Change. A Scope Change is Work that is not reasonably inferable from the Contract Documents upon which the Contract Price is based, by a design-builder with the skill, experience, and expertise necessary for the proper, timely, and orderly completion of the Work or a project of thi s type and quality, and is (i) materially inconsistent wit h, or (ii) a material change in the quantity, quali ty, programming requirements, or other substantial devi ation in, the Contract Documents upon which the Contract Price is based.
1.1.40 Separate Contractors. The term Separate Contractors means licensed contractors performing portions of the Project under separate contracts with City.
1.1.41 Site. The physical area designated in the Contract Documents for Design- Builder's performance of the Work.
1.1.42 Specifications (Technical Specifications). The outline Specifications included in the Design Development Documents as well as the Specifications included in the Construction Documents approved by City, consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, warranties, and performance of related services.
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1.1.43 Subcontractor. Subcontractor is a person or entity who has a direct or indirect contract with a Design-Builder to perform a portion of the Work at the Site. Unless otherwise specifie d, Subcontractor excludes suppliers, manufacturers and distributors.
1.1.44 Substantial Completion. Substantial Completion is defined to mean the stage in the progress of the Work when the Work is sufficiently complete in accordance with the Contract Documents as determined by City so that City can occupy and u tilize the Work for its intended use (for which a Temporary Certificate of Occupancy ("TCO") has been issued unless a TCO is not required to operate that type of facility) and as further defined in the Gen eral Conditions, provided, however, that Substantia l Completion shall not occur until the requirements in Paragraph 10.6 herein have been satisfied.
1.1.45 Work. The design, construction and other services required by, and reasonably inferable from the Contract Documents, whether comp leted or partially completed, and includes all othe r labor, materials, equipment, and services provided or to be provided by Design-Builder to fulfill Desi gn- Builder's obligations. The Work may constitute the whole or a part of the Project.
Correlation and Intent of the Contract Documents
1.1.46 Complementary Documents. The intent of the Contract Documents is to include all items necessary for the proper execution and co mpletion of the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. All Work mentioned or indicated in the Contract Documents, and all Wor k reasonably inferable from them, shall be performe d by Design-Builder as part of the Contract unless it is specifically indicated in the Contract Document s that such work is to be done by others.
1.1.47 Order of Precedence. In the event of conflict betwe en any of the Contract Documents, the provision placing a more stringent requirement on Design-Builder shall prevail regardless of the order of precedence of the documents in which such conflicting provisions are referenced, unless the Parties otherwise agree. Design-Builder shall provi de the better quality or greater quantity of Work a nd/or materials unless otherwise directed by City in writing. In the event none of the Contract Documents place a more stringent requirement or greater burden on Design- Builder, the controlling provision shall be that which is found in the document with higher precedence. In the event of conflicts or discrepancies among the Contract Documents, interpretations will be based o n the following order of precedence, with "(1)" bei ng the highest:
(1) Permits issued by regulatory agencies and any right-of-entry agreement, licensing agreement and/or easement with private entities required for the Work;
(2) Modifications;
(3) Agreement including all exhibits incorporated by reference therein;
(4) General Conditions;
(5) RFP Addenda;
(6) Request for Proposals;
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(7) 2021 Standard Specifications for Public Works Const ruction (“Standard Specifications”) by the Southern California Chapter, American Public Works Association and the Southern California City, Associated General Contractors of California Joint Cooperative Committee, as modified and supplemented by the City;
(8) Final Construction Documents prepared by Design-Bui lder and approved by City in writing (within the Construction Documen ts, the technical specifications shall have precede nce over the plans and drawings);
(9) Design Development Documents prepared by Design-Bui lder, with technical specifications contained therein having precedence over plans and excluding any deviations from the requirements of the other Contract Documents co ntained therein which have not been specifically approved in writing as such by City; and
(10) Design-Builder’s Proposal, which includes the Preli minary Design Documents, to the extent it is consistent with the requirements of, or provide enhancements to, the ot her Contract Documents.
Nothing herein shall relieve Design-Builder of its obligation to notify City of any inconsistencies in the Contract Documents. Should it appear that the Work to be done or any of the matters relative thereto a re not sufficiently detailed or explained in the Contract Documents, Design-Builder shall apply to City in writing for such further written explanations as may be necessary.
All Work shall conform to the Contract Documents. No change therefrom shall be made without review and written acceptance by City.
1.1.48 Organization. Organization of the design documents into divisions, sections, and articles, and sequential order of Drawings shall not control Design-Builder in dividing the Work among Design Consultants or Subcontractors or in establishing the extent of Work to be performed.
1.1.49 Well-Known Terms. Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings.
1.1.50 Design-Builder Deviations. No deviation by Design-B uilder from the Contract Documents relating to any portion of the services, materials, labor, or equipment required for the Work shall be construed to set a precedent with respect to sub sequent interpretation of the Contract Documents or performance of the Work unless such a deviation is memorialized in a Modification to the Contract.
Interpretation
1.1.51 Omitted Articles. In the interest of brevity, the C ontract Documents frequently omit articles such as "the" and "an", but the fact that an article is absent from one statement and ap pears in another is not intended to affect the interpretation of either statement.
1.1.52 References to Contract Documents. Where "as indicat ed", "as detailed", or words of similar import are used, it shall be under stood that the reference is made to any portion of the Contract Documents.
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1.1.53 Severability. If any clause, provision, section or part of the Contract is ruled invalid by a court of competent jurisdiction, then the Parties shall: (a) promptly meet and negotiate a substitute for such clause, provision, section or p art which shall, to the greatest extent legally per missible effect the original intent of the Parties, includin g an equitable adjustment to the Contract Price to account for any change in the Work resulting from such invalidated portion; and (b) if necessary or desirable, apply to the court which declared such invalidity for a j udicial construction of the invalidated portion to guide the negotiations. The invalidity or unenforceability of any such clause, provision, section or part shall not affect the validity or enforceability of the balance of the Contract, which shall be construed and enforced as if the Contract did not contain that invalid or unenforceable clause, provision, section or part.
1.1.54 Provisions Deemed Inserted. Each and every provision and clause required by law to be inserted in the Contract Documents shall be deemed to be inserted herein and the Contract Documents shall be read and enforced as though such provision or clause is included herein and, if through mistake or otherwise, any such provision is not ins erted or not correctly inserted, then upon applicat ion of either Party, the Contract Documents shall forthwit h be physically amended to make such insertion or correction.
1.1.55 Headings Not Controlling. The various headings cont ained in the Contract Documents are inserted for convenience only and sha ll not affect the meaning or interpretation of the Contract or any provision thereof.
1.1.56 Capitalization. Terms capitalized in these General Conditions include those which are (i) specifically defined, (ii) the titles of numbered articles, and identified references to paragraphs, subparagraphs and clauses in the document or (iii) the titles of other Contract Documents or forms.
Ownership and Use of Drawings, Specifications and Other Instruments of Service
1.1.57 Ownership of Contract Documents. The Construction D ocuments and other Project-related documents and electronic data prepared by or on behalf of the Design- Builder for the Project shall be deemed to be “works for hire” and are the property of City. Design- Builder assigns to City, without reservation, all copyrights to all Project-related documents, models, computer drawings and other electronic expression, photographs, and other expression produced by Design-Builder. Among those documents are certain “Instruments of Service,” including the des ign drawings, Design-Builder Specifications, and ot her documents that are required by the Contract Documents. Design-Builder shall obtain a valid assignment of copyrights from its consultants in terms identical to those that obligate Design-Builder to City as expressed in this subparagraph, which copyrights Design-Builder hereby assigns to City. City, in turn, hereby grants to the Design-Builder a nonexclusive license to reprod uce the documents for purposes relating directly to Design-Builder’s performance of this Project, for Design-Builder’s archival records, and for Design-Builder’s reproduction of drawings and photographs in Design- Builder’s marketing materials provided the contents of those materials, as to this Project, are approve d by City. No other Project-related documents may b e reproduced for any other purpose without the expres s written permission of City. No other copyrights a re included in this grant of nonexclusive license to D esign-Builder. This nonexclusive license shall term inate immediately upon the breach of this Agreement by Design-Builder.
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1.1.58 Submissions to City. A copy of every technical memo randum and report prepared by Design-Builder shall be submitted to City to demonstrate progress toward completion of Work.
In the event City rejects or has comments on any su ch work product or Instrument of Service, City shal l identify specific requirements for satisfactory com pletion by Design-Builder. Upon City’s written requ est, Design-Builder shall provide City with Project-rela ted documents in reproducible or electronic format, as further specified by City. Complete Record Documents shall be turned over to City upon termination of this Agreement or Final Completion, whichever occurs fir st. If City subsequently reproduces Project-related documents or creates (or causes to create) a deriva tive work based upon Project-related documents created by Design-Builder, City shall remove or completely obliterate the original professional seals, logos, and other indications on the documents of the ident ity of Design-Builder and its Design Consultants.
However, where required by law, such identification with appropriate qualifying language or other statutorily prescribed information identifying the original City or the scopes of the reuse of the documents may remain or be applied. In the event this Agreement is terminated prior to completion of the Work, City may terminate the license and City is authorized to allow another Design-Builder, architect, contractor, or City itself, to use the documents prepared for City's benefit for the Project and all said documents deemed to be the property of City.
CITY'S DUTIES AND RESPONSIBILITIES
General
City is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. Whenever the Contract Documents require or permit City to take or request an action or approve or disapprove of an action or request made by another Party, the reference to "City" shall mean City's Director of Public Works (“Director”) or his/her designee. The Director has designated the City Engineer as the City’s authorized representative for this Project. The City Engineer may designate in writing, from time to time, one or more representatives authorized to act on the City’s behalf with respect to the Project. Design- Builder shall not be entitled to rely on directions (nor shall it be required to follow the directions) from anyone outside the s cope of that person's authority as set forth in wri tten authorization pursuant to the Agreement. Direction and decisions made by the City Engineer or his/her designee shall be binding on City.
Duty to Cooperate
1.1.59 City shall, throughout the performance of the Work, cooperate with Design- Builder and perform its responsibilities, obligatio ns and services in a timely manner to facilitate De sign- Builder’s timely and efficient performance of the W ork and so as not to delay or interfere with Design - Builder’s performance of its obligations under the Contract Documents.
1.1.60 City shall provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the turnaround times set forth in the General Conditions.
1.1.61 City shall give Design-Builder timely notice of any Work that City notices to be defective or not in compliance with the Contract Documents.
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City Review of Design Materials
Design-Builder shall be entitled to proceed with all or a part of the construction phase of the Project upon City's review and approval of the design and construction documents, and any subsequent Submittals or Shop Drawings for overall conformance with the C ontract Documents. If City modifies or otherwise changes in a material way the scope of Work called for in the Construction Documents, subsequent Submittals or Shop Drawings, after such review for conformity, Design-Builder shall be entitled to a Change Order in accordance with Article 8 of the General Conditions. In no event shall a Change Order be issu ed to the extent such modification is due to the fault or neglect of Design-Builder, or in the event the original Submittals were not accompanied by annotations showing nonconformance with the Contract Documents, if any.
Information and Services Required of City
1.1.62 Approvals for Permanent Structures. Except for the permits, fees, and other such items set forth under Paragraph 3.19, that are the responsibility of Design-Builder under the Contract Documents, City shall pay for necessary assessments and charges reasonably required for use or occupancy of permanent structures or for permanent changes in existing facilities.
1.1.63 Existing Utilities: Removal, Relocation and Protect ion. In accordance with California Government Code § 4215, City shall assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project Site which are not identified in the Contract Documents provided by City. Design-Builder shall be compensated for the costs of locating, repairing damage not due to Design-Builder's failur e to exercise reasonable care, and removing or relocating such utility facilities not indicated in the Contract Documents with reasonable accuracy, a nd for equipment on the Project Site necessarily idled dur ing such work. Design-Builder shall not be assessed Liquidated Damages for delay in completion of the W ork when such delay is caused by the failure of Cit y or the utility provider to provide for removal or r elocation of such utility facilities. Nothing in this Paragraph shall be deemed to require City to indicate the pre sence of existing service laterals or appurtenances whenever the presence of such utilities on the Project Site can be inferred from the presence of other visible facilities, such as buildings, meters and junction boxes, on or adjacent to the Project Site. If Design-Builder encounters utility facilities not identified by City in the Contract Documents, Design-Builder shall immediately notify, in writing, City and the utility. In the event that such utility facilities are owned by a pub lic utility, the public utility shall have the sole discretion to perform repairs or relocation work or permit Design-Builder to do such repairs or relocation work at a price determined in accordance with Article 8 herein.
1.1.64 Surveys. Design-Builder shall be responsible for locating, and shall locate prior to performing any Work, all utility lines (including telephone, cable, television, fiber optic lines and cables), sewer lines, irrigation lines, water pipes, gas lin es, electrical lines, including, without limitation , all buried pipelines and buried telephone cables, and shall pe rform the Work in such a manner so as to avoid damaging any such lines, cables, pipes, and pipelines.
1.1.65 Time for Furnishing. Information or services requir ed of City by the Contract Documents shall be furnished by City with reasonable promptness following notification of same by Design- Builder.
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City's Right to Stop the Work
If Design-Builder fails to correct Work which is no t in accordance with the requirements of the Contract Documents as required by Paragraph 14.4 or fails to carry out Work in accordance with the Contract Documents, City may issue a written order to Design-Builder to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of City to stop the Work shall not give rise to a duty on the part of City to exercise this right for the benefit of Design-Builder or any other person or entity. City's right to stop the Work is in addition to and without prejudice to any other r ights or remedies of City.
City's Right to Carry Out the Work
If Design-Builder defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a forty-eight (48) hour period after receipt of written notice from City to commence and continue correction of such default or neglect with diligence and promptness, City may after such forty-eight (48) hour period give Design-Build er a second written notice to correct such deficien cies within a second forty-eight (48) hour period. If Design-Builder within such second forty-eight (48) hour period after receipt of such second notice fails to commence and continue to correct any deficiencies, City, without prejudice to other remedies City may have, may proc eed to correct such deficiencies. In such case an appropriate Construction Change Directive shall be issued deducting from payments then or thereafter due Design-Builder, the cost of correcting such deficie ncies, including compensation for any additional de sign and administrative services and expenses made necessary by such default, neglect, or failure. If payments then or thereafter due Design-Builder are not sufficient to cover such amounts, Design- Builder shall pay the difference to City. City's right to carry out the Work is in addition to and without prejudice to any other rights or remedies of City.
Suspension of Operations
In addition to City's right to stop the Work set fo rth in these General Conditions, Design- Builder shall, upon receipt of City's written notice and within the time stated therein, suspend shipment and delivery of material and stop any part or all of the Work and operations under the Contract for such period or periods of time as City may deem advisable and designate in said notice. Upon receipt of such notice to suspen d operations, Design-Builder shall immediately confer with City concerning the probable duration of such suspension and stoppage, delays, and extensions of time resulting therefrom as well as the reduction and possible elimination of Design- Builder's field cost and such other costs and expenses as may result directly from such Work stoppage. Upon written notice from C ity to resume operations, Design-Builder shall promptly resume all or any part of the Work and operations including securing of materials required by said resumption notice. Design-Builder shall be compensa ted for suspension in accordance with Article 15 herein.
Prohibited Interests
No official of City who is authorized in such capac ity and on behalf of City to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Project, shall become directly or indirectly intere sted financially in this Contract or in any part th ereof. No officer, employee, attorney, engineer or inspector of or for City who is authorized in such capacity a nd on behalf of City to exercise any executive, superviso ry
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or other similar functions in connection with const ruction of Project shall become directly or indirec tly interested financially in this Contract or any part thereof. Design-Builder shall receive no compensation and shall repay City for any compensation received by D esign-Builder hereunder, should Design-Builder aid, abet or knowingly participate in violation of this Article.
City's Right to Order Extraordinary Measures
1.1.66 Non-Compensable Extraordinary Measures. In the even t City determines that the performance of the Work, or any portion thereof, has not progressed or reached the level of completion required by the Contract Documents due to causes within the control of Design-Builder, City shall have the right to order Design-Builder to take corrective me asures necessary to expedite the progress of construction, including, without limitation,
(i) working additional shifts or overtime, (ii) sup plying additional manpower, equipment, and faciliti es, and (iii) submitting a recovery schedule for re-sequenc ing performance of the Work or other similar measur es as defined as Extraordinary Measures in Subparagraph 1.1.23 above. Such Extraordinary Measures shall continue until the progress of the Work complies wi th the stage of completion as required by the Contr act Documents. Design-Builder shall not be entitled to an adjustment in the Contract Price in connection w ith the Extraordinary Measures required by City under or pursuant to this section. City may exercise the rights furnished to City under or pursuant to this section as frequently as City deems necessary to ensure th at Design-Builder's performance of the Work will compl y with the Contract Time or interim completion date s set forth in the Contract Documents. If Design-Buil der or its Design Consultants or Subcontractors fai l to implement or commence Extraordinary Measures within ten (10) calendar days of City's written demand, City may, without prejudice to other remedies take corrective action at the expense of Design-Builder and shall reduce the Contract Price accordingly.
1.1.67 Compensable Extraordinary Measures. City, in its discretion, may issue a written request to Design-Builder asking Design-Builder to submit an itemized proposal for Extraordinary Measures in order to achieve early completion of all or a po rtion of the Work, due to no fault of Design-Builde r, in a form acceptable to City within ten (10) calendar da ys after City's issuance of the Acceleration Propos al Request.
DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES
General Scope of Work
1.1.68 Design-Builder shall furnish all design and other services, provide all materials, and undertake all efforts necessary or appropriate to construct the Project in accordance with the requirements of the Contract Documents, all governmental or private approvals, the approved Construction Documents, all Applicable Law, and all other applic able safety, environmental and other requirements taking into account the constraints affecting the P roject Site. Except as otherwise specifically provi ded in this Contract, all materials, services and efforts necessary to achieve Substantial Completion of the Project and elements thereof on or before the deadlines pro vided in the Contract Documents shall be Design- Builder's sole responsibility. The costs of all such materials, services and efforts are included in the Contract Price.
1.1.69 The scope of services to be provided by Design-Builder is set forth in the Contract Documents as more particularly described in Exhibit B to the Agreement.
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Review of Design and Performance Criteria in RFP and Field Conditions
1.1.70 Suitability of RFP Documents. Design-Builder acknowledges that the design and performance criteria in the RFP are necessarily conceptual in nature and that Design- Builder is responsible for correcting any errors, omissions or defects, wh ich can reasonably be corrected through the design and/or construction process, subject to Change Orde rs only for Scope Changes, and that it has satisfie d itself regarding the adequacy and accuracy of the design and performance criteria contained in the RFP and agrees to assume all risk and sole responsibility for all conditions in or among the various parts of the design and performance criteria in the RFP that (i) constitute errors, omissions, conflicts, ambiguities, or violations of Applicable Laws, or (ii) are unsuitable for construction.
1.1.71 Field Measurements. Prior to commencement of the Wo rk, or portions thereof, Design-Builder shall take field measurements and ve rify field conditions at the Site and shall careful ly compare such field measurements and conditions and other information known to or discovered by Design- Builder with information provided in the Contract D ocuments. Errors, inconsistencies or omissions discovered must be reported to City at once.
1.1.72 Request for Information ("RFI"). If Design-Builder encounters any condition which Design-Builder believes, in good faith and with reasonable basis, is the result of an ambiguity, conflict, error or omission in the Contract Documents (collec tively the "Conditions"), it shall be the affirmati ve obligation of Design-Builder to timely notify City, in writing, of the Conditions encountered and to r equest information from City necessary to address and reso lve any such Conditions before proceeding with any portion of the Work affected or which may be affect ed by such Conditions. If Design-Builder fails to timely notify City in writing of any Conditions encountered and Design-Builder proceeds to perform any portio n of the Work containing or affected by such Conditions, Design-Builder shall bear all costs associated wit h or required to correct, remove, or otherwise remedy any portion of the Work affected thereby without adjustment of the Contract Time or Contract Price. The Contrac t Time shall not be subject to adjustment in the ev ent that Design-Builder fails to timely request information from City.
1.1.73 Resolution of Uncertainties. City and Design-Builde r acknowledge that questions may arise concerning the level and scope of performance required under the RFP. City and Design-Builder will in good faith attempt to resolv e such conflicts and uncertainties in a manner that is consistent with the express design and performance intent of the RFP and without adjustment to the Contract Price or Contract Time. In the event that they are unable, after good faith efforts, to resolve such differences, then, in recognition of their mutual desire that such questions not result in a compromise of the high standards they mutually intend be followed for design and construction of the Project, City and Design- Builder agree that all such unresolved conflicts or uncertainties in respect to the standard of quality shall be interpreted so as to require Design-Builder to perf orm the Work, without adjustment to the Contract Pr ice or Contract Time, in a manner that reflects the higher or better standard indicated by the RFP.
Before Starting Work
Design-Builder shall submit the following to City for review and acceptance within fourteen (14) calendar days after the Date of Commencement f ixed in City's Notice to Proceed, and as a conditio n to payment: (i) detailed CPM Project Schedule inclu ding each deadline specified in the Contract Documents; (ii) Schedule of Submittals; (iii) material procurement schedule; and (iv) a
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Schedule of Values in accordance with the requirements of the General Conditions and other Contract Documents.
Initial Conference
Within twenty (20) calendar days after the Date of Commencement fixed in City's Notice to Proceed, a conference attended by City and Design-Builder and others as deemed appropriate will be held to establish a working understanding among the Parties as to the Work and to discuss the design concepts, updating schedules, progress meetings, procedures for handling Submittals, processing Applications for Payment, maintaining required records, coordination with Des ign- Builder Team Members, and other Project administration matters.
Evaluation of Preliminary Submittals
At least ten (10) calendar days before submission of the first Application for Payment, a conference attended by Design-Builder, City and others as appr opriate, will be held to review for acceptability t he submittals required by the Contract Documents. No progress payment shall be made to Design-Builder until the required submittals are acceptable to City in i ts sole discretion. The detailed Project Schedule w ill be acceptable to City as providing an orderly progress ion of the Work to completion within any specified Milestones and the Contract Time, but such acceptan ce will neither impose on City responsibility for t he sequencing, scheduling or progress of the Work nor interfere with nor relieve Design-Builder from Design- Builder's full responsibility therefor. The format and structure of the Project Schedule will be as set forth in the Contract Documents and approved by City. City's approval shall not be deemed to confirm that the Project Schedule is a reasonable plan for performing the Work. Design-Builder's schedule of submittals will be acceptable to City as providing a workable arran gement for reviewing and processing the required submittals.
Design Professional Licensing Requirements
City does not intend to contract for, pay for, or receive any design services which are in violation of any professional licensing laws, and by execution o f this Contract, Design-Builder acknowledges that C ity has no such intent. It is the intent of the Parties that Design-Builder is fully responsible for furni shing the design of the Project, although the fully licensed design firms designated as members of the Design Team, will perform the design services required by the Co ntract Documents. Nothing in this Article shall cre ate a contractual relationship between such persons or entities and City.
Standard of Care
All design services performed by Design-Builder, De sign Consultants, Subcontractors, and their employees identified by Design-Builder or other per sons approved by City shall be performed in an expeditious and professional manner using architects, engineers, and other professionals properly licensed and duly qualified in the jurisdiction in which the Project is located. The professional obligations o f such persons shall be undertaken and performed in the interest of Design-Builder. All design services performed pursuant to this Agreement shall be performed with the degree of skill and learning ordinarily possessed by architects and engineers in good standing in the co mmunity regularly engaged in the design and construction of an improvement such as this Project and must apply that knowledge with the diligence ordinarily exercised by reputable architects and en gineers under similar circumstances ("Standard of Care").
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1.1.74 Construction services shall be performed by Design-Builder and/or by qualified and licensed Design-Builder, Subcontractors and suppliers who are selected, paid and acting in the interest of Design-Builder in accordance with the procedures outlined in the Contract Documents.
1.1.75 Design-Builder shall keep City informed of the progress and quality of the Work in the form of periodic written reports, as determined by City but no less than monthly.
1.1.76 As a condition to final payment to Design-Builder, each Design-Build Team Member shall provide written certification that the Work has been designed and constructed in accordance with the Contract Documents and the design provided by such person.
Constructability and Coordination Reviews
On at least a monthly basis or such other intervals identified in the Contract Documents, Design- Builder shall meet with the City, its Separate Cont ractors, and consultants to coordinate both the Des ign Development Documents and Construction Documents, including the design of building systems delegated to the Design-Builder, for the purpose of continuin g construction feasibility, identifying conflicts, missing information or gaps in the planned scope of Work and to take appropriate action to ensure the full scope of intended Work is performed efficiently and economically.
Design Development Documents – Phase 1
After City's issuance of the Notice to Proceed and within the times set forth in the Project Schedule accepted by City, Design-Builder shall:
1.1.77 Consult with City to fully understand City's requir ements for the Project and review available data;
1.1.78 Advise City as to the necessity of City's providing or obtaining from others additional reports, data or services and take the l ead role in obtaining such reports, data or service s, with assistance from the City;
1.1.79 Identify and analyze requirements of private entiti es and governmental authorities having jurisdiction to approve the portions of the Project designed or specified by Design-Builder with whom consultation is to be undertaken in connection with the Project; and
1.1.80 Review design information provided by City in the RFP.
Construction Documents – Phase 2
shall:
After written acceptance by City of the Design Development Documents, Design-Builder
3.10.1 On the basis of the accepted Design Development Documents, prepare final Construction Documents showing the scope, extent, and character of the construction to be performed and furnished by Design-Builder including technical drawings, schedules, diagrams, calculations, and specifications (which, unless otherwise approved by City, will be prepared, where appropriate, in gene ral conformance with the sixteen division format of the Construction
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Specifications Institute) setting forth the requirements for construction of the Work which shall provide information customarily necessary for the use of those in building trades.
3.10.2 Provide technical criteria, written descriptions an d design data required for obtaining approvals of such private entities and go vernmental authorities as have jurisdiction to revi ew or approve the final design of the Project, and take the lead role in consultations with appropriate authorities.
3.10.3 Furnish the above documents, drawings, calculations, and specifications to and review them with City for approval within the time indicated in the approved Project Schedule at increments of at least 30%, 60% and 100% completion of the Construction Documents. After City's approval of the final Construction Documents, said documents shall be dee med to be incorporated as Contract Documents.
Design-Builder shall not proceed with the construct ion phase unless and until it receives City's writt en approval of the Construction Documents or portions thereof.
3.10.4 Design-Builder shall submit Construction Documents to City setting forth in detail drawings and specifications describing the requirem ents for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting. The Parties shall have a design review meeting to discuss, and City shall review and approve in writing, the Construction Documents in accordance with the procedures set forth herein. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit two sets of approved Construction Documents to City prior to commencement of construction.
3.10.5 The Design-Builder shall prepare Construction Documents for the entire Project in full compliance with all applicable building cod es, ordinances, and other regulatory authorities. T he Construction Documents shall, at a minimum, comply with all applicable California State Building Codes to include, but not limited to, Title 8 (Industrial Re lations), Title 17 (Public Health), and Title 24 (B uilding Standards). The completed Construction Documents ar e to be delivered to City and shall consist of the following: (1) Drawings - Provide one reproducible original and ten (10) printed copies of all approve d Construction Document drawings. Provide one copy of all approved Construction Document drawings on a USB drive using Computer-Aided Design (CAD) softwar e, using the latest version of AutoCAD; and (2) Specifications - Provide an original and ten (10) p rinted copies of approved specifications, bound and organized. Provide approved specifications on USB d rives for all sections for all work applicable to t he Project in a format complying with the current edit ion of the Construction Specifications Institute’s "Master Format," as directed by the City in accordance with the following:
a. Electronic computer software in Microsoft Word, lat est version for Windows.
b. For articles, materials and equipment identified by brand names, at least two names shall be used, and such names shall be fo llowed by the words "or equal." Specifications shal l not contain restrictions that will limit competitive bids. Exceptions shall only be permitted by California Public Contract Code § 3400.
c. All USB drives produced shall be clearly labeled to indicate files contained and date produced.
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3.10.6 City's review and approval of interim design submis sions and the Contract Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither City's r eview nor approval of any interim design submission s and Construction Documents shall be deemed to trans fer any design liability from Design-Builder to Cit y.
City’s review and approval of required submittals shall not relieve Design-Builder from the responsibility for any variation from the requirements of the Contract Documents unless Design-Builder has, in writing, called City’s attention to each such variation at the time of submission and City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the submittal.
Construction – Phase 3
Design-Builder shall perform Construction Services in accordance with the requirements of the General Conditions.
3.10.7 Construction Services shall be performed by Design-Builder and/or by qualified and licensed designers, Subcontractors and suppliers who are selected, paid, and acting in the interes t of the Design-Builder in accordance with the procedures outlined in the Contract Documents.
3.10.8 The Design-Builder shall keep the City informed of the progress and quality of the Work in the form of periodic written reports, as determined by the City but no less than monthly.
3.10.9 As a condition to final payment to Design-Builder, each Design Team Member shall provide written certification that the Work h as been constructed in accordance with the Contract Documents and the design provided by such person.
Daily Reports
Design-Builder shall maintain a daily report for ea ch day containing, at a minimum, a record of weather, Design-Builder’s own forces working on Site, Subcontractors working on Site, number of workers for each Subcontractor on Site, major equipment on site, materials delivered, precise description of W ork accomplished, any problems encountered, and other similar relevant data as City may reasonably require.
The daily report shall be signed by Design-Builder’ s Superintendent and submitted within 24 hours (nex t working day) to City Engineer and shall be made available to others as directed by City.
Record Drawings and As-Builts
3.10.10 Design-Builder shall maintain a legible set of “as- builts” and provide record drawings of all Work continuously as the job progre sses to show: (i) deviations from the approved Construction Documents; (ii) details in the Work no t previously shown; (iii) changes to existing condi tions or existing conditions found to differ from those s hown on any existing drawings and plans; (iv) the a ctual installed position and location of wire, conduit, p iping, fittings, valves and structures; and (v) suc h other further information as City my reasonably request. In addition, Design-Builder shall continuously update the drawings and plans in the latest version of AutoCAD format.
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3.10.11 Design-Builder shall maintain one up-to-date copy of the following documents for records purposes:
1. Change Orders;
2. Working drawings;
print;
3. Design drawing packages and sets of plans;
4. Approved Shop Drawings and Submittals, including product data and Samples;
5. Specifications with changes, clarifications or explanatory details noted in red
6. Requests for Information (RFI) and their responses;
7. Inspection reports;
8. Laboratory test records (as applicable);
9. Field test records (as applicable);
10. List of non-conforming work identified by a QA/QC process; and
11. As-builts and record drawings.
Design-Builder shall store these documents in a safe place in the field job office or other approved location apart from the documents used from construction. Design-Builder shall make these documents available at all times for inspection by City. Design-Builder's obligation to keep Record Documents current, including as- builts, and to make them available to City is a condition precedent to City's duty to process Applications for Payment. Design-Builder's obligations under Paragra ph 3.13 shall survive completion of the Work or termination of Design-Builder's performance of the Work.
3.10.12 Design-Builder’s, as part of the Contract Price, wi thin thirty (30) calendar days after Substantial Completion or earlier termination of the Agreement and as a condition precedent to certifying of the final payment under the Contract, shall transfer the “as-built” changes to the Work maintained by Design-Builder to the record drawings kept at the Project Site to: (1) a true and comple te final set of record drawings complying with the Cit y CAD manual; (2) final approved shop drawings; and (3) a complete ce rtified “As-Built” survey for the Project Site indicating the actual location of the improvements as constructed on the site. The Design- Builder’s duty to provide such record drawings, shop drawings and survey obligation shall survive the completion of the Work or termination of the Agreement.
Supervision and Construction Procedures
3.10.13 Design-Builder's Means and Methods. Design-Builder shall supervise and direct the Work, using Design-Builder's best skill and attention. Design-Builder shall be responsible for and have control over construction means, methods, technique s, sequences, and procedures for coordinating all portions of the Work under the Contract, unless the Contract
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Documents give other specific instructions concerni ng these matters. If the Contract Documents give specific instructions concerning construction means , methods, techniques, sequences, or procedures, Design-Builder shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, m ethods, techniques, sequences, or procedures. If Design-Builder determines that such means, methods, techniques, sequences, or procedures may not be safe, Design-Builder shall give timely written noti ce within ten (10) calendar days to City and shall not proceed with that portion of the Work without further written instructions from City. If Design-Builder is then instructed to proceed with the required means, meth ods, techniques, sequences, or procedures without acceptance of changes proposed by Design-Builder, City shall be solely responsible for any resulting loss or damage.
3.10.14 Design-Builder's Vicarious Liability. Design-Builder shall be responsible to City for acts and omissions of Design-Builder's employee s, Design Consultants, Subcontractors, and their respective agents and employees, and any other pers ons or entities performing any of the Work under a direct or indirect contract (or other arrangement) with Design- Builder.
3.10.15 Property Lines and Encroachments. Prior to commencement of the Work on the Project Site, Design-Builder shall have all property corners and benchmarks verified and established b y a State licensed land surveyor, shall locate the Project, together with all grades, lines, and levels necessary for the Work, on the Project Site, establishing necessary reference marks from which the Work can progress accurately and shall furnish City with reasonable e vidence of such verification, noting any errors, inconsistencies, or omissions discovered during such verification. After all lines are staked out and before foundation work is commenced, Design-Builder shall review with City the placement of all buildings and other permanent facilities to be constructed on the Site. Any encroachments resulting from Design- Builder's locating or constructing the Work on adjacent properties to the Project Site as revealed by a survey o f the foundations or an "as-built" survey, except for enc roachments arising from errors or omissions not reasonably discoverable by Design-Builder in the Co ntract Documents, shall be the sole responsibility of Design-Builder, and Design-Builder shall commence the remedy of such encroachments within thirty (30) calendar days after discovery thereof (unless circu mstances require a more rapid response), at Design- Builder's sole cost and expense, either by the removal of the encroaching improvement (and the subsequent reconstruction of such improvement on the Project Site) or by agreement with City of the adjacent property, in a form and substance satisfactory to City in its sole discretion, providing a permanent easement for such encroachment.
3.10.16 Inspection of Work in Place. Design-Builder shall b e responsible for the inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work.
Labor and Materials
3.10.17 Coordination. Design-Builder shall coordinate its Work with that of all others on the Project including deliveries, storage, installa tions, and construction utilities. Design- Builder shall be responsible for the space requirements, locations, and staging of its equipment in areas and locations approved by City. Where the proper and most effective space requirements, locations, and routing cannot be made as indicated in the Contract Documents, Des ign-Builder shall meet with all others involved before installation to plan the most effective and efficient method of overall installation.
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3.10.18 Temporary or Permanent Work. Unless otherwise provi ded in the Contract Documents, Design-Builder shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, sewer and electrical utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.10.19 Labor Discipline. Design-Builder shall enforce stri ct discipline and good order among Design-Builder's employees and other persons carrying out the Contract. Design- Builder shall not permit employment of unfit persons or persons not skilled in tasks assigned to them.
3.10.20 Skilled Labor. Only skilled laborers shall be emplo yed on any portion of the Work. When required in writing by City, Design-Buil der or any Design Consultant, or Subcontractor shal l discharge any person who is, in the reasonable opin ion of City, incompetent, unfaithful, disorderly or otherwise unsatisfactory, and shall not again emplo y such discharged person on the Work except with the written consent of City. Such discharge shall not b e the basis of any claim for compensation or damage s against City or any of its officers or agents.
3.10.21 Procurement and Installation of Materials and Equipment. Design- Builder shall:
(i) place orders for all materials and equipment wh ich take into account current market and delivery conditions necessary to meet the Construction Sched ule; (ii) purchase and expedite the procurement of long lead time items to obtain their delivery by the required dates; and (iii) arrange for alternate sources for the supply of critical materials and equipment to maintain the schedule. Should Design-Builder fail in this duty, City reserves the right to order such materials and equipment as City may deem advisable to maintain t he schedule for the Work or the Contract Time and all expenses shall be charged to and paid for by Design - Builder within the Contract Price. Design-Builder shall keep City informed of the status of procurement and shall promptly notify City in writing of any materials or equipment which may not be available within the time scheduled or necessary for the Project. Design-Buil der shall be responsible for the space requirements , locations, and routing of its equipment. In areas a nd locations where the proper and most effective sp ace requirements, locations and routing cannot be made as indicated, Design-Builder shall meet with all others involved, including, but not limited to, City, Desi gn Consultants, and Subcontractors before installat ion, to plan the most effective and efficient method of overall installation.
Intellectual Property and Patent Rights
3.10.22 The Design-Builder shall secure in writing from all patentees, copyright holders, and assignees of all Project-related documents, all copyrights, assignments, and licenses related to s uch expression (e.g., designs, drawings, Contract Docum ents, specifications, documents in computer form, etc.) as necessary to allow the City the full, unli mited, and unencumbered use of that expression for the execution, operation, maintenance, modernization or expansion of the Project. The Design-Builder shall immediately convey all such copyrights, assignments , and licenses to the City without reservation exce pt that which is expressly allowed in this Article. In the case of products, materials, systems, etc., pr otected by patent, the Design- Builder and its consultants shall not specify or cause to be specified any infringing use of a patent.
3.10.23 Should the Design-Builder become aware of or receiv e notice of potential infringement of any intellectual property right rel ated to the Project, regardless of the source of
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that awareness or notice, the Design-Builder shall (a) immediately cease the copying and any other activity which is the potential source of infringement; and within seven (7) calendar days (b) investigate the potential infringement; (c) submit to the City copies of all documents relating to that awareness, the notice, o r the object thereof; and (d) issue to the City a complet e written response and analysis of the potential infringement and the course of action recommended b y the Design• Builder. The Design-Builder shall submit to the City a supplement of the initial repo rt within seven (7) calendar days of the Design-Bui lder's receipt of, or awareness of, additional related inf ormation. Nothing in this Agreement shall be deemed to relieve the Design-Builder of its obligations under this Article, nor shall the City's receipt of the information indicated in this Article give rise to any duty or obligation on the part of City.
3.10.24 The Design-Builder and its Faithful Performance Bon d Surety shall indemnify, defend, and hold harmless, the City from all liability, costs, and attorneys' fees incurred which are related to infringement of intellectual property rights, whether or not the infringement is potential, accused, or proven.
Should the City become aware of, or receive notice of, potential, accused, or actual infringement of intellectual property rights, the City shall, in it s sole option, have the right to engage independent legal counsel to advise the City as to the infringement. The costs and fees for such counsel shall be borne by the Design-Builder and shall be immediately recoverable by the City against amounts due or soon to be due to the Design-Builder or amounts already paid to the Design-Builder.
Warranty
3.10.25 Terms of Warranty. Design-Builder warrants to City that: (i) materials and equipment furnished will be of good quality and new unless otherwise required or permitted by the Contract Documents; (ii) the Work will be of good quality an d free from defects; (iii) the Work will conform to the requirements of the Contract Documents; and (iv) Design-Builder will deliver a Project free of stop payment notice claims. Work not conforming to these require ments shall be deemed defective. Design-Builder's warranty excludes improper or insufficient maintena nce, improper operation, or normal wear and tear and normal usage. If required by City, Design-Builder s hall furnish satisfactory evidence as to the kind a nd quality of materials and equipment. This warranty is not limited by the provisions of Article 12 herein.
3.10.26 Commencement of Warranty Period. In addition to war ranties required elsewhere in the Contract Documents, Design-Builder shall, and hereby does, warrant all Work for a period of three (3) years commencing from the date of Fina l Completion of the Work and shall repair or replac e any and all such Work, together with any other Work which may be displaced in so doing, that may prove defective in workmanship and/or materials, without expense whatsoever to City. Design-Builder covenant s and agrees that any and all manufacturer’s warranti es shall not commence until the date of Substantial Completion as defined herein. To the extent any manufacturer attempts to limit its product warranty to some other commencement date (i.e., date of shipment or the like), Design-Builder shall be responsible for procuring extended warranty coverage from the manufacturer(s) at Design-Builder’s sole expense.
3.10.27 Applicability of Warranties to Corrected Work. The warranties shall apply to all Work corrected or replaced pursuant to the terms of the Contract. In the event any Work is corrected o r replaced, the warranty for such Work shall extend to the later of three years after acceptance by City of the corrected or replaced Work in accordance with the C ontract Documents or the expiration of the warranty term, provided that the warranty for corrected or r eplaced Work shall not extend beyond three years af ter the expiration of the original warranty term.
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3.10.28 No Limitation. Nothing contained in this Paragraph shall be construed to establish a period of limitation with respect to ot her obligations that Design-Builder might have unde r the Contract Documents. Establishment of the one-year period for correction of Work relates only to the specific obligation of Design-Builder to correct the Work and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish Design- B uilder's liability with respect to Design-Builder's obligations other than specifically to correct the Work. Neither the making of Final Payment nor the use or occupancy of the Work, in whole or in part, by City shall constitute acceptance of Work not in accordance with the Contract Documents or relieve Design-Builder from liability for faulty or defective Work.
3.10.29 Overlap. Where any warranties provided under the Contract Documents overlap, conflict, or are duplicative, Design-Builder shall be bound by the more stringent requirements.
3.10.30 City's Right to Correct. If Design-Builder fails to commence corrections within forty-eight (48) hours after receipt of written not ice, City, under the provisions of Article 14 herei n, will proceed to have defects repaired and made good at t he expense of Design-Builder and its performance bond surety, plus fifteen percent (15%) for City's overhead and administrative expense. City may charge such costs against any payment due Design-Builder. City will be entitled to all costs, including reasonable attorneys’ fees and consultants’ expenses necessari ly incurred due to the Design-Builder’s refusal to pay the above costs. If, in the opinion of City, defect ive work creates a dangerous or hazardous condition or requires immediate correction or attention to preve nt further loss to City or to prevent interruption of operations of City, City may take immediate action, give notice, make such correction, or provide such attention and the cost of such correction or attention shall be charged against Design-Builder. Such action by City will not relieve Design-Builder of the warranties provided in the Contract Documents.
3.10.31 Procurement and Assignment of Warranties. Design-Bu ilder shall obtain in the name of City, or transfer or assign to City or City 's designee prior to the time of Final Completion o f the Work, any and all warranties or guarantees which De sign-Builder is required to obtain pursuant to the Contract Documents and/or which Design-Builder obta ined from any other person or entity other than Design-Builder including, but not limited to, Subco ntractors and manufacturers, and further agrees to perform the Work in such a manner so as to preserve any and all such warranties. Design-Builder shall secure written warranties from all Subcontractors and manufacturers in the form approved by City. Design- Builder and its Consultants and Subcontractors shal l offer any warranty upgrades or extensions that ar e offered by manufacturers of any equipment or system in the Project to City.
3.10.32 Survival of Warranties. The provisions of this Para graph shall survive Design- Builder's completion of the Work or termination of Design-Builder's performance of the Work.
Taxes
3.10.33 Payment. Design-Builder shall pay all applicable sa les, consumer, use, and similar taxes for the Work provided by Design-Builder and such taxes shall be included in the Contract Price.
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3.10.34 Liability for Employee Payments. Design-Builder acc epts full liability for the payment of any and all contributions, deductions, or taxes for social security, unemployment insurance, old age and survivor's benefits, medical and health benefits, or for any other purpose now or hereafter imposed under any Applicable Law measured by the wages, salary or other remuneration paid to persons employed by or on behalf of Design-Builder for the Work. Design- Builder covenants and agrees to observe and fully comply with all Applicable Law, including procurement of any necessary occupational licenses, permits and inspection certificates.
Permits, Fees and Notices
3.10.35 Responsibility for Permits and Fees. Design-Builder shall identify and obtain all permits, certificates, licenses, fees, approvals, a nd inspections necessary or required for the proper execution and completion of the Work, or which are customarily secured after execution of the Contract and shall submit to City copies of receipts for reimbursement within the Contract Price. All such permits, licenses and certificates shall be delivered to City before Design- Builder submits a final Application for Payment. City will pay connection fees directly to the utilities for all permanent water and electrical connections.
3.10.36 Notices. Design-Builder shall comply with and give notices required bylaws, ordinances, rules, regulations, and lawful orders of public authorities applicable to performance of the Work.
3.10.37 Bonds. Design-Builder shall procure and pay for all bonds required of City by any public or private entity with jurisdiction over the Project. Design-Builder shall prepare all appl ications, supply all necessary backup material, and furnish t he surety with any required personal undertakings.
Design-Builder shall also obtain and pay all charge s for all approvals for street closings, traffic re gulation, parking meter removal, and other similar matters as may be necessary or appropriate from time to time for the performance of the Work.
Compliance with Applicable Law
3.10.38 Design-Builder is responsible to ascertain that Des ign-Builder's design, Submittals, deliverables, including Design-Builder's Construction Documents in CAD format, and Work, are in accordance with Applicable Laws, including life safety codes, storm water runoff, Americans with Disabilities Act (“ADA”), and other federal and sta te disabled access requirements. Design-Builder is responsible to perform all Work in accordance with the requirements of local agencies and inspectors having jurisdiction over the Work. If Design-Builder observes that any portions of the Contract Documents are at variance with Applicable Law, Design-Builder shall promptly notify City in writing and submit plan to correct.
3.10.39 If Design-Builder performs any Work when Design-Builder knows or should have reasonably known it would be contrary to Applicable Law, Design-Builder shall assume full responsibili ty therefore and shall bear all costs (within the Contract Price) directly or indirectly attributable to the correction of the Work. If Design-Builder fails to comply with any such codes, laws, ordinances, rules, and regulations, City may (without prejudice to any of its other rights or remedies) issue an order suspending all or any part of the Work.
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Allowances
Design-Builder shall include in the Contract Price and Schedule of Values all Allowances provided for in the Contract Documents. Items covered by Allowances shall be supplied for such amounts approved by City. All expenditures for Allowances shall be s eparately itemized in each Application for Payment and are subject to City's prior approval. City shall no t reimburse Design- Builder for Allowance costs in excess of the amounts specified in the Schedule of Values without City's prior written approval of such costs.
Design-Builder's Key Personnel, Design Consultants and Subcontractors
3.10.40 Design-Builder's Project Manager. Design-Builder's Project Manager, as is designated in Exhibit D to the Agreement or as othe rwise approved in writing by City, shall:
(i) be present at the Project Site at all times that an y Work is in progress and at any time that any Desi gn Consultants or Subcontractors are present at the Si te; (ii) attend all job meetings; (iii) be actively involved throughout all phases of design and construction of the Project; (iv) maintain oversight of the Project at all times; (v) have full authority to represent and act on behalf of Design- Builder for all purposes unde r this Agreement; (vi) supervise and direct the Work using his or her best skill and attention; (vii) be resp onsible for the means, methods, techniques, sequences, and procedures used for the Work; (viii) adequately coordinate all portions of the Work; and (ix) act as the principal contact with City and all Subcontractors and inspectors on the Project. A biography or resume of Design-Builder's Project Manager, or any proposed designee, shall be submitted to City at the preconstruction meeting.
3.10.41 Design-Builder's Key Personnel. In addition to its designated Project Manager, Design-Builder represents to City that certain addi tional key personnel, including, but not limited to , the superintendent, approved by City and designated in Exhibit D to the Agreement, will perform services required by the Contract Documents. City may at any time elect to add job categories to Design-Builder 's key personnel list.
3.10.42 Changes in Design-Builder's Project Manager, Key Pe rsonnel, Design Consultants and Subcontractors. Design-Builder understands and acknowledges that its selection by City was, in part, based on Design-Builder's Project Man ager, listed Design Consultants, Subcontractors, an d key personnel. Design-Builder shall not make change s to its Project Manager, Design Consultants, key personnel or Subcontractors, or reduce their responsibilities for this Project without the prior written approval of City. Prior to making any changes to the Project Manager, key personnel, Design Consultants or Subcontractors, Design-Builder shall submit the qualifications and experience of Design-Builder's proposed replacement for City's approval. If City determines, in its sole discretion, that the performance of any person or entity employed by Design-Builder is unsatisfact ory, then at the written request of City, Design-Bu ilder shall remove, reassign, or replace such individual or entity without increase in the Contract Price, and such individual or entity shall not be reemployed on the Project without the prior written approval of City.
3.10.43 Qualifications and Licenses. Work furnished by or on behalf of Design- Builder shall be performed by persons: (i) qualified to per form the Work assigned to them; (ii) licensed to practice their respective trades or professions where required by Applicable Law in the State where the Project is located; and (iii) who shall assume professional responsibility for any design documents furnished by them. Design-Builder's Project Manager , key personnel, Design Consultants and Subcontractors shall be experienced in, projects of similar nature and
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complexity to the Project and must provide City with resumes of education, training, and relevant experience whenever requested and shall be approved by City prior to their assignment to the Project.
Site Conditions
3.10.44 Design-Builder represents that it has taken the necessary steps to ascertain the nature, location, and extent of the Work, and that it has investigated and satisfied itself as to the general and local conditions which are applicable to the Work, such as:
(1) Conditions bearing on transportation, disposal and storage of materials;
(2) The availability of labor, water, power and roads;
(3) Normal weather conditions;
(4) Physical conditions at the Site;
(5) The conditions of the ground; and
(6) The character of equipment and facilities needed prior to and during the performance of the Work.
3.10.45 To the extent Design-Builder encounters subsurface conditions or hazardous materials which differ materially from that actually known by Design-Builder, or from those ordinarily known to exist or could have been reasonably discovered w ithin the time permitted during the Request for Proposals, or generally recognized as inherent in t he area, then notice by Design-Builder shall be immediately given to City, before conditions are disturbed, and in no event later than two (2) business days after the first observance of the conditions. If such conditions could not have been reasonably identified by Design-Builder's site investigations and available existing data, and Design-Builder incurs significan t additional costs or delays as a result of such concealed conditions, such conditions may be the subject of a Change Order Request.
Should any existing utilities or services be disturbed, disconnected or damaged during construction, Design- Builder shall be responsible, at no additional cost or time to City, for all expenses and consequentia l damages of whatever nature arising from such distur bance or the replacement or repair thereof and shal l repair such items as required to maintain continuing service, including emergency repairs.
3.10.46 Design-Builder is responsible for foreseeable site conditions and toxic materials to the extent described in the Contract Documents and/or could be reasonably inferred by the Design-Build team based on their experience and expertise on similar projects in urban areas.
3.10.47 To the extent City has provided Design-Builder with preliminary geotechnical data and site conditions, and title reports, these documents are provided "for information only". Desi gn- Builder shall be responsible to verify the accuracy of the information provided and, at its cost, obta in any additional measurements, verifications, or supplemental geotechnical report or land survey.
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3.10.48 Design-Builder shall verify the location and depth (elevation) of all existing utilities and services before performing any excavation work.
3.10.49 Design-Builder shall obtain, and pay for, the services of geotechnical engineers licensed in the State of California and other consultants to provide services deemed necessary by Design- Builder. Such services may include reports, test borings, test pits, soil bearing values, percolation tests, air and water pollution tests, ground corrosion and res istivity tests, and other necessary operations for determining subsoil, air and water conditions, with reports and appropriate professional interpretations and recommendations thereof.
Instruction/Training
3.10.50 Before occupancy, the Design-Builder shall provide pamphlets describing overall building operation, features/services, buil ding service telephone numbers, and other informati on required for City orientation to the building. The Design-Builder shall coordinate text/format with the City and receive approval prior to publishing the document. Provide six (6) copies to the City for distribution.
3.10.51 Operating Staff. The Design-Builder shall provide f ormal instruction for up to twenty (20) City designated personnel addressing the operation and maintenance of all installed equipment.
The Operation and Maintenance manuals developed shall be used as training materials. Unless otherwise accepted by City, training course format shall be s plit equally between in house instruction and field exercises. All in-person instruction shall be videotaped, at the sole expense of the Design-Builder, for future reference. In-person instruction may be supported b y professionally made video tapes in digital format . If used, a copy of each used video shall be provided for future training and reference. The Design-Builder shall provide a training plan with the final design docum ent submission addressing all involved building equipment.
3.10.52 Special Training. The Design-Builder shall provide sixty (60) calendar days of full-time qualified operators to monitor, instruct, and assist City operating staff to control, adjust , and maintain the HVAC system, building automation syste m, fire alarm system, security system (including th e access control system and video surveillance system), and elevator/escalator equipment.
Manuals
The Design-Builder shall provide manuals/documentation reflecting "As-Built" constructed building features/systems, including specifications, design calculations, shop drawings, and operation/maintenance requirements. Design-Builder shall provide one (1) electronic version on either a USB or external drive and three (3) hard copy versions consisting of three-ri ng binders, fitted with tab sheets to identify majo r text divisions. All content shall be legible, first gene ration photocopies or prints of published material. Each manual shall be appropriately titled and provided with an introduction and table of contents. Should the City establish that submitted manual/document fails to r epresent installed conditions, the document shall b e returned and corrected by the Design-Builder to the satisfaction of the City.
3.10.53 Specifications Manual. The Design-Builder shall pro vide one (1) electronic and two (2) hard complete sets of all final design spec ification/documents, retyped or presented in origin al condition. Specifications shall be precisely edited to match installed features/systems/equipment and materials.
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3.10.54 Shop Drawing Manual. The Design-Builder shall provide one (1) electronic and two (2) hard copies of a shop drawing and product d ata manual containing all approved shop drawings submissions.
3.10.55 Design Calculation Manual. The Design-Builder shall provide one (1) electronic and two (2) final sets of all design calculations a ssociated with the project representing both initia l design calculations and those analyses associated with Contract changes.
3.10.56 Operation and Maintenance Manual. In addition to th ose manuals required to support training requirements of this Project the D esign-Builder shall prepare one (1) electronic and three (3) detailed Operation and Maintenance Manuals, ide ntifying all procedures, tools, equipment and parts necessary to assure satisfactory operations and to provide maintenance per manufacturer's recommendations.
3.25.4.1 Operations. In addition to operating sequences of s tart-up and shutdown, all modes of operation shall be described , including emergency/safety shut-offs, efficiency or energy conservation adjustments, noise/vibration ad justments, control calibration procedures, interpretation of readings and reports, etc. Where equipment is controlled or monitored by the Buildin g Automation System, the manual shall identify all access procedures and available conditions reports.
3.25.4.2 Maintenance. Maintenance shall address cycles of re placement and use of special tools, lubricants, fuels gauges/mete rs, etc. Also, to be discussed shall be potential h azards and emergency procedures. Include references to rec ord documents, spare parts and material lists, warranties, maintenance agreements and similar continuing commitments.
Use of Site
3.26.1 Site Constraints. Prior to mobilization on the Proj ect Site, Design-Builder shall submit to City for approval a Site Constraint Plan, including layout drawings to scale as required to fully describe the proposed locations of all temporary co nstruction facilities and controls. This plan shall show the proposed activities in each portion of the Work area and identify the areas of limited use or nonuse. This plan shall also show proposed vehicle access routes and traffic control. Design-Builder shall confine operations at the Project to the areas designated i n the Contract Documents and the approved Site Constraint Plan and within the hours permitted by a ll codes, laws, ordinances or permits, and shall no t unreasonably encumber the Site or the adjoining sid ewalks, streets, and alleyways with any material, equipment, or debris. In that regard, Design-Builder shall keep the Site and surroundings clean and in a safe condition. Design-Builder shall use only those loca tions approved by City for locating Design-Builder’ s trailers, staging areas, lay-down areas, and other construction operations. Design-Builder shall not unreasonably encumber the Site with any materials o r equipment, nor permit any persons on the Site or any activity at the Site, except as the presence of those persons or that activity is directly related to the Project. Design-Builder shall be liable for any and all damage caused by it to City’s premises.
3.26.2 Coordination. Design-Builder expressly acknowledges that City’s own forces and/or City’s Separate Contractors may be working simultaneously with Design-Builder on the Project during certain periods of time in certain portions of the Site. Design-Builder and City will take all steps necessary in connection with the construction Work not to int erfere with the use and occupancy of the Site by Ci ty’s Separate Contractors and personnel to minimize any
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interruption of services to such persons including, without limitation, utilities, ingress and egress, and parking. Design-Builder further agrees to coordinat e its construction activities with all others perfo rming work on the Site, including deliveries, storage, and installation. Design-Builder shall meet and consult with City from time to time at City’s request to ensure that Design-Builder and City are fully advised of all other construction activities on the Site, and Design-Bui lder shall take such steps as are reasonably necess ary at City’s request to coordinate its Work with the work of City’s Separate Contractors on the Site.
3.26.3 Security. Design-Builder shall be responsible for providing security at the Site of the Work with all such costs included in the Contra ct Price. A temporary fence shall surround the Proj ect Site unless otherwise requested by City. All security provided by Design- Builder shall be coordinated with City's existing security personnel, if any. In addi tion, Design- Builder shall take all necessary prec autions and provide enclosures, barricades, security guards, signs, notices, shoring, bracing, passageways, lights, video cameras, and such other materials, equipment, and services as may be required (including, withou t limitation, such protections as may be required by Applicable Laws) for the protection of: (i) all persons who may be on the Project Site or in other areas affected by Design-Builder's operations; and (ii) City's and any third party's personal or real property. Design-Builder shall execute all repairs to land, roadways, structures, utilities, sidewalks, parkways and alleys damaged by the operations under this Contract.
3.26.4 Utility Interruption. When it is necessary to inter rupt any existing utility service, a minimum of fourteen (14) calendar days advance written request for interruption of services shall be given by Design-Builder to City. Interruption of these services shall be of the shortest possible duration and shall be approved by City in advance of such interruption . In the event that such notices and approvals are not secured prior to interruption in utility services D esign-Builder shall be financially liable for any a nd all damages suffered by City and third parties due to any unauthorized interruption.
3.26.5 Parking. Design-Builder shall coordinate and obtain all construction related parking. The cost of all Design-Builder parking shall be included in the Contract Price.
Cleaning Up
3.26.6 Continuous Obligations. Design-Builder shall keep t he Project Site and surrounding area free from accumulation of waste ma terials or rubbish at all times. As construction is completed on a daily basis, paved surfaces adjoining the Project shall be broom clean and other surfac es of the Project Site raked clean. If Design-Builder defaults or neglects to maintain the Project free f rom accumulation of waste and rubbish as set forth abov e, and fails within a twenty-four (24) hour period after receipt of oral notice, subsequently confirmed in w riting, to commence and continue correction of such default or neglect with diligence and promptness, C ity may after such twenty-four (24) hour period, immediately, without prejudice to other remedies City may have, correct such deficiencies. In such case, an appropriate Construction Change Directive shall be issued deducting from payments then or thereafter due Design-Builder the cost of correcting such deficiencies. If payment then or thereafter due Design-Builder is not sufficient to cover such amounts, Design-Builder shall pay the difference to City on demand.
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3.26.7 Cleaning and Environmental Controls.
(1) Maintain areas free of waste materials, debris, and rubbish. Maintain site in a clean and orderly condition.
(2) Remove waste materials, debris and rubbish from site and dispose off site legally.
(3) Design-Builder shall furnish and operate a self-loa ding motor sweeper with spray nozzles as directed by City Engineer to maintain the Project in a condition of cleanliness acceptable to City at all locations affected by Des ign-Builder's operation. These affected areas inclu de all haul routes to and from the Project and all areas o f construction and restoration which have not been completed. Design-Builder shall not proceed with Wo rk until the Site is clean to the satisfaction of C ity Engineer.
(4) Design-Builder shall take appropriate action to ens ure that no dust originates from the Project Site.
(5) Spoil sites shall not be located where spoil shall be washed back into a street gutter, storm drain, runoff conveyance or ocean.
(6) Water containing mud, silt, or other pollutants sha ll not be allowed to be washed off the site or into the storm drain system.
(7) Any equipment or vehicles driven and/or operated sh all be checked and maintained daily to prevent leaks of materials that if introduced to water could be deleterious to aquatic life.
(8) No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or washings thereof, oil or petroleum prod ucts or other organic or earthen material from any construction, or associated activity or whatever nature shall be allowed to enter into or placed where it may be carried offsite by wind, rainfall or tracked by vehicles offsite. When operations are completed, any excess materials or debris shall be removed from the work area.
(9) Design-Builder shall comply with all litter and pol lution laws. All Design Consultants and Subcontractors, and their employees , shall also obey these laws and it shall be the responsibility of Design-Builder to insure compliance.
3.26.8 Water Pollution Prevention and Best Management Practices (BMPs). As part of City's Stormwater Management Program, implementation of minimum Best Management Practices (BMPs) is required for this Contract. Design-Builder is di rected to comply with all applicable requirements i n the 2021 Standard Specifications Subsection 3-12.6 (as modified and supplemented by City), which requirements are incorporated herein by this reference in their entirety.
Enforcement. City, as a permitee, is subject to enforcement actions by the Regional Water Quality Control Board, U.S. Environmental Protection Agency, enviro nmental groups and private citizens. Design-Builder shall be responsible for the costs and for any liability imposed by law as result of Design-Builder's failure to comply and/or less than complete implementation wit h the requirement set forth in this section "Water Pollution Control". Cost and liabilities include, but are not limited
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to, fine, penalties, legal fees and/or judgments and other damages weather assessed against City or Design- Builder. In addition to any remedy authorized by la w, so much of the money due to Design-Builder under the Contract that shall be considered necessary by City may be retained by City until disposition has been made of the costs and liabilities.
Maintenance. Design-Builder shall ensure the proper implementation and functioning of BMPs control measures, and shall regularly inspect and maintain the construction site for the BMPs. Design-Builder shall identify corrective actions and time frames to address any damaged measures or reinitiate any BMPs that have been discontinued.
Description. Construction activities at City construction sites (less than 1 acre) are currently governed by the City’s NPDES MS4 Permit found at:
https://www.waterboards.ca.gov/santaana/water_issues/programs/stormwater/oc_permit.html.
In order to ensure that appropriate measures are taken to prevent construction related pollutants (dirt, and construction materials) from being washed, blown, t racked or otherwise carried, unintended and uncontrolled, offsite, the Permit requires conforma nce with Orange County’s Stormwater Program Construction Runoff Guidance Manual found at:
http://ocwatersheds.com/documents/bmp/constructionactivities .
Water Quality Management Plan. A Water Quality Mana gement Plan (WQMP) will be required to be developed by Design-Builder. The WQMP shall follow Orange County and City of Anaheim guidance, requirements, templates, checklists and procedures. The WQMP will guide the design of the grading and storm drain for the project. Best Management Practi ces (BMPs) that will address the quality of the pos t- construction phase (operational phase) of this proj ect will be identified, sized, designed and incorpo rated into the project as part of this effort. The Design - Builder must coordinate with the City for the rev iew, comment, and approval of the WQMP, not only because the City is the approval authority, but also because the City will operate and maintain the BMPs designed and constructed for this Project and must have th e opportunity to review, comment and approve of the type, size, location and functionality of said BMPs.
3.27.3.1 City and Locally Funded Projects.
If this project disturbs less than 1 acre of land o r is related to routine maintenance of an existing linear facility, the project falls outside the coverage re quirements of the Construction General Permit:
https://www.waterboards.ca.gov/water_issues/programs/stormwater/construction.html. Therefore, a SWPPP is not required. However, the Construction Ge neral Permit requirements still prescribe that appropriate BMPs shall be implemented in accordance with the Construction Runoff Guidance Manual.
Therefore, Design-Builder shall develop, implement and maintain an Erosion and Sediment Control Plan (E&SC Plan) as described in the requirements for th e City’s NPDES MS4 Permit. This Plan shall use the construction plans as a basis for identifying the l ocation and type of BMP that will be implemented on and off-site, based upon the anticipated construction activities, equipment and materials that will be used in the project, for review and approval by the Department of Public Works.
Since construction activities are highly variable t hroughout the phases and term of the Project and ma y even include work not originally anticipated, the a pproved E&SC Plan does not relieve the Design-Build er from the responsibility to maintain the E&SC Plan current as site conditions evolve to ensure that adequate and appropriate BMPs are employed, which may not have been
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identified on the initial version of the E&SC Plan, to prevent storm water pollution emanating from the Project site at all times during the contract period.
3.27.3.2 State and Federally Funded Projects.
If this project disturbs less than 1 acre of land o r is related to routine maintenance of an existing linear facility, the project falls outside the coverage re quirements of the Construction General Permit. Therefore, a SWPPP is not required. However, the MS4 NPDES Per mit requirements still prescribe that appropriate BMPs shall be implemented in accordance with the Orange County Construction Runoff Guidance Manual.
Therefore, Design-Builder shall develop, implement and maintain Water Pollution Control Program (WPCP), approved by the Department of Public Works and conforming with the requirements of current edition of the Caltrans Specifications Section 13, Water Pollution Control in effect at the time the Contract is executed.
Since construction activities are highly variable t hroughout the phases and term of the Project and ma y even include work not originally anticipated, the approved WPCP does not relieve Design-Builder from the responsibility to implement and maintain the approp riate BMPs, which may not have been identified, to prevent storm water pollution emanating from the Project site at all times during the contract period.
3.27.3.3 Applicable to All Projects Regardless of Funding Source.
The following shall apply to all projects regardles s of the type of “Stormwater Plan” developed or fun ding source.
Design-Builder shall routinely inspect the construction site, staging areas, and any impacted areas offsite to evaluate the applicability and effectives of the BMPs that are or should be in place. These inspections shall be conducted at a minimum, within 48 hours prior to anticipated storm events, during rainfall (if occurring during business hours) and after any storm event. T he outcome of these inspections shall identify any deficiencies identified and corrective actions anticipated or taken and shall be documented by the contractor and made available to the City’s representative, the same day, upon request.
Payment to develop and maintain the E&SC Plan, WPCP and all related or required BMPs shall be considered included in the contract unit price paid for other items of work and shall be considered incidental tor accomplishing the work and no additional compensation will be allowed therefore.
Failure of Design-Builder to comply with any requested corrective actions may result in an order to suspend work until the condition is corrected. No additiona l compensation will be allowed as a result of such suspension.
3.27.3.4 Catch Basin Labeling.
On all catch basin construction, Design-Builder shall comply with labeling requirements set forth in the City Standard Detail found at:
https://www.anaheim.net/DocumentCenter/View/8126/385
Payment for conformance to the requirements of this section shall be deemed to be included in the price bid for the various item of work and no additional compensation will be allowed therefore.
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3.27.3.5 Storm Water Pollution Prevention Plan (SWPPP).
Design-Builder shall be responsible for complying with all requirements of the 2021 Standard Specifications Subsection 3-12.6.3 (as modified and supplemented by City), which requirements are incorporated herein by reference in their entirety with the following additions:
Design-Builder shall also be responsible for comply ing with all requirements of the State NPDES Genera l Construction Storm Water Permit (trigger for compli ance currently set at disturbance of 1 acre or more of land) and for development and implementation of the Storm Water Pollution Prevention Plan (SWPPP), PRDs (Permit Registration Documents), and Monitorin g Plan (MP) (only if Risk Level 2 or 3). The one exception to this responsibility is the uploading online of PRDs into State SMARTS, which is performed by City Staff. However, the contractor is responsible for providing – in a timely manner – PRDs and any other information required in order to complete the uploa d of these submittals as required by the General Construction Permit, and as may be required by the administering agency (e.g., Caltrans).
At the pre-construction meeting, Design-Builder is required to submit a SWPPP to the City that has bee n completed by a Qualified SWPPP Developer (QSD) alon g with PRDs. The Notice to Proceed will not be issued until the approval and successful uploading of the SWPPP and PRDs to the online SMARTS System by the City.
Design-Builder shall be responsible for conducting all required monitoring inspections and shall file copies of the inspections and all other reports, certifications or records, as required by the SWPPP, with the Public Works Department. All fines levied against the City, as a result of the Design-Builder’s failure to comply with the requirements of the Construction General Permit, shall be Design-Builder’s sole responsibility and stated fine amounts will be withheld from monies due or becoming due to Design-Builder.
Submitting Annual Reports: Based on current Construction General Permit deadlines, Design- Builder must submit all information that is required for completion of the Annual Report to the City, one (1) month prior to the deadline for Annual Report Submittal, thus allowing the City to review, request any missing information, and submit it through the SMARTS System.
Time extensions will not be allowed for any delays or suspension of work as a result of the Design- Builder’s incomplete or noncompliance with the requirements of the Construction General Permit or SWPPP.
Payment for complying with the Construction General Permit, completing the SWPPP, implementation of the SWPPP, providing the necessary information to t he City for filing of Annual Reports and Notice of Termination, and any incidental work, shall be deemed to be included in the lump sum price bid for SWPPP or related items of work.
All information related to the Final Reports (inclu ding the Annual Report, which must be completed and submitted before the Final Report) must be submitted to the City within 30 days of substantial completion of the project, for the City to upload to the SMARTS System.
Design-Builder shall comply with the Construction G eneral Permit and SWPPP requirements, such as implementation, modification, onsite maintenance, monitoring of SWPPP, submittal of required information or documentation for such forms, including but not limited to the NOI, weekly
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inspection reports, rain event reports, annual reports, NOT and any other SWPPP related forms as required by the provisions of the Construction General Permit in effect, throughout the Project.
In the case that the Design-Builder fails to comply with the aforementioned requirements and deadlines set forth under this section, the City reserves the rig ht to withhold progress payments, or if the final p rogress payment has been issued, withhold the release of re tention monies remaining under the Contract, until Design-Builder’s full compliance with all provisions.
3.27.4 Final Completion. In order to achieve Final Completion of the Work, Design- Builder must remove from and about the Project any and all waste materials, rubbish, tools, constructi on equipment, machinery, and surplus materials, as wel l as comply with the requirements set forth in the Contract Documents. In addition to the general cleaning, Design- Builder must perform the following special cleaning requirements:
(1) Remove putty stains from glazing, then wash and polish glazing;
(2) Remove marks, stains, fingerprints, and other soil or dirt from glass, painted, stained, or decorated work;
(3) Remove temporary protection and clean and polish floors and waxed surfaces;
dirt, plaster, and paint;
(4) Clean and polish hardware and plumbing trim; remove stains, dust,
(5) Remove spots, soil, plaster, and paint from tile work, and wash tile;
(6) Clean all fixtures and equipment, remove excess lubrication, clean light fixtures and lamps, polish metal surfaces;
(7) Vacuum-clean carpeted surfaces and remove any stains; and
(8) Remove debris from roofs, downspout, and drainage system.
Responsibility for Environmental Compliance
Design-Builder shall be responsible for the perform ance of all environmental mitigation members (which term shall be deemed to include all requirem ents of environmental approvals and similar governmental approvals, regardless of whether such requirements would be considered to fall within a strict definition of the term) for the Project. The Contra ct Price includes compensation for Design-Builder’s performance of all such mitigation measures. Design -Builder is required to monitor the progress of performance of environmental mitigation measures an d to provide periodic reports to City as may be set forth in any mitigation monitoring program.
Access to Work
Design-Builder shall provide City and its authorized representatives access to the Work in preparation and progress wherever located.
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Signs and Advertising
Design-Builder shall not place or maintain any advertising signs, bills, or posters, nor shall it allo w the same to be placed in or about the Site, or on any structure, fence, or barricade located on the Site, except valid and authorized legal notices required to be p osted or otherwise approved in writing by City, whi ch approval shall not be unreasonably withheld, delayed, or conditioned. City shall have the right to reasonably approve the size, style, text and location of any Design- Builder sign placed on the Site or on any structure, fence, or barricade located at the Site. Notwithstanding any other provision of the Contract Documents, City shall have complete discretion with respect to plac ement of any Design Consultant and Design-Builder signs on the Site.
Coordination with Neighboring Property
Design-Builder shall coordinate with adjoining and surrounding property businesses, tenants, and their customers. Design-Builder to provide access t o neighboring property and shall implement measures to minimize disruption to operations and occupancy of neighboring property businesses, tenants, and their customers.
Shop Drawings, Product Data and Samples
3.32.1 Shop Drawings. Shop Drawings are drawings, diagrams , schedules and other data specially prepared for the Work by Design-Builder, Subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work.
3.32.2 Product Data. Product Data are illustrations, stand ard schedules, performance charts, instructions, brochures, diagrams, and othe r information furnished by Design-Builder to illust rate materials or equipment for some portion of the Work.
3.32.3 Samples. Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged.
3.32.4 Purpose. Shop Drawings, Product Data, Samples, and similar Submittals (collectively "Submittals") are not Contract Documents. The purpose of these Submittals is to demonstrate for those portions of the Work for which Submittals are required by the Contract Documents the way by which Design-Builder proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by City is subject to th e limitations of Subparagraph 3.32.6 herein.
Informational Submittals upon which City is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not re quired by the Contract Documents may be returned by City without action.
3.32.5 Design-Builder's Submittals.
3.32.5.1 Prompt Submittals. Design-Builder shall review for compliance with the Contract Documents, confirm, and deliver to Cit y, Submittals within the timeframes required by the Contract Documents. Design-Builder's complete and timely submission of Submittals in conformity with the Submittal Schedule is a material consideration of the Contract. In the event that City reasonably determines that all or any portion of any Submittal fails to c omply with the design concept of the Project and th e requirements of the RFP and/or such Submittals are not otherwise complete and accurate so as to requir e re-submission more than one time,
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Design-Builder shall bear all costs associated with the review and approval of such resubmitted Submittals.
No adjustment to the Contract Time or the Contract Price shall be granted by City to Design-Builder on account of its failure to make timely submission of any Submittals.
3.32.5.2 Design-Builder's Confirmation of Submittals. After checking and verifying all field measurements and after complyin g with applicable procedures specified in the Specifications, Design-Builder shall submit to City in compliance with the Submittal Schedule for review and approval, or for other appropriate action, one (1) reproducible transparency (sepia) and four (4) opaque prints (unless otherwise specified) of all Shop Drawings and other Submittals, which shall bear a stamp or specific written indication that Design-Builder has satisfie d Design- Builder's responsibilities under the Cont ract Documents with respect to the review of the Submitt al. All Submittals will be identified as City may reasonably require. The data shown on the Shop Draw ings must be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data in order to enable City to review the information as required.
(1) Before submission of each Submittal, Design-Builder shall have determined and verified quantities and dimensions, specified performance criteria, installation requirements, materials, catalog numbers, and simil ar data with respect thereto, and reviewed or coordinated each submittal with other Submittals an d with the requirements of the Work and the Contrac t Documents.
(2) At the time of each submission, Design-Builder shal l give City specific written notice of each variation that the Submittal may have from the requirements of the Contract Documents, and, in addition, shall cause a specific notation to be made on each submittal submitted to City for review and approval of each such variation.
(3) By reviewing and submitting Shop Drawings, Product Data, Samples, and similar Submittals, Design-Builder represents that Design-Builder has determined and verified material s, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such Submittals with the requirements of the Work and of the Contract Documents.
3.32.6 Review by City. Unless Design-Builder is notified in writing of a specific need for an extended period of time due to the nature or ext ent of the Shop Drawings being submitted, City shal l utilize its best efforts to complete shop drawing review within a maximum of twenty-one (21) calendar days.
City's review and approval will be only for general conformance with the design concept of the Project and the RFP and will not extend to design compatibility or ultimate functionality. City’s review and approval will also not extend to means, methods, techniques, sequ ences, or procedures of construction (except where a specific means, method, technique, sequence, or procedure of construction is indicated in or required by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item, as such, will not indicate approva l of the assembly in which the item functions. Desi gn- Builder shall make corrections required by City and shall return the required number of corrected copies of the required submittal for review and approval. Des ign-Builder shall direct specific attention, in wri ting, to revisions other than the corrections called for by City on previous submittals.
3.32.7 Performance. Design-Builder shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data,
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Samples, or similar Submittals until the respective Submittal has been approved by City. Any material ordered by the Design-Builder prior to the approval of Shop Drawings shall be at its own risk.
3.32.8 Approved Submittals. The Work shall be performed in accordance with approved Submittals required by the Contract Docume nts and Design-Builder shall not be relieved of responsibility for variations from requirements of the Contract Documents by City's approval of Shop Drawings, Product Data, Samples, or similar Submitt als unless Design-Builder has specifically informed City in writing of such deviation at the time of su bmittal and a Change Order or Construction Change Directive has been issued, authorizing the variations. Design- Builder shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar Submittals by City's approval thereof.
3.32.9 Resubmission. Design-Builder shall direct specific attention, in writing on resubmitted Shop Drawings, Product Data, Samples, o r similar Submittals, to revisions other than those requested by City on previous Submittals. In the ab sence of such written notice City's approval of a resubmission shall not apply to such revisions.
3.32.10 Professional Services. The professional design serv ices and certifications by a design professional related to systems, materials, or equipment shall comply with the design and performance criteria set forth in the RFP. Design-B uilder shall cause such services or certifications to be provided by a properly licensed design professional, who shall comply with the reasonable requirements of City regarding qualifications and insurance and who se signature and seal shall appear on all drawings, calculations, specifications, certifications, shop drawings, record drawings, and other submittals pre pared by such professional.
Design-Builder's design professionals shall certify that Work invoiced in each Application for Payment is installed in accordance with the design prepared by such professional. Shop drawings and other submittals related to the Work designed or certified by such professional shall bear such professional's written approval when submitted to City. City shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. City will review, approve, or take other appropriate action on submittals only for the limited purpose of checking for general conformance with design and performance criteria set forth in the RFP.
DESIGN SUBMISSIONS
Applicability
This clause applies to requirements for submissions after the award of contract.
Design Reviews
4.1.1 The Design-Builder shall provide three (3) design submissions corresponding to the following levels of design development: "Schema tic Design" (30 percent), "Design Development” (65 percent), and "Construction Documents" (90 percent) . If the project is phased, three (3) separate submissions shall be made for each phase. As part o f its review, the City will offer submission review s to code officials.
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4.1.2 The City's review and acceptance of any design subm ission, including "Construction Documents", shall not relieve the Design-Builder of its responsibility to meet the requirements of the RFP and its Proposal. The existence (or not) of E&O Insurance (Project Professional Liability Insurance) shall in no way limit the Design-Builder 's responsibilities under the contract, including responsibility for design errors or omissions.
Purpose
4.1.3 City will review Design-Builder’s design submission s for adherence to contract requirements reflected within the program materials and the Design-Builder's Proposal. Design reviews by City are not to be interpreted as resulting in an approval of the Design-Builder's apparent progress t oward meeting contract requirements, but are intended to discover any information which can be brought to th e Design-Builder's attention which might prevent cost ly errors and misdirection. The Design-Builder shal l remain completely responsible for designing and con structing the facility in full compliance with the requirements of this Contract.
Resolution of Comments
4.1.4 The Design-Builder shall resolve all design review comments in writing, indicating one of the following: (1) adoption and a ction taken, (2) adoption with Modifications and ac tion taken, (3) alternative resolution and action taken, or (4) rejection. In cases other than unqualified adoption, the Design-Builder shall provide a statement as to why the reviewer's objection and/or recommendation is inappropriate. Design review comments shall not relieve the Design-Builder from compliance with terms and conditions of this Contract. Design-Builder's comme nt resolution shall be transmitted to the City Engi neer within fourteen (14) calendar days of comment receipt.
Schematic Documents
4.1.5 Schematic design builds upon the Design-Builder's p roposal concept as modified by City changes made. A schematic design represents all major design features and demonstrates attainment of all performance requirements. Preliminary scaled plans, elevations, sections and perspectives are required to show all major building features/sy stems, their orientation/configuration and how each impacts/fit into the total design. Detailed notatio n, equipment schedules, and assembly details are no t expected. Draft construction specifications shall a lso be provided along with those calculations which determine system selection, overall performance and capacity. The following summary listing of submission requirements further identifies drawings, calculation and specification requirements.
A. Drawings
1. Architectural plans for all floors and roofs with dimensions and space labeling
2. Exterior elevations, showing window placements and material selections
3. Building longitudinal and transverse sections, clearly showing ceiling heights and clearances
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4. Typical exterior wall sections, clearly showing assembly, support, thermal insulation (vapor/air retarders), etc.
5. Roof sections
6. Site plan including utility locations
7. Grading, planting, and landscape design
8. Basic foundation plan
9. Basic structural system for superstructure
10. Plumbing pumps
11. Wastewater mains and stacks
12. Cold water mains and risers
13. Water heating
14. Fire pump system
15. Sprinkler and standpipe fire department connections
16. Building automation system configuration
17. Central water chilling plant
18. Cooling towers
19. Air handling units and single line ducts
20. Fans
21. Schematic chilled and condensed water piping
22. Air conditioning system control
23. Fire alarm system/riser diagram
24. Schematic power distribution, one-line diagram
25. Main power distribution equipment
26. Telecommunication system
27. Typical lighting layouts
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B. Calculations
1. Geographical/seismic soils analysis report
2. Soil contamination study/remediation plan
3. Structural foundations/selection calculations
4. Structural framing calculations
5. Computer-generated operating system annual cost projections
6. Computer-based overall building annual energy calculations
7. Air conditioning block load calculations
8. Chillers, pumps and cooling towers calculations for selection
9. Chilled water and condensing water mains sizing
10. Fire flow and fire pump sizing calculation
11. Power distribution calculations
12. Emergency power calculations
13. Lighting calculations, typical
14. Elevator and escalator calculations
15. Emergency generator sizing
C. Specifications.
For all building features, systems, equipment and materials represented on tentative level drawings, provide draft edited AIA MasterSpec specification sections and /or brand-name references with sample catalog cuts and manufacture r's literature as required to identify components, materials, performance and operating characteristics.
D. Quality Assurance/Quality Control.
The Design-Builder shall submit an annotated outlin e of his Quality Assurance/Quality Control Plan (QA/QCP), describing inspections and tests of all designed building features and systems/equipment. The OA/QCP shall fully describe those inspections and tests.
Design Development Documents
This submission provides preliminary working drawings and a draft of final construction specifications. Include list of all proposed final drawings and specification sections. It also requires
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final calculations for selection and sizing of all building features, systems and equipment. Drawings shall be complete in detailing floor plan views (includin g path of travel for maintenance access), exterior elevations, building sections, system distributions , riser diagrams, and equipment description schedul es.
The following summary listing of submission requirements, which is not intended to be all inclusive, further identifies drawings, calculations and specification requirements.
A. Drawings. In addition to expanded details on the schematic submission drawings, provide:
1. All superstructure framing drawings
2. Interior wall/partition details
3. Interior finish schedules
4. Window/door assembly detailed
5. Toilet room layouts/details
6. Detailed site plans, showing: landscaping, watering systems, site drainage, pavement, sidewalks, etc.
7. Mechanical central plant equipment room detailed plan, elevations and sections
8. Cooling tower plans, accessories details, water treatment
9. Air conditioning and ventilating floor plans with ducts and piping
10. Control sequence of operation
11. Building automation system points list and layout of central control. Sprinkler and standpipe plans and details
12. Pumps, tanks and compressors
13. Location and type of security devices
14. Fire alarm system diagrams with pull-box and smoke/heat detector locations
15. Fire and security center layout
16. Power distribution, completion of one-line diagram
17. Power distribution to major equipment
18. Emergency power plans
19. Telecommunication plans (including Internet), telephone layouts
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20. Elevators and escalators
21. Lighting plans
B. Calculations
1. All structural member sizes, reactions, moments, shear along member, moments of inertia, and section moduli for steel framing members
2. Floor live and deal loading/deflections, material stresses, floor/roof deflections
3. Typical space acoustic properties
4. Wall and window wind loadings
5. Voltage drop calculation
6. Overcurrent coordination and short circuit study
7. Load calculations for emergency generator, transfer switches feeders
8. Load calculations to size switchboards, feeder distribution and branch service panel boards transformers
9. Load/distribution for special rooms, conference space, computer rooms, cafeterias, telecommunications, etc.
10. Room air distribution quantities
11. Duct sizes for mains
12. Water pipe sizes
13. Pump sizes
14. Pipe sizing for hot water, cold water, storm water, waste water, chilled water, and condensed water
15. Sprinkler/standpipe hydraulic calculation
16. Energy code calculations
C. Specifications. By the Design Development submissio n, the Design-Builder shall provide draft final edited specifications and related catal og material which described all building equipment characteristics and material requirements.
D. Finish Samples. Finish selection samples must be pr ovided for exterior construction and interior public space even if previously submitted with pre-award proposal materials. The City reserves the right to select final finish colors, patterns, and textures from samples meeting contract requirements.
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E. Quality Assurance/Quality Control Plan. The Design- Builder shall provide a draft final QA/QCP addressing all systems, equipment, materials and construction represented by the Design Development submission.
Construction Documents
Drawings and specifications must depict/describe al l construction work and shall be in final form, to fully support the minimum needs of a prudent, li censed, bonded general contractor experienced with projects of similar size and type. Submitted drawings shall include final versions of those prepared f or the intermediate level submission and shall be expanded to include drawings depicting construction details , specialty features, and component scheduled. Specif ications must reflect resolution of all comments an d be edited to address only that construction work to be provided.
4.1.6 Registration Seals. Each final working drawing and each submitted specification and calculation document shall be signed and sealed showing the State Certification Number of the Architect of Record and Engineer of Record and Specialty Cons ultants who prepared the document and/or is responsible for its preparation, and for supervision of construction.
4.1.7 Quality Assurance/Quality Control Plan. The QA/QCP shall be complete in all respects addressing all types of inspections/test for work covered by Final Documents submissions, and for the commissioning of the mechanical, electrical, and fire/life safety systems.
Building Permit Documents
Drawings and specifications shall include a resolut ion of comments prior to submission and be adequate for obtaining a building permit.
Procedures
Design submissions shall be made to the City Engine er and shall be in accordance with the schedule represented within the Design-Builder's ap proved CPM schedule, having an allowance that the City will take four (4) weeks to review each submis sion. For each submittal level, the Design-Builder shall provide one reproducible electronic copy via a USB drive and an FTP site plus (4) hard copies for use by the City Engineer.
ADMINISTRATION OF THE CONTRACT
Role of City Engineer
4.1.8 The City's Engineer or his designee(s) shall be res ponsible for oversight of the design, permitting and construction on City's behalf. Design-Builder shall deliver all Design Documents and Construction Documents and other submittals to the City Engineer. All meetings regarding design and construction shall be coordinated through the City Engineer. Design-Builder shall not be relieved of i ts obligations under the Contract Documents by City approvals.
4.1.9 The City may contract with individuals or entities to support its professional services needs for the Project. Design-Builder should expect and accommodate regular contact with these individuals or entities to review design and construction progress.
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Design Concept Meetings
Shortly after Contract award the City may choose to conduct meetings with the Design• Builder to refine proposal concept features. The purpose of the meetings is to assure attention to project requirements and to suggest ways of improving the design prior to tentative level submissions. City design changes which do not increase construction costs shall be made at no charge to the City.
Coordination Meetings
In addition to regular meetings with the City and the City Engineer, the Design-Builder shall conduct formal status briefings on a monthly basis to provi de a management overview of contract development.
Immediately after award, "mobilization" meetings sh all be conducted to review contract requirements, address scheduling, introduce staff, establish lines of communication protocols, and resolve questions.
Administration of the Contract
4.1.10 Site Visits. City Engineer or his/her designee will visit the Site at intervals appropriate to the stage of Design-Builder's operations to become familiar with the progress and quality of the portion of the Work completed and to determine if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents.
4.1.11 No Estoppel. The City will not be responsible for D esign-Builder's failure to perform the Work in accordance with the requirement s of the Contract Documents. The City will not be responsible for acts or omissions of Design-Builder, Design Consultants, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. Approval and/or acceptance of all or any portion of the Work shall in no way reli eve Design-Builder from its obligation to construct each portion of the Work in accordance with the Contract Documents and City shall not be estopped or otherwise prevented from asserting any claim it might have against Design-Builder as a result of any such acceptance or approval.
4.1.12 Determination of Payment Amounts by City Representa tive. City Engineer or his/her designee will review Design-Builder's Applications for Payment and determine the amount of payment due Design-Builder.
Supervision and Inspection by City
4.1.13 The Work shall be done in strict compliance with th e approved Contract Documents under the supervision and to the satisfac tion of the City Engineer. The City Engineer shall decide all questions which may arise as to the quality or acceptability of the Work performed and as to the manner or performance and rate of progress of the W ork, and all questions as to progress payments or compensation.
4.1.14 The City Engineer or his/her designee shall, at all times, have the right to inspect the Work and materials in the course of manufacture, assembly or installation and make such tests from time to time as may be deemed advisable. The Design-Builder shall keep the City Engineer informed as to the progress of the Work and provide notice in advance of appropriate times for inspection and tests.
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4.1.15 The City Engineer upon delivery may, in his/her discretion, inspect all equipment and material purchased for this Project. If any equipment or material is found not to comply with the Contract Documents, such equipment or material shall be rejected.
4.1.16 The Design-Builder shall make available all facilit ies providing materials or equipment to the jobsite for inspection during manufacture at the construction site and offsite shops or yards as desired, and shall not conceal any Work requirin g inspection until the same has been approved by th e City Engineer. If such Work should be concealed bef ore inspection, the Design-Builder will be required to remove such portions of the Work already installed as may be necessary to enable such inspection to be made, at Design-Builder's sole cost and expense.
4.1.17 As more particularly described in Article 14 herein , all Work rejected shall be remedied, or removed and replaced by the Design-Builder in a manner acceptable to the City Engineer and no compensation therefor will be allowed or paid therefor to the Design-Builder. Any work done beyond the lines and grades shown on the Contract Documents or established by the City Engineer, or any extra work done without valid written authority, will be consi dered as unauthorized and will not be paid for. Suc h unauthorized work done may be ordered removed at the Design-Builder's expense. Upon failure on the part of the Design-Builder to comply promptly with any order of the City Engineer made under any provision of these Contract Documents, the City Engineer shall have authority to cause defective work to be remedied or removed and replaced and unauthorized work to be removed at the expense of Design-Builder, and to deduct the cost from any monies due or to become due the Design-Builder under this Contract.
4.1.18 Inspection or approval of the Work shall not reliev e the Design-Builder of any obligation to faithfully perform and comply with th e Contract. Defective work shall be made good and noncompliant materials removed and replaced at Desi gn-Builder's expense, notwithstanding that such defective work has been previously overlooked by the City Engineer and mistakenly approved.
4.1.19 The City Engineer’s inspections, as provided for in this Article, shall not be in- lieu of the City Building Official’s inspections or inspections by any other authority having jurisdiction.
4.1.20 Any and all reviews, inspections or approvals by Ci ty or any of its respective representatives or designees (collectively, the "Re viewers") that are required by, allowed, or otherwi se referenced in the Contract Documents or that are otherwise undertaken by the Reviewers in connection with the Project are for the sole purpose of concept rev iew only. Any such reviews, inspections, approvals or related actions of Reviewers shall not in any way b e, or be deemed to be, either: (a) an indication of any knowledge or expertise by any such parties in any a rea of the Work; (b) an approval of any architectur al, civil, structural, electrical, mechanical, plumbing , engineering, fire protection, safety or design as pects, requirements or specifications, all of which are, and shall remain, the responsibility of Design-Builder; or (c) a waiver of Design- Builder's obligations to perfor m the Work in accordance with this Agreement Notwithstanding any provision of the Contract Documents, City shall not be deemed to have assumed the responsibilities of Design-Builder nor shall Design-Builder presume that City or its representatives have any knowledge or expertise in any area of the Work as a result of any such review inspection, approval or related actions.
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4.1.21 No action or inaction by City or its representatives with respect to the design or construction of the Work shall relieve Design-Build er of its duties and responsibilities under the und er the Contract Documents.
4.1.22 Submittal Review. City will review and approve or take other appropriate action upon Design-Builder's Submittals such as Shop Drawi ngs, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the RFP.
4.1.23 Contract Modifications. City Engineer will prepare Change Orders and Construction Change Directives.
4.1.24 Substantial Completion and Project Closeout. City E ngineer will conduct inspections to determine the date or dates of Subst antial Completion and the date of Final Completion, review written warranties and related close-out doc uments required by the Contract and assembled by Design-Builder, and will approve a Final Application for Payment upon Design- Builder's satisfaction of the requirements of the Contract Documents.
SUBCONTRACTORS AND DESIGN CONSULTANTS
Award of Subcontracts and Other Contracts for Portions of the Work
4.1.25 Subcontracting Act.
4.1.25.1 The Subletting and Subcontracting Fair Practices Act, § 4100 et seq. of the California Public Contract Code ("Subcontractin g Act"), requires persons bidding on public works contracts to identify certain major Subcontractors as part of their bids. City recognizes that because a design-build contract may be awarded prior to the completion of the design, it is often impracticable for the design-build entity to list all Subcontractors duri ng the design and procurement phase of the Work. As a result, the Subcontractor listing requirements contained in the Subcontracting Act can create a conflict with the implementation of the design- build process by requiring all Subcontractors to be listed at a time when a sufficient set of plans may not be available. Cit y recognizes that certain Subcontractors can only b e selected by Design•Builder after a certain amount o f design work is completed. Therefore, City has postponed Design-Builder's obligation to identify c ertain Subcontractors, subject to Designer-Builder' s compliance with the Subcontractor selection policy set forth in this Article. All Subcontractors shall be afforded the protections contained in the Subcontracting Act.
4.1.25.2 The Designation of Subcontractors form (reference E xhibit I to the Agreement) shall be signed by Design-Builder, agreeing that any Subcontractor not identified on the fo rm who will perform Work or render Service in the performance of the Contract in the amount exceeding ½ of 1% of the difference between the total of the Contr act Price and the amount allocated to Design Services, shall be submitted to City for approval prior to th e execution of any subcontract. Once a Subcontracto r approved by City has been selected for any such Work, Design-Builder shall not have the right to make any substitution of such Subcontractor except in accordance with the provisions of the Subcontracting Act. The City Engineer or his/her designee shall serve as the hearing officer for the purposes of any hearing dealing with the substitution of a Subcontractor.
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4.1.26 Objection. Design-Builder shall not employ any Subcontractor, engineer, supplier or other individual or entity against whom City may have reasonable objection. Design- Builder shall not be required to employ any Subcontractor, engineer, sup plier or other individual or entity to furnish or p erform any of the Work against whom Design-Builder has reasonable objection.
4.1.27 Responsibility. Design-Builder shall be fully respo nsible to City for all acts and omissions of the Subcontractors, engineers, supplie rs and other individuals or entities performing or furnishing any of the Work under a direct or indire ct contract with Design-Builder. Nothing in the Con tract Documents shall create for the benefit of any such Subcontractor, engineer, supplier or other individual or entity any contractual relationship between City an d any such Subcontractor, engineer, supplier or oth er individual or entity, nor shall it create any oblig ation on the part of City to pay Subcontractor, eng ineer, supplier or other individual or entity except as may otherwise be required by laws and regulations.
4.1.28 Subcontract Agreements
4.1.28.1 All services performed or provided to and material and equipment supplied to Design-Builder by a Subcontractor or su pplier will be pursuant to an appropriate design su b- agreement or construction sub-agreement between Des ign-Builder and the Subcontractor, engineer or supplier which specifically binds the Subcontractor, engineer or supplier to the terms and conditions of the Contract Documents for the benefit of City. City sh all have the right but not the obligation to review and accept the form and substance of Design- Builder's agreements with Subcontractors. Whenever any such agreement is with a Subcontractor, engineer or supp lier who is listed as an additional insured on the property insurance provided for herein, the agreement between the Design-Builder and the Subcontractor, engineer or supplier will contain provisions whereby the Subcontractor, engineer or supplier waives all rights against City, City's consultants and all other additional insured's for all losses and damages caused by any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work.
4.1.28.2 If the insurers on any such policies require separa te waiver forms to be signed by any Subcontractor, engineer or supplier, Design-Builder will obtain the same.
4.1.29 Assignment. Each subcontract agreement for a portion of the Work is assigned by the Design-Builder to the City provided that assignment is effective only after termination of the Contract with Design• Builder by the City and only for those subcontract agreements which the City accepts by notifying the Subcontractor in writing. Said assign ments are subject to the prior rights of the sureti es obligated on the bonds relating to this Agreement. Each subcontract shall specifically provide that the City shall only be responsible to the Subcontractor for those obligations that accrue subsequent to the Cit y's exercise of any rights under this contingent assignment.
4.1.30 Substitution Process. Any request of Design-Builder to substitute a listed Subcontractor will be considered by City only if such request is in strict conformity with this Paragraph 6.1 and California Public Contract Code § 4107. All costs and fees incurred by City in the review and evaluation of a request to substitute a listed subcontractor shall be borne by Design-Builder. Such costs and fees may be deducted by City from the Contract Price then or thereafter due Design-Builder.
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4.1.31 Responsibilities of Design-Builder Upon Substitutio n of Subcontractor. Neither the substitution nor City's consent to Design-Build er's substitution of a listed Subcontractor shall r elieve Design-Builder from its obligation to complete the Work within the Contract Time and for the Contract Price.
In the event that City determines that revised or additional Submittals are required of the newly substituted Subcontractor, City shall promptly notify Design-Bu ilder, in writing, of such requirement and the time for Submittal. In the event that the revised or additio nal Submittals are not submitted by Design-Builder within the time specified, Design-Builder shall be solely responsible for delays in the Work arising from the untimely Submittal. Design-Builder shall reimburse City for all fees and costs incurred or associated with the processing, review and evaluation of any revised or additional Submittals required pursuant to this paragraph. City may deduct such fees and costs from any portion of the Contract Price then or thereaft er due Design-Builder. In the event that additional or revised submittals are required pursuant to this paragraph, such requirement shall not result in an increase to the Contract Time or the Contract Price.
Design Consultant and Subcontractor Relations
4.1.32 Agreements. By appropriate written agreement, Desig n-Builder shall require each Design Consultant and Subcontractor, to the ex tent of the Work to be performed by the Design Consultant and Subcontractor, to be bound to Design-Builder by terms of the Contract Documents, and to assume toward Design-Builder all the obligations and responsibilities, including the responsibility for safety of the Design Consultant or Subcontractor’s Work, which Design-Builder, by Contract Documents, assumes toward City. Each such agreement shall preserve and protect the rights of City under the Contract Documents with respect to the Work to be performed by the Design Consultant or Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow the Design Consultant or Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against Design-Builder that Design-Builder, by the Contract Documents, has against City. Design- Builder shall require each Design Consultant or Sub contractor to enter into similar agreements with th eir lower tier subcontractors and consultants. Design-B uilder shall make available to each proposed Design Consultant or Subcontractor, prior to the execution of the agreement, copies of the Contract Documents to which the Design Consultant or Subcontractor will b e bound by this Paragraph. At a minimum, each agreement shall:
(1) Require that the Work being performed pursuant to s uch agreement, as the case may be, be performed in accordance with the requirements and intent of the Contract Documents and withhold no more than five percent (5%) retention unless otherwise indicated in the Contract Documents or allowed by law;
(2) Require submission of Applications for Payment in t he form required by the Contract Documents, together with invoices and billings supporting such applications and condition al and unconditional lien releases in the form require d by the Contract Documents completed by Design- Builder and its Subcontractors as a condition to th e disbursement of any progress payment next due and owing to it;
(3) Require each Design Consultant, Subcontractor, and supplier, as the case may be, to maintain insurance coverage consistent w ith the scope of work for each respective Design Consultant, Subcontractor and supplier as outlined in the Contract Documents and to file required certificates of such coverage and additional insure d endorsements with City
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for the City’s review and approval, and, upon City's request, to provide copies of such insurance policies and renewal certificates to City;
(4) Require each Design Consultant, Subcontractor, and supplier to timely furnish to Design-Builder all information necessary for transmittal of Submittals and the reports requ ired herein;
(5) Require that each Design Consultant, Subcontractor, and supplier continue to perform under its subcontract if the Co ntract is terminated and if City takes an assignmen t of the subcontract or supply agreement and requests th e Subcontractor or supplier to continue such performance;
(6) Require each Design Consultant, Subcontractor, and supplier to remove all debris created by its activities;
(7) Provide that in the event that City accepts the con ditional assignment of the subcontract, City shall only be responsible to the Design Consultant or Subcontractor for those obligations that accrue subsequent to City's acceptance of the assignment; and
(8) Require the Design Consultant or Subcontractor to r esolve all disputes involving City according to the dispute resolution procedure established in Article 17 herein.
4.1.33 Precedence. If any provision of any Subcontractor a greement is inconsistent with any provision of the Contract Documents or the intent of the Contract Documents, then the Contrac t Documents shall control.
4.1.34 Payments. Design-Builder shall make payment to Subc ontractor within seven (7) days of receipt of each progress payment, in ac cordance with Public Contract Code §10262 and Business and Professions Code §7108.5. C ity hereby reserves the right, upon written notice to Design-Builder, to make, at any time, and from t ime-to-time, payments directly to each Subcontracto r, and, if such rights shall be exercised by City, then such amount shall be credited against the Contract Price due to Design-Builder hereunder and City shall be relieved and released from the obligation to make such payment to Design-Builder and Design-Builder shall be relieved and released as to City from the obligation to make such payments to each Design Consultant or Design-Builder paid by City, but not from any of the other obligations and responsibilities of Design-Builder to City under the Contract Documents.
Contingent Assignment of Design Consultant, Subcontractor and Material Supply Agreements
Each Design Consultant, Subcontractor and supplier agreement for a portion of the Work is assigned by Design-Builder to City provided that:
(1) Assignment is effective only after termination of the Contract by City only for those subcontracts which City accepts by notifying the Design Consultant, Subcontractor, supplier, and Design-Builder in writing;
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(2) Assignment is subject to the prior rights of the su rety, if any, obligated under the Performance Bond relating to the Contract;
(3) Each subcontract shall specifically provide that Ci ty shall only be responsible to the Design-Builder for those obligat ions Design-Builder did accrue subsequent to City’s exercise of any rights under this conditional assignment; and
(4) Upon exercise of this right of assignment, City has the right to reassign the agreement.
CONSTRUCTION BY CITY OR BY SEPARATE CONTRACTORS
City's Right to Perform Construction and to Award Separate Contracts
4.1.35 City's Right to Perform. City reserves the right to perform construction or operations related to the Project with City's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the Site. If Design-Builder claim s that delay or additional cost is involved because of suc h action by City, Design-Builder shall make such Cl aim as provided in Article 17 herein.
4.1.36 Interpretation of Contract Documents. When separate contracts are awarded for different portions of the Project or other construc tion or operations on the Site, the term "contractor" in the Contract Documents in each case shall mean City's S eparate Contractors who execute each Separate Contractor agreements.
4.1.37 Coordination. City shall provide for coordination o f the activities of City's own forces and of each Separate Contractors with the Wo rk of Design-Builder, who shall cooperate with them.
Design-Builder shall participate with other Separat e Contractors and City in reviewing their construct ion schedules when directed to do so. Design-Builder sh all make any revisions to the Construction Schedule deemed necessary after a joint review and mutual ag reement. Upon City's written approval, the revised Construction Schedule shall then constitute the sch edule to be used by Design-Builder, Separate Contractors, and City until subsequently revised and approved by City.
City's Right to Clean Up
If a dispute arises among Design-Builder, Separate Contractors, and City as to the responsibility under their respective contracts for maintaining th e premises and surrounding area free from waste materials and rubbish, City may clean up and allocate the cost among those responsible.
Independent Testing
4.1.38 City Testing. City will employ and pay for services of an independent testing laboratory to perform services specifically require d by the governing code authority, and as additiona lly requested by City.
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4.1.39 Design-Builder Duties. Design-Builder shall:
(1) Notify City and the testing laboratory sufficiently in advance of the required test to allow for its assignment of personnel and scheduling of tests;
(2) Cooperate with testing and inspection personnel, provide access to the work and to off-site fabrication facilities;
(3) Furnish copies and records of test reports;
(4) Pay for services of the same independent testing la boratory to perform additional inspections, sampling, and testing required when initial tests indicate Work does not comply with Contract requirements;
(5) Be responsible for all scheduling of inspections and tests; and
(6) Not proceed with Work requiring inspection if the appropriate inspector is not available.
CHANGES IN THE WORK
General
4.1.40 City's Right to Order Changes. City, without invali dating the Contract, may authorize changes in the Work consisting of additions, deletions, or other revisions, with the Contract Price and Contract Time being adjusted accordingly, if ne cessary. All such changes in the Work shall be authorized by Change Order or Construction Change D irective and Design- Builder shall perform such changes in the Work according to the applicable requirements of the Contract Documents.
4.1.41 Basis for Agreement. A Change Order shall be based upon agreement among City and Design-Builder. A Construction Change Directive may or may not be agreed to by Design-Builder.
4.1.42 No Estoppel. Changes in the Work shall be performed under applicable provisions of the Contract Documents. Design-Builde r shall proceed promptly with the change, unless otherwise provided in the Change Order or Construction Change Directive. A change in the Contract Price or the Contract Time shall be accomplished only by Change Order or Construction Change Directive.
Accordingly, no course of conduct or dealings betwe en the Parties, nor express or implied acceptance o f alterations or additions to the Work and no Claim that the Contract has been abandoned or City has bee n unjustly enriched by any alteration or addition to the Work shall be the basis of any Claim to an increase in any amounts due under the Contract Documents or a change in any time period provided for in the Contract Documents.
Change Orders
4.1.43 Computation. Methods used in determining adjustment s to the Contract Price by Change Order may include those listed in Paragraph 8.4 below.
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4.1.44 Accord and Satisfaction. Agreement on any Change Or der shall be a full compromise and settlement of all adjustments to Contract Time and Contract Price, and compensation for any and all delay, extended or additional field and home office overhead, disruption, acceleration, inefficiencies, lost labor or equipment productivit y, differing site conditions, construction interfer ences and other extraordinary or consequential damages (herei nafter called "Impacts"), including any ripple or cumulative effect of said Impacts on the overall Wo rk under the Contract arising directly or indirectl y from the performance of Work described in the Change Ord er. By execution of any Change Order, Design- Builder agrees that the Change Order constitutes a complete accord and satisfaction with respect to al l claims for schedule extension, Impacts, or any costs of whatsoever nature, character or kind arising out of or incidental to the Change Order. No action, conduct, omission, product failure or course of dealing by City shall act to waive, modify, change, or alter the requirement that (i) Change Orders must be in writing, signed by City and Design-Builder, and (ii) that such writ ten Change Orders are the exclusive method for effectuating any change to the Contract Price and/or Contract Time.
Construction Change Directives
4.1.45 Use. A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order.
4.1.46 Duty to Proceed. Upon receipt of a Construction Cha nge Directive, Design- Builder shall promptly proceed with the Work involv ed and advise City of Design-Builder's agreement or disagreement with the method, if any, provided in t he Construction Change Directive for determining th e proposed adjustment in the Contract Price or Contract Time.
4.1.47 Disagreement. If Design-Builder does not promptly i ndicate its disagreement with the method of pricing provided in the Construction Change Directive, Design- Builder shall be deemed to agree with the method of pricing the change. If Design-Builder indicates its disagreement with the method of pricing or if no method of pricing is provided in the Construction Change Directive, the increase in cost or credit to the Contract Price for the change shall b e determined in accordance with Subparagraph 8.4.1( 3) and the provisions of Subparagraphs 8.4.2, 8.4.3 and 8.4.4 shall apply to the change.
4.1.48 Agreement. A Construction Change Directive is effec tive immediately whether or not it is signed by Design-Builder. If Design-Bu ilder signs a Construction Change Directive such agreement shall be effective immediately and shall be recorded as a Change Order.
Computation of Cost or Credit for Changes
4.1.49 Cost or Credit. The cost or credit to City resulting from a change in the Work shall be determined by City by one or more of the following methods:
(1) Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation;
(2) Unit prices stated in the Contract Documents or sub sequently agreed upon;
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(3) By cost, as defined in (a), (b), (c) and (d) below, properly itemized and supported by sufficient substantiating data to permit evaluation, plus agreed markup for overhead and profit as defined in (e) below. Such costs shall be itemized by craft directly allocable to the change in the Work:
(a) Cost of materials, including sales tax, cost of tra nsportation and delivery;
(b) Cost of labor, including social security, and unemp loyment insurance, and fringe benefits required by agreemen t and Workers' Compensation Insurance;
(c) Rental value of equipment and machinery, exclusive of small tools with a value of less than $500 which are to be included in markup;
(d) Insurance and bond premiums;
(e) Mark-up to Design-Builder, Design Consultant, and
Subcontractors for overhead, profit and other expenses which are not specifically included in (a) through (d) above shall be calculated as indicated below:
(i) For the Design-Builder, for work performed by its o wn forces, fifteen percent (15%) of its direct subtotal cost.
(ii) For the Design-Builder, for work performed by a
Subcontractor’s forces, five percent (5%) of the di rect subtotal cost due the Design-Builder.
(iii) For a Subcontractor or Sub-subcontractor, for worke d performed by their own forces, fifteen percent (15% ) of their own direct subtotal costs.
(iv) For a Subcontractor, the sum of all additional mark - ups above the Subcontractor performing work shall not
exceed five percent (5%) of the direct subtotal cos t due the Subcontractor.
4.1.50 Credits. The amount of credit to be allowed by Desi gn-Builder to City for a deletion or change, which results in a net decrease in the Contract Price, shall be actual net cost as determined herein. The amount of deduction/credit for liquidated damages shall be in accordance with the Agreement. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overheads and profit shal l be figured on the basis of net increase/decrease, if any, with respect to that change.
4.1.51 Design-Builder Maintenance of Records. In the event that Design-Builder is directed to perform any changes to the Work, or should Design-Builder encounter conditions which Design- Builder believes would obligate City to adjust the Contract Price and/or the Contract
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Time, Design-Builder shall notify City and maintain detailed records of the cost of such changes on a daily basis. Such records shall include without limitation hourly records for labor and construction equipment and itemized records of materials and equipment used ea ch day in connection with the performance of any change to the Work. In the event that more than one change to the Work is performed by Design-Builder in a calendar day, Design-Builder shall maintain separate records of labor, construction equipment, materials, and equipment for each such change. In the event th at any Design-Builder or Subcontractor, of any tier , shall provide or perform any portion of any change to the Work, Design-Builder shall require that each such Design Consultant, Design-Builder and Subcontractor maintain records in accordance with this Article.
Each daily record maintained hereunder shall be signed by Design-Builder's Project Representative; such signature shall be deemed Design-Builder's represen tation and warranty that all information contained therein is true, accurate, complete, and relates only to the change referenced therein. All records maintained by a Design Consultant, Design-Builder and Subcontractor, of any tier, relating to the costs of a change in the Work shall be signed by such Design Consultant, Design-Builder's authorized Project Manager or Superintendent. Such records shall be forwarded to City Engineer on the day the Work is performed (same day) for independent verification). In the event th at Design-Builder shall fail or refuse, for any rea son, to maintain or make available for inspection, review, and/or reproduction such records, adjustments to th e Contract Price or Contract Time, if any, on account of any change to the Work shall be solely determin ed by City which shall be binding upon Design-Builder. Design-Builder's obligation to maintain records hereunder is in addition to, and not in lieu of, an y other Design-Builder obligation under the Contrac t Documents with respect to changes to the Work.
4.1.52 Payment of Undisputed Amounts. Pending final determination of the total cost of a Change, amounts not in dispute for such changes i n the Work shall be included in Applications for Payment accompanied by an approved Change Order or Construction Change Directive, indicating the Parties' agreement with part or all of such costs.
Authority to Approve Changes
4.1.53 City Engineer’s Authority. City Engineer must autho rize any changes in the Work. Such changes shall be effected by written order and shall be binding on Design-Builder.
4.1.54 Verbal Changes. Any oral order, direction, instruct ion, interpretation, or determination from City (collectively "Verbal Chang e") which, in the opinion of Design-Builder, causes a Scope Change in the Work, or otherwise requires an adjustment to the Contract Price or the Contract Time, shall be treated as a Change Order Request only if Design-Builder gives City written notice within ten (10) calendar days of the Verbal Change and prior to act ing in accordance therewith. The written notice sha ll state the date, circumstances, extent of adjustment to the Contract Price or the Contract Time, if any , requested and the source of the Verbal Change. Time is of the essence in Design-Builder's written noti ce pursuant to the preceding sentence, so that City ca n promptly investigate and consider alternative measures to address the Verbal Change giving rise to Design-Builder's notice. Accordingly, Design-Builder acknowledges that its failure, for any reason, to g ive written notice within ten (10) calendar days of such Verbal Change shall be deemed Design-Builder's waiver of any right to assert or Claim any entitlement to an adjustment of the Contract Time or the Contract Price on account of such Verbal Change.
4.1.55 Unauthorized Work. Any Work performed by Design-Builder not indicated on the Contract Documents or any changes in the Work perfo rmed or provided by Design-Builder without notice to City, shall be considered unauthorized by City and performed at
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the sole expense of Design-Builder. Unauthorized work so performed will not be measured or paid for and no extension of Contract Time will be granted on ac count thereof. Any such unauthorized work may be ordered removed at Design-Builder's sole cost and expense. The failure of City to direct or order removal of such unauthorized work shall not constitute acceptance or approval of such work nor relieve Design-Builder from any liability on account thereof.
City Originated Proposal Request
City may issue a-request, in writing, to Design-Builder, describing a proposed change to the Work and requesting Design-Builder submit an itemized pr oposal in a format acceptable to City within ten (1 0) calendar days after City issues the request. Design-Builder's proposal shall include an analysis of impacts to cost and time, if any, to perform additional work, or delete Work, as applicable, including the effects and impacts, if any, on unchanged Work, estimates of co sts (broken down by the cost categories listed in t he Agreement and/or Paragraph 8.4 herein), and Design-Builder's proposed methods to minimize costs, delay, and disruption to the performance of the Work. If D esign-Builder fails to submit a written proposal wi thin such period of time, it shall be presumed that the change described in City's original proposal reques t will not result in an increase to the Contract Price or Contract Time and the change shall be performed by Design- Builder without additional compensation. City's proposal request does not authorize Design- Builder to commence performance of the change, unless other wise specified in writing. If City desires that the proposed change be performed, the Work shall be aut horized according to the Change Order or Construction Change Directive procedures set forth above.
Design-Builder Originated Change Order Request (COR)
If Design-Builder alleges that instructions issued by City after the effective date of the Contract may result in changes to the Contract Price or Contract Time or if Design-Builder otherwise becomes aware of the need for or desirability of a change in the Wor k, Design-Builder may submit a written Change Order Request ("COR") to City in writing, in a format acc eptable to City and in accordance with the notice provisions and other requirements of Article 17 for Claims. The COR must specify the reasons for the proposed change, cost impacts and relevant circumst ances and impacts on the Construction Schedule.
The document shall be complete in its description of the Work, its material and labor quantities and detail, and must support and justify the Costs and credits claimed by Design-Builder. A CPM schedule fragnet i s required to support and justify any additional Cont ract Time of performance requested by Design-Builde r.
City will not review any COR which is incomplete. D esign-Builder may request additional compensation and/or time through a COR but not for instances tha t occurred more than ten (10) calendar days prior t o the notice date. Design-Builder's failure to initia te a COR within this ten- day period or to provide detailed back-up documentation to substantiate the COR within thirty (30) calendar days of the initial written notice shall be deemed a waiver of the right to adjustment of the Contract Price or the Contract Time for the alleged change. Any COR that is approved by City will be incorporated in a Change Order or Construction Change Directive. If the COR is denied by the City but Des ign-Builder believes that it does have merit, Desig n- Builder shall proceed in a timely fashion with the disputed Work and may submit a Claim in accordance with the procedures set forth in Article 17.
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SCHEDULE AND EXTENSIONS OF TIME
Definitions
4.1.56 Contract Time. The Contract Time is the period of time allocated in the Contract Documents from the date of commencement provided in City's Notice to Proceed.
4.1.57 Commencement. The date of commencement of the Work is the date provided in City's Notice to Proceed.
4.1.58 Substantial Completion. The date of Substantial Com pletion is the date determined by City and certified by City in accorda nce with Paragraph 10.6 below and the terms of this Agreement.
Progress and Completion
4.1.59 Time is of the Essence. Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement and any Modifications relating to Substantial Completion or Contract Time, Design-Builder agrees and confirms that the Contract Time is a reasonable period for performing the Work.
4.1.60 Commencement. Design-Builder shall not knowingly, e xcept by agreement or instruction of City in writing, prematurely commenc e operations on the Site or elsewhere prior to the effective date of insurance required to be furnishe d by Design-Builder as specified in the Agreement. The Date of Commencement of the Work shall not be changed by the effective date of such insurance.
4.1.61 Completion. Design-Builder shall proceed expeditiously with adequate labor and supervision to achieve Substantial Completion within the Contract Time.
Design-Builder's Schedules
4.1.62 Project Schedule. Unless otherwise provided in the Agreement or Technical Specifications, within fourteen (14) calendar days after the Date of Commencement, Design-Builder shal l submit a baseline Project Schedule for the Work for comment and approval by City. The baseline Project Schedule shall include, but not be limited to:
(1) A CPM format that incorporates all activities with descriptions, sequence, logic relationships, duration estimates, resource-loading, and other information required for all design, pre- construction and construction activities.
(2) Activities indicating the start and finish dates fo r preparation of Design Development and Construction Documents, project des ign, engineering, government agency plan check and City agency document review.
(3) Activities to be integrated and shown in the CPM network shall include all milestones representing Design-Builder’s submittal dates and activities representing City’s review period of each submittal (which review period shall in no case be scheduled for less than 21 calendar days); Design- Builder’s procurement of materials and equipment; Submittals; manufacture and/or fabrication, testing and delivery to the jobsite of special material and maj or
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equipment; equipment installation and preliminary, final and performance testing of equipment or systems.
(4) Activities showing the start and finish dates for a ll temporary works; all construction of mock-ups, and prototypes and/or Samples.
(5) Activities showing start and finish dates of owner- furnished items and interface requirement dates with Subcontractors; regulatory agency approvals; and permits required for the performance of the work.
(6) Activities showing start and finish of tenant programming (as appropriate), modular furniture, tenant improvement work and phased occupancy.
(7) Close-out activities at a level of detail acceptable to City.
(8) The schedule shall consider all foreseeable factors or risks affecting or which may affect the performance of the work, inclu ding historical and predicted weather conditions, Applicable Laws, regulations or collective bargaining agreements pertaining to labor, transportation, traffic, air quality, noise and any other applicable regulatory requirements.
(9) Design-Builder shall attach a narrative report which explains assumptions used for activity durations, its assumptions regard ing crew sizes, equipment requirements and producti on rates, any potential areas of concern or specific areas requiring coordination it may have identified and any long-lead time materials or equipment.
(10) Time units for all schedules shall be in calendar days, and no construction activity shall have a duration greater than thirty (30) calendar days without City approval.
Upon City's approval, the Project Schedule shall be deemed to be a Contract Document. Any revisions or updates to the Project Schedule are subject to review and approval by City.
4.1.63 Format. Unless otherwise provided in the Contract D ocuments, the Project Schedule shall be in a detailed precedence CPM or Primavera-type format satisfactory to City, which shall also: (i) provide a graphic representation of all activities and events that will occur during performance of the Work; (ii) identify each phase of design, construct ion, testing and commissioning, and maintenance; an d (iii) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as Milestone Dates). At a minimum the Project Schedule shall depict the schedule for Work on a discipline by discipline and trade by trade basis and tasks within each discipline and trade. The Pro ject Schedule shall include: (i) a schedule of the Construction Documents issuance dates, including sequentially issued documents for phased construction;
(ii) proposed activity sequences and durations; (ii i) milestone dates for receipt and approval of pert inent information, including City-supplied information and approvals by public authorities having jurisdiction over the Project; (iv) dates for preparation and process ing of Design Development Documents, Construction Documents, Shop Drawings, Product Data, and Samples;
(v) dates for delivery of materials or equipment re quiring long-lead time procurement; (vi) City's occupancy/use requirements showing portions of the Project having occupancy priority; (vii) the estimated date of Substantial Completion; and (viii) other information reasonably required by City. Upon review and acceptance by City of the baseline Project Schedule , the baseline Project
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Schedule shall be deemed part of the Contract Documents. If not accepted, the baseline Project Schedule shall be promptly revised by Design-Builder in acco rdance with the recommendations of City and re- submitted for acceptance.
4.1.64 Updates. With each Application for Payment submitted by Design- Builder (other than the Final Application for Payment), Design-Bui lder shall submit to City an updated Project Schedu le revised to include, at a minimum:
(1) Monthly update/status of electronic database shall include notation of all Actual Start Dates and Actual Finish Dates and status of activities in progress.
(2) Review of “planned” versus “actual” work force allocations and progress for the preceding month.
(3) Reviews of revisions, added or deleted work and how those activities are being integrated into Design-Builder’s work plan.
(4) Review of Design-Builder’s interface and coordination with other work on the Project.
(5) Review of all impacts to the work during the preceding month and to date, Design-Builder evaluation of those impacts and any recovery plans or remedial actions required to comply with the contract schedule.
In no event shall any Project Schedule Update constitute an adjustment in the Contract Time, any deadline, or the Contract Price unless any such adjustment is agreed to by City and authorized pursuant to Chang e Order or Construction Change Directive.
4.1.65 Condition of Payment. Compliance by Design-Builder with the requirements of the Contract Documents pertaining to the preparatio n, submission, revising and updating of the Project Schedule is a condition precedent to City’s obligation to make payment to Design-Builder of any or all sums that might otherwise be due to Design-Builder in th e absence of such noncompliance. Payment by City under the circumstances in which City, for any reason, fails or elects not assert its right to withhold payment for noncompliance with this Article shall not be construed as a waiver of the right to withhold future payments on account of such noncompliance or any other noncompliance.
4.1.66 Extraordinary Measures. In the event City determine s that the performance of the Work has not progressed or reached the level of completion required by the Contract Documents, City shall have the right to order Design-Builder to take corrective measures necessary to expedite the progress of construction, including, without limitation, the Extraordinary Measures as provided in Paragraph 2. 9 herein.
4.1.67 Early Completion. While Design-Builder may schedule completion of the Project earlier than the date established by the Contract Documents, no additional compensation shall become due Design-Builder for the use of float time between De sign-Builder's projected early completion date and the date for Substantial Completion established by the Contract Documents, except any bonus or penalty provisions set forth in the Contract Documents, whi ch would take precedence over and supersede this Paragraph.
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4.1.68 Schedule of Submittals. Unless otherwise provided in the Contract Documents, within fourteen (14) calendar days after the Date of Commencement, Design-Builder shall prepare and keep current, for City's review and approval, a Schedule of Submittals for Construction Documents, Shop Drawings, Product Data, Samples, and similar Submittals, coordinated with the baseline Project Schedule and allowing City reasonable time to review. Design -Builder shall be solely responsible for any delay, disruption, impact, loss of efficiency or other loss, arising directly or indirectly from Design-Builder's failure to manage Submittals properly.
4.1.69 Procurement Schedule. Unless otherwise provided in the Contract Documents, within fourteen (14) calendar days after the Date of Commencement, Design-Builder shall prepare and keep current, for City's approval, a schedule for procur ement of materials and equipment which is coordinat ed with the baseline Project Schedule and allows City reasonable time to review. Design-Builder is solely responsible for any delay, disruption, impact, loss of efficiency, or other loss arising directly or i ndirectly from Design-Builder's failure to properly manage procurement of equipment and materials.
4.1.70 Performance. Design-Builder shall perform the Work in accordance with the most recent Project Schedule and Schedule of Submit tals approved by City. Design-Builder shall monitor the progress of the Work for conformance with the requirements of the Project Schedule and shall promptly advise City of any delays or potential delays.
Delays and Extensions of Time
4.1.71 Non-Compensable Force Majeure Events. "Force Majeur e" shall mean any of the following events, which materially and adversel y affect Design-Builder's obligations hereunder and which event could not have been avoided or prevente d by due diligence and use of reasonable efforts by Design-Builder: flood, earthquake, storm, fire, dro ught and other similar natural catastrophes; blocka de, rebellion, war, terrorism, riot, acts of sabotage, or civil commotion; epidemic or pandemic; restraint by court order or public authority and action or non-action by or inability to obtain the necessary authorizati on or approvals from any governmental agency or authority , which by the exercise of due diligence such party could not reasonably have been expected to avoid an d which by the exercise of due diligence has been unable to overcome; industry-wide labor strike whic h has a material adverse impact on the Project; discovery of any archaeological, paleontological or cultural resources; spill of hazardous substances by a third party at or near the Site which is required t o be reported to the Federal or California Environm ental Protection Agency, Toxic Substances Control; discov ery at, near, or on the Site of any species listed as "threatened" or "endangered" under the Federal or California Endangered Species Act.
4.1.72 Remedies. If the critical path of the Work is delay ed by Force Majeure events, provided that the aforesaid causes were not foreseeable and did not result from the acts of Design-Builder, and provided further that Design-Builder has taken reasonable precautions to prevent further delays owing to such causes, then Design-Builder may pursue reme dies for adjustment of the Contract Time in accordance with Paragraph 9.4. Under no circumstances shall Design-Builder be entitled to any additional compensation or recovery of any damages (including without limitation, consequential damages, lost opportunity costs, impact damages or other similar remuneration) for a Force Majeure event. Notwithstanding anything to the contrary in the Contract Documents, an extension of Contract Time shall be the sole an d exclusive remedy of Design- Builder for a Force Majeure event.
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4.1.73 Rain Days/Inclement Weather. For purposes of granti ng time extensions pursuant to this subparagraph and in accordance with the Claims procedures set forth in Article 17 herein, resulting from unworkable days due to ra in/inclement weather which were not reasonably foreseeable, Design-Builder and City agree that the impact of rainfall/inclement weather for which Design- Builder is not entitled to a time extension is a to tal of ten (10) Work Days per year ("Rain Days"). D esign- Builder shall account for the above number of Work Days for which the effects of rainfall/inclement weather are expected to prevent Work in the Construction Sc hedule as set forth in Paragraph 9.3 herein and sha ll obtain City's approval of Design-Builder's use of each Rain Day before requesting extension of the Contract Time. If the Rain Days have been utilized and adver se weather conditions are the basis for a Claim for additional time, then such Claim shall be documente d by data substantiating that weather conditions ar e abnormal for the period of time and had an adverse effect on the scheduled construction. Weather data reported through National Climate Data Center using the closest available data reporting station will be used as the basis to establish normal precipitation rates. For purposes of this section, a day with accumulation greater than 0.1 inch of precipitation , as reported on the National Oceanic and Atmospher ic Administration (NOAA) website, will be considered as adverse weather.
4.1.74 Compensable Delays. If the date for Substantial Com pletion of the Work is delayed as a result of the wrongful acts or negligence of City or anyone for whom City is legally liab le and the delays are unforeseeable and are unreasonable under the circumstances involved, Design-Builder shall be entitled to an equitable adjustment of the Contract Time and/or Contract Price directly resulting from such delays, subject to the requirements of Article 9 herein and further provided Design-Builder complies with the notice and procedural requirements of Article 17 herein.
4.1.75 Concurrent Delays. To the extent Design-Builder is entitled to an extension of time due to an excusable delay, but the performance of the critical path of the Work would have been otherwise suspended, delayed, or interrupted by the fault or neglect of Design- Builder or by an inexcusable delay, Design-Builder shall not be entitled to any additional cost during the period of such concurrent delay.
4.1.76 Float. Critical Work activities are defined as Work activities which, if delayed or extended, will delay the scheduled completion of th e milestones and/or time of completion. All other Work activities are defined as non-critical Work activities and are considered to have float. Float is defined as the time that a non-critical Work activity can be delayed or extended without delaying the scheduled completion of the milestones and/or time of completion. Float is considered a Project resource available to either party or both parties as needed. Once identified, Design- Builder shall monitor, account for, and maintain float in accordance with critical path methodology.
Delays of any non-critical Work shall not be the ba sis for an extension of Contract Time until the del ays consume all float associated with that non-critical Work activity and cause the Work activity to become critical.
4.1.77 Shortage of Materials. An extension of time will not be granted by City for a delay caused by a shortage of materials, except City-furnished materials, unless Design- Builder furnishes to City documented proof that Design-Builder has made every effort to obtain such materials from every known source within reasonable reach of the Work. Design-Builder shall also submit proof, in the form of net work analysis data that the inability to obtain such
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materials when originally planned did, in fact, cause a delay in Final Completion of the Work which could not be compensated for by revising the sequence of operations. City will consider only the physical shortage of material as a cause for extension of time. City will not consider any claim that material could not be obtained at a reasonable, practical, or economical cost, unless it is shown to the satisfaction of City that such material could have been obtained only at exorbitant prices, entirely inconsistent with current rates taking in to account the quantities involved and the usual practices in obtaining such quantities and that such fact could not have been known or anticipated at the time the Contract was entered into.
4.1.78 Utility and Agency Delays. Design-Builder is aware that private entities, governmental agencies, gas companies, electrical utility companies, water, and other utilities and agencies may be required to approve Design-Builder prepared drawings or approve a proposed installation. Design- Builder has endeavored and will continue to use its best efforts to include the cost of such anticipated delays and related costs which may be caused by such utilities and agencies in the Contract Price. Thus, Design- Builder is not entitled to make claim upon City for damages or delays arising from the delays caused b y such entities and agencies. Furthermore, Design-Bui lder has included time periods for such approvals i n the Project Schedule and is not entitled to an exte nsion of time for delays caused by any private enti ty or governmental agency from which Design-Builder must obtain approvals.
4.1.79 Design-Builder Fault. No extension of time will be granted for any delay to the extent: (i) that performance was so delayed by any Design-Builder induced causes, including but not limited to the fault or negligence of Design-Builder, its Consultants or Subcontractors; or (ii) for which any remedies are provided for or excluded by any other provision of the Contract.
4.1.80 Contract Modification. A Change Order or Construction Change Directive will be issued by City to Design-Builder within a reasonable period of time after approval of a request for extension of time, specifying the number of days allowed, if any, and the new date or number of calendar days af ter the date of commencement for completion of the Work or specified portions of the Work.
4.1.81 No Release of Surety. An extension of time granted shall not release Design- Builder's surety from its obligations. Work shall c ontinue and be carried on in accordance with all th e provisions of the Contract and said Contract shall be and shall remain in full force and effect during the continuance and until the Final Completion and final acceptance of the Work covered by the Contract unless formally suspended or annulled in accordance with the terms of the Contract.
4.1.82 No Waiver. Neither the grant of an extension of tim e beyond the date fixed for Substantial Completion of the Work, nor the perform ance and acceptance of any part of the Work or materials specified by the Contract after the time specified for Substantial Completion of the Work, shall be deemed to be a grant of any future extensions, a wavier by City of City's right to abrogate this Contract for abandonment or failure to complete within the time specified, or to impose and deduct damages as may be provided in the Contract Documents.
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PAYMENTS AND COMPLETION
Contract Price
The Contract Price, including authorized adjustments, is the total maximum amount payable by City to Design-Builder for performance of the Work under the Contract Documents.
Schedule of Values
Within fourteen (14) calendar days after the Date of Commencement, Design-Builder shall submit to City a detailed Schedule of Values allocated to various portions of the Work. The Schedule of Values shall be approved by City in writing. The Schedule of Values shall be prepared in such a manner that each major item of Work assigned to Design-Builder and to each separate Design Consultant and Subcontractor is shown as a single line item on AIA Document G702 (o r other form as required by City) and supported by such data to substantiate its accuracy as City may require. The value of any item in the Schedule of Values shall not exceed the sum of $50,000 without City approval. The approved Schedule of Values shall be used as a basis for reviewing Design-Builder's Applicati ons for Payment. If at any time it is determined that the Schedule Values does not allocate the Contract Pric e in a manner that reasonably and fairly reflects t he actual costs anticipated to progressively incurred by Design-Builder, it shall be revised and resubmitted for approval by City.
Applications for Payment
4.1.83 Applications for Payment. Design-Builder shall subm it to City an itemized Application for Payment, utilizing a form approved in writing by City, for operations completed in accordance with the Schedule of Values and the payment provisi ons of the Agreement. Such Application shall be notarized, if required by City, and supported by such data substantiating Design-Builder's right to payment as City may require, including copies of requisitions from Subcontractors and Suppliers.
4.1.84 Based on California Public Contract Code § 20104.50 and the Contract Documents, each Application for Payment shall be reviewed by City as soon as practicable after receipt for the purpose of determining that the payment request is proper. Any Application for Payment determined not to be suitable for payment shall be returned to Design-Builder not later than seven (7) calendar d ays after receipt. Any returned Application for Payment shall be accompanied by a document setting forth i n writing the reasons why the payment request is not proper. City shall make any progress payment within thirty (30) days after receipt of an undisputed and properly submitted Application for Payment from Design- Builder. If City fails to make the payment in a tim ely fashion, then City shall pay interest to Design -Builder equivalent to the legal rate set forth in Code of Civil Procedure § 685.010(a). The number of days available to City to make payment without incurring interest shall be reduced by the number of days by which Cit y exceeds the seven-day return requirement set forth herein.
As provided in Article 8 herein, such Applications for Payment may include requests for payment on account of changes incorporated into the Work which have be en properly authorized by Construction Change Directives, but not yet included in Change Orders.
Such Applications for Payment shall not include requests for payment of amounts Design-Builder does not intend to pay to a Design Consultant, Design-Builder or material supplier because of a
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dispute or other reason, or as to which an appropriate conditional or unconditional waiver and release of rights upon payment has not been provided.
4.1.85 Certification. When Design-Builder signs and submit s each application for payment it shall constitute a representation and certification, under penalty of perjury, by Design-Builder to City that: (1) the data comprised in the application for payment is accurate and the Work has progressed to the point indicated; (2) to the best of Design-Buil der’s knowledge, information and belief, the Work i s in accordance with the Contract Documents; (3) Design-Builder is entitled to payment in the amount certif ied; and (4) all sums previously applied for by Design- Builder on account of Work performed by Subcontractors and that had been paid by City were paid to the Sub contractors performing such Work, without any retention, withholding or back charge by Design-Builder.
4.1.86 Stored Materials. Payments may be made by City, at its discretion, on account of materials or equipment not incorporated into the Work but delivered on the ground of the Site being suitably stored by Design-Builder or stored off-sit e in a facility under the control of City. Such pay ments shall only be considered upon submission by Design- Builder of satisfactory evidence that it has acquir ed title to same, that the material or equipment will be utilized in the Work and that the material is satisfactorily stored, protected and insured, and that such other procedures are in place satisfactory to City to pro tect City’s interest. To be considered for payment, materials or equipment stored off-site shall, in addition to the above requirements and unless otherwise specificall y approved by City in writing, be stored in a bonde d warehouse, fully insured and available to City for inspection. City shall have sole discretion to dete rmine the amount of material and equipment that may be stored on the Site at any given time.
4.1.87 Documentation. As a condition precedent to City's monthly progress payment to Design-Builder, Design-Builder shall submit with each Application for Payment the following documentation:
(1) Updated Schedules of Values, invoices and requisiti ons from all Design Consultants, Subcontractors and suppliers performing Work covered by the Application for Payment;
(2) Completed and executed form of Conditional Waiver a nd Release of Rights Upon Progress Payment in accordance with California Civil Code § 8132, from Design Consultants, Subcontractors and suppliers covering the amount of the current Application for Payment;
(3) Completed and executed form of Unconditional Waiver and Release of Rights Upon Progress Payment in accordance with California Civil Code § 8134, from Design Consultants, Subcontractors and suppliers covering the amount of the previous Application for Payment (but no later than two months prior to the current Application for Payment);
(4) Certification from Design-Builder-retained or Subco ntractor- retained design consultants that, based upon their on-site o bservations, the Design-Build Work has progressed a s indicated in Design-Builder's Application for Payment, and has been installed in accordance with the design documents prepared by such design subconsultant;
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(5) At its sole discretion, City reserves the right to request (i) an executed subcontract including bonds, insurance certificates , and endorsements and all other exhibits and attachments for each item of material, labor and service for which a disbursement has been requested and (ii) certifications from each Design-Builder and Subcontractor of any tier, that each is current in the payment of any supplemental fringe benefits required pursuant to any collective bargaining agreement to which any such Design-Builder or Subcontractor is a Party or is otherwise bound; and
(6) Such other documentation as City may reasonably request.
(7) Any Payment made by City to Design-Builder in the absence of any of the preceding documents in no way relieves Design-Builder from providing all these documents for the current and/or any future payment.
As a further condition precedent City's obligation to make monthly progress payment to Design- Builder, Design-Builder must be current in its subm ittal of documentation required by the Contract Documents including, but not limited to the following:
(1) Design-Builder Procurement Log listing executed sub contracts including bonds, insurance certificates, and endorsements and all other exhibits and attachments for each item o f material, labor and service for which a disbursement has been requested;
(2) Log of all licenses, leases, permits, approvals and agreements relating to the construction of the Project;
(3) Design-Builder's daily reports;
(4) As-Builts and Record Documents updated with current Project information as described in Paragraph 3.13 above;
(5) Updated Project Schedule;
(6) Request for Information Log;
(7) Change Order Request Log and Change Order Log, including a list of any Change Orders and Construction Change Directives, contemplated or under negotiation at the date of such payment request, the status, and a rough order of magnitude cost for each such change; and
(8) Certified Payrolls for the time period covered in the prior month’s Application for Payment.
Any payment made by City to Design-Builder in the absence of any of the preceding documents in no way relieves Design-Builder from providing all t hese documents for the current and/or any future payment.
4.1.88 Initial Payment Application. Design-Builder shall e nsure that all administrative actions, Submittals, payment procedures and requirements set forth in the Contract Documents for the first Application for Payment must precede or coincide with the initial Application for Payment, including:
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(1) A description of the types of Work and the amounts thereof to be provided by Design-Builder (as opposed to the Design Consultants or Subcontractors);
(2) A list of Design Consultants, Subcontractors, principal suppliers and fabricators;
(3) A Submittal Schedule;
(4) Copies of all necessary permits;
(5) All insurance certificates and endorsements for Design-Builder, Design Consultants and all Subcontractors are in place;
(6) Payment and Performance Bonds for Design-Builder an d Subcontractors, as applicable, are in place; and
(7) Job signs have been installed and are acceptable to City.
4.1.89 Payment to Design Consultants and Subcontractors. Within seven (7) calendar days of Design-Builder's receipt of payment from Ci ty for Work performed by a Design Consultant or Subcontractor, Design-Builder shall pay all Design Consultants and Subcontractors for and on account o f Work of the Contract performed by each. Design-Builder shall by appropriate agreement with each Design Consultant, Subcontractor and supplier, require each Subcontractor to make payments in a similar manner.
City will, on request, furnish to a Design Consulta nt, Subcontractor or supplier, if practicable, info rmation regarding percentages of completion or amounts applied for by Design-Builder and action taken thereon by City on account of portions of the Work done by each. Pursuant to Public Contract Code §20133(k)(2) in a contract between Design-Builder and Design Consulta nt or Subcontractor, or between a Design-Builder and Subcontractor, the percentage of the retention proceeds withheld may not exceed the percentage specified in the Contract between City and Design-Builder. If Design-Builder provides written notice to any Subcontractor, prior to or at the time the bid is r equested, that a performance and payment bond may b e required and the Subcontractor subsequently is unable or refuses to furnish a bond to Design-Builder, then Design-Builder may withhold retention proceeds in e xcess of the percentage specified in the Contract between City and Design-Builder from any payment made by Design-Builder to the Subcontractor.
4.1.90 Substantial Completion Payment Application. Followi ng issuance of the Certificate of Substantial Completion by City Engin eer and approval thereof by City, Design- Builder s hall submit an Application for Payment at Substantial Co mpletion. In addition to Submittals required for al l applications for progress payments, Design-Builder shall complete the following administrative actions and Submittals, all of which shall precede or coincide with this application:
(1) List all incomplete items of Work and the estimated value of each item of incomplete Work;
(2) Obtain and submit all documentation necessary to en able City's full and unrestricted use of the Work or portions thereof, a nd access to services and utilities, and to supply any change-over information necessary to City's occupancy, use, operation, and maintenance;
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(3) Discontinue and remove temporary facilities and services from the Site, along with construction tools and equipment, forms, and similar items;
(4) Obtain all temporary occupancy permits and similar approvals for the use of the facilities;
(5) In the presence of City representatives, inspect, t est, and adjust performance of every system of facility of the Work to ensure that overall performance complies with terms of the Contract Documents;
(6) Submit a report of such test results to City;
(7) Provide both written instructions and hands-on trai ning and instruction (that is also videotaped) for City's operating personnel on systems and equipment operational requirements;
(8) Report performance of completed installations after adjustment that appear unable to comply with the requirements of the Contract Documents; and
(9) Submit the operating manual(s) for operating and ma intaining the facility.
4.1.91 Warranty of Title. Design-Builder warrants that tit le to all Work covered by an Application for Payment will pass to City no later than the time of payment. Design-Builder furt her warrants that upon submittal of an Application for Payment all Work for which Applications for Payment have been previously issued and payments received from City shall, to the best of Design-Builder's knowledge, information, and belief, be free and clear of liens , stop payment notices, claims, security interests, or encumbrances in favor of Design-Builder, Design Consultants, Subcontractors, suppliers, or other persons or entities making a claim by reason of having prov ided labor, materials, and/or equipment relating to the Work. This provision shall not relieve Design-Build er from the responsibility for materials and Work u pon which payments have been made, the restoration of d amaged Work, or waive the right of City to require the fulfillment of the terms of the Contract.
Decision to Withhold Payment
4.1.92 Basis for Decision to Withhold. City Engineer may withhold payment in whole or in part, to the extent reasonably necessary to protect City. If City Engineer is unable to approve payment in the amount of Design-Builder's Application for Paym ent, City Engineer will notify Design-Builder of th e reasons for failing to approve the payment. If Design-Builder and City Engineer cannot agree on a revi sed amount, City Engineer will promptly issue payment f or the amount for which City Engineer approves. Cit y Engineer may refuse to make payment or, because of subsequently discovered evidence, City Engineer or City may nullify the whole or a part of a payment previously issued, to such extent as may be necessary in City Engineer's opinion to protect City from loss f or which Design-Builder is responsible, including l oss resulting from acts and omissions described in Article 3 or because of any one of the following:
(1) Defective work not remedied;
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(2) Third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to City is provided by Design-Builder;
(3) Failure of Design-Builder to make payments properly to Design Consultants, Subcontractors or suppliers for labor, materials, services or equipment;
(4) Reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price;
(5) Damage to City or another Design-Builder;
(6) Reasonable evidence that the Work will not be completed within the Contract Time;
Contract Documents;
(7) Persistent failure to carry out the Work in accordance with the
(8) Liquidated damages, if any, which accrued as of the date of the Application for Payment;
(9) Such other sums as City is entitled to recover from Design-Builder; and
(10) Design-Builder's failure to timely submit:
(a) Daily logs;
(b) Certification from City and Design-Builder that Record Documents and As-Built Drawings and Specifications have been updated with current Project information as described in Paragraph 3.13 above;
(c) Updated Construction Schedule;
(d) Request for Information Log;
(e) Change Order Log; and
(f) Certifications from each Design-Builder and Subcontractors of any tier, that each is current in the payment of any supplemental fringe benefits required pursuant to any collective bargaining agreement to which any such Design- Builder is a Party or is otherwise bound.
4.1.93 Withhold for Disputes. In the event of a dispute between City and Design- Builder, City may withhold from payments an amount not to exceed 150% of the disputed amount. When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld.
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4.1.94 Withhold for Stop Payment Notice Claims. If at any time there shall be evidence of the existence, whether or not same has been asserted, of any stop payment notice, or claim arising out of or in connection with the performance or default in performance of this Contract or any subcontract or supply contract entered into by Design-Builder to p erform this Contract, and if City might become liable for the discharge of or satisfaction of such stop payment notice or claim, then City shall have the right to retain out of any payment then due or thereafter to become due, in addition to the amounts set forth above, a n amount sufficient to discharge such stop payment notice or satisfy such claim and to reimburse City fo r all costs and expenses in connection therewith, includi ng attorneys' fees. Further, City, in its sole disc retion, shall have the right to discharge or satisfy such stop payment notice or claim and pay all costs and expenses in connection therewith if Design-Builder does not have such stop payment notice or claim discharged o r satisfied within ten (10) calendar days after recei ving notice to remove the stop payment notice or cl aim from City or unless some other procedure for discharge or satisfaction of such claim is agreed between City and Design-Builder. If the amounts retained are ins ufficient for the aforesaid purposes, or if such st op payment notice or claim remains undischarged or unsatisfied after all payments have been made to Design- Builder, then Design-Builder shall refund to City all monies that may have been paid to discharge such stop payment notice or satisfy such claims, including th e costs, expenses, and attorney's fees in connectio n therewith.
City shall release any payments withheld due to a s top payment notice claim if Design-Builder obtains a release bond that is: (i) issued by a surety acceptable to City, that is different than the surety on the Payment Bond, and admitted to issue surety bonds by the Cal ifornia Department of Insurance in the State of the Project; (ii) is in form and substance satisfactory to City; and (ii) is in an amount of not less than 125% of the amount of any stop payment notice claim.
Progress Payments
4.1.95 City Payments to Design-Builder. After City has received a comprehensive and accurate Application for Payment from Design-Builde r, City , subject to its rights under Paragraph 10. 4 herein, shall make payment in the manner and within the time provided in the Contract Documents.
4.1.96 Joint Checks or Direct Payments. The City shall have no obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. City, however, reserves the right, in its sole discretion for reas onable cause, to make payments to Design-Builder in the form of checks payable jointly to Design-Builder and to any of Design-Builder's Subcontractors or suppliers or, upon notice to Design-Builder with the opportun ity to object, payments directly to Design Consulta nts, Subcontractors and suppliers, in satisfaction of City's obligation to make payments to Design-Builder.
4.1.97 Payment Not Acceptance of Work. An approved Final Application for Payment, a progress payment, or partial or entire use or occ upancy of the Project by City shall not constitute acceptance of Work not in accordance with the Contract Documents.
4.1.98 Retention. From each progress payment, five percent (5%) will be deducted and retained by City and the remainder, less the amount of all previous payments and less the amounts needed to satisfy outstanding stop payment notices, will be paid to Design- Builder. Design-Builder may, at Design- Builder's sole cost and expense, substitute securit ies equivalent to any monies withheld by City to in sure performance under this Contract. Such security shall be deposited with City or a state or federally chartered bank as escrow agent, who
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shall pay such monies to Design-Builder upon satisfactory completion of the Contract. Design- Builder shall be the beneficiary of any security substituted for monies withheld and shall receive any accrued inter est thereon. Securities eligible for investment shall i nclude those listed in Government Code § 16430 or b ank or savings and loan certificates of deposit. No suc h substitution shall be accepted until the Escrow Agreement, Forms of Security and any other document related to said substitution is reviewed and found acceptable by City, nor unless Design-Builder shall have notified City of its intention to substitute securities for retainage within ten (10) days of the signing of the Agreement.
Substantial Completion
4.1.99 Design-Builder Request for Inspection and Punch Lis t. When Design- Builder considers that the Work is substantially complete, Design-Builder shall prepare and submit to City Engineer and City a request for such inspection and a compre hensive Punch List of items to be completed or corrected prior to Final Payment. Failure to includ e an item on such Punch List does not alter the responsibility of Design-Builder to complete all Work in accordance with the Contract Documents.
4.1.100 City Inspection. Upon receipt of Design-Builder's P unch List, City Engineer will inspect to determine whether the Work or designated portion thereof is Substantially Complete. If the inspection discloses any item, whether or not inclu ded on Design-Builder's Punch List, which is not sufficiently complete in accordance with the Contract Documents so that City can occupy or utilize the Work or designated portion thereof for its intended use, Design-Builder shall, before issuance of the Certi ficate of Substantial Completion, complete or correct such item upon notification by City. In such case, Desi gn- Builder shall then submit a request for another inspection by City to determine Substantial Completion.
4.1.101 Certificate of Substantial Completion. When the Wor k or designated portion thereof is substantially complete, City Engineer wi ll prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of City and Design-Builder for security, maintenance, heat, utilities, damage to the Work, and insurance, and shall fix the time within which Design-Builder shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of all Work.
4.1.102 City's Acceptance. The Certificate of Substantial C ompletion prepared by City Engineer shall be submitted to Design-Builder for written acceptance of responsibilities assigned to Design- Builder and City in such Certificate. Upon such acc eptance and consent of surety, provided the requirements for Substantial Completion Payment set forth in the Agreement are met, City shall make payment to Design-Builder for the cost of undispute d Work in place. City, however, shall be entitled t o withhold retainage equaling 150% of the estimated cost of the following items until Final Completion:
(1) Punch List items;
(2) All items necessary to obtain the Final Certificate of Occupancy identified in the Contract Documents as the Work of Design-Builder;
(3) As-Built and Record Documents;
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(4) Potential stop payment notice claims of individuals or entities who have not provided Conditional Waivers and Releases Upon final Payment; and
(5) Any claims City may have against Design-Builder.
If Design-Builder has not completed all items enume rated above within thirty (30) calendar days after the issuance of the Certificate of Substantial Completi on, City shall have the right to demand completion or correction of the items within a 48-hour period. If Design-Builder does not commence the requested Wor k within the 48-hour period or provide City with written notice of a legitimate reason why Design-Builder is not able to commence the Work within the 48-hour period, City shall have the unilateral right to complete the Work and deduct the cost of completion of the Work from any money held pending Final Completion.
Partial Occupancy or Use
4.1.103 City's Rights and Allocation of Responsibility. Cit y may occupy or use any completed or partially completed portion of the Wor k at any stage provided such occupancy or use is no t prohibited by the applicable legal requirements. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided City and Design-Builder have agreed in writing as to the responsibilities assigned to each of them for payme nts, retainage, if any, security, maintenance, heat , utilities, damage to the Work, and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When Design-Builder considers a portion substantially complete, Design- Builder shall prepare and submit a list to the City Engineer as provided under Subparagraph 10.6.1. The stage of the progress of the Work shall be determined by written agreement between City and Design-Builder.
4.1.104 Joint Inspection. Immediately prior to such partial occupancy or use, Design- Builder and City shall jointly inspect the area to be occupied or portion of the Work to be used in or der to determine and record the condition of the Work.
4.1.105 No Acceptance. Unless otherwise agreed upon, partia l occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents.
4.1.106 Conditions. Design-Builder agrees to City's use and partial occupancy of a portion or unit of the Project before formal acceptance by City under the following conditions:
(1) Occupancy by City shall not be construed by Design- Builder as being an acceptance by City of that part of the Project to be occupied;
(2) Design-Builder shall not be held responsible for an y damage to the occupied part of the Project resulting solely from City's occupancy;
(3) Occupancy by City shall not be deemed to constitute a waiver of existing claims on behalf of City or Design-Builder against each other;
(4) If the Project consists of more than one building, and one of the buildings is to be occupied, City, prior to occupancy of the building, shall secure permanent property insurance on the building to be occupied and any necessary partial occupancy permits
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from the governmental agencies having jurisdiction. Final approval and occupancy permits from agencies having jurisdiction are still the responsibility of Design-Builder, which may be required for use and occupancy;
(5) Design-Builder shall make available in the areas oc cupied, on a 24- hour day and seven-day week basis if required, any utility services, heating, and cooling as are in condition to be put in operation at the time of early occupancy. All responsibility for the operation and maintenance of said equipment shall remain with Design-Builder while it is so operated. However, an itemized list of each piece of equipment so operated, with the date operation c ommences, shall be made and certified by the City Engineer. This list shall be the basis for the commencement of guarantee periods on the equipment being operated for the benefit of City's early occupancy. City shall pay for all utility costs and operational expenses which arise out of the occupancy by City during construction;
(6) City's use and partial occupancy prior to Project a cceptance does not relieve Design-Builder of his responsibility to mai ntain all insurance and bonds required of Design-Bu ilder under the Contract until the Project is complete and the Notice of Completion is recorded by City; and
(7) If time and/or costs are impacted by City's partial occupancy or use, Design- Builder may submit a Claim for such financial and/or Schedule impact in accordance with Article 17.
Final Completion and Final Payment
4.1.107 Inspection. Design-Builder shall, upon completion o f the Work and final clean up, submit to the City Engineer a sworn Affidavit o f Final Completion, signed by Design- Builder and each of the Design-Build Team Members that, to the best of the signatory’s knowledge and belief, the Work h as been fully and satisfactorily completed in strict compliance with the Contract Documents and that the entire balance found to be due Design-Builder as noted in the approved Final Application for Payment is due and payable. Design-Builder’s Affidavit of Final Comple tion shall constitute a further representation that the conditions listed in Subparagraph 10.8.2 as precedent to Design-Builder's being entitled to Final Payment have been fulfilled.
4.1.108 Documentation. In addition to the requirements for Final Payment set forth in the other Contract Documents, the Final Payment shall n ot become due until (i) Design- Builder has fully performed the Contract, including all Punch List wo rk; (ii) a Final Certificate of Occupancy (or equiv alent inspection sign-off) has been issued by the appropriate governmental agency (unless failure to issue is due to circumstances beyond the control of Design-Builder); (iii) sixty (60) calendar days have elapsed following the completion of all Punch List work and final acceptance by the City or thirty-five (35) calendar days have elapsed following City's recordation of a Notice of Completion, whichever is earlier; and (iv) Design-Builder has submitted to City all of the following:
(1) A full, complete and proper Final Application for Payment;
(2) A current sworn statement from Design-Builder setti ng forth all Design Consultants, Subcontractors and suppliers with whom Design-Builder has subcontracted, the amount of each subcontract, the amount requested for each Design Consultant,
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Subcontractor and supplier in the payment applicati on, and the balance remaining on each of the subcontracts that payrolls, bills for materials and equipment, and other indebtedness connected with t he Work for which City or City's property might be responsible or encumbered (less amounts withheld by City) have been paid or otherwise satisfied;
(3) A current sworn statement from each Design Consulta nt and Subcontractor setting forth all Design Consultants, Subcontractors and suppliers with whom Design Consultant or Subcontractor has subcontracted, the amount of each subcontract, the amount requested for each Design Consultant, Subcontractor and supplier in the payment application, and the balance remaining on each of the subcontracts that payrolls, bills fo r materials and equipment, and other indebtedness connected with the Work for which City or City's property might be responsible or encumbered (less amounts withheld by City) have been paid or otherwise satisfied;
(4) Completed and executed forms of conditional waiver and release of rights upon final payment in accordance with California Ci vil Code § 8136 from Design-Builder and all persons eligible to record mechanics liens and file stop payment notices in connection with the Work, covering the final payment period;
(5) Completed and executed forms of unconditional waive r and release of rights upon progress payment in accordance with California Civil Code § 8134 from Design- Builder and all persons eligible to record mechanics liens and file stop payment notices in connection with the Work, covering the previous payment period;
(6) Completed and executed affidavits from Design-Build er, Design Consultants and Subcontractors, attaching certifica tes and endorsements evidencing that insurance required by the Contract Documents to remain in force after Final Payment, if any, is currently in effect and will not be canceled or allowed to expire until at least thirty (30) days prior written notice has been given to City;
(7) A written statement that Design-Builder knows of no substantial reason that the insurance will not be renewed to cover the period required by the Contract Documents;
(8) Consent of surety(ies) to issuance of Final Payment;
(9) Design-Builder's written assurance that identified corrective work not complete and accepted will be completed by a stated date agreeable to City;
(10) Record Drawings and As-Builts described in Paragraph 3.13 in both hard copy and transferred to a USB drive or similar electronic media;
(11) Letter of certification, under penalty of perjury, that taxes, fees and similar obligations of Design-Builder have been paid;
(12) A certificate in form and substance acceptable to C ity and signed by Design-Builder certifying that, to the best of its knowledge, the Work has been completed in accordanc e with the Contract Documents, all Applicable Laws an d restrictions; that the Work, as completed, compli es in all material respects with all applicable zoning , environmental, building, and land use laws which apply to the Project; that to the knowledge of Design-Builder, no
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governmental entity has issued any notice of violat ion or nonconformity in connection with the improvements; that direct connection has been made to all abutting gas, water, sewer, telecommunications, and electrical facilities necessary for occupancy a nd use of the Project; and that the Project is read y for occupancy/use.
(13) A certificate in form and substance acceptable to C ity signed by Design- Builder's Design Consultants certifying that, to th e best of their knowledge, that such Work has been completed in accordance with the Contract Documents, all Applicable Laws, and restrictions;
(14) All warranties from vendors and Design-Builder, manuals, instructions and related agreements, equipment certifications and si milar documents, and maintenance and operating instructions, which shall include, but are not limited to, the materials referenced in Paragraph 3.25 and the following:
(a) Schematic piping and wiring diagrams
(b) Valve charts and schedules
(c) Electrical panel schedules complete and posted in panels
(d) Lubrication charts and schedules
(e) Guides for troubleshooting
(f) Pertinent diagrams of equipment with main parts designated for identification
(g) Manufacturer's data and capacity data on all equipment
(h) Operating and maintenance instructions for all items of equipment and all control systems
(i) Manufacturer's parts list
(j) Procedures for operating tests
(k) Access codes or log in information
(15) Spare parts and required extra materials (i.e., attic stock), and similar items to meet servicing and modification needs. Inventory sheets shall indicate item name, model number, manufacturer, quantity and storage location. Inventory sheets must be signed by the City identifying receipt of stock items. In addition, Design-Builder shall p rovide indicated spare quantities for each type of the following installed items: Percentage (%) values ar e to be applied against the total number installed and with resulting quantities rounded up to a whole unit/box/package.
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(16) Provide all specialized tools, testing apparatus, a nd other devices as recommended by the manufacturer to operate, adjust, and calibrate equipment provided under this Contract.
The City shall receive one complete set of these to ols even though the facility may be operated by the Design-Builder after construction completion. Design-Builder shall provide an inventory of these items with location designations addressed within the Operatio n and Maintenance manuals. Inventory sheets will be signed by the City identifying receipt of tools and operation/maintenance apparatus.
(17) Keys and proof of the final change-over of locks. I n addition, Design- Builder must advise City's personnel of the change-over in security provisions;
(18) Written start-up testing performance reports of all systems after completion of start-up testing, and complete instru ction/training of City's operating and maintenance personnel;
Documents;
(19) Proof of adherence to final cleaning requirements of the Contract
(20) Proof of touch up and other repairs and restoration of all marred and exposed finishes; and
(21) Such other documentation as City may reasonably require.
4.1.109 Release of Stop Payment Notices. If a Design Consul tant, Subcontractor or supplier refuses to furnish a release or waiver required by City or files a stop payment notice, Design-Builder shall furnish a bond satisfactory to City to release the stop payment notice and indemnify City against such stop payment notice and City shall enforce its right under Subparagraph 10.4.3 herein.
4.1.110 Delay Not Caused by Design-Builder. If, after Subst antial Completion of the Work, Final Completion thereof is materially delayed through no fault of Design-Builder or by
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issuance of Change Orders affecting final completio n, City shall, upon application by Design- Builder and certification by City, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted provided, however, that the retainage amount held following such payment shall be equal to 150% of the estimated cost of completing the Work as determined by City. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Design-Builder to City prior to certification of such payment. Such payment shall be made under terms and conditions governing Final Payment.
4.1.111 Design-Builder's Acceptance of Final Payment. Accep tance of Final Payment by Design-Builder, Design Consultants, Subcontractors, or suppliers shall constitute a waiver of any and all claims by that payee, of whatsoever nature, character or kind, except those previously made in writing and identified by that payee as unsettled at the time of Final Application for Payment.
4.1.112 City's Final Payment. The making of Final Payment shall not constitute a waiver of claims by City arising from:
(1) Unsettled stop payment notices;
(2) Faulty or defective work appearing after Substantial Completion of the Work;
Documents;
Documents; or
(3) Work that fails to comply with the requirements of the Contract
(4) Terms of any special warranties required by the Contract
(5) Any other claim unless specifically waived by City in writing.
PROTECTION OF PERSONS AND PROPERTY
Safety Precautions and Programs
Design-Builder is responsible for establishing, mai ntaining, and supervising the necessary safety precautions needed to permit the performance of the Work without endangering public safety and property.
A Site-Specific Safety Program and Design-Builder's Safety Policy must be prepared and submitted for City's review and comments. Design-Builder shall co mply with the review comments of City. The Site- Specific Safety Program shall include the following:
(1) The identity of outside safety consultant or Design-Builder's safety officer and on-site safety officer;
(2) The schedule for Design-Builder's safety inspections;
(3) The type and frequency of training conducted for Design-Builder's personnel including tailgate meeting, lifting training, emergency procedure, etc.;
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(4) Information on the types of heavy equipment to be used and the necessary precaution to be taken if there is an accident;
(5) A copy of Design-Builder's hazardous communications program (or similarly termed document);
the particular Site;
(6) A list of any possible fire hazards and the firefighting equipment for
(7) A detailed description of hazardous or unusual proc edures necessary for the particular Site;
(8) Information on any material impact of the construction on the surrounding area including traffic flow, parking, street closure, utility shutoffs, and pedestrian pathways;
(9) Plan indicating the placement, quantity and type of safety warning lights, signs or other devices during construction;
(10) Written procedures in the event of an injury, fire, hazardous material experience, or other emergency during construction; and
(11) Description of the location and enclosure of the ap proved staging area.
Design-Builder shall also comply with any safety requirements required by insurers providing coverage for the Project. Notwithstanding the foregoing, Design-Builder specifically assumes all risk of damages or injury to any persons or property, wherever located, resul ting from any action or operation of Design-Builder or its Design-Consultants or Subcontractors under the Contract Documents or in connection with the Work.
Safety of Persons and Property
4.1.113 Design-Builder's Responsibility for Damage or Loss. Except as otherwise provided in the Contract Documents and except as to the cost of repair or restoration of damage to the Work caused by Force Majeure events, Design-Builder shall bear all losses resulting to him/her on account of the amount or character of the Work, or from any unforeseen obstructions or difficulties which may be encountered, or from any encumbrances on the line of the Work, or because the nature of the ground in or on which the Work is done is different from what is assumed. Design-Builder shall bear the risk for any City equipment, material, or supplies with which Design-Builder has been entrusted and shall bear responsibility for all bodily injuries to persons, including accid ental death, which may be caused by Design-Builder' s performance of the Work.
4.1.114 Design-Builder's Remedy of Damage or Loss. Design-B uilder shall promptly remedy all damage or loss to any property referred to in this Article arising, in whole or in part, fr om the Work performed by Design-Builder, any Design-Builde r or Subcontractors, or anyone directly or indirect ly employed by any of them, or by anyone for whose act s any of them may be liable, and for which Design- Builder is responsible, except damage or loss attri butable to the acts or omission of City, City, or a nyone directly or indirectly employed by any of them, or by
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anyone for whose acts any of them may be liable, and not attributable to the fault or negligence of Design- Builder. The foregoing obligations of Design-Builde r are in addition to Design-Builder's indemnificati on obligations under Article 12 herein.
4.1.115 Precautions and Protection. Design-Builder shall take necessary precautions for safety of, and shall provide necessary protection to prevent damage, injury or loss to:
thereby;
(1) Employees on the Site and other persons who may be affected
(2) The Work and materials and equipment to be incorporated therein, whether in storage on or off the Site, under care, custody or control of Design-Builder or Design- Builder's Design-Consultants or Subcontractors; and
(3) Other property at the Site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction.
4.1.116 Notice and Compliance with Applicable Law. Design-B uilder shall give notices and comply with Applicable Laws bearing on safety of persons or property or their protection from damage, injury or loss. Design-Builder shall comply with all laws and regulations, including the California Labor Code and with all California Occupational Safety and Hea lth Act ("OSHA"), Environmental Protection Agency, and South Coast Air Quality Management City regulations, concerning safety requirements and protection of workers including, but not limited to, those reg ulations concerning scaffolding, bracing, shoring, trench excavating and removal, and handling and disposal of hazardous waste. Design-Builder shall fully defend, indemnify, and hold harmless City, its members, officers, employees, and agents including, but not limited to, City Engineer, from any and all citations and/o r memoranda assessed against City due to regulatory violations of Design-Builder or Subcontractors.
4.1.117 Safeguards. Design-Builder shall erect and maintain , as required by existing conditions and performance of the Contract, reasona ble safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgate safety regulations, and notify City and users of adjacent Sites and utilities. Design-Builder shall also be responsible for all measures necessary to protect any property adjacent to the Project and improvements thereon. Any damage to adjacent property or improvements shall be promptly repaired or repla ced by Design-Builder at its sole cost and expense within the Contract Price.
4.1.118 Excavation. As required by California Labor Code § 6705 and in addition thereto, whenever Work under the Contract involves the excav ation of any trench or trenches five feet or more i n depth, Design-Builder shall submit for acceptance b y City or by a registered civil or structural engin eer employed by City, to whom authority to accept has b een delegated, in advance of excavation, a detailed plan showing the design of shoring, bracing, slopin g or other provisions to be made for worker protect ion from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards established by the con struction safety orders of the Division of Industri al Safety, the plan shall be prepared by a registered civil or structural engineer employed by Design-Bui lder and all costs therefore shall be included in the pr ice named in the contract for completion of the wor k as set
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forth in the Contract Documents. Nothing in this section shall be construed to impose tort liability on City or any of their officers, agents, Project Managers or employees.
4.1.119 Notice of Hazards. When use or storage of explosive s or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, Design-Builder shall exercise utmost care, carry on such activities unde r supervision of properly qualified personnel, and shall provide City Engineer with reasonable advance notice of such activity.
4.1.120 Loading. Design-Builder shall not load or permit an y part of the construction or Site to be loaded so as to endanger its safety. Design-Builder shall be responsible for the protection of all existing structures and improvements, both above and underground, including both the exterior and interior finishes within the adjoining working areas, and sh all provide adequate temporary removal as necessary .
Any existing structures or improvements damaged dur ing construction shall be repaired or replaced with materials, workmanship, fixtures, or equipment of t he same kind, quality and size as the original, pri or to damage. Any materials or equipment temporarily removed and damaged shall be re-erected or installed in a manner approved by City.
Design-Builder shall review the structural capability of the construction and Site prior to allowing installation of temporary lifting devices or staging equipment or the temporary off-loading of materials. Design-Builder shall not exceed design loads without making modifi cations to the construction or Site to support such loads.
All modifications to the construction or Site to su pport temporary lifting devices, staging equipment, or loading shall be submitted to City for review and acceptance.
4.1.121 Accident Prevention. Design-Builder shall designate a responsible member of Design-Builder's organization whose primary office is at the Site and whose duty shall be the prevention of accidents. This person shall be Design-Builder's Su perintendent unless otherwise designated by Design- Builder in writing to City.
4.1.122 Accident Reporting. Design-Builder shall immediatel y report all accidents and injuries to City, and shall submit on a form approved by City within 24 hours of such accident or injury setting forth essential information for investigation of th e accident or injury including, but not limited to, name, address, and phone number of all injured workers an d witnesses, location on the jobsite, nature of inj ury, medical treatment, identity of ambulance company, and hospital.
4.1.123 Adjoining Property. Design-Builder shall employ all necessary measures to protect adjoining adjacent property and shall provide barricades, temporary fences, and covered walkways required to protect the safety of passersby, as req uired by prudent construction practices, local buil ding codes, ordinances, or other laws and the Contract Documents.
Hazardous Materials
4.1.124 Notice to City. Design-Builder agrees that it is solely responsible for investigation and performing remedial actions on all hazardous materials and other related environmental requirements located on the Project Site. Any hazardous material s that are encountered beyond those described in th e Contract Documents or Proposal requirements, or which reasonably could not have been discovered within the time permitted or Design-Builder to
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prepare its Proposal, may properly be the subject o f a Change Order Request. City agrees that Design- Builder cannot be considered a hazardous materials generator of any such materials in existence on the Site at the time it is given possession of the Site . In the event Design-Builder encounters on the Sit e materials which it reasonably believes to be "hazar dous materials" as that term is defined by federal and state law, which have not been rendered harmless, Design-Builder shall immediately stop work in the area affected and report the condition to City in writin g. The work in the affected area shall not thereaft er be resumed until a suitable testing agency certifies the material as non-hazardous or the material is removed or rendered harmless as certified by a suitable testing agency.
4.1.125 Material Safety Data Sheets and Compliance with Pro position 65. Design- Builder is required to ensure that material safety data sheets are available in a readily accessible p lace at the Site, for any material requiring a material saf ety data sheet per the federal "hazard communicatio n" standard, or employees' right-to-know law. Design-Builder is also required to ensure proper labeling on any substance brought onto the Site, and that any perso n working with the material, or within the general area of the material, is informed of the hazards of the substance and follows proper handling and protectio n procedures.
Design-Builder is required to comply with the provisions of California Health and Safety Code §25249 et seq., which requires the posting and givi ng of notice to persons who may be exposed to any chemical known to the State of California to cause cancer. Design-Builder agrees to familiarize itself with these provisions and to comply fully with its requirements.
Design-Builder Materials
City shall not be responsible for materials and substances brought to the Site by Design- Builder.
Emergencies
In an emergency affecting safety of persons or prop erty, Design-Builder shall act, at Design- Builder's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by Design-Builder on account of an emergency shall be determined as provided in Articles 8 and 9.
Protection of the Work
Design-Builder shall protect all materials, equipment, supplies and Work from injury or damage due to heat, storms, rain or wind. If unusually severe weather makes it impossible to continue operations safely despite necessary weather precautions, Design-Builder shall cease Work and notify City of such cessation in accordance with the requirements of the Contract . Design-Builder shall not permit open fires on the Project. If Design-Builder fails to adequately protect the Work, Design-Builder is responsible for all damage to the Project and is responsible for payment of the deductible on the Builder's Risk Policy.
Protection of Existing Property
Design-Builder shall be responsible for all measure s necessary to adequately protect existing property. This shall include, but is not limited to, padding and draping elevators used in construction, draping of openings and other measures to isolate areas remaining in use,
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relocation of furniture, fixtures, and equipment, protective covering/draping of furniture, fixtures, equipment and flooring, and protection of landscape materials , planting, and interior and exterior finishes at a nd adjacent to the Work. Property damaged by Design-Builder shall be repaired or replaced by Design-Builder to the satisfaction of City without increase to the Contract Price. Such measures shall be taken at a frequency required to provide such protection and to keep the areas operational as indicated elsewhere in the Agreement.
INDEMNIFICATION
Indemnity for Professional Liability
4.1.126 Design-Builder agrees to indemnify, hold harmless, protect and defend City, its officials, officers, employees, agents, representat ives (including the City’s designated representativ e, by whatever named called) and their successors and ass igns (collectively, the "Indemnitees" or singularly , “Indemnitee”) from any and all demands, liability (including strict liability), loss, suit, claim, action, cause of action, damage, cost, judgment award, settlement, decree, stop payment notice, fine, penalty, assessment, loss of revenue, and expense (including any fees of accountants, attorneys, experts, other professiona ls, and costs of investigation, mediation, arbitration, litigation and appeal) arising from any negligence , willful misconduct, or fraud of Design-Builder or any of it s officers, agents, employees, Subcontractors, Desi gn Consultants or any person for whose acts any of the m may be liable, in connection with the performance of the Agreement, regardless of whether the claim, suit, or demand alleges that it arises in part by virtue of the negligent act or omission of an Indemnitee. Not withstanding the foregoing, Design-Builder's obligation to indemnify, hold harmless and protect the Indemnitees for any judgment, settlement, decree or arbitration award shall extend only to the percentage of negligence attributed to Design-Builder, its agents, employees, Project Managers, Subcontractors or Design Consultants with regard to such liability, suit, claim, dam age, cost, judgment and expense. Design-Builder's duty t o indemnify, hold harmless, protect and defend includes, but is not limited to, bodily injury (inc luding death at any time) and property or other dam age (including, but without limitation, economic loss, and liability arising from contract, tort, patent, copyright, trade secret or trademark infringement) sustained by any person or persons, but only to the extent such duty to indemnify arises out of the negligence, willful misconduct or fraud of Design-Builder or any of its officers, agents, employees, Subcontractors, or Design Consultants.
Indemnity for Other Than Professional Liability
4.1.127 To the maximum extent permitted by law, Design-Buil der shall fully indemnify, hold harmless, protect, and defend the Indemnitees from and against any and all demands, liability, lo ss, suit, claim, action, cause of action, damage, cost, judgment award, settlement, decree, stop payment notice, penalty, loss of revenue, and expense (including an y fees of accountants, attorneys, experts or other professionals, and costs of investigation, mediation, arbitration, litigation and appeal), in law or in equity, of every kind and nature whatsoever, arising out of or in connection with, resulting from or related to, or claimed to be arising out of the Work performed by Design-B uilder or any of its officers, agents, employees, Subcontractors, Design Consultants or any person for whose acts any of them may be liable, regardless of whether such claim, suit or demand is caused, or alleged to be caused, in part, by an Indemnitee, including but not limited to:
(1) Bodily injury, emotional injury, sickness or disease, or death to any persons;
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(2) Infringement of any patent rights, licenses, trade secrets, copyrights, or intellectual property which may be brought against Design-Builder or City arising out of Design-Builde r's Work, for which Design-Builder is responsible;
(3) Stop payment notices, and claims for labor performe d or materials used or furnished to be used in the Work, including all incidental or consequential damages resulting to City from such stop payment notices and claims;
(4) Failure of Design-Builder or its Subcontractors to comply with the insurance requirements described in Article 13;
(5) Any and all claims by any governmental or taxing authority claiming taxes based on gross receipts, purchases or sales, the us e of any property or income of Design- Builder with respect to any payment with respect to the Work made to or earned by Design-Builder under the Contract Documents;
(6) Any release or threatened release of hazardous mate rials (i) which was brought on to the Site by Design-Builder; or (ii) w hich was negligently removed or handled by Design- Builder, regardless of the source or general method of deposit of such hazardous material;
(7) Failure to comply with any Applicable Law, statute, code, ordinance, regulation, permit, or orders;
(8) Misrepresentation, misstatement, or omission with r espect to any statement made in or any document furnished by Design-Builder in connection therewith;
(9) Breach of any duty, obligation, or requirement unde r the Contract Documents;
Documents;
(10) Failure to provide notice to any Party as required under the Contract
(11) Failure to protect the property of any utility provider or adjacent property; or
(12) Failure to make payment of all employee benefits.
Enforcement
4.1.128 Design-Builder's obligations extend to claims occur ring after termination of Design-Builder's performance of the Contract or Fin al Payment to Design-Builder. The obligations apply regardless of any actual or alleged negligent act or omission of Indemnitees. Design-Builder, however, shall not be obligated under this Agreement to indemnify an Indemnitee for claims arising from the sole acti ve negligence or willful misconduct of the Indemnitee or independent contractors who are directly responsible to Indemnitees. Design-Builder's obligations under this Subparagraph 12.3.1 are in addition to any oth er rights or remedies which the Indemnitees may have under the law or under the Contract Documents. In the event of any claim, suit or demand made against any Indemnitees, City may in its sole discretion reser ve, retain, or apply any monies due to Design-Builder under the Contract for the purpose of resolving
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such claims; provided, however, that City may relea se such funds if Design-Builder provides City with reasonable assurance of protection of City's intere sts. City shall in its sole discretion determine wh ether such assurances are reasonable.
No Limitations
4.1.129 Design-Builder's indemnification and defense obligations set forth herein: (i) are separate and independent from the insurance provisions set forth in Article 13; and (ii) do not limit, in any way, the applicability, scope, or obligations set forth in these insurance provisions. In claims, suits, or demands against any Indemnitee by an employee of Design- Builder, a Design-Builder, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, Design- Builder's indemnification and defense obligations s hall not be limited by a limitation on amount or ty pe of damages, compensation, or benefits payable by or fo r Design-Builder or a Subcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts.
4.1.130 Except as permitted by Civil Code §§ 2782.1, 2782.2 and 2782.5, such indemnities shall not inure to the benefit of an In demnitee so as to impose liability on Design- Build er for the active negligence of an Indemnitee or to relieve an Indemnitee of liability for such active negligence.
Notice and Legal Defense
Promptly after receipt by an lndemnitee of any claim or notice of the commencement of any action, administrative or legal proceeding, or investigatio n in connection with an actual or potential claim f rom a third party as to which any indemnity provided for in this Article may apply, the lndemnitee will notify the City and Design-Builder in writing of such fact. Any delay in an lndemnitee's notifying Design-Builder of any such claim or notice will not excuse Design-Builder of i ts obligations hereunder. Upon Design• Builder's re ceipt of such notice, Design-Builder shall assume, on beh alf of the lndemnitee, and conduct with due diligen ce and in good faith, the defense thereof with counsel reasonably satisfactory to the lndemnitee. However, the lndemnitee shall have the right at its own expense to be represented therein by advisory counsel of its own selection. Further, if the defendants in any such action include both Design-Builder and the lndemnitee, and if the lndemnitee reasonably concludes that there m ay be legal defenses available to it which are different from, additional to, or inconsistent with those available to Design- Builder, then the lndemnitee shall have the right to select separate counsel to participate in the defense of such action on its own behalf and at Design- Builder’s expense.
Failure to Defend Action
If any third party claim arises as to which any indemnity provided for in this Article may apply, and Design-Builder fails to assume the defense of such claim promptly after the receipt by Design-Builder of notification thereof, then the lndemnitee against which the claim is instituted or commenced may, at Design- Builder's expense, contest, or (with the prior writ ten consent of Design-Builder, not to be unreasonab ly withheld) settle such claim. However, no such contest need be made and settlement or full payment of any such claim may be made without Design- Builder's co nsent (with Design-Builder remaining obligated to indemnify the lndemnitee under this Article) if, in the written opinion of the lndemnitee's legal counsel, such claim is meritorious. All costs and expenses incurr ed by lndemnitee or City in connection with any suc h contest, settlement or payment may be deducted from any amounts due to Design-Builder under this
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Agreement, with all such costs in excess of the amo unt deducted to be reimbursed by Design- Builder to City or the lndemnitee promptly following, but not later than thirty (30) days following, City’s or Indemnitee’s demand therefor. In the event and to the extent that City makes a deduction as described in the preceding sentence, then City shall be responsible for making appropriate payments to any Indemnitees, and shall indemnify Design-Builder for any claims by the Inde mnitees arising out of City’s failure to make such payments.
Survival
The provisions of this Article shall survive any termination of the Agreement.
INSURANCE
Insurance Requirements
Design-Builder shall obtain and maintain for the te rm of the Project, or, with City’s prior written consent, cause to be obtained and maintained, the following insurance coverages:
Commercial Automobile Liability Insurance
Design-Builder shall provide Commercial Automobile Liability Insurance which shall include coverage for liability arising out of the use of owned, non-owned, and hired vehicles for performance of the work, as required to be licensed under the California. The Commercial Automobile Liability Insurance shall have not limits less than $ 2,000,000 , combined single limit per occurrence, shall be wr itten on an occurrence form, and shall apply to all activities and operations of the Design-Builder and those acti ng on Design-Builder’s behalf.
The Commercial Automobile Liability policy shall na me the City and its employees, while acting within the scope of their employment, as additional insureds, and shall insure against liability for d eath, bodily injury, or property damage resulting from th e performance of the Design- Builder, or anyone act ing on behalf of Design-Builder, under this Agreement.
Commercial General Liability Insurance
Design-Builder shall provide Commercial General Lia bility Insurance, including but not limited to coverage for Contractual Liability, Broad Form Prop erty Damage, Explosion/Collapse- Underground, Premises and Operations, Independent Contractors, P roducts and Completed Operations, and Personal Injury. Such insurance shall be written on an occurrence form and provide coverage for total limits actually arranged and carried by the Design-Builder, but not less than the $ 5,000,000 per occurrence, and an aggregate limit of not less than $ 5,000,000 applying separately to this Project. Coverage for P roducts and Completed Operations shall not have a sub-limit nor a reduction in the coverage or reporting periods.
Umbrella or Excess Liability coverage, on a followi ng-form basis, may be used to supplement primary coverages to meet the required limits.
Evidence of such coverage shall be by properly completed and executed Certificates of Insurance, to the reasonable approval of City and provided to the City prior to the start of work and no later th an 30 days after the award of the contract, and shall provide for the following, either by separate endorsements in favor of City, or by blanket policy/endorsement language having the same effect as separate endorsements:
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4.1.131 Include the City, its officers, officials, employee s, agents, and representatives, including City’s designated representative (by what ever name called), as Additional Insureds with the Named Insured for the activities and operations under the Agreement.
4.1.132 A Severability-of-Interest, or Cross-Liability Clau se, or Separation of Insureds Clause such as the following: "The policy to which this endorsement is attached shall apply separately to each insured against whom a claim is made or suit i s brought, except with respect to the limits of the company's liability."
4.1.133 Shall be Primary and Non-Contributing as respect coverages maintained by City.
Excess Liability
Design-Builder may use Umbrella or Excess Liability coverage to meet the coverage limits specified in this Article. The Design-Builder shall require t he carrier(s) for Umbrella or Excess Liability to p roperly schedule and to identify the underlying policies in cluding, as appropriate: Commercial General Liabili ty, Commercial Automobile Liability, Professional Liabi lity, Employer's Liability, Pollution Liability, or other applicable insurance coverages.
Workers' Compensation/Employer’s Liability Insurance
Design-Builder shall provide Workers' Compensation Insurance covering all of the Design- Builder’s employees in accordance with the laws of the State of California and including Employer's Liability Insurance. The limit for Employer's Liability cover age shall be not less than $1,000,000 per accident and shall be a separate policy if not included with Workers' Compensation coverage. Such insurance shall include a Waiver of Subrogation in favor of the City. Workers' Compensation coverage may be self-insured by Design-Builder, provided that City is furnished with a copy of a currently dated and manually-signed Certificat ion of Self- Insurance issued by the State of Calif ornia authorizing the Design-Builder to self-insure. Design-Builder shall notify City by “return receipt delivery” as soon as possible of the State withdrawing authority to self-insure.
Professional Liability Insurance
Design-Builder shall provide Professional Liability Insurance, with a Waiver of Subrogation in favor of the City included, covering the Design-Builder's liability arising from any negligent act, error or omission directly or indirectly related to the design, engin eering, construction, project management or oversig ht activities with respect to the Project. The policy shall provide coverage for the total limits actually arranged by the Design-Builder, but not less than $4,000,000 combined single limit and in the annual aggregated be specific to the Project and provide a self-insured retention of no more than $ 4,000,000 per claim. The policy shall have a retroactive date no later than the date on which the RFP was issued and shall have a five (5) year extended reporting period from the date of Final Completion of the Project.
Design-Builder's Equipment Floater
Design-Builder will obtain and maintain an All-Risk Property Insurance Policy in the form of a Design-Builder's Equipment Floater or Tool Floater, for the full replacement cost of any loss
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to Design-Builder’s or Subcontractor’s equipment or tools, whether owned, leased or rented. Design- Builder shall bear all deductibles and co-insurance penalties, if any.
Builders Risk Insurance — Including Transportation Floater
On and Off-Site Storage, Testing and Startup Coverage (as applicable) — plus Risk of Loss.
Prior to beginning purchasing any materials or equipment or any construction or demolition work on the Project Site, Design-Builder will obtain and maintain All-Risk Builder's Risk
(Course of Construction) Insurance Coverage in an amount not less than the full replacement cost of the Project. Such insurance shall be written on an all-risk form and shall cover, at a minimum: all work, materials, and equipment to be incorporated into th e Facility; all equipment typically covered under a commercial Boiler and Machinery insurance policy (with no exclusion for start-up, commissioning, or testing risks); the Project during construction; the comple ted Project’s Final Completion; storage (on-site an d off- site), transportation risks for transportation by any means or method; and Earthquake and Flood Coverage.
Such insurance shall protect/insure and name as a “Named Insured” the interests of the City, City’s owner’s representative (by whatever name called), and the Design-Builder, as well as all Sub-Design- Builders and Vendors of any tier, and any architects, engineers, geotechnical consultants, or other design professionals hired by City and/or Design-Builder to perform work on the Project. If such insurance includes an exclusion for "design error," such exclusion shall only be fo r the object or portion which failed, and shall not apply to ensuing losses that would otherwise be covered by the policy. Such insurance shall include, by endorsement (or as otherwise provided for in the policy), an in surer's waiver of subrogation in favor of the City and the Design-Builder, as well as all Subcontractors of an y tier, and any architects, engineers, geotechnical consultants, or other design professionals hired by City and/or Design-Builder to perform work on the Project, as well as any construction managers or owner’s representatives or engineers. Insurance provided under this subparagraph may be subject to specific deductibles (at a maximum) and sublimits (at a minimum) as follows: (i) $ 4,000,000 sublimit – flood; (ii) $ 3,000,000 sublimit – earthquake (aka subsidence); (iii) $ 2,500,000 sublimit – transportation; (iv) $7,000,000 sublimit – off-site storage; (v) $50,000 deductible all perils, except as otherw ise stated herein; (vi) 15% earthquake deductible w ith $250,000 minimum; (vii) $100,000 deductible – flood ; (viii) 30-day deductible for soft cost delay, all perils, except as otherwise stated herein; (ix) 60-day dedu ctible for soft cost delay – earthquake and flood); and (x) $100,000 deductible - water damage. Design-Buil der shall bear all deductibles and co-insurance penalties, if any. Further, the policy shall includ e a Joint Loss Agreement, and a Loss Adjustment Agreement. The Policy shall include coverage for in land marine transportation to the Project Site for all materials and equipment to be incorporated into the Project. Further, the policy shall contain a provi sion that, in the event of payment for loss under the co verage provided, the insurance company shall have no rights of recovery against the City and the Design-Builder, as each of their interests may appear. Coverage shall be applicable regardless of responsibility fo r risk of loss, whether it be with Design-Builder o r a Subcontractor of any tier. The Design-Builder shall submit to City, for its review and approval as to compliance with the above-noted terms and requireme nts, documentation reasonably satisfactory to City which demonstrates that the terms and requirements of this Subsection 1.7 have been complied with. All insurers carrying risk on the Builders' Risk policy shall be admitted carriers in the State of California (or shall be authorized as a Surplus Lines Insurer, in which case such Surplus Lines coverage shall be produced by a Licensed Surplus Lines Agent), and shall have at least a minimum A.M. Best Rating of at least "A XII ," or equivalent. Such coverage shall be in effect at
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all times until Final Completion of the Project; pr ovided that Design-Builder shall maintain such cove rage until City places permanent property insurance coverage on the Project, which shall be diligently pursued.
Pollution Liability Insurance
The Design-Builder shall provide Pollution Liability Insurance, with Additional Insured status and a Waiver of Subrogation in favor of the City included , covering the Design-Builder's liability arising f rom Pollution or Environmental Damage or Liability caus ed during the execution of the Agreement and shall provide coverage for the total limits actually arranged by the Design- Builder, but not less than $4,000,000 combined single limit and in the annual aggregate, and with a self-insured retention of no more than $4,000,000 per claim. Such policy/coverage shall be maintained for not less than one (1) year after the date of final acceptance and completion of the work performed under the Agreement. Design-Builder may elect to carry such coverage as a sublimit on its Commercial General Liability Insurance; however, such sublimit must be a dedicated, stand-alone sublimit for the l imits required in this Article and exhaustion of su ch sublimit should not erode the limits of the Commerc ial General Liability Insurance required in Paragra ph
13.3 of this Article.
Additional General Requirements
Except to the extent that such condition, requirement, or provision, below, is otherwise specifically provided for elsewhere in this Article, with respect to the requirements set forth hereinabove, the following conditions shall apply:
(a) Prior to the start of Work, but not later than thir ty (30) days after the date of award of contract, the Design-Builder shall furnish City evidence of coverage from insurers acceptable to City and in a form acceptable to City. With respect thereto:
(i) The required evidence of insurance shall contain a provision that the policy/policies cannot be canceled , or reduced in coverage or amount, provided, however , that claims filed that deplete the aggregate limits of a policy of insurance shall not be considered to constitute a reduction in coverage or the amount of coverage, without first giving thirty (30 ) calendar day’s written notice thereof (ten (10) d ays for non-payment of premium) by registered mail to City, except that automobile liability, professional lia bility, pollution liability, and workers’ compensation/employer’s liability notices will be sent via first class U.S. mail.
Should an insurer or insurers be unwilling or unabl e to agree to this provision, then Design-Builder s hall provide written notice (either by registered mail or by email, read notice/receipt confirmation) to City of such developments within 3 business days of the date that Design-Builder has knowledge of such developments.
(ii) The required evidence of insurance shall further contain a provision that the policy/policies provide for a Waiver of Subrogation in favor of the Additionally Insured Parties and also on the Worke rs’ Compensation/Employer’s Liability policy. Design-Bu ilder shall, on its own behalf and on behalf of its insurers, waive any and every claim for recovery fr om the Additionally Insured Parties for any and all loss or damage resulting from or arising out of the performance of the Agreement by Design-Builder, which loss or damage is covered by insurance policies (or self- insurance in lieu thereof). Design-Builder agrees (i) to give to such insurance company which has issued, or may issue in the future, policies of insurance, written notice of the terms of this
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waiver of subrogation, and (ii) to have said insurance policies properly endorsed, as applicable, and provide proof to City, thereof.
(b) The insurance coverages required in this Article sh all not limit or qualify the liabilities and obligations of Design-Builder assumed under the Agr eement. In addition, City shall not, by reason of t heir inclusion under Design-Builder’s policies, incur liability to the insurance carrier for payment of any premium for these policies.
(c) Any insurance maintained by Design-Builder and Subc ontractors pursuant to the Agreement shall be primary to, and not contribute w ith, any insurance, self-insurance or memorandum of coverage issued by a joint powers authority and mai ntained by the City, and such insurance is primary to City’s insurance and coverage for all purposes, despite any conflicting provision in the Design-Builder's or Subcontractors policies to the contrary.
(d) All required insurance coverage shall be written on occurrence forms (except for the pollution liability microbial matter and professional liability coverages) unless Design-Builder secures City’s prior written permission allowing a specific covera ge to be written on a claims- made form. Should any portion of the required insurance be on a "Claims M ade" policy, the Design-Builder shall, at the polic y expiration date following completion of work, provi de evidence that the "Claims Made" policy has been renewed or replaced with the same limits, terms and conditions of the expiring policy, or that a five (5) year extended discovery period has been purchased on the expiring policy at least for the contract under which the Work was performed; provided that in either event the retroactive date shall not be changed to any date that is more current than that which was on the expiring policy.
(e) In the event City suffers damages and/or a claim or other legal action is filed against City, and if City, in its good faith opinion, believes it may have coverage under any of the insurance requi red herein, then City has the right to demand, and to receive within seven calendar days of the City’s request for same, copies of the insurance policies related to s uch required insurance; provided, however, that thi s provision shall not apply if the parties agree that Design- Builder shall fully defend, hold harmless, and indemnify City against any such damages, claim or other legal action. As a condition of such demand an d receipt, Design-Builder may require City to provide to Design-Builder a confidentiality statement, drafted by City and consistent with City’s customary confident iality language. Such confidentiality statement sha ll include, at a minimum, language to the effect that City shall not disclose said insurance policy unles s required to do so by applicable law, rule or regula tion, or a court or other governmental authority of competent jurisdiction; provided, however, that City shall provide Design-Builder prior written notice of any such request for disclosure and exercise its best e fforts to afford Design-Builder an opportunity to c ontest the disclosure and/or limit the extent of the disclosure to the maximum extent practicable.
(f) All insurers carrying risk for the Work shall be ad mitted carriers in the State of California (or shall be authorized as a Surplus Lines Insurer working through a Licensed Surplus Lines Broker) an d shall have a minimum A.M. Best Rating of at least "A VIII," or equivalent, except for insurers carrying risk on the Builder’s Risk policy, which shall have an A.M. Best Rating of at least “A XII”, or equivalent. Such policies shall comply with all terms, conditions, and requirements set forth herein.
(g) Nothing contained herein shall be construed as limi ting in any way the extent to which Design-Builder may be held responsible for payment of damages to persons or property resulting from Design-Builder’s (or Subcontractor’s) work under the Agreement.
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(h) The above insurance requirements are subject to per iodic review by City. City's Risk Manager is authorized, but not required, to reduce or waive any of the above insurance requirements whenever the City’s Risk Manager determines that an y of the above insurance is not available, is unreasonably priced, or is not needed to protect the interest of City. In addition, the City’s Risk Manager is authorized, but not required, to change the above i nsurance requirements to require additional types o f insurance coverage or higher coverage limits. Any a dditional cost resulting from such coverage change shall be paid by City upon demonstrated evidence such as an insurance carrier provided invoice or similar acceptable instrument that authenticates such cost. Similarly, any reduction in cost shall reduce the Contract Price pursuant to a Change Order.
(i) Failure to maintain and provide acceptable evidence of the required insurance for the required period of coverage shall constitute a brea ch of contract, upon which City may immediately terminate or suspend the Agreement or invoke anothe r remedy that the Agreement or the law allows.
Alternatively, at is sole discretion and without waiving any other rights it may have pursuant to law, City has the right but not the duty to obtain or renew the insurance and pay all or part of the premiums. Upon demand, Design-Builder shall repay City for all sums or mon ies that City paid to obtain, renew or reinstate th e insurance or the City may offset the cost of the pr emium against any sums or monies that City may owe Design-Builder.
(j) Understanding that Design-Builder is liable to City for the acts, errors, and omissions of all Subcontractors, of any tier, it is up to the Design -Builder to determine the proper insurance coverage s, limits, terms, and conditions to be carried by all Subcontractors, of any tier. However, should the De sign- Builder elect to be named as an additional insured on any Subcontractor’s required policies of insuran ce, Design-Builder shall ensure that City is so named as well.
(k) Unless otherwise directed by City in writing, Desig n-Builder shall be responsible for reporting and processing all potential claims by City or Design-Builder against the insurance required to be provided under this Article. Design-Builder agrees to report timely to the insurer(s) any known matters which may give rise to insurance claim and to promptly an d diligently pursue any and all insurance claims on behalf of City, whether for defense or indemnity, o r both. City agrees to promptly notify Design-Build er of City’s incidents, potential claims, and matters which may give rise to an insurance claim by City, to tender its defense or the claim to Design-Builder, and to cooperate with Design-Builder as necessary for Design- Builder to fulfill its duties hereunder.
(l) This insurance provisions contained in this Agreement are separate and independent from the indemnification and defense provisions in Article 12. Further; this Agreement’s insurance provisions do not limit, in any way, the applicability, scope, or obligations of the indemnification and defense pro visions in Article 12.
QUALITY AND CORRECTION OF WORK
Quality of Work and Material
4.1.134 All work must be done and completed in a thorough, workmanlike manner by mechanics skilled in their various trades, notwithstanding any error or omission in the Contract Documents, and all parts shall be made accurately to standard gauge so that renewals and repairs may be made when necessary with the least possible expense. All materials
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employed shall be new and homogenous and of high qu ality throughout. All Work must be in accordance with the Contract Documents and shall be made to conform thereto. Any material specified by reference to the number, symbol or title of a standard such as A STM shall comply with the requirements of the lates t revisions thereof or any supplement or amendment thereto except where a different edition is specified. The referenced standards shall have the same force and effect as if they were printed in full in the Contr act Documents. If the Design-Builder wishes to use code s or standards not specified in the Contract Documents, Design-Builder shall submit for approval sufficient information to City to determine equivalency.
The Design-Builder shall be held to guarantee all m aterial, apparatus, and equipment to fulfill all requirements and special guarantees set forth in the Specifications.
4.1.135 Should the test of any material, apparatus, or equi pment show that it does not meet the guarantees or requirements of the Contract Documents, the Design-Builder shall at once proceed to furnish such new parts as may be necessary to br ing it up to requirements. All expenses of furnishi ng new parts, or alteration to existing parts, and of tests made necessary by such failure to meet the guarantees and other requirements of the Specifications, shall be at the expense of the Design-Builder.
Quality Assurance / Quality Control Plan
4.1.136 General. Based upon code/industry standards, manufa cturer's recommendations, and the Design-Builder's proposal, the Design-Builder shall prepare and maintain a Quality Assurance/Quality Control Plan (OA/QCP) to address all quantitative performance/specification requirements, installed conditions and operating ch aracteristics. The OA/QCP is intended to document those inspections/tests necessary to assure the City that product delivery, quality and performance are as required. It also serves as an inspection coordination tool between the Design-Builder and the City.
4.1.137 Content. For each requirement, the QA/QCP shall ide ntify: item/system to be tested, exact test(s) to be performed, measured parameters, inspection/testing organization, and the stage of construction development when tests are to be pe rformed. Organize the QA/QCP into volumes. Each inspection/test shall be coded and referenced on timeline charts to identify when tests should be performed.
The Design-Builder is not relieved from required pe rformance tests should these not be included in the plan. The QA/QCP content/level of development is represented by the following:
INSTRUCTION FOR PREPARING QUALITY ASSURANCE / QUALITY CONTROL PLAN
1. Divisions. Unless otherwise accepted by the City, organize major subject heading according to building systems and/or features. Including the following:
Foundations
Substructure
Superstructure
Envelope
Roofing
Interior Finishes
Landscaping
AC and V
Plumbing
Fire Suppression
Utilities/Site Work Material
Handling Systems
Elevator/Escalators
Special Equipment Systems
Power
Emergency
Lighting
Life Safety & Fire Alarm Systems
Security Systems
Telecommunication Systems
Building Automation Systems
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2. Component Subdivision. For each major heading, identify components/features to be tested.
3. Test Parameters. For each inspection/adjustment/tes t parameter, identify the methodology, test equipment, required preparation, adjustment contemplated, test result comparison to that of design, the approximate time of occurrence, and who will do the work. Consider use of tabular or bullet references.
4. Test Report. For each inspection/adjustment/test pa rameter, identify the methodology, test equipment, required preparation, adjustment contemp lated, test result comparison to that of design, the approximate time of occurrence, and who will do the work. Consider use of tabular or bullet references.
4.1.138 Division. The Design-Builder shall organize inspect ion/testing descriptions in accordance with Construction Specifications Institu te (CSI) divisional headings, UNIFORMAT system headings, chronological/sequence or combinations th ereof to delineate all facets of design and construction.
4.1.139 Test Parameters. Identify each test parameter and r epresent each operating condition and all control modes of operation. For o perating equipment, tests shall typically include t he following for each mode of operation; capacity, flo w rates, inlet/outlet conditions (temperature/press ure), power consumption, efficiency, verification of sequ ence start- up/shutdown, alarm conditions, utility submetering, noise generation, and observed deficiencies or improper operation. Lighting tests shall identify foot candle readings, verification of automatic con trol and working condition of electrical submeterin g.
Power systems shall typically include measuring vol tage/spikes, current draw, ground resistance and working condition of electrical submetering. For st atic architectural/structural systems, tests shall typically include verification of location, item counts, material tests, finish grades clearance/accessibility.
4.1.140 Test Reports. For each inspection/adjustment/test p arameter, identify the inspection/test procedures, required preparation, a djustments, adjustments contemplated, test result comparison to that designed, time of occurrence, mode of operation, and the firm(s) to perform/witness the work.
4.1.141 Format. The QA/QCP shall be bound in loose leaf 3-hole binders (for 8/12 x 11 inch paper) to allow insertion of changes and new inspection materials. All text shall be typed. Tabs shall be provided at the component level.
4.1.142 Submission. The QA/QCP shall be prepared during des ign development and submitted in accordance with the requirements speci fied. The QA/QCP may be rejected as incomplete if there is any performance, condition or operating test which is not covered therein.
4.1.143 Updating. During construction, the Design-Builder m ust update the QA/QCP at least two weeks prior to performing referenced test s, notifying the City and the City Engineer of sche dule and procedural changes.
Uncovering of Work
City requires an inspection of all Work prior to it being covered by Design-Builder. In the event a portion of the Work has been covered which the City Engineer has not observed prior to its being
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covered, the City Engineer may request to see such Work and it shall be uncovered by the Design- Builder at Design-Builder’s expense without change in the Cont ract Time. If such Work is in accordance with the Contract Documents, cost of uncovering and replacem ent shall, by appropriate Change Order, be at the City's expense. If such Work is not in accordance with the Contract Documents, correction shall also be at the Design-Builder's expense. unless the condition was caused by a Separate Contractor, unrelated to this Agreement between City and Design-Builder, in which event the City shall be responsible for payment of such costs.
Correction of Work
4.1.144 Before Substantial Completion. The Design-Builder shall promptly correct Work rejected by the City Engineer or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion a nd whether or not fabricated, installed or complete d.
Costs of correcting such rejected Work, including additional testing and inspections and compensation for the City Engineer's services and expenses made nece ssary thereby shall be at the Design-Builder's expense.
4.1.145 After Substantial Completion. In addition to the De sign-Builder's warranty obligations under the Agreement if, within three (3 ) years after the date of Substantial Completion of the Work or designated portion thereof after the date f or commencement of an applicable special warranty required by the Contract Documents, the Design-Buil der shall promptly repair or replace any of the Wor k which is found not to be in conformance with any re quirement of the Contract Documents after receipt of written notice from the City to do so, unless the C ity has previously given the Design-Builder a writt en acceptance of such condition. Alternatively, at City’s sole discretion, it may demand a credit for acceptance of the nonconforming condition(s). The City shall give such notice promptly after discovery of the condition.
The Design-Builder shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or Separate Con tractors caused by the Design- Builder's correction or removal of Work which is not in accordance with the requirements of the Contract Documents.
Nothing contained in this Paragraph 14.4 shall be construed to establish a period of limitation with respect to other obligations which the Design-Builder might have under the Contract Documents. Establishment of the three (3) year period for correction of Work as d escribed in Subparagraph 3.17.3 relates only to th e specific obligation of the Design-Builder to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design- Builder's obligations other than specifically to correct the Work.
TERMINATION OR SUSPENSION OF CONTRACT
Termination by Design-Builder
4.1.146 Work Stoppage Not Caused by City. If the Work is st opped for a period of 90 consecutive days through no act or fault of Design- Builder or a Design-Builder, Subcontractors or thei r agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with Design-Builder, for any of the following reasons: issuance of an order of a court or other public authority having jurisdiction which requires all Work
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to be stopped; an act of government, such as a declaration of national emergency which requires all Work to be stopped; and Design-Builder has given City wr itten notice within ten (10) days of the occurrence of such ground for termination, then Design-Builder ma y, upon thirty (30) additional calendar days writte n notice to City and, unless the reason has theretofo re been cured, terminate its performance and recove r from City payment for Work executed to date and reasonable demobilization costs.
4.1.147 Work Stoppage Caused by City. If the Work is stoppe d for a period of 120 consecutive days through no act or fault of Design-Builder or a Design-Builder, Subcontractors or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with Design-Builder because City has persi stently failed to fulfill City's obligations under the Contract Documents with respect to matters importan t to the progress of the Work, Design-Builder may give City ten (10) calendar days’ written notice to cure. If City fails to cure, Design-Builder may, u pon ten (10) additional calendar days' written notice to Ci ty, terminate the Contract and recover from City as provided in Subparagraph 15.1.1 above.
Termination by City for Cause
Contract if:
Documents; or
15.2.1 Grounds. City may terminate Design-Builder's perfor mance of the
(1) Design-Builder fails promptly to begin the Work under the Contract
(2) Design-Builder refuses or fails to supply enough pr operly skilled workers or proper materials; or
(3) Design-Builder fails to perform the Work in accorda nce with the Contract Documents, including conforming to applicable stand ards set forth therein in constructing the Project, or refuses to remove and replace rejected materials or unacceptable Work; or
(4) Design-Builder discontinues the prosecution of the Work (exclusive of work stoppage: (i) due to termination by City; or (ii) due to and during the continuance of a Force Majeure event or suspension by City); or
(5) Design-Builder fails to resume performance of Work which has been suspended or stopped, within a reasonable time afte r receipt of notice from City to do so or (if appli cable) after cessation of the event preventing performance; or
(6) Any representation or warranty made by Design-Build er in the Contract Documents or any certificate, schedule, instrument, or other document delivered by Design-Builder pursuant to the Contract Documents shall have been materially false or misleading when made; or
(7) Design-Builder fails to make payment to Subcontract ors for materials or labor in accordance with the Contract Documents and applicable law; or
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(8) Design-Builder disregards laws, ordinances, or rule s, regulations, or orders of a public authority having jurisdiction; or
(9) Design-Builder is guilty of material breach of a pr ovision of the Contract Documents as solely determined by the City; or
(10) Design-Builder becomes insolvent, is adjudicated ba nkrupt, or makes a general assignment for the benefit of creditors and fails to provide City with adequate assurances of Design- Builder's ability to satisfy its contractual obligations.
15.2.2 City's Rights. When any of the reasons specified in Subparagraph 15.2.1 exist, City may, in addition to and without prejudice to any other rights or remedies of City, and after giving Design- Builder five (5) calendar days’ written notice, terminate employment of Design- Builder and may:
(1) Take possession of the Site and of all materials, equipment, tools and construction equipment, and machinery thereon owned by Design-Builder;
(2) Suspend any further payments to Design-Builder;
(3) Accept an assignment of subcontracts pursuant to
Subparagraph 6.1.5; and
(4) Finish the Work by whatever reasonable method City may deem expedient. Upon request of Design-Builder, City shall furnish to Design-Builder a detailed accounting of the costs incurred by City in finishing the Work.
15.2.3 Costs. If City's costs to complete and damages incurred due to Design- Builder's default exceed the unpaid Contract balance, Design-Builder shall immediately pay the difference to City.
15.2.4 Erroneous Termination. If it has been adjudicated or otherwise determined that City has erroneously or negligently terminated Desi gn-Builder for cause, then said termination shall automatically convert to a termination by City for convenience as set forth in Paragraph 15.4.
Suspension by City
15.2.5 Suspension for Convenience. City may, without cause, order Design- Builder in writing to suspend, delay, or interrupt the Work in whole or in part for such period of time as City m ay determine.
Design-Builder shall promptly recommence the Work upon written notice from City directing Design-Builder to resume the Work. The Contract Price and Contract Time shall be adjusted for any increases in the cost and time caused by suspension, delay, or interruption provided Design- Builder complies with the Chang e Order and Claims proceedings set forth the Articles 8 and 17 of these General Conditions. No adjustmen t shall be made to the extent:
(1) That performance is, was, or would have been so suspended, delayed, or interrupted by another cause for which Design-Builder is responsible; or
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(2) That an equitable adjustment is made or denied under another provision of the Contract.
15.2.6 Suspensions for Cause. City has the authority by written order to suspend the Work without liability to City wholly or in part for Design-Builder's failure to:
public; or
(1) Correct conditions unsafe for the Project personnel or general
(2) Carry out the Contract; or
(3) Carry out proper and lawful orders of City.
15.2.7 Responsibilities of Design-Builder During Suspensio n Periods. During periods that Work is suspended, Design-Builder shall contin ue to be responsible for the Work and shall prevent damage or injury to the Project, provide for drainage, and shall erect necessary temporary structures, signs or other facilities required to maintain the Project and continue to perform, according the Article 11 of these General Conditions.
Termination by City for Convenience
15.2.8 Grounds. Without limiting any rights which City may have by reason of any default by Design-Builder hereunder, City may terminate Design-Builder's performance of the Contract, in whole or in part, at any time for convenience or an y other reason upon written notice to Design-Builde r.
Such termination shall be effective as of the date stated in the written notice, which shall be no les s than fifteen (15) calendar days from the date of the notice.
15.2.9 Design-Builder Actions. Immediately upon receipt of such notice, Design- Builder shall: (i) cease performance of the Work to the extent specified in the notice; (ii) take actions necessary or that City may direct for the protection and preserv ation of the Work and for the public safety; (iii) settle outstanding liabilities as directed by City; (iv) transfer title and deliver to City Work in progress, specialized equipment necessary to perform the Work, and Record Documents; and, (v) except for Work directed by City to be performed, incur no further costs or exp enses. At the sole option of City, all or any of th e subcontracts entered into by Design-Builder prior to the date of termination shall be terminated or sh all be assigned to City.
15.2.10 Compensation. If the Parties are unable to agree on the amount of a termination settlement, City shall pay Design-Builder the following amounts:
(1) For Work performed before the effective date of termination, the total (without duplication of any items) of:
(a) Cost of the Work; and
(b) A sum, as profit on (1)(a), above, determined by City to be fair and reasonable; and
(2) The reasonable costs of settlement of the Work term inated, including:
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(a) Accounting, clerical, and other expenses reasonably necessary for the preparation of termination settlement propo sals and supporting data; and
(b) Storage, transportation, and other costs incurred r easonably necessary for the preservation, protection, or disp osition of the termination inventory.
In no event shall Design-Builder be entitled to recover overhead or profit on Work not performed.
LABOR PROVISIONS
Normal Hours of Work
Normal hours of work (7:00 a.m. to 7:00 p.m. Monday through Friday) for Design-Builder's operations, which are located within City limits, must comply with City ordinances or other requirements of City. Design-Builder's operations in the unincorporated areas or areas which border a city, town or co unty must comply with requirements of city or requirements adopted by other jurisdictions, whichever are more stringent. In case of conflict between the requirem ents of a city or county and the requirements of th e Contract Documents, the most restrictive requirements will govern.
Saturday, Sunday, Holiday and Overtime Work
4.1.148 No construction Work shall be done on Saturdays, Su ndays or legal holidays recognized by the City and no Work shall be performed outside of normal hours of work (7:00 a.m. to 7:00 p.m.) without the prior consent of the City Engineer, unless required in the Contract Documents.
4.1.149 Whenever the Design-Builder intends to perform over time work or work on Saturday, Sunday, or a legal holiday recognized by the City, the Design-Builder must request permissio n by giving written notice to the City Engineer at least 2 working days prior to performing work.
4.1.150 Unless specifically provided or required by the Con tract Documents, Design- Builder shall receive no additional compensation fo r any overtime work (i.e., work in excess of: eight (8) hours in any one day; forty (40) hours in any one calendar week; or evening, night, legal holidays observed by the City, or weekend work).
4.1.151 Prior to the start of such Work, when necessary, the Design-Builder must arrange with the City for the continuous or periodic inspection of the Work and tests of materials.
4.1.152 Should the Design-Builder find it necessary in orde r to complete the Work according to the Project Schedule to perform certain of Design-Builder's operations on Saturdays, Sundays, holidays or during the overtime hours, these operat ions will be performed as part of the Work included in the Contract Sum and do not constitute a basis for additional compensation. At the City's option the Design- Builder may be required to compensate the City for inspection, testing, security or management costs during Work performed outside of the normal hours of work as defined herein. City has the right and authority to deduct the cost of all such
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inspections, testing, security or management costs from any payments due or that become due to Design- Builder.
4.1.153 City has the right to order Design-Builder to perfo rm Work outside the normal hours of work. City will issue such Order in writing. If City orders the Design-Builder to perform Work outside the normal hours of work, the Design-Builder must m ake all arrangements to supply an adequate Work force for the task to be accomplished and will be c ompensated for the premium portion of the wages paid, plus labor burdens applicable to the premium portion only of the wages paid. Design-Builder must submi t copies of Design-Builder's payrolls indicating the premium wages actually paid, and City will issue a Change Order to reimburse the Design-Builder for Design-Builder's actual costs only. City will pay all extra expense of City's inspection.
DIR Registration
4.1.154 Strict compliance with all DIR registration require ments in accordance with Labor Code §§ 1725.5 and 1771.1 is a material obligation of the Design-Builder and all of its Subcontractors (of any tier) under the Contract Documents. The foregoing includes, without limitation, compliance with DIR registration requirements at all times during perfo rmance of the Work by the Design-Builder and all of its Subcontractors of any tier. The failure of the Design- Builder and all Subcontractors of any tier to be properly registered with DIR at all times during performance of the Work is a material breach of the Contract a nd subject to termination for cause.
4.1.155 An affirmative and ongoing obligation of the Design -Builder under the Contract Documents is the verification that all Subcontracto rs of any tier are at all times during performance of the Work in full and strict compliance with the DIR reg istration requirements and Design-Builder shall immediately notify City of the name and registratio n number of anyone subject to the DIR registration requirements before allowed to work on the Project. Design-Builder shall provide a Certification of Contractor and Department of Industrial Relations Registration form for each Subcontractor subject to the DIR Registration. The Design-Builder shall not permit or allow any Subcontractor of any tier to perform any Work without the Design-Builder's verification that all Subcontractors are in full and strict compliance with the DIR registration requirements. Any Subcontractor of any tier not properly registered with DIR shall be substituted in accordance with Labor Code §1771.1. Design-Builder or its Subcontractors of any tier shall not be entitled to any additional costs or time arising from or in any way related to compliance with the DIR registra tion requirements.
Wage Rates
4.1.156 Design-Builder acknowledges that this Project constitutes a public works project and is subject to the requirements of Article 2 (commencing at Section 1720), Chapter 1, Part 7, Division 2, of the Labor Code. Design-Builder shall obtain the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in th e locality in which this public works project is to be performed for each craft, classification, or type o f worker needed for this Project from the Director of the Department of Industrial Relations. Design-Builder shall post a copy of such wage rates at appropriate , conspicuous, weatherproof points at the Site.
4.1.157 Design-Builder shall pay and shall cause to be paid to each worker employed by Design-Builder or any Subcontractor of any tier to execute the Work on the Project per diem wages including, but not limited to, employer payments for health and welfare, pensions, vacation, travel time and subsistence pay as provided for in Labor Code §1773.1.
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4.1.158 Any worker employed to perform work on the Project, but such work is not covered by any classification listed in the published general prevailing wage rate determinations or per diem wages determined by the Director of the Department of Industrial Relations, shall be paid not less than the minimum rate of wages specified therein for the cla ssification which most nearly corresponds to the employment of such person in such classification.
4.1.159 The Design-Builder shall pay and shall cause to be paid each worker engaged in the execution of the Work on the Project not les s than the general prevailing rate of per diem wage s determined by the Director, regardless of any contractual relationship which may be alleged to exist between the Design-Builder or any Subcontractor and such workers.
Hours of Labor
4.1.160 Eight hours labor constitutes a legal day's work. Design-Builder shall forfeit as a penalty to the City $25.00 for each worker employed in the execution of the Contract by Design-Builder or any Subcontractor for each calendar day during whic h such worker is required or permitted to work more than eight (8) hours in any one calendar day or forty (40) hours in any one calendar week in violation of the provisions of the California Labor Code, and in particular, Section 1810 through Section 1815 thereof, except that work performed by employees of Design-Builder or any Subcontractor in excess of eight (8) hours per day or forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day or forty (40) hours per week, at not less than one and one-half (1½) times the basic rate of pay as provided in Section 1815. If the prevailing wage determination requires a higher rate of pay for overtime work than is required under Labor Code §1815, then that higher rate of pay for overtime rate must be paid.
Records of Wages Paid
4.1.161 Pursuant to §1776 of the Labor Code, the Design-Bui lder and each Subcontractor shall keep an accurate payroll record showing the name, address, social security number, work classification and straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by him/her in connection with the Project.
4.1.162 All payroll records as specified in Labor Code §1776 of the Design- Builder and all Subcontractors shall be certified and furnished directly to the Labor Commissioner in accordance w ith Labor Code §1771.4(a)(3) on a monthly basis (or mor e frequently if required by the City or the Labor Commissioner) and in a format prescribed by the Labor Commissioner. Payroll records as specified in Labor Code §1776 shall be certified and submitted to the City with each application for payment. All payroll records shall be available for inspection at all reasonable hours at the principal office of the Design-Builde r on the following basis:
(1) A certified copy of an employee’s payroll record sh all be made available for inspection or furnished to the employee or his/her authorized representative on request.
(2) A certified copy of all payroll records shall be ma de available for inspection or furnished upon request to a representative of City, the Division of Labor
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Standards Enforcement or the Division of Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through the City, the Division of Apprenticesh ip Standards or the Division of Labor Standards Enforcement. If the requested payro ll records have not been provided pursuant to Paragraph (2) above, the requesting party shall, prior to being provided the records, reimburse the costs, according to law for the preparation by the Design-Builder, Subcontractor(s), and the entity through which the request was made. The public shall not be given access to such records at the principal office of the Design-Builder.
4.1.163 The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the Division of Labor Standards Enforcement.
4.1.164 The Design-Builder or Subcontractor(s) shall file a certified copy of all payroll records with the entity that requested such records within ten (10) calendar days after receipt of a w ritten request.
4.1.165 Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the C ity, the Division of Apprenticeship Standards or th e Division of Labor Standards Enforcement shall be ma rked or obliterated to prevent disclosure of an individual's name, address and social security number. The name and address of the Design-Builder awarded the Contract or the Subcontractor(s) performing the Contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (Section 175a of Title 29 of the United States Code) shall be marked or obliterated only to prevent disclosure of the social security number.
Notwithstanding any other provision of law, agencies that are included in the Joint Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of the Unemployment Insurance Code and other law enforcement agencies investigating vi olations of law shall, upon request, be provided no n- redacted copies of certified payroll records.
4.1.166 The Design-Builder shall inform the City of the loc ation of all payroll records, including the street address, city and county and shall, within five working days, provide a notice of a change of location and address.
4.1.167 The Design-Builder or Subcontractor(s) shall have t en (10) calendar days in which to comply subsequent to receipt of a written notice requesting payroll records. In the event tha t the Design-Builder or Subcontractor(s) fails to comply within the 10-day period, the Design-Builder or Subcontractor(s) shall, as a penalty to the City, f orfeit One Hundred Dollars ($100.00) for each calen dar day, or portion thereof, for each worker, until str ict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due.
4.1.168 Responsibility for compliance with this Article shall rest upon the Design- Builder.
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Monitoring and Enforcement by Labor Commissioner
4.1.169 Monitoring and enforcement of the prevailing wage l aws and related requirements will be performed by the Labor Commissioner/ Department of Labor Standards Enforcement (DLSE). The Design-Builder and all Subcontractors s hall be required to furnish, at least monthly, cert ified payroll records directly to the Labor Commissioner in accordance with Labor Code § 1771.4. All payroll records shall be furnished in a format required by the Labor Commissioner. The Design-Builder and all Subcontractors must register for, and utilize, the Labor Commissioner's electronic certified payroll r ecords submission system. The City will have direct and im mediate access to all certified payroll reports for the Project that are submitted through the Labor Commissioner's system. The City can use this information for any appropriate purpose, including monitoring compliance and identifying suspected violations.
4.1.170 The Labor Commissioner/DLSE may conduct various com pliance monitoring and enforcement activities including, but not limit ed to, confirming the accuracy of payroll records, conducting worker interviews, conducting audits, requiring submission of itemized statements prepared in accordance with Labor Code § 226, and conducting ra ndom in-person inspections of the Project site (On- Site Visits). On-Site Visits may include inspections of records, inspections of the Work site and observation of work activities, interviews of workers and other s involved with the Project, and any other activiti es deemed necessary by the Labor Commissioner/DLSE to ensure compliance with prevailing wage requirements. The Labor Commissioner/DLSE shall have free access to any construction site or other place of labor and may obtain any information or statisti cs pertaining to the lawful duties of the Labor Commissioner/DLSE.
4.1.171 Any lawful activities conducted or any requests mad e by the Labor Commissioner/DLSE shall not be the basis for any de lays, claims, costs, damages or liability of any ki nd against the City by the Design-Builder. Design-Builder and all Subcontractors shall cooperate and comp ly with any lawful requests by the Labor Commissioner/ DLSE. The failure of the Labor Commissioner, DLSE, or any other entity related to the Department of Industrial Relations to comply with any requirement imposed by the California Code of Regulations, Title 8, Chapter 8 shall not of itself constitute a defense to the failure to pay prevailing wages or to comply with any other obligation imposed by Division 2, Part 7, Chapter 1 of the Labor Code.
4.1.172 Prior to commencing any Work on the Project, the Design-Builder shall post the required notice/posters required under the California Code of Regulations and Labor Code §1771.4 in both English and Spanish at a conspicuous, weatherproof area at the Project site. The required notice/poster is available on the Labor Commissioner's website.
Apprentices
4.1.173 Employment of Apprentices. Design-Builder agrees to comply with the requirements of Labor Code §1777.5. The Design-Buil der awarded the Project, or any Subcontractors under him or her, when performing any of the Work under the Contract or subcontract, employs workers in any apprenticeable craft or trade, the Design-Build er and Subcontractor shall employ apprentices in th e ratio set forth in Labor Code §1777.5. The Design- Builder or any Subcontractor must apply to any apprenticeship program in the craft or trade that can provide apprentices to the Project site for a certificate approving the Design-Builder or Subcontractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve
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or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprentic eship program or programs, upon approving the Design-Buil der or Subcontractor, shall arrange for the dispatc h of apprentices to the Design-Builder or Subcontractor upon the Design- Builder's or Subcontractor's request. "Apprenticeable craft or trade" as used in this Article means a craft or trade determined as an apprenticeable occupation in accordance with the rules and regulat ions prescribed by the California Apprenticeship Council. The ratio of work performed by apprentices to journeyman employed in a particular craft or tr ade on the Project shall be in accordance with Labor Code §1777.5.
4.1.174 Apprentice Wages and Definitions. All apprentices e mployed by the Design- Builder to perform services under the Contract shal l be paid the standard wage paid to apprentices und er the regulations of the craft or trade for which he or she is employed, and as determined by the Direct or of the Department of Industrial Relations and shall be employed only at the craft or trade to which he or she is registered. Only apprentices, as defined in Section 3077 of the Labor Code, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written apprenticeship agreements under Chapter 4 (commencing with Section 3070) of Division 3, are eligible to be employed under th is Contract. The employment and training of each apprentice shall be in accordance with the apprenti ceship standards and apprentice agreements under which he or she is training, or in accordance with the rules and regulations of the California Apprenticeship Council.
4.1.175 Submission of Contract Information. Prior to commen cing work on the Project, the Design-Builder and Subcontractors shall submit contract award information to the applicable apprenticeship program(s) that can supply apprentices to the Project and make the request for the dispatch of apprentices in accordance with the Labor Code. T he information submitted shall include an estimate of journeyman hours to be performed under the Contact, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be compiled and submitted to City if requested. Within 60 days after concluding work on the Project, Desi gn- Builder and Subcontractors shall submit to City and to the apprenticeship program, if requested, a verified statement of the journeyman and apprentice hours performed on the Project.
4.1.176 Apprentice Fund. Design-Builder or any Subcontracto r of any tier who, in performing any of the Work under the Contract, employs journeymen or apprentices in any apprenticeable craft or trade shall contribute to the California A pprenticeship Council the same amount that the Dire ctor determines is the prevailing amount of apprenticeship training contributions in the area of the Project. The Design-Builder and Subcontractors may take as a cre dit for payments to the California Apprenticeship Council any amounts paid by the Design- Builder or Subcontractor to an approved apprenticeship program that can supply apprentices to the Project. The Design-Builder and Subcontractors may add the amount of the contributions in computing his or her bid for the Contract.
4.1.177 Design-Builder Compliance. The responsibility of co mpliance with this Article and Labor Code § 1777.5 for all apprenticeable occupations is with the Design-Builder. Any Design-Builder or Subcontractor that knowingly violates the provisions of this Article or Labor Code § 1777.5 shall be subject to the penalties set forth in Labor Code § 1777.7.
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Skilled and Trained Workforce
Design-Builder understands that it is responsible for fully complying with the skilled and trained workforce requirements set forth in Public Contract Code § 2601 and § 2602.
Prohibition Against Use of Debarred Contractors
Pursuant to Public Contract Code § 6109, Design-Bui lder shall not perform Work on this Project with any Subcontractor who is ineligible to perform Work on a public works project pursuant to Section 1777.1 or Section 1777.7 of the Labor Code. Any con tract on a public works project entered into betwee n Design-Builder and a debarred Subcontractor is void as a matter of law. A debarred Subcontractor may not receive any public money for performing Work as a S ubcontractor on a public works contract, and any public money that may have been paid to a debarred Subcontractor by Design-Builder on this Project shall be returned to City. Design-Builder shall be responsible for the payment of wages to workers of a debarred Subcontractor who has been allowed to work on the Project.
Character of Workers
Design-Builder shall not allow his/her agents or em ployees, Subcontractors, or any agent or employee thereof, to trespass on premises or lands in the vicinity of the Work. Only skilled foremen a nd workers shall be employed on Work requiring special qualifications, and when required by the City Engineer, Design-Builder shall discharge any person who commits trespass, or in the opinion of the City Engineer, acts in a disorderly, dangerous, insubordinate, incompetent, or otherwise objectionable manner. Any employe e being intoxicated or bringing or having intoxicatin g liquors or controlled substances on the Work shal l be discharged. Such discharge shall not be the basis of any claim for compensation of damages against City or any of its officers, agents, and employees.
Workers’ Compensation
In accordance with the provisions of Labor Code § 3700, Design-Builder and each Subcontractor is required to secure the payment of Workers' Compensation to its employees.
CLAIMS AND DISPUTE RESOLUTION
Submission of Claims
4.1.178 Definition. The term "Claim" or "Claims" shall mean a separate demand by Design-Builder for: (i) a time extension; (ii) payment of money or damages arising from Work done by or on behalf of Design-Builder pursuant to this Contract and payment of which is not otherwise expressly provided or Design-Builder is not otherwise entitled to; or (iii) an amount the payment of which is disputed by City.
4.1.179 Notification of Third-Party Claims. City shall provide Design-Builder with prompt written notice upon City's receipt of any third party claim relating to the Contract.
4.1.180 Claims by Design-Builder. If a lower tier contractor lacks legal standing to assert a Claim against the City because privity of contract does not exist, Design-Builder may elect to present the Claim to the City on behalf of the lower tier contractor. Any Claim presented
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by a lower tier contractor must comply with all requirements applicable to Claims by the Design- Builder, as well as the requirements set forth in Public Contract Code § 9204(d)(5). Design-Builder shall incorporate into all subcontracts a dispute resolution procedure tha t will permit Design- Builder to satisfy all time, notice, and backup documentation requirements of this Article with respect to Claims by a lower tier contractor, as well as all requirements of Public Contract Code
§ 9204 that are applicable to Design-Builder.
4.1.181 Notice and Time Limits on Claims. If Design-Builder elects to make a Claim for an increase in the Contract Price or an extension of the Contract Time, Design-Builder shall give City written notice thereof within ten (10) calendar days after the occurrence of the event, giving rise to such Claim. The written notice must strictly comply with the requirements of this Article 17 and Articles 8 and 9, if applicable, herein. This notice shall be given by the Design- Builder before proceeding to execute the Work affected by the event, except in an emergency endangering life or property, in which case the Design-Builder shall proceed in accordance with Article 11.
4.1.182 Formal Notice of Essence. Design-Builder hereby rec ognizes and acknowledges that timely submission of a complete r equest for time extension, whether or not the circumstances of the Claim is known by City or available to City through other means or from other sources, is not a mere formality but is of crucial importance to the ability of City to promptly identify, prioritize, evaluate and mitigate the potential effects of any Claim. An y forms of informal notice, whether oral or written (including, without limitation, statements at regular job meetings or entries in monthly reports, daily logs, job meeting minutes, updated construction schedules or look-ahead schedules), that do not strictly comply with the formal requirements of this Contract shall ther efore be deemed insufficient to satisfy the notice requirements of this Article 17. Failure by Design-Builder to provide a timely and complete notice as required by this Article shall constitute a waiver by Design-Builder of the right to an increase in the Contract Price or an extension of the Contract Time on account of such circumstances.
4.1.183 Resolution. City will issue a Change Order or a Con struction Change Directive to Design-Builder within a reasonable period of tim e after City's approval of any Claim, specifying th e additional cost and/or time, if any, approved by City.
4.1.184 Continuing Contract Performance. Design-Builder sha ll not delay or postpone any Work pending resolution of any disputes or disa greements, except as City and Design-Builder may otherwise agree in writing. Pending final resolution of a Claim, Design-Builder shall proceed diligent ly with performance of the Contract and City shall continue to make payments for undisputed Work in accordance with the Contract Documents. In the event of disputed work, City shall have the right to unilaterally issue a Construction Change Directive and Design-Builder sh all continue performance pending resolution of the dispute and shall maintain the accounting and cost data described in Paragraph 8.4 herein.
4.1.185 Exclusion of Consequential Damages. In no event shall City or Design- Builder be liable to the other party for any special, indir ect or incidental consequential damages resulting f rom a breach of the Contract by the other party, whether in contract, tort or other theory of law, such as r evenue losses, loss of use, loss of opportunity, cost of capital, debt service, loss of profit, including profit on related contracts or claims of taxpayers, provided that this limitation shall not exclude or affect:
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(1) The rights and remedies of the parties expressly se t forth in the Contract Documents, such as Design-Builder’s obligation to pay liquidated damages and Design- Builder’s obligation to pay City’s costs of completing Work;
(2) Design-Builder’s obligation to pay City’s costs of repair or of correcting or replacing non-conforming Work;
(3) Liability for fraud, reckless or willful misconduct, gross negligence, or criminal acts;
(4) Any liability with respect to indemnification for third party claims; or
(5) Any liability for any type of damage or loss to the extent it is covered by the proceeds of insurance.
4.1.186 Claims for Concealed or Unknown Conditions. Design-Builder shall notify City of the following Project Site conditions in writing within ten (10) calendar days upon their discovery and before they are disturbed;
(1) Subsurface or latent physical conditions differing materially from those indicated in the Contract Documents;
(2) Unknown physical conditions of an unusual nature differing materially from those ordinarily encountered and generally recogniz ed as inherent in the Work of the character being performed; and
(3) Material differing from that represented in the Con tract Documents which Design-Builder believes may be hazardous waste, as defined in the California Health and Safety Code, that is required to be removed to a Class 1, Class 2, or Class 3 disposal site in accordance with the provisions of existing law.
4.1.187 Process to be Followed Upon Discovery. City will promptly investigate unknown conditions or conditions which appear to be concealed. If City determines that the conditions fall within one of the three categories set forth above and will ma terially affect the cost or time to complete the Wo rk, a Change Order or Construction Change Directive will be issued by City adjusting the compensation for such portion of Work in accordance with the requirements of the Contract Documents. If City determines that the conditions do not justify an adjustment in compensation or the Contract Time, Design-Builder will be notified in writing. Should Design- Builder disagree with the decision, Design-Builder may submit a written notice of potential claim to City before commencing the disputed Work. In the event of such a dispute, Design-Builder shall not be excused from any scheduled completion date provided by the Contract Documents and shall proceed with all Work to be performed under the Contract Documents. Design-Builder's failure to give notice of changed conditions within ten (10) calendar days of their discovery and before they are disturbed s hall constitute a waiver of all claims in connection therewith.
4.1.188 Utility Work. Design-Builder acknowledges and agree s that no change in Contract Price and/or Contract Time will be allowed for omissions or other inaccuracies in information provided by City in the RFP regarding the above-gro und utilities, appurtenances to main or trunk line utilities, service lines or any other utilities that do not constitute main or trunk line utilities.
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4.1.189 Claims for Additional Cost and/or Time.
4.1.189.1 General. If Design-Builder wishes to make a Claim f or an increase in the Contract Price and/or Contract Time, Design-Builder shall provide written notice within ten (10) calendar days, as provided in Subparagraph 17.1.4 herein, before proceeding to execute the Work. This notice shall be given by Design-Builder before proceeding to exe cute Work affected by the event, except in an emergency endangering life or property, in which ca se Design-Builder shall proceed in accordance with Article 11. If Design-Builder believes additional cost is involved for reasons including, but not limi ted to: (i) any written interpretation; (ii) a Verbal Change in the Work as more specifically described in Subparagraph
8.5.2 above; (iii) failure of payment by City; or (iv) any order by City to stop Work where Design-Builder was not at fault, Design-Builder shall file Claims in a ccordance with the procedures established herein.
Compliance with the notice and Claim submission pro cedures described in this Paragraph is a condition precedent to the right to commence litigation, file a Government Code Claim, or commence any other legal action. No claim or issues not raised in a timely notice and timely Claim submitted under this Paragraph may be asserted in any Government Code Claim, subsequent litigation, or legal action.
4.1.189.2 Certification of Claim.
(1) Design-Builder, signing under penalty of perjury un der the laws of the State of California, shall submit with the Claim its certification that:
(a) The Claim is made in good faith;
(b) Supporting data are accurate and complete to the best of Design-Builder's knowledge and belief; and
(c) The amount requested accurately reflects the Contract adjustment for which Design-Builder believes City is liable.
(2) The certification shall be executed by an officer o r general partner of Design-Builder having overall responsibility for the conduct of Design-Builder's affairs.
(3) If a false claim is knowingly submitted (as the ter ms "claim" and "knowingly" are defined in the California False Cla ims Act, California Government Code § 12650 et seq. ), City will be entitled to the remedies set forth in the California False Claims Act in addition to all other remedies provided by law. Design-Builder may be subject to criminal prosecution.
(4) In regard to any Claim or portion of a Claim for a Design-Builder or Design Consultant work, Design-Builder shall fully review said Claim and certify said Claim, under penalty of perjury under the laws of the State of California, to have been made in good faith and in accordance with this Contract.
(5) Failure to furnish certification as required hereinabove will result in Design- Builder waiving its rights to the subject the Claim.
4.1.189.3 Content of Written Notice. Design-Builder acknowled ges and agrees that it shall release, waive and forfeit all rights to assert a Claim for Additional Cost and/or Time unless such notice is in strict compliance with this Paragraph. Design-Builder further agrees
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that City shall not be required to demonstrate that it suffered any actual prejudice due to the lack o f timely and proper notice as a condition precedent to effect such a release, waiver, and forfeiture of the Claim. The written notice shall set forth:
(1) The date of the event or occurrence giving rise to the claim and, if applicable, the date when the event ceased;
(2) The nature of the event or occurrence and reasons for which Design- Builder believes additional cost and/or time will or may be due;
(3) The quantification of the costs involved together with the accounting and cost data described in Paragraph 7.4 herein;
(4) A Critical Path Method ("CPM") schedule analysis supporting any request for any additional time; and
(5) Design-Builder's plan for mitigating such costs and/or delay.
4.1.189.4 Back-up Documentation. In addition to the initial t en (10) day written notice required herein, Design-Builder shall submit detailed backup documentation for its Claim includ ing, but not limited to, contract provisions, specificat ions, drawings, Request for Information, correspond ence, meeting minutes, and the like, within thirty (30) c alendar days from Design-Builder's initial written notice.
Failure to provide either this backup documentation or an explanation acceptable to City for the cause of Design-Builder's delay in submitting this documentation as herein indicated shall constitute Design-Builder's release, waiver and forfeiture of any and all rights associated with the Claim.
4.1.189.5 Remedies Related to Delays.
(1) For Claims relating to extensions of Contract Time due to compensable City-caused delays, as described in Article 9 herei n, Design-Builder may be entitled to an equitable adjustment of the Contract Price and Contract Time provided Design-Builder otherwise complies with thi s Paragraph 9.4.4.
(2) For Claims relating to extensions of Contract Time due to non- compensable Force Majeure events, as described in Article 9 herein, Design-Builder may be entitled to an equitable adjustment of the Contract Time, subject to the limitations set forth in Article 9, but shal l not be entitled to adjustment of the Contract Price.
(3) For Claims relating to extensions of the Contract T ime due to rain delays/inclement weather, Design-Builder shall not be entitled to adjustment of the Contract Time unless and until the number of unworkable days due to the effe cts of rain/inclement weather exceed the number of days set forth in Subparagraph 9.4.3. In such event , the Contract Time shall be equitably adjusted, bu t Design-Builder shall not be entitled to adjustment of the Contract Price.
Claims Resolution
Pursuant to Public Contract Code § 9204, all Claims shall be handled in accordance with the following procedure:
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4.1.190 City shall respond in writing within forty-five (45 ) days of receipt of a Claim presented in accordance with this Article or may re quest in writing within thirty (30) days of receipt of the Claim any additional documentation supporting the Claim.
4.1.191 The written statement provided by City shall identify the disputed and undisputed portions of the Claim. City and Design-Builder can extend the 45-day period by mutual agreement. If Ci ty needs approval from its governing body to provide a written statement, and that body does not meet within the 45 days or within the mutually agreed to extension of time, City shall have up to three (3) days following the next duly publicly noticed meeting of the governing body after the 45-day period or extension expires to provide said written statement identifying the disputed portion and undisputed portion of the Claim.
4.1.192 Any payment due on an undisputed portion of the Cla im will be processed by City within sixty (60) days. If City fails to issue said written statement, then the Claim is deemed rejected in its entirety.
4.1.193 If Design-Builder disputes City's written response or City fails to respond to Claim within the time set forth herein, Design-Builder may demand an informal conference to meet and confer for settlement of the issues in dispute. Design-Builder shall make any such demand in writing and by registered or certified mail. Upon receipt of Design-Builder's written demand pursuant to this Paragraph 17.2.4, the City will schedule a meet and confer conference within thirty (30) days for settlement of the dispute.
4.1.194 Within ten (10) business days following the conclus ion of the meet and confer conference, if the Claim or any portion of it remai ns in dispute, City shall provide a written stateme nt identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment in the undisputed portion shall be processed and ma de within 60 days after the issuance of a written statement.
4.1.195 Any disputed portion of the Claim that remains afte r the meet and confer conference will be subject to nonbinding mediation, as defined in Public Contract Code § 9204(d)(2)(C) , with the City and Design-Builder sharing the associ ated costs equally. City and Design-Builder shall mutually agree to a mediator within 10 business day s after the disputed portion of the Claim has been identified in writing, or, if no such identificatio n is made within the time period prescribed, then w ithin 20 days after the conclusion of the meet and confer co nference. If the parties cannot agree upon a mediat or, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. E ach party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If the mediation is unsuccessful, the parts of the Claim that remain in dispute shall be subject to Article 17.3. After the City's recei pt of a Claim, City and Design-Builder may mutually agree to waive the mediation requirements established by this Paragraph 17.2.6, or to substitute another form of alternative dispute resolution in lieu of mediation.
4.1.196 A Claim that is deemed rejected by reason of City's failure to act within the time requirements specified in this Paragraph shall not constitute an adverse finding with regard to the merits of the Claim or the responsibility or qualifications of Design-Builder.
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Dispute Resolution
4.1.197 Claims between City and Design-Builder of $375,000. 00 or less shall be resolved in accordance with the procedures establis hed in Part 3, Chapter 1, Article 1.5 of the Califo rnia Public Contract Code § 20104 et seq.; provided however that California Public Contract Code § 20104.2(a) shall not supersede the requirements of the Contract Documents with respect to Design-Builder's notification to the City of such claim or extend the time for giving of such notice as provided in the Contract Documents.
4.1.198 Any other claims, disputes or other matters in cont roversy which cannot be resolved between the Parties shall be resolved through litigation in a court of competent jurisdiction of the State of California. Venue for any such litigation concerning this Project or Agreement shall be in the County of Orange, State of California and Design-Builder agrees to incorporate this provision into all subcontracts.
4.1.199 Completion of mediation or other alternative disput e resolution procedure to which City and Design-Builder have mutually agreed after City's receipt of a Claim is a condition precedent to the commencement and maintenance of litigation in connection with the Claim.
4.1.200 Compliance with the provisions of this Article shall not relieve Design- Builder of responsibility for presenting a written Government Code Claim pursuant to California Government Code § 910, et seq., and other provisions of applicable la w relating to litigating claims against City. Timel y presentation of a Government Code Claim is a prerequisite to filing and maintaining any suit for monies or damages against City.
MISCELLANEOUS PROVISIONS
Amendments
The Contract may be amended only by written instrument duly executed by the Parties or their respective successors or assigns.
Successors and Assigns
City and Design-Builder respectively bind themselves, their partners, successors, assigns, and legal Project Managers to the other Party hereto and to p artners, successors, assigns, and legal Project Managers of such other Party in respect to covenant s, agreements, and obligations contained in the Contract Documents. Design-Builder shall not sublet or assign the Work of this Contract or any portion thereof or any monies due thereunder, without the express prior written consent and approval of City. City may freely assign its rights hereunder, without lim itation, to a separate entity and Design-Builder ag rees, upon such entity's request, to continue and complet e performance of the Work upon payment of any undisputed outstanding amounts due Design- Builder for services performed up to and including the effective date of the assignment, provided adequate proof of funding to completion is offered by assignee.
Any entity which shall succeed to the rights of City shall be entitled to enforce the rights of City h ereunder.
If requested by such entity, Design-Builder will execute a separate letter or other agreement with such entity further evidencing Design-Builder's commitment to continue performance of the Contract.
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Waiver
Each Party’s waiver of any breach or failure to enf orce any of the terms, covenants, conditions or other provisions of the Contract Documents at any time shall not in any way limit or waive that Party’s right thereafter to enforce or compel strict compliance w ith every term, covenant, condition or other provis ion, any course of dealing or custom of the trade notwithstanding. Furthermore, if the Parties make or implement any interpretation of the Contract Documents without documenting such interpretation by an instrument in writing signed by both Parties, such interpretation and implementation thereof will not be binding in the event of any future disputes.
Limitation on Third Party Beneficiaries
It is not intended by any of the provisions of the Contract Documents to create any third party beneficiary hereunder or to authorize anyone not a party hereto to maintain a suit for personal injury or property Damage pursuant to the terms or provisions hereof. The duties, obligations, and responsibilit ies of the Parties to the Contract Documents with respect to such third parties shall remain as imposed by law.
The Contract Documents shall not be construed to cr eate a contractual relationship of any kind between City and a Design-Builder or any other person or entity except Design-Builder.
No Assignment or Delegation
Design-Builder shall not assign, transfer, convey o r delegate the duties or obligations under this Contract or his/her interest therein, in whole or in part, without the prior written consent of City, which may be withheld at City’s sole discretion. Should Desig n-Builder violate the provisions of this Article it will be deemed a material breach and the Contract may, at the option of City, be terminated, revoked and annulled.
City shall thereupon be relieved and discharged fro m any and all liability and obligations arising out of the same to Design-Builder and to his/her assignee or transferee.
Gratuities and Conflicts of Interest
4.1.201 Design-Builder shall not permit any member, officer, or employee of City to have any financial interest in the Contract prohibited by Government Code § 1090 et seq. and § 87100 et seq. In addition Design Builder or its e mployees shall not enter into any contract involvin g services or property with a person or business prohibited from transacting such business with City, pursuant to Government Code § 1090 et seq. and § 87100 et se q. Unless an explicit statement to the contrary accompanies Design-Builder's Proposal, Design-Builder affirms that no City member, officer, or employe e of City has any interest (whether contractual, non- contractual, financial, or otherwise) in this transaction or in the business of Design-Builder. If any such interest becomes known to Design-Builder at any time, Design- Builder shall submit a full and complete written disclosure of such information to City, even if such interest would not be considered a conflict under Government Code § 1090 et seq. and § 87100 et seq.
4.1.202 Neither Design-Builder nor any of its employees, ag ents and representatives shall offer to give to an officer, official or employee of City gifts, entertainment, payments, loans or gratuities.
City may, by written notice to Design-Builder, term inate the right of Design-Builder to proceed under the Contract if it is found that gratuities (in the for m of gifts,
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entertainment, or otherwise) were offered or given by Design-Builder, or any agent of Design- Builder, to any Council member, officer, agent and/or employee of City.
4.1.203 Employment by Design-Builder of personnel on the pa yroll of City is not permitted in the performance of the Contract, even though such employment may be outside City employee's regular working hours or on Saturdays, Sundays, holidays or vacation time. Further, employment by Design- Builder of personnel who have been on City's payrol l within one year prior to the date of Contract awa rd, where such employment is caused by and/or dependent upon Design-Builder securing the Contract or a related contract with City, is also prohibited.
4.1.204 The rights and remedies of City specified herein ar e not exclusive and are in addition to any other rights and remedies allowed by law or equity.
Maintenance of, Access to and Audit of Records
4.1.205 Design-Builder shall maintain at its Project Manage r's office a complete set of all books and records prepared or employed by Desig n-Builder in its management, scheduling, cost accounting and otherwise with respect to the Project. Design-Builder shall grant to City and any other parties designated by City, such audit rights and allow City and any designated parties such access to and the right to copy such books and records as City may request in connection with the issuance of Change Orders, the resolution of disputes, and such other matters as City reasonably deems necessary for purposes of verifying compliance with the Contract and applicab le law. In the event that Design-Builder fails to g rant such audit rights (including access and the right t o copy) to City or other parties designated by City , in addition to other rights available to City, Design-Builder shall promptly reimburse City or other such parties for the legal and administrative costs they incur seeking to enforce such audit rights (including access and the right to copy).
4.1.206 Where the payment method for any Work is on a time and materials basis, such examination and audit rights shall include all books, records, documents and other evidence and accounting principles and practices sufficient to reflect properly all direct and indirect costs of whatever nature claimed to have been incurred and anticipated to be incurred for the performance of such Work. If an audit indicates Design-Builder has been overcredited under a previo us progress payment, that overcredit will be applie d against current progress payments.
4.1.207 For cost and pricing data submitted in connection w ith pricing Change Orders, unless such pricing is based on adequate price comp etition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, City and its representatives have the right to examine all books , records, documents and other data of Design-Builder related to the negotiation of or performance of Work under such Change Orders for the purpose of evaluating the accuracy, completeness and currency of the cost or pricing data submitted. The right of examinatio n shall extend to all documents deemed necessary by such persons to permit adequate evaluation of the cost or pricing data submitted, along with the computations and projections used therein.
4.1.208 Design-Builder’s cost proposal, Subcontractor’s cos t proposals, all proposal rates and allowability of all items included in the cost proposals may be audited by City for a period of five years after Final Completion of the Project.
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Retention of Records
Design-Builder shall maintain all records and documents relating to the Contract (including copies of all original documents delivered to City) for a per iod of five years after the Final Completion of the Project or termination date, as applicable, and shall notif y City where such records and documents are kept.
Notwithstanding the foregoing, all records which relate to Claims being processed or actions brought under the dispute resolution provisions hereof shall be retained and made available until such actions and Claims have been finally resolved. Records to be retained include all books and other evidence bearing on Design- Builder's costs under the Contract Documents. Desig n-Builder shall make these records and documents available for audit and inspection to City, at Design-Builder's office, at all reasonable times, without charge, and shall allow such persons to make copies of such documents (at no expense to Design-Builder).
Public Records Act
4.1.209 Design-Builder acknowledges and agrees that all rec ords, documents, drawings, plans, specifications and other materials in City's possession, including materials submitte d by Design-Builder, are subject to the provisions of the California Public Records Act (Government Code § 6250 et seq.). Design-Builder shall be solely responsibl e for all determinations made by it under such Act, and for clearly and prominently marking each and every page or sheet of materials with "Trade Secret" or "Confidential" as it determines to be appropriate. Design-Builder is advised to contact legal counsel concerning such Act and its application to Design-Builder.
4.1.210 If any of the materials submitted by Design-Builder to City are clearly and prominently labeled "Trade Secret" or "Confidential" by Design-Builder, City will endeavor to advise Design- Builder of any request for the disclosure of such m aterials prior to making any such disclosure. Under no circumstances, however, will City be responsible or liable to Design-Builder or any other person for t he disclosure of any such labeled materials, whether the disclosure is required by law, by court order or occurs through inadvertence, mistake or negligence on the part of City.
4.1.211 In the event of litigation concerning the disclosur e of any material submitted by Design-Builder to City, City's sole involvement will be as a stakeholder retaining the material until otherwise ordered by a court; and Design-Builder shall be ful ly responsible for otherwise prosecuting or defendi ng any action concerning the materials at its sole cost and risk.
Keys and Access
If City furnishes keys and/or access cards to Desig n-Builder to provide access to City's property, Design-Builder shall assure that such access instru ments are not duplicated and shall return all such instruments in good condition upon request of City or prior to receipt of final payment, whichever is earlier.
If Design-Builder fails to return all access instru ments furnished to it, Design-Builder shall be responsible, within the Contract Price, for all Work, materials, and costs associated with reestablishing secured access.
Interference
The Design-Builder shall employ, insofar as possible, such methods and means in the performance of the work as will cause the minimum of interruption to public utilities, or interference
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with the work of the City or any other Contractor or the activities of others whose property may be used by the Design-Builder.
Clean Premises
The Design-Builder shall leave all glass, plumbing fixtures, equipment, tile, paint and premises in clean, perfect and undamaged condition. All buildings, structures, and pavements used by Design-Builder shall be left broom clean and all debris shall be r emoved and disposed of by Design-Builder. All Desig n- Builder's tools and equipment shall be removed from the premises before acceptance of the work by City.
Sanitary Facilities
The Design-Builder shall provide adequate sanitary facilities for all construction personnel at the job site in a location approved by City Engineer, and m aintain the same in a clean and sanitary condition.
Design-Builder shall also provide for the removal a nd disposal of all garbage daily, excrement and was te matter weekly from said premises to the satisfaction of City Engineer.
City Engineer’s Office
4.1.212 Office Space. Design-Builder shall provide approxim ately 1,500 square feet of finished, air-conditioned office space on or immediately adjacent to the construction site, that is ph ysically separate from the Design-Builder’s offices, for the City personnel from the time of contract execution through completion. The space shall be provided thr ough construction trailers, temporary housing and/o r finished construction. Design•Builder initiated space relocations shall be at no additional cost to City.
4.1.213 Furnishings. The Design-Builder shall provide six ( 6) fully furnished new work stations within the City Engineer's construction of fice, each consisting of a five-foot desk, five foo t lay-out table, two (2) 5 x 5 foot acoustic screens, upholstered arm chair, two (2) upholstered visitors side chairs, a three foot wide (four-drawer) horizontal file cabin et, and one trash can. In addition, Design-Builder shall provide two (2) drafting tables for project enginee rs. At the close of the contract, the Design-Builde r shall remove all furnishings without claim to City for a degradation or loss.
4.1.214 Photocopies. Throughout the course of this contract, provide the City Engineer's office with a photocopying machine, featuring a twe nty-bin sorter and ability to handle 11x17 printing and copying. The photocopier shall be capable of runnin g standard and legal-size bond at a speed of at lea st one copy sheet per second. The photocopier shall be provided with a service agreement having a response period of one day or less. This equipment will not become City Engineer property. Paper supplies and toner will be provided by City.
4.1.215 Computers. To support the City Engineer's office, t he Design-Builder shall provide a network including six (6) stand-alone desktop PC workstations, one (1) server running Windows Server, 2016 or 2019, at City’s sole election, and four (4) dedicated multi- function printers with sc anning capability. Each computer shall have two (2) monito rs at least 27" screen size, Windows 10 (service pa ck versions 1909 or higher) operating system, with the latest versions of Microsoft Office Suite Professi onal (e.g., Outlook, Word, Excel, Access, and Power Poin t), Adobe Acrobat Pro, AutoCAD, and 2 individual licenses of any BIM software used by Design-Builder . All computer equipment, software, and related materials shall remain the property
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of the City Engineer. Throughout the contract period, the Design-Builder shall provide a service agreement for all equipment, having a response period of one-day or less. Paper, toner, and other associated supplies will be provided by the City Engineer.
4.1.216 Utilities and Services. All utility costs shall be borne by Design-Builder. HVAC, water, lighting, power, high-speed Internet, and ot her systems shall be operated and maintained for continuous service. A push-button tone telephone on its own dedicated line shall be provided to each work station. Design-Builder shall provide daily trash removal and weekly floor vacuuming and dusting. Potable chilled drinking water shall be provided within the space. Design-Builder provided toilet facilities (including all supplies) must be located within 100 feet of the City Engineer's office and shall receive weekly janitorial services.
Partnering
City intends to encourage the foundation of cohesiv e partnership with Design-Builder and its principle Subcontractors and suppliers. Each organi zation will structure this partnership to draw on t he strengths and to identify and achieve reciprocal go als. The objectives are effective and efficient con tract performance completion within budget, on schedule, and according to the Contract.
This partnership will be bilateral in makeup, and both parties will agree and share equally the costs associated with effecting this partnering.
Design-Builder's management team and the City Engineer will establish the partnering relationship on award of contract and the City and Design-Builde r will jointly arrange two partnering workshops; on e approximately six weeks after award of contract and a second at least one month prior to commencement of construction. City Engineer and Design-Builder's Representative will coordinate in determining attendees, agenda, location and duration of workshops.
Persons attending the workshops will be dependent on the phase of the Project but will generally include:
1. City Engineer
2. Representatives of the City of Anaheim Public Works Department and/or other City Departments
3. Design-Builder’s Representative and Senior Management
4. Design-Builder’s design consultants and subconsultants
5. City consultants
6. Design-Builder’s QA/QC personnel
7. Authorized representatives of Subcontractors and suppliers
Design-Builder’s Representative and the City Engineer may hold follow-up workshops periodically throughout the duration of the Contract.
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Establishment of a partnership charter on this Proj ect will not change the legal relationship of the parties to the Contract nor relieve either party from the terms of the Contract.
Survival of Terms
Any indemnity, warranty or guarantee given by Desig n-Builder to City under the Contract Documents shall survive the expiration or termination of the Contract Documents and shall be binding upon Design-Builder until any action thereunder is barre d according to terms in the Contract Documents or b y the applicable statute of limitations or statute of repose.
No Personal Liability of City Employees
City’s authorized representatives are acting solely as agents and representatives of City when carrying out the provisions of or exercising the power or authority granted to them under the Contract. They shall not be liable either personally or as employe es of City for actions in their ordinary course of employment. No agent, consultant, Council member, o fficer or authorized employee of City shall be personally responsible for any liability arising under the Contract.
Compliance with Restrictions
Design-Builder shall comply with all conditions, re strictions and reservations of record, statutes, regulations, and ordinances, including, without lim itation, all pollution control, environmental prote ction, zoning, planning, land use requirements, mitigation measures, all restrictions and requirements affect ing the Project and adjoining properties, and disabled access imposed by City and all other governmental entities including, without limitation, the requirements of any general plan and environmental require ments in connection with use, occupancy and building perm its, and requirements of public utilities which aff ect construction of the Work in effect at the time of execution of this Agreement.
Governing Law and Venue
The Contract shall be governed by the laws of the S tate of California without regard to choice of law principles thereof. Pursuant to Code of Civil P rocedure § 394, the exclusive venue of any legal ac tion brought by City, Design-Builder, or any Consultant or Subcontractor, with regard to this Agreement or Project, shall be in Orange County, State of California. Both Parties hereto agree that personal and subject matter jurisdiction is proper in the City of Anahei m, California. Design-Builder agrees to incorporate this provision into all consultant subcontract agreements.
Further Assurances
Design-Builder shall promptly execute and deliver to City all such instruments and other documents and assurances as are reasonably requested by City to further evidence the obligations of Design-Builder hereunder, including assurances regarding assignments of Subcontracts contained herein.
Headings
The captions of the sections of the Contract are for convenience only and shall not be deemed part of the Contract or be considered in construing the Contract.
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Entire Agreement
The Contract Documents contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements, u nderstandings, statements, representations and negotiations between the Parties with respect to its subject matter.
Counterparts
This instrument may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one in the same instrument.
[END OF GENERAL CONDITIONS ]
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
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Appendix 1: Basis of Design (BOD)
Introduction
Anaheim Public Utilities (APU) provides electric and water service to 357,000 residents, 24,000 businesses, and 25 million annual visitors. Anaheim is a modern, diverse city with a proud history dating back to its 185 7 founding. The city is about 50 square miles and bordered by 7 Orange County cities. APU is a municipally owned, not- for-profit electric and water utility and is regulated and governed locally by the City Council. A Public Utilities Board, selected from Anaheim residents, advises the City Council on major utility issues.
BUILDING CONSIDERATIONS
The CQB will consist of a structure of approximately 25,000 square feet to include all design, archite cture, permits, grading, construction, material, labor, special observation, inspection, testing, verification, procurement and installation of all materials and equipment. DBE will be responsible for obtaining all required permits, including federal, state, and local governance, coordination with all utilities and other regulatory agencies, start-up and commissioning required for occupancy and operations.
PROJECT GOALS
The CQB is a new main office building for electric and water field staff to gather for daily tasks, duties, and projects.
The building will house offices, assembly areas, conference rooms, break rooms, lockers, and storage s pace. The goal of this new building is to provide modernized workspaces, staff assembly area, development and tr aining, interdepartmental collaboration, space planned for efficiency, and space for large department meetings. All future City-owned projects over 10,000 square feet in the building area that enter the design and constructio n phase shall meet U.S. Green Building Council’s LEE registration and certification, provided that the project is cost-effective over the life of the building. The CQB should be assumed to be LEED certified unless waived by the City Council when the goals of LEED certification are met or exceeded.
PROJECT SITE LOCATION AND CONTEXT
The CQB will be constructed in the northern area of the existing Edwards Utility Complex (EUC) near So uth Street.
The EUC is approximately seventeen acres and curren tly consists of the existing main office building, several warehouses, a substation, miscellaneous storage areas/lots, and parking areas. Currently, APU’s Electric and Water field crews, APU Environmental Services staff, and field administrative support groups are located at the main office building. APU anticipates that the new CQB will be approximately 25,000 square footage in size; however, the final size and layout of the building will be based upon ultimate space planning needs to be determined during the initial Project stages. The site will require grading, installation of all utilities and right-of-way improvements for the construction of the new facility and all amenities.
OTHER CONSIDERATIONS
As part of this RFQ, the City would like to receive the DBE’s feedback on opportunities to improve the existing concept designs, identify enhancements and challeng es within the existing concept design, and a projec ted timeline for the design and construction of the Project.
The architectural development of the project shall consider the following:
The CQB will be a functional building that will m eet the requirements of the City of Anaheim and have flexibility for future needs through thoughtful design. The building should meet the goals and vision of the APU.
Use of comparable building materials consistent w ith facilities of similar size, functionality, and
aesthetic as presented by the City. Material selection should be durable and easily mai ntainable. Space must be flexible and open to allow easy fut ure modifications as technologies change.
GENERAL REQUIREMENTS AND SPACE PLANNING
The proposed CQB site falls under the Planning and Building Department jurisdiction and governance of the City of Anaheim, including additional safety and off-site requirements from Anaheim Fire & Rescue and Public Works Department, respectively. APU will provide utility electrical and water service connectio ns.
The building's architectural massing will be compatible with the City of Anaheim Codes and Guidelines.
City of Anaheim Public Utilities – Crew Quarters Building Request for Proposal (RFP)
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ROOM DESCRIPTIONS
Room requirements for electrical, mechanical, plumb ing, and finishes should be aligned with buildings of similar use and size. APU stakeholders will provide additional details and requirements during design development.
CODE REQUIREMENTS AND ANALYSIS
The project shall be designed in accordance with the latest adopted City of Anaheim building codes and zoning ordinances. Specific codes and regulations to be incorporated are:
Latest adopted versions by the City of Anaheim Bu ilding Code, California Building Code (CBC), State specific edition of the Uniform Building Code including all adopted versions of the CBC Mechanical, Electrical, Plumbing, and Fire codes including Title 24, California Code of Regulations (CCR). The DBE will be responsible for doing a code anal ysis for this facility and determining if a fully sprinkled building is required.
Refer to the Minimum Technical Requirements in th e Appendices for applicable codes, standards, regulations, and guidelines.
TESTING AND INSPECTION
The DBE will be responsible for procuring a testing and inspection company to provide at a minimum soi l compaction inspection, concrete testing, steel testing and all other required inspections mandated by code.