Attachment 1 - BNBuilders, Inc. Contract.pdf — Chula Vista City Council, January 20, 2026

Exhibit D – Draft Contract 1

DRAFT CONTRACT

PROGRESSIVE DESIGN/BUILD

CONTRACT FOR

RENOVATIONS OF THE CITY OF CHULA VISTA’S CIVIC

CENTER AND SOUTH LIBRARY BRANCHES

CIP # GGV0271 AND GGV0272

Exhibit D – Draft Contract 2

City of Chula Vista
1800 Maxwell Road
Chula Vista, CA 91911

PROGRESSIVE DESIGN-BUILD CONTRACT BETWEEN

CITY OF CHULA VISTA AND
[***INSERT DBE NAME***]
FOR THE RENOVATIONS OF THE CITY OF CHULA VISTA’S CIVIC CENTER AND SOUTH

LIBRARY BRANCHES PROJECT

This Progressive Design- Build Contract (“Contract”) is made and entered into this___ day of ___________, 202_ (“Effective Date”) by and between the City of Chula Vista (hereinafter referred to as “City”) and [***INSERT DBE NAME***] (hereinafter collectively referred to as “Design-Build Entity” or “DBE”). City and DBE are sometimes individually referred to as “Party” and collectively as “Parties.”

RECITALS

A. City is a charter city with home rule authority under the Constitution of the State of California and is in need of turnkey design and construction for the Renovations of the City of Chula Vista’s Civic Center and South Library Branches Project (“Project”), which will include two phases: (1) preconstruction phase services (“Preconstruction Phase” or “Preconstruction Services” or “Phase 1”); and (2) construction phase services (“Construction Phase” or “Construction Services” or “Phase 2”), each of which are more fully described in the Contract Documents (collectively, the “Services” or “Work”).

B. City seeks to have DBE perform the Services and DBE warrants and represents that it is able and qualified to perform the Services for the Project. DBE represents that is duly licensed in the State of California and has the necessary qualifications to perform the Services.

C. The Parties desire to enter into this Contract for the purpose of setting forth the terms and conditions upon which DBE shall render Services to City.

TERMS

1. Incorporation of Contract Documents.

This Contract includes and hereby incorporates in full by reference the following Contract Documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Progressive Design-Build Contract
• Attachment 1 to this Contract – Performance Bond
• Attachment 2 to this Contract – Payment Bond
• Attachment 3 to this Contract – Worker’s Compensation Certification • Attachment 4 to this Contract - General Conditions
• Attachment 5 to this Contract – Special Conditions
• Attachment 6 to this Contract – Scope of Services
• Attachment 7 to this Contract – Project Labor Agreement • Agency approved Change Orders

Exhibit D – Draft Contract 3

• Completed and approved Construction Documents in accordance with the General Conditions • RFQ/P

2. DBE’s Services, Responsibilities and Progression of the Services.

2.1 Performance of the Services. DBE promises and agrees, at its own cost and expense, to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately perform the Services and complete the Project consistent with the requirements of the Contract Documents. The Services are more particularly described in the Contract Documents, including, without limitation, Attachment 6.

2.2 Standard of Care. DBE’s performance shall be consistent with the standards set forth in the Contract and the General Conditions. DBE warrants to City that all Services shall be performed in accordance with the highest professional standards and degree of care applicable t o those design professionals who specialize in designing and providing services for projects of the type, scope, quality and complexity of the Project utilizing the progressive design- build contracting mode. DBE warrants to City that all labor, materials, equipment and furnishings used in, or incorporated into, the Work will be of good quality, new (unless otherwise required or permitted by the Contract Documents), and all work will be free of liens, claims and security interests of third parties; that th e work will be of the highest quality and free from defects and that all work will conform with the requirements of the Contract Documents. DBE shall supervise, inspect, and direct the Project competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the Contract Documents. DBE shall be solely responsible for the means, methods, techniques, sequences, and procedures of design and construction of the Project. DBE shall perform, at its own cost and expense and without reimbursement from City, any services necessary to correct defects caused by the DBE’s failure to comply with the standard of care provided for herein.

2.3 Independent Contractor. DBE, in the performance of this Contract, shall be and act as an independent contractor. DBE understands and agrees that it and all of its employees shall not be considered officers, employees, agents, partner, or joint venture of City, and are not entitled to benefits of any kind or nature normally provided employees of City and/or to which City’s employees are normally entitled, including, but not limited to, State Unemployment Compensation or Worker's Compensation.

DBE shall assume full responsibili ty for payment of all federal, state and local taxes or contributions, including unemployment insurance, social security and income taxes with respect to DBE’s employees. In the performance of the Services, DBE is an independent contractor or business entity, with the sole authority for controlling and directing the performance of the details of DBE’s Services, City being interested only in the results obtained.

3. Design and Pre-Construction Services.

3.1 Completion Milestones. Promptly following contract execution, DBE shall submit to the City a Design Schedule, complete and including all elements of the Design Work required to deliver 100% Construction Documents; including reasonable time allowances for City review, review and permitting by Authority Having Jurisdiction (AHJ) and any other agency or 3 rd party reviews. Upon acceptance by the City, the Design Schedule shall establish the Design Completion Date. Design completion is defined as AHJ approval of the design and all other permits required in order to commence construction. DBE shall meet all milestone deadlines for developing the design as set forth in the Scope of Services or as otherwise stipulated by the Parties.

3.2 Design Submittals and Approvals.

Exhibit D – Draft Contract 4

(a) The City of Chula Vista has a dual role in the approval of design submittals. The City Building Official and the City Engineer are the Authorities Having Jurisdiction (AHJ) over technical approval of construction documents and issuance of Building and other City Permits (other approvals may be required for non- City permits). The City Representative (City) for this contract shall have approval authority of construction documents with respect to the scope of work, functional and aesthetic design preferences, quality, and all non-code compliance and non-technical matters. For the purposes of design review and approval clauses in this contract, the term “City” shall mean City Representative and “Authorities Having Jurisdiction” or “AHJ” shall mean the appropri ate permitting body such as the City Building Official or the City Engineer.
(b) DBE shall submit the following to City Representative for approval:
(i) Facility Study & Improvement Options Report
(ii) Schematic Design;
(iii) 50% Construction Documents;
(iv) 90% Construction Documents: and
(v) 100% Construction Documents.
(c) Each design submittal shall include an estimate of the cost of construction based on information available at the time of submittal. DBE shall explain and provide a basis for any differences in cost estimates from prior submittals. DBE shall work collaboratively with City to determine the ultimate costs and the design is developed and implement cost -saving elements as appropriate. The City’s review and approval of the design shall not relieve DBE from its responsibilities under the Contract. City’s review shall not be deemed an approval or waiver by the City of any deviation from, or of the DBE's failure to comply with, any provision or requirement of the Contract Documents, unless such deviation or failure has been identified as such in writing in the Docum ent submitted by the DBE and approved by the City. The City Representative shall be authorized to approve the Construction Documents and any amendments or changes to the design, subject to the limits outlined above.

3.3 Construction Phase Permits . DBE shall be responsible for obtaining and fulfilling all obligations of all building, grading, and other permits to provide a fully functional facility meeting the intent of the Scope of Services. This Contract shall not apply to, and shall not in any w ay bind the AHJ.

City’s approval of Construction Documents as a party to this Contract shall not be a guarantee that the AHJ will approve any Construction Documents or grant any permit. DBE shall be fully responsible for developing Construction Documents that are sufficient to receive a building permit or other permits for the Construction Services. DBE shall be fully responsible to comply with all permit requirements and obtain a Certificate of Occupancy closeout documentation all other permits.

3.4 Constructability and Value Engineering . DBE acknowledges and agrees that City has procured a single design-build entity for the purpose of delivering an integrated and efficient project. DBE shall therefore ensure that its Design Professionals, construction managers, project managers and all other components of the DBE team work collaboratively and proactively to reduce costs and time. As such, DBE shall engage in constructability review during the Preconstruction Phase to ensure that its construction team will be able to complete the project in an efficient and effective manner. DBE’s various components shall also collaborate on value engineering opportunities to reduce the Construction Services costs prior to completion of 100% Construction Documents. DBE shall include City in discussions on value engineering and opportunities to consider cost reductions, both prior to and after establishment of the GMP. Proceeding

Exhibit D – Draft Contract 5

with Construction. DBE shall not commence Construction Services until the AHJ approves the 100% Construction Documents and the City issues a Notice to Proceed with Construction. DBE may request a Notice to Proceed with Construction prior to completion of the 100% Construct ion Documents, and City may issue same, provided that DBE shall not construct any portion of the Project until the design of such portion has been approved. The Guaranteed Completion Date shall run from the Notice to Proceed with Construction even if issued prior to completion of the 100% Construction Documents. (a) DBE may request, and City may grant in its sole discretion, an early limited Notice to Proceed allowing DBE to begin limited portions of Construction Phase work (such as grading or site preparation work) prior to commencing the Contract Time to complete construction. (b) DBE shall not commence construction unless the GMP has been determined; except that, DBE may request and City may issue an early limited Notice to Proceed with a specific portion of the Work if the Parties have stipulated in writing to the amount City will pay for the limited portion of Work.
(c) During development of the design, DBE shall identify long- lead items at the earliest feasible stage and request an early limited Notice to Proceed in order to procure long- lead items.

DBE shall plan for procurement of long -lead items in order to avoid schedule delays based on expected delivery times.
(d) City’s refusal to issue an early limited Notice to Proceed shall not be a basis for any delay damages or other cost adjustments during the Construction Phase.

4. Subcontractor Selection.

4.1 Selection Process. DBE shall solicit bids for all first-tier Subcontractors through an open and competitive process. The solicitation shall notify bidders of the basis for the award. City may allow for a best value selection, provided that DBE notifies City in advance of t he advertisement. A best value determination shall consider price but may account for other defined factors as well and may include negotiations with one or more bidders. If not using best value, the award shall be given to the lowest, responsive and quali fied bidder. DBE may reject any bids that are not responsive or that are from unqualified bidders, or DBE may reject all bids.

4.2 Timing. DBE shall solicit Subcontractor bids following approval of the 90% Construction Documents and prior to submittal of the GMP Proposal and 100% Construction Documents. DBE, with City’s concurrence, may solicit Subcontractors at an earlier time provided tha t the design is sufficiently complete to enable adequate Subcontractor bids. DBE shall submit all Subcontractor bids to the City for City’s accepting prior to awarding the Subcontracts.

4.3 No Liability . Subcontractors shall not be entitled to any payment unless and until Construction Services are performed following a duly issued Notice to Proceed. City shall not be liable to DBE or any Subcontractors or bidders for any costs incurred in formulating bids or in reliance on commencing work. DBE shall include language in its Subcontractor solicitations to expressly limit City’s liability to bidders and Subcontractors. City may, notwithstanding its approval of Subcontractor solicitations or awards, elect not to move forward with approving the GMP. In the event that DBE does not perform Construction Services, it shall terminate all Subcontracts at no cost to the City. DBE shall be responsible for all costs resulting from the Subcontractor solicitations and shall defend and indemnify City in accordance with the General Conditions.

5. DBE’s Compensation.

Exhibit D – Draft Contract 6

5.1 Preconstruction Phase Compensation.
(a) Agency shall pay DBE a total lump sum amount of [______________] Dollars($___________________) (“Preconstruction Fee”) for performance of the Preconstruction Services based on the work satisfactorily performed and approved by City pursuant to the Contract Documents including, without limitation, Attachment 6.
(b) The Pre-Construction Fee includes all costs and expenses for all time and materials required and expended to provide the specific Preconstruction Services, including completion of design and Construction Documents, obtaining all applicable permits, providing cost estimating, obtaining construction work bids, preparation of the GMP, and providing all preconstruction services required to prepare the project to move the construction phase. . City shall not be liable to DBE for any costs or expenses paid or i ncurred by DBE in performing the Services, except as expressly provided for in this Contract. In the event that Pre-Construction Services are needed in excess of the Pre-Construction Services set forth in this Agreement, DBE shall provide a detailed fee proposal for the additional work and if the City is in agreement, a change order for the extra work shall be issued. (c) The Pre-Construction Fee shall not include, and DBE shall not seek compensation for, any “unallowable costs” as set forth in the RFQ/P at Exhibit A “Grant Information and Unallowable Costs.”

5.2 Construction Price Proposal Submittal. DBE shall submit a proposal for its Guaranteed Maximum Price (GMP), as required by this Contract below, no later than its submittal of 100% Construction Documents.

5.3 Construction Phase Compensation.
(a) Construction Phase Compensation. DBE expressly agrees and acknowledges that, as of the Effective Date, DBE is not entitled to any compensation for Construction Services, and shall only be entitled to such compensation if: (1) City accepts the DBE’s GMP Proposal (as defined herein ); (2) the Parties execute the GMP Contract Change Order (as defined herein); and (3) City issues a Notice to Proceed for the Construction Phase.
(b) GMP for Construction Phase. DBE’s compensation for Construction Services shall be a not-to-exceed guaranteed maximum price as further described, and subject to, the limitations set forth below and as indicated in the Contract Documents (“Guaranteed Maximum Price” or “GMP”). As of the Effective Date, the GMP has not been agreed to by the Parties. If, during or after the completion of Preconstruction Services and DBE’s presentation of the GMP Proposal to City, City agrees to DBE’s GMP Proposal, the Parties execute a change order establishing the project GMP for all DBE’s Construction Services for the Project, which shall be consistent with the structure, and subject to the limitations, set forth below.
(c) Unallowable Costs. DBE shall not include within the GMP, nor otherwise seek compensation for, any unallowable costs, as set forth in the RFQ/P at Exhibit A “Grant Information and Unallowable Costs.”

5.4 Definitions of Guaranteed Maximum Price Components. (a) “DBE Contingency” means an amount set that is part of the GMP and which DBE may use to pay for costs as detailed in the General Conditions, as approved by the City.

Exhibit D – Draft Contract 7

(b) “DBE Allowances” means an amount set that is part of the GMP and restricted to a discrete scope of work that was indeterminate at the time of producing the GMP, such as for trades where the DBE did not receive a bid, when the DBE is self-performing Work, or when review of trade bids reveals necessary Work that is not included, as approved by the City. (c) “City Allowances” means an amount set that is part of the GMP and set aside for a discrete scope of work to be direct by the City.
(d) “DBE’s General Requirements” means the costs for activities, facilities, personnel, equipment, materials and services not included in the “Construction Cost” required to support the Construction Phase for the Project and manage the Project site as further defined in the General Conditions, which shall not exceed the amount included in the GMP Contract Change Order. (e) “Construction Cost” means all actual and direct costs necessarily and properly incurred by the DBE and Subcontractors to construct, test, and commission the Project, which is defined as all costs reasonably and properly incurred in performing the Work at c ompetitive rates, including: wages paid for direct labor; contributions applicable to the DBE’s and Subcontractor’s payroll; fringe benefits; payroll taxes; contributions for unemployment; social security, disability, and similar payments and assessments; travel and subsistence; materials, supplies, and equipment incorporated or consumed in the Work; hand tools consumed in the Work; reasonable equipment rental charges whether the equipment is owned by or rented to DBE or Subcontractor; power, utility, and t elephone charges; permits, licenses and inspections for which the DBE or Subcontractor is required by the General Conditions to pay, other than those permits for which City pays directly; sales and use taxes incurred about the Work; fees of testing laboratories for tests required by the Contract Documents, except those related to nonconforming Work; demolition, clean-up and removal costs; professional fees of consultants, engineers, designers or schedulers that the DBE or Subcontractor is required by the Contract Documents to employ during the Project; and all other costs properly and reasonably incurred in the performance of the Work. (f) “Construction Cost” does not include: compensation for DBE’s General Requirements; DBE’s and Subcontractor’s personnel stationed at the DBE’s and Subcontractor’s principal or branch offices; overhead and general expenses except those provided for in Construction Cost; the cost of the DBE’s and Subcontractor’s capital used in the performance of the Work; costs that would cause the GMP to be exceeded; discounts and rebates and the salvage value of tools and equipment consumed in the Work; costs incurred in pe rforming call-back, repair and warranty work; discounts and rebates and the salvage value of tools and equipment consumed in the Work; costs due to the negligence of the DBE or Subcontractor or to the failure of the DBE or Subcontractor to fulfill a specif ic responsibility to City set forth in this Contract Document; costs incurred as a result of a delay which does not constitute compensable delay under the General Conditions; costs incurred in the performance of the Pre-Construction Phase; any cost not spe cifically and expressly described as a reimbursable cost; and costs DBE or Subcontractor is required to bear as a result of DBE's or Subcontractor’s failure to perform in accordance with the Contract Documents.

5.5 Components of Guaranteed Maximum Price Proposal . The GMP shall include the following costs for Construction Services:
(a) Construction Cost. Construction Cost s for Construction Services performed by DBE. Costs shall be paid as a not-to-exceed amount based on the itemized Schedule of Values in the GMP proposal.
(b) DBE Contingency. DBE Contingency shall be a maximum of 7 and a half percent (7.5%) of the Construction Costs incurred by the DBE.

Exhibit D – Draft Contract 8

(c) DBE Allowances . DBE shall not include any allowances in the GMP, unless expressly authorized in writing by City. If the City approves the use of allowances, the City shall be entitled to set the conditions for allowance use in its sole and absolute discretion. (d) City Allowances. City may direct the DBE to include allowances in the GMP for work to be directed by the City.
(e) DBE’s General Requirements. DBE’s General requirements for Construction Services. Costs shall be paid as an allowance in accordance with Contract General Conditions. The maximum value of this allowance shall be __ percent (_%) of the total GMP.

(f) Mark-Ups.
(i) Overhead and Profit. DBE’s fee for overhead and profit (the “DBE’s Fee”) shall be _______________ percent (______%) of the total GMP. DBE’s Fee shall compensate the DBE for all overhead, profit, and other costs and expenses not specifically included in the Construction Cost or General Requirements.
(ii) _Insurance. DBE’s charge for all insurance costs per Attachment 4 excluding Builder’s Risk [“All Risk”] shall be _______________ percent (______%) of the total GMP .

Costs for Builder’s Risk [“All Risk”] shall be included in the Construction Cost. (iii) Bonds. DBE’s charge for Performance Bond and Payment Bond costs shall be __ percent (_%) of the total GMP.

(g) Guaranteed Construction Completion Date. DBE shall include with GMP submittal a construction schedule which includes the total number of Days in which DBE shall complete Construction Services. If approved by the City this schedule shall be used to establish the Guaranteed Construction Completion Date.
(h) Assumptions, Exclusions and Clarifications. DBE’s GMP proposal shall set forth any assumption, exclusions and clarifications necessary to interpret and understand the scope of costs included within the GMP. Any costs that are excluded from the GMP shall be set forth clearly and expressly within the proposal. Ambiguities related to the scope of the GMP will be resolved against DBE where not clearly set out in an assumption, exclusion or clarification.

5.6 Conditions Applicable to Guaranteed Maximum Price.
(a) DBE guarantees that the final cost to construct the Project shall not exceed the GMP, subject to any additions or deductions as provided in the Contract Documents. Except as otherwise provided in this Contract, DBE shall assume the risk of all costs in excess of the GMP in performing the Construction Services and provide a fully completed and successfully operational Project, complete in every detail according to the provisions of the Contract Documents and shall not be entitled to additional payments because of such excess costs. Should DBE believe that it is entitled to additional compensation, whether money or time, it must request such compensation pursuant to the Contract Documents. (b) The GMP includes and assumes that from time to time, DBE will encounter delays and difficult site conditions arising from limited access to work areas, other interference, or conditions at the Project site. DBE assumes full responsibility for its examinat ion, investigation and understanding of

Exhibit D – Draft Contract 9

the difficulties which may be encountered, and has included in its GMP the cost of any Work associated with such difficulties.

5.7 Adjustments to Guaranteed Maximum Price.
(a) The GMP reflected in the GMP Contract Change Order shall not be modified except in the event of the following circumstances: (a) City directs and authorizes a change which is related solely to City discretionary changes (the foregoing excludes changes authorized by City resulting from errors, omissions or other deficiencies in the Construction Documents or changes resulting from the acts, omissions or other conduct of the DBE); (b) unanticipated field conditions which could not be reasonably foreseeable or discoverable by performing due diligence during the design phase by the DBE, are encountered which require changes; (c) changes are directed by a governmental agency with jurisdiction over the Project or portions thereof, which could not be reasonably fore seen or anticipated by the DBE at the conclusion of the Pre- Construction Phase; (d) changes are necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by the DBE at the conclusion of the Pre-Construction Phase; or (e) changes resulting from emergencies not caused, in whole or in part, by the acts, omissions or other conduct of the DBE or its employees, agents or representatives. Adjustments to the GMP shall be reflected in any subsequent Change Orders resulting from the circumstances addressed herein duly executed by City and the DBE.
(b) Adjustments to the GMP on account of changes in the Work shall be determined as set forth in the Contract Documents, including, without limitation, the General Conditions in Attachment 4.

5.8 DBE Responsibility for Construction Costs Exceeding GMP . If the final cost exceeds the GMP, including all adjustments to the GMP in accordance with the Contract Documents, DBE shall be solely responsible for all costs exceeding such amount.

5.9 Payment for Preconstruction Services.
(i) DBE shall submit a Schedule of Values for the lump sum preconstruction fees. If accepted by the City, the Schedule of Values shall be the basis of payment. A monthly invoice for Preconstruction Services shall be submitted to City promptly at the end of each month. DBE shall provide backup documenting progress in accordance with the Schedule of Values if requested by the City. (ii) Payment for the Preconstruction Services shall be made for all undisputed amounts in monthly installment payments within thirty (30) Days after DBE submits an invoice to City and after City’s approval of the portion of the Preconstruction Services for whic h payment is to be made.

Payment shall not constitute acceptance of any Pre-Construction Services completed by DBE.

5.10 Payment for Construction Services. Payment for Construction Services shall be in accordance with the General Conditions in Attachment 4.

6. Commencement and Time to Complete Services; Liquidated Damages.

6.1 Time to Complete Construction Services. DBE shall complete Construction Services within the Guaranteed Completion Date. As of the Effective Date, the Guaranteed Completion Date has not been agreed to by the Parties. If, during or after the completion of Preconstruction Services and DBE’s presentation of the GMP Proposal to City, City agrees to DBE’s proposed schedule in the GMP Proposal, the Parties shall incorporate the total number of Days in which DBE shall complete Construction Services

Exhibit D – Draft Contract 10

into the GMP Construction Change Order, which shall be basis for establishing the Guaranteed Construction Completion Date.

6.2 Liquidated Damages. Time is of the essence. DBE agrees that it shall be liable to City for liquidated damages in an amount of Two Thousand Five Hundred Dollars ($2,500) per day for each and every calendar day beyond the Guaranteed Completion Date that completion of the Project has not been achieved. If not completed by the Guaranteed Completion Date, it is understood that City will suffer damage, and that it is and will be difficult and/or impossible to ascertain and determine the actual damage which City will sustain in the event of and by reason of DBE’s failure to complete the work, and therefore DBE shall pay to City the stipulated sum as fixed and liquidated damages and not as a penalty. Any money due or to become due DBE may be retained to cover liquidated damages.

6.3 Damages for Compensable Delay. DBE will be compensated for damages incurred due to delays in completing the Construction Services by the Guaranteed Completion Date due solely to the fault of City, where such delay to the critical path is unreasonable under the circumstances and not contemplated by the Parties. The daily costs shall be calculated by DBE and submitted to the City for approval. Such amount shall not exceed DBE’s daily amount of General Requirements costs, but may include a mark-up for bonds, insurance, and overhead and profit that does not exceed the allowable mark- up for change orders under the Contract Documents. This amount shall constitute the only payment allowed for compensable delay and shall necessarily only include all overhead (direct or indirect), all profit, all administrative costs, all insurance and bond costs, all labor, materials, equipment and rental costs, and any other costs, expenses and fees incurred or sustained directly as a result of such delay. The amount Damages for Compensable Delay shall be reduced by DBE’s concurrent delays. DBE expressly agrees to be limited to the Damages for Compensable Delay as discussed herein. If necessary, Damages for Compensable Delay will be made in accordance with the Article 10 - CHANGE IN CONTRACT PRICE; CHANGE IN CONTRACT TIMES of the General Conditions.

7. Project Representatives.

7.1 City’s Representative. City hereby designates the City Engineer or their designee, as the person to act as its representative for the performance of this Contract (“City’s Representative”). City’s Representative shall be authorized to act as liaison between City and DBE in the admini stration of this Contract and all work on the Project. City’s Representative shall have the power to act on behalf of City for all purposes under this Contract, including for the purpose of approving the design as defined above in section 3.2 Design Submittals and Approvals. City may designate new and/or different individuals to act as City’s Representative from time to time upon written notice to the DBE.

7.2 DBE’s Representative. DBE hereby designates [***INSERT NAME***], or his or her designee, to act as its representative for the performance of this Contract (“DBE’s Representative”). DBE’s Representative shall have full authority to represent and act on behalf of the DBE for all purposes under this Contract. DBE’s Representative shall supervise and direct all work on the Project, using his best skill and attention.

8. DBE’s Contractor’s License and Registration.

DBE shall have only appropriately licensed contractors performing work on the Project as required by the Business and Professions Code. The DBE (License No. CA#________ ) shall act as the licensed contractor for the Project. DBE shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the DBE shall be fully responsible to City for any damages and/or delays to the Project as specified in the

Exhibit D – Draft Contract 11

Contract. The licensed contractor shall be registered with the Department of Industrial Relations to perform public work (DIR Registration No. ___________).

9. DBE’s Design Professional.

DBE shall name a specific person to act as the Design Professional as described in the General Conditions, subject to the approval of City. DBE hereby designates [***INSERT NAME***] (License No.: CA#_________) to act as the Design Professional for the Project. DBE’s Design Professional shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and DBE shall be fully responsible to City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the Design Professional shall be subject to City’s prior written approval, which approval shall not be unreasonably withheld. The new Design Professional shall be of at least equal competence as the prior Design Professional. In the event that City and DBE cannot agree as to the substitution of a new Design Professional, City shall be entitled to terminate this Contract as described in the General Conditions.

This Contract creates a non-exclusive and perpetual license for the City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded electronically, which are prepared or caused to be prepared by DBE or its Design Professionals under this Contract (“Documents & Data”), and City shall hereby acquire all rights DBE has in any such Documents & Data. All Documents & Data shall be and remain the property of the City , and shall not be used in whole or in substantial part by DBE or any members of the DBE team on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Contract, including termination due to a failure to agree to a GMP, DBE shall provide to the City reproducible copies of all Documents & Data.

To the extent that DBE does not directly perform design work, Contractor shall acquire a license meeting the above requirements from each of its Design Professionals in order to convey the rights to the City. DBE shall acquire and deliver to City a grant of an irrevocable, non -exclusive and perpetual license in favor of the City, as described above, from each Design Professional prior to the Design Professional performing work on the Project. The City’s obligation to compensate DBE for design services shall not commence until DBE delivers the license for the Documents & Data.

10. Notices.

Any notice to be given by any Party hereunder must be given in writing and delivered in person, or by reputable nationwide overnight courier (e.g., Federal Express), or forwarded by certified or registered mail, postage prepaid, return receipt requested, at the address indicated below, unless the Party giving such notice has been notified, in writing, of a change of address:

Any such notice is effective on the date on which such notice is delivered, if notice is given by personal delivery or overnight courier, or if notice is sent through the United States mail, on the date of

CITY OF CHULA VISTA:

DBE:
[***INSERT***]

[***INSERT***]

Exhibit D – Draft Contract 12

actual delivery as shown by the addressee’s receipt or upon the expiration of three (3) days following the date of mailing, whichever first occurs.

11. Authority of Signatories.

The persons executing this Contract on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties.

[SIGNATURES ON NEXT PAGE]

Exhibit D – Draft Contract 13

SIGNATURE PAGE TO PROGRESSIVE DESIGN BUILD CONTRACT BETWEEN THE CITY OF CHULA VISTA AND [***INSERT DBE NAME***]

IN WITNESS WHEREOF, the Parties hereby execute this Progressive Design -Build Contract as of the Effective Date.

CITY OF CHULA VISTA
By:
[INSERT NAME]
[INSERT TITLE]

ATTEST:

By:
[INSERT NAME]

APPROVED AS TO FORM:

By:

ROSEMARIE HORVATH,

DEPUTY CITY ATTORNEY

[***INSERT NAME OF DBE***]

[IF CORPORATION, TWO SIGNATURES,

PRESIDENT OR VICE PRESIDENT AND
SECRETARY OR TREASURER REQUIRED]
By:

Its:

Printed Name:

[DELETE THE FOLLOWING SIGNATURE
LINE IF NOT REQUIRED]
By:

Its:

Printed Name:

____________________________________
Contractor’s License Number

____________________________________
DIR Registration Number

Attachment 1 – Performance Bond 1

ATTACHMENT 1

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, City of Chula Vista (“Agency”) has awarded to ____________________, (“DBE”) an agreement for ________________________ (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the DBE is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, the DBE is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE , we, _______________, the undersigned DBE and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of ___________________________ dollars, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH , that, if the DBE, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney’s fees, incurred by City in enforcing such obligation.

The obligations of Surety hereunder shall continue so long as any obligation of DBE remains.

Nothing herein shall limit City’s rights or the DBE or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

Attachment 1 – Performance Bond 2

Whenever DBE shall be, and is declared by City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at City’s option:
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a Bid or Bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible Bidder, arrange for a Contract between such Bidder, the Surety and City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the Contract price, including other costs and damages for which Surety may be liable. The term “balance of the Contract price” as used in this paragraph shall mean the total amount payable to DBE by City under the Contract and any modification thereto, less any amount previously paid by City to the DBE and any other set offs pursuant to the Contract Documents.
(3) Permit City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the Contract price, including other costs and damages for which Surety may be liable. The term “balance of the Contract price” as used in this paragraph shall mean the total amount payable to DBE by City under the Contract and any modification thereto, less any amount previously paid by City to the DBE and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the DBE.

Surety shall not utilize DBE in completing the Project nor shall Surety accept a Bid from DBE for completion of the Project if City, when declaring the DBE in default, notifies Surety of City’s objection to DBE’s further participation in the completion of the Project.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.

Attachment 1 – Performance Bond 3

IN WITNESS WHEREOF , we have hereunto set our hands and seals this _______ day of ______________, 20__.
___________________________________
DBE
By: ________________________________
President
___________________________________
Surety
By:________________________________
Attorney-in-Fact

APPROVED AS TO FORM

By:

RoseMarie Horvath
Deputy City Attorney

The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or Representative for service of process in California, if different from above)
___________________________________________
___________________________________________
(Telephone number of Surety and ___________________________________________ Agent or Representative for service
of process in California)

NOTE: A copy of the Power -of-Attorney to local representatives of the bonding company must be

Attachment 1 – Performance Bond 4

attached hereto.

Attachment 1 – Performance Bond 5

Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally

appeared , 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 of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer

Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above

Attachment 2 – Payment Bond (Labor and Materials) 1

ATTACHMENT 2

PAYMENT BOND (LABOR AND MATERIALS)
KNOW ALL MEN BY THESE PRESENTS:

THAT WHEREAS, City of Chula Vista (“Agency”), has awarded to ________________ , hereinafter designated as the “Principal,” a contract (“Contract”) for the work described as follows:
(“Project”); and
WHEREAS, said Principal is required to furnish a bond in connection with said Contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto City in the penal sum of ______________ dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the Work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the DBE and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such Work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such Contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of Contract between the owner or City and original DBE or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code , and has not been paid the full amount of his claim

Attachment 2 – Payment Bond (Labor and Materials) 2

and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of Sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the _____ day of ______________________ 20______ the name and corpo rate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.

(Corporate Seal of Principal, if corporation) ___________________________________ DBE
By: ________________________________
President

(Seal of Surety)
___________________________________
Surety
By:________________________________
Attorney-in-Fact

APPROVED AS TO FORM:

By:________________________________
RoseMarie Horvath
Deputy City Attorney

(Attached Attorney-In-Fact Certificate and Required Acknowledgements)

NOTE: A copy of the Power-of-Attorney to local representatives of the bonding company must be attached hereto.

Attachment 2 – Payment Bond (Labor and Materials) 3

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally

appeared , who proved to me on the basis of satisfactory

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.

Signature of Notary Public

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer

Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above

Attachment 3 - Worker’s Compensation Certification 1

ATTACHMENT 3
WORKERS’ COMPENSATION CERTIFICATION
Labor Code section 3700 in relevant part provides:

Every employer except the State shall secure the payment of compensation in one or more of the following ways:
a. By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this state.

b. By securing from the Director of Industrial Relations a certificate of consent to self-insure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his employees.

I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of this Contract.

Date:

Name of DBE: ______
Signature:

Print Name:

Title:
(In accordance with Article 5 - commencing at section 1860, chapter 1, part 7, division 2 of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any Work under this Contract.)

ATTACHMENT 4

GENERAL CONDITIONS

TABLE OF CONTENTS

A4 - i
ARTICLE 1 - DEFINITIONS AND TERMINOLOGY ............................................................................... 1 ARTICLE 2 - PRELIMINARY MATTERS ................................................................................................ 6 ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE ......................................... 7 ARTICLE 4 - AVAILABILITY AND OWNERSHIP OF LANDS AND MATERIALS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS ................................................................. 11 ARTICLE 5 - BONDS AND INSURANCE .............................................................................................. 12 ARTICLE 6 - DESIGN-BUILD ENTITY’S RESPONSIBILITIES .......................................................... 18 ARTICLE 7 - OTHER WORK AT THE PROJECT SITE ......................................................................... 41 ARTICLE 8 - SUBCONTRACTORS ........................................................................................................ 41 ARTICLE 9 - GUARANTEED MAXIMUM PRICE ................................................................................ 43 ARTICLE 10 - CHANGE IN CONTRACT PRICE; CHANGE IN CONTRACT TIMES ....................... 47 ARTICLE 11 - TIME FOR COMPLETION; LIQUIDATED DAMAGES ............................................... 53 ARTICLE 12 - TEST AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK; NOTICE OF DEFECTS ........................................................................................ 55 ARTICLE 13 - PAYMENTS TO DBE AND COMPLETION .................................................................. 58 ARTICLE 14 - SUSPENSION OF WORK AND COMPLETION ............................................................ 62 ARTICLE 15 - CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION.............................................. 65 ARTICLE 16 - MISCELLANEOUS PROVISIONS .................................................................................. 67

Attachment 4 – General Conditions 1

ATTACHMENT 4

GENERAL CONDITIONS

ARTICLE 1 - DEFINITIONS AND TERMINOLOGY

1.1 Defined Terms.

A. Wherever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1. Additional Work – New or unforeseen work will be classified as “Additional Work” when City’s Representative determines that it is not covered by the Contract Documents.

2. Agency – The City of Chula Vista.

3. Authority Having Jurisdiction (“AHJ”) - Private, municipal, county, state, regional or federal authority which may require information or the filing of drawings, specifications, applications, etc., including, but not limited to: the City Approving Agency, City Building Official, City Engineer , or other organization charged with enforcing regulatory compliance in connection with the project.

4. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.

5. Application for Payment -- The form acceptable to City’s Representative which is to be used by DBE during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

6. Architect of Record or Engineer of Record (“A/E”) -- The individual, partnership, corporation, joint venture, or other legal entity named as the Design Professional in the Contract or any succeeding entity designated by Agency.

7. Certificate for Payment -- The form signed by City’s Representative attesting to Progressive DBE’s right to receive payment for certain completed portions of the Work on the Project in accordance with Article 12.

8. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the GMP or the Guaranteed Completion Date, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.

9. Change Order Request (“COR”) -- A request made by DBE for an adjustment in the GMP and/or Guaranteed Completion Date as the result of a DBE-claimed change to the Work.

10. City – The City of Chula Vista.

Attachment 4 – General Conditions 2

11. Claim -- A demand or assertion by City or DBE seeking an adjustment of the GMP or Guaranteed Completion Date, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.

12. Construction Documents -- The plans and Technical Specifications prepared by DBE for the Project and approved by City. The Construction Documents shall set forth in detail all items necessary to complete the construction (other than such details customarily provided by others during construction) of the Project in accordance with the Contract Documents.

Following commencement of the Construction Phase, Construction Documents become part of the Contract Documents upon their completion and approval by City. All amendments and modifications to the Construction Documents must be approved by City in writing.

13. Construction Work -- That portion of the Work on the Project consisting of the provision of labor, materials, furnishings, equipment and services in connection with the construction of the Project as set forth in the Contract Documents.

14. Contract -- The entire integrated written agreement between City and DBE concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.

15. Contract Time -- The number of days or the dates stated in the Contract Documents and Project Schedule to achieve defined Milestones, if any, and to complete the Work by the Guaranteed Completion Date.

16. Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that DBE made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantiti es; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by DBE at the time it submitted its bid or entered the Contract.

Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, do not constitute Critical Supply Shortages.

17. Day -- A calendar day of 24 hours measured from midnight to the next midnight.

18. DBE -- The individual or entity with which City has contracted for performance of the Work.

19. DBE Representative -- The person or firm identified as the primary contact person and representative of DBE as designated in the Contract and who shall not be changed without prior written consent of City.

20. Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.

Attachment 4 – General Conditions 3

21. Design Materials -- Any and all documents, shop drawings, electronic information, including computer programs and computer generated materials, data, plans, drawings, sketches, illustrations, specifications, descriptions, models and other information developed, prepared, furnished, delivered or required to be delivered by, or for, DBE: (1) to City under the Contract Documents or; (2) developed or prepared by or for DBE specifically to discharge its duties under the Contract Documents.

22. Design Professional -- The individuals or entities who will provide DBE with the required architectural, engineering, and other professional services required for the coordinated design of the Project and the administration of construction.

23. Design Work -- The portion of the Work on the Project consisting of the Design services and design deliverables required to be provided in connection with the Design of the Project as set forth in the Contract Documents.

24. Drawings -- The graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work to be done on the Project, generally including plans, elevations, sections, details, schedules, and diagrams prepared as part of the Design Materials. The Drawings are listed in the List of Drawings.

25. Effective Date of the Contract – The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.

26. Equipment Manufacturer -- Any Separate Contractor that fabricates and/or supplies any of City’s provided equipment which is installed in the Project by DBE.

27. Force Majeure Event -- An event that materially affects a party’s performance and is one or more of the following: (1) natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of DBE and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be avoided by us e of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other act ions of City in its capacity as a municipal authority as opposed to its capacity as a Party.

28. Hazardous Materials – Any substance: the presence of which requires investigation or remediation under any federal, state or local law, statute, regulation, ordinance, order, action, policy, or common law; which is or becomes defined as a "hazardous waste," "hazardous substance," pollutant, or contaminant under any federal, state or local law, statute, regulation, rule or ordinance, or amendments thereto, including, without limitations, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as amended, or the Resource, Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq. ("RCRA"); which is petroleum, including crude oil or any fraction thereof not otherwise designated as a “hazardous substance” under CERCLA including, without limitation, gasoline, diesel fuel,

Attachment 4 – General Conditions 4

or other petroleum hydrocarbons; which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any regulatory agency or instrumentality or the United States; the presence of which on the Site causes or threatens to cause a nuisance upon the Site or to the adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Site; the presence of which on adjacent properties could constitute a trespass by DBE or Agency; or as defined in the California Health and Safety Code. For the purposes of this Contract, “Hazardous Materials” shall also include, but are not limited to, “Underground Storage Tanks.” "Underground Storage Tank" shall have the definition assigned to that term by Section 9001 of RCRA, 42 U.S.C. Section 6991, and also shall include: any tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel; any tank used for storing heating o il for consumption on the premises where stored; any septic tank; and any pipes connected to the above items.

29. Holidays -- Holidays occur on:

New Year’s Day - January 1
Martin Luther King Jr. Day – Third Monday of January
Cesar Chavez Day – March 31
Memorial Day - Last Monday in May
Juneteenth – June 19
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Day - December 25
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.

30. Liens – Charges, security interests, or encumbrances upon Project funds, or personal property, including without limitation Stop Payment Notices.

31. Milestones – A principal event specified in the Contract Documents associated with a required completion date or time prior to Completion of all the Work. Failure to achieve Milestones may result in Liquidated Damages as described in the Contract Documents.

32. Notice of Award – The written notice by City to DBE stating that upon timely compliance by DBE with the conditions precedent listed therein, City will sign and deliver the Contract.

33. Notice of Completion – The form which may be executed by City and recorded by the county where the Project is located constituting final acceptance of the Project.

34. Notice to Proceed -- A written notice given by City to DBE fixing the date on which DBE may proceed with any Phase of the Work.

35. Partial Utilization – Use by City of a substantially completed part of the Work prior to Completion of all the Work.

Attachment 4 – General Conditions 5

36. Project -- The total design and construction of which the Work performed under the Contract Documents may be the whole, or a part, and which may include separate design or construction work performed by City or by Separate Contractors for the Project.

37. Project Schedule -- The graphical representation of a practical plan to complete the Work on the Project within the Guaranteed Completion Date and other Contract Times. The detailed requirements for the Project Schedule are stated in Article 6.

38. Proposal -- The proposal submitted by DBE in response to the Request for Qualifications for this Project.

39. Request for Qualifications and Proposals (“RFQP”) - The request for qualifications and proposals issued by City for the Project and includes all documents, exhibits, attachments, and addenda thereto (if applicable).

40. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged.

41. Separate Contractor -- A person, or firm, under separate contract with City performing other work at the Project site which may affect the Work.

42. Services – The Work.

43. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by DBE to illustrate some portion of the Work.

44. Site -- Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rights -of-way and easements for access thereto, and such other lands furnished by City which are designated for the use of DBE.

45. Stop Payment Notice -- A written notice as defined in Civil Code section 8044.

46. Subcontractor – An individual or entity that has a contract with DBE or with a Subcontractor of DBE to perform a portion of the Work on the Project. Unless otherwise specifically provided, the term Subcontractor includes Subcontractors of all tiers.

47. Submittal - Written or graphic information and physical samples prepared and supplied by DBE demonstrating various portions of the Work.

48. Substantial Completion – the date on which the Work, or an agreed portion of the work, is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy and use the Project or a portion thereof for its intended purposes.

49. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with DBE or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.

50. Technical Specifications – All documents developed by DBE and which are ready for the Construction Phase.

Attachment 4 – General Conditions 6

51. Tier -- The contractual level of a Subcontractor or supplier or consultant with respect to DBE. For example, a first tier Subcontractor is under subcontract with DBE, a second tier Subcontractor is under subcontract with a first tier Subcontractor, and so forth.

52. Warranty -- A written guarantee provided to City by DBE that the Work remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this State, whichever is longer.

53. Work -- The entire design and construction, or the various separately identifiable parts thereof, required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such design and construction, and furnishing, installing, and incorporating all materials and equipment into such design and construction, all as required by the Contract Documents.

B. Unless stated otherwise in the Contract Documents, words or phrases that have a well -known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning
ARTICLE 2 - PRELIMINARY MATTERS

2.1 Delivery of Contract Documents.

A. Within fifteen (15) Days after receipt of the Notice of Award and before City will execute the Contract, DBE shall furnish and file with City a signed Contract in duplicate and the necessary, Certificates of Insurance (except “Builder’s Risk” insurance shall be required prior to the construction phase NTP) and Endorsements, and Tax Identification Number, as well as any other documents specified in the Contract Documents. Notwithstanding the foregoing, if the GMP has yet to be established at Notice of Awar d, then the Performance Bond and Payment Bond may be provided after establishing the GMP and prior to the Construction Phase.

2.2 Bonds.

A. Prior to commencement of construction work contractor shall deliver Performance and Payment Bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of Califo rnia, as defined in Code of Civil Procedure section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to City. Each of the bonds shall be in a sum no less than one hundred percent (100%) of the GMP.

2.3 Evidence of Insurance.

A. DBE shall obtain, at its sole cost and expense, all insurance required by Article 5. Certificates of such insurance and copies of the insurance policies and endorsements shall be delivered to City within fifteen (15) Days after receipt of the Notice of Award and before City will execute the Contract, except for “Builder’s Risk” Insurance will only be required prior to NTP with construction.

Attachment 4 – General Conditions 7

2.4 Execution of Contract.

A. Upon receipt of the required Contract Documents, City will execute the Contract, establishing the Effective Date of the Contract.

2.5 Commencement of Contract Time; Notice to Proceed with Construction.

A. Agency will not issue a Notice to Proceed until after the Effective Date of the Contract.

Construction Work shall commence within fifteen (15) Days of the date stated in City’s Notice to Proceed with Construction. No Construction Work shall be done at the Site prior to the date on which the Contract Time commence to run.

2.6 Design initiation Conference; Preconstruction Conference.

A. Before any design Work is started, a conference attended by City, DBE, City’s Representative, and others as appropriate will be held to establish a working understanding among the parties as to the design process and to discuss the schedules referred to herein, procedures for handling design submittals, permitting, processing Applications for Payment, maintaining required records and other relevant design phase issues.

B. Before any construction Work at the Project site is started, a conference attended by City, DBE, City’s Representative, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to herein, procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records.

2.7 Initial Acceptance of Schedules.

A. At least ten (10) Days before submission of the first Application for Payment, a conference attended by DBE, City’s Representative, and others as appropriate will be held to review for acceptability to City’s Representative the schedules submitted, as requ ired by the Contract Documents. DBE shall have an additional ten (10) Days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to DBE until acceptable schedules are submitted to City’s Representative. Acceptance of the schedules by City’s Representative will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve DBE from DBE’s full responsibility therefor.

ARTICLE 3 -CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE

3.1 Intent.

A. The Contract Documents are complementary; what is required by one is as binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be designed and constructed in accordance wi th the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to City. Clarifications and interpretations of the Contract Documents shall be issued by City’s Representative as provided in these General Conditions.

Attachment 4 – General Conditions 8

B. If utilities to equipment/fixtures are not shown but are necessary to operate the equipment/fixtures, the utilities service installation is considered to be part of the Work. The implied Work will conform to the appropriate sections of the Contract Documents.

C. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control DBE in dividing Work among Subcontractors or in establishing the extent of Work to be performed by any trade.

3.2 Reference Standards.

A. Standards, Specifications, Codes, Laws, and Regulations.

1. Reference to federal specifications, federal standards, other standards, specifications, manuals, or codes of any technical society, organization, or association, or to Applicable Laws, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of opening of proposals (or on the Effective Date of the Contract if there were no proposals), except as may be otherwise specifically stated in the Contract Documents.

2. No provision of any such standard, specification, manual, or code, or any instruction of a supplier, shall be effective to change the duties or responsibilities of City, DBE, or City’s Representative, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to City or City’s Representative, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.

3.3 Order of Precedence.

A. The intent of the Contract Documents is to include all necessary criteria to establish the scope and quality for completion of the Work on the Project by DBE. The Contract Documents are complementary and what is required by one shall be as binding as if required by all. Performance by DBE shall be required to the extent consistent with, and reasonably inferable from, the Contract Documents.

B. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and the provisions of any standard, specification, manual, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents); or the provisions of any Applicable Laws (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Applicable Law).

C. In resolving conflicts among any of the Contract Documents, the order of precedence shall be as follows:

1. Permits from other agencies as may be required by law;

Attachment 4 – General Conditions 9

2. Change Orders or Pending Change Orders, most recent first;

3. Design-Build Contract;

4. Special Conditions;

5. General Conditions;

6. RFQ and all addenda, attachments and appendices;

7. Construction Documents prepared by DBE;

8. Drawings prepared by DBE; and

9. DBE Proposal in response to RFQ;
D. With reference to the Drawings the order of precedence shall be as follows:

1. Figures govern over scaled dimensions;

2. Detail drawings govern over general drawings;

3. Change Order drawings govern over Drawings;

4. Drawings govern over standard drawings.

E. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall always apply.

3.4 Amending and Supplementing Contract Documents.

A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by a Change Order.

3.5 Interpretation and Use of Contract Documents.

A. Agency and DBE acknowledge that the Contract Documents may differ in some respect(s) from the other documents included in the RFQ upon which DBE based its Proposal. Prior to the commencement of design and construction on the Project, the parties shall conf irm, in writing, the final form of the Contract Documents that are to be utilized. Specifically, once approved by City, the Construction Documents become a part of the Contract Documents and define the scope of work so long as such documents incorporate all minimum requirements of Attachment 1 Scope of Services. Any and all deviations from Attachment 1 Scope of Services shall be noted, and included with each design submittal. DBE shall certify that the Construction Documents are in full compliance with the Contract Documents including Attachment 1 Scope of Services, except as noted.

B. Each and every provision of law 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 it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either party the Contract shall be amended in writing to make such insertion or correction.

Attachment 4 – General Conditions 10

C. Before commencing any Work on the Project, DBE shall check and review the Contract Documents, including the Construction Documents, for conformance and compliance with all laws, ordinances, codes, rules and regulations of all governmental authorities and p ublic utilities affecting the construction and operation of the physical plant of the Project, all quasi- governmental and other regulations affecting the construction and operation of the physical plant of the Project, and other special requirements, if any, designated in the Contract. In the event DBE observes any violation of any law, ordinance, code, rule or regulation, or inconsistency with any such restrictions or special requirements of the Contract, DBE shall immediately notify City’s Representative in writing of the same and shall cause to be corrected any such violation or inconsistency in the manner provided hereunder. DBE shall be solely liable to City for any such violation, inconsistency or special requirement, if DBE fails to conduct such review or notification to City.

D. Before commencing any Work on the Project, DBE shall carefully examine the Contract, the Contract Documents, and other information given to DBE as to Project requirements. DBE shall immediately notify City’s Representative of any perceived or alleged error, inconsistency, ambiguity, or lack of detail or explanation in such documents in writing. Neither DBE nor any Subcontractor shall take advantage of any apparent error or omission which may be found in the Contract, the Contract Documents, or other infor mation given to DBE. If DBE or its Subcontractors, material or equipment suppliers, or any of their officers, agents, and employees performs, permits, or causes the performance of any Work under the Contract, which it knows or should have known to be in error, inconsistent, or ambiguous, or not sufficiently detailed or explained, DBE shall bear any and all costs arising therefrom including, without limitation, the cost of correction thereof without increase or adjustment to the GMP or the Guaranteed Completion Date. In no case shall any Subcontractor proceed with Work if uncertain without DBE’s written direction and/or approval.

3.6 Reuse of Documents.

A. DBE and any Subcontractor shall not have or acquire any title to or ownership rights in any of the Construction Documents or other documents (or copies of any thereof) prepared by or bearing the seal of the A/E or its consultants, including electronic media ed itions; or reuse of any such Construction Documents, other documents, or copies thereof on extensions of the Project or any other project without written consent of City. The prohibitions of this Article will survive final payment, or termination of the Contract. Nothing herein shall preclude DBE from retaining copies of the Contract Documents for record purposes.

3.7 Ownership and Use of Construction Documents.

A. The Construction Documents, and all copies thereof, furnished to, or provided by, DBE are the property of City. City and DBE explicitly agree that all materials and documents developed in the performance of this Contract are the property of City, including any and all rights, title, and interest in said materials and documents. City shall have unlimited rights, for the benefit of City, in all drawings, designs, technical specifications, notes and any other documentation and other Work developed in the perf ormance of this Contract for the Project, including the right to re-use details of the Design on any other City work at no additional cost to City. DBE agrees to, and hereby does, grant to City a royalty free license to all such data that DBE may cover by copyright and to all designs as to which DBE may assert any right or establish any claim to under the patent or copyright laws. DBE, for a period up to five (5) years from the date of Completion of the Project, agrees to furnish and to provide access to the originals or copies of all such materials immediately upon the written request of City. Any use or reuse by City of

Attachment 4 – General Conditions 11

the Construction Documents on any project other than this Project without employing the services of DBE shall be at City’s own risk with respect to third parties. If City uses or re-uses the Construction Documents on any project other than this Project, it shall remove the A/E’s seal from the Construction Documents and hold harmless DBE, A/E, and their officers, directors, agents and employees from claims arising out of the use or re-use of the Construction Documents on such other project. DBE shall not be responsible or liable for any revisions to the Construction Documents made by any party other than DBE, a party for which DBE is legally responsible or liable, or anyone approved by DBE.

ARTICLE 4 -AVAILABILITY AND OWNERSHIP OF LANDS AND MATERIALS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS

4.1 Availability of Lands.

A. City shall furnish the Project site. City shall notify DBE of any encumbrances or restrictions not of general application but specifically related to use of the Project site with which DBE must comply in performing the Work. DBE shall provide for all additional lands and access thereto that may be required for tem porary construction facilities or storage of materials and equipment, which shall be within the GMP and at no additional cost to City.

4.2 Hazardous Material at Site.

A. DBE shall have responsibility for detection, containment, abatement, remediation, treatment, storage, removal, transport and disposal of Hazardous Materials introduced onto the Project Site by DBE, its employees, subcontractors, agents, or other parties ac ting on behalf of DBE, and perform all other aspects of Hazardous Materials management in accordance with Applicable Laws and the Contract Documents. In the event DBE becomes aware of the presence of, or exposure of persons to, any Hazardous Material at th e Project Site, DBE shall inform City by notice immediately.

B. When hazardous materials have been identified or are suspected to be present on the project site, DBE shall perform all due diligence to identify Hazardous Materials within the site. DBE shall incorporate all remediation or abatement necessary to complete the project into the Contract Documents during the Design Phase, and include all necessary remediation or abatement work in the GMP proposal.

C. DBE hereby specifically agrees to indemnify, defend and hold City, its present and future directors, officers, employees, agents, representatives, successors and assigns harmless from and against any and all losses, liabilities, claims, demands, damages, c auses of action, fines, penalties, costs and expenses (including, but not limited to, all reasonable consulting, engineering, attorneys’ or other professional fees), that they may incur or suffer by reason of:
(a) the release by City or DBE of, a Hazardou s Material introduced onto the Project Site by DBE, its employees, subcontractors, agents, or other parties acting on behalf of DBE; (b) any enforcement or compliance proceeding commenced by or in the name of any governmental authority because of the presence on the Project Site of Hazardous Materials introduced onto the Project Site by DBE, its employees, subcontractors, agents, or other parties acting on behalf of DBE; and (c) any action reasonably necessary to abate, remediate or prevent a violation or threatened violation of any Hazardous Material laws by DBE.

Attachment 4 – General Conditions 12

4.3 Protection and Restoration of Existing Improvements and Reference Points.

A. DBE shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of City. DBE shall report to City’s Representa tive whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel.

ARTICLE 5 -BONDS AND INSURANCE

5.1 Minimum Requirements. DBE shall, at its expense, procure and maintain for the duration of the Contract, and for 10 years thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the DBE, or his agents, representatives, employees, material suppliers, or subcontractors of every tier. DBE shall also require all of its subconsultants and subcontractors to procure and maintain the same insurance for the duration of the Contract and verify the subconsultants’ and subcontractors’ compliance. DBE’s and subconsultants’ and subcontractors’ insurance shall meet at least the minimum levels of coverage set forth in this Article:

A. Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto) or if DBE has no owned autos, non-owned, leased or hired autos Code 8 (hired) and Code 9 (non-owned); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; (4) Installation Floater/Builder’s Risk:
“All Risk All Perils” form; and (5) Professional Liability/Errors and Omissions. The policies shall not contain any exclusion contra ry to the Contract, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability or (2) cross liability for claims or suits by one insured against another.

B. Minimum Limits of Insurance. DBE shall maintain limits no less than:

1. For Commercial General Liability, DBE shall have limits of at least the amount that corresponds to the GMP in the following table:

GMP Amount of Liability Insurance
(per occurrence)
Up to $2 million $2 million
$2 million - $5 million $3 million
$5 million - $10 million $5 million
$10 million- $20 million $10 million
Over $20 million $15 million

Attachment 4 – General Conditions 13

If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 25 03, either the general aggregate limit shall apply separately to the Project or the general aggregate limit shall be twic e the required occurrence limit. Should any of the Work involve aircraft (fixed wing or helicopter) owned or operated by DBE, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required. Should any of the Work involve watercraft owned or operated by DBE, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required.

2. Automobile Liability: $1 million per accident for bodily injury and property damage.

3. Workers’ Compensation and Employer’s Liability:
a. Workers’ Compensation: statutory limits.
b. Employer’s Liability limits of $1 million per accident for bodily injury or disease. c. Should any of the Work be upon or contiguous to navigable bodies of water, DBE shall carry insurance covering its employees for benefits available under the Federal Longshoremen's and Harbor Worker's Act to the extent required by law;

4. Excess/Umbrella Liability Policy may be provided to insure the total limits required for Commercial General Liability and Automobile Liability and must apply to all primary coverage afforded, including but not limited to general liability, owned and non -owned automobiles, leased and hired cars.

5. Professional Liability/Errors and Omissions: $2,000,000 per claim.

C. Notices; Cancellation or Reduction of Coverage . At least fifteen (15) Days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with City. If such coverage is cancelled or materially reduced, DBE shall, within ten (10) Days after receipt of written notice of such cancellation or reduction of coverage, file with City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by DBE or City may withhold amounts sufficient to pay premium from DBE payments. In the alternative, City may suspend or terminate this Contract.

5.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or DBE shall provide endorsements on forms approved by City to add the following provisions to the insurance policies:

A. General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37 (including completed operations), or endorsements providing the exact same coverage, City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the Work or ongoing and completed operations performed by or on behalf of DBE, including materials , parts or equipment

Attachment 4 – General Conditions 14

furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of DBE’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City, before City’s own primary insurance or self -insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by City, its officials, officers, employees, a gents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of DBE’s insurance and shall not be called upon to contribute with it in any way.

B. Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by DBE or for which DBE is responsible; and (2) the insurance coverage shall be primary insurance as re spects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of DBE’s scheduled underlying coverage. Any insura nce or self -insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of DBE’s insurance and shall not be called upon to contribute with it in any way.

C. Workers’ Compensation and Employer’s Liability Coverage . The insurer shall agree, using WC 00 03 13 or the exact equivalent, to waive all rights of subrogation against City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions for losses paid under the terms of the insurance policy.

D. Professional Liability/Errors and Omissions. Professional Liability Insurance insuring the A/E, its officers, directors, stockholders, employees, agents, or partner, and all other persons for whose acts the A/E may be liable, against any and all liabilities arising out of or in connection with the negligent acts, errors or omissions of any of the foregoing in connection with the carrying out of their professional responsibilities described in this Contract. Professional Liability Insurance shall remain in full force and effect, and shall be so certified to City by the insurer, for a period of five (5) years after the completion of all of DBE’s services hereunder and City’s acceptance of the Project. All subconsultants shall have professional liability insurance with the same limits (additional requ irements for Professional Liability/Errors and Omissions Insurance written on a “claims made” basis are set forth below).

E. All Coverages. Each insurance policy required by this Agreement shall be endorsed to include the following provisions:

1. coverage shall not be suspended, voided, reduced or canceled except after thirty (30) Days (10 Days for nonpayment of premium) prior written notice by mail has been given to City and all additional insureds.

2. any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and any other additional insureds.

Attachment 4 – General Conditions 15

3. standard separation of insureds provisions.

4. no special limitations on the scope of protection afforded to City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions.

5. waiver of any right of subrogation of the insurer against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow DBE or others providing insurance in compliance with these specifications to waive their right of recovery prior to a loss. By signing this agreement, DBE hereby waives its own right of recovery against City or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subconsultants and subcontractors.

5.4 Builder’s Risk [“All Risk”]
A. It is DBE’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or dam age by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. City accepts no responsibility for the Work until the Work is formally accepted by City. DBE shall provide a certificate evidencing this coverage before commencing performance of the Work.

B. The named insureds shall be DBE, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and City, its elected officials, officers, employees, agents and authorized volunteers, as their interests may appear. DBE sha ll not be required to maintain property insurance for any portion of the Work following acceptance by City.

C. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub- limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to City to ensure adequacy and sublimit.

D. In addition, the policy shall meet the following requirements:

1. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract.

2. Coverage shall include all materials stored on site and in transit.

3. Coverage shall include DBE’s tools and equipment.

4. Insurance shall include boiler, machinery and material hoist coverage.

5. Agency shall be named loss payee.

Attachment 4 – General Conditions 16

5.5 Pollution Liability Insurance. Pollution Liability Insurance is required should any of the Project involve pollutants. Liability coverage shall include coverage for the environmental risk associated with the project and expenses related to such, including bodily injury, property damage, on and off site clean-up, transporting, carrying, or storing pollutants, coverage for non-owned disposal site in an amount not less than that set forth in the Special Conditions. Pollutants include, but are not limited to, asbestos, mold, microbial matt er, solid, liquid, gaseous or thermal irritants or contaminants, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.

5.6 Receipt and Application of Insurance Proceeds. Any insured loss under the policies of insurance required herein will be adjusted with City and made payable to City as fiduciary for the loss payees, as their interests may appear, subject to the requirements of any applicable mortgage clause and of the provisions herein. City shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement i s reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof, and the Project and the cost thereof covered by an appropriate Change Order. City as fiduciary shall have power to adjust and settle any loss wit h the insurers unless one of the parties in interest shall object in writing to City’s exercise of this power within fifteen (15) Days after the occurrence of loss. If such objection be made, City as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, City as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, City as fiduciary shall give bond for the proper performance of such duties.

5.7 Partial Utilization, Acknowledgement of Property Insurer. If City finds it necessary to occupy or use a portion or portions of the Project prior to Completion of all the Work, no such use or occupancy shall commence before the insurers providing the property insurance have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby.

The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy.

5.8 Deductibles and Self -Insurance Retentions. Any deductibles or self -insured retentions must be declared to and approved by City. DBE shall guarantee that, at the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions; or (2) DBE shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.

5.9 Claims Made Policies. Claims made policies are not acceptable other than for Professional Liability. In addition to the requirements above, for any claims made policy: The Retroactive Date must be shown and must be before the date of the Contract or the beginning of contract work; Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after City’s acceptance of the Work; and If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, DBE must purchase “extended reporting” coverage for a minimum of five (5) years after City’s acceptance of the Work.

5.10 Subcontractor Insurance Requirements. DBE shall not allow any Subcontractors to commence work on any subcontract relating to the Work until DBE has verified that all Subcontractors maintain insurance meeting all requirements under this Section and has provided evidence to City

Attachment 4 – General Conditions 17

of such insurance. For Commercial General Liability coverage Subcontractors shall provide coverage naming City, its officials, officers, employees, agents, and volunteers with a format at least as broad as CG 20 38 04 13. If requested by DBE, City may a pprove different scopes or minimum limits of insurance for particular Subcontractors. DBE shall confirm that City shall be named as additional insureds on all Subcontractors’ policies of Commercial General Liability Insurance and Commercial Automobile Ins urance. For Commercial General Liability, Subcontractors shall have limits of at least the amount that corresponds to their subcontract value in the following table:

Subcontract Value
Amount of Liability Insurance
(per occurrence)
Up to $2 million $2 million
$2 million - $5 million $3 million
$5 million - $10 million $5 million
$10 million- $20 million $10 million
Over $20 million $15 million

5.11 Not Used

5.12 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to Agency.

5.13 Verification of Coverage. DBE shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

5.14 Reservation of Rights. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

5.15 Performance Bond and Payment Bond.

A. DBE shall submit performance and payment bonds in accordance with Article 2 of these General Conditions. The obligations of the performance bond surety shall continue so long as any obligation of DBE remains. Nothing herein shall limit City’s rights or DBE ’s or surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

B. Should, in City’s sole opinion, any bond become insufficient or surety found to be unsatisfactory, DBE shall renew or replace the effected bond within 10 Days of receiving notice from City. In the event the surety or DBE intends to reduce or cancel any re quired bonds, at least thirty (30) Days prior written notice shall be given to City, and DBE shall post acceptable replacement bonds at least ten (10) Days prior to expiration of the original bonds. No further

Attachment 4 – General Conditions 18

payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Article are accepted by City.

C. To the extent, if any, that the GMP is increased in accordance with the Contract, DBE shall, upon request of City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to City. The bonds shall further provide that no change or alteration of the Contract (including, without limitation, an increase in the GMP, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to DBE will release the su rety. If DBE fails to furnish any required bond, City may terminate the Contract for cause.

ARTICLE 6 -DESIGN-BUILD ENTITY’S RESPONSIBILITIES

6.1 DBE Responsibility; Independent Contractor.

A. DBE shall be responsible to City for acts and omissions of DBE, their employees, Subcontractors, material and equipment suppliers, and their agents, employees, invitees, and other persons performing portions of Work on the Project under direct or indirect contract with DBE or any of its Subcontractors. City retains DBE on an independent contractor basis. DBE retains the right to perform similar or different services for others during the term of this Contract. DBE is not an employee, agent or representative of City.

6.2 Review of Contract Documents and Field Conditions by DBE; Single Point Responsibility of DBE.

A. In addition to the examination and reviews performed, and obligations assumed, incident to making the representations set forth in the Contract, DBE shall carefully study and compare each of the Contract Documents provided by City with the others and with i nformation furnished by City, and shall promptly report in writing to City’s Representative any errors, inconsistencies, or omissions in the Contract Documents provided by City or inconsistencies with Applicable Law observed by DBE. DBE shall be solely re sponsible for any errors, inconsistencies or omissions in the Contract Documents if DBE fails to perform such review and examination or fails to report such errors, inconsistencies or omissions to City in writing.

B. DBE is responsible for the design and construction of the Project and shall use the highest design and engineering standards of care applicable to projects, buildings or work of similar size, complexity, quality and scope in performing Work on the Project. DBE shall be solely responsible for any and all design errors including, but without limitation, errors, inconsistencies or omissions in the Construction Documents. DBE shall take field measurements, verify field conditions, and carefully compare with t he Contract Documents such field measurements, conditions, and other information known to DBE before commencing Work on the Project. Errors, inconsistencies, or omissions discovered at any time shall be promptly reported in writing to City’s Representative.

C. If DBE performs any design and/or construction activity which it knows, or should know, involves an error, inconsistency, or omission referred to in this Article, without notifying and obtaining the written consent of City’s Representative, DBE shall be re sponsible for the resultant losses, including, without limitation, the costs of correcting Defective Work.

Attachment 4 – General Conditions 19

6.3 Design, Supervision and Construction Procedures.

A. DBE shall supervise, coordinate, and direct all Work on the Project using DBE’s best skill and attention and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. DBE shall be solely responsi ble for, and have control over, the entire design effort, construction means, methods, techniques, sequences, procedures, and the coordination of all portions of Work on the Project, including, but without limitation, landscape and site work, utilities, and building systems.

B. DBE shall not be relieved of its obligation to perform all Work on the Project in accordance with the Contract Documents either by acts or omissions of City or City’s Representative in the administration of the Contract, or by tests, inspections, or approvals required, or performed, by persons or firms other than DBE.

C. DBE is required to deliver to City, if requested, any and all Design Materials including, but not limited to, calculations, preliminary drawings, construction drawings, shop drawings, electronic media data, tenant improvement documents, sketches, illustrat ions, specifications, descriptions, models, mock ups, and other information developed, prepared, furnished, or delivered in the prosecution of the Design Work.

6.4 Labor; Working Hours.

A. DBE shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. DBE shall at all times maintain good discipline and order at the Site. DBE will provide all labor needed to complete the Work within the Contract Times.

B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours, which are defined as hours between 7:00 a.m. and 3:30 p.m. any day Monday through Friday of any week except on Holidays and/or during Schedule Constraints defined in the Contract Documents. DBE will not permit the performance of Work on a Saturday, Sunday, a ny Holiday or during identified Schedule Constraints without City’s written consent given after prior written notice to City’s Representative. DBE shall be responsible for, and shall reimburse City for, all inspection costs outside regular working hours, including overtime.

6.5 Progress Meetings.

A. DBE shall schedule and hold regular on -Site progress meetings at least weekly and at other times as requested by City or as required by progress of the Work. DBE, City’s Representative, and all Subcontractors active on the Site shall attend each meeting. DBE may at its discretion request attendance by representatives of its Suppliers, manufacturers, and other Subcontractors.

DBE will arrange for keeping and distributing detailed minutes. The purpose of the meetings is to review the progress of the Work, m aintain coordination of efforts, discuss changes in scheduling, and resolve other problems which may develop. During each meeting, DBE shall present any issues which may impact its progress with a view to resolve these issues expeditiously. DBE shall provide updated logs of requests for information, change orders, submittals, allowance, contingency use and other information relevant to the progress of the Project.

Attachment 4 – General Conditions 20

6.6 Design Requirements.

A. Scope of Work

1. DBE shall furnish programming, architectural, landscape architectural, furniture and engineering services for the preparation of Construction Documents necessary to complete the Project in accordance with the requirements of the Contract Documents.

DBE sha ll furnish all labor, materials, equipment, services, and transportation necessary to complete the design and construction of the Project, including site work, interior finishes, structures, utilities, furniture and landscaping.

B. Intent of the Construction Documents

1. The intent of the Construction Documents is to provide the City with full, complete, and accurate Project documentation, giving such directions as will enable any competent mechanic or other builder to carry them out, resulting in a Project that is complete in all respects. The Construction Documents shall identify that all items necessary or reasonably required to produce a complete and operational Project shall be provided.

C. Codes

1. The Construction Documents and resulting construction shall comply with all laws, ordinances, rules and regulations of the State of California and the City of Chula Vista, including without limitation:
a. The California Building Standards Code (CBC), in Title 24 of the California Code of Regulations, as adopted and published by the California Building Standards Commission, as adopted and amended by City.
b. Compliance with the California Division of the State Architect (DSA), Access Compliance Unit’s accessibility regulations in the California Code of Regulations Title 24 (Parts 2 and 3); 2010 federal ADA standards for accessible design; standards for state and local government facilities – Title II (where more restrictive than CBC).
c. Other agencies (as may apply) elevators and escalators, Division of Occupational Safety & Health (DOSH), county health department (food and aquatics). d. Compliance with fire and life safety regulations, including the most recent editions of NFPA 101, Life Safety Code and NFPA Fire Protection Handbook.

2. Codes and specifications incorporated by reference shall be those of the latest edition at the time of plan submission, unless otherwise specified.

D. Plans and Specifications – Miscellaneous Requirements.

1. The Plans and Specifications shall identify the design codes, standards, and requirements used for the development of the Plans, including the edition and applicable sections.

Attachment 4 – General Conditions 21

2. The Construction Documents shall include a quality control program and an implementation plan to ensure that the completed Project complies with the approved Project criteria. The A/E shall specify within the Construction Documents all tests and inspections that are required by the building code and those that are appropriate to achieve compliance with the Contract. The DBE shall retain the A/E to provide in a professional capacity, timely construction administration services. These services shall include s hop drawing review, response to requests for information regarding the Construction Documents, and periodic visits to the Site to observe the quality of the Work.

3. The final, approved- for-construction set of Construction Documents shall be signed and stamped by the respective California-licensed A/Es who prepared the documents, certifying their compliance with codes, standards, practices and regulations. The A/E shall retain full responsibility for the design.

E. Plan Check Review.

1. The DBE shall submit to the City’s Development Services Department (AHJ) the completed Plans and Specifications and the structural calculations, energy calculations and, soils report, and other information required by the Building Official for code review, and shall coordinate, monitor and secure all required review approvals. When submitting these documents, DBE must allow sufficient time to conduct the reviews and to correct identified deficiencies before construction. The minimum initial review time for the completed design documents is four (4) weeks, and 2 (two) weeks for each recheck review. These durations may vary. The DBE shall allocate appropriate additional time for resolution of back check review comments for all reviews.

2. The DBE is encouraged to seek guidance and clarification of Project -specific code compliance issues from the AHJ and/or assigned plan review firm.

3. The DBE shall incorporate changes and/or AHJ code determinations, if any, resulting from plan check reviews without additional cost to the City. Such final drawings and specifications shall be resubmitted to the AHJ for approval.

F. Plan Approval by AHJ.

1. Plans for construction require the express written approval of the AHJ, who will require resolution of issues from building code, accessibility, City Approving Agency, and Seismic Peer Review and other agency reviews as may apply, as a prerequisite to the approval of documents for construction.

2. The DBE shall address all review comments and appropriately reserve Project Schedule time for their completion. Delays in meeting the schedule are the responsibility of the DBE, not the City.

3. Changes, alterations, substitutions, or modifications made to previously stamped and approved Plans during construction that affect code compliance must be approved in writing by the AHJ.

4. DBE shall incorporate without increase to the GMP any changes, alterations, substitutions, or modifications made to the approved Plans that are required during

Attachment 4 – General Conditions 22

construction to satisfy the AHJ or code requirements, including those not previously identified in the approved Plans, or to properly implement the approved Plans, or where observed workmanship and/or discovered conditions so require.

5. As a prerequisite to the City filing the Notice of Completion for the Project, the AHJ will issue a Certificate of Occupancy when satisfied that the approved Plans have been implemented and that all inspection and technical code and standards compliance issues identified during construction have been satisfactorily resolved.

G. City Review of Design Submittals

1. The DBE shall submit to the City for Review, Design and Construction Documents necessary to construct the Project, including drawings and detailed Specifications for Site layout, utilities, landscaping, and cost estimates. It is required that these Documents be prepared under the supervision of California licensed architects and engineers and shall be signed or sealed by the architects (and respective engineers), responsible for the preparation thereof.

2. During the course of the development of the Construction Documents, at the design development phases identified in the Contract (i.e. Schematic Design, 50% Construction Documents, etc.), the City will review the Documents and respond with desired corrections/adjustments questions.

3. The DBE shall alert the City to any comments that may result in significant extra costs not previously identified or estimated, before proceeding with design revisions.

4. The DBE shall promptly make corrections and agreed scope revisions (if any) to the Construction Documents and resubmit them to the City for approval. Such review does not constitute approval or acceptance of variations from the Design- Build Contract Documents, as modified and detailed in the Technical Proposal, unless such variations specifically have been identified with special emphasis in writing by the DBE and specifically have been approved in writing by the City.

5. The DBE shall submit four (4) copies to the City of the final Construction Documents approved by the AHJ, including drawings and detailed Specifications for Site layout, utilities, and landscaping and all permits.

6.7 CPM Progress Schedule and Recovery Schedule.

A. DBE shall adhere to the Project Schedule, which shall be a CPM progress schedule, as it may be adjusted from time to time as provided below:

1. When accepted by the City and incorporated in the GMP Contract Change order, the schedule submitted by the DBE as part of the GMP proposal shall become the baseline schedule upon which subsequent revisions are made.

2. DBE shall submit a monthly schedule update, together with its Applications for Payment, containing a narrative of any changes and the status to-date.

3. DBE shall submit to City’s Representative for acceptance proposed adjustments in the Project Schedule that will not result in changing the Guaranteed Completion Date.

Attachment 4 – General Conditions 23

Such adjustments will comply with any provisions of the General Requirements applicable thereto.

4. Proposed adjustments in the Project Schedule that will change the Guaranteed Completion Date may only be made by a Change Order.

5. Should any of the following conditions exist, City may require DBE to prepare, at no extra cost to City, a plan of action and a recovery schedule for completing the Work and achieving all contractual milestones within the Guaranteed Completion Date:
a. DBE's monthly progress report indicates delays that are, in the opinion of City, of sufficient magnitude that City questions DBE's ability to timely complete the Work;
b. The Project Schedule shows DBE to be thirty (30) or more Days behind the critical path at any time during construction;
c. DBE desires to make changes in the logic or the planned duration of future activities of the Project Schedule which, in the opinion of City, are major in nature. d. The recovery schedule shall include proposed revisions to the Project Schedule, demonstrating how DBE intends to achieve all contractual milestones including contract completion within the Guaranteed Completion Date. The submittal shall include a narrative describing the actions planned by DBE to recover the schedule. e. DBE shall submit the recovery schedule within seven (7) Days of City’s request:
(i) If DBE asserts that City is responsible for the delay, failure to submit the recovery schedule within seven (7) Days of City’s request will be considered a concurrent delay event attributable to DBE, and DBE shall only be entitled to non-compensable adjustments to the Guaranteed Completion Date. (ii) If DBE is responsible for the delay, this provision will not limit or affect DBE's liability and failure to submit the recovery schedule with seven (7) Days of City’s request may result in City withholding progress payments or other amounts due under the Contract Documents.
f. DBE is responsible for all costs associated with the preparation and execution of the recovery schedule, including any necessary recovery actions, which may include, but are not limited to, assignment of additional labor, and/or equipment, shift or overtim e work, expediting of submittals or deliveries, overlapping of activities or sequencing changes to increase activity concurrence. g. Regardless of whether City directs DBE to prepare a recovery schedule pursuant to this Article, DBE shall promptly undertake appropriate action at no additional cost to City to recover the schedule whenever the current Project Schedule shows that DBE will not achieve a milestone and/or complete the Work within the Guaranteed Completion Date.

6. If requested by City, DBE shall submit Project Schedules and/or recovery schedules in native format.

Attachment 4 – General Conditions 24

B. Failure of City’s Representative to discover errors or omissions in schedules that it has reviewed, or to inform DBE that DBE, Subcontractors, or others are behind schedule, or to direct or enforce procedures for complying with the Project Schedule shall n ot relieve DBE from its sole responsibility to perform and complete all Work on the Project within the Guaranteed Completion Date and shall not be a cause for an adjustment of the Guaranteed Completion Date or the GMP.

6.8 Materials.

A. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All materials furnished by DBE shall be of the most suitable grade for the purpose intended considering strength, ductility, durability, and best industry practice.

B. All special warranties and guarantees required by the Contract Documents shall expressly run to the benefit of City. If required by City’s Representative, DBE shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment.

6.9 Submittals.

A. Industry Standard Submittals.

1. DBE will identify in the Construction Documents all industry standard submittals for all materials, systems, and equipment incorporated into the Work.

B. Schedule of Submittals.

1. DBE will prepare and deliver a Schedule of Submittals to City’s Representative. The City’s Representative will identify which submittals require City approval. Submittal review times shall be fully integrated with the CPM Progress Schedule and each Submittal required by the Construction Documents.. Each Submittal which requires City review must first be approved by the A\E. The DBE’s Schedule shall allow fifteen (15) calendar Days for City review of submittals. DBE is responsible for any schedule delays resulting from the Submittal process.

2. Where a Submittal, Shop Drawing or Sample requires City, any related Work performed prior to City’s Representative’s review and approval will be at the DBE’s risk and any rework will be at the sole expense and responsibility of DBE.

C. Submittal Procedures.

1. All Submittals, Shop Drawings and Samples required by the Contract Documents shall be reviewed and approved by the A/E. DBE shall establish an organized, logical, and clear system for organization of submittals via an approved electronic file system or construction management software. DBE shall make all submittals available to the City Representative at all times via access to the DBE’s electronic file system or construction management software.

2. For Submittals, Shop Drawings and Samples requiring City approval, DBE will follow the following procedures:

Attachment 4 – General Conditions 25

a. Transmit Submittals electronically in PDF format.
b. Transmittals will be sequentially numbered. DBE to mark revised Submittals with original number and sequential alphabetic suffix. DBE to maintain a log of all Submittals.
c. Each Submittal will identify the Project, DBE, Subcontractor and supplier, pertinent Construction Document and detail number, and specification section number appropriate to the Submittal.
d. A/E must sign each Submittal, certifying that it has reviewed and approved the Submittal, verified products required, field dimensions, adjacent construction work, and that coordination of information is according to requirements of the Project and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completed Work. f. When a Submittal is revised for resubmission, DBE shall promptly address City comments and resubmit. DBE shall identify changes made since previous submission.
g. City’s review of Submittals shall not relieve DBE from responsibility for deviations from the Contract Documents unless DBE has, in writing, called City’s attention to such deviations at time of submission and City’s has taken no exception to the deviation. City’s review of Submittals shall not relieve DBE from responsibility for errors in the Submittals.
h. Incomplete Submittals will not be reviewed by City’s Representative. Delays resulting from incomplete submittals are not the responsibility of City’s Representative.
i. DBE shall not be entitled to any extension of the Guaranteed Completion Date as a result of the Submittal process unless the City exceeds review timelines established herein.

6.10 Shop Drawing and Sample Submittal Procedures.

A. For each Shop Drawing or Sample, DBE and its appropriate Design Professional shall:

1. Review and coordinate each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents;

2. Determine and verify all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;

3. Determine and verify the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and

Attachment 4 – General Conditions 26

4. Determine and Verify all information relative to DBE’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

B. With each Submittal requiring City review, DBE shall give City’s Representative specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communic ation attached to the Shop Drawings or Sample submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to City’s Representative for review and approval of each such variation.

C. Shop Drawings.

1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show the services, materials, and equipment DBE proposes to provide and to enable review of the information Representative for assessing conformance with information given and design concept expressed in Contract Documents. When required by individual Specification Sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing components shown on Shop Drawings.

Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by authorities having jurisdiction. DBE shall make revisions and provide additional information when required by authorities having jurisdiction.

D. Samples.

1. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enable review of the submittal for assessing conformance with information given and design concept expressed in Contract Documents. Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.

E. City’s Representative’s Review.

1. For Submittals, Shop Drawings and Samples which requires City review, City’s Representative’s review and acceptance will be only for City preference or conformance with City standards. DBE’s A/E is responsible to determine if the items covered by the Subm ittals will, after installation or incorporation in the Project, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.

2. City’s Representative’s review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of design or construction is a matter of City preference or conformance with City standards) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.

Attachment 4 – General Conditions 27

3. City’s Representative’s review and acceptance shall not relieve DBE from responsibility for any variation from the requirements of the Contract Documents unless City’s Representative has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Submittal.

F. DBE shall make corrections required by City’s Representative and shall resubmit Shop Drawings and Product Data, and submit, as required, new Samples for review and approval.

DBE shall direct specific attention in writing to revisions other than the correct ions called for by City’s Representative on previous Submittals.

6.11 Engineering and Surveying.

A. Field Engineering.

DBE shall retain and pay expenses of a civil engineer or land surveyor to establish on the Project site the required reference points and benchmarks, establish building lines and elevations, check for building framing, plumbness, and establish on building frame the required basic grid lines. The engineer or land surveyor shall be properly licensed in the State of California. DBE shall locate and protect control points prior to starting Work on the Project site and preserve permanent reference points during construction, and shall require the engineer or surveyor to replace control points which become lost or destroyed.

B. Geotechnical and Survey.

1. Agency may provide a geotechnical report to DBE that shall not be considered a part of the Contract Documents and shall be informational only and may not be relied upon by DBE to form its basis of design. DBE shall be responsible for obtaining its own geotechnical report which includes supporting data, findings and recommendations; and also with a legal description and a project survey, as necessary, which shall become a part of the Contract Documents.

2. DBE shall verify the location and depth (elevation) of all existing utilities and services before performing any excavation work.

3. Any additional tests, borings, etc. necessary to support the Construction Documents shall be the responsibility of DBE.

6.12 Dust Control.

A. DBE, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminous treatment or similar methods, will be permitted.

6.13 Air Pollution.

A. To the extent applicable, DBE must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coa st Air Quality Management City (SCAQMD) and/or California Air Resources Board (CARB). Although the

Attachment 4 – General Conditions 28

SCAQMD and CARB limits and requirements are more broad, DBE shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel -powered engine. DBE shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by DBE, its sub- consultants, or others for whom DBE is responsible under its i ndemnity obligations provided for in this Agreement.

6.14 Patent Fees and Royalties.

A. DBE shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others.

6.15 Permits and Licenses.

A. DBE shall obtain and pay for all other permits and licenses required for the Work, including excavation permit and permits for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of publi c agencies other than the City. All City permit fees will be waived.

B. DBE shall arrange and pay for all special inspection, geotechnical testing and reporting and all other testing or inspection of the Work related to permits and licenses, including certifications, required by the Contract Documents, AHJ or other governing authorities.

C. DBE shall submit all licenses, permits, certificates of inspection and required approvals to AHJ or other governing authorities as require to comply with permits or Contract Documents..

6.16 Applicable Laws.

A. DBE shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work. Except where otherwise expressly required by Applicable Laws, neither City nor City’s Representative shall be responsible for monito ring DBE’s compliance with any Applicable Laws.

6.17 Project Labor Agreement
A. This contract is a “Covered Contract” on a “Covered Project” subject to the PROJECT LABOR AGREEMENT (“PLA”) entered into by and between the City of Chula Vista, a chartered municipal corporation (the “City”), the San Diego County Building and Construction Trades Council, AFL -CIO (the “Trades Council”), and the signatory Craft Unions (the “Union(s)”) (each a “Party”, together, the “Parties”), effective the 15th day of April, 2025, attached to this Contract as Attachment 7 . DBE shall be considered the “Contractor” and shall comply with all obligations and responsibilities of the “Contractor” in the PLA . The terms in quotations in the foregoing paragraph are defined in ARTICLE 1 DEFINITIONS of this Project Labor Agreement.

6.18 Labor Laws and DBE’s Obligations.

A. Hours of Work.

Attachment 4 – General Conditions 29

1. DBE and Subcontractors shall furnish sufficient forces to ensure the prosecution of the Work on the Project in accordance with the Construction Schedule and in such a manner to allow for the full and adequate completion of the Project within the Guaranteed Completion Date.

2. Work on the Project shall be performed during regular working hours, except that in the event of an emergency or when required to complete the Work on the Project in accordance with job progress, Work may be performed outside of regular working hours with advance written notice to City. Permissible working hours shall be between 7:00 a.m. to 3:30 p.m. and shall not be changed except with consent of Agency.

3. Eight (8) hours of work shall constitute a legal day’s work. DBE and each Subcontractor shall forfeit, as penalty to City, twenty-five dollars ($25) for each worker employed in the execution of Work on the Project by DBE or any Subcontractor for each day during which such worker is required or permitted to work more than eight (8) hours in any one day and forty (40) hours in any week in violation of the provisions of the Labor Code, and in particular, Section 1810 to Section 1815, except as provided for overtime pay in Labor Code Section 1815.

4. If the work done after hours is required by the Contract to be done outside DBE’s regular working hours, the costs of any inspections, if required to be done outside normal working hours, shall be borne by City. If City allows DBE to do Work outside regul ar working hours for DBE’s own convenience, the costs of any inspections required outside regular working hours shall be invoiced to DBE by City and deducted from the next progress payment. If DBE elects to perform Work outside the Inspector’s regular wor king hours, costs of any inspections required outside regular working hours shall be invoiced to DBE by City and deducted from the next progress payment.

B. Wage Rates, Travel, and Subsistence.

1. DBE is aware of the requirements of Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since the Work on the Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, DBE agrees to fully comply with such Prevailing Wage Laws. City has obtained the prevailing wage rates from the Director of the Department of Industrial Relations, State of California.

Copies of the prevailing wage rates are on file at City’s office and shall be made available to any interested party on request. DBE shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to perform the Project available to interested parties upon request, and shall post copies at DBE’s principal place of business and at the Project site. DBE shall defend, indemnify and hold City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.

2. Pursuant to Labor Code Section 1775, DBE is hereby advised that in the event that DBE fails to pay prevailing wages, DBE will be held liable for penalties and for shortfalls in wages and such amounts may be withheld from progress payments. DBE and each Subcontractor shall forfeit as a penalty to City not more than two hundred dollars ($200)

Attachment 4 – General Conditions 30

for each Day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Labor Code. The difference between such stipulated prevailing wage rate and the amount paid to each worker for each Day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by DBE.

3. DBE shall post, at appropriate conspicuous points on the Project site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.

C. Labor Compliance/Payroll Records.

1. Pursuant to Labor Code Section 1776, DBE and each Subcontractor shall maintain weekly certified payroll records showing the name, address, social security number, work classification, straight time and overtime hours paid each day and week, and the actual per diem wages paid to each journeyman, a pprentice, worker or other employee employed in connection with the Project. However, any and all certified payroll or other labor compliance documents submitted to the City shall have social security numbers redacted to protect worker privacy . DBE shall c ertify under penalty of perjury that records maintained and submitted by DBE are true and accurate. DBE shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.

2. In accordance with Labor Code section 1771.4, DBE and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR. This may include ele ctronic submission. DBE shall ensure full compliance with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement and all other applicable labor law. Any and all certified payroll or other labor compliance doc uments submitted to the City shall have social security numbers redacted to protect worker privacy.

3. Any stop orders issued by the DIR against DBE or any Subcontractor that affect DBE’s performance of Work, including any delay, shall be DBE’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered DBE -caused delay subject to any applicable liquidated damages.

4. The payroll records described herein shall be certified and submitted by DBE to City at City’s request. DBE shall also provide the following:
a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.

5. In the event of noncompliance with the requirements of this Article, DBE shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying any item or actions necessary to ensure compliance with this Article. Should noncomplia nce still be evident after such ten (10) day period, DBE shall, as a penalty to City, forfeit One Hundred Dollars ($100.00) for each day, or portion thereof, for each worker until strict

Attachment 4 – General Conditions 31

compliance is effectuated. Upon the request of DIR, such penalties shall be withheld from contract payments.

6. It shall be DBE’s sole responsibility to evaluate and include the cost of complying with all labor compliance requirements under this Contract and Applicable Law in its GMP.

7. DBE shall include provisions of this Section in all Subcontracts and require Subcontractors to comply with these provisions at no additional cost to City.

D. Apprentices.

1. DBE’s attention is directed to the provisions of Sections 1777.5, 1777.6, and 1777.7 of the Labor Code concerning employment of apprentices by DBE or any Subcontractor. DBE shall obtain a certificate of apprenticeship before employing any apprentice pursuant to Sections 1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from DIR, the Administrator of Apprenticeships, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.

E. Nondiscrimination.

1. Pursuant to Labor Code section 1735 and other applicable provisions of law, DBE and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap on this Work. DBE will take affirmative action to insure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap.

F. Workers’ Compensation.

1. Pursuant to Labor Code section 1860, DBE shall secure the payment of workers’ compensation to its employees in accordance with the provisions of Labor Code section 3700. By its signature hereunder, DBE certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self -insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work.

G. Public Works Registration.

1. Pursuant to Labor Code sections 1725.5 and 1771.1, DBE and all Subcontractors must be registered with the Department of Industrial Relations prior to the execution of a contract to perform public works. By entering into this Contract, DBE represents that it is aware of the registration requirement and is currently registered with the DIR. DBE shall maintain a current registration for the duration of the Project. DBE shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any Subcontract and ensure that all Subcontractors are registered at the time the subcontract is entered into and maintain registration for the duration of the Project.

Attachment 4 – General Conditions 32

6.19 Debarment.

A. Contractors or Subcontractors may not perform work on a public works project with a Subcontractor who is ineligible to perform work on a public project pursuant to Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into be tween a contractor 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 Subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to City. DBE shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

6.20 Taxes.

A. DBE shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Law of the place of the Project which are applicable during the performance of the Project.

6.21 Use of Site and Other Areas.

A. Limitation on Use of Site and Other Areas . DBE shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws, and shall not unreasonably encumber the Site and other areas with construction equi pment or other materials or equipment. DBE shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.

B. Removal of Debris. During the progress of the Work DBE shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to Applicable Laws.

C. Cleaning. Prior to Completion of the Work, DBE shall clean the Site and the Work and make it ready for utilization by City. At the completion of the Work DBE shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus mater ials and shall restore to original condition all property not designated for alteration by the Contract Documents.

6.22 Protection of Work and Property.

A. DBE shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and DBE shall repair any damage thereto caused by the Work operations. DBE shall:

1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.

2. Provide substantial barricades around any shrubs or trees indicated to be preserved.

3. Deliver materials to the Site over a route designated by City.

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4. Confine DBE’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City. DBE shall not unreasonably encumber the Site with its materials.

5. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to City, at no cost to Agency.

6. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to Agency.

7. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.

8. At the completion of work each day, leave the Work and the Site in a clean, safe condition.

9. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with the City’s written approval.

Any request for approval to reduce or restrict access to residences and busine ss must be submitted to City at least seven (7) Days in advance, and City may issue or withhold approval in its sole discretion.

B. These precautionary measures will apply continuously and not be limited to normal working hours. Should damage to persons or property occur as a result of the Work, DBE shall promptly notify City, in writing. DBE shall be responsible for proper investiga tion, documentation, including video or photography, to adequately memorialize and make a record of what transpired. City shall be entitled to inspect and copy any such documentation, video, or photographs. DBE shall maintain all investigation documentat ion including video and/or photographs for a minimum of four (4) years following completion of the Project.

6.23 Utility Usage.

A. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by DBE. DBE shall provide necessary temporary distribution systems, including meters, if necessary, from distribu tion points to points on the Work where the utility is needed. Upon completion of the Work, DBE shall remove all temporary distribution systems. All permanent meters installed shall be listed in DBE’s name until the Work is accepted. If Work is to be perfo rmed in existing City’s facilities, DBE may, to the extent authorized by City in writing, use City’s existing utilities. If DBE uses City utilities, it shall compensate City for utilities used.

6.24 Record Drawings.

A. DBE shall maintain in a safe place at the Site one record copy of the Contract Documents and written interpretations and clarifications in good order and annotated to show changes made during construction. On these, it shall mark all Project conditions, lo cations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried or concealed construction and utility features

Attachment 4 – General Conditions 34

which are revealed during the course of construction. Said record drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. These master record drawings of the as- built conditions, including all revisions made necessary by Addenda and Change Orders shall be maintained up- to-date during the progress of the Project. Red ink shall be used for alterations and notes. Notes shall identify relevant Change Orders by number and date.

B. Record drawings shall be accessible to City’s Representative at all times during the construction period. Upon Completion of the Project and as a condition of final acceptance, DBE shall finalize and deliver a complete set of record drawings to City’s Repr esentative, together with all Submittals with review comments. The information submitted by DBE will be assumed to be correct, and DBE shall be responsible for, and liable to City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the record drawings.

6.25 Safety and Protection.

A. DBE shall be solely responsible for all safety precautions and programs in connection with the Work.

6.26 Safety Representative.

A. DBE shall designate a qualified and experienced safety representative at the Project site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. DBE shall provide City’ s Representative the name and contract information of the safety representative in writing. DBE shall provide City’s Representative with the Safety Representative’s qualifications upon request.

6.27 Hazard Communication Programs.

A. DBE shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Project site in accordance with Applicable Laws.

6.28 Emergencies.

A. In an emergency affecting safety of life or of Work or of adjoining property, DBE, without special instruction or authorization from City, shall act to prevent such threatened loss or injury; and DBE shall so act, without appeal, if directed or instructed by City. Any compensation claimed by DBE on account of emergency work shall be determined in accordance with the Contract Documents.

6.29 Guarantee.

A. DBE unconditionally guarantees all Work on the Project will be completed in accordance with the requirements of the Contract Documents, and will remain free of defects in workmanship and materials for a period of one (1) year from the date of Substantial or Final Completion (whichever is earlier), unless a longer guarantee period is specifically called for in the Contract Documents. DBE shall repair or replace any and all Work, together with any adjacent work that may have been damaged or displaced, which was not in accordance with the requirements of the Contract Documents, or that may be defective in its workmanship or material within the

Attachment 4 – General Conditions 35

guarantee period specified in the Contract Documents, without any expense whatsoever to City; ordinary wear and tear and abuse excepted.

B. DBE further agrees, within fourteen (14) Days, or as such shorter period as may be designated for emergency repairs, after being notified in writing by City, of any Work not in accordance with the requirements of the Contract Documents or any defects in th e Work on the Project, that DBE shall commence and execute, with due diligence, all Work necessary to fulfill the terms of the guarantee. If City finds that DBE fails to perform any of the Work under the guarantee, City may elect to have the Work complete d at DBE’s expense and DBE will pay costs of the Work upon demand. City will be entitled to all costs, including reasonable attorneys’ fees and consultants’ expenses necessarily incurred upon DBE’s refusal to pay the above costs.

C. Where Defective Work (or damage to other Work resulting therefrom) has been corrected or removed and replaced, the Warranty period hereunder with respect to such Work shall be extended for an additional period of one (1) year after such correction or remov al and replacement has been satisfactorily completed.

D. DBE’s obligations under this Article are in addition to any other obligation or warranty and do not limit City’s rights and remedies pursuant to California Code of Civil Procedure sections 337.10 and 337.15. or any other Applicable Law.

E. Notwithstanding the foregoing provisions, in the event of an emergency constituting an immediate hazard to health or safety of the public, City employees, property, or licensees, City may undertake, at DBE’s expense and without prior notice, all Work necessary to correct such condition(s) when it is caused by Defective Work.

6.30 Warranty.

A. DBE warrants to City that any and all materials, equipment and furnishings incorporated in the Project will be of good quality and new unless otherwise required or permitted by the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The foregoing warranty excludes improper operation, or normal wear and tear under normal usage under the control of City.

Such warranty shall exclude warranties relating to desi gn, warranty of fitness, and any other express or implied warranties other than as set forth herein or in the Contract Documents; provided, however, that the foregoing shall not impair the rights of City to maintain an action for breach of contract against DBE. Nothing contained in these Contract Documents pertaining to warranty or guarantee shall be construed as limiting any other rights City may have at law, including rights for latent defects under Code of Civil Procedure Section 337.15.

B. With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for Work performed and Materials furnished under this Contract, the Contractor shall:

1. Specify, in the Contract Documents and obtain for City, all warranties that would be given in normal commercial practice and as requested by the City.

2. Deliver to the City, with the 90% construction documents, a complete schedule of warranties for parts of the work for which warranties are specified. The schedule shall

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include information of the warranty coverage and duration. The City reserves the right to require additional warrantees or increase warranty scopes or durations.

3. Require all warranties to be executed, in writing, for the benefit of the City;

4. Deliver all warranty documents to the City prior to final completion or at such earlier time as required by the City’s Representative.

6.31 Indemnification.

A. To the fullest extent allowed by law (including without limitation Civil Code Sections 2782 and 2782.8), DBE shall defend (with counsel of City’s choosing), indemnify and hold City, its officials, officers, agents, employees, and representatives free and h armless from and against any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, regardless of whether the allegations are false, fraud ulent, or groundless, arising out of, related to, or in connection with any acts, omissions or willful misconduct of DBE, its officials, officers, employees, agents, consultants, contractors, and Subcontractors arising out of or in connection with the performance of the Work or this Contract, including claims made by Subcontractors for nonpayment, and including without limitation the payment of all attorney’s fees and other related costs and expenses except to the extent caused by the sole or active negligence or willful misconduct of City. DBE shall defend, at DBE’s own cost, expense and risk, with counsel of City’s choosing, any and all such suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its officia ls, officers, agents, employees and representatives. DBE shall pay and satisfy any judgment, award or decree that may be rendered against City, its officials, officers, agents, employees and representatives, in any such suit, action or other legal proceeding. DBE shall reimburse City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. DBE agrees to pay, or reimburse City and City’s Representative, for regulatory agency or court imposed fees, fines, or penalties imposed on City and City’s Representative arising from DBE’s failure to complete the Project in a timely manner and/or in accordance with the Contract Documents and any applicable permits or Applicable Laws. DBE’s responsibility and obligation to pay, or reimburse City and City’s Representative, for these fees, fines, or penalties shall be in addition to the assessment of liquidated damages for late co mpletion of the Project. This indemnity provision shall apply to all liability, as provided for above, regardless of whether any insurance policies are applicable. Insurance policy limits do not act as a limitation upon the amount of the indemnification to be provided by DBE.

B. If DBE’s obligation to defend, indemnify, and/or hold harmless arises out of DBE’s performance as a “design professional” (as that term is defined under Civil Code Section 2782.8), then, and only to the extent required under Civil Code Section 2782.8, which is fully incorporated herein, DBE’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of DBE, and, upon DBE obtaining a final adjudication by a court of competent jurisdiction, DBE’s liability for such claim, including the cost to defend, shall not exceed DBE’s proportionate percentage of fault.

C. In claims against any person or entity indemnified under this Article that are made by an employee of DBE or any Subcontractor, a person indirectly employed by DBE or any

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Subcontractor, or anyone for whose acts DBE or any Subcontractor may be liable, the indemnification obligation under this Article shall not be limited by any limitation on amount or type of damages, compensation, or benefits payable by or for DBE or any Su bcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts or any other insurance limitations.

D. In the event DBE and one or more than one other party is connected with an accident or occurrence covered by this indemnification, then DBE shall be jointly and severally responsible to each of the indemnitees for indemnification, and the ultimate responsi bility among the indemnifying parties for the loss and expense of any such indemnification shall be resolved without jeopardy to any indemnitee listed in this Article.

E. The provisions of this Article shall survive the termination of this Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole or part of the Work shall waive or release any of the provisions of this Article.

6.32 Superintendent.

A. DBE shall employ a competent Superintendent satisfactory to City who shall be in attendance at the Project site at all times during the performance of the Construction Work. Superintendent shall represent DBE and communications given to, and received from, Superintendent shall be binding on DBE. Superintendent must be able to proficiently speak, read and write in English.

Failure to maintain a Superintendent on the Project site at all times Work on the Project is in progress shall be considered a material breach of this Contract, entitling City to terminate the Contract or, alternatively, issue a Suspension Order until the Superintendent is on the Project site. If, by virtue of issuance of said Suspension Order, DBE fails to complete the Contract by the Guaranteed Completion Date, DBE will be assessed Liquidated Damages in accordance with the Contract.

6.33 Compliance With State Storm Water Permit for Construction.

A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during the Work. DBE hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Proposal accordingly, and assumes any and all risks and liabilities arising therefrom.

B. DBE shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitat ion, all applicable provisions of City’s ordinances regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California Regional Water Quality Control Boards (San Diego Region) Order No. R9- 2009-0002, Order No. R9- 2013-0001 as amended by Order Nos. R9-2015-0001 and R9- 2015-0100, and State Water Resources Control Board Order No. 2010-0014-DWQ, Order No. 2009-0009-DWQ, and Order No. 2012-0006-DWQ, and any amendment or renewal thereof.

C. DBE shall be required to comply with all conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Stormwater Runoff Associated with Construction Activity

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("Permit") for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale. DBE shall be responsible for filing the Notice of Intent and for obtaining the Permit. If applicable, DBE shall be solely responsible for preparing and implementing a Stormwater Pollution Prevention Plan (“SWPPP”) prior to initiating work on the Project. It shall be DBE's responsibility to evaluate the cost of procuring the Permit and preparing the SWPPP as well as complying with the SWPPP and any necessary revision to the SWPPP to address storm water impacts. DBE shall comply with all requirements of the State Water Resources Control Board. DBE shall include all costs of compliance with specified requirements in the Price. For those Sites where construction activity results in the disturbance of less than one acre of total land area and/or do not need coverage under the Permit, DBE shall be responsible for preparing and implementing an Erosion and Sediment Control Plan in accordance with California Regional Water Quality Control Board Order No. R9- 2013-0001 as amended by Order Nos. R9- 2015-0001 and R9- 2015-0100 and any amendment or renewal thereof.

D. DBE shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, monitoring and reporting requirements as required by the Permit. DBE shall provide copies of all reports and monitoring information to City’s Representative. DBE shall comply with the lawful requirements of any applicable municipality, the County, drainage authority, and other local agencies regarding discharges of storm water to separate storm drain system o r other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

E. Failure to comply with laws, regulations, and ordinances listed in this Article is a violation of federal and state law. Notwithstanding any other indemnity contained in this Contract, DBE agrees to indemnify and hold harmless City, its officials, officer s, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Project, except for liability resulting from the sole established negligence, willful misconduct or active negligence of City, its officials, officers, agents, employees or authorized volunteers. City reserves the right to defend any enforcement action or civil action brought against City for DBE’s failure to comply with any applicable water quality law, regulation, or policy. DBE hereby agrees to be bound by, and to reimburse City for the costs associated with, any enforcement action and/or settlement reached between City and any relevant enforcement entity.

6.34 Progress Reports.

A. The Design -Build Entity shall prepare and submit to City, during both the Construction Documents Phase and the Construction Phase, the following reports: Such are 3 week lookahead (weekly); PCO log (weekly); Contingency Log (weekly); allowance use log (weekly); overall schedule update with variance (monthly); and other such reports are requested by the City. Such reports shall be prepared in a manner and in a format approved by City.

Reports shall be furnished at the weekly OAC meeting, or other intervals established by the City. The monthly overall schedule report shall also set forth the Design- Build Entity’s projected progress for the forthcoming month.

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6.35 Notice of Labor Dispute.

A. If DBE has knowledge that any actual or potential labor dispute is delaying, or threatens to delay, the timely performance of Work on the Project, DBE shall immediately give written notice including all relevant information to Agency.

B. DBE agrees to insert the substance of this Article in any subcontract to which a labor dispute may delay the timely performance of Work on the Project, except that each subcontract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the Subcontractor shall immediately notify the next higher tier Subcontractor or DBE, as the case may be, of all relevant information concerning the dispute.

6.36 Access to Work.

A. City, City’s Representative, their consultants, and other persons authorized by City will at all times have access to the Work on the Project wherever it is in preparation or progress. DBE shall provide safe and proper facilities for such access and for inspection.

6.37 Liability for and Repair of Damaged Work.

A. DBE shall be liable for any and all damages and losses to the Project (whether by fire, theft, vandalism, earthquake, flood or otherwise) prior to City’s acceptance of the Project as fully completed.

6.38 Environmental Quality Protection
A. Protected Species

1. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, DBE shall notify City Representative immediately, giving the location and nature of the findings.

Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within two (2) Days. DBE shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by City Representative, DBE will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any C ity directed changes to the Work as a result of a siting will be pursuant to the Contract Documents. Any costs or delays incurred by City or DBE due to unreasonable or false notification of an endangered plant or animal will be borne by DBE.

B. Preservation of Historical and Archeological Resources

1. If, in the performance of the Work, DBE should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, DBE notify City Representative immediately, giving the location and nature of the findings. DBE shall immediately cease all construction activities in the immediate area of the discovery to the extent

Attachment 4 – General Conditions 40

necessary to protect the cultural resource. If directed by City Representative, DBE will refrain from working in the immediate area, suspend the Work in its entirety, or re - sequence and/or alter its performance to ensure full compliance with all applicabl e permits, laws and regulations. DBE shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition.

Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents. Should DBE, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. DBE shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. DBE shall be required to pay for unauthorized damage and mitigation costs to cultural resources (hi storical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.

6.39 CARB Compliance.

A. DBE shall comply, and shall ensure all subcontractors comply, with all applicable requirements of the most current version of the regulations imposed by California Air Resources Board (“CARB”) including, without limitation, all applicable terms of Title 13 , California Code of Regulations Division 3, Chapter 9 and all pending amendments (“CARB Regulation”).

B. Throughout the Project, and for three (3) years thereafter, DBE shall make available for inspection and copying any and all documents or information associated with DBE’s and its Subcontractors’ fleets including, without limitation, the Certificates of Reported Compliance (“CRCs”), fuel/refueling records, maintenance records, emissions records, and any other information DBE is required to produce, keep or maintain pursuant to the Regulation upon two (2) calendar days’ notice from City.

C. DBE shall be solely liable for any and all costs associated with compliance with the CARB Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation. DBE shall defend, indemnify and hold harmless City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the CARB Regulation.

6.40 Technical Manuals; Spare Parts; Training.

A. The DBE shall submit warranties, technical operation and maintenance information for each item of mechanical, electrical and instrumentation equipment in an organized manner in the Technical Manual. It shall be written so that it can be used and understood by City’s operation and maintenance staff. The Design-Build Entity shall furnish to City a Technical Manual, cross referenced and tabbed.

B. The DBE shall furnish to City spare parts information for all mechanical, electrical, and instrumentation equipment. The spare parts list shall include the current list price of each spare part. The spare parts list shall include those spare parts which each manufacturer recommends be maintained by City in inventory. Each manufacturer or supplier shall indicate the name, address, and telephone number of its nearest outlet of spare parts to assist City in ordering. The Design-Build Entity shall cross-reference all spare parts lists to the equipment schedules and numbers designated in the Contract Documents.

Attachment 4 – General Conditions 41

C. The DBE shall provide to City training for all systems, equipment, facilities, etc. required to operate and maintain the Work. DBE shall provide training materials as suitable. DBE shall confer with the City to determine what trainings are needed after t he design is sufficiently developed.

ARTICLE 7 -OTHER WORK AT THE PROJECT SITE

7.1 Related Work At Project Site.

A. Nothing contained in the Contract Documents shall be interpreted as granting to DBE exclusive occupancy at the Project site. City reserves the right to award separate contracts for, or to perform with its own forces, construction or operations related to t he Work or other construction or operations at or affecting the Project site, including portions of Work on the Project which have been deleted by Change Order. DBE shall participate with City and Separate Contractors in joint review of construction schedules and Project requirements when directed to do so. DBE shall make necessary revisions to the Project Schedule after such joint review.

7.2 DBE’s Delay Or Damage.

A. DBE shall be liable to City and any Separate Contractor for the direct delay and disruption costs or damages incurred by such Separate Contractor as a result of DBE’s wrongful action or inactions.

ARTICLE 8 -SUBCONTRACTORS

8.1 Award of Subcontracts and Other Contracts for Portions of The Work.

A. The DBE shall issue a notice to bidders and bid advertisement in accordance with Chula Vista Municipal Code and City’s procurement policies for all trade bids, and in that notice provide that the Project is a Public Works Project, and as such is subject to prevailing rate wages in addition to DBE’s prequalification requirements. At a minimum, the DBE shall advertise in their normal manner and provide to the City adequate information for upload to the City’s procurement system, Planet Bids, directing prospec tive bidders to the DBE bid advertisement.

B. The DBE shall receive bids from trade contractors and review the bids with the City towards identifying the lowest responsible bidder or best value for each trade, including alternatives for that trade. DBE may normalize trade bids, reviewing and confirming scope of work with trade contractors before subcontracts are awarded. DBE shall provide a copy of subcontracts to City and shall provide a copy of any lower tier subcontracts as requested by City.

C. All Subcontractors shall be retained in accordance with the Subletting and Subcontracting Fair Practices Act (Public Contract Code Section 4100 et seq.). DBE shall not, without the consent of City: substitute any person or entity as a Subcontractor in place of the Subcontractor designated in the GMP Proposal; or permit any such Subcontractor to be assigned or transferred, or allow it to be performed by any person or entity other than the original Subcontractor listed in the Proposal. Any assignment or substitution made without the prior written consent of the awarding authority or not in compliance with the Subletting

Attachment 4 – General Conditions 42

and Subcontracting Fair Practices Act shall be void, and the assignees shall acquire no rights in the Contract. Any consent, if given, shall not relieve the DBE or its Subcontractors from their obligations under the terms of the Contract. All requests by DBE for substitution will be handled through City’s Representative.

D. The DBE shall submit to City’s Representative after selecting Subcontractors pursuant to an open and competitive process on the basis of either low bid or best value, an updated expanded list of Subcontractors. The expanded list of Subcontractors shall be a part of the GMP submittal and include the following information:

1. Name, Contact Person, Email, Address and Telephone Number of all subcontractors.

2. DIR Registration Number(s) for all contractors

3. Value of work to be performed by the contractor.

4. Scope of Work to be performed by each subcontractor.

5. State contractor’s license number, license category, and license expiration date, if a license is required by the California State Licensing Board to perform the identified Scope of Inspected Work. Worker Classifications for each subcontractor.

6. City business license number and expiration date.

7. State and federal tax identification numbers.

8. Valid worker’s compensation insurance information, including policy number and expiration date.

E. The expanded list of Subcontractors shall be provided and/or updated no later than ten (10) Days after the date which the Design-Build Entity awards a contract for any portion of the Work to a Subcontractor not originally listed in the Design-Build Entity’s GMP Proposal.

F. City has the right to request all documentation that supports DBE’s selection of a Subcontractor. City shall have the right of final approval as to the qualifications of a Subcontractor to perform its designated scope of Work. Within City’s discretion, any Subcontractor may be deemed not qualified to perform Work on the Project if City or City’s Representative determines that the Subcontractor fails to meet the qualifications or fails to perform the Work in the manner of a qualified Subcontractor.

G. Any increase in the cost of the Work on the Project resulting from the replacement or substitution of a Subcontractor pursuant to this Article or as required by City or City’s Representative pursuant to this Article, shall be borne solely by DBE. DBE shall not be entitled to any increase in GMP or an extension of Guaranteed Completion Date due to such replacement or substitution.

H. Any part of the Work on the Project performed for DBE by a Subcontractor shall be pursuant to a written subcontract. Each such subcontract shall require the Subcontractor, to the extent of the work to be performed by the Subcontractor, to be bound to DBE by the terms of the Contract Documents, to assume toward DBE all the obligations and responsibilities which DBE assumes towards City by the Contract Documents, and to perform such portion of the work on

Attachment 4 – General Conditions 43

the Project in accordance with the Contract Documents. Each such subcontract shall preserve and protect the rights of City under the Contract Documents, with respect to the work to be performed by Subcontractor, so that subcontracting thereof will not prejudice such rights. DBE is responsible for reviewing and coordinating the Work of and among his Subcontractors and Design Professionals. This review and coordination includes, but is not limited to, resolution of any inconsistencies, errors or omissions.

8.2 Contingent Assignment of Subcontracts.

A. DBE hereby assigns to City all its interest in first tier subcontracts now or hereafter entered into by DBE for performance of any part of the Work on the Project. The assignment will be effective upon acceptance by City in writing and only as to those subcontracts which City designates in writing. City may accept said assignment at any time during the course of the Work on the Project and prior to Final Completion in the event of a suspension or termination of DBE’s rights under the Contract Documents. Such assignment is part of the consideration to City for entering into the Contract with DBE and may not be withdrawn prior to Final Completion.

ARTICLE 9 -GUARANTEED MAXIMUM PRICE

9.1 Guaranteed Maximum Price.

A. The Guaranteed Maximum Price (GMP) is the maximum price that the City and DBE agree upon as payment for managing, providing and installing all the Work. The GMP is the Not-to- Exceed Contract Amount.

9.2 Submittal of GMP.

A. The GMP proposal shall be clear and well organized. The GMP proposal shall include all components listed in the Contract section 5.5 Components of Guaranteed Maximum Price Proposal and the following.

1. The DBE shall submit the GMP based on the Construction Documents and Scope of Services.

2. The GMP proposal shall include a line -item breakdown showing each subcontract amount, allowance, or major work component to create a Schedule of Values.

3. The GMP proposal shall include a bid breakdown summary sheet for each trade, detailing bid amounts for all bidders, scope, and all normalization work.

4. The GMP proposal shall include Design and professional fees of consultants, engineers, designers, schedulers , special inspectors, and the like that the DBE or Subcontractor to complete the work Contract Documents to employ during the Project.

5. The GMP proposal shall include an allowance for General Requirements costs.

6. The GMP proposal shall include including scoring system and scores for best value selections, and the number of bidders to date for each trade.

Attachment 4 – General Conditions 44

7. The GMP proposal shall include all allowances, which may include allowances for trades which have not yet been competitively bid. All allowances must include a clear scope of work describing the proposed allowance use.

8. The GMP proposal shall include Builder’s Risk [“All Risk”] insurance.

9.3 DBE Allowances.

A. DBE may include allowances in the GMP for potential expenditures. DBE is to estimate the cost for that scope of work and put that amount into a DBE Allowance to be included in the GMP. The DBE Allowance shall be for a specific and discrete scope of work; t he DBE shall not aggregate the DBE Allowances to create another Project contingency. The DBE bears the cost risk of completing the work covered by a DBE Allowance and shall return unused portions of the DBE Allowance to the City with a credit change order.

B. Any scope of work not competitively bid shall be a DBE Allowance.

C. Typical DBE allowance items include work for which no bids were received, Special inspection fees, utility company fees, special inspections, material testing.

D. Costs for General Requirements shall be included in a DBE allowance in project GMP.

During the design phase, DBE and City shall evaluate the estimate and agree on a single DBE allowance line item to cover all project General Requirements. The agreed DBE General Requirements allowance shall be included in the Design-Builder’s proposed GMP submittal to the City. The General Requirements allowance must be substantiated as with all GMP costs but, a written City auth orization is not required to use of the General Requirements allowance. The DBE may provide General Requirements in any manner including self-performed. If self-performed, DBE shall keep time and material records and submit them to the City as substantiation of the work. DBE shall submit for City approval labor rates to be used as the basis for General Requirements costs. The City may require backup documentation to substate the proposed labor rates.

E. The GMP proposal shall include a listing of items included in the General Requi rements allowance. The table below outlines allowable General Requirements allowance items.

Attachment 4 – General Conditions 45

Category Construction
Cost
Mark-ups
(O&P,
Bonds,
Insurance)
DBE’s
General
Requirements
Project Management Personnel (Superintendent, Project Manager, Construction Manager, Project Engineer, Scheduler, Estimator, Site IT Support, Labor & PLA Compliance, Etc.) x Project Management Personnel Vehicles (Including maintenance and Fuel) x Temporary Facilities (on-site offices, storage, toilets, fencing, on-site office furniture and supplies, Project Sign, Barricades, Temporary Stairs, etc.) x Temporary Site Utilities Required During Construction (Water, Communications, electricity, etc.) x
Safety measures (Safety equipment, site security, Safety Railing and Nets, Opening Protection, and safety signage) x
Site cleanup and waste disposal (Regular site maintenance and removal of debris, dumpsters, etc.) x
Stormwater compliance (SWPPP plan, BMP install and maintenance, street sweeping, QSP/QSD services, etc.) x
Mobilization & Demobilization x
Surveying Services x
Small Tools & Consumables x
Traffic Control x
FFE Coordination, Selection and Purchasing (Project Management Personnel Labor) x Business Licenses x
Office Staff and Management (Corporate Executives, Principal in Charge, Project Executive, Accounting, Secretarial, HR, Legal, etc.) x
Bonuses for staff x
Software x
Bonds x
Insurance - except Builder Risk x
Insurance - Builder Risk x
Permits (allowance) x
Design Support During Construction (Design revisions, RFIs, submittals, printing, field visits, As-builts, etc.) Percentage of GMP per Fee Proposal x
Commissioning x
Warranty Work and Coordination x
Protection of installed work x
Corrective Work Damaged by Design-Builder or subcontractors x Corrective Work Non-Conforming with Specs x
Construction Testing and Special Inspection Services x

9.4 City Allowances.

A. The City may insert a City Allowance into the GMP. The City is responsible for the estimate on a City Allowance. And may direct work under the allowance under the terms of the Change Order section of these General Conditions.

Attachment 4 – General Conditions 46

B. FF&E is typically a City allowance item.

9.5 Allowance Process
A. The DBE shall carry both types of allowances (DBE and City) as directed by the City in its Schedule of Values as part of the Construction Cost. Allowances shall only be used for their identified specific and discrete purpose. Allowance balances may not be used to make up deficits on other line items. The City shall authorize use of Allowances with written authorization, except in the case of General Requirements allowance use.

B. The Design-Builder’s charges against either allowance shall consist of either time- and- material or City -approved lump sum direct costs from trade contractors. The Design- Builder shall include trade contractor mark-up on these direct cost items in accordance with the Contract. No DBE mark-up, fee, or bonds in addition to that specified in section

5.5 Components of Guaranteed Maximum Price Proposal of the Contract Terms shall be added to allowance expenditures . Upon completion of a Design- Builder allowance item, and if the allowance has not been fully expended, the City shall process a credit change order for the unused balance of the allowance plus applicable mark-up, fee, or bonds . If a City’s Allowance is exceeded the City shall process a change order in accordance with the Contract General Conditions to compensate the Design-Builder for the overrun.

C. The Design-Builder shall itemize the use of the allowances and account for the allowance balances on a separate accounting accompanying the monthly payment request.

9.6 DBE Contingency
A. DBE shall be allowed a construction contingency as a percent Construction Cost Budget and included in the GMP. No additional DBE mark- up, fee, or bonds in addition to that specified in section 5.5 Components of Guaranteed Maximum Price Proposal of the Contract Terms shall be added to contingency expenditures. DBE shall calculate proposed fees based on this. The use of the DBE contingency shall require written approval by the City, but no reasonable use shall be disallowed. The DBE shall pay the trade contractors in accordance with the Changes Order section of the General Conditions for additional work paid for from the DBE contingency. DBE shall itemize the use of the contingency and account for the contingency balance on a separate accounting accompanying the monthly payment request. Contingency- eligible costs in excess of the contingency amount shall be borne by the DBE. The following are examples of eligible and ineligible uses of contingency and owner paid change orders.

1. Eligible uses of Contingency:
a. Re-work due to ambiguities or conflict in construction documents. b. Work shown or inferred on construction documents but missing from bid packages.
c. Work shown or inferred in the construction documents, but not described to the extent that it is sufficient to obtain competitive bids. d. Security personnel to control unexpected union picketing.

Attachment 4 – General Conditions 47

e. Expenditures suggested by DBE and agreed to by City for the benefit of the Project.
f. Errors or Omissions in the Contract Documents.
g. Coordination of installation tolerances between trades. h. Overages on DBE allowances.

2. Ineligible uses of Contingency:
a. Additional Project management staff.
b. Weather protection of work or materials for the benefit of subcontractors. c. Insurance co-pay or deductible costs.
d. Work specified in subcontracts.

3. City’s responsibility for Change Orders shall be limited to the following:
a. City-initiated changes.
b. City-initiated additional work.
c. Unforeseen Site Conditions if not able to be reasonably anticipated.

9.7 Failure to Agree on GMP.

A. If City and DBE cannot agree on a GMP, then City may terminate the Contract. In that event, the City may use the Construction Documents for it’s own purposes per Article 3 of these General Conditions.

ARTICLE 10 -CHANGE IN CONTRACT PRICE; CHANGE IN CONTRACT TIMES

10.1 Contract Change Orders.

A. City, without invalidating the Contract, may order changes in the work consisting of additions, deletions or other revisions, and the GMP and/or Contract Time shall be adjusted accordingly.

All such changes in the Work shall be authorized by written Change Order and shall be performed under the applicable conditions of the Contract Documents. No changes in the Work covered by this Contract shall exonerate any surety or any bond given in connection with this Contract. No dispute, disagreement or failure of the Parties to reach agreement on the terms of a Change Order shall relieve DBE from the obligation to proceed with performance of the changed work promptly and expeditiously.

10.2 Contract Change Order Procedures.

A. City Directive

1. City may direct changes in the Work, including deletion of Work, by delivering a written work directive. City shall have the right to order changes in the Work by a

Attachment 4 – General Conditions 48

unilateral Change Order setting forth City’s determination of the reasonable additions or savings in the GMP and/or Guaranteed Completion Date.

2. To the extent a work directive results in a change to the GMP and/or Guaranteed Completion Date, or DBE contests a unilateral Change Order, DBE must timely submit a Change Order Request and comply with all Change Order procedures in accordance with this Article. Notwithstanding issuance of a work directive or unilateral Change Order, DBE’s failure t o timely submit a Change Order Request shall constitute a waiver by DBE of any adjustment to the GMP and/or Guaranteed Completion Date.

3. City shall not be liable to DBE for work performed or omitted by DBE in reliance on verbal orders.

B. Unanticipated Subsurface Site Conditions

1. City assumes risks for unanticipated subsurface site conditions provided DBE notifies City in writing within five (5) calendar days of discovery if DBE believes it has uncovered or revealed a condition which:
a. differs materially from that indicated in soils and geotechnical reports furnished by City, conducted by the DBE, or otherwise known to the DBE; or b. is of an unusual nature and differs materially from conditions ordinarily encountered and generally recognized as inherent in the work required by the Contract Documents.

2. Upon receipt of written notice, City shall promptly investigate and if it determines the conditions do materially differ, requiring a change in the Work, City shall commence the processing of a change order pursuant to the Contract Documents. If City determines there is no bona fide Work scope change or is a minor change, which does not impact GMP or Contract Time, City shall notify DBE within ten (10) calendar days.

3. DBE shall not be entitled to an adjustment in the GMP or Contract Time if DBE knew or should have known of the existence of such conditions at the time DBE submitted and agreed to the GMP or Contract Time; or the existence of such condition could reasonably have been discovered as a result of DBE’s obligations pursuant to Article 6 of these General Conditions.

C. DBE Change Order Request.

1. DBE agrees that one of the purposes of the progressive design -build delivery method is to minimize the risk for Change Orders and reduce the likelihood of Change Orders.

Change Order Requests shall be kept to a minimum.

2. DBE may request changes to the GMP and/or Guaranteed Completion Date for City- directed changes in the Work or for Additional Work caused by the acts, errors, or omissions of City, or caused by unforeseen conditions if, and only if, DBE follows the procedures specified in this Article. Work that should or could have been included as part of the Construction Documents or work resulting from ambiguities in the

Attachment 4 – General Conditions 49

Construction Documents shall not be considered Additional Work and City will not issue additional compensation or time for said work.

3. If DBE intends to initiate a Change Order Request, then DBE shall provide City with written notice of the underlying facts and circumstances giving rise to the proposed change. DBE shall submit the notice of change/delay prior to performance of the work and no later than five (5) Days after City’s work directive or after DBE discovers the circumstances causing the need for the Change Order. To be considered valid and complete, the notice of change/delay shall include a general statement of the circumstances giving rise to the notice of change/delay and a reasonable order of magnitude estimate of the additional costs and/or time. If the circumstances give rise to both a cost adjustment and time extension, DBE shall submit the notice of change and notice of delay concurrently.

4. A Change Order Request will only be deemed timely submitted if it is submitted prior to incurring any expense and within fourteen (14) Days from DBE’s notice of change/delay.

5. A Change Order Request must state that it is a Change Order Request, state and justify the reason for the request, and specify the amount of any requested adjustment to the GMP and/or Guaranteed Completion Date , if any. The Change Order Request shall include all of the following information (unless inapplicable to the change): A detailed description of the circumstances giving rise to the request; A complete itemized fee proposal, including itemized pricing for costs; Supporting documentation for all costs; A time impact analysis showing the impact of the delay to the critical path to completion; If any added costs or information cannot be determined at the time of the Change Order Request, the reason the costs or information cannot be determined at the time; and Certification to the accuracy of the Change Order Request under penalty of perjury. The time impact analysis shall be in the critical path method format and shall show the sequencing of all critical and non- critical new activities and/or activity revisions affected by the delay, with logic ties to all affected existing activities noted on the schedule. City may demand, and DBE shall provide, any additional information supporting the Change Order Request, including but not limited to native electroni c format version of schedules and time impact analyses. DBE shall provide the requested additional information within five (5) Days of the request.

6. If City denies the Change Order Request or disagrees with the proposal submitted by DBE, it will notify DBE, and City will provide its opinion of the issue, error, or inaccuracy in the proposal; or the appropriate change to the GMP and/or Contract Time. If no agreement can be reached, City shall have the right to order the work by a unilateral Change Order setting forth City’s determination of the reasonable additions or savings in the GMP and/or Contract Time, if any. City’s determination shall become final and binding if DBE fails to submit a Claim in writing to City within fourteen (14) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as City may reasonably require.

D. Change Order Format

1. A Change Order signed by DBE indicates DBE's agreement therewith, including any adjustment in compensation or extension of time, and the full and final settlement of

Attachment 4 – General Conditions 50

all costs related to the Work authorized by the Change Order. Agency may designate the forms to be used for notices, Change Order Requests, and Change Orders.

10.3 Determining Adjustments to Compensation.

A. Limitation on Costs. DBE shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article. The mark-up added in instances of Additional Work shall constitute the entire amount of profit, any mark-ups, any field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such Work.

B. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by DBE and City.

C. Time and Materials Change Orders. City may direct DBE to proceed with the Additional Work with payment to be made on the basis of actual cost of the labor and materials required to complete the Additional Work.

D. Allowed Costs. Estimates for lump sum quotations and accounting for time-and-material work shall be limited to direct expenditures necessitated specifically by the change and shall be segregated as follows

1. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the Additional Work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements.

The use of a labor classification which would increase the Additional Work cost will not be permitted unless DBE establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.

2. Materials. The cost of materials reported shall be at the lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials costs shall be based upon supplier or manufacturer’s invoice.

3. Tool and Equipment Use. Regardless of ownership, the rates to be used in determining equipment use shall not exceed the most current listed rates provided by the California Department of Transportation at the time the work is performed. In the event the rate is not available, DBE shall furnish data supporting its proposed rate. City shall the make the final determination as to an equitable rental rate for the equipment. No payment will be made for the use of small tools, which have a replacement value of $1,000 or less.
a. The rental time to be paid for equipment shall be the time the equipment is in productive operation on the Additional Work being performed. Rental time will not be allowed while equipment is inoperative due to breakdowns. b. All equipment shall, in the opinion of City, be in good working condition and suitable for the purpose for which the equipment is to be used. Equipment with no

Attachment 4 – General Conditions 51

direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer.
c. Before construction equipment is used on any Additional Work, DBE shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to City, in duplicate, a description of the equipment and its identifying number.
d. When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2 -hour of operation, and any part of an hour greater than 30 minutes will be considered one hour of operation. When daily rates are listed, any part of a day less than 4 hours operation shall be considered to be 1/2- day of operation.

4. Allowed Mark -up. The allowed mark -up for any and all overhead (including supervision and home and field office costs) and profit on work added to the Contract shall be determined in accordance with the following provisions:
a. “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insurance and bond premium
shall be per section 5.5 Components of Guaranteed Maximum Price Proposal. DBE shall provide City with documentation of the costs, including but not limited to payroll records, invoices, and such other information as City may reasonably request.
b. For Work performed by DBE’s forces the allowed mark-up shall not exceed fifteen (15%) percent of labor costs, ten percent (10%) of material costs, and ten percent (10%) of the cost of tools and equipment use.
c. For Work performed by a Subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the Subcontractor’s Net Cost of the Work to which DBE may add up to five percent (5%) of the Subcontractor’s Net Cost (i.e., there is no mark-up allowed on a mark-up).
d. For Work performed by a sub-subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the sub-subcontractor’s Net Cost for Work to which the Subcontractor and DBE may each add up to an additional five percent (5%) of t he Net Cost of the lower tier subcontractor (i.e., there is no mark -up allowed on a mark-up).
e. No additional mark-up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by City exceed twenty- five percent (25%) of the Net Cost as defined herein, of the party that performs the Work.

5. Documentation of Time-and-Material Costs.
a. T&M Daily Sheets . DBE must submit timesheets, materials invoices, records of equipment hours, and records of rental equipment hours to City’s Representative for an approval signature each day that Work is performed on a time -and-material basis. The City Representative’s signature on time sheets only serves as verification

Attachment 4 – General Conditions 52

that the Work was performed and is not indicative of City’s agreement to DBE’s entitlement to the cost.
b. T&M Summary Sheet . DBE shall submit a T&M Summary Sheet, which shall include total actual costs, within five (5) Days following completion of Additional Work on a time-and-material basis. DBE’s total actual cost shall be presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and any other costs, along with documentation supporting the costs. DBE’s failure to submit the T&M Summary Sheet within five (5) Days of completion of the Additional Work will result in DBE’s wa iver for any reimbursement of any costs associated with the Additional Work.
c. Excluded Costs. The following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by DBE’s mark-up, shall not be allowed costs and shall not be included in any lump sum proposals or time-and-materials invoices:
d. Overhead Cost. Payroll costs and other compensation of DBE’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by DBE whether at the Site or in DBE’s principal office or any branch office, material yard, or shop for general administration of the Work; e. Office Expenses. Expenses of DBE’s principal and branch offices; f. Capital Expenses. Any part of DBE’s capital expenses, including interest on DBE’s capital employed for the Additional Work and charges against DBE for delinquent payments;
g. Negligence. Costs due to the negligence of DBE or any Subcontractor or Supplier, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property;
h. Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of DBE;
i. Administrative Costs . Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
j. Anticipated Lost Profits. Expenses of DBE associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
k. Home Office Overhead . Costs derived from the computation of a “home office overhead” rate by application of the Eichleay, Allegheny, burden fluctuation, or other similar methods;

Attachment 4 – General Conditions 53

l. Special Consultants and Attorneys . Costs of special consultants or attorneys, whether or not in the direct employ of DBE, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the Additional Work.
m. Other. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in the Contract Documents; including but not limited to: submittals, drawings, field drawings, shop drawings, including submissions of dr awings; field inspection; general superintendence; computer services; reproduction services; salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; janitorial services; small tools, incidentals and consumables; temporary on- site facilities (offices, telephones, high speed internet access, plumbing, electrical power, lighting; platforms, fencing, water); surveying; estimating; protection of work; handling and disposal fees; final cleanup; other incidental work; related warranties; insurance and bond premiums.

10.4 DBE’s Wavier of Further Relief.

A. PROGRESSIVE DESIGN-BUILD ENTITY’S FAILURE TO PROVIDE A COMPLETE

AND TIMELY NOTICE OF A CHANGE ORDER REQUEST OR TO COMPLY WITH

ANY OTHER REQUIREMENT OF THIS ARTICLE, SHALL CONSTITUTE A

WAIVER BY DESIGN-BUILD ENTITY OF THE RIGHT TO AN ADJUSTMENT OF

THE CONTRACT PRICE AND/OR PROJECT COMPLETION DATE ON ACCOUNT

OF SUCH CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER

RECOURSE OR RECOVERY BY REASON OF OR RELATED TO SUCH CHANGE

BY MEANS OF THE CLAIMS DISPUTE RESOLUTION PROCESS OR BY ANY

OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER APPLICABLE LAWS.

B. DBE recognizes and acknowledges that timely submission of a formal written notice of change/delay and Change Order Request, whether or not the circumstances of the change may be known to City or available to City through other means, is not a mere formalit y but is of crucial importance to the ability of City to promptly identify, prioritize, evaluate and mitigate the potential effects of changes. Any form of informal notice, whether verbal or written (including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logs or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.

ARTICLE 11 -TIME FOR COMPLETION; LIQUIDATED DAMAGES

11.1 Progress and Completion.

A. DBE shall proceed expeditiously with adequate forces and shall achieve full completion of the Work by the Guaranteed Completion Date. If City’s Representative determines and notifies DBE that DBE’s progress is such that DBE will not achieve full completio n of the Work by the Guaranteed Completion Date, DBE shall immediately and at no additional cost to City, take all measures necessary, including working such overtime, additional shifts, Sundays, or holidays as may be required to ensure that the entire Project is completed within the Guaranteed Completion Date. Upon receipt of such notice from City’s representative, DBE shall immediately notify City’s Representative of all measures to be taken to ensure full completion

Attachment 4 – General Conditions 54

of the Work within the Guaranteed Completion Date. DBE shall reimburse City for any extra costs or expenses (including the reasonable value of any services provided by City’s employees) incurred by City as the result of such measures.

11.2 Time for Completion.

A. The time for completion set forth in Contract shall commence: (1) on the date stated in the Notice to Proceed with Construction, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and shall be completed by DBE in the time specified in the Contract Documents. City is under no obligation to consider early completion of the Project; and the Guaranteed Completion Date shall not be amended by City’s receipt or acceptance of DBE’s proposed earlier compl etion date. Any difference in time between DBE’s early completion and the Guaranteed Completion Date shall be considered a part of the Project float. DBE shall not be entitled to compensation, and City will not compensate DBE, for delays which impact earl y completion. DBE shall not, under any circumstances, receive additional compensation from City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by DBE and the Guaranteed Completion Date.

11.3 Liquidated Damages.

A. If the Work is not completed as stated in the Contract Documents, it is understood that City will suffer damage. In accordance with Government Code section 53069.85, being impractical and infeasible to determine the amount of actual damage, it is agreed th at DBE shall pay to City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each calendar day of delay until the Work is fully completed. DBE and its surety shall be liable for any liquidated damages. Any money due or to become due DBE may be retained to cover liquidated damages.

11.4 Inclement Weather.

A. When DBE believes inclement weather has delayed the Work, DBE may request a commensurate time extension and provide backup information as necessary. The City Shall make a determination of what constitutes inclement weather and if a time extension is warranted. DBE shall abide by City’s determination. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Project schedule. DBE shall not be entitled to additional compensation for time extensions resulting from inclement weather.

11.5 Extension of Time.

A. DBE’s entitlement to an extension of the Contract Time is limited to a City -caused extension of the critical path, reduced by DBE’s concurrent delays, and established by a proper time impact analysis and approved inclement weather delays. City shall ascer tain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. DBE shall not be entitled to an adjustment in the Contract Times for delays within the control of DBE. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of DBE.

Attachment 4 – General Conditions 55

11.6 Force Majeure.

A. If a delay to the critical path results from a Force Majeure Event, DBE will be entitled to a time extension but will not receive an adjustment to the GMP or any other compensation. Such a non-compensable adjustment shall be DBE’s sole and exclusive remedy for such delays.

11.7 No Damages for Reasonable Delay.

A. City’s liability to DBE for delays for which City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. A delay is only considered unreasonable if the delay is to the critical path to com pletion, if it will result in DBE not being able to complete the Work prior to the Guaranteed Completion Date, if it is not concurrent with any other delay, and if it results from one of the following: (i) an unforeseen condition that DBE could not have be en aware of or anticipated prior to construction, (ii) a City-ordered work directive that adds additional work that was not previously contemplated, (iii) a failure by the City to comply with the Contract Documents if DBE demanded a cure prior to the delay to the critical path, or (iv) a suspension or other stoppage of work by the City that is not due to an act or omission of DBE, a force majeure event, or an action of government agency or other third party that requires a stoppage of work. In no case shall City be liable for any costs which are borne by DBE in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay shall be per the “Damages for Compensable Delay” section of the Contract.

11.8 Procedure for Time Extensions and Delay Damages.

A. DBE shall not be entitled to any extension of time or any Damages for Compensable Delay per the Contract unless DBE properly notices the delay and adjustment to compensation and requests a Change Order in accordance with the Contract Documents. DBE’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of DBE’s right to a time extension or Damages for Compensable Delay.

ARTICLE 12 -TEST AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK; NOTICE OF DEFECTS

12.1 Access to Work.

A. City, City’s Representative, their consultants and other representatives and personnel, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Project site and the Work at reasonable times for thei r observation, inspection, and testing. DBE shall provide them proper and safe conditions for such access and advise them of DBE’s safety procedures and programs.

12.2 Tests and Inspections.

A. DBE shall be responsible for procuring, scheduling and managing qualified third party firms for all materials testing, geotechnical investigations and testing and special inspections. DB obtain approval of all materials testing, geotechnical, and special inspection firms and personnel as required by the AHJ prior to start of construction. DBE shall notify City in advance of hiring any such third party firms, and City shall have final approval of all third party materials testing, geotechnical, and special inspection firms.

Attachment 4 – General Conditions 56

B. DBE shall coordinate all required inspections, tests, or approvals with AHJ to ensure compliance with all requirements.

C. DBE shall schedule and coordinate all inspections required by AHJ in accordance with normal AHJ policies and procedures. DBE shall have no expectation of special treatment or priority with respect to AHJ inspections or requirements.

D. If Applicable Laws of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, DBE shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish City’s Representative the required certificates of inspection or approval.

E. DBE shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for City and City’s Representative’s acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to DBE’s purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to City.

F. In addition to AHJ required inspections, the City reserves the right to inspect and reject and/or require corrective work to any and all parts of the Work not in accordance with the Contract Documents, applicable industry standards or expected quality standards.

12.3 Uncovering Work.

A. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by DBE without authorization by AHJ or written concurrence of City’s Representative, DBE shall, if requested by AHJ or City’s Representative, uncover such Work for observation.

B. If DBE has covered work and AHJ or City’s Representative later considers it necessary or advisable that covered Work be observed by AHJ or City’s Representative or inspected or tested by others, DBE, at AHJ or City’s Representative’s request, shall uncover , expose, or otherwise make available for observation, inspection, or testing as AHJ or City’s Representative may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment.

12.4 Agency May Stop The Work.

A. If the Work is defective, City may in its sole discretion order DBE to stop the Work, or any portion thereof, until the cause for such order has been eliminated. All delays associated with the stop Work order will be the responsibility of DBE.

12.5 Correction of Defective Work.

A. Promptly after receipt of written notice, DBE shall (1) correct Defective Work that becomes apparent during the progress of the Work on the Project and (2) replace, repair, or restore to City’s satisfaction any other parts of the Work on the Project and an y other real or personal property which is damaged or destroyed as a result of Defective Work or the correction of Defective Work. DBE shall promptly commence such correction, replacement, repair, or restoration upon notice from City’s Representative or Ci ty, but in no case later than fourteen

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(14) Days after receipt of such notice; and DBE shall diligently and continuously prosecute such correction to completion. DBE shall bear all costs of such correction, replacement, repair, or restoration, and all losses resulting from such Defective Work, including additional testing, inspection, and compensation for City’s Representative’s services and expenses. DBE shall perform corrective Work on the Project at such times that are acceptable to City and in such a manner as to avoid, to the extent practi cable, disruption to City’s activities. When correcting Defective Work, DBE shall take no action that would void or otherwise impair City’s special warranty and guarantee, if any, on said Work.

B. If immediate correction of Defective Work is required for life safety or the protection of property and is performed by City or Separate Contractors, DBE shall pay to City all reasonable costs of correcting such Defective Work. DBE shall replace, repair, or restore to City’s satisfaction any other parts of the Construction Work and any other real or personal property which is damaged or destroyed as a result of such Defective Work or the correction of such Defective Work.

C. DBE shall remove from the Project site portions of the Construction Work and materials which are not in accordance with the Contract Documents and which are neither corrected by DBE nor accepted by Agency.

D. Enforcement of DBE’s express warranties and guarantees to repair contained in the Contract Documents shall be in addition to and not in limitation of any other rights or remedies City may have under the Contract Documents or at law or in equity for Defecti ve Work. Nothing contained in this Article shall be construed to establish a period of limitation with respect to other obligations of DBE under the Contract Documents.

12.6 Acceptance of Defective Work.

A. If, instead of requiring correction or removal and replacement of Defective Work, City prefers to accept it, City may do so. DBE shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to City’s evaluation of and determination to accept such Defective Work and for the diminished value of the Work.

B. If any acceptance of Defective Work occurs prior to release of the Project retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and City shall be entitled to an appropriate decrease in the GMP, reflecting the diminished value of Work and all costs incurred by Agency.

C. If the acceptance of defective Work occurs after release of the Project retention, an appropriate amount will be paid by DBE to City.

12.7 City May Correct Defective Work.

A. If DBE fails within a reasonable time after written notice from City’s Representative to correct Defective Work, or to remove and replace rejected Work as required by City, or if DBE fails to perform the Work in accordance with the Contract Documents, or i f DBE fails to comply with any other provision of the Contract Documents, City may, after seven (7) Days written notice to DBE, correct, or remedy any such deficiency.

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B. In connection with such corrective or remedial action, City may exclude DBE from all or part of the Site, take possession of all or part of the Work and suspend DBE’s services related thereto, take possession of DBE’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which City has paid DBE but which are stored elsewhere. DBE shall allow City and City’s Representative, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable City to exercise the rights and remedies to correct the defective work.

C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by City correcting the defective work will be charged against DBE, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and City shall be entitled to an appropriate decrease in the GMP. Such claims, cost s, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Defective Work.

D. If the Change Order is executed after release of the Project Retention, an appropriate amount will be paid by DBE to Agency.

E. DBE shall not be allowed an extension of the Guaranteed Completion Date because of any delay in the performance of the Work attributable to City correcting defective work.

ARTICLE 13 -PAYMENTS TO DBE AND COMPLETION

13.1 Schedule of Values.

A. Unless the City objects, the most-current accepted schedule of values shall be used as a basis for reviewing DBE’s Applications for Payment.

13.2 Applications for Payments.

A. Each month DBE shall submit to City’s Representative for review an Application for Payment filled out and signed by DBE covering the Work completed for the previous month and accompanied by such supporting documentation as is required by the Contract Docum ents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that City has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect Ci ty’s interest therein, all of which must be satisfactory to Agency.

B. DBE shall provide backup documentation as requested by the City for any aspect of the applications for payment. Back up documentation shall sufficient to shown the application for payment is correct as determined by the City. DBE shall provide backup doc umentation for all Allowance uses.

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C. Beginning with the second Application for Payment, each Application shall include an affidavit executed by DBE stating that it has paid all amounts due on account of the Work paid by City in the prior Applications for Payment.

13.3 Review of Applications.

A. City’s Representative will either indicate in writing a recommendation of payment to City or return the Application for Payment to DBE indicating in writing City’s Representative’s reasons for refusing to recommend payment. In the latter case, DBE may make the necessary corrections and resubmit the Application for Payment.

B. In taking action on DBE’s Applications for Payment, City shall be entitled to rely on the accuracy and completeness of the information furnished by DBE and shall not be deemed to represent that City has made a detailed examination, audit or arithmetic veri fication of the documentation submitted in support of the Application for Payment or other supporting data; that City has made exhaustive or continuous on- site inspections; or that City has made examinations to ascertain how or for what purposes DBE has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by City, will be performed by City’s auditors acting in the sole interest of City.

C. By recommending any such payment City’s Representative will not thereby be deemed to have represented that:

1. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to City’s Representative in the Contract Documents; or

2. there may not be other matters or issues between the parties that might entitle DBE to be paid additionally by City or entitle City to withhold payment to DBE.

D. City’s Representative may refuse to recommend the whole or any part of any payment due to subsequently discovered evidence or the results of subsequent inspections or tests. City retains the right to revise or revoke any such payment recommendation previously made, to such extent as may be necessary in City’s opinion to protect City from loss.

13.4 Payment Becomes Due.

A. Thirty (30) Days after presentation of an undisputed and properly submitted Application for Payment to City’s Representative, and subject to City’s Representative’s recommendation, subject to the modifications above, the amount recommended will become due, and when due will be paid by City to DBE.

13.5 Retention.

A. City will retain five percent (5%) of the amount invoiced until final payment.

13.6 City’s Reduction in Recommended Payment.

A. In addition to reductions recommended by City’s Representative, City may refuse to make payment of the full amount recommended by City’s Representative because:

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1. Claims have been made against City on account of DBE’s performance or furnishing of the Work.

2. Stop Payment Notices or Liens have been filed in connection with the Work.

3. Defective Work not remedied.

4. Failure of DBE to make proper payments to its subcontractors or suppliers.

5. Completion of the Contract if there exists a reasonable doubt that the Work can be completed for the unpaid Contract balance.

6. Damage to another contractor or third party.

7. Amounts which may be due City for claims against DBE.

8. Failure of DBE to keep the record (‘as-built”) drawings up to date.

9. Failure to provide updates on the construction schedule.

10. Site cleanup.

11. Failure of DBE to comply with requirements of the Contract Documents.

12. Liquidated Damages, or City’s reasonable anticipation that DBE’s delay in performing the Work will result in Liquidated Damages.

13. Failure to submit correct or complete Labor Compliance Documents.

B. Upon completion of the Contract, City may reduce the final GMP to reflect costs charged to DBE, back charges or payments withheld pursuant to the Contract Documents.

13.7 DBE’s Warranty of Title.

A. DBE warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to City no later than the time of payment free and clear of all Liens.

13.8 Partial Utilization.

A. City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve DBE of its responsibilit ies under the Contract.

13.9 Substantial Completion.

A. DBE may request all or portions of the work be considered substantially complete. If the City agrees, the DBE’s A/E may issue a signed certificate of Substantial Completion whereby the A/E certifies in writing that the Work is at a stage in the progress of the Work when the Work or designated portion is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. Typically, a Certificate of

Attachment 4 – General Conditions 61

Occupancy is required prior to substantial completion. Upon acceptance and signing of the certificate of Substantial Completion, the warranty period shall begin and the City shall become responsible for maintenance. City acceptance of the certificate of S ubstantial Completion shall not constitute final acceptance nor does it stop the assessment of Liquidated Damages.

13.10 Final Inspection.

A. Upon written notice from DBE that the entire Work is complete, City’s Representative will promptly make a final inspection with City and DBE and will notify DBE in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. DBE shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.

13.11 Final Acceptance.

A. After DBE has, in the opinion of City’s Representative, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, gua rantees, bonds, certificates or other evidence of insurance, certificates of inspection, marked -up record documents, certificate of occupancy, and other documents required by the Contract Documents, City shall execute and file with the County in which the Project is located a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted. All Work, including remedy of deficiencies, shall be completed within the contract time, and exceedance of the contract time shall be subject to Liquidated Damages, except in special circumstances as determined by the City.

13.12 Final Payment.

A. Application for Payment. Upon execution of the Notice of Completion, DBE may submit a final accounting for the cost of the Work and a final Application for Payment. Final payment, constituting the entire unpaid balance of the amounts owed to DBE.

B. City’s Representative’s Review of Application and Acceptance. If, on the basis of City’s Representative’s observation of the Work during construction and final inspection, and City’s Representative’s review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Cit y’s Representative is satisfied that the Work has been completed and DBE has satisfied all other requirements for final payment, City’s Representative will indicate in writing City’s Representative’s recommendation of payment and present the Application for Payment to City for payment.

Otherwise, City’s Representative will return the Application for Payment to DBE, indicating in writing the reasons for refusing to recommend final payment, in which case DBE shall make the necessary corrections and resubmit the Application for Payment.

C. Payment Becomes Due. Within sixty (60) Days after the presentation to City’s Representative of the proper and complete final Application for Payment and accompanying documentation, the amount recommended by City’s Representative, less any sum City is entitled to set off pursuant to the Contract Documents, will become due and will be paid by City to DBE.

13.13 Waiver of Claims.

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A. The making and acceptance of final payment will constitute a waiver of all Claims by DBE against City other than those previously made in accordance with the requirements herein and expressly acknowledged by City in writing as still unsettled.

ARTICLE 14 -SUSPENSION OF WORK AND COMPLETION

14.1 City May Suspend Work.

A. Agency may, at its sole option, decide to suspend at any time the performance of all or any portion of the Work by notice in writing to DBE. Such notice of suspension of Work will designate the amount and type of plant, labor, and equipment to be committe d to the Project during the period of suspension. DBE shall use its best efforts to utilize its plant, labor, and equipment in such a manner as to minimize costs associated with suspension.

B. Upon receipt of any such notice, DBE shall, unless the notice requires otherwise:

1. Immediately discontinue Work on the date and to the extent specified in the notice;

2. Place no further orders or subcontracts for material, services, or facilities with respect to suspended Work other than to the extent required in the notice;

3. Promptly make every reasonable effort to obtain suspension upon terms satisfactory to City’s Representative of all orders, subcontracts, and rental agreements to the extent they relate to performance of Work suspended; and

4. Continue to protect and maintain the Work including those portions on which Work has been suspended.

C. Unless suspension is a result of DBE’s acts or omissions or a Force Majeure Event, then as full and complete compensation for such suspension, DBE shall be granted an adjustment in the GMP based on a negotiated daily rate that reflects DBE’s actual cost s associated with the demobilized condition of the Site and an extension of the Guaranteed Completion Date equal to the number of days performance of Work is suspended; provided, however, that no adjustment of GMP or extension of the Guaranteed Completion Date shall be granted if the suspension results from DBE's non -compliance with the requirements of the Contract. City shall not be liable for any additional costs, damages or anticipated profits incurred by Contractor or its Subcontractors

14.2 City May Terminate for Cause.

A. In the sole estimation of City, City may, without prejudice to any other right or remedy, serve written notice upon DBE of its intention to terminate this Contract in whole or in part if DBE:
(i) refuses or fails to prosecute the Work or any part thereof with such diligence as will ensure its completion within the Guaranteed Completion Date; (ii) fails to complete the Work within the required time; (iii) files a bankruptcy petition or is adjudged a bankruptcy; (iv) makes a general assignment for the benefit of its creditors; (v) has a receiver appointed; (vi) refuses or fails to supply enough properly skilled workers or proper materials to complete the Work; (vii) fails to make prompt payment to subcontractors or for material or labor; (viii) disregards Applicable Laws, other requirements or instructions of Agency; or (ix) violates any of the provisions of the Contract Documents.

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B. This notice of intent to terminate shall contain the reasons for such intention to terminate this Contract, and a statement to the effect that DBE's right to perform this Contract shall cease and terminate upon the expiration of ten (10) Days unless such violations have ceased and arrangements satisfactory to City have been made for correction of said violations.

C. After expiration of the ten (10) Day period, City may terminate this Contract. In such case, DBE shall not be entitled to receive any further payment until the Work has been finished. City may take over and complete the Work by any method it may deem app ropriate, including enforcement of the Project Performance Bond. DBE and its surety shall be liable to City for any excess costs or other damages incurred by City to complete the Work. If City takes over the Work, City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to DBE as may be on the Site.

14.3 City May Terminate for Convenience.

A. In addition to its right to terminate this Contract for default, City may terminate the Contract, in whole or in part, at any time upon seven (7) Days written notice to DBE. The Notice of Termination shall specify that the termination is for the convenience of City, the extent of termination, and the effective date of such termination (“Effective Date of Termination”).

B. After receipt of Notice of Termination, and except as directed by City, DBE shall, regardless of any delay in determining or adjusting any amounts due under this Termination for Convenience clause, immediately proceed with the following obligations:

1. Stop Work as specified in the Notice.

2. Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents.

3. Leave the Site and any other property upon which DBE was working in a safe and sanitary manner such that it does not pose any threat to the public health or safety.

4. Terminate all subcontracts and purchase orders to the extent that they relate to the portions of the Work terminated.

5. Place no further subcontracts or orders, except as necessary to complete the remaining portion of the Work.

6. Submit to City, within fifteen (15) Days from the Notice of Termination, all of the documentation called for by the Contract Documents to substantiate all costs incurred by DBE for labor, materials and equipment through the Notice of Termination. Any documentation substantiating costs incurred by DBE solely as a result of City’s exercise of its right to terminate this Contract pursuant to this clause, which costs DBE is authorized under the Contract Documents to incur, shall: (i) be submitted to and received by City no later than thirty (30) Days after the Effective Date of the Notice of Termination; (ii) describe the costs incurred with particularity; and (iii) be conspicuously identified as "Termination Costs Occasioned by City’s Termination for Convenience."

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C. City’s total liability to DBE by reason of the termination shall be limited to the total (without duplication of any items) of:

1. The reasonable cost to DBE for all Work performed prior to the Effective Date of Termination, including the Work done to secure the Project for termination.

Reasonable cost may not exceed the applicable percentage completion values derived from the progress schedule and the schedule of values. Deductions shall be made for cost of materials to be retained by DBE, cost of Work defectively performed, amounts realized by sale of materials, and for other appropriate credits or offsets against cost of Work as allowed by the Contract Documents.

2. When, in City’s opinion, the cost of any item of Work is excessively high due to costs incurred to remedy or replace defective or rejected Work, reasonable cost to be allowed will be the estimated reasonable cost of performing the Work in compliance with requirements of the Contract Documents and excessive actual cost shall be disallowed.

3. Any Work required by the Termination for Convenience that is not included in Contract Documents will be negotiated pursuant to the Contract Change Order provisions.

4. Reasonable costs to DBE of handling material returned to vendors, delivered to City or otherwise disposed of as directed by Agency.

5. A reasonable allowance for DBE’s internal administrative costs in preparing termination claim.

6. Reasonable demobilization costs, and reasonable payments made to Subcontractors or suppliers on account of termination.

D. In no event shall City be liable for unreasonable costs incurred by DBE or Subcontractors after receipt of a Notice of Termination. Such non- recoverable costs include, but are not limited to, the cost of or anticipated profits on Work not performed as of the date of termination, post -termination employee salaries, unreasonable post -termination administrative expenses, post-termination overhead or unabsorbed overhead, surety costs of any type, costs of preparing and submitting DBE’s termination claim, attor ney fees of any type, and all other costs relating to prosecution of a claim or lawsuit.

E. City shall have no obligation to pay DBE under this Article unless and until DBE provides City with updated and acceptable as -builts and Record Documents for Work completed prior to termination as required by the Contract Documents.

F. In arriving at the amount due DBE under this clause there shall be deducted in whole, or in the appropriate part(s) if the termination is partial:

1. All unliquidated advances or other payments on account previously made to DBE, including without limitation all payments which are applicable to the terminated portion of the Contract Documents,

2. Any claim City may have against DBE in connection with the Work or any amounts that may be withheld in accordance with the Contract Documents, and

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3. The agreed price for, or proceeds of sale of, any materials, supplies, or other things kept by DBE and not otherwise recovered by or credited to Agency.

G. DBE shall not be paid on account of loss of anticipated profits or revenue or other economic loss or consequential damages arising out of or resulting from such termination.

H. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, City may immediately order DBE to cease Work until such safety or liability issues are addressed to the satisfaction of City or the Contract is terminated.

I. If City terminates DBE for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically be converted to and treated as a termination for convenience. In such event, DBE shall be entitled to receive only the amounts payable under this section, and DBE specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.

ARTICLE 15 -CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION

15.1 Procedure for Resolving Claims
A. DBE shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the GMP and/or the Guaranteed Completion Date, including but not limited to all requirements of Article 9, as a prerequisite to filing any Claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely submit a Chang Order Request, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the Claim under the Contract or at law.

B. Claims. For purposes of this Article, "Claim" means a separate demand by DBE for (1) a time extension, including without limitation relief from damages or penalties for delay assessed by City, (2) payment of money or damages arising from Work done by or on behal f of DBE and payment of which is not otherwise expressly provided for or DBE is not otherwise entitled, or (3) payment of an amount which is disputed by City. A “Claim” does not include any demand for payment for which DBE has failed to provide noti ce, submit a Change Order Request, or otherwise failed to follow any procedures contained in the Contract Documents.

C. Filing Claims . Claims governed by this Article may not be filed unless and until DBE completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the GMP and/or the Guaranteed Completion Date, and DBE’s request for a change has been denied in whole or in part. Claims governed by this Article must be filed no later than thirty (30) Days after a request for change has been denied in whole or in part or, if not subject to a Change Order Request, then after any other event giving rise to the Claim.

The Claim shall be submitted in writing to City and shall include on its first page the following words in 16 point capital font: “THIS IS A CLAIM.” The Claim shall include the all information and documents necessary to substanti ate the Claim, including but not limited to those identified below. Nothing in this Article is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.

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D. Documentation. DBE will submit the claim justification in the following format:

1. Summary description of Claim including basis of entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made.

2. List of documents relating to the Claim:
a. Specifications
b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other.

3. Chronology of events and correspondence.

4. Narrative analysis of Claim merit.

5. Analysis of Claim cost, including calculations and supporting documents.

6. Time impact analysis in CPM format, if an adjustment of the Contract Time is requested.

7. Cover letter and certification of validity of the Claim.

E. City Response to Claim. Upon receipt of a Claim pursuant to this Article, City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the Claim, or as extended by mutual agreement, shall provide a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after City issues its written response.

1. City may request, in writing, within 30 days of receipt of the Claim, any additional documentation supporting the Claim or relating to defenses or claims City may have.

If additional information is needed thereafter, DBE shall provide the additional information within 30 days. Failure to provide additional information shall constitute an abandonment of the Claim. City shall respond within 30 days.

F. Meet and Confer Conference. If DBE disputes City’s response, or if City fails to respond within the time period, DBE may so notify City, in writing, within 15 days of the receipt of the response or the failure to respond, and demand an informal conference to meet and confer for settlement of those portions of the Claim that remain in dispute. Upon such demand, City shall schedule a meet and confer conference within 30 days.

G. Mediation. Within 10 business days following the conclusion of the meet and confer conference, any disputed portion of the Claim, as identified by DBE in writing, shall be submitted to nonbinding mediation, with City and DBE sharing the associated costs equally.

The City and DBE shall mutually agree to a mediator within 10 business days after the disputed

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portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.

1. For purposes of this Article, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Article.

2. Unless otherwise agreed to by City and DBE in writing, the mediation conducted pursuant to this section shall excuse any further obligation under any law or statute to mediate after litigation has been commenced.

3. The mediation shall be held no earlier than the date DBE completes the Work or the date that DBE last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim duly arises after mediation is completed.

H. Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, DBE must comply with Chapter 1.34 of the Chula Vista Municipal Code prior to initiating litigation. For purposes of the Municipal Code procedure, the running of the period of time within which a Municipal Code claim must be filed shall be tolled from the time DBE submits its written Claim until the meet and confer conference is completed (or until the time to commence the meet and confer has lapsed).

I. Non-Waiver. City’s failure to respond to a Claim from DBE within the time periods described in this Article or to otherwise meet the time requirements of this Article shall result in the Claim being deemed rejected in its entirety, and shall not constitute a waiver of any rights under this Article.

15.2 Litigation.

A. Any claims, disputes, or controversies between the parties arising out of or related to the Contract, which have not been resolved in accordance with the procedures set forth herein shall be resolved in a court of competent jurisdiction.

15.3 Duty to Continue Performance.

A. Unless provided to the contrary in the Contract Documents, DBE shall continue to perform the Work and City shall continue to satisfy its payment obligations to DBE, pending the final resolution of any dispute or disagreement between DBE and Agency.

ARTICLE 16 -MISCELLANEOUS PROVISIONS

16.1 Successors
A. The parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract. DBE may not either voluntarily or by action of law, assign any obligation assumed by DBE hereunder without the prior written consent of City.

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16.2 Cumulative Remedies.

A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.

16.3 Survival of Obligations.

A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Project or termination or completion of the Contract or termination of the services of DBE.

16.4 Controlling Law.

A. Notwithstanding any subcontract or other contract with any Subcontractor, Supplier, or other person or organization performing any part of the Project, this Contract shall be governed by the law of the State of California excluding any choice of law provisions.

16.5 Jurisdiction; Venue.

A. DBE and any Subcontractor, supplier, or other person or organization performing any part of the Project agree that any action or suits at law or in equity arising out of or related to the proposal process, award, or performance of the Project shall be main tained in the Superior Court of San Diego County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.

16.6 Headings.

A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.

16.7 City’s Right to Audit.

A. DBE shall make available to City for auditing, all relevant accounting records and documents, and other financial data, and upon request, shall submit true copies of requested records to City.

If DBE submits a Change Order Request or a Claim to City, City shall have the right to audit DBE’s books, records, documents, and other evidence to the extent they are relevant.

B. The right to audit shall include the right to examine books, records, documents, and other evidence and accounting procedures and practices, sufficient to discover and verify all direct and indirect costs of whatever nature claimed to have been incurred or anticipated to be incurred and for which the claim has been submitted, including but not limited to job cost reports, estimates, proposals, bids, proposal papers, documents of other work administered by DBE’s home office, and any and all other documentation relied upon by DBE to obtain this Contract.

City shall have the right to make and take copies of any records examined.

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C. The right to audit shall include the right to inspect DBE’s plans, or such parts thereof, as may be or have been engaged in the performance of the Project. DBE further agrees that the right to audit encompasses all subcontracts and is binding upon Subcont ractors. The right to audit provided herein shall be exercisable through such representatives as City deems desirable during DBE’s normal business hours at DBE’s office.

D. In accordance with Government Code Section 8546.7, records of both City and DBE shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment. DBE shall make available to City any of DBE’s other documents related to the Project immediately upon request of City. In addition to the State Auditor’s rights described above, City shall have the right to examine and audit all books, estimates, records, contracts, documents, Proposals, subcontracts, and other data of DBE (including electronic records, computations and projections) related to negotiating, pricing, or performing the Project in order to evaluate the accuracy and completeness of the cost or pricing data, for a period of four (4) years after final payment.

16.8 Assignment.

A. DBE shall not assign, transfer, convey, sublet, or otherwise dispose of this Contract or any part thereof including any claims (or Claims), without prior written consent of City. Any assignment without the written consent of City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or Material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such Materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.

B. As set forth in Public Contract Code section 7103.5, in entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and P rofessions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties.

16.9 All Legal Provisions Included.

A. DBE shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms.

References to specific laws, rules or regulations in this Contract are for reference purposes only, and shall not limit or affect the applicability of provisions not specifically mentioned. If DBE observes that drawings and specifications are at variance therewith, he shall promptly notify City in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in Work. If DBE performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to City, he shall bear all costs arising therefrom.

B. DBE shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA laws, rules and

Attachment 4 – General Conditions 70

regulations. DBE shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.

C. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construc tion or material supply contract or any subcontract in connection with construction of the Work, shall be or become directly or indirectly interested financially in the Contract.

D. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or inserte d in improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in the GMP or Contract Time, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.

16.10 State License Board Notice.

A. Contractors are required by law to be licensed and regulated by 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 (4) years of the da te of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, the Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

16.11 Noise.

A. DBE shall use only such equipment on the Project and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by CAL-OSHA.

B. DBE shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal c ombustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer.

Should any muffler or other control device sustain damage or be determined to be ineffective or defective, DBE shall promptly remove the equipment and shall not return that equipment to the Project site until the device is repaired or replaced. Noise and vibration level requirements shall apply to all equipment on the jobsite or related to the Project, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by DBE.

16.12 Change In Name Or Nature of DBE’s Legal Entity.

A. Should a change be contemplated in the name or nature of DBE’s legal entity, DBE shall first notify City in order that proper steps may be taken to have the change reflected in the Contract Documents and all related documents. No change of DBE’s name or na ture will affect City’s rights under the Contract Documents, including but not limited to the bonds and insurance.

Attachment 4 – General Conditions 71

16.13 Complete Contract.

A. The Contract Documents constitute the full and complete understanding of the parties and supersede any previous agreements or understandings, oral or written, with respect to the subject matter hereof. The Contract may be modified only by a written instrument signed by both parties or as otherwise provided in the Contract Documents.

16.14 Notice of Third Party Claims.

A. Pursuant to Public Contract Code section 9201, City shall provide DBE with timely notification of the receipt of any third-party claim relating to the Contract.

16.15 Severability of Provisions.

A. If any one or more of the provisions contained in the Contract Documents should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

16.16 Correction of Errors and Omissions.

A. DBE agrees to correct any error or omission in the Construction Documents or Contract Documents at no additional cost to Agency.

16.17 Interpretation.

A. The Contract Documents shall not be construed in favor of or against any party, but shall be construed as if all parties prepared the Contract Documents.

END OF GENERAL CONDITIONS

Attachment 5 – Special Conditions 1

ATTACHMENT 5

SPECIAL CONDITIONS

Attachment 6 – Scope of Services 1

ATTACHMENT 6

SCOPE OF SERVICES

Exhibit F – Levine Act Disclosure Form 1
ATTACHMENT 7

PROJECT LABOR AGREEMENT

Chula Vista City CouncilJanuary 20, 2026

Chula Vista City Council
January 20, 2026