Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: MATT BAUMGARDNER, P.E., DIRECTOR OF PUBLIC WORKS/CITY
ENGINEER
DATE: FEBRUARY 27, 2024
SUBJECT: AGREEMENT FOR PRE-ENGINEERED MODULAR BUILDING DESIGN
AND FABRICATION SERVICES FOR THE SPACE SHUTTLE EXHIBIT AND
EDUCATION BUILDING PROJECT
EXECUTIVE SUMMARY
The City Council will consider awarding an agreement to Knight Building Systems for the pre-engineered building design and fabrication services for the Space Shuttle Exhibit and Education Building Project (“Shuttle Exhibit Project”). The proposed Shuttle Exhibit Project is an addition to the campus of the Columbia Memorial Space Center comprising of a new exhibit building (Pre-Engineered Modular Building – PEMB), a smaller building of traditional construction to house two STEM learning spaces, and related site improvements. A component of the Shuttle Exhibit Project involves the installation of a PEMB that will house the Space Shuttle Inspiration and other exhibits, as well as other staff offices, storage, and support spaces. This first step of procuring the services of a firm to design and fabricate the PEMB is a necessary element in completing the foundation and site work design for the construction bids of the overall Shuttle Exhibit Project, which staff anticipates will be ready in September 2024.
RECOMMENDATION
That the City Council:
1. Award a contract to Knight Building Systems in the amount of $3,523,627 for the pre-engineered building design and fabrication services for the Space Shuttle Exhibit and Education Building Project (“Shuttle Exhibit Project”); and
2. Authorize the City Manager or his designee to execute any change orders or additional scope of work for this Shuttle Exhibit Project up to a 10 percent contingency amount of $352,627; and
3. Approve a resolution adopting the final Mitigated Negative Declaration (MND) for the Shuttle Exhibit Project under the provisions of the California Environmental Quality Act (CEQA).
AGREEMENT FOR PRE-ENGINEERED MODULAR BUILDING DESIGN AND FABRICATION SERVICES
FOR THE SPACE SHUTTLE EXHIBIT AND EDUCATION BUILDING PROJECT FEBRUARY 27, 2024
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BACKGROUND
The location of the existing Columbia Memorial Space Center is a historic site that included the manufacturing headquarters for Emsco, Kinner, Vultee, North American Aviation, Rockwell, and Boeing, all of which were involved in the Apollo and Space Shuttle programs. In 2009, the site opened as a memorial to Columbia Shuttle Crew STS-107, who were tragically lost on February 1, 2003. Since that time, the site has become a regional destination as a hands-on learning center and museum for STEM education.
On average, the Center engages up to 100,000 visitors and over 350 school field trips each year. It includes the region’s only public robotics lab and is recognized as a Smithsonian- and NASA-affiliated institution. It has considerable reginal impacts, with 20,000 people attending events such as City of STEM. Considering the growing interest and demand that the site has garnered over time, the need was identified for additional space for programs, community gathering, meeting space for audiences of 250-300 people, and a permanent display of the Space Shuttle Inspiration (an original mock-up of the Space Shuttle).
In Fall 2021, contracts were awarded to LPA (Architect), Huckabee (Project Management), and Ultrasystems (Environmental Services). Since that time, City staff has worked closely with the consultant team to advance the Shuttle Exhibit Project design and environmental analyses. On December 12, 2023, the City Council authorized the release of the Request for Proposals (RFP) from qualified Design-Build firms with experience with Pre-Engineered Modular Building (PEMB) systems. Staff advertised the RFP on PlanetBids through January 29, 2024.
ANALYSIS
The overall design of Shuttle Exhibit Project is currently in progress and relies on the design and fabrication of the PEMB, which will house the Space Shuttle Inspiration. The design and fabrication work to be completed by Knight Building Systems will provide the key design and engineering information that is needed in the final foundation and site work construction plans that are being developed by the architect, LPA.
On January 29, 2024, staff received proposals from two Design-Build firms. The results were as follows:
CONTRACTOR LOCATION COST ESTIMATE
Knight Building Systems Tehachapi $3,523,657
Facility Builders & Erectors, Inc. Anaheim $5,600,000 to $7,800,000
Staff evaluated the proposals submitted by each firm based on prior relevant project experience, pricing, experience of key personnel, and overall quality and completeness
AGREEMENT FOR PRE-ENGINEERED MODULAR BUILDING DESIGN AND FABRICATION SERVICES
FOR THE SPACE SHUTTLE EXHIBIT AND EDUCATION BUILDING PROJECT FEBRUARY 27, 2024
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of the proposal. In reviewing the proposals, determined that Knight Building Systems provided a complete proposal, demonstrated relevant project experience with the design and fabrication of similar PEMB systems, and provided a responsive cost estimate that is within the engineer’s estimate range of $2,500,000 to $3,600,000.
A Notice to Proceed (NTP) for Design Services will be issued to Knight Building Systems on February 28, 2024 following City Council approval. It is anticipated that design and subsequent approval of the plans and specifications for the Shuttle Exhibit Project will be ready by September 2024. A separate NTP for Fabrication Services will be issued following approval of plans and specifications for the project. It is anticipated that fabrication and delivery of the PEMB system components will be completed by Spring 2025, concurrent and aligned with the construction schedule of the overall project. Staff anticipates bidding the construction portion of the project in Fall 2024 and awarding the overall construction contract by December 2024.
Environmental Analyses
The City completed the environmental analyses required for State and Federal grant- funded construction projects in December 2023. For the State-level grant funding, an Initial Study/Mitigated Negative Declaration (IS/MND) was completed under provisions of the California Environmental Quality Act (CEQA). A Mitigated Negative Declaration (MND) finding resulted from the Initial Study, which was the preliminary analysis to determine the relative environmental impacts that could potentially result from the construction project. For an MND finding, mitigations taken or agreed to by the applicant results in their being no substantial evidence that the revised project will have any significant impact on the environment. A resolution adopting the IS/MND is shown in Attachment C.
For the Federal-level grant funding, an Environmental Analysis (EA) was completed following the provisions of the National Environmental Policy Act (NEPA) and resulted in a Finding of No Significant Impact (FONSI).
The IS/MND and FONSI findings were prepared and submitted for their respective minimum public comment review periods of 30 days, for CEQA, and 15 days, for NEPA.
The public comment review periods were completed in December 2023. The IS/MND findings, the Notice of Determination, and Response to public comments are shown in Attachment B. The FONSI finding is shown in Attachment D.
CITY COUNCIL PRIORITIES
Quality of Life, Neighborhood & Infrastructure
FISCAL IMPACT
AGREEMENT FOR PRE-ENGINEERED MODULAR BUILDING DESIGN AND FABRICATION SERVICES
FOR THE SPACE SHUTTLE EXHIBIT AND EDUCATION BUILDING PROJECT FEBRUARY 27, 2024
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Approval of the recommended actions will result in an expenditure of approximately $3,876,254 (including 10 percent contingency), from budgeted Capital Improvement Program (CIP) funds to cover the Total Estimated Project Cost (breakdown listed in table below) for the Space Shuttle Exhibit and Education Building Project, CIP Project No. 21-
18. Description Amount
PEMB Design Services $483,966
PEMB Fabrication Services $3,039,661
Contingency (10 percent) $352,627
Total Estimated Project Cost: $3,876,254
There are sufficient fund balances available for the PEMB portion of the Shuttle Exhibit Project, as shown in the following table:
Account No. Funding Source Amount
26-1-6829 State – Summer 2019 (Plan, Design, Construction) $5,000,000 26-1-6834 State – Summer 2019 (Improvements to existing building) $800,000 26-1-6846 State – Summer 2021 (Rehabilitation of Inspiration) $800,000 26-1-6829 Federal – Fall 2022 (Construction) $1,000,000 26-1-6829 State – Summer 2023 (Construction) $2,700,000 40-1-6829 Capital Project funds (Construction) $4,000,000 Total Project Funding: $13,500,000
Funding for the Shuttle Exhibit Project began in Summer 2019 when the City received a $5.8 Million grant from the State of California through Assemblywoman Cristina Garcia to develop a master plan for the Space Center, for design and construction of a new building project, and to dedicate funds for improvements to the existing building. In Summer 2021, the City received an additional $800,000 in funds from the State through Senator Bob Archuleta for rehabilitation of the Space Shuttle Inspiration. In Fall 2022, Congress, led by Congresswoman Lucile Roybal-Allard, granted the Space Center $1 Million to be used toward the new building project. In Summer 2023, the State of California allocated an additional $2.7 Million, led by Assemblymember Blanca Pacheco. The City also has appropriated $4 Million in Capital Project Funds for the Space Shuttle Project for a total of $13.5 Million raised to date ($11.9 Million for the construction, $0.8 Million for rehabilitation of the Space Shuttle Inspiration, and $0.8 Million for improvements to the existing Columbia Memorial Space Center facility. Concurrent with the City’s efforts to secure grant funds, the Columbia Memorial Space Center Board of Directors is developing their fundraising campaign and launching this program in 2024.
AGREEMENT FOR PRE-ENGINEERED MODULAR BUILDING DESIGN AND FABRICATION SERVICES
FOR THE SPACE SHUTTLE EXHIBIT AND EDUCATION BUILDING PROJECT FEBRUARY 27, 2024
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ATTACHMENTS
Attachment A – Agreement for PEMB Design and Fabrication Services Attachment B – Initial Study/Mitigated Negative Declaration (IS/MND) findings Attachment C – Resolution No. 24-8231
Attachment D – Finding of No Significant Impact (FONSI)
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AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
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CITY OF DOWNEY
AGREEMENT FOR DESIGN & FABRICATION OF
PRE-ENGINEERED MODULAR BUILDING
Pre-Engineered Modular Building for
Space Shuttle Exhibit & Education Building Project
This AGREEMENT FOR DESIGN & FABRICATION OF PRE-ENGINEERED MODULAR BUILDING (“Agreement”) is made and entered into this 27th day of February 2024, by and between the CITY OF DOWNEY, a municipal corporation organized under the laws of the State of California (“City”) and KNIGHT BUILDING SYSTEMS (“Contractor”). The City and Contractor are sometimes individually referred to as a "Party" and collectively as "Parties" in this Agreement.
1. Recitals
1.1. The City is a municipal corporation organized and existing under the laws of the State of California, with power to contract for the Services provided for herein.
1.2. The City intends to improve the Columbia Memorial Space Center, located at 12400 Columbia Way, Downey, CA 90242 (“Site”), which is commonly referred to as the City’s Space Shuttle Exhibit & Education Building Project (“Shuttle Project”). A component of the Shuttle Project contemplates the installation of pre-engineered modular building (“PEMB”), and the City desires a qualified contractor to design the PEMB for the Shuttle Project (“Project PEMB”) so that LPA Architects (“Architect”), the architect of record, can complete the overall design of the Project, and to fabricate the Project PEMB during construction of the Shuttle Project (“Project”). The Project shall consist of the following as set forth in this Agreement: (i) the design of the Project PEMB consistent with the terms of this Agreement, including, without limitation, the scope of design services in Exhibit “A” attached hereto (“Design Services”); and (ii) fabrication, delivery, and storage of the components for the Project PEMB consistent with the terms of this Agreement, including, without limitation, the scope of fabrication services in Exhibit “C” attached hereto (“Fabrication Services”); (collectively, “Services”).
1.3. The City requires the services of a duly qualified and licensed contractor to perform the Services. Contractor represents that it is aware of the City's plans with respect to the Project.
1.4. Contractor warrants that it is fully licensed, qualified, and willing to perform the Services, and/or will utilize licensed, qualified, and able subcontractor(s) to perform such Services and identify them as key personnel in this Agreement.
1.5. The City desires to engage Contractor to render the Services for the Project.
2. Terms
2.1. Employment of Contractor. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the Services for the Project. The Services are more particularly described throughout this Agreement, including, without limitation Exhibit “A” (Design Services) and Exhibit “C” (Fabrication Services), each of which attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed Attachment A
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by Contractor shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.
2.2. Services & Progression of the Services.
2.2.1. Contractor Services. Contractor shall fully and adequately complete the Services described in this Agreement and in Exhibit "A" attached hereto and incorporated herein by reference.
2.2.2. Progression of the Services. Contractor shall perform the following as component of the Services consistent with the terms of this Agreement:
2.2.3. Design Services. Contractor shall perform all services necessary to prepare a completed and permitted design of the Project PEMB sufficient to enable the Architect to complete the overall design of the Project and to enable Contractor to fabricate the materials identified as being necessary to install and construct the Project PEMB as identified by the Contractor during the Design Services.
Contractor shall perform the Design Services consistent with this Agreement, including, without limitation Exhibit “A” and the specification for the Project PEMB prepared by the Architect attached hereto as Exhibit “D” and incorporated herein by reference (“Project PEMB Specification”).
2.2.4. Fabrication Services. Contractor shall perform all services necessary to fabricate, deliver, and store the materials required to install and construct the Project PEMB as identified by Contractor in the Final Materials Report (as defined in Exhibit “A”) (“PEMB Materials” or “Goods”).
Contractor shall perform the Fabrication Services consistent with this Agreement, including, without limitation Exhibit “C” and the Final Materials Report approved by the City. All deliveries under this Agreement shall be subject to the Delivery Terms in Exhibit “C” attached hereto, and incorporated herein by this reference.
2.3. Contractor’s Representative; Key Personnel.
2.3.1. Contractor shall name a specific individual to act as the “Contractor’s Representative”, subject to the approval of the City. Contractor hereby designates Brent Filippini, P.E., (License No. 593645) to act as the Contractor’s Representative for the Project. The Contractor’s Representative shall: (1) maintain oversight of the Project at all times; (2) have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with the City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Contractor’s Representative shall be subject to the City's prior written approval, which approval shall not be unreasonably withheld. The new Contractor’s Representative shall be of at least equal competence and experience as the prior Contractor’s Representative. In the event that the City and Contractor cannot agree as to the substitution of a new Contractor’s Representative, the City shall be entitled to terminate this Agreement without any further liability to the Contractor.
2.3.2. In addition to the Contractor’s Representative, Contractor has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Contractor may substitute others of at least equal competence and experience upon written approval of the City. In the event that the City and Contractor cannot agree as to the substitution of key personnel, engineers or consultants, the City shall be entitled to terminate this Agreement for cause. As discussed below, any
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AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
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personnel, engineers or consultants who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be immediately removed from the Project by the Contractor at the request of the City. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: John Knight, President; Brent Filippini, Senior Estimator/Project Manager; Brian Gearhart, Project Manager; Chris Camplin, Project Manager; Brenda Gott, Project Manager/Estimator/Permit Liaison; Nucor Building Systems, engineering and fabrication.
2.4 Hiring of Consultants and Personnel.
2.4.1 Right to Hire or Employ. Contractor shall have the option, unless the City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the Project PEMB, and to delegate to them such duties as Contractor may delegate without relieving Contractor from administrative or other responsibility under this Agreement. Contractor shall be responsible for the coordination and cooperation of Contractor's architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by the City in its sole and reasonable discretion. Contractor shall notify the City of the identity of all consultants at least fourteen (14) days prior to their commencement of services to allow the City time to review their qualifications and decline consent to their participation on the Project if deemed necessary by the City in its sole and reasonable discretion.
2.4.2 Qualification and License. To the extent required by the Services, all architects, engineers, experts and other consultants retained by Contractor in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.
2.4.3 Standards and Insurance. All architects, engineers, experts and other consultants hired by Contractor shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Contractor's agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.
2.4.4 Assignments or Staff Changes. Contractor shall promptly obtain written City approval prior to any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Contractor's consultants and key personnel shall be subject to approval by the City.
2.4.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Contractor at Contractor's sole expense.
2.5 Standard of Care; Performance of Employees.
2.5.1 Standard of Care. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be fully responsible to the City for any damages to the City and delays to the Project as specified in the indemnification provision of this Agreement to the extent caused by the Contractor. Contractor represents
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and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein.
2.5.2 Performance of Employees. Any employee or consultant who is reasonably determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be immediately removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
2.6 Laws and Regulations.
2.6.1 Knowledge and Compliance. Contractor shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Contractor by law.
Contractor shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. If the Contractor performs any Services or work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom.
Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
2.6.2 Drawings and Specifications. Contractor shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including, but not limited to, the California Building Code, Titles 19, 21 and 24 of the California Code of Regulations, and any requirements of the Authorities Having Jurisdiction (“AHJs”), in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit "A" attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time, which were not known or reasonably should not have been known, by Contractor, may be compensated as Additional Services. Contractor shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit "A" attached hereto.
For the preparation of all such drawings and specifications, the Contractor shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Contractor and the City.
2.6.3 Americans with Disabilities Act. Contractor will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act ("ADA"). Contractor shall inform the City of the existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Contractor brings such inconsistencies and conflicting interpretations to the
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attention of the City and requests the City's direction on how to proceed, the Contractor's interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Contractor, and the Contractor shall correct all plans, specifications and other documents prepared for the Project PEMB at no additional cost if its interpretations are shown to be incorrect. In the event that the Contractor brings such inconsistencies and conflicting interpretations to the attention of the City, seeks direction from the City and requests the City's direction on how to proceed, with respect to any inconsistent and/or conflicting interpretation, the Contractor shall be responsible to the City pursuant to the indemnification provision of this Agreement. The City acknowledges that the requirements of the federal and state accessibility laws are subject to various and possibly contradictory interpretations, and that the Contractor cannot warrant or guarantee that its interpretation will be correct and will be entitled to proceed in accordance with the City’s direction. Contractor shall at all times adhere to the standard of care provided for in this Agreement and will use its reasonable professional efforts and judgment in making its interpretations.
2.6.4 Permits, Approvals and Authorizations. Contractor shall provide the City with a list of all permits, approvals or other authorizations required for the Project from all federal, state or local governmental bodies with approval jurisdiction over the Project. Contractor shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.
2.7 Independent Contractor. The City retains Contractor on an independent contractor basis and Contractor is not an employee of the City. Contractor is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to the City's employees. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of the City, and shall at all times be under Contractor's exclusive direction and control.
Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
2.8 Schedule of Services.
2.8.1 Time for Completion. Contractor shall fully complete the Services based on the following milestones (collectively, “Contract Time”):
2.8.1.1 Design. Upon Notice to Proceed, Contractor shall coordinate with Architect to develop a final basis of design. Upon City approval of basis of design and Notice to Proceed with final design and engineering, Contractor shall fully complete the final drawings and calculations for plan check submittal within 90 calendar days. .
2.8.1.2 Plan Check. Contractor shall complete all plan check comments within a cumulative time of 28 calendar days upon receipt of comments.
2.8.1.3 Release for Fabrication. Upon receipt of plan approvals, Contractor shall release the design for fabrication by the PEMB manufacturer within 7 calendar days. Upon the City’s Notice to Proceed with fabrication, there shall be an allowance of 120 calendar days for fabrication and delivery.
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2.8.2 Timely Performance Standard. Contractor shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein. Specifically, Contractor shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the City and within any completion schedules adopted for the Project. Contractor agrees to coordinate with the City's staff, contractors and consultants in the performance of the Services, and shall be available to the City's staff, contractors and consultants at all reasonable times.
2.8.3 Performance Schedule. On a monthly basis, Contractor shall prepare an updated schedule of Services that demonstrates the then anticipated date for the completion of the Project (“Performance Schedule”) that will include important milestones for the completion of the Project, including milestones for approvals. Such schedule shall be submitted to the City with each monthly invoice subject to the City's review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for the City's review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If the City and Contractor cannot mutually agree on a performance schedule, the City shall have the authority to immediately terminate this Agreement. The Performance Schedule shall not be exceeded by Contractor, without the prior written approval of the City. If the Contractor's Services are not completed within the Contract Time , or according to any milestones established herein, it is understood, acknowledged and agreed that the City will suffer damage for which Contractor will be responsible pursuant to the indemnification provision of this Agreement.
2.8.4 Excusable Delays. Any delays in Contractor's work caused by the following shall be added to the time for completion of any obligations of Contractor: (1) the actions of the City or its employees; (2) the actions of those in direct contractual relationship with the City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Contractor; and (5) any act of God or other unforeseen occurrence not due to any fault or negligence on the part of Contractor. Neither the City nor Contractor shall be liable for damages, liquidated or otherwise, to the other on account of such excusable delays.
2.8.5 Request for Excusable Delay Credit. Contractor shall, within ten (10) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay. The City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City's findings of fact thereon shall be final and conclusive on the parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected.
The sole remedy of Contractor for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Contractor make an application for an extension of time, Contractor shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.
2.8.6 Liquidated Damages.
2.8.6.1 The time of Contractor’s performance is of the essence for this Agreement.
The Project PEMB will be delivered by the Completion Date, as adjusted pursuant to the terms of this Agreement. Contractor must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or
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at law, Contractor shall pay City the sum of $2,000 for each calendar day for which the Project PEMB is unavailable beyond the scheduled delivery date(s) specified in the Performance Schedule.
2.8.6.2 The Project PEMB is part of a larger project or projects that require the coordination of multiple contractors or suppliers. Contractor will fully cooperate in scheduling the delivery so that City can maximize the efficient completion of such project(s).
2.9 Additional Contractor Services. At the City's request, Contractor may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit "A" attached hereto, and/or not customarily furnished in accordance with generally accepted practices in projects similar to the Project. As used herein, "Additional Services" mean: (1) any work which is determined by the City to be necessary for the proper completion of the Project , but which the parties did not reasonably anticipate would be necessary for the Contractor to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit "A" attached hereto. Contractor shall not perform, nor be compensated for, Additional Services without prior written authorization from the City and without an agreement between the City and Contractor as to the compensation to be paid for such services. The City shall pay Contractor for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Contractor pursuant to the indemnification provision of this Agreement. Such Additional Services shall not include any redesign or revisions to drawings, specifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Contractor was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above.
2.10 City Responsibilities. The City's responsibilities shall include the following:
2.10.1 Data and Information. The City shall make available to Contractor all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria which is reasonably available to the City.
2.10.2 Project Survey. If required pursuant to the scope of the Project and if requested by Contractor, the City shall furnish Contractor with, or direct Contractor to procure at the City's expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.
2.10.3 Testing. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must be known to determine soil condition or to ensure the proper development of the required drawings and specifications.
2.10.4 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection, as required by Title 21 of the California Code of Regulations, or to conduct any other environmental or hazardous materials testing and inspection pursuant to any other applicable laws, rules or regulations.
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2.10.5 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.
2.10.6 City's Representative. Designate a person to act as its representative for the performance of this Agreement ("City's Representative"). The City's Representative shall be authorized to act as liaison between Contractor and the City in the administration of this Agreement and the Construction Documents, and shall have the power to act on behalf of the City for all purposes under this Agreement. Such person shall assist Contractor in observing construction of the Project and participating in the preparation of the Punch List Items required by Exhibit "A" attached hereto. The City may designate new and/or different individuals to act as the City's Representative from time to time. The City's Representative shall render decisions in a timely manner so as to avoid unreasonable delay in the orderly and sequential progress of the Services, as provided in the excusable delay provisions of this Agreement above.
2.10.7 Review and Approved Documents. Review all documents submitted by Contractor, including change orders and other matters requiring approval by the City's Governing Board or other officials. The City shall advise Contractor of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.
2.11 Compensation.
2.11.1 Contractor's Compensation for Basic Services. Subject to adjustment under Exhibit "B" attached hereto, the City shall pay to Contractor, for the performance of all Services rendered under this Agreement, the total amount of three million, five hundred twenty-three thousand, six hundred twenty-seven Dollars and zero Cents ($3,523,627) ("Total Compensation"). This Total Compensation amount is allocated between Design Services and Fabrication Services as set forth in Exhibit "B" and incorporated herein by reference. The Total Compensation pursuant to Exhibit "B" attached hereto, shall constitute complete and adequate payment for the Services provided under this Agreement.
2.11.2 Payment for Additional Services. Additional Services may be authorized pursuant to the applicable provisions of this Agreement. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit "C" attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties.
Contractor shall be paid for Additional Services, as defined by this Agreement, so long as they have been approved in advance by the City. If the City requires Contractor to hire consultants to perform any Additional Services, Contractor shall be compensated therefore at the rates and in the manner set forth in Exhibit "C" attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. The City shall have the authority to review and approve the rates of any such consultants. In addition, Contractor shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 2.11.3.
2.11.3 Reimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Contractor shall not be reimbursed for any expenses unless authorized in writing by the City, which approval may be evidenced by inclusion in Exhibit "C" attached hereto. Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Contractor in the interest of the Project. Contractor shall be required to acquire prior written consent in order to obtain reimbursement for the following: (1) extraordinary transportation expenses
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incurred in connection with the Project; (2) out-of-town travel expenses incurred in connection with the Project; (3) fees paid for securing approval of authorities having jurisdiction over the Project; (4) bid document duplication costs in excess of $0; and (5) other costs, fees and expenses in excess of $0.
2.11.4 Payment to Contractor. Contractor's compensation and reimbursable expenses shall be paid by the City to Contractor no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit "B" and the compensation rates indicated in Exhibit "C" attached hereto and incorporated herein by reference. In order to receive payment, Contractor shall present to the City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Contractor shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit "B" attached hereto. The City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner. Upon cancellation or termination of this Agreement, Contractor shall be compensated as set forth in the termination provision herein.
2.11.5. Payment for Additional Services. Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Contractor shall present to the City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. The City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.
2.11.6 Retention. City shall withhold from each payment to contract five percent (5%) of the total amount then due to Contractor as retention for the Project. After Contractor completes the Project, the City will release retention to Contractor consistent with applicable law.
2.11.7 Withholding Payment to Contractor. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct under the indemnification provisions of this Agreement.
Failure by the City to deduct any sums from a progress payment shall not constitute a waiver of the City's right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement or state law. Payments to the Contractor for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Contractor shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from parties not within the Contractor's reasonable control.
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2.11.8 Prevailing Wages. Contractor is aware of the requirements of California 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 Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. The City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor's principal place of business and at the Project site.
Contractor shall defend, indemnify and hold the 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 alleged failure of Contractor or its consultants to comply with the Prevailing Wage Laws.
2.11.9 DIR Registration. If any portion of the Services provided by Contractor are classified as “public works” under the Labor Code, then in addition to the foregoing, pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and all applicable subcontractors/sub-consultants must be registered with the Department of Industrial Relations (“DIR”). Contractor and all such subcontractors/sub-consultants shall maintain registration for the duration of the project and require the same of any other subcontractors. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of certified payroll records directly to the DIR.
2.12 Notice to Proceed. Contractor shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed (“Notice to Proceed”) for all or a portion of the Services. The City will first issue a Notice to Proceed for Design Stage. After completion of the Design Stage, the City reserves the right to issue a Notice to Proceed for the performance of Fabrication Services within six (6) months of the Contractor’s completion of Design Services (“Fabrication Notice”). Contractor shall not be entitled to any adjustment in the Total Compensation if the City issues the Fabrication Notice within the six (6) month period. If the City fails to issue a Notice to Proceed for Fabrication Services within a reasonable time after completion of the Design Services, the Contract Time shall be equitably adjusted.
2.13 Termination, Suspension and Abandonment.
2.13.1 City's Termination for Convenience. The City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Contractor shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Contractor shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by the City as a result of the default, if any, by Contractor. Upon the City's request and authorization, Contractor shall perform any and all additional Services necessary to wind up the work performed to the date of suspension, abandonment or termination. Contractor hereby expressly waives any and all claims for damages or compensation arising under this Section, except as set forth herein, in the event of such suspension, abandonment or termination.
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2.13.2 Contractor's Termination for Cause This Agreement may be terminated by the Contractor upon thirty (30) days written notice to the City only when the City has substantially failed to perform its obligations under this Agreement. The written notice shall include a description of the City’s failure to perform, status of the work completed as of the date of termination together with a description and a cost estimate of the effort necessary to complete work in progress. In such event, the Contractor shall be compensated for Services completed to the date of termination, together with compensation for such Additional Services performed after termination which are authorized by the City to wind up the work performed to the date of termination. Upon the City's request and authorization, Contractor shall perform any and all Additional Services necessary to wind up the work performed to the date of termination.
2.13.3 City's Suspension of Work. If Contractor's Services are suspended by the City, the City may require Contractor to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Contractor.
2.13.4 Documents and Other Data. Within seven (7) calendar days following suspension, abandonment or termination of this Agreement, Contractor shall provide to the City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which the City would have been entitled at the completion of Contractor's Services under this Agreement. Upon payment of the amount required to be paid to Contractor pursuant to the termination provisions of this Agreement, the City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Contractor under this Agreement.
In the event of a dispute regarding the amount of compensation to which the Contractor is entitled under the termination provisions of this Agreement, Contractor shall provide all Project Documents to the City upon payment of the undisputed amount. Contractor shall have no right to retain or fail to provide to the City any such documents pending resolution of the dispute. Contractor shall make such documents available to the City without additional compensation other than as may be approved as a reimbursable expense.
2.13.5 Employment of Other Contractors . In the event this Agreement is terminated in whole or in part as provided herein, the City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
2.14 Ownership and Use of Documents; Confidentiality.
2.14.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, architectural presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the "Project Documents") shall be and remain the property of the City. Although the official copyright in all Project Documents shall remain with the Contractor or other applicable subcontractors or consultant, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Contractor shall provide to the City copies of all Project Documents required by the City. In addition, Contractor shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Contractor
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shall make a reasonable effort to notify the City and provide the City with the opportunity to obtain the documents.
2.14.2 Right to Use. Contractor grants to the City the right to use and reuse all or part of the Project Documents, at the City's sole discretion and with no additional compensation to Contractor, for the following purposes: (i) the incorporation into the plans for construction of all or part of the Project; (ii) the repair, renovation, modernization, replacement, reconstruction or expansion of the Project PEMB at any time; and (iii) the construction of another project by or on behalf of the City for its ownership and use. The City is not bound by this Agreement to employ the services of Contractor in the event such documents are used or reused for these purposes. The City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Contractor or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit the City's right to recover for latent defects or for errors or omissions of the Contractor. Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Contractor shall be at the City's own risk with respect to third parties. If the City uses or reuses the Project Documents on any project other than this Project, it shall remove the Contractor's seal from the Project Documents and hold harmless Contractor and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project. Contractor shall not be responsible or liable for any revisions to the Project Documents made by any party other than the Contractor, a party for which the Contractor is legally responsible or liable, or anyone approved by the Contractor.
2.14.3 License. This Agreement creates a non-exclusive, irrevocable, and perpetual license for the City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Contractor shall require any and all subcontractors and consultants to agree in writing that the City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.
2.14.4 Right to License. Contractor represents and warrants that Contractor has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Contractor prepares or causes to be prepared pursuant to this Agreement. Contractor shall indemnify and hold the City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Contractor makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Contractor and provided to Contractor by the City.
2.14.5 Confidentiality. All Project Documents, either created by or provided to Contractor in connection with the performance of this Agreement, shall be held confidential by Contractor to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of the City, be used or reproduced by Contractor for any purposes other than the performance of the Services. Contractor shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Contractor which is otherwise known to Contractor or is generally known, or has become known, to the related industry shall be deemed confidential. Contractor shall not use the City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of the City.
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2.15 Indemnification. To the fullest extent permitted by law, Contractor shall defend (with counsel of the City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of Contractor’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses.
Contractor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor, the City, its officials, officers, employees, agents, or volunteers.
2.16 Insurance.
2.16.1 Time for Compliance. Contractor shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In the event Contractor fails to provide or maintain all required insurance, the City may, in its sole discretion, obtain such insurance and deduct the amount therefor from the Total Compensation.
2.16.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by Contractor, its officials, officers, agents, representatives, employees or subcontractors. Such insurance shall meet at least the following minimum levels of coverage:
(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); (3) Workers' Compensation and Employers' Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance; and (4) Professional Liability: Coverage which is appropriate to the Contractor's profession, or that of its consultants or subcontractors.
(B) Minimum Limits of Insurance. Coverages shall provide limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (3) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Code of the State of California. Employers Liability limits of $1,000,000 per accident for bodily injury or disease; and (4) Professional Liability: Not less than $2,000,000 per claim.
2.16.3 Professional Liability. Contractor and its consultants and subcontractors shall procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance with limits discussed in this Section. This insurance shall be endorsed to include contractual liability.
2.16.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
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(A) General Liability. The general liability policy shall be endorsed to state that: (A) the City, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the performance of the Agreement by the Contractor, its officials, officers, agents, representatives, employees or subcontractors, including materials, parts or equipment furnished in connection with such services; and (B) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees and agents shall be excess of Contractor's insurance and shall not be called upon to contribute with it in any way.
(B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (A) the City, its directors, officials, officers, employees and agents 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 Contractor or for which Contractor is responsible; and (B) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of Contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees and agents shall be excess of Contractor's insurance and shall not be called upon to contribute with it in any way.
(C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by Contractor.
(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees and agents.
2.16.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees and agents.
2.16.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (A) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees and agents; or (B) Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
2.16.7 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 the City.
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2.16.8 Verification of Coverage. Contractor shall furnish the City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the 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, and shall be on forms provided by the City, if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
2.16.9 Subcontractor and Consultant Insurance Requirements. Contractor shall not allow any of its architects, engineers, experts or other consultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular architects, engineers, experts or other consultants. Unless otherwise approved by the City, the architects, engineers, experts and other consultants shall comply with each and every provision of this Section.
2.17 Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of the City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.
2.18 Standardized Manufactured Items. Contractor shall cooperate and consult with the City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to the City's criteria to the extent such criteria do not interfere with building design.
2.19 Limitation of Agreement. This Agreement is limited to and includes only the work and/or Services included in the Project described herein. Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for architectural services between the City and the architect chosen therefor by the City.
2.20 Mediation. Disputes arising from this Agreement shall be first submitted to mediation with a mediator mutually agreeable to the parties hereto, prior to filing any claim under this Agreement or seeking judicial intervention of any kind. The type and process of mediation to be utilized shall be subject to the mutual agreement of the parties.
2.21 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement.
However, Contractor shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of the City. Any attempted assignment without such consent shall be invalid and void.
2.22 Asbestos Certification. Contractor shall certify to the City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that Contractor prepares for the Project. Contractor shall require all consultants
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who prepare any other documents for the Project to submit the same written certification. Contractor shall also assist the City in ensuring that contractors provide the City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Contractor shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.
2.24 No Third Party Rights. This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.
2.25 Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in Los Angeles County.
2.26 Entire Agreement. This Agreement, with its exhibits, contains the entire agreement of the parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the parties hereto. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all parties hereto.
2.27 Exhibits and Recitals. All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.
2.28 Severability. Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
2.29 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is expressly specified in writing.
2.30 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.
2.31 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
CITY: CONTRACTOR:
City of Downey Dept. of Public Works
11111 Brookshire Avenue
Downey, CA 90241
ATTN: Matthew Baumgardner
Knight Building Systems, Inc.
PO Box 2570
Tehachapi, CA 93581
ATTN: John Knight
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Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
2.32 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other reasonable costs of such action, including expert witness fees and expenses.
2.33 Time of Essence. Time is of the essence for each and every provision of this Agreement.
2.34 City's Right to Employ Other Consultants. The City reserves right to employ other consultants, including Contractors, in connection with this Project or other projects.
2.35 Prohibited Interests.
2.35.1 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City shall have the right to rescind this Agreement without liability.
2.35.2 Conflict of Interest. For the term of this Agreement, no director, official, officer or employee of the City, during the term of his or her service with the City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
2.36 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or any other classification protected by federal or state law. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Contractor shall also comply with all relevant provisions of the City’s Code or programs administered thereunder.
2.37 Labor Certification. By its signature hereunder, Contractor certifies that it 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 Services.
2.39 Subcontracting. As specified in this Agreement, Contractor shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of the City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.
2.40 Taxes.
65186.00000\41307378.1
AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
-18-
2.40.1 Contractor agrees to timely pay all sales and use tax (including any value added or gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local taxing authority on the ultimate purchase price of the any and all materials, equipment, machinery, and or goods provided under this Agreement or incidental thereto.
2.40.2 Contractor will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors.
Contractor will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.
2.40.3 All other taxes, however denominated or measured, imposed upon the price of the Goods provided hereunder, will be the responsibility of Contractor. In addition, all taxes assessed by any taxing jurisdiction based on Contractor property used or consumed in the purchasing, assembly, manufacturing, fabrication and delivery of the Project PEMB including, without limitation, ad valorem, use, personal property and inventory taxes, will be the responsibility of Contractor.
2.40.4 Contractor will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Contractor hereunder.
2.41 Supplemental Conditions. Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.
2.42 Federal Funding Provisions. Funds from the U.S. Department of Housing and Urban Development’s (“HUD”) Community Project Funding grant (“CPF”) will be used to fund all or a portion of the Project. The Contractor shall comply with, and shall require any and all subcontractors to comply with all requirements associated with CPF funding, including, without limitation, those included in the Federal Contract Provisions, attached hereto as Exhibit “E” and incorporated herein by reference. For any conflict between the terms of the Federal Contract Provisions and this Agreement or any other applicable regulation, the most stringent will control.
2.43 Authority to Execute. The persons executing this Agreement on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties.
CITY OF DOWNEY KNIGHT BUILDING SYSTEMS
Date: ____________________________
By: _____________________________
Name: ___________________________
Title:
Date: ____________________________
By: _____________________________
Name: ___________________________
Title:
President
John Knight
2-15-2024
John W. Knight
Digitally signed by John W. Knight
DN: C=US,
[email protected],
O="Knight Building Systems Inc. ", CN=John W. Knight
Date: 2024.02.15 08:47:21-08'00'
65186.00000\41307378.1
AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "A"
EXHIBIT "A"
SCOPE OF DESIGN SERVICES
1. General Requirements / Basic Services. Contractor agrees to perform all the necessary professional services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein, which shall include:
1.1. Conduct kick-off meeting with City staff to familiarize Contractor with the Project. The agenda for the meeting shall be prepared by the Contractor which shall include the following:
1.2. Introduction of Project team, definition of lines of communications, verification of approval process, finalization of project schedule, refining and tailoring the proposed outreach scope, and identification of dates for future meetings and deliverables.
1.3. Scheduling of monthly project status meetings with City staff.
1.4. Preparation of list of information and data requests and provide to the City.
1.5. Identification of any perceived obstacles to constructing the project.
1.6. Identification of overall goals for the project.
1.7. Scheduling for the submittal of all required deliverables.
1.8. Participate in monthly progress meetings until the fabrication and delivery of all materials for the Project PEMB is completed. Prepare the agenda and minutes for all meetings to be held for the project, inclusive of the kick-off meeting and all subsequent meetings. Prepare meeting agenda of any special items of discussion and minutes serving as a communication record and listing any required follow- up actions.
1.9. Communicate with the City’s Contractor’s Representative during the duration of the project, including meetings to review plans at “Initial Planning / Conceptual Design” and “Final Design Documents.”
1.10. Prepare and provide detailed project schedule with updates on a monthly basis.
1.11. Identify any AHJs and coordinate and receive any necessary approvals.
1.12. Provide a QA/QC plan on the project to ensure quality control for the duration of the project. This task shall include maintaining organization and communication over the entire project team, cost and schedule monitoring and performing a constructability review of the project plans, specifications and estimate upon project completion.
1.13. Meet with City staff, project stakeholders and program partners to assist in developing the Project PEMB.
1.14. Meet as needed with the City to accomplish the Services. Meetings expected between the Contractor and City shall include but not be limited to: Project kick-off meeting, presentation of the Conceptual Design, monthly progress meetings, meeting to present the Final Construction Documents.
1.15. Provide periodic schedule updates on deliverables and meetings as changes to original schedule occur or as needed based on the needs of the project.
2. Additional Services. Contractor shall perform the following Additional Services under this Agreement only if said services are authorized in advance in writing by the City. Said Additional Services shall be compensated in accordance with schedule in Exhibit "C".
65186.00000\41307378.1
AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "A"
2.1. Supervision of repair of damage to, or replacement of, the materials and equipment not resulting from fault of the Contractor.
2.2. If directed or requested by the City, the employment of special consultants, the preparation of special delineation of models, and overtime work by Contractor’s employees, except as otherwise required by this Agreement.
2.3. Providing contract administration services after the time under the Performance Schedule has been exceeded through no fault of Contractor.
3. Cooperation and Communication with City. Contractor shall cooperate and participate in consultations and conferences with the City, the City's consultants, authorized representatives of the City, and/or other local, regional, or state agencies concerned with the Project PEMB, which may be necessary for the completion of the Project or the development of the drawings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor's warranty period. Contractor shall take direction only from the City's Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.
4. Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that Contractor will be fully aware of the duties and responsibilities of the construction manager. Contractor shall cooperate with the construction manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. Contractor shall request clarification from the City in writing if Contractor should have any questions regarding the authority of the construction manager.
5. Initial Planning Phase . During the initial planning portion of the Design Services, Contractor shall:
5.1. Prepare and submit a QA/QC plan.
5.2. Provide all work necessary to familiarize the Contractor with the Project and Project PEMB so as to enable the Contractor to complete the Services:
5.3. Investigate the Project Site and perform any and all necessary site investigations that Contractor determines to be reasonably necessary to design the Project PEMB. Determine if any other documents or information are necessary for the completion of the Services.
5.4. Review and examine all design documents, including, without limitation, the Project PEMB Specifications, prepared by City consultants related to the Project PEMB and Site.
5.5. Review all available City records and documents including, but not limited to, existing improvement plans, topographic data, maps, “as-built” drawings, utility plans, reports, centerline ties, studies and other pertinent information necessary for said project. Review any surveys, documents, and other reports prepared by City consultants regarding the above and sub-surface conditions.
5.6. Perform a comprehensive diligent, visual inspection of the Site to ascertain the physical above-ground conditions of the Site that could reasonably impact the Project.
5.7. Prepare a conceptual design of the Project PEMB.
5.8. Meet with City staff and project stakeholders to present the conceptual design.
5.9. Coordinate proposed Project PEMB design with the overall building design in the Project.
65186.00000\41307378.1
AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "A"
5.10. After submittal of conceptual design, revise conceptual design and provide other design information based on City feedback.
5.11. Prepare an estimate of quantities of materials that Contractor anticipates fabricating.
5.12. Identify any and all testing and inspections required for the fabrication of the materials, to the extent applicable.
5.13. Deliverables. Contractor shall provide the following deliverables to the City:
5.13.1. QA/QC Plan
5.13.2. Conceptual Design
5.13.3. Estimate of Material Quantities
5.14. Approvals. Contractor shall be responsible for identifying and receiving approvals from AHJs, as applicable.
6. Final Design Documents. During the final working drawings and specifications portions of the Design Services, Contractor shall do all of the following as well as any incidental services thereto:
6.1. The Contractor shall prepare and submit, based on the Project PEMB Specifications and other design documents provided to Contractor by the City and Architect, plans, specifications, and all other design documents for City approval at 100% completion level sufficient for the Architect to incorporate into the final construction documents to bid the Project. Contractor shall:
6.1.1. Prepare 100% drawings/plans in (i) AutoCAD 2019 or Revit 2019, or newer, and (ii) digital .pdf, and provide dwg’s, .rvt, or other compatible digital file to City.
6.1.2. Prepare 100% specifications printed on 8½” x 11” paper and staple bound and a digital pdf file.
6.1.3. Prepare a final report of all materials that Contractor will fabricate (“Final Materials Report”).
6.1.4. Prepare a list of additional equipment and materials that the selected general contractor will need to procure to install the Project PEMB.
6.1.5. If applicable, identify and coordinate with all AHJs to obtain all permits and/or approvals.
6.1.6. Meet with City staff and project stakeholders to present the final design.
6.1.7. To the extent necessary, perform and revisions required by the City, its consultants, and/or AHJs.
6.2. Deliverables. Contractor shall provide the following deliverables to the City:
6.2.1. Copies of the 100% drawings/plans in electronic format.
6.2.2. Copies of the 100% specifications in electronic format.
6.2.3. Final Materials Report.
6.3. Approval and Revisions. The City shall review, study, and check the design documents presented to it by Contractor, and request any necessary revisions or obtain any necessary approvals by the City, subject to the approval of all federal, state, regional or local agencies concerned with the Project.
Contractor shall make all the City requested changes, additions, deletions, and corrections in the design documents at no additional cost, so long as they are not inconsistent with earlier City direction. In addition,
65186.00000\41307378.1
AGREEMENT FOR DESIGN& FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "A"
the City reserves the right to have the Architect review the design and provide requested changes, additions, deletions, and corrections in the design documents, which Contractor shall make at its sole expense.
6.4. Final Working Drawings and Specifications. Once the City provides Contractor with specific written approval of the design documents described herein, Contractor shall prepare such complete working drawings and specifications as are necessary for performing Fabrication Services and ultimately incorporating the design into the final design for the Project ("Final Working Drawings and Specifications"). Contractor shall obtain approvals of all AHJs for the Final Working Drawings and Specifications.
6.5. Copies of Final Working Drawings and Specifications and Other Documents.
Contractor, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein to the City. Additionally, at the City's expense, Contractor shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by the City shall be provided at actual cost to the City.
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "B"
EXHIBIT "B"
COMPENSATION TERMS
1. Design Services.
1.1. That portion of the Total Compensation attributable to Design Services shall be Four Hundred Eighty-Three Thousand, Nine Hundred Sixty-Six Dollars and Zero Cents ($483,966).
1.2. Contractor shall invoice the City for work actually and satisfactorily performed up to the above-amount for Design Services based on the following fee schedule:
Position Hourly Rate
Structural/Foundation Engineering $225.00
Pre-engineered Building Design $155.00
Drafting/Detailing/Shop Dwg. Tech $115.00
2. Fabrication Services.
2.1. That portion of the Total Compensation attributable to Fabrication Services shall be Three Million, Thirty-Nine Thousand, Six Hundred Sixty-One Dollars and Zero Cents ($3,039,661). This amount shall be full compensation for all materials included in the Final Materials Report.
2.2. If the quantities of materials to be fabricated change, Contractor shall be entitled to compensation on a per-unit basis based on the rates below:
Rates Hourly Rate
Project Manager $125.00
Semi-Trucking/Delivery $145.00
Drafting/Detailing/Shop Dwg. Tech $115.00
Any Nucor Steel Increases in materials cost Nucor Cost Plus 0% O&P plus applicable sales tax
Any Nucor Steel Decreases in materials cost Nucor Credit plus 10% O&P, plus applicable sales tax
Any PEMB related item cost increase due to
client / owner requested changes in this
contract basis of design based upon Knight
Building Systems, Inc. proposal scope
descriptions and estimate drawings provided
______________________________
Any applicable change cost increase
plus 10% O&P, plus applicable sales
tax
Due to highly volatile “Steel Prices” over the last 15 years, the following Building Materials Escalation Clause shall apply: Regardless of any agreement to the contrary, the pricing provided is subject to increase if the cost of HR CRU-US price (published CRU Steel Price Index) increases, or decreases, between the date of this contract execution and date of client / owner written approval to release the building into fabrication. In the event of such increase, or decrease, in materials cost from the PEMB manufacturer, and upon written documentation establishing the extent of the steel materials only increase, or decrease, the contract price may be adjusted equitably as follows.
Any Nucor steel materials cost increase shall be billed / paid by client / owner based upon our cost increase plus 0%
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "B"
mark up for overhead and profit, plus applicable sales taxes. Any cost decrease shall be credited / deducted against this contract amount based upon our credit dollar amount from Nucor plus 10% overhead and profit, plus applicable sales tax.
Sales Tax Escalation Clause: Regardless of any agreement to the contrary, the pricing provided in this Contract is subject to increase if the cost of CA Sales Tax increases at time of payment above 10.00%, or decrease if below
10.00%.
3. Reimbursable Expenses.
3.1. Offsite Materials Storage - $5,000.00 per week cost as of this contract date. To be reimbursed at Knight Building Systems, Inc. actual cost at time of storage dates and for durations required without mark-up 0% O&P.
4. Additional Services. Additional Services shall be computed at the actual hourly rates described above.
5. Additional Consultants. If the City requires Contractor to hire consultants to perform any Additional Services, Contractor shall be compensated therefore at the consultant's actual hourly rates. The City shall have the authority to review and approve the rates of any such consultants.
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "C"
EXHIBIT “C”
FABRICATION & DELIVERY TERMS
Section 1. Definitions.
A. “Goods” means all associated, machinery, equipment, supplies, items, parts, materials, or other items related to the Project PEMB identified in the Final Materials Report.
B. “Delivery Date(s)” shall be calculated based on the time limits in article 2.8.1.3 of the Agreement.
Section 2. Responsibility for Fabrication & Delivery
A. After the City’s issuance of the Fabrication Notice, Contractor shall complete all work necessary to fabricate the Goods identified in the Final Materials Report. All Goods shall be as specified, to the extent applicable, in the Final Materials Report and Final Working Drawings and Specifications.
B. Contractor will deliver all Goods fabricated hereunder to the City no later than the Delivery Date. When the Contractor finishes fabricating the Goods, Contractor shall give notice to the City. The City will identify in writing the location that Contractor will deliver the Goods.
Section 3. Materials and Workmanship.
No substitution will be made to the Goods, or any portion thereof, without City’s written approval. Any alteration without the approval of the City will be deemed to be defective material. All Goods fabricated by Contractor shall be fabricated in a good and workmanlike manner, free of defect, and in good operating order. Contractor shall comply with the standards of its profession in fabricating the terms Section 4. Inspections and Tests.
City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements of the Final Materials Report and Final Working Drawings and Specifications then without prejudice to any other rights or remedies, City may reject the Goods or exercise any of its rights in this Exhibit. The inspection, failure to make inspection, acceptance of goods, or payment for Goods shall not impair City’s right to reject nonconforming goods, irrespective of City’s failure to notify Contractor of a rejection of nonconforming Goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming Goods after rejection or acceptance thereof.
Section 5. Warranty.
A. Contractor warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Contractor and City, from the date of final written acceptance of the Goods by City as required hereunder for final payment. Contractor further warrants that any Fabrication Services, and delivery services, provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "C"
B. Contractor further warrants that all machinery, equipment, or process included in the Goods will meet the Final Materials Report and Final Working Drawings and Specifications and shall be fit for the purpose intended. City’s inspection, testing, approval, or acceptance of any such machinery, equipment, or process will not relieve Contractor of its obligations hereunder.
C. For any breach of the warranties contained hereunder, Contractor will, immediately after receiving notice from City, at the option of City, and at Contractor’s own expense and without cost to City:
1. Repair the defective Goods;
2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or
3. Repay to City the purchase price of the defective Goods.
If City selects repair or replacement, any defects will be remedied without cost to City, including but not limited to, the costs of removal, repair, and replacement of the defective Goods, and reinstallation of new Goods. All such defective Goods that is so remedied will be similarly warranted as stated above. In addition, Contractor will repair or replace other items of the Goods which may have been damaged by such defects or the repairing of the same, all at its own expense and without cost to City.
D. Contractor also warrants that the Goods are free and clear of all liens and encumbrances whatsoever, that Contractor has a good and marketable title to same, and that Contractor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods.
Contractor agrees to indemnify, defend, and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
E. In the event of a breach by Contractor of its obligations hereunder, City will not be limited to the remedies set forth in this hereunder, but will have all the rights and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.
Section 6. Prices.
Unless expressly provided otherwise, all prices and fees specified in Exhibit “B,” above, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. Compensation for Fabrication Services shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.
Section 7. Final Payment.
Within a reasonable time after Contractor delivers the Goods to the City, but in no event later than ten (10) business days, the City will inspect and provides its written acceptance or rejection of the Goods. If the City provides written acceptance of the Goods, Contractor can invoice the City for that portion of the Total
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "C"
Compensation attributed to the Fabrication Services, provided that, however, such written acceptance is not a waiver of any right or remedy hereunder, nor is it acceptance of the Goods free of defect.
Section 8. Title and Risk of Loss.
Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Goods. However, Contractor will be liable for any loss or damage to the Goods and/or the materials caused by Contractor or its subcontractors, their agents or employees, and Contractor will replace or repair said Goods or materials at its own cost to the complete satisfaction of City.
Notwithstanding the foregoing, in the event that the City has paid Contractor for all or a portion of the Goods which remains in the possession of Contractor, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Contractor shall remain with Contractor until such Goods has been delivered or City has taken possession thereof. Contractor will have risk of loss or damage to Contractor’s property used in the construction of the Goods but which does not become a part of the Goods.
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "D"
EXHIBIT “D”
PROJECT PEMB SPECIFICATIONS
[BEGINS ON THE FOLLOWING PAGE]
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
EXHIBIT “E”
FEDERAL CONTRACT PROVISIONS
1. GENERAL CPF COMPLIANCE:
a. Contractor shall comply with all federal requirements including, but not limited to, the following, all of which are expressly incorporated herein by reference:
i. 2 C.F.R. Part 200 – Contractor shall comply with all provisions of 2 C.F.R. Part 200 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the Treasury may determine are inapplicable to the CPF program and subject to such exceptions as may be otherwise provided by the U.S. Department of the Treasury; and
ii. The U.S. Department of Housing and Urban Development (“HUD”) and the U.S, Office of Community Planning and Development (“CPD”) terms and conditions. b. Inspection of Records: Contractor shall cooperate with the City, including providing any necessary documentation and records, in order for City to comply with the federal requirements in this Exhibit “E”.
c. Subcontracts: Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Contract. With respect to any conflict between such federal requirements and the terms of the Contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
d. Maintenance of Records: Contractor shall maintain all records pertaining to this Project for a period of five (5) years following completion of the Project. e. Fair Housing & Civil Rights: Contractor shall comply with all applicable Housing and Urban Development, or Community Planning and Development requirements in 24 C.F.R Part 5, subpart A, including, but not limited to, all applicable fair housing, and civil rights requirements.
f. Drug-Free Workplace: Contractor shall comply with the Drug-Free Workplace requirements in Subpart B (or Subpart C, if Contractor is an individual) of 2 C.F.R. Part 2429, and sections 5152-5158 of the Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701-707).
g. Restriction on Human Trafficking: Contractor shall comply with all applicable provisions of 2 C.F.R. Part 175, which is hereby incorporated by reference. h. Federal Financial Accountability and Transparency Act: Reporting Subaward and Executive Compensation Information, 2 C.F.R. Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
i. Economic Opportunities for Low- and Very Low- Income Persons: The Contractor shall comply with all applicable requirements of the Housing and Urban Development Act of 1968, as codified in 24 C.F.R. Part 75, which is incorporated herein by reference. Contractor shall use reasonable efforts to ensure that, to the greatest extent possible, that training, employment, contracting and other economic opportunities are directed to low and very low income persons, in accordance with 24 C.F.R. Part 75
j. Certification Regarding Lobbying:
i. By executing this Agreement, the Contractor certifies, to the best of his or her knowledge and belief, that:
o No Federal appropriated funds have been paid or will be paid, by or on behalf of the Contractor, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
o If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Contractor shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions, attached hereto as Attachment 1, and incorporated herein by this reference.
o The Contractor shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
2. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS
UNDER FEDERAL AWARDS
1. Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Contract Documents include remedies for breach and termination for cause and convenience.
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
2. Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this Contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Contractor shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
i. Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
ii. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
iii. Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information.
iv. Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. v. Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. vi. Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. vii. In the event of the Contractor's noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. viii. Contractor will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
3. Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.
4. The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work:
Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Contract.
5. The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
6. The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
7. Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Contract since it is funded by CPF funding.
8. Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Contract since it is funded by CPF.
9. Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
i. If this Contract is in excess of $100,000 and involves the employment of mechanics or laborers, Contractor shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. ii. Overtime Requirements. No contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. iii. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
iv. Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section.
v. Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section.
10. Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:
i. If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non- Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency.
ii. The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.
11. Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this Contract is in excess of $150,000, Contractor shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). i. Pursuant to the Clean Air Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000. ii. Pursuant to the Federal Water Pollution Control Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000.
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
12. Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. i. This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000.
As such Contractor is required to verify that none of the Contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). ii. Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
iii. This certification is a material representation of fact relied upon by City. If it is later determined that Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. iv. Contractor warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Contractor also agrees to verify that all subcontractors performing work under this Contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above.
Contractor further agrees to notify the City in writing immediately if Contractor or its subcontractors are not in compliance during the term of this Contract.
13. Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this Contract is in excess of $100,000, Contractor shall have submitted and filed the required certification pursuant to the Byrd Anti- Lobbying Amendment (31 U.S.C. § 1353). If at any time during the Contract term funding exceeds $100,000.00, Contractor shall file with the City the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.
Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
14. Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
i. Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement.
ii. In the performance of this Contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or at a reasonable price. iii. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program . iv. Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.”
15. Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
i. Contractor shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Contract. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
ii. For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
iii. Telecommunications or video surveillance services provided by such entities or using such equipment.
iv. Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
v. See Public Law 115-232, section 889 for additional information.
16. Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
65186.00000\41307378.1
AGREEMENT FOR DESIGN & FABRICATION OF PEMB – SHUTTLE EXHIBIT PROJECT
CITY OF DOWNEY & KNIGHT BUILDING SYSTEMS
EXHIBIT "E"
i. Contractor shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts
ii. For purposes of this section:
1. “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
2. ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
To view the attachment for the Agreement for Pre-Engineered Modular Building Design and Fabrication Services for the Space Shuttle Exhibit and Education Building Project please visit the City website:
Agendas & City Documents | City of Downey, CA (downeyca.org)
https://www.downeyca.org/our-city/departments/city-clerk/agendas-city-documents
Attachment B
RESOLUTION NO. 24-8231
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY
ADOPTING THE MITIGATED NEGATIVE DECLARATION AND
MITIGATION MONITORING AND REPORTING PROGRAM FOR THE
DOWNEY SPACE SHUTTLE EXHIBIT AND EDUCATION BUILDING
PROJECT
WHEREAS, the City of Downey is the location of the Columbia Memorial Space Center, a historic site that included the manufacturing headquarters for Emsco, Kinner, Vultee, North American Aviation, Rockwell, and Boeing, all of which were involved in the Apollo and Space Shuttle programs; and
WHEREAS, in 2009, the site opened as a memorial to Columbia Shuttle Crew STS-107, who were tragically lost on February 1, 2003, and since that time, the site has become a regional destination for a hands-on learning center and museum for STEM education; and
WHEREAS, on average, the Space Center engages up to 100,000 visitors and hosts over 350 school field trips each year and includes the region’s only public robotics lab; and
WHEREAS, the Space Center is recognized as a Smithsonian- and NASA- affiliated institution with considerable regional impacts, with 20,000 people attending events such as City of STEM; and
WHEREAS, in view of the growing interest and demand that the site has generated over time, the need was identified for additional resources for programs, community gathering, meeting space for audiences of 250 -300 people, and a permanent display of the Space Shuttle Inspiration (an original mock-up of the Space Shuttle); and
WHEREAS, the Downey Space Shuttle Exhibit and Education Building Project (“Project”), located at 12400 Columbia Way in the City of Downey, is planned for this purpose and will incorporate a separate building to house the Inspiration and other related infrastructure and facilities.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY,
CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND
ORDER AS FOLLOWS:
Section 1. The City Council of the City of Downey hereby finds, determines, and declares as follows:
A. The Project is required to undergo an environmental review pursuant to the California Environmental Quality Act (CEQA) and the state CEQA Guidelines.
Through its consultant, the City prepared an Initial Study leading to a Mitigated Negative Attachment C
Resolution No. 24-8231__
Declaration (“IS/MND”) for the Project. Based on the IS/MND, the Project would have no impact or a less than significant impact on the following environmental issue areas:
Aesthetics, Air Quality, Agriculture and Forestry Resources, Energy, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water Quality, Mineral Resources, Population and Housing, Public Services, Recreation, Utilities and Service Systems, and Wildfire. The Project’s impacts on the following issue areas would be less than significant with the implementation of mitigation: Biological Resources, Cultural Resources, Geology and Soils, Land Use and Planning, Noise, Transportation and Traffic, Tribal Cultural Resources, and Mandatory Findings of Significance. All impacts would be less than significant after mitigation.
B. The Mitigated Negative Declaration (MND) for the Project reflects the City’s independent judgment and analysis as lead agency for the project.
C. In accordance with California Public Resources Code section 21091 and State CEQA Guidelines Section 15073, the Initial Study/Mitigated Negative Declaration for the Project was circulated for a 30-day public review and comment period from November 13, 2023 through December 14, 2023. The document was available for public review at the Downey City Hall, Downe y Public Library, on the project’s webpage on the City’s website, and at the State Office of Planning and Research State Clearinghouse webpage (SCH Number 2023110340). At the completion of the comment period, six comments were received and incorporated as part of the Final Initial Study/Mitigated Negative Declaration (“Final IS/MND”) and are incorporated herein by reference.
D. The mitigation measures set forth in the MND are fully enforceable and will be implemented using the related Mitigation Monitoring and Reporting Program accompanying the Final IS/MND in order to avoid or minimize adverse environmental impacts identified therein.
Section 2. The City Council has independently reviewed and analyzed the information contained in the Final Initial Study/Mitigated Negative Declaration for the Project. The City Council has, as a result of its consideration and the evidence presented on this matter, determined that, as required pursuant to the CEQA and the State CEQA Guidelines, the Final IS/MND adequately addresses the expected environmental impacts of the Project. On the basis of this review, the City Council finds that there is no substantial evidence from which it can be fairly argued that the Project will have a significant adverse effect on the environment.
Section 3. The City Council hereby adopts the Final IS/MND and the related Mitigation Monitoring and Reporting Program appearing therein, attached hereto as Exhibit A, and directs that a Notice of Determination be prepared and filed within five (5) working days of final Project approval with the Clerk of the County of Los Angeles in the manner required by law. This decision is based upon the record and evidence submitted to the City Council on this matter, which includes, but is not limited to, the City
Resolution No. 24-8231__
Council Agenda Memo dated February 27, 2024 and exhibits attached thereto, all of which are incorporated herein by this reference.
Section 4. The City Council hereby approves the Project, based upon the entire record before it and all written and oral evidence presented Section 5. Pursuant to Title XIV, California Code of Regulations, section 753.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any significant adverse effect on fish and wildlife. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. However, the payment of Fish and Game Department filing fees in conjunction with this Project is at the ultimate discretion of the State of California Department of Fish and Wildlife.
Section 6. This Resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall attest to and certify the vote adopting this Resolution.
APPROVED AND ADOPTED this ____ day of February 2024.
______________________________________
MARIO TRUJILLO
Mayor
Attest:
___________________________________
MARIA ALICIA DUARTE, CMC
City Clerk
Approved as to form:
___________________________________
JOHN M. FUNK
City Attorney
Resolution No. 24-8231__
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at a Regular meeting held on the ____ day of February, 2024, by the following vote, to wit:
AYES: Council Members:
NOES: Council Members:
ABSENT: Council Members:
ABSTAIN: Council Members:
MARIA ALICIA DUARTE, CMC
City Clerk
Resolution No. 24-8231__
EXHIBIT A
FINAL IS/MITIGATED NEGATIVE DECLARATION
The Final IS/Mitigated Negative Declaration for the Project is available online at:
https://www.downeyca.org/our-city/departments/city-clerk/agendas-city-documents
Or in person by visiting:
City of Downey Public Works Agency – Public Counter
11111 Brookshire Avenue
Downey, CA 90241
Or
Downey Public Library
11121 Brookshire Avenue
Downey, CA 90241
NOTICE OF FINDING OF NO SIGNIFICANT IMPACT AND
NOTICE OF INTENT TO REQUEST RELEASE OF FUNDS
REQUEST FOR RELEASE OF FUNDS
On or about January 9, 2024 the City of Downey will submit a request to the U.S. Department of Housing and Urban Development (HUD) for the release of Community Project Funding, Grant Number B-23-CP-CA-0201 under Community Project Funding/Congressionally Directed Spending of the Consolidated Appropriations Act, 2023 (Public Law 117-328), as amended, to undertake a project known as the Downey Space Shuttle Exhibit & Education Building Project to develop an expansion of the existing Columbia Memorial Space Center at 12400 Columbia Way, Downey CA 90242 (APN: 6256-004-910) for the purpose of developing a space shuttle museum; an event courtyard; a science, technology, engineering and mathematics (STEM) building; a STEM courtyard; a children’s outdoor classroom; a pavilion; an event lawn; an entry plaza; an outdoor courtyard; and landscaping within the project site. The estimated total project cost is $40,000,000 and the HUD grant is for $1,000,000.
The space shuttle museum would be 29,085 square feet in building area; consist of a main floor and a mezzanine level; and be 55 feet high. The space shuttle museum building would house the space shuttle Inspiration, a full-scale engineering mock-up of the space shuttle orbiters; in addition to a flexible space that can accommodate gatherings of 250-300 guests, incorporating the latest audio/video equipment for professional presentations. The first floor of the building would be large enough, when cleared of the mobile exhibits, to host 8,950 square feet of temporary, or traveling, exhibitions. The second floor would be a mezzanine overlooking the first floor.
An approximately 1,560-square-foot STEM building would be developed north of the proposed space shuttle museum. The STEM building would be one-story and would be used for education and class programs.
An approximately 4,700 square-foot event courtyard would be developed west and north of the proposed space shuttle museum that would serve as an extension of the interior usable space of the space shuttle museum for public and private events.
An approximately 2,700-square-foot STEM courtyard would be developed east of the STEM building. The STEM courtyard would support hands-on STEM activities that would require various seating arrangements, from large collaboration tables to smaller and individual workspaces, to writable surfaces, performance, and display areas.
An approximately 1,400-square-foot children’s outdoor classroom would be developed east of the STEM building. The outdoor classroom would have an amphitheater-style setting with
Attachment D
a stage platform at the lower end that would allow the STEM program to provide additional opportunities for classroom-style activities for children that can be offered outdoors.
An approximately 1,400-square-foot pavilion would be developed in the eastern portion of the project site. The pavilion would have a lawn area for special events like neighborhood concerts, community meetings, another STEM program meeting area, science fairs, and a picnic area for everyday use.
An approximately 7,000-square-foot event lawn would be developed in the northeastern portion of the project site. The event lawn would be used for a wide variety of activities including a picnic/open play area, farmers market, STEM program extended area, neighborhood concert, and science fairs.
An approximately 13,687-square-foot entry plaza would be developed in the northern portion of the project site. The entry plaza would serve as the frontage of the science park campus and would include a STEM pavilion to display hands-on experiments/activities to the public, and a retail/cafe area to support the campus.
An approximately 2,500-square-foot outdoor classroom would be developed in the central portion of the project site, just south of the existing Columbia Memorial Space Center. The outdoor classroom would have an amphitheater-style setting with a plaza area to serve as a staging area. This area would replace the current amphitheater space the Columbia Memorial Space Center is currently using for its program.
Landscaping for the proposed project would include carbon sequestration gardens (native meadow), a stormwater garden, a labyrinth garden, a discovery garden, a rain garden, and ornamental landscaping throughout the site that would consist of shrubs, groundcover, and ornamental grasses.
FINDING OF NO SIGNIFICANT IMPACT
The City of Downey has determined that the project will have no significant impact on the human environment. Therefore, an Environmental Impact Statement under the National Environmental Policy Act of 1969 (NEPA) is not required. Additional project information is contained in the Environmental Review Record (ERR) on file at the City of Downey City Hall at 11111 Brookshire Avenue, Downey, California 90241 and may be examined or copied on weekdays from 7:30 A.M. to 5:30 P.M. Please call (562) 869-7331 or see the following link for current City Hall hours: https://www.downeyca.org .
PUBLIC COMMENTS
Any individual, group, or agency may submit written comments on the ERR to the City of Downey Public Works Department, Attn: Desi Gutierrez, 11111 Brookshire Avenue, Downey, California 90241. All comments received on or before January 9, 2024 will be considered by the City of Downey prior to authorizing the submission of a request for the release of funds. Comments should specify which Notice they are addressing.
ENVIRONMENTAL CERTIFICATION
The City of Downey certifies to HUD that Matt Baumgardner in his capacity as Public Works Director consents to accept the jurisdiction of the Federal Courts if an action is brought to enforce responsibilities in relation to the environmental review process and that these responsibilities have been satisfied. HUD’s California approval of the certification satisfies its responsibilities under NEPA and related laws and authorities, and allows the City of Downey to use Program funds.
OBJECTIONS TO RELEASE OF FUNDS
HUD will accept objections to its release of the fund and the City of Downey’s certification for a period of fifteen days following the anticipated submission date or its actual receipt of the request (whichever is later) only if they are on one of the following bases: (a) the certification was not executed by the Certifying Officer of the City of Downey; (b) the City of Downey has omitted a step or failed to make a decision or finding required by HUD regulations at 24 CFR part 58; (c) the grant recipient or other participants in the development process have committed funds, incurred costs or undertaken activities not authorized by 24 CFR Part 58 before approval of a release of funds by HUD; or (d) another Federal agency acting pursuant to 40 CFR Part 1504 has submitted a written finding that the project is unsatisfactory from the standpoint of environmental quality. Objections must be prepared and submitted in accordance with the required procedures (24 CFR Part 58, Sec. 58.76) and shall be addressed to HUD's Region IX Office located at One Sansome St., Suite 1200, San Francisco, CA 94104. (415) 489-6400. Potential objectors should contact HUD to verify the actual last day of the objection period.