Agenda packet — Montebello City Council, November 10, 2022 (part 1 of 3)

CITY OF MONTEBELLO

CALL AND NOTICE OF A SPECIAL CITY COUNCIL AND PUBLIC FINANCING AUTHORITY

MEETING AGENDA

THURSDAY, NOVEMBER 10, 2022 AT 5:00 PM

CITY HALL COUNCIL CHAMBERS
1600 WEST BEVERLY BOULEVARD

MONTEBELLO, CALIFORNIA

NOTICE IS HEREBY GIVEN that a Joint Special Meeting for the City of Montebello City Council and Public Financing Authority (PFA) is hereby called to be held on Thursday, November 10, 2022 at 5:00 p.m. at City Hall, Council Chambers, located at 1600 West Beverly Boulevard, Montebello, CA 90640. The meeting will also be live streamed and can be watched on the City’s website at: https://cityofmontebello.hosted2.civiclive.com/government/live_streaming, and may also be viewed on Spectrum Public Access Channel 3 for all Spectrum cable subscribers.

COVID-19 NOTICE: The City Council rescinded the Declaration of the Local Emergency and the continuation of teleconferencing open meetings pursuant to AB 361 by adopting Resolution No. 22-21 on Wednesday, April 13, 2022. This City Council/PAF Meeting will be held in person and will meet at City Hall – City Council Chambers, 1600 West Beverly Boulevard, Montebello, California.

AMERICANS WITH DISABILITIES ACT: In compliance with the Americans with Disabilities Act (ADA) any person with a disability who requires special accommodations in order to participate in a meeting should contact the Administration Office at (323) 887-1437 Monday-Thursday from 7:30 a.m.-5:30 p.m. Please call 48 hours prior to the meeting to ensure that reasonable arrangements can be made to provide accessibility to this meeting (28 CFR 35.102-35.104 ADA Title II 1203). If you require translation services, please contact the City Clerk’s office 48 hours before this meeting. Si necesita servicios de traducción, comuníquese con la Oficina del Secretario Municipal 72 horas antes de esta reunión. 如果您需要翻译服务，请在会议前 72 小时联系市书记员办公室

RULES OF DECORUM:

As Established by Ordinance 2443, adopted on October 27, 2021: Signs, placards, banners, horns, noise-making devices, or other similar items shall not be permitted in the audience during a Public Meeting if the presence of such item disturbs, disrupts or otherwise impedes the orderly conduct of the meeting. All persons attending a public meeting shall remain seated in the seats provided, unless addressing the body at the podium or entering or leaving the meeting. No member of the audience shall willfully interrupt the orderly conduct at the meeting, including clapping or otherwise speaking from their seats. The presiding officer shall direct the removal of any individual whose willful interruption renders infeasible the orderly conduct of the meeting. In the event the removal of the individual or individuals willfully interrupting the meeting does not restore order, the presiding officer may order the meeting room cleared and continue in session. Speakers shall not engage in willful conduct which interrupts the meeting or interferes with the orderly conduct of the meeting. Any person who becomes boisterous while addressing the Council/PFA or who otherwise disrupts the orderly conduct of the Council/PFA’s business shall be subject to removal from the Chambers after being admonished by the presiding officer.

PUBLIC COMMENTS:

In-Person: For those interested in participating during the Public Comment period(s) or public testimony period for Public Hearings of the City Council/PFA meeting, you may address the City Council/PFA in person the day of the meeting.

Speakers will be required to fill out a speaker card provided at the door and turn it into the Deputy City Clerk prior to each

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November 10, 2022: Call and Notice of a Special Meeting Page 2 of 4 Public Comment announcement period. Staff will number and call each speaker card in the order received. Closed Session begins at 5:00 p.m. and Regular Session begins immediately following Closed Session.

Via Email: The public may also submit emailed comments via the City’s email address:
[email protected], up until the day of the meeting,Thursday, November 10, 2022 by 3:00 p.m. These comments will be submitted to all members of the City Council/PFA and may not be read aloud but will be entered into the record of the proceedings to the extent they relate to matters listed on the posted agenda. Any requests to provide public comment which is submitted after the deadlines indicated above will not be submitted to the City Council/PFA.

AGENDA MATERIALS: The agenda/agenda packet are available for public inspection at the City’s website at:
https://cityofmontebello.hosted2.civiclive.com/departments/administration/city_clerks_office/agendas__minutes__and_vid eos. The agenda cover sheets may also be emailed upon request.

IN CONSIDERATION OF OTHERS, PLEASE TURN OFF, OR MUTE, ALL CELL PHONES AND PAGERS.

THANK YOU FOR YOUR COOPERATION.

OPENING CEREMONIES

CALL TO ORDER

ROLL CALL

PUBLIC COMMENTS ON AGENDA ITEMS ONLY (30 MINUTES)
At this time, the general public may only address the City Council/PFA during this Special Meeting on items which have been described in the notice of this Special meeting in accordance with Government Code Section 54954.3(a). Please be aware that the maximum time allotted for members of the public to speak on shall not exceed three (3) minutes per person.

State Law prohibits the City Council/PAF from taking action or entertaining extended discussion on a topic not listed on the agenda. Please show courtesy to others and direct all of your comments to the Mayor/Chairperson and Board Members.

CLOSED SESSION 5:00 P.M.

The City Attorney shall provide a briefing on the item listed for Closed Session as follows:

1. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Government Code Section 54956.8
Property: 901 Via San Clemente, Montebello CA
Agency’s Negotiator: René Bobadilla, City Manager
Negotiating Party: Topgolf, Quiet Cannon Management, Inc., and Affiliated Entities Under Negotiation: Price and Terms
REGULAR SESSION – IMMEDIATELY FOLLOWING CLOSED SESSION

CLOSED SESSION REPORT

CORRECTIONS TO THE AGENDA CITY MANAGER

STAFF COMMUNICATIONS ON ITEMS OF COMMUNITY INTEREST

CONSENT CALENDAR
All matters listed under the Consent Calendar are considered to be routine. Any items a Councilmember/Board Member

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November 10, 2022: Call and Notice of a Special Meeting Page 3 of 4 wishes to discuss should be designated at this time. All other items may be approved in a single motion. Such approval will also waive the reading of any ordinance.

2. ADOPT RESOLUTION NO. 22-84 APPROVING PLANS AND SPECIFICATIONS FOR THE MONTEBELLO DRIVING RANGE PROJECT – TOPGOLF MONTEBELLO; APPROVING A CONTRACT WITH MCCARTHY

BUILDING COMPANIES FOR CONSTRUCTION AND CONSTRUCTION MANAGEMENT SERVICES FOR THE MONTEBELLO DRIVING RANGE PROJECT – TOPGOLF MONTEBELLO, AND MAKING CERTAIN

FINDINGS IN CONNECTION THEREWITH

RECOMMENDATION: It is recommended that the City Council and Public Financing Authority:

1. Approve final plans and specifications for the Montebello Driving Range Project – Topgolf Montebello (“Project”) prepared by Aria Group Architects, Inc.; and

2. Approve the waiver of competitive bidding and find that McCarthy Building Companies is the only available and qualified contractor to provide the professional and construction services required to develop the Project; and

3. Approve and award a Guaranteed Maximum Price (GMP) Construction Contract to McCarthy Building Companies for construction and construction management services for the Project; and

4. Approve a Notice of Exemption under the California Environmental Quality Act (CEQA) for the subject project and authorize the City Clerk to file the Notice of Exemption with the Los Angeles County Registrar- Recorder; and

5. Authorize the City Manager to make necessary non-monetary changes to the Construction Contract within the Guaranteed Maximum Price (not-to-exceed the net proceeds of the bonds) before execution; and

6. Authorize the City Manager to execute the Construction Contract in a form approved by the City Attorney; and

7. Take any other additional actions necessary.

3. AWARD OF CONSTRUCTION CONTRACT - MONTEBELLO MUNICIPAL GOLF COURSE RENOVATION PROJECT PHASE 2 (CP NO. 894-2)

RECOMMENDATION: It is recommended that the City Council and Public Financing Authority:

1. Award a construction contract for the Montebello Municipal Golf Course Renovation Project Phase 2 (CP No. 894-2) in the amount of $9,664,658 to American Landscape, Inc.; and

2. Authorize the Director of Public Works to review and approve change orders within a five percent (5%) contingency of the contract amount; and

3. Authorize the City Manager to execute the Contract Agreement on behalf of the City; and

4. Approve the updated Total Project Budget (Attachment A); and

5. Approve the Notice of Exemption (Attachment D) for the subject project and authorize the City Clerk to file the Notice of Exemption with Los Angeles Registrar-Recorder; and

6. Take such additional, related, action that may be desirable.

4. REPORT OF EMERGENCY WATER SYSTEM REPAIRS

RECOMMENDATION: It is recommended that the City Council and Public Financing Authority:

1. Receive and file the City Manager’s report of two emergency repairs to the City’s Water System pursuant to Montebello Municipal Code Section 3.20.140 and Public Contracts Code Section 22035; and

2. Determine and find that the Water System repairs are required to prevent a catastrophic failure of a portion of the system affecting the domestic and fire suppression water supply to numerous commercial and residential customers; and

3. By a four-fifths vote of the City Council authorize the dispensing of a formal bidding procedure for the Water System repairs, in accordance with California Public Contract Code Section 22035 and Montebello Municipal Code Chapter 3.20.140; and

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4. Authorize the City Manager to finalize a standard construction agreement with Mike Bubalo Construction Co. for the replacement of the fire suppression service for the Quiet Cannon and Hilton Garden Inn at an estimated total cost of $400,000; and

5. Authorize the City Manager to increase the Fiscal Year 2022-23 Purchase Order for San Gabriel Valley Water Company for Agreement No. 2883 in the amount of $125,000 for the replacement of a failing pressure reducing valve located at 2323 Via Campo; and

6. Amend the Fiscal Year 2022-23 budget by increasing appropriations by $525,000 in Account No. 605- 99-6040.55 (Water Fund, Contract Services – Water System Maintenance) for the emergency repairs; and

7. Take such additional, related, action that may be desirable.

ADJOURNMENT
The City of Montebello will adjourn to the next Regular Meeting on November 16, 2022 at 5:00 p.m. which can be live streamed at https://www.montebelloca.gov/government/live_streaming (Click on Live Stream).

Date and Posted: November 9, 2022

I, Alicia Fernandez, Sr. Deputy City Clerk for the City of Montebello hereby certify that a copy of this agenda has been posted on or before Wednesday, November 9, 2022 no later than 5:00 p.m.

Alicia Fernandez, Sr. Deputy City Clerk

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ITEM # 2

CITY OF MONTEBELLO

SPECIAL CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT
TO: Honorable Mayor and City Council Members
FROM: René Bobadilla, City Manager
Arnold Alvarez-Glasman, City Attorney
BY: Arnold Glasman, City Attorney
SUBJECT: ADOPT RESOLUTION NO. 22-84 APPROVING PLANS AND

SPECIFICATIONS FOR THE MONTEBELLO DRIVING RANGE
PROJECT – TOPGOLF MONTEBELLO; APPROVING A CONTRACT

WITH MCCARTHY BUILDING COMPANIES FOR CONSTRUCTION

AND CONSTRUCTION MANAGEMENT SERVICES FOR THE
MONTEBELLO DRIVING RANGE PROJECT – TOPGOLF

MONTEBELLO, AND MAKING CERTAIN FINDINGS IN CONNECTION

THEREWITH
DATE: November 10, 2022
RECOMMENDATION(S):

It is recommended that the City Council and Public Financing Authority:

1. Approve final plans and specifications for the Montebello Driving Range Project – Topgolf Montebello (“Project”) prepared by Aria Group Architects, Inc.; and

3. Approve and award a Guaranteed Maximum Price (GMP) Construction Contract to McCarthy Building Companies for construction and construction management services for the Project; and

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6. Authorize the City Manager to execute the Construction Contract in a form approved by the City Attorney; and

7. Take any other additional actions necessary.

FISCAL IMPACT:

During its meeting on September 28, 2022, the City Council and Montebello Public Financing Authority held a public hearing and approved issuance and delivery of the Series 2022B Lease Revenue Bonds (“2022B Bonds”). The proceeds of the 2022B Bonds will be used to finance construction of the Montebello Driving Range Project – which will be known as Topgolf Montebello. The Project will be operated by a local subsidiary of Topgolf under a long-term lease agreement with the City that was also approved by the City Council on September 28, 2022. Topgolf will pay for all project costs, including debt service on the 2022B Bonds (i.e., improvement rent), plus the fair market value of the project space, through annual rent payments (i.e., base rent) to the City.

Once bonds are issued, proceeds will be used to reimburse design and construction costs for this project. Staff will return at a future City Council meeting to appropriate necessary funds in a Driving Range Project/Topgolf Montebello capital fund. No budget amendment is necessary at this time.

BACKGROUND:

Extensive detail and background on the City’s efforts to address long-standing operating deficits and capital improvement needs of the Golf Course was provided in the staff report that accompanied the issuance of the 2022B Bonds on September 28, 2022; and there is no need to reiterate the full history. The City’s efforts in this regard culminated on September 28, 2022, with the City Council and Public Financing Authority approving issuance of the 2022B Bonds to finance the Project, as well as a sublease agreement with Topgolf to operate the Project.

ENVIRONMENTAL IMPACT:

The reasonably foreseeable environmental impacts of the Project have been analyzed pursuant to the requirements of the California Environmental Quality Act (“CEQA”) by way of that certain “Initial Study and Mitigated Negative Declaration for the Montebello Golf Couse Driving Range Relocation Project,” dated December 12, 2019 (the “MND”).

The MND concluded that, with mitigation, the Project would not result in any significant negative impacts to the environment, and the MND was approved by way of City of Montebello Planning Commission Resolution No. 6-22 in the manner required by CEQA, and a notice of determination was timely posted and published in the manner required by law. This action does not result in any new environmental impacts not previously studied and analyzed in is action to implement the project so studied.

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ANALYSIS:

Topgolf Montebello will be a 66,000 square foot Topgolf-branded commercial driving range and entertainment venue which is expected to include a full-service restaurant, event space, and other associated amenities. The Project will include, among other things: a three (3)-story driving range complex/structure with approximately 102 hitting bays; restaurant and entertainment amenities; outdoor seating/patio areas; a parking lot; a miniature golf course; and common facilities, including a public road that provides access from Via San Clemente, on approximately 15 acres.

Groundbreaking for the Project is scheduled for early November 2022, and the current construction schedule for the Project is as follows:

Activity Milestone Date
Groundbreaking 11/14/2022
City Utility Extension Completion 12/23/2022
City Common Drive Completion 8/25/2023
Substantial Completion 11/20/2023
Grand Opening 12/29/2023
The goal is for this Project to open approximately at the same time as the Golf Course Renovation Project, funding for which was approved at the September 14, 2022 City Council meeting.

The design and specifications for the Project have been prepared in close collaboration with Topgolf and meet the approval of the City Engineer.

Design Criteria
The new building is designed as a state-of-the-art golf, entertainment, and social gathering place that combines an exciting gaming experience with an upscale dining atmosphere. Topgolf provides a positive atmosphere where both family and friends can relax in an environment that is redefining sports and elevating entertainment.

The new building is a three-story, 66,000 square foot facility with 102 hitting bays and various retail, dining/bar, event/meeting spaces as well as kitchen and other operational and office spaces. The building's overall aesthetic is modern with intersecting planes of building elements and welcomes guests with a carved-out entry volume. This entry is also the bold color against a simplistic color palette so patrons can easily find their way inside.

Building Envelope and Material Selection
The building will consist of a structural steel frame, concrete floor slabs, and metal stud wall framing with various exterior wall finishes. The exterior palate is composed of a

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metal composite material panel (MCM), exterior insulation finish system (EIFS), and Knotwood aluminum cladding. Within the field of EIFS, a contrasting horizontal EIFS strip is used as well as an argyle pattern to create additional interest within the overall building design. The first 14 vertical feet of the side of the building is clad with vertical aluminum cladding (Knotwood) to create a pedestrian scale for the three-story structure.

Large spans of tinted glass express the building's function and allow views throughout the facility.

The outdoor patio provides patrons with a variety of seating along with additional landscape. The patio design includes a vast planting area to create a parklike setting against the building edge to soften the architecture as well as to help buffer sound with larger trees.

Each of the 102 temperature-controlled hitting bays includes two flat-screen TVs, a digital gaming panel, a dining table with chairs/sofas, golf clubs and a golf bag holder, a hitting mat, and a golf ball dispenser. Due to the nature of the golfing concept, one side of the facility is open-faced, allowing guests to hit golf balls into the outdoor outfield.

Due to the open face of the facility and the elevated hitting areas, the building design includes safety netting meeting the standard for elevated helicopter platforms as determined by the United States Department of Transportation (USDOT) and the Federal Aviation Administration (FAA).

The roofing system is a white single-ply membrane specified to meet the Heat Island Reduction requirements. The roof and wall insulation specified exceeds the baseline/minimum code requirements. Exterior glazing efficiency and daylighting is optimized by selecting glass and frame assemblies to provide enhanced thermal and solar control. This provides an overall low U-value, solar heat gain (SHGC), and high visible light transmittance (VLT). Exterior glazing systems specified have thermally broken frame assemblies with insulated, low-E coating and tinted glass. Glazing located under the 20-foot plus Hitting Bay overhang is insulated, low-E coated clear glass.

Exterior windows located in the Hitting Bay exterior walls (exterior exposed on both sides) have tinted glass.

Design Attributes
The building incorporates many features to support sustainability goals. Materials such as (but limited to):
High reflectance white roofing membrane to reduce solar heat gain. Insulated, Low-E, and tinted glass to reduce energy use. No VOC (Volatile Organic Compounds) paints to improve air quality. Tile – Restroom Floors - 20% Pre-consumer recycled content ile – Restroom Walls – 35% Pre-consumer recycled content Tile – Main Bar die wall – 35.5% Pre-consumer recycled content Carpet – All Locations – 72% recycled content
Ceiling Tile – Offices – 35% recycled content
Ceiling Tile – Kitchen – 23% recycled content

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Woodwork/Trim – American Walnut – Reclaimed lumber 100% recycled Vinyl Tile Back-of-House – 18% Pre-consumer recycled content Plastic Laminate – Office Counters – 30% Post-consumer recycled content Proposed Contractor – McCarthy Building Companies
Because the Driving Range Project will be operated by Topgolf, it will be designed and operated as a prototypical Topgolf venue and must meet its proprietary standards and specifications.

As is clear from its description above, the Project is complex and multi-faceted from a construction standpoint, as it implicates a variety of design and construction-related disciplines. There are also very few competitors in this market sector, meaning few design professionals or general contractors have experience developing like-facilities.

As an example, there are currently more than seventy (70) Topgolf venues operating in the United States, and more than sixty-five (65) of them were designed and constructed by ARCO/Murray Design Build (“ARCO / Murray”), with McCarthy having recently developed and designed the Topgolf facility in El Segundo. Based on representations provided by Topgolf, the facilities designed or developed by other contractors (i.e., not ARCO / Murray nor McCarthy) all experienced cost overruns, scheduling delays, or quality control issues resulting from the lack of experience on similar projects.

Given the significance of the Project to the success of the Golf Course Rehabilitation Project, the City’s two hotels, and the Project’s unique design / construction challenges, staff recommends the City Council waive competitive bidding and award the contract to a qualified contractor with demonstrated success on similar projects. As explained in the attached legal opinion, this Project presents one of the unique circumstances in which competitive bidding would not work to advance the public interest, and the quality and nature of services required more closely resemble professional services than typical construction work. (Attachment C).

The City Council made a similar determination when it adopted Resolution No. 21-94 on November 10, 2021, finding that, based on its significant experience designing and developing nearly all Topgolf venues in the domestic Unites States, awarding a contract to ARCO / Murray was appropriate. Since that time, however, ARCO / Murray has advised the City that it is not available to proceed with constructing the Project. With Topgolf’s consent, ARCO / Murray proposed to assign the completed plans and specifications to McCarthy Building Companies of Newport Beach, which would proceed with providing construction and construction management services for the Project.

McCarthy Building Companies was established in 1864 and is one of the largest and most active contractors in the United States with 17 regional offices, and with clear demonstrated professional and financial capacity to complete the Project. After ARCO / Murray, McCarthy is also the next most experienced contractor in the United States on Topgolf venues, and in recent months completed construction of Topgolf’s new location in the City of El Segundo. This project was completed on-time, within budget, and shares many similarities with Montebello’s Driving Range Project including market region, size, building type, and close proximity to an operating golf course.

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Based on these facts and circumstances, staff believes that awarding a contract to McCarthy for development of the Project is consistent with applicable law and in the best interests of the City. A resolution setting forth the applicable facts and circumstances of the award, and approving the proposed Construction Contract with McCarthy, is attached for the City Council’s consideration.

Next Steps
If the City Council approves the recommended action, staff would proceed with finalizing the transaction documents and proceeding with overseeing the financing and construction of the Project as approved.

SUMMARY:

Upon approval of the recommended actions, staff will proceed with finalizing the Construction Contract with McCarthy Building Companies, and following execution of the Construction Contract, coordinate the initiation and progress of the Project moving forward.

ATTACHMENT(S)

1. Attachment A - Construction Contract with McCarthy Building Companies, Inc.

2. Attachment B - ARTCILE 16 - Public Works Disclosures and Forms

3. Attachment C - Proposed Resolution No. 22-84

4. Attachment D - Justification for Competitive Bidding Waiver NEXT STEPS:

N/A

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MONTEBELLO DRIVING RANGE PROJECT – TOPGOLF MONTEBELLO
(Construction Contract)
C.P. No. 909 (Agreement No. 4045)
This Construction Contract (the “Agreement”) is made as of the 10th day of November in the year 2022, by and among the Owner, Tenant (but only as to the obligations specifically undertaken by Tenant under the Contract Documents) and the Contractor for construction of the Project as further described and identified hereinbelow:

The Owner:

City of Montebello
1600 W. Beverly Boulevard
Montebello, CA 90640
Designated Representative: James Enriquez, City Engineer The Tenant:

TopGolf USA MB, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Designated Representative: Kevin Miner
The Contractor:

Montebello Driving Range Project - TopGolf Montebello
901 Via San Clemente
Montebello, CA 90640
The Architect:

Aria Group Architects, Inc.
830 North Boulevard
Oak Park, Illinois 60301
Designated Representative: Damian Satola

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2 AGREEMENT
The Owner, Tenant, and Contractor agree as follows:

ARTICLE 1 GENERAL PROVISIONS
§ 1.1 The Contract Documents
The Contract Documents consist of this Agreement, the General Conditions, Plans and Specifications, written amendmetns to the Agreement (“Amendments”), and Changes and Change Orders issued after execution of this Agreement, all of which form this Agreement and are fully a part of this Agreement as if attached or set forth fully herein. The Contract Documents represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral.
§ 1.1 .1 Order of Precedence
In the event that any provision(s) in any component part of the Contract Documents conflicts with any provision(s) of any other component part, the following order of precedence among the Contract Documents’ component parts shall govern:
.1 Written Amendments and Change Orders to the Agreement in reverse chronological order
.2 This Agreement
.3 The General Conditions
.4 The Project Plans and Specifications and Drawings
.5 Referenced Standard Plans and/or Specifications
.6 Performance Bond
.7 Labor and Material Payment Bond
§ 1.1.2 Resolution of Conflicts.

In the event there is a conflict between or among any provisions within one of the component parts of the Contract Documents, the higher standard or the more stringent requirement shall govern. § 1.2 Relationship of the Parties
The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner and Tenant to cooperate with them both and exercise the Contractor’s skill and judgment in furthering the interests of the Owner and Tenant; to furnish efficient construction administration, management services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner’s and Tenant’s interests. The Owner and Tenant both agree to furnish or approve, in a timely manner, requests for information made by the Contractor and to make payments to the Contractor in accordance with the requirements of the Contract Documents. Except as may otherwise may be directed by the Owner in writing, Contractor agrees to allow or otherwise permit the Tenant to, and Tenant shall: (1) actively oversee, participate in, and consult with Contractor on all aspects of the construction of the Project, recognizing that the Project will be occupied and operated by Tenant upon Substantial Completion; (2) provide professional and proprietary consulting and construction management services in connection with the construction of the Project to ensure compliance with the Plans and Specifications and Tenant’s proprietary standards and certifications that are associated with Tenant’s standard facility in the United States.

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3 § 1.3 General Conditions
The general conditions of the contract shall be as identified in the Exhibit “A” attached hereto. § 1.4 Owner’s Designated Representative
The City Engineer shall be the representative authorized to act on behalf of the Owner with respect to the Project. The Owner’s representative shall render decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Contractor. The term “Owner” means Owner or the Owner’s authorized representative.
§ 1.5 Tenant’s Designated Representative
The Tenant shall identify a representative authorized to act on behalf of the Tenant with respect to the Project. The Tenant’s representative shall render decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Contractor. The term “Tenant” means the Tenant or the Tenant’s authorized representative.
§ 1.6 Contractor’s Designated Representative.

The Contractor shall identify a representative authorized to act on behalf of the Contractor with respect to the Project. The Contractor’s representative shall render decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Contractor. The term “Contractor” means the Contractor or the Contractor’s authorized representative. § 1.7 Architect.

The Tenant has retained the Architect to provide the professional services, duties and responsibilities, including any additional services requested by the Contractor that are necessary to prepare the Plans and Specifications and for the Construction Phase under this Agreement. The Tenant agrees that the Owner, its employees, agents, and officials, to the fullest extent permitted by law, shall be fully protected from any loss, injury, damage, claim, liability, lawsuit, cost, expense, attorneys fees, litigation costs, defense costs, court costs or any other cost (“claims”) arising out of or in any way related to the negligence, recklessness or willful misconduct of the Architect, or its officers, agents, servants, employees, subcontractors, contractors (or any entity or individual that Architect shall bear the legal liability therefor) in the performance of professional services for preparing the Plans and Specifications. Tenant shall defend the Owner, its employees, agents, and officials, in any action or actions filed in connection with any such claims with counsel of the Tenant’s choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense.

ARTICLE 2 ROLES AND RESPONSIBILTIES OF OWNER AND TENANT § 2.1 Information and Services Required of the Owner and Tenant § 2.1.1 The Owner and Tenant shall each provide information requested by Contractor with reasonable promptness, regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner’s and Tenant’s objectives, constraints, and criteria, including schedule, space requirements and relationships, flexibility and expandability, special equipment, systems sustainability and site requirements.
§ 2.1.2 Prior to the execution of this Agreement, the Contractor has requested in writing that the Owner provide evidence reasonably satisfactory to the Contractor that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract. The Owner shall furnish such evidence as a condition precedent to commencement of the Work, and Contractor’s commencement of the Work shall be conclusive evidence that Contractor has accepted such evidence and financial arrangements of Owner. Thereafter, the Contractor may only request such evidence if (1) the Owner fails to make payments to the Contractor as

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4 the Contract Documents require, or (2) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due. After the Owner furnishes the evidence, the Owner shall not materially vary such financial arrangements without notice to the Contractor. Such information is confidential and shall not be disclosed by Contractor to third parties. § 2.1.3 Structural and Environmental Tests, Surveys and Reports.

The Owner and Tenant shall each also furnish any other information or services under their respective control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services. The Contractor shall be entitled to rely on the accuracy of information and services furnished by the Owner or Tenant but shall exercise proper precautions relating to the safe performance of the Work. .1 The Tenant, when such services are requested, shall furnish services of geotechnical engineers, which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations.
.2 During the Construction Phase, the Owner and Tenant shall each furnish information or services required of them by the Contract Documents with reasonable promptness. The Owner and Tenant shall also furnish any other information or services under their respective control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services.
§ 2.1.4 Compliance with Contract Documents.

The Owner and Tenant shall each take such actions as are reasonably necessary to facilitate and carry out their respective obligations set forth in the Contract Documents, subject to the terms and limitations of the Contract Documents. Owner and Tenant shall collaborate, communicate, and work together in good faith in exercising the discretion, reviewing any requests, or issuing any consents or approvals required of them under the terms of the Contract Documents, whether such disrection, review, consent or approval is to be given by either party individually or jointly.
§ 2.2 Additional Information and Services Required of the Tenant § 2.2.1 [Intentionally Deleted].
§ 2.2.2 Tenant shall furnish any other information or services under the Tenant’s control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services. The Contractor shall be entitled to rely on the accuracy of information and services furnished by the Tenant but shall exercise proper precautions relating to the safe performance of the Work.
§ 2.2.3 Prior to the execution of this Agreement, the Contractor has had the opportunity to request in writing that the Tenant provide evidence reasonably satisfactory to the Contractor that the Tenant has made financial arrangements to fulfill the Tenant’s obligations under the Contract. Thereafter, the Contractor may only request such evidence if the Tenant fails to fund amounts required by the Contract Documents.

After the Tenant furnishes the evidence, the Tenant shall not materially vary such financial arrangements without notice to the Contractor. Such information is confidential and shall not be disclosed by Contractor to third parties.

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5 § 2.2.4 Compliance with Sublease; Other Obligations. In connection with Contractor’s carrying out of the Work required by this Agreement, the Owner and Tenant shall comply with all terms and conditions of that certain Sublease by and between the Owner and Tenant for the project site (the “Sublease”) that are relevant to the Construction Phase. Without limiting the foregoing, Owner, Tenant, and Contractor agree as follows with respect to the Construction Phase of the Agreement:
.1 Tenant shall pay for that portion of the Work that exceeds the net-construction proceeds of the Series 2022B Bonds issued by the Montebello Public Financing Authority to pay for construction of the Project. As of the date of this Agreement, the parties anticipate the amount of such net construction proceeds to be approximately $45 million dollars, subject to fluxation in interest rates, cost of issuance, and other market factors that remain unknown until said bonds are sold (the “Bond Proceeds”). .2 Tenant shall pay for and contract with the Architect, and shall have ownership and control of the Plan and Specifications, provided that Owner shall have the right to use, keep and maintain copies of such Plans and Specifications in connection with this Agreement and any other lawful purpose. .3 Each of the following are excluded from the Work or obligations of Contractor under this Agreement, are excluded from the GMP, and shall be the responsibility of Tenant:
a. Tenant shall reimburse Contractor for all permit and plan check fees associated with the Project and Contractor’s performance of the Work, as well as WDID (SWPPP Permit), but Contractor shall be responsible for payment and obtaining the WDID (SWPPP) BMP’s, provided that all such permits shall be issued to Contractor even if paid by Tenant. b. Tenant shall pay for the cost of any third-party testing and inspections requested by Tenant that are in addition to the testing and inspections required for Contractor to perform the Work. c. Tenant shall pay for utility service provider and meter fees, utility service connection fees, and commissioning agent costs.
d. Tenant shall separately contract for, procure, pay for, and install the following in connection with the Project:

1. Steel net poles and barrier netting (Outfield)

2. Artificial turf (Outfield)

3. Artificial turf and base (Site)

4. Concrete equipment poles pads for EV charging stations

5. Target interior cabling (Outfield)

6. Target netting systems (Outfield)

7. Target ball collection hoppers, hoses, and system (Outfield) e. Tenant shall furnish storm pumps including the manufacturer start up and training f. Tenant shall pay for tax and freight of storm pump materials. g. Tenant shall pay for tax and freight of underground detention materials. h. Tenant shall pay for, furnish, and deliver to the project site other materials and equipment as identified in the responsibility matrix attached hereto as Exhibit “F.” § 2.1.4 [Intentionally Deleted] .

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6 ARTICLE 3. CONSTRUCTION SERVICES AND THE PROJECT
§ 3.1 Commencement of Construction Services
For purposes of this Agreement, the date of commencement of the Work shall mean the date of commencement of the construction phase. The “Construction Phase” of this Agreement shall commence upon the issuance of a Notice to Proceed that is jointly isused by Owner and Tenant. § 3.2 The Project and Scope of Work.

Upon receipt of Notice to Proceed, the Contractor shall immediately commence and proceed diligently and without interruption with the construction of the Project pursuant to the final Plans and Specifications identified in Exhibit “B” hereto, and within the time set forth in the Performance Schedule identified in Exhibit “C”, and in accordance with the terms and conditions of the Contract Documents. § 3.3 Administration
In addition to constructing the Project, Contractor shall perform the following administrative tasks during the Construction Phase:
.1 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement and General Conditions, and the Contractor shall provide in the Subcontract for the Owner or Tenant to receive the same audit rights with regard to the Subcontractor as the Owner or Tenant, respectively, receives with regard to the Contractor.
.2 The Contractor shall schedule and conduct meetings to discuss such matters as procedures, progress, coordination, scheduling, and status of the Work. The Contractor shall prepare and promptly distribute minutes to the Owner and Tenant.
.3 The Contractor shall record the progress of the Project. On a bi-weekly basis, or otherwise as agreed to by the Owner, the Contractor shall submit written progress reports to the Owner and Tenant, showing percentages of completion and other information required by the Owner. The Contractor shall also keep, and make available to the Owner and Tenant, a daily log containing a record for each day of weather, portions of the Work in progress, number of workers on site, identification of equipment on site, problems that might affect progress of the work, accidents, injuries, and other information required by the Owner. .4 The Contractor shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Contractor shall identify variances between actual and estimated costs and report the variances to the Owner and Tenant and shall provide this information in its bi-weekly reports to the Owner and Tenant. The Contractor shall include and deliver all said documents and reports in the required closeout of the project, and the Contractor may retain one record set of the documents. § 3.4 Guaranteed Maximum Price
§ 3.4.1 Guaranteed Maximum Price Contract.

This Agreement is a Guaranteed Maximum Price Contract (or GMP as Not-To-Exceed Price, NTE, or NTX), and Contractor shall be responsible for any and all cost overruns unless the GMP established by this Agreement is increased via a formal Change Order in compliance with Section 3.6 below and the General Conditions.
§ 3.4.2 Compensation.

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7 The GMP of this Agreement, and the maximum total compensation that shall be due and payable to Contractor for complete performance of the services and construction work provided for in this Agreement, during the construction phases, and completion of the Project from commencement through opening as required hereunder (the “Work”), shall not exceed Forty Five Million Four Hundred Twelve Thousand Five Hundred Nineteen ($45,412,519) (“Compensation”), which Compensation is comprised of Contractor’s GMP for the Project in the amount of $_($45,412,519______________, as further detailed in Exhibit “D” to this Agreement (“GMP”), plus a 6% (six percent) Contractor’s markup (or fee) on Contractor’s GMAX Bid totaling $_2,343,059________ (“Contractor Fee”). Owner shall be responsibe and pay for that portion of the Compensation equal to the Bond Proceeds, and Tenant shall be responsible and pay for any portion of the Compensation that exceeds the Bond Proceeds.
§ 3.4.3 Accuracy of GMAX Bid Proposal.

Contractor represents that the GMP and estimated costs to complete the Project reflect the best professional estimate of actual costs anticipated. The Compensation is the maximum price that the Owner, Tenant and the Contractor agree upon as payment for providing all the Work and completing the Project in accordance with the Contract Documents, and is the complete and total sum that shall be payable by the Owner and Tenant for any and all costs, direct or indirect, of the Contractor for provision of the Work and construction of the Project pursuant the Contract Documents. Compensation for the Contractor’s provisions of any services or Work in advance of this Agreement or the Notice to Proceed is also included in the GMP. § 3.4.4 Considerations of Contractor’s GMP.

The GMP is the sum of the Contractor’s estimate of the Cost of the Work, including contingencies and the Contractor’s Fee. The GMP in Exhibit “D” includes a written statement of its basis, including the following:
.1 A list of the Plans and Specifications, the Contract Documents and the General Conditions; .2 A list of the clarifications and assumptions made by the Contractor in the preparation of the GMP, including assumptions to supplement the information provided by the Owner or Tenant and contained in the Plans and Specifications;
.3 A statement of the GMP, including a statement of the estimated cost of the Work organized by trade categories or systems, allowances, contingency, and the Contractor’s Fee; .4 The anticipated date of Substantial Completion upon which the GMP is based; and .5 Contractors certification that the pricing and costs contained in the proposed GMP are accurate, complete, and current.
.6 The GMP includes a mutually agreed amount for a construction contingency for the Contractor’s exclusive use to cover those costs not otherwise reimbursable as the Cost of the Work and not included in a Change Order, provided, however, such contingency shall not be used to fund costs resulting from the Contractor’s gross negligence or willful misconduct, non-performance under this contract or costs resulting from Owner directed Changes. No part of the contingency shall be used by the Contractor without first submitting to the Owner a written request for a specific amount and justification for its use, and without receiving the Owner’s prior written approval, and Tenant’s consent, which shall not be unreasonably withheld. Contractor agrees to use diligent efforts, including litigation at Contractor’s sole discretion, to pursue recoveries from insurance, Subcontractors or other third parties as applicable, but shall not be required to wait for recovery prior to receiving contingency monies; provided, however, monies recovered by Contractor shall be promptly returned to Owner. The contingency is for the sole and exclusive use of the Contractor and is not for use by the Owner for reasons including scope increases, concealed conditions,

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8 design clarifications or design deficiencies not reasonably inferable from Construction Documents, nor is the Contingency to be used to address any matter for which Contractor is entitled to an adjustment or Change Order.
§ 3.4.5 Payment Adjustments for Cost Changes.
.1 Direct Costs Less Than GMAX Bid. In the event Contractor’s costs of performing the Work are less than the GMP (“Savings”), then Contractor shall be entitled to receive thirty percent (30%) of such Savings; which shall be added to the Contractor Fee. The purpose of Owner’s sharing of Savings with Contractor is to incentivize Contractor to provide the Work in a cost-effective manner. .2 Direct Costs More Than GMP. In the event that Contractor’s costs of performing the Work are more than the GMP, Contractor shall be responsible for any and all cost overruns unless the GMP established by this Agreement is increased via a formal Change Order. In either event the dollar amount paid for the Contractor Fee shall remain unchanged.
§ 3.5 Performance Schedule
The schedule applicable to Contractor’s provision of the Work under this Agreement is provided in Exhibit “C” attached and incorporated herein as the “Project Schedule.” Contractor represents and warrants that it shall provide the Work and complete the Project for opening within the time required by the Project Schedule.
§ 3.5.1 Timely Performance; Liquidated Damages.

Owner, Tenant and Contractor acknowledge and agree that if Contractor fails to fully and satisfactorily complete the Work within the Project Schedule, Owner and Tenant will suffer, as a result of Contractor’s failure, substantial damages which are both extremely difficult and impracticable to ascertain. Such damages may include, but are not limited to: (i) Loss of public confidence in Owner, Tenant and their contractors and consultants, (ii) Loss of public use of public and private facilities, (iii) Extended disruption to public. (iv) Claims for damages from private citizens. and (v) loss of revenue earmarked to finance the cost of improvements. Owner, Tenant and Contractor have reasonably endeavored, but failed, to ascertain the precise amount of to the actual damage that Owner or Tenant will incur if Contractor fails to achieve Substantial Completion of the entire Work within the Project Schedule. Therefore, the parties agree that in addition to all other damages to which Owner or Tenant may be entitled other than delay damages, in the event Contractor shall fail to achieve Substantial Completion of the entire Work within the Project Schedule, Contractor shall pay Owner as liquidated damages the amount of $1000.00 per day for each day between the date for Substantial Completion of the Work set forth in the Project Schedule (which is 365 calendar days after issuance of the Notice to Proceed, subject to extensions of the Contract Time as permitted under Section 3.6.4 below), and the date Contractor achieves Substantial Completion of the entire Work. The liquidated damages amount is not a penalty but considered to be a reasonable estimate of the amount of damages Owner and Tenant will suffer. Such liquidated damages shall be subject to apportionment for delays to Substantial Completion for which Contractor is entitled to receive an extension of time under the Contract Documents. Such apportionment shall not be affected by the fact that liquidated damages may not be capable of apportionment for other periods of time during which there have occurred delays concurrently caused by both Owner or Tenant and Contractor. It being the Contractor’s obligation to have the entire Work Substantially Completed within the Project Schedule, it is agreed that such liquidated damages shall not be apportioned for portions of the Work completed prior to expiration of the Contract Time. Tenant and Owner agree that any liquiated damages paid under this section shall be allocated as required in the Sublease.

Owner’s Initials ______ Contractor’s Initials ______ Tenant’s Initials _____

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9 § 3.6 Changes in the Work
§ 3.6.1 Changes.

At any time during the progress of the Project, Owner,with the written consent of Tenant,may order modifications, alterations, or deviations in the Work or may order additional work or direct the omission of Work shown in the Contract Documents (an “Owner Change” or a “Change”). If Owner should order an Owner Change, such action shall in no way invalidate the Contract Documents nor shall Owner be required to give notice to any surety or sureties on any bond or bonds required of Contractor. If during the progress of the Project, (a) Contractor encounters concealed hazardous conditions, subsurface conditions, or other unforeseeable condition that is not referenced or described, and not determinable or foreseeable in the geotechnical studies for the Project or the Contract Documents, (b) the Owner mandates unforeseeable conditions or changes to the Work that are not otherwise required for compliance with Applicable Law, or (c) other events occur for which Contractor is entitled to a Change order under the Contract Documents, then Contractor may request a Change to the Work shown in the Contract Documents in (a “Contractor Change” or a “Change”). Owner shall consult with and obtain Tenant’s written consent before initiating an Owner Change or before agreeing to a Contractor Change. § 3.6.2 Impact of Change.

If Owner, with the written consent of Tenant, requests an Owner Change or Contractor requests a Contractor Change, Contractor shall provide to Owner and Tenant, within a reasonable time not to exceed fourteen (14) days, a written estimate of the cost of such Change and estimated time to incorporate it into the Work and the impact, if any, upon the GMP and/or the Project Schedule, all of which Owner may approve or disapprove in its reasonable discretion and written concurrence of Tenant. The Contractor’s written estimate shall include back-up documentation detailing the cost and time to incorporate such Change into the Work.

Upon mutual agreement with respect to a Change, a change order shall be processed by Contractor and delivered to Owner for execution (once approved and executed by Owner, and the written consent of Tenant, a “Change Order”). The provisions of the Contract Documents shall apply to all Change Orders with the same effect as if the Change Orders were embodied in the original Contract Documents.

Disagreements with respect to a Change Order are to be resolved pursuant to the Claims and Disputes section in Article 15 of the General Conditions.
§ 3.6.3 Adjustment of Guaranteed Maximum Price.
.1 Any portion of the Cost of the Work which is not called for by the original Contract Documents and which is authorized by Change Orders, shall include a mark-up above Contractor’s actual cost for such work. Wherever it is indicated that Contractor is entitled to a mark-up, Contractor has agreed that the mark-up for additive Work is fixed at six percent (6%) and the mark-up for deductive work is fixed at six percent (6%) (“Mark-Up”). Contractor’s Mark-Up percentage is expressly all-inclusive of any and all of Contractor’s costs; provided, however, that if such Change Order requires an extension of the Construction Schedule, then Contractor also shall be entitled to the resulting change in cost for general conditions calculated based on the applicable wage rates. For the purposes of this paragraph, “actual cost” is defined as the Contractor’s or Subcontractor’s actual out-of-pocket expense as evidenced by purchase receipts, payroll records, time-cards and or other such information satisfactory to Owner. .2 It is understood and agreed that refinement and detailing may be accomplished from time to time with respect to the construction drawings and specifications. No adjustment in the GMP or the deadline for Substantial Completion of the Project shall be made on account of refinement or detailing that does not involve material changes in the scope, quality, function and/or intent of the drawings and specifications.

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10 .3 If Owner and Tenant, on the one hand, and Contractor on the other, cannot agree upon the cost of a Change otherwise approved by Owner and consented to by Tenant, Contractor shall proceed with the performance of the additional Work required under a construction change directive (“Construction Change Directive”) promptly upon receipt of written notice from Owner. The cost or credit with respect to such Construction Change Directive shall be determined based on the reasonable expenditures and savings of those performing the Work attributable to the Change. In such case, Contractor shall keep and present an itemized accounting together with appropriate supporting data of all costs and time required to perform the Work required by the Construction Change Directive. In the event of any dispute with respect to the method of determining the cost or credit of a Construction Change Directive as set forth in this subparagraph, Owner, Tenant, and Contractor shall work together to resolve such dispute in good faith, and in accordance with any dispute resolution procedures that may be established in the Contract Documents. Pending resolution of such dispute, the Contractor shall perform the Work required by the Construction Change Directive at the cost determined by the Owner and Tenant, subject to a reservation of rights by Contractor. Owner shall consult with Tenant regarding any such resolution. § 3.6.4 Extension of Time.

The time allowed by this Agreement under Project Schedule to complete the Project shall be extended or reduced only by the amount of time increases or decreases as expressly approved by Owner and consented to by Tenant with respect to Changes or Change Orders, and the Project Schedule shall be changed accordingly.
§ 3.6.5 Written Orders Only
Notwithstanding any other provisions of this Article 3 to the contrary, Contractor shall not be entitled to any additional compensation for making the Changes, or to any extensions of time for completing the Project or Work unless the Changes were ordered by a written Change Order, written notice of Construction Change Directive or amendment to this Construction Contract, all signed by Owner and consented to by Tenant in advance, stating that the work qualifies for a Change Order and expressly approving any amount of additional compensation and/or any extension of time for completion of the Project. Any Work performed by Contractor without prior approval of Owner and consent of Tenant will not entitle Contractor to an increase in GMP or an extension of the Project Schedule. § 3.7 Discounts, Rebates and Refunds
Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if (1) before making the payment, the Contractor included them in a request for payment and received payment from the Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be obtained. Amounts that accrue to the Owner in accordance with the provisions of this section shall be credited to the Owner as a deduction from the Cost of the Work. § 3.8 Accounting Records; Audit
The Contractor shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under this Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner’s auditors, and the Tenant and the Tenant’s auditiors, shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Contractor’s records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor’s proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. In addition to the foregoing, in accordance with California Government Code, Section 8546.7, records of both the Owner and Contractor shall be subject to examination and audit by the Auditor General for a period of three (3) years after Final Payment.

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11 § 3.10 Hazardous Materials
The terms and conditions of the General Conditions shall apply to the Construction Phase.

ARTICLE 4 PAYMENTS FOR WORK
§ 4.1. Progress Payments
§ 4.1.1 From Owner. Progress Payments for that portion of the Work to be paid with Bond Proceeds shall be made in accordance with this section and subject to compliance with the General Conditions. Upon receipt of a properly presented payment request to Owner in the form provided in Exhibit “E” hereto (“Payment Application”), the Owner shall process the payment request in accordance with Public Contract Code Section 20104.50, and that no payment shall be approed or denied by Owner without the written concurrence of Tenant. The Owner shall review the Payment Application as soon as possible. If the Owner rejects the Payment Application, it shall be returned to the Contractor within five (5) days of its receipt by the Owner with an explanation for the reasons of its rejection. If the Payment Application is approved in writing by the Owner and the Tenant, payment shall be made in thirty (30) days of receipt of an undisputed and properly presented Payment Application. Late payments shall bear interest at the legal rate of interest in accordance with Code of Civil Procedure 685.010. The Owner shall pay Contractor a sum based upon ninety five percent (95%) of the Agreement price apportionment of the labor and materials incorporated into the work under the Agreement during the period covered by said Payment Application. The remaining five percent (5%) thereof shall be retained as performance security (“Retention Funds”). § 4.1.2 From Tenant. Progress Payments for that portion of the Work to be paid by Tenant shall be in accordance with Section 4.1.1 above, provided that the Payment Application shall be directed to Tenant, with a copy to Owner, and upon the written concurrence of Owner, the Tenant shall process the payment request in accordance with the provisions of the Contract Documents. § 4.2 Terms and Conditions.
§ 4.2.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, and shall be accompanied by lien releases covering the amounts paid and Work performed in the immediately preceding month from the Contractor and any applicable subcontractors receiving a portion of the progress payment, with the lien releases in the form required by law in Exhibit “G” (“Lien Release”). Owner’s receipt of a Lien Release (or Releases) for all payments made in the prior payment period shall be a condition precedent to Owner’s approval of a Payment Application, and the Owner may deny all or any portion of a Payment Application should said Lien Release(s) not be received. § 4.2.2 With each Payment Application, the Contractor shall demonstrate the Cost of the Work incurred through the prior payment request period.
§ 4.2.3 Each request for shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire GMP among the various portions of the Work, except that the Contractor’s Fee shall be shown as a single separate item.

The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule, unless objected to by the Owner, shall be used as a basis for reviewing the Contractor’s requests for payment.
§ 4.2.4 Requests for payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Payment Application. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed, or (2) the percentage

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12 obtained by dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for which the Contractor has made or intends to make actual payment prior to the next request for payment by (b) the share of the GMP allocated to that portion of the Work in the schedule of values.
§ 4.2.5 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows:
.1 Take that portion of the GMP properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the GMP allocated to that portion of the Work in the schedule of values.
.2 Add that portion of the GMP properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; .3 Add the Contractor’s Fee, less retainage of 5% (Five Percent). The Contractor’s Fee shall be computed upon the Cost of the Work;
.4 Subtract retainage of 5% (Five Percent) from that portion of the Work that the Contractor self- performs;
.5 Subtract the aggregate of previous payments made by the Owner; .6 Subtract the shortfall, if any, indicated by the Contractor in the documentation to substantiate prior requests for payment, or resulting from errors subsequently discovered by the Owner’s or Tenant’s auditors in such documentation; and
.7 Subtract amounts, if any, for which the Owner or Tenant has withheld or nullified a certificate for payment.
§ 4.2.6 Payments to Subcontractors shall comply with the progress payment process specified above. § 4.2.7 Except with the Owner’s and Tenant’s prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 4.2.8 In taking action on the Contractor’s requests for payment, the Owner and Tenant shall be entitled to rely on the accuracy and completeness of the information furnished by the Contractor and shall not be deemed to represent that the Owner or Tenant has made a detailed examination, audit or arithmetic verification of the documentation submitted or other supporting data; that the Owner has made exhaustive or continuous on-site inspections; or that the Owner or Tenant has made examinations to ascertain how or for what purposes the Contractor has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner or Tenant, will be performed by the Owner’s or Tenant’s auditors acting in the sole interest of the Owner or Tenant. § 4.3 Retention of Funds
The five percent (5%) in Retention Funds referenced in paragraph 4.1 shall be retained as performance security to be paid to the Contractor within sixty (60) days after final acceptance of the Work by the Owner, after Contractor shall have furnished the Owner with a release of all undisputed Agreement amounts, if required by the Owner. In the event there are any claims specifically excluded by Contractor from the operation of the release, the Owner may retain proceeds (per Public Contract Code 7107) of up to 150% of

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13 the amount in dispute. Owner’s failure to deduct or withhold shall not affect Contractor’s obligations hereunder.
§ 4.4 Final Payment and Closeout
Upon completion of the Work and acceptance of same by the Owner, the Owner shall cause to be recorded a notice of completion with the office of the Los Angeles County Recorder; and, after thirty-five (35) days from the date said notice of completion is recorded, the Owner shall release the Retention Funds; provided there have been no mechanics’ liens or stop notices filed against said work which have not been paid, withdrawn or eliminated as liens against said work, and provided the Contractor has first performed or completed each of the following:
§ 4.4.1 The Contractor has fully performed the Contract except for the Contractor’s responsibility to correct Work;
§ 4.4.2 The Contractor has submitted a final accounting for the Cost of the Work and a request for final payment; and
§ 5.4.3 A final Certificate for Payment has been issued by the Owner. § 5.4.4 The Contractor has assembled and provided a complete closeout package, including but not limited to all warranty letters, operational manuals, special systems training, and punch list. § 4.4.5 The Contractor has provided complete and approved As-Built drawings § 4.4.6 The Owner’s auditors may review and report in writing on the Contractor’s final accounting within 30 days after delivery of the final accounting to the Owner and Tenant by the Contractor. Based upon such Cost of the Work as the Owner’s auditors report to be substantiated by the Contractor’s final accounting, and Owner will either issue to a final Certificate for Final Payment to the Contractor, or notify the Contractor in writing of reasons for withholding a certificate. The Owner is not responsible for verifying the accuracy of the Contractor’s final accounting.
§ 4.4.7 If the Owner’s auditors report the Cost of the Work as substantiated by the Contractor’s final accounting to be less than claimed by the Contractor, the Contractor shall be entitled to request mediation of the disputed amount A request for mediation shall be made by the Contractor within 30 days after the Contractor’s receipt of a copy of the Owner’s final Certificate for Payment. Failure to request mediation within this 30-day period shall result in the substantiated amount reported by the Owner’s auditors becoming binding on the Contractor. Pending a final resolution of the disputed amount, the Owner shall pay the Contractor the amount certified in the Owner’s final Certificate for Payment.

ARTICLE 5 LABOR AND PREVAILING WAGE MATTERS
§ 5.1 Labor Costs – Prevailing Wages.

Contractor and all subcontractors shall pay prevailing wage rates for this Project in accordance with the “General Wage Determination Made by the Director of Industrial Relations (“DIR”) Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1", for Los Angeles County. Wage rates shall conform with those posted at the DIR website and the Project site. The following Labor Code sections are hereby referenced and made a part of this Agreement:
§ 5.1.1 Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates. § 5.1.2 Section 1777.4 - Apprenticeship Requirements.
§ 5.1.3 Section 1777.5 - Apprenticeship Requirements.

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14 § 5.1.4 Section 1813 - Penalty for Failure to Pay Overtime. § 5.1.5 Sections 1810 and 1811 - Working Hour Restrictions. § 5.1.6 Section 1775 - Payroll Records.
§ 5.1.7 Section 1773.8 - Travel and Subsistence Pay.
§ 5.2 Day’s Work.

Contractor acknowledges that under California Labor Code sections 1810 and following, eight (8) hours of labor constitutes a legal day’s work. Contractor will forfeit as a penalty to Owner the sum of $25.00 for each worker employed in the execution of this Agreement by Contractor or any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Labor Code section 1810. (Labor Code § 1813).
§ 5.3 Payroll Records.

Contractor shall maintain the certified payroll records required by Labor Codes Sec. 1776 and shall report such records directly to the California Labor Commissioner as required by Labor Code Sec. 1771.4.

Contractor shall inform the Owner of the location of the records enumerated under Labor Code Sec. 1776, including the street address, city, and county, and shall, within five (5) working days, provide a notice of a change of location and address.
§ 5.4 Employment of Apprentices.

Nothing in this Agreement prevents Contractor or any subcontractor from employing properly registered apprentices in the execution of the Agreement. Contractor is responsible for compliance with Labor Code section 1777.5 for all apprenticeable occupations. This statute requires that Contractor and subcontractors must submit Agreement award information to the applicable joint apprenticeship committee, must employ apprentices in apprenticeable occupations in a ratio of not less than one hour of apprentice’s work for every five hours of labor performed by a journeyman (unless an exception is granted under §1777.5), must contribute to the fund or funds in each craft or trade or a like amount to the California Apprenticeship Council, and that Contractor and subcontractors must not discriminate among otherwise qualified employees as apprentices solely on the ground of sex, race, religion, creed, national origin, ancestry or color. Only apprentices defined in Labor Code section 3077, who are in training under apprenticeship standards and who have written apprentice Agreements, may be employed on public works in apprenticeable occupations.

ARTICLE 6 BONDS AND INSURNACE
§ 6.1 Bonds.
§ 6.1.1 Performance Bond.

Contractor, before commencing work on the Project, shall furnish and file with the Owner, a Performance Bond or bonds in the sum of one hundred percent (100%) of the Agreement price thereof conditioned upon the faithful performance of this Agreement in the form set forth the General Conditions. § 6.1.2 Payment Bond.

Contractor, before commencing work on the Project, shall furnish and file with the Owner, a Payment Bond in the sum of 100% of the Agreement price, conditioned upon the payment of all labor and materials furnished in connection with this Agreement in the form set forth in the General Conditions. § 6.1.2 Warranty Bond.

Contractor, before commencing work on the Project, shall furnish and file with the Owner, a Warranty Bond in the amount of 50% of the Agreement price, conditioned upon the guaranty and warranty of the

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15 work and labor and materials in connection with the work performed on the Project pursuant to this Agreement in the form set forth in the General Conditions. § 6.2 Insurance.
§ 6.2.1 Amounts and Types.

The Contractor shall purchase and maintain insurance of the types and in the amounts, and satisfying the requirements, set forth the General Conditions; and Owner and Tenant shall purchase and maintain the insurance of the types and in the amounts set forth in the General Conditions. Prior to commencing work hereunder, Contractor shall provide the Owner with proof of naming the Owner and each of its directors, officers, agents, and employees as additional- insureds on a policy or policies of insurance providing and maintaining the coverages set forth in the General Conditions. The Owner shall have the right to hold the policies and policy renewals, and Contractor shall promptly furnish to Owner and Tenant all renewal notices and all receipts of paid premiums. Ownerand Tenant may make proof of loss if not made promptly by Contractor.
§ 6.2.2 Evidence of Insurance.

Prior to commencement of the Work. Contractor shall provide to the Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Unreasonable failure to provide such evidence may be cause for termination of the Agreement as provided herein or delay the services’ commencement date. The evidence of insurance shall be U.S. mail or email to:

City of Montebello
Attn: Risk Manager
1600 West Beverly Boulevard
Montebello, CA 90640
Email: [email protected]
ARTICLE 7 – INTENTIONALLY DELETED
ARTICLE 8 DISPUTES AND REMEDIES
§ 8.1 General.

Any claim or dispute between the Owner and Tenant, on the one hand, and Contractor on the other shall be resolved in accordance with the provisions of this Agreement and the General Conditions. § 8.2 Initial Decision Maker.

The parties’ Designated Representatives will serve as the initial decision maker (“Initial Decision Maker”) for claims arising from or relating to the parties’ performance of this Agreement, unless the parties appoint another individual, not a party to the Agreement, to serve as the Initial Decision Maker. § 8.3 Claims of $375,000 or Less.

A claim by the Contractor for a time extension, for money damages for work, or a payment disputed by the Owner must be submitted to a resolution process in accordance with Public Contract Code Sections 20104- 20104.4. A summary of Sections 20104-20104.4 are as follows:
§ 8.3.1 Informal negotiation between the Owner, Tenant and Contractor. § 8.3.2 Mediation with Contractor.
§ 8.3.3 Arbitration if mandated by the Court.

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16 § 8.4.4 Court trial. If the party requesting the court trial does not prevail, then that party must pay all court costs and attorney's fees.
§ 8.4 Public Contract Code 9204 Claims.

Contractor shall comply with the procedure set forth in Public Contract Code section 9204 for any claim, as that term is defined therein, for one or more of the following: 1) a time extension, including, without limitation, for relief from damages or penalties for delay, 2) payment of money or damages arising from work done pursuant to this Agreement, and/or 3) payment of an amount disputed by the Owner under this Agreement. A summary of the provisions of Public Contract Code Section 9204 is as follows:
§ 8.4.1 Contractor must send a claim to the Owner for a time extension, payment for work not in the Agreement, or payments disputed by the Owner by registered mail or certified mail with return receipt requested.
§ 8.4.2 The Owner must respond within 45 days as to which claims are disputed and undisputed. § 8.4.3 If claim remains in dispute, Contractor may request informal meet and confer meeting with the Owner.
§ 8.4.4 After meet and confer, any disputed claim remaining shall be submitted to non-binding mediation. § 8.4.5 All undisputed claims shall be paid within 60 days. § 8.5 Not Used.
§ 8.6 Termination for Convenience.

The Owner may terminate this Agreement, in whole or in part, with thirty (30) days’ prior written notice to Contractor when it is in the Owner’s best interest, with the Compensation due Contractor upon termination to be determined in accordance with the General Conditions. If Contractor has any property in its possession belonging to the Owner, Contractor will account for the same, and dispose of it in the manner the Owner directs. Contractor may terminate this Agreement, in whole, with ninety (90) days’ written notice to the Owner.
§ 8.7 Failure to Prosecute Work to Completion.

In the event Contractor fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if Contractor for a period of ten (10) calendar days after receipt of written demand from the Owner or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said ten (10) calendar days, fails to continue to do so; then the Owner may exclude Contractor from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this Agreement or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by the Owner to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by the Owner, shall be a charge against Contractor, and may be deducted from any money due or becoming due to Contractor from the Owner, or Contractor shall pay the Owner the amount of said charge, or the portion thereof unsatisfied. The sureties provided for under this Agreement shall become liable for payment should Contractor fail to pay in full any said cost incurred by the Owner.

9.8 Waiver of Remedies for any Breach.

In the event that the Owner elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Agreement, such waiver by the Owner shall not limit the Owner’s remedies for any succeeding breach of that or of any other term, covenant, or condition of the Agreement.

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17 9.10 Attorneys’ Fees and Costs.

If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 10 MISCELLANEOUS PROVISIONS
§ 10.1 Terms; Meaning.

Terms in this Agreement shall have the same meaning as those in the General Conditions. § 10.2.2 Access.

The Owner and Tenant shall be entitled to access copies of the Data in whatever form, including, without limitation CAD, at all times during the term of the Agreement. Any such Data in the possession of the Contractor or in the possession of any Subcontractor upon completion or termination of the Agreement shall be immediately delivered to the Owner with a copy to Tenant. If any Data are lost, damaged or destroyed before final delivery to the Owner and Tenant, the Contractor shall replace them at its own expense and the Contractor assumes all risks of loss, damage or destruction of or to such Data.. § 10.3 Proprietary or Confidential Information of Owner or Tenant. § 10.3.1 The Contractor understands and agrees that, in the performance of the Work under this Agreement or in contemplation thereof, the Contractor may have access to private or confidential information which may be owned or controlled by, or otherwise in the possession of, the Owner or Tenant and that such information may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to the Owner or Tenant. The Contractor agrees that all information disclosed by the Owner or Tenant to the Contractor shall be held in confidence and used only in the performance of the Agreement.

The Contractor shall exercise the same standard of care to protect such information as the Contractor uses to protect its own proprietary information and in any case no less than a reasonably prudent person or entity would use to protect its own proprietary data.
§ 10.3.2 It is understood, however, that the Contractor may disclose the Owner’s or Tenant’s confidential information on a “need to know” basis to the Contractor’s employees, the Contractor’s Subcontractors, and the Subcontractors’ employees, and as required by law. Contractor shall execute written agreements with its Subcontractors that bind each Subcontractor and its employees to the confidentiality provisions set forth in this Agreement.
§ 10.3.3 The Contractor shall acquire no right or title to the confidential information. The Contractor agrees not to use the confidential information for any purpose except to provide the Services. Notwithstanding the foregoing, the Contractor may disclose the confidential information: (i) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it or as appropriate to respond to any summons or subpoena applicable to it; provided, however, that the Contractor first gives reasonable notice of its intention to disclose in order for the Owner or Tenant to seek a protective order; or (ii) to the extent necessary to enforce its rights under this Agreement.
§ 10.3.4 The Contractor agrees that monetary damages are inadequate to remedy any breach or threatened breach of this Section and, accordingly, consents to injunctive relief for any breach or threatened breach

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18 hereof without the posting of any bond.
§ 10.4 Governing Law
This Agreement and Contract Documents shall be governed by California law without regard to any conflict of law rules that would direct the application of the laws of any other jurisdiction. The Contractor irrevocably consents to personal jurisdiction in California. § 10.5 Indemnify, Defense, and Hold Harmless
§ 10.6.1 To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless Owner, and its elected officials, employees, agents, volunteers and officers, and Tenant, and its employees, agents, volunteers and officers, from any and all liabilities, claims, suits, actions, arbitration proceedings, administrative proceedings, stop notices, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged, or threatened, actual attorneys fees incurred, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation incurred in relation to, as a consequence of, arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part to the Contractor’s performance of this Contract, but only to the extent caused by the negligence or wilful misconduct of Contractor. § 10.6.3 Without affecting the rights of Owner or Tenant under any provision of this Agreement or this section, Contractor shall not be required to indemnify and hold harmless Owner or Tenant as set forth above for liability attributable to the respective fault or negligence of Owner and Tenant. § 10.6.5 The obligations of Contractor under this or any other provision of this Contract will not be limited by the provisions of any workers compensation act or similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to Owner, its employees, agents and officials, and as to Tenant, its employees, agents, and officials.
§ 10.7 Stop Services Order
§ 10.7.1 The Owner may, at any time, by delivery of a Stop Services Order to the Contractor, require the Contractor to stop all, or any part, of the Work pursuant to this Agreement, for a period up to ninety (90) days after the Stop Services Order is delivered to the Contractor, and for any further period to which the parties may agree. The Stop Services Order shall be specifically identified as such and shall indicate it is issued under this section. Upon receipt of the Stop Services Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the Work covered by the Stop Services Order during the period of Work stoppage. § 10.7.2 Neither Owner nor Tenant shall be liable to the Contractor for any loss of profits because of the Stop Services Order issued under this provision unless expressly specified in the Stop Services Order; however, Contractor shall be entitled to a Change Order adjusting the GMP and Contract Time as necessary due to a Stop Services Order or other delay for which the Owner is responsible under the Contract Documents
§ 10.8 Neither party shall be liable to the other for any delay in or failure of performance, nor shall any such delay in or failure of performance constitute default, if such delay or failure is caused by Force Majeure. Force Majeure, for purposes of this paragraph, is defined as follows: acts of war and acts of God, such as earthquakes, floods, and other natural disasters or events beyond Contractor’s control. § 10.9 Nondiscrimination/No Harassment Provisions and Compliance. § 10.9.1 Nondiscrimination. The Contractor and its Subcontractors shall not unlawfully discriminate

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19 against any employee or applicant for employment because of race, creed, religion, color, national origin, ancestry, physical or mental disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), medical condition, marital status, age (over 40), sex, sexual orientation, gender identity, or domestic partner status. The Contractor and its Subcontractors shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. § 10.9.2 No Harassment. The Contractor and its Subcontractors shall not engage in unlawful harassment, including sexual harassment, with respect to any persons with whom the Contractor or its Subcontractors interact in the performance of this Agreement. The Contractor and its Subcontractors shall take all reasonable steps to prevent harassment from occurring.
§ 10.9.3 FEHA. The Contractor shall comply with the provisions of the Fair Employment and Housing Act, California Government Code, Sections 12990 et seq., and the applicable regulations promulgated under California Code of Regulations, title 2, Sections 7285 et seq . The applicable regulations of the Fair Employment and Housing Commission implementing California Government Code, Section 12990, set forth in chapter 5 of division 4 of title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part of it as if set forth in full. § 10.9.4 Compliance with Americans with Disabilities Act. The Contractor shall comply with applicable provisions of the Americans with Disabilities Act (“ADA”) of 1990 (42 U.S.C. Section 12101 et seq.), which prohibits discrimination on the basis of disability, as well as with all applicable regulations and guidelines issued pursuant to the ADA.
§ 10.9.5 Notice to Labor Organizations. The Contractor and any of its Subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
§ 10.9.6 Compliance. The Contractor shall include the nondiscrimination, no harassment, and compliance provisions of this section in any and all subcontracts issued to perform Services under this Agreement.

Contractor has, unless exempt, complied with the nondiscrimination program requirements. (Government Code, Section 12990 (subdivisions a-f) and CCR, Title 2, Section 8103 et seq.) § 10.10 Prohibited Financial Conflict of Interest. The Contractor and its Subcontractors presently have no interest and will not acquire any interest which would present a conflict of interest pursuant to California Government Code sections 1090 et seq. and 87100 et seq. during the performance of Services pursuant to this Agreement. The Contractor further certifies that, to the best of its knowledge after due inquiry, no employees or agents of the Owner are now, nor in the future will they be, in any manner interested directly or indirectly in this Agreement, or in any profits expected to arise from this Agreement, as set forth in California Government Code sections 1090 et seq. and 87100 et seq. § 10.11 Conflict of Interest for Former Owner Employees. The Contractor certifies and shall require any Subcontractor to certify to the following: Former Owner employees will not be awarded a contract for two (2) years from the date of separation if that employee had any part of the decision making process relevant to the contract, or for one year from the date of separation if that employee was in a policy making position in the same general subject area as the proposed contract within the twelve (12) month period of his or her separation from Owner service.
§ 10.12 Independent Contractor. Contractor is and shall at all times remain as to the Owner and Tenant a wholly independent Contractor. Neither the Owner, Tenant, nor any of their officers, employees or agents shall have control over the conduct of Contractor or any of Contractor’s officers, employees or agents, except as herein set forth. Contractor shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the Owner, nor shall

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20 the Owner or Tenant officers, employees or agents be deemed the officers, employees, or agents of Contractor as a result of this Agreement.
§ 10.13 Notice. All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered via e-mail (an “Electronic Notice” as further defined below), personally or on the second (2nd) business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals hereunder shall be given to the following addresses or such other addresses as the Parties may designate by written notice:

To the OWNER: City of Montebello
Attn: René Bobadilla, City Manager
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-1200
Email: [email protected]
With copy to: City of Montebello – Department of Public Works Attn: James Enriquez, P.E., Director/City Engineer
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-1462
Email: [email protected]
mailto:[email protected]
To Contractor: McCarthy Building Companies, Inc.

Attn: Mark Greil
20401 SW Birch Street
Newport Beach, CA 9266
949-728-8627
Email: [email protected]
To Tenant Topgolf USA MB, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Attn: Elizabeth E. Bonesio, Esq.

E-mail: [email protected]
Attn: Jonathan Olsen, Esq.

E-mail: [email protected]
An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this section if sent to the electronic mail address specified above. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form.
§ 10.14 Other provisions:
.1 Labor Code Compliance. Any constructor or subcontractor who is ineligible to perform work on a public works project pursuant to Section 1777.1 or 1777.7 of the Labor Code is prohibited from

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21 performing work under this Agreement. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. No prime contractor or subcontractor may be awarded an agreement for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractor will be required to post job site notices as described in 8 California Code of Regulation section 16451(d). .2 Lawful Employment. Contractor hereby promises and agrees to comply with all of the provisions of Federal and/or State law as the same shall apply to this Project pertaining to the employment of unauthorized aliens as defined therein. Should Contractor so employ unauthorized aliens for the performance of work and/or services covered by this Agreement, and should the Federal Government impose sanctions against the Owner for use of unauthorized aliens, Contractor hereby agrees to, and shall, hold harmless, indemnify and defend Owner for the cost of all such sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by the Owner in connection therewith. .3 Trench and Pipeline Safety . If this Agreement is for more than $25,000 and involves excavation of any trench five feet or more in depth, Contractor shall submit a detailed plan of shoring, bracing, sloping or other provisions to be made for worker protection in accordance with Labor Code Section 6705. Such plan shall be approved by a qualified representative of the Owner. .4 Temp Heating and Cooling.The Owner shall allow the use of portions of the new heating, cooling, or ventilation systems to provide temporary heat, cooling or ventilation prior to Substantial Completion. Any systems so used shall be provided with temporary filters, and new filters installed prior to acceptance.

5. Utility Relocation. Owner or Tenant, as agreed between then, are responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the Plans and Specifications. The Owner or Tenant, as agreed between them, shall reimburse Contractor for any costs incurred in locating, repairing damage not caused by Contractor and removing or relocating such unidentified utility facilities, including equipment idled during such work. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
.6 Third Party Claims Notification. The Owner shall timely notify Contractor in writing of any third-party claims relating to the Agreement of which Owner is aware, and Contractor shall notify Owner of any third-party claims relating to the Agreement of which Contractor becomes aware. .7 Unfair Business Practices Claims. The Contractor or subcontractors offers and agrees to assign to the Owner 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 purchases of goods, services or materials pursuant to the public works Agreement or the sub-Agreement. This assignment shall be made and become effective at the time the Owner renders final payment to Contractor without further acknowledgment by the parties. (Section 7103.5, California Public Contract Code.). .8 Submitting False Claims; Monetary Penalties. The Owner shall be entitled to remedy any false claims, as defined in California Government Code section 12650 et seq., made to the Owner by the Contractor or any Subcontractor under the standards set forth in Government Code section 12650 et seq.

Any Contractor or Subcontractor who submits a false claim shall be liable to the OWNER for three times the amount of damages that the OWNER sustains because of the false claim. A Contractor or Subcontractor who submits a false claim shall also be liable to the Owner for (a) the costs, including attorney fees, of a

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22 civil action brought to recover any of those penalties or damages, and (b) a civil penalty of up to $10,000 for each false claim.
.9 Standard of Care. The Contractor, its officers, agents, employees, Subcontractors, consultants and any persons or entities for whom Contractor is responsible, shall provide all Services pursuant to this Agreement in accordance with the requirements of this Agreement and in a manner consistent with the standard of care under California law applicable to those who specialize in providing such services for projects of the type, scope, and complexity of the Project. The Owner’s or Tenant’s acceptance of any submittals, deliverables, or other work product of the Contractor shall not be construed as assent that Contractor has complied, nor in any way relieve the Contractor of, compliance with (i) the applicable standard of care or (ii) applicable statutes, regulations, rules, guidelines, and requirements. .10 Cumulative Remedies. The remedies set forth in this Agreement are cumulative and in addition to and not in limitation of any rights or remedies available to the Owner at law or in equity. .11 Counterparts. This Agreement may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes. .12 Authority. Any person executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.

ARTICLE 11 SCOPE OF THE AGREEMENT
§ 11.1 This Agreement represents the entire and integrated agreement between the Owner and Tenant, on the one hand, and the Contractor on the other, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner, Tenant and Contractor.
§ 11.2 The following Exhibits are included in this Agreement:

Exhibit A: General Conditions
Exhibit B: Plans and Specifications
Exhibit C: Performance Schedule, within attached document which includes the following:
1- Project Summary
2- Topgolf Statement of Values
3- Subcontractor Listing
4- Clarifications and Assumptions
5- Value Analysis Log
6- Allowance Log
7- Project Schedule
8- Document Listing
9- Logistics Plan
Exhibit D: Contractor’s GMP (within Exhibit C)
Exhibit E: Payment Application
Exhibit F: Responsibility Matrix (within Exhibit C)
Exhibit G: Lien Releases

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23 This Agreement is entered into as of the day and year first written above.

OWNER (Signature) CONTRACTOR (Signature)
City of Montebello.

BY:

NAME
« »« »

MCCARTHY BUILDING COMPANIES, INC
BY:James Madrid , Executive Vice Presiden
(Printed name and title) (Printed name and title)
By signing this Agreement, Tenant is obligating itself only to the obligations specifically undertaken by Tenant under the Contract Documents.
_______________________________________
TENANT (Signature)
TopGolf USA MB, LLC
a Delaware limited liability company
BY: __________________________
NAME _______________________
(Printed name and title)

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24 EXHIBIT A
Identification of General Conditions
[Attach General Conditions of the Contract for Construction for Montebello Driving Range Project – Topgolf Montebello]

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25 [INTENTIONALLY BLANK]

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General Conditions of the Contract for Construction for Montebello Driving Range Project – Topgolf Montebello
for the following PROJECT:
(Name and location or address)
Montebello Driving Range Project - TopGolf Montebello
901 Via Clemente
Montebello, CA 90640
THE OWNER:
(Name and address)
TopGolf USA, Inc.
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
THE TENANT:

TopGolf USA MB, LLC
8750 N. Central Expressway, Suite 1200
Dallas, Texas 75231
Designated Representative: Kevin Miner
The Contractor:

McCarthy Building Companies, Inc.
20401 SW Birch Street
Newport Beach, CA 9266
Attn: James Madrid, Executive Vice President
Designated Representative: James Madrid, Executive Vice President THE ARCHITECT:
(Name and address)
Aria Group Architects, Inc.
830 North Boulevard
Oak Park, Illinois 60301

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ARTICLE 1 GENERAL PROVISIONS
§ 1.1 BASIC DEFINITIONS
§ 1.1.1 [INTENTIONALLY DELETED]
§ 1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Change. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub- subcontractor, (3) between the Owner and the Architect or the Architect’s consultants or (4) between any persons or entities other than the Owner, Tenant (but only to the extent specifically obligated) and the Contractor.
§ 1.1.3 THE WORK
The term “Work” means the construction and services required by and subject to the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work constitutes part of the Project. No new Work of any kind performed hereunder shall be considered as extra Work outside the scope of the Contract unless a separate estimate is given for said Work before it is commenced, and it has been ordered under one of the three methods set forth in the Contract Documents. Except for extra Work ordered by the Owner and consented to by Tenant according to unit prices or by changes or additions in the Work embraced in a Change Order issued by it, any extra Work performed will not be paid for by the Owner or Tenant.
§ 1.1.4 THE PROJECT
The Project is the total construction of which the Work performed by Contractor under the Contract Documents may be the whole or a part and which may include construction by the Owner or Tenant and by separate contractors.
§ 1.1.5 THE PLANS
.1 The Plans are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams.
.2 The Contractor shall keep one (1) complete and up-to-date set of prints at all times on the job, reserved for use as a record set of changes from the bid set. Throughout the duration of the construction work, this set of prints shall be the responsibility of the Contractor to maintain as a record of all field changes including underground runs, which are installed in locations other than those indicated on the Contract Plans and those that have been indicated as to be field run as located. The lines shall be located on the Plans dimensionally from a fixed point, such as a street-curb line, or centerline, or a permanent structure. A copy of the updated as-built prints and as-built specifications shall be made available to the Owner and Tenant with the monthly progress payment requests.
.3 Contractor progress payment will be contingent upon the as-built Plans and specifications being maintained in current status, and the Owner will not approve progress payments unless these as-built Plans and specifications are current.
.4 As a condition to certifying the final payment under this Contract, within 30 calendar days after substantial completion, the Contractor will submit to the Owner, with a copy to Tenant, the original set of as-built prints as well as the set of as-built specifications. If needed, a complete set of blue line prints of the Plans will be furnished to the Contractor for which the as-built drawings are required. All variations from the Contract Plans and any additional information required by the Specifications shall be entered on the as-

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built drawings and specifications as they occur, neatly and legibly, in ink of a contrasting color or otherwise marked as approved by the Owner. Each set of as-built drawings and specification shall be signed and dated before being accepted by the Owner representative at the completion of the Work. § 1.1.6 THE SPECIFICATIONS
.1 The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.
.2 Where these Specifications or the Building Code stipulate that a material shall conform to the American Society for Testing Materials (ASTM) specifications or other recognized standards, the Contractor shall, when so required, deliver to the Owner an affidavit or certificate in triplicate, signed by the manufacturer or supplier that the material furnished conforms to specifications or standards mentioned. When tests are required, the results of such tests shall be delivered to the City. .3 References to the "Building Code" are to the edition of the applicable Building Code listed on the drawings, including any amendments thereto.
.4 Where devices or items, or parts thereof are referred to in the singular, it is intended that such reference shall apply to as many such devices, items, or parts as are required to properly complete the Work.
§ 1.1.7 INSTRUMENTS OF SERVICE
Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Architect and the Architect’s consultants under their respective professional services agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials. § 1.1.8 INITIAL DECISION MAKER
The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in accordance with Section 15.2 and certify termination of the Agreement under Section 14.2.2. § 1.1.9 “GMP” as used herein, refers to the Guaranteed Maximum Price. § 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 1.2.1 Performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary and required of Contractor to produce the indicated results.
§ 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade.
§ 1.2.3 Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings.
§ 1.3 CAPITALIZATION
Terms capitalized in these General Conditions include those that are (1) specifically defined, (2) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects.

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§ 1.4 INTERPRETATION
In the interest of brevity the Contract Documents frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § 1.4.1 Role of City Engineer.

The City Engineer, or his/her authorized representative, in consultation and collaboration with Tenant, will interpret the meaning of any part of the Drawings and Specifications about which any misunderstanding may arise. Should there appear to be any inconsistency or discrepancy in or between the Drawings and Specifications, the Contractor shall refer the matter to the City Engineer, and then proceed without delay to complete the Work under question after the matter has been resolved by the City Engineer. Should the Contractor proceed with the Work without referring the matter to, or obtaining resolution from the City Engineer, Contractor does so on Contractor's own responsibility and without recourse to the City or City's employees, agents, etc. If the Contractor disagrees with the interpretation of the City Engineer, or his/her authorized representative, they shall promptly, and within seven (7) days after receipt of the interpretation, file a Claim under these General Conditions requesting reconsideration. § 1.5OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS § 1.5.1 The Architect and the Architect’s consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Drawings and Specifications, and will retain all common law, statutory and other reserved rights, including copyrights. The Contractor, Subcontractors, Sub- subcontractors, and material or equipment suppliers shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect’s or Architect’s consultants’ reserved rights.
§ 1.5.2 The Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to use and reproduce the Instruments of Service provided to them solely and exclusively for execution of the Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers may not use the Instruments of Service on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Tenant, Architect and the Architect’s consultants.
§ 1.6 TRANSMISSION OF DATA IN DIGITAL FORM
If the parties intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions, unless otherwise already provided in the Agreement or the Contract Documents.

ARTICLE 2 OWNER
§ 2.1 GENERAL
§ 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner’s approval or authorization. Except as otherwise provided herein, the Architect and Tenant do not have such authority. The term “Owner” means the Owner or the Owner’s authorized representative. § 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic’s lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner’s interest therein.

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§ 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER AND TENANT § 2.2.1 [Intentionally Deleted].
§ 2.2.2 Contractor shall secure and pay for necessary permits, approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities.
§ 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work.
§ 2.2.4 The Owner and Tenant shall each furnish information or services required of them by the Contract Documents with reasonable promptness and so as not to delay the progress of the Work. The Owner and Tenant shall each also furnish any other information or services under the Owner’s or Tenant’s respective control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services. § 2.2.5 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one copy of the Contract Documents for purposes of making reproductions pursuant to Section 1.5.2 at no charge. § 2.3 OWNER’S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.4 OWNER’S RIGHT TO CARRY OUT THE WORK
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a ten-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness or to cure within a timeframe approved by the Owner, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner’s reasonable expenses and reasonable compensation for the Architect’s additional services made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner.

ARTICLE 3 CONTRACTOR
§ 3.1 GENERAL
§ 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract. The term “Contractor” means the Contractor or the Contractor’s authorized representative. § 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. § 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Tenant, or by tests, inspections or approvals required

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or performed by persons or entities other than the Contractor, except for such activities or duties assumed by Owner under the Contract Documents.
§ 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3.2.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with observable conditions of the site and conditions set forth in the Contract Documents under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents.
§ 3.2.2 Because the Contract Documents are complementary, the Contractor shall at a time appropriate to the performance of each portion of the Work, review the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Owner and Tenant any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information in such form as the foregoing parties may require. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a construction manager including without limitation its responsibility for construction means and methods as described in Section 3.3.1 and not as a licensed design professional. § 3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, codes as required by current law, rules and regulations, or lawful orders of public authorities, but the Contractor shall promptly report to the Owner and Tenant, any nonconformity discovered by or made known to the Contractor as a request for information in such form as the foregoing parties may require.
§ 3.2.4 If the Contractor believes that additional cost or time is involved because of clarifications or instructions the Owner issues in response to the Contractor’s notices or requests for information pursuant to Sections 3.2.2 or 3.2.3, the Contractor shall make Claims as provided in Article 15. If the Contractor fails to perform the obligations of Sections 3.2.2 or 3.2.3, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. If the Contractor performs those obligations, the Contractor shall not be liable to the Owner or Tenant for damages resulting from errors, inconsistencies or omissions in the Contract Documents, for differences between field measurements or conditions and the Contract Documents, or for nonconformities of the Contract Documents to applicable laws, statutes, ordinances, codes as required by current law, rules and regulations, and lawful orders of public authorities and the Contractor shall be entitled to make Claims for any rework required pursuant to Article 15.
§3.2.5. Contractor shall promptly notify Owner and Tenant, in writing, of potential impediments to Contractor's ability to comply with the requirements of the Contract Documents to allow Owner the maximum opportunity to address and respond to them to avoid impact to the Work. § 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
§ 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention.

The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating the construction operations of all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Tenant and shall

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not proceed with that portion of the Work without further written instructions from Owner. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor the Contractor shall not be responsible for any loss or damage arising from those Owner-required means, methods, techniques, sequences or procedures. § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors. § 3.3.3 The Contractor shall be responsible for a visual inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. § 3.4 LABOR AND MATERIALS
§ 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4.2 Except in the case of minor changes in the Work authorized by the Owner in accordance with Sections

3.12.8 or 7.4, the Contractor may make substitutions only with the consent of the Owner, after evaluation by the Tenant and in accordance with a Change Order or Construction Change Directive. § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them. Contractor shall comply with employment eligibility verification requirements applicable to the Project, and shall not employ any person who is not legally eligible for employment.
§ 3.4.3 None but workers skilled in the various trades required on this contract shall be employed upon the Work. Any mechanic or laborer employed upon the Work who, in the opinion of the Owner, is non- cooperative or who shall prove careless or incompetent, shall be immediately removed from the Work by the Contractor, when notified to do so, and shall not be re-employed upon the Work. § 3.4.4 In the event that certain materials or equipment specified are entirely unobtainable or not obtainable in sufficient quantities or within a reasonable time, due to Federal Government restrictions or other causes growing out of the national defense or war programs or pandemic related issues, the awarding entity may permit the use of equal and equivalent materials of other type of manufacture in their place. Before such substitutions can be made, the Contractor shall submit a written statement to the awarding entity setting forth in full the reasons why the materials specified are unobtainable and describing in full the materials which he proposed to supply in their place. Substitutions shall not be made until the approval of the awarding entity and Tenant, in writing, has first been obtained. Should a specified item not be obtainable due to product unavailability, the awarding entity may permit the use of equal and equivalent materials of other type of manufacture in their place. Contractor shall follow the Change procedure to obtain approval. § 3.4.5 HOURS OF WORK:

Work in excess of eight (8) hours per day will be permitted by employees of contractors under this Contract only so long as Section 1815 of the Labor Code of California is complied with by such contractors. § 3.4.6 SATURDAY, SUNDAY, HOLIDAY, AND OVERTIME WORK:
.1 No construction Work shall be done on Saturdays, Sundays, or holidays recognized by the City government and no Work shall be performed outside of normal Working hours without the consent of the City Engineer, unless required under these specifications. In any event, all Work shall be subject to

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approval of the City. Prior to the start of such Work, the Contractor shall arrange with the City for the continuous or periodical inspection of the Work and tests of materials, when necessary. If requests are made by contractors for permission to Work overtime, nights, Saturdays, Sundays, or holidays, and such requests are granted, the Contractor shall bear all extra expense to the City or the awarding entity for inspection and other incidental expenses caused by such overtime work. If Contractor is requested, in the interest of the awarding entity, to work overtime by the City; or if overtime Work is specifically required by these Specifications, all extra expense of inspection will be paid by the City. Should the Contractor find it necessary in order to complete the Work according to schedule to perform certain of Contractor's operations on Saturdays, Sundays, holidays or overtime, these operations shall be performed as part of the Work included in the contract price and shall not constitute a basis for additional payments. Refer to above paragraph for the obligations for the Contractor to assume the cost of inspections. .2 The City reserves the right to order in writing Work outside of normal working hours to avoid inconvenience of occupants of existing facilities or to perform special operations that, in the judgment of the City best serve the intent of the Contract Documents and the orderly prosecution of the Work. If the City elects to order Work outside of normal working hours, the Contractor shall make all arrangements to supply an adequate Work force for the task to be accomplished and will be compensated for the premium portion of the wages paid, plus labor burdens applicable to the premium portion only of the wages paid.

Contractor shall submit copies of Contractor's payrolls indicating the premium wages actually paid, and the City will issue a Change Order to reimburse the Contractor for Contractor's actual costs only. § 3.4.7. PREVAILING WAGE SCALE:
.1 The Contractor shall comply with all provisions of the Labor Code of the State of California.
.2 Under the provisions of said Labor Code, the State Department of Industrial Relations will ascertain the prevailing hourly rate in dollars and details pertinent thereto for each craft, classification or type of workers, or mechanic needed to execute any contract which may be awarded by the awarding entity.
.3 Particulars of the current Prevailing Wage Scale, which are applicable to the Work contemplated under these Specifications, are filed with the City and must be posted at the project site. § 3.4.8 EMPLOYMENT OF INDENTURED APPRENTICES:
.1 Contractor shall comply with Section 1777.5 and 1777.7, Labor Code, State of California.
.2 All Contractors shall employ registered apprentices at a ratio of not less than one hour of apprentice's work for every five hours of labor performed by a journeyman. Contractors shall be responsible for the compliance of all Subcontractors.
.3 Contractor and Subcontractors shall keep an accurate record showing the name of the craft and wage rate of each apprentice and journeyman employed by each entity. Subcontractor shall provide, weekly, such records to the Contractor. Records shall be made available to the Division of Apprenticeship Standards and the City or the awarding entity, for the purpose of determining compliance.

Failure to comply may result in withholding payments and other penalties as provided by the Labor Code. § 3.4.9 AFFIRMATIVE ACTION PLAN FOR EQUAL EMPLOYMENT OPPORTUNITY:
.1 The following provisions pertaining to equal employment opportunity are incorporated

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into this Contract. All references herein to "Contractor" shall be deemed to refer to the "general" Contractor. .2 During the performance of any construction Contract in excess of $10,000, the Contractor agrees as follows:
.3 The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor certifies and agrees that all persons employed by such firm, Contractor's affiliates, subsidiaries, or holding companies are, and will be, treated equally by the firm without regard to or because of race, color, religion, sex, or national origin and in compliance with all anti-discrimination laws of the United States of America and the State of California. .4 In all advertisements for labor or other personnel, or requests for employment of any nature, the Contractor shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. .5 The Contractor shall deal with Contractor's Subcontractors without regard to or because of race, color, religion, sex or national origin.
.6 The Contractor shall comply with current Federal employment and reporting requirements for City-funded construction contracts. Specifically, the Contractor shall make a good faith effort to comply with federal employment goals for minority and female employment and shall report minority and female employment data in a timely manner on the federal form provided by the contract awarding authority.
.7 The Contractor shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract of understanding, a notice, to be provided by the contract awarding authority, advising the said labor union or workers' representative of the Contractor's commitments under this section.
.8 The Contractor shall allow the City access to Contractor's employment records during regular business hours to verify compliance with these provisions when so requested by the City. .9 The Contractor agrees that if the City finds that any of the above provisions has been violated, the same shall constitute a material breach of contract upon which the City may determine to cancel, terminate, or suspend the Contract. While the City reserves the right to determine independently that the anti-discrimination provisions of the Contract have been violated, in addition, a determination by the Federal Equal Employment Opportunity Commission or the California Fair Employment and Housing Commission that the Contractor has violated federal or state anti-discrimination laws may constitute a finding by the City that the Contractor has violated the anti-discrimination provisions of the Contract. .10 At City's option, and in lieu of canceling, terminating, or suspending the Contract, the City may impose damages for any violation of the anti-discrimination provisions of this paragraph, in the amount of two hundred dollars ($200) for each violation found and determined. The City and Contractor specifically agree that the aforesaid amount shall be imposed as liquidated damages, and not as a forfeiture or penalty. It is further specifically agreed that the aforesaid amount is presumed to be the amount of damages sustained by reason of any such violation, because, from the circumstances and the nature of the violation, it is impracticable and extremely difficult to fix actual damages. .11 The Contractor shall include the provisions of the foregoing Paragraphs 1. through 8 in every subcontract, so that such provisions will be binding upon each Subcontractor performing Work required by this contract.
§ 3.4.10 PAYROLL RECORDS:
.1 The Contractor shall comply with the requirements of Section 1776 of the Labor Code, State of

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California. The Contractor and its subcontractors shall maintain payroll records as enumerated in Labor Code Section 1776 (a). When requested by the City, the Contractor and its subcontractors shall submit to the City a copy of all weekly certified payrolls, indicating that the wage rates are not less than those determined by the State of California Department of Industrial Relations and the classifications set forth for each laborer or mechanic conform with the Work they performed. Contractor shall submit a weekly payroll report" (Form 347, A-1-131, or similar) shall accompanied by a written declaration, made under penalty of perjury. The Contractor shall be responsible for the submission of copies of payrolls for all subcontractors within ten (10) days after their payroll period. Failure of the Contractor to comply with the Labor Code requirements to pay prevailing wages and to maintain certified payroll records may result in withholding from progress payments amounts for underpaid wages and penalties as authorized by the Labor Code. .2 When requested by the City, the Contractor, all subcontractors, and some subconsultants will be required to submit certain certified payrolls and labor compliance documentation electronically at the discretion of, and in the manner specified by the City. .3 Electronic submittal will be a web-based system, accessed on the World Wide Web by a web browser. The Contractor, its subcontractors, and certain subconsultants will be given a log on identification and password to access the web-based labor compliance reporting system. .4 Use of the web-based system will entail additional data entry of weekly payroll information including; employee identification, labor classification, total hours worked and hours worked on this project, wage and benefit rates paid, etc. In addition, the Contractor may use payroll and accounting software that is capable of interfacing with the web-based system. The payroll and accounting software must be capable of generating a 'comma delimited file' or 'comma separated value (CSV) file' that will interface with the web- based system.
.5 This requirement applies to all subcontractors, subconsultants, and vendors required to submit certified payrolls and provide labor compliance documentation. The information may be used to provide statistical informational data to public or jurisdictional agencies. § 3.5 WARRANTY
The Contractor warrants to the Owner and Tenant that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise for a period of one (1) year following Substantial Completion. The Contractor further warrants that for such one (1) year period the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents or instructions from Owner or Tenant require or permit. Work, materials, or equipment not conforming to these requirements may be considered defective. The Contractor’s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. Other than the foregoing warranty, Contractor makes no other warranty or representation for Work. Longer term warranties that may be required by the Contract Documents shall be provided directly by the relevant subcontractor, vendor or manufacturer directly to Owner and Contractor shall have no responsibility for such extended warranties.

Contractor’s rights to payment and reimbursement of Costs of the Work are expressly available to Contractor for Work performed under this Section.
§ 3.6 TAXES
The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect.

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§ 3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS
§ 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit as well as for other permits, fees, licenses, and inspections by government agencies necessary for proper execution and completion of the Work that are customarily secured after execution of the Contract and legally required at the time bids are received or negotiations concluded. Contractor represents that it is qualified and, as necessary, licensed to perform the Work. Contractor's failure to possess and maintain all necessary licenses shall constitute a default and material breach of this Agreement. To comply with Section 3800 of the Labor Code of the State of California, the Contractor and all Subcontractors requiring a permit (building, plumbing, grading, electrical, etc.) shall file a Workers' Compensation Certificate with the Department of Public Works.
§ 3.7.2 The Contractor shall comply with and give notices as required by then current applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work. Contractor is responsible for scheduling inspections related to the Work and ensuring that Work is complete for inspections.
§ 3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes as required by current law, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. § 3.7.4 Concealed or Unknown Conditions.

If the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents in the relevant location, the Contractor shall promptly provide notice to the Owner and the Tenant before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Owner will promptly investigate such conditions and, if the Owner determines that they differ and cause an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum. Guaranteed Maximum Price or Contract Time, or all of the foregoing. If the Owner determines that the conditions at the site are not different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall notify the Contractor in writing within seven (7) days of Contractor’s notification under this section, stating the reasons. If the Owner and Contractor cannot agree on an adjustment in the Contract Sum, GMP or Contract Time, the adjustment shall be referred to the Initial Decision Maker for an initial determination, subject to further proceedings pursuant to Article 15. If either party disputes the Initial Decision Maker’s determination or recommendation, that party may proceed as provided in Article 15. § 3.7.5 If, in the course of the Work, the Contractor encounters objects or conditions that Contractor in good faith believes to be human remains, burial markers, archaeological sites, wetlands or other conditions that would warrant a suspicion that such matters are being encountered during the Work although they are not indicated in the Contract Documents, the Contractor shall immediately suspend any operations that would affect them and shall notify the Owner and Tenant. Upon receipt of such notice, the Owner shall promptly take any action necessary to obtain governmental authorization required to resume the operations. The Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features and adjustments to the Contract Sum, GMP and Contract Time arising from the existence of such remains or features may be made as provided in Article 15.
§ 3.8 ALLOWANCES
§ 3.8.1 The Contractor has included in the GMP all allowances stated in the Contract Documents. Items covered by allowances shall be supplied by such persons or entities as the Owner, or Tenant on Owner’s behalf, may direct, but the Contractor shall not be required to employ persons or entities to whom the

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Contractor has reasonable objection and shall not be required to proceed if Work subject to an allowance is not approved by Owner.
§ 3.8.2 Unless otherwise provided in, or inconsistent with any of the Contract Documents, and provided that the item selected is reasonably similar to that anticipated by the allowance:
.1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor’s costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and
.3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor’s costs under Section 3.8.2.2.

The Contractor makes no representation or warranty as to the accuracy or sufficiency of any allowance amounts; provided, however, Contractor shall report all expenditures for any given allowance to Owner, plus reasonable backup documentation.
§ 3.8.3 Materials and equipment under an allowance shall be selected by the Owner with reasonable promptness so as not to delay the progress of the Work. If such selection causes delay, the Contract Time, Contract Sum and the GMP may be adjusted in accordance with the provisions of Article 7 and/or Article

15. § 3.9 SUPERINTENDENT
§ 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site at all times during performance of the Work, including Work of Subcontractors and deliveries of equipment or materials. The superintendent shall represent the Contractor, and except as otherwise provided herein, communications given to the superintendent shall be as binding as if given to the Contractor. Contractor's Superintendent shall be able to communicate with Contractor's employees and Subcontractors. Owner and Tenant shall be furnished with a 24-hour contact number and email address of the Superintendent.
§ 3.9.2 The Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner and Tenant the name and qualifications of a proposed superintendent. The Owner may reply within 14 days to the Contractor in writing stating (1) whether the Owner (on behalf of itself or Tenant) has reasonable objection to the proposed superintendent or (2) that the Owner requires additional time to review.

Failure of the Owner to reply within the 14-day period shall constitute notice of no reasonable objection. § 3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Tenant has made reasonable and timely objection. The Contractor shall not change the superintendent without the Owner’s consent, which shall not unreasonably be withheld or delayed. § 3.10 [INTENTIONALLY DELETED].
§ 3.11 DOCUMENTS AND SAMPLES AT THE SITE
The Contractor shall maintain at the site for the Owner and Tenant one copy each of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Owner and Tenant and shall be delivered to the Owner and Tenant upon completion of the Work as a record of the Work as constructed.

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§ 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
§ 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work.
§ 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work.
§ 3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged.
§ 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their purpose is to demonstrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. Review by the Owner is subject to the limitations of Section 4.2.7.

Informational submittals upon which the Owner is not expected to take responsive action may be so identified in the Contract Documents. Submittals that are not required by the Contract Documents may be returned by the Owner without action.
§ 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents in accordance with the submittal schedule approved by the Owner or, in the absence of an approved submittal schedule, with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors, which review shall be accomplished in seven (7) days or less.
§ 3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor or its Subcontractor represents to the Owner and Tenant that the Contractor or its Subcontractor has (1) reviewed and approved them, (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Owner.
§ 3.12.8 The Work shall be in accordance with approved submittals approved by the Owner, except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Owner’s approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Owner in writing of such deviation at the time of submittal and (1) the Owner has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Owner’s approval thereof.
§ 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Owner on previous submittals. In the absence of such written notice, the Owner ’s review or approval of a resubmission shall not apply to such revisions.
§ 3.12.10 The Contractor shall not be required to provide professional services that constitute the practice of architecture or engineering. The Contractor shall not be required to provide professional services in violation

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of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner will specify all performance and design criteria that such services must satisfy. The Contractor or its Subcontractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional’s written approval when submitted to the Owner. The Owner, Tenant, and Contractor shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications and approvals performed or provided by such design professionals. Pursuant to this Section 3.12.10, the Owner will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy, accuracy or completeness of the services, certifications or approvals provided by such design professional or for any performance and design criteria provided by such design professionals.
§ 3.13 USE OF SITE
The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 3.14 CUTTING AND PATCHING
§ 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly as reasonably consistent with the requirements or information contained in the Contract Documents, if applicable. All areas requiring cutting, fitting and patching shall be restored to the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract Documents.
§ 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner, Tenant, or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner, Tenant or a separate contractor except with written consent of the Owner; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner, Tenant, or a separate contractor the Contractor’s consent to cutting or otherwise altering the Work. § 3.15 CLEANING UP
§ 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor’s tools, construction equipment, machinery and surplus materials from and about the Project.
§ 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and Owner shall be entitled to deduct the reasonable cost of so doing from either retainage [provided there are sufficient funds] or the amounts paid (or to be paid) to the Contractor. § 3.16 ACCESS TO WORK
The Contractor shall provide the Owner and Tenant access to the Work in preparation and progress wherever located. Subcontractors of the Contractor, Owner, or Tenant shall execute a Site Access Agreement in a form approved by Owner prior to accessing the work site.
§ 3.17 ROYALTIES, PATENTS AND COPYRIGHTS
The Contractor shall pay all royalties and license fees specifically identified as required in the Contract Documents. The Contractor shall defend suits or claims for infringement of copyrights and patent rights for

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the failure to pay such royalty and license fees and shall hold the Owner harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents, or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner or Tenant.

However, if the Contractor knows that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall promptly advise the Owner and Tenant. § 3.18 INDEMNIFICATION
§ 3.18.1 To the fullest extent permitted by law and to the extent not covered by the Owner’s obligation to the Contractor under the Contract Documents, the Contractor shall indemnify and hold harmless the Owner, the Tenant, and their respective agents and employees from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees should Contractor not provide a defense of Owner and/or Tenant, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than (a) the Work itself and/or (b) the materials, furnishings, equipment and other items contained therein), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3.18. In no event shall the Architect or any other designer be deemed to be an Indemnitee under this paragraph. § 3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts.

ARTICLE 4 ARCHITECT
§ 4.1 GENERAL
§ 4.1.1 The Contractor agrees and acknowledges that Tenant has retained an architect lawfully licensed to practice architecture or an entity lawfully practicing architecture in the jurisdiction where the Project is located. That person or entity is identified as the Architect in the Agreement and is referred to throughout the Contract Documents as if singular in number.
§ 4.1.2 Intentionally omitted.
§ 4.1.3 If the employment of the Architect is terminated, the Owner (unless Tenant does so on behalf of Owner) shall employ a successor architect as to whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the Architect and whose responsibilities shall be those required of the Architect being replaced.
§ 4.2 ADMINISTRATION OF THE CONTRACT
§ 4.2.1 The Owner, in close collaboration and in reliance on the professional / industry experience of the Tenant, will provide administration of the Contract as described in the Contract Documents (1) during construction (2) until final payment is due and (3) from time to time during the one year period for correction of Work described in Section 12.2.. The Tenant will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents.
§ 4.2.2 [INTENTIONALLY DELETED].
§ 4.2.3 On the basis of the site visits, the Tenant will keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations from the

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Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work. The Owner will not be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work.
§ 4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner, Tenant and Contractor shall endeavor to communicate with each party’s Designated Representatives.
§ 4.2.5 Based on the Tenant’s evaluations of the Contractor’s Applications for Payment, the Tenat will review and certify the amounts due the Contractor in connection with an Application for Payment submitted by Contractor to Owner.
§ 4.2.6 The Tenant has authority to reject Work that does not conform to the Contract Documents. Whenever the Tenant considers it necessary or advisable, either or both will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Tenant nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Tenant to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work.
§ 4.2.7 The Tenant will review and approve, or take other appropriate action upon, the Contractor’s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Tenant’s action will be taken with reasonable promptness while allowing sufficient time in the Tenant’s professional judgment to permit adequate review but in no event later than 7 days. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other immaterial details such as quantities, or for substantiating instructions for installation of equipment or systems unrelated to the design concept, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Tenant’s review of the Contractor’s submittals shall not relieve the Contractor or its Subcontractors of the obligations under Sections 3.3, 3.5 and 3.12. The Tenant’s review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Tenant, of any construction means, methods, techniques, sequences or procedures. The Tenant’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 4.2.8 Intentionally Deleted.
§ 4.2.9 Intentionally Deleted.
§ 4.2.10 The Contractor, Owner and Tenant will each provide one or more project representatives to assist in carrying out the their respective responsibilities at the site. § 4.2.11 [INTENTIONALLY DELETED].
§ 4.2.12 [INTENTIOANLLY DELETED].
§ 4.2.13 [INTENTIONALLY DELETED].
§ 4.2.14 The Owner will review and respond to requests for information about the Contract Documents. The Owner’s response to such requests will be made in writing within any time limits agreed upon or otherwise

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so as not to delay the progress of the Work. If appropriate, the Owner will prepare and issue, or cause Tenant to prepare and issue, supplemental Drawings and Specifications in response to the requests for information.

ARTICLE 5 SUBCONTRACTORS
§ 5.1 DEFINITIONS
§ 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term “Subcontractor” is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term “Subcontractor” does not include a separate contractor or subcontractors of a separate contractor. § 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term “Sub-subcontractor” is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub-subcontractor.
§ 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
§ 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Tenant has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection.
§ 5.2.3 If the Owner or Tenant has reasonable and timely objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Tenant has no reasonable objection.

If the proposed but rejected Subcontractor was, in the Contractor’s professional opinion, reasonably capable of performing the Work, the Contract Sum, GMP and Contract Time may be increased or decreased, in accordance with the provisions of Article 7 and/or Article 15, by the difference, if any, occasioned by such objection, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor’s Work..
§ 5.3 SUBCONTRACTUAL RELATIONS
By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor’s Work, which the Contractor, by these Documents, assumes toward the Owner. Each subcontract agreement shall preserve and protect the rights of the Owner together with such other terms and conditions as Contractor may deem appropriate under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. Upon written request the Contractor shall make available to each proposed Subcontractor for review, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound. § 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
§ 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided that
.1 assignment is effective only after termination of the Contract in accordance with the Contract Documents by the Owner for cause pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts by notifying the Subcontractor and Contractor in writing; and

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.2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract.

When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor’s rights and obligations under the subcontract.
§ 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, and if a Subcontractor provides backup for additional costs arising from the suspension, the Subcontractor’s compensation shall be equitably adjusted for increases in cost resulting from the suspension. § 5.4.3 Upon such assignment to the Owner under this Section 5.4, the Owner may further assign the subcontract to a successor contractor or other entity. If the Owner assigns the subcontract to a successor contractor or other entity, the Owner shall nevertheless remain legally responsible for all of the successor contractor’s obligations under the subcontract.
§ 5.4.4 Upon such assignment, the Owner shall be responsible for payment to Subcontractors only for amounts not paid to Contractor, and Contractor shall indemnify Owner for any subcontractor claims related to amounts paid by Owner to Contractor for Subcontractor’s work, for which Contractor did not pay Subcontractor. Owner shall indemnify Contractor for Subcontractor claims pertaining to unpaid amounts for periods from and after the date of assignment to Owner, as well as for unpaid Subcontractor claims arising or accruing prior to the date of the assignment for which a Subcontractor is entitled pursuant to its subcontract and which the Owner would have been responsible , but for the assignment, to pay the Contractor in accordance with the terms of the Contract Documents.
§ 5.4.4 5 LIST OF SUBCONTRACTORS AND SUBLETTING WORK:
.1 No part of the construction Work shall be done as piece Work, nor shall it be let to a Subcontractor after the execution of the original contract except as provided by law. In case part of the Work should be sublet, these Conditions of the Contract shall govern each trade insofar as they may apply to the Work of that trade.
.2 Where more than one Contractor or where Subcontractors are engaged upon the Work, they shall coordinate their efforts and shall be responsible, one to the other, for any damage or injury to the work.
.3 Contractor shall be governed by the provisions of Sections 4100 to 4113, inclusive, of the Public Contract Code of the State of California. Contractor shall set forth, on forms provided for same, the name and location of the mill, shop, or office of each Subcontractor who performs the Work or labor or renders service to the Contractor in or about the construction of the Work, and the portion of the Work which shall be done by each Subcontractor.
.3 No subcontract shall be assigned or transferred except as provided in the Contract Documents.
.4 In case any Work is let to a Subcontractor, the Contractor shall be at all times responsible for the Work so done to same extent as if the Contractor were doing or had done the Work. .5 If a Subcontractor is named who shall perform the Work or labor or render service to the Contractor with respect to a material specified or indicated by patent or proprietary name and/or by the name of the manufacturer, and such Subcontractor cannot reasonably act with like respect to the material offered as an equal then, the Bidder shall, in his Bid Form, include with the pertinent data to be listed on the "Equals" page(s), the name and address of the Subcontractor who shall act with respect to the equal material.
.6 In accordance with Public Contract Code Sections 4100, et seq., the Contractor must list

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all subcontractors who shall perform in excess of one-half of one percent of the Work.

ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.1 OWNER’S AND TENANT’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD

SEPARATE CONTRACTS
§ 6.1.1 The Owner and Tenant reserve the right to perform construction or operations related to the Project with their own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under the General Conditions identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner or Tenant, the Contractor shall make such Claim as provided in Article 15.
§ 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term “Contractor” as applicable in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. § 6.1.3 The Owner and Tenant shall provide for coordination of the activities of their own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate in a meeting with other separate contractors and the Owner and Tenant to review construction schedules. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement.
§ 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner or Tenant performs construction or operations related to the Project with their own forces, the Owner or Tenant shall be deemed to be subject to the same obligations and to have the same rights that apply to the Contractor under the Conditions of the Contract.
§ 6.2 MUTUAL RESPONSIBILITY
§ 6.2.1 The Contractor shall afford the Owner, Tenant, and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor’s construction and operations with theirs as specifically required by the Contract Documents and provided that such accommodations will not cause delay or disruption to Contractor’s performance of the Work..
§ 6.2.2 If part of the Contractor’s Work depends for proper execution or results upon construction or operations by the Owner, Tenant, or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect and applicable party discrepancies or defects discovered in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner’s, Tenant’s or separate contractor’s completed or partially completed construction is fit and proper to receive the Contractor’s Work, except as to defects not then discovered.
§ 6.2.3 [INTENTIONALLY DELETED]
§ 6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or partially completed construction or to property of the Owner, Tenant, or separate contractors as provided in Section 10.2.5.
§ 6.2.5 The Owner, Tenant and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14.

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§ 6.3 OWNER’S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner or Tenant as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and will reasonably allocate the cost among those responsible as further provided in Section 3.15.2.

ARTICLE 7 CHANGES IN THE WORK
§ 7.1 GENERAL
§ 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and the Contract Documents. § 7.1.2 [INTENTIONALLY DELETED].
§ 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work.
§ 7.2 [INTENTIONALLY DELETED].
§ 7.3 [INTENTIONALLY DELETED].
§ 7.4 MINOR CHANGES IN THE WORK
The Owner has authority to order minor changes in the Work not involving adjustment in the Contract Sum, GMP or extension of the Contract Time and not inconsistent with the intent of the Contract Documents.

Such changes will be effected by written order signed by the Owner and shall be consented to by the Tenant and Contractor.

ARTICLE 8 TIME
§ 8.1 DEFINITIONS
§ 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. § 8.1.2 The date of commencement of the Work is the date established in the Agreement. § 8.1.3 The date of Substantial Completion is the date certified by the Owner in accordance with these General Conditions.
§ 8.1.4 The term “day” as used in the Contract Documents shall mean calendar day unless otherwise specifically defined.
§ 8.2 PROGRESS AND COMPLETION
§ 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the Work. § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by the Contract Documents to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time.

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§ 8.3 DELAYS AND EXTENSIONS OF TIME
§ 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner, Tenant or Architect, or of an employee of any of the foregoing, or of a separate contractor employed by the Owner or Tenant; or by changes ordered in the Work; or by labor disputes not caused by contractor, fire, unusual delay in deliveries due to supply chain issues, war, terrorism, incidents of disease or other illness that reaches outbreak, epidemic, endemic and/or pandemic proportions, unavoidable casualties or other causes beyond the Contractor’s reasonable control; or by delay authorized by the Contract Documents or by the Owner pending mediation and arbitration; then the Contract Time shall be extended by Change Order for such reasonable time as the Parties agree arise out of or relate to such cause. Contractor shall not be entitled to an Extension of Time unless it gave notice to Owner of the event giving rise to the potential delay as soon as practicable after Contractor knew of the event, to afford Owner the opportunity to address the issue.
§ 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Article 15. § 8.3.3 The Contractor’s sole remedy in any such case shall be an extension of time and cost incurred, and in no event shall the Owner or Tenant be liable to the Contractor or any Subcontractor or Supplier, any other person or any surety for or any employee or agent of any of them, for any damages arising out of or associated with any delay or hindrance to the Work, regardless of the source of the delay or hindrance, including events of Force Majeure, unless SUCH DELAY OR HINDRANCE RESULTS FROM OR IS DUE TO THE SOLE NEGLIGENCE OF THE OWNER OR TENANT.

ARTICLE 9 PAYMENTS AND COMPLETION
§ 9.1 CONTRACT SUM
The Contract Sum is stated in the Agreement and, including authorized Change Orders, is the total amount payable to the Contractor for performance of the Work under the Contract Documents. § 9.2 SCHEDULE OF VALUES
[INTENTIONALLY DELTETED].
§ 9.3 APPLICATIONS FOR PAYMENT
§ 9.3.1 Intentionally deleted.
§ 9.3.1.1 Intentionally deleted.
§ 9.3.1.2 If the Contract is for other than a stipulated sum, Applications for Payment shall not include requests for payment for portions of the Work for which the Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. § 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.

If approved in advance to the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with any procedures set forth in the Contract Documents to establish the Owner’s title to such materials and equipment or otherwise protect the Owner’s interest, and shall include the costs of applicable insurance storage and transportation to the site for such materials and equipment stored off the site.
§ 9.3.3 The Contractor warrany6ts that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that, unless expressly stated otherwise, upon submittal of an Application for Payment all Work for which Certificates for Payment have

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been previously issued and payments received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § 9.4 CERTIFICATES FOR PAYMENT
§ 9.4.1 The Tenant will, within five days after receipt of the Contractor’s Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Tenant determines is properly due, or notify the Contractor and Owner in writing of the Tenant’s reasons for withholding certification in whole or in part as provided in Section 9.5.1. § 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Tenant to the Owner, based on the Tenant’s evaluation of the Work and the data comprising the Application for Payment, that, to the best of the Tenant’s knowledge, information and belief, the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Tenant. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Tenant has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 9.5 DECISIONS TO WITHHOLD CERTIFICATION
§ 9.5.1 The Tenant may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner from losses or Work for which Contractor is responsible under the Contract Documents, if the Tenant’s representations to the Owner required by Section 9.4.2 cannot be made. If the Tenant is unable to so certify payment in the amount of the Application, the Tenant will notify the Contractor and Owner as provided in Section 9.4.1. If the Contractor and Tenant cannot agree on a revised amount, the Tenant will promptly issue a Certificate for Payment for the amount which the Tenant is able to make such representations to the Owner. The Tenant may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Tenant ’s opinion to protect the Owner from loss or Work for which the Contractor is responsible, including loss resulting from acts and omissions described in Section

3.3.2, because of
.1 defective Work not remedied following written notice from the Owner or Tenant and a reasonable period of time:
.2 uninsured third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments when due to Subcontractors or for labor, materials or equipment
.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum
.5 uninsured physical damage to the Owner’s property; or

7. repeated failure to carry out the Work in accordance with the Contract Documents. § 9.5.2 When any of the above reasons for withholding certification are removed, certification will be made for amounts previously withheld.

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§ 9.5.3 If the Tenant withholds Certification for Payment under Section 9.5.1.3, the Owner may, at its sole option, issue joint checks to the Contractor and to any Subcontractor or material or equipment suppliers to whom the Contractor failed to make payment for Work properly performed or material or equipment suitably delivered. If the Owner makes payments by joint check, the Owner shall notify the Tenant and the Tenant will reflect such payment on the next Certificate for Payment. § 9.6 PROGRESS PAYMENTS
§ 9.6.1 After the Tenant has issued a Certificate for Payment, and the Owner has completed such other inspections or investigations of the Work to verify the accuracy of Contractor’s Payment Application as deemed necessary by Owner, the Owner shall make payment in the manner and within the time provided in the Contract Documents.
§ 9.6.2 The Contractor shall pay each Subcontractor no later than seven (7) days after receipt of payment from the Owner in accordance with the terms of the Subcontract the amount to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of the Subcontractor’s portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner. § 9.6.3 Intentionally omitted.
§ 9.6.4 The Owner and Tenant have the right to request written evidence from the Contractor that the Contractor has properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner or Tenant to the Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven days, the Owner and Tenant shall have the right to contact Subcontractors to ascertain whether they have been properly paid. Neither the Owner nor Tenant shall have an obligation to pay or to see to the payment of money to a Subcontractor, except as may otherwise be required by law. § 9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6.4.
§ 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner or Tenant shall not constitute acceptance of Work not in accordance with the Contract Documents. § 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner or Tenant.

Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision, or create any rights in favor of Subcontractors or suppliers. § 9.7 FAILURE OF PAYMENT
If the Tenant does not issue a Certificate for Payment, through no fault of the Contractor, within seven days after receipt of the Contractor’s Application for Payment, or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents the amount certified by the Tenant or awarded by binding dispute resolution, then the Contractor may, upon seven additional day written notice to the Owner and Tenant, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the GMP, shall be increased by the amount of the Contractor’s reasonable costs of shut-down, delay and start-up, plus interest as provided for in the Contract Documents.

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§ 9.8 SUBSTANTIAL COMPLETION
§ 9.8.1 The date of Substantial Completion of the Work, or designated portion thereof as set forth in the Contract Documents, is the date certified by the Owner, and approved in writing by Tenant, when construction is sufficiently complete, in accordance with the Contract Documents, so the Owner or Tenant may occupy or use the Work, or designated portion thereof, for the use for which it is intended. § 9.8.2 When the Contractor considers that the Work, or designated portion thereof as set forth in the Contract Documents, is substantially complete as defined above, the Contractor shall prepare for submission to the Owner and Tenant a list of items to be completed or corrected. The failure to include any items on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. When the Owner, with written concurrence of the Tenant, determines that the Work or designated portion thereof is substantially complete, the Owner will issue a Certificate of Substantial Completion which shall establish the date of Substantial Completion. § 9.8.3 The Certificate shall state the responsibilities of the Owner, Tenant, and the Contractor for security, maintenance, heat, utilities, damage to the Work, and insurance, and shall list remaining items to be corrected or completed. The Work not fully completed or corrected shall be completed to the satisfaction of the Owner and Tenant within thirty (30) calendar days after Substantial Completion, or within a period of time mutually agreed upon between the Contractor and the Owner and Tenant. In the event the Contractor fails to complete or correct the remaining items within the allotted time, the Owner, with written consent of Tenant, may complete or correct the items and deduct the cost thereof from the Contract amount. § 9.8.4 Upon Substantial Completion of the Work or designated portions thereof, and upon application of the Contractor, the Owner, in Owner's sole discretion, may release and/or reduce the amounts retained subject to the limitations of Public Contract Code Section 9203. § 9.8.5 In accordance with the General Conditions, the Owner reserves the right to occupy substantially completed portions of the Work and any such portion shall be subject to the above provisions for Substantial Completion.
§ 9.9 OCCUPANCY BY THE OWNER OR TENANT.
§ 9.9.1 The Contractor, Contractor's employees, and representatives will be admitted by the Owner and Tenant to the premises for the purpose of executing the Work to be performed under this contract, but they shall have no tenancy.
§ 9.9.2 It is further understood that the Owner (or Tenant under the Sublease) shall have the right to take temporary possession of, or use any portion of, any substantially completed part of the Work. Before taking possession of any Work, the Owner and Tenant shall furnish the Contractor a list of items of Work remaining to be performed or corrected on those portions of the Work that the Owner or Tenant intends to take possession of or use. However, a failure of the Owner or Tenant to list any item of Work shall not relieve the Contractor of responsibility for complying with the terms of the Contract. The Owner’s or Tenant’s possession or use shall not be deemed an acceptance of any Work under the Contract. § 9.9.3 While the Owner (or Tenant) has such possession or use, the Contractor shall be relieved of the responsibility for the loss of, or damage to, the Work in place resulting from the Owner or Tenant’s possession or use. If prior possession or use by the Owner or Tenant delays the progress of the Work or causes additional expense to the Contractor, an adjustment may be made in the Contract Amount or the Contract Time, under the applicable scheduling and cost provisions of this Contract. § 9.10 FINAL COMPLETION AND FINAL PAYMENT
§ 9.10.1 Upon completion of the items on the list provided in accordance with Section 9.8. or, if no list, upon receipt of the Contractor’s written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Tenant and Owner will promptly make such inspection and,

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when the Tenant and Owner finds the Work required of Contractor under the Contract Documents and the Contract fully performed, the Tenant will promptly issue a final Certificate for Payment stating that to the best of the Tenant’s knowledge, information and belief, and on the basis of the Tenant’s on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Tenant’s final Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor’s being entitled to final payment have been fulfilled. § 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Owner and Tenant (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner’s property, or Tenant or the Tenant’s Propety, might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, or will be paid upon final payment by Owner, (2) a certificate evidencing that insurance if required by the Contract Documents to remain in force after final payment, is currently in effect and will not be canceled or allowed to expire until at least 30 days’ prior written notice has been given to the Owner and Tenant, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5) other data establishing payment or satisfaction of mechanic’s liens filed by Subcontractors or suppliers to Contractor’s obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract and the Work paid for by Owner or Tenant, to the extent and in such form as may be designated by the Owner with Tenant’s written consent. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner and Tenant to indemnify, defend and hold harmless the Owner and Tenant against such lien and any related costs including without limitation attorneys’ fees and court costs, in exchange for which the Owner or Tenant shall make final payment, or, if no such bond is provided and subject to applicable laws, Owner or Tenant may withhold the final certification or payment to the applicable Subcontractor or supplier until such lien is no longer a viable encumbrance. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner or Tenant all money that the Owner or Tenant may be compelled to pay in discharging such lien, including all costs and reasonable attorneys’ fees. § 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Tenant so confirms, the Owner shall, upon application by the Contractor and certification by the Tenant, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Tenant prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from
.1 liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply with the requirements of the Contract Documents then unknown to the Owner; or
.3 terms of special warranties required by the Contract Documents. § 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment and any amount withheld. §9.10.6 LIQUIDATED DAMAGES
§ 9.10.6.1 Intentionally deleted.

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§_9.10.6.3_Not a Waiver: The liquidated damages described in the Contract Documents are intended to compensate the Owner and Tenant for damages associated with the failure of the Contractor to timely complete the Work within the applicable Contract Times. The foregoing liquidated damages provision shall not constitute a waiver by the Owner or Tenant of any rights and remedies under the Contract Documents, or at law or in equity, that the Owner or Tenant may have for the Contractor’s failure to comply with any of its obligations under the Contract Documents other than the obligation to timely complete the Work.

ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. § 10.2 SAFETY OF PERSONS AND PROPERTY
§ 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to
.1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor’s Subcontractors or Sub-subcontractors; and
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction.
§ 10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss.
§ 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. § 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel.
§ 10.2.5 The Contractor shall promptly remedy damage and loss to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, 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 Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner, Tenant, or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are separate from and are not to be construed as being included in the Contractor’s obligations under Section 3.18. § 10.2.6 The Contractor shall designate a responsible member of the Contractor’s organization at the site whose duty shall be the prevention of accidents. This person shall include the Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner and Tenant. § 10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause damage or create an unsafe condition.
§ 10.2.8 CONTRACTOR SAFETY REQUIREMENTS:

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In the performance of this Contract, the Contractor shall comply with all applicable federal, state, and local laws governing safety, health, and sanitation.
.1 Jobsite Safety: The Contractor shall be solely responsible for ensuring that all work performed under the Contract is performed in strict compliance with all applicable Federal, State and local occupational safety regulations. The Contractor shall provide at its expense all safeguards, safety devices, and protective equipment, and shall take any and all actions appropriate to providing a safe jobsite. .2 Project Safety Official: The Contractor shall designate in writing a Project Safety Official who shall be at the jobsite at all times, and who shall be thoroughly familiar with the Contractor’s Injury and Illness Prevention Program (IIPP) and Code of Safe Practices (CSP). The Project Safety Official shall be available at all times to abate any potential safety hazards and shall have the authority and responsibility to shut down an operation, if necessary. Failure by the Contractor to provide the required Project Safety Official shall be grounds for the Owner to direct the cessation of all work activities and operations at no cost to the Owner until such time as the Contract is in compliance. .3 Safety Indemnification: To the extent allowed by law, the Contractor agrees to defend, indemnify and hold harmless the Owner and its officers, employees, and agents from and against any and all investigations, complaints, citations, liability, expense (including defense costs and legal fees), claims and/or causes of action for damages of any nature whatsoever, including but not limited to injury or death to employees of the Contractor, its subcontractors or Owner attributable to any alleged act or omission of the Contractor or its subcontractor which is in violation of any CAL/OSHA regulation. The obligation to defend, indemnify and hold harmless includes all investigations and proceedings associated with purported violations of Section 336.10 of Title 8 of the California Code of Regulations pertaining to multi-employer work sites. The Owner may deduct from any payment otherwise due the Contractor any costs incurred or anticipated to be incurred by the Owner, including legal fees and staff costs, associated with any investigation or enforcement proceeding brought by CAL/OSHA arising out of the Work. § 10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY
If either party suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § 10.2.9 In the event the Contractor identifies activities or conditions during performance of the Work or at the Project, which, in the Contractor’s good faith opinion, pose an unreasonable risk of bodily injury or property damage, whether immediate or in the future, the Contractor shall have the right to immediately take steps to protect its personnel and Subcontractors and stop Work and remove its personnel from the affected area, and notify the Owner and Tenant of such activity or condition. In taking action as provided under this paragraph, the Contractor may be entitled to an increase in the Contract Time and an equitable adjustment to the Contract Sum and Guaranteed Maximum Price for any additional costs and/or time lost as a consequence thereof.
§ 10.3 HAZARDOUS MATERIALS
§ 10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding hazardous materials. If the Contractor encounters a hazardous material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor

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shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Tenant in writing.
§ 10.3.2 Upon receipt of the Contractor’s written notice, the Owner or Tenant, as agreed among them, shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to cause it to be rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Tenant the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor and will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Tenant has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor or Tenant have no reasonable objection. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner, Tenant, and Contractor. By Change Order, the Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor’s reasonable additional costs of shut-down, delay and start-up.
§ 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity.
§ 10.3.4 The Owner shall not be responsible under this Section 10.3 for materials or substances the Contractor or Tenant brings to the site unless such materials or substances are required by the Contract Documents. The Owner shall be responsible for materials or substances required by the Contract Documents, except to the extent of the Contractor’s or Tenant’s fault or negligence in the use and handling of such materials or substances.
§ 10.3.5 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for remediation of a material or substance the Contractor brings to the site and negligently handles, or (2) where the Contractor fails to perform its obligations under Section 10.3.1, except to the extent that the cost and expense are due to the Owner’s fault or negligence.
§ 10.3.6 If, without negligence on the part of the Contractor, the Contractor is held liable by a government agency for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred, but only if the hazardous material or substance existed on site prior to commencement of the work.
§ 10.4 EMERGENCIES
In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and Article 7.

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ARTICLE 11 INSURANCE AND BONDS
§ 11.1 CONTRACTOR’S LIABILITY INSURANCE
Prior to commencing performance of the Work, Contractor shall procure the insurance of the types and amounts set forth below, and shall keep and maintain such insurance until a final certificate of occupancy is issued for the Project, except as otherwise stated in the Contract Documents. Contractor shall pay any deductibles and self-insured retentions under all insurance policies issued in satisfaction of the terms of the Contract Documents.
§ 11.1.1 Builders Risk Insurance.

During performance of the Work and pending issuance of a Certificate of Occupancy for the Project, Contractor shall maintain Builder’s Risk Insurance to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project or portion of the Project on which such contractor is performing work and shall name the Trustee for the Bonds as loss payee under the policy or policies. Such coverage shall:
.1 Insure against damage from perils covered by the Causes-of-Loss Special Form (ISO form CP 10 30), and be endorsed to include earthquake, flood, ordinance or law coverage, coverage for temporary offsite storage, debris removal, pollutant cleanup and removal, testing, preservation of property, excavation costs, landscaping, shrubs and plants and full collapse coverage during construction (without restricting collapse coverage to specified perils).
.2 If Contractor’s work involves testing air conditioning systems, boilers, pressure vessels, major machinery or major electrical panels, policy shall include coverage for such testing.

3. Owner, Tenant and subcontractors will be included as additional insureds under the builder’s risk policy, as their interests may appear.
§ 11.1.2 Workers’ Compensation Insurance.

Contractor shall submit written proof that Contractor is insured against employer’s liability for workers’ compensation in accordance with the provisions of Section 3700 of the Labor Code. Said policy shall provide for indemnification of the employer against direct or contingent loss or liability for damages for bodily and personal injury or disease of an employee. Said policy shall provide coverage in the minimum liability limits of $1,000,000 per accident for bodily injury and disease. By executing the Contract Documents, Contractor makes the following certification, required by Section 1861 of the Labor Code:
“I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of the Lease.”
Contractor shall require each contractor and subcontractor performing work on the Project to provide workers’ compensation coverage for all of such contractor’s or subcontractor’s employees, unless the contractor’s or subcontractor’s employees are covered by workers’ compensation insurance provided by Contractor. If any class of employees engaged in work or services performed in connection with the Project is not covered by Labor Code Section 3700, Contractor shall provide and/or require each contractor or subcontractor to provide adequate workers’ compensation insurance covering such employees. Each workers’ compensation policy procured pursuant to this Section shall contain a full waiver of subrogation clause in favor of the Owner.
§ 11.1.3 Commercial General Liability Insurance.

Contractor shall carry and maintain Commercial General Liability which shall be written on ISO policy form CG 00 01 or its equivalent and which provides the following:

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.1 Minimum coverage: Bodily injury limits of $2,000,000 for each occurrence; property damage limits of $2,000,000 for each occurrence, $4,000,000 aggregate. .2 Products/Completed Operations Hazard Insurance in an amount of not less than TWO MILLION DOLLARS ($2,000,000);
.3 A combined single limit policy with aggregate limits in an amount of not less than TWO MILLION DOLLARS ($2,000,000) shall be considered equivalent to the said required minimum limits set forth herein above. Limits of insurance may be met with a combination of primary and umbrella/excess coverage.
.4 Subcontractors to maintain Commercial General Liability insurance with minimum limits of $1,000,000 per occurrence, $1,000,000 personal and advertising injury, $2,000,000 general aggregate and $2,000,000 products completed operations hazard aggregate. .5 If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned real property and automobiles. Insurance coverage shall not be subject to any type of pollution exclusion or owned property exclusions.
.6 Owner and Tenant will be included as additional insureds under the commercial general liability policy.
§ 11.1.4 Personal Property.

Contractor shall maintain personal property or renters insurance during the term of this Agreement, in an aggregate amount equal to 100% of the replacement value of Contractor property and equipment stored or kept on the project site.
§ 11.1.5 Automobile Insurance.

Contractor shall maintain Automobile Liability Insurance against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non-owned vehicles used in the performance of the contractor’s obligations with minimum limits for bodily injury and property damage of FIVE MILLION DOLLARS ($5,000,000) each occurrence, and subcontractors must carry such coverage with limits of $1,000,000.00. Such automobile liability insurance shall be provided by a business or commercial vehicle policy. Such coverage shall be written on ISO form CA 00 01 or its equivalent. Owner and Tenant will be included as additional insureds under the automobile liability policy. § 11.2. General Insurance Provisions.
.1 Any insurance coverage required under the Contract Documents shall be written on an occurrence basis. The applicable certificate of insurance must clearly provide that the coverage is on an “occurrence” basis.
.2 All of the insurance coverage required under the Contract Documents shall be maintained by Contractor and shall not be reduced, modified, or canceled without, at least, thirty (30) days prior written notice to Owner. Contractor shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency of the insurer that issued the policy.

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.3 All insurance to be obtained and maintained by Tenant under this Section shall be issued by a company or companies listed in the then current “Best’s Key Rating Guide” publication with a minimum of an “A-7” rating.
.4 Owner will not accept self-insurance in satisfaction of the insurance requirements of the Contract Documents.
.5 All insurance obtained and maintained by Contractor in satisfaction of the requirements of the Contract Documents shall be primary to and not contributing to any insurance maintained by the Owner or the Tenant.
.6 Insurance coverage in the minimum amounts set forth in the Contract Documents shall not be construed to relieve Contractor of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the Owner from taking such other actions as are available to them under any other provision of the Contract Documents or otherwise at law.
.7 Failure by Contractor to maintain all insurance coverage required by the Contract Documents in effect shall be an event of default by Contractor. Owner, at its sole option, may exercise any remedy available to them in connection with such an event of default. Alternatively, Owner may, at its sole option, purchase any such required insurance coverage and Owner shall be entitled to immediate payment from Contractor for any premiums and associated costs paid by Owner for such insurance coverage. Any election by Owner to purchase or not to purchase insurance otherwise required to be carried by Contractor shall not relieve Contractor of its obligation to obtain and maintain the insurance coverage required by the Contract Documents.
.8 Payment of Insurance Proceeds. Proceeds of any policies of liability insurance required above shall be applied toward extinguishment or satisfaction of the liability with respect to which the insurance proceeds shall have been paid, and shall be governed by and applied as required by the indenture for the Series 2022B Bonds issued for the Project.
.9 Cooperation. Each Party shall cooperate with the other Party, each at their own expense, in filing any proof of loss with respect to any insurance policy maintained pursuant to the Contract Documents and in the prosecution or defense of any prospective or pending condemnation proceeding with respect to the Project or any portion thereof

10. Waiver of Subrogation. Owner hereby releases Contractor and Contractor hereby releases Owner from any and all liability for loss, damage or injury to the property of the other in or about the Work or Project which is caused by or results from a peril or event or happening which is covered by insurance actually carried and in force at the time of the loss by the party sustaining such loss; provided, however, that such waiver shall be effective only to the extent permitted by the insurance covering such loss and to the extent such insurance is not prejudiced
§ 11.3 TENANT’S INSURANCE; PROFESSIONAL LIABILITY PROTECTION If Tenant hires a consultant to provide design services, such as architectural or engineering services in connection with the Project, or any portion of the Project, Tenant shall require each such consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of such design services, with limits of not less than TWO MILLION DOLLARS ($2,000,000) per incident and not less than TWO MILLION DOLLARS ($2,000,000) aggregate. § 11.3.3 LOSS OF USE INSURANCE
The Owner, at the Owner’s option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner’s property due to fire or other hazards, however caused. The Owner waives

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all rights of action against the Contractor for loss of use of the Owner’s property, including consequential losses due to fire or other hazards however caused.
§ 11.3.4 Intentionally Deleted.
§ 11.3.6 Intentionally Deleted .
§ 11.3.7 WAIVERS OF SUBROGATION
The Owner and Contractor waive all rights against (1) each other and any of their subcontractors of all tiers, agents and employees, each of the other, for damages caused by fire or other causes of loss to the extent covered by property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Tenant, Tenant’s consultants, separate contractors described in Article 6, if any, and the subcontractors, sub- subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. § 11.4 [INTENTIONALLY DELETED].

ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
§ 12.1 UNCOVERING OF WORK
§ 12.1.1 If a portion of the Work is covered contrary to the Owner’s request or to requirements specifically expressed in the Contract Documents, it must, if requested in writing by the Owner, be uncovered for the Owner’s examination and be replaced Contractor’s expense without change in the Contract Time or GMP. § 12.1.2 If a portion of the Work has been covered that the Owner has not specifically requested to examine prior to its being covered, the Owner may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner’s expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of correction shall be Contractor’s expense without adjustment to the GMP unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs and the parties may increase the GMP and/or extend the Contract Time.
§ 12.2 CORRECTION OF WORK
§ 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
The Contractor shall promptly correct Work properly rejected by the Ownerfor failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections, the cost of uncovering and replacement, and compensation for the professional design services and expenses made necessary thereby, shall be at the Contractor’s expense. § 12.2.2 AFTER SUBSTANTIAL COMPLETION
§ 12.2.2.1 In addition to the Contractor’s obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 9.9.1, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner or Tenant to do so unless the Owner or Tenant has previously given the Contractor a written acceptance of such condition. The Owner or Tenant shall give such notice promptly after discovery

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of the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner and Tenant waive the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Section 2.4. § 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual completion of that portion of the Work.
§ 12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12.2.
§ 12.2.3 The Contractor shall remove from the site portions of the Work that are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner.
§ 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner, Tenant, or separate contractors caused by the Contractor’s correction or removal of Work that is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with respect to the Contractor’s obligations other than specifically to correct the Work.
§ 12.3 ACCEPTANCE OF NONCONFORMING WORK
If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract Documents, the Owner may do so with Tenant’s consent instead of requiring its removal and correction, in which case the GMP will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made.

ARTICLE 13 MISCELLANEOUS PROVISIONS
§ 13.1 [INTENTIONALLY DELETED].
§ 13.2 SUCCESSORS AND ASSIGNS
§ 13.2.1 The Owner, Tenant (but only as specifically applicable) and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to covenants, agreements and obligations contained in the Contract Documents. Except as provided in the Contract Documents, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If any party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract.
§ 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to a lender providing construction financing for the Project, if the lender assumes the Owner’s rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment.

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§ 13.3 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by registered or certified mail or by courier service providing proof of delivery to, the last business address known to the party giving notice.
§ 13.4 RIGHTS AND REMEDIES
§ 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.
§ 13.4.2 No action or failure to act by the Owner, Tenant, or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach there under, except as may be specifically agreed in writing. § 13.5 TESTS AND INSPECTIONS
§ 13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner and Tenant, or with the appropriate public authority, and shall as Cost of the Work pay all related costs of tests, inspections and approvals provided for in the Contract Documents. The Contractor shall give the Tenant and Owner timely notice of when and where tests and inspections are to be made so that they may be present for such procedures. The Owner or Tenant, as agreed between them, shall bear all other costs of (1) tests, inspections or approvals that do not become requirements until after bids are received or negotiations concluded, and (2) tests, inspections or approvals where building codes or applicable laws or regulations prohibit the Owner from delegating their cost to the Contractor. § 13.5.2 If the Tenant, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section 13.5.1, the Owner will, upon written authorization from the Owner and Tenant, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Owner and Tenant of when and where tests and inspections are to be made so that they may be present for such procedures. Such costs, except as provided in Section 13.5.3, shall be at the Owner’s or Tenant’s expense, as agreed between them, in addition to the GMP. § 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by the correction of such failure including those of repeated procedures thereafter and compensation for the professional design services and expenses shall be at the Contractor’s expense and without increase to the GMP.
§ 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Owner and Tenant. § 13.5.5 If the Owner or Tenant is to observe tests, inspections or approvals required by the Contract Documents, they will do so promptly and, where practicable, at the normal place of testing. § 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work.

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§ 13.6 INTEREST
Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. § 13.7 TIME LIMITS ON CLAIMS
The Owner, Tenant and Contractor shall commence all claims and causes of action, whether in contract, tort, breach of warranty or otherwise, against the other arising out of or related to the Contract in accordance with the requirements of the final dispute resolution method selected in the Agreement within the time period specified by applicable law; including but not limited to the claim presentment requirements and time limitations associated with Claims against the Owner under the Montebello Municipal Code and the Government Claims Act, which shall govern any Claims against Owner arising under the Contract Documetns. The Owner, and Tenant and Contractor waive all claims and causes of action not commenced in accordance with this Section 13.7.
§ 13.8 NO SOLICITATION OF CONTRACTOR’S PROJECT STAFF
§ 13.8.1 Neither party shall solicit or employ any employees of the other party named on the Project staffing charts attached hereto (or who has been assigned to provide services in connection with this Project) for the duration of the Project and then for a period of one (1) year thereafter. § 13.9 ADVERTISING:

No advertising matter shall be attached or painted on surfaces of buildings, fences, or canopies, except that names of Contractors and Subcontractors, with their addresses and the designation of their particular branch, may be shown on signs of a removable type. Size and location of such signs shall be subject to approval of the City. The Contractor shall provide a project identification signboard as specified. § 13.10 CERTIFICATE AS TO COMPLIANCE WITH CERTAIN REGULATIONS .1 The Contractor shall file with the Owner, prior to the acceptance of the Work, a certificate in form, substantially as follows:

I (We) hereby certify that all Work has been performed and materials supplied in accordance with the drawings, specifications, and contract documents for the above Work, and that:

1. Not less than the prevailing rates of wages as ascertained by the Ownerhas been paid to laborers, workers, and mechanics employed on this Work.

2. There have been no unauthorized substitution of Subcontractors; nor have any unauthorized subcontracts been entered into.

3. No subcontract was assigned or transferred or performed by anyone other than the original Subcontractor; except as provided in Sections 4100-4113, inclusive, of the Public Contract Code.
(Signed) Contractor

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§ 13.11 LIMITATION OF LIABILITY:
.1 This project may be awarded by or the Contract may be assigned to a joint powers authority or a nonprofit corporation established by the awarding entity. Bonds, certificates of participation, or other evidences of indebtedness will be issued by a joint powers authority or nonprofit corporation or the awarding entity or the Owner, for the purpose of constructing the Work contemplated by these Drawings and Specifications.
.2 The issuing entity will adopt a policy to sell and issue bonds, certificates of participation, or other evidences of indebtedness at such times and in sufficient amounts to ensure that funds are provided for the prompt payment, as installments become due, for Work performed hereunder. § 13.12 FORUM SELECTION:

Contractor and Tenant hereby agrees to submit to the jurisdiction of the courts of the State of California.

The exclusive venue of any action brought by Contractor, on Contractor's behalf or on the behalf of any Subcontractor, or any other party which arises from this agreement or is concerning or connected with services performed pursuant to this agreement, shall be deemed to be in the courts of the State of California located in Los Angeles City, California.
§ 13.13 WAIVER:

The waiver by the Ownerof any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition on any subsequent breach of the same or any other term, covenant, or condition herein contained.
§ 13.14 ACCEPTANCE OF FINAL PAYMENT AS RELEASE:

The acceptance by the Contractor of the final payment shall be and shall operate as a release to the Ownerand the awarding entity of all claims and all liability to the Contractor for all things done or furnished in connection with this Work and for every act and neglect of the Owner, awarding entity, and others relating to or arising out of this Work. No payment, however final or otherwise, shall operate to release the Contractor or his sureties from any obligation under this contract or the Performance and Payment Bond. § 13.15 SUBSTITUTION OF SECURITIES FOR RETENTION:

In accordance with Public Contracts Code Section 22300 et seq., the Contractor may substitute securities for retention monies to be withheld to ensure performance under this Contract. At the request and expense of the Contractor, securities equivalent to the amount withheld may be deposited with the Owner, or with an approved State or Federally chartered bank as the escrow agent. The Ownerwill then pay such retention moneys to the Contractor. It is the Contractor's obligation to secure the services of a state or federally chartered bank to act as escrow agent. Securities eligible for investment include those listed in Government Code Section 16430 or bank or savings and loan certificates of deposit. The Contractor shall be the beneficial owner of any securities substituted for retention monies withheld and shall receive any interest earned by the securities.
§ 13.16 RESOLUTION OF CONSTRUCTION CLAIMS:

The provision of Public Contract Code 20104 et seq. relating to the resolution of construction claims of three hundred seventy-five thousand dollars ($375,000) or less which arise between a Contractor and a

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local agency are hereby incorporated in this Contract.
§ 13.17 CONFLICT OF INTEREST:

No Owneremployee whose position in Ownerenables him to influence the award of this agreement or any competing agreement, and no spouse or economic dependent of such employee, shall be employed in any capacity by Contractor herein, or have any other direct or indirect financial interest in this Agreement. § 13.18 ANTI-TRUST CLAIMS:

In entering into a public works Contract or a Subcontract to supply goods, services, or materials pursuant to a public works contract, the Contractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the 44 Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2, Division 7, of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works Contract or Subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the Contractor, without further acknowledgment by the parties. § 13.19 OWNER'S QUALITY ASSURANCE PLAN:

The Owneror its agent will evaluate Contractor's performance under this agreement on regular basis. Such evaluation will include assessing Contractor’s compliance with all contract terms and performance standards. Contractor deficiencies which Ownerdetermines are severe or continuing, and that may place performance of the agreement in jeopardy if not corrected, will be reported to the City Council. The report will include improvement/corrective action measures taken by the Ownerand Contractor. If improvement does not occur consistent with the corrective action measures, Ownermay terminate this agreement or impose other penalties as specified in this agreement.
§ 13.20 LAWS, CODES AND REGULATIONS TO BE OBSERVED:
.1 The Contractor shall become familiar and comply with all Federal, State, City and City laws, ordinances or regulations controlling the action or operation of those engaged in the work, or affecting materials used, and operate in accordance therewith.
.2 In accordance with this requirement, it has not been considered necessary to enumerate all wiring, plumbing and other requirements covered by the codes. The Contractor, in making a bid, agrees that the requirements of such ordinances will be as carefully adhered to as if they were specifically set forth in the specifications.
.3 The Contractor shall hold harmless the Ownerand all of its officers, agents and servants against any claims or liability arising from, or based upon the violation of such laws, by-laws, ordinances, regulations, orders or decrees, whether by the Contractor or the Contractor's employees, except where the instance of violation is done in accordance with the specifications.

ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
§ 14.1 TERMINATION BY THE CONTRACTOR
§ 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or

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employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons:
.1 Issuance of an order of a court or other public authority having jurisdiction that requires all Work to be stopped;
.2 Because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents; or
.3 The Owner has failed to furnish to the Contractor promptly, upon the Contractor’s request, reasonable evidence as required by Section 2.2.1
§ 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Section 14.3 or for which Contractor is entitled to an extension of time constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days’ written notice to the Owner and Tenant, terminate the Contract and recover from the Owner payment for Work executed, including reasonable overhead and profit, costs incurred by reason of such termination, and damages.
§ 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner’s obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days’ written notice to the Owner and the Tenant, terminate the Contract and recover from the Owner as provided in Section 14.1.3.
§ 14.2 TERMINATION BY THE OWNER FOR CAUSE
§ 14.2.1 The Owner may terminate the Contract in accordance with Section 14.2.2 if the Contractor .1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor when due in accordance with the respective agreements between the Contractor and the Subcontractors; .3 repeatedly disregards applicable laws, statutes, ordinances, codes rules and regulations, or lawful orders of a public authority; or
.4 otherwise is guilty of substantial breach of a provision of the Contract Documents. § 14.2.2 When and if any of the above reasons exist, the Owner, upon certification by the Initial Decision Maker that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven days’ written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:
.1 Exclude the Contractor from the site and take possession of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; .2 Accept assignment of subcontracts pursuant to Section 5.4; and .3 Finish the Work by whatever reasonable method the Owner may deem expedient. Upon written request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 14.2.4 If the unpaid balance of the GMP exceeds costs of finishing the Work, including other damage, to the extent permitted by the Contract Documents incurred by the Owner or Tenant and not expressly waived,

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such excess shall be paid to the Contractor, but only to the extent Contractor has not been paid for Cost of Work, or proportionate Fee, for work performed prior to the termination pursuant to this Section 14.2. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Initial Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract. § 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
§ 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. § 14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the extent
.1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or
.2 that an equitable adjustment is made or denied under another provision of the Contract. § 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
§ 14.4.1 The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause.

In the event the Owner terminates for its convenience whether (i) pursuant to this Section 14.4 or (ii) pursuant to any other provision of the Contract Documents, the provisions of Section 14.4.4, will also apply to the termination and shall also survive the termination.
§ 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner’s convenience, the Contractor shall
.1 cease operations as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and
.3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders.
§ 14.4.3 In case of such termination for the Owner’s convenience, the Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with 6%overhead and profit on the Work not executed.
§ 14.4.4 In the event of a termination for the Owner’s convenience all rights and title to all work product of the Contractor shall revert to, or remain with, the Contractor.

ARTICLE 15 CLAIMS AND DISPUTES
§ 15.1 CLAIMS
§ 15.1.1 DEFINITION
A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Contract. The term “Claim” also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. The responsibility to substantiate Claims shall rest with the party making the Claim. § 15.1.2 NOTICE OF CLAIMS
Claims by either the Owner, Tenant or Contractor must be initiated by written notice to the other party and to the Initial Decision Maker with a copy sent to the Tenant. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later.

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§ 15.1.3 CONTINUING CONTRACT PERFORMANCE
Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section 9.7 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. The Owner will prepare Change Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker. § 15.1.4 CLAIMS FOR ADDITIONAL COST
If the Contractor wishes to make a Claim for an increase in the Contract Sum or GMP, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.4. § 15.1.5 CLAIMS FOR ADDITIONAL TIME
§ 15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as provided herein shall be given if the Contractor has at that time reached a conclusion regarding the extent of the increase. The Contractor’s Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary. § 15.1.5.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, and a general description of how the conditions had an adverse effect on the scheduled construction. § 15.1.6 CLAIMS FOR CONSEQUENTIAL DAMAGES
The Contractor, Tenant and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes .1 damages incurred by the Owner or Tenant for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and
.2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work.

This mutual waiver is also applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 14. Nothing contained in this Section 15.1.6 shall be deemed to preclude an award of liquidated non-consequential damages, when applicable, in accordance with the requirements of the Contract Documents.
§ 15.2 INITIAL DECISION
§ 15.2.1 Claims, excluding those arising under Sections 10.3, 10.4, 11.3.9, and 11.3.10, shall be referred to the Initial Decision Maker for initial decision. The City Engineer will serve as the Initial Decision Maker, unless otherwise indicated in the Agreement. Except for those Claims excluded by this Section 15.2.1, an initial decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Initial Decision Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities other than the Owner.
§ 15.2.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest the appropriate resolution or (5) advise the parties that the Initial Decision Maker is unable to resolve the Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the Initial Decision Maker concludes that, in the Initial Decision Maker’s sole discretion, it would be inappropriate for the Initial Decision Maker to resolve the Claim.

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§ 15.2.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to authorize retention of such persons at the Owner’s expense. § 15.2.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either (1) provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker will either reject or approve the Claim in whole or in part or otherwise resolve the Claim. § 15.2.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2) state the reasons therefor; and (3) notify the parties and the Tenant of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject to mediation and, if the parties fail to resolve their dispute through mediation, to binding dispute resolution. § 15.2.6 Either party may file for mediation of an initial decision within 30 days from the date of an initial decision.
§ 15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor’s default, the Owner may, but is not obligated to, notify the surety and request the surety’s assistance in resolving the controversy.
§ 15.2.8 If a Claim relates to or is the subject of a mechanic’s lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines. § 15.3 MEDIATION
§ 15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Contract except those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a condition precedent to binding dispute resolution.
§ 15.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. If an arbitration is stayed pursuant to this Section 15.3.2, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings.
§ 15.3.3 The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

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§ 15.4 ARBITRATION
§ 15.4. Arbitration shall be utilized as the method for binding dispute resolution in the Agreement. Any Claim subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of the Agreement. A demand for arbitration shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. § 15.4.1.1 A demand for arbitration shall be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the Claim would be barred by the applicable statute of limitations. For statute of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the Claim. § 15.4.2 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. § 15.4.3 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof.
§ 15.4.4 CONSOLIDATION OR JOINDER
§ 15.4.4.1 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation, (2) the arbitrations to be consolidated substantially involve common questions of law or fact, and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s).
§ 15.4.4.2 Either party, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent. § 15.4.4.3 The Owner, Tenant and Contractor grant to any person or entity made a party to an arbitration conducted under this Section 15.4, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Contractor under this Agreement. § 15.4.4.4 Arbitration, at the Contractor’s election and sole cost, and without additional cost to Owner, may include Subcontractors to Contractor that Contractor deems relevant to the matter in dispute and, upon Contractor’s request, the Arbitrator shall decide all or a particular portion of a dispute between the Contractor and a Subcontractor.

ARTICLE 16 PUBLIC WORKS DISCLOSURES AND FORMS
[ATTACH STANDARD PUBLIC WORK FORMS]

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EXHIBIT B
Plans and Specifications
Available in the Department of Public Works, dated _______

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EXHIBIT C
Performance Schedule

ATTACHED

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Exhibit D
November 8, 2022
2900 Via Campo, MONTEBELLO, CA 90640
Guaranteed Maximum Price Proposal

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January 14, 2021
TOPGOLF U.S.A. INC.
8750 N. Central Expressway
Suite 1200
Dallas, TX 75231
Attn: Mr. William Davenport
Chief Financial Officer
Mr. Tanner Micheli
Director of Real Estate Development
Re: TOPGOLF El Segundo
El Segundo, California
GMP Project Binder
Dear Messrs. Davenport and Micheli:

McCarthy is pleased to present our Guaranteed Maximum Price Proposal for the TOPGOLF El Segundo project.

This summary binder contains the Cost Summary, Guaranteed Maximum Price Proposal, Subcontractor Bid Summaries, Clarifications, Assumptions and Allowances, Preliminary Construction Schedule, and Document Listing which further define the basis of this estimate.

Sincerely,
Vernan Ibong
Project Director
cc: Mike Touhy McC
Vernan Ibong McC
Cameron Kilar McC
John Woodruff McC
Janelle Tod McC
Daniel Stafford McC
Matthew Lawson McC
20401 S.W. Birch Street, Newport Beach, CA 92660 | Phone: (949) 851-8383 | Website: mccarthy.com October 28, 2022
Topgolf U.S.A. Inc., 8750 N. Central Expressway, Suite 1200, Dallas, TX 75231 Attn: Mr. William Davenport, Chief Financial Officer
Mr. Scott Wetterling, Director of Real Estate Development Re: TOPGOLF Montebello
Montebello, California
GMP Project Binder
Dear Messrs. Davenport and Wetterling,
McCarthy is pleased to present our Guaranteed Maximum Price Proposal for the TOPGOLF Montebello project.

This summary binder contains the Cost Summary, Guaranteed Maximum Price Proposal, Subcontractor Listing, Clarifications, Assumptions and Allowances, Preliminary Construction Schedule, and Document Listing which further define the basis of this estimate.

Sincerely,
Vernan Ibong
Project Director
cc: Jim Madrid McC
Mark Greil McC
Dave Alford McC

Vernan Ibong McC
Andrew Raufi McC
Janelle Tod McC

Page 81 of 259 ends

1 8
9 5
7 3
2 6
4 Logistics Plan 66
TOPGOLF SOV 08
Project Summary 04

CONTENTS
Subcontractor Listing 14
Topgolf Montebello
2900 Via Campo, Montebello, CA 90640
Guaranteed Maximum Price Proposal
Exhibit D
Document Listing 38
Project Schedule 36
Allowance Log 34
Value Analysis Log 31
Clarifications & Assumptions 19

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1 PROJECT SUMMARY

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Project Summary

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McCarthy Building Companies

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Project Summary

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies

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Project Summary

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McCarthy Building Companies

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2 GMP SOV

Page 87 of 259 ends

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies

GMP SOV

A B C F
TG G/L Coding Description
11/8/2022
Montebello
GMP Comments
411-01
Construction General Conditions (does
not include markup) $2,007,131
411-02
Added General Conditions (baseline
265 calendar days)
Due Diligence
402-01 Plat/Topo Surveys
402-02 Geotechnical/Soils Report
402-03 Preliminary Civil Design/Phase 1
402-03 Phase 1 ESA
402-04
Pre and Post ALTA Surveys (In Civil
Engineering Costs)
402-05 Management Fee
Design
403-01 Civil Engineering
403-02 Landscape Architecture
403-03 Mechanical/Plumbing Engineering
403-04 Electrical Engineering
403-05 Structural Engineering and Shop Drawings
403-06 Design Reimbursables
403-07 HVAC Modeling
Architectural Design
403-08 Acoustical Modeling
403-09 Commissioning Allowance
405-01 Permit/Consultant Fees
General Requirements
410-01 Trailer Rentals $63,920
410-01 Trailer Rentals - TOPGOLF
410-02 Dumpsters $72,941
410-03 Temp Access/Trash Chutes $54,093
410-04 Cleaning $64,009
410-05 Field Labor $136,135
410-06 Temp Electric $54,750
410-07 Water $6,570
410-08 Toilets $55,057
410-09 Safety and Toe Board $60,517
410-10 Rendering/Future Home Signage $2,738
410-11 Construction Signage - TOPGOLF
410-11.1 Construction Signage - McCarthy $4,520
COST OF WORK (excludes OH/P)
TOPGOLF Schedule of Values
Montebello, CA
Venue Project Summary November 8, 2022

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies

GMP SOV

A B C F
TG G/L Coding Description
11/8/2022
Montebello
GMP Comments
TOPGOLF Schedule of Values
Montebello, CA
Venue Project Summary November 8, 2022
410-12 Ground Breaking
410-13 Temporary Site Fencing $34,115
410-14 Work Zone Camera $18,803
410-15 Materials Testing Allowance
- Must be contracted by TG per CA Law
410-16 Roof Inspection
Allowances
410-19 TG Trailer Rentals 13,500$
405-01 Permit/Consultant Fees -$
TBD22 Utility usage for Topgolf Trailers 5,000$
TBD16 Access Gates 5,000$
TBD21 Security Fencing for Topgolf 25,000$
423-03
Coring, Patching, Flashing for TG
Penetrations 25,000$
TBD23 Conduit for "TOPGOLF" building
facade signage 30,000$
410-18 Security -$
TBD
Facility and site improvement materials
purchased from Topgolf 6,227,828$ Topgolf Furnished Material TBD05 Fall Protection per Deferred Approval
TBD07 Light Fixture -$
TBD08 Patio Buildout (concrete, lights)
TBD09 Event Space Finishes (TBD)
TBD10 Drywells
TBD11 Permit Comment -$
TBD12 Monument/Pylon Electrical/Concrete
TBD13 Topgolf Requested Changes -$
TBD14 Undercutting/Unforeseen Demo
TBD15 Public Street Lighting
TBD17 Gas Company Pad
TBD18 Unforeseen Conditions -$
TBD24 Landscape in lieu of parking per L1.1 -
$12/SF 288,000$
TBD25 Schedule Improvement - 2023 Opening
-$
TBD27 Topgolf Furnished, McCarthy Installed
Material Completion -$
TBD28 Temporary Generator for Temp Power
(Switchgear Lead Time) 2 Mo 110,000$
TBD26 Construction Allowance - E&O, OFCI
Materials, TG Field Changes, Permit
Comments 500,000$

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies

GMP SOV

A B C F
TG G/L Coding Description
11/8/2022
Montebello
GMP Comments
TOPGOLF Schedule of Values
Montebello, CA
Venue Project Summary November 8, 2022
Landscaping
413-01 Landscaping and Irrigation $924,475
413-02 Bioswale Imported Materials
Sitework
412-01 Construction Surveying $212,498
412-01.1 Retaining Walls
412-02 Earthwork - Sitework $962,005
412-03 Mehrten (Rock) Excavation Allowance
412-03.1 Reclaimed Water Allowance
412-04 Site Utilities - Sitework $501,979
412-06 Site Concrete Paving - Sitework $870,646
412-05 Asphalt Paving - Sitework $822,858
412-07 Pervious Paving - Sitework
412-08 Site Fencing $131,611
412-09 Offsite Improvements $73,997
Outfield
414-01 Earthwork - Outfield $203,283
TBD Asphalt - Outfield $602,000
414-02 Site Utilities - Outfield $1,886,505
414-03 Furnish and Install Outfield Pump &
Vault
414-03 Concrete Targets (Concrete Wall and
Slab at Black Trench Target) $66,850
414-04 Concrete Target Floors (Concrete
Target Floor) $338,328
414-04 Steel Target Structures $139,993
Shell Building
419-01 Building Concrete $633,479
Foundations $1,669,881
419-02 Masonry/Stone $0
419-03 Structural Steel, Stairs and Misc. $1,256,049 Topgolf Furnished 419-05 Metal Decking $684,742 McCarthy Furnished
419-06 Steel Erection (ALLOWANCE)
419-07 Architectural Metals
419-08 Framing, Sheathing, Carpentry and ACT $3,386,582 419-09 Rainscreen $299,258 Topgolf Furnished
419-10 Wire Mesh
419-11 Waterproofing $109,665
419-12 Roofing $439,837

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies

GMP SOV

A B C F
TG G/L Coding Description
11/8/2022
Montebello
GMP Comments
TOPGOLF Schedule of Values
Montebello, CA
Venue Project Summary November 8, 2022
419-13 Misc. Sheetmetal and Flashing $653,527
419-14 Caulking
419-15 EIFS $1,016,935
419-16 Citadel Panels at Entry and ADA Trellis $349,000 419-17 Acoustical Treatment at Tee-Lines Allowance
Doors and Windows
420-01 Doors, Frames, Hardware $198,809
420-02 Overhead Doors $86,968
420-03 Glass, Glazing $1,909,694
420-04 Operable Partitions $43,493
Interior Construction
421-01 Concrete Staining/Polishing $337,999
421-02 Treads Stair 2 $162,206
421-03 Flooring $398,321
421-03 Dura Flex Flooring $182,456
421-04 Painting $929,860
421-05 Elevator $353,067
421-06 Misc. Specialties $161,535
421-07 Lockers
421-08 T-Line Fans
421-09 Water Feature
421-10 Fire Curtains $54,031
Millwork
422-01 Millwork $897,911
422-02 Countertops $111,367
422-03 Lobby Millwork/Main Lobby Ceiling Elements $109,373 422-04 Stainless Wall Panel and Misc. Stainless Steel $57,500 Building Mechanical Systems
423-01 HVAC $1,640,921 Units by Topgolf
423-02 Gas Tee Line Heaters - OFCI
423-03 Plumbing $1,842,024
423-03 Coring, Patching, Flashing for TG Penetrations
Building Electrical Systems
424-01 Electrical $3,496,845
Electrical - Outfield
Electrical - Sitework
Electrical - Building

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies

GMP SOV

A B C F
TG G/L Coding Description
11/8/2022
Montebello
GMP Comments
TOPGOLF Schedule of Values
Montebello, CA
Venue Project Summary November 8, 2022
424-02 Light Fixtures OFCI
Building Life Safety and Fire Prevention
425-01 Fire Alarm $168,320
425-02 Fire Protection $323,940
Accepted VE
Exhibit J Value Analysis Log
Contingency (Includes OH and P)
500-01 Contingency (includes OH/P) $500,000
TBD Escalation
TBD OCIP Credit N/A
MARK-UPS (On Cost of Work Line Items)
405-01 Insurance OCIP
405-01 Insurance - Traditional $426,424
McCarthy Bond $239,324
Preconstruction $0
GMP Prep $90,000
Builders Risk $246,462
405-02 Overhead
405-03 Fee - 6% $2,343,059
405-04 Tax Included
Total Venue $45,412,519

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3 SUBCONTRACTOR LISTING

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies
Subcontractor Listing
https://efiling.dir.ca.gov/PWCR/ActionServlet?action=displayPWCRegistrationForm

Contractor License Number
DIR Reg Number
Name:

A. J. Kirkwood & Associates, Inc 3,609,910$ 9.23% 724633 _______________________________________
City, State 1000000844
Fullterton, CA 92835
Name:

Anning Johnson Company 2,911,084$ 7.44% 652825 _______________________________________
City, State 1000000625
Hayward, CA 94545
Name:

Van Diest Bros., Inc. 2,352,060$ 6.01% 157555 _______________________________________ Site Utilities
City, State 1000003419
Paramount, CA 90723
Name:

Pan-Pacific Mechanical LLC 1,813,934$ 4.64% 1006709 _______________________________________ Plumbing
City, State 1000032867
Fountain Valley, CA 92708
Subcontractor Name and Location Line Item # or Description of Work Subcontract Amount Percentage of Total GMAX As of March 1, 2015 Contractors (and sub-contractors) wishing to perform work on public works contracts shall be registered with the State Division of Industrial Relations and certified to bid on Public Works contracts. Please register at:

In accordance with Title 49, Section 26.11 of the Code of Federal Regulations, and Section 4104 of the Public Contract Code of the State of California, as amended, the following information is required for each sub-contractor who will perform work amounting to more than one half of one percent (0.5%) of the Total GMAX or $10,000 (whichever is greater). Photocopy this form for additional firms.

Electrical, FA, Comm, AV,
Security
Drywall & Framing - Exterior

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies
Subcontractor Listing
Name:

Elite Glazing Group Inc 1,736,990$ 4.44% 1019426 _______________________________________ Glass and Glazing City, State 1000043734
Long Beach, CA 90806
Name:

Control Air Enterprises LLC 1,615,898$ 4.13% 1053402 _______________________________________ HVAC
City, State PW-LR-1000379532
Anaheim CA 92807
Name:

Palp Inc dba Excel Paving Company 1,411,795$ 3.61% 688659 _______________________________________ Asphalt
City, State 1000003331
Long Beach, CA 90806
Name:

PHL dba VNSM 1,281,933$ 3.28% 716780
_______________________________________
City, State 100008239
Paramount, CA
Name:

Bragg Investment Company Inc dba Bragg Crane and Rigging Company 1,236,895$ 3.16% 505420 _______________________________________
City, State 1000002972
Long Beach, CA 90805
Structural Steel & Misc.

Metals
Composite Panels / Sheet
Metal

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies
Subcontractor Listing
Name:

E 2 Contracting Inc 1,147,518$ 2.93% 1049757 _______________________________________ Earthwork
City, State 1000063944
Irvine, CA 92618
Name:

Roy E. Whitehead, Inc. 1,101,592$ 2.82% 255108 _______________________________________
City, State 1000004967
RIVERSIDE, CA 92509
Name:

California Paint Experts dba San Diego Paint Pros 962,143$ 2.46% 960066 _______________________________________
City, State PW-LR-1000440947
San Diego, CA 92111
Name:

DEAN VISOSKY CONTRACTORS INC 921,827$ 2.36% 1005771 _______________________________________ Site Concrete
City, State 1000028369
Orange, CA 92867
Name:

American Landscape Inc 910,377$ 2.33% 288229 _______________________________________ Landscape & Irrigation City, State 1000005457
Canoga Park, CA 91303
Cabinets and Finish
Carpentry
Painting & Intumescent
Coatings

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies
Subcontractor Listing
Name:

Anning-Johnson Company 674,300$ 1.72% 652825 _______________________________________ Metal Decking
City, State 1000000625
Hayward, CA 94545
Name:

CHARLES MC CANDLESS TILE CONTRACTOR INC 479,995$ 1.23% 196900 _______________________________________ Ceramic Tile
City, State 1000003364
SANTA ANA, CA 92701
Name:

CMC Steel Fabricators inc. dba CMC Rebar 455,239$ 1.16% 778010 _______________________________________ Reinforcing Steel City, State 1000000298
San Diego, CA 92123
Name:

Anning-Johnson Company 369,622$ 0.95% 652825 _______________________________________ Roofing
City, State 1000000625
Hayward, CA 94545
Name:

KONE Inc. 347,682$ 0.89% 179166
_______________________________________ Elevators
City, State 1000003806
Moline, IL 61265

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Topgolf Montebello Guaranteed Maximum Price Proposal
McCarthy Building Companies
Subcontractor Listing
Name:

THE M S ROUSE COMPANY 332,845$ 0.85% 478041 _______________________________________ Polished Concrete City, State 1000006939
RANCHO DOMINGUEZ, CA 90220
Name:

Southwest Fire Protection Company 319,000$ 0.82% 190173 _______________________________________ Fire Protection City, State 1000004939
Monrovia, CA 91016
Name:

Roy E. Whitehead Inc. 210,548$ 0.54% 255108 _______________________________________ Doors, Frames & Hardware City, State 1000004967
Riverside, CA 92509
Name:

_______________________________________
City, State

Name:

_______________________________________
City, State

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4 CLARIFICATIONS
& ASSUMPTIONS

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McCarthy Building Companies
Clarifications & Assumptions

1 OF 10 CLARIFICATIONS, ASSUMPTIONS AND ALLOWANCES

INCLUSIONS

The following items have been included in our Estimate:

1. We have included Prevailing Wage Rates per 2021-2.

2. We have included allowances as noted in the allowance log ( reference attached log).

EXCLUSIONS

The following items have not been included in our Estimate:

3. We have excluded costs associated with the Commissioning agent.

4. We have excluded tariffs or other regulatory changes taking effect after the date of this GMP.

5. We have excluded references to DBIA 530 and DBIA 535 Master Agreement contract language indicated on the documents.

6. We have excluded costs associated with TOPGOLF netting system, including footings.

7. We have excluded costs associated with Mini-Golf Course per note 6 on SH-5.

We have assumed this is OFOI turf per note 4-04 on L2.1.

8. We have excluded monument signage , is not indicated on the drawings .

Previsions for power to any monument signs has not been included.

9. We have excluded design liabilty, by Topgolf.

10. We have excluded plan check costs and permitting fees for any deferred approvals.

11. We have excluded Safety Nets and Fall Protection per note 1/S5.2, by Topgolf.

12. We have excluded safety nets and Fall protection design. 1/S5.2 indicates hole for safety nets, design of nets by fall protection system supplier. This is by Topgolf.

13. We have excluded any scope of wo rk in Via Campo at the existing drive approach main entry. We have assumed the existing drive approach meets all standards.

14. We have excluded concrete equipment pads for the Future EV charging stations. These are part of the Future EV charging scope of work. Ref. 2/E100.

15. We have excluded any curbs in the kitchen. None are shown.

16. We have excluded concrete fill at stair 2. Plans do not indicate it as required for Custom Concrete Stair Tread and Landing CT-1.

17. We have excluded 03351 - Stained Concrete as it is not indicated in the documents.

18. We have excluded any concrete curing compounds and have assumed wet cure.

19. We have excluded any masonry, none is indicated on the documents.

CLARIFICATIONS, ASSUMPTIONS AND

ALLOWANCES

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20. We have excluded any gauge metal for openings in the metal deck.

Documents indicate all openings are misc. Metal and furnished by Topgolf.

21. We have excluded furnishing embed/anchor bolts for connection to structural steel. These are included in the furnished material by Topgolf.

22. We have excluded banquette seating at Bar 201 as shown on 5/A10.3. This is noted as furniture OFOI.

23. We have excluded STC ratings at door assemblies as no STC ratings are indicated on the door schedule.

24. We have excluded an y reference to Stone as it does not appear to be required on this project.

25. We have excluded any accommodations not specifically noted on the plan for drapery at the event space per A11.2.

26. We have excluded any quarry tile or associated epoxy grout as it i s not indicated on this project (ref. G1.6).

27. We have excluded General Note #15 on A6.2 for water repellent penetration sealers to all exterior stone as there is no exterior stone.

28. We have excluded 14 ga mounting for hitting bay heaters. These are part of the heater assembly ref. 7/A7.5 by Topgolf.

29. We have excluded lockers they are by Topgolf.

30. We have excluded furniture on the furniture schedule A12.5, as it is called out as OFOI on RS1.1 by Topgolf.

31. We have excluded any provisions associated with the outfield Net poles, Nets or footings. This is Topgolf Furnished and Installed.

32. We have excluded heat tracing of any fire protection systems.

33. We have excluded furnishing and installing kitchen refrigerator, freezer and ice machine condensing units and associated interconnect refrigerant piping systems. This is by Topgolf.

34. Primary and Secondary Conductors are excluded and are to be provided by SCE.

35. Concrete equipment Pads, power conductors, and installation of EV charging stations are excluded and to be provided by Topgolf.

36. FAA lighting on outfield poles is excluded.

37. Emergency Responder Radio Coverage System (ERRCS) conduit infrastructure, 2-hour rated cabling, equipment, devices, engineering and RF Testing are excluded. It is unknown if this system will be required. The 2019 Fire Code, T24, Part 9, Section 510 requires that new buildings shall have approved radio coverage for emergency responders within the building, however this is based on the existing coverage levels and at the discretion of the local Fire Authority.

38. Engineering and permits to tap into a nearby SCE utility transformer for temporary power are excluded and may not be feasible due to the lengthy approval process.

39. We have excluded demolition of existing pole footings per SH-2 and SH-3.

40. We have excluded the dewatering of the onsite lakes as it is outside of the boundary of work.

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41. We have excluded a fence or gate to replace the opening for the new driveway per keynote 19 on the Precise Grading Plans.

42. We have excluded detail 4/L3.0 for Sleeving HDPE Pipe. The plans do not indicate any HDPE Pipe being installed.

43. We have excluded any utility service connection costs or fees.

44. We have excluded padding at the hitting bay beams, none is indicated.

CLARIFICATIONS

The following items provide additional clarifications regarding the scope of work included in our Estimate.

Division 1

45. Mutually agreeable contract terms and conditions.

46. GMP assumes a construction mobilization date of November 14, 2022 and a construction start date of November 14, 2022.

47. This proposal is based on the attached schedule dated October 28, 2022, and revisions to this schedule may result in a change to the GMP.

48. Our GMP is based on the attached schedule, which is assumes 8-hour working days Monday thru Friday, excluding holidays. We have not included any premium costs to work outside an 8-hour working day.

49. Our GMP Schedule is based on revisions to structural foundation details to allow for the Slab on Grade pour sequence ahead of steel erection. Tie beam details on S3.2 will need to be revised by the SEOR.

50. Permit and Plan check fees by Topgolf.

51. Utility service provider and meter fees by Topgolf.

52. Permanent power and associated fees by Topgolf.

53. Our GMP includes connection to the utility meters at the building. Installation of utility service to the building meters by utility service provider .

54. The GMP cost for the project is based on the “Permit Comments 07/11/2022” set of drawings dated 09/06/22, and RFI Responses issued through Addenda 5 (reference attached log).

55. We have included a trailer for Topgolf use for twelve (12) weeks wit h a power hookup only.

56. We have included 12 months of utility usage and consumption costs during construction.

57. Topgolf installers, vendors, and suppliers must attend a site-specific safety orientation and complete a visitor type waiver before accessing the work area.

58. Topgolf Furnished and installed items will be installed in coordination with McCarthy and McCarthy’s published schedule.

59. Reinforcing Steel pricing is good until November 10, 2022.

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60. Where discrepancies occur between the specifications listed on G1.1 through G1.8 and the finish schedule on A9.1, we have assumed A9.1 supersedes unless noted otherwise in the documents.

61. All state and local taxes are included for our scope of work.

62. All required project submittals will be revi ewed and coordinated through the design team, not just those listed on RS1.2.

63. Installation of the Detention basin will occur prior to construction of “Topgolf Way” and Driving Range poles to allow construction to be installed by laying back the earth in lieu of shoring. We have excluded shoring for this scope of work.

64. Topgolf furnished items identified in Exhibits L.1 and RS1.1 will be delivered per our construction schedule.

65. Discrepancies between Exhibit L.1 and RS1.1, Exhibit L.1 takes precedence.

66. We have included furnish of metal decking, in lieu of Topgolf Furnished per Exhibit L.1.

67. Per initial discussion with Martin/Martin, we have assumed the foundations supporting the moment frame columns can be re-designed to allow for the foundations/slab on grade to be poured prior to setting the moment frame columns. We have excluded any costs associated with redesign.

Division 3

68. We have included a 15 mil. vapor barrier and 2” of sand under the Building Slab on Grade.

69. Structural concrete pricing assumes a project start date of November 14, 2022.

70. We have included 12” x 36” footings with no reinforcement at the aluminum fence per SP1.2.

71. We have included reinforcement at the concrete bench / retaining wall. #5 @ 12” OCEW per 8/SP1.2.

72. We have included vapor barrier under the Slab on Grade at Targets and provided a 3” concrete thickness .

73. We have included a screed finish at concretes at targets.

74. We have included wire mesh at concrete target slab on grade.

75. We have included ½” expansion joint foam material at 124 columns at 2 levels to account for movement at the yield link joint per correspondence with SEOR.

Division 4
N/A

Division 5

76. We have included installation of bent plate per Detail 1,4/S5.2 along Gridline 1 for the Middle and Upper Levels, bent plate per Detail 17/S5.3 for the entire

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5 OF 10 CLARIFICATIONS, ASSUMPTIONS AND ALLOWANCES roof perimeter, and 3/8” bent plate for the remaining deck perimeter per Detail 16/S5.3.

77. Operable partition additional support steel in addition to the floor beams will be furnished by Topgolf.

78. We have included the Topgolf furnished tapered steel beams at tee line are painted, not galvanized.

79. We have included primer touch up at the metal deck welds at the roof level it is the only location exposed to weather.

80. We have included Furnish and Install of in wall tube steel only per 1& 6/A11.4 for TV wall supports. These bolt to the slab on grade.

81. We have included the contractor furnished/contractor installed item listed as “elevator rail plates” as elevator guide rail supports.

82. We have included furnish and install of steel, misc. metals, as outlined in Exhibit L.1.

83. We have included the cost to furnish and install the entire metal decking system complete.

84. Stairs and Parapet wall supports will be designed by Martin and Martin, not a deferred approval per RS1. 1 and Pre-Bid RFI 73.

Division 6

85. We have included the wood nailer for turf per 1/A6.5 along hitting bays only as shown on SP1.1.

86. We have included waterproofing the grade beam adjacent to the elevator pit, not shown on documents.

Division 7

87. We have included Composite Panel manufacturer OMEGALITE in lieu of ATAS per pre-bid RFI 47.

88. At level 2 terrace 122 reference A1.2b, 1/A6.2 and A5.1 we have included a traffic coating over the patio in addition to the Tremdrain 200 indicated on 17/A7.2.

89. We have included an ‘air barrier’ at the underside of roof level decking per G1.3.

90. We have included Stego Vapor Barrier under Slab on Grade and at targets.

91. We have included MacroPoxy spray applied coating at the exterior side of the targets to protect from corrosive soils. We have not included preparation of Topgolf furnished corrugated steel and assume it can be delivered non- galvanized at the non-visible side.

Division 8

92. We have included costs associated with NFRC Certifications (National Fenestration Rating Council) in the lab.

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Montebello City CouncilNovember 10, 2022

Montebello City Council
November 10, 2022