Gonzales Community Center Complex
New Construction - Design/Build Contract
CITY OF GONZALES
SECTION 00 50 00
AGREEMENT
RECITALS 4
ARTICLE 1 - DEFINITIONS. 6
ARTICLE 2 - GENERAL PROVISIONS ... 10
SCOPE OF WORK
EXECUTION, CORRELATION AND INTENT
USE OF DISRICT'S CONTRACT DOCUMENTS
CONFLICTS IN THE CONTRACT DOCUMENTS
CLARIFICATIONS AND ADDITIONAL INSTRUCTIONS
ARTICLE 3 - DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES.........••.......... 13
3.1 PERFORMANCE OF WORK
3.2 DESIGN-BUILDER'S RESPONSIBILITIES
3.3 STANDARDS OF PERFORMANCE
3.4 APPLICABLE LAWS AND CODES
3.5 PERMITS, FEES AND NOTICES
3.6 USE OF PROJECT SITE
3.7 CUTTING AND PATCHING
3.8 CLEANING
3.9 SITE AVAILABILITY
3.10 SITE CONDITIONS
3.11 HAZARDOUS MATERIALS
3.12 SHOP DRAWINGS, PRODUCT DATA, MATERIALS, AND EQUIPMENT
3.13 FIELD ENGINEERING
3.14 GEOTECHNICAL DATA AND EXISTING SITE CONDITIONS
3.15 MEETINGS AND REPORTS
3.16 OTHER REPORTS
3.17 NOTICES OF LABOR DISPUTES
3.18 GUARANTEE
3.19 WARRANTY
3.20 PATENTS, TRADEMARKS, AND COPYRIGHTS
3.21 3.22 TESTS AND INSPECTIONS
3.23 AIR POLLUTION
3.24 UNFAIR BUSINESS PRACTICES
ARTICLE 4 - CITY'S DUTIES AND RESPONSIBILITIES .........................................32
4.1 CITY'S REPRESENTATIVE
COMMUNICATION WITH THE DESIGN-BUILDER
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4.3 CITY'S CONSENT
4.4 CITY REVIEW OF DESIGN MATERIALS
ARTICLE 5 - SUBCONTRACTING AND LABOR. ...33
5.1 SUBLETTING AND SUBCONTRACTING
5.2 SUBCONTRACTING RELATIONS
5.3 SUBCONTRACTOR PROGRESS PAYMENTS
5.4 CONTRACT ASSIGNMENTS
5.5 N/A
5.6 DRUG-FREE WORKPLACE CERTIFICATION
5.7 NONDISCRIMINATION
5.8 WAGES AND RECORDS
ARTICLE 6 - PAYMENTS AND COMPLETION. .....37
STIPULATED SUMS
SCHEDULE OF VALUES
APPLICATION FOR PAYMENT
PROGRESS PAYMENTS
WITHHOLDING OF PAYMENT
PAYMENT FOR STORED MATERIALS
PAYMENTS AS TRUST FUNDS
PAYMENT NOT A WAIVER
WAIVER OF STOP PAYMENT NOTICE AND PAYMENT BOND RIGHTS
RETENTION
6.11 PAYMENT AND COMPLETION
ARTICLE 7 - SCHEDULE.. ..42
7.1 CONTRACT TIME
7.2 COMPLETION
7.3 SCHEDULES
7.4 FLOAT TIME
7.5 COMPENSABLE EVENT
7.6 COSTS OF COMPENSABLE EVENT
7.7 LIQUIDATED DAMAGES
ARTICLE 8 - CHANGES IN THE WORK.. .....50
8.1 GENERAL
8.2 CHANGE ORDER.
8.3 ACCEPTANCE OF CHANGE ORDERS
8.4 EFFECT ON SURETIES
8.5 COVERING AND UNCOVERING OF WORK
8.6 CORRECTION OF WORK
8.7 ACCEPTANCE OF NONCONFORMING WORK
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Gonzales Community Center Complex
New Construction - Design/Build Contract
CITY OF GONZALES
ARTICLE 9 - EVENTS OF DEFAULT AND TERMINATION … ...55
9.1 CITY EVENTS OF DEFAULT
9.2 DESIGN-BUILDER EVENTS OF DEFAULT
9.3 CITY REMEDIES
9.4 TERMINATION
9.5 DESIGN-BUILDER REMEDIES
9.6 MULTIPLE REMEDIES
9.7 TERMINATION FOR CONVENIENCE
9.8 TERMINATION PAYMENT
PROPERTY RIGHTS
SUSPENSION OF WORK
9.11 NON-COMPLIANCE WITH AGREEMENT REQUIREMENTS
ARTICLE 10 - DISPUTES AND CLAIMS .59
10.1 DISPUTE AND CLAIM PROCEDURES
ARTICLE 11 - PROTECTION OF PERSONS AND PROPERTY. 61
11.1 SAFETY OF PERSONS AND PROPERTY
11.2 EMERGENCIES
ARTICLE 12 - INSURANCE, BONDS, AND INDEMNIFICATION .63
12.1 INSURANCE
12.2 INDEMNIFICATION
12.3 NO PERSONAL LIABILITY
12.4 PERFORMANCE BOND AND PAYMENT BONDS
ARTICLE 13 - SEPARATE CONTRACTS .66
13.1 CITY'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS
13.2 MUTUAL RESPONSIBILITY
ARTICLE 14 - MISCELLANEOUS ..............67
14.1 GOVERNING LAW
14.2 SUCCESSORS
14.3 NOTICE
14.4 MODIFICATIONS
14.5 MEANING OF WORDS
14.6 SEVERABILITY
14.7 WHOLE AGREEMENT
14.8 RECORD RETENTION AND AUDITS
14.9 DELIVERABLES
14.10 WAIVER
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14.11 ATTORNEYS' FEES AND COSTS
14.12 COMPUTER SOFTWARE
14.13 INDEPENDENT CONTRACTOR STATUS
ARTICLE 15 - EXECUTION OF THE AGREEMENT ..70
EXHIBITS.............. ..71
EXHIBIT E PROJECT MILESTONE SCHEDULE
EXHIBIT F
EXHIBIT G
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Gonzales Community Center Complex
New Construction - Design/Build Contract
CITY OF GONZALES
CITY OF GONZALES
GONZALES COMMUNITYCOMMUNITY CENTER COMPLEX
GONZALES; CA
DESIGN / BUILD AGREEMENT
THIS DESIGN BUILD AGREEMENT ("Agreement) is entered into on June 5, 2023, between the CITY OF GONZALES ("City"), a California City, and John F. Otto Inc. dba Otto Construction ("Design-Builder"), a California corporation.
RECITALS
A. The City of Gonzales (hereinafter "the City") wishes to construct a new Gonzales Community Center Complex ("Project" or "Community Center"). The new Project will be located at 5'h Street, Gonzales, California. The new Community Center Complex will provide a flexible, vibrant facility and hub for the community, supporting Community and social needs of all kinds, with operations and ongoing maintenance enabling independent use of various activity spaces, and minimizing operational costs while increasing benefits to the entire community. The Project will be constructed in two distinct Phases, as delineated in the RFP documents.
The adjacent, parking and public park areas will remain in operation during construction of the new facility. The DBE will ensure adequate protection of the facility and vehicular and pedestrian traffic at all times. The project includes construction of underground utilities to tie into the City's existing infrastructure, along with pathways and landscaping to tie into the existing site.
B. Sections 22160-22169 of the California Public Contract Code authorize a City to design and construct the facility on a design-build project delivery basis.
C. The City issued a Request for Qualification ("RFQ") on July 30, 2021. A Non-mandatory RFQ Pre-Submission Conference was held on August 21, 2021. Responses were due on September 30, 2021, at 4:00 PM PDT.
D. The City pre-qualified Three (3) Design Build Entities. The final short list of Design Build Entities was three (3). The finalists were notified on January 14, 2022.
E. The City issued a Request for Proposal ("RFP") to the pre-qualified teams on January 15, 2023, with instructions to submit their proposal to the City by April 12, 2023.
F. The City issued Addenda to the Requests for Proposals. These Addenda are made part of this Agreement and are listed in Exhibit A, Declaration, of Section 00 41 00 (Proposal G. Finalists were interviewed on April 27, 2023.
H. Notification of the final selection was made on April 28, 2023. Notice of Intent to Award was made on May 15, 2023.
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1. The Design-Builder is John F. Otto Inc. dba Otto Construction. The Design-Builder has entered into a design contract with WRNS Studio pursuant to which, as the Architect of Record, agreed to perform certain design services required by this Agreement.
The documents included in the City's Request for Proposal dated January 31, 2023, are listed in Exhibit "B". The Contract Documents are provided by the City of Gonzales to establish the scope, level of quality and design intent, and the reporting procedures for the development, construction, and acceptance of the entire Project.
The Design-Builder shall not make any exceptions to the Stipulated Sums, the Project Milestone Schedule, the program statement, the Design Criteria Documents, or any other requirement described in the Contract Documents. Per the provisions set forth in the Agreement, the City does not accept any provision of the Proposal that is not in conformance with the criteria of the Request for Proposal.
K. It is the intent of this Agreement that the Design-Builder assumes full responsibility for administering, managing, designing, constructing and commissioning the Project to the performance requirements stated in the RFP.
L. The City and Design-Builder wish to memorialize the intent of the parties and the terms upon which Design-Builder will undertake the Project.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
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ARTICLE 1 - DEFINITIONS
Definitions. The definitions below shall have the same meaning throughout all of the Contract Documents.
1.1 Act of God: a sudden and unforeseeable event caused by natural forces over which the Design-Builder has little or no control; e.g., windstorms, floods, earthquakes, riots, fires, and lightning strikes. It shall specifically exclude Covid or other pandemic impacts, including but not limited to cost increases due to pipeline supply and labor shortages.
Contractor may only be provided additional non-compensable workdays.
1.2 Addendum: written or graphic information (including, without limitation, Drawings or Specifications) prepared and issued by the City prior to execution of the Agreement, which modifies or interprets the Pre-Qualification Documents, RFP Documents or Contract Documents.
1.3 Agreement: this Design Build Agreement and all subsequent amendments and/or modifications to it. The terms "Agreement" or "Contract" shall refer to this Design Build Agreement.
1.4 Applicable Laws: all laws, codes, ordinances, rules and regulations of governmental authorities affecting the Site and the Work, and any and all amendments thereto.
1.5 Architect of Record: Design Professional in General Responsible Charge, Mitch Fine, who is licensed in the State of California and employed or contracted by the Design-Builder to design and prepare construction documents for the Project and to provide construction phase services during the Project.
1.6 Authorized Representatives: see Article 4, Paragraph 4.1, City's Representative.
1.7 Beneficial Occupancy: City's occupancy or use of any completed or partially completed portion of the Work. See Article 6, Subparagraph 6.11.3, Beneficial Occupancy.
1.8 Best and Final Offer (or, BAFO): an offer submitted by the Design-Builder, after submission of its Proposal, in response to a request by City for the final terms on which the Proposer will enter into the Agreement, if it receives the Award
1.9 Building Inspector: one or more Building Inspectors), as required, will be assigned to the Work by City, in accordance with requirements of title 24, part 1, of the California Code of Regulations, to enforce the building code and monitor compliance with Plans and Specifications for the Project previously approved by permitting agencies.
1.10 CEQA/NEPA: the California Environmental Quality Act, located at California Public Resources Code Section 21000 et seq. National Environmental Policy Act, (40 CFR Parts 1500-1508}
1.11 Certificate of Compliance: a certificate issued by the Gonzales Fire Department stating that the installation of all life safety materials and equipment is in compliance with building June 5, 2023 00 50 00 - 7 Agreement
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and life safety codes. Such equipment includes, but is not limited to: Fire Alarm and Fire Sprinklers, rated construction assemblies, fire exits, paths of egress, etc.
1.12 Certificate of Final Completion: a certificate prepared by the Design-Builder and forwarded to the City stating that the Design-Builder believes in good faith that the Project is complete, including all punch list items, close-out activities and commissioning, and that the Design-Builder is entitled to Subparagraph 6.11.7, Final Payment, in accordance with the provisions of Subparagraph 6.11.5, Final Completion.
1.13 Change Order: a change to the Agreement and/or Contract Documents signed by the Design-Builder and the City authorizing a change in the Work, which may also adjust the Stipulated Sums and/or the Contract Time. The Stipulated Sums and/or Contract Time may be changed only by Change Order.
1.14 Change Proposal: a proposal for a Change Order, submitted by the Design-Builder at the request of the City, or by the Design-Builder's own initiative.
1.15 Commissioning: a quality assurance process for achieving, validating and documenting that the new facility and its systems are planned, designed, installed, tested and capable of being operable and maintained to perform in conformity with the Design Criteria Documents.
1.16 Construction Documents: the drawings and specifications prepared and sealed by the Architect of Record on behalf of the Design-Builder for construction of the Project.
1.17 Construction Project Manager: the consultant, Swinerton Management & Consulting, retained by the City to serve as a point of contact in coordinating the City's interests on this Project.
1.18 Contract Documents: those documents set forth in this Agreement, Contract Documents, all of which, together with this Agreement, form the entire agreement between the City and the Design-Builder. Any amendments and modifications to the Contract Documents and/or the Design Build Request for Proposal package must be approved by the City prior to incorporation into this Agreement. The Contract Documents include the following:
1.20.1. Modifications documented by Change Order issued after execution of the Agreement;
1.20.2. Exhibit B to this Agreement (to be executed following award);
1.20.3. Design-Builder's Proposal
1.20.4. Division 00 and 01 Specifications (hereinafter, referred to collectively as the "Front End Documents");
1.20.5. Criteria Documents - Basis of Design;
1.20.6 Criteria Documents - Performance Specifications;
1.20.7. Criteria Documents - Design Drawings.
1.20.8. Criteria Documents - Program Summary
1.19 Contract Time: see Paragraph 7.1, Contract Time.
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1.20 Council: City of Gonzales City Council.
1.21 Design Criteria Architect: the architect, , Group 4, retained by the City to develop the Design Criteria Documents and define functional, performance and aesthetic characteristics establishing the design intent for the Project.
1.22 Design Criteria Documents: The Design Requirements, Specifications, and the Drawings prepared by the City's Design Criteria Architect and incorporated by reference into the Agreement.
1.23 Days): calendar day(s), unless otherwise specifically designated as a business or working day(s). If a day requiring notice or action falls on a weekend or national or state holiday, then the next non-weekend or non-holiday shall be applicable. Business day(s) are days other than weekend days or national or state holidays.
1.24 Design-Build Entity (DBE): John F. Otto Inc. dba Otto Construction, a California corporation (License No. 178809 - Classification A, B) able to provide appropriately licensed construction contracting, and professional architectural and engineering services required hereunder.
1.25 Design-Builder: The Design-Build Entity.
1.26 City: City of Gonzales.
1.27 City's Project Management Team: all of the City's consultants.
1.28 Contractor: The Design-Build Entity.
1.29 Final Completion: the point at which the Work has been completed in accordance with the terms and conditions of the Contract Documents.
1.30 Float: the amount of time difference between the Design-Builder's scheduled critical path method (CPM) and the Final Completion date as shown in the Project Milestone Schedule, Exhibit E. Float or slack is not for the exclusive use of or benefit of either the City or the Design-Builder, but its use shall be determined solely by the City.
1.31 Indemnified Parties: The City and its officers, elective and appointive officials, employees, attorneys, consultants, agents, subcontractors, successors, volunteers, and assigns.
1.32 Liquidated Damages: a stipulated sum of money to make the City whole for Design- Builder's failure to complete the Project on time and payable by the Design-Builder to the City in the event the Design-Builder does not achieve the Certificates of Final Completion for the Project as required in the Project Milestone Schedule (Exhibit E), or as adjusted by Change Order, as more fully described in Paragraph 7.7, Liquidated Damages.
1.33 Notice to Proceed: the notice given by the City to the Design-Builder stating that the Design-Builder is authorized to commence Work on the Project.
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1.34 Project Location: The Project site is located at 5th Street, Gonzales, CA, and all off-site improvements required for compliance with CEQA and any other Work required by the Contract Documents.
1.35 Stipulated Sums: are the amount established by the City as total compensation to the Design-Builder for the design and construction of Phases 1 and 2 of the Project.
1.36 Substantial Completion: a point in time when (1) the Work or portion of the Work is sufficiently complete in accordance with the Contract Documents so that it can be used for its intended purpose, as evidenced by appropriate certification for occupancy by all agencies having jurisdiction over the project, and (2) the Work or portion of the Work has been demonstrated to perform in accordance with the Design Criteria Documents and RFP performance requirements.
1.37 Work: all labor, materials, tools, equipment, and services required to be performed or provided by the Design-Builder pursuant to the provisions of the Contract Documents, as more fully described in Article 3, Design-Builder's Duties and Responsibilities.
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Gonzales Community Center Complex
New Construction - Design/Build Contract
CITY OF GONZALES
ARTICLE 2 - GENERAL PROVISIONS
2.1 Scope of Work.
The Design-Builder shall be responsible for the performance of all design and construction services, and provide all materials, labor, tools, and equipment necessary to complete the Work described in and inferable from the Contract Documents.
2.2 Execution, Correlation and Intent:
2.2.1 The Agreement will not be binding on the City until approved by the City Council.
2.2.2 Execution of the Agreement by Design-Builder is a representation that the Design-Builder understands and accepts the methodology under which the Work is to be performed and the requirements of the Contract Documents.
2.2.3 The intent of the Contract Documents is to include all necessary criteria to establish the scope, quality and performance requirements for completion of the Work by Design-Builder. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Performance by the Design-Builder shall be required to the extent consistent with and inferable from the Contract Documents.
2.2.4 Organization of the Contract Documents and arrangement of the drawings is not intended to control or guide the division or extent of work.
2.2.5 Unless otherwise stated in the Contract Documents, words and phrases shall be interpreted consistent with construction and design industry standards for General Law Cities.
2.2.6 Work shall be accomplished in a workman-like manner by workers, laborers, or mechanics especially skilled in the class of work required. Any persons that the City may deem incompetent or disorderly shall be promptly removed from the Project by the Design-Builder upon written notice from the City and shall not be reemployed for further work on the Project.
or function, may be required or reasonably inferred from the Contract Documents.
2.3 Use of the City's Contract Documents.
2.3.1 The Contract Documents issued by the City are for use solely with respect to this Project. They are not to be used on other Projects, or for additions to this Project without the specific written consent of the City. The Design-Builder is granted June 5, 2023 00 50 00 - 11 Agreement
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limited license to use and reproduce applicable portions of the Contract Documents for use in the execution of the Work.
2.4 Conflicts in the Contract Documents.
2.4.1 The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict. In the event of conflict in the Contract Documents, the precedence shall be as follows:
2.4.1.1. Addenda shall govern over other sections of the Contract Documents to the extent specifically noted; subsequent Addenda shall govern over prior Addenda only to the extent specified.
2.4.1.2. The Agreement shall govern over other Contract Documents except for specific modifications stated in amendments to the Agreement and Addenda.
2.4.1.3. In case of conflict between the Design Criteria Document drawings, Technical Specification Sections 2-33 and the Division 00 and 01 Specifications, the Design-Builder shall obtain written clarification from the City as to the governing document. Such request for clarification shall be submitted on the Request for Clarification (RFC) form provided by the Construction Project Manager.
2.4.1.4. In the case of conflict within the Design Criteria Document drawings, the following shall govern:
2.4.1.4.1 Schedules, when identified as such, shall govern over all other portions of the drawings.
2.4.1.4.2. Specific notes shall govern over all other notes and all other portions of the drawings, except schedules described in the preceding sub clause.
2.4.1.4.3. Larger scale drawings shall govern over smaller scale drawings.
2.4.1.4.4. Figured or numerical dimensions shall govern over dimensions obtained by scaling.
2.4.1.4.5. In the case of other conflict within the drawings, the Design- Builder shall obtain written clarification from the City as to the governing document. Such request for clarification shall be submitted on the Request for Clarification (RFC) form provided by the Construction Project Manager.
2.4.2 The City and Design-Builder acknowledge that the Contract Documents may differ in some respects from other documents included in the Design-Builder's June 5, 2023 00 50 00 - 12 Agreement
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Technical Proposal upon which Design-Builder based its proposal. The City and Design-Builder agree that the documents that provide the higher quality or performance shall supersede the other inconsistent versions.
2.5 Clarifications and Additional Instructions.
2.5.1 Conflicts, omissions, errors, interpretation or clarification, insufficiency of detail or explanation in the Contract Documents relative to the timely or material execution of the Work shall be immediately brought to the attention of the City in writing to request interpretation, clarification, or furnishing of additional detailed instructions. Such questions shall be resolved and instructions to the Design- Builder issued within a reasonable time by the City. The City's decision shall be final and conclusive. Should the Design-Builder proceed with the work before receipt of instructions from the City, the Design-Builder shall make adjustments to conform to the City's instructions and Design-Builder shall be solely responsible for any resultant damage, defect or added cost.
The City may furnish additional detailed written instructions to explain the work more fully, and such instructions shall become, upon issuance, a part of the Contract Documents requirements. Should additional detailed instructions, in the opinion of the Design-Builder, constitute work in excess of the scope of the Work, the Design-Builder shall submit written notice to the City within ten (10) calendar days following receipt of such instructions, and in any event prior to commencement of the work on that scope of work. After considering the notice, and if justified in the City's judgment, the City will authorize the extra work.
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Gonzales Community Center Complex
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CITY OF GONZALES
ARTICLE 3 - DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES
3.1. Performance of Work.
3.1.1. Design-Builder shall be responsible for achieving the Occupancy and Final Completion Milestones dates in the Project Milestone Schedule as shown in Exhibit A. The schedule may be modified from time to time pursuant to the provisions of the Contract Documents.
3.2 Design-Builder's Responsibilities.
3.2.1 Upon receipt of Notices to Proceed, Design-Builder further agrees to design and construct the Project in consideration for the City's payment of the Stipulated Sums, in the amounts of:
: Phase 1: $19,300,000
Phase 2: $15,800,000
which may be adjusted pursuant to the provisions of this Agreement. The duties and responsibilities include, but are not limited to, the following
3.2.2 General Responsibilities
3.2.2.1 Use Procore web-based project management system, as stipulated in Section 01 31 20 (Project Management Software) and as provided by the City to track and manage the Project.
Project Management Software shall be utilized to facilitate documentation and real-time exchange of Project intormation including, but not limited to, Requests for Clarification (RFCS), Requests for Information (RFls), Substitutions, Deviations, Change Orders, Progress Payments, Submittals, Meeting
Agendas, Meeting Notes, Design Decisions, Schedule(s),
Drawings, etc. Design-Builder shall meet with the City's epresentative(s) to determine specific requirements for tr nolementation of Proiect Management Softwar
3.2.2.2 Deliver to the City any and all design materials. These materials include, but are not limited to: calculations, preliminary drawings, construction drawings, shop drawings, samples, electronic media data, tenant improvement documents, sketches, illustrations, specifications, descriptions, models, mock-ups, and other information developed, prepared, furnished, or delivered in the
3.2.2.3 Design Phase Responsibilities - The Design Phase includes the preparation of the design and Construction Documents for the Project including, but not limited, to all necessary architectural June 5, 2023 00 50 00 - 14 Agreement
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design, specialty consultant services, civil engineering, structural engineering, mechanical engineering, plumbing and HVAC
design, fire protection system engineering, landscape architecture, electrical engineering, security system design,
telecommunications, data and low-voltage signaling design, geotechnical engineering, topographic and boundary surveying, interior design, modular furniture systems & fixtures, furniture & equipment coordination and space planning, and acoustical engineering. The Design Phase shall also include all plan check and permitting activities required for the construction activities.
3.2.2.4. Design Confirmation Phase
3.2:2.4.1. Following receipt of a Notice to Proceed, the Design-Builder same dance my an are oring eager
exterior closure, mechanical, plumbing, electrical, etc.) In sufficient detail to confirm compliance with the Design Criteria Documents.
3.2.2.4.2. Conduct value engineering analysis on selected building components to determine best value based on initial cost, life expectancy, cost of operation and maintenance. The value engineering analysis shall be performed concurrent with the Design Confirmation effort
3.2.2.4.3. Prepare and update weekly a "Trend Log" showing changes o the scope of work, including cost impact of changes, in order to manage the project so that the Proiect Cost will no exceed the Stipulated Sums.
3.2.2.4.4. Prepare and update monthly the detailed construction schedule to confirm Project delivery within the stipulated milestones.
3.2.2.4.5. Provide services to develop a final space program and prepare plan layouts to reflect the requirements of all project users.
3.2.2.4.6. Participate in the Design Confirmation Conference with the City and its consultants within fourteen (14) calendar days of June 5, 2023 00 50 00 - 15 Agreement
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the Notice to Proceed, prior to the development of the
Construction Documents. The Design-Builder shall be
responsible for scheduling and coordinating the participation in these meetings. The deliverables are defined in the
appropriate sections of the Contract Documents.
3.2.3.1. Construction Documents Phase
3.2.3.1.1 Prepare Construction Documents for the entire Project as required in Section 01 11 20 Design Services and Deliverables and in full applicable California State Building Codes, to include but not be limited to, Title 8 (Industrial Relations), Title 17 (Public Health), and Title 24 (Building Standards); and comply with all
requirements of all agencies having jurisdiction over the project.
The completed Construction Documents, including all
documentation of approval by all agencies having jurisdiction over the project, are to be delivered to the City and shall consist of the following:
Drawings - Provide one reproducible original, and ten (10) printed copies of all approved construction document drawings. Provide one copy of all approved construction document drawings on compact discs (CD) using Computer-Aided Design (CAD)
software, using AutoCAD 2010.
Specifications - Provide original and ten (10) printed copies of approved specifications, bound and organized. Provide approved specifications on CDs for all sections for all work applicable to the Project, using a format that complies with the current edition of the Construction Specifications Institute's "Master Format" as directed by the City and in accordance with the following:
3.2.3.1.1.1. Electronic computer software in Microsoft Word, latest version for Windows.
3.2.3.1.1.2. Where articles, materials, and equipment are identified by brand names, at least two brand names
shall be specified, and shall be followed by the words
"or equal". Specifications shall not contain restrictions that will limit competitive bids. Exceptions shall only be as permitted by California Public Contract Code section 3400.
3.2.3.1.1.3. All CDs provided shall be indexed and clearly labeled to indicate files contained thereon and the date June 5, 2023 00 50 00 - 16 Agreement
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that the CD was produced. All electronic files shall use fonts and formats used by the City and the discs shall
be formatted for easy printing.
3.2.3.2.2. Upon receipt of the Notice to Proceed, the Design-Builder shall instruct the Architect of Record to commence with the design of the building systems and the preparation of the Construction Documents. The Construction Documents shall provide information customarily necessary in documents for projects of similar size, complexity, and quality for General Law Cities.
The Construction Documents shall include all information required by the building trades to complete the construction of the Project, other than such details customarily developed by others during construction. The Design-Builder shall be responsible to design, prepare construction documents and coordinate all disciplines for the entire Project including, but not limited to: all structural elements, building enclosure, roofing, waterproofing, site work, public right-of-way improvements, new parking lots, hardscape, landscape, utilities, and all building systems.
Responsibilities also include all design coordination necessary for accommodation of interior space construction, modular furniture coordination, finishes, furnishings, fixtures and equipment, and related infrastructure. Refer to paragraph 3.2.4, Construction Phase Responsibilities, for further modular systems furniture workstation requirements. The Project's design shall meet or exceed the design and performance criteria stipulated in the Design Criteria Documents.
3.2.3.2.3. The City's review of the Construction Documents shall be conducted within the time allotted in the approved Design- Builder's Baseline Schedule and according to the procedures set Design-Aider and the Cle reviewers bet doment
packages shall be scheduled and held so as not to delay the Work. Such review shall not relieve the Desian-Builder from it or failure has been identified as such in writing in the document submitted by the Design-Builder and approved in writing by the City.
3.2.3.2.4. The parties acknowledge that inherent in a Design/Build concept, Criteria or otherwise, the production and review of June 5, 2023 00 50 00 - 17 Agreement
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construction documents may be a continuing process with portions thereof completed at different times. During Project start-up, the Design-Builder, in coordination with the City, will determine the number of design packages and stipulate the number in the Design-Builder's Project Management Plan. The Design-Builder's Baseline Schedule shall indicate the times for the City to review the completion of each such portion of the less than ten (10) working days.
3.2.3.2.5. The Design-Builder shall submit completed packages of the construction documents, in the quantities required by the City, to all applicable authorities having jurisdiction (including but not limited to the City of Gonzales Building Department), at the times indicated on the Design-Builder's Baseline Schedule.
3.2.3.2.6. The construction documents for hazardous material abatement efforts shall be of sumticient clarity and detall and sha e submitted to the City and other applicable authorities having jurisdiction for review.
3.2.3.3. Ownership of Design Materials
3.2.3.3.1. All materials and documents developed in the performance of this Agreement are the property of the City. The City shall Design-Builder agrees to and does grant to the City a royalty- free license to all such data that Design-Builder may cover by copyright and to all designs as to which Design-Bullder ma assert any rights or establish any claim under United States atent or copyright laws. The Design-Builder for a period o three (3) years after completion of the Project agrees to furnist and to provide access to the originals or copies of all such materials upon the request of the City.
The City agrees to make no demand on Design-Builder and indemnifies the Design-Builder for any damages caused by the City's use of such materials for any other City project that is no heldeb for suan agreement between the City and Design-
3.2.3.3.2. The Design-Builder shall perform the work required under this Agreement with Computer-Aided Design (CAD) software, June 5, 2023 00 50 00 - 18 Agreement
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using the latest version of Revit, and shall deliver to the City the CDs containing the electronic files of all approved Constructio Document drawings, in both Revit and most recent AutoCAl format as well as PDF format. The format of electronio
documents delivered to the City will be determined in
conjunction with the City in order to facilitate retrieval of
3.2.3.3.3. The City does not assume any obligation to retain the Design-Builder's services or pay Design-Builder royalties of any type as to future programs.
3.2.3.4. Material Design Errors
The Design-Builder shall be solely responsible for all design errors, including, but not limited to: errors, inconsistencies or omissions in the Construction Documents, and errors, omissions and inconsistencies that do not conform to the standards established in the Contract Documents and the Design Criteria Documents. The Design-Builder shall take field measurements and verify field conditions and shall carefully compare such field conditions and other information known to the Design-Builder from the Contract Documents and the Design Criteria Documents before commencing Design activities.
3.2.4 Construction Phase Responsibilities
The Design-Builder shall provide all labor, materials, equipment, temporary utility services and facilities necessary to construct the entire Project as required by the Contract Documents, including, but not limited to:
3.2.4.1 Prepare an existing conditions survey of all surrounding and adjacent properties, including streets and observable and recorded utilities, prior to the start of construction. The survey shall professionally document existing conditions of surrounding and adjacent properties using a professional video/filming service hired by the Design-Builder and approved by the City prior to the start of work. Video shall be in a digital submit three (3) copies of the CD to the City ten (10) days prior to the
3.2.4.2 The Design-Builder shall provide modular buildings for use as a five (45) calendar days after the date of execution of this Agreement, or June 5, 2023 00 50 00 - 19 Agreement
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by a date agreed to by the City, and shall be vacated in an "as found" condition within sixty (60) days after Final Completion.
The Design-Builder shall design, construct, and maintain all necessary improvements to operate the Project Field Office for the entire duration of the Project. The Design-Builder shall construct and install all improvements to current Code requirements. The size, configuration, and location of the Project Field Office must be approved in writing in advance by the City.
All costs such as tenant improvements, furniture, furnishings, equipment, utilities, express mail, janitorial services, and other services and amenities as listed in this Article shall be paid for by the Design-Builder. All costs are to be included as part of the stipulated Sums, including, but not limited to: modular building leasing and installation; furniture, furnishings and equipment; utilities (including, but not limited to: water, power, sewer, high speed internet, phone and fax lines); express mail, document reproduction, drinking water, and janitorial services.
Office furniture, furnishings, equipment and other items required by the City shall include costs for maintenance agreements, repairs and/or replacement, including owner-furnished items.
The City's Project Management Team will be located in the same facility as the Design-Builder; however, the City's space must be segregated from the Design-Builder's space. The Project Field Office for the Design- Builder and City's Project Management Team shall be secured, alarmed and monitored to detect entry Section 01 52 00 (Construction Facilities) further delineates the field office requirements for the City's Project Management Team.
3.2.4.3 All portions of the construction Work awarded by the Design- Builder to a subcontractor not listed in the Design-Builder's proposal shall be awarded by the Design-Builder in conformity with the requirements of Code Section 4100 et seq. The Design-Builder shall provide public notice of the availability of work to be subcontracted in accordance with state aw applicable to the competitive bidding process and provide a fixed da nd time on which the subcontracted work will be awarded. Ar subcontractor awarded a subcontract for this Project in this manner is then afforded the protections as set forth in California Public Contract Code Section 4107.
3.2.4.4 If a discovery is made of items of archaeological interest on site during excavation activities, the Design-Builder shall immediately cease excavation in the area of discovery and shall not continue until directed by June 5, 2023 00 50 00 - 20 Agreement
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the City. Design-Builder shall cooperate with and provide access to the city and any City consultant designated to review and make recommendations concerning archeological matters
3.2.4.5 Design-Builder shall schedule and coordinate partnering sessions to be held every four (4) months during the Project. The Design-Builder shall include representation from the professional entities preparing the Construction Documents and the designated subcontractors as appropriate. City attendees will include representatives from the Project Working Group, Public Works Department, Design Criteria Architect, and Construction Project Management consultants. The Design-Builder may invite representatives from other authorities having jurisdiction over the Project.
These Partnering Sessions shall include the following:
3.2.4.5.1. A Project Kick-off Partnering Session immediately following the Notice to Proceed.
3.2.4.5.2. A Project Close-out Partnering Session held at approxi- mately 60% construction completion to address occupancy, punch list, commissioning and close-out activities.
These Partnering Sessions will be a series of professionally facilitated off- site meetings involving the representatives of the Project team for the purposes of team building and problem solving. The Design-Builder shall budget the cost of the partnering sessions within the Stipulated Sums.
The Design-Builder and the City shall agree on the selection of the partnering facilitator and attendees of no more than twenty-five (25) people.
3.2.4.6 The Design-Builder shall prepare space plans showing all free- standing Furniture, Fixtures, and Equipment (FF&E) and modular systems furniture (MSF) workstations for the Project. Design-Builder shall conduct furniture inventories of existing furniture and, in consultation with the City, shall indicate the re-use and placement of such existing furniture in the space plans.
The Design-Builder shall coordinate with the City's staff and stakeholders to confirm dimensions, details, materials and other pertinent information, and coordinate the design, procurement, and installation process with the City's staff and stakeholders. The Design-Builder will prepare fully dimensioned floor plans including clear dimension requirements, furniture, fixture, and equipment requirements including work surfaces, storage units, computer related components and other accessories.
The Design-Builder shall prepare installation drawings, which will be reviewed and approved by the City for conformance to the space plan drawings. Upon installation of the furniture, fixture, and equipment, June 5, 2023 00 50 00 - 21 Agreement
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Design-Builder shall install and connect the necessary
telecommunications cable within the MSF workstations, and connect the electrical power to the MSF workstations as required
3.2.4.7 The Design-Builder will assist the City in planning and implementing a coordinated Move-In and Occupancy Plan that will include a Move-In Schedule indicating the critical activities for relocation of all personnel that will occupy the Project. The plan will be developed by the City, in conjunction with the City's consultants, moving companies, furniture vendor/installer, telecommunication companies and others. The Move Schedule will include at a minimum:
(1) mobilization;
(2) move management;
(3) pre-move activities including MIS/Telecommunications pre-instal- lation and testing activities;
(4) move-in dates including building protection; and
(5) post move-in activities (i.e. punch-list coordination and follow-up).
Design-Builder shall provide all labor necessary to assist the City during the relocation process, including elevator operators, electricians, plumbers, furniture installer/vendors, temporary protection of finishes, etc.
3.2.4.8 The Design-Builder shall secure the services of a professional photographer who is skilled and experienced in construction photography and whose work samples are acceptable to the City. The Design-Builder shall submit digital copies of color photographs of the building and project site, and shall be comprehensive and sufficient to document all major components of the project. Design-Builder shall not replace the photographer without the City's approval. The Design-Builder shall require the photographer to retain the digital copies for at least four (4) years following Date of Substantial Completion.
Except as otherwise specifically approved by the City, Design-Builder will prepare and submit the photographs monthly from groundbreaking through Project completion, within three (3) calendar days of the date of the Design-Builder's application for progress payment. To the maximum extent practicable, Design-Builder will make photographs at approximately the same time of day throughout the progress of the work.
When inclement weather is anticipated, Design-Builder will consult with the City to determine acceptable alternative arrangements.
Design-Builder will identify each location by word description, by marked drawing, or by such other means as acceptable to the City, to enable future photographs to be taken from the same position. When so directed by the City, because of the stage of construction, Design-Builder will change one or more of the locations to new locations inside or outside the buildings. Design-Builder will make each photograph clear, in focus, with June 5, 2023 00 50 00 - 22 Agreement
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high resolution and sharpness, and with minimum distortion. Design- Builder will provide a live webcam, compatible with and viewable from the City website. The cost of this webcam shall be included in the Stipulated Sums.
3.3 Standards of Performance.
The Work on the Project shall be performed in accordance with the professional standards and quality of care applicable to Projects, buildings or work of similar size, complexity, quality and scope constructed within a similar California environment.
3.3.1 The Design-Builder shall assign Kim Siason to be the Project Manager. The Design-Builder shall make assignments of consultants and subcontractors as detailed in the approved staffing plan, attached hereto and incorporated herein as Exhibit "E".
The Design-Builder may make additions or substitutions to personnel and re- sponsibilities provided they are suitably qualified and approved in advance by the City. In the event that personnel assigned by the Design-Builder fail to meet the professional standards required, are persistently uncooperative or violate any provision of the Contract Documents Design-Builder shall substitute such person- nel upon City's request. Once notice of such request has been received, the De- sign-Builder shall have twenty (20) business days to substitute such other per- sonnel as approved by the City.
3.3.2 The Design-Builder shall employ full-time, competent on-site Project management, including but not limited to the Project Manager or superintendents), who shall be in attendance at the Project Site during the construction of the Project. The Project Manager shall represent the Design- Builder and communications given to and by the Project Manager shall be as binding as if given directly to and by the Design-Builder. The Design-Builder shall confirm all communications in writing.
3.3.3 At any time when the Project Manager is absent from the Project Site, either when work is being performed or when no work is being performed, the Projec lanager, or his or her designated representative acceptable to the City, shall be readily reachable and available for consultation at the Project Site at any time.
3.4 Applicable Laws and Codes.
The Design-Builder shall comply with all applicable laws, codes, and ordinances and shall give notices as applicable. Design-Builder shall prepare and file all documents re- quired to obtain the necessary approvals of governmental authorities having jurisdiction over the work and shall secure and pay as part of the Stipulated Sums, for all plan check and permits fees, licenses and inspections required, including any fees charged by per- mitting agencies. Notwithstanding the foregoing, the Building Inspector and the third- party special inspection and materials testing laboratory services will be paid for by the City.
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For both Phases 1 and 2, the Design-Builder shall comply with the current adopted edition of the California Building Code ("CBC"), including any updates up to the date the Design-Builder submits the Project to permitting agencies for plan check. Whenever the Contract Documents require higher standards than the minimum required by applicable laws, the Contract Documents shall take priority.
To the extent there is a change in one or more applicable laws after the Design- Builder has submitted the Project for plan check, and such change has the effect of increasing the cost or time of performance of the Work, then such change may be the subject of a Change Order. Nothing in the Contract Documents shall be construed to permit work not conforming to applicable laws.
3.4.2 Design-Builder shall submit for review to the City and to other authorities having jurisdiction required calculations and other materials demonstrating the energy use and the life-cycle costs of proposed systems and sustainability as required by the California Building Code ('CBC"). The Design-Builder shall demonstrate that all building systems and equipment are selected on life-cycle costs analyses.
3.4.3 No Work shall be carried on except with the knowledge and under the inspection of the Building Inspectors). The Building Inspectors) shall have free access to any or all parts of Work at any time. Design-Builder shall furnish Building Inspectors) reasonable opportunities for obtaining such information as may be necessary to keep Building Inspectors) fully informed respecting progress and manner of work and character of materials. Inspection of Work shall not relieve Design-Builder from an obligation to fulfill this Agreement. Building Inspectors) and permitting agencies are authorized to suspend work whenever the Design- Builder and/or its subcontractors) are not complying with the Contract Documents. Any work stoppage by the Building Inspectors) and/or permitting agencies shall be without liability to the City. Design-Builder shall instruct its subcontractors and employees accordingly.
3.5 Permits, Fees and Notices.
3.5.1 Unless otherwise provided in the Contract Documents, the Design-Builder shall be responsible for required permits, governmental fees, licenses, registrations, inspections, approvals, notices and actions necessary to complete the Work and to prepare all documents customarily required for regulatory agency approvals, including permitting agencies. Design-Builder shall be responsible for the cost of any permit necessary and such cost shall be included in the Stipulated Sums.
Design-Builder shall be responsible for the cost of all other permits, fees and licenses required for the proper execution and completion of the Work and such appropriate costs shall be included in the Stipulated Sums.
3.5.2 Design-Builder shall promptly notify the City, in writing, of variances observed between the Contract Documents and applicable laws. If no notice is provided to the City, the Design-Builder shall bear responsibility for any costs for work performed known to be contrary to applicable laws.
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3.5.3 Design-Builder is subject to all laws, rules, or regulations pertaining to building permits or regulating the design or construction of buildings upon City property and shall be solely responsible for meeting these requirements.
3.5.4 Design-Builder shall pay any site de-watering fees and will cooperate with the City in any reasonable measure to limit the quantity of de-watering.
3.5.5 Design-Builder shall assume responsibility for all utility assessments and connection fees levied by all utility service providers. In addition, Design-Builder shall coordinate all applications with the City to ensure the lowest cost, including utilizing any special rate structures available to the City.
3.6 Use of Project Site.
3.6.1 Design-Builder shall confine operations at the Project Site to areas permitted by law, ordinances, permits, and the Contract Documents.
3.6.2 Design-Builder shall perform no operations of any nature on or beyond the limits of the Work or premises, except as such operations are authorized in the Contract Documents or authorized by the City.
3.6.3 Design-Builder shall provide and maintain a temporary construction fence and suitable temporary barriers to prevent public entry; protect the work and existing facilities, persons, trees and plants from damage or injury from construction operations, or trespassers. Temporary barriers shall be maintained in a structurally sound condition and neat appearance.
Should regulatory requirements necessitate construction of temporary barriers, barricades, or pedestrian walkways not indicated or specified, Design-Builder shall construct such barriers at no increase to the Stipulated Sums. If required, Design-Builder will paint such items in a color selected by the City.
3.7 Cutting and Patching
3.7.1 Design-Builder shall be responsible for all cutting, fitting or patching required to complete the Work, and comply with the requirements of Section 01 73 29 (Cutting and Patching).
3.7.2 Design-Builder shall not damage or endanger the existing property or facilities, including but not limited to utilities, by cutting, patching or otherwise altering the construction, and shall not cut nor otherwise alter the construction without prior written consent of City.
3.8 Cleaning
3.8.1 Design-Builder shall keep the Project Site safe and surrounding areas free from waste materials and/or rubbish caused by operations under the Agreement and June 5, 2023 00 50 00 - 25 Agreement
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at other times when directed by the City. At all times while finish work is in progress, floors shall be kept clean, free of dust, construction debris and trash.
Prior to issuance of the Certificate of Final Completion, Design-Builder shall remove from the Project Site the Design-Builder's tools, construction equipment, machinery, and any waste materials not previously disposed of, leaving the Project site thoroughly clean, and ready for the City's final inspection, complying with the requirements of Section 01 77 00 (Cleaning and Closeout Procedures).
3.8.2 If Design-Builder fails to clean up as provided in the Contract Documents, the City may do so and the cost thereof deducted from the final payment due to Design-Builder.
3.9 Site Availability.
3.9.1 The City shall turn over the Site to the Design-Builder as described in the Notice to Proceed and as further described in EXHIBIT A - PROJECT MILESTONE SCHEDULE, at which time the Design-Builder shall be obligated to take control and responsibility. The Design-Builder shall provide the City, Construction Project Manager and other City consultants with continuous access to the Site.
3.9.2 Temporary parking facilities shall meet all applicable regulatory requirements applicable to design and construction. Design-Builder shall be responsible for all permits, design, and construction required including, but not limited to lighting, access, signage, handicap accessibility, and maintenance. At the end of the Project, all temporary parking and utilities shall be removed, and those areas of the Project Site restored to its previous condition.
3.10 Site Conditions.
3.10.1 The Design-Builder represents that it has taken the necessary steps to ascertain the nature, location and extent of the Work, and that it has investigated and satis- fied itself as to the general and local conditions which are applicable to the Work, such as:
(a) conditions bearing on transportation, disposal, handling and storage of materials;
(b) the availability of labor, water, power and roads;
(C) normal weather conditions;
(d) physical conditions at the Site;
(e) the conditions of the ground; and
the character of equipment and facilities needed prior to and during the performance of the Work.
3.10.2 To the extent the Design-Builder encounters subsurface conditions or hazardous materials which differ materially from that actually known by the Design-Builder, or from those ordinarily known to exist or could have been reasonably discovered within the time permitted during the Request for Proposals, or generally recog- June 5, 2023 00 50 00 - 26 Agreement
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nized as inherent in the area, then notice by the Design-Builder shall be immedi- ately given to the City, before conditions are disturbed, and in no event later than two (2) business days after the first observance of the conditions. If such condi- tions could not have been reasonably identified by Design-Builder's site investi- gations and available existing data, and the Design-Builder incurs significant ad- ditional costs or delays as a result of such concealed conditions, such conditions may be the subject of a Change Proposal.
Should any existing utilities or services be disturbed, disconnected or damaged during construction, the Design-Builder shall be responsible, at no additional cost or time to the City, for all expenses and consequential damages of whatever nature arising from such disturbance or the replacement or repair thereof and shall repair such items as required to maintain continuing service, including emergency repairs.
3.10.3 The Design-Builder is responsible for foreseeable site conditions and hazardous materials to the extent described in the Contract Documents and/or could be reasonably inferred by Design-Builder based on its experience and expertise on similar Projects in similar areas.
3.11 Hazardous Materials.
The Design-Builder agrees that it is solely responsible for investigating and performing remedial actions on all hazardous materials and other related environmental requirements located on the Project site. Design-Builder shall comply with the requirements of Section 01 88 20 (Miscellaneous Facility Decommissioning Procedures Requirements).
Any hazardous materials that are encountered beyond those described in the Contract Documents or Proposal Requirements, or which reasonably could not have been discovered by the Design-Builder before submitting its Proposal, may properly be the subject of a Change Proposal. The City agrees that the Design-Builder cannot be considered a hazardous materials generator of any such materials in existence on the Site at the time it is given possession of the Site.
3.11.1 "Hazardous materials" means any substance, the presence of which requires investigation or remediation under any federal, state or local law, statute, regulation, ordinance, order, action, policy or common law; which is or becomes defined as a "hazardous waste," "hazardous substance," pollutant or contaminant under any federal, state or local law, statute, regulation, rule or ordinance or amendments thereto, including, without limitations, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as amended, or the Resource, Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq. ('RCRA"); which is petroleum, including crude oil or any fraction thereof not otherwise designated as a "hazardous substance" under CERCLA, including without limitation gasoline, diesel fuel or order petroleum hydrocarbons; which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or June 5, 2023 00 50 00 - 27 Agreement
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otherwise hazardous and is or becomes regulated by any regulatory agency or instrumentality or the City; the presence of which on the Site causes or threatens to cause a nuisance upon the Site or to the adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Site; the presence of which on adjacent properties could constitute a trespass by the Design-Builder or the City; or as defined in the California Health and Safety Code.
3.11.2 "Environmental Requirements" means all applicable laws, statutes, regulations, rules, ordinances, codes, licenses, permits, orders and similar items of all governmental agencies or other instrumentality's of the State of California and United States and all applicable judicial, administrative and regulatory decrees, judgments and orders relating to the protection of human health or the environment, including, without limitation: all requirements, including but not limited to, those pertaining to reporting, licensing, permitting, investigation and remediation of emissions, discharges, releases or threatened releases of hazardous materials into the air, surface water, ground water or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of hazardous materials; and all requirements pertaining to the protection of the health and safety of employees or the public.
3.11.3 The indemnification provision of the Agreement, Paragraph 12.2 Indemnification, is applicable to this paragraph in its entirety.
3.12 Shop Drawings, Product Data, Samples, Materials, and Equipment.
3.12.1 Shop drawings means drawings, submitted to Design-Builder by, subcontractors, manufacturers, supplier or distributors showing in detail the proposed fabrication and assembly of building elements and the installation (i.e., form, fit, and attachment details) of materials or equipment.
3.12.2 Design-Builder shall coordinate all submittals and review them for accuracy, completeness, and compliance with the requirements of the Contract Documents and the Design-Builder's construction documents, and shall indicate its approval thereon as evidence of such coordination and review.
3.12.3 Materials and equipment incorporated in the Work shall match the approved samples within tolerances appropriate to the items, and as may be described in the Contract Documents.
3.15.4 Prior to placement of material orders or start of component fabrication, the Design-Builder shall submit to the City all shop drawings approved by the Architect of Record and samples of submittals that relate to finish materials and products.
3.12.5 Wherever the name or brand of manufacturer or an article is listed in the Contract Documents, it is to be used in the Work as the standard. Any variation in quality must be approved by the City.
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3.13 Field Engineering.
3.13.1 The Design-Builder shall retain and pay expenses of a qualified civil engineer or land surveyor to establish on the Site the required reference points and bench marks, establish building lines and elevations, check for building framing, plumbness, and establish on building frame the required basic grid lines. The engineer or land surveyor shall be licensed in the State of California. Design- Builder shall be responsible for having ascertained pertinent local conditions such as location, accessibility, and general character of the Site and for having satisfied itself as to the conditions under which the Work is to be performed.
3.13.2 The Design-Builder shall locate and protect control points prior to starting Work on the Project site and preserve permanent reference points during construction, and shall require the engineer or surveyor to replace control points which become lost or destroyed.
3.13.3 Design-Builder shall follow best practices, including but not limited to pot holing to avoid utilities. City shall not be liable for any claim for allowances because of Design-Builder's error, failure to follow best practices, or negligence in acquainting itself with the conditions at the Site.
3.13.4 Design-Builder shall protect and preserve established benchmarks and monuments and shall make no changes in locations without the prior written approval of City. Design-Builder shall replace any benchmarks or monuments that are lost or destroyed subsequent to proper notification of City and with City's approval.
3.14 Geotechnical Data and Existing Site Conditions.
3.14.1 The City has provided the Design-Builder with preliminary geotechnical data and site conditions, Title Reports, etc. that are included in the Reference Documents section of the Request for Proposals. These Reference Documents are provided "for information only". Design-Builder shall be responsible to verify the accuracy of the information provided and, at its cost, obtain any additional measurements, verifications, or supplemental geotechnical report or land survey required to perform their work.
3.14.2 Design-Builder shall verify the location and depth (elevation) of all existing utilities and services before performing any excavation work and provide a drawing that documents these verified conditions as part of their Construction Documents.
3.14.3 The Design-Builder shall obtain, and pay for, the services of geotechnical engineers licensed in the State of California and other consultants to provide services deemed necessary by the Design-Builder. Such services may include reports, test borings, test pits, soil bearing values, percolation tests, air and water pollution tests, ground corrosion and resistivity tests, and other necessary June 5, 2023 00 50 00 - 29 Agreement
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operations for determining subsoil, air and water conditions, with reports and appropriate professional interpretations and recommendations thereof.
3.14.4 By executing this Agreement, Design-Builder agrees that City has responded to and resolved any conflict, error or ambiguity in the Existing Conditions data and Contract Documents that Design-Builder has brought to City's attention. During performance of the Agreement, Design-Builder will be charged with knowledge of all information that it should have learned in performing its required pre- construction services and pre-construction investigations and other obligations, and shall not be entitled to Change Orders (time or compensation) due to any information, error, inconsistency, omission, or conditions that Design-Builder should have known as a part of this Work. Design-Builder shall be responsible for the resultant losses, including, without limitation, the cost of correcting defective work.
3.15 Meetings and Reports.
3.15.1 Prior to commencement of the Work, the Design-Builder shall attend a Project Kick-off meeting, at a time and a place selected by the City's Representative, to discuss procedures to be followed during the course of the work. Design-Builder shall follow the procedures as set forth by the City's Representative and as provided in the Design-Builder's procedure manual to be supplied at the Kick-off conference. The purpose of the meeting will be to introduce the City's key personnel and to review the contract provisions and any other items pertaining to the Project.
3.15.2 Once a week, or at such interval as mutually agreed to by the parties, the City's Representative will meet with the Design-Builder to review the overall Project progress, the status of the design and/or construction, and to discuss any problems that may arise. Design-Builder and its Architect shall attend all progress meetings. Subconsultants, subcontractors and vendor representatives shall attend the progress meetings as appropriate to the particular stage of the work.
3.15.3 Each month the Design-Builder shall attend a payment meeting with the City's Representative to agree on the percentage of the work completed during the current month to establish an amount to be requested in the Application for Payment.
3.15.4 The Design-Builder shall prepare and submit to the City, during design completion, the construction document phase, and the construction phase, monthly reports on the Work accomplished during the prior monthly period. Such reports shall be prepared in a manner and in a format approved by the City. Six (6) bound copies of the Reports shall be furnished at the time of submission of each monthly application for payment. In addition, Design-Builder shall post electronic copies of the Report on the Project Management Software System (see Section 01 31 20 Project Management Software). The monthly report shall also set forth the Design-Builder's projected progress for the forthcoming month.
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3.15.5 Thirty (30) days prior to the estimated final completion, the Design-Builder shall hold a meeting to review maintenance manuals, guarantees, warranties, close- out submittals, bonds, and service contracts for materials and equipment.
Design-Builder shall also implement repair and replacement of defective items, and extend service and maintenance contracts as desired by the City.
3.16 Other Reports.
3.16.1 The Design-Builder will cooperate with the City, and as may be requested, assist in preparing periodic Project reports required by the City Council, the City's Citizens' Bond Oversight Committee, or other City committees or boards.
3.17 Notices of Labor Disputes.
3.17.1 If Design-Builder has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Work, Design- Builder shall immediately give notice including all relevant information to the City.
Design-Builder shall refer to the Project Labor Agreement for additional requirements.
3.17.2 Design-Builder agrees to insert the substance of this Article including this Clause in any subcontract to which a labor dispute may delay the timely performance of the Work, except that each subcontract shall provide that in the event its timely performance is delayed or threatened by delay, by any actual, or potential labor dispute, the subcontractor shall immediately notify the next higher tier subcontractor or Design-Builder, as the case may be, of all relevant information concerning the dispute.
3.18 Guarantee.
3.18.1 The Design-Builder unconditionally guarantees the building systems and equipment, including but not limited to the fire and life safety systems and equipment, were installed and will work in accordance with the requirements of the Contract Documents, and will remain free of defects in workmanship and materials for a period of two (2) years from the date of Final Completion. For such equipment or building components started in operation prior to Final Completion, the Design-Builder's guarantee shall, be in force for two (2) full years after Final Completion is declared by the City notwithstanding the components operation began prior to the City's declaration of Final Completion.
The Design-Builder shall repair or replace any and all guaranteed building systems and equipment, including but not limited to the specialty equipment, fire and life safety systems and equipment, together with any adjacent work that may have been damaged or displaced by the guaranteed systems or equipment, that may be defective in its workmanship or material or becomes inoperable within the guarantee period specified in the Contract Documents, without any expense whatsoever to the City; ordinary wear and tear excepted.
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3.18.2 The Design-Builder further agrees, within seven (7) days after being notified in writing by the City, of any work not in accordance with the requirements of the Contract Documents or any defects in the Work, that the Design-Builder shall commence and execute, with due diligence, all work necessary to fulfill the terms of the guarantee. If the City finds that the Design-Builder fails to perform any of the work under the guarantee, the City will proceed to have the work completed at the Design-Builder's expense and the Design-Builder will pay costs of the work upon demand. The City will be entitled to all costs, including reasonable attorney's fees necessarily incurred upon the Design-Builder's refusal to pay the above costs.
3.18.3 Notwithstanding the foregoing subparagraph, in the event of an emergency constituting an immediate danger to health or safety of City employees, property, or invitees, the City may undertake, at the Design-Builder's expense and without prior notice, all work necessary to correct such hazardous condition(s) when it is caused by work of the Design-Builder not being in accordance with the requirements of the Contract Documents.
3.19 Warranty.
3.19.1 The Design-Builder warrants, for a period of two (2) years from the date of Final Completion of Phases 1 and 2, to the City that any and all materials, equipment and furnishings incorporated in the Work will be of good quality and new unless otherwise required or permitted by the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The foregoing warranty excludes improper operation, or normal wear and tear under normal usage under the control of the City.
3.20 Patents, Trademarks, and Copyrights.
3.20.1 The Design-Builder shall pay, as part of the Stipulated Sums, all applicable royalties and license fees on any and all matters arising in connection with the Work. The Design-Builder shall defend the City for all suits or claims for infringement of patent, trademark, and copyrights against the City, and shall indemnify, defend, and hold harmless the indemnified parties from any claims, causes of action, losses, or costs related to any and all matters arising in connection with Work on the Project (such costs to be paid as part of the Stipulated Sums), except with respect to any particular design process or the product of a particular manufacturer or manufacturers specified or required by the City, other than pursuant to the recommendation or suggestion of the Design- Builder; provided, however, if the Design-Builder has reason to believe that the design, process, or product so specified is an infringement of a patent, the Design-Builder shall be responsible for any loss resulting unless the Design- Builder has provided the City with prompt written notice of the Design-Builder's belief, and the City has nevertheless elected to go forward with such design, process, or product so specified.
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3.21 Taxes.
3.21.1 The Design-Builder shall pay all applicable taxes for the Work, or portions thereof provided by the Design-Builder, which were legally enacted as of thirty (30) days prior to the submission of the Design-Builder's Request for Proposal, whether or not yet effective or merely scheduled to go into effect. Any federal, state, or local taxes payable on any materials, labor or any other thing to be furnished by Design-Builder under the Contract Documents and in effect thirty (30) days prior to the submission of the Design-Builder's Request for Proposal shall be included in the Stipulated Sums and paid by Design-Builder.
3.22 Tests and Inspections.
3.22.1 The Design-Builder shall be responsible for providing a Quality Assurance Manager assigned to the Project, The Quality Assurance Manager shall be subject to approval by the City. The Design-Builder shall provide the City with the detailed qualifications of the Quality Assurance Manager, including but not limited to, a description of previous relevant project experience, and all training. licensing and certifications.
The Design-Builder shall be responsible for requesting and scheduling all tests and inspections necessary to ensure the quality of the Work is in accordance with the terms of the Contract Documents, including Section 01 45 00 (Quality Control) and Section 01 45 23 (Testing and Inspection). The Design-Builder shall at all times permit the City and its agents, inspectors, officers, and employees' access to the Project Site and inspect the Work and such other locations where the Work is in preparation. This obligation shall include maintaining proper facili- ties and safe access for such inspection. When the Contract Documents require a portion of the work to be tested, such portion of work shall not be covered up until inspected and approved. The Design-Builder shall be solely responsible for notifying the City and the Building Inspector where and when the work is ready for inspection and testing at least forty-eight (48) hours in advance of the com- mencement and completion of construction of each and every aspect of the Work. The City shall provide inspectors to review and verify compliance of the Design-Builder's quality control and assurance teams with the contract docu- ments.
Should any work be covered without the required testing or witnessed by the City, such work shall be uncovered at the Design-Builder's expense. Whenever the Design-Builder intends to perform work on Saturday, Sunday, or a legal holiday, the Design-Builder shall give written notice to the City of such intention at least forty-eight (48) hours prior to performing the work, so that the City may make necessary arrangements.
3.22.2 If the City determines that portions of the Work require additional testing or inspection that is not included in the Contract Documents, the City will instruct the Design-Builder, in writing, to make arrangements for additional testing or inspection by an entity acceptable to the City, and the Design-Builder shall give June 5, 2023 00 50 00 - 33 Agreement
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forty eight (48) hours written notice to the City of where and when tests and inspections will be conducted so that the City may observe the procedures. The City will bear the costs except as provided in Subparagraph 3.22.1.
3.22.3 If procedures for testing, inspection or approval under Subparagraphs 3.22.1,
3.22.2 and 3.22.3 reveal failure of a portion(s) of the work to comply with the Contract Documents, the Design-Builder shall bear all costs and time made necessary by such failure(s) including those of repeated procedures and compensation for the City's services and expenses. The Design-Builder shall notify the City in writing within 24 hours of any test conducted by the independent testing agency that reveals work failing to comply with the Construction Documents. Inspection of Work shall not relieve Design-Builder from an obligation to fulfill this Agreement. Building Inspectors) and permitting agencies are authorized to suspend work whenever the Design-Builder and/or its subcontractors) are not complying with the Construction Documents. Any work suspension by the Building Inspectors) and/or any agencies having jurisdiction over the project shall be without liability to the City.
3.22.4 Required certificates of testing and inspection shall, unless otherwise required by the Contract Documents, be secured by the Design-Builder and delivered to the City within seven (7) days after each test.
3.22.5 Provide qualified on-site personnel to review and record daily construction activities, including subcontract activities, to determine adequacy of work and compliance with the approved plans and specifications. Provide written daily reports including, but not limited to: Project title, date of work, contract day, weather and conditions (temperature, wind, humidity, etc.), a description of the work in progress by corresponding schedule activity numbers), name of each subcontractor on site and work being performed, location of each trade on the Project site, total daily workforce per trade (including the Design-Builder's work force), material deliveries and quantities, equipment deliveries, potential delays and delays encountered, orders of instruction, unsatisfactory work, tests performed, safety concerns, visitors, and any other issues to document work performed and areas of concern.
Daily reports shall be signed by the Design-Builders' Quality Assurance Manager noted deficiencies in the installed work and corrective measures taken, and test reports of work being installed.
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3.23 Air Pollution.
3.23.1 The Design-Builder and each subcontractor shall comply with all State, City and/or local air pollution control rules, regulations, ordinances, and statutes that apply to any work performed under the Agreement. If there is a conflict between the State, City and local air pollution control rules, regulations, ordinances and statutes, the most stringent shall govern.
3.24 Unfair Business Practices.
The Design-Builder agrees, and will require all of the Design-Builder's contractors and subcontractors and suppliers to agree, to assign to the awarding body all rights, title, and interest in and to all causes of action they may have under Section 4 of the Clayton Act (15 U.S.C. Section 15), or under the Cartwright Act (commencing with Section 16700 of the Business and Professions Code), arising from the purchase of goods, services or. materials, pursuant to the Contract Documents or any subcontract there under. An as- signment made by the Design-Builder, and all additional assignments made by subcon- tractors and suppliers, shall be deemed to have been made and will become effective at the time the City tenders Final Payment to the Design-Builder, without further acknowl- edgment of the parties.
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ARTICLE 4 - CITY'S DUTIES AND RESPONSIBILITIES
4.1 City's Representative.
The City designates the Construction Project Manager to act on the City's behalf with respect to the Project. Functions for which this Agreement provides to be performed by the City may be delegated by the City only by written notice to the Design-Builder from the City.
Design-Builder shall not be entitled to rely on directions (nor shall it be required to follow the directions) from anyone outside the scope of that person's authority.
4.2 Communication with the Design-Builder.
During the term of this Agreement, the City shall communicate with the Design- Builder, subcontractors, suppliers, and others performing any part of the Work only through the Design-Builder's Authorized Representatives, as may be amended, subject to any approvals required by the City as described in the Contract Documents.
4.3 City's Consent.
4.3.1 Whenever the City's consent, review, satisfaction, or determination shall be required or permitted under the Contract Documents with respect to the Design- Builder's performance of the Work, and this Agreement does not expressly state that the City may act in its sole discretion, such consent, review, satisfaction or determination shall not be unreasonably withheld.
The City shall cooperate fully with the Design-Builder and shall furnish decisions, information, and/or reviews required by this Agreement in a timely manner so as not to delay the Work, provided that the City shall have no less time for review than set forth in the Project Baseline Schedule as developed by the Design- Builder and accepted by the City.
4.4 City Review of Design Materials.
The Design-Builder shall be entitled to proceed with all or a part of the construction phase of the Project upon the City's review of the design and construction documents, and any subsequent submittals or shop drawings, for conformance with the Contract Documents. If the City modifies or otherwise changes in a material way the Scope of Work called for in the construction documents, subsequent submittals or shop drawings, after such review for conformity, the Design-Builder shall be entitled to a Change Order in accordance with Article 8, Changes in the Work, of this Agreement. In no event shall a Change Order be issued to the extent such modification is due to the fault or neglect of the Design-Builder, or in the event the original submittals were not accompanied by annotations showing nonconformance with the Contract Documents, if any.
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ARTICLE 5 - SUBCONTRACTING AND LABOR
5.1 Subletting and Subcontracting.
5.1.1 The Design-Builder shall adhere to the rules governing subcontracting as set forth in the Subletting and Subcontracting Fair Practices Act, commencing with Public Contract Code Section 4100. Subcontractor substitutions shall be in accordance with the Subletting and Subcontracting Fair Practices Act. Any violation may subject the Design-Builder to penalties and disciplinary action as provided by the Subletting and Subcontracting Fair Practices Act, including termination of this Agreement.
5.1.2 The Design-Builder shall be responsible for all Work performed under this Agreement. All persons engaged in the Project will be considered employees of the Design-Builder. The Design-Builder shall give personal attention to fulfillment of the Agreement and shall keep the Work under the Design-Builder's control.
When any subcontractor fails to execute a portion of the work in a manner satisfactory to the City, the Design-Builder shall remove such subcontractor pursuant to the requirements of law immediately upon written notice from the City. Although Specification Sections, Part 4 of the Contract Documents, may be arranged according to various trades or general groupings of work, the Design- Builder is not obligated to sublet work in such manner. The City will not entertain requests to arbitrate disputes among subcontractors or between the Design- Builder and subcontractors) concerning responsibility for performing any part of the Work.
The City may not permit a subcontractor who is ineligible to bid or work on, or be awarded, a public works Project pursuant to Sections 1777.1 or 1777.7 of the Labor Code.
Any contract on a public works Project entered into between a Design-Builder and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by the Design-Builder on the Project shall be returned to the awarding body by the Design-Builder. The Design-Builder shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.
All subcontractors performing any part of the Work shall be registered as a Public Works Contractor with the Department of Industrial Relations. The Design- Builder shall be responsible for removing, by requesting substitution or otherwise, any subcontractors who are not in compliance.
5.2 Subcontracting Relations.
The Design-Builder shall, by subcontractor agreement, require each subcontractor, to the extent of the work to be performed by the subcontractor, to be bound to the Design- June 5, 2023 00 50 00 - 37 Agreement
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Builder by terms of the Contract Documents, and to assume toward the Design-Builder all the obligations and responsibilities which the Design-Builder, by the Contract Documents, assumes toward the City. Each subcontract shall preserve and protect the rights of the City under the Contract Documents with respect to the work to be performed by the subcontractor.
The subcontractor shall be allowed, unless specifically provided otherwise in the subcontract, the benefits of all rights, remedies and redress against the Design-Builder that the Design-Builder, by the Contract Documents, has against the City. The Design- Builder shall require each subcontractor to enter into similar agreements with sub- subcontractors. The Design-Builder shall make available to each proposed subcontractor, prior to the execution of the subcontractor agreement, copies of those portions of the Contract Documents to which the subcontractor will be bound.
Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed second and third tier subcontractors.
5.3 Subcontractor Progress Payments.
Within seven (7) days of receipt of each progress payment, the Design-Builder shall make payment to subcontractors in accordance with Business and Professions Code Section 7108.5.
5.4 Contract Assignments.
Performance of the Contract Documents may not be assigned except upon written consent of the City. Consent will not be given to an assignment that would relieve the Design-Builder or the Design-Builder's surety of their responsibilities under the Contract Documents.
5.5 N/A
5.6 Drug-Free Workplace Certification.
5.7 Nondiscrimination.
5.7.1 Equal Employment Opportunity. Design-Builder agrees for the duration of this Agreement that it will not discriminate against any employee or applicant for employment because of age, ancestry, color, gender, marital status, medical condition, national origin, physical or mental disability, race, religious creed, sexual orientation or other protected status. The Design-Builder will take affirmative action to ensure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or disability. The Design-Builder agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of the Nondiscrimination Clause.
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5.7.2 Disabled Non-Discrimination. This Project is subject to Section 504 of the Rehabilitation Act of 1973 as amended, (29 U.S.C. 794), the Americans with Disabilities Act of 1990 and all requirements imposed by the guidelines and interpretations issued in furtherance of the ADA. In this regard, the City, its Design-Builder and subcontractors will take all reasonable steps to ensure that disabled individuals have the maximum opportunity for the same level of aid, benefit or service as any other individual.
Fair Employment and Housing Act Addendum. In the performance of this Agreement, the Design-Builder will not discriminate against any employee or applicant for employment because of age, ancestry, color, gender, marital status, medical condition, national origin, physical or mental disability, race, religion or sexual orientation. The Design-Builder will take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their age, ancestry, color, gender, marital status, medical condition, national origin, physical or mental disability, race, religion or sexual orientation. Such action shall include, but not be limited to, the following:
employment, upgrading, promotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation notes to be proried by the salt of cagency beting forth the provisions of this Fair Employment and Housing Section.
5.8 Wages and Records.
5.8.1. Wage Rates
Pursuant to Sections 1770 and 1773 et seq. of the Labor Code of the State of California, the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages and the rates for overtime and holiday work in the locality in which the work is to be performed for each craft, classification, or type of workman needed to execute the Agreement, copies of which are on file and available upon request from the California Department of Industrial Relations.
5.8.1.2. The Design-Builder and any subcontractor under him, must not pay less than prevailing wage rates to all laborers, workmen and mechanics employed in the execution of the Contract. It is further expressly stipulated that the Design- Builder shall, as a penalty to City, forfeit two hundred dollars ($200.00) for each calendar day, or portion thereof, for each laborer, workman, or mechanic paid less than the stipulated prevailing rates for any work done under this Agreement by him or by any subcontractor under him and Design-Builder agrees to comply with all provisions of Section 1770 et seq. of the Labor Code.
5.8.1.3. Pursuant to Sections 1770 and 1773 of the Labor Code, the general prevailing rate of per diem wages applicable to the work to be done for straight time, overtime, Saturday, Sunday and holiday work as currently set forth June 5, 2023 00 50 00 - 39 Agreement
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by the Director of the California Department of Industrial Relations and are a part of the Agreement. The Design-Builder is required to post a copy of these prevailing wages rates on the job site.
5.8.1.4 The City will not recognize any claim for additional compensation because of the payment by the Design-Builder of any wage rate in excess of the prevailing wage rate set forth as provided herein. The possibility of wage increases is one of the elements to be considered by the Design-Builder in submitting its Proposal and the Stipulated Sums and will not under any circumstances be considered as the basis of a claim against the City under the Agreement.
5.8.2 Wage Records
5.8.2.1 The Design-Builder and each subcontractor shall keep or cause to be kept an accurate record (certified payroll) showing the names and occupations of all laborers, workers and mechanics employed by him in connection with the execution of this Agreement or any subcontract executed under it and showing also the actual per diem wages paid to each of said workers, using the Public Works Payroll Reporting Form, including certification (DIR Form A-1-131 or current version). The Design-Builder and each subcontractor shall upload the certified payroll reports, and Statement of Employer Payments (DIR Form PW 26) directly to the California Department of Industrial Relations through the eCPR application using PDF to the DIR at https://apps.dir.ca.gov/ecpr/DAS/AltLogin or current application and URL weekly or within ten (10) days of any request by the City or the DIR.
5.8.2.2 Certified Payroll records shall be submitted with each Monthly Progress Payment request showing records within ten (10) days of the billing period. The Design-Builder shall provide all information reasonably required by Building Trade organizations.
5.8.2.3 Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by City, Division of Builder shall not be marked or obliterated.
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ARTICLE 6 - PAYMENTS AND COMPLETION
6.1 Stipulated Sums.
In consideration of Design-Builder's obligations under the Contract Documents, Design- Builder will be paid the Stipulated Sums for Phase 1 and Phase 2, in accordance with the payment procedures set forth herein. Except as otherwise provided in the Contract Documents, the Stipulated Sums will fully compensate Design-Builder for all of the services required under the Contract Documents, including the scope of services described in this Agreement.
6.2 Schedule of Values.
Within thirty (30) days of executing this Agreement and prior to the first Application for Payment, the Design-Builder shall submit to the City a Schedule of Values to complete the Project, supported by such data to substantiate the accuracy as the City may require. This Schedule of Values, unless objected to by the City within fifteen (15) days of receipt, shall be used as a basis for progress payments.
6.2.2 The Project is funded by multiple funding sources which require specific detail in the Schedule of Values. The requirements for this detail will be furnished to the Design-Builder during the Proposal period, and within thirty (30) days of executing this Agreement.
6.2.3 This Schedule of Values may be adjusted from time-to-time as the subcontracting plan is finalized.
6.3 Application for Payment.
The Design-Builder shall deliver to the City on the last business day of each month, or as otherwise agreed by both parties, an Application for Payment, in the format approved by the City, covering that portion of the Stipulated Sums allocated to the Work completed during each month and in accordance with the Schedule of Values. Invoices shall include the contract number, the Project number, the amendment number, Design- Builder's Federal Employer Identification Number (FEIN); and shall be submitted to the City in care of the City's Construction Project Manager.
Application for payment shall not be submitted more frequently than once monthly. The application for payment shall be signed by an officer or designee of the Design-Builder's firm. Provided the Application for Payment is received and approved by the City, the City shall make payment to the Design-Builder not later than thirty (30) days after receipt by the City of a payment application that is strict conformance with the requirements herein.
With each Application for Payment, the Design-Builder shall submit such evidence as may be necessary to demonstrate costs incurred or estimated to be incurred in accordance with the Schedule of Values during such month and the percentage of completion of each category of Work.
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6.4 Progress Payments.
The City shall pay the Design-Builder the progress payments through the period covered by the Application for Payment, less five percent (5%) retention. Upon receipt of an Application for Payment from the Design-Builder, the City will promptly review the same to determine if it is a proper Application for Payment based on the approved Schedule of Values. Any Application for Payment determined by the City not to be in strict conformance with the requirements herein set for payment shall be rejected, and returned to Design-Builder to be modified and processed per the Agreement. The City's reason(s) for rejection the Application for Payment shall be stated in writing.
6.5 Withholding of Payment.
6.5.1 Notwithstanding the provisions of Subparagraph 6.11.7, Final Payment, the City may withhold payment on account of an Application for Payment to the extent necessary to protect the City from loss because of:
6.5.1.1 Defective Work not remedied within forty-eight (48) hours of written notice to Design-Builder;
6.5.1.2 Third-party claims filed or reasonable evidence indicating probable filing of such claims;
6.5.1.3 Failure of the Design-Builder to make payments of undisputed amounts to Design Build team consultants or subcontractors for labor, materials, or equipment;
6.5.1.4 Failure to store and properly secure materials;
6.5.1.5 Damage to the City caused by the fault or neglect of the Design-Builder to the extent not covered by insurance;
6.5.1.6 Reasonable evidence that the Work will not be substantially completed within the Contract Time due to delay not considered a Compensable Event, and that the unpaid balance of the Stipulated Sums would not be adequate to cover liquidated damages for the anticipated inexcusable delay; or
6.5.1.7 Design-Builder is otherwise in breach, default, or in substantial violation of any provision of this Agreement.
6.5.2 When the above reasons for withholding payment are removed, payment less The Design-allerade deposit secures elvalent to loon italing, accordance with the procedures outlined in Article 6.10.
6.6 Payment for Stored Materials.
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Unless otherwise provided in the Contract Documents, payment will be made on account for materials or equipment not incorporated in the Work but delivered and suitably stored at the Site and/or if approved in advance by the City, and at the City's discretion on case-by-case basis, payments may be made for materials or equipment stored at some other bonded or otherwise secure location agreed upon in writing. Payments made for materials or equipment stored on or off-site shall be conditioned upon submission by the Design-Builder of bills of sale or such other procedures satisfactory to the City to establish City's title to such materials or equipment or otherwise protect the City's interest, including applicable insurance and transportation to the Site for those materials and equipment stored off-site.
6.7 Payments as Trust Funds.
Any and all funds payable to the Design-Builder are hereby declared to constitute trust funds in the hands of the Design-Builder to be applied first to payment of claims of subcontractors, sub-subcontractors, architects, engineers, surveyors, laborers, material men or employees arising out of the described Work, to obligations for utilities furnished, tax imposed or such to the payment of premiums on security or other bonds, and to payment of insurance premiums relating to the Project and to payments and contributions to union pension plans and trust funds before application to any other purpose.
6.8 Payment Not a Waiver.
6.8.1 No payment hereunder, including Final Payment to Design-Builder, nor City's use or Beneficial Occupancy of the Work, shall release Design-Builder with respect to design, construction, workmanship, materials, equipment or machinery incorporated in the Work which is found to be defective, unsound or improper.
6.8.2 No payment made under the Design Build Agreement, shall be evidence of performance thereof, either wholly or in part, nor shall it be construed to be acceptance of defective work or improper material, or an approval of any items in any application for payment.
6.9 Waiver of Stop Payment Notice and Payment Bond Rights.
The Design-Builder shall attach to each application for payment, a waiver of all stop payment notice and payment bond rights as provided in Civil Code sections 8132, 8134, 8136 or 8138, with respect to all amounts requisitioned up to and including the then current requisition from the Design-Builder, which waiver of lien and payment bond rights covers all amounts requisitioned from the Design-Builder's subcontractors and all tiers and suppliers. Design-Builder shall make available copies of similar waivers from its subcontractors of all tiers and suppliers.
6.10 Retention.
The City will retain five percent (5%) of such estimated value of all Work completed (including design and other professional services) and a like percentage within limits June 5, 2023 00 50 00 - 43 Agreement
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established by law, of the value of materials so estimated to have been furnished, delivered and unused, as aforesaid, as part of security for fulfillment of the Contract Documents by the Design-Builder. The completion of the design work will be evaluated separately from the construction effort, and redirection of retainage will be evaluated accordingly. The City will pay monthly to the Design-Builder while executing the Work the balance not retained after deducting all previous payments and all sums to be retained under provisions of the Contract Documents.
Investment Alternative:
6.10.1 At the request and expense of the Design-Builder, and in accordance with Public Contract Code Section 22300, the City will make payment of the retention earned directly to a state or federally chartered bank in California, as the escrow agent.
6.10.2 The escrow agreement shall be substantially similar to the form "Escrow Agreement for Security Deposits in Lieu of Retention" found in Public Contract Code Section 22300.
6.10.3 Upon satisfactory completion of the Work, the Design-Builder shall receive from the escrow agent all securities, interest, and payments received by the escrow agent from the City, pursuant to the terms of the Escrow Agreement.
6.11 Payment and Completion.
6.11.1 The City reserves the right to occupy all or any part of the Project prior to completion of the Work, upon written notice. In this event, the Design-Builder shall be relieved of responsibility to the City for injury or damage that results from occupancy and use by the City. If, by reason of the City's occupancy, the premium for the Design-Builder's bodily injury and property damage insurance is increased, the City of Gonzales will reimburse the Design-Builder for the additional amount necessarily incurred allocable to the area and the period of City's occupancy up to the date of Final Completion.
6.11.2 The City's occupancy does not constitute acceptance by the City of the Work, or any portion of the Work, nor will it relieve the Design-Builder of responsibility for correcting defective Work or materials found at any time before Final Completion, as set forth in Paragraph 3. 18, Guarantee, or during the guarantee period after City's acceptance, as set forth in Subparagraph 6.11.6, Final Payment.
However, when the Project includes separate buildings, and one or more of the buildings is entirely occupied by the City, then upon written request by the Design-Builder and by written consent from the City, the guarantee period will commence to run for a building or buildings from the date of the City's Beneficial Occupancy of a building or buildings.
6.11.3 Beneficial Occupancy. The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Design-Builder, provided such occupancy or use is consented to by the insurer of the Project and the City of Gonzales Fire Chief, June 5, 2023 00 50 00 - 44 Agreement
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Notice of Substantial Completion, and a sign-off by the Building Inspector is obtained. Such partial occupancy or use may commence whether or not the portion is complete, provided the City and the Design-Builder have accepted in writing the responsibilities assigned to each of them for payment, security, maintenance, , heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. Immediately prior to such occupancy, the City and the Design-Builder shall jointly inspect the area to be occupied in order to determine and record the condition of the Work.
Unless otherwise agreed; partial occupancy or use of a portion of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents.
6.11.4 Upon Substantial Completion, the Design-Builder and the City shall collaboratively prepare a single comprehensive punch list. The Design-Builder shall then proceed promptly to complete and correct the punch list items. Failure to include an item on the punch list does not alter the responsibility of the Design- Builder to complete all work in accordance with the Contract Documents.
6.11.5 Upon completion of the punch list the City will make an inspection to determine whether the work has been completed. The Certificate of Final Completion shall be issued when all work is complete, and the City has formally accepted the Project.
6.11.6. Waiver of Claims. Acceptance of Final Payment by the Design-Builder shall constitute a waiver of affirmative claims by the Design-Builder, except those previously made in writing and identified as unsettled at the time of Final Payment.
6.11.7 Final Payment. Upon execution of the Certificate of Final Completion, providing no stop notices have been filed that have not been discharged or bonded, all amounts unpaid under the Design Build Agreement will be paid to Design- Builder. The City may withhold any reasonable sums payable to Design-Builder for the value of any Work, which the City found defective and ordered to be re- placed. Final Payment of withholdings will be made when the Work is completed and/or defective Work replaced.
The City shall pay the remaining amount of the Stipulated Sums to the Design- Builder, after:
6.11.7.1 Acceptance and Close-out of the Work.
6.11.7.2 Resolution of all stop payment notices.
6.11.7.3 Execution by the Design-Builder of a release of all claims against the City pursuant to this Agreement.
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6.11.7.4 Any and all other requirements in this Agreement that provide for satisfaction prior to final payment.
6.11.8 The Design-Builder is required to pay subcontractors from whom retention has been withheld within seven (7) days of receipt from the City of retention proceeds.
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ARTICLE 7 - SCHEDULE
7.1 Contract Time.
The "Contract Time" is the period from receipt by Design-Builder of written authorization o begin the Project in the form of a Notice to Proceed from the City, until the schedules late of Final Completion of the Work. The Design-Builder agrees to desian and manage the Work in accordance with the Project Milestone Schedule and approved Baseline Schedule.
7.2 Completion.
By executing this Agreement, the Design-Builder confirms that the Contract Time and Milestones, as stated in the Project Milestone Schedule (Exhibit A) of the Contract Documents, are of the essence of this Agreement. The Design-Builder confirms that the Contract Time and Milestones allow a reasonable period of time for achieving the Certificate of Final Completion of the Work for the Project.
7.3 Schedules.
7.3.1 The Design-Builder shall be responsible for the development and maintenance of the Preliminary Baseline Schedule, the Baseline Schedule, the Progress Sched- ule and the Short-Term Schedule as described below. The Design-Builder shall • submit, as indicated below, each schedule for the execution of the Work for the City's review and response. The City's review of and response to the schedule submissions shall not be construed as relieving the Design-Builder of its com- plete and exclusive control over the means, methods, sequences and techniques for executing the Work. Each schedule shall provide an interrelated means for defining activities involved in the planning, design, construction, and completion of the Project, their sequences and elapsed completion time from the date of the Notice to Proceed
Each schedule shall utilize CPM (Critical Path Method) and shall be submitted in diagram and listed form. The computer-generated schedules shall permit the Design-Builder to obtain several print sorts that aid in identifying various activities and requirements. Critical activities are those that require information or review by City, PERMITTING AGENCIES, or the Construction Project Manager. The Design-Builder shall utilize Primavera Project Planner for Windows software (P6) by Primavera Systems, Inc.
The Design-Builder shall make its Authorized Schedule Representative available throughout the contract time and authorize that person to make scheduling commitments binding on the Design-Builder, as required to fulfill the scheduling requirements. The Design-Builder has submitted a preliminary schedule of the work (the "Proposal Schedule") in bar chart form with its proposal, incorporating all critical path milestones identified by the City or known milestones and critical activities by the Design Builder, as well as the date for contract completion.
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Design-Builder's representation that it could comply with the contract milestones, as demonstrated by its Proposal Schedule was an element of consideration in the City's award of the contract. Design-Builder's Proposal Schedule, as submitted with its Proposal and as modified during negotiations and accepted by the City, will be utilized as an interim contract schedule for all purposes until the Design-Builder's submittal of an acceptable Preliminary Baseline Schedule.
7.3.2 Design-Builder's Preliminary Baseline Schedule. Within fourteen (14) calendar days from the Notice to Proceed, the Design-Builder shall submit a Preliminary Baseline Schedule to the Construction Project Manager. This schedule shall show, but is not limited to, the general plan for the work to be completed in the first ninety (90) calendar days of the Agreement. The Preliminary Baseline Schedule shall contain, but not be limited to:
7.3.2.1 dates established in the City's Project Milestone Schedule;
7.3.2.2 dates to acquire, set up and occupy the field office;
7.3.2.3 dates of all mobilization activities on site, including notices and permits;
7.3.2.4 dates detailing the planned design schedule, including submittals and reviews;
7.3.2.5 anticipated dates for the start and completion of each stage of the design and construction process; and
7.3.2.6 established milestone dates representing important events in the first 90 days and major milestones representing the completion of a group of activities in the first year.
The Preliminary Baseline Schedule shall be in the form of a CPM schedule.
Design-Builder will provide all data files electronically by email or on compact disc or flash drive. The City and Construction Project Manager will review the Design-Builder's Preliminary Baseline Schedule for conformance with the Milestone Schedule and interrelationships with other activities requiring coordination that may be outside the scope of this Agreement. Upon completion of the review, the City may make recommendations to the Design-Builder as to adjustments to the Preliminary Baseline Schedule. These recommendations, if accepted by both the City and Design-Builder, will be incorporated into the development of the Design-Builder's Baseline Schedule.
Design-Builder Baseline Schedule. Within sixty (60) calendar days after the Notice to Proceed, the Design-Builder, after an initial meeting with the City, shall prepare a proposed Baseline Schedule for the Project. Recognizing that planning activities and design activities need time control to no less degree than construction activities, this schedule shall include, but not be limited to:
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7.3.3.1 A CPM format that incorporates all activities with descriptions, sequence, logic relationships, duration estimates, resource-loading, cost loading and other information required for all design, pre-construction and construction activities. Each activity shall have a minimum of one predecessor and one successor, with the exception of the first and last activities. The first activity will be denoted as "Notice to Proceed" and the last activity will be denoted as "Final Completion". Both activities shall be Contract Milestones.
The CPM format shall include all Contract Milestones defined in this Agreement and/or by the Design-Builder's proposed Baseline Schedule, as well as all engineering, fabrication and delivery dates required to support the Contract Milestones
7.3.3.3 Activities indicating the start and finish dates for Project design, engineering, preparation of design development and construction documents, government agency plan check and City agency document review.
7.3.3.4 Activities to be integrated and shown in the CPM network shall include all milestones representing the Design-Builder's submittal dates and activities representing the City's review period of each submittal (which review period shall in no case be scheduled for less than ten (10) working days); Design-Builder's procurement of materials and equipment; submittals; manufacture and/or fabrication, testing and delivery to the job-site of special material and major equipment, equipment installation and preliminary, final and performance testing of equipment or systems.
7.3.3.5 Activities showing the start and finish dates for all temporary works; all construction of mock-ups, and prototypes and/or samples.
7.3.3.6 Activities showing start and finish dates of owner-furnished items and interface requirement dates with other contractors; regulatory agency approvals; and permits required for the performance of the work.
7.3.3.7 Activities showing start and finish of user programming (as appropriate), modular furniture, tenant improvement work and phased occupancy.
7.3.3.8 Close-out activities, including activities required for PERMITTING AGENCIES certification.
The schedule shall consider all foreseeable factors or risks and any other applicable regulatory requirements.
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7.3.3.10 The Design-Builder shall not use any "float suppression" techniques such as preferential sequencing or logic, special lead/lag constraints or unjustifiably over-estimating activity durations in preparing the schedule. ("Finish no later" constraints will be permissible for contract milestones only.)
7.3.3.11 The Design-Builder shall attach a narrative report which explains assumptions used for activity durations, its assumptions regarding crew sizes, equipment requirements and production rates, any potential areas of concern or specific areas requiring coordination it may have identified and any long-lead time materials or equipment in the work.
7.3.3.12 The Design-Builder's Authorized Schedule Representative shall be proficient in CPM scheduling and Primavera and shall formally present the detailed time-scaled CPM network for the duration of the Contract Time, demonstrating compliance with Contract Milestones and other requirements to the City clearly showing the critical paths) of the Project (activities with ten (10) days of float or less) through completion.
7.3.3.13 Time units for all schedules shall be in calendar days, and no construction activity scheduled to commence within sixty (60) days of the Data Date shall have a duration greater than seven (7) calendar days. Activities scheduled to start more than sixty (60) days of the Data Date shall have durations no greater than twenty (20) days Schedule shall include City milestones as agreed by City and Design-Builder.
7.3.4 • The proposed Baseline Schedule shall be submitted and reviewed by the Con- struction Project Manager. Changes to the Baseline Schedule shall be reviewed with the Construction Project Manager prior to implementation. The City, at its sole discretion, may allow or require the Design-Builder to more fully detail por- tions of the Baseline Schedule at a later date.
The Construction Project Manager shall notify the Design-Builder of acceptance or of any necessary changes to the CPM network within ten (10) working days equired changes and resubmit it for acceptance within five (5) working days ertifying in writing that all information contained in it complies with the contrac the following:
7.3.4.1. Bar Charts generated using the format template provided by the City for:
(1) Contract Milestones only;
(2) Summary Level (sorted by craft/trade and area
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(3) Detail (sorted by Early Dates)
(4) Detail (sorted by Responsibility), and
7.3.4.2 Reports generated separately using the format template provided by the Construction Project Manager for:
(1) Float (sorted low to high), and:
(2) Resource histogram
(3) Cost Summary and Cash flow Projection
7.3.4.3 Activities shall be coded to the activity code structure, provided to the Design-Builder by the Construction Project Manager in electronic format, as coordinated with the Construction Manager.
7.3.4.4 Provide all data files electronically by email or on compact disc or flash drive. Once accepted by the City, this schedule shall become the Baseline Schedule for the Project from which all future Progress Schedules will be generated.
Design-Builder Progress Schedule. Each month, in conjunction with the application for payment process, the Design-Builder and Construction Project Manager will conduct monthly reviews to determine: "planned" versus "actual" progress to date; compliance with contract submittal requirements, Contract Milestones and the accepted Contract Schedule; and determination of any changes to the work plan or implementation which must be made by the Design- Builder to comply with the Contract Schedule. The monthly schedule review shall include, at a minimum:
7.3.5.1 Monthly update/status of electronic database shall include recording of all Actual Start Dates and Actual Finish Dates and status of activities in progress.
7.3.5.2 Review of "Planned" versus "Actual" work force allocations and progress for the preceding month.
7.3.5.3 Reviews of revisions added or deleted work and how those activities are being integrated into the Design-Builder's work plan.
7.3.5.4 Review of Design-Builder's interface and coordination with other work on the Project.
7.3.5.5 Review of all impacts to the work during the preceding month and o date, Design-Builder evaluation of those impacts and any recover lans or remedial actions required to comply with the contract schedule June 5, 2023 00 50 00 - 51 Agreement
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Following the review of the above and all other information relevant to the progress of the work, the Design-Builder shall adjust its work plan as required to insure compliance with the Contract Schedule. The requirement for additional work force allocations, additional shifts, overtime, etc., will not entitle Design- Builder to additional compensation except to the extent expressly provided for by this Agreement or Change Order. The Contract Schedule shall be updated and submitted monthly for the Construction Project Manager's review concurrent with each payment application submitted by the Design-Builder. The schedule update shall incorporate actual status to date and shall include the following:
7.3.5.5.1 Computer plotted time-scaled CPM network (36" × 48") in color;
7.3.5.5.2 Bar Charts generated separately using the format template provide by the City for:
(1) Contract Milestones only (Baseline vs. forecast);
(2) Summary Level (sorted by craft/trade and area);
(3) Detail (sorted by Early Dates);
(4) Detail (sorted by Responsibility), and;
7.3.5.5.3 Reports generated separately using the format template provided by the City for:
(1) Variance (Baseline vs. forecast);
(2) Progress Curves (Baseline vs. Earned/Forecast);
(3) Float (sorted low to high); and
(4) Resource histogram
7.3.5.5.4 Provide all data files electronically by email or by compact disc or flash drive, and in hard copy, provided to the Design-Builder by the Construction Project Manager, as coordinated with the Construction Manager.
The Construction Project Manager will update the Master Schedule based on information provided in the Progress Schedule and distribute to the appropriate parties. The Progress Schedule will be the basis for the Short-Term Schedule.
7.3.6 Design-Builder Short-Term Schedule. The Short-Term Schedule shall be presented at each weekly project meeting, and address activities over an eight- week period. This schedule shall be maintained on a weekly basis and used as a means of compensating for negative effects of as many variables as possible. It shall be directly derived and electronically tied to the Master Schedule to enable rapid analysis of impacts of short-term schedule changes on the overall Project timeline.
The Short-Term Schedule is a dynamic schedule whose activities can vary in both duration and precedence, but only between two sequential milestones as described in the accepted Baseline Schedule. Upon the City's acceptance of the June 5, 2023 00 50 00 - 52 Agreement
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Baseline Schedule, the Design-Builder shall begin providing an updated Short- Term Schedule for all participants at each weekly progress meeting or on a weekly basis if the City decides weekly meetings are not required. The interval format shall be a seven-week projection that shall include one (1) week prior, the week submitted, and six (6) weeks thereafter.
7.3.7 Schedule Revisions. The implementation of revised schedule logic and/or activity duration estimates for updating the contract schedule or other interim schedule whether furnished by the Design-Builder or the City do not constitute an extension of Contract Time, relaxation of Contract Milestones or basis for a change to the Stipulated Sums. Such revisions are for the purpose of maintaining the accuracy of the Contract Schedule's representation of the work to be accomplished and to present best duration estimates for work yet to be performed. In updating the Contract Schedule, the Design-Builder shall make no modifications to Activity ID numbers in the accepted contract schedule, schedule calculation rules/criteria, or the Activity Coding Structure provided by the Construction Project Manager without the explicit written permission of the City, which permission the City may withhold at its sole discretion.
7.3.8 Graphical Information. The Design-Builder shall prepare professional-quality graphical presentations of such scheduling and/or sequencing information as may be required to communicate its work plans or to effectively implement its coordination obligations under the contract.
7.3.9 City's Project Master Schedule. The purpose of the Project Master Schedule is to combine, coordinate, and track schedules produced by the Design-Builder and other Project team members throughout the course of the Project. The Project Master Schedule will also include Contract Milestone dates (Exhibit A) and the Design-Builder's Baseline Schedule, and shall be utilized by the City and the Design-Builder to identify any coordination issues and/or conflicts with other Project team members under separate contract. The Construction Project Manager shall be responsible for maintaining, updating and distributing the Project Master Schedule.
7.4 Float time.
Float or slack is the amount of time between the early start date and the late start date, or the early finish date and the late finish date, of any of the activities in the schedule.
All float time contained in the Work shall be shared between the City and Design-Builder, but its use shall be determined by the City. Under no circumstances shall Design-Builder be entitled to maintain a claim against the City for Design-Builder's failure to achieve Final Completion on a date earlier than that set forth on said Project Milestone Schedule as the same may be adjusted by approved Change Orders.
7.5 Compensable Event.
7.5.1 Notwithstanding anything in this Agreement to the contrary, in the event of a "Compensable Event," as hereinafter defined, Design-Builder shall notify the City June 5, 2023 00 50 00 - 53 Agreement
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in writing within fourteen (14) days, setting forth all of the facts and circum- stances relating to the Compensable Event, the expected financial impact on the Stipulated Sums, and any delays to the Contract Time. In the event the City agrees that it is a Compensable Event, the City shall have the option of either:
(a) adjusting the Contract Time by the delay occasioned by the Compensable Event, if any, and increasing the Stipulated Sums by the financial impact of the Compensable Event, if any, or
(b) reducing the scope of the Project so that the Stipulated Sums and/or Con- tract Time will not be exceeded. Design-Builder shall cooperate with the City, and provide information at no additional cost to the City, at the City's request to identify appropriate program modifications to achieve the de- sired effect.
' "Compensable Event" shall mean any one of the following:
7.5.1.1 material acts or omissions of the City's agents or contractors (other than Design-Builder and/or its subcontractors) which are inconsistent with the terms of the Contract Documents and result in any delay or cost increase to the Project that results in an extension of the Contract Time;
7.5.1.2 a change in any applicable laws, ordinances, rules, codes, regulations, and lawful orders of governmental authorities relating to the Project after the date of execution of this Agreement by the Design- Builder, which results in a delay or cost increase;
7.5.1.3 acts of God events, as defined in Article 1;
7.5.1.4 labor disputes, strikes, lockouts, work slow-downs or work stoppages not resulting from Design-Builder's failure to comply with any applicable labor agreement.
7.5.2 Costs of Compensable Event.
The increased costs occasioned by a Compensable Event shall be limited solely to the direct costs of Design-Builder and shall not include any consequential damages or lost profits. To the extent a Compensable Event increases the time of performance of either design or construction, an extension to the Contract Time shall be granted. Notwithstanding the forgoing, if the Compensable Event is of the type described by clause 4, immediately above, Design-Builder shall not be entitled to recovery of any costs for the first thirty (30) days of delay (in the aggregate) and shall be entitled to file a claim for recovery of costs thereafter, which claim shall be limited to general conditions and overhead costs only.
7.6 Weather Days
Delays due to adverse weather conditions will only be permitted if the number of days of June 5, 2023 00 50 00 - 54 Agreement
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adverse weather exceeds the following parameters, and only if Design-Builder can verify that adverse weather caused delays exceeds the following number of working days:
January, [11]; February [10]; March [10]; April [6]; May [3]; June [1]; July [O]; August [O]; September [1]; October [4]; November [7]; December [10].
7.7 Liquidated Damages.
The City and Design-Builder agree that the City will suffer economic damage should the Design-Builder fail to complete each Project Phase in the time required as shown in Exhibit A. In the event that there is a delayed occupancy, the result of such delay may require the City to rent temporary space or extend existing leases/occupancies, plus incur additional administrative costs. The City has determined that the estimated costs due to such delay is Three Thousand Dollars ($3,000.00) per day of a delay in achieving Substantial Completion and a total of One Thousand Dollars ($1,000.00) per day of delay in achieving Final Completion for each Project Phase, by the date indicated in the Milestone Schedule shown in Exhibit A. Design-Builder agrees that this is a reasonable estimate of such costs.
The City and Design-Builder agree that such amount shall be treated as Liquidated Damages pursuant to Civil Code Section 1671, and that Design-Builder shall accordingly pay the City the sum of Three Thousand Dollars ($3,000.00) per day of a delay in achieving each of the Substantial Completion and a total of One Thousand Dollars ($1,000.00) for each day by which the Certificate of Final Completion are delayed beyond the Contract Time set forth for each Phase in the Project Milestone Schedule, whether the City's actual damages for such occupancy delays are more or less than the liquidated sum.
However, if the City has taken Beneficial Occupancy of any portion of the Project, said liquidated sum for the Certificate of Final Completion shall be reduced proportionately.
For example, if the City takes 10% Beneficial Occupancy of the Project, the amount of the Liquidated Damages shall be reduced by 10%. This paragraph shall not limit the City's right to seek and obtain additional legal remedies or damages that result from breaches of the Contract Documents by the Design-Builder which do not stem from delay in occupancy. These additional damages include, but are not limited to, breach of contract or breach of warranties either express or implied, etc.
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ARTICLE 8 - CHANGES IN THE WORK
8.1 General.
8.1.1 The City may order changes, including but not limited to, revisions to the Construction Documents, performance of extra work, and the elimination of work.
Orders for such changes will be in writing. Changes shall not affect the bligations of the sureties on the contract bonds nor require their consent. Th Jesian-Builder shall notify the City for their evaluation whenever it appears change is necessary. Contract Time and Stipulated Sums will be adjusted by written Change Order for changes materially increasing or decreasing the time for performance or cost.
8.1.2 The Design-Builder, when ordered by the City, shall proceed with changes before agreement is reached on adjustment in compensation or time for performance, and shall furnish to the City records as specified in this Agreement.
8.1.3 If the Design-Builder fails to provide such records, the City's records will be used for the purpose of adjustment in Contract Time and Stipulated Sums.
8.2 Change Order.
8.2.1 Methods used in determining the value of a Change Order shall be based on one of the following methods:
8.2.1.1. By mutual acceptance of a lump sum increase or decrease in costs.
Upon the City's written request, the Design-Builder shall furnish a detailed estimate of increase or decrease in costs, together with cost breakdowns of labor, materials and equipment and other support data within the time specified in such request. Cost breakdowns shall include, but are not limited to: hourly labor rates and hours; materials quantities and unit costs; and equipment hourly rates and hours, as an example.
The Design-Builder shall be responsible for any additional costs caused by the Design-Builder's failure to provide the estimate within the time specified.
8.2.1.2. By the City, on the basis of the City's estimate of increase or decrease in the costs.
8.2.1.3. By the City, whether or not negotiations are initiated as provided in this Agreement.
8.2.1.4. By actual and necessary costs, as determined by the City, on the basis of supporting documents submitted by Design-Builder. Beginning with the first day and at the end of each day, the Design-Builder shall furnish to the City detailed hourly records for labor, construction equipment, and services; and itemized records of materials and equipment used that day in performance of the changes. Provide hourly rates for all include June 5, 2023 00 50 00 - 56 Agreement
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design professionals, contractor management staff both on site and office and other consultants performing services on this project. Such records shall be in a format approved by the City. Such records shall be signed by the Design-Builder and verified by the City.
8.2.1.5 By a manner agreed upon by the City and the Design-Builder.
Allowable Costs. If an increase or decrease cannot be agreed to as set forth in Clauses 8.2.1.1 through 8.2.1.6, above, the method for determining the value of the Change Order shall be computed in the following manner:
8.2.2.1. Mark-Ups for Added Work.
8.2.2.1.1. for work performed by the Design-Builder in the amount equal • to the direct cost (as defined herein) for the work plus fifteen percent (15%) of the direct costs for overhead and profit.
8.2.2.1.2. for work performed by Subcontractor in the amount equal to the direct cost (as defined herein) for the work plus fifteen percent (15%) of the direct cost for overhead and profit.
8:2.2.1.3. for work performed by a Sub-subcontractor (any tier), in the amount equal to the direct cost (as defined herein) for the work plus fifteen percent (15%) of the direct cost for overhead and
8.2.2.1.4. for all added work, in no case will the total markups be greater than fifteen percent (15%) of the direct cost notwithstanding the number of Contract tiers actually existing.
8.2.2.1.5. for deleted work, the credit markup shall be ten percent (10%) of the direct cost or the agreed upon estimate thereof, unless otherwise agreed to by both parties. The markup shall include profit, small tools, cleanup, bonds, engineering, supervision, warranties, job-site overhead and home office overhead. No markup will be allowed on taxes. (See the following paragraphs for more detailed exceptions.)
8.2.2.1.6. for T&M work, markup will be five percent (5%) less than noted above in paragraphs 8.2.2.1.1 through 8.2.2.1.5.
8.2.2.1.7 Total of all markups in no case shall exceed 15% of the cost of each Change Order
8.2.3 Direct Costs:
8.2.3.1 Labor
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Cost for labor shall include any employer payments to or on behalf of the workmen for health, welfare, pension, vacation and similar purposes.
Labor rates will not be recognized when in excess of those prevailing in the locality and time the work is being performed. The costs for all supervision including Project Manager, General Superintendents and Foremen will be included in the markups established by the Contract. The only exception to this will be working foremen who perform actual manual labor. No labor charges will be accepted for engineering or proposal preparation.
These costs will be included in the markups established by the Contract.
A breakdown of the payroll rates for each trade will be provided for all Change Orders fifteen (15) days after Notice to Proceed including the base rate, benefits, payroll taxes and insurance. Overtime and premium time pricing will only be allowed for labor which, based on mutual agreement, shall be performed after normal working hours. Unless otherwise agreed to by both parties, mechanical and electrical changes will be negotiated using productivity factors no greater than those listed in the following manuals:
(1) Electrical: NECA Column 1 (Normal), Current Edition. (2) Plumbing and Piping: MCAA Discounted 30%.
(3) HVAC: National Mechanical Estimator by Ottaviano, Current Edition.
8.2.3.2 Material
The City shall pay only the actual cost to the Design-Builder for the materials directly required for the performance of the changed work. Such cost of materials may include the cost of transportation and no delivery charges will be allowed unless the delivery is specifically for the changed work. If a trade discount by an actual supplier is available to the Design- Builder, it shall be credited to the City. If the materials are obtained from a supplier or source owned wholly by or in part by the Design-Builder, ayment thereof will not exceed the current wholesale price for th naterials. The term "trade discount" includes the concept of cas discounting.
If in the opinion of the City, the cost of the materials is excessive or if the
8.2.3.3. Construction Equipment
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The City shall pay only the actual cost to the Design-Builder for the use of equipment directly required in the performance of the changed work. In computing the hourly rental of equipment, any time less than thirty (30) minutes shall be considered one-half hour. No payment will be made for time while equipment is inoperative due to breakdown or for non- workdays. In addition, the rental time shall not include the time required to move the equipment to the work for rental of such equipment and to return it to the source.
No mobilization or demobilization will be allowed for equipment already on site. If such equipment is not moved by its own power, then loading and transportation costs will be paid in lieu of rental time thereof.
However, neither moving time nor loading and transportation costs will be paid if the equipment is used on the Project in any other way than upon the changed work. Individual pieces of equipment having a replacement value of $1,000 or less shall be considered to be small tools or small equipment and no payment will be made therefore.
The rental rate for equipment will not exceed that as recommended by the lower of the rental rates established by distributors or equipment rental agencies or as contained in the Association of Equipment Distributors (AED) book in the locality for performance of the changes. For equipment owned, furnished, or rented by the Design-Builder no cost thereof shall be recognized in excess of the rental rates established by distributors or equipment rental agencies and/or the AED or any tier book in the locality for performance of the changes. The amount to be paid to the Design- Builder for the use of equipment as set forth above shall constitute full compensation to the Design-Builder for the cost of fuel, power, oil, lubricants, supplies, small tools, small equipment, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, labor (except for equipment operators) and any and all costs to the Design-Builder incidental to the use of the equipment.
8.3 Acceptance of Change Orders.
The Design-Builder's written acceptance of a Change Order shall constitute final and binding agreement to the provisions of it and a waiver of all claims in connection with it, whether direct, indirect, or consequential in nature. The City's form shall control, and no annotations or handwritten notes by Design-Builder shall be effective upon its execution.
8.4 Effect on Sureties.
All alterations, extensions of time, extra and additional work, and other changes authorized by the Contract Documents may be made without securing consent of surety(s).
8.5 Covering and Uncovering of Work.
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8.5.1 When inspections are required by the Contract Documents the Design-Builder shall notify the City two (2) working days prior to covering any work.
8.5.2 If a portion of the Work is covered prior to the City's review, it shall, if requested in writing by the City, be uncovered for the City's observation and replaced at the Design-Builder's expense without change in the Contract Time.
8.6 Correction of Work.
The Design-Builder shall promptly correct work rejected by the City or failing to onform to the requirements of the Contract Documents, whetner or no abricated, installed, or completed. The Design-Builder shall bear the costs o correcting such rejected work, including additional testing and inspections required and compensation for the City's services and expenses made necessary thereby.
8.6.2 Notwithstanding Paragraph 3.18, Guarantee, in the event of an emergency constituting an immediate hazard to the health or safety of City employees, property, or licensees, the City may undertake, at the Design-Builder's expense and without prior notice, all work necessary to correct such hazardous condition(s) when it was caused by work of the Design-Builder not being in accordance with requirements of the Contract Documents.
8.6.3 The Design-Builder shall remove from the Project site portions of the Work that are not in accordance with the requirements of the Contract Documents, and are neither corrected by the Design-Builder nor accepted by the City.
8.6.4 If the Design-Builder fails to correct nonconforming work, as per Paragraph 3.18, tion of such nonconforming work, within such time fixed by written notice from the equipment at the Design-Builder's expense.
If the Design-Builder does not pay all costs of such removal and storage within fourteen (14) days after written notice, the City may, upon fourteen (14) additional days written notice, sell such materials articles and/or equipment at an auction or private sale, and shall account for the proceeds, after deducting costs and damages that would have been borne by the Design-Builder, including compensation for the City's services and expenses made necessary by it. If the proceeds of a sale do not cover all costs that the Design-Builder would have borne, the Stipulated Sums shall be reduced by the deficiency. If payments then or thereafter due the Design-Builder are not sufficient to cover such amount, the Design-Builder shall pay the difference to the City.
8.6.5 The Design-Builder shall bear the cost of correcting destroyed or damaged work executed by the City or separate contractors, whether fully completed or partially June 5, 2023 00 50 00 - 60 Agreement
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completed, which is caused by the Design-Builder's correction or removal of Work that is not in accordance with requirements of the Contract Documents.
Nothing contained in this Paragraph 8.6, Correction of Work, shall be construed to establish a period of limitation with respect to other obligations that the Design- Builder might have in the Contract Documents. Establishment of the time period of two (2) year, as described in Paragraph 3.18, Guarantee, relates only to the specific obligation of the Design-Builder to correct the Work, and has no relationship to the time within which the obligation to comply with requirements of the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to correct the Work.
8.7 Acceptance of Nonconforming Work.
If the City prefers to accept any or all of the Work that is not in accordance with requirements of the Contract Documents, the City may do so instead of requiring its correction and/or removal, in which case the Stipulated Sums will be reduced as appropriate and equitable. Such adjustment shall be affected whether or not Final Payment to the Design-Builder has been made.
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ARTICLE 9 - EVENTS OF DEFAULT AND TERMINATION
9.1 City Events of Default.
9.1.1 Non-payment by the City for approved design and approved work-in-place after 90 days of a properly submitted and approved invoice.
9.1.2 Failure to perform any other material obligation under the Agreement, unless otherwise excused by relevant provisions of the Agreement.
9.2 Design-Builder Events of Default.
9.2.1 The following shall be considered Design-Builder Events of Default:
9.2.1.1 If Design-Builder fails or neglects to carry out the Work in accordance with the provisions of the Contract Documents and fails, after 72 hours' notice from the City, unless otherwise agreed upon, to commence a cure to correct such failure or neglect and/or thereafter diligently pursue such cure to completion; or
9.2.1.2 If Design-Builder materially breaches this Agreement after notice from the City and fails, after seven (7) days' notice from the City to commence a cure to correct such breach and/or diligently pursue such cure to completion; or
9.2.1.3 If a custodian, trustee or receiver is appointed for Design-Builder, or if Design-Builder becomes insolvent or bankrupt, is generally not paying its debts as they become due, or makes an assignment for the benefit of creditors, or if Design-Builder causes or suffers an order for relief to be entered with respect to it under applicable Federal bankruptcy law or applies for or consents to the appointment of a custodian, trustee or receiver for Design-Builder, or bankruptcy, reorganization, arrangement or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar law or laws for the relief of debtors, are nstituted by or against the Design-Builder, and in any of the foregoin ases such action is not discharged or terminated within sixty (60) days o its institution; or
9.2.1.4 If the Design-Builder changes its corporate identity in a manner different from that described in this Agreement due to merger, takeover, offer, sale or exchange of interest therein, dissolution, whether by operation of law or otherwise, and the change in interest is not approved in advance in writing by the City. In the event such a change does not have the effect or diminishing or impairing the Design-Builder's ability to perform the Work or its financial capabilities, such approval shall not be unreasonably withheld. The City shall have at least thirty (30) days' notice of such a change.
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9.3 City Remedies.
9.3.1 Without prejudice to any other rights or remedies of the City, the following remedies shall be available to the City in the case of a Design-Builder event of default:
9.3.1.1 The City shall have the right to terminate this Agreement upon an additional seven (7) days' written notice to Design-Builder, provided that Design-Builder has not commenced a cure within such seven-day period.
9.3.1.2 The City may take possession of the Project site and of all Design-Buduipment, tols and construction equipment on site owned by
9.3.1.3 The City may accept assignment of the construction subcontract and/or design subcontract.
9.3.1.4 The City may finish the Work by whatever reasonable method the City may deem expedient.
9.3.1.5 The City may seek such remedies as may be available under existing law.
9.4 Termination.
When the City terminates this Agreement as provided above, City will not consider fur- ther payment to the Design-Builder until the Work is finished. If the unpaid balance of the Stipulated Sums exceeds costs incurred by the City in finishing the Work, then such ex- cess shall be paid to Design-Builder. However, if such costs exceed the unpaid balance of the Stipulated Sums, then Design-Builder shall pay the difference to the City.
9.5 Design-Builder Remedies.
The following remedy shall be available to Design-Builder in the case of the City event of default: Design-Builder may, upon seven (7) days' additional written notice to the City, terminate this Agreement and recover from the City payment for Work performed and for proven loss with respect to materials, equipment tools, construction equipment and services rendered, including reasonable overhead and profit for the Work performed.
9.6 Multiple Remedies.
Except as otherwise provided in this Agreement, no remedy under the terms of this Agreement is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedies, existing now or hereafter, at law, in equity or by statute. No delay or omission to exercise any right or power accruing shall impair any such right or power nor shall it be construed to be a June 5, 2023 00 50 00 - 63 Agreement
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waiver of any event of default or acquiescence to it, and every such right and power may be exercised from time to time as often as may be deemed expedient.
9.7 Termination for Convenience.
The City may terminate this Agreement at any time for convenience if the City determines such termination is in the best interests of the City upon sixty (60) days' advance notice. Design-Builder is not entitled to recover lost profits, incidental or consequential damages in the event the City terminates this Agreement for convenience and subsequently rebids or otherwise completes the Project.
Any stop payment notices or charges encumbering the Project, or which are claimed to encumber the Project, other than those placed by or agreed upon by the City, shall be offset against whatever amount is determined to be owed to the Design-Builder.
9.8 Termination Payment.
In the event the City terminates this Agreement for convenience as set forth above, the City shall pay to the Design-Builder all funds due the Design-Builder for work performed up to the date of termination, plus all demobilization and close-out costs, including any penalties payable to subcontractors for early termination. All funds due pursuant to this Section, including unpaid retainage, shall be released within thirty (30) days of termination of the Agreement for convenience, subject to the provisions of Paragraph
9.7, Termination for Convenience.
9.9 Property Rights.
In the event of termination, all studies, reports, special forms, schedules, designs and any other written information pertaining to the Project shall become the City's property as provided in this Agreement.
9.10 Suspension of Work.
9.10.1 The City may order Design-Builder, in writing, to suspend, delay, or interrupt all or any part of the Work for the period of time that the City determines appropriate for the convenience of the City.
9.10.2 If the performance of all or any part of the Work is for any period of time, suspended, delayed, or interrupted (a) by an act of the City in the administration of the Agreement, or (b) by the City's failure to act within the time specified in the Agreement (or within a reasonable time if not specified), or (c) for other reasons which Design-Builder is entitled to claim delay under the Agreement, Design- Builder shall provide notice according to the Agreement.
9.10.3 Design-Builder shall be entitled to an increase in the Stipulated Sums and the Contract Time to the extent the cost of performance of the Agreement or the time therefore is increased as a result of suspension, delay, or interruption by the City or as otherwise provided in the Contract Documents. However, no adjustments June 5, 2023 00 50 00 - 64 Agreement
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shall be made under this Article for any suspension, delay, or interruption to the extent that Design-Builder's performance would have been so suspended, delayed, or interrupted by any other cause for which Design-Builder would not be entitled to an increase in the Stipulated Sums or in the Contract Time.
9.11 Non-Compliance with Agreement Requirements.
In the event the Design-Builder, after receiving written notice from the City of non- compliance with any requirement of the Agreement, fails to initiate promptly such action as may be appropriate to comply with the specified requirement within a reasonable period of time, the City shall have the right to order Design-Builder to stop all Work in the area affected until Design-Builder has complied with or has initiated such action as may be appropriate to comply within a reasonable period of time. Design-Builder will not be entitled to any extension of Contract Time or Stipulated Sums for any costs incurred as a result of being ordered to stop Work for such cause.
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ARTICLE 10 - DISPUTES AND CLAIMS
10.1 Dispute and Claim Procedures.
10.1.1 When the Design-Builder and the City fail to agree whether or not any work is within the scope of Contract Documents, the Design-Builder shall immediately perform such work upon receipt of a written notice to do so by the City. Within fourteen (14) days after receipt of such notice, the Design-Builder may submit a written protest to the City, specifying in detail what particular Contract Documents were exceeded, and approximate change in cost resulting so that the City will have notice of a potential claim.
Failure to submit a protest within the specified period shall constitute a waiver of any and all rights to an adjustment in Stipulated Sums and Contract Time due to such work, and the Design-Builder thereafter shall not be entitled to adjustment of Stipulated Sums or Contract Time. For any such work that is found to exceed Contract Documents, there shall be an adjustment in Stipulated Sums and Contract Time on the same basis as any other change in the Work.
10.1.1.1 The Design-Builder shall provide supporting data and shall provide and maintain records of costs attributable to disputes in similar manner as for Change Orders in Article 8, Changes in the Work.
10.1.1.2 The City and the Design-Builder will make every reasonable effort to resolve the dispute prior to proceeding to the next step.
10.1.1.3 Either the City or the Design-Builder may call a special meeting for the purpose of resolving the dispute. Such a meeting will be held within seven (7) days of the written request.
10.1.1.4 If the dispute as to the Contract Documents has not been resolved, the Design-Builder shall, within fourteen (14) days after the special meeting, take one or more of the following actions:
10.1.1.4.1 submit additional supporting data requested by the City;
10.1.1.4.2 modify the initial dispute;
10.1.1.4.3 notify the City that the initial dispute stands as is; or
10.1.1.4.4 withdraw the dispute. Once withdrawn, the dispute cannot be
reopened by the Design-Builder.
10.1.1.5 If the dispute has not been resolved within seven (7) days after the Design-Builder's action in response to section 10.1.1.4, anothe neeting may be scheduled, at the City's option, with senio management personnel of the City and the Design-Builder. The June 5, 2023 00 50 00 - 66 Agreement
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purpose of this meeting would be to resolve the dispute prior to proceeding to the action under Subparagraph 10.1.2, Dispute and Claim Procedures.
10.1.1.6 Any dispute not resolved by the above meetings shall be settled by the following procedure if the disputed amount is less than $375,000. If the disputed amount is more than $375,000, then the parties may proceed to arbitration unless the City and the Design-Builder agree in writing to waive arbitration and proceed to litigation.
For any disputes $375,000 or less, the following procedure shall apply:
Claims by the Contractor in the amount of $375,000 or less in the aggregate, and all other disputes between the parties relating to the Contract Documents or the Project in the amount of $375,000 or less in the aggregate (even if such claims are not expressly covered by the terms and provisions of Section 20104 et seq. of the California Public Contract Code), excluding tort claims, shall be made and processed pursuant to the terms and provisions of, and the procedures outlined in, California Public Contract Code Sections 20104, et seq. (as may be amended or recodified from time to time). All mediations and arbitrations shall take place at a location selected by the arbitrator in the City of Gonzales, California.
10.1.2 If a dispute has not been resolved at the time of the CITY's proposed Final Payment, the Design-Builder shall submit within thirty (30) days a claim along with detailed documentation required by Subparagraph 10.1.1, Dispute and Claim Procedures, for the CITY's consideration. The City of Gonzales will render a written decision to the Design-Builder relative to the claim. The CITY's written decision shall be final and binding on the party(s). The City of Gonzales may withhold from the Final Payment an amount not to exceed one hundred fifty percent (150%) of the disputed amount. If there appears to be a possibility of a Design-Builder's default, the City of Gonzales may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy.
10.1.3 Maintenance of Existence. Design-Builder covenants that it will remain in existence during the term of the Design Build Agreement and for a period of time five (5) years after Final Completion of the Project (the "Corporate Maintenance Period"). The purpose for which Design-Builder shall remain in existence during the Corporate Maintenance Period is to assure the City that Design-Builder will be able, during the Corporate Maintenance Period, to address and/or pay claims by the City against the Design-Builder if the City deems the Design-Builder to be insufficiently capitalized to be able, on its own to carry out its obligations hereunder (financial or otherwise). In the event a guarantee of the Design-Builder is required by the City, from the date of this Agreement and during the remainder of the Corporate Maintenance Period, then the guarantee shall be in the form of Exhibit C, Design-Builder's Guarantee.
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ARTICLE 11 - PROTECTION OF PERSONS AND PROPERTY
11.1 Safety of Persons and Property.
11.1.1 The Design-Builder shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Work. The City shall have no responsibility for initiating, maintaining and supervising safety of persons and property.
11.1.2 The Design-Builder shall take precautions for safety and provide protection to prevent damage, injury or loss to:
11.1.2.1 Workers working under the Agreement and other persons who may be affected by it;
11.1.2.2 The Work and materials and equipment to be incorporated in it, whether in storage on or off the Project site, under care, custody or control of the Design-Builder or the Design-Builder's subcontractors or sub- subcontractors; and
11.1.2.3 Other property at the Project site, or adjacent to it, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement during the course of construction.
11.1.3 The Design-Builder shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on the safety of persons or property, or their protection from damage, injury or loss.
11.1.4 The Design-Builder shall erect and maintain, as required by existing conditions and performance of the Contract Documents, safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying the City, other owners (other than the City) and users of adjacent sites and utilities.
11.1.5 The Design-Builder shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of public authorities regarding the storage and/or use of explosives or other hazardous materials or equipment necessary for execution of the Work. The Design-Builder shall employ properly qualified personnel for supervision of same.
11.1.6 The Design-Builder shall remedy damage and loss to property referred to in sections 11.1.2.2 and 11.1.2.3 caused in whole or in part by the Design-Builder, a subcontractor, a sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Design-Builder is responsible under sections 11.1.2.2 and 11.1.2.3. The foregoing obligations of the Design Builder are in addition to the Design-Builder's obligations under Paragraph 12.3, Indemnification.
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11.1.7 When conditions of the Work, in the judgment of the City, present unreasonable risk of injury or death to persons or property damage, the City, may direct the Design-Builder, at the Design-Builder's sole expense, to close down the Work and not commence work again until all dangerous conditions are eliminated.
11.1.8 The Design-Builder, at the Design-Builder's own cost, shall rebuild, repair, restore and make good any and all damages to any portion of the Work affected by such causes before its acceptance.
11.1.9 Design-Builder shall take all precautions to protect the Work, and all equipment, materials, and supplies related to the Work protected from trespassers, vandals, and protestors, including but not limited to hiring security personnel to guard and patrol the Project site throughout the duration of the Project's schedule until Final Completion is accomplished. Design-Builder shall bear the costs of such security.
11.2 Emergencies.
In an emergency affecting safety of persons or property, the Design-Builder shall act, at the Design-Builder's sole discretion, to prevent any threatened damage, injury or loss.
Additional compensation or extension of Contract Time claimed by the Design-Builder because of an emergency will be reviewed as provided in Article 8, Changes in the Work. The Design-Builder shall maintain emergency vehicle access to the site at all times during the course of the project up to and including Final Acceptance of the work.
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ARTICLE 12 - INSURANCE, BONDS, AND INDEMNIFICATION
12.1 Insurance.
12.1.1 Design-Builder's Insurance Requirements.
The insurance requirements specified herein shall cover Design-Builder's own liability and any liability arising out of the Work or services performed under this Agreement by any design professional, subcontractor, consultant, supplier, temporary worker, independent contractor, leased employee, or any other persons, firms or corporations (hereinafter collectively referred to as "Agents) that Design-Builder authorizes to work under this Agreement. Design-Builder is required to procure and maintain at its cost and expense the insurance coverages subject to all of the requirements set forth below.
Design-Builder is also required to assess the risks associated with Work to be performed by Agents under subcontract and to include in every subcontract the requirement that the Agent maintain adequate insurance coverages with appropriate limits and endorsements to cover such risks. Limits may be met by a combination of primary and excess coverage. In the event Design-Builder or its Agents procure excess or umbrella coverage to maintain certain requirements outlined below, these policies shall also satisfy all specified endorsements and stipulations, including (where applicable) provisions that the Design-Builder's insurance be primary without any right of contribution from the Owner. There shall be no gap between the per occurrence amount of any underlying policy and the start of the coverage under any excess or umbrella coverage. Prior to beginning the Work under this Agreement, Design-Builder shall provide the Owner (and any authorized insurance consultant of the Owner) with satisfactory evidence of compliance with the insurance requirements of this Article 12.1.
12.1.2 Workers Compensation and Employers' Liability Insurance.
The Design-Builder shall be prepared to procure and maintain Workers Compensation coverage with statutory limits as required by Section 3700 et seq. of the California Labor Code, as well as Employer's Liability coverage in amounts not less than:
$2,000,000 for each accident for bodily injury by accident
2. $2,000,000 for bodily injury by disease
3. $2,000,000 for each employee for bodily injury by disease Such insurance shall include a Waiver of Subrogation.
12.1.3 Professional Liability Insurance.
A Professional Liability insurance policy covering errors and omissions and the resulting damages including, but not limited to, economic loss to the Owner and having minimum limits of liability of $2 million per claim or occurrence and $4 million annual aggregate. The policy shall include coverage for all professional June 5, 2023 00 50 00 - 70 Agreement
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services and work performed under this Agreement. In addition, coverage shall include contingent bodily injury and property damage liability.
Professional liability insurance shall be maintained until Final Completion and include an extended reporting period of 5 years from Final Completion.
12.1.4 Commercial General Liability Insurance.
Commercial General Liability insurance for bodily injury and property damage coverage of at least $5 million per occurrence or claim and a general annual aggregate limit of at least $10 million. Such insurance shall cover all of Design- Builder's operations on, and away from, the Work site. Such insurance shall not have any exclusion for Cross Liability or Cross-Suits. In addition, the insurance shall not have any exclusion for Explosion, Collapse and Underground perils (xCU).
This insurance shall include coverage for, but not be limited to:
1. Premises and operations;
2. Products and completed operations;
3. Personal injury; and
4. Advertising injury.
Such insurance shall include the following endorsements as further detailed in the Endorsements Section below:
1. Additional Insured;
2. Separation of Insureds Clause;
3. Primary and Non-Contributory wording;
4. Waiver of Subrogation; and
5. Coverage must be on an occurrence basis.
12.1.5 Commercial Automobile Liability Insurance.
Commercial Automobile Liability insurance providing bodily injury and property damage coverage with a combined single limit of at least $i2 million per accident This insurance shall include coverage for, but not be limited to:
1. All owned vehicles;
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2. Non-owned vehicles;
3. Hired or rental vehicles; and
4. Coverage will apply both at and away from Work site.
5. Such insurance shall include the following endorsements as further detailed in the Endorsements Section below:
1. Additional Insured;
2. Primary and Non-Contributory wording; and
3. Waiver of Subrogation.
12.1.6 Builder's Risk / All Risk Insurance.
Before commencing any Work, the Design-Builder must procure "All Risk" Builder's Risk Insurance for the Work to be performed. Except for the deductible amount hereinafter allowed or as otherwise specifically authorized by the Owner, the amount of such insurance shall not be less than the Stipulated Sum. The policy for such insurance shall cover, at a minimum, losses due to: fire, explosion, hail, lightning, water, flood coverage, or other direct or indirect water damage of whatever type or nature, or spray from any of the foregoing, all whether or not driven by the wind, vandalism, malicious mischief, wind, collapse, riot, aircraft, and smoke (excluding earthquake and tidal wave) through Final Completion. The policy must specify that coverage is to include all materials and equipment to be incorporated in the Project while at the construction site and while in transit.
Such policy shall name as the insured the Design-Builder, all subcontractors, each of their officers, employees and agents, and all parties named as Additional Insured in Article 12.1.8. A deductible amount of $5,000 on all perils will be allowed, payable by the Design-Builder.
12.1.7 Contractor Pollution Liability Insurance.
Contractor Pollution Liability insurance coverage for bodily injury, property damage, and environmental damage with a combined single limit for bodily injury and property damage of at least $5 million per occurrence or claim and a general aggregate limit of at least $5 million. The policy shall also cover economic loss to the Owner. If Design-Builder disposes of Hazardous Materials and Substances under this Agreement, Design-Builder shall designate the disposal site and provide a certificate of insurance from the disposal facility to the Owner.
This insurance shall include coverage for, but not be limited to:
Sudden and accidental discharges;
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2. Gradual discharges;
3. Clean-up of pollutants and disposal thereof;
4. Removal or treatment of Hazardous Materials and Substances; and
5. Mold, asbestos or lead, if an abatement Agreement.
6. Such insurance shall include the following endorsements as further detailed in the Endorsements Section below:
1. Additional Insured;
2. Separation of Insureds Clause;
3. An MCS-90 Endorsement with a $5,000;000 limit of liability, if Hazardous Materials and Substances will be transported;
4. Waiver of Subrogation.
12.1.8 Endorsements.
12.1.8.1 Additional Insured
Except for the Workers' Compensation policy and Professional Liability policy, each of the referenced policies in this Article 12.1 and any Excess or Umbrella policies shall include as Additional Insureds: Swinerton Management & Consulting; the City of Gonzales, its councilmembers, officers, employees and agents while acting in such capacity (collectively "Additional Insureds"), and their successors or assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally.
12.1.8.2 Waiver of Subrogation
The referenced policies and any Excess or Umbrella policies shall contain a waiver of subrogation in favor of: the City of Gonzales, and its councilmembers, officers, employees and agents while acting in such capacity, and their successors or assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally.
12.1.8.3 Primary Insurance
The referenced policies and any Excess and Umbrella policies, except for the Contractor Pollution Liability coverage, shall indicate that they are primary to any other insurance and the insurance company(ies) providing such policy(ies) shall be liable thereunder for the full amount of any loss or claim, up to and including the total limit of liability, without right of contribution from any of the insurance effected or which may be effected by the Owner.
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12.1.8.4 Separation of Insureds
The referenced policies and any Excess or Umbrella policies shall contain a Separation of Insureds Clause and stipulate that inclusion of the City of Gonzales shall not in any way affect the City's rights either as respects any claim, demand, suit or judgment made, brought or recovered against the Design-Builder. The purpose of this coverage is to protect Design-Builder and the Owner in the same manner as though a separate policy had been issued to each, but nothing in said policy shall operate to increase the insurance company's liability as set forth in its policy beyond the amount or amounts shown or to/ which the insurance company would have been liable if only one interest had been named as an insured.
12.1.9 Evidence of Insurance.
Prior to commencing Work or entering onto the Site, Design-Builder shall provide to Owner (and any authorized insurance consultant of Owner) a Certificate of Insurance with respect to each required policy to be provided by the Design-Builder under the Agreement. The required certificates must be signed by the authorized representative of the Insurance Company shown on the certificate. The Project name shall be clearly stated on the face of each Certificate of Insurance.
In addition, the Design-Builder shall promptly notify the Owner of the insurance expiration date and deliver to Owner a certificate of insurance that extends the coverage as necessary to maintain the specified insurance for the duration of the Project. Such certificate shall be delivered to Owner not less than 3 business days after the expiration date of any policy.
12.1.10 General Provisions.
12.1.10.1 Notice of Cancellation
Design-Builder must provide at least 30 days' prior written notice to the Owner if any of the above policies are non-renewed or cancelled
12.1.10.2 Acceptable Insurers
All policies will be issued by insurers acceptable to the Owner (generally, with a Best's Rating of A: VII or better) and duly licensed to or authorized in California.
12.1.10.3 Self-insurance
Upon evidence of financial capacity satisfactory to the Owner and Design- Builder's agreement to waive subrogation against the Owner respecting any and all claims that may arise, Design-Builder's obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance.
12.1.10.4 Failure to Maintain Insurance
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All insurance specified above shall remain in force until all Work to be performed is satisfactorily completed, all of Design-Builder's personnel and equipment have been removed from the Owner property, and Final Completion. The failure to
12.1.10.5 Claims Made Coverage
If any insurance specified above shall be provided on a claim-made basis, then in addition to coverage requirements above, such policy shall provide that:
1. Policy retroactive date coincides with or precedes the Design-Builder's start of Work (including subsequent policies purchased as renewals or replacements).
2. Design-Builder shall maintain similar insurance for at least 5 years following Final Completion, including the requirement of adding all additional insureds.
3. If insurance is terminated for any, reason, Design-Builder agrees to purchase an extendéd reporting provision of at least 5 years to report claims arising from work performed in connection with this Agreement.
4. Policy allows for reporting of circumstances or incidents that might give rise to future claims.
12.1.10.6 Deductibles and Retentions
Design-Builder shall be responsible for payment of any deductible or retention on Design-Builder's policies without right of contribution from the Owner. Deductible and retention provisions shall not contain any restrictions as to how, or by whom, the deductible or retention is paid. Any deductible or retention provision limiting payment to the Named Insured is unacceptable.
In the event that the policy of the Design-Builder or any Design-Builder contains a deductible or self- insured retention, and in the event that the Owner seeks coverage under such policy as an additional insured, Design-Builder shall satisfy such deductible or self-insured retention to the extent of loss covered by such policy for a lawsuit arising from or connected with any alleged act or omission of Design-Builder, or any Design-Builder team member, even if Design-Builder (or any Design-Builder team member) is not a named defendant in the lawsuit.
12.2 Indemnification.
12.2.1 Indemnification. Design-Builder shall defend, indemnify, and hold harmless the City of Gonzales and its councilmembers, officers, employees, Swinerton, Inc (dba: Swinerton Management & Consulting,) and it's subconsultants and agents, and their successors and assigns (collectively referred to as "Indemnitees") from and against all third party claims, demands, liability, suits, actions, costs or expenses (including reasonable attorneys' fees) for any and all loss or damage, June 5, 2023 00 50 00 - 75 Agreement
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including, but not limited to, personal injury or property damage, arising out of or resulting from allegations of:
1. The failure or alleged failure by any Design-Builder team member to comply with any applicable law, order, citation, rule, regulation, standard, ordinance or statute, including rules and regulations imposed by Cal-OSHA and caused by the act or omission of the Design-Builder;
2. The negligent act, omission, misconduct, or fault, or the alleged negligent act, omission, misconduct or fault of any Design-Builder team member;
3. Any and all claims by any governmental or taxing authority claiming unpaid the Work made to or earned by the Design-Builder team member under the Contract Documents;
4. Any and all stop payment notices and/or liens filed in connection with the Work, including all expenses and attorneys' fees incurred by the City in discharging any stop payment notice or lien, provided that the City is not in default on payments owing to the Design-Builder with respect to such Work;
5. Failure of the Design-Builder to comply with the Insurance provisions set forth in Article 12.1;
6. Any release of Hazardous Materials & Substances:
1. Brought onto the Site by any Design-Builder team member; or
2. Where the removal or handling involved negligence, willful misconduct, or breach of Contract by any Design-Builder team member.
Nothing in this section shall require the Design-Builder to defend, indemnify or hold harmless the Indemnitees for the Indemnitees' sole negligence, willful misconduct, or active negligence.
12.2.2 Indemnification for Infringement of Intellectual Property Rights. The Design- Builder agrees to fully defend, indemnify, and hold harmless the Indemnitees against any demand, claim, cause of action, suit, proceeding, or judgment that design, service, method, or product called for and provided by the Design-Builder or any Design-Builder team member (herein called "deliverables") that infringes or allegedly infringes any patent, copyright, trademark, service mark, trade dress, utility model, industrial design, mask work, trade secret, or other proprietary right of a third party (collectively "Intellectual Property Right").
The Design-Builder shall pay any and all costs of such defense and settlement (including interest, fines, penalties, costs of investigation, costs of appeals, and attorney's fees), and will pay any and all costs and damages finally awarded against any of the Indemnitees. The Design-Builder shall have the exclusive right to conduct its legal defense.
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Property Right, and its use is enjoined, the Design-Builder shall, at its own expense, accomplish one of the following:
a. Procure the fully paid-up, irrevocable, and perpetual right for the City to continue using the deliverable;
b. Modify the deliverable; or
C. Provide for the replacement of the deliverable with an alternative product that is functionally equivalent to the deliverable.
If the Design-Builder is unable to provide the City with one of the forms of relief described above, the Design-Builder shall also reimburse to the City the total paid by the City for the deliverable that is held to constitute an infringement.
12.2.3 Indemnification for Design Defects. To the fullest extent permitted by law, the Design-Builder shall fully defend (with counsel acceptable to the City), indemnify, and hold harmless Indemnitees from any and all claims, demands, causes of action, damages, costs, expenses (including legal, expert witness, and consulting fees and costs), losses, or liabilities of whatsoever nature to the extent they arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the Design-Builder, its employees, any of the Design-Builder's Design Professionals or Subcontractors of any tier, or anyone for whom Design-Builder or any of its Design Professionals or Subcontracts may be liable, in relation to any of their design services, including but not limited to errors, omissions, inconsistencies, inaccuracies, deficiencies, or other defects whether or not contained in the Construction Documents furnished by the Design-Builder, and whether or not such errors, omissions, inconsistencies, inaccuracies, deficiencies, or other defects were also included in the Design Criteria Documents provided by the City. The Design-Builder agrees that, because the City's Design Criteria Documents are preliminary and conceptual in nature and are subject to review and modification by the Design-Builder, such documents as the ter sign in fumier by is use in cary orde Section 2782 and that this clause is governed by Civil Code Section 2782.8. In addition, Design-Builder shall defend the City, with counsel reasonably acceptable to City to the extent of Design-Builder's proportionate percentage of fault for the underlying claim.
12.2.4 Exception. The indemnification provisions in this Section 12.2 will extend to claims occurring after this Agreement is terminated as well as while it is in force.
However, Design-Builder will not be obligated to indemnify or provide a defense to the Indemnitees from claims arising from the sole negligence, willful misconduct, or active negligence of the Indemnitees. Nothing contained in Section 12.2 will be construed to impose any obligation in conflict with the provisions of Civil Code section 2782 and/or Insurance Code section 11580.04.
In the event of a conflict, the provision conflicting with Civil Code section 2782 and/or Insurance Code section 11580.04 will be modified to limit Design-Builder's obligations to the greatest extent permitted by law. The section does not apply to the duty to defend claims arising from design defects, which obligation is addressed separately in Section 12.2.3.
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12.2.5 Duty to Defend. Except as expressly provided herein, the Design-Builder will defend all claims defined in Section 12.2 at its own cost, expense and risk and pay and satisfy any judgment or decree that may be rendered against any Indemnitee arising out of a claim, or reimburse Indemnitee(s) for any and all legal expenses incurred by any of them in connection with the claim or in enforcing the indemnity granted in this section. The duty to defend will apply, and Design- Builder will be required to furnish a defense, regardless of whether the matter has been adjudicated. The City shall have the right to approve counsel defending it, which approval will not be unreasonably withheld. Following the resolution of any such dispute, the City shall reimburse Design-Builder for the costs incurred by Design-Builder for any Indemnitees' defense, to the extent of the City's proportionate responsibility or fault, as determined by court or arbitrator or as agreed by settlement or otherwise.
12.3 No Personal Liability.
No officer, elective and appointive official, employee, or consultant of the City of Gonzales will be personally responsible for liabilities arising under this Design-Build Agreement.
12.4 Performance Bond and Payment Bonds.
12.4.1 The Design-Builder shall furnish to the CITY, prior to the execution of any contract, surety bonds in favor of the City of Gonzales in the amounts of not less than one hundred (100%) of the amount of Contract, to guarantee faithful performance of Contract and a payment bond, each in the form attached to the Design-Build Agreement. The Bonds shall be issued by a California admitted surety with a rating classification of "A XIII" or better according to Best's Rating Service.
12.4.2 The City of Gonzales acknowledges that any faithful performance and payments bonds provided by the Design-Builder shall not apply to errors or omissions in the furnishing of professional services in connection with architecture or engineering services provided by the Design-Builder or its consultants. The City of Gonzales waives and releases all claims against such sureties arising out of or relating to such professional errors and omissions; such release, however, does not apply to a failure to provide professional services where required under the Contract, and the performance bonds shall include the costs of such services. Professional Liability insurance shall be primary insurance in settling claims related to Errors and Omissions.
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ARTICLE 13 - SEPARATE CONTRACTS
13.1 City's Right to Perform Construction and to Award Separate Contracts.
13.1.1 The City reserves the right to perform work or operations related to the Project with the City's own work force, and to award separate contracts in connection with other portions of work or other construction or operations on the Project site.
13.1.2 When separate contracts are awarded for different portions of work or for other construction or operations on the Project site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate agreement.
13.1.3 The City will provide for coordination of the activities of the City's own work force and of each separate Contractor with the Work of the Design-Builder, who shall cooperate with them. The Design-Builder shall participate with other separate Contractors and the City in reviewing and revising their Baseline Schedules when directed by the City. The resulting Baseline Schedules shall then constitute the schedules to be used by the Design-Builder, separate Contractors and the City.
13.1.4 The City reserves the right to perform other work in connection with the Project or adjacent to the Project site by separate contract or otherwise. The Design-Builder shall at all times conduct the Work so as to impose no hardship on the City or others engaged in separate work on the Project site, nor to cause any unreasonable delay or hindrance to the separate work.
13.2 Mutual Responsibility.
13.2.1 The Design-Builder shall afford the City and other Contractors the opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractors construction and operations with theirs as required by the Contract Documents.
13.2.2 If part of the Design-Builder's work relies on proper execution or results upon construction or operations by the City or separate Contractors, the Design- Builder shall, prior to proceeding with that portion of the work, report to the City apparent discrepancies or defects in other construction that would render it unsuitable for proper execution and results. Failure of the Design-Builder to report any discrepancies or defects shall constitute an acknowledgment that the City's or separate Contractors' complete or partially completed construction is fit and proper to receive the Design-Builder's work.
13.2.3 The Design-Builder shall promptly remedy damage wrongfully caused by the Design-Builder to any completed or partially completed construction or to any property of the City or separate Contractors.
13.2.4 The City and each separate Contractor shall have the same responsibilities for cutting and patching as are described in Paragraph 3.7, Cutting and Patching.
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ARTICLE 14 - MISCELLANEOUS
14.1 Statutory Public Works Contract Requirements.
The following requirements apply to all public works construction work performed under this Agreement.
14.1.1 Public Works Registration. Design-Builder or its contractor, and all subcontractors, must be registered with the California Department of Industrial Relations pursuant to Labor Code Section 1725.5. This Agreement is subject to monitoring and enforcement by the DIR pursuant to Labor Code Section 1771.4.
Design-Builder shall furnish the records specified in Labor Code Section 1776 directly to the Labor Commissioner on a monthly basis, and in a format prescribed by the Labor Commissioner. Design-Builder must also post notices at the work site pursuant to Title 8 California Code of Regulations Section 16451.
14.1.2 Use of Subcontractors. Design-Builder shall not subcontract any work to be performed by it under this Agreement without the prior written approval of City, which approval will not be unreasonably withheld. Design-Builder shall be solely responsible for reimbursing any subcontractors and City shall have no obligation to them. Attention is directed to the requirements of Section 4100 to 4113, inclusive of the California Public Contract Code which are applicable to the work covered by this Agreement.
14.1.3 Prohibition Against Contracting with Debarred Subcontractors. Design-Builder is prohibited from performing work on this Project with a subcontractor who is ineligible to perform work on the public works project pursuant to Section 1777.1 or 1777.7 of the Labor Code.
14.1.4 Prompt Payment to Subcontractors. Design-Builder shall pay any subcontractors approved by City for work that has been satisfactorily performed no later than seven (7) days from the date of Design-Builder's receipt of progress payments by City. Within thirty (30) days of receipt of retention by Design-Builder and satisfactory completion of all work required of the subcontractor, Design-Builder shall release any retention payments withheld to the subcontractor. In the event Design-Builder does not make progress payments or release retention to the subcontractors in accordance with the time periods in this section, Design-Builder will be subject to a charge of two percent (2%) per month on the untimely or improperly withheld payment. City may require Design-Builder to provide documentation satisfactory to City of Design-Builder's compliance with this requirement as a condition of final payment and release of contract retentions, if
14.1.5 Payment Bond for Construction Work. Pursuant to Civil Code Section 9550, Design-Builder shall furnish to City a Payment Bond in the amount of all equipment and construction costs, to provide City with security for Design- Builder's full payment to workers and subcontractors for costs of materials, equipment, supplies, and labor furnished in the course of the performance of the June 5, 2023 00 50 00 - 80 Agreement
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work applicable to this section. Design-Builder shall utilize the form of payment bond provided by the City.
14.1.6 Labor Code Provisions. In the performance of this Contract, Design-Builder's attention is directed to the following requirements of the Labor Code:
14.1.6.1 Hours of Labor.
Eight hours labor constitutes a legal day's work. Design-Builder shall forfeit, as penalty to City, $25 for each worker employed in the performance of the Agreement by Design-Builder or by any subcontractor under it for each calendar day during which such worker is required or permitted to work more than eight hours in any one day and 40 hours in any one calendar week in violation of the provisions of the California Labor Code and in particular, Sections 1810 to 1815, inclusive. Work performed by employees of the Design-Builder in excess of eight hours per day and 40 hours during any one week shall be permitted upon compensation for all hours worked in excess of eight hours per day at not less than one-and-one-half times the basic rate of pay, as provided in Section 1815.
14.1.6.2 Prevailing Wages.
Design-Builder shall comply with California Labor Code Sections 1770 to 1780, inclusive. In accordance with Section 1775, the Design-Builder shall forfeit as a penalty to City an amount as determined by the Labor Commissioner not to exceed $200 for each calendar day or portion thereot for each worker paid less than stipulated prevailing wage rates for such work or craft in which such worker is employed for any work done under the Agreement by him or by any subcontractor under it in violation of the revisions of the Labor Code and in particular, Labor Code Sections 1770 to 1780, inclusive. In addition to said penalty and pursuant to Section 1775, the difference between such stipulated prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by Design-Builder. Pursuant to the provisions of Section 1773 of the Labor Code, City has obtained the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work applicable to the work to be done from the Director of the Department of Industrial Relations. Copies of the prevailing wage rates are on file at City and are available for review upon request. Additionally, the Design- Builder shall be in compliance with the Federal Davis-Bacon Act prevailing wage requirements. Design-Builder must comply with the latest Federal Wage Decisions and all record keeping requirements of the Davis Bacon Act. Where State and Federal guidelines differ, the strictest of the two will be followed.
14.1.6.3 Payroll Records.
The Design-Builder's attention is directed to the following provisions of Labor Code Section 1776. The Design-Builder shall be responsible for the compliance with these provisions by his subcontractors.
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1. The Design-Builder and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work.
2. The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the Design-Builder on the following basis:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. c. A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the Design-Builder, subcontractor and the entity through which the request was made. The public shall not be given access to such records at the principal office of the Design-Builder.
3. (c) The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the Division.
4. (d) The Design-Builder shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested such records within ten (10) days after receipt of a written request.
5. (e) Any copy of records made available for inspection as copies and furnished upon request to the public or City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Design-Builder shall not be marked or obliterated.
6. (f) The Design-Builder shall inform City of the location of records enumerated under subdivision (a), including the street address, city and county, and shall, within five working days, provide a notice of a change of location and address.
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7. (g) In the event of noncompliance with the requirements of this Section, the Design-Builder shall have ten (10) days in which to comply subsequent to receipt of written notice specifying in what respects such contractor must comply with this Section. Should noncompliance still be evident after such 10- day period, the Design-Builder shall, as a penalty the State or City, forfeit Twenty-five Dollars ($25) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of. Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The penalties specified in subdivision (g) of Labor Code Section 1776 for noncompliance with the provisions of said Section 1776 may be deducted from any monies due or which may become due to the Design-Builder.
8. (h) The Design-Builder and each subcontractor shall preserve their payroll records for a period of three (3) years from the date of completion of the Contract.
14.1.6.4 Labor Non-discrimination.
Attention is directed to Section 1735 of the Labor Code which provides that Design-Builder shall not discriminate against any employee or applicant for employment because of race or color, religion, physical or mental disability, national origin or ancestry, medical condition, marital status or sex of such persons, except as provided in Section 12940 of the Government Code. Design- Builder further agrees to include a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials.
14.1.6.5 Apprentices.
The Design-Builder and all subcontractors shall comply with the requirements of California Labor Code sections 1777.5, 1777.6 and 1777.7 regarding the employment and of apprentices.
Additionally, Design-Builder shall conduct four (4) Career Days in coordination with the local high school to give students exposure to many of the different construction trade jobs available to them. The Construction Career Days event is to be an opportunity for the local youth to obtain hands-on experience on what the construction trades are all about and all the advantages it can offer them in pursuing a career in a skilled trade.
14.1.7 Skilled and Trained Labor Force Requirements. Design-Builder agrees to comply with all requirements related to providing a skilled and trained workforce, pursuant to Public Contract Code section 22164(c), and Public Contract Code sections 2600-2603.
14.1.8 Retention on Progress Payments. City will deduct and hold in retention five percent (5%) from each progress payment to Design-Builder for construction work, or portion thereof.
The remainder, less any other deductions taken in accordance with the Agreement, will be paid to Design-Builder as progress payments.
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14.1.9 Securities in Lieu of Retention. Pursuant to Public Contract Code Section 22300, Design-Builder may elect, in lieu of having progress payments retained by City, to deposit in escrow with City, or with a bank acceptable to City, securities eligible for investment under Government Code Section 16430, bank or savings and loan certificates of deposit, interest bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by Design-Builder and City. If Design- Builder elects to submit securities in lieu of having progress payments retained by City, Design-Builder shall, at the request of any subcontractor performing more than 5% of Design-Builder's total bid, make the same option available to the subcontractor.
14.1.10 Assignment of Claims. In entering into a public works contract or a subcontract to supply goods, services, or materials, Design-Builder or subcontractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time City tenders final payment to Design-Builder, without further acknowledgement by the parties.
14.1.11 Third-Party Claims. Pursuant to Public Contracts Code Section 9201, City shall have full authority to compromise or otherwise settle any claim relating to the Agreement at any time. City shall provide for timely notification to Design-Builder of the receipt of any third-party claim, relating to the contract. Notice shall be in writing and will be provided within thirty (30) days.
14.1.12 Utility Relocation. Design-Builder is solely responsible for the location of all underground utility facilities that may conflict with the Project, as delineated in the Design Criteria Documents (Technical Specifications and Drawings).. Accordingly, the provisions of Government Code section 4215 shall not apply to this Project, and Design- Builder is solely responsible for all costs and delays incurred as a result of utility conflicts that were not identified by the Design-Builder prior to commencement of construction.
14.1.13 Trenching, Shoring, and Differing Site Conditions.
14.1.14 Compliance. Design-Builder will comply with Labor Code sections 6500, 6705, and 6707, and Public Contract Code section 7104 regarding trenching and shoring.
14.1.15 Permit Requirements for Trenches 5'-0" or More in Depth. Design-Builder agrees to comply in full with Section 6500 of the Labor Code and to provide the required permits prior to the initiation of any work, method, operation or process that involves: (i) construction of trenches or excavations that are 5'-0" or deeper and into which a person is required to descend; (ii) the construction of any building, structure, falsework, or scaffolding more than 3 stories high or the equivalent height; (iii) the demolition of any building, structure, falsework, or scaffold more than 3 stories high or the equivalent height; or (iv) the underground use of diesel engines in work in mines and tunnels.
14.1.16 Detailed Plans for Trenches 5'-0" or More in Depth. In compliance with Labor Code section 6705, the Design-Builder will submit to the City's Project Manager, in June 5, 2023 00 50 00 - 84 Agreement
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advance of excavation, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from the hazard of caving ground during the excavation of any trench or trenches 5'-0" or more in depth. If the plan varies from shoring system standards, the plan will be prepared by a registered civil or structural engineer. The plan will not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations.
Excavations Deeper than 4'-0". If Work under this Agreement involves digging trenches or other excavation that extends deeper than 4'-0" below the surface, Design-Builder will promptly, and before the following conditions are disturbed, notify City's Project Manager, in writing, in accordance with Public Contract Code section 7104, of any:
Material that the Design-Builder believes may be hazardous waste, as defined in Section 25117 of the Health and Safety Code, which is required to be removed to a Class I, Class Il, or Class Ill disposal site in accordance with provisions of existing law.
Subsurface or latent physical conditions at the site differing from those indicated.
Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the construction work of the character provided for in the Bid Documents and under this Agreement.
Differing Site Conditions. Design-Builder's notice to City shall be issued by telephone or in person and followed within 24 hours thereafter by written notice, providing a brief description of why the condition encountered is considered a Differing Site Condition. Promptly upon receipt of Design-Builder's notice, City will investigate the site conditions.
If, during construction, the Design-Builder encounters an alleged Differing Site Condition, the Design-Builder shall immediately give written notice and may continue work; provided however that the following documents and information shall be submitted on a daily basis:
Digital photographs (paper and electronic copy) that detail the Differing Site Conditions;
An electronic copy of the pertinent data (e.g. settlement monitoring data, boring logs, dewatering production rates, etc.) for the previous 24 hours;
3. As applicable, sample of soil and groundwater in the alleged Differing Site Condition area;
Design-Builder's applicable daily reports for each day that the alleged Differing Site Condition exists; and
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Detailed daily records (which shall include, but not be limited to, labor and equipment), describing the alleged Differing Site Conditions and the impact the Differing Site Conditions are having on the progress of the construction.
Immediate written notice shall describe the specific ground conditions encountered and the measures taken to deal with the ground conditions.
The Design-Builder will provide the City with written notice within 5 business days discovery of an Unforeseen and Differing Site Condition.
The City will promptly investigate the conditions, and if the City finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Design-Builder's Stipulated Sum or Contract Time for any part of the Work, the City will issue a Change Order under Section 9 of the Agreement. If it is determined that physical conditions at the site are not materially different from those indicated in Bid Documents or that no change in terms of the Contract Documents is justified, the City will notify Design-Builder in writing, stating reasons the Design-Builder will not be entitled to an adjustment in the Stipulated Sum or Contract Time. Such reasons may include any of the following:
Design-Builder knew of the existence of the conditions at the time Design- Builder submitted its proposal; or
Design-Builder should have known of the existence of the conditions as a result of having complied with the requirements of Contract Documents; or
The information or conditions claimed by Design-Builder to be latent or materially different consist of information, conclusions, opinions or deductions of the kind that precludes reliance upon; or Design-Builder was required to give written notice of differing site conditions under the Contract Documents and failed to do so within the time required.
The Design-Builder will not be excused from the Contract Time to complete its Work and will proceed with all Work to be performed under the Agreement unless or until it is determined that Design-Builder is entitled to an adiustment under Article 7 of the Agreement. If the Design- Builder disagrees with the decision regarding an alleged Differing Site Condition, Design-Builder may pursue a claim under Article 10 of this Agreement.
14.1.17 Design-Builder's License Requirements. Design-Builder and any approved subconsultants (for architectural design, engineering, construction project management services) or subcontractors shall hold such current and valid licenses as required by California Law, including the Department of Industrial Relations (DIR) contractor and subcontractor registration requirements articulated in part by Cal. Labor Code section 1725.5.
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14.1.18 Examination and Audit of Records. Pursuant to Government Code Section 8546.7, Design-Builder shall retain all project-related records for a period of 3 years after final payment on this Agreement, which shall be subject to audit or inspection by the City or the State Auditor during this period.
14.1.19 Safety Requirements. The Design-Builder shall promptly and fully comply with and carry out, and shall without separate charge therefore to the City, enforce compliance with the safety and first aid requirements prescribed by applicable State and Federal laws and regulations, rules and orders and as may be necessary to ensure that all Construction Work shall be done in a safe manner and that the safety and health of the employees, agents and the people of local communities is safeguarded. Compliance with the provisions of this Section by subcontractors shall be the responsibility of the Design-Builder. All installed, dismantled, and removed material, equipment and facilities, without separate charge therefore to City, shall fully conform with all applicable State and Federal safety laws, rules, regulations and orders and it shall be the Design- Builder's responsibility to furnish only such material, equipment and facilities.
14.1.20 Notice of Third-Party Claims. Pursuant to Public Contract Code section 9201, the City will provide Design-Builder with timely notification of the receipt of any third-party claim relating to the Agreement.
14.1.21 Assignment of Anti-Trust Actions. Pursuant to Public Contract Code section 7103.5 and Government Code sections 4554 and 4553, in entering into a public works contract or subcontract to supply goods, services, or materials pursuant to a public works contract, Design-Builder, its Design Professionals and Subcontractors offer and agree to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. section 15) or under the Cartwright Act (chapter 2 (commencing with section 16700) of part 2 of division 7 of the Business and Professions Code), arising from the purchase of goods, services, or materials pursuant to this Agreement or any Subcontract. This assignment will be made and become effective at the time the City makes final payment to the Design-Builder, without further acknowledgment by the parties.
14.2 Governing Law.
This Agreement shall be governed by the laws of the State of California. The venue for any action or proceeding, in law or equity, which may be brought in connection with this Agreement is the county in which the City administration office is located.
14.3 Successors.
The City and the Design-Builder respectively bind themselves, their partners, shareholders, successors, assigns and legal representatives to the other party and to shareholders, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents.
Neither party shall assign the Agreement as a whole without the written consent of the other party. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all of its obligations under the Agreement and the Contract Documents.
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14.4 Notice.
Written notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally, by electronic mail including delivery receipt, by facsimile, by registered or certified first-class U.S. mail, return receipt requested with postage pre-paid, or by commercial courier. Written notice shall be deemed to have been duly served on the date of delivery if delivered in person, by electronic mail, or by facsimile, on the first working day after deposit if delivery by overnight courier, or two (2) working days after deposit of delivery by placing in the U.S. mail as provided herein. All notices shall be addressed to the appropriate Authorized Representative, as follows:
Design-Builder:
John F. Otto Inc. dba Otto Construction
2150 Garden Road, Suite A-1
Monterey, CA 93940
City:
Patrick Dobbins
Public Works Director/City Engineer
City of Gonzales
P.O. Box 647
147 Fourth St
Gonzales, CA 93926
14.5 Modifications.
No modifications or Change Orders shall be valid unless in writing and signed by the City and the Design-Builder or their respective permitted successors and assigns.
14.6 Meaning of Words.
Any and all headings used in this Agreement are for convenience only and do not modify, define or limit the provisions of it. Words of any gender shall be deemed and construed to include correlative words of the other gender. Words importing the singular number shall include all supplements and/or amendments to any such exhibits or documents entered into in accordance with the terms of this Agreement. All references to any person or entity shall be deemed to include any person or entity succeeding to the rights, duties and obligations of such person or entity in accordance with the terms of this Agreement. Where reference is made in this Agreement or to another Contract Document, the reference refers to that provision as amended or supplemented by the other provisions of the Contract Documents. No provision of this Agreement shall be interpreted for or against a party because that party or its legal representative drafted such provision, and this Agreement shall be construed as if jointly prepared by the parties.
14.7 Severability.
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If any provision of this Agreement is held to be inoperative or unenforceable as applied in any particular case because it conflicts with any other provision hereof or any constitution, statute, ordinance, rule of law or public policy, or for any other reason, such holding shall not have the effect of rendering any other provision contained herein to be inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections contained in this Agreement shall not affect the remaining portions of this Agreement, or any part of it, and the remaining portions shall otherwise remain in full force and effect.
14.8 Whole Agreement.
This Agreement and any and all exhibits, the Design-Builder's Proposal which is incorporated by reference, and the Contract Documents shall constitute the entire agreement between the Parties, and no inducements, considerations, promises or other references shall be implied in this Agreement that are not expressly addressed in this Agreement. By incorporating the Design-Builder's Proposal as part of this Agreement, the City does not accept any provision of the Proposal that is not in conformance with the criteria of the Request for Proposal.
14.9 • Record Retention and Audits.
Design-Builder agrees that the City, or its designated representative, shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement; the accounting and control systems shall be reasonably satisfactory to the City and shall be in accordance with generally accepted accounting standards.
Design-Builder shall retain all records, books, correspondence, instructions, drawings, receipts, subcontracts, vouchers, memoranda and other data relating to this Design- Build Agreement for a period of five (5) years after Final Payment under this Agreement, or for such longer period as may be required by law. Design-Builder agrees to allow the City to audit this Agreement, including all financial and performance records, and to allow access to all records to City's auditor(s) during normal business hours and to allow interviews of any employees who might reasonably have information related to such records, and not withhold relevant information. Further, Design-Builder agrees to include a similar right of the City to audit records and interview staff in any subcontract related to performance of this Agreement.
14.10 Deliverables.
The Design-Builder is responsible for delivery to the City certain drawings, schedules, reports, samples and other documents as described in the Contract Documents.
14.11 Waiver.
No waiver of any condition, requirement or right expressed in this Agreement shall result from any forbearance of the City to declare a default.
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CITY OF GONZALES
14.12 Attorneys' Fees and Costs.
Should litigation be necessary to enforce any terms or provisions of this Agreement, then each party shall bear its own litigation and collection expenses, witness fees, court costs and attorney's fees.
14.13 Computer Software.
Design-Builder certifies that it has appropriate systems and controls in place to ensure that City funds will not be used in the performance of this contract for the acquisition, operation or maintenance of computer software in violation of copyright laws.
14.14 Independent Contractor Status.
While engaged in the performance of this Agreement, the Design-Builder is an independent contractor, and not an officer, employee, agent, partner, or joint venture of the City. Design-Builder shall be solely responsible for its own Worker's Compensation insurance, taxes, and other similar charges or obligations. Design-Builder shall be liable for its own actions, including its negligence or gross negligence, and shall be liable for the acts, omissions, or errors of its agents or employees.
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Gonzales Community Center Complex
New Construction - Design/Build Contract
CITY OF GONZALES
ARTICLE 15 - EXECUTION OF THE AGREEMENT
The parties have executed this Agreement the day and year first written above.
DESIGN-BUILDER
John F. Otto Inc. aba Otto Construction
2150 Garden Road, Suite A-1
Monterey, CA 93940
By:
Allison Otto, President & CEO
City of Gonzales, a Political Subdivision of the State of California By:
Carmen Gil, City Manager
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Gonzales Community Center Complex
New Construction - Design/Build Contract
CITY OF GONZALES
EXHIBIT E - PROJECT MILESTONE SCHEDULE
The Project Milestone Schedule below identifies the major events for the Project. The Design- Builder confirms that the Contract Time and Milestones allow a reasonable period of time for completing the work under the Project.
There are four (4) distinct Notices to Proceed:
• 00 50 01 Notice to Proceed with Design, Phase 1
00 50 02 Notice to Proceed with Construction, Phase 1
00 50 03 Notice to Proceed with Design, Phase 2
00 50 04 Notice to Proceed with Construction, Phase 2
Phase 1:
• Complete Construction Documents 210 calendar days from NTP with Design • Substantial Completion 510 calendar days from NTP with Construction • Final Completion 555 calendar days from NTP with Construction Phase 2:
• Complete Construction Documents 200 calendar days from NTP with Design • Substantial Completion 365 calendar days from NTP with Construction • Final Completion 410 calendar days from NTP with Construction
END OF SECTION
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